Preview
FILED: CAYUGA COUNTY CLERK 02/22/2023 03:16 PM INDEX NO. E2023-0130
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2023
EXHIBIT B
GOOD 1520.1
FILED: CAYUGA COUNTY CLERK 02/22/2023 03:16 PM INDEX NO. E2023-0130
NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2023
COMMERCIAL GUARANTY
DATED: January 24, 2020
GUARANTOR: Lisa Power with an address of 11337 South St., Cato, NY 13033
hereby agrees as follows with
LENDER: AmeriCU Credit Union, a Federally Insured State-Chartered Credit Union,
having an office at 1916 Black River Boulevard, Rome, New York 13440
In consideration of loans or other forms of credit or financial accommodations previously made
or provided by Lender to
BORROWER: The Red Light Spa, Inc., with an address of 5415 West Genesee St., Camillus, NY
13033
or to induce Lender to extend or to continue to extend credit to Borrower or to forbear in the
exercise of rights against Borrower under existing credit arrangements or to provide other
financial accommodations to Borrower:
1. GUARANTY. Guarantor hereby absolutely and unconditionally guarantees to Lender
the punctual and full (i) payment, as and when due, whether at maturity, by acceleration, on demand, or
otherwise, of all of Borrower's Obligations requiring payment and (ii) performance, as and when required,
of all of Borrower's Obligations requiring performance.
Obligations"
2. BORROWER'S OBLIGATIONS DEFINED. "Borrower's mean:
All loans, debts, liabilities, overdrafts, and obligations of every kind and description at any time
owed by Borrower to Lender, whether for payment or performance, direct or indirect, primary or as
guarantor or surety, absolute or contingent joint or several, secured or unsecured, due or to become due,
now existing, arising in the future (whether or not presently contemplated or related to obligations
presently existing or contemplated), liquidated or unliquidated, irrespective of how they arise or are
evidenced, together with any extensions, renewals, replacements, refundings, refinancings, or
modifications, any and all loss and damages incurred by Lender because of any default by Borrower in
the payment or performance of any of the foregoing, and all related interests fees, charges, advances,
expenses, and attorney's fees.
Said Borrower's Obligations may be increased or reduced, renewed, reborrowed, or repaid in full
from time to time, and new Obligations incurred at any time even though no Obligations may then be
otherwise outstanding.
3. LIABILITY OF GUARANTOR. This Guaranty is an absolute, unconditional,
continuing, and unlimited guaranty of the payment and performance of Borrower's Obligations and not
just of their collection or enforceability and, without regard to the adequacy of any other rights Lender
may have, does not require that Lender first attempt to collect or enforce any of Borrower's Obligations
from or against Borrower or any other person or resort to any security or other means of obtaining
payment or performance of the Borrower's Obligations. Guarantor's liability is primary, direct, and
immediate and shall be unconditional irrespective of the invalidity or unenforceability of any of
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Borrower's Obligations for any reason or any circumstance that might otherwise constitute a legal or
equitable discharge of a guarantor under applicable law.
4. ACKNOWLEDGEMENT OF CONSIDERATION. Guarantor acknowledges that
valuable consideration supports this Guaranty, including without limitation, any commitment
lend, to
extension of credit, or other financial accommodation made by Lender to Borrower, whether before,
contemporaneously with, or after the execution and delivery of this Guaranty, any extension, renewal, or
replacement of any Borrower's Obligations at any time, and any forbearance with respect to any
Borrower's Obligations at any time, any of which, if before the execution and delivery of this Guaranty,
is sufficient under New York General Obligations Law Section 5-1105.
5. DEALINGS WITH BORROWER'S OBLIGATIONS. Guarantor agrees that Lender
may at any time and from time to time without the consent of or notice to Guarantor and without
impairing or releasing the obligations of Guarantor under this Guaranty:
a. Changein any way, renew, or revoke any of the terms and conditions, whether of
payment or other performance, of any of the Borrower's Obligations or any debt, liability, or obligation
incurred directly or indirectly in respect thereof or held as collateral for Borrower's Obligations, including
without limitation, increases or decreases in installment payments, modifications of the interest rate, and
extensions of the time for payment.
b. Surrender, release, exchange, substitute, augment, realize on, modify the terms
of, or otherwise deal in any way and in any order with any collateral securing all or any part of the
Borrower's Obligations and take or release other guaranties.
c. Abstain from taking advantage of or realizing on any collateral or other guaranty.
d. Waive compliance with or any default under Borrower's Obligations, grant any
forbearance, indulgence, release, settlement or compromise with respect thereto, or subordinate the
payment of all or any part thereof to the payment of other indebtedness of Borrower.
e. Apply any payments received from Borrower or for Borrower's account
irrespective of by whom made or in what manner realized, to such of Borrower's Obligations and in such
manner and order as Borrower or other party making payment may direct, or in the absence of direction,
its Lender may elect, regardless of what Borrower's Obligations remain unpaid or of any rights to
application or marshalling that might otherwise apply.
