CONTINUING GUARANTEE
WHEREAS, Franklin Capital Corporation (herein, the "Factor"), an Illinois
corporation with principal offices located at 00 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxx 00000, has entered into that certain Factoring Agreement dated
July 16th, 1999 and Rider of even date therewith (the "Factoring Agreement")
with International Broadcast Corporation d/b/a IBC (herein, the "Seller"), a
Florida corporation with an office located at 0000 XX 000xx Xxxxxx; Xxxxx Xxxxx
Xxxxx, Xxxxxxx 00000 and
WHEREAS, pursuant to the terms of the Factoring Agreement, Seller has asked
the Factor to purchase accounts receivable owing by Home Shopping Network, Inc.
(the "Account Debtor") to the seller (collectively, the "Accounts Receivable")
arising from the sale of fifteen thousand (15,000) massage belt units (the
"Massage Belts") to be sold by Seller to the Account Debtor under Purchase
Orders No. 686942/3 (the "Purchase Orders"); and
WHEREAS, prior to the sale of the Massage Belts to HNS, Seller has made a
number of other contractual commitments to Factor, all as more fully set for the
in the aforesaid Rider attached to and made a part of the Factoring Agreement;
and
WHEREAS, Factor has refused to enter into the Factoring Agreement, carry
out the terms of the Rider Attached to the Factoring Agreement or purchase the
Accounts Receivable unless the undersigned (each singularly, a "Guarantor", and
collectively, the "Guarantors") unconditionally guarantee to the Factor the
prompt payment and performance of all indebtedness, obligations and liabilities
now or hereafter owed by the Seller under the Factoring Agreement;
NOW, THEREFORE, in consideration of the foregoing premises, and for other
good and valuable consideration, the receipt of which is hereby acknowledged,
the Guarantor/s hereby unconditionally guarantee the full and prompt payment of
the Factor when due (whether at maturity, by acceleration or otherwise, and at
all times thereafter) of all indebtedness, obligations and liabilities of every
kind and nature of the Seller to the Factor arising under the Factoring
Agreement or any other document or instrument executed by Seller in connection
with the Factoring Agreement or the Massage Belts (collectively, the "Other
Documents"), howsoever evidenced, whether now existing or hereafter created or
arising, directly or indirectly, primary or secondary, absolute or contingent,
due or to become due, or joint or several, and howsoever owned, held or
acquired, and the prompt, full and faithful agreements, representations and
warranties on the part of the Seller contained in the Factoring Agreement and
the Other Documents, and in any modification of addenda thereto or substitution
thereof; and the Guarantors further agree to pay all costs and expenses
(including court costs and attorney's fees), paid or incurred by the Factor in
endeavoring to collect such indebtedness, obligation and liabilities, or any
part thereof, and to enforce this Guaranty or in defending any suit based on any
actor of commission or omission of the Factor with respect to any of the
aforesaid indebtedness, obligations, or liabilities, or any collateral
therefore, or this Guaranty.
The term "Guaranteed Debt", as used herein, shall collectively be deemed to
mean and include all said indebtedness, obligations and liabilities of the
Seller to the Factor described in the preceding paragraph, including interest,
and all said expenses described in the preceding paragraph.
Guarantor/s agree that this Guaranty is an absolute guaranty of payment and
performance and is not a guaranty of collection.
In case of the death, incompetency, dissolution, liquidation or insolvency
(howsoever evidenced) of the Seller or any of the Guarantor/s, or in case any
bankruptcy, reorganization, debt arrangement or other proceeding under any
bankruptcy or insolvency law, or any dissolution, liquidation or receivership
proceeding, is instituted by or against the Seller or any of the Guarantor/s,
all Guaranteed Debt then existing shall at the option of the Factor, without
notice to anyone, immediately become due or accrued and be payable from the
Guarantor/s.
All payments received from the Seller or on account of the Guaranteed Debt,
from whatever source derived, shall be taken and applied by the Factor toward
payment of such of the Guaranteed Debt and in such order of application as the
Factor may in its sole discretion form time to time elect, and this Guaranty
shall apply to and secure any ultimate balance that shall remain owing to the
Factor.
This Guaranty shall in all respects be continuing, absolute and
unconditional and shall remain in full force and effect with respect to each
Guarantor until all Guaranteed Debt shall have been fully paid and discharged.
This Guaranty is irrevocable and may not be terminated by any Guarantor. No
compromise, settlement, release or discharge of, or indulgence with respect to,
or failure, neglect or omission to enforce any right against, the Guarantor/s
shall release or discharge the Guarantors.
