PERSONAL GUARANT
Y
1.
Identification .
This
Guaranty (the "Guaranty"), dated as of November 16, 2007, is
entered into by Ofer Arbib (“Guarantor”), for the
benefit of Jonathan Ilan Ofir (“Ofir").
2.
Recitals .
2.1
Guarantor
is the principal and a shareholder of TSSS, Inc., a Delaware
corporation (the “Company”).
2.2
The
Company owes Ofir $846,830.89 pursuant to the Promissory Note
dated the date hereof (the “Note”).
2.3
In
consideration for the Note made by the Company, as security
for the performance by the Company of its obligations under
the Note and as security for the repayment of the loan
provided for therein and all other sums due from the Company
to Ofir arising under the Note, the Assignment and
Indemnification Agreement dated the date hereof between the
Company and Ofir, the Purchase Agreement dated the date hereof
among the Company, Ofir and Jonathan Rigbi and any other
agreement between or among them relating to the foregoing
(collectively, the "Obligations"), Guarantor, for good and
valuable consideration, receipt of which is acknowledged, has
agreed to enter into this Guaranty.
3.
Guaranty .
3.1
Guaranty .
Guarantor hereby unconditionally and irrevocably guarantees, the
punctual payment, performance and observance when due, whether at
stated maturity, by acceleration or otherwise, of all of the
Obligations now or hereafter existing, whether for principal,
interest (including, without limitation, all interest that accrues
after the commencement of any insolvency, bankruptcy or
reorganization of the Company, whether or not constituting an
allowed claim in such proceeding), fees, commissions, expense
reimbursements, liquidated damages, indemnifications or otherwise
(such obligations, to the extent not paid by the Company being
included in the “Obligations”), and agrees to pay any
and all costs, fees and expenses (including counsel fees and
expenses) incurred by Ofir in enforcing any rights under the
guaranty set forth herein.
3.2
Guaranty Absolute .
Guarantor guarantees that the Obligations will be paid strictly in
accordance with the terms of the Note, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of Ofir with respect
thereto. The obligations of Guarantor under this Guaranty are
independent of the Obligations, and a separate action or actions
may be brought and prosecuted against Guarantor to enforce such
Obligations, irrespective of whether any action is brought against
the Company or whether the Company is joined in any such action or
actions. The liability of Guarantor under this Guaranty constitutes
a primary obligation, and not a contract of surety, and to the
extent permitted by law, shall be irrevocable, absolute and
unconditional irrespective of, and Guarantor hereby irrevocably
waives any defenses it may now or hereafter have in any way
relating to, any or all of the following:
(a)
any lack of validity or enforceability of the Note or any
agreement or instrument relating thereto;
(b)
any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to departure from the
Note;
(c)
any change, restructuring or termination of the corporate,
limited liability company or partnership structure or
existence of the Company; or
(d)
any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Company that might otherwise constitute
a defense available to, or a discharge of, the Company,
including without limitation, any defense of DCI USA, Inc. to
the payments due to the Company.
This
Guaranty shall continue to be effective or be reinstated, as
the case may be, if at any time any payment of any of the
Obligations is rescinded or must otherwise be returned by Ofir
or any other entity upon the insolvency, bankruptcy or
reorganization of the Company or otherwise (and whether as a
result of any demand, settlement, litigation or otherwise),
all as though such payment had not been made.
3.3
Waiver .
Guarantor hereby waives promptness, diligence, notice of acceptance
and any other notice with respect to any of the Obligations and
this Guaranty and any requirement that Ofir exhaust any right or
take any action against the Company or any other person or entity.
Guarantor acknowledges that he will receive direct and indirect
benefits from the financing arrangements contemplated herein and
that the waiver set forth in this Section 3.3 is knowingly
made in contemplation of such benefits. Guarantor hereby waives any
right to revoke this Guaranty, and acknowledges that this Guaranty
is continuing in nature and applies to all Obligations, whether
existing now or in the future.
3.4
Continuing Guaranty; Assignments .
This Guaranty is a continuing guaranty and shall (a)
re
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