The foregoing provisions shall apply after the termination of this Guaranty to all Borrower's
Obligations outstanding at the effective time of such termination.
6. WAIVERS. Guarantor unconditionally and expressly waives:
a. Notice of Lender's acceptance of this Guaranty or its action or intention to act in
reliance thereon.
b. Notice of the creation or accrual of any of Borrower's Obligations or of any
default or breach by Borrower.
c. Presentment, demand for payment, and protest of any non-payment of any of
Borrower's Obligations and notice of presentment, demand, dishonor, and protest.
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d. Any present or future reliance on Lender to provide financial information
concerning Borrower or notification of any adverse change in Borrower's financial condition or of any
other circumstance which, even if known to Lender, might increase Guarantor's risk.
e. Any change in Borrower's business existence, ownership, or structure.
f. Any impairment of collateral securing the Borrower's Obligations or this
Guaranty, including its loss or destruction or the failure to perfect or preserve Lender's or Borrower's
rights in such collateral.
g. Any defense based on or arising out of any defense of Borrower except payment
and performance of Borrower's Obligations in full, including, without limitation, incapacity, lack of
authority, death or disability of Borrower, statute of limitations, bankruptcy, insolvency, or reorganization
of Borrower, or the termination or extension from any cause of Borrower's liability on the Borrower's
Obligations.
h. To the fullest extent permitted by law, the defense of any statute of limitations
affecting Guarantor's liability or the enforcement of this Guaranty: any payment by Borrower or other
circumstance that tolls any statute of limitations with respect to Borrower shall toll the statute of
limitations with respect to Guarantor.
i. Any defense based on a claim of prejudice to Guarantor arising from an election
of remedies by Lender.
j. Any other act or omission that might in any manner or to any extent vary the risk
of Guarantor.
7. REPRESENTATIONS, WARRANTIES AND COVENANTS. Guarantor throughout
the continuation of this Guaranty and until all of Borrower's Obligations have been discharged in full
represents, warrants, and covenants that:
a. If Guarantor is a corporation, limited liability company, partnership, or limited
liability partnership, Guarantor is duly organized, validly existing, and in good standing under the laws of
the state of its organization, and, if not organized in New York, is duly authorized to conduct business in
the State of New York. Guarantor has the power to execute, deliver, and carry out the obligations of this
Guaranty and has taken all necessary action to authorize the execution, delivery, and performance of this
Guaranty.
b. This Guaranty has been duly and validly executed and delivered and is the valid
and binding agreement of Guarantor. Guarantor is not subject to nor obligated under
any contract or
permit or subject to any law,
regulation, order, or decree that would be violated by Guarantor's executing
or carrying out this Guaranty.
No notice to, filing with, nor authorization, consent, or approval of any
other person or any governmental authority is necessary in connection with the execution, delivery, and
performance of this Guaranty.
c. All financial statements furnished by Guarantor to Lender are complete and
correct and fairly present the financial condition of Guarantor as at the dates for which they are rendered
and the results of Guarantor's operations for the respective periods then ended in conformity with
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generally accepted accounting principles consistently applied. Since the latest of such dates there has not
been any material adverse change in Guarantor's financial condition or operations, properties, or business.
Guarantor, at Lender's request, will provide to Lender financial and credit information in form
acceptable to Lender, and all such financial information which currently has been, and all future financial
information which will be provided to Lender is and will be true and correct in all material respects and
fairly present Guarantor's financial condition since the date of the most recent information is provided.
Guarantor shall furnish Lender with the following: N/A
d. There is no litigation, administrative or other proceeding, notice of violation, or
government investigation pending, or to Guarantor's knowledge threatened, that might individually or in
the aggregate materially and adversely affect Guarantor's financial condition or operations.
e. No representation or warranty expressed in this Guaranty contains any untrue
statement of a material fact or omits to state any material fact necessary to make the statements contained
in this Guaranty not misleading.
8. DURATION; REINSTATEMENT. ThisGuaranty shall continue to be effective or be
reinstated if at any time any payment made or value received with respect to any Borrower's Obligations
is rescinded or must otherwise be restored or returned by Lender on the bankruptcy, insolvency, or
reorganization of Borrower, or for
any other reason, with the same effect as if such payment had not been
made or such value had not been received.
