Preview
FILED: NASSAU COUNTY CLERK 07/22/2020 04:58 PM INDEX NO. 607452/2020
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/22/2020
Exhibit 2
FILED: NASSAU COUNTY CLERK 07/22/2020 04:58 PM INDEX NO. 607452/2020
NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/22/2020
GUARANTY
In consideration of financial accommodations given or to be given or continued to or for
the account of COUNTRY FARM MARKET INC. (the "Borrower"), by ASSOCIATED
SUPERMARKET GROUP, LLC and AFS CAPITAL, LLC (collectively, the "Lender"), each of
the parties listed on the signature pages hereto (each, a "Guarantor"), hereby agrees with the
Lender as follows:
1. Guaranty. (a) Guarantor hereby, absolutely, unconditionally and irrevocably and
jointly and severally, guarantees to the Lender the prompt and complete payment and
performance by the Borrower when due (whether at the stated maturity, by acceleration or
otherwise) of all Obligations (as defined below), and Guarantor further agrees to pay any and all
expenses (including, without limitation, allreascñable fees and disbursements of counsel) which
may be paid or incurred by the Lender in enforcing rights with respect to, or collecting, any or all
of the Obligations and/or enforcing any rights with respect to, or collecting against Guarantor
under this Guaranty. This Guaranty is a guaranty of payment and not of collection only.
"Obligations"
(b) The term shall mean all indebtedness, obligations, liabilitiesand
agreements of any kind of the Borrower to the Lender, now existing or hereafter arising
(including, without limitation, interest accruing after the maturity of any Obligations and interest
accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing
or post-petition interest is allowed in such proceeding), whether or not related to or of the same
class as the loans and financial accommodations to be made by the Lender in connection with
the execution of this Guaranty, direct or indirect (including, without limitation, any participation or
interest of the Lender in obligations of the Borrower to others), acquired outright, conditionally or
as collateral security from another (whether by purchase from another person or entity, by
merger or consolidation of the Lender with another person or entity to whom the Borrower is
obligated, or otherwise), absolute or contingent, joint or several, secured or unsecured, due or
not, contractual or tortious, liquidated or unliquidated, arising by operation of law or otherwise.
(c) No payment or payments made by the Borrower, the Guarantor, any other
guarantor or any other person or entity or received or collected by the Lender from the
Borrower, the Guarantor, any other guarantor or any other person or entity 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 Guarantor hereunder which shall, notwithstanding any such
payment or payments other than payments made by Guarantor in respect of the Obligations or
payments received or collected from Guarantor in respect of the Obligations, remain liable for
the Obligations, untilthe Obligations are paid in full and all commitments (the "Commitments"),
ifany, to provide loans and/or other extensions of credit to or for the account of the Borrower
are terminated.
2. Right of Setoff. Guarantor hereby irrevocably authorizes the Lender at any time
and from time to time following the occurrence of an uncured default or event of default (each,
an "Event o_f Default") under any of the documents, instruments and agreements made,
delivered or given in connection with the Obligations (collectively, as in effect from time to time,
the "Credit Documents"), without notice to Guarantor, any such notice being hereby waived by
Guarantor, to setoff and appropriate and apply any and all deposits (general or special, time or
demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in
any currency, in each case whether direct or indirect, absolute or contingent, matured or
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unmatured, at any time held or owing by the Lender to or for the credit or the account of
Guarantor, or any part thereof in such amounts as the Lender may elect, against and on
account of the obligations and liabilitiesof Guarantor to the Lender hereunder and claims of
every nature and description to the Lender against Guarantor, in any currency, whether arising
hereunder, under any Credit Document or Otherwise, as the Lender may elect, whether or not
the Lender has made any demand for paymêñt and although such obligations, liabilitiesand
claims may be contingent or unmatured. The rights of the Lender under this Section are in
addition to other rights and remedies (including, without limitation, other rights of setoff) which
the Lender may have.
3. Subroqation. Guarantor shall not exercise any rights which it may acquire by
way of subrogation under this Guaranty, by any payment made hereunder or otherwise, untilall
the Obligations shall have been paid in full and all Commitments shall have terminated. Ifany
amount shall be paid to any Guarantor on account of such subrcgatian rights at any time when
all the Obligations shall not have been paid in full and/or allthe Commitments shall not have
been terminated, such amount shall be held in trust for the benefit of the Lender and shall
forthwith be paid to the Lender to be credited and applied against the Obligations, whether
matured or unmatured, in accordance with the terms of the Credit Documents.
