CORPORATE GUARANTY
For value
received, and with respect to any loans, advances, leases or financial
accommodations previously, now or hereafter made or granted by Xxxxx Xxxxxxxxxx, an
individual (the "Lender") to or for the account of Call Compliance, Inc., a New
York corporation (the "Debtor"), under that certain Promissory Note, dated of
even date herewith in the principal amount of $50,000, issued to the Lender by
the Debtor (the “Note,”), the undersigned (the "Guarantor") hereby guarantees
the prompt payment to Lender of all sums which may in any manner whatsoever be
presently due and owing and of all sums which shall in the future become in any
manner whatsoever due and owing to Lender from Debtor under the Note whether by
acceleration or otherwise; and under all other present and future agreements,
notes or documents with Lender or sold, transferred or assigned to
Lender.
Xxxxxxxxx
also agrees to the following:
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(a)
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that
the liability of Guarantor is DIRECT, ABSOLUTE AND UNCONDITIONAL and may
be enforced without (i) requiring Lender first to resort to any other
right, remedy or security or (ii) regard to the validity, regularity or
enforceability of any obligation or purported obligation of Debtor under
the Note or otherwise;
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(b)
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to
indemnify Lender and hold Lender harmless from and against all
obligations, demands and liabilities by whomsoever asserted and against
all losses in any way suffered or incurred by Xxxxxx as a result of or in
any way arising out of transactions with Debtor, whether under the
Agreements or otherwise;
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(c)
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that
this Guaranty shall not be impaired by any modification or extension of
the Note or any other agreement between Debtor and Lender, nor by any
modification or release of any of the obligations hereby guaranteed, nor
by any agreement or arrangement whatsoever with Debtor or anyone
else;
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(d)
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that
Guarantor shall be liable to Lender for all attorneys’ fees and costs
incurred by Lender by reason of this Guaranty or in connection with or
arising out of or in enforcing any rights granted Xxxxxx xxxxxxxxx or in
any respect relating to the Note;
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(e)
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that
Guarantor shall not have any right of subrogation, reimbursement or
indemnity whatsoever, nor any right of recourse to security for the debts
and obligations of Debtor to Lender, unless and until all of Debtor’s
obligations have been paid in full;
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(f)
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that
if Debtor or Guarantor shall 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 or against
Debtor or Guarantor, any and all obligations of Guarantor shall, at
Lender’s option, become immediately due and payable without
notice;
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(g)
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that
Xxxxxx’s books and records showing the account between Xxxxxx and Debtor
shall be admissible in any action or proceeding against Guarantor shall be
binding upon Guarantor for the purpose of establishing the items therein
set forth and shall constitute prima facie proof
thereof;
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(h)
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that
this Guaranty is, as to Guarantor, a continuing Guaranty which shall
remain effective until all obligations of Debtor to Lender shall be paid
in full;
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(i)
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that
nothing shall discharge or satisfy the liability of Guarantor except the
full payment and performance of all Debtor’s debts and obligations to
Lender;
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(j)
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that
any and all present and future debts and obligations of the Debtor to
Guarantor are hereby waived and postponed in favor of, and subordinated
to, the full payment and performance of all present and future debts and
obligations of Debtor to Lender;
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(k)
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Guarantor,
as security for its obligations hereunder, hereby assigns to Lender the
right to collect all debts and obligations of Debtor to
Guarantor;
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(l)
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that
all sums at anytime to the credit of Guarantor and any of the property of
Guarantor at any time in Xxxxxx’s possession may be held by Xxxxxx as
security for any and all obligations of Guarantor to Lender and to any of
Lender’s affiliated entities, no matter how or when arising;
and
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(m)
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that
Guarantor shall, under no circumstances whatsoever, assign any of its
obligations under this Guaranty.
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Guarantor
warrants and represents to, and covenants with, Lender that this Guaranty
contains Guarantor’s entire agreement with respect to Guarantor’s guarantee of
Debtor’s obligations under the Note. All prior agreements,
commitments, understandings, representations, warranties and negotiations in
connection herewith, if any, are hereby merged into this Guaranty, and no oral
representations shall in any manner whatsoever modify or explain any of the
terms and conditions of this Guaranty.
Guarantor
acknowledges that Guarantor has made an independent investigation of the
financial condition of Debtor and gives this Guaranty based on that
investigation and not upon any representations made by
Xxxxxx. Guarantor agrees that Xxxxxx shall have no obligation to
disclose to Guarantor any information acquired by Xxxxxx in the course of
Xxxxxx’s relationship with Xxxxxx. Guarantor agrees that any delay by
Xxxxxx in exercising any or all of Xxxxxx’s rights granted under this Guaranty,
or any other agreement to which Xxxxxx is subject with respect to the Note and
any transaction contemplated thereby, shall not operate as a waiver of those
rights.
