GENERAL CONTINUING GUARANTY
(v. 102595)
In order to induce CONCORD GROWTH CORPORATION, a California
corporation, and any other Co-Lender or Participant as specified in the
Agreements ("Lender") to extend and/or to continue to extend financial
accommodations to the Borrower specified below ("Borrower") pursuant to the
terms and conditions of that certain Loan Agreement and Security Agreement of
the date specified below, or pursuant to any other present or future agreement
between Lender and Borrower (hereinafter collectively referred to as the
"Agreements"), and in consideration thereof, and in consideration of any loans,
advances, or financial accommodations heretofore or hereafter granted by Lender
to or for the account of Borrower, whether pursuant to the Agreements, or
otherwise, the undersigned officer(s), authorized agent(s) or third party
guarantors of Borrower (hereinafter collectively and individually referred to as
the "Guarantor") hereby, jointly and severally, guarantees, promises and
undertakes as follows:
1. GUARANTY AT OBLIGATIONS. Guarantor unconditionally, absolutely and
irrevocably guarantees and promises to pay to Lender, on order or demand, in
lawful money of the United States, any and all indebtedness and obligations of
Borrower to Lender and the payment to Lender of all sums which may be presently
due and owing to Lender from Borrower whether under the Agreements or otherwise.
The terms "Indebtedness" and "obligations" are (hereinafter collectively
referred to as the "obligations") used herein in their most comprehensive sense
and include any and all advances, debts, obligations and liabilities of
Borrower, heretofore, now, or hereafter made, incurred or created, whether
voluntarily or involuntarily, and however arising (including, without
limitation, indebtedness owing by Borrower to third parties who have granted
Lender a security interest in the accounts, chattel paper and general
intangibles of said third party; and further including, without limitation, any
and all attorneys' fees, expenses, costs, premiums, charges and interest owed by
Borrower to Lender, whether under the Agreements, or otherwise) whether due or
not due, absolute or contingent, liquidated or unliquidated, determined or
undetermined, whether Borrower may be liable individually or jointly with
others, whether recovery upon such indebtedness may be or hereafter becomes
barred by any statute of limitations or whether such indebtedness may be or
hereafter becomes otherwise unenforceable, and includes Borrower's prompt, full
and faithful performance, observance and discharge of each and every term,
condition, agreement, representation, warranty undertaking and provision to be
performed by Borrower under this Agreements.
2. CONTINUING GUARANTY. This General Continuing Guaranty (the
"Guaranty") is a continuing guaranty which shall remain effective until this
Guaranty has been expressly terminated and relates to any obligations including
those which arise under successive transactions which shall either continue the
Obligations from time to time or renew them after they have been satisfied. Any
such termination shall be applicable only after written notice to Lender, and
only to transactions having their inception after the effective date of
termination and shall not affect any rights or obligations arising out of
transactions having their inception prior to such date. No termination shall be
effective until such time as Lender is no longer committed or otherwise
obligated to make any loans or advances, or to grant any credit to Borrower. In
the absence of
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any termination of this Guaranty, Xxxxxxxxx agrees that nothing shall discharge
or satisfy its obligations created hereunder except for the full payment and
performance of the Obligations with interest.
3. RIGHTS ARE INDEPENDENT. Xxxxxxxxx agrees that it is directly and
primarily liable to Lender, that the obligations hereunder are independent of
the obligations of Xxxxxxxx and that a separate action or actions may be brought
and prosecuted against Guarantor, whether action is brought against Borrower or
whether Borrower is joined in any such action or actions. Guarantor agrees that
any releases which may be given by Lender to Borrower or any other guarantor or
endorser shall not release ft from this Guaranty.
4. DEFAULT. In the event that any bankruptcy, insolvency, receivership
or similar proceeding is instituted by or against Guarantor and/or the Borrower
or in the event that either the Guarantor or Borrower become insolvent, make an
assignment for the benefit of creditors or attempt to effect a composition with
creditors, or it there be any default under the Agreements (whether declared or
not), then, at Lender's election, without notice or demand, the obligations of
Guarantor created hereunder shall become due, payable and enforceable against
Guarantor whether or not the Obligations are then due and payable.