9. EVENTS OF DEFAULT. Any of the following shall be an Event of Default under this
Guaranty:
a. Any default with respect to payment or performance of any of Borrower's
Obligations.
b. The commencement of any bankruptcy, insolvency, receivership, or similar
proceeding by or against Guarantor or Borrower or both of them and, if commenced against Guarantor or
Borrower and such proceeding is not discharged within sixty (60) days of the date of commencement.
c. The attempt by Guarantor or Borrower or both of them to effect an assignment
for the benefit of creditors or a composition with creditors.
d. The insolvency of either Guarantor or Borrower, however evidenced.
e. The death of a Guarantor who is a natural person.
f. The liquidation, dissolution, termination, merger, or consolidation of a corporate
or partnership Guarantor.
g. The inaccuracy or incompleteness in any material respect of any representation
or warranty of Guarantor expressed in this Guaranty.
h. Default in the observance or performance of any provision of this Guaranty or
any mortgage and security agreement, security agreement, or other agreement or instrument made by
Guarantor in connection with this Guaranty.
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If an Event of Default occurs, at Lender's election, and without notice or demand, Guarantor's
obligations under this Guaranty shall become
immediately due, payable, and enforceable, whether or not
Borrower's Obligations are then due and payable.
10. SECURITY; SET-OFF. As additional security for the full and punctual payment and
performance of Guarantor's obligations under this Guaranty, Guarantor grants Lender a continuing lien on
and security interest in all securities or other property belonging to Guarantor or in which Guarantor has
an interest now or at any later time held by Lender in any capacity or by anyone else for Lender and in all
deposits and other sums at any time credited by or due from Lender to Guarantor or subject to withdrawal
by Guarantor. Lender is authorized at any time and from time to time after an Event of Default, without
notice to Guarantor and to the fullest extent permitted by law, to set off and apply such deposits and other
sums against Borrower's Obligations.
11. SUBORDINATION. The payment and performance of all present and future debts and
obligations of Borrower to Guarantor are hereby subordinated to the prior full payment and performance
of Borrower's Obligations and Guarantor agrees not
to demand, sue for, or attempt to collect or enforce
the payment or performance of any such indebtedness or obligations. Any amounts received by
Guarantor in respect of such indebtedness or obligations shall be held by Guarantor in trust for Lender,
segregated from Guarantor's other funds, and immediately paid over to Lender on account of Borrower's
Obligations without in any way affecting Guarantor's liability under this Guaranty.
Guarantor will file all claims against Borrower in any bankruptcy or other proceeding in which
the filing of claims is required or permitted on any indebtedness of Borrower to Guarantor. If Guarantor
does not file any such claim, Lender, as attorney-in-fact for Guarantor, is hereby authorized to do so in
Guarantor's name or, in Lender's discretion, to assign the claim and to file a proof in Lender's or its
nominee's name. Lender shall be entitled to receive the full amount of all payments made with respect to
any such claim, whether filed by Guarantor or by Lender and, to the full extent necessary for that
purpose, Guarantor hereby assigns to Lender all of Guarantor's right to any such claim and the related
payments or distributions to which Guarantor would otherwise be entitled.
12. SUBROGATION AND RELATED CLAIMS. Until all of Borrower's Obligations
have been paid and performed in full, Guarantor shall not
at any time (i) exercise in any manner any
subrogation or other rights against Borrower arising as a result of payment by Guarantor under this
Guaranty or (ii) exercise or assert any right of recourse to any collateral at any time held by Lender with
respect to Borrower's Obligations.
13. CONTINUING GUARANTY; TERMINATION. This Guaranty is a continuing
agreement that shall remain effective, even though from time to time there may be no unpaid Borrower's
Obligations outstanding, until noon of the next succeeding business day after written notice of
termination from Guarantor addressed to the attention of Lender's credit administration department is
actually received by Lender at its address specified in the caption of this Guaranty or other address
specified in a notice of change in conformity with Section 18. Termination shall be prospective from the
time when notice is effective and until that time this Guaranty is irrevocable as a unilateral offer under the
provisions of New York General Obligations Law Section 5-1 109. Notwithstanding such termination,
this Guaranty shall remain in full force and effect as to all Borrower's Obligations then outstanding until
the payment and satisfaction in full of all of Borrower's Obligations then outstanding at the effective time
of such termination, including subsequent extensions, modifications, and renewals, and until the
termination of all agreements then outstanding under which Lender may be obligated to extend credit or
other financial accommodations to Borrower. Guarantor's liability under Section 8 of this Guaranty shall
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survive such termination. Notice of termination by one or more Guarantors shall not affect the continuing
liability of any Guarantor not giving such notice.
attorneys'
14. EXPENSES. to pay all
Guarantor agrees fees and other costs and expenses
expenses"
incurred by Lender in enforcing this Guaranty. "Costs and as used in the preceding sentence
attorneys'
shall include, without limitation, the actual fees incurred by Lender in retaining counsel for
advice, suit, appeal, or any insolvency or other proceedings under the Federal Bankruptcy Code or
otherwise.