The Guarantors' liability hereunder shall in no way be affected or impaired
by any of the following (any or all of which may be done or omitted by the
Factor in its sole discretion, without notice to anyone and irrespective of
whether the Guaranteed Debt shall be increased or decreased thereby), namely:
(a) any acceptance by the Factor of any security or collateral for, or other
guarantors or obligors upon, any Guaranteed Debt; (b) the Factor's election, in
any proceeding instituted under Chapter 11 of Title 11 of the United States Code
(11 U.S.C., 101 et seq.) (the "Bankruptcy Code") of the application of Section
1111(b)(2) of the Bankruptcy Code; (c) any compr4omise, settlement, surre3nder,
release, discharge, renewal, extension, alteration, exchange, sale, pledge or
other disposition of, or substitution for, or indulgence with respect to, or
failure, neglect or omission to realize upon, or to enforce or exercise any
liens or rights of appropriation or other rights with respect to, any Guaranteed
Debt or any security or collateral therfor or any claims against any person or
persons primarily or secondarily liable thereon; or (d) any act of commission or
omission of any kind or at any time upon the part of the Factor with respect to
any matter whatsoever, other than the execution and delivery by the Factor to
the Guarantor/s of an express written release or cancellation of this Guaranty.
The Guarantor/s hereby consent to all acts of commission or omission of the
Factor hereinabove set forth.
In order to proceed to enforce this Guaranty and hold the Guarantor/s
liable hereunder, there shall be no obligation on the part of the Factor, at any
time, to resort for payment to the Seller or any other guarantor, or to any
other person or entity, or to any collateral, security, property, liens or other
rights or remedies whatsoever, all of which are hereby expressly waived by the
Guarantor/s.
Diligence in collection or protection, presentment, demand or protest or in
giving notice to anyone or protest, dishonor, default, or nonpayment or of the
creation or existence of any Guaranteed Debt or of any security or collateral
therefore or of the acceptance of this Guaranty or of extension of credit or
indulgences hereunder or of any other matter or things whatsoever relating
hereto are expressly waived by the Guarantor/s. The Guarantor/s further waive
the filing of claims with a court in the event of receivership or bankruptcy of
the Seller, the benefits of all statutes of limitations, and all other demands
whatsoever, and covenant that this Guaranty will not be discharged, except by
complete performance of the Guaranteed Debt and any other obligations contained
herein.
The Guarantor/s waive any claim or other right which the Guarantor/s may
now have or hereafter may acquire against the Seller or any other person who is
primarily or contingently liable on the Guaranteed Debt that arise form the
existence or performance of the Guarantor/s' obligations under this Guaranty,
including, without limitation, any right of subrogation (whether contractual,
under Section 509 of the Bankruptcy Code, under common law, or otherwise), and
all contractual, statutory or common law rights of reimbursement, exoneration,
contribution, indemnification and similar rights and "claims" (as such term is
defined in the Bankruptcy Code), and any right to participate in any claim or
remedy of the Factor against the Seller or any collateral therefore, which the
Factor now has or hereafter acquires; whether or not such claim, remedy or right
arises in equity, or under, statute or common law.
The Guarantor/s waive every defense, counterclaim or setoff which the
Guarantor/s may now have, or hereafter may have, against the Seller, or any
other party liable to the Factor in any manner, and further agree that this
Guaranty shall remain fully enforceable against the Guarantor/s, irrespective of
any defenses which the Seller may assert on the Guaranteed Debt, including, but
not limited to, failure of consideration, breach of warranty, fraud, payment,
waiver, statute of frauds, discharge in bankruptcy, infancy, statute of
limitations, lender liability, lack of legal capacity, res judicata,
antideficiency statute, lender liability, illegality, unenforceability, accord
and satisfaction, and usury. The Guarantor/s ratify and confirm whatever Factor
may do pursuant to the terms hereof and with respect to any collateral for the
judgment or mistakes of fact or law. The Guarantor/s consent and agree that the
Factor shall be under no obligation to marshal any assets in favor of the
Guarantor/s (or any of them if there shall be more than one) or against or in
payment of any or all of the Guaranteed Debt.
