EXHIBIT 4.5
FINOVA/registered trademark/[LOGO]
FINANCIAL INNOVATORS
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Rediscount Finance
GUARANTY
(Continuing/Unlimited)
TO: FINOVA CAPITAL CORPORATION
Ladies/Gentlemen:
1. THE GUARANTEED DEBT. In consideration of any and all loans, advances,
acceptances and extensions of credit made by FINOVA CAPITAL CORPORATION, a
Delaware corporation, ("FINOVA") to, for the account of, or on behalf of FLORIDA
FINANCE GROUP INC., a Florida corporation (referred to herein as "Borrower") and
as an inducement for FINOVA to make future loans, advances, acceptances and
extensions of credit to, for the account of, or on behalf of Borrower, the
undersigned (the "Guarantor"), absolutely and unconditionally guarantees to
FINOVA the punctual payment in full at maturity, whether due pursuant to
acceleration or otherwise, of the principal, interest and other sums due or to
become due from Borrower to FINOVA (collectively the "debt") at any time and
from time to time from the date of this Guaranty until termination under or
pursuant to that certain First Amended and Restated Loan and Security Agreement
of even date herewith by and among FINOVA, Borrower and Guarantor (the "Loan
Agreement"). Guarantor hereby acknowledges that it will receive a materially
financial and economic benefit from the extension of credit by FINOVA to
Borrower.
2. DURATION. This Guaranty shall operate as a continuing guaranty and shall
terminate as to the Guarantor only upon written notice signed by the Guarantor
and actually received by FINOVA, effective as of the opening of business on the
day following the date of receipt. Such termination shall be effective only as
to that portion of the debt incurred after such termination date, and this
Guaranty shall remain in full force and effect as to all debt incurred before
that time. Regardless of when a renewal or extension of pre-termination debt
occurs (with or without adjustment of interest rate or other terms), the debt is
deemed to have been incurred prior to termination to the extent of the renewal
or extension, and to be fully covered by this Guaranty. This Guaranty shall be
binding upon the undersigned Guarantor and its successors and assigns, jointly
and severally, and shall inure to the benefit of FINOVA and its successors and
assigns.
3. NO CONDITIONS. This is an unconditional Guaranty; it is unlimited as to
time, until termination. The Guarantor warrants that there are no conditions,
oral or otherwise, on the effectiveness of this Guaranty. This writing
constitutes the entire agreement of the parties regarding the Guaranty.
4. DISCLOSURE OF CONDITION OF BORROWER. The Guarantor warrants and
represents to FINOVA that: (a) this Guaranty is executed at the Borrower's
request; (b) the Guarantor has established adequate means of obtaining from the
Borrower on a continuing basis financial and other information pertaining to the
Borrower's affairs or business; and (c) the Guarantor is now and will be
familiar with the affairs, business, operation and condition of the Borrower and
its assets. The Guarantor hereby waives any duty on the part of FINOVA to
disclose to the Guarantor any matter relating to the affairs, business,
operation or condition of the Borrower and its assets now known or hereafter
known to FINOVA during the life of this continuing Guaranty. With respect to any
debt of the Borrower to FINOVA, FINOVA need not inquire into the powers of the
Borrower or the officers, directors or agents acting or purporting to act on its
behalf, and any debt created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
5. WAIVERS REGARDING THE GUARANTEED DEBT. The Guarantor expressly waives
the following: notice of the incurring of debt by the Borrower; notice of
default on the debt or intent to accelerate; notice of acceleration; notice of
intent to accelerate; the acceptance of this Guaranty by FINOVA; presentment and
demand for payment, protest, notice of protest and notice of dishonor or
nonpayment of any instrument evidencing debt of the Borrower; any right to
require the pursuit of any remedies against the Borrower or any other guarantor,
including commencement of suit, before enforcing this Guaranty (this is a
guaranty of payment, not a guaranty of collection); any right to have security
or the right of setoff applied before enforcing this Guaranty; and any and all
right of subrogation to FINOVA's rights against the Borrower, other guarantors
or any other person or entity; all diligence in collection and failure or delay
by FINOVA in protection or exercise of FINOVA's rights against Borrower; and any
other action or any other encumbrance whatsoever which might constitute a
defense to the enforcement of this Guaranty.
