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EXHIBIT 10.445
GUARANTY
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This GUARANTY, dated as of August 11, 2000, is by CENTRAL CHECK
CASHING, INC., a California corporation, and CENTRAL CONSUMER COMPANY OF NEVADA,
a Nevada corporation (individually a "Guarantor", collectively "Guarantors"), in
favor of the Lenders (as below defined) and UNION BANK OF CALIFORNIA, N.A., as
agent (in such capacity, the "Agent") for the financial institutions (the
"Lenders") from time to time party to that certain Credit Agreement dated as of
August 11, 2000, among Central Consumer Finance Company, a Delaware corporation
(the "Borrower"), the Lenders and the Agent.
Recitals
A. The Borrower, the Agent, and the Lenders entered into a Credit
Agreement dated as of August 11, 2000. The Credit Agreement as now in effect or
hereafter extended, renewed, modified, supplemented, amended or restated is
hereinafter called the "Credit Agreement".
B. The Lenders are willing to make certain Loans to the Borrower
as provided in the Credit Agreement on the condition (among others) that the
Guarantors enter into this Guaranty.
C. The Guarantors, as Subsidiaries of the Borrower, will derive
substantial and direct benefits (which benefits are hereby acknowledged by the
Guarantors) from the Loans and other benefits to be provided to the Borrower
under the Credit Agreement.
D. In order to induce the Lenders to make such Loans available to
the Borrower as provided in the Credit Agreement, and for other valuable
consideration, the Guarantors issue this Guaranty.
1. Definitions. Unless otherwise defined herein, capitalized terms used
in this Guaranty have the meanings given to them from time to time in the Credit
Agreement. References to the Lenders or any Lender herein shall include the
Agent in its capacity as a Lender. As used herein, "Guaranteed Obligations"
means (a) the "Obligations" as defined in the Credit Agreement and includes all
obligations, liabilities and indebtedness of every kind and character, whether
now existing or hereafter arising, whether absolute or contingent, and whether
direct or indirect, arising directly or indirectly under or pursuant to any one
or more of the Loan Documents, whether for principal, interest (including,
without limitation, interest that, but for the filing of a petition in
bankruptcy, would accrue on such obligations, liabilities or indebtedness), fees
(including, without limitation, reasonable attorneys' fees of outside counsel
and the reasonable allocated fees of internal counsel) or expenses, (b) all
obligations, liabilities and indebtedness of Borrower to Union Bank of
California, N.A. of every kind and character, whether now existing or hereafter
arising, whether absolute or contingent, and whether direct or indirect, arising
directly or indirectly under or pursuant to any and all transactions, agreements
or documents now existing or hereafter entered into, which provides for an
interest rate, credit, commodity or equity swap, cap, floor, collar, forward
foreign exchange transaction, currency swap, cross currency rate swap, currency
option, or any combination of, or option with respect to, these or similar
transactions, for the purpose of hedging Borrower's exposure to fluctuations in
interest or exchange rates, loan, credit exchange, security or currency
valuations or commodity prices, whether for principal, interest (including,
without limitation, interest that, but for the
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filing of a petition in bankruptcy, would accrue on such obligations,
liabilities or indebtedness), fees (including, without limitation, reasonable
attorneys' fees of outside counsel and the reasonable allocated fees of internal
counsel) or expenses, and (c) all obligations, liabilities and indebtedness of
Borrower to Union Bank of California, N.A. of every kind and character, whether
now existing or hereafter arising, whether absolute or contingent, and whether
direct or indirect, arising directly or indirectly under or pursuant to any cash
management or related services including the automatic clearing house transfer
of funds by the Bank for the account of Borrower pursuant to agreement or
overdrafts, whether for principal, interest (including, without limitation,
interest that, but for the filing of a petition in bankruptcy, would accrue on
such obligations, liabilities or indebtedness), fees (including, without
limitation, reasonable attorneys' fees of outside counsel and the reasonable
allocated fees of internal counsel) or expenses.
