GUARANTEE
EXHIBIT
10.1
New York,
New York Dated: July 7, 2010
In order to induce XXXXXXXXX &
XXXXXXXXX, INC. (herein called "Xxxxxxxxx") to make loans, advances or other
commitments or grant other financial accommodations to or for the account of (or
in reliance on the credit of) _______________________ (herein called "Obligor")
and for other good and valuable considerations received, the undersigned
irrevocably, absolutely and unconditionally guarantees to Xxxxxxxxx payment when
due, whether by acceleration or otherwise, of any and all Obligations of the
Obligor to Xxxxxxxxx. The term "Obligations" shall mean all obligations,
liabilities and indebtedness of the Obligor to Xxxxxxxxx or an affiliate of
Xxxxxxxxx, however evidenced, now or hereafter arising including (without
limitation) under the Factoring Agreement, dated July 7, 2010, between Xxxxxxxxx
and Obligor, as the same may have been or may in the future be supplemented
and/or amended (the “Factoring Agreement”) and/or under any other financing
provided to the Obligor by Xxxxxxxxx or an affiliate of Xxxxxxxxx, or
independent hereof or thereof, whether now existing or incurred from time to
time hereafter and whether before or after termination hereof, absolute or
contingent, joint or several, matured or unmatured, direct or indirect, primary
or secondary, liquidated or unliquidated, and whether arising directly or
acquired from others (whether acquired outright, by assignment unconditionally
or as collateral security from another and including, without limitation,
participations or interest of Xxxxxxxxx in obligations of Obligor to others),
and including (without limitation) all of Xxxxxxxxx'x charges, commissions,
fees, interest, expenses, costs and attorneys' fees chargeable to Obligor in
connection therewith. In addition, the undersigned agrees to indemnify Xxxxxxxxx
against any loss, damage or liability because of any wrongful acts or fraud of
the Obligor.
The undersigned waives notice of
acceptance of this guarantee and notice of any liability to which it may apply,
and waives presentment, demand for payment, protest, notice of dishonor or
nonpayment of any Obligations, or suit or taking other action by Xxxxxxxxx
against, and any other notice to, any party liable thereon (including the
undersigned) and waives any defense, offset or counterclaim to any liability
hereunder. Xxxxxxxxx may at any time and from time to time (whether or not after
revocation or termination of this guarantee) without the consent of, or notice
to, the undersigned, without incurring responsibility to the undersigned,
without impairing or releasing the obligations of the undersigned hereunder,
upon or without any terms or conditions and in whole or in part: (1) change the
manner, place or terms of payment, and/or change or extend the time of payment
of, renew or alter, any Obligation, any security therefor, or any liability
incurred directly or indirectly in respect thereof, and the guarantee herein
made shall apply to the Obligations as so changed, extended, renewed or altered;
(2) sell, exchange, release, surrender, realize upon or otherwise deal with in
any manner and in any order any property by whomsoever at any time pledged or
mortgaged to secure, or howsoever securing, the liabilities hereby guaranteed or
any liabilities (including any of those hereunder or under any other guarantee
of the Obligations) incurred directly or indirectly in respect thereof or
hereof, and/or offset thereagainst; (3) exercise or refrain from exercising any
rights against the Obligor or others (including the undersigned or under any
other guarantee of the Obligations) or otherwise act or refrain from acting; (4)
settle or compromise any Obligation, any security therefor or any liability
(including any of those hereunder or under any other guarantor of the
Obligations) incurred directly or indirectly in respect thereof or
hereof, and may subordinate the payment of all or any part thereof to the
payment of any liability (whether due or not) of the Obligor to creditors of the
Obligor other than Xxxxxxxxx and the undersigned: and (5) apply any sums by
whomsoever paid or howsoever realized to any Obligation to Xxxxxxxxx regardless
of what liability or liabilities of the Obligor remain unpaid.
