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Master Purchase and Sale Agreement
1. PURCHASE OF ACCOUNTS
1.1 Sun Capital, Inc. ("SCI"), with its principal place of business at
000 Xxxxx Xxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000, here purchases from
Nova Pharmaceutical, Inc., (Taxpayer Id. No. 00-0000000) with its
principal place of business at 00000 Xxxxxx Xxxxx, Xxxx Xxxxxxxx, XX
00000 ("Seller") and seller hereby sells, transfers, and assigns to SCI
as Seller's sole Factor and as absolute owner, all of Seller's right,
title and interest in and to (i) those specific accounts receivable
(the "Accounts Purchased") owing to Seller and accepted SCI as set on
the assignment forms provided by SCI ("the "Assignment Schedule")
together with all rights of action accrued or to accrue thereon,
including without limitation, full power to collect, xxx for,
compromise, assign, in whole or in part, or in any other manner enforce
collection thereof in SCI's name or otherwise, (ii) all books and
records evidencing or relating to the Accounts, and all Seller's rights
with respect to the goods represented by such Accounts, including good
returned by any customer or obligor in any way obligated on or in
connection with the Accounts (the "Account Debtor"), (iii) all rights
of stoppage in transit, replevin, repossession and reclamation and all
other rights of action of any unpaid vendor or lien or, (iv) all
deposits or other security for the obligation of any person under or
relating to the Accounts, (v) all of Seller's rights under any
insurance policy covering any merchandise sold pursuant to the Accounts
and (vi) all payments or other proceeds of the foregoing in any form.
The form of assignment shall be in a form satisfactory to SCI and shall
be delivered to SCI with identical duplicates of Seller's customers'
invoices (the originals having been mailed by Seller to Seller's
customers at Seller's expense (or at SCI's election, originals shall be
delivered to SCI for forwarding to Seller's customers and shall,
likewise, deliver to SCI all original shipping or delivery receipts
(i.e. Bills of Lading, UPS, etc.) for all merchandise sold, together
with such other documents and proof of delivery of merchandise or the
rendition of services as SCI may require.
1.2 From time to time hereafter, Seller may deliver to SCI
and SCI may purchase, in its sole and absolute discretion, additional
accounts which shall be reflected in an Assignment Schedule reflecting
the Accounts offered for sale. The aggregate net face value of each
Assignment Schedule shall not be less than $5,000. Any Assignment
Scheduled, or portion thereof, purchased shall be deemed Accounts
Purchased hereunder and shall be governed by and subject to the terms
and conditions of the Agreement, including, without limitation, the
representations warranties and covenants herein contained. The phrase
aggregate net face value shall mean the gross amount of all accounts
scheduled less allowances, discounts to customers calculated upon
shortest or longest selling terms, as SCI may elect or any other
reduction to the gross invoice amount (s).
1.3 Upon SCI's receipt and acceptance of each Assignment
Schedule, or any portion thereof, SCI shall pay to Seller up to Up to
eighty percent (Up to 80%) of the aggregate net face value of the
Accounts therein described (the "Initial Down Payment"), subject to
SCI's right to maintain a reserve. The term reserve shall mean an
amount sufficient to cover, among other things, customers' returns,
allowances, deductions and disputes and/or charge backs including any
charge back SCI anticipates might arise in the future, as security for
the payment of Seller's obligations to SCI. SCI may, in its sole and
exclusive discretion, increase or decrease such reserve, as SCI may
deem necessary to protect SCI's interests. Subject to a reserve, on
each Friday of the week in which all Accounts Purchased set forth on
the applicable Assignment Schedule have been collected in good funds
(or as to any Account Purchased not collected as a result of a
discharge in bankruptcy, the last day of the month of such customer's
bankruptcy), SCI will pay to Seller the amount of the Purchase Price
minus (i) the Initial Down Payment, (ii) all returns, credits,
allowances and discounts calculated upon shortest or longest selling
term, at SCI's option, on any alternative terms of sale offered by
Seller to Account Debtors and (iii) all other unpaid sums charged or
chargeable to Seller's account which shall include, but not be limited
to, all costs and expenses (including attorney's fees), of any kind and
nature, which we may incur. "Purchase Price" means the aggregate net
face value of the Accounts Purchased less discount fee calculated as
described Section 1.4.