2. Guaranty.
2.1 Guaranty. (a)Each Guarantor hereby, jointly and severally,
irrevocably, absolutely, and unconditionally guarantees the full
and punctual payment or performance when due, whether at stated
maturity, by required prepayment, declaration, acceleration,
demand or otherwise, of all of the Guaranteed Obligations,
including (i) Guaranteed Obligations in respect of amounts that
would become due but for the operation of the automatic stay
under Section 362(a) of the Bankruptcy Code or the operation of
Sections 502(b) and 506(b) of the Bankruptcy Code; and (ii)
Guaranteed Obligations to deliver and pledge cash collateral
upon certain events. This Guaranty constitutes a guaranty of
payment and performance when due and not of collection, and each
Guarantor specifically agrees that it shall not be necessary or
required that the Agent or any Lender exercise any right, assert
any claim or demand or enforce any remedy whatsoever against the
Borrower (or any other Person) before or as a condition to the
obligations of the Guarantors hereunder. The Agent or any Lender
may permit the indebtedness of the Borrower to the Agent or any
Lender to include indebtedness other than the Guaranteed
Obligations, and may apply any amounts received from any source,
other than from the Guarantors, to that portion of Borrower's
indebtedness to the Agent or any Lender which is not a part of
the Guaranteed Obligations.
(b) To secure all of the Guarantors' obligations hereunder, each
Guarantor assigns and grants to Lender a security interest in
all moneys, securities, and other property of such Guarantor now
or hereafter in the possession of Lender, all deposit accounts
of such Guarantor maintained with Lender, and all proceeds
thereof. Upon default or breach of any Guarantor's obligations
to Lender, Lender may apply any deposit account to reduce the
indebtedness, and may foreclose any collateral as provided in
the Uniform Commercial Code and in any security agreements
between Lender and Guarantor.
2.2 Obligations Independent. The obligations hereunder are
independent of the obligations of the Borrower, and a separate
action or actions may be brought and prosecuted against one or
more of the Guarantors whether action is brought against the
Borrower or whether the Borrower or any other guarantor be
joined in any such
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action or actions; and each Guarantor waives the benefit of any
statute of limitations affecting such Guarantor's liability
hereunder.
2.3 Limit of Liability. Notwithstanding anything to the contrary
contained herein:
(a) Each Guarantor shall be liable hereunder only for the largest
amount that would not render such Guarantor's obligations
hereunder subject to avoidance under Section 548 of the
Bankruptcy Code or comparable provisions of any applicable state
law; provided that such amount shall be presumed to be the
entire amount of the Guaranteed Obligations. If, any Guarantor
claims that such Guarantor's liability hereunder is less than
the entire amount of the Guaranteed Obligations, such Guarantor
shall have the burden of proving, by clear and convincing
evidence, that such Guarantor's liability hereunder should be so
limited since the information concerning, and the circumstances
of, the financial condition of such Guarantor are more readily
available to and are under the control of such Guarantor.
(b) All payments received by Agent or any Lender from any Person
other than a Guarantor on account of the Guaranteed Obligations
shall be deemed as having been applied to Guaranteed Obligations
which, pursuant to this Section 2.3, are in excess of the
amounts guaranteed hereunder.
2.4 Authorization of Renewals, Etc. The Guarantors authorize the
Agent and each Lender, without notice or demand and without
affecting its liability hereunder, from time to time:
(a) to renew, compromise, extend, accelerate or otherwise change the
time for payment, or otherwise change the terms, of the
Guaranteed Obligations or any part thereof, including increase
or decrease of the rate of interest thereon, or otherwise change
the terms of the Credit Agreement or any other Loan Document;
(b) to receive and hold security for the payment of this Guaranty or
the Guaranteed Obligations and exchange, enforce, waive,
release, fail to perfect, sell, or otherwise dispose of any such
security;
(c) to apply such security and direct the order or manner of sale
thereof as the Agent, or any Lender, as the case may be, in its
or their discretion may determine; and
(d) to release or substitute any one or more of any endorsers or
guarantors of the Guaranteed Obligations.
The Guarantors further agree the performance or occurrence of any of the acts or
events described in clauses (a), (b), (c), and (d) above with respect to
indebtedness or other obligations of the Borrower, other than the Guaranteed
Obligations, to the Agent or any Lender, shall not affect the liability of the
Guarantors hereunder.
2.5 Waiver of Certain Rights. Each Guarantor waives any right to
require the Agent or any Lender:
(a) to proceed against the Borrower or any other Person, including
any other Guarantor;
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(b) to proceed against or exhaust any security for the Guaranteed
Obligations or any other indebtedness of the Borrower to the
Agent or any Lender; or
(c) to pursue any other remedy in the Agent's or any such Lender's
power whatsoever.
