99.2
FORM OF GUARANTY
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GENERAL GUARANTEE
(Corporation)
Hauppauge, New York March 21, 2005
FOR VALUE RECEIVED, and in consideration of loans made or to be made or
credit otherwise extended or to be extended by CITIBANK, N.A. (the "Bank") to or
for the account of each of the entities set forth in Schedule A hereto
(collectively, the "Borrower") from time to time and at any time and for other
good and valuable consideration and to induce the Bank, in its discretion, to
make or commit to make such loans or extensions of credit, including, but not
limited to, the Loans, as defined in the Loan Agreement (the "Extensions of
Credit"), and to make or grant such renewals, extensions, releases of collateral
or relinquishments of legal rights as to the Bank may seem advisable, [ENTITY
NAME]., a New York corporation with its principal place of business at 50 Marcus
Blvd., Hauppauge, New York 11788 (hereinafter referred to as the "Guarantor"),
absolutely and unconditionally guarantees to the Bank, its successors, endorsees
and assigns, the prompt and complete payment when due, whether by acceleration
or otherwise, of all present or future obligations and liabilities of any and
all kinds of the Borrower to the Bank and of all instruments of any nature
evidencing or relating to any such obligations and liabilities upon which the
Borrower or one or more parties and the Borrower is or may become liable to the
Bank, whether incurred by the Borrower as maker, indorser, drawer, acceptor,
guarantor, accommodation party, counterparty, purchaser, seller or otherwise,
and whether due or to become due, secured or unsecured, absolute or contingent,
joint and/or several, and howsoever or whenever acquired by the Bank and whether
incurred pursuant to or in connection with that certain Loan Agreement dated as
of March 21, 2005 among the Bank, the Borrower, the Guarantor and others (as may
be amended from time to time, the "Loan Agreement") (all of which are herein
collectively referred to as the "Obligations"), whether due or to become due,
and irrespective of the genuineness, validity, regularity, discharge, release or
enforceability of such Obligations, or of any instrument evidencing any of the
Obligations or of any collateral therefor or of the existence or extent of such
collateral or of the obligation of the Guarantor under this Guaranty. The
Obligations shall include interest accruing thereon before or after the
commencement of any insolvency, bankruptcy or reorganization proceeding in
respect of the Borrower or any other guarantor of the Obligations whether or not
such interest is an allowable claim in any such proceeding and irrespective of
the discharge or release of the Borrower or any other guarantor in such
proceeding. Capitalized terms used herein without definition shall have the
meanings given such terms in the Loan Agreement.
1. The Guarantor hereby agrees that the Bank may at any time and from time
to time, either before or after the maturity thereof, without notice to or
reservation of rights against or further consent of the Guarantor (i) extend the
time of payment of, change the amount of, exchange, release, substitute or
surrender any collateral for, renew or extend any of the Obligations or increase
the interest rate thereon, or (ii) make any agreement with the Borrower or with
any other guarantor of the Obligations or any other party to or person liable on
any of the Obligations, or interested therein, or with any hypothecator of
collateral for the Obligations, for the extension, renewal, payment, compromise,
discharge or release thereof, in whole or in part, or for any modification of
the terms thereof or of any agreement between the Bank and the Borrower or any
such other party or person. The Guarantor agrees that this Guaranty shall not be
impaired or otherwise affected by any failure to call for, take, hold, protect
or perfect, continue the perfection of or enforce any security interest in or
other lien upon, any collateral for the Obligations, or by any failure to
exercise, delay in the exercising or waiver of, or forebearance with respect to,
any right or remedy available to the Bank with respect to the Obligations. Any
of the foregoing shall not in any way impair or affect this Guaranty or the
obligation of the Guarantor hereunder.
2. The Guarantor hereby acknowledges that it has derived or expects to
derive a financial or other benefit from each and every Obligation incurred by
the Borrower to the Bank reasonably equivalent to the obligation of the
Guarantor hereunder.