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1.4 SCI's discount fee as to each Account Purchased shall be a
percentage of the gross face value of each Account Purchased based on
the number of days elapsed between the date of purchase by SCI and the
date of collection of such Accounts Purchased by SCI after allowing 3
(three) additional days. In no event shall the discount fee for any
Account Purchased be less than $10.00
Days Elapsed Percentage
0-90 .10 per day
90 + 14 %
2. EXPECTED VOLUME
Seller expects that the aggregate net face value of Accounts
that seller will offer each month to SCI under this Agreement for
Purchase by SCI will be at least $150,000, and that the percentages set
forth in Section 1.4 are based upon that expectation.
3. WARRANTIES, REPRESENTATIONS AND COVENANTS
3.1 Seller makes the following warranties,
representations and covenants to SCI, each of which shall be deemed
continuing and shall be deemed made upon the delivery of each
Assignment Schedule:
(a) Seller is the sole and absolute owner of each Account
Purchased, sold free and clear of any liens, security interests or
encumbrances; (b) Seller has the full legal right to sell, assign and
transfer the Accounts Purchased and that the sale, assignment and
transfer thereof does not contravene or conflict with the terms of any
other agreement, commitment or instrument to which Seller is a party;
(c) Each Assignment Schedule will vest in SCI all right, title and
interest in and to the Accounts Purchased; (d) Each Account Purchased
represents an accurate and undisputed statement of indebtedness from an
Account Debtor of Seller for a sum certain, without offset or
counterclaim and which is due and payable not more than 90 days from
invoice date; (e) Each Account Purchased is an accurate statement of a
bona fide sale, delivery and acceptance of merchandise or performance
of service by Seller to an Account Debtor; (f) Seller is not affiliated
with and does not own, control, or exercise dominion, in any way
whatsoever, over the business of any Account Debtor; (g) All financial
records, statements, books, or other documents shown to SCI by Seller
at any time either before or after the signing of this Agreement are
true and accurate; (h) All invoices will state plainly on their face in
the form acceptable to SCI that each Account Purchased represented
thereby have been sold and assigned to SCI and is payable only and
directly to SCI'; (i) No Account Purchased shall be on a xxxx-and-hold,
guaranteed sale, sale and return, sale on approval, consignment or any
other repurchase or return basis; (j) Seller is solvent; (k) No
financing statement governing any of the Accounts Purchased, or any
property of Seller in which SCI is granted a security interest under
this Agreement, is on file in any public office other than that which
may be in favor of SCI; and (l) Seller's principal place of business is
set forth above and Seller maintains its records relating to the
Accounts Purchased and such property at such place. (m) Seller has no
parent, affiliate and/or subsidiary; (n) that the sale, transfer and/or
SCI's collection of the Accounts Purchased or any receivable will not
be avoidable by any receiver, trustee or debtor-in-possession; (o) that
each Account Purchased and receivable shall be absolutely enforceable
against Seller's customer in accordance with the express terms of the
invoice free and clear of any offset, deduction, claim, lien,
encumbrance, or dispute, whether as to price, terms, delivery, guaranty
or quality; and (p) seller shall not effect any change in its mailing
address, or in Seller's chief place of business, or in the office in
which Seller's records relating to where accounts are kept without
first giving SCI written notice thereof.
3.2 The warranties, representations and covenants
contained in paragraph 3.1 above shall be continuous and be deemed to
be renewed as of the date of each additional assignment Schedule each
xxxx Xxxxxx assigns Accounts Purchased to SCI. All representations,
warranties and covenants of Seller under this paragraph shall survive
any purchase or sale of Accounts Purchased and any termination of this
Agreement.