2.6 Waiver of Certain Defenses. (a) Each Guarantor waives any
defense arising by reason of any disability or other defense of
the Borrower, or the cessation from any cause whatsoever of the
liability of the Borrower, whether consensual or arising by
operation of law or any bankruptcy, insolvency or debtor relief
proceeding, or from any other cause, including any such defense
or cessation of liability arising from or as a result of any
claim of fraudulent transfer or preference, or any claim that
such Guarantor's obligations exceed or are more burdensome than
those of the Borrower. Each Guarantor waives any defense arising
by reason of any statute of limitations affecting the liability
of the Borrower. Each Guarantor waives all rights and defenses
arising out of an election of remedies by the Agent or any
Lender, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for the
Guaranteed Obligations, has destroyed such Guarantor's rights of
subrogation and reimbursement against the Borrower by operation
of Section 580d of the California Code of Civil Procedure (if
applicable) or other applicable law, and all rights or defenses
such Guarantor may have by reason of protection afforded to the
Borrower with respect to the Guaranteed Obligations pursuant to
the antideficiency laws or other laws of the State of California
(or other applicable jurisdiction) limiting or discharging the
Guaranteed Obligations. Each Guarantor waives any benefit of,
and any right to participate in, any security or other guaranty
now or hereafter held by the Agent or any Lender securing the
Guaranteed Obligations.
(a) Until the indebtedness shall have been paid in full, even though
the indebtedness is in excess of such Guarantor's liability
hereunder, each Guarantor waives any right of subrogation,
reimbursement, indemnification, and contribution (contractual,
statutory, or otherwise) including, without limitation, any
claim or right of subrogation under the Bankruptcy Code (Title
11, United States Code) or any successor statute, arising from
the existence or performance of this Guaranty, and each
Guarantor waives any right to enforce any remedy which Lender
now has or may hereafter have against Borrower and waives any
benefit of and any right to participate in any security now or
hereafter held by Lender.
(b) Each Guarantor understands and acknowledges that if Lender
forecloses, either by judicial foreclosure or by exercise of
power of sale, any deed of trust securing the indebtedness, that
foreclosure could impair or destroy any ability that such
Guarantor may have to seek reimbursement, contribution, or
indemnification from Borrower or others based on any right such
Guarantor may have of subrogation, reimbursement, contribution,
or indemnification for any amounts paid by such Guarantor under
this Guaranty. Each Guarantor further understands and
acknowledges that in the absence of this paragraph, such
potential impairment or destruction of Guarantor's rights, if
any, may entitle such Guarantor to assert a defense to this
Guaranty based on Section 580d of the California Code of Civil
Procedure as interpreted in Union Bank v. Gradsky, 265 Cal. App.
2d. 40 (1968). By executing this Guaranty, each Guarantor
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freely, irrevocably, and unconditionally: (i) waives and
relinquishes that defense and agrees that such Guarantor will be
fully liable under this Guaranty even though Lender may
foreclose, either by judicial foreclosure or by exercise of
power of sale, any deed of trust securing the indebtedness; (ii)
agrees that such Guarantor will not assert that defense in any
action or proceeding which Lender may commence to enforce this
Guaranty; (iii) acknowledges and agrees that the rights and
defenses waived by such Guarantor in this Guaranty include any
right or defense that such Guarantor may have or be entitled to
assert based upon or arising out of any one or more of Sections
580a, 580b, 580d, or 726 of the California Code of Civil
Procedure or Section 2848 of the California Civil Code; and (iv)
acknowledges and agrees that Lender is relying on this waiver in
making the Loans and extending other financial accommodations
giving rise to the obligations, and that this waiver is a
material part of the consideration which Lender is receiving for
creating the Guaranteed Obligations.
(c) Each Guarantor waives any rights and defenses that are or may
become available to it by reason of Sections 2787 to 2855,
inclusive, of the California Civil Code.
(d) Each Guarantor waives all rights and defenses that it may have
because any of the indebtedness is secured by real property.
