Exhibit 10.5
NORTH FORK BANK Date: September 27, 2004
000 Xxxxx Xxxxxx Xx Xxxxxxxx(x): ROBOCOM SYSTEMS INTERNATIONAL INC.
Xxxxxxxx, Xxx Xxxx 00000 Guarantor(s): XXXXXXX XXXXXXX
PERSONAL GUARANTY OF ALL LIABILITY
In this Guaranty the words, I, me, my and mine mean each and all of us who
signed it and our successors and assigns. The words you and yours mean NORTH
FORK BANK, and its successors, subsidiaries, endorsees and assigns.
GUARANTY: I hereby guaranty to you the prompt and unconditional payment of
claims of every nature you have against
ROBOCOM SYSTEMS INTERNATIONAL INC.
(each and all of whom are called "Borrower") and every obligation and liability
of Borrower to you, which will be called "Obligations." Obligations means all
items described below.
OBLIGATIONS: Obligations means all amounts due to you of any nature, whether
they already exist, are incurred at this time, or are incurred in the future,
whether they are direct or indirect, whether they are absolute or contingent,
whether they are secured or unsecured, whether they are matured or unmatured,
whether they were incurred by the Borrower alone or jointly and/or severally
with others, whether they were originally contracted with you and /or other(s)
and now or later owing to you, whether or not they are represented by purchase
or repurchase agreements. Obligations include, but are not limited to, all sums
just described, late charges, disbursements, legal fees, and any amount still
due after you take any existing collateral.
CONSIDERATION: I give this Guaranty to you in return for your doing and having
done the following for Borrower: making loans, advances, extensions, renewal,
acquiring notes and security documents and extending and other financial
accommodation.
LIEN FOR LIABILITY OF GUARANTOR: I give to you a continuing lien for the amount
of all of my obligations and liabilities to you upon any and all of my property
including deposits and credits now or later held by you. My obligations and
liabilities to you, which will be called "Liabilities", mean all amount due to
you from me of any nature, including but not limited to amounts due under this
Guaranty whether they already exist, are incurred at this time, or are incurred
in the future, whether they are direct or indirect, whether they are absolute or
contingent, whether they are secured or unsecured, whether they are matured or
unmatured, whether they were incurred by me alone or jointly or severally with
others or whether they were originally contracted with you and/or others and are
now or later owing to you. Property held by you means all property which is in
your possession, whether held now or coming into your possession latter, or
whether received by you for safekeeping, custody, pledge, transmission,
collection or otherwise. I authorize you to apply any such property, deposits or
credits at any time without notice to my Liabilities to you, regardless of
whether security is held for such Liabilities. All property held by you is
called "Collateral Security".
BANK'S RIGHTS WITH RESPECT TO COLLATERAL SECURITY: You may do any of the
following without notice to me and I will continue to be fully liable under this
Guaranty which will remain in full force and effect:
(a) Renew, extend, modify, accelerate, compromise or release any of the
obligations or liabilities of Borrower or any co-guarantor or any other party
for or on any of the Obligations, Liabilities or Collateral Security in whole or
in part at any time or times;
(b) Exchange, sell, surrender, substitute, liquidate or release any or all
collateral or liens for any Obligations;
(c) Exchange, release, substitute or delay or fail to take action with respect
to any Collateral Security, including but not limited to collect, demand payment
of, protest or give notice of non-payment or comply with legal requirements with
respect to establishing or maintaining the validity or priority of liens;
(d) Register in your name or the name of your nominee any stocks, bonds or
securities held by you whether or not any default exists. You may exercise
without limitation all voting and corporate rights with respect to stocks, bonds
and securities whether or not you have registered them in your name and whether
or not default exists. These rights include, but are not limited to conversion,
exchange and subscription. You may file a proof of claim for the full amount of
any collateral security and rate the claim as you deem proper. Your liability
shall be only to account for property actually received by you. You shall have
no duty to exercise any of these rights and will not be responsible for any
failure to do so or delay in so doing;
(e) Sell all or any part of the Collateral Security deposited, pledged or held
by you for the Liabilities whether the Liabilities are absolute or contingent or
matured or unmatured whenever in your absolute and unrestricted discretion you
consider such sale necessary for your protection. You may sell in the manner
described below without notice or demand to me of any kind, including but not
limited to demands for additional Collateral Security or payment on account and
Notice of Sale or intention to sell. If you do give such Notice or Demand at any
time or times, this will not be considered a waiver of your right to sell
without Notice or Demand or of your right to accelerate the maturity of the
Liabilities.
