CAPITAL ONE, N.A.
GUARANTEE OF ALL LIABILITY
DATE: 10/30/08
________________________
In consideration of advances, loans, extensions of credit, renewals,
acquisition of notes and other instruments for payment of money and
any security documents relative thereto or conditional contracts of
sale, chattel, mortgages, leases and other lien or security instruments,
or an interest or participation therein, due to become due,
heretofore made to or for account of Scientific Industries, Inc.
or any one or more of them jointly and/or severally (each, any and all
of whom are hereinafter called "Borrower"), and/or now or hereafter to
be made directly or indirectly, to or for the account of or from
Borrower by Capital One, N.A., Melville, NY, (hereinafter called
"Bank") and/or the granting to or for account of Borrower such
extensions, forbearances, releases of collateral or other
relinquishments of legal rights, and/or extending any other
financial accommodations or benefit to Borrower, as Bank may deem
advisable, the undersigned (each, any and all of whom are hereinafter
called "Guarantor") hereby guarantees to Bank, its successors,
subsidiaries, endorses and assigns, the prompt and unconditional
payment of claims of every nature and description of Bank against
Borrower (including those arising out of or in any way connected
with warranties made by Borrower to Bank in connection with negotiable
or non-negotiable instruments deposited with, or purchased by, Bank)
and any and every obligation and liability of Borrower to Bank,
whether now existing or hereafter incurred, originally contracted
with Bank and/or with another or others and now or hereafter owing
to or acquired in any manner by Bank, whether contracted by Borrower
alone or jointly and/or severally with another or others, direct or
indirect, absolute or contingent, secured or not secured, matured or
not matured, "including but not limited to any and all sums, late
charges, disbursements, legal fees, and any deficiency upon
enforcement of collateral deposited, if any, in connection with all
of such obligations." (All of the foregoing are hereinafter referred
to as "Obligations").
Guarantor does hereby give to Bank a continuing lien for the amount
of the obligations and liabilities of Guarantor hereunder, as well as
for the payment of any and all other liabilities and obligations of
Guarantor to Bank and claims of every nature and description of Bank
against Guarantor, whether now existing or hereafter incurred,
originally contracted with Bank and/or with another or others and now
or hereafter owing to or acquired in any manner by Bank, whether
contracted by Guarantor alone or jointly and/or severally with another
or others, direct or indirect, absolute or contingent, secured or not
secured, mature or not matured(all of which are hereafter actually or
constructively called "Liabilities") upon any and all moneys,
securities and other property of Guarantor and the proceeds thereof,
now or hereafter actually or constructively held or received by or in
transit in any manner to Bank, its correspondents or agents whether for
safekeeping, custody, pledge, transmission , collection, or otherwise
or coming into possession of Bank in any way and also upon any and all
deposits (general or special) and credits of Guarantor with, and any
and all claims of Guarantee against, Bank at any time existing, hereby
authorizing Bank at any time or times, without prior notice, to apply
such deposits or credits. or any part thereof, to such liabilities and
in such amounts as Bank may select, although said Liabilities may be
contingent or unmatured, and whether the collateral security therefor
is deemed adequate or not. (All of the foregoing, together with any
property, now or hereafter pledged, assigned and transferred to and
deposited with bank or its agents by Guarantor to secure said
Liabilities, are hereafter collectively called "collateral security").
Guarantor consents that without the necessity for any additional
endorsement or guarantee of said Obligations or any reservation for
rights against Guarantor and without notice to or further assent by
Guarantor, the liability of Borrower or of any co-guarantor, or of
any other party for or upon any of said Obligations may, from time
to time, in whole or in part, be renewed, extended, modified,
prematured, compromised or released by Bank as it may deem advisable,
and that any collateral or liens for any of said Obligations may,
from time to time, in whole or in part, be exchanged, sold or
surrendered by bank, as it may deem advisable, all without impairing,
abridging, affecting, diminishing or releasing the liability of
Guarantor hereunder. Bank shall not be liable for failure to collect
or demand payment of, or protest or give any notice of nonpayment of,
said collateral security, or any part thereof, or for any delay in
so doing, nor shall Bank be under any obligation to take any action
whatever in regard to said collateral security or any part thereof.
