Exhibit 10.3
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GUARANTY
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THIS GUARANTY is made as of November 30, 2005, by POLYSTICK U.S.
CORPORATION, a New York corporation (the "Guarantor"), to and in favor of 000
XXXXXX XXXXXX CORPORATION, a New Jersey corporation ("Newark").
WHEREAS, the Guarantor is a significant stockholder of GSV, Inc., a
Delaware corporation ("GSV");
WHEREAS, pursuant to a Termination, Settlement and Release Agreement of
even date herewith (the "Settlement Agreement"), Newark and GSV have agreed to
settle certain claims in connection with the termination of the certain Lease
Agreement dated June 11, 1998 pertaining to the third floor of the building
located at 000-00 Xxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxxxx;
WHEREAS, pursuant to the Settlement Agreement, as of the date hereof, GSV
is delivering to Newark a two-year 7% promissory note in the principal amount of
$356,249.04 (the "Note"); and
WHEREAS, it is a condition precedent to the closing of the Settlement
Agreement that the Guarantor executes and delivers this Guaranty to Newark,
pursuant to which the Guarantor will guarantee to Newark and its successors and
assigns that all of GSV's obligations under the Note that may become due and
payable under the terms and conditions thereof will be promptly paid in full
when due.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the Guarantor, intending to be legally bound,
represents, warrants, covenants and agrees as follows:
1. Guaranty. (a) The Guarantor absolutely, irrevocably and unconditionally
hereby guarantees to Newark and its successors and assigns that all of GSV's
obligations under the Note (the "Obligations"), as such instrument may be
amended, modified or supplemented from time to time, will be paid promptly in
full when due. This Guaranty shall be a guaranty of payment and not of
collection, and the Guarantor hereby agrees that its obligations hereunder shall
be primary and unconditional, irrespective of any action to enforce the same or
any other circumstances that might otherwise constitute a legal or equitable
discharge to the Guarantor. Guarantor further agrees to pay Newark's expenses
(including attorney's fees) paid or incurred in endeavoring to enforce this
Guaranty or the Pledge Agreement hereinafter referenced, or the payment of the
Obligations.
(b) The Guarantor hereby (i) waives diligence, presentment, dishonor,
notice of dishonor, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of GSV, any right to receive notice of any
change, amendment, modification or supplementation to the Note, any right to
require demand for payment or a proceeding first against GSV, protest, notice
and all other demands or notices whatsoever, all rights to subrogation or to
demand any payment from GSV until the indefeasible payment in full of all the
Obligations, and (ii) covenants that this Guaranty will not be discharged except
by payment in full of the Obligations.
This Guaranty shall be enforceable without Newark having to proceed
first against GSV (any right to require Newark to take action against GSV being
hereby expressly waived) or against any security for the payment of the
Obligations.
This Guaranty shall be binding upon and enforceable against Guarantor
and the legal representatives, successors and assigns of Guarantor. The
liability of Guarantor hereunder is primary and unconditional.
This Guaranty shall be irrevocable, absolute and unconditional and shall
remain in full force and effect as to Guarantor until such time as all of the
Obligations shall have been paid and satisfied in full. No delay or failure on
the part of Newark in the exercise of any right or remedy shall operate as a
waiver thereof, and no single or partial exercise by Newark of any right or
remedy shall preclude other or further exercise thereof or the exercise of any
other right or remedy.
This Guaranty shall remain in full force and effect, and Guarantor
shall continue to be liable for the payment of the Obligations in accordance
with the original terms of the documents and instruments evidencing and securing
the same, notwithstanding the commencement of any bankruptcy, reorganization or
other debtor relief proceeding by or against GSV, and notwithstanding any
modification, discharge or extension of the Obligations, any modification or
amendment of any document or instrument evidencing or securing any of the
Obligations, or any stay of the exercise by Newark of any of its rights and
remedies against GSV with respect to any of the Obligations, which may be
effected in connection with any such proceeding, whether permanent or temporary,
and notwithstanding any assent thereto by Newark.
2. Certain Rights. Newark may at any time and from time to time without
the consent of the Guarantor, without incurring any responsibility to the
Guarantor and without impairing or releasing any of the obligations of the
Guarantor hereunder, upon or without any terms or conditions and in whole or in
part:
(a) renew, alter or change the interest rate, manner, time, place or
terms of payment or performance of any of the Obligations, or any liability
incurred directly or indirectly in respect thereof, whereupon the Guaranty
herein made shall apply to the Obligations as so changed, extended, renewed or
altered, provided that Newark provided the Guarantor a notice thereupon. In the
event that Newark failed to provide such notice to the Guarantor, the Guarantor
shall continue being liable to the Obligations before such renewal, alteration
or change was made;
(b) exercise or refrain from exercising any rights against GSV or any
other person (including the Guarantor) or otherwise act or refrain from acting
with regard to the Note, the Obligations or this Guaranty;
(c) settle or compromise any of the Obligations, any security thereof
or any liability (including any of those hereunder) incurred directly or
indirectly in respect thereof or hereof, and/or subordinate the payment of all
or any part thereof to the payment of any liability of GSV (whether or not then
due) to creditors of GSV other than Newark and the Guarantor.