4. NO RECOURSE TO SELLER
To the extent of the Initial Down Payment for each Account
Receivable, SCI accepts the credit risk for non-payment of the Accounts
Purchased due to any Account Debtor's Bankruptcy. Seller shall
nonetheless remain liable to SCI for all damages suffered by SCI in the
event of a breach of any warranty, representation or covenant set forth
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in paragraph 3 above. In the event SCI does not receive payment in
full of any account receivable, in cleared funds, for any reason other
than a discharge in bankruptcy of an Account Debtor, such non-payment
shall be deemed a breach of Seller's representations and warranties
contained in Paragraph 3 of this Agreement. As used herein, the term
"Bankruptcy" shall mean a judicially supervised bankruptcy proceeding
seeking the discharge of an Account Debtor's debts, which proceeding is
initiated after the sale of the particular Account Receivable to SCI.
If any account receivable is not paid by the Account Debtor due solely
to its discharge in Bankruptcy then Seller shall not be liable to
return to SCI the amount of the Initial Down Payment made with respect
to that account receivable.
5. DISPUTES
SCI may charge Seller's account for the Initial Down payment and
discount fee calculated as described in Section 1.4 for any Account
Purchased that is subject to a "Dispute". "Dispute" means any alleged
defense, counterclaim, offset, dispute or other claim asserted by an
Account Debtor of the Account Purchased which relates to the sale of
goods or rendition of services or arising from or relating to any other
transaction or occurrences.
Seller must immediately (i.e., not more than eight hours upon receipt
of notification of information) notify SCI of any Dispute, return
rejection, loss of or damage to merchandise, any request for an
extension of time to pay or any fact or circumstance with respect to
any Account Purchased or receivable which may tend, in any way, to
impair or affect the collectibility of any Account Purchased or
receivable or diminish the sum payable thereon. Seller agrees it may
not grant any allowance, credit or adjustment to a customer, or accept
any return of merchandise, without SCI's express prior written consent.
SCI may, at its option, settle and/or compromise any Dispute. Any
settlement made by SCI shall not relieve Seller of any of its
obligations under this Agreement. No charge back shall be deemed a
reassignment to Seller of the Account involved. All amounts chargeable
to Seller's account under this Agreement shall be payable by Seller on
demand.
6. HOLD IN TRUST
Any check or other form of payment an any Account Purchased, or
upon default, any account receivable that Seller receives, shall not be
deposited by Seller and shall be held in trust and safekeeping, as the
sole and exclusive property of SCI, and shall be immediately returned
to SCI. Should Seller come into possession of a check comprising
payment owing to both Seller and SCI, Seller shall forthwith turn over
such check to SCI and SCI will refund Seller's portion, if any, to
Seller.
7. BOOK ENTRY
Seller will immediately, upon each sale of Accounts, make the proper
entry on its books and records recording the absolute sale of such
Account to SCI.
8. SECURITY INTEREST
Seller hereby grants to SCI, as security for all present and future
Obligations of Seller to SCI under this agreement, a continuing first
lien superior in priority and dignity to all others, in all accounts
whether or not specifically purchased by SCI under this Agreement,
whether now existing or hereafter arising, together with all documents,
instruments, chattel paper and the computer software programs, stored
date, aging schedules, customer lists, books, records, returns,
deposits and credit balances thereto and the proceeds thereof, together
with all returned merchandise and all property of Seller at any time
coming into SCI's possession. As used in this Agreement, the term
"Obligations" means and includes all loans, advances, debts,
liabilities, obligations, debit balances, covenants and duties, of
every kind and description, owing by Seller, any Affiliate, Parent or
Subsidiary of Seller, to SCI under this Agreement or otherwise (whether
or not evidenced by any note or other instrument and whether or not for
the payment of money), direct or indirect, absolute or contingent, due
or to become due, now existing or hereafter arising, including, without
limitation, all interest, fees, charges, expenses and attorneys' fees
for which Seller is obligated hereunder. As used in this Agreement,
the terms "Parent", "Affiliate". Or "Subsidiary" means any corporation
or similar legal entity under common control with Seller. Seller shall
execute and deliver to SCI all financing statements and other documents
and instruments that SCI may request to perfect, protect, or establish
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the security interest (s) granted hereunder and Seller authorizes SCI
to execute and file alone any such financing statements disclosing
SCI's security interest (s). Recourse to security shall not be
required and Seller shall at all times remain liable for the repayment
on demand of all our indebtedness arising hereunder and for all
Obligations.