4. Amendments. etc.. with respect to the Oblications: Waiver of Rights. Guarantor
shall rerñaiñ jointly and severally obligated hereunder with any other guarantor notwithstañdiñg
that, without any reservation of rights against any Guarantor and without notice to or further
assent by Guarantor, any demand for payment of any of the Obligations made by the Lender
may be rescinded by the Lender and any of the Obligations continued, and the Obligations, or
the of
liability any other person or entity upon or for any part thereof, or any collateral security or
guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, exteñded, amended, modified, accelerated, compromised, waived,
surrendered or released by the Lender, and any and all Credit Documents may be amended,
modified, supplemented or terminated, in whole or in part, as the Lender may deem advisable
from time to time, and any collateral security, guarantee or right of offset at any time held by the
Lender for the payment of the Obligaticñs may be sold, exchanged, waived, surrendered or
released. The Lender shall have no obligation to protect, secure, perfect or insure any lien or
security interest at any time held by itas security for the Obligations or this Guaranty or any
property subject thereto. When making any demand hereunder against any of the Guarantors,
the Lender may, but shall be under no obligation to, make a similar demand on the Barrower or
any other Guarantor or guarantor, and any failure by the Lender to make any such demand or to
collect any payments from the Borrower or any such other Guarantor or guarantor or any
release of the Borrower or such other Guarantor or guarantor shall not relieve any of the
Guarantors in respect of which a demand or collection is not made or any of the Guarantors not
so released of their Obligaticns or liabilitieshereunder, and shall not impair or affect the rights
and remedies, express or implied, or as a matter of law, of the Lender against any of the
"demand"
Guarantors. For the purposes hereof, shall include the commencement and
continuance of any legal action or proceeding.
5. Guaranty Absolute and Unconditional. (a) Guarantor waives any and all notice of
the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of
reliance by the Lender upon this Guaranty or acceptance of this Guaranty; the Obligatices, and
any of them, shall conclusively be deemed to have been created, contracted or incurred, or
renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings
between the Borrower and Guarantor, on the one hand, and the Lender, on the other hand,
shall likewise be conclusively presumed to have been had or consummated in reliance upon this
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Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of
default or nonpayment to or upon the Borrower or Guarantor with respect to the Obligations.
Guarantor understands and agrees that this Guaranty shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (i)the validity, regularity or
enforceability of any Credit Document, any of the Obligations or any other collateral security
theref0r or guarantee or right of offset with respect thereto at any time or from time to time held
by the Lender, (ii)any defense, setoff or counterclaim (including, without limitation, a fraud in
inducement, negligence or failure to perform a condition precedent) which may at any time be
available to or be asserted by the Borrower or Guarantor against the Lender, or (iii)
any other
circumstance whatsoever (with or without notice to or knowledge of the Borrower or Guarantor)
which constitutes, or might be construed to constitute, an equitable or legal discharge of the
Borrower for the Obligations, or of Guarantor under this Guaranty, or in any other instance.
When pursuing itsrights and remedies hereunder against Guarantor, the Lender may, but shall
be under no obligation to, pursue such rights and remedies as itmay have against the Borrower
or any other person or entity or against any collateral security or guarantee for the Obligations
or any right of offset with respect thereto, and any failure by the Lender to pursue such other
rights or remedies or to collect any payments from the Borrower or any such other person or
entity or to realize upon any such collateral security or guarantee or to exercise any such right of
offset, or any release of the Borrower or any such other person or entity or any such collateral
security, guarantee or right of offset, shall not relieve Guarantor of any liabilityhereunder, and
shall not impair or affect the rights and remedies, whether express, implied or available as a
matter of law, of the Lender against Guarantor. This Guaranty shall remain in full force and
effect and be binding in accordance with and to the extent of itsterms upon Guarantor and his
heirs, executors, legal representatives, administrators, successors and assigns thereof, and
shall inure to the benefit of the Lender, and itssuccessors, endorsees, transferees and assigns,
until allthe Obligations and the obligations of Guarantor under this Guaranty shall have been
satisfied by payment in fulland the Commitments shall have been terminated.
(b) In the case of a Guarantor that is a natural person, this Guaranty may be
terminated with respect to the obligations of Guarantor (but, only, so far as it relates to
Obligations arising after the date of such termination), only upon written notice to that effect,
delivered by such Guarantor to the Lender and duly receipted for by the Lender. In the event of
such termination, Guarantor and his/her heirs, executors, legal representatives, administrators,
successors and assigns shall nevertheless remain liable with respect to the Obligations created
or arising on or prior to the date of such termination, and, with respect to such Obligations and
any other liabilities arising out of the same, this Guaranty shall continue in fullforce and effect
and the Lender shall have all the rights herein provided for as ifno such termination had
occurred; and any other guarantor who has not joined in such termination shall continue to be
liable for the Obligations as if no such termination had been effected. Any such notice of
termination shall be addressed to the Lender as follows: 99 Seaview Boulevard, Port
Washington, New York 11050 (or such other address as the Lender shall advise Guarantor in
writing).
6. Reinstatement. This Guaranty shall continue to be effective, or be reinstated, as
the case may be, if at any time payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the Lender upon the insolvency,
dissolution, liquidation or recigañizaticn of the Borrower or Guarantor 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 Guarantor or any substantial part of its property, or otherwise, allas though such
payments had not been made.
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7. Payments. Guarantor hereby agrees that payments required to be paid
hereunder will be paid to the Lender without setoff, counterclaim or other defense in U.S.
Dollars at the office of the Lender located at 99 Seaview Boulevard, Port Washington, New York
11050.