This means, among other things: (i) Lender may collect from such
Guarantor without first foreclosing on any real or personal
property collateral pledged by Borrower; and (ii) if Lender
forecloses on any real property collateral pledged by Borrower:
(1) the amount of the indebtedness may be reduced only by the
price for which that collateral is sold at the foreclosure sale,
even if the collateral is worth more than the sale price, and
(2) Lender may collect from such Guarantor even if Lender, by
foreclosing on the real property collateral, has destroyed any
right such Guarantor may have to collect from Borrower. This is
an unconditional and irrevocable waiver of any rights and
defenses that any Guarantor may have because any of the
Guaranteed Obligations are secured by real property. These
rights and defenses include, but are not limited to, any rights
or defenses based upon Section 580a, 580b, 580d, or 726 of the
California Code of Civil Procedure.
(e) Each Guarantor waives any right or defense it may have at law or
equity, including California Code of Civil Procedure Section
580a, to a fair market value hearing or action to determine a
deficiency judgment after a foreclosure.
(f) No provision or waiver in this Guaranty shall be construed as
limiting the generality of any other waiver contained in this
Guaranty.
2.7 Waiver of Presentments, Etc. Each Guarantor waives all
presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of
dishonor and notices of acceptance of this Guaranty and of the
existence, creation, or incurring of new or additional
Guaranteed Obligations or any other indebtedness of Borrower to
the Agent or any Lender.
2.8 Information Relating to Borrower. Each Guarantor acknowledges
and agrees that it shall have the sole responsibility for
obtaining from the Borrower such information
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concerning the Borrower's financial condition or business
operations as such Guarantor may require, and that neither the
Agent nor any Lender has any duty at any time to disclose to any
Guarantor any information relating to the business operations or
financial condition of the Borrower.
2.9 Right of Setoff. In addition to any rights and remedies of the
Lenders provided by law, if any Guarantor has failed to make any
payment due hereunder upon demand, each Lender is authorized at
any time and from time to time, without prior notice to any
Guarantor, any such notice being waived by the Guarantors to the
fullest extent permitted by law, to set-off and apply any and
all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing
by such Lender to or for the credit or the account of any
Guarantor against any and all obligations of the Guarantors now
or hereafter existing under this Guaranty or any other Loan
Document, irrespective of whether or not the Agent or such
Lender shall have made demand under this Guaranty or any other
Loan Document and although such obligations may be contingent or
unmatured. Each Lender agrees promptly to notify the Guarantors
and the Agent after any such set-off and application made by
such Lender; provided that the failure to give such notice shall
not affect the validity of such set-off and application. The
rights of each Lender under this Section 2.9 are in addition to
the other rights and remedies (including, without limitation,
other rights of set-off) which such Lender may have.
2.10 Subordination. Any obligations of the Borrower to any Guarantor,
now or hereafter existing, including, but not limited to,
obligations to any Guarantor as subrogee of the Agent or any
Lender or resulting from any Guarantor's performance under this
Guaranty, are hereby fully subordinated in time and priority of
payment to the Guaranteed Obligations and all other indebtedness
of the Borrower to the Agent or any Lender. Such obligations of
the Borrower to any Guarantor if the Lenders so request shall be
enforced and performance received by such Guarantor as trustee
for the Agent and the Lenders and the proceeds thereof shall be
paid over to the Agent and the Lenders on account of the
Guaranteed Obligations, but without reducing or affecting in any
manner the liability of any Guarantor under the other provisions
of this Guaranty.
2.11 Reinstatement of Guaranty. If any payment or transfer of any
interest in property by the Borrower to the Agent or any Lender
in fulfillment of any Guaranteed Obligation is rescinded or must
at any time (including after the return or cancellation of this
Guaranty) be returned, in whole or in part, by the Agent or any
Lender to the Borrower or any other Person, upon the insolvency,
bankruptcy or reorganization of the Borrower or otherwise, this
Guaranty shall be reinstated with respect to any such payment or
transfer, regardless of any such prior return or cancellation.
2.12 Powers. (a) It is not necessary for the Agent or any Lender to
inquire into the powers of the Borrower or of the officers,
directors, partners or agents acting or purporting to act on its
behalf, and any Guaranteed Obligations made or created in
reliance upon the professed exercise of such powers shall be
guaranteed hereunder.
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(a) Each Guarantor authorizes Lender to verify or check any
information given by such Guarantor to Lender, check Guarantor's
credit references, verify employment, and obtain credit reports.
2.13 Taxes. (a) Any and all payments by the Guarantors to each Lender
or the Agent under this Guaranty shall be made free and clear
of, and without deduction or withholding for, any Taxes. In
addition, the Guarantors shall pay all Other Taxes.
