TERMS & CONDITIONS – INDIVIDUAL PERSONAL GUARANTY
- Purpose and parties. In this guaranty, “Guarantor” means the person signing below, which represents that the guarantor has a personal financial interest and reasonably anticipates benefiting from any credit provided by Continental E&J from time to time. Guarantor personally guarantees prompt, punctual payment and performance with all customer liabilities and obligations. This is an absolute, unconditional and continuing guaranty of payment, not a guaranty of collection. Guarantor may revoke this guaranty at any time as to future liabilities or obligations, but only effective upon written notice that specifically references this guaranty is given to Continental E&J credit manager at the address specified in the customer agreement and is receipted for by the Continental E&J credit manager.
- Notices. Any notices that the Guarantor provides to Continental E&J must be in writing and directed to the attention of Continental E&J credit manager at the company and address specified in the customer agreement.
- Waivers and Agreements. The guarantor waives notice of acceptance and reliance on this guaranty, notice of sales to customer or any liabilities or obligations incurred by the customer and notice of default by the customer. “Guarantor” waives all surety ship rights or defenses whether substantive or procedural, including without limitation, any defenses of the customer or Guarantor, impairment of collateral, any requirement to join another person in suit, or to proceed against any part or any collateral marshaling of assets, or other right or defense. Guarantor further agrees that the obligations to Continental E&J are not to be affected, excuses, modified, or impaired by any event now or hereafter occurring or by any set-of, counterclaim or reduction of any obligation, or any defense of any kind or nature that Guarantor has or may have against the customer or Continental E&J. Continental E&J may proceed directly to enforce its rights under this guaranty without having to proceed against customers, or any collateral, or exercise any other remedy. Guarantor understands the benefit of and hereby waives and relinquishes any right of indemnification, contribution reimbursement, or exoneration, which may be asserted against customer if guarantor performs his or her obligations under this guaranty.
- Credit Information. Guarantor authorizes Continental E&J to investigate guarantors’ credit and business affairs. Guarantor agrees that Continental E&J may request consumer reports and other available credit reports about Guarantor in connections with this application, when Continental E&J is reviewing, updating or collecting credit from the customer or Guarantor in the future, and as otherwise permitted by applicable law. Upon Guarantors request, Continental E&J will inform Guarantor if a consumer report was requested and the name and address of any reporting agency that furnished any such consumer report.
- Payment and Performance. Payment is due at the physical location of Continental E&J, which is specified in the consumer agreement or other such addresses as Continental E&J may designate in writing from time to time. If Guarantor does not pay or perform on time, all amounts owed, less any unearned charges, becomes immediately due and payable in full. Subject to any legal limits, Guarantor agrees to pay: interest of 1.5% per month on past due amounts from the date due until paid; all costs of collection (e.g. attorney fees and expenses) and a $25 fee for each returned item (whether check or ACH) that is dishonored for any reason, or such greater amount allowed by law. In each instance, all charges and fees, and Continental E&J’s rights and remedies, are subject to and are automatically restrained by applicable law.
- Governing Law; forum and disputes. The parties choose the law of the state specified in the customer agreement to govern all aspects of this guaranty an all transactions between them, without regard to the conflicts of law provisions at that state. They designate the federal and state courts of that state as the exclusive place of venue and jurisdiction for any dispute between them; and guarantor waives any right they have to transfer or change venue regarding Guarantors obligations to Continental E&J.
- Other Provisions. This Guaranty is binding upon guarantor and guarantors’ heirs, successors, assigns, representatives and survivors and inures to the benefit of Continental E&J its successors and assigns. This guaranty may be assigned by Continental E&J without notice to the guarantor. If executed by more than one, the Guarantors obligations shall be joined and several and all references to the singular are considered to include the plural.
This agreement for Terms and Conditions / Individual Personal Guaranty is executed and delivered as of the date set forth above by and among Continental E & J Foodservice, Inc. and/or Continental E & J Wholesale, a California general partnership (collectively, “Continental E & J”), on the one hand, and the customer (“Customer”) and individual guarantor(s) (“Guarantor”) whose signatures are set forth below, on the other hand, with reference to the following facts:
WHEREAS, Continental E & J has provided, is providing, and/or will be providing sales and/or deliveries of food, beverages or other related products and services to or for the benefit of Customer and/or Guarantor, such sales or deliveries being done from time to time on credit or deferred payment terms;
WHEREAS, Guarantor possesses, either directly or indirectly, a financial interest in or with respect to Customer and, accordingly, benefits from and/or will benefit from the continued provision of goods and services and/or credit by Continental E & J to Customer from time to time;
WHEREAS, in connection with the foregoing, and as an inducement to Continental E & J’s continuing to make goods and services available to Customer and/or Guarantor, the parties hereto now desire to enter into this agreement upon the terms and conditions set forth in this agreement.
NOW, THEREFORE, for valuable consideration, the adequacy and sufficiency of which is hereby acknowledged by each of the parties hereto, each of the parties hereto do hereby agree as follows.
