EXHIBIT 10.2
SECURED GUARANTY
This Guaranty ("Guaranty") dated as of _________ , is entered into between
SEARCHHELP, INC. ("Guarantor"), in favor of COMMERCIAL CAPITAL LENDING, LLC
("Creditor").
RECITALS
A. Creditor and E-TOP-PICS, INC. ("Client") are entering into an ACCOUNTS
RECEIVABLE PURCHASE AGREEMENT (the "Agreement") pursuant to which Creditor will
purchase certain accounts receivable from Client.
B. In order to induce Creditor to enter into the Agreement with Client,
Guarantor has agreed to enter into this Guaranty in order to guaranty any loans
or advances or other financial accommodations made or extended by Creditor.
ACCORDINGLY, in consideration of the mutual covenants contained herein,
the parties agree as follows:
AGREEMENT
1 GUARANTY
1.1 Guaranty of Obligations. Guarantor, and any and all successor entities
resulting by operation of merger, law, or otherwise, including but not limited
to any successor debtor in possession of Guarantor as such term is used in
Chapter 11 of the United States Bankruptcy Code (11 U.S.C. sect. 1101 et seq.),
unconditionally, absolutely and irrevocably guarantees and promises to pay to
Creditor, upon the written demand of Creditor, in lawful money of the United
States of America and in immediately available funds, any and all indebtedness
and obligations (hereinafter collectively, the "Guaranteed Obligations") of the
Client, and all successors-in-interest of Client by operation of law or
otherwise, including, but not limited to, any Trustee (as defined in the United
States Bankruptcy Code, 11 U.S.C. sect. 101 et seq., or successor statutes) or
debtor-in-possession, and including, but not limited to, any
successor-in-interest arising out of any merger or reorganization involving
Client, whether Client is a surviving or disappearing person or entity as a
result of those transactions to Creditor under the Agreement or any other note,
loan agreement, credit agreement, security agreement, pledge agreement,
mortgage, or other documents or instrument (hereinafter collectively, the
"Documents") or otherwise.
The term "Guaranteed Obligations" is used herein in its most comprehensive
sense and includes all obligations of Client to Creditor (including, without
limitation, attorneys' fees and expenses, and unpaid interest, including
interest that, but for the filing of a petition in bankruptcy, would have
accrued on the Guaranteed Obligations) now existing or hereafter incurred or
created, whether voluntarily or involuntarily, and however arising, whether due
or not due, absolute or contingent, liquidate or unliquidated, whether Client
may be liable jointly, severally, or solidarily with others, whether recovery
upon such indebtedness may be or hereafter becomes barred by any statute of
limitations or whether such indebtedness may be or hereafter becomes otherwise
unenforceable, and includes Client's prompt, full and faithful performance,
observance and discharge of each and every term, condition, agreement,
representation, warranty, undertaking and provision to be performed by Client
under the Documents or otherwise. Guarantor agrees that this Guaranty
constitutes a guaranty of payment when due and not of collection.
1.2 Unlimited Guaranty. There are no dollar limitations on the amount of
Guarantor's liability under this Guaranty.
1.3 Continuing Guaranty. This Guaranty is a continuing guaranty and shall
remain effective until the Guaranteed Obligations have been fully paid,
performed and discharged as provided in Section 10 and Creditor has given
written notice of that fact to Guarantor.
1.4 Solidary Liability. Guarantor agrees that its liability and
obligations in favor of Creditor shall be joint, several and in solidor with
Client and all other guarantors of the Guaranteed Obligations, and that a
separate action or actions may be brought and prosecuted against Guarantor to
enforce Creditor's rights under this Guaranty, whether action is brought against
Client or whether Client is joined in any such action or actions. Guarantor
agrees that any releases which may be given by Creditor to Client or any other
guarantor shall not release it from this Guaranty.
2 SECURITY INTEREST
As collateral securing the Guaranteed Obligations, Guarantor grants to
Creditor a continuing security interest in and to any collateral now or
hereafter described in any form UCC-1 filed against Guarantor naming Creditor as
the secured party, and all of Guarantor's right, title and interest in and to
the following property, now owned and hereafter acquired:
2.1 All accounts, chattel paper, general intangibles, including, but not
limited to, tax and duty refunds, registered and unregistered patents,
trademarks, service marks, copyrights, trade names, applications for the
foregoing, trade secrets, customer lists, licenses, whether as licensor or
licensee, documents, instruments, deposit accounts, certificates of deposit,
securities, and all rights of Guarantor as a seller of goods, including rights
of reclamation, replevin and stoppage in transit;
2.2 All books and records relating to all of the foregoing property and
interest in property, including, without limitation, all computer programs,
printed output and computer readable data in the possession or control of
Guarantor, any computer service bureau or other third party; and
2.3 All proceeds of the foregoing, including, but not limited to, all
insurance proceeds, all claims against third parties of loss or destruction of
or damage to any of the foregoing, and all income from the lease or rental of
any of the foregoing.
