CORPORATE GUARANTY
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Borrower:
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Appalachian
Oil Company, a
Tennessee corporation
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Guarantors
(and each a Guarantor):
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Titan
Global Holdings, Inc.,
a
Utah corporation
Titan
PCB West, Inc.,
a
Delaware corporation
Titan
PCB East, Inc.,
a
Delaware corporation
Oblio
Telecom, Inc.,
a
Delaware corporation
Titan
Wireless Communications, Inc.,
a
Delaware corporation
Start
Talk Inc.,
a
Delaware corporation
Pinless,
Inc.,
a
Texas corporation
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Xxxxxxxx
has requested that Greystone
Business Credit II, L.L.C. as
agent
("Agent")
for
itself and certain lenders ("Lenders")
provide certain financial accommodations to Borrower pursuant to the terms
of a
Loan and Security Agreement among Borrower, Agent and the Lenders parties
thereto from time to time, dated of even date herewith (as amended from time
to
time, the "Loan
Agreement").
As
one of the conditions to providing financing, Agent and Lenders have required
that each Guarantor guaranty all obligations of Borrower to Agent and
Lenders.
For
value
received and in consideration of any loan, advance or financial accommodation
of
any kind whatsoever heretofore, now or hereafter made, given or granted to
Borrower by any Lender pursuant to the Loan Agreement, each Guarantor, jointly
and severally, unconditionally guaranties the full and prompt payment when
due,
whether at maturity or earlier, by reason of acceleration or otherwise, and
at
all times thereafter, of the indebtedness, liabilities and obligations of every
kind and nature of Borrower to Agent and Lenders (including, without limitation,
all interest accruing after the filing of a proceeding under the Bankruptcy
Code
(as defined in the Loan Agreement) whether or not allowed by the court in such
proceeding, and all other indebtedness, liabilities and obligations arising
after the filing of any proceeding under the Bankruptcy Code), howsoever
created, arising or evidenced, whether direct or indirect, absolute or
contingent, joint or several, now or hereafter existing, or due or to become
due, in each case arising under the Loan Agreement or the other Loan Documents
(as defined in the Loan Agreement), plus all costs and expenses (including,
without limitation, all court costs and reasonable attorneys' and paralegals'
fees and expenses) paid or incurred by Agent and Lenders in endeavoring to
collect all or any part of such indebtedness, liabilities and obligations from,
or in prosecuting any action against, any Guarantor or any other guarantor
of
all or any part of such indebtedness, liabilities and obligations (all such
indebtedness, liabilities, obligations, costs and expenses being hereinafter
referred to as "Borrower's
Obligations").
All
sums becoming due under this Guaranty shall bear interest from the due date
thereof until paid at the highest rate charged with respect to any of Borrower's
Obligations under the Loan Agreement.
Each
Guarantor agrees that its obligations under this Guaranty are unconditional,
irrespective of (i) the validity or enforceability of Borrower's Obligations
or
any note or other instrument evidencing Borrower's Obligations, (ii) the absence
of any attempt by any Lender to collect Borrower's Obligations from Borrower
or
any other guarantor, (iii) any Lender's waiver or consent with respect to any
provision of the Loan Documents, (iv) any Lender's failure to perfect or
maintain its security interests in, or to preserve its rights with respect
to,
any of the Collateral (as defined in the Loan Agreement), (v) any Lender's
election, in any proceeding under Chapter 11 of the Bankruptcy Code, of the
application of Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing
or
grant of a security interest by Borrower as debtor-in-possession under Section
364 of the Bankruptcy Code, (vii) the disallowance, under Section 502 of the
Bankruptcy Code, of all or any of any Lender's claims for repayment of
Borrower's Obligations or (viii) any other circumstance which might constitute
a
legal or equitable discharge or defense of Borrower or a guarantor.