(a) If the Guarantors shall be required by law to deduct or withhold
any Taxes, Other Taxes or Further Taxes from or in respect of
any sum payable hereunder to any Lender or the Agent, then:
(i) the sum payable shall be increased as necessary so that, after
making all required deductions and withholdings (including
deductions and withholdings applicable to additional sums
payable under this Section), such Lender or the Agent, as the
case may be, receives and retains an amount equal to the sum it
would have received and retained had no such deductions or
withholdings been made;
(ii) the Guarantors shall make such deductions and withholdings;
(iii) the Guarantors shall pay the full amount deducted or withheld to
the relevant taxing authority or other authority in accordance
with applicable law; and
(iv) the Guarantors shall also pay to each Lender or the Agent for
the account of such Lender at the time interest is paid, Further
Taxes in the amount that the respective Lender specifies as
necessary to preserve the after-tax yield the Lender would have
received if such Taxes, Other Taxes or Further Taxes had not
been imposed.
(b) The Guarantors agree to indemnify and hold harmless each Lender
and the Agent for the full amount of (i) Taxes, (ii) Other
Taxes, and (iii) Further Taxes in the amount that the respective
Lender specifies as necessary to preserve the after-tax yield
the Lender would have received if such Taxes, Other Taxes or
Further Taxes had not been imposed, and any liability (including
penalties, interest, additions to tax and expenses) arising
therefrom or with respect thereto, whether or not such Taxes,
Other Taxes or Further Taxes were correctly or legally asserted.
Payment under this indemnification shall be made within 30 days
after the date the Lender or the Agent makes written demand
therefor.
(c) Within 30 days after the date of any payment by the Guarantors
of Taxes, Other Taxes or Further Taxes, the Guarantors shall
furnish to each Lender or the Agent the original or a certified
copy of a receipt evidencing payment thereof, or other evidence
of payment satisfactory to such Lender or the Agent.
(d) For purposes of this Section, (i) "Taxes" means any and all
present or future taxes, levies, assessments, imposts, duties,
deductions, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of each
Lender and the Agent, respectively, taxes imposed on or measured
by its net income by the jurisdiction (or any political
subdivision thereof) under the laws of which such Lender
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or the Agent, as the case may be, is organized or maintains a
lending office; (ii) "Other Taxes" means any present or future
stamp, court or documentary taxes or any other excise or
property taxes, charges or similar levies which arise from any
payment made hereunder or from the execution, delivery,
performance, enforcement or registration of, or otherwise with
respect to, this Guaranty; and (iii) "Further Taxes" means any
and all present or future taxes, levies, assessments, imposts,
duties, deductions, fees, withholdings or similar charges
(including, without limitation, net income taxes and franchise
taxes), and all liabilities with respect thereto, imposed by any
jurisdiction on account of amounts payable or paid pursuant to
this Section.
2.14 Waiver of Subrogation. Until the Guaranteed Obligations have
been indefeasibly paid in full, each Guarantor waives any right
of subrogation, reimbursement, indemnification and contribution
(contractual, statutory or otherwise), including any claim or
right of subrogation under the Bankruptcy Code or any successor
statute, against the Borrower arising from the existence or
performance of this Guaranty and each Guarantor waives any right
to enforce any remedy which the Agent or any Lender now has or
may hereafter have against the Borrower, and waives any benefit
of, and any right to participate in, any security now or
hereafter held by the Agent or any Lender secured the Guaranteed
Obligations.
3. Representations and Warranties. Each Guarantor represents and
warrants to the Agent and each Lender as follows:
3.1 Corporate Existence and Power. Such Guarantor (a) is a
corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of their
incorporation; (b) has the power and authority and all
governmental licenses, authorizations, consents and approvals to
own its assets, carry on their businesses and to execute,
deliver, and perform its obligations under, this Guaranty and
any other Loan Document to which they are a party; (c) is duly
qualified as a foreign corporation, and licensed and in good
standing, under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of
their business requires such qualification or license; and (d)
is in compliance with all Requirements of Law.
3.2 Corporate Authorization; No Contravention. The execution,
delivery and performance by such Guarantor of this Guaranty and
any other Loan Document to which it is party, have been duly
authorized by all necessary corporate action, and do not and
will not (a) contravene the terms of such Guarantor's
Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any lien under,
any document evidencing any contractual obligation to which such
Guarantor is a party or any order, injunction, writ or decree of
any Governmental Authority to which such Guarantor or its
property are subject; or (c) violate any Requirement of Law.