5. INDEMNIFICATION. Guarantor agrees to indemnity Lender and hold
Lender harmless against all obligations, demands and liabilities, by whomsoever
asserted and against all losses in any way suffered, incurred or paid by Xxxxxx
as a result of or in any way arising out of, following or consequential to
transactions with Borrower whether under the Agreements, or otherwise, and also
agrees that this Guaranty shall not be impaired by any modification, supplement,
extension or amendment of any contract or agreement to which Xxxxxx and Xxxxxxxx
may herafter agree, nor by any modification, release or other alteration or any
of the Obligations hereby guaranteed or of any security therefor, nor by any
agreements or arrangements whatever with Borrower or anyone else.
6. CONSENT TO MODIFICATIONS. Guarantor hereby authorizes Xxxxxx,
without notice or demand and without affecting its liability hereunder, from
time to time to:
6.1. renew, compromise, extend, accelerate or otherwise change the
time for payment or the terms of any of the Obligations, or
any part thereof, including, without limitation, increasing or
decreasing the rate of interest thereof;
6.2. take and hold security for the payment of the Obligations
guaranteed hereby, and exchange, enforce, and release any such
security;
6.3. apply such security and direct the order or manner of sale
thereof as Lender in its discretion may determine;
6.4. release or substitute any one or more endorser(s) or
guarantor(s); and
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6.5. assign, without notice, this Guaranty in whole or in part and
Xxxxxx's rights hereunder to anyone at any time.
Guarantor agrees that Lender may do any or all of the foregoing in such
manner, upon such terms, and at such times as Lender, in its discretion, deems
advisable, without, in any way or respect, impairing, affecting, reducing or
releasing Guarantor from its undertakings hereunder and Guarantor hereby
consents to each and all of the foregoing acts, events and occurrences.
7. WAIVER OF DEFENSES. Guarantor hereby waives any right to assert
against Lender as a defense, counterclaim, set-off on crossclaim, any defense
(legal or equitable), set-off, counterclaim and claim which Guarantor may now or
at any time hereafter have against Borrower and any other party liable to Lender
in any way or manner.
Guarantor hereby waives all defenses, counterclaims and off-sets of any
kind or nature, arising directly or indirectly from the present or future lack
of perfection, sufficiency, validity or enforceability of the Agreements or any
security interest thereunder.
Guarantor hereby waives any defense arising by reason of any claim or
defense based upon an election of remedies by Xxxxxx, which, in any manner
impairs, affects, reduces, releases, destroys or extinguishes Guarantor's
subrogation rights, rights to proceed against Borrower for reimbursement, or any
other rights of the Guarantor to proceed against Borrower or against any other
rights of the Guarantor or against any other person or security, including, but
not limited to, any defense based upon an election of remedies by Xxxxxx under
the provisions of Section 580(d) of the California Code of Civil Procedure, or
any similar law of California or of any other state, or of the United States.
Guarantor waives ail presentments, demands for performance, notices of
non-performance, protests, notices of protests, notices of dishonor, notices of
default, notice of acceptance of this Guaranty, and notices of the existence,
creating or incurring of new or additional indebtedness, and all other notices
or formalities to which Guarantor may be entitled.
8. WAIVER OF JURY TRIAL. GUARANTOR WAIVES ANY RIGHT TO A JURY TRIAL IN
ANY ACTION HEREUNDER OR ARISING OUT OF XXXXXX'S TRANSACTIONS WITH XXXXXXXX.
9. WAIVER OF RIGHTS OF SUBROGATION. The Guarantor shall have no right
of subrogation, reimbursement, exoneration, contribution or any other rights
that would result in the Guarantor being deemed a creditor of Borrower under the
United States Bankruptcy Code or any other law or for any other purpose and the
Guarantor hereby irrevocably waives all such rights, the right to assert any
such rights and any right to enforce any remedy which Guarantor may now or
hereafter have against Borrower and hereby irrevocably waives any benefit of and
any right to participate in, any security now or hereafter held by Xxxxxx,
whether any of the foregoing rights arise in equity, at law or by contract.
