Date November 11, 1997
To: THE CIT GROUP/COMMERCIAL SERVICES, INC.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
GUARANTY
Re: GIRGENTI, XXXXXX, XXXXXX & XxXXXXXX, INC.
(the "Client")
000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Gentlemen:
Reference is made to certain factoring or financing agreements or
arrangements (herein the "Agreements") between you and the above-named Client.
Each of the undersigned hereby unconditionally jointly and severally guarantees
and agrees to be liable for the full and indefeasible payment and performance
when due of all now existing and future indebtedness, obligations or liabilities
of the Client to you, whether direct or indirect, absolute or contingent,
secured or unsecured, arising under the Agreements as now written or as amended
or supplemented hereafter. Further, each of the undersigned agrees to pay to you
on demand the amount of all expenses (including reasonable attorney's fees)
incurred by you in collecting or attempting to collect any of the Client's
obligations to you, whether from the Client, or from any other obligor, or from
the undersigned, or in realizing upon any collateral; and agrees to pay any
interest at the highest lawful rate on all amounts payable to you hereunder,
even if such amount cannot be collected from the Client. (All of the
aforementioned obligations, liabilities, expenses and interest are hereinafter
collectively called the "Obligations"). To the extent you receive payment on
account of the Obligations guaranteed hereby, which payment is thereafter set
aside or required to be repaid by you in whole or in part, then, to the extent
of any sum not finally retained by you (regardless of whether such sum is
recovered from you by the Client, its trustee, or any other party acting for, on
behalf of or through the Client or its representative), the undersigned's
obligation to you under this Guaranty, as amended, modified or supplemented,
shall remain in full force and effect (or be reinstated) until the undersigned
have made payment to you therefor, which payment shall be due upon demand.
This Guaranty is executed as an inducement to you to make loans or advances
to the Client or otherwise to extend credit or financial accommodations to the
Client, or to enter into or continue a factoring or financing arrangement with
the Client, and is executed in consideration of your doing or having done any of
the foregoing. Each of the undersigned agrees that any of the foregoing shall be
done or extended by you in your sole discretion, and shall be deemed to have
been done or extended by you in consideration of and in reliance upon the
execution of this Guaranty, but that nothing herein shall obligate you to do any
of the foregoing.
Notice of acceptance of this Guaranty, the making of loans or advances, or
the extension of credit to the Client, the purchase or acquisition of
receivables from the Client, the amendment, execution or termination of any of
the Agreements or any other agreements between you and the Client, and
presentment, demand, protest, notice of protest, notice of non-payment and all
other notices to which the Client or the undersigned may be entitled, and your
reliance on this Guaranty are hereby waived. The undersigned also waive notice
of: changes in terms or extensions of time of payment, the taking and releasing
of collateral or guarantees (including the release of any of the undersigned)
and the settlement, compromise or release of any Obligations, and agree that, as
to each of the undersigned, the amount of the Obligations shall not be
diminished by any of the foregoing. The undersigned also agree that you need not
attempt to collect any Obligations from the Client or other obligors or to
realize upon any collateral, but may require the undersigned to make immediate
payment of Obligations to you when due or at any time thereafter. You shall not
be liable for failure to collect Obligations or to realize upon any collateral
or security therefor, or any part thereof, or for any delay in so doing, nor
shall you be under any obligation to take any action whatsoever with regard
thereto.
-2-
This Guaranty is absolute, unconditional and continuing, regardless of the
validity, regularity or enforceability of any of the Obligations or the fact
that a security interest or lien in any collateral or security therefor may not
be enforceable by you or may otherwise be subject to equities or defenses or
prior claims in favor of others or may be invalid or defective in any way and
for any reason, including any action, or failure to act, on your part. The
liability of the undersigned under this Guaranty shall be unaffected by the
death of any of the undersigned. Payment by the undersigned shall be made to you
at your office from time to time on demand as Obligations become due, and one or
more successive or concurrent actions may be brought hereon against the
undersigned (or any one or more of them) either in the same action in which the
Client is sued or in separate actions. In the event any claim or action, or
action on any judgment, based on this Guaranty, is made or brought against the
undersigned, the undersigned agree not to assert against you any set-off or
counterclaim which the Client may have, and further the undersigned agree not to
deduct, set-off, or seek to counterclaim for or recoup, any amounts which are or
may be owed by you to the undersigned, or for any loss of contribution from any
other guarantor. Furthermore, in any litigation based on the Guaranty in which
you and any of the undersigned shall be adverse parties, the undersigned hereby
waive the right to interpose any defense based upon any Statute of Limitations
or any claim of laches and waive the performance of each and every condition
precedent to which the undersigned might otherwise be entitled by law. Each of
the undersigned hereby consent to the in personam jurisdiction of the courts of
New York State. In the event that you bring any action or suit in any court of
record of New York State or the Federal Government to enforce any or all
liabilities of the undersigned hereunder, service of process may be made on the
undersigned by mailing a copy of the summons to the undersigned at the address
below set forth.