(a) Guarantor hereby personally and unconditionally guarantees to Continental E &J the prompt, punctual and full performance and payment by Customer of all obligations, liabilities, debts or accounts owing from Customer and/or Guarantor to Continental E & J from time to time arising out of or in connection with the provision of goods or services by Continental E & J to Customer and/or Guarantor either prior hereto and/or from time to time from and after the date of this agreement (including but not limited to obligations to make payments, deferred or current, for any such goods and services provided by Continental E & J either prior to this agreement and/or from time to time hereafter) (such obligations, liabilities, debts or accounts of Customer and/or Guarantor being collectively referred to as the “Obligations”). Without limitation on the foregoing, the Obligations shall, for purposes of this agreement and otherwise, include any note, open account, credit arrangement, deferred payment, or any other similar arrangement executed by Customer and/or Guarantor, and, for this purpose, Continental E & J shall be conclusively entitled to rely upon (and Customer shall be conclusively bound by) any such note and/or arrangements signed by any officer, employee, agent or other representative of Customer as well as any person acting under circumstances for and on behalf of Customer which reasonably indicates such persons’ status as officer, employee, agent or other representative of Customer (regardless of such signer’s subsequent status with respect to Customer).
(b) Guarantor’s guaranty pursuant to this Section 1 is an absolute, unconditional and continuing guaranty of payment and performance, not of collection. Guarantor’s guaranty pursuant to this Section 1 shall and hereby does apply with respect to any obligations or liabilities of Customer to Continental E & J (whether direct or indirect, and whether joint, joint and several, or otherwise) which are currently existing and/or any such obligations or liabilities as may arise from time to time from and after the date of this Agreement. It is acknowledged and agreed this agreement shall not be construed as imposing any type of obligation upon Continental E & J to provide goods, services and/or credit to or for the benefit of Customer and/or Guarantor, such provision of goods, services and credit being subject to Continental E & J’s consent, at its sole and absolute discretion.
(c) Continental E & J shall be and hereby is authorized, without the need to obtain any prior consent of Guarantor nor without the need to notify Guarantor, to undertake any one or more of the following actions without affecting, reducing or impacting any of the obligations of Guarantor pursuant to this agreement: (i) renew, modify, compromise, rearrange, restate, consolidate, extend, accelerate, post-pone, grant any indulgence, waiver or otherwise change the terms of any Obligations from time to time, (ii) release all or any part of, or substitute or add any one more endorsers, sureties, or guarantors with respect to all or any part of, any Obligations from time to time, (iii) apply any payments from Customer to Continental E & J against any amounts owing from Customer to Continental E & J, in any order or priority determined by Continental E & J in its sole and absolute discretion. Guarantor’s obligations to Continental E & J ,
2. Revocation. Guarantor may revoke its guaranty of the payment of Customer’s obligations and liabilities provided pursuant to Section 1, above, at any time., but only with respect to any such obligations and liabilities of Customer to Continental E & J which are first arising and accruing after the date of such revocation, and only upon delivery by Guarantor to Continental E & J of written notice pursuant to Section 8, below, which written notice specifically references this Section 2. After any such revocation by Guarantor, Guarantor shall continue to be liable for all Obligations in existence as of the effective date of such revocation, all subsequent renewals, extensions, modifications, consolidations, rearrangements, restatements, replacements and amendments of those Obligations, and all interest or similar amounts accruing thereon from and after such revocation.
3. Representations, Warranties and Covenants.
(a) The Guarantor hereby represents and warrants to Continental E & J that (i) the execution and delivery of this agreement by Customer and Guarantor and the performance of their respective obligations hereunder do not conflict with any agreement by which Customer and/or Guarantor is bound, nor requires the consent or approval of any third party; (ii) this agreement is a valid and binding agreement of Customer and Guarantor, binding against each of them in accordance with its terms; (iii) all information provided by Customer and/or Guarantor to Continental E & J on that certain New Customer Account Application to which this agreement is attached and included is accurate and complete in all respects (and Customer and Guarantor each hereby covenant and agree to update and correct any such information contained thereon which thereafter changes); and (iv) all other information and materials provided by Customer or Guarantor to Continental E & J from time to time regarding Customer and Guarantor is correct and complete (and Customer and Guarantor covenant to update and supplement all such information should such information subsequently change). Customer and Guarantor each hereby agreed to hold harmless and indemnify Continental E & J from and against any costs, expenses, damages, losses, claims or demands incurred by reason of any breach by Customer or Guarantor of any of the representations, warranties or covenants made by Customer or Guarantor pursuant to this agreement.
(b) Customer and Guarantor will provide written notice to Continental E & J of any of the following events, and, for so long as any Obligations remain owing to Continental E & J, Customer and Guarantor will not permit or cause any of the following to occur without the prior written consent of Continental E & J: (i) any direct or indirect change of control of Customer; (ii) any sale, disposition or transfer (directly or indirectly) of all or any material portion of the Customer’s assets (other than in the ordinary course of business); (iii) any merger, dissolution, consolidation, conversion or similar action by or with respect to Customer; or (iv) any commencement or filing of any bankruptcy action by or with respect to Customer, or commencement of any assignment for the benefit of creditors, receivership or similar arrangement by or with respect to Customer. For purposes of the foregoing, the term “control” shall mean the power to cause the direction of the management and policies of the Customer, either directly or indirectly.
