INDIVIDUAL GUARANTY
Date: August 12, 1998
General Electric Capital Corporation
00 Xxx Xxxxxxxxx Xxxx
Xxxxxxx, XX 00000
To induce you to enter into, purchase or otherwise acquire, now or
at any time hereafter, any promissory notes, security agreements, chattel
mortgages, pledge agreements, conditional sale contracts, lease agreements,
and/or may other documents or instruments evidencing, or relating to, any
lease, loan, extension of credit or other financial accommodation
(collectively "Account Documents" and each an "Account Document") to Birthday
Express, Inc., a corporation organized and existing under the laws of the
State of Washington ("Customer"), but without in any way binding you to do
so, the undersigned, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, does hereby guarantee to you,
your successors and assigns, the due regular and punctual payment of any sum
or sums of money which the Customer may owe to you now or at any time
hereafter, whether evidenced by an Account Document, on open account or
otherwise, and whether it represents principal, interest, rent, late charges,
indemnities, an original balance, an accelerated balance, liquidated damages,
a balance reduced by partial payment, a deficiency after sale or other
disposition of any leased equipment, collateral or security, or any other
type of sum of any kind whatsoever that the Customer may owe to you now or at
any time hereafter, and does hereby further guarantee to you, your successors
and assigns, the due, regular and punctual performance of any other duty or
obligation of any kind or character whatsoever that the Customer may owe to
you now or at any time hereafter (all such payment and performance
obligations being collectively referred to as "Obligations"). Undersigned
does hereby further guarantee to pay upon demand all losses, costs,
attorneys' fees and expenses which may be suffered by you by reason of
Customer's default or default of the undersigned.
This Guaranty is a guaranty of prompt payment and performance (and
not merely n guaranty of collection). Nothing herein shall require you to
first seek or exhaust any remedy against the Customer, its successors and
assigns, or any other person obligated with respect to the Obligations, or to
first foreclose, exhaust or otherwise proceed against any leased equipment,
collateral or security which may be given in connection with the Obligations.
It is agreed that you may, upon any breach or default of the Customer, or at
any time thereafter, make demand upon the undersigned and receive payment and
performance of the Obligations, with or without notice or demand for payment
or performance by the Customer, its successors or assigns, or any other
person. Suit may be brought and maintained against the undersigned, at your
election, without joinder of the Customer or any other person as parties
thereto. The obligations of each signatory to this Guaranty shall be joint
and several.
The undersigned agrees that its obligations under this Guaranty
shall be primary, absolute, continuing and unconditional, irrespective of and
unaffected by any of the following actions or circumstances (regardless of
any notice to or consent of the undersigned): (a) the genuineness, validity,
regularity and enforceability of the Account Documents or any other document:
(b) any extension, renewal, amendment, change, waiver or other modification
of the Account Documents or any other document; (c) the absence of, or delay
in, any action to enforce the Account Documents, this Guaranty or any other
document; (d) your failure or delay in obtaining any other guaranty of the
Obligations (including, without limitation, your failure to obtain the
signature of any other guarantor hereunder); (e) the release of, extension of
time for payment or performance by, or any other indulgence granted to the
Customer or any other person with respect to the Obligations by operation of
law or otherwise; (f) the existence, value, condition, loss, subordination or
release (with or without substitution) of, or failure to have title to or
perfect and maintain a security interest in, or the time, place and manner of
any sale or other disposition of any leased equipment, collateral or security
given in connection with the Obligations, or any other impairment (whether
intentional or negligent, by operation of law or otherwise) of the rights of
the undersigned: (g) the Customer's voluntary or involuntary bankruptcy,
assignment for the benefit of creditors, reorganization, or similar
proceedings affecting the Customer or any of its assets; or (h) any other
action or circumstances which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor.
This Guaranty may be terminated upon delivery to you (at your
address shown above) of a written termination notice from the undersigned.
However, as to all Obligations (whether matured, unmatured, absolute,
contingent or otherwise) incurred by the Customer prior to your receipt of
such written termination notice (and regardless of any subsequent amendment,
extension or other modification which may be made with respect to such
Obligations), this Guaranty shall nevertheless continue and remain
undischarged until all such Obligations are indefeasibly paid and performed
in full.
The undersigned agrees that this Guaranty shall remain in full force
and effect or be reinstated (as the case may be) if at any time payment or
performance of any of the Obligations (or any part thereof) is rescinded,
reduced or must otherwise be restored or returned by you, all as though such
payment or performance had not been made. If, by reason of any bankruptcy,
insolvency or similar laws affecting the rights of creditors, you shall be
prohibited from exercising any of your rights or remedies against the
Customer or any other person or against any property, then, as between you
and the undersigned, such prohibition shall be of no force and effect, and
you shall have the right to make demand upon, and receive payment from, the
undersigned of all amounts and other sums that would be due to you upon a
default with respect to the Obligations.