3 SPECIAL POWER OF ATTORNEY
Guarantor hereby grants Creditor an irrevocable power of attorney (which,
being coupled with an interest, is irrevocable) for the purpose of acting on
Guarantor's behalf to:
3.1 endorse or sign Guarantor's name on any checks or other instruments
which come into Creditor's possession with respect to Client's accounts
receivable; and
3.2 negotiate, transfer, deposit, and otherwise deal with such checks or
other instruments as the sole owner thereof.
In granting this Power of Attorney, Guarantor hereby cancels and revokes
all previous powers of attorney in respect of the matters comprised herein which
have been granted to any other person.
4 INDEMNITY
4.1 Indemnity. In addition to the payment of expenses pursuant to Section
11.1.2, Guarantor agrees to indemnify, defend, exonerate, pay and hold Creditor
and the officers, directors, employees and agents of Creditor (the
"Indemnitees") harmless from and against any and all liabilities, obligations,
losses, damages, penalties, actions, causes of action, judgments, suits, claims,
costs, expenses and disbursements of any kind or nature whatsoever (including,
without limitation, the fees and disbursements of counsel to Creditor and expert
witness fees and disbursements) for such Indemnitees in connection with any
investigative, administrative or judicial proceeding, whether or not such
Indemnitee shall be designated a party thereto, that may be imposed on, incurred
by or asserted against such Indemnitee, in any manner relating to or arising out
of or in connection with this Guaranty (the "Indemnified Liabilities").
Notwithstanding the foregoing, Indemnified Liabilities shall not include
liabilities, obligations, losses, damages, penalties, actions, causes of action,
judgments, suits, claims, costs, expenses and disbursements to the extent caused
by or resulting from the willful misconduct or gross negligence of such
Indemnitee.
4.2 Notice. Each Indemnitee will promptly notify Guarantor of each even of
which it has knowledge that may give rise to a claim under this Section.
4.3 Defense of Actions. If any investigative, judicial or administrative
proceeding arising in connection with any of the Indemnified Liabilities is
brought against any Indemnitee indemnified or intended to be indemnified
pursuant to this Section, Guarantor, to the extent and in the manner directed by
the Indemnitee or intended Indemnitee, will resist and defend such action, suit
or proceeding or cause the same to be resisted and defended by counsel
designated by Guarantor (which counsel shall be satisfactory to the Indemnitee
or intended Indemnitee). Each Indemnitee will use its best efforts to cooperate
in the defense of any such action, suit or proceeding. To the extent that the
undertaking to indemnify, pay and hold harmless set forth in the preceding
sentence may be unenforceable because it is violative of any law or public
policy, Guarantor shall make the maximum contribution to the payment and
satisfaction of each of the Indemnified Liabilities that is permissible under
applicable law.
5 CONSENTS BY GUARANTOR
5.1 Consents. Guarantor hereby authorizes Creditor, without notice or
demand and without affecting Guarantor's liability hereunder, from time to time
to:
5.1.1 Changes in Terms. Renew, compromise, extend, refinance, accept
partial payments, accelerate or restructure the Guaranteed Obligations or
otherwise change the time for payment or the terms of any of the Guaranteed
Obligations, or any part thereof, including, without limitation, increasing or
decreasing the rate of interest thereof;
5.1.2 Amendment of Documents. Waive, amend, rescind or modify any of the
terms or provisions of the Documents or any agreement or document executed in
connection therewith;
5.1.3 Liquidation of Guaranteed Obligations. Settle, release, compromise,
collect or otherwise liquidate the Guaranteed Obligations, or any part thereof,
and any security or collateral therefor in any manner as Creditor may determine
in its sole discretion;
5.1.4 Collateral. Take and hold collateral to secure the payment of the
Guaranteed Obligations and exchange, enforce, waive and release any such
collateral, and apply such collateral and direct the order or manner of sale
thereof as Creditor in its sole discretion may determine;
5.1.5 Releases. Release the Client, or release or substitute any one or
more other guarantors; and
5.1.6 Assignment. Assign, without notice, this Guaranty in whole or in
part and Creditor's rights hereunder to any one at any time.
