GENERAL CONTINUING GUARANTY
In order to induce ____________________________
(Name of Company), a ____________ (State) corporation, and any other Co-Buyer
or Participant as specified in the Agreements (Buyer) to extend and/or to
continue to extend financial accommodations to the Seller specified below, or
pursuant to any other present or future agreement between Buyer and Seller
(hereinafter collectively referred to as the Agreements), and in consideration
thereof, and in consideration of any loans, advances, or financial
accommodations heretofore or hereafter granted by Buyer to or for the account
of Seller, whether pursuant to the Agreements, or otherwise, the undersigned
officer(s), authorized agent(s) or third party guarantors of Seller
(hereinafter collectively and individually referred to as the Guarantor)
hereby, jointly and severally, guarantees, promises and undertakes as follows:
1. Guaranty
of Obligations. Guarantor
unconditionally, absolutely and irrevocably guarantees and promises to pay to
Buyer, on order or demand, in lawful money of the United States, any and all
indebtedness and obligations of Seller to Buyer and the payment to Buyer of all
sums which may be presently due and owing to Buyer from Seller whether under
the Agreements or otherwise. The terms
indebtedness and obligations are (hereinafter collectively referred to as the
Obligations) used herein in their most comprehensive sense and include any and
all advances, debts, obligations and liabilities of Seller, heretofore, now, or
hereafter made, incurred or created, whether voluntarily or involuntarily, and
however arising (including, without limitation, indebtedness owing by Seller to
third parties who have granted Buyer a security interest in the accounts,
chattel paper and general intangibles of said third party; and further
including, without limitation, any and all attorneys fees, expenses, costs,
premiums, charges and interest owed by Seller to Buyer, whether under the
Agreements, or otherwise) whether due or not due, absolute or contingent,
liquidated or unliquidated, determined or undetermined, whether Seller may be
liable individually or jointly with others, whether recovery upon such
indebtedness may be or hereafter becomes barred by any statute of limitations
or whether such indebtedness may be or hereafter becomes otherwise
unenforceable, and includes Sellers prompt, full and faithful performance,
observance and discharge of each and every term, condition, agreement,
representation, warranty undertaking and provision to be performed by Seller
under these Agreements.
2. Continuing
Guaranty. This General Continuing
Guaranty (the Guaranty) is a continuing guaranty which shall remain effective
until this Guaranty has been expressly terminated and relates to any
obligations including those which arise under successive transactions which
shall either continue the Obligations from time to time or renew them after
they have been satisfied. Any such
termination shall be applicable only after written notice to Buyer, and only to
transactions having their inception prior to such date. No termination shall be effective until such
time as Buyer is no longer committed or otherwise obligated to make any loans
or advances, or to grant any credit to Seller.
In the absence of any termination of this Guaranty, Guarantor agrees
that nothing shall discharge or satisfy its obligations created hereunder
except for the full payment and performance of the Obligations with interest.
3. Rights
are Independent. Guarantor agrees that
it is directly and primarily liable to Buyer, that the obligations hereunder
are independent of the obligations of Seller and that a separate action or
actions may be brought and prosecuted against Guarantor, whether action is
brought against Seller or whether Seller is joined in any such action or
actions. Guarantor agrees that any
releases which may be given by Buyer to Seller or any other guarantor or
endorser shall not release it from this Guaranty.
4. Default. In the event that any bankruptcy,
insolvency, receivership or similar proceeding is instituted by or against
Guarantor and/or the Seller or in the event that either the Guarantor or Seller
become insolvent, make an assignment for the benefit of creditors or attempt to
effect a composition with creditors, or if there be any default under the
Agreements (whether declared or not), then, at Buyers election, without notice
or demand, the Obligations of Guarantor created hereunder shall become due,
payable and enforceable against Guarantor whether or not the Obligations are
then due and payable.
5. Indemnification. Guarantor agrees to indemnify Buyer and hold
Buyer harmless against all obligations, demands and liabilities, by whomsoever
asserted and against all losses in any way suffered, incurred or paid by Buyer
as a result of or in any way arising out of, following or consequential to
transactions with Seller whether under the Agreements, or otherwise, and also
agrees that this Guaranty shall not be impaired by any modification,
supplement, extension or amendment of any contract or agreement to which Buyer
and Seller may hereafter agree, nor by any modification, release or other
alteration of any of the Obligations hereby guaranteed or of any security
therefor, nor by any agreements or arrangements whatever with Seller or anyone
else.