15. APPLICABLE LAW; VENUE. This Guaranty has been delivered to Lender and
accepted by Lender in the State of New York. This Guaranty shall be governed by and construed in
accordance with the laws of the State of New York. Any action
or proceeding brought on account of this
Guaranty shall be brought in any state or federal court in the State of New York in a county or judicial
district where Lender maintains a branch; provided that nothing contained in this Guaranty will prevent
Lender from bringing any action, enforcing any award or judgment or exercising any rights against
Guarantor within any other county, state or other foreign or domestic jurisdiction. Guarantor hereby
submits and consents to the jurisdiction of such courts and agrees that any such court is a convenient
forum.
16. RIGHTS CUMULATIVE. Lender's rights and remedies under this Guaranty are
cumulative and not exclusive of any remedies provided by law or any other agreement and this Guaranty
shall be additional to any other guaranty of Borrower's Obligations.
17. AMENDMENTS AND WAIVERS.
amendment or waiver No
of any provision of this
Guaranty nor consent to and departure by Guarantor from
any of its terms shall be effective unless it is in
writing and signed by Lender. No failure, delay, or forbearance by Lender in the exercise of any right
shall operate as a waiver of that right and the exercise or partial exercise of any right shall not preclude its
further exercise or the exercise of any other right. No notice to or demand on Guarantor shall be deemed
to waive the obligation of Guarantor or the right of Lender to take other or further action without notice
or demand as provided in this Guaranty.
18. NOTICES. Any notice, request, demand, statement or consent made hereunder or under
any applicable law pertaining hereto shall be in writing and shall be deemed sufficiently given or served
for all purposes when delivered (a) by personal service or courier service and shall be deemed given on
the date when signed for or, if refused, when refused by the person designated as an agent for receipt of
service, or (b) by United States certified mail, return receipt and shall be
requested, postage prepaid,
deemed given two (2) days after being sent, to any party hereto at the address first shown above for each
party or such other address of which a party shall have notified the party giving such notice in writing as
aforesaid. For purposes hereof, notices may be given by the parties hereto or by their attorneys.
Notices of change of address shall be effective only on actual receipt.
19. JOINT, SEVERAL AND INDEPENDENT OBLIGATIONS. This Guaranty is
independent of the liability of Borrower and independent of any other guaranty of Borrower's Obligations,
whether executed by Guarantor or by any other party. If this Guaranty is signed by two or more
Guarantors, the liability of each guarantor is joint and several and independent of the liability of any other
Guarantor. Each Guarantor has unconditionally delivered this Guaranty to Lender and failure to sign this
or any other guaranty by any other person shall not discharge the liability of any Guarantor. A separate
action may be brought against any Guarantor regardless of whether an action is brought against Borrower
or any other Guarantor or whether Borrower, any other Guarantor, are joined in the action and this
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Guaranty may be enforced independently of any other guaranty of Borrower's Obligations. All references
"Guarantor"
in this Guaranty to shall refer to each Guarantor individually as well as to all of them
collectively.
20. NO JURY. GUARANTOR AND LENDER EACH (A) AGREES NOT TO ELECT A
TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS GUARANTY OR
THE RELATIONSHIP BETWEEN THE PARTIES AS LENDER AND GUARANTOR THAT IS
TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH
RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN
THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY
EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT
LEGAL COUNSEL.
21. WAIVER OF CERTAIN OTHER RIGHTS. GUARANTOR HEREBY WAIVES
THE RIGHT TO INTERPOSE ANY COUNTERCLAIM OR CROSS-
DEFENSE, SET-OFF,
CLAIM OF ANY NATURE OR DESCRIPTION, ANY OBJECTION BASED ON FORUM NON
CONVENIENS OR VENUE, AND ANY CLAIM FOR CONSEQUENTIAL, PUNITIVE OR
SPECIAL DAMAGES.
