GUARANTY
THIS GUARANTY (this "Guaranty"), dated as of December 1, 2002, made by
COMPLIANCE SYSTEMS CORPORATION and CALL XXXXXXXXXX.XXX, INC., each a company
organized under the laws of Delaware (the "Guarantors"), in favor of Tele-Serv
Inc. (the "Lender"; Lender and any subsequent holder(s) of the Note (as defined
below) are hereinafter referred to collectively as "Lender").
WITNESSETH
WHEREAS, in July 1996, Tele-Serv Inc. ("Lender") made a loan ("Loan") in
the principal amount of $200,000 to ASN Voice and Data CORP., AS EVIDENCED by a
promissory note dated July 11, 1996 ("Original Note"), which was guaranteed by
certain parties ("Original Guarantors"); and
WhEREAS, in December 2001, the terms of the Loan were amended and the
Original Note was assigned to Call Compliance, Inc., a New York company
("Debtor"), as obligor; and
WHEREAS, in December 2002, the Lender agreed to restructure and amend the
terms of the Loan ("Restructured Loan"), as reflected in the Promissory Note
annexed hereto as Exhibit "A"; and
WHEREAS, the Guarantors have a direct interest in the financial affairs
and wellbeing of the Debtor, and will directly benefit from the Restructured
Loan; and
WhEREAS, the Guarantors have agreed to provide the Guaranty set forth
herein in substimtion of the guaranty provided by the Original Guarantors, which
shall be terminated; and
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantors hereby agrees as follows:
SECTION 1. GUARANTY.
(a) The Guarantors jointly and severally hereby unconditionally and
irrevocably (i) guarantee to the Lender the prompt and complete payment
when due (whether at stated maturity, by acceleration or otherwise) of all
payments of Debtor to Lender pursuant to the Note (the "Obligations"), and
(ii) agree to pay any and all
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10497.0401
expenses (including counsel fees and expenses) incurred by the Lender in
obtaining advice of counsel in respect of this Guaranty and incurred by
the Lender in enforcing any rights with respect to, or collecting against
the Guarantors under, this Guaranty.
(b) The Guarantors hereby agree that all payments hereunder will be
paid to the Lender without setoff, deduction, recoupment, claim or
counterclaim in U.S. Dollars at a place designated by Lender and in
immediately available funds.
SECTION 2. Guaranty Absolute. The Guarantors guarantee 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 the Lender with
respect thereto. The liability of the Guarantors under this Guaranty shall be
absolute and unconditional irrespective of:
(a) any lack of validity, regularity or enforceability of the Note
or any other agreement or instrument relating thereto;
(b) any lack of validity, regularity or enforceability of this
Guaranty or any other agreement or instrument relating hereto;
(c) 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;
(d) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any
other guaranty, for all or any of the Obligations;
(e) any failure on the part of the Lender to exercise, or any delay
in exercising, any right under the Note or any other document; or
(f) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the Debtor, the Guarantors or any
other guarantor of all or a portion of the Obligations (including, without
limitation, all defenses based on suretyship or impairment of collateral,
and all defenses that the Debtor may assert to the repayment of the
Obligations, including, without limitation, failure of consideration,
breach of warranty, payment, statute of frauds, bankruptcy, lack of legal
capacity, statute of limitations, lender liability, accord and
satisfaction, and usury), this Guaranty and the Obligations of the
Guarantors under this Guaranty.
SECTION 3. Representations AND WARRANTIES OF THE GUARANTORS. Each
Guarantor represents and warrants as follows:
(a) Enforceability. This Guaranty is the legal, valid and binding
obligation of each Guarantor, enforceable in accordance with its terms,
except as
such enforceability may be limited by (i) bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) general
principles of equity.
SECTION 4. WAIVER. Each Guarantor hereby waives (a) promptness, diligence,
notice of acceptance and any other notice with respect to any of the Obligations
or all other amounts payable pursuant to this Guaranty and (b) any requirement
that the Lender exhaust any right to take any action against the Debtor.
