PERSONAL GUARANTY
PERSONAL
GUARANTY
1. Identification.
This
Guaranty (the "Guaranty"), dated as of November 16, 2007, is entered into by
Xxxx Xxxxx (“Guarantor”), for the benefit of Xxxxxxxx Xxxx Xxxx
(“Ofir").
2. Recitals.
2.1 Guarantor
is the principal and a shareholder of TSSS, Inc., a Delaware corporation (the
“Company”).
2.2 The
Company owes Ofir $846,830.89 pursuant to the Promissory Note dated the date
hereof (the “Note”).
2.3 In
consideration for the Note made by the Company, as security for the performance
by the Company of its obligations under the Note and as security for the
repayment of the loan provided for therein and all other sums due from the
Company to Ofir arising under the Note, the Assignment and Indemnification
Agreement dated the date hereof between the Company and Ofir, the Purchase
Agreement dated the date hereof among the Company, Ofir and Xxxxxxxx Xxxxx
and
any other agreement between or among them relating to the foregoing
(collectively, the "Obligations"), Guarantor, for good and valuable
consideration, receipt of which is acknowledged, has agreed to enter into this
Guaranty.
3. Guaranty.
3.1 Guaranty.
Guarantor hereby unconditionally and irrevocably guarantees, the punctual
payment, performance and observance when due, whether at stated maturity, by
acceleration or otherwise, of all of the Obligations now or hereafter existing,
whether for principal, interest (including, without limitation, all interest
that accrues after the commencement of any insolvency, bankruptcy or
reorganization of the Company, whether or not constituting an allowed claim
in
such proceeding), fees, commissions, expense reimbursements, liquidated damages,
indemnifications or otherwise (such obligations, to the extent not paid by
the
Company being included in the “Obligations”), and agrees to pay any and all
costs, fees and expenses (including counsel fees and expenses) incurred by
Ofir
in enforcing any rights under the guaranty set forth herein.
3.2 Guaranty
Absolute.
Guarantor guarantees that the Obligations will be paid strictly in accordance
with the terms of the Note, regardless of any law, regulation or order now
or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of Ofir with respect thereto. The obligations of Guarantor under this
Guaranty are independent of the Obligations, and a separate action or actions
may be brought and prosecuted against Guarantor to enforce such Obligations,
irrespective of whether any action is brought against the Company or whether
the
Company is joined in any such action or actions. The liability of Guarantor
under this Guaranty constitutes a primary obligation, and not a contract of
surety, and to the extent permitted by law, shall be irrevocable, absolute
and
unconditional irrespective of, and Guarantor hereby irrevocably waives any
defenses it may now or hereafter have in any way relating to, any or all of
the
following:
(a)
any
lack of validity or enforceability of the Note or any agreement or instrument
relating thereto;
(b)
any
change in the time, manner or place of payment of, or in any other term of,
all
or any of the Obligations, or any other amendment or waiver of or any consent
to
departure from the Note;
(c)
any
change, restructuring or termination of the corporate, limited liability company
or partnership structure or existence of the Company; or
(d)
any
other circumstance (including, without limitation, any statute of limitations)
or any existence of or reliance on any representation by the Company that might
otherwise constitute a defense available to, or a discharge of, the Company,
including without limitation, any defense of DCI USA, Inc. to the payments
due
to the Company.
This
Guaranty shall continue to be effective or be reinstated, as the case may be,
if
at any time any payment of any of the Obligations is rescinded or must otherwise
be returned by Ofir or any other entity upon the insolvency, bankruptcy or
reorganization of the Company or otherwise (and whether as a result of any
demand, settlement, litigation or otherwise), all as though such payment had
not
been made.
3.3 Waiver.
Guarantor hereby waives promptness, diligence, notice of acceptance and any
other notice with respect to any of the Obligations and this Guaranty and any
requirement that Ofir exhaust any right or take any action against the Company
or any other person or entity. Guarantor acknowledges that he will receive
direct and indirect benefits from the financing arrangements contemplated herein
and that the waiver set forth in this Section 3.3 is knowingly made in
contemplation of such benefits. Guarantor hereby waives any right to revoke
this
Guaranty, and acknowledges that this Guaranty is continuing in nature and
applies to all Obligations, whether existing now or in the future.
3.4
Continuing
Guaranty; Assignments.
This
Guaranty is a continuing guaranty and shall (a) remain in full force and effect
until the later of the indefeasible cash payment in full of the Obligations
and
all other amounts payable under this Guaranty and the Note, (b) be binding
upon
Guarantor, his heirs, representatives, and permitted successors and assigns
and
(c) inure to the benefit of and be enforceable by Ofir and his successors,
pledgees, transferees, representatives, heirs and assigns. Without limiting
the
generality of the foregoing clause, Ofir may pledge, assign or otherwise
transfer all or any portion of his rights and obligations under this Guaranty
(including, without limitation, all or any portion of its Note owing to it)
to
any other person or entity, and such other person and/or entity shall thereupon
become vested with all the benefits in respect thereof granted Ofir herein
or
otherwise.