3.3 Governmental Authorization. No approval, consent, exemption,
authorization, or other action by, or notice to, or filing with,
any Governmental Authority is necessary or required in
connection with the execution, delivery or performance by, or
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enforcement against, such Guarantor of this Guaranty or any
other Loan Document to which it is a party.
3.4 Binding Effect. This Guaranty and each other Loan Document to
which such Guarantor is a party constitute the legal, valid and
binding obligations of such Guarantor, enforceable against such
Guarantor in accordance with their respective terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating
to enforceability.
3.5 Regulated Entities. Such Guarantor, any Person controlling any
Guarantor or any Subsidiary of any Guarantor is not (a) an
"Investment Borrower" within the meaning of the Investment
Borrower Act of 1940; or (b) subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power
Act, the Interstate Commerce Act, any state public utilities
code, or any other Federal or state statute or regulation
limiting its ability to incur or guarantee indebtedness.
4. Miscellaneous
4.1 Application of Payments on Guaranty. All payments required to be
made by the Guarantors hereunder shall, unless otherwise
expressly provided herein, be made to the Agent for the account
of the Lenders at the Agent's Payment Office. The Agent will
promptly distribute to each Lender its Pro Rata Share (or other
applicable share as expressly provided herein) of such payment
in like funds as received. Payments received from the Guarantors
shall, unless otherwise expressly provided herein, be applied to
costs, fees, or other expenses due under the Loan Documents, any
interest (including interest due under subsection 2.07 of the
Credit Agreement, any principal due under the Loan Documents and
any other Guaranteed Obligations, in such order as the Agent,
with the consent of or at the request of the Lenders, shall
determine.
4.2 Assignments, Participations, Confidentiality. Any Lender may
from time to time, without notice to the Guarantors and without
affecting any Guarantor's obligations hereunder, transfer its
interest in the Guaranteed Obligations to Participants and
Assignees as provided in the Credit Agreement. The Guarantors
agree that each such transfer will give rise to a direct
obligation of the Guarantors to each such Participant and
Assignee and that each such Participant and Assignee shall have
the same rights and benefits under this Guaranty as it would
have if it were a Lender party to the Credit Agreement and this
Guaranty. Each Guarantor agrees that a Lender may disclose to
any assignee or purchaser, or any prospective assignee or
purchaser, of all or part of the Guaranteed Obligations, any and
all information in such Lender's possession concerning such
Guarantor, this Guaranty, and any security for this Guaranty.
The Guarantors, the Agent and each Lender agree that the
provisions of Section 10.17 of the Credit Agreement shall apply
to all information identified as "confidential" or "secret" by
the Guarantors and provided to the Agent or such Lender by the
Guarantors or any Subsidiary of any Guarantor under this
Guaranty or any other Loan Document to which the Guarantors are
a party.
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4.3 Loan Document. This Guaranty is a Loan Document executed and
delivered pursuant to the Credit Agreement and shall (unless
otherwise expressly indicated herein) be construed, administered
and applied in accordance with the terms and provisions thereof.
Without limiting the generality of the foregoing, the provisions
of Sections 1.02 and 1.03 of the Credit Agreement shall apply to
the interpretation and administration of this Guaranty as if
such provisions were incorporated herein, with all references to
the "Agreement" in such Sections being deemed to be references
to this Guaranty.
4.4 Addition of Guarantors. Any Person which executes and delivers
to the Agent a joinder letter in the form attached hereto as
"Exhibit 1" shall, without further action on the part of any
Person, automatically become a party hereto as a Guarantor with
respect to the repayment and performance of the Guaranteed
Obligations and shall be fully obligated as a Guarantor
hereunder.
4.5 Waivers; Writing Required. No delay or omission by the Agent or
any Lender to exercise any right under this Guaranty shall
impair any such right, nor shall it be construed to be a waiver
thereof. No waiver of any single breach or default under this
Guaranty shall be deemed a waiver of any other breach or
default. Any amendment or waiver of any provision of this
Guaranty must be in writing and signed by the Guarantors and the
Agent, with the written consent of all of the Lenders, in
accordance with the terms of Section 10.01 of the Credit
Agreement.
