UNLIMITED GUARANTY
TO: Xxxxx Leasing Technologies, Inc.
000 Xxxxxx Xxxxxx
Xxxx xxx, XX 0000
In consideration of Xxxxx Leasing Technologies, Inc.(hereinafter called
BLT)extending credit or otherwise in its discretion giving time. financial or
other accommodations to Cooperative Images, Inc., and Elective Investments,
Inc. (hereinafter) collectively called tile "Borrower"), the undersigned
(hereinafter called the "Guarantor") hereby unconditionally guarantees to BLT
that: (a) the Borrower will duly and punctually pay or perform, at the place
specified therefore, all indebtedness, obligation; and liabilities, direct or
indirect, matured or unmatured, primary or secondary, certain or contingent,
of the Borrower to BLT now or hereafter xxxxxx or incurred (including without
limitation costs and expenses incurred by BLT in attempting to collect or
enforce any of the foregoing) which are chargeable to the Borrower either by
law or under the terms or BLT's arrangements with the Borrower accrued in each
case to the date of payment hereunder (collectively the "Obligations" and
individually an "Obligation"); and (b) if there is an agreement or instrument
evidencing or executed and delivered in connection with any Obligation, the
Borrower will perform in all other respect strictly in accordance with the
terms thereof.
This Guaranty is an absolute, unconditional and continuing guaranty of the
full and punctual payment and performance by the Borrower of the Obligations
and not of their collectibility only and is in no way conditioned upon any
requirement that BLT first attempt to collect any of the Obligations from the
Borrower or any other party primarily or secondarily liable with respect
thereto or resort to any security or other means of obtaining payment of any
of the Obligations which BLT now has or may acquire after the date hereof, or
upon any other
contingency whatsoever.
Upon any default by the Borrower in the full and punctual payment and
performance of any of the Obligations, the liabilities and obligations of the
Guarantor hereunder shall, at the option of BLT, become forthwith due and
payable to BLT without demand or notice of any nature, all of which are
expressly waived by the Guarantor. Payments by the Guarantor hereunder may be
required by BLT on any number of occasions.
The Guarantor further agrees, as the principal obligor and not as a guarantor
only, to pay to BLT forthwith upon demand, in funds immediately available to
BLT, all costs and expenses (including court costs and legal expenses)
incurred or expended by BLT in connection with this Guaranty and the
enforcement hereof, together with interest on amounts recoverable under this
Guaranty from the time such amounts become due until payment at the usual rate
charged by BLT in similar circumstances.
The liability of the Guarantor hereunder shall be unlimited in amount.
The obligations of the Guarantor under this Guaranty shall continue in full,
force and effect /until BLT shall have received from the Guarantor written
notice of the Guarantors intention to discontinue this Guaranty,
notwithstanding any intermediate or temporary payment or settlement of the
whole or any part of the Obligations. No such notice shall affect the
liability of the Guarantor hereunder with respect to any Obligations incurred
by Borrower to BLT or with respect to which BLT has become committed prior to
the receipt of such notice. In the event of any such discontinuance of this
Guaranty, all checks, drafts, notes, instruments (negotiable or otherwise) and
writings drawn or made by or for the account of the Borrower on BLT or any of
its agents purporting to be dated on or before t he date such discontinuance
is received by BLT, although presented to and paid or accepted by BLT after
that date, shall form part of the Obligations. No such notice shall be
effective unless sent postage pre-paid to an officer of BLT at its
Headquarters.
The Guarantor grants to BLT, as security for the full and punctual payment
rend performance of the Guarantor's obligations hereunder, a continuing lien
on tend security interest in all securities or other property belonging to the
Guarantor now or hereafter held by BLT
BLT shall be at liberty, without giving notice to or obtaining the assent of
the Guarantor, and without relieving the Guarantor of any liability hereunder,
to deal with the Borrower and with each other party who now is or after the
date hereof becomes liable in any manner for any of the obligations, in such
manner as BLT in its sole discretion deems fit, and to this end the Guarantor
gives to BLT full authority in its sole discretion to do any or all of the
following things: (a) extend credit, make loans and afford other financial
accommodations to the Borrower at such time, in such amount; and on such terms
as BLT may approve; (b) vary the terms and grant extensions or renewals of any
present or future indebtedness or obligation, to BLT of the Borrower or of any
such party; (c) grant time, waivers and other indulgences in respect thereto;
(d) vary, exchange, release or discharge, wholly or partially, or delay in or
abstain from perfecting and enforcing any security or guaranty or other means
of obtaining payment of any of the Obligations which BLT now has acquires
after the date hereof; (e) accept partial payments from the Borrower or any
such party; (f) release or discharge, wholly or partially, any endorser or
guarantor; and (g) compromise or make any settlement or other arrangement with
the Borrower or any such other party.