The Guarantor/s agree that, to the extent that the Seller make a payment or
payments to the Factor or the Factor receives any proceeds of collateral, which
payment or payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to Seller, its estate, trustee, receiver, or any other
party, including, without limitation, any Guarantor, under any bankruptcy law,
state or federal law, common law, judgment, decree, or order of any court or
administrative body having jurisdiction over the Factor or any of its property,
or equitable cause, or any settlement or compromise of any such repayment claim
effected by the Factor with the claimant (including the Seller), then to the
extent of such payment or repayment, the Guaranteed Debt 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 time immediately preceding such
initial payment, reduction or satisfaction, and the Guarantor/s shall remain
jointly and severally liable to the Factor for the amount so repaid to the same
extend as if such amount had never originally been received by the Factor,
notwithstanding any termination hereof or the cancellation of any note or other
instrument evidencing any of the indebtedness.
No release or discharge of the Guarantor/s (or any of them), or of any
other person, whether primarily or secondarily liable for and obligated with
respect to the Guaranteed Debt, or the institution of bankruptcy, receivership,
insolvency, reorganization, dissolution or liquidation proceedings by or against
any such guarantor or person, or the entry of any restraining or other order in
any such proceedings, shall release or discharge the Guarantor/s or any other
guarantor of the Guaranteed Debt, or any other person, firm or corporation
liable to the Factor for the Guaranteed Debt, unless and until all toe the
Guaranteed Debt shall have been fully paid.
To the extent that the Seller or any of the Guarantor/s is either a
partnership or a corporation, all references herein to the Seller and to such
Guarantor, respectively, shall be deemed to include any successor or successors,
whether immediate or remote, to such partnership or corporation.
Whenever possible, each provision of this Guaranty shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Guaranty shall be prohibited by or invalid under such law,
such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
It is agreed that the Guarantor/s' liability hereunder is independent of
any other guaranties at any time in effect with respect to all or any part of
the Guaranteed Debt, and that the Guarantor/s' liability hereunder may be
enforced regardless of the existence of any such other guaranties. It is further
agreed that the Guarantor/s have unconditionally delivered this Guaranty to
Factor, and failure to sign this Guaranty or any other guaranty by any other
person shall not discharge the liability of the Guarantor/s. It is further
agreed that the liability of each Guarantor of the Guaranteed Debt, for
repayment of the Guaranteed Debt, for repayment of the Guaranteed Debt (whether
such guarantor sign
this Guaranty, or other guaranty of the Guaranteed Debt) shall in all respects
be joint and several.
The provisions hereof shall be binding upon the Guarantor/s and upon the
respective heirs, legatees, legal representatives, successors and assigns of the
Guarantor/s, and shall inure to the benefit of Factor's successors and assigns.
The Guarantor/s assume all responsibility for being and keeping themselves
informed of Seller's present and future financial condition and assets, and of
all other circumstances bearing upon the risk of nonpayment of the Guaranteed
Debt and the nature, scope and extent of the risks which the Guarantor/s assume
and incur hereunder, and the Guarantor/s agree that the Factor shall have no
duty to advise the Guarantor/s of information now or hereafter known to it
regarding such circumstances or risks.
This writing is intended by the parties as a final expression of this
Guaranty, and is intended as a complete and exclusive statement of the terms of
this Guaranty. This Guaranty shall not be or be deemed to be amended, modified,
or limited orally, or by any course of conduct or dealing or in any manner other
than by an instrument in writing signed by the party against which such
amendment, modification or limitation is sought to be charged. There are no
conditions to the full effectiveness of this Guaranty.
This Guaranty has been delivered at Chicago, Illinois and shall be
construed according to the laws of the State of Illinois, in which State shall
be performed by the Guarantor/s. The Guarantor/s agree that, subject to the
Factor's sole and absolute election, all legal actions or proceedings in any
manner or respect arising out of or related to this and the Guaranty shall be
brought and litigated only in courts having situs in Xxxx County, Illinois; and
the Guarantor/s hereby consent to and submit to the jurisdiction of any local,
state or federal court located within Xxxx County, and hereby waive any right
the Guarantor/s may have to transfer or change the venue of any such legal
action or proceeding.
The Guarantor/s waive irrevocably the right to a trial by jury in any
action or proceeding to enforce or defend any rights (a) under this Guaranty or
under any amendment, instrument, document or agreement delivered or which may in
the future be delivered in connection herewith, or (b) arising from any lending
relationship existing in connection with this Guaranty, and agree that any such
action or proceeding shall be tried before a court and not before a jury.
SIGNED AND DELIVERED by the Guarantor/s at Chicago, Illinois, this ____ day of
July, 1999.