8. Independent Credit Analysis. Guarantor hereby represents and warrants to the
Lender that ithas, independently and without reliañcs upon any representation of the Lender,
written or oral, and based upon such documents and information as it has deemed appropriate,
made itsown credit analysis and decision to enter intothis Guaranty.
9. Severability, Integration. Any provision of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceabi!ity without invalidating the rerñaiñiñg provisions hereof, and any such
prohibition or unenforceability in any jurisdicticñ shall not invalidate or render unenforceable
such provision in any other jurisdiction. This Guaranty represents the agreement of Guarantor
with respect to the subject matter hereof and there are no promises or representations by
Guarantor or the Lender relative to the subject matter hereof not reflected herein.
10. Section Headings. Counterparts. The Section headings used in this Guaranty
are for convenience of reference only and are not to affect the construction hereof or be taken
into consideration in the interpretation hereof. This Guaranty may be executed by one or more
of the Guarantors on any number of separate counterparts. Guarantor shall be bound by the
terms and conditions of this Guaranty, whether or not any other Guarantor signs this Guaranty
at any time.
11. Interest. AII amounts payable from time to time by the Guarantors hereunder
shall bear interest at the highest interest rate applicable at such times to the Obligations, except
that such rate shall not exceed the maximum rate of interest permitted to be charged to the
Guarantors pursuant to the Loan and Security Agreement of even date herewith by and
between Lender and Borrower.
12. Amendments in Writing: No Waiver: Cumulative Remedies.
(a) None of the terms or provisions of this Guaranty may be waived, amended,
supplemented or otherwise modified except by a written instrument executed by Guarantor and
the Lender; provided, however, that any provision of this Guaranty may be waived by the
Lender in a letter or agreement executed by the Lender or by facsimile transrñissicñ from the
Lender.
(b) The Lender shall not by any act (except by a writteñ instrument pursuant to
Section 12(a) hereof), delay, indulgence, omission or otherwise be deerñêd to have waived any
right or remedy hereunder or to have acquiesced in any Event of Default or in any breach of any
of the terms and conditions hereof. No failure to exercise, nor any delay in exercising, on the
part of the Lender, any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege. A waiver by the
Lender of any right or remedy hereunder on any one cccasicñ shall not be construed as a bar to
any right or remedy which the Lender would otherwise have on any future occasion. The rights
and rerñedies herein provided are cumulative, may be exercised singly or concurrently and are
not exclusive of any rights or remedies provided by law.
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13. Notices. AII ñctices and other communications to Guarantor hereunder shall be
in writing and shall be personally delivered or sent by certified mail, postage prepaid, return
receipt requested, or by a reputable courier delivery service or by telecopy. Each such notice or
other communication shall be effective (a) if given by certified mail, three business days after
such communication is deposited with the post office, addressed as aforesaid or (b) ifgiven by
any other means (including, without limitation, by courier), when delivered at the address
specified by this Section.
14. SUBMISSION TO JURISDICTION. WAlVER OF TRIAL BY JURY. ETC.
(a) SUBJECT TO THE REQUIREMENTS FOR A CASE TO BE HEARD IN THE
COMMERCIAL DIVISION, GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE COMMERCIAL DIVISION, NEW YORK STATE SUPREME COURT,
IN THE COUNTIES OF NASSAU OR NEW YORK AND TO THE APPLICATION OF THE
COURT'S ACCELERATED ADJUDICATION PROCEDURE IN THAT COURT OR ANY
FEDERAL COURT SITTING IN NASSAU, NEW YORK OR SUFFOLK COUNTY IN THE
STATE OF NEW YORK OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR
RELATED TO THIS NOTE AND AGREES WITH PAYEE THAT PERSONAL JURISDICTION
OVER GUARANTOR RESTS WITH SUCH COURTS FOR PURPOSES OF ANY ACTION ON
OR RELATED TO THIS NOTE. GUARANTOR HEREBY IRREVOCABLY WAlVES, IN
CONNECTION WITH ANY SUCH ACTION OR PROCEEDING, (I) TRIAL BY JURY, (II)ANY
OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF
VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR
PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS AND (III) THE RIGHT TO
INTERPOSE ANY SETOFF, NON-COMPULSORY COUNTERCLAIM OR CROSSCLAIM.
(b) GUARANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING
BY THE MAILING OF COPIES THEREOF BY CERTIFIED MAIL, POSTAGE PREPAID, TO
GUARANTOR AT ITS ADDRESS SPECIFIED IN HEREIN. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE LENDER TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST ANY GUARANTOR IN ANY OTHER JURISDICTION.
15. Successors and Assiqns. This Guaranty shall be binding upon the heirs,
executors, legal representatives, administrators, successors and assigns of Guarantor and shall
inure to the benefit of the Lender and its successors, endorsees, transferees and assigñs;
provided, however, that no Guarantor may assign, transfer or delegate any of its rights or
obligations under this Guaranty without the prior written consent of the Lender and any such
purported assignment, transfer or delegation without such ccñsent shall be null and void. Ifany
Guarantor shall be a partnership, the agreements and obligations on the part of Guarantor
herein contained shall remain in fullforce and applicable against such partnership and allof its
partners notwithstanding any changes in the individuals composing the partnership (or any
"Guarantor"
release of one or more partners) and the term shall include any altered or
successive partnership but the predecessor partñêrships and their partners shall not thereby be
released from any obligation or liability.