DEFAULT AND ACCELERATION: My Liabilities shall become immediately due and
payable notwithstanding any inconsistent provision in any other document upon
the happening of any of the following:
(a) My failure to perform any agreement contained in this Guaranty or any other
agreement delivered by me to you. Your determination of the occurrence of any
failure shall be binding on me;
(b) Default in the prompt payment of any amount due upon any Obligation,
Liability, or Collateral Security;
(c) My death or the death of any co-guarantor or Borrower, if individuals, or my
dissolution or a change in my composition, if a partnership, or a dissolution,
merger or consolidation, if a corporation, or my inability to manage my affairs
or the appointment of a representative of any kind for me or my property;
(d) My seeking relief under any State or Federal Law affording relief to
debtors, including, but not limited to, Title 11 of the United States Code and
the New York State Debtor and Creditor Law, or the seeking of any such relief by
creditors against me;
(e) My making a bulk transfer of my property or liquidation my business;
(f) My failure to supply financial information upon request or to permit
examination of my books and records upon request or to supply any document
requested by you in connection with this Guaranty;
(g) Any representation made by me to you is false in any material respect;
(h) My failure to pay or withhold any tax(es) when due;
(i) The entry of any judgment or order of attachment against me or any of my
property;
(j) The occurrence of any other event or a material adverse change in my
financial affairs or condition which causes you to deem yourself insecure;
(k) Granting a security interest in any of my property;
(l) My failure to comply with Regulation U of the Federal Reserve Board as now
existing or as amended;
(m) The occurrence of any of the above events with respect to any Guarantor, the
Borrower or any party to the Obligations, Liabilities or Collateral Security.
All of the above shall be "events of default".
REMEDIES IN EVENT OF DEFAULT: If an event of default occurs, you may do any or
all of the following without notice or demand in addition to declaring my
Liabilities immediately due:
(a) Collect, receive and realize upon the Collateral Security by any means you
deem advisable, including but not limited to, public or private sales;
(b) Apply the net proceeds realized from Collateral Security to the payment in
whole or in part of any of my Liabilities you choose. I will remain liable for
any deficiency remaining after the application. "Net proceeds"
means the net amount realized after payment of all costs, disbursements and
expenses incurred with respect to the Collateral Security including reasonable
attorney's fee due to you;
(c) Exercise all rights and remedies of a secured creditor under the Uniform
Commercial Code;
WAIVER OF NOTICE: I waive notice of the following:
(a) Acceptance of this Guaranty and of the creation, renewal, extension of
accrual of any Obligation. All Obligations shall conclusively be presumed to
have been created and all transactions between Borrower and you shall
conclusively be presumed to have occurred in reliance on this Guaranty;
(b) Protest, demand for payment, notice of default and non-payment to any
Guarantor or Borrower or any other party responsible for the Obligations or
Liabilities.
NATURE OF GUARANTY: This Guaranty is an absolute, continuing and unconditioned
guaranty of payment. It is not dependent on any other writing or fact, including
but not limited to the validity, regularity or enforceability of any of the
Obligations or purported Obligations, the taking or failure to take a security
interest in any property, the bankruptcy of Borrower or any other Guarantor, or
the termination of any other guaranty. You do not have to take any action
against Borrower or any other guarantor or any security for the Obligations
before seeking payment from me. I will remain liable hereunder despite the
occurrence or non-occurrence of any event which would in the absence of this
provision be deemed an equitable or legal discharge of a guarantor. This
Guaranty may be terminated by written notice actually delivered to and received
by you at your office at 000 Xxxxx Xxxxxx Xx., Xxxxxxxx, Xxx Xxxx 00000, but
only as to new Obligations of Borrower subsequently incurred. Termination shall
be effective upon execution and delivery to me of written receipt for the
notice. In the event of termination, I will remain liable for Obligations of
Borrower created or arising before termination and all renewals, extensions,
refinancings and other Liabilities arising out of same and this Guaranty shall
continue in full force and effect with respect to same. All payments made on
account of or re-acknowledgment of the Obligations of Borrower, or any other
party liable therefore, including but not limited to me, shall be deemed made on
my behalf and shall start anew the running of the applicable statute of
limitations. The execution and delivery of this Guaranty shall not terminate any
other prior guaranties.