4. Miscellaneous.
4.1 Expenses.
Guarantor shall pay to Ofir, on demand, the amount of any and all expenses,
including, without limitation, attorneys' fees, legal expenses and brokers'
fees, which Ofir may incur in connection with exercise or enforcement of any
the
rights, remedies or powers of Ofir hereunder or with respect to any or all
of
the Obligations.
4.2 Waivers,
Amendment and Remedies.
No
course of dealing by Ofir and no failure by Ofir to exercise, or delay by Ofir
in exercising, any right, remedy or power hereunder shall operate as a waiver
thereof, and no single or partial exercise thereof shall preclude any other
or
further exercise thereof or the exercise of any other right, remedy or power
of
Ofir. No amendment, modification or waiver of any provision of this Guaranty
and
no consent to any departure by Guarantor therefrom, shall, in any event, be
effective unless contained in a writing signed by Ofir, and then such waiver
or
consent shall be effective only in the specific instance and for the specific
purpose for which given. The rights, remedies and powers of Ofir, not only
hereunder, but also under any instruments and agreements evidencing or securing
the Obligations and under applicable law are cumulative, and may be exercised
by
Ofir from time to time in such order as he may elect.
2
4.3 Notices.
All
notices or other communications given or made hereunder shall be in writing
and
shall be personally delivered or deemed delivered the first business day after
being faxed (provided that a copy is delivered by first class mail) to the
party
to receive the same at its address set forth below or to such other address
as
either party shall hereafter give to the other by notice duly made hereunder.
To
Ofir,
to:
Xxxxxxxx
Xxxx Xxxx
______________
______________
Fax:
__________
To
Guarantor, to:
_________
_________
_________
Fax:
Any
party
may change its address by written notice in accordance with this
paragraph.
4.4 Term.
Upon
the
payment in full of the Obligations, (i) this Guaranty shall terminate and (ii)
Ofir will, upon Guarantor's request and at Guarantor's expense, execute and
deliver to Guarantor such documents as Guarantor shall reasonably request to
evidence such termination, all without any representation, warranty or recourse
whatsoever.
4.5 Captions.
The
captions of Paragraphs, Articles and Sections in this Guaranty have been
included for convenience of reference only, and shall not define or limit the
provisions hereof and have no legal or other significance
whatsoever.
4.6 Governing
Law; Venue; Severability.
This
Guaranty shall be governed by and construed in accordance with the laws of
the
State of New York without regard to principles of conflicts or choice of law.
Any legal action or proceeding against Guarantor with respect to this Guaranty
may be brought in the courts of the State of New York or of the United States
for the Southern District of New York, and, by execution and delivery of this
Guaranty, Guarantor hereby irrevocably accepts for himself and in respect of
his
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Guarantor hereby irrevocably waives any objection which they may now
or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Guaranty brought in the
aforesaid courts and hereby further irrevocably waives and agrees not to plead
or claim in any such court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum. If any provision of this
Guaranty, or the application thereof to any person or circumstance, is held
invalid, such invalidity shall not affect any other provisions which can be
given effect without the invalid provision or application, and to this end
the
provisions hereof shall be severable and the remaining, valid provisions shall
remain of full force and effect. This
Guaranty shall be deemed an unconditional obligation of Guarantor for the
payment of money and, without limitation to any other remedies of Ofir, may
be
enforced against Guarantor by summary proceeding in the jurisdiction where
enforcement is sought. Each
party hereby irrevocably waives personal service of process and consents to
process being served in any suit, action or proceeding in connection with this
Agreement or the Note by mailing a copy thereof via registered or certified
mail
or overnight delivery (with evidence of delivery) to such party at the address
in effect for notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and notice thereof.
Nothing contained herein shall be deemed to limit in any way any right to serve
process in any other manner permitted by law. Guarantor irrevocably appoints
the
officers, directors and any agent for service of process of the Company as
Guarantor’s true and lawful agent for service of process upon whom all processes
of law and notices may be served and given in the manner described above; and
such service and notice shall be deemed valid personal service and notice upon
Guarantor with the same force and validity as if served upon
Guarantor.
3
4.7 Satisfaction
of Obligations.
For all
purposes of this Guaranty, the payment in full of the Obligations shall be
conclusively deemed to have occurred when the Obligations have been indefeasibly
paid.
4.8 Counterparts/Execution.
This
Agreement may be executed in any number of counterparts and by the different
signatories hereto on separate counterparts, each of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute but
one
and the same instrument. This Agreement may be executed by facsimile signature
and delivered by facsimile transmission.
IN
WITNESS WHEREOF, the
undersigned has executed and delivered this Personal Guaranty, as of the date
first written above.
“GUARANTOR”
/s/
Xxxx
Xxxxx
Xxxx
Xxxxx
4