SECTION 5. GOVERNING LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF
ThIS GUARANTY AND ANY DISPUTE ARISING OUT OF OR IN CONNECTION WITH THIS
GUARANTY, WHETHER SOUNDING IN CONTRACT, TORT, EQUITY OR OTHERWISE, SHALL BE
GOVERNED BY THE INTERNAL LAWS (AS OPPOSED TO THE CONFUCTS OF LAW PROVISIONS
OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW) AND DECISIONS
OF THE STATE OF NEW YORK.
SECTION 6. JURISDICTION AND SERVICE OF PROCESS. THE GUARANTORS HEREBY
CONSENT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE
UNiTED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK IN CONNECTION
WITH ANY AND ALL ACTIONS COMMENCED WiTH RESPECT TO THIS GUARANTY AND FURTHER
CONSENT THAT ANY NOTICES, PROCESSES OR NOTICE OF MOTION OR OTHER APPUCATION TO
EiTHER OF SAID COURTS MAY BE SERVED IN OR OUT OF THE STATE OF NEW YORK BY
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY PERSONAL SERVICE PROVIDED A
REASONABLE TIME FOR APPEARANCE IS ALLOWED OR SUCH OTHER MANNER AS IS ALLOWED BY
LAW.
SECTION 7. JURY TRIAL. THE GUARANTORS AND, BY ITS RECEIPT HEREOF, THE
LENDER, EACH HEREBY WAIVES TO THE FULLEST EXTENT PERMITFED BY LAW ANY RIGHT TO A
TRIAL BY JURY.
SECTION 8. NO WAIVER: REMEDIES: NO MARSHALLING, APPLICATION OF PAYMENTS.
NO FAILURE ON THE part of the Lender to exercise, and no delay in exercising,
any right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right. The Guarantors hereby waive any
right to require the Lender to marshal any security or collateral or otherwise
compel the Lender to seek recourse against or satisfaction of the Obligations
and all other amounts payable pursuant to Section 1(a)(ii) from one source
before seeking recourse or satisfaction from another source. The Guarantors
acknowledge and agrees that the Lender shall be entitled to apply all payments
received from the Guarantors pursuant to the terms hereof to such portion of the
Obligations as the Lender may elect.
SECTION 9. RIGHT OF SETOFF. In addition to and not in limitation of all
rights of offset that the Lender or its Affiliates may have under applicable
law, and whether or not the Lender has made any demand or the Obligations of the
Guarantors have matured, the Lender shall
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have the right to appropriate and apply to the payment of the Obligations of the
Guarantors all deposits and other obligations then or thereafter owing by the
Lender to the Guarantors.
SECTION 10. Amendments AND Waivers. No amendment or waiver of any
provision of this Guaranty shall be effective unless in writing and signed by
the Lender and the Guarantors and any such amendment or waiver shall be
effective only to the extent set forth therein.
SECTION 11. Telecopied Signature. This Guaranty, and any notices to be
given pursuant to this Guaranty, may be executed and delivered by telecopier or
other facsimile transmission all with the same force and effect as if the same
was a fully executed and delivered original.
SECTION 12. SEVERABILITY. In case any provision in or obligation under
this Guaranty shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
IN WITNESS WHEREOF, the Guarantors have executed this Guaranty as of the
date first set forth above.
COMPLIANCE SYSTEMS CORPORATION
By: /s/ [Illegible]
-------------------------
CALL XXXXXXXXXX.XXX, INC.
By: /s/ [Illegible]
-------------------------
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NON-NEGOTIABLE
PROMISSORY NOTE
$242,000.00 DECEMBER 1, 2002
FOR VALUE RECEIVED, THE UNDERSIGNED, CALL COMPLIANCE, INC., A NEW YORK
corporation ("Maker"), promises to pay to the order of TELE-SERV INC., a New
York corporation ("Payee"), at its office, Suite A, 000 Xxx Xxxx Xxxxxx,
Xxxxxxxxxx, Xxx Xxxx 00000, or at such other place as Payee may designate to
Maker in writing from time to time, the principal amount of Two Hundred Forty
Two Thousand Dollars ($242,000.00), consisting of Two Hundred Thousand Dollars
($200,000.00) of principal indebtedness ("Base Principal") and Forty Two
Thousand Dollars ($42,000.00) reflecting deferred interest on the Prior Note, as
hereinafter defined ("Deferred Interest"), together with interest on the Base
Principal from the date hereof as follows.
