UNLIMITED GUARANTY
TO: Manufacturers
and Traders Trust Company, a
New
York banking corporation
(the
"Bank")
RE: PREMIER
ONCOLOGY MANAGEMENT OF NASSAU, LLC, a New York limited liability
company
(the
"Borrower")
To
induce
the Bank to make or continue to make loans, advances, or grant other financial
accommodations to the Borrower, in consideration thereof and for loans, advances
or financial accommodations heretofore or hereafter granted by the Bank to
or
for the account of the Borrower, the undersigned THE
SAGEMARK COMPANIES LTD.
(the
"Guarantor") absolutely and unconditionally guarantees the full and punctual
payment to the Bank of all sums which may be presently due and owing and of
all
sums which shall in the future become due and owing to the Bank from the
Borrower, whether direct or indirect, whether as a borrower, guarantor, surety
or otherwise, including, without limitation, interest, attorneys' fees and
other
amounts accruing after the filing of a petition in bankruptcy by or against
Borrower, notwithstanding the discharge of Borrower from such obligations,
together with all costs and expenses incurred by the Bank in connection with
such obligations, this Unlimited Guaranty (this "Guaranty") and the enforcement
thereof, and also guarantees the due performance by the Borrower of all its
obligations under all other present and future contracts and agreements with
the
Bank, including, without limitation, all rate swap transactions, basis swaps,
forward rate transactions, commodity swaps, commodity options, equity or equity
index swaps, equity or equity index options, bond options, interest rate
options, foreign exchange transactions, cap transactions, floor transactions,
collar transactions, forward transactions, currency swap transactions,
cross-currency rate swap transactions and currency options. This is a guaranty
of payment and not collection.
Guarantor
also agrees:
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to
indemnify and hold the Bank and any Bank Affiliate (as hereinafter
defined) and their directors, officers, employees, agents and attorneys
harmless from and against all claims, obligations, demands and
liabilities, by whomsoever asserted, and against all losses in any
way
suffered, incurred or paid as a result of or in any way arising out
of or
following or consequential to transactions with the Borrower, except
for
any claim arising out of the gross negligence or willful misconduct
of the
Bank;
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that
this Guaranty shall not be impaired by any modification, supplement,
extension, renewal or amendment of any contract or agreement to which
the
parties thereto may hereafter agree, nor by any modification, increase,
release or other alteration of any of the obligations hereby guaranteed
or
of any security therefor, nor by any agreements or arrangements whatsoever
with the Borrower or anyone else, all of which may be done without
notice
to or consent by the Guarantor;
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that
the liability of the Guarantor hereunder is direct and unconditional
and
due immediately upon default of the Borrower without demand or notice
and
without requiring the Bank first to resort to any other right, remedy
or
security;
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that
Guarantor shall have no right of subrogation, reimbursement or indemnity
whatsoever until the Bank is indefeasibly paid in full, nor any right
of
recourse to security for the debts and obligations of the Borrower
to the
Bank;
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that
the liability of the Guarantor is unlimited and shall be joint and
several
with the liabilities of any other
guarantors;
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that
if the Borrower or the Guarantor or any other guarantor should at
any time
become insolvent or make a general assignment, or if a petition in
bankruptcy or any insolvency or reorganization proceedings shall
be filed
or commenced by, against or in respect of the Borrower or the Guarantor,
or any other guarantor of the obligations guaranteed hereby, any
and all
obligations of the Guarantor shall be immediately due and payable
without
notice;
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that
the Bank’s books and records showing the account between the Bank and the
Borrower shall be admissible in any action or proceeding, shall be
binding
upon the Guarantor for the purpose of establishing the items therein
set
forth and shall constitute conclusive proof
thereof;
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that
this Guaranty is, as to the Guarantor, a continuing Guaranty that
shall
remain effective under successive transactions until expressly terminated
as hereinafter provided;
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that
this Guaranty may be terminated as to the Guarantor only by giving
the
Bank Sixty (60) days' prior written notice by registered or certified
mail, and thereupon this Guaranty shall terminate with respect to
Guarantor only at the expiration of said Sixty (60) day period, which
shall then be the effective date of termination, and that such termination
shall be applicable only to transactions having their inception after
the
effective date of termination and shall not affect rights and obligations
arising out of transactions or indebtedness or extensions or renewals
thereof having their inception prior to such date, including renewals,
extensions, modifications and refinancings of such prior transactions,
and
also extensions of credit made pursuant to a commitment previously
made by
the Bank;
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that
the termination or dissolution of Guarantor shall not effect the
termination of this Guaranty as to
Guarantor;
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that
termination, release or limitation of any guaranty of the obligations
guaranteed hereby by any other guarantor shall not affect the continuing
liability hereunder of the
Guarantor;
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that
nothing shall discharge or satisfy the liability of the Guarantor
hereunder except the full indefeasible payment and performance of
all of
the Borrower's debts and obligations to the Bank with interest and
costs
of collection;