22. SUCCESSORS. This Guaranty shall inure to the benefit of Lender and be binding on
Guarantor, and their respective successors and assigns, provided, however, that Guarantor's assignment or
purported assignment of any of its obligations under
Guaranty this without Lender's prior written consent
shall be wholly void. Lender may at any time, without notice, assign this Guaranty in whole or in part to
anyone to whom it assigns all or part of or any interest in the Obligations and Guarantor agrees, on Lender's
request, to execute new and separate guaranty agreements in the form of this Guaranty to confirm the
continuation of this Guaranty with respect to such interest or interests assigned or retained. Guarantor's
liability under this Guaranty shall continue with respect to any Obligations assign
Preview
FILED: CAYUGA COUNTY CLERK 02/22/2023 03:16 PM INDEX NO. E2023-0130 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2023 EXHIBIT B GOOD 1520.1 FILED: CAYUGA COUNTY CLERK 02/22/2023 03:16 PM INDEX NO. E2023-0130 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2023 COMMERCIAL GUARANTY DATED: January 24, 2020 GUARANTOR: Lisa Power with an address of 11337 South St., Cato, NY 13033 hereby agrees as follows with LENDER: AmeriCU Credit Union, a Federally Insured State-Chartered Credit Union, having an office at 1916 Black River Boulevard, Rome, New York 13440 In consideration of loans or other forms of credit or financial accommodations previously made or provided by Lender to BORROWER: The Red Light Spa, Inc., with an address of 5415 West Genesee St., Camillus, NY 13033 or to induce Lender to extend or to continue to extend credit to Borrower or to forbear in the exercise of rights against Borrower under existing credit arrangements or to provide other financial accommodations to Borrower: 1. GUARANTY. Guarantor hereby absolutely and unconditionally guarantees to Lender the punctual and full (i) payment, as and when due, whether at maturity, by acceleration, on demand, or otherwise, of all of Borrower's Obligations requiring payment and (ii) performance, as and when required, of all of Borrower's Obligations requiring performance. Obligations" 2. BORROWER'S OBLIGATIONS DEFINED. "Borrower's mean: All loans, debts, liabilities, overdrafts, and obligations of every kind and description at any time owed by Borrower to Lender, whether for payment or performance, direct or indirect, primary or as guarantor or surety, absolute or contingent joint or several, secured or unsecured, due or to become due, now existing, arising in the future (whether or not presently contemplated or related to obligations presently existing or contemplated), liquidated or unliquidated, irrespective of how they arise or are evidenced, together with any extensions, renewals, replacements, refundings, refinancings, or modifications, any and all loss and damages incurred by Lender because of any default by Borrower in the payment or performance of any of the foregoing, and all related interests fees, charges, advances, expenses, and attorney's fees. Said Borrower's Obligations may be increased or reduced, renewed, reborrowed, or repaid in full from time to time, and new Obligations incurred at any time even though no Obligations may then be otherwise outstanding. 3. LIABILITY OF GUARANTOR. This Guaranty is an absolute, unconditional, continuing, and unlimited guaranty of the payment and performance of Borrower's Obligations and not just of their collection or enforceability and, without regard to the adequacy of any other rights Lender may have, does not require that Lender first attempt to collect or enforce any of Borrower's Obligations from or against Borrower or any other person or resort to any security or other means of obtaining payment or performance of the Borrower's Obligations. Guarantor's liability is primary, direct, and immediate and shall be unconditional irrespective of the invalidity or unenforceability of any of {G0824756.1 } I FILED: CAYUGA COUNTY CLERK 02/22/2023 03:16 PM INDEX NO. E2023-0130 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2023 Borrower's Obligations for any reason or any circumstance that might otherwise constitute a legal or equitable discharge of a guarantor under applicable law. 4. ACKNOWLEDGEMENT OF CONSIDERATION. Guarantor acknowledges that valuable consideration supports this Guaranty, including without limitation, any commitment lend, to extension of credit, or other financial accommodation made by Lender to Borrower, whether before, contemporaneously with, or after the execution and delivery of this Guaranty, any extension, renewal, or replacement of any Borrower's Obligations at any time, and any forbearance with respect to any Borrower's Obligations at any time, any of which, if before the execution and delivery of this Guaranty, is sufficient under New York General Obligations Law Section 5-1105. 5. DEALINGS WITH BORROWER'S OBLIGATIONS. Guarantor agrees that Lender may at any time and from time to time without the consent of or notice to Guarantor and without impairing or releasing the obligations of Guarantor under this Guaranty: a. Changein any way, renew, or revoke any of the terms and conditions, whether of payment or other performance, of any of the Borrower's Obligations or any debt, liability, or obligation incurred directly or indirectly in respect thereof or held as collateral for Borrower's Obligations, including without limitation, increases or decreases in installment payments, modifications of the interest rate, and extensions of the time for payment. b. Surrender, release, exchange, substitute, augment, realize on, modify the terms of, or otherwise deal in any way and in any order with any collateral securing all or any part of the Borrower's Obligations and take or release other guaranties. c. Abstain from taking