Any and all stocks, bonds or other securities held by the Bank
hereunder may without notice and whether or not a default exists,
be registered and held in the name of Bank or its nominee; Bank
(whether or not such right of registration has been exercised and
whether or not default exists) or such nominee may, without
notice, exercise all voting and corporate rights, including any and
all rights of conversion, exchange, subscription or any other rights,
privileges, or options pertaining to such stocks, bonds or other
securities as if the absolute owner thereof, including, without
limitation, the right to exchange, at its discretion, any and all
of such stocks, bonds, or other securities for other stocks, bond,
securities or any other property upon the merger, consolidation,
reorganization, recapitalization or other readjustment of any
corporation issuing the same or upon the exercise by the issuing
corporation or Bank or any right, privilege or option pertaining
to such stocks, bonds or other securities, and in connection
therewith, to deposit and deliver any and all of such stocks,
bonds or other securities with any committee, depository, transfer
agent, registrant or other designated agency upon such terms and
conditions it may determine, all without liability except to
account for property actually received by it, but Bank shall have
no duty to exercise any of the aforesaid rights, privileges or
options and shall not be responsible for any failure to do so or
delay in so doing.
Bank may sell all or any part of the collateral security deposited
or pledged for said Liabilities, although said Liabilities may be
contingent or unmarred whenever in its absolute and unrestricted
discretion Bank considers such sale necessary for its protection.
Any such sale may be made in the manner hereinafter provided for
the sale of collateral security without prior demand for margin or
additional margins or for payment on account or notice of sale or
intention to sell or any other demands or notices whatsoever; the
making of any such demands or the giving of any such notices in any
one or more instances shall not constitute a waiver of the right of
Bank to sell said collateral security as herein provided without any
demand or notice whatsoever or of the right of, Bank to accelerate
the maturity of said Liabilities as herein provided.
If Guarantor shall fail to perform any agreement contained herein or
contained in any security document or other agreement delivered by
Guarantor to bank (and the opinion of Bank as to the existence of
such failure of performance shall be conclusive and binding upon
Guarantor), or if default occurs the punctual payment of any sum
payable upon any of said Obligations or said Liabilities or said
collateral security, or if Guarantor or Borrower or any obligor,
maker, endorser, accepts, surety or guarantor of, any other party
to, said Obligations or said Liabilities or said collateral security
(each and all of whom are included in the term "them" as hereinafter
used in this paragraph) shall default in respect of any liabilities
or obligations (present or future, absolute or contingent, secured
or unsecured, matured or unmatured, joint or several, original or
acquired) of any of them to Bank, or in the event any of them (being
an individual) shall die or (being a partnership or corporation)
shall be dissolved, or in the event of the death or suspension of
the usual business activities of any member of any partnership
included in the term "them" as hereinabove defined, or in the
event any of them shall become insolvent, (or if insolvency be
imminent or threatened in respect of any of them), shall commit
an act of bankruptcy, make an assignment for the benefit of
creditors, call a meeting of any creditor, appoint a committee of
any creditors, or a liquidation agent, offer to, or receive from,
any creditor a composition or extension of any of their
indebtedness, make or send notice of an intended, bulk sale,
pledge or mortgage any account receivable or other property
suspend payment , wholly or partly suspend make any
misrepresentation to Bank for the purpose of obtaining credit
or an extension of credit, or fail to pay any tax, or fail to
withhold or collect any tax or to account for any such withheld
or collateral tax, or fail to pay any obligation, whether in
writing or not, when due, or if any proceeding in bankruptcy, or
any proceeding, suit or action ( at law, in equity, or under any
of the provisions of the bankruptcy Act or amendments thereto)
for reorganization, composition, extension, arrangement, wage
earners plan, receivership, liquidation or dissolution shall be
begun by or against any of them, or in the event of the
application for the appointment, or the appointment in any
jurisdiction, at law or in equity, of any receiver, conservator,
rehabilitator or similar officer, or committee of, or of any of
the property of, any of them, or if a judgment shall be recovered
or a warrant of attachment or an injunction shall be issued
against, or against any of the property of any of them or in the
event any proceedings under Article 45 of the New York Civil
Practice Act or amendments thereto be commenced against any of
them, or if the condition or affairs (financial, business or
otherwise) of any of them shall so change as, in the opinion of
Bank, (whose opinion shall be conclusive in the matter) shall
impair its security or increase its credit risk, or if Bank
otherwise deems itself insecure, then, in any of these events,
the said Liabilities, although not yet due, shall without notice
or demand, forthwith become and be immediately due and payable,
notwithstanding any time or credit allowed under any of said
Liabilities or under any instrument evidencing the same.