The Guarantor hereby consents and agrees that renewals and extensions of
time of payment (including interest rate adjustments), surrender, release,
exchange, substitution, dealing with or taking of additional collateral,
modifying any obligations of, taking or release of other guarantors, abstaining
from taking advantage of or realizing upon any collateral security or other
guaranty and any and all other forbearances or indulgences granted by FINOVA to
the Borrower or any other party may be made, granted or effected by FINOVA
without notice to the Guarantor and without affecting in any manner Guarantor's
liability hereunder. The Guarantor hereby expressly consents to any impairment
of collateral including, but not limited to, failure to perfect a security
interest and release of collateral.
Any adjustment or compromise may be made by FINOVA with the Borrower or any
other party to the debt, and a lesser sum than the face amount thereof may be
accepted in full payment and discharge. Any of the collateral or other security
granted by the Borrower or any other party which FINOVA may hold or which may
come to it or its possession may be released or otherwise dealt with by FINOVA
in all respects as if this Guaranty were not in existence and the obligation of
the Guarantor shall in no way be affected thereby. The Guarantor hereby waives
and foregoes any right in respect of any such action by FINOVA.
6. FINOVA'S COLLECTION RIGHTS AGAINST GUARANTOR. The Guarantor agrees to
pay to FINOVA any and all costs, expenses and reasonable attorney's fees paid or
incurred by FINOVA in collecting or endeavoring to collect the debt of the
Borrower or in enforcing or endeavoring to enforce this Guaranty, unless
recovery of attorney's fees is invalid under applicable state or federal law. In
addition to its other rights and remedies under this Guaranty, FINOVA may
require, at FINOVA's option, collateral security to support the Guarantor'
obligations upon Borrower's default of any loan agreement with FINOVA if
thereupon FINOVA reasonably deems itself insecure; if such a requirement is
imposed, now or in the future, FINOVA shall have any rights and remedies
contained in any mortgage, security agreement or other document executed by the
Guarantor. If the Guarantor refuses to execute such documents, the debt of the
Borrower shall, for the purposes of this Guaranty, be deemed to have matured.
7. BANKRUPTCY OF BORROWER. Guarantor agrees that this Guaranty shall not be
discharged except (subject to the limitations expressly contained herein) by
complete performance of Borrower's obligations to FINOVA and further agree that
the obligations of the Guarantor hereunder shall not be discharged, reduced or
affected in any way by any receivership, insolvency, bankruptcy or other
proceedings affecting the Borrower or any of its assets or the release or
discharge of the Borrower from the performance of any obligations to FINOVA,
whether by operation of law or otherwise or any other cause, whether similar or
dissimilar to the foregoing.
8. ASSIGNMENT. FINOVA may assign its rights hereunder in whole or in part
and upon any such assignment all the terms and provisions of this Guaranty shall
inure to the benefit of such assignee, to the extent so assigned.
9. MATURITY, PAYMENT. The Guarantor agrees that if the maturity of any of
the debt is accelerated by bankruptcy or otherwise, such maturity shall also be
deemed accelerated for the purpose of this Guaranty without demand or notice of
any kind to the Guarantor. Guarantor further agrees that, to the extent that the
Borrower or any other Person makes a payment to FINOVA on account of the
Indebtedness, or FINOVA receives any proceeds of collateral, which payment or
any part thereof is subsequently invalidated, declared to be fraudulent or
preferential, set aside, or otherwise
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required to be repaid to the Borrower or any other party, including without
limitation, it's estate, trustee or receiver, under any bankruptcy, insolvency,
or other similar law, whether state or federal or under any common law or
equitable claim; then to the extent of such payment or repayment, the obligation
or part thereof which has been paid, reduced or satisfied by such amount shall
be reinstated and continued in full force and effect as of the date such initial
payment, reduction or satisfaction occurred. The Guarantor shall defend and
indemnify FINOVA of and from any claim or loss under this paragraph including
FINOVA's attorneys' fees and expenses in the defense of any such action or suit.