No invalidity, irregularity or
unenforceability of all or any part of the liabilities hereby guaranteed or of
any security therefor or of any other guarantee of the Obligations shall affect,
impair or be a defense to this guarantee. The liability of the undersigned
hereunder is primary, absolute and unconditional and shall not be subject to any
offset, defense or counterclaim of the Obligor. This guarantee is a continuing
one and all liabilities to which it applies or may apply under the terms hereof
shall be conclusively presumed to have been created in reliance hereon. The
books and records of Xxxxxxxxx shall be admissible as prima facie evidence of
the Obligations. As to the undersigned, this guarantee shall continue until
written notice of revocation signed by such undersigned, or, if the undersigned
is an individual, until written notice of the death of such undersigned shall in
each case have been actually received by Xxxxxxxxx, notwithstanding a revocation
by, or the death of, or complete or partial release for any cause of any one or
more of the other guarantors or of the Obligor, or of any one liable in any
manner for the liabilities hereby guaranteed, or for the liabilities (including
those herein) incurred directly or indirectly in respect thereof or hereof, and
notwithstanding the dissolution, termination or increase, decrease or change in
personnel of any one or more of the undersigned which may be partnerships or
corporations.
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No revocation or termination hereof
shall affect in any manner rights arising under this guarantee with respect to
(a) Obligations which shall have been created, contracted, assumed or incurred
prior to receipt by Xxxxxxxxx of written notice of such revocation or
termination or (b) Obligations which shall have been created, contracted,
assumed or incurred after receipt of such written notice pursuant to any
contract entered into by the Obligor or by Xxxxxxxxx for the benefit of the
Obligor prior to receipt by Xxxxxxxxx of such notice, or to protect, preserve or
realize upon any security for any Obligations; and the sole effect of revocation
or termination hereof shall be to exclude from this guarantee liabilities
thereafter arising which are unconnected with liabilities theretofore arising or
with transactions theretofore entered into.
Upon the happening of either (i) a
Default (as defined in the Factoring Agreement) under the Factoring Agreement,
or (ii) any event or circumstance included within such definition of Default
occurring with respect to the undersigned or any other guarantor of the
Obligations, then and in any such event, and at any time thereafter, Xxxxxxxxx
may, without notice to the Obligor or the undersigned or of any other guarantor
of the Obligations, make the Obligations, whether or not then due, immediately
due and payable hereunder as to the undersigned or of any other guarantor of the
Obligations, and Xxxxxxxxx shall be entitled to enforce the obligations of the
undersigned hereunder. All sums of money at any time to the credit of the
undersigned with Xxxxxxxxx and any of the property of the undersigned at any
time in the possession of Xxxxxxxxx may be held by Xxxxxxxxx as security for any
and all obligations of the undersigned hereunder, notwithstanding that any of
said money or property may have been deposited, pledged or delivered by the
undersigned for any other, different or specific purpose. Any and all claims of
any nature which the undersigned may now or hereafter have against the Obligor
are hereby subordinated to the full payment to Xxxxxxxxx of the Obligations and
are hereby assigned to Xxxxxxxxx as additional collateral security
therefor.
In the event Xxxxxxxxx takes any
action, including retaining attorneys, for the purpose of effecting collection
of the Obligations or of any liabilities of the undersigned hereunder, or
protecting any of Xxxxxxxxx'x rights hereunder, the undersigned shall pay all
costs and expenses of every kind for protection of the rights of Xxxxxxxxx or
for collection of the Obligations or such liabilities, including reasonable
attorneys' fees.