Upon the happening of any of the events hereinabove set forth, Bank
without demand of performance, advertisement or notice of intention
to sell or of time or place of sale or to redeem, or other notice
or demand whatsoever to or upon Guarantor or any other person (all
and each of which demands, advertisements and/or notices are hereby
expressly waived), may forthwith collect, receive, appropriate and
realize upon said collateral security, or any part thereof, and/or
may forthwith sell, assign, give option or options to purchase, and
deliver said collateral security, or any part thereof, or any
property whatsoever of any kind to which it may be entitled as
collateral security for the said Liabilities, in one or more
parcels, at public or private sale or sales, at any exchange,
brokers' board or at any of Bank's offices or elsewhere, at such
prices as it may deem best, for cash, or on credit, or for future
delivery, without assumption of any credit risk, with the right
to bank upon any such sale or sales, public or private, to purchase
the whole or any part of said collateral security so sold, free
from any right or equity of redemption in Guarantor, which right
or equity is hereby expressly waived and released.
Bank may apply the net proceeds of any such collection, receipt,
appropriation, realization or sale, after deducting all costs and
expenses of every kind incurred therein or incidental to the care,
safekeeping or otherwise of said collateral security or in any way
relating to the rights of bank hereunder, including reasonable
counsel fees, to the payment in whole or in part in such order as
bank may elect, of one or more of said Liabilities, whether then
due or not due, absolute or contingent,making proper rebate for
interest or discount on items not then due and accounting for the
surplus, if any, to Guarantor, who shall remain liable to Bank
for the payment of any deficiency with legal interest.
Guarantor waives any and all notice of acceptance of this guarantee
or of the creation, renewal, extension or accrual of any said
Obligations, or of the reliance by bank upon this guarantee, Said
Obligations, and each of them; shall conclusively be presumed to
have been created, contracted or incurred in reliance upon this
guarantee and all dealings between Borrower and bank shall likewise
conclusively be presumed to have been had or consummated in reliance
upon this guarantee. Guarantor waives protest, demand for payment,
notice of default or nonpayment to or on Guarantor, Borrower or any
other party liable for said Obligations or Liabilities. This
guarantee shall be construed as a continue, absolute and unconditional
guarantee of payment, without regard to the validity, regularity or
enforceability of any of said Obligations or proposed Obligations.
This guarantee may be terminated, but only as to new Obligations of
Xxxxxxxx subsequently incurred, only by written notice thereof
actually received by Bank at its office where the account of Borrower
is then maintained. In the event of such termination (whether by
such notice, by operation of law or otherwise) Guarantor and his, its
or their respective successors, executors, administrators and assigns
shall nevertheless remain liable with respect to Obligations of
Borrower created or arising theretofore, and with respect to such
Obligations and any renewals, extensions, or other liabilities
arising out of same, this guarantee shall continue in full force
and effect and Bank shall have all the rights herein provided for
as if no such termination had occurred. Any payment on account of
or reacknowledgment of the Obligations by Borrower or any other party
liable therefore, shall be deemed to be made in behalf of Guarantor
and shall serve to start the statuary period of limitations
applicable to the Obligations and Liabilities of Guarantor hereunder.