advantage of or realizing on any collateral or other guaranty. d. Waive compliance with or any default under Borrower's Obligations, grant any forbearance, indulgence, release, settlement or compromise with respect thereto, or subordinate the payment of all or any part thereof to the payment of other indebtedness of Borrower. e. Apply any payments received from Borrower or for Borrower's account irrespective of by whom made or in what manner realized, to such of Borrower's Obligations and in such manner and order as Borrower or other party making payment may direct, or in the absence of direction, its Lender may elect, regardless of what Borrower's Obligations remain unpaid or of any rights to application or marshalling that might otherwise apply. The foregoing provisions shall apply after the termination of this Guaranty to all Borrower's Obligations outstanding at the effective time of such termination. 6. WAIVERS. Guarantor unconditionally and expressly waives: a. Notice of Lender's acceptance of this Guaranty or its action or intention to act in reliance thereon. b. Notice of the creation or accrual of any of Borrower's Obligations or of any default or breach by Borrower. c. Presentment, demand for payment, and protest of any non-payment of any of Borrower's Obligations and notice of presentment, demand, dishonor, and protest. {G0824756.1}2 FILED: CAYUGA COUNTY CLERK 02/22/2023 03:16 PM INDEX NO. E2023-0130 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2023 d. Any present or future reliance on Lender to provide financial information concerning Borrower or notification of any adverse change in Borrower's financial condition or of any other circumstance which, even if known to Lender, might increase Guarantor's risk. e. Any change in Borrower's business existence, ownership, or structure. f. Any impairment of collateral securing the Borrower's Obligations or this Guaranty, including its loss or destruction or the failure to perfect or preserve Lender's or Borrower's rights in such collateral. g. Any defense based on or arising out of any defense of Borrower except payment and performance of Borrower's Obligations in full, including, without limitation, incapacity, lack of authority, death or disability of Borrower, statute of limitations, bankruptcy, insolvency, or reorganization of Borrower, or the termination or extension from any cause of Borrower's liability on the Borrower's Obligations. h. To the fullest extent permitted by law, the defense of any statute of limitations affecting Guarantor's liability or the enforcement of this Guaranty: any payment by Borrower or other circumstance that tolls any statute of limitations with respect to Borrower shall toll the statute of limitations with respect to Guarantor. i. Any defense based on a claim of prejudice to Guarantor arising from an election of remedies by Lender. j. Any other act or omission that might in any manner or to any extent vary the risk of Guarantor. 7. REPRESENTATIONS, WARRANTIES AND COVENANTS. Guarantor throughout the continuation of this Guaranty and until all of Borrower's Obligations have been discharged in full represents, warrants, and covenants that: a. If Guarantor is a corporation, limited liability company, partnership, or limited liability partnership, Guarantor is duly organized, validly existing, and in good standing under the laws of the state of its organization, and, if not organized in New York, is duly authorized to conduct business in the State of New York. Guarantor has the power to execute, deliver, and carry out the obligations of this Guaranty and has taken all necessary action to authorize the execution, delivery, and performance of this Guaranty. b. This Guaranty has been duly and validly executed and delivered and is the valid and binding agreement of Guarantor. Guarantor is not subject to nor obligated under any contract or permit or subject to any law, regulation, order, or decree that would be violated by Guarantor's executing or carrying out this Guaranty. No notice to, filing with, nor authorization, consent, or approval of any other person or any governmental authority is necessary in connection with the execution, delivery, and performance of this Guaranty. c. All financial statements furnished by Guarantor to Lender are complete and correct and fairly present the financial condition of Guarantor as at the dates for which they are rendered and the results of Guarantor's operations for the respective periods then ended in conformity with {G0824756.1}3 FILED: CAYUGA COUNTY CLERK 02/22/2023 03:16 PM INDEX NO. E2023-0130 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2023 generally accepted accounting principles consistently applied. Since the latest of such dates there has not been any material adverse change in Guarantor's financial condition or operations, properties, or business. Guarantor, at Lender's request, will provide to Lender financial and credit information in form acceptable to Lender, and all such financial information which currently has been, and all future financial information which will be provided to Lender is and will be true and correct in all material respects and fairly present Guarantor's financial condition since the date of the most recent information is provided. Guarantor shall furnish Lender with the following: N/A d. There is no litigation, administrative or other proceeding, notice of violation, or government investigation pending, or to Guarantor's knowledge threatened, that might individually or in the aggregate materially and adversely affect Guarantor's financial condition or operations. e. No representation or warranty expressed in this Guaranty contains any untrue statement of a material fact or omits to state any material fact necessary to make the statements contained in this Guaranty not misleading. 