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that
this Guaranty shall not be affected by the illegality, invalidity
or
unenforceability of the obligations guaranteed, by any fraudulent,
illegal
or improper act by the Borrower, the legal incapacity or any other
defense
of the Borrower, the Guarantor or any other person obligated to the
Bank
consequential to transactions with the Borrower nor by the invalidation,
by operation of law or otherwise, of all or any part of the obligations
guaranteed hereby, including but not limited to any interest accruable
on
the obligations guaranteed hereby during the pendency of any bankruptcy
or
receivership proceeding of the
Borrower;
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that
any and all present and future debts and obligations of the Borrower
to
Guarantor are hereby waived and postponed in favor of and subordinated
to
the full indefeasible payment and performance of all present and
future
debts and obligations of the Borrower to the
Bank;
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the
Guarantor hereby grants to the Bank a continuing lien and security
interest in all deposits or other sums at any time credited by or
due from
the Bank
or any Bank Affiliate to
the Guarantor and any property of the Guarantor at any time in the
possession of the Bank
or any Bank Affiliate
whether for safekeeping or otherwise, or in transit to or from the
Bank
or any Bank Affiliate
(regardless of the reason the Bank
or Bank Affiliate
had received the same or whether the Bank
or Bank Affiliate
has conditionally released the same) as security for the full and
punctual
payment and performance of all of the obligations guaranteed hereby,
and
such deposits and other sums may be applied or set off against such
obligations at any time, whether or not such are then due, whether
or not
demand has been made and whether or not other collateral is then
available
to the Bank
or any Bank Affiliate;
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that
if at any time payment of all or any part of the obligations guaranteed
hereunder is rescinded or otherwise must be restored by the Bank
to the
Borrower or to the creditors of the Borrower or any representative
of the
Borrower or representative of the Borrower's creditors as a voidable
preference or fraudulent transfer or conveyance upon the insolvency,
bankruptcy or reorganization of the Borrower or the Guarantor, or
to the
creditors of the Guarantor or any representative of the Guarantor
or
representative of the creditors of Guarantor upon the insolvency,
bankruptcy or reorganization of the Guarantor or otherwise, this
Guaranty
shall continue to be effective or be reinstated, as the case may
be, as
though such payments had not been made, and shall survive as an obligation
of the Guarantor, and shall not be discharged or satisfied by said
payment
or payments, notwithstanding the return of the original of this Guaranty
to the Guarantor or to the Borrower, or any other apparent termination
of
Guarantor's obligations hereunder;
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that
any rights and remedies available to the Bank under this Guaranty
are cumulative, and not exclusive of any rights and remedies otherwise
available to the Bank at law or in
equity;
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that
the Bank’s delay or omission in exercising any of the Bank’s rights and
remedies shall not constitute a waiver of these rights and remedies,
nor
shall the Bank’s waiver of any right or remedy operate as a waiver of any
other right or remedy available to the Bank. The Bank’s waiver of any
right or remedy on any one occasion shall not be considered a waiver
of
same on any subsequent occasion, nor shall this be considered to
be a
continuing waiver;
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that
this Guaranty incorporates all discussions and negotiations between
the
Bank and the Guarantor concerning the guaranty and indemnification
provided by the undersigned hereby, and that no such discussions
or
negotiations shall limit, modify, or otherwise affect the provisions
hereof, there are no preconditions to the effectiveness of this Guaranty
and that no provision hereof may be altered, amended, waived, canceled
or
modified, except by a written instrument executed and acknowledged
by the
Bank’s duly authorized officer;
and
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that
this Guaranty and all documents which have been or may be hereinafter
furnished by the Guarantor to the Bank may be reproduced by the Bank
by
any photographic, photostatic, microfilm, xerographic or similar
process,
and that any such reproduction shall be admissible in evidence as
the
original itself in any judicial or administrative proceeding (whether
or
not the original is in existence and whether or not such reproduction
was
made in the regular course of
business).
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Guarantor
waives: notice of acceptance hereof, presentment and protest of any instrument
and notice thereof, notice of default and all other notices to which
the
Guarantor
might otherwise be entitled; and any and all defenses, including without
limitation, any and all defenses which the Borrower or any other party may
have
to the fullest extent permitted by law, any defense to this Guaranty based
on
impairment of collateral or on suretyship defenses of every type; any right
to
exoneration or marshaling. To the maximum extent permitted by law, Guarantor
waives and terminates any homestead rights and/or exemptions respecting any
premises under the provisions of any applicable homestead law, including without
limitation, Section 5206 of the Civil Practice Law and Rules of New
York.
To the
extent that it lawfully may, Guarantor hereby further agrees not to invoke
any
law relating to the marshaling of collateral which might cause delay in or
impede the enforcement of the Bank’s rights under this Guaranty or otherwise
respecting the guaranteed obligations, and to the extent that it lawfully may
do
so, the Guarantor hereby irrevocably waives the benefits of all such laws.
Except as otherwise provided by applicable law, the Bank shall have no duty
as
to the collection or protection of any collateral, if any, securing the
guaranteed obligations beyond the safe custody thereof.
Guarantor
will from time to time execute and deliver to the Bank, and take or cause to
be
taken, all such other further action as the Bank may request in order to effect
and confirm or vest more securely in the Bank all the rights contemplated in
this Guaranty (including, without limitation, to correct clerical errors) or
respecting any of the obligations guaranteed hereby or to comply with applicable
statute or law.
The
execution and delivery of this Guaranty is in furtherance of the Guarantor's
corporate purposes, is not contrary to or in violation of its charter or by-laws
and the person executing this Guaranty on Guarantor's behalf has been duly
authorized to do so.
The
term
"Bank Affiliate" as used in this Guaranty shall mean any banking or lending
affiliates of the Bank, any party acting as a participant lender in the credit
arrangements contemplated herein, or any third party acting on the Bank's
behalf.
This
Guaranty, all acts and transactions hereunder, and the rights and obligations
of
the parties hereto shall be governed, construed and interpreted according to
the
laws of the State of New York without giving effect to the conflicts of laws
principles thereof, shall be binding upon the successors and assigns of the
Guarantor and shall inure to the benefit of the Bank’s successors and
assigns.
If
any
provision of this Guaranty is found to be invalid, illegal or unenforceable,
the
validity of the remainder of the Guaranty shall not be affected.
Guarantor,
if not a natural person, certifies that it is and shall remain duly organized
and in good standing under the laws of the State of its organization or
formation and duly authorized to do business in each State material to the
conduct of its business.
If
as of
the date any payment of proceeds of collateral received by the Bank are refunded
or otherwise restored to the Borrower or any third party, the statute of
limitations shall start anew with respect to any action or proceeding by the
Bank against the Guarantor under this Guaranty. Likewise, any acknowledgment,
reaffirmation or payment, by the Borrower or any third party, of any portion
of
the obligations guaranteed hereby, shall be deemed to be made as agent for
the
Guarantor, strictly for the purposes of tolling the running of (and/or
preventing the operation of) the applicable statute of limitations with respect
to any action or proceeding by the Bank against the Guarantor pursuant to this
Guaranty.
Guarantor
will furnish to Bank from time to time, such financial data and information
about Guarantor as Bank may reasonably request (collectively, the "Financial
Statements"). Guarantor represents and warrants the accuracy of any information
contained therein and hereby agrees not to encumber or transfer any assets
listed on any Financial Statements without the Bank's prior consent, except
in
the ordinary course of its business.
Guarantor
irrevocably submits to the nonexclusive jurisdiction of any Federal or
state
court
sitting in New York, over any suit, action or proceeding arising out of or
relating to this Guaranty. Guarantor irrevocably waives, to the fullest extent
it may effectively do so under applicable law, any objection it may now or
hereafter have to the laying of the venue of any such suit, action or proceeding
brought in any such court and any claim that the same has been brought in an
inconvenient forum. Guarantor hereby consents to any and all process which
may
be served in any such suit, action or proceeding, (i) by mailing a copy thereof
by registered and certified mail, postage prepaid, return receipt requested,
to
the Guarantor's address shown below or as notified to the Bank and (ii) by
serving the same upon the Guarantor in any other manner otherwise permitted
by
law, and agrees that such service shall in every respect be deemed effective
service upon the Guarantor.
GUARANTOR
AND BANK EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY, AND AFTER AN
OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL, (A) WAIVE ANY AND ALL RIGHTS TO
A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING IN CONNECTION WITH THIS GUARANTY,
THE
OBLIGATIONS GUARANTEED HEREBY, ALL MATTERS CONTEMPLATED HEREBY AND DOCUMENTS
EXECUTED IN CONNECTION HEREWITH AND (B) AGREE NOT TO SEEK TO CONSOLIDATE ANY
SUCH ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CAN NOT BE, OR HAS
NOT
BEEN WAIVED. GUARANTOR CERTIFIES THAT NEITHER THE BANK NOR ANY OF ITS
REPRESENTATIVES, AGENTS OR COUNSEL HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT
THE BANK WOULD NOT IN THE EVENT OF ANY SUCH PROCEEDING SEEK TO ENFORCE THIS
WAIVER OF RIGHT TO TRIAL BY JURY.
Executed
and dated November
5,
2007.
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Guarantor:
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By: /s/
Xxx Xxxxxxxx
Xxx
Xxxxxxxx, President/Chief Executive Officer
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Address: 1285 Avenue of the
Americas, 00xx Xxxxx
Xxx
Xxxx,
Xxx
Xxxx
00000
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XXXXX XX XXX XXXX
XXXXXX OF ____________________
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SS.
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On
the
5th
day of
November in the year 2007, before me, the undersigned, a Notary Public in and
for said State, personally appeared, Xxx Xxxxxxxx, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he/she
executed the same in his/her capacity, and that by his/her signature on the
instrument, the individual, or the person upon behalf of which the individual
acted, executed the instrument.
__________________________________
NOTARY
PUBLIC
__________________________________
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