6. Consent
to Modifications. Guarantor hereby
authorizes Buyer, without notice or demand and without affecting its liability
hereunder, from time to time to:
6.1 renew, compromise, extend, accelerate or
otherwise change the time for
the Obligations, or any part thereof, including,
without limitation, increasing or decreasing any of the fees thereof;
6.2 take and hold security for the payment of the
Obligations guaranteed hereby, and exchange, enforce, waive and release any
such security;
6.3 apply such security and direct the order or
manner of sale thereof as Buyer in its discretion may determine;
6.4 release or substitute any one or more
endorser(s) or guarantor(s); and
6.5 assign, without notice, this Guaranty in
whole or in part and Buyers rights hereunder to anyone at any time.
Guarantor agrees that Buyer may do any or all of the
foregoing in such manner, upon such terms, and at such times as Buyer, in its discretion,
deems advisable, without, in any way or respect, impairing, affecting, reducing
or releasing Guarantor from its undertakings hereunder and Guarantor hereby
consents to each and all of the foregoing acts, events and occurrences.
7. Waiver
of Defenses. Guarantor hereby waives
any right to assert against Buyer as a defense, counterclaim, setoff on cross
claim, any defense (legal or equitable), setoff, counterclaim and claim which
Guarantor may now or at any time hereafter have against Seller and any other
party liable to Buyer in any way or manner.
Guarantor hereby waives all defenses, counterclaims
and offsets of any kind or
nature, arising directly or indirectly from the
present or future lack of perfection,
sufficiency, validity or enforceability of the
Agreements or any security interest
thereunder.
Guarantor hereby waives any defense arising by
reason of any claim or defense
based upon an election of remedies by Buyer, which,
in any manner impairs, affects, reduces, releases, destroys or extinguishes
Guarantors subrogation rights, rights to proceed against Seller for
reimbursement, or any other rights of the Guarantor or against any other person
or security, including, but not limited to, any defense based upon an election
of remedies by Buyer under the provisions of applicable state law, or of the
United States. Guarantor waives all
presentments, demands for performance, notices of nonperformance, protests,
notices of protests, notice of dishonor, notices of default, notice of
acceptance of this Guaranty, and notices of the existence, creating or
incurring of new or additional indebtedness, and all other notices or
formalities to which Guarantor may be entitled.
8. Waiver
of Jury Trial. Guarantor waives any
right to a jury trial in any action hereunder or arising out of Buyers
transactions with Seller.
9. Waiver
of Rights of Subrogation. The Guarantor
shall have no right of subrogation, reimbursement, exoneration, contribution or
any other rights that would result in the Guarantor being deemed a creditor of
Seller under the United States Bankruptcy Code or any other law or for any
other purpose and the Guarantor hereby irrevocably waives all such rights, the
right to assert any such rights and any right to enforce any remedy which
Guarantor may now or hereafter have against Seller and hereby irrevocably
waives any benefit of and any right to participate in, any security now or
hereafter held by Buyer, whether any of the foregoing rights arise in equity,
at law or by contract.
As a condition to payment or performance by
Guarantor under this Guaranty, Buyer shall not be required to, and Guarantor
hereby waives any and all rights to require Buyer to prosecute or seek to
enforce any remedies against Seller or any other party liable to Buyer on
account of the Obligations or to require Buyer to seek to enforce or resort to
any remedies with respect to any security interests, liens or encumbrances
granted to Buyer by Seller or any other party on account of the Obligations.
Any and all present and future debts and obligations
of Seller to Guarantor are hereby postponed in favor of and subordinated to the
full payment and performance of all present and future debts and obligations of
Seller to Buyer. All monies or other
property of Guarantor at any time in Buyers possession may be held by Buyer as
security for any and all obligations of Guarantor to Buyer no matter now
existing or hereafter arising, whether absolute or contingent, whether due or
to become due, and whether under this Guaranty or otherwise. Guarantor also agrees that Buyers books and
records showing the account between Buyer and Seller shall be admissible in any
action or proceeding and shall be binding upon Guarantor for the purpose of
establishing the terms set forth therein and shall constitute prima facie proof
thereof.