3. Assignments. This Guaranty shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, assigns and
transferees. All obligations of the Guarantor hereunder shall be binding upon
its legal representative, successors and assigns.
4. Representations of Guarantor. The Guarantor represents, warrants and
agrees with Newark as follows: (a) the execution, delivery and performance by
the Guarantor of this Guaranty (i) are within the corporate powers of the
Guarantor, (ii) have been duly authorized by all requisite corporate action on
the part of the Guarantor, and (iii) will not violate any provisions of the
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Guarantor's Certificate of Incorporation (as amended), By-laws, any law now in
effect, any order of any court or other agency of government, or any agreement
or other instrument to which the Guarantor is a party or by which it or any of
its property is bound, or be in conflict with or result in a breach of, or
constitute (with or without the giving of notice or lapse of time, or both) a
default under any such agreement or other instrument; (b) the Guarantor has
received good, valuable and sufficient consideration for entering into and
performing this Guaranty; (c) the Guarantor accepts the full range of risk
encompassed within this Guaranty; and (d) the Guarantor is aware of the
financial and other terms of the Note and accepts the risk that GSV may not be
able to meet its obligations thereunder.
5. Modification of Guaranty. No amendment, modification, waiver or
discharge of this Guaranty or any provision hereof shall be valid or effective
unless (and only to the extent set forth) in writing and signed by the party
against whom enforcement is sought.
6. Remedies Cumulative, etc. No right, power or remedy conferred upon or
reserved to Newark is exclusive of any other right, power or remedy, but each
and every such right, power and remedy shall be cumulative and concurrent.
7. Severability. Wherever possible, each provision of this Guaranty shall
be interpreted in such manner as to be effective and valid under applicable law,
but if one or more of the provisions contained herein shall be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Guaranty.
8. Limitation. Notwithstanding anything to the contrary herein, the sole
recourse of Newark or any of its successors or assigns against the Guarantor
hereunder shall be limited to the exercise of its rights under that certain
Pledge Agreement of even date herewith (the "Pledge Agreement") made by the
Guarantor in favor of Newark, and neither Newark nor any of its successors or
assigns shall look for recourse to any other asset or property of the Guarantor
other than the collateral pledged to Newark under the Pledge Agreement for
satisfaction of any claim or cause of action it may have at law or in equity
against the Guarantor under this Guaranty.
9. Jurisdiction. The Guarantor and Newark each hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the State of New Jersey and the courts of the United States of America each
located in the State of New Jersey for any action, suit, or proceeding for the
interpretation or enforcement arising out of or relating to this Guaranty (and
agrees not to commence any litigation relating hereto except in these courts),
and further agrees that service of any process, summons, notice or document by
U.S. registered mail to its respective address set forth on the signature page
hereof shall be effective service of process for any such action, suit, or
proceeding for the interpretation or enforcement brought against it in any such
court.
10. Applicable Law. This Guaranty shall be construed in accordance with and
governed by the laws of the State of New Jersey without giving effect to the
choice or conflict of law principles thereof.
11. Notices. All notices, consents, requests, demands and other
communications herein shall be in writing and shall be deemed duly given to any
party or parties (a) upon delivery to the address of the party or parties as
specified below if delivered in person or any courier or if sent by certified or
registered mail (return receipt requested); or (b) upon dispatch if transmitted
by
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confirmed telecopy or other means of confirmed facsimile transmissions, in each
case as addressed as follows:
If to the Guarantor:
Polystick U.S. Corporation
c/o GSV, Inc.
000 Xxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attn.: Xx. Xxxx Xxxxx
Fax: (000) 000-0000
With a copy to:
Xxxxx & Xxxxxxx LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
If to Newark:
000 Xxxxxx Xxxxxx Corporation
00 Xxxxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attn.: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
With a copy to:
XxXxxxxx & English, LLP
Four Gateway Center
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000
Attn: Xxxxxx Xxxxxx, Esq.
Fax: (000) 000-0000
The parties hereto may designate such other address or facsimile number by
written notice in the aforesaid manner.
12. JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY LAW, GUARANTOR HEREBY
WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY ACTION BROUGHT ON THIS
GUARANTY.
13. Counterparts. This Guaranty may be executed with counterpart signature
pages or in several counterparts, each of which shall be an original, but all of
which together shall constitute one and the same agreement.
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In WITNESS WHEREOF, the undersigned Guarantor has caused this Guaranty to
be duly executed and delivered as of the date first written above.
POLYSTICK U.S. CORPORATION
By:/s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: President
Address: c/o GSV, Inc.
000 Xxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Agreed to and Accepted by:
000 XXXXXX XXXXXX CORPORATION
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: President
Address: 000-00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxxxx 00000
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