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EXHIBIT 2.2
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT is entered into by and between the undersigned
(hereinafter referred to collectively as "Guarantors", whether one or more) and
Electronic Transmission Corporation (hereinafter referred to as "Lender").
FOR VALUE RECEIVED, the Guarantors, jointly and severally if more than
one, hereby unconditionally and absolutely guarantee the collection of
Indebtedness.
1. INDEBTEDNESS. For purposes hereof, the "Indebtedness" shall include
all principal, interest, penalties, expenses, cost of collection, and fees
(including, but not limited to attorney's fees) related to or due in connection
with the indebtedness represented by the Purchase Agreement ("Agreement") in the
original principal sum of $386,000.00 dated August 11, 1999, executed by A&G
Health Plans, Inc. ("Borrower") and payable to the Lender. Provided, however, no
provision herein or in the Agreement or in any instrument executed by the
Borrower nor the Guarantors in connection with the indebtedness evidenced by the
Agreement shall require the payment of or permit the collection of interest in
excess of the maximum permitted by law. If any excess of interest is provided
for herein or in the Note or in any loan document, the provisions of this
paragraph shall govern, and neither the Borrower nor the Guarantors shall be
obligated to pay the amount of such interest to the extent that it is in excess
of the amount permitted by law. It is the intention of the parties to conform
strictly to the usury laws now in force, and the Note and all loan documents
executed by the Borrower or the Guarantors shall be subject to reduction of the
amount allowed under said usury laws now or hereafter construed by the courts
having jurisdiction.
2. CONTINUING GUARANTY. This is a continuing Guaranty and shall apply
to the Indebtedness and any renewals, extensions, refinancings and amendments to
or modifications thereof.
3. SUIT AGAINST GUARANTORS. Suit may be brought against the Guarantors,
jointly and severally and against less than all of them, without impairing the
rights of the Lender against the other Guarantors. The Lender may compromise
with any Guarantor for less than all of the Indebtedness and release any
Guarantor from all further liability to the Lender without impairing the right
of the Lender to demand and collect the balance of the Indebtedness from other
Guarantors not so released. It is agreed among the Guarantors that such
compromise and release shall not impair the rights of the Guarantors as among
themselves.
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4. UNGUARANTEED INDEBTEDNESS. If, at any time, there be Debts owed by
the Borrower to the Lender which are not part of the Indebtedness ("Unguaranteed
Debt"), the Lender, without in any manner impairing its rights hereunder, may,
at its option, exercise rights of offset by applying first to said Unguaranteed
Debt any deposit balances to the credit of the Borrower and, except as hereafter
provided, apply first to the Unguaranteed Debt, all amounts realized by the
Lender from collateral or security held by the Lender for the payment of the
Borrower's debts. If a particular security instrument expressly requires an
application different from that permitted under the preceding sentence, proceeds
realized by the Lender from such security instrument shall be applied as
provided in such instrument.
5. OBLIGATIONS NOT IMPAIRED. The obligations of the Guarantors under
this Guaranty shall not be released or impaired without the express prior
written consent of the Lender. Without limiting the generality of the foregoing,
the obligations of the Guarantors shall not be released or impaired on account
of the following events:
(a) the voluntary or involuntary liquidation, sale or other disposition
of all or substantially all of the assets of the Borrower, or any receivership,
insolvency, bankruptcy, reorganization or other similar proceedings affecting
the Borrower or any of its assets;
(b) the addition of an additional guarantor or guarantors or the
addition of additional collateral securing the Indebtedness;
(c) any impairment, modification, release or limitation of liability
of, or stay of lien enforcement proceedings against, the Borrower, its property,
or its estate in bankruptcy or any modification, discharge or extension of the
Indebtedness resulting from the operation of any present or future provision of
the Federal Bankruptcy Code or any other similar federal or state statute, or
from the decision of any court, it being the intention hereof that the
Guarantors shall remain liable on the Indebtedness, notwithstanding any act,
omission or thing which might, but for the provisions hereof, otherwise operate
as a legal or equitable discharge of the Guarantors;
(d) the substitution or withdrawal of collateral or release of
security, and the exercise or failure to exercise by the Lender of any right
conferred upon it herein or in any security agreement;
(e) if the Borrower is not liable because the act of creating the
Indebtedness is ultra ▇▇▇▇▇ or the officers or persons creating the Indebtedness
acted in excess of their authority, or for any reason the Indebtedness cannot be
enforced against the Borrower;
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(f) any payment by the Borrower to the Lender if such payment is held
to constitute a preference under the bankruptcy laws, or if for any other reason
the Lender is required to refund such payment to the Borrower or pay the amount
thereof to any other party;
(g) if the Guarantors are or become liable for any indebtedness owing
by the Borrower to the Lender, by endorsement or otherwise, other than under
this Guaranty; or
(h) if this Guaranty is ever deemed invalid or unenforceable as to any
of the Guarantors.