No
payment made by or for the account or benefit of any Guarantor (including,
without limitation, (i) a payment made by Borrower in respect of Borrower's
Obligations, (ii) a payment made by any other Guarantor under this Guaranty
or
by any other person under any other guaranty of Borrower's Obligations or (iii)
a payment made by means of set off or other application of funds by any Lender)
shall entitle any Guarantor, by subrogation or otherwise, to any payment by
Borrower or any
other
Guarantor or from
or
out of any property of Borrower or any other Guarantor, and no Guarantor shall
exercise any rights or remedies against Borrower or any other Guarantor or
any
property of Borrower or any other Guarantor including, without limitation,
any
right of contribution, indemnity or reimbursement by reason of any performance
by such Guarantor under this Guaranty, all of such rights of subrogation,
contribution, indemnity and reimbursement being hereby waived by such Guarantor.
The provisions of this paragraph shall survive the termination of this Guaranty
or the release or discharge of any Guarantor from liability hereunder. Borrower
is a third party beneficiary of the provisions of this paragraph.
Each
Guarantor hereby waives diligence, presentment, demand for payment, filing
of
claims with a court in the event of receivership or bankruptcy of Borrower,
protest or notice with respect to Xxxxxxxx's Obligations and all demands
whatsoever, and covenants that this Guaranty will not be discharged, except
by
complete and irrevocable payment and performance of the obligations and
liabilities contained herein. No notice to any party, including any Guarantor,
shall be required for Lender to make demand hereunder. Such demand shall
constitute a mature and liquidated claim against such Guarantor. At any time
after maturity of Xxxxxxxx's Obligations, whether by acceleration or otherwise,
Agent may, at its sole election, proceed directly and at once, without notice,
against any Guarantor to collect and recover the full amount or any portion
of
Borrower's Obligations, without first proceeding against Borrower or any other
person or against any of the Collateral. Agent shall have the exclusive right
to
determine the application of payments and credits, if any, from any Guarantor,
Borrower or any other person, on account of Xxxxxxxx's Obligations.
-2-
Agent
is
hereby authorized, without notice or demand to any Guarantor and without
affecting or impairing the liability of any Guarantor hereunder, to from time
to
time (i) renew, extend, accelerate or otherwise change the time for payment
of,
or other terms relating to, Borrower's Obligations or otherwise modify, amend
or
change the terms of any promissory note or other agreement, document or
instrument now or hereafter executed by Xxxxxxxx and delivered to Agent and/or
Lenders; (ii) accept partial payments on Borrower's Obligations; (iii) take
and
hold Collateral for the payment of Borrower's Obligations, or for the payment
of
this Guaranty, or for the payment of any other guaranties of Borrower's
Obligations or other liabilities of Borrower, and exchange, enforce, waive
and
release any Collateral; (iv) apply Collateral and direct the order or manner
of
sale thereof as it may determine in its sole discretion; and (v) settle,
release, compromise, collect or otherwise liquidate Borrower's Obligations
and
any Collateral in any manner.
At
any
time after maturity of Xxxxxxxx's Obligations, Agent may, in its sole
discretion, without notice to any Guarantor and regardless of the acceptance
of
any Collateral for the payment hereof, appropriate (or cause to be appropriated)
and apply toward payments of Borrower's Obligations, (i) any indebtedness due
or
to become due from Agent or any Lender to any Guarantor and (ii) any moneys,
credits or other property belonging to any Guarantor at any time held by or
coming into the possession of Agent or any affiliates of Agent, whether for
deposit or otherwise.
Each
Guarantor assumes responsibility for keeping itself informed of the financial
condition of Xxxxxxxx and all other guarantors of all or any of Borrower's
Obligations, and of all other circumstances bearing upon the risk of nonpayment
of Xxxxxxxx's Obligations or any part thereof that diligent inquiry might
reveal, and each Guarantor agrees that neither Agent nor any Lender shall have
any duty to advise such Guarantor of information known to Agent or such Lender
regarding any of the foregoing. Each Guarantor acknowledges familiarity with
Borrower's financial condition and represents that it has not relied on any
statements made, or information furnished, by Agent or any Lender or their
agents in obtaining such familiarity. If Agent or any Lender provides any such
information to any Guarantor, Agent and such Lender shall be under no obligation
to (i) undertake any investigation not a part of its regular business routine,
(ii) disclose any information which, pursuant to accepted or reasonable
commercial finance practices, Agent or such Lender wishes to maintain
confidential or (iii) make any other or future disclosures of any information
to
such Guarantor.