3. The Guarantor waives notice of the acceptance of this Guaranty and of
the making of any such loans or extensions of credit or the incurrence of any
Obligation, presentment to or demand of payment from anyone whomsoever liable
upon any of the Obligations, protest, notice of presentment, non-payment or
protest and notice of any sale or other disposition of collateral security or
any default of any sort.
4. To secure the liabilities of the Guarantor under this Guaranty, the
Guarantor hereby grants to the Bank a security interest in and a lien upon all
personal property of the Guarantor or in which the Guarantor may have an
interest which is now or may at any time hereafter come into the possession or
control of the Bank, (including property held by the Bank in a fiduciary
capacity) or of any third party acting on their behalf (the "Collateral"),
whether for the express purpose of being used by the Bank as collateral security
or for safekeeping or for any other or different purpose, including such
personal property as may be in transit by mail or carrier for any purpose or
covered or affected by any documents in the Bank's possession or control, or in
the possession or control of any third party acting on behalf of the Bank, or
any collateral which secures any other obligations of the Guarantor to the Bank.
The Guarantor hereby authorizes the Bank in its discretion, at any time after an
occurrence of an event of default under any document, instrument or agreement
between the Borrower and the Bank, to appropriate and apply upon any of their
liabilities of the Guarantor under this Guaranty any such property of the
Guarantor and to charge any of such liabilities against any balance of any
account standing to the credit of the Guarantor on the books of the Bank. To
satisfy the liabilities of the Guarantor under this Guaranty, the Bank shall
have, in addition to all other rights and remedies allowed by law, the rights
and remedies of a secured party under the Uniform Commercial Code as in effect
in the State of New York at the date hereof and, without limiting the generality
of the foregoing, the Bank may immediately, without demand of performance and
without notice of intention to sell or otherwise to dispose of or of the time or
place of sale or of redemption or other notice or demand whatsoever to the
Guarantor, all of which are hereby expressly waived, to the extent permitted by
law, and without advertisement, sell at public or private sale, grant options to
purchase or otherwise realize upon, in the State of New York, or elsewhere, the
whole or from time to time any part of the said Collateral upon which the Bank
shall have a security interest and lien as aforesaid, and after deducting from
the proceeds of sale or other disposition of the said Collateral all expenses
(including all reasonable expenses for legal services of every kind and other
expenses as set forth below) shall apply the residue of such proceeds towards
the payment of any of the liabilities of the Guarantor under this Guaranty in
such order as the Bank shall elect, the Guarantor remaining liable for any
deficiency remaining unpaid after such application. If notice of any sale or
other disposition is required by law to be given, the Guarantor hereby agrees
that a notice sent at least five (5) days before the time of any intended public
sale or of the time after which any private sale or other disposition of the
said Collateral is to be made, shall be reasonable notice of such sale or other
disposition.
5. At any such sale or other disposition of said Collateral the Bank or any
person designated by the Bank may itself purchase the whole or any part of the
Collateral sold or otherwise disposed of, free from any right of redemption on
the part of the Guarantor, which right, to the extent permitted by law, is
hereby waived and released.
6. The Guarantor agrees that the aforementioned Collateral secures, and
further agrees to pay on demand, all expenses (including reasonable expenses for
legal services, whether or not litigation is commenced and cost of any insurance
and payment of taxes or other charges) of, or incidental to, the custody, care,
sale or collection of, or realization upon, any of the said Collateral or in any
way relating to the enforcement or protection of the rights of the Bank
hereunder or under or with respect to any of the Obligations.
7. This is a continuing Guaranty and shall remain in full force and effect
and shall apply to all Obligations notwithstanding that at any particular time
any or all of the Obligations shall have been paid in full. No attempted
revocation shall release the Guarantor or affect in any manner the rights,
remedies, powers, security interests and liens of the Bank under this Guaranty
with respect to any of the Obligations. If any of the present or future
Obligations are guaranteed by persons, partnerships, limited liability companies
or corporations in addition to the Guarantor, the death, release or discharge in
whole or in part, or the bankruptcy, liquidation or dissolution of one or more
of them, shall not discharge or affect the liabilities of the Guarantor under
this Guaranty.