8. DURATION; REINSTATEMENT. ThisGuaranty shall continue to be effective or be reinstated if at any time any payment made or value received with respect to any Borrower's Obligations is rescinded or must otherwise be restored or returned by Lender on the bankruptcy, insolvency, or reorganization of Borrower, or for any other reason, with the same effect as if such payment had not been made or such value had not been received. 9. EVENTS OF DEFAULT. Any of the following shall be an Event of Default under this Guaranty: a. Any default with respect to payment or performance of any of Borrower's Obligations. b. The commencement of any bankruptcy, insolvency, receivership, or similar proceeding by or against Guarantor or Borrower or both of them and, if commenced against Guarantor or Borrower and such proceeding is not discharged within sixty (60) days of the date of commencement. c. The attempt by Guarantor or Borrower or both of them to effect an assignment for the benefit of creditors or a composition with creditors. d. The insolvency of either Guarantor or Borrower, however evidenced. e. The death of a Guarantor who is a natural person. f. The liquidation, dissolution, termination, merger, or consolidation of a corporate or partnership Guarantor. g. The inaccuracy or incompleteness in any material respect of any representation or warranty of Guarantor expressed in this Guaranty. h. Default in the observance or performance of any provision of this Guaranty or any mortgage and security agreement, security agreement, or other agreement or instrument made by Guarantor in connection with this Guaranty. (G0824756.1}4 FILED: CAYUGA COUNTY CLERK 02/22/2023 03:16 PM INDEX NO. E2023-0130 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2023 If an Event of Default occurs, at Lender's election, and without notice or demand, Guarantor's obligations under this Guaranty shall become immediately due, payable, and enforceable, whether or not Borrower's Obligations are then due and payable. 10. SECURITY; SET-OFF. As additional security for the full and punctual payment and performance of Guarantor's obligations under this Guaranty, Guarantor grants Lender a continuing lien on and security interest in all securities or other property belonging to Guarantor or in which Guarantor has an interest now or at any later time held by Lender in any capacity or by anyone else for Lender and in all deposits and other sums at any time credited by or due from Lender to Guarantor or subject to withdrawal by Guarantor. Lender is authorized at any time and from time to time after an Event of Default, without notice to Guarantor and to the fullest extent permitted by law, to set off and apply such deposits and other sums against Borrower's Obligations. 11. SUBORDINATION. The payment and performance of all present and future debts and obligations of Borrower to Guarantor are hereby subordinated to the prior full payment and performance of Borrower's Obligations and Guarantor agrees not to demand, sue for, or attempt to collect or enforce the payment or performance of any such indebtedness or obligations. Any amounts received by Guarantor in respect of such indebtedness or obligations shall be held by Guarantor in trust for Lender, segregated from Guarantor's other funds, and immediately paid over to Lender on account of Borrower's Obligations without in any way affecting Guarantor's liability under this Guaranty. Guarantor will file all claims against Borrower in any bankruptcy or other proceeding in which the filing of claims is required or permitted on any indebtedness of Borrower to Guarantor. If Guarantor does not file any such claim, Lender, as attorney-in-fact for Guarantor, is hereby authorized to do so in Guarantor's name or, in Lender's discretion, to assign the claim and to file a proof in Lender's or its nominee's name. Lender shall be entitled to receive the full amount of all payments made with respect to any such claim, whether filed by Guarantor or by Lender and, to the full extent necessary for that purpose, Guarantor hereby assigns to Lender all of Guarantor's right to any such claim and the related payments or distributions to which Guarantor would otherwise be entitled. 12. SUBROGATION AND RELATED CLAIMS. Until all of Borrower's Obligations have been paid and performed in full, Guarantor shall not at any time (i) exercise in any manner any subrogation or other rights against Borrower arising as a result of payment by Guarantor under this Guaranty or (ii) exercise or assert any right of recourse to any collateral at any time held by Lender with respect to Borrower's Obligations. 13. CONTINUING GUARANTY; TERMINATION. This Guaranty is a continuing agreement that shall remain effective, even though from time to time there may be no unpaid Borrower's Obligations outstanding, until noon of the next succeeding business day after written notice of termination from Guarantor addressed to the attention of Lender's credit administration department is actually received by Lender at its address specified in the caption of this Guaranty or other address specified in a notice of change in conformity with Section 18. Termination shall be prospective from the time when notice is effective and until that time this Guaranty is irrevocable as a unilateral offer under the provisions of New York General Obligations Law Section 5-1 109. Notwithstanding such termination, this Guaranty shall remain in full force and effect as to all Borrower's Obligations then outstanding until the payment and satisfaction in full of all of Borrower's Obligations then outstanding at the effective time of such termination, including subsequent extensions, modifications, and renewals, and until the termination of all agreements then outstanding under which Lender may be obligated to extend credit or other financial accommodations to Borrower. Guarantor's liability under Section 8 of this Guaranty shall {G0824756. l)5 FILED: CAYUGA COUNTY CLERK 02/22/2023 03:16 PM INDEX NO. E2023-0130 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2023 survive such termination. Notice of termination by one or more Guarantors shall not affect the continuing liability of any Guarantor not giving such notice. attorneys' 14. EXPENSES. to pay all Guarantor agrees fees and other costs and expenses expenses" incurred by Lender in enforcing this Guaranty. "Costs and as used in the preceding sentence attorneys' shall include, without limitation, the actual fees incurred by Lender in retaining counsel for advice, suit, appeal, or any insolvency or other proceedings under the Federal Bankruptcy Code or otherwise. 