9. POWER OF ATTORNEY
In order to implement this Agreement, Seller irrevocably appoints SCI
its attorney in fact or agent with power to (a) Strike out Seller's
address on any correspondence to any Account Debtor and insert SCI's
address; (b) Receive and open all mail addressed to Seller via SCI's
address; (c) Endorse the name of Seller or Seller's trade name on any
checks or other evidences of payment payable to Seller that may come
into the possession of SCI; (d) In Seller's name, or otherwise, demand,
xxx for compromise and/or collect any and all moneys due to Seller; (e)
Compromise, prosecute or defend any action, claim or proceeding as to
the Accounts; (f) Send notices, demands or requests to the Account
Debtor in the name of Seller for any purpose whatsoever deemed
necessary or desirable by SCI including, without limitation, notices
regarding payment instructions or seeking estoppel information on the
account. The Power of Attorney granted to SCI herein shall be deemed
to be coupled with an interest and therefore irrevocable and shall
remain in full force and effect until all Accounts are paid in full and
all indebtedness, if any, of Seller to SCI is discharged.
10. FIANANCING STATEMENT
Seller has delivered to SCI and SCI may file executed financing
statements (a) to perfect the purchase by SCI of all present and future
Accounts and (b) to perfect any security interest granted to SCI under
this Agreement. Seller authorizes SCI to execute in Seller's name and
to file all such further financing statements and renewals thereof as
SCI may deem appropriate to carry out the intent of this Agreement.
11. RESTRICTIONS ON OTHER TRANSACTIONS.
During the term of this Agreement, Seller will not sell or factor any
of its accounts receivable to any entity other than SCI.
12. PLEDGE AND ASSIGNMENT OF SELLER'S ACCOUNTS RECEIVABLE BY SCI:
Seller acknowledges and understands that SCI may enter into a financing
agreement with Capital Business Credit, a division of Capital Factors,
Inc., ("Capital"). In connection with said financing, SCI may sell
and/or assign all or a portion of Seller's Accounts Receivable to
Capital. Seller hereby consents to SCI entering into such financing
agreement with Capital. Seller further agrees as follows: (a) Seller
shall have no rights under the financing agreement, Seller will not
look or seek to hold Capital, or its respective officers, employees,
directors or agents responsible for any of SCI's obligations under this
Agreement, and that SCI's relationship with Capital is completely
separate and apart from Seller's relationship with SCI except as to any
lien rights and the granting and enforcing of any security interest
that Capital may have and assert by reason of its purchase and/or
assignment of Seller's Accounts Receivable to Capital pursuant to the
financing agreement entered into between SCI and Capital; (b) Seller
will have no rights against Capital for any actions that it takes or
fails to take under the aforementioned financing agreement; (c) In the
event that Seller is advised that Capital has purchased or has received
an assignment of all or a portion of Seller's Accounts Receivable
pursuant to the financing agreement between Capital and SCI, Seller
agrees that all of its representations set forth in Paragraph 3 of this
Agreement shall, at the request of SCI or Capital, extend and insure to
Capital and its successors and assigns; (d) If requested by SCI or
Capital, Seller shall execute any documentation or notice required by
Capital to evidence the fact that any or all of the Accounts Receivable
have been sold and assigned to Capital and are payable to Capital only.