8. This Guaranty shall continue to be effective, or be reinstated, as the
case may be, if at any time any payment, or any part thereof, of any of the
Obligations is rescinded or must otherwise be restored or returned by the Bank
upon insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower or the Guarantor, or otherwise, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Borrower or the Guarantor or any substantial part of their
property, or otherwise, all as though such payments had not been made.
9. This Guaranty is a guaranty of payment and not of collection, and the
Bank shall be under no obligation to take any action against the Borrower or any
other person liable with respect to any of the Obligations or resort to any
collateral security held by any of them to secure any of the Obligations as a
condition precedent to the Guarantor being obligated to make payment and to
perform as agreed herein. The Guarantor hereby waives any rights to interpose
any defense (other than payment), counterclaim (other than a compulsory
counterclaim) or offset of any nature and description which it may have or which
may exist between and among the Bank, the Borrower and/or the Guarantor. Neither
the Bank nor its successors, endorsees or assigns shall have any obligation to
protect, secure, perfect or insure any lien at any time held by any of them as
security for the Obligations or for this Guaranty or any property subject
thereto or hereto, but at the Bank's sole option and without prejudice may do so
or incompletely do so, and the Guarantor's obligations hereunder shall in no way
be affected by reason thereof. This Guaranty may be assigned by the Bank and its
benefits shall inure to the successors, indorsees and assigns of the Bank.
10. THE GUARANTOR AND THE BANK HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY WHICH THE GUARANTOR AND THE BANK
MAY HAVE IN ANY ACTION, PROCEEDING, CLAIM OR COUNTERCLAIM, AT LAW OR IN EQUITY,
IN CONNECTION WITH THIS GUARANTY OR THE TRANSACTIONS RELATED HERETO. THE
GUARANTOR REPRESENTS AND WARRANTS THAT NO REPRESENTATIVE OR AGENT OF THE BANK
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE BANK WILL NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THIS JURY TRIAL WAIVER. THE GUARANTOR ACKNOWLEDGES
THAT THE BANK HAS BEEN INDUCED TO ACCEPT THIS GUARANTY BY, AMONG OTHER THINGS,
THE PROVISIONS OF THIS SECTION.
11. Until such time as the Obligations have been indefeasibly paid in full,
the Guarantor hereby waives all rights to be subrogated to the rights of the
Bank with respect to the Obligations. In addition, the Guarantor hereby waives,
until such time as the Obligations have been indefeasibly paid in full, any
right to proceed against the Borrower, now or hereafter, for contribution,
indemnity, reimbursement and all other suretyship rights and claims, whether
direct or indirect, liquidated or contingent, whether arising under express or
implied contract or by operation of law, which the Guarantor may now or
hereafter have against the Borrower with respect to the Obligations and the
Guarantor agrees that it will not take any such action against the Borrower or
against any other person seeking contribution, reimbursement or indemnification
by the Borrower or such other person with respect to the Obligations. The
Guarantor also hereby waives, until such time as the Obligations have been
indefeasibly paid in full, any rights to recourse to or with respect to any
assets of the Borrower. The Guarantor agrees that in light of the waivers
contained in this Paragraph 11, the execution of this Guaranty shall not be
deemed to make the Guarantor a creditor of the Borrower, and that for the
purposes of Sections 547 and 550 of the United States Bankruptcy Code (11 U.S.C.
Sec. 547, 550), the Guarantor shall not be deemed a creditor of the Borrower. If
any amount shall be paid to the Guarantor on account of such subrogation rights
at any time when all such Obligations shall not have been indefeasibly paid in
full, such amount shall be held in trust for the benefit of the Bank and shall
forthwith be paid to the Bank to be credited and applied upon the Obligations.
12. The Guarantor authorizes the Bank to date this Guaranty and to complete
any blank space herein according to the terms upon which this Guaranty was
given. Any notice to any party hereto shall be given as provided for in the Loan
Agreement.