5.1.7 Application of Payments. Apply payments on account of the Guaranteed
Obligations, from any source in any manner deemed to be in the best interests of
Creditor in the sole discretion of Creditor, including the application of
payments on a "last-in-first-out basis;" and
5.1.8 Other Guaranties. Take other guaranties from other persons and/or
entities to further secure the Guaranteed Obligations.
5.2 Non-Release of Guarantor. Guarantor agrees that Creditor may do any or
all of the foregoing in such manner, upon such terms, and at such times as
Creditor, in its sole discretion, deems advisable, without, in any way or
respect, impairing, affecting, reducing or releasing Guarantor from its
undertakings hereunder and Guarantor hereby consents to each and all of the
foregoing acts, events and occurrences.
6 WAIVERS
6.1 Defenses. Guarantor hereby waives any right to assert against Creditor
as a defense, counterclaim, setoff or crossclaim, all defenses including, but
not limited to, the duty to act in a commercially reasonable manner, and further
including, but not limited to, any defense arising by reason of any modification
of the Guaranteed Obligations in any form whatsoever, any counterclaim, any
setoff or any crossclaim which Guarantor may now or at any time hereafter have
under applicable law, rule, arrangement or relationship against Client, Creditor
or any other party. Guarantor waives all defenses, counterclaims and setoffs of
any kind or nature arising, directly or indirectly, from the present or future
lack of perfection, sufficiency, validity or enforceability of the Documents or
any security interest thereunder.
6.2 Election of Remedies. Guarantor hereby waives any defense arising by
reason of any claim or defense based upon an election of remedies by Creditor,
which in any manner impairs, affects, reduces, releases, destroys or
extinguishes Guarantor's subrogation rights, rights to proceed against Client
for reimbursement, contribution, indemnity or any other rights of Guarantor to
proceed against any other person or security.
6.3 Presentment, Demand and Notice. Guarantor waives all presentments,
demands for performance, notices of nonperformance, protests, notices of
protest, notices of dishonor, notices of default, notice of acceptance of this
Guaranty, diligence, and notices of the existence, or creation of the Guaranteed
Obligations or of new or additional Guaranteed Obligations incurred or created
after the date of this Guaranty, and all other notices or formalities to which
Guarantor may be entitled under applicable law.
6.4 Remedies Against Client. As a condition to payment or performance by
Guarantor under this Guaranty, Creditor shall not be required to, and Guarantor
hereby waives any and all rights to require Creditor to, prosecute
or seek to enforce any remedies against Client or any other party liable to
Creditor on account of the Guaranteed Obligations or to require Creditor to seek
to enforce or resort to any remedies with respect to any security interests,
liens or encumbrances granted to Client by Creditor or any other party on
account of the Guaranteed Obligations.
6.5 Subrogation Rights. Guarantor shall have no right of subrogation,
reimbursement, exoneration, contribution or any other rights that would result
in Guarantor being deemed a creditor of Client under the federal Bankruptcy Code
or any other law. Guarantor irrevocably waives all such rights, the right to
assert any such rights and any right to enforce any remedy which Creditor now or
any hereafter have against Client and hereby irrevocably waives any benefit of
and any right to participate in, any security now or hereafter held by Creditor,
however acquired.
6.6 Claims Against Client. Guarantor hereby waives any and all claims
which Guarantor may now or hereafter have against Client, whether arising
hereunder or otherwise.
6.7 Revocation. Guarantor shall have no right to revoke this continuing
guaranty.
6.8 Rights to Compel Action by Creditor. Guarantor shall have no right, to
require Creditor to proceed against Client, to proceed against or exhaust any
security in any particular order, to apply property recovered from Client to
discharge or reduce the Guaranteed Obligations hereunder, and to require
diligence in taking any action to collect on the obligations of Client or to
collect on the Guaranteed Obligations hereunder.
Each of the waivers set forth above is made by Guarantor with Guarantor's
full knowledge of the significance and consequences resulting therefrom.
Guarantor hereby agrees that these waivers are reasonable and not contrary to
public policy, and agrees that Guarantor will not contest these waivers on
grounds of reasonableness or contravention to public policy. However, in the
event any of these waivers or any part thereof are nevertheless deemed contrary
to public policy, Guarantor agrees that those waivers and/or those parts of
waivers not deemed contrary to public policy are severable and will survive with
full force and effect.