If for any reason the Borrower has no legal existence or is under no legal
obligation to discharge any of the Obligations undertaken or purported to be
undertaken by it or on its behalf, or if any of the moneys included in the
Obligations have become unrecoverable from the Borrower by operation of law or
for any other reason, this Guaranty shall nevertheless be binding on tile
Guarantor to the same extent as if tile Guarantor at all times had been the
principal debtor on all such Obligations. This Guaranty shall be in addition
to any other guaranty or other security for the Obligations and it shall not
be prejudiced or rendered unenforceable by the invalidity of any such other
guaranty or security. Notwithstanding any payment by the Borrower to BLT of
the whole or any portion of the Obligations, if BLT be required to pay any
amount so paid to BLT to a Trustee in Bankruptcy of the Borrower, the
Guarantor shall remain liable for any sums so paid to said Trustee.
The Guarantor waives notice of acceptance hereof, notice of any action taken
or omitted by BLT in reliance hereon, and any requirement that BLT be diligent
or prompt in making demands hereunder, giving notice to any default by the
Borrower or asserting any other right of BLT hereunder. The Guarantor also
irrevocably waives, to the fullest extent permitted by law, all defenses which
at any time may be available in respect of the Guarantor's Obligations
hereunder by virtue of any homestead exception, statute of limitations,
valuation, stay, moratorium law or other similar law now or hereafter in
effect.
The Guarantor will not, by paying any sum recoverable hereunder (whether or
not demanded by BLT) or by any means or on any other ground, claim any set-off
or counterclaim against the Borrower in respect of any liability of the
Guarantor to the Borrower or. in proceedings under the Bankruptcy Code or
insolvency proceedings of any nature, prove in competition with BLT in respect
of any payment hereunder or be entitled to have the benefit of any
counterclaim or proof of claim or dividend or payment by or on behalf of the
Borrower or the benefit of any other security for any Obligation which. now or
hereafter, BLT may hold or in which it may have any share or have any right.
of subrogation, reimbursement or indemnity or right of recourse to any
security which BLT may have or hold with respect to the Obligations
Guarantor agrees that Guarantor shall not have, and hereby expressly waives:
(1) any right to subrogation or indemnification, and other right to payment
from or reimbursement by Xxxxxxxx in connection with or as a consequence of
any payment made by Guarantor hereunder, (2) any right to enforce any right or
remedy which BLT has or may hereafter have against Borrower, and (1) any
benefit of, and any right to participate in: (a) any collateral now or
hereafter held by BLT, or (b) any payment to BLT by, or collection by BLT from
Borrower.
Any demand on or notice to the Guarantor shall be in writing and shall be
effective when handed to the Guarantor or left at or mailed to the Guarantor's
usual or last-known address.
No provision of this Guaranty can be changed, waived or discharge except by an
instrument in writing signed by BLT and the Guarantor expressly referring to
the provision of this Guaranty to which such instrument relates, and no such
waiver shall extent to, affect, or impair any right with respect to any
Obligation which is not expressly dealt with therein. No course of dealing or
delay or omission on the part of BLT in exercising any right shall operate as
a waiver thereof or otherwise be prejudicial thereto.
This Guaranty has been made in, and shall be construed in accordance with the
laws of the Commonwealth of Massachusetts and the obligations, rights and
remedies of the parties hereunder shrill be determined in accordance with the
internal laws of the Commonwealth of Massachusetts without regard to any
conflicts of laws provisions and shall take effect as an instrument under
seal.. ANY LEGAL ACTION 0R PROCEEDING WITH RESPECT TO THIS GUARANTY SHALL BL
BROUGHT IN ANY STATE OR FEDERAL COURT LOCATED WITHIN THE COMMONWEALTH OF
MASSACHUSETTS EXCLUSIVELY AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
PARTIES IRREVOCABLY CONSENT EACH FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE JURISDICTION OF THOSE, COURTS.
THE PARTIES IRREVOCABLY WAIVE ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS Of FORUM NON CONVENIENS WHICH EITHER
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO, AND
AGREE THAT ANY FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTION BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. THE PARTIES WAIVE THE RIGHT
TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF THIS GUARANTY. This Guaranty and
shall inure to the benefit of BLT and its successors in title and assigns, and
shall be binding on the Guarantor and the Guarantor's heirs, assigns and legal
representatives.
IN WITNESS WHEREOF, the Guarantor has executed this Guaranty or has caused
this Guaranty to be executed on its behalf by an officer or other person
thereunto duly authorized on the 5th day of August , 1997.
WITNESS By: /S/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, Individually