16. Security Interest. To secure the due payment and performance of all
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indebtedness, obligations, liabilitiesand agreements of the Guarantor to Lender under, arising
out of or in any way connected with this Guaranty, whether now existing or hereafter arising,
Guarantor hereby grants to the Lender a lien on, security interest in and right of setoff against all
personal property and fixtures of Guarantor, whether now owned or hereafter acquired and
wherever !ocated (ccliectively, the "Collateral"), including, without limitation, all inventory,
equipment, goods of any nature, accounts, contract rights, general intangibles, chattel paper,
documents, instruments, depcsit accounts, books, records and/or other personal property
evidencing or relating to the foregoing, and all products and proceeds of any of the foregoing, in
any form. Guarantor will, at its sole cost and expense, perform all acts and execute all
documents requested by the Lender from time to time to evidence, perfect, maintain or enforce
the Lender's security interest granted herein, or otherwise to carry out the provisions and
purposes of this Guaranty, including, without limitation, the execution and delivery of financing
statements pursuant to the Uniform Commercial Code (the "UCC"), and Guaranter hereby
authorizes the Lender to execute and file at any time and from time to time one or more
financing statements or copies thereof or of this Guaranty with respect to the Collateral signed
only by the Lender and/or signed by the Lender as attorney-in-fact of Guarantor.
17. Indemnity and Expêñses. Guarantor hereby indemnifies Lender from and against
any and allclaims, losses, damages and liabilitiesgrowing out of or resulting from this Guaranty
(including, without limitation, enforcement of this Guaranty), except claims, losses, damages or
liabilitiesresulting from Lender's gross negligence and willful misccñduct. Guarantor will upon
demand pay to Lender the amount of any and allexpenses, including the fees and expenses of
its counsel and of any experts and agents, which Lender may incur in connection with the
exercise or enforcement of any of the rights of Lender under this Guaranty or the failure by
Guarantor to perform or observe any of the provisions of this Guaranty.
18. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES
THEREOF).
19. Joint and Several Liability. Ifthis Guaranty is executed by two or more parties,
"Guarañter"
they shall be jointly and severally liable hereunder, and the word 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 ifeach 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 liabilitieshereunder of any
one or more of such other parties and the Lender may proceed against none, one or more of the
Guarantors at one time, or from time to time, in itssole and absolute discretion.
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IN WITNESS WHEREOF, e undersigned have caused this Guaranty to be duly
executed and delivered as of this ay of June, 2019.
Tae Hong Lee
Home Address:
266 Birchwood Park Drive
Jericho, New York 11753
Young bhung Chun a/k/a Steve Y. Chung
Home Address:
43-15 215thPlace
Bayside, w York 11361
adí Hyuk Chang
Home Address:
169th
43-18 street, second Floor
Flushing, New York 11358
STATE OF NEW YORK )
) ss.:
COUNTY OF )
gfwf
On the y of June in the year 2019, before me, the undersigned, personally
appeared Tae Ho g Lee, personally known to me on the basis of satisfactory evidence to be the
individual whose name is subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity, and that by his/her/their signature on
the instrument, the individual, or the person upon behalf of which th dividual acted, executed
the instrument.
Putnid
JEREMY D. SUNG
Notary Public, State of New York
No.02SU6125356
Qualified inQueene Count
Commission Expires July 05 Î0
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STATE OF NEW YORK )
) ss.:
COUNTY OF )
On the _ ay of June in the year 2019, before me, the undersigned, personally
appeared Young Chung Chun a/k/a Steve Y. Chung, personally known to me on the basis of
satisfactory evidence to be the individual whcsê name is subscribed to the within instrument and
ackñcwledged to me that he/she/they executed the same in his/her/their capacity, and that by
his/her/their signature on the instrument, the |ñdividual, or the perscñ upon beh f of which the
individual acted, executed the instrument.
JEREMY D. SUNG
Public, State of New York
Notary
No.02SU6125356
Qualified inQueens County a ublic
Commission Expires July 05 20
STATE OF NEW YORK )
) ss.:
COUNTY OF )
On the ay of June in the year 2019, before me, the undersigned, personally
appeared Jae Hyuk Chang, perscñally known to me on the basis of satisfactcry evidence to be
the individual whose name is subscribed to the within instrument and ackñüwledged to me that
he/she/they executed the same in his/her/their capacity, and that by his/her/their signature on
the instrument, the individual, or the person upon behalf of which the i idual acted, executed
the instrument.
