EXHIBIT 3.4
PERSONAL GUARANTY
THIS PERSONAL GUARANTY (the "GUARANTY") is made and entered into as of
December__, 2000, by RACHAMIM SIROMMACHOFF, whose address is 0000 Xxxx Xxxx
Xxxx., Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000 (the "GUARANTOR"), in favor of
BP SOFTWARE, LTD., A TEXAS LIMITED PARTNERSHIP, whose address is 00000 Xxxxxx
Xxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000 ("BP" or "GUARANTEED PARTY"), with
reference to the following facts:
R E C I T A L S
WHEREAS, Guaranteed Party is the Holder under that certain Secured
Non-Recourse Promissory Note of even date herewith ("NOTE"), under which Future
Arts, Ltd., an Israeli corporation ("FUTURE ARTS"), is the Maker, which Note
represents Future Arts' obligation to pay the purchase price for four million
(4,000,000) shares of common stock in recordLab Corporation currently owned
beneficially and of record by BP ("SUBJECT SHARES"), which is being sold by BP
to Future Arts pursuant to that certain Contract for the Private Sale of Stock
of even date herewith by and between BP and Future Arts ("STOCK PURCHASE
AGREEMENT"); and,
WHEREAS, subject to certain specified exceptions, the Note is
non-recourse as to Future Arts, but secured by a Stock Pledge and Security
Agreement of even date herewith ("STOCK PLEDGE"); and,
WHEREAS, Guaranteed Party has agreed to sell the Subject Shares
pursuant to the Stock Purchase Agreement and accept the Note, subject to the
Stock Pledge, Guarantor agrees to execute and deliver this Guaranty to
Guaranteed Party.
NOW THEREFORE, in consideration of the foregoing, and as material
inducement to Guaranteed Party to sell the Subject Shares to Future Arts and
accept the Note, Guarantor hereby jointly, severally, and absolutely, presently,
continually, unconditionally and irrevocably guaranties the prompt payment by
Future Arts of all sums payable by Future Arts under the Stock Purchase
Agreement and the Note and the faithful and prompt performance by Future Arts of
each and every one of the terms and conditions of Stock Purchase Agreement, the
Note and the Stock Pledge to be performed by Future Arts, and further agrees as
follows:
A G R E E M E N T
1. It is specifically agreed and understood that the Stock Purchase Agreement,
Note and Stock Pledge (collectively the"GUARANTEED OBLIGATIONS") may be altered,
affected, modified, amended, compromised, released or otherwise changed by
agreement between Guaranteed Party and Future Arts, or by course of conduct,
without notice to Guarantor or Guarantor's consent and Guarantor does guaranty
and promise to perform all of the obligations of Future Arts under the
Guaranteed Obligations, as so altered, affected, modified, amended, compromised,
released or changed, and that this guaranty shall thereupon and thereafter
guaranty the payment and performance of the Guaranteed Obligations, as so
changed, modified, amended, compromised, released, or altered.
2. This guaranty shall not be released, modified or affected by failure or delay
on the part of Guaranteed Party to enforce any of the rights or remedies of
Guaranteed Party under the Guaranteed Obligations, whether pursuant to the terms
thereof or at law or in equity, or by any release of any person liable or any
other guarantor, including without limitation, any other guarantor named herein.
3. Each Guarantor's liability under this Guaranty shall continue until all of
the Guaranteed Obligations have been satisfied in full. If all or any portion of
Future Arts' obligations under the Guaranteed Obligations are paid or performed
by Future Arts, the obligations of guarantor hereunder shall, nevertheless,
continue to remain in full force and effect if all or any part of such
payment(s) or performance(s) is avoided or recovered, directly or indirectly,
from Guaranteed Party as a preference, fraudulent transfer or otherwise.
4. Each Guarantor warrants and represents to Guaranteed Party that such
Guarantor now has and will continue to have full and complete access to any and
all information concerning the Guaranteed Obligations, the value of the assets
owned or to be acquired by Future Arts, Future Arts's financial status and its
ability to pay and perform the obligations owed to Guaranteed Party under the
the Guaranteed Obligations. Each guarantor further warrants and represents that
such Guarantor is fully informed of the remedies Guaranteed Party may pursue,
with or without notice to Future Arts, in the event of default under the
Guaranteed Obligations. Guarantor shall keep fully informed as to all aspects of
Future Arts' financial condition and the performance of the Guaranteed
Obligations.
5. Each Guarantor hereby covenants and agrees with Guaranteed Party that if
Future Arts defaults at any time in the payment of any sums due under the
Guaranteed Obligations, or in the performance of any other obligation of Future
Arts under the Guaranteed Obligations, Guarantor shall and will forthwith upon
demand pay such sums, and any arrears thereof, to Guaranteed Party in legal
currency of the United States of America for payment of public and private
debts, and take all other actions necessary to cure such default and perform
such obligations of Future Arts.
