CORPORATE GUARANTIES
These GUARANTIES("Guaranties") are executed effective as of October 11, 1999
by Elective Investments, Inc., a Pennsylvania Corporation("Guarantors") and
Cooperative Images, Inc., a New Jersey Corporation("Guarantors"), and
"xxxxxxxx.xxx", a Nevada Corporation,("Guarantors") in favor of Monterey
Financial Services, Inc., a California Corporation("Monterey").
1. Monterey and Elective Investments, Inc.("Client") have entered into a
Purchase Agreement dated October 11, 1999("Purchase Agreement"). As a material
inducement for Monterey to enter into this agreement and the accuracy of all
of Client's representations and warranties under the Purchase Agreement, as
the same may be amended, modified or supplemented from time to time, as set
forth herein below. Terms not otherwise defined in these Guaranties shall have
the same meaning as set forth in the Purchase Agreement.
2. For and in consideration of the recitations contained herein and for the
consideration set forth in the Purchase Agreement, and to induce Monterey to
enter into the Purchase Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which we hereby acknowledged
Guarantors hereby unconditionally, irrevocably and absolutely guarantees to
and for the benefit of Monterey, or its successors and assigns, the full
performance and/or correctness of, each and every representation, warranty,
covenant and/or obligation made by or on behalf of the Client pursuant to the
Purchase Agreement, as the same may be amended, modified or supplemented form
time to time. Said obligations, representation, warranties covenants, and
required performance are sometimes collectively referred to herein as the
"Obligations." Guarantors hereby acknowledges receipt of a copy of each and
every one of the Obligations, including but not limited to a copy of the
Purchase Agreement.
3. For purposes of these Guaranties, the term "performance" as used herein
shall be defined in its most comprehensive sense and includes any and all
obligations and liabilities of the Client arising out of the Purchase
Agreement, whether die or not due, absolute or contingent, determined or
undetermined and whether the Client maybe liable individually or jointly with
others, or whether such performance may be or hereafter become otherwise
unenforceable.
4. These Guaranties are, and are intended to be, a guaranty of the
Obligations, in addition to any other guaranty, endorsement or collateral held
by Monterey therefore, whether or not furnished by Guarantors. Guarantors
shall have no right or subrogation with respect to any payments made by
Guarantors hereunder until all of the Obligations are performed in full.
5. The Guarantors authorizes Monterey, without notice or demand and without
affecting Guarantors's obligations hereunder, from time to time: (i) to
review, extend, increase, accelerate or otherwise change the time for
performance of the Obligations or any part thereof; (ii) to take from any
party and hold collateral for the performance of the Obligations or any part
thereof, and to exchange, enforce or release such collateral or any part
thereof; (iii) to accept and hold any endorsement or guaranty of performance
of the Obligations or any part thereof and to release or substitute any such
endorser or guarantor, or any party who has given any security interest in any
collateral as security for the performance of the Obligations, or any part
thereof, or any other party in any way obligated to perform the Obligations or
any part thereof; and (iv) to direct the order or manner of the disposition of
any and all collateral and the enforcement of any and all endorsements and
guaranties relating to the Obligations or any part thereof as Monterey, in its
sole discretion, may determine.
6. If Guarantors consist of more than one person or entity, then:
(i) Monterey shall have the right to discharge or release one or more
Guarantors from any Obligation hereunder, in whole or in part, without in any
way releasing, impairing or affecting its right against the others of the
Guarantors;
(ii) The obligations and liabilities of the Guarantors hereunder shall be
joint and several;
(iii) A separate action or actions may be brought and prosecuted against any
or all Guarantors whether or not any action or actions are brought against the
Client or whether or not the Client is joined in any such action or actions;
and
(iv) Reference to the Guarantors and/or the undersigned herein shall refer to
any one or more, or all, of the Guarantors, as the context so requires or as
Monterey may elect.
7. No delay or omission by Monterey in exercising any right or remedy
hereunder shall operate as a waiver thereof or of any other right or remedy,
and no single or partial exercise thereof shall preclude any other or further
exercise thereof or the exercise of any other right or remedy. All rights and
remedies of Monterey hereunder are cumulative.
8. Guarantors represents that the Obligations and the Purchase Agreement as
originally delivered, and as the same may be amended, extended, modified or
renewed, have been or will by duly executed by the Client and are the valid
obligations of the Client in accordance with their terms. No invalidity,
illegality or unenforceability of the Obligations shall release, diminish or
extinguish the liability of Guarantors hereunder.
9. Guarantors represents that Monterey's books and records containing the
Purchase Agreement and accounts between Monterey and the Client shall be
admissible in any action or proceedings against the Guarantors and shall be
binding upon Guarantors for the purpose of establishing the items therein set
forth therein and shall constitute prima facia proof thereof.
10. These Guaranties shall remain in full force and effect as to Guarantors
until terminated by written agreement of Monterey. Any such termination shall
be applicable only to transactions having their inception after the effective
date of such termination and shall not affect Guarantors's guaranty of
Obligations arising out of transactions having their inception prior to such
date. Any payment or performance by Guarantors shall not reduce any future
obligation or liability hereunder.
11. Guarantors hereby waives any defense to the obligations and liabilities of
the Guarantors hereunder and any and all rights with respect thereto that the
Guarantors may otherwise have under the provisions of the applicable statutes
or other governing law as a result of Monterey's election of any remedy which
impairs or alters the rights of the Guarantors against the Client or any
collateral held by Monterey.
12. The Guarantors waives any and all rights to exoneration from any and all
of their liabilities hereunder pursuant to the provisions of the California
Civil Code and/or under any other applicable law. Without limiting the
generality of the foregoing, the Guarantors hereby expressly waives the
benefit of any provisions contained in Sections 2809, 2810, 2819, 2845, 2849
and 2850 of the California Civil Code.