All sums at any time to the credit of the undersigned and any property
of the undersigned on which you at any time have a lien or security interest, or
of which you at any time have possession, shall secure payment and performance
of all Obligations and any and all other obligations of the undersigned to you
however arising. The undersigned shall have no right of subrogation,
indemnification or recourse to any Obligations or collateral or guarantees
therefor, or to any assets of the Client.
In the event of any breach of, default under or termination of any of the
Agreements between you and the Client, or in the event that the undersigned
shall fail to observe or perform any agreements, warranties, or covenants
contained herein, or should any of the undersigned dissolve or cease its
business, call a meeting of its creditors, fail to meet its debts as they
mature, commit an act of bankruptcy, have commenced by or against the
undersigned any bankruptcy, insolvency, arrangement, reorganization,
receivership or similar proceeding under any federal or state law, then the
liability of all of the undersigned for the entire Obligations shall mature even
if the liability of the Client therefor does not.
This Guaranty will terminate at such time as the Obligations have been paid
in full.
Your books and records showing the account between you and the Client shall
be admissible in evidence in any action or proceeding as prima facie proof of
the items therein set forth. Your monthly statements rendered to the Client
shall be binding upon the undersigned (whether or not the undersigned received
copies thereof) and, shall constitute an account stated between you and the
Client, unless you shall have received a written statement of the Client's
exceptions within thirty (30) days after the statement was mailed to the Client.
This Guaranty embodies the whole agreement of the parties and may not be
modified except in writing, and no course of dealing between you and any of the
undersigned shall be effective to change or modify this Guaranty. Your failure
to exercise any right hereunder shall not be construed as a waiver of the right
to exercise the same or any other right at any other time and from time to time
thereafter, and such rights shall be considered as cumulative rather than
alternative. No knowledge of any breach or other nonobservance by any of the
undersigned of the terms and provisions of this Guaranty shall constitute a
waiver thereof, nor a waiver of any obligations to be performed by the
undersigned hereunder.
This instrument is executed and given in addition to, and not in
substitution, reduction, replacement or satisfaction of any other endorsements
or guarantees of the Obligations, now existing or hereafter executed, by any or
all of the undersigned, or others in your favor.
When used in this agreement all pronouns shall, wherever applicable, be
deemed to include the plural as well as the masculine and feminine gender. This
agreement shall inure to the benefit of you, your successors and assigns and any
parent, subsidiary or affiliate of yours, as well as to any
-3-
concern which you may now or hereafter factor or finance; shall be binding
jointly and severally upon the undersigned and upon the respective heirs,
executors, administrators, successors and assigns of each of the undersigned;
and shall pertain to the Client and its successors and assigns. This Guaranty
may be executed in any number of counterparts, each of which when so executed
shall be deemed an original and such counterparts shall, together, constitute
but one and the same document.
To the extent permitted by applicable law, we each hereby waive any right
to a trial by jury in any action or proceeding arising directly or indirectly
out of this Guaranty, or any other agreement or transaction between us or to
which we are both parties.
This Guaranty shall be governed by and construed in accordance with the
laws of the State of New York.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Guaranty effective as of the date above set forth.
BLACK CAT GRAPHICS, INC.
By /s/ XXXXXX XXXXXXX
---------------------------------
Name: XXXXXX XXXXXXX
Title: VP OF FINANCE
MEDICAL EDUCATION TECHNOLOGIES, INC.
By /s/ XXXXXX XXXXXXX
---------------------------------
Name: XXXXXX XXXXXXX
Title: VP OF FINANCE
SYBERACTIVE, INC.
By /s/ XXXXXX XXXXXXX
---------------------------------
Name: XXXXXX XXXXXXX
Title: VP OF FINANCE
BRAND RESEARCH CORPORATION
By /s/ XXXXXX XXXXXXX
---------------------------------
Name: XXXXXX XXXXXXX
Title: VP OF FINANCE
HEALTHWORLD CORPORATION
By /s/ XXXXXX XXXXXXX
---------------------------------
Name: XXXXXX XXXXXXX
Title: VP OF FINANCE
Each of the undersigned are located at:
000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