15. APPLICABLE LAW; VENUE. This Guaranty has been delivered to Lender and accepted by Lender in the State of New York. This Guaranty shall be governed by and construed in accordance with the laws of the State of New York. Any action or proceeding brought on account of this Guaranty shall be brought in any state or federal court in the State of New York in a county or judicial district where Lender maintains a branch; provided that nothing contained in this Guaranty will prevent Lender from bringing any action, enforcing any award or judgment or exercising any rights against Guarantor within any other county, state or other foreign or domestic jurisdiction. Guarantor hereby submits and consents to the jurisdiction of such courts and agrees that any such court is a convenient forum. 16. RIGHTS CUMULATIVE. Lender's rights and remedies under this Guaranty are cumulative and not exclusive of any remedies provided by law or any other agreement and this Guaranty shall be additional to any other guaranty of Borrower's Obligations. 17. AMENDMENTS AND WAIVERS. amendment or waiver No of any provision of this Guaranty nor consent to and departure by Guarantor from any of its terms shall be effective unless it is in writing and signed by Lender. No failure, delay, or forbearance by Lender in the exercise of any right shall operate as a waiver of that right and the exercise or partial exercise of any right shall not preclude its further exercise or the exercise of any other right. No notice to or demand on Guarantor shall be deemed to waive the obligation of Guarantor or the right of Lender to take other or further action without notice or demand as provided in this Guaranty. 18. NOTICES. Any notice, request, demand, statement or consent made hereunder or under any applicable law pertaining hereto shall be in writing and shall be deemed sufficiently given or served for all purposes when delivered (a) by personal service or courier service and shall be deemed given on the date when signed for or, if refused, when refused by the person designated as an agent for receipt of service, or (b) by United States certified mail, return receipt and shall be requested, postage prepaid, deemed given two (2) days after being sent, to any party hereto at the address first shown above for each party or such other address of which a party shall have notified the party giving such notice in writing as aforesaid. For purposes hereof, notices may be given by the parties hereto or by their attorneys. Notices of change of address shall be effective only on actual receipt. 19. JOINT, SEVERAL AND INDEPENDENT OBLIGATIONS. This Guaranty is independent of the liability of Borrower and independent of any other guaranty of Borrower's Obligations, whether executed by Guarantor or by any other party. If this Guaranty is signed by two or more Guarantors, the liability of each guarantor is joint and several and independent of the liability of any other Guarantor. Each Guarantor has unconditionally delivered this Guaranty to Lender and failure to sign this or any other guaranty by any other person shall not discharge the liability of any Guarantor. A separate action may be brought against any Guarantor regardless of whether an action is brought against Borrower or any other Guarantor or whether Borrower, any other Guarantor, are joined in the action and this {G0824756.1}6 FILED: CAYUGA COUNTY CLERK 02/22/2023 03:16 PM INDEX NO. E2023-0130 NYSCEF DOC. NO. 4 RECEIVED NYSCEF: 02/22/2023 Guaranty may be enforced independently of any other guaranty of Borrower's Obligations. All references "Guarantor" in this Guaranty to shall refer to each Guarantor individually as well as to all of them collectively. 20. NO JURY. GUARANTOR AND LENDER EACH (A) AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS GUARANTY OR THE RELATIONSHIP BETWEEN THE PARTIES AS LENDER AND GUARANTOR THAT IS TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL. 21. WAIVER OF CERTAIN OTHER RIGHTS. GUARANTOR HEREBY WAIVES THE RIGHT TO INTERPOSE ANY COUNTERCLAIM OR CROSS- DEFENSE, SET-OFF, CLAIM OF ANY NATURE OR DESCRIPTION, ANY OBJECTION BASED ON FORUM NON CONVENIENS OR VENUE, AND ANY CLAIM FOR CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES. 22. SUCCESSORS. This Guaranty shall inure to the benefit of Lender and be binding on Guarantor, and their respective successors and assigns, provided, however, that Guarantor's assignment or purported assignment of any of its obligations under Guaranty this without Lender's prior written consent shall be wholly void. Lender may at any time, without notice, assign this Guaranty in whole or in part to anyone to whom it assigns all or part of or any interest in the Obligations and Guarantor agrees, on Lender's request, to execute new and separate guaranty agreements in the form of this Guaranty to confirm the continuation of this Guaranty with respect to such interest or interests assigned or retained. Guarantor's liability under this Guaranty shall continue with respect to any Obligations assign