As a condition to payment or performance by Guarantor under this
Guaranty, Lender shall not be required to, and Guarantor hereby waives any and
all rights to require Lender to prosecute
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or seek to enforce any remedies against Borrower or any other party liable to
Lender on account of the Obligations or to require Lender to seek to enforce or
resort to any remedies with respect to any security interests, liens or
encumbrances granted to Lender by Borrower or any other party on account of the
Obligations.
Any and all present and future debts and obligations of Borrower to
Guarantor are hereby postponed in favor of and subordinated to the full payment
and performance of all present and future debts and obligations of Borrower to
Lender. All monies or other property of Guarantor at any time in Xxxxxx's
possession may be held by Xxxxxx as security for any and all obligations of
Guarantor to Lender no matter now existing or hereafter arising, whether
absolute or contingent, whether due or to become due, and whether under this
Guaranty or otherwise. Xxxxxxxxx also agrees that Xxxxxx's books and records
showing the account between Xxxxxx and Borrower shall be admissible in any
action or proceeding and shall be binding upon Guarantor for the purpose of
establishing the terms set forth therein and shall constitute prima facie proof
thereof.
10. FINANCIAL CONDITION OF BORROWER. Guarantor is presently informed of
the financial condition of the Borrower and of all other circumstances which a
diligent inquiry would reveal and which bear upon the risk of nonpayment of the
Obligations. Guarantor hereby covenants that it will continue to keep itself
informed of Xxxxxxxx's financial condition and of all other circumstances which
bear upon the risk of nonpayment. Absent a written request for such information
by the Guarantor to Lender, Guarantor hereby waives its right, if any, to
require, and Lender is relieved of any obligation or duty to disclose to
Guarantor any information which Lender may now or hereafter acquire concerning
such condition or circumstances.
11. TERMINATION. The Guarantor's obligation under this Guaranty shall
continue in full force and effect until Xxxxxxxx's Obligations are fully paid,
performed and discharged and Lender gives the Guarantor written notice of that
fact. Borrower's Obligations shall not be considered fully paid, performed and
discharged unless and until all payments by Borrower to Lender are no longer
subject to any right on the part of any person whomsoever; including but not
limited to Borrower, Borrower as a debtor-in-possession, or any trustee or
receiver in bankruptcy, to set aside such payments or seek to recoup the amount
of such payments, or any part thereof. The foregoing shall include, by way of
example and not by way of limitation, ail rights to recover preferences voidable
under Title 11 of the United States Code. In the event that any such payments by
Borrower to Lender are set aside after the making thereof, in whole or in part,
or settled without litigation, to the extent of such settlement, all of which is
within Xxxxxx's discretion, Guarantor shall be liable for the full amount Lender
is required to repay plus costs, interest, attorneys' fees and any and all
expenses which Lender paid or incurred in connection therewith.
No termination of this Guaranty shall be effective except by notice
sent to Lender by certified mail, return receipt requested (which shall be
evidenced by a property validated return receipt), naming a termination date
effective not less than ninety (90) days after the receipt of such notice by
Xxxxxx. Such a termination shall not be effective as to any Guarantor who has
not given
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such notice and shall not affect the application of this Guaranty to any
transaction or Indebtedness effected prior to the effective date of termination.
12. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon the
successors and assigns of the Guarantor and shall inure to the benefit of
Xxxxxx's successors and assigns. The death of Guarantor shall not terminate this
Guaranty.
13. MODIFICATIONS. This Guaranty cannot be modified orally. No
modification of this Guaranty shall be effective for any purpose unless it is in
writing and executed by an officer of Xxxxxx authorized to do so. All prior
agreements, understandings, representations and negotiations; if any, are merged
into this Guaranty.