13. No failure on the part of the Bank to exercise, and no delay in
exercising, any right, remedy or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by the Bank of any right,
remedy or power hereunder preclude any other or future exercise of any other
right, remedy or power.
14. Each and every right, remedy and power hereby granted to the Bank or
allowed it by law or other agreement shall be cumulative and not exclusive of
any other right, remedy and power, and may be exercised by the Bank at any time
and from time to time.
15. This Guaranty embodies the entire agreement and understanding between
the Bank and the Guarantor and supersedes all prior agreements and
understandings relating to the subject matter hereof. This Guaranty may not be
amended, and compliance with its terms may not be waived, orally or by course of
dealing, but only by a writing signed by an authorized officer of the Bank.
16. This Guaranty shall be construed and interpreted and all rights and
obligations hereunder shall be determined, in accordance with the laws of the
State of New York, without regard to principles of conflict of laws. The
Guarantor agrees that any action or proceeding relating in any way to this
Guaranty shall be brought and enforced in the courts of the State of New York or
the United States District Court for the Eastern District of New York, and
irrevocably submits to the jurisdiction of each such court in any action or
proceeding arising out of or relating to this Guaranty, and the Guarantor
irrevocably agrees that all claims in respect of such action or proceeding may
be heard and determined in such New York State or Federal Court. In furtherance
of the foregoing, the Guarantor hereby irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of venue in any action or proceeding relating in any way to this Guaranty
brought in the Supreme Court of the State of New York within Nassau and Suffolk
Counties or the United States District Court for the Eastern District of New
York and any claim that such action or proceeding brought in any such court has
been brought in an inconvenient forum. Notwithstanding the foregoing, the Bank
may bring any action or proceeding against the Guarantor or its property in the
courts of such jurisdictions as are deemed necessary by the Bank in its sole and
absolute discretion. The Guarantor agrees to pay all costs and expenses incurred
by the Bank incidental to or in any way relating to the enforcement of the
Obligations or the obligations of or the protection of the rights of the Bank
hereunder, including, but not limited to, reasonable attorneys' fees and
expenses, whether or not litigation is commenced.
17. This Guaranty shall remain in full force and effect until there is
indefeasible cash payment of the Obligations in full and the Commitment has
terminated. No payment or payments made by any person or received or collected
by the Bank from any person by virtue of any action or proceeding or any setoff
or appropriation or application, at any time or from time to time, in reduction
of or in payment of the Obligations shall be deemed to modify, reduce, release
or otherwise affect the liability of the Guarantor hereunder which shall,
notwithstanding any such payment or payments, remain in place until there is
cash payment of the Obligations in full.
18. The Guarantor represents and warrants that all necessary and proper
corporate action has been taken to make this Guaranty and all of the provisions
hereof the valid and binding obligations of the Guarantor, enforceable against
the Guarantor in accordance with its terms.
19. Every provision of this Guaranty is intended to be severable and any
provision(s) of this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to extent of such
prohibition or enforceability without invalidating the remaining provisions
hereof, and any prohibition or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
20. None of the terms or provisions of this Guaranty may be waived,
amended, supplemented or otherwise modified except by a written instrument
executed by the Guarantor and the Bank.
21. If this Guaranty is executed by two or more parties, they shall be
jointly and severally liable hereunder, and the word "Guarantor" wherever used
herein shall be construed to refer to each of such parties separately, all in
the same manner and with the same effect as if each of them had signed separate
instruments; and in any such case this Guaranty shall not be revoked or impaired
as to any one or more of such parties by the death or dissolution of any of the
others or by the revocation or release of any liabilities hereunder of any one
or more of such other parties and the Bank may proceed against none, one or more
of the Guarantors at one time, or from time to time, in its sole and absolute
discretion.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
by its authorized officer as of this 21st day of March, 2005.
[ENTITY NAME]
By:
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Name: Barry R. Steinberg
Title: Chief Executive Officer