The Guarantor will, forthwith upon notice from FINOVA of the Borrower's failure
to pay any debt at maturity, pay to FINOVA at FINOVA's principal offices the
amount due and unpaid by the Borrower and guaranteed hereby. The failure of
FINOVA to give this or any notice shall not in any way release the Guarantor
hereunder.
10. NO ORAL MODIFICATIONS. This Guaranty shall not be suspended, amended,
released, terminated or modified in any manner except by an instrument in
writing signed by all parties to be bound.
11. WAIVER OF DEFAULT. No wavier by FINOVA of any default of any provision
of this Guaranty Agreement shall be deemed a waiver of any other pre-existing or
subsequently existing default, nor shall any such waiver by FINOVA be deemed a
continuing waiver. No delay or omission by FINOVA in exercising any right
hereunder, at any law or in equity, or otherwise, shall impair any such right or
be construed as a waiver thereof, acquiescence therein, nor shall any single or
partial exercise of any right preclude other or further exercise of any other
right that may exist or that may thereafter exist.
12. INDEMNIFICATION. In the event of the breach of this Guaranty, by
Guarantor, Guarantor hereby agrees to indemnify and hold FINOVA harmless from
any and all resulting claims and damages, including attorney's fees, and all
other costs.
13. GOVERNING LAW. This Guaranty is executed and delivered by Guarantor and
is performable in Maricopa County, Arizona, and shall be governed by and
construed in accordance with the laws of the State of Arizona.
14. JURISDICTION AND VENUE. Any suit, action or proceeding against
Guarantor with respect to this Guaranty, the Loan Documents, as such term is
defined in the Loan Agreement, or any judgment entered by any court in respect
thereof, may be brought in any local, state or federal court in the State of
Arizona located in Maricopa County and Guarantor hereby submits to the
nonexclusive jurisdiction of such courts for the purpose of any such suit,
action or proceeding. Guarantor hereby further irrevocably consents to the
service of process in any suit, action or proceeding in said court by the
mailing thereof by Lender by registered or certified mail, postage thereon
prepaid, to Guarantor at its address set forth in the Loan Agreement. Guarantor
hereby irrevocably waives any objections which it may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating
to this Guaranty or the Loan Documents brought in any local, state or federal
court of the State of Arizona located in Maricopa County and hereby further
irrevocably waives any claim that any such suit, action or proceeding brought in
any such court has been brought in any inconvenient forum.
15. WAIVER OF RIGHT TO TRIAL BY JURY. GUARANTOR AND FINOVA HEREBY COVENANT
AND AGREE THAT IN ANY SUIT, ACTION OR PROCEEDING IN RESPECT OF ANY MATTER
ARISING OUT OF THIS GUARANTY, THE LOAN DOCUMENTS OR TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE, TRIAL SHALL
BE TO A COURT OF COMPETENT JURISDICTION AND NOT TO A JURY; GUARANTOR HEREBY
EXPRESSLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY. ANY PARTY MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS GUARANTY WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
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16. ADVICE OF COUNSEL. Guarantor acknowledges that it has been advised by
counsel with respect to the transaction governed by this Guaranty and
specifically with respect to the terms of Sections 13, 14 and 15.
IN WITNESS WHEREOF, this Guaranty has been executed and delivered to FINOVA
by the undersigned Guarantor on the day of January, 1997.
ECKLER INDUSTRIES, INC.
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Gary Smith, President
THE STATE OFARIZONA )
ss.)
COUNTY OF MARICOPA )
BE IT REMEMBERED, that on 4th day of February, 1997 before me, the
undersigned, a Notary Public within and for the County and State aforesaid, came
Gary Smith, President of Eckler Industries, Inc., who is personally known to me
to be the person and said officer whose name is subscribed to the foregoing
instrument of writing, and acknowledged to me that he executed the said
instrument for the purposes and consideration therein expressed and in the
capacity as therein stated for the act and deed of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal, the day and year last above written.
________________________________________________
NOTARY PUBLIC, STATE OF_________________________
My commission expires:__________________________
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