JEREMY D. SUNG
State ofNew ota I
Notary Public, York
No.02SU6125356
Qualified inQueens County
Commission Expires July 05 20
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FILED: NASSAU COUNTY CLERK 07/22/2020 04:58 PM INDEX NO. 607452/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/22/2020 Exhibit 2 FILED: NASSAU COUNTY CLERK 07/22/2020 04:58 PM INDEX NO. 607452/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/22/2020 GUARANTY In consideration of financial accommodations given or to be given or continued to or for the account of COUNTRY FARM MARKET INC. (the "Borrower"), by ASSOCIATED SUPERMARKET GROUP, LLC and AFS CAPITAL, LLC (collectively, the "Lender"), each of the parties listed on the signature pages hereto (each, a "Guarantor"), hereby agrees with the Lender as follows: 1. Guaranty. (a) Guarantor hereby, absolutely, unconditionally and irrevocably and jointly and severally, guarantees to the Lender the prompt and complete payment and performance by the Borrower when due (whether at the stated maturity, by acceleration or otherwise) of all Obligations (as defined below), and Guarantor further agrees to pay any and all expenses (including, without limitation, allreascñable fees and disbursements of counsel) which may be paid or incurred by the Lender in enforcing rights with respect to, or collecting, any or all of the Obligations and/or enforcing any rights with respect to, or collecting against Guarantor under this Guaranty. This Guaranty is a guaranty of payment and not of collection only. "Obligations" (b) The term shall mean all indebtedness, obligations, liabilitiesand agreements of any kind of the Borrower to the Lender, now existing or hereafter arising (including, without limitation, interest accruing after the maturity of any Obligations and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), whether or not related to or of the same class as the loans and financial accommodations to be made by the Lender in connection with the execution of this Guaranty, direct or indirect (including, without limitation, any participation or interest of the Lender in obligations of the Borrower to others), acquired outright, conditionally or as collateral security from another (whether by purchase from another person or entity, by merger or consolidation of the Lender with another person or entity to whom the Borrower is obligated, or otherwise), absolute or contingent, joint or several, secured or unsecured, due or not, contractual or tortious, liquidated or unliquidated, arising by operation of law or otherwise. (c) No payment or payments made by the Borrower, the Guarantor, any other guarantor or any other person or entity or received or collected by the Lender from the Borrower, the Guarantor, any other guarantor or any other person or entity 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 Guarantor hereunder which shall, notwithstanding any such payment or payments other than payments made by Guarantor in respect of the Obligations or payments received or collected from Guarantor in respect of the Obligations, remain liable for the Obligations, untilthe Obligations are paid in full and all commitments (the "Commitments"), ifany, to provide loans and/or other extensions of credit to or for the account of the Borrower are terminated. 2. Right of Setoff. Guarantor hereby irrevocably authorizes the Lender at any time and from time to time following the occurrence of an uncured default or event of default (each, an "Event o_f Default") under any of the documents, instruments and agreements made, delivered or given in connection with the Obligations (collectively, as in effect from time to time, the "Credit Documents"), without notice to Guarantor, any such notice being hereby waived by Guarantor, to setoff and appropriate and apply any and all deposits (general or special, time or demand, provisional or final), in any currency, and any other credits, indebtedness or claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured or APD321591/FM2516 FILED: NASSAU COUNTY CLERK 07/22/2020 04:58 PM INDEX NO. 607452/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/22/2020 unmatured, at any time held or owing by the Lender to or for the credit or the account of Guarantor, or any part thereof in such amounts as the Lender may elect, against and on account of the obligations and liabilitiesof Guarantor to the Lender hereunder and claims of every nature and description to the Lender against Guarantor, in any currency, whether arising hereunder, under any Credit Document or Otherwise, as the Lender may elect, whether or not the Lender has made any demand for paymêñt and although such obligations, liabilitiesand claims may be contingent or unmatured. The rights of the Lender under this Section are in addition to other rights and remedies (including, without limitation, other rights of setoff) which the Lender may have. 3. Subroqation. Guarantor shall not exercise any rights which it may acquire by way of subrogation under this Guaranty, by any payment made hereunder or otherwise, untilall the Obligations shall have been paid in full and all Commitments shall have terminated. Ifany amount shall be paid to any Guarantor on account of such subrcgatian rights at any time when all the Obligations shall not have been paid in full and/or allthe Commitments shall not have been terminated, such amount shall be held in trust for the benefit of the Lender and shall forthwith be paid to the Lender to be credited and applied against the Obligations, whether matured or unmatured, in accordance with the terms of the Credit Documents. 