6. The liability of Guarantor under this Guaranty is a guaranty of payment and
performance and not of collectibility, and is not conditioned or contingent upon
the genuineness, validity, regularity or enforceability of the Guaranteed
Obligations or the pursuit by Guaranteed Party of any remedies which it now has
or may hereafter have with respect thereto, at law, in equity or otherwise.
7. Guarantor hereby waives and agrees not to assert or take advantage of to the
extent permitted by law:
(i) all notices to Guarantor, to Future Arts, or to any other
person, including, but not limited to, notices of the
acceptance of this Guaranty or the creation, renewal,
extension, assignment, modification or accrual of any of the
obligations owed to Guaranteed Party under the the Guaranteed
Obligations, except to the extent set forth in Paragraph 9
hereof, enforcement of any right or remedy with respect
thereto, and notice of any other matters relating thereto;
(ii) notice of acceptance of this Guaranty;
(iii) demand for payment, presentation and protest;
(iv) any statute of limitations affecting Guarantor's liability
hereunder or the enforcement thereof;
(v) any right or defense that may arise by reason of the
incapability, lack or authority, suspension or dissolution of
Future Arts or any other person; and
(vi) all principles or provisions of law which conflict with the
terms of this Guaranty.
Each Guarantor further agrees that Guaranteed Party may enforce this Guaranty
upon the occurrence of a default under the Guaranteed Obligations
notwithstanding any dispute between Guaranteed Party and Future Arts with
respect to the existence of said default or performance of the obligations under
the Guaranteed Obligations, or any counterclaim, set-off or other claim which
Future Arts may allege against Guaranteed Party with respect thereto. Moreover,
Guarantor agrees that Guarantor's obligations shall not be affected by any
circumstances which constitute a legal or equitable discharge of Future Arts or
another guarantor.
8. Guarantor agrees that Guaranteed Party may enforce this Guaranty without the
necessity of proceeding against Future Arts or any other guarantor. Guarantor
hereby waives the right to require Guaranteed Party to proceed against Future
Arts, to proceed against any other guarantor, to exercise any right or remedy
under the Guaranteed Obligations or to pursue any other remedy or to enforce any
other right.
(a) Guarantor agrees that nothing contained herein shall prevent Guaranteed
Party from exercising any rights available to it under the Guaranteed
Obligations and that the exercise of any of the aforesaid rights shall not
constitute a legal or equitable discharge of Guarantor. Without limiting the
generality of the foregoing, each Guarantor hereby expressly waives any and all
benefits under California CIVIL CODE Sections 2800, 2810, 2819, 2845, 2847,
2848, 2849 and 2850.
(b) Guarantor agrees that Guarantor shall have no right of subrogation against
Future Arts or any right of contribution against any other guarantor unless and
until all amounts due under the the Guaranteed Obligations have been satisfied.
Guarantor further agrees that, to the extent the waiver of Guarantor's rights of
subrogation and contribution as set forth herein are found by a court of
competent jurisdiction to be void or voidable for any reason, any rights of
subordination Guarantor may have against Future Arts shall be junior and
subordinate to any rights Guaranteed Party may have against Future Arts, and any
rights of contribution such Guarantor may have against any other guarantor shall
be junior and subordinate to any rights Guaranteed Party may have against such
other guarantor.
(c) To the extent any dispute exists at any time as to Guarantor's right to
contribution or otherwise, Guarantor agrees to indemnify, defend and hold
Guaranteed Party harmless from and against any loss, damage, claim, demand, cost
or any other liability (including, without limitation, reasonable attorneys'
fees and costs) Guaranteed Party may suffer as a result of such dispute.
(d) The obligations of Guarantor under this Guaranty shall not be altered,
limited or affected by any case, voluntary or involuntary, involving the
bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement
of Future Arts or any defense which Future Arts may have by reason of order,
decree or decision of any court or administrative body resulting from any such
case. Guaranteed Party shall have the sole right to accept or reject any plan on
behalf of each Guarantor proposed in such case and to take any other action
which such Guarantor would be entitled to take, including without limitation,
the decision to file or not file a claim. Each Guarantor acknowledges and agrees
that any payment which accrues under the Guaranteed Obligations after the
commencement of any such proceeding (or, if any such payment ceases to accrue by
operation of law by reason of the commencement of such proceedings, such payment
as would have accrued if said proceedings had not been commenced) shall be
included in Guarantor's obligations hereunder because it is the intention of the
parties that said obligations should be determined without regard to any rule or
law or order which may relieve Future Arts of any of its liability or
responsibility under the Guaranteed Obligations. Guarantor hereby permits any
trustee in bankruptcy, receiver, debtor-in-possession, or assignee for the
benefit of creditors, or similar person, to pay Guaranteed Party, or allow the
claim of Guaranteed Party in respect of, any such payment accruing after the
date on which such proceeding is commenced. Guarantor hereby assigns to
Guaranteed Party such Guarantor's right to receive any payments from any trustee
in bankruptcy, receiver, debtor-in-possession, or assignee for the benefit of
creditors, or similar person, by way of dividend, adequate protection payment or
otherwise.