4.6 Remedies. All rights and remedies provided in this Guaranty and
any instrument or agreement referred to herein are cumulative
and are not exclusive of any rights or remedies otherwise
provided by law. Any single or partial exercise of any right or
remedy shall not preclude the further exercise thereof or the
exercise of any other right or remedy.
4.7 Costs and Expenses. The Guarantors, jointly and severally, agree
to pay or reimburse the Agent and each Lender within five
Business Days after demand for all costs and expenses, including
Attorney Costs (including allocated costs of Lender's in-house
counsel) incurred by them in connection with the enforcement,
attempted enforcement, or preservation of any rights or remedies
under this Guaranty (including in connection with any "workout"
or restructuring regarding amounts due under this Guaranty, and
including in any Insolvency Proceeding or appellate proceeding).
4.8 Severability. The illegality or unenforceability of any
provision of this Guaranty or any instrument or agreement
referred to herein shall not in any way affect or impair the
legality or enforceability of the remaining provisions of this
Guaranty or any instrument or agreement referred to herein.
4.9 Revocation. Each Guarantor absolutely, unconditionally,
knowingly, and expressly waives any right to revoke this
Guaranty as to future Guaranteed Obligations and, in light
thereof, all protection afforded such Guarantor under Section
2815 of the California Civil Code. Each Guarantor fully realizes
and understands that, upon execution of this agreement, such
Guarantor will not have any right to revoke this
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Guaranty as to any future Guaranteed Obligations and, thus, may
have no control over such Guarantor's ultimate responsibility
for the Guaranteed Obligations. If, contrary to the express
intent of this agreement, any such revocation is effective
notwithstanding the foregoing waiver, Guarantors acknowledge and
agree that: (a) no such revocation shall be effective until
written notice thereof has been received by Lenders and Agent;
(b) no such revocation shall apply to any Guaranteed Obligations
in existence on such date (including any subsequent
continuation, extension, or renewal thereof, or change in the
interest rate, payment terms, or other terms and conditions
thereof); (c) no such revocation shall apply to any Guaranteed
Obligations made or created after such date to the extent made
or created pursuant to a legally binding commitment of Lenders
and Agent which is, or is believed in good faith by Lenders and
Agent to be, in existence on the date of such revocation; (d) no
payment by any other Guarantor or Borrower, or from any other
source, prior to the date of such revocation shall reduce the
obligations of such Guarantor hereunder; and (e) any payment by
Borrower or from any source other than such Guarantor,
subsequent to the date of such revocation, shall first be
applied to that portion of the obligations, if any, as to which
the revocation by such Guarantor is effective (and which are
not, therefore, guarantied by such Guarantor hereunder), and, to
the extent so applied, shall not reduce the obligations of such
Guarantor hereunder.
4.10 Notices. All notices or demands by any Guarantor or Agent or
Lenders to the other relating to this Guaranty shall be in
writing and either personally served or sent by registered or
certified mail, postage prepaid, return receipt requested, or by
prepaid telex, telefacsimile, or telegram, and shall be deemed
to be given for purposes of this Guaranty on the day that such
writing is received by the party to whom it is sent. Unless
otherwise specified in a notice sent or delivered in accordance
with the provisions of this clause such writing shall be sent to
such Guarantor, Agent or Lenders, as applicable, at its address
for notices set forth on the signature page hereof or as may
otherwise be specified from time to time in a writing sent by
one party to the other in accordance with the provisions of this
Section.
4.11 WAIVER OF JURY TRIAL. GUARANTORS, LENDERS, AND AGENT EACH WAIVE
THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE
OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
GUARANTY, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR
OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. GUARANTORS, LENDERS,
AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION
SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING
THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE
RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION
AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS,
IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY
OF THIS GUARANTY OR THE OTHER LOAN
27
<PAGE> 13
DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS GUARANTY AND THE OTHER LOAN DOCUMENTS.
4.12 GOVERNING LAW. THIS AGREEMENT, AND THE CONSTRUCTION,
INTERPRETATION, AND ENFORCEMENT HEREOF, AND THE RIGHTS OF
GUARANTOR AND LENDERS AND AGENT HERETO AND HEREUNDER SHALL BE
DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF CALIFORNIA.