14. ATTORNEYS' FEE. Xxxxxxxxx agrees to pay all attorneys' fees and
all other costs and out-of-pocket expenses which may be incurred by Xxxxxx in
the enforcement of this Guaranty or in any way arising out of, following, or
consequential to the enforcement of Borrower's Obligations, whether under this
Guaranty, the Agreements, or otherwise.
15. JOINT AND SEVERAL. In all cases where the word "Guarantor" is used
in this Guaranty, it shall mean and apply equally to each and all of the
individuals and/or entities which have executed this Guaranty. All of the
obligations of the Guarantor hereunder shall be joint and several.
16. GOVERNING LAW. All acts and transactions hereunder and the rights
and obligations of the parties hereto shall be governed, construed and
interpreted in accordance with the laws of the State of California.
17. ADDITIONAL WAIVERS. Guarantor waives all rights and defenses
arising out of an election of remedies by the Lender, even though that election
of remedies, such as a nonjudicial foreclosure with respect to security for a
guaranteed obligation, has destroyed the Guarantor's rights of subrogation and
reimbursement against the principal by operation of Section 580d of the Code of
Civil Procedure or otherwise.
18. SECTION NUMBERS AND HEADINGS. Section numbers and section titles
have been set forth herein for convenience only; they shall not be construed to
limit or extend the meaning of any part of this Guaranty.
The Borrower: Information Systems Consulting Corp.
Date of Loan Agreement between Xxxxxx and Xxxxxxxx: August 26, 1996
Date of this Corporate Continuing Guaranty: August 26, 1996
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AGREED:
"GUARANTOR"
Signature:
-----------------------------------
By Officer and Title: X. Xxx Xxxxxxx, President
Corporate Name: Preferred Funding Corporation
Corporate Address: 00000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 000
Xxxx, Xxxxx, Xxx: Xxxxxx, XX 00000
Federal Tax I.D.: 75-252228
DATE:
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CERTIFIED COPY OF RESOLUTIONS
(V-11/89.1)
RESOLVED, that the General Continuing Guaranty of the date specified
below between this company and Concord Growth Corporation and any other
Co-Lender or Participant as specified in the Agreement (herein "Lender") and all
other agreements and documents connected therewith be, and the same hereby are,
approved on the terms and conditions as set forth therein;
RESOLVED, that any officer of this company is authorized and directed
to enter into said agreement and all other agreements and documents connected
therewith and to execute the same for and on behalf of this company on the terms
and conditions set forth therein;
RESOLVED, that any officer of this company is authorized and directed
to negotiate, agree upon, exercise and deliver, from time to time, in the name
of , and on behalf of, this company, such agreements, amendments and supplements
to said agreement or any other agreement or document connected therewith,
documents, instruments, certificates, notices, and further assurances, and to
perform any and all such acts and things as may be required by Lender in
connection with said agreement or any other agreement or document connected
therewith, or may to him seem necessary or proper to implement and effect
complete consummation of said agreement or any other agreement or document
connected therewith in all respects and the purposes set forth in these
resolutions
RESOLVED, That any officer of this Company is authorized to guarantee
payment thereof on the company's behalf.
RESOLVED, that these resolutions shall remain in full force and effect
until written notes of their amendment or repeal shall be received by Xxxxxx and
until all indebtedness and obligations arising out of said agreement and all
other agreements and documents connected therewith shall have been paid and
satisfied in full.
The undersigned, as the duly constituted Secretary of this company does
hereby certify that the foregoing is a true and correct copy of the resolutions
duly adopted at a meeting of the Board of Directors of this company, duly
called, noticed and held on the date specified below. at which meeting there was
at all times present and acting a quorum of the members of said Board; that said
resolutions are in full force and effect; and that the following is a true and
correct list of the present officers of this company:
Date of General Continuing Guaranty: August 26, 1996
Presidents Name: X. Xxx Xxxxxxx
Vice-President's Name:
Corp. Secretary's Name: X. Xxxxxxx Xxxxx
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CFO/Treasurer's Name: X. Xxxxxxx Xxxxx
Corporate Secretary's Signature:
Name of Company: Preferred Funding Corporation
Date company's Board of Directors adopted above resolutions:
(Seal)
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