7 SUBORDINATION
Any and all present and future debts and obligations of Client to
Guarantor are hereby postponed in favor of and subordinated of the full payment
and performance of all present and future debts and obligations of Client to
Creditor. Any instruments now or hereafter evidencing any indebtedness of Client
to Guarantor shall be marked with a legend that the same are subject to this
Guaranty and, if Creditor so requests, shall be delivered to Creditor. Upon the
liquidation, bankruptcy, or distribution of any of Client's assets, Guarantor
shall assign to the Creditor all of Guarantor's claims on account of such
indebtedness so that Creditor shall receive all dividends and payments on such
indebtedness until payment in full of the Guaranteed Obligations. This Section
shall constitute such an assignment if Guarantor fails to execute and deliver
such an assignment. All monies or other property of Guarantor at any time in
Creditor's possession may be held by Creditor as security for any and all
obligations of Guarantor to Creditor, now existing or hereafter arising, whether
absolute or contingent, whether due or to become due, and whether under this
Guaranty or otherwise. Guarantor also agrees that Creditor's books and records
showing the account between Creditor and Client shall be admissible in any
action or proceeding and shall be binding upon Guarantor for the purpose of
establishing the terms set forth therein and shall constitute prima facie proof
thereof.
8 FINANCIAL CONDITION OF CLIENT
Guarantor is presently informed of the financial condition of Client and
of all other circumstances which a diligent inquiry would reveal and which bear
upon the risk of nonpayment of the Guaranteed Obligations. Guarantor hereby
covenants that it will continue to keep itself informed of Client's financial
condition and of all other circumstances which bear upon the risk of nonpayment.
Absent a written request for such information by Guarantor to Creditor,
Guarantor hereby waives its right, if any, to require, and Creditor is relieved
of any obligation or duty to disclose to Guarantor any information which
Creditor may now or hereafter acquire concerning such condition or
circumstances.
9 REPRESENTATIONS AND WARRANTIES
Guarantor represents and warrants to Creditor that the following
statements are true, correct and complete as of the date of this Guaranty:
9.1 No Conflict. Neither the execution and delivery of this Guaranty nor
the fulfillment of or compliance with the terms and conditions of this Guaranty
conflicts with or shall result in a breach of the terms, conditions or
provisions of the Articles of Incorporation or Bylaws of Guarantor or any
agreement or instrument to which Guarantor is now a party or by which it is
bound, or constitutes a default under any of foregoing, or results in the
creation or imposition of any lien,
charge or encumbrance whatsoever upon any of the property or assets of Guarantor
under the terms of any instrument or agreement or violates any provision of law
or any order of any court or other agency of government.
9.2 No Actions or Proceedings. There is no pending or threatened suit or
proceeding affecting Guarantor before any court, governmental agency, or
arbitrator which might affect the enforceability of this Guaranty or the
business, operations, assets or condition of Guarantor.
9.3 Adequate Consideration. The consideration given or provided, or to be
given or provided, by Creditor in connection with this Guaranty is adequate and
satisfactory in all respects to support this Guaranty and Guarantor's
obligations hereunder.
9.4 Full Information. Creditor has made no warranty or representation
concerning Client's creditworthiness, and Guarantor has full information
concerning the financial condition of Client and has adequate means of
monitoring the financial condition of Client in the future, such that Guarantor
has and will continue to be adequately informed of the financial condition of
Client.
9.5 Solvency. Guarantor is solvent and the execution of this Guaranty does
not make Guarantor insolvent for any reason whatsoever.
10 TERMINATION OF GUARANTY
10.1 Guarantor's obligations under this Guaranty shall continue in full
force and effect and this Guaranty shall not terminate until thirty days after
the occurrence of all of the following:
10.1.1 The Guaranteed Obligations have been fully paid, performed and
discharged;
10.1.2 The Creditor is not under any obligation to extend financial
accommodations to Client;
10.1.3 Guarantor has delivered the General Release required to be
delivered by the Agreement upon termination of the Agreement, and this General
Release has been sent after the occurrence of the events described in Sections
10.1.1 and 10.1.2 above.
10.2 The Guaranteed Obligations shall not be considered fully paid,
performed and discharged unless and until all payments by Client to Creditor are
no longer subject to any right on the party of any person whomsoever, including,
but not limited to, Client, Client as debtor-in-possession, or any trustee or
receiver in bankruptcy, to set aside such payments or seek to recoup the amount
of such payments, or any part thereof. The foregoing shall include, by way of
example and not by way of limitation, all rights to recover preferences voidable
under Title 11 of the United States Code.