10.
Financial Condition of Seller.
Guarantor is presently informed of the financial condition of the Seller
and of all other circumstances which a diligent inquiry would reveal and which
bear upon the risk of nonpayment of the Obligations. Guarantor hereby covenants that it will continue to keep itself
informed of Sellers financial condition and of all other circumstances, which
bear upon the risk of nonpayment.
Absent a written request for such information by the Guarantor to Buyer,
Guarantor hereby waives its right, if any, to require, and Buyer is relieved of
any obligation or duty to disclose to Guarantor any information which Buyer may
now or hereafter acquire concerning such condition or circumstances.
11.
Termination. The Guarantors
obligation under this Guaranty shall continue in full force and effect until
Sellers Obligations are fully paid, performed and discharged and Buyer gives
the Guarantor written notice of that fact.
Sellers Obligations shall not be considered fully paid, performed and
discharged unless and until all payments by Seller to Buyer are no longer
subject to any right on the part of any person whomsoever; including but not
limited to Seller, Seller as a debtor-in-possession, or any trustee or receiver
in bankruptcy, to set aside such payments or seek to recoup the amount of such
payments, or any part thereof. The
foregoing shall include, by way of example and not by way of limitation, all
rights to recover preferences voidable under Title 11 of the United States
Code. In the event that any such
payments by Seller to Buyer are set aside after the making thereof, in whole or
in part, or settled without litigation, to the extent of such settlement, all
of which is within Buyers discretion, Guarantor shall be liable for the full
amount Buyer is required to repay plus costs, interest, attorneys fees and any
and all expenses which Buyer paid or incurred in connection therewith.
No termination of this Guaranty shall be effective
except by notice sent to Buyer by certified mail, return receipt requested
(which shall be evidenced by a properly validated return receipt), naming a
termination date effective not less than ninety (90) days after the receipt of
such notice by Buyer. Such a
termination shall not be effective as to any Guarantor who has not given such
notice and shall not affect the application of this Guaranty to any transaction
or indebtedness effected prior to the effective date of termination.
12.
Successors and Assigns. This
Guaranty shall be binding upon the successors and assigns of the Guarantor and
shall inure to the benefit of Buyers successors and assigns. The death of Guarantor shall not terminate
this Guaranty.
13.
Modifications. This Guaranty cannot
be modified orally. No modification of
this Guaranty shall be effective for any purpose unless it is in writing and
executed by an officer of Buyer authorized to do so. All prior agreements, understandings, representations and
negotiations; if any, are merged into this Guaranty.
14.
Attorneys Fees. Guarantor agrees
to pay all attorneys fees and all other costs and out-of-pocket expenses which
may be incurred by Buyer in the enforcement of this Guaranty or in any way
arising out of, following or consequential to the enforcement of Sellers
Obligations, whether under this Guaranty, the Agreements, or otherwise.
15. Joint
and Several. In all cases where the
word Guarantor is used in this Guaranty, it shall mean and apply equally to
each and all of the individuals and/or entities, which have executed this
Guaranty. All of the obligations of the
Guarantor hereunder shall be joint and several.
16.
Governing Law. All acts and
transactions hereunder and the rights and obligations of the parties hereto
shall be governed, construed and interpreted in accordance with the laws of the
State of __________ (Your State).
17.
Additional Waivers. Guarantor
waives all rights and defenses arising out of an election of remedies by the
Buyer, even though that election of remedies, such as a non judicial
foreclosure with respect to security for a guaranteed obligation, had destroyed
the Guarantors rights of subrogation and reimbursement against the principal by
operation of Section 580d of the Code of Civil Procedure or otherwise.
18. Section
Numbers and Headings. Section numbers
and section titles have been set forth herein for convenience only; they shall
not be construed to limit or extend the meaning of any part of this Guaranty.
The
Seller:
______________________________________
(Name
of Selling Company)
Date
of Factoring Agreement between Buyer and Seller:
______________________________________
(Date)
Date
of this Continuing Guaranty:
______________________________________
(Date)
Agreed:
The Guarantor:
_______________________________ __________________
(Signature) (Date)
_______________________________
(Print Name)
_______________________________
(Guarantor City/State/Zip
Code)
_______________________________
(Guarantor Social Security
Number)
_______________________________ __________________
Witness (Date)