4. Amendments. etc.. with respect to the Oblications: Waiver of Rights. Guarantor shall rerñaiñ jointly and severally obligated hereunder with any other guarantor notwithstañdiñg that, without any reservation of rights against any Guarantor and without notice to or further assent by Guarantor, any demand for payment of any of the Obligations made by the Lender may be rescinded by the Lender and any of the Obligations continued, and the Obligations, or the of liability any other person or entity upon or for any part thereof, or any collateral security or guarantee therefor or right of offset with respect thereto, may, from time to time, in whole or in part, be renewed, exteñded, amended, modified, accelerated, compromised, waived, surrendered or released by the Lender, and any and all Credit Documents may be amended, modified, supplemented or terminated, in whole or in part, as the Lender may deem advisable from time to time, and any collateral security, guarantee or right of offset at any time held by the Lender for the payment of the Obligaticñs may be sold, exchanged, waived, surrendered or released. The Lender shall have no obligation to protect, secure, perfect or insure any lien or security interest at any time held by itas security for the Obligations or this Guaranty or any property subject thereto. When making any demand hereunder against any of the Guarantors, the Lender may, but shall be under no obligation to, make a similar demand on the Barrower or any other Guarantor or guarantor, and any failure by the Lender to make any such demand or to collect any payments from the Borrower or any such other Guarantor or guarantor or any release of the Borrower or such other Guarantor or guarantor shall not relieve any of the Guarantors in respect of which a demand or collection is not made or any of the Guarantors not so released of their Obligaticns or liabilitieshereunder, and shall not impair or affect the rights and remedies, express or implied, or as a matter of law, of the Lender against any of the "demand" Guarantors. For the purposes hereof, shall include the commencement and continuance of any legal action or proceeding. 5. Guaranty Absolute and Unconditional. (a) Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Lender upon this Guaranty or acceptance of this Guaranty; the Obligatices, and any of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon this Guaranty; and all dealings between the Borrower and Guarantor, on the one hand, and the Lender, on the other hand, shall likewise be conclusively presumed to have been had or consummated in reliance upon this APD321591/FM2516 FILED: NASSAU COUNTY CLERK 07/22/2020 04:58 PM INDEX NO. 607452/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/22/2020 Guaranty. Guarantor waives diligence, presentment, protest, demand for payment and notice of default or nonpayment to or upon the Borrower or Guarantor with respect to the Obligations. Guarantor understands and agrees that this Guaranty shall be construed as a continuing, absolute and unconditional guarantee of payment without regard to (i)the validity, regularity or enforceability of any Credit Document, any of the Obligations or any other collateral security theref0r or guarantee or right of offset with respect thereto at any time or from time to time held by the Lender, (ii)any defense, setoff or counterclaim (including, without limitation, a fraud in inducement, negligence or failure to perform a condition precedent) which may at any time be available to or be asserted by the Borrower or Guarantor against the Lender, or (iii) any other circumstance whatsoever (with or without notice to or knowledge of the Borrower or Guarantor) which constitutes, or might be construed to constitute, an equitable or legal discharge of the Borrower for the Obligations, or of Guarantor under this Guaranty, or in any other instance. When pursuing itsrights and remedies hereunder against Guarantor, the Lender may, but shall be under no obligation to, pursue such rights and remedies as itmay have against the Borrower or any other person or entity or against any collateral security or guarantee for the Obligations or any right of offset with respect thereto, and any failure by the Lender to pursue such other rights or remedies or to collect any payments from the Borrower or any such other person or entity or to realize upon any such collateral security or guarantee or to exercise any such right of offset, or any release of the Borrower or any such other person or entity or any such collateral security, guarantee or right of offset, shall not relieve Guarantor of any liabilityhereunder, and shall not impair or affect the rights and remedies, whether express, implied or available as a matter of law, of the Lender against Guarantor. This Guaranty shall remain in full force and effect and be binding in accordance with and to the extent of itsterms upon Guarantor and his heirs, executors, legal representatives, administrators, successors and assigns thereof, and shall inure to the benefit of the Lender, and itssuccessors, endorsees, transferees and assigns, until allthe Obligations and the obligations of Guarantor under this Guaranty shall have been satisfied by payment in fulland the Commitments shall have been terminated. (b) In the case of a Guarantor that is a natural person, this Guaranty may be terminated with respect to the obligations of Guarantor (but, only, so far as it relates to Obligations arising after the date of such termination), only upon written notice to that effect, delivered by such Guarantor to the Lender and duly receipted for by the Lender. In the event of such termination, Guarantor and his/her heirs, executors, legal representatives, administrators, successors and assigns shall nevertheless remain liable with respect to the Obligations created or arising on or prior to the date of such termination, and, with respect to such Obligations and any other liabilities arising out of the same, this Guaranty shall continue in fullforce and effect and the Lender shall have all the rights herein provided for as ifno such termination had occurred; and any other guarantor who has not joined in such termination shall continue to be liable for the Obligations as if no such termination had been effected. Any such notice of termination shall be addressed to the Lender as follows: 99 Seaview Boulevard, Port Washington, New York 11050 (or such other address as the Lender shall advise Guarantor in writing). 