10.3 In the event that any such payments by Client to Creditor are set
aside after the making thereof, in whole or in part, or settled without
litigation, to the extent of such settlement, all of which is within Creditor's
discretion, Guarantor shall be liable for the full amount Creditor is required
to repay plus costs, interest, attorneys' fees and any and all expenses which
Creditor paid or incurred in connection therewith.
11 MISCELLANEOUS
11.1 Costs and Expenses. Guarantor agrees to pay, on Creditor's demand,
all of the following costs and expenses, whether incurred before or after the
commencement of any case with respect to Client of the Guaranteed Obligations
under the United States Bankruptcy Code or any successor statute:
11.1.1 all attorneys' fees and all other costs and out-of-pocket expenses
which may be incurred by Creditor in the negotiation, preparation, enforcement
or collection of this Guaranty and the Guaranteed Obligations, whether or not
suit is filed; and
11.1.2 all fees, costs, and expenses, including, without limitation,
attorneys' fees, costs, and expenses, which Creditor incurs in enforcing any
judgment rendered in connection with this Guaranty. This provision is severable
from all other provisions hereof and shall survive, and not be deemed merged
into, any such judgment.
11.2 Headings. The Section and other headings contained in this Guaranty
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Guaranty.
11.3 Governing Law. The validity, construction and performance of this
Guaranty shall be governed by the laws, without regard to the laws as to choice
or conflict of laws, of the State of Louisiana.
11.4 Entire Agreement. This Guaranty embodies the entire agreement and
understanding between the parties pertaining to the subject matter of this
Guaranty, and supersedes all prior agreements, understandings, negotiations,
representations and discussions, whether verbal or written, of the parties
pertaining to that subject matter.
11.5 Binding Effect. The provisions of this Guaranty shall bind and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.
11.6 Parties in Interest. Nothing in this Guaranty, expressed or implied,
is intended to confer on any person or entity other than the parties any right
or remedy under or by reason of this Guaranty.
11.7 Notices. Any written notice or communication required or permitted by
this Guaranty to be given to Guarantor shall be deemed sufficiently given when
such notice is (1) mailed postage prepaid by certified or registered mail,
return receipt requested, or (2) courier delivered personally to the party
concerned at the address set forth herein, or (3) facsimile transmitted to the
party concerned at the telecopier number given by the respective party. All
notices from Guarantor to Creditor shall be effective 5 days after actual
receipt by an officer of Creditor at Creditor's offices set forth above.
11.8 Amendment and Waiver. This Guaranty may be amended, modified or
supplemented only by a writing executed by each of the parties. Any party may in
writing waive any provision of this Guaranty to the extent such provision is for
the benefit of the waiving party. No action taken pursuant to this Guaranty,
including any investigation by or on behalf of any party, shall be deemed to
constitute a waiver by that party of its or any other party's compliance with
any representations or warranties or with any provisions of this Guaranty. No
waiver by any party of a breach of any provision of this Guaranty shall be
construed as a waiver of any subsequent or different breach, and no forbearance
by a party to seek a remedy for noncompliance or breach by another party shall
be construed as a waiver of any right or remedy with respect to such
noncompliance or breach.
11.9 Waiver of Right to Trial by Jury. IN RECOGNITION OF THE HIGHER COSTS
AND DELAY WHICH MAY RESULT FROM A JURY TRIAL, GUARANTOR AND CREDITOR WAIVE ANY
RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (1)
ARISING HEREUNDER, OR (2) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO
THE DEALINGS OF THE PARTIES HERETO WITH RESPECT HERETO OR ANY OTHER INSTRUMENT,
DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF
THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11.10 Prompt Action. Time is of the essence with respect to each provision
of this Guaranty.
11.11 Severability. The invalidity or unenforceability of any particular
provision of this Guaranty shall not affect the other provisions, and this
Guaranty shall be construed in all respects as if any invalid or unenforceable
provision were omitted.
11.12 Further Action. Each party agrees to perform any further acts and to
execute and deliver any other documents which may be reasonably necessary to
effect the provisions of this Guaranty.
11.13 Survival of Representations and Warranties. All representations and
warranties of Guarantor contained in this Guaranty shall survive the execution
and delivery of this Guaranty and shall continue until any and all Guaranteed
Obligations have been fully paid, performed and discharged in full.
IN WITNESS WHEREOF, the parties hereto have cause this Guaranty to be duly
executed as of the date and year first above written.
WITNESSES: SEARCHHELP, INC.
Authorized Signer
Sign: By:
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