EXHIBIT 7.16
UNCONDITIONAL GUARANTY AGREEMENT
In consideration of the loan evidenced by the Term Promissory Note made by
Xxxxxx Financial Corporation ("Maker") in favor of Imagine Investments, Inc.
("Payee") dated February 28, 2000, in the original principal sum of $375,548.93
(the "Note"), the undersigned unconditionally guarantees the prompt payment of
(i) the entire principal balance of the Note, (ii) all accrued interest upon the
principal balance hereof, (iii) late fees and (iv) all attorneys' fees and costs
and expenses of collection incurred by Payee, together with the costs and
expenses of maintaining and securing collateral pursuant to all documents and
instruments securing repayment of this Note, when due, whether by acceleration
or otherwise regardless of the genuineness, validity or enforceability of this
Note. The undersigned consents and agrees to be bound by all of the terms of
this Note (as the same may be extended or renewed). The undersigned waives all
rights and subrogation with respect to this Note or any collateral securing its
payment and all rights of recourse or indemnity until this Note and all other
obligations of Maker to Payee shall have been fully paid. If any payment made by
Maker to Payee later deemed to be a preference or otherwise required to be
repaid or returned, the amount of such return or repayment shall or otherwise
required to be repaid or returned, the amount of such return or repayment shall
continue to be covered by this Guaranty. THE UNDERSIGNED HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THE UNDERSIGNED MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER
OR IN CONNECTION WITH THE LOAN EVIDENCED BY THIS NOTE OR ANY RELATED LOAN OR
LENDING TRANSACTION OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONJUNCTION
THEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
VERBAL OR WRITTEN), OR ACTIONS OF ANY PARTY. THIS PROVISION IS A MATERIAL
INDUCEMENT FOR PAYEE MAKING THE LOAN EVIDENCED BY THIS NOTE. THE UNDERSIGNED
AGREES THAT THIS GUARANTY SHALL BE AND IS DEEMED TO BE INCORPORATED INTO AND
MADE A PART OF THIS NOTE AS THOUGH A PART THEREOF.
The liability of the undersigned shall in no way be affected by any
renewal or extension of time of payment of the Note and any other instrument,
indebtedness or liability, or by any release or surrender of other security or
collateral or guaranty for the Note, or by delay in enforcement of payment of
the principal or interest or of any security in connection therewith, or by any
other indulgence Payee may grant Maker.
The undersigned hereby declares to and convenants with Payee, its
successors or assigns, that the undersigned has no defense whatever to any
action, suit or other proceedings, at law or otherwise, that may be instituted
under or on account of this Guaranty, including all questions as to the
validity, regularity or enforceability of the obligation of Maker.
Notwithstanding the death of the undersigned, this instrument shall be
binding on the estate of the decedent as to any obligation incurred either
before or after or extended after such death.
Payee shall not be bound to exhaust its recourse against or upon the
security or collateral it may hold or against any other person before being
entitled to payment from the undersigned or of the amount hereby guaranteed. The
Guaranty Agreement constitutes a guaranty of payment and not of collection.
Payee is hereby authorized and empowered, at its option, at any time after
the liability created by the foregoing guaranty becomes payable, to sell assign
and deliver any securities or property at any time given unto or left in the
possession or custody of Payee for any purpose (including safekeeping or pledge)
for this or any other liability of the undersigned or in which any of the
undersigned may have an interest, at public or private sale, for cash upon
credit or for future delivery, all at the option of Payee or any of its
officers, without demand, advertisement, or notice, all of which are hereby
expressly waived.
Upon any sale or sales at public or private sale, above provided for,
Payee, its successors or assigns, may bid for and/or any part of such securities
or property free from any right of redemption, which is hereby waived and
released.
In case of any sale by Payee of any of said securities and property on
credit or for future delivery, the securities and property sold may be retained
by Payee until the selling price is paid by the purchaser and Payee shall incur
no liability is case of failure of the purchaser to take up and pay for the
securities or property so sold. In case of any such failure the securities or
property may be again sold.
illegible /s/ J. Xxxxxx Xxxxxx
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Witness J. Xxxxxx Xxxxxx
("Guarantor")
/s/ Xxxxxxxxx X. Xxxx
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Witness