Any notice to, or demand on, Guarantor elected to be given or made
by Bank shall be deemed effective, if not first otherwise made or
given, when forwarded by mail, telegraph, cable, radio, telephone
or otherwise to the last address or phone number of Guarantor
appearing on the books of Bank with the same fact as if the same was
actually delivered in, and received by, Guarantor in person. All
rights and remedies of Bank thereunder shall be cumulative and may
be exercised singly or concurrently. Guarantor hereby waives the
benefit of any homestead or other exemptions in respect of said
Liabilities. This guarantee shall, without further reference, pass
to, and may be relied upon and enforced by, any successor or
assignee of Bank, and any transferee or subsequent holder of any
said obligations.
The term "Bank" as used throughout this instrument, shall be
deemed to be Capital One, N.A., Melville, NY. The term "Borrower",
as used throughout this instrument, shall include the individual
or individuals, association, partnership or corporation named
herein as Borrower and (a) any successor, individual or individuals,
association, partnership or corporation to which all or substantially
all of the business or assets of said Borrower shall have been
transferred, (b) in the case of a partnership Borrower, any new
partner or partners therein of the dissolution of the existing
partnership by the death, resignation, or other withdrawal of any
partner, and (c) in the case of a corporate Borrower, any other
corporation into or which said Borrower shall have been merged,
consolidated, reorganized, or absorbed.
Xxxxxxxxx agrees that if an attorney, is used, from time to time,
to enforce any of the rights herein granted to the Bank or to
obtain payment of said Liabilities at maturity (expressed or
declared) whether by suit or by any other means whatsoever, a
reasonable attorney fee shall be added thereto and payable by each
guarantor against whom this guarantee or any litigation or right
hereunder is sought to be enforced, declared or adjudicated.
Guarantor waives a trail by jury and the right to interpose counter
claims or set-off of any kind and description in any litigation.
(whether or not arising out of or relating to said Obligation or
said Litigation or the matters contained in this instrument). Bank
shall not by any act, delay, omission or otherwise be deemed to
have waived any of its rights or remedies hereunder and no waiver
shall be valid unless in writing, signed by Bank, and then only to
the extent therein set forth. The waiver by Bank of any right or
remedy hereunder on any one occasion shall not be construed as a
bar to any right or remedy which Bank would otherwise have had on
any future occasion. No executory agreement shall be effective to
change or modify or to discharge in whole or in part this guarantee
unless such executory agreement is in writing and signed by Bank.
Guarantor, if more than one, shall be jointly and severally bound
and liable hereunder and if any of the undersigned is a partnership,
each member thereof shall be severally bound and liable hereunder.
This agreement shall be construed in accordance with the laws of
the State of New York.
IN WITNESS WHEREOF, each of the undersigned has hereunto set his
hand and his seal the day and year first above written, intending
and declaring this to be a duly sealed instrument.
Scientific Packaging Industries, Inc.
/s/ Xxxxxx X. Xxxxxx
BY:______________________________________
STATE OF NY :)
COUNTY OF SUFFOLK:)
On this 30 day of October, 2008, before me, the undersigned, a
Notary Public in and for said State, personally appeared XXXXXX XXXXXX,
personally known to me or proved to me on the basis of satisfactory
evidence to be the individual(s) whose name(s) is (are) subscribed to
the within instrument and acknowledged to me that he/she/they executed
the same in his/her/their capacity (ies), and that by his/her/their
signature(s) on the instrument, the individual(c), or the person upon
behalf of which the individual(s) acted, executed the instrument.
XXXXXX X. XXXXX
_________________
Notary Public