9. Any notice, statement, demand, consent, approval or other communication
required or permitted to be given, rendered or made by either party to the
other, pursuant to this Guaranty or pursuant to any applicable law or
requirement of public authority, shall be in writing (whether or not so stated
elsewhere in this Guaranty) and shall be deemed to have been properly given,
rendered or made only if hand-delivered or sent by first-class mail, postage
pre-paid, addressed to the other party at its respective address set forth in
the introductory paragraph hereto and shall be deemed to have been given,
rendered or made on the day it is hand-delivered or the third business day after
the day it is so mailed. By giving notice as provided above, either party may
designate a different address for notices, statements, demands, consents,
approvals or other communications intended for such party.
10. Guarantor represents and warrants to Guaranteed Party as follows:
(a) No consent of any other person, including, without limitation, any creditors
of Guarantor, and no license, permit, approval or authorization of, exemption
by, notice or report to, or registration, filing or declaration with, any
governmental authority is required by Guarantor in connection with this Guaranty
or the execution, delivery, performance, validity or enforceability of this
Guaranty and all obligations required hereunder. This Guaranty has been duly
executed and delivered by Guarantor, and constitutes the legally valid and
binding obligation of Guarantor enforceable against Guarantor in accordance with
its terms.
(b) The execution, delivery and performance of this Guaranty will not violate
any provision of any existing law or regulation binding on Guarantor, or any
order, judgment, award or decree of any court, arbitrator or governmental
authority binding on Guarantor, or of any mortgage, indenture, lease, contract
or other agreement, instrument or undertaking to which Guarantor is a party or
by which Guarantor or any of such Guarantor's assets may be bound, and will not
result in, or require, the creation or imposition of any lien on any of such
guarantor's property, assets or revenues pursuant to the provision of any such
mortgage, indenture, lease, contract or other agreement, instrument or
undertaking.
11. This Guaranty shall be binding upon Guarantor, Guarantor's heirs,
representatives, administrative, administrators, executors, successors and
assigns and shall inure to the benefit of and shall be enforceable by Guaranteed
Party, its successors, endorsees and assigns. Any married person executing this
Guaranty agrees that recourse may be had against community assets and against
his or her separate property for the satisfaction of all obligations herein
guaranteed.
12. In the event of any dispute or litigation regarding the enforcement of
validity of this Guaranty, Guarantor shall be obligated to pay all charges,
costs and expenses (including, without limitation, reasonable attorneys' fees)
incurred by Guaranteed Party, whether or not any action or proceeding is
commenced regarding such dispute and whether or not such litigation is
prosecuted to judgment.
13. This Guaranty shall be governed by and construed in accordance with the laws
of the State of California, and in a case involving diversity of citizenship,
shall be litigated in and subject to the jurisdiction of the Courts of
California.
14. Every provision of this Guaranty is intended to be severable. In the event
any term or provision hereof is declared to be illegal or invalid for any reason
whatsoever by a court of competent jurisdiction, such illegality or invalidity
shall not affect the Guaranteed Obligations, nor the non-offending terms and
conditions of this Guaranty, which shall be and remain binding and enforceable
on the parties to any such affected agreement.
15. This Guaranty may be executed in any number of counterparts each of which
shall be deemed an original and all of which shall constitute one and the same
Guaranty with the same effect as if all parties had signed the same signature
page. Any signature page of this Guaranty may be detached from any counterpart
of this Guaranty and re-attached to any other counterpart of this Guaranty
identical in form hereto but having attached to it one or more additional
signature pages.
16. No failure or delay on the part of Guaranteed Party to exercise any power,
right or privilege under this Guaranty shall impair any such power, right or
privilege, or be construed to be a waiver of any default or an acquiescence
therein, nor shall any single or partial exercise of such power, right or
privilege preclude other or further exercise thereof or of any other right,
power or privilege.
17. This Guaranty shall constitute the entire agreement between each Guarantor
and the Guaranteed Party with respect to the subject matter hereof. No provision
of this Guaranty or right of Guaranteed Party hereunder may be waived nor may
any Guarantor be released from any obligation hereunder except by a writing duly
executed by the general partner or an authorized officer of Guaranteed Party.
18. The liability of Guarantor and all rights, powers and remedies of Guaranteed
Party hereunder and under any other agreement now or at any time hereafter in
force between Guaranteed Party and Guarantor relating to the Guaranteed
Obligations shall be cumulative and not alternative and such rights, powers and
remedies shall be in addition to all rights, powers and remedies given to
Guaranteed Party by law.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day
and year first above written.
DATED: December 4, 2000 GUARANTOR:
By:
NAME: /S/ RACHAMIM SIROMMACHOFF