Seller shall take such additional actions in furtherance of the rights
of Capital and SCI as Capital may require; (e) Upon SCI's or Capital's
request, Seller shall immediately provide to Capital any and all
information which Capital may require regarding Seller's financial
condition, any Accounts Receivable, any obligations under this
Agreement the collateral for Seller's obligations under this Agreement
and any other information which Capital may request; (f) Seller
consents to SCI sharing with Capital copies of all financial and
information regarding Seller delivered to or made available to SCI
under this Agreement.
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13. NO ASSUMPTION
Nothing contained in this Agreement shall be deemed to impose any duty
or obligation upon SCI in favor of any Account Debtor and/or any other
party in connection with the Accounts.
14. BINDING FUTURE PARTIES
This Agreement shall inure to the benefit of and is binding upon the
parties, any parent, subsidiaries, and affiliates, whether now or
hereafter formed, together with their executors, administrators,
successors, and assigns. Seller may not assign or transfer any or all
of its rights and obligations under this Agreement to any party without
the express prior written consent of SCI.
15. WAIVER; ENTIRE AGREEMENT
No failure or delay on SCI's part in exercising any right, power or
remedy granted to SCI hereunder will constitute or operate as a waive
thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the
exercise of any other right set forth herein. This Agreement contains
the entire agreement and understanding of the parties hereto and no
amendment modification or waiver of, or consent, oral or otherwise,
with respect to any provision of this Agreement will in any event be
effective unless the same is in writing and signed and delivered by
SCI.
16. FLORIDA LAW
This Agreement shall be deemed executed in the State of Florida and in
all respects shall be governed by and construed in accordance with the
laws of the State of Florida. Seller acknowledges that all actions and
proceedings relating directly or indirectly to this Agreement shall be
litigated in a state court of competent jurisdiction in the County of
Palm Beach or, at SCI's sole and exclusive option, in a venue where the
Seller is domiciled.
17. JURY WAIVER
SCI and Seller and any obligor hereunder hereby knowingly, voluntarily
and intentionally waive any right that any party may have to a trial by
jury in respect to any litigation based hereon, arising out of or
related hereto whether, under or in connection with this agreement or
any agreement contemplated to be executed in conjunction herewith, or
any course of conducts, course of dealing, statements (whether verbal
or written) or actions of either party.
18. INDEMNITY
Seller shall indemnify SCI and hold SCI harmless from and against any
action or other proceeding brought by an Account Debtor against SCI
arising from SCI's commercially reasonable efforts in collecting or
attempting to collect any of the Accounts. Seller also agrees to
indemnify SCI against any liability, loss or expense caused by, or
arising out of, the rejection or revocation of merchandise or disputes
with respect to any services of every kind and nature by Seller's
customers.
19. COOPERATION
Seller shall at any future time execute and deliver to SCI any and all
documents deemed desirable or necessary by SCI to effectuate the
provisions of this Agreement.
20. MISCELLANEOUS PROVISIONS
This Agreement shall be deemed to be one of financial accommodation and
not assumable by any debtor, trustee or debtor-in-possession in a
bankruptcy proceeding without Factor's express written consent and may
be suspended in the event a petition in bankruptcy is filed by or
against Seller.
21. TERM
This Agreement will remain in effect for a period of 6 months, November
1, 1998 (the "Term). The Term will be automatically extended for
successive periods of (1) year each unless either party provides the
other with a written notice of cancellation at least sixty (60) days
prior to the expiration of the initial Term or any renewal Term;
provided, however, SCI may cancel this Agreement at any time upon
thirty (30) days notice to Seller. In the event of a breach by Seller
of any provision of this Agreement or upon Seller's bankruptcy,
receivership, inability to pay its debts or similar insolvency event,
or the occurrence of such an event with respect to any guarantor of
Seller's obligations hereunder, SCI shall have the right, at its
discretion, to cancel this Agreement without notice to Seller, and all
Seller's obligations to SCI hereunder shall be immediately due and
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payable. In the event of cancellation, Seller's obligations under this
Agreement shall remain in full force and effect and accrue at the
maximum interest rate allowable under the law until all of the Accounts
(other than in the case of a Bankruptcy discharge) have been paid in
full and SCI is paid in full for all amounts owed by Seller.