This Note shall reflect the amended terms of indebtedness as evidenced in a
certain promissory note dated July 11, 1996 in the principal amount of Two
Hundred Thousand Dollars ($200,000.00), with AMS Network, Inc. and ASN Voice &
Data Corp. as joint and several obligors, and as amended from time to time and
assigned to the Maker ("Prior Note"), and shall substitute and supercede the
terms of such Prior Note.
Interest on the Base Principal shall be at the rate of 2 1.0% per annum
("Initial Interest Rate") from the date hereof through May 31, 2003 ("Initial
Interest Period"). Commencing June 1, 2003 through May 31, 2008 ("Second
Interest Period"), interest on the Base Principal shall be at the rate of 18.0%
per annum ("Second Interest Rate").
During the five-year term commencing June 1, 2003 this Note is due and payable
in equal and self liquidating monthly installments of Six Thousand One Hundred
Twenty-Eight Dollars and 70/100 ($6,128.70) consisting of amortization of (i)
Deferred Interest, (ii) interest on the Base Principal at the Initial Interest
Rate during the Initial Interest Period, (iii) Base Principal and (iv) interest
on the Base Principal at the Second Interest Rate during the Second Interest
Period. The Maker agrees to make all payments under this Note on the last day of
each month ("Payment Date"). if any payment shall be insufficient, any unpaid
amounts shall be added to the Base Principal and shall be treated in all
respects as additional principal.
The entire outstanding balance of the Base Principal, Deferred Interest and all
accrued but unpaid interest and late charges, if any, shall be become due and
payable at the option of Payee immediately upon the happening of any of the
following events ("Event of Default"):
a. a default in payment of any amount due pursuant to this Note
continuing beyond ten (10) business days after written notice of such
default is given by the Payee to the Maker; or
b. the filing of a petition in voluntary or involuntary bankruptcy
by or against Maker, the general assignment for the benefit of creditors
of Maker, or the appointment of a receiver or trustee of any assets of
Maker.
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EXHIBIT A
The Maker shall have the right to prepay this Note, at any time, in whole or in
part, without premium or penalty. Each partial prepayment shall be applied first
to Deferred Interest and thereafter to accrued interest, and then to
installments of current interest and Base Principal, in that order, in the
inverse order of their maturity.
A late charge on any payments due made more than five (5) days after the Payment
Date thereof shall be paid at the rate of one-half of one percent (.5%) per
month or portion thereof that said payment remains unpaid.
It is not intended hereby to charge interest at a rate in excess of the maximum
rate of interest permitted to be charged to Maker hereof under applicable law,
but if, notwithstanding, interest in excess of such maximum legal rate shall be
paid hereunder, the excess shall be retained by Payee as cash collateral for the
payment of the outstanding principal amount and may be applied to pay same.
Maker hereby waives presentment for payment, demand, of non-payment and
dishonor, protest, of protest and any other that may be required under the law
in connection with enforcement of this Note.
if Maker fails to make timely the payments required hereby, Maker shall pay all
costs of collection when incurred, including, without limitation, reasonable
attorney's fees and expenses and court costs. Such costs will be added to the
balance due hereunder.
This Note may not be modified or the face hereof canceled except in a writing,
signed by Maker and by Payee. This Note shall be interpreted and enforced in
accordance with the laws of the State of New York without regard to any
principles of conflicts of law. The parties hereto hereby consent to the
jurisdiction of the Courts of the State of New York and of the United States
District Court for the Eastern District of New York in connection with any and
all actions commenced with respect to this Note and further consent that any
notice, process or notice of motion or other application to either of said
courts or judges thereof may be served in or out of the State of New York by
certified or registered mail return receipt requested, or by personal service,
provided a reasonable time for appearance is allowed, or in such other manner as
may be permitted by either of said courts.
As used herein, the terms "Maker" and "Payee" shall be deemed to include their
respective successors, legal representatives and assigns, whether by voluntary
action of the parties or by operation of law.
CALL COMPLIANCE, INC.
By:
Name:
Title:
163733 VI 10497.401