6. BENEFIT TO GUARANTORS. Guarantors acknowledge and warrant that they
derived or expect to derive financial and other advantage and benefit, directly
or indirectly, from the Indebtedness and each and every advance thereof and from
each and every renewal, extension, release of collateral or other relinquishment
of legal rights made or granted or to be made or granted by the Lender to the
borrower.
7. INDUCEMENT TO CREDITOR. Guarantors acknowledge that this Guaranty is
given to induce the Lender to extend credit to the Borrower which would not be
extended except in reliance upon this Guaranty.
8. MODIFICATION OR CONSENT. No modification, consent or waiver of any
provision of this Guaranty, nor consent to any departure by any Guarantor
therefrom, shall be effective unless the same shall be in writing and signed by
the Lender and the Guarantors, and then shall be effective only in the specific
instance and for the purpose for which given. No notice to or demand on any
Guarantors in any case shall, of itself, entitle any Guarantors to any other or
further notice or demand in similar or other circumstances.
9. SUCCESSORS AND ASSIGNS. This Guaranty is for the benefit of the
Lender, its successors and assigns, and in the event of any assignment by the
Lender, its successors or assigns, of the Indebtedness, or any part thereof, the
rights and benefits hereunder, to the extent applicable to the Indebtedness so
assigned, may be transferred with such Indebtedness.
10. DEATH OF GUARANTOR. Upon the death of any Guarantor, the obligation
of the deceased Guarantor shall continue against his estate as to the
Indebtedness.
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11. RIGHTS AND REMEDIES OF CREDITOR. All rights and remedies of the
Lender hereunder are cumulative of each other and of every other right or remedy
which the Lender may otherwise have at law or in equity or under any contract or
document, and the exercise Or one or more rights or remedies shall not prejudice
or impair the concurrent or subsequent exercise of other rights or remedies. No
delay or omission by the Lender in exercising any power or right hereunder shall
impair any such right or power or be construed as a waiver thereof or in an
acquiescence therein, nor shall any single or partial exercise or any such power
preclude other or further exercise thereof or the exercise of any other right or
power hereunder.
12. COSTS OF COLLECTION. Guarantors agree to pay all costs of
collection, including reasonable attorneys' fees and expenses, if this Guaranty
is placed in the hands of any attorney for collection or is collected through
any court.
13. COUNTERPARTS. This Guaranty may be executed in counterparts each of
which shall be deemed an original. The failure of a Guarantor to execute a
counterpart hereof shall not effect or impair the Validity or enforceability of
this Guaranty against the Guarantors executing same.
14. PLACE OF PERFORMANCE. Guarantors agree that this agreement is
performable in Dallas County, Texas, and waive the right to be sued elsewhere.
15. Arbitration Agreement. Any dispute arising out of, or related to, this
agreement shall be resolved by binding arbitration conducted by the American
Arbitration Association in accordance with the then applicable Commercial
Arbitration Rules.
ADDRESS OF GUARANTORS: GUARANTORS:
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List of Schedules
Schedules Description
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Schedule 1 Assets to be delivered to A&G Financial
Consultants, Inc.
Schedule 2 Gross Revenue (less Access Fees) for Health Plan
Initiatives, Inc. for months April 1999 & May 1999
Schedule 3 Outstanding liability balances as of 3/31/99
Schedule 3A Network List
Schedule 4 Outstanding receivable balances as of 3/31/99
Schedule 4(a) Client List
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