In Witness Whereof, the parties hereto have caused this Agreement to be
duly executed as of this 9th day of April, 1998.
Nova Pharmaceutical Inc Sun Capital, Inc.
/s/ Xxxxx Xxxx
______________________ _____________________
Xxxxx Xxxx
President
_____________________ ______________________
Title Title
Xxxxx Xxxx
______________________ ______________________
Printed Name Printed Name
Initials /s/ RM____
Guaranty of Validity
To: Sun Capital, Inc.
000 Xxxxx Xxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Dear Sir or Madam:
Nova Pharmaceutical Inc, a corporation, or sole proprietorship,
or partnership organized under the laws of the State of California
(herein called "Debtor) is a company to which I am an owner, officer,
director and/or stockholder. Accordingly, it is in my direct interest
and advantage to assist the Debtor to procure funds, credit or other
financial assistance from you in order to further its business and
sales.
Accordingly, in order to induce you to purchase or otherwise
acquire from the Debtor accounts receivable, conditional sales or lease
agreements, chattel mortgages, drafts, notes, bills, acceptances, trust
receipts, contracts or other obligations or choses-in-action (herein
collectively called "receivables"), or to advance moneys or extend
credit to the Debtor thereon, or to factor the sales or finance the
account of the Debtor (either according to any present or future
agreements or according to any changes in any such agreements or on any
other terms and arrangements from time to time agreed upon with the
Debtor, the undersigned hereby consenting to and waiving notice of any
and all such agreement, terms and arrangements and changes thereof) or
to otherwise directly or indirectly advance money to or give or
extend faith and credit to the Debtor, or other wise assist the Debtor
in financing its business or sales (without obligation you to do any of
the foregoing), I the undersigned, for value received, do hereby
unconditionally guarantee to you and your assigns the accuracy of the
representations and warranties made and in the event Sun Capital, Inc.
fails to receive timely payment of any receivable by virtue of a breach
thereof, guarantor unconditionally guarantees prompt payment in full at
maturity and all times thereafter (waiving notice of non-payment) of
any and all indebtedness, obligations and liabilities of every kind or
nature (both principal and interest) now or at any time hereafter owing
to you by the Debtor, and of any and all receivables heretofore or
hereafter acquired by you from said Debtor in respect of which the
Debtor has or may become in any way liable, and the prompt, full and
faithful performance and discharge by the Debtor of all the terms,
conditions, agreements, representations, warranties, guaranties and
provisions on the part of the Debtor contained in the Master Purchase
and Sale Agreement or in any modification or addenda thereto or
substitution thereof, or contained in any schedule or other instrument
heretofore or hereafter given by or on behalf of said Debtor in
connection with the sale or assignment of any such receivable to you,
or contained in any other agreement, undertaking or obligations of the
Debtor with or to you, of any kind or nature, and we also hereby agree
on demand to reimburse you and your assigns for all expenses,
collection charges, court costs and attorney's fees incurred in
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endeavoring to collect or enforce any of the foregoing against the
Debtor and/or undersigned or any other person or concern liable
thereon; for all of which, with interest at the highest lawful contract
rate after due until paid, we hereby agree to be directly,
unconditionally and primarily liable jointly and severally with the
Debtor and agree that the same be recovered in the same or separate
actions brought to recover the principal indebtedness.