Notice of acceptance of this Guaranty and of any default by the
Customer or any other person is hereby waived. Presentment, protest demand,
and notice of protest, demand and dishonor of any of the Obligations, and the
exercise of possessory, collection or other remedies for the Obligations, are
hereby waived. The undersigned warrants that it has adequate
means to obtain from the Customer on a continuing basis financial data and
other information regarding the Customer and is not relying upon you to
provide any such data or other information. Without limiting the foregoing,
notice of adverse change in the Customer's financial condition or of any
other fact which might materially increase the risk of the undersigned is
also waived. All
settlement, compromises, accounts stated and agreed balances made in good
faith between the Customer, its successors or assigns and you shall be
binding upon and shall not affect the liability of the undersigned.
Payment of all amounts now or hereafter owed to the undersigned by
the Customer or any other obligor for any of the Obligations is hereby
subordinated in right of payment to the indefeasible payment in full to you
of all Obligations and is hereby assigned to you as a security therefor. The
undersigned hereby irrevocably and unconditionally waives and relinquishes
all statutory, contractual, common law, equitable and all other claims
against the Customer, any other obligor for any of the Obligations, any
collateral therefor, or any other assets of the Customer or any such other
obligor, for subrogation, reimbursement, exoneration, contribution,
indemnification, setoff or other recourse in respect of sums paid or payable
to you by the undersigned hereunder, and the undersigned hereby further
irrevocably and unconditionally waives and relinquishes any and all other
benefits which it might otherwise directly or indirectly receive or be
entitled to receive by reason of any amounts paid by, or collected or due
from, it, the Customer or any other obligor for any of the Obligations, or
realized from any of their respective assets.
THE UNDERSIGNED HEREBY UNCONDITIONALLY WAIVES ITS RIGHT TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY
OR INDIRECTLY, THIS GUARANTY, THE OBLIGATIONS GUARANTEED HEREBY, ANY OF THE
RELATED DOCUMENTS, ANY DEALINGS BETWEEN US RELATING TO THE SUBJECT MATTER
HEREOF OR THEREOF, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED BETWEEN
US. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL ENCOMPASSING OF ANY AND
ALL DISPUTES THAT MAY BE FILED IN ANY COURT (INCLUDING, WITHOUT LIMITATION,
CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW
AND STATUTORY CLAIMS). THIS WAIVER IS IRREVOCABLE MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING, AND SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY, THE
OBLIGATIONS GUARANTEED HEREBY, OR ANY RELATED DOCUMENTS. IN THE EVENT OF
LITIGATION, THIS GUARANTY MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
As used in this Guaranty, the word "person" shall include any
individual, corporation, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, or any government or any
political subdivision thereof.
This Guaranty is intended by the parties as a final expression of
the guaranty of the undersigned and is also intended as a complete and
exclusive statement of the terms thereof. No course of dealing, course of
performance or trade usage, nor any paid evidence of any kind, shall be used
to supplement or modify any of the terms hereof. Nor are there any conditions
to the full effectiveness of this Guaranty. This Guaranty and each of its
provisions may only be waived, modified, varied, released, terminated or
surrendered, in whole or in part, by a duly authorized written instrument
signed by you. No failure by you to exercise your rights hereunder shall give
rise to any estoppel against you, or excuse the undersigned from performing
hereunder. Your waiver of any right to demand performance hereunder shall not
be a waiver of any subsequent or other right to demand performance hereunder.
This Guaranty shall not be discharged or affected by the death of
any of the undersigned, but shall bind their respective heirs, executors,
administrators, and assigns, and the benefits thereof shall extend to and
include your successors and assigns. In the event of default hereunder, you
may at any time inspect undersigned's records, or at your option, undersigned
shall furnish you with a current independent audit report.
If any provisions of this Guaranty are in conflict with any
applicable statute, rule or law, then such provisions shall be deemed null
and void to the extent that they may conflict therewith, but without
invalidating any other provisions hereof.
THIS GUARANTY IS BEING EXECUTED BY THE UNDERSIGNED INDIVIDUALS IN
THEIR OWN CAPACITY AND NOT AS A DIRECTOR, OFFICER, EMPLOYEE, OR
REPRESENTATIVE FOR ANY CORPORATION OR OTHER ORGANIZATION.
WITNESS our hands on the day and year above written.
Signed in the presence of:
------------------- -----------------
Print Name:
Address:
Telephone No. :
Social Security No.
(Sign and print your name only. DO NOT
add any title or corporate office).