13. Guarantors waives any and all right to require Monterey to: (a) proceed
against any or all of the Client; (b) proceed against or exhaust any security
held from any or all of the Client; (c) pursue any other remedy that Monterey
may have whatsoever. Until the Obligations shall have been performed in full,
Guarantors shall have no right of Client, and waives any benefit of and any
right to participate in any security now or hereinafter held by Monterey.
Guarantors waives all presentments, demands for performance, notices of
non-performance, protests, notices of protest, notices of dishonor, notices of
acceptance of the Guaranties, notices of default given to the Client, notices
of the existence or creation of new or additional obligations, notices of any
or all favorable and unfavorable information, financial or other, about the
Client, heretofore, now, or hereafter learned or acquired by Monterey and all
other notices to which Guarantors might otherwise be entitled and the right to
a jury trial in any action hereunder or arising out of Monterey transactions
with Client.
14. Guarantors's obligations and liabilities hereunder shall be separate and
distinct from those of the Client. If the Client defaults under any of the
Obligations, Monterey, at its option, may proceed directly against Guarantors,
without having commenced any action or obtained any judgement or any other
guarantor, and without applying any property of the Client (or any other
person) held as security for the performance of the Client's obligations under
any of the Obligations. The liability of Guarantors hereunder shall not be
released, diminished, or extinguished by Monterey's failure or delay in
enforcing any of its rights.
15. In addition to all liens upon and rights of set off against the monies,
securities or other property of Guarantors given to Monterey by law, Monterey
shall have a lien upon and a right of set off against all monies, securities
and other property of Guarantors now or hereafter in the possession of or on
deposit with Monterey, whether held in a general or special account or
deposit, or for safekeeping or otherwise; in every such lien and right of set
off may be exercised without demand upon or notice to Guarantors. No lien or
set off shall be deemed to have been waived by any act or conduct on the part
of Monterey, or by any delay in so doing; and every right of set off or lien
is specifically waived.
16. Any indebtedness of the Client now or hereafter held by Guarantors is
hereby subordinated to the indebtedness of the Client to Monterey. Guarantors
agrees that Monterey is entitled to rely on the powers of the Client or their
officers, directors, partners, or agents acting or purporting to act on their
behalf to assume and accept the Obligations and Monterey shall have no duty of
inquiry into such powers.
17. These Guaranties are absolute and unconditional and shall not be affected
by any act or thing whatsoever, except as expressly provided herein. The
obligations of Guarantors under these Guaranties shall not be altered, limited
or affected by any proceeding, voluntary or involuntary, involving the
bankruptcy, insolvency, receivership, reorganization, liquidation or
arrangement of Client or by any defense which Client may have by reason of the
order, decree or decision of any Guaranty shall be effective unless in writing
signed by Monterey. Guarantors further agrees to pay all costs and expenses,
including, without limitation, attorney's fees, at any time paid or incurred
by Monterey in endeavoring to enforce the Obligations of the Client or these
Guaranties.
18. These Guaranties and the transactions evidenced hereby shall be construed
and interpreted under the laws of California, as applied to contracts between
California residents entered into and to be performed wholly within
California. Nothing herein shall be construed to constitute the Guarantors as
a maker, co-maker or principal debtor. Any married person who is a Guarantors
hereunder hereby expressly agrees that recourse may be had against his or her
separate property. The death of any Guarantors shall not terminate these
Guaranties as to such deceased Guarantors. These Guaranties shall be binding
upon the heirs, executors, administrators, successors and assigns of the
Guarantors and shall inure to the benefit of Monterey's successors and
assigns.
19. If any provision of these Guaranties or portion of such provision, or the
application thereof to any person or circumstance, shall, to any extent, be
held invalid or unenforceable, the remainder of these Guaranties or the
remainder of such provision and the application thereof to other persons or
circumstances, other than those as to which it is held invalid or the fullest
extent permitted by the law. Unless the context otherwise requires, the
masculine, feminine and neuter genders and the singular and the plural shall
each be deemed to include one another, as appropriate.
20. Monterey may, without notice, assign these Guaranties in whole or in part.
Guarantors hereby consents to the personal jurisdiction of any local, state or
federal court located within the County of San Diego, State of California and
acknowledges and agrees that any proceedings arising from, out of, or in any
way related to these Guaranties brought by Guarantors shall be brought in San
Diego County, California: provided however, nothing contained herein shall
preclude Monterey from commencing any action hereunder in any other court
having jurisdiction thereof.
These Guaranties are specifically intended to The Receivables Purchase
Agreement dated October 18, 1999 and Article 5(a) of said agreement. These
Guaranties do not apply to Article 5(b) of the Receivables Purchase Agreement
dated October 18, 1999
IN WITNESS WHEREOF, these Guaranties have been executed by the undersigned at
____________ as of the date first above written.
GUARANTORS
/s/ Xxxxxx X. Xxxxxx
ELECTIVE INVESTMENTS, INC. Xxxxxx X. Xxxxxx, President
COOPERATIVE IMAGES, INC. Xxxxxx X. Xxxxxx, President
"xxxxxxxx.xxx", Xxxxxx X. Xxxxxx, President
STATE OF PENNSYLVANIA
COUNTY OF MONROE
On October 14, 1999 before me, the undersigned, a Notary Public in and for
said state, personally appeared Xxxxxx X. Xxxxxx, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s)whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the dame in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and offical seal.
Notary Seal
/s/Xxxxxxxxx Xxxxx
Notary Public
Allentown, Lehigh County
My Commission Expires Oct. 2, 2000