MISCELLANEOUS: All notices to or demands on me which you choose to make shall be
deemed effective when forwarded by mail, telegraph, telephone, cable radio or
otherwise to my last address or telephone number appearing on your books, if not
otherwise sooner given, and shall have the same effect as of notice was actually
delivered to and received by me in person. All of your rights and remedies under
this Guaranty are cumulative; you may exercise them singly or at the same time.
I waive the benefit of any homestead or other exemption to the extent permitted
by law. This Guaranty shall pass to and may be relied upon and enforced by any
of your successors or assignees and anyone who later holds any of the
Obligations. The term" Borrower" shall include (a) the Borrower listed above,
(b) all successors and entitles to which substantially all of the business and
assets of Borrower have been transferred, (c) in the case of a partnership, any
new partnerships created by admission of a new partner(s) or by dissolution by
death, resignation or withdrawal and (d) in the case of a corporation, any
corporation into or with which Borrower has merged, consolidated, reorganized or
absorbed. If you employ an attorney to enforce any of your rights under this
Guaranty or to obtain payment under this Guaranty, whether by lawsuit or
otherwise, I agree to pay a reasonable attorney fees. I waive trial by jury and
the right to interpose counterclaims of all types in any action by you against
me, although I may raise these claims in a separate lawsuit. You shall not be
deemed to have waived any right or remedy and delay, act, or omission. All
waivers by you must be in writing and signed by you and shall relate only to the
matters set forth therein. No waiver by you or any occasion shall act as a
waiver with respect to any future occasion. This Guaranty contains the
understanding between you and me. All changes must be in a signed writing. No
executory agreement shall be effective to change or modify or to discharge this
Guaranty. If more than one person signs this or any other Guaranty, each is
jointly and severally liable; if a partnership, each partner is bound jointly
and severally. I am jointly and severally liable with any other guarantor or
obligor of the obligation. If any portion of this Guaranty is unenforceable, the
remainder shall continue to be valid. This Guaranty shall be construed in
accordance with the laws of the State of New York (without regard to its
conflicts of laws rules) and I agree that service of process of certified mail,
return receipt requested, to my last address appearing on your books will be
sufficient to confer personal liability on me.
RETAIL INSTALLMENT CONTRACT: If this Guaranty covers Obligations including a
Retail Installment Contract as defined by New York State Personal Property Law
xx.xx. 313, 420, then the following applies:
Identity of Contract:
________________________________________________________________________________
Time Balance: (Total of Payments) $
________________________________________________________________________________
CLAIMS AND REPAYMENT: If a claim is ever made against you and you repay to any
person amounts received by you on account of any Obligation, Liability or
Collateral Security, by reason of any judgment, settlement, or other
disposition, regardless of whether this Guaranty has been terminated or whether
any Obligation has been cancelled, I will be liable to you for all such amounts
as if they had never been paid to you. Notwithstanding anything to the contrary
in this guaranty, I hereby irrevocably waive all rights I may have at law or
equity (including without limit, any law subrogating me to your rights) to seek
contribution, indemnification, or any other form of reimbursement from the
Borrower, any other guarantor, or any other person now or hereafter primarily or
secondarily liable for any obligations of the Borrower to you, for any payment
or disbursement made by me under or in connection with this guaranty or
otherwise.
IN WITNESS WHEREOF, I have executed this document as of the date indicated
above:
Signature: /s/ Xxxxxxx Xxxxxxx
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XXXXXXX XXXXXXX SS#: ###-##-####
Address: 00 XXXXXXXX XXXXX, XXXXXXXXX, XXX XXXX 00000
STATE OF )
) SS.:
COUNTY OF )
On this day of , 2004, before me, the undersigned, a Notary Public
in and for said State, personally appeared XXXXXXX XXXXXXX , 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.
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Notary Public