4. Certain Waivers. The Guarantor hereby waives notice of acceptance and reliance on this guaranty, notice of sales to the Customer by Continental E & J, or of any liabilities or obligations incurred by the Customer (including any amendments to existing liabilities or obligations) and/or any notice of default by the Customer of any of its liabilities or obligations. Guarantor waives all suretyship rights or defenses, whether substantive or procedural, including without limitation, any defenses of the Customer or the Guarantor, impairment of collateral, any requirement to join another person in suit, or to proceed against any party or any collateral marsheling of assets, or other right of defense. Guarantor further agrees that the obligations of Guarantor to Continental E & J pursuant to this agreement shall not be affected, modified or impaired by any event now or hereafter occurring, nor by any set-off, counterclaim or reduction of any obligation of Customer or any defense or any kind or nature that Guarantor may have against Customer or Continental E & J. Continental E & J may proceed directly against Guarantor to enforce its rights against Guarantor pursuant to this agreement without having to proceed first against Customer or any other person or any property or collateral, and without having to exercise or enforce any other right or remedy. Guarantor hereby waives and relinquishes any right of indemnification, contribution, reimbursement or exoneration which may be asserted against Customer is Guarantor performs its obligations under this Agreement.
5. Credit Information. Guarantor hereby authorizes Continental E & J to investigate Guarantor’s credit history and business affairs, including but not limited to, requesting consumer reports and other available credit reports pertaining to Guarantor in connection with this agreement. Guarantor hereby further agrees to cooperate with Continental E & J upon Continental E & J’s reasonable request from time to time in connection with such investigations.
6. Payment and Performance. All payments by Customer and/or Guarantor to Continental E & J of any of its obligations or liabilities to Continental (including pursuant to this agreement) shall be made in readily available funds (U.S. dollars) at the physical address of Continental E & J set forth in Section , below (or as otherwise specifically designated in writing by Continental E & J to Guarantor or Customer from time to time). All such amounts shall be paid when due, and if not so paid when due, shall be immediately due and payable in full along with interest accruing at the rate of 1.5% per calendar month (or portion thereof) during which such amounts remain unpaid (and such accrued interest, if and to the extent not paid, shall thereupon be deemed to be part of the liabilities or obligations so owing to Continental E & J by Customer and Guarantor). Customer and Guarantor shall also pay to Continental E & J a fee equal to $25 for each returned item (whether check or ACH) that is dishonored for any reason.
7. Governing Law; Venue. The parties agree that the terms and conditions of this agreement, as well as the terms and conditions governing any agreement by and among Continental E & J, on the one hand, and Customer and/or Guarantor, on the other hand, relating to goods or services provided by Continental E & J to Customer and/or Guarantor, shall be governed by and construed in accordance with the laws of the State of California. In the event of any dispute by and among the customer and/or the Guarantor, on the one hand, and Continental E & J and/or its officers, shareholders or employees, on the other hand, relating to this guaranty or to Continental E & J’s agreement with customer for sale of food or beverages, such dispute shall be resolved exclusively in state or federal courts located in San Diego County, California, and Guarantor and Customer each consent to and submit to the exclusive jurisdiction of such courts for such purposes, and hereby each waives any claim that any such action or proceeding in such forum is improper or inconvenient.
8. Notices. Any notice required to be delivered or given by Customer or Guarantor to Continental E & J shall be delivered in writing, signed by Customer or Guarantor, as applicable, to Continental E & J by hand delivery or regular or express mail, or facsimile (with confirmed receipt), as follows:
CONTINENTAL E & J FOODSERVICE, INC.
4744 Old Cliffs Road
San Diego, CA 92120
Attention: Mr. Joseph Kalfayan
9. Costs. The Guarantor and Customer, jointly and severally, hereby further agree to pay to Continental E & J on demand all costs, expenses and charges of Continental E & J (including attorneys fees and costs, filing fees, etc.) in connection with the enforcement of, or the exercise of any rights or remedies of Continental E & J from and against Customer and/or Guarantor, or in connection with any other action taken by Continental E & J under or in connection with, this agreement or any other agreement entered into by and among Continental E & J and Customer and/or Guarantor from time to time.
10. Miscellaneous. This agreement shall be binding upon (and inure to the benefit of) the parties hereto as well as each of their respective heirs, successors and assigns. If more than one Guarantor shall execute this agreement, the obligations of the Guarantor pursuant to this agreement shall be joint and several among each such Guarantor and all references in this agreement to the singular shall include the plural. This agreement may be executed and delivered by each of the parties hereto in one or more counterparts, all of which taken together shall constitute one and the same instrument. This agreement may be executed and delivered by the parties hereto by way of facsimile/PDF and/or similar electronic transmission, with the same force and effect as an ink-signed document.
IN WITNESS WHEREOF, the parties hereto have executed and delivered these Terms & Conditions / Individual Personal Guaranty effective as of January 15th, 2016.