Notice of acceptance of this guaranty, the giving or extension
of credit to the Debtor, the purchase or acquisition of receivables or
the advancement of money or credit thereon, and presentment, demand,
notices of default, non-payment of partial payments and protest, notice
of protest and all other notices or formalities to which the Debtor
might otherwise be entitled, prosecution of collection or remedies
against the Debtor or against the makers, endorsers, or other person
liable on any such receivables or against any security or collateral
thereto appertaining, are hereby waived. The undersigned also waives
notice of any consents to the granting of indulgences or extensions of
time payment, the taking and releasing of security in respect of any
said receivable agreements, obligations, indebtedness or liabilities so
guaranteed hereunder, or your accepting partial payments thereon or
your settling compromising or compounding any of the same in such
manner and at such times as you may deem advisable, without in any way
impairing or affecting our liability for the full amount thereof and
you shall not be required to prosecute collection, enforcement or other
remedies against the Debtor or against any person liable on any said
receivable, agreement, obligations, indebtedness or liabilities so
guaranteed, or to enforce or resort to any security, liens, collateral
or other rights or remedies thereto appertaining, before calling on us
for payment; nor shall our liability in any way be released or affected
by reason of any failure or delay on your part to do so.
This guaranty is absolute, unconditional and continuing and
payment of the sums for which the undersigned become liable shall be
made to you at your office from time to time on demand as the same
become or are declared due, notwithstanding that you hold reserves,
credits, collateral or security against which you may be entitled to
resort for payment, and one or more and successive or concurrent
actions may be brought hereon against the undersigned, either in the
same action in which the Debtor is sued or in separate actions, as
often as deemed advisable. We expressly waive and bar ourselves from
any right to set-off, recoup or counterclaim any claim or demand
against said Debtor, or against any other person or concern liable on
said receivables, and, as further security to you any and all debts or
liabilities now or hereafter owing to us by the Debtor or by such other
person or concern are hereby subordinate to your claims and are hereby
assigned to you. Moreover, guarantor agrees that any limitation
imposed by Florida law to attach or garnish wages is hereby waived
except that all Federal limitations shall be applicable.
The guaranty shall inure to the benefit of yourself, your
successors and assigns. It shall be binding on the undersigned,
successors and assigns, and shall continue in full force and effect
until notice of termination is given and received as hereinbefore
provided and all of said indebtedness, liabilities or obligations
created or assumed are fully paid.
This Agreement shall be deemed made in the State of Florida and
shall be governed, interpreted, and construed in accordance with the
laws of the State of Florida. No modification, amendment, waiver, or
discharge of Agreements shall be binding upon you unless in writing and
signed by you. In the event that Sun Capital, Inc. obtains counsel for
the purpose of collecting any indebtedness from Seller or Guarantors,
each agrees to pay the reasonable fees and expenses (including trial
and appellate) of Sun Capital's counsel.
WAIVER OF JURY TRIAL. EACH PARTY MUTUALLY AGREES THAT TRIAL BY
JURY IS HERBY WAIVED BY US IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY EITHER OF US AGAINST THE OTHER ON ANY XXXXXX WHATSOEVER
ARISING OUT OF OR IN ANY WAY CONNECTED WITH AGREEMENTS, OR THE
RELATIONS CREATED HEREBY, WHETHER FOR CONTRACT, TORT, OR OTHERWISE, AND
WE HERBY CONSENT TO THE JURISDICTION OF THE COURTS OF THE STATE OF
FLORIDA AND OF ANY FEDERAL COURT IN SUCH STATE FOR DETERMINATION OF ANY
DISPUTE AS TO ANY SUCH MATTERS, HOWEVER, EXCLUSIVELY THE COUNTIES OF
BROWARD OF PALM BEACH, FLORIDA.
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In witness whereof and intending to be bound, we have executed this
guarantee this 9th day of April 1998.
Witnessed by:
_____________________________________/s/ Xxxxx Ayres______________
Guarantor
State of: California )
) ss:
County of: Riverside )
I, the undersigned Notary Public, in and for the jurisdiction
aforesaid, do certify that
Xxxxx X. Xxxxx, who is personally known to me as the person who
executed the foregoing Guaranty, personally appeared before me on the
date set forth above and acknowledged the execution of same as his/her
free act and deed.
Notary Public
NOTE: This guarantee of validity form was signed by Xxxxx Xxxx,
President, in the same format as the one above signed by Xxxxx Xxxxx.