If claim is ever made upon Xxxxxxxxx
for repayment or recovery of any amount or amounts received by Xxxxxxxxx in
payment or on account of any of the Obligations and Xxxxxxxxx repays all or part
of said amount by reason of (a) any judgment, decree or order of any Court or
administrative body having jurisdiction over Xxxxxxxxx or any of its property,
or (b) any settlement or compromise of any such claim effected by Xxxxxxxxx with
any such claimant (including the Obligor), then and in such event the
undersigned agrees that any such judgment, decree, order, settlement or
compromise shall be binding upon the undersigned, notwithstanding any revocation
or release hereof or the cancellation of any note or other instrument evidencing
any of the Obligations, or any release of any such liability of the Obligor, and
the undersigned shall be and remain liable to Xxxxxxxxx hereunder for the amount
so repaid or recovered to the same extent as if such amount had never originally
been received by Xxxxxxxxx. The provisions of this paragraph shall survive, and
continue in effect, notwithstanding any revocation or release hereof, unless
such revocation or release shall specifically refer to this
paragraph.
No delay on the part of Xxxxxxxxx in
exercising any of its options, powers or rights, or partial or single exercise
thereof, shall constitute a waiver thereof. No waiver of any of its rights
hereunder, and no modification or amendment of this guarantee, shall be deemed
to be made by Xxxxxxxxx unless the same shall be in writing, duly signed on
behalf of Xxxxxxxxx, and each such waiver, if any, shall apply only with respect
to the specific instance involved, and shall in no way impair the rights of
Xxxxxxxxx or the obligations of the undersigned to Xxxxxxxxx in any other
respect or at any other time. The undersigned shall have no right (whether by
contract or by operation of law) of subrogation, restitution, indemnification,
reimbursement or any other or similar rights of a surety against the Obligor or
any of its assets or property or any security held for any liabilities of the
Obligor, and all such rights are hereby expressly waived until indefeasible
payment in full of the Obligations.
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This
guarantee and the rights and obligations of Xxxxxxxxx and of the undersigned
hereunder shall be governed and construed in accordance with the laws (other
than the conflict of law rules) of the State of New York; and this
guarantee is binding upon the undersigned, his, her, their or its executors,
administrators, successors or assigns, and shall inure to the benefit of
Xxxxxxxxx, its successors or assigns. THE UNDERSIGNED AGREES AND DOES HEREBY
WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT AGAINST
THE UNDERSIGNED ON ANY MATTERS WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED
WITH THIS GUARANTEE, AND THE UNDERSIGNED HEREBY CONSENTS TO THE JURISDICTION OF
THE SUPREME COURT OF THE STATE OF NEW YORK FOR A DETERMINATION OF ANY DISPUTE AS
TO ANY SUCH MATTERS AND AUTHORIZES THE SERVICE OF PROCESS ON THE UNDERSIGNED BY
REGISTERED MAIL SENT TO THE UNDERSIGNED AT THE ADDRESS OF THE UNDERSIGNED
XXXXXXXXXXX SET FORTH.
Any acknowledgement, new promise,
payment of principal or interest or other act by the Obligor and others, with
respect to the Obligations, shall be deemed to be made as agent of the
undersigned for the purposes hereof, and shall, if the statute of limitations in
favor of the undersigned against Xxxxxxxxx shall have commenced to run, toll the
running of such statute of limitations, and if such statute of limitations shall
have expired, prevent the operation of such statute.
The undersigned, shall be jointly and
severally liable with the Obligor and any other guarantor of the Obligations and
the term "undersigned" wherever used herein shall mean the undersigned or any
one or more of them. Notwithstanding that this guarantee may indicate that more
than one Person (as defined in the Factoring Agreement) is to execute this
guarantee, any Person signing this guarantee agrees to be bound hereby, whether
or not any other Person signs this guarantee or any other guarantee of the
Obligations at any time. The term "Xxxxxxxxx" includes any agent of Xxxxxxxxx
acting for it.
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ATTEST:
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By:
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Name:
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Name:
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Title:
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Title:
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STATE OF
New York COUNTY OF New York
On the
___ day of July in the year 2010 before me, the undersigned,
personally appeared ______________, personally known to me or proved to me on
the basis of satisfactory evidence to the individual whose name is subscribed to
the within instrument and acknowledged to me that he/she executed the same in
his/her capacity on behalf of _____________________ and that by his/her
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
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Notary
Public
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