Guarantor
covenants with Lender that Guarantor has the full legal right, power and
authority to execute this Guaranty; that the execution and delivery of this
Guaranty has been approved by all necessary parties; that none of Guarantor’s
obligations hereunder will result in any breach of any provision of any
agreement or instrument to which Guarantor is a party or by which Guarantor is
bound; and that any certification of Guarantor’s corporate (or other)
resolutions delivered to Lender in connection with this Guaranty shall remain in
full force and effect and Lender may continue to rely upon the same unless
Guarantor shall provide Lender with not less than ten (10) days prior written
notice to the contrary.
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GUARANTOR
WAIVES the following:
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(a)
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notice
of acceptance hereof;
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(b)
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THE
RIGHT TO A JURY TRIAL IN ANY ACTION
HEREUNDER;
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(c)
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presentment,
demand and protest of any instrument and notice
thereof;
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(d)
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notice
of default;
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(e)
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its
right to a reasonable disposition of any collateral repossessed from
Debtor;
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(f)
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the
benefit of any statute of limitations affecting Guarantor’s liability
under this Guaranty or the enforcement
hereof;
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(g)
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all
other notices or formalities to which Guarantor is or might be entitled
whether by law or otherwise;
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(h)
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all
rights of set-off;
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(i)
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and
any right it may have to assert, by way of counterclaim or affirmative
defense in any action to enforce Xxxxxx’s rights hereunder, any claim
whatsoever against Xxxxxx.
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Guarantor’s
obligations under this Guaranty shall include all amounts paid by or on behalf
of Debtor which may be recovered by any person or entity as a preference (as
that term is defined under Title 11 of the United States Code, fraudulent
transfer or conveyance or similar transfer and all of Lender’s costs and
expenses of the defense of any action for such recovery.
Guarantor
shall provide to Lender within five (5) days of written demand therefore, its
current financial statements (and federal income tax returns) satisfactory to
Lender as to form, preparation and content, on a review basis by Guarantor’s
certified public accountant, which financial statement shall be in comparative
form (except for the first year) for such fiscal year and at least two (2) prior
fiscal years. Each financial statement submitted by Guarantor to
Lender shall be accompanied by a certificate certifying: (i) that such financial
statement was prepared on a cash/receipts and disbursements/income tax basis
which reflects any and all liabilities whether or not paid and which fairly and
accurately presents the Guarantor’s financial condition and results of
operations for the period to which it pertains, and (ii) that no event of
default has occurred under this Agreement during the period to which such
financial statement pertains.
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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. Guarantor hereby agrees that all
actions or proceedings arising directly or indirectly, in connection with, out
of or related to this Guaranty may be litigated, in Xxxxxx’s sole discretion and
election, in courts in New York, and Guarantor hereby subjects itself and
consents to the jurisdiction and venue of the state courts located in the State
of New York, County of Nassau and federal courts of the Eastern District of the
State of New York as the exclusive jurisdiction in any action or proceeding
brought by Guarantor arising out of this Guaranty, and any documents or
agreements executed in connection therewith, and designates such courts as the
non-exclusive jurisdiction and the proper venue for any action brought against
Guarantor. The provisions of this paragraph are not exclusive insofar
as Lender is concerned and do not prohibit Lender from commencing any necessary
legal action or instituting any appropriate proceeding in any court of competent
jurisdiction or venue. Service of process may be effectuated upon the
undersigned and any guarantor by Xxxxxx serving any and all legal papers
necessary to institute such proceeding by mailing them certified mail, return
receipt requested, to the address identified by the undersigned below and by the
guarantor(s) on the instrument of guaranty and service shall be deemed completed
five (5) days after the same has been posted as aforesaid.
GUARANTOR HEREBY WAIVES ANY RIGHT
GUARANTOR MAY HAVE TO TRANSFER OR CHANGE THE VENUE OF ANY
LITIGATION. This Guaranty shall be binding upon the successors and
assigns of Guarantor and shall inure to the benefit of Xxxxxx’s successors and
assigns. If more than one person or entity shall execute this
Guaranty, as a Guarantor, the terms and conditions of this Guaranty shall apply
to each of them and the term Guarantor shall apply to each Guarantor executing
this Guaranty.
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This Guaranty shall apply in favor of
Lender and each of its affiliates, successors and assigns.
| COMPLIANCE SYSTEMS CORPORATION | ||||
| Witness: |
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| (GUARANTOR) |
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BY (signature): |
/s/
Xxxx Xxxxxxxxx
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| NAME: | Xxxx Xxxxxxxxx | |||
| DATE: | March 3, 2009 | |||
| TITLE: | President | |||
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ADDRESS:
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Xxxxx Xxxx
Xxxx
Xxxx, Xxx Xxxx 00000
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| TAX PAYER ID NO. | ||||
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