4.13 JURISDICTION AND VENUE. EACH GUARANTOR AGREES THAT ALL ACTIONS
OR PROCEEDINGS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL
BE TRIED AND LITIGATED IN THE COURTS OF THE STATE OF THE STATE
OF CALIFORNIA OR OF THE UNITED STATES FOR THE NORTHERN OR
CENTRAL DISTRICTS OF CALIFORNIA. EACH GUARANTOR STIPULATES THAT
THE STATE AND FEDERAL COURTS LOCATED IN THE CITY AND COUNTY OF
SAN FRANCISCO OR THE CITY OF LOS ANGELES, STATE OF CALIFORNIA
SHALL HAVE IN PERSONAM JURISDICTION AND VENUE OVER GUARANTORS
FOR PURPOSES OF LITIGATING ANY SUCH DISPUTE, CONTROVERSY, OR
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY OF
THE OTHER CREDIT DOCUMENTS. SERVICE OF PROCESS SUFFICIENT FOR
PERSONAL JURISDICTION IN ANY ACTION AGAINST ANY GUARANTOR MAY BE
MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED,
TO SUCH GUARANTOR'S ADDRESS FOR NOTICES SPECIFIED IN ACCORDANCE
WITH THE TERMS HEREOF. EACH GUARANTOR AGREES THAT ANY FINAL
JUDGMENT RENDERED AGAINST SUCH GUARANTOR IN ANY ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AS TO THE SUBJECT OF SUCH FINAL
JUDGMENT AND MAY BE ENFORCED IN OTHER JURISDICTIONS IN ANY
MANNER PROVIDED BY LAW. EACH GUARANTOR ABSOLUTELY,
UNCONDITIONALLY, KNOWINGLY, AND EXPRESSLY WAIVES ANY RIGHT SUCH
GUARANTOR MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON
CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY ACTION OR
PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION.
4.14 Entire Agreement. This Guaranty (a) integrates all the terms and
conditions mentioned herein or incidental hereto, (b) supersedes
all oral negotiations and prior writings with respect to the
subject matter hereof, and (c) is intended by the parties as the
final expression of the agreement with respect to the terms and
conditions set forth in this Guaranty and any such instrument,
agreement and document and as the complete and exclusive
statement of the terms agreed to by the parties.
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<PAGE> 14
IN WITNESS WHEREOF, each Guarantor has executed this Guaranty by
its duly authorized officers as of the day and year first above written.
CENTRAL CHECK CASHING, INC., a
California corporation
By /S/
--------------------------------------
Name: Howard Weitzman
Title: Chief Financial Officer
Notice Information:
Attn: Gary Cypres
5480 East Ferguson Drive
Commerce, CA 90022
Tel: 323.720.8724
Fax: 323.720.5242
29
<PAGE> 15
CENTRAL CONSUMER COMPANY OF NEVADA,
a Nevada corporation
By /S/
--------------------------------------
Name: Howard Weitzman
Title: Chief Financial Officer
Notice Information:
Attn: Gary Cypres
5480 East Ferguson Drive
Commerce, CA 90022
Tel: 323.720.8724
Fax: 323.720.5242
Notice Information for
Agent and Lenders:
Union Bank of California, N.A., as Agent
Attn: Robert C. Nagel
350 California Street, 6th Floor
San Francisco, CA 94104
Tel: 415.705.7189
Fax: 415.705.7037
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EXHIBIT 1
[Guarantor Joinder Letter]
---------------, ----
To the Agent
Referenced below:
Re: Central Consumer Finance Company
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as
of August 11, 2000 (as amended, the "Credit Agreement"), among Central Consumer
Finance Company, a Delaware corporation ("Borrower"), certain financial
institutions party thereto (the "Lenders"), and Union Bank of California, N.A.,
as agent for the Lenders (in such capacity the "Agent"). Unless specifically
defined herein, capitalized terms used herein have the meaning set forth in the
Credit Agreement.
The undersigned hereby confirms and agrees that (a) it has
been furnished with a copy of and has read the Credit Agreement, the Schedules
and Exhibits thereto, the Guaranty, and the other Loan Documents and understands
the effect thereof, and (b) effective as of the date hereof, the undersigned is
obligated as, assumes all obligations of, a Guarantor under the Guaranty. The
undersigned hereby warrants and represents to you that the representations,
warranties, undertakings, and waivers of the undersigned as a Guarantor under
the Guaranty, are true, correct, complete, and effective as to the undersigned.
Very truly yours,
[NAME OF GUARANTOR],
a [_________________]
By
---------------------------------------
Name
-------------------------------------
Title:
-----------------------------------
Notice Information:
