CONTINUING GUARANTY (Personal) New York
(Personal)
|
GUARANTOR:
|
|
|
|
Name |
|
|
Residence
Address
|
|
BORROWERS:
|
AUTOMOTIVE
SERVICES GROUP, LLC
|
|
|
Name |
|
|
Address
|
|
LENDER:
|
XXXXXX
X. XXXXX, 0000 XXXXXXXXXXX XXXXXX, XXXXXXXX, XXX XXXX
00000
|
1)
Guaranty.
(a) Guarantor,
intending to be legally bound, hereby unconditionally guarantees the full and
prompt payment and performance of any and all of Borrowers' Obligations (as
defined below) to the Lender when due, whether at stated maturity, by
acceleration or otherwise. As used in this Guaranty, the term "Obligations"
shall mean any and all obligations, indebtedness and other liabilities of
Borrower to the Lender now or hereafter existing, of every kind and nature
and
all accrued and unpaid interest thereon and all Expenses (as defined below)
including without limitation, whether such obligations, indebtedness and other
liabilities (i) are direct, contingent, liquidated, unliquidated, secured,
unsecured, matured or unmatured; (ii) are pursuant to a guaranty or surety
in
favor of the Lender; (iii) were originally contracted with the Lender or with
another party (including obligations under a guaranty or surety originally
in
favor of such other party); (iv) are contracted by Borrower alone or jointly
with one or more other parties; (v) are or are not evidenced by a writing;
(vi)
are renewed, replaced, modified or extended; and (vii) are periodically
extinguished and subsequently reincurred or reduced and thereafter increased.
Guarantor will pay or perform his or her obligations under this Guaranty upon
demand. This Guaranty is and is intended to be a continuing guaranty of payment
(not collection) of the Obligations (irrespective of the aggregate amount
thereof and whether or not the Obligations from time to time exceeds the amount
of this Guaranty, if limited), independent of, in addition and without
modification to, and does not impair or in any way affect, any other guaranty,
indorsement, or other agreement in connection with the Obligations, or in
connection with any other indebtedness or liability to the Lender or collateral
held by the Lender therefor or with respect thereto, whether or not furnished
by
Guarantor. Guarantor understands that the Lender can bring an action under
this
Guaranty without being required to exhaust other remedies or demand payment
first from other parties.
(b)
Guarantor acknowledges the receipt of valuable consideration for this Guaranty
and acknowledges that the Lender is relying on this Guaranty in making a
financial accommodation to Borrower, whether a commitment to lend, extension,
modification or replacement of, or forbearance with respect to, any Obligation,
cancellation of another guaranty, purchase of Borrowers' assets, or other
valuable consideration.
2) Continuing,
Absolute, Unconditional. This
Guaranty is irrevocable, absolute, continuing, unconditional and general without
any limitation. This Guaranty is unlimited in amount plus all accrued and unpaid
interest, premiums and Expenses (as defined below) incurred with respect to
the
Obligations and all of the Expenses incurred with respect to this Guaranty
(collectively, the "Guaranteed Amount").
3) Guarantor's
Waivers & Authorizations.
(a)
Guarantor's obligations shall not be released, impaired or affected in any
way
including by any of the following, all of which Guarantor hereby waives (i)
any
bankruptcy, reorganization or insolvency under any law of Borrower or that
of
any other party, or by any action of a trustee in any such proceeding; (ii)
any
new agreements or obligations of Borrower or any other party with the Lender;
(iii) any adjustment, compromise or release of any Obligations of Borrower,
by
the Lender or any other party; the existence or nonexistence or order of any
filings, exchanges, releases, impairment or sale of, or failure to perfect
or
continue the perfection of a security interest in any collateral for the
Obligations, (iv) any failure of Guarantor to receive notice of any intended
disposition of such collateral; (v) any fictitiousness, incorrectness,
invalidity or unenforceability, for any reason, of any instrument or other
agreement which may evidence any Obligation; (vi) any composition, extension,
stay or other statutory relief granted to Borrower including, without
limitation, the expiration of the period of any statute of limitations with
respect to any lawsuit or other legal proceeding against Borrower or any person
in any way related to the Obligations or a part thereof or any collateral
therefor; (vii) any change in form of organization, name, membership or
ownership of Borrower or Guarantor; (viii) any refusal or failure of the Lender
or any other person prior to the date hereof or hereafter to grant any
additional loan or other credit accommodation to Borrower or the Lender's or
any
other party's receipt of notice of such refusal or failure; (ix) any setoff,
defense or counterclaim of Borrower with respect to the obligations or otherwise
arising, either directly or indirectly, in regard to the Obligations; or (x)
any
other circumstance that might otherwise constitute a legal or equitable defense
to Guarantor's obligations under this Guaranty.
1
(b)
Guarantor waives acceptance, assent and all rights of notice or demand including
without limitation (i) notice of acceptance of this Guaranty, of Borrowers'
default or nonpayment of any Obligation, and of changes in Borrowers' financial
condition; (ii) presentment, protest, notice of protest and demand for payment;
(iii) notice that any Obligations has been incurred or of the reliance by the
Lender upon this Guaranty; and (iv) any other notice, demand or condition to
which Guarantor might otherwise be entitled prior to the Lender's reliance
on or
enforcement of this Guaranty. Guarantor further authorizes the Lender, without
notice, demand or additional reservation of rights against Guarantor and without
affecting Guarantor's obligations hereunder, from time to time: (i) to renew,
refinance, modify, subordinate, extend, increase, accelerate, or otherwise
change the time for payment of, the terms of or the interest on the Obligations
or any part thereof;(ii) to accept and hold collateral from any party for the
payment of the any or all of the Obligations, and to exchange, enforce or
refrain from enforcing, or release any or all of such collateral; (iii) to
accept any indorsement or guaranty of any or all of the Obligations or any
negotiable instrument or other writing intended to create an accord and
satisfaction with respect to any or all of the Obligations; (iv) to release,
replace or modify the obligation of any indorser or guarantor, or any party
who
has given any collateral for any of all of the Obligations, or any other party
in any way obligated to pay any or all of the Obligations, and to enforce or
refrain from enforcing, or compromise or modify, the terms of any obligation
of
any such indorser, guarantor or party; (v) to dispose of any and all collateral
securing the Obligations in any manner as the Lender, in its sole discretion,
may deem appropriate, and to direct the order and the enforcement of any and
all
indorsements and guaranties relating to the Obligations in the Lender's sole
discretion; and (vi) to determine the manner, amount and time of application
of
payments and credits, if any, to be made on all or any part of the Obligations
including, without limitation, if this Guaranty is limited in amount, to make
any
such
application to Obligations, if any, in excess of the amount of this
Guaranty.
(c)
Notwithstanding any other provision in this Guaranty, Guarantor irrevocably
waives, without notice, any right he or she may have at law or in equity
(including without limitation any law subrogating Guarantor to the rights of
the
Lender) to seek contribution, indemnification or any other form of reimbursement
from Borrower or any other obligor or guarantor of the Obligations for any
disbursement made under this Guaranty or otherwise.
4) Termination.
This
Guaranty shall remain in full force and effect as to each Guarantor until actual
receipt by the Lender officer responsible for Borrowers' relationship with
the
Lender of written notice of Guarantor's intent to terminate (or Guarantor's
death or incapacity) plus the lapse of a reasonable time for the Lender to
act
on such notice (the "Receipt of Notice"); provided, however, this Guaranty
shall
remain in full force and effect thereafter until all Obligations outstanding,
or
contracted or committed for (whether or not outstanding), before such Receipt
of
Notice by the Lender, and any extensions, renewals or replacements thereof
(whether made before or after such Receipt of Notice), together with interest
accruing thereon after such Receipt of Notice, shall be finally and irrevocably
paid in full. Discontinuance of this Guaranty as to one Guarantor shall not
operate as a discontinuance hereof as to any other guarantor. Payment of all
of
the Obligations from time to time shall not operate as a discontinuance of
this
Guaranty, unless a Receipt of Notice as provided above has been received by
the
Lender. Guarantor agrees that, to the extent that Borrower makes a payment
or
payments to the Lender on the Obligations, or the Lender receives any proceeds
of collateral to be applied to the Obligations, which payment or payments or
any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or otherwise are required to be repaid to Borrower,
its
estate, trustee, receiver or any other party, including, without limitation,
under any bankruptcy law, state or federal law, common law or equitable cause,
then to the extent of such repayment, the obligation or part thereof which
has
been paid, reduced or satisfied by such amount shall be reinstated and continued
in full force and effect as of the date such initial payment, reduction or
satisfaction occurred, notwithstanding any contrary action which may have been
taken by the Lender in reliance upon such payment or payments. As of the date
any payment or proceeds of collateral are returned, the statute of limitations
shall start anew with respect to any action or proceeding by the Lender against
Guarantor under this Guaranty. Likewise, any acknowledgment, reaffirmation
or
payment, by Borrower or any third party, of any portion of the Obligations,
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 Guarantor under this Guaranty.
5) Expenses.
Guarantor agrees to reimburse the Lender on demand for all the Lender's
expenses, damages and losses of any kind or nature, including without limitation
costs of collection and actual attorneys' fees and disbursements whether for
internal or external counsel incurred by the Lender in attempting to enforce
this Guaranty, collect any of the Obligations including any workout or
bankruptcy proceedings or other legal proceedings or appeal, realize on any
collateral, defense of any action under the prior paragraph or for any other
purpose related to the Obligations (collectively, "Expenses"). Expenses will
accrue interest at the highest default rate in any instrument evidencing the
Obligations until payment is actually received by the Lender.
6) Financial
and Other Information.
Guarantor shall promptly cause to be delivered to Lender within thirty (30)
days
of filing with the Internal Revenue Service, a true and complete copy of
Guarantor's federal and state tax returns, including all schedules. If Guarantor
files an extension, a copy of the same shall be delivered within thirty (30)
days of filing such extension. Guarantor represents that his or her assets
are
not subject to any liens, encumbrances or contingent liabilities except as
fully
disclosed to the Lender in such statements. Guarantor warrants that all
information Guarantor gives to the Lender at any time is correct, complete
and
not misleading. Xxxxxxxxx resides at the above address and will notify the
Lender officer named above immediately in writing upon any change in address.
Guarantor understands this Guaranty and has satisfied himself or herself as
to
its meaning and consequences and acknowledges that it has made its own
arrangements for keeping informed of changes or potential changes affecting
the
Borrower including the Borrowers' financial condition.
7) Security;
Right of Setoff.
As
further security for payment of the Obligations, Expenses and any other
obligations of Guarantor to the Lender, Guarantor hereby grants to the Lender
a
security interest in all money, securities and other property of Guarantor
in
the actual or constructive possession or control of the Lender or its affiliates
including without limitation all deposits and other accounts owing at any time
by Manufacturers and Traders Trust Company, the Lender or any of their
affiliates in any capacity to Guarantor in any capacity (collectively,
"Property"). The Lender shall have the right to set off Guarantor's Property
against any of Guarantor's obligations to the Lender. Such set-off shall be
deemed to have been exercised immediately at the time Manufacturers and Traders
Trust Company, the Lender or such affiliate elect to do so. The Lender shall
also have all of the rights and remedies of a secured party under the Uniform
Commercial Code, as the same may be in effect in the State of New York, as
amended from time to time, in addition to those under this Guaranty and other
applicable law and agreements.
8) No
Transfer of Assets.
Guarantor shall not transfer, reinvest or otherwise dispose of his or her assets
in a manner or to an extent that would or might impair Guarantor's ability
to
perform his or her obligations under this Guaranty.
2
9) Nonwaiver
by the Lender; Miscellaneous.
This
Guaranty is intended by Guarantor to be the final, complete and exclusive
expression of the agreement between Guarantor and the Lender. This Guaranty
may
be assigned by the Lender, shall inure to the benefit of the Lender and its
successors and assigns, and shall be binding upon Guarantor and his or her
legal
representative, successors and assigns and any participation may be granted
by
the Lender herein in connection with the assignment or granting of a
participation by the Lender in the Obligations or any part thereof. All rights
and remedies of the Lender are cumulative, and no such right or remedy shall
be
exclusive of any other right or remedy. This Guaranty does not supersede any
other guaranty or security granted to the Lender by Guarantor or others (except
as to Guarantor's Waiver of Subrogation rights above). No single, partial or
delayed exercise by the Lender of any right or remedy shall preclude exercise
by
the Lender at any time at its sole option of the same or any other right or
remedy of the Lender without notice. Guarantor expressly disclaims any reliance
on any course of dealing or usage of trade or oral representation of the Lender
including, without limitation, representations to make loans to Borrower or
enter into any other agreement with Borrower or Guarantor. No course of dealing
or other conduct, no oral agreement or representation made by the Lender or
usage of trade shall operate as a waiver of any right or remedy of the Lender.
No waiver or amendment of any right or remedy of the Lender or release by the
Lender shall be effective unless made specifically in writing by the Lender.
Each provision of this Guaranty shall be interpreted as consistent with existing
law and shall be deemed amended to the extent necessary to comply with any
conflicting law. If any provision nevertheless is held invalid, the other
provisions shall remain in effect. Xxxxxxxxx agrees that in any legal
proceeding, a copy of this Guaranty kept in the Lender's course of business
may
be admitted into evidence as an original. Captions are solely for convenience
and not part of the substance of this Guaranty. If this Guaranty is limited
pursuant to Paragraph 2 hereof, until the Obligations are indefeasibly paid
in
full, the Guaranteed Amount shall not be reduced in any manner whatsoever by
any
amounts which the Lender may realize before or after maturity of the Obligations
(by acceleration, demand or otherwise), as a result of payments made by or
on
behalf of Borrower or by or on behalf of any other person or entity other than
Guarantor primarily or secondarily liable for the Obligations or any part
thereof, or otherwise credited to Borrower or such person or entity, or as
a
result of the exercise of the Lender's rights with respect to any collateral
for
the Obligations or any part thereof. Payments made to the Lender by Guarantor
(other than, directly or indirectly, from collateral or other persons or
entities liable for any portion of the Obligations) after maturity of the
Obligations, by acceleration or otherwise, shall reduce the Guaranteed Amount.
10) Joint
and Several.
If there
is more than one Guarantor, each Guarantor jointly and severally guarantees
the
payment and performance in full of all obligations under this Guaranty and
the
term "Guarantor" means each as well as all of them. Xxxxxxxxx also agrees that
the Lender need not seek payment from any source other than the undersigned
Guarantor. This Guaranty is a primary obligation. Guarantor's obligations
hereunder are separate and independent of Borrowers', and a separate action
may
be brought against Guarantor whether or not action is brought or joined against
or with Borrower or any other party.
11) Notices.
Any
demand or notice hereunder or under any applicable law pertaining hereto shall
be in writing and duly given if delivered to Guarantor (at its address on the
Lender's records) or to the Lender (at the address on page one and separately
to
the Lender officer responsible for Borrowers' relationship with the Lender).
Such notice or demand shall be deemed sufficiently given for all purposes when
delivered (i) by personal delivery and shall be deemed effective when delivered,
or (ii) by mail or courier and shall be deemed effective three (3) business
days
after deposit in an official depository maintained by the United States Post
Office for the collection of mail or one (1) business day after delivery to
a
nationally recognized overnight courier service (e.g.,
Federal
Express). Notice by e-mail is not valid notice under this or any other agreement
between Guarantor and the Lender.
12) Governing
Law and Jurisdiction.
This
Guaranty has been delivered to and accepted by the Lender and will be deemed
to
be made in the State of New York. Unless provided otherwise under federal law,
this Guaranty will be interpreted in accordance with the laws of the State
of
New York excluding its conflict of laws rules. GUARANTOR
HEREBY IRREVOCABLY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR
FEDERAL COURT IN ANY JUDICIAL DISTRICT OR COUNTY IN THE STATE OF NEW YORK WHERE
MANUFACTURERS AND TRADERS TRUST COMPANY MAINTAINS A BRANCH AND CONSENTS THAT
THE
LENDER MAY EFFECT ANY SERVICE OF PROCESS IN THE MANNER AND AT GUARANTOR'S
ADDRESS SET FORTH ABOVE FOR PROVIDING NOTICE OR DEMAND; PROVIDED THAT NOTHING
CONTAINED IN THIS GUARANTY WILL PREVENT THE LENDER FROM BRINGING ANY ACTION,
ENFORCING ANY AWARD OR JUDGMENT OR EXERCISING ANY RIGHTS AGAINST GUARANTOR
INDIVIDUALLY, AGAINST ANY SECURITY OR AGAINST ANY PROPERTY OF GUARANTOR WITHIN
ANY OTHER COUNTY, STATE OR OTHER FOREIGN OR DOMESTIC
JURISDICTION.
Guarantor acknowledges and agrees that the venue provided above is the most
convenient forum for both the Lender and Guarantor. Guarantor hereby waives
any
objection to venue and any objection based on a more convenient forum in any
action instituted under this Guaranty.
13) Waiver
of Jury Trial. XXXXXXXXX AND THE LENDER HEREBY KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY GUARANTOR AND THE LENDER MAY
HAVE
IN ANY ACTION OR PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS
GUARANTY OR THE TRANSACTIONS RELATED HERETO. XXXXXXXXX REPRESENTS AND WARRANTS
THAT NO REPRESENTATIVE OR AGENT OF THE LENDER HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE LENDER WILL NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
THIS JURY TRIAL WAIVER. GUARANTOR ACKNOWLEDGES THAT THE LENDER HAS BEEN INDUCED
TO ENTER INTO THIS GUARANTY BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS
SECTION.
Acknowledgment.
Guarantor acknowledges that it has read and understands all the provisions
of
this Guaranty, including the Governing
Law, Jurisdiction
and
Waiver
of Jury Trial,
and has
been advised by counsel as necessary or appropriate.
| GUARANTOR: | ||
| PATIENT SAFETY TECHNOLOGIES, INC. | ||
| BY: | ||
3
|
NOTICE:
FOR PURPOSES OF THIS AGREEMENT
"OBLIGATIONS"
IS
NOT LIMITED TO PRESENTLY
EXISTING
INDEBTEDNESS, LIABILITIES
AND OBLIGATIONS.
|
Dated:
January __, 2006
|
4
ACKNOWLEDGMENT
| STATE OF | ) |
| : SS. | |
| COUNTY OF | ) |
On
the
____ day of January , in the year 2006, before me, the undersigned, a Notary
Public in and for said State, personally appeared ,
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 executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
|
Notary
Public
|
|
|
|
FOR
BANK USE
ONLY
|
|
| Authorization Confirmed: | |
|
Signature
|
|
5