6. Reinstatement. This Guaranty shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Obligations is rescinded or must otherwise be restored or returned by the Lender upon the insolvency, dissolution, liquidation or recigañizaticn of the Borrower or Guarantor 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 Guarantor or any substantial part of its property, or otherwise, allas though such payments had not been made. APD321591/FM2516 FILED: NASSAU COUNTY CLERK 07/22/2020 04:58 PM INDEX NO. 607452/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/22/2020 7. Payments. Guarantor hereby agrees that payments required to be paid hereunder will be paid to the Lender without setoff, counterclaim or other defense in U.S. Dollars at the office of the Lender located at 99 Seaview Boulevard, Port Washington, New York 11050. 8. Independent Credit Analysis. Guarantor hereby represents and warrants to the Lender that ithas, independently and without reliañcs upon any representation of the Lender, written or oral, and based upon such documents and information as it has deemed appropriate, made itsown credit analysis and decision to enter intothis Guaranty. 9. Severability, Integration. Any provision of this Guaranty which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceabi!ity without invalidating the rerñaiñiñg provisions hereof, and any such prohibition or unenforceability in any jurisdicticñ shall not invalidate or render unenforceable such provision in any other jurisdiction. This Guaranty represents the agreement of Guarantor with respect to the subject matter hereof and there are no promises or representations by Guarantor or the Lender relative to the subject matter hereof not reflected herein. 10. Section Headings. Counterparts. The Section headings used in this Guaranty are for convenience of reference only and are not to affect the construction hereof or be taken into consideration in the interpretation hereof. This Guaranty may be executed by one or more of the Guarantors on any number of separate counterparts. Guarantor shall be bound by the terms and conditions of this Guaranty, whether or not any other Guarantor signs this Guaranty at any time. 11. Interest. AII amounts payable from time to time by the Guarantors hereunder shall bear interest at the highest interest rate applicable at such times to the Obligations, except that such rate shall not exceed the maximum rate of interest permitted to be charged to the Guarantors pursuant to the Loan and Security Agreement of even date herewith by and between Lender and Borrower. 12. Amendments in Writing: No Waiver: Cumulative Remedies. (a) None of the terms or provisions of this Guaranty may be waived, amended, supplemented or otherwise modified except by a written instrument executed by Guarantor and the Lender; provided, however, that any provision of this Guaranty may be waived by the Lender in a letter or agreement executed by the Lender or by facsimile transrñissicñ from the Lender. (b) The Lender shall not by any act (except by a writteñ instrument pursuant to Section 12(a) hereof), delay, indulgence, omission or otherwise be deerñêd to have waived any right or remedy hereunder or to have acquiesced in any Event of Default or in any breach of any of the terms and conditions hereof. No failure to exercise, nor any delay in exercising, on the part of the Lender, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by the Lender of any right or remedy hereunder on any one cccasicñ shall not be construed as a bar to any right or remedy which the Lender would otherwise have on any future occasion. The rights and rerñedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any rights or remedies provided by law. APD321591/FM2516 FILED: NASSAU COUNTY CLERK 07/22/2020 04:58 PM INDEX NO. 607452/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/22/2020 13. Notices. AII ñctices and other communications to Guarantor hereunder shall be in writing and shall be personally delivered or sent by certified mail, postage prepaid, return receipt requested, or by a reputable courier delivery service or by telecopy. Each such notice or other communication shall be effective (a) if given by certified mail, three business days after such communication is deposited with the post office, addressed as aforesaid or (b) ifgiven by any other means (including, without limitation, by courier), when delivered at the address specified by this Section. 14. SUBMISSION TO JURISDICTION. WAlVER OF TRIAL BY JURY. ETC. (a) SUBJECT TO THE REQUIREMENTS FOR A CASE TO BE HEARD IN THE COMMERCIAL DIVISION, GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COMMERCIAL DIVISION, NEW YORK STATE SUPREME COURT, IN THE COUNTIES OF NASSAU OR NEW YORK AND TO THE APPLICATION OF THE COURT'S ACCELERATED ADJUDICATION PROCEDURE IN THAT COURT OR ANY FEDERAL COURT SITTING IN NASSAU, NEW YORK OR SUFFOLK COUNTY IN THE STATE OF NEW YORK OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATED TO THIS NOTE AND AGREES WITH PAYEE THAT PERSONAL JURISDICTION OVER GUARANTOR RESTS WITH SUCH COURTS FOR PURPOSES OF ANY ACTION ON OR RELATED TO THIS NOTE. GUARANTOR HEREBY IRREVOCABLY WAlVES, IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING, (I) TRIAL BY JURY, (II)ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS AND (III) THE RIGHT TO INTERPOSE ANY SETOFF, NON-COMPULSORY COUNTERCLAIM OR CROSSCLAIM. (b) GUARANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY CERTIFIED MAIL, POSTAGE PREPAID, TO GUARANTOR AT ITS ADDRESS SPECIFIED IN HEREIN. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE LENDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY GUARANTOR IN ANY OTHER JURISDICTION. 15. Successors and Assiqns. This Guaranty shall be binding upon the heirs, executors, legal representatives, administrators, successors and assigns of Guarantor and shall inure to the benefit of the Lender and its successors, endorsees, transferees and assigñs; provided, however, that no Guarantor may assign, transfer or delegate any of its rights or obligations under this Guaranty without the prior written consent of the Lender and any such purported assignment, transfer or delegation without such ccñsent shall be null and void. Ifany Guarantor shall be a partnership, the agreements and obligations on the part of Guarantor herein contained shall remain in fullforce and applicable against such partnership and allof its partners notwithstanding any changes in the individuals composing the partnership (or any "Guarantor" release of one or more partners) and the term shall include any altered or successive partnership but the predecessor partñêrships and their partners shall not thereby be released from any obligation or liability. 16. Security Interest. To secure the due payment and performance of all APD321591/FM2516 FILED: NASSAU COUNTY CLERK 07/22/2020 04:58 PM INDEX NO. 607452/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/22/2020 indebtedness, obligations, liabilitiesand agreements of the Guarantor to Lender under, arising out of or in any way connected with this Guaranty, whether now existing or hereafter arising, Guarantor hereby grants to the Lender a lien on, security interest in and right of setoff against all personal property and fixtures of Guarantor, whether now owned or hereafter acquired and wherever !ocated (ccliectively, the "Collateral"), including, without limitation, all inventory, equipment, goods of any nature, accounts, contract rights, general intangibles, chattel paper, documents, instruments, depcsit accounts, books, records and/or other personal property evidencing or relating to the foregoing, and all products and proceeds of any of the foregoing, in any form. Guarantor will, at its sole cost and expense, perform all acts and execute all documents requested by the Lender from time to time to evidence, perfect, maintain or enforce the Lender's security interest granted herein, or otherwise to carry out the provisions and purposes of this Guaranty, including, without limitation, the execution and delivery of financing statements pursuant to the Uniform Commercial Code (the "UCC"), and Guaranter hereby authorizes the Lender to execute and file at any time and from time to time one or more financing statements or copies thereof or of this Guaranty with respect to the Collateral signed only by the Lender and/or signed by the Lender as attorney-in-fact of Guarantor. 17. Indemnity and Expêñses. Guarantor hereby indemnifies Lender from and against any and allclaims, losses, damages and liabilitiesgrowing out of or resulting from this Guaranty (including, without limitation, enforcement of this Guaranty), except claims, losses, damages or liabilitiesresulting from Lender's gross negligence and willful misccñduct. Guarantor will upon demand pay to Lender the amount of any and allexpenses, including the fees and expenses of its counsel and of any experts and agents, which Lender may incur in connection with the exercise or enforcement of any of the rights of Lender under this Guaranty or the failure by Guarantor to perform or observe any of the provisions of this Guaranty. 18. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAW PRINCIPLES THEREOF). 19. Joint and Several Liability. Ifthis Guaranty is executed by two or more parties, "Guarañter" they shall be jointly and severally liable hereunder, and the word 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 ifeach 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 liabilitieshereunder of any one or more of such other parties and the Lender may proceed against none, one or more of the Guarantors at one time, or from time to time, in itssole and absolute discretion. BALANCE OF PAGE INTENTIONALLY LEFT BLANK APD321591/FM2516 FILED: NASSAU COUNTY CLERK 07/22/2020 04:58 PM INDEX NO. 607452/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/22/2020 IN WITNESS WHEREOF, e undersigned have caused this Guaranty to be duly executed and delivered as of this ay of June, 2019. Tae Hong Lee Home Address: 266 Birchwood Park Drive Jericho, New York 11753 Young bhung Chun a/k/a Steve Y. Chung Home Address: 43-15 215thPlace Bayside, w York 11361 adí Hyuk Chang Home Address: 169th 43-18 street, second Floor Flushing, New York 11358 STATE OF NEW YORK ) ) ss.: COUNTY OF ) gfwf On the y of June in the year 2019, before me, the undersigned, personally appeared Tae Ho g Lee, personally known to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity, and that by his/her/their signature on the instrument, the individual, or the person upon behalf of which th dividual acted, executed the instrument. Putnid JEREMY D. SUNG Notary Public, State of New York No.02SU6125356 Qualified inQueene Count Commission Expires July 05 Î0 APD321591/FM2516 FILED: NASSAU COUNTY CLERK 07/22/2020 04:58 PM INDEX NO. 607452/2020 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 07/22/2020 STATE OF NEW YORK ) ) ss.: COUNTY OF ) On the _ ay of June in the year 2019, before me, the undersigned, personally appeared Young Chung Chun a/k/a Steve Y. Chung, personally known to me on the basis of satisfactory evidence to be the individual whcsê name is subscribed to the within instrument and ackñcwledged to me that he/she/they executed the same in his/her/their capacity, and that by his/her/their signature on the instrument, the |ñdividual, or the perscñ upon beh f of which the individual acted, executed the instrument. JEREMY D. SUNG Public, State of New York Notary No.02SU6125356 Qualified inQueens County a ublic Commission Expires July 05 20 STATE OF NEW YORK ) ) ss.: COUNTY OF ) On the ay of June in the year 2019, before me, the undersigned, personally appeared Jae Hyuk Chang, perscñally known to me on the basis of satisfactcry evidence to be the individual whose name is subscribed to the within instrument and ackñüwledged to me that he/she/they executed the same in his/her/their capacity, and that by his/her/their signature on the instrument, the individual, or the person upon behalf of which the i idual acted, executed the instrument. JEREMY D. SUNG State ofNew ota I Notary Public, York No.02SU6125356 Qualified inQueens County Commission Expires July 05 20 APD321591/FM2516