Notwithstanding
any contrary provision of this Guaranty, it is intended that neither this
Guaranty nor any liens or security interests securing this Guaranty constitute
a
"Fraudulent Conveyance" (as defined below). Consequently, each Guarantor agrees
that if this Guaranty or any liens or security interests securing this Guaranty
would, but for the application of this sentence, constitute a Fraudulent
Conveyance, this Guaranty and each such lien and security interest shall be
valid and enforceable only to the maximum extent that would not cause this
Guaranty or such lien or security interest to constitute a Fraudulent
Conveyance, and this Guaranty shall automatically be deemed to have been amended
accordingly at all relevant times. For purposes hereof, a "Fraudulent
Conveyance"
means a
fraudulent conveyance under Section 548 of the Bankruptcy Code or a fraudulent
conveyance or fraudulent transfer under any applicable fraudulent conveyance
or
fraudulent transfer law or similar law of any state or other governmental unit
as in effect from time to time.
-3-
Each
Guarantor waives the right to assert the doctrine of marshaling with respect
to
any of the Collateral securing Borrower's Obligations. Each Guarantor further
agrees that, to the extent Borrower makes one or more payments to Agent or
any
Lender, or Agent or any Lender receives any proceeds of Collateral, which are
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required to be repaid to Borrower, its estate, trustee, receiver or any
other
party under the Bankruptcy Code or other law, that portion of Borrower's
Obligations which has been paid, reduced or satisfied by such payment or
proceeds shall be reinstated and continued in full force and effect as of the
date such initial payment, reduction or satisfaction occurred, and this Guaranty
shall continue to be in existence and in full force and effect, irrespective
of
whether any evidence of indebtedness or this Guaranty has been surrendered
or
canceled.
Each
Guarantor agrees that all payments hereunder shall be made without setoff or
counterclaims and each Guarantor waives all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices
of
dishonor and notices of acceptance of this Guaranty. Each Guarantor further
waives all notices of the existence, creation or incurring of new or additional
indebtedness, arising either from additional loans extended to Borrower or
otherwise, and also waives all notices that the principal amount, or any portion
thereof, or any interest on any instrument or document evidencing all or any
part of Borrower's Obligations is due, notices of any and all proceedings to
collect from the maker, any endorser or any other guarantor of all or any part
of Xxxxxxxx's Obligations, or from anyone else, and, to the extent permitted
by
law, notices of exchange, sale, foreclosure, surrender or other handling of
any
Collateral securing Borrower's Obligations.
No
delay
on the part of Agent or any Lender in the exercise of any right or remedy shall
operate as a waiver thereof, and no single or partial exercise by Agent or
any
Lender of any right or remedy shall preclude any further exercise thereof except
as expressly set forth in a writing duly signed and delivered on Agent's and
Required Lenders' behalf by authorized officers or agents of Agent and Required
Lenders; nor shall any modification or waiver of any of the provisions of this
Guaranty be binding upon Agent or Lenders, except as expressly set forth in
a
writing duly signed and delivered on Agent's and Required Lenders' behalf by
authorized officers or agents of Agent and Required Lenders. Agent's and
Lenders' failure at any time or times hereafter to require strict performance
by
Borrower or any Guarantor of any of the provisions, warranties, terms and
conditions contained in any promissory note, security agreement, agreement,
guaranty, instrument or document now or at any time or times hereafter executed
by Borrower or any Guarantor and delivered to Agent, shall not waive, affect
or
diminish any right of Agent or any Lender at any time or times hereafter to
demand strict performance thereof, and such right shall not be deemed to have
been waived by any act or knowledge of Agent or any Lender, or its respective
agents, officers or employees, unless such waiver is contained in an instrument
in writing signed by an officer or agent of Agent and Required Lenders, and
directed to Borrower or such Guarantor, as applicable, specifying such waiver.
No waiver by Agent of any default shall operate as a waiver of any other default
or the same default on a future occasion, and no action by Agent or any Lender
permitted hereunder shall in any way affect or impair Agent's or such Xxxxxx's
rights or the obligations of any Guarantor under this Guaranty. Any
determination by a court of competent jurisdiction of the amount of any
principal or interest owing by Borrower to Agent and Lenders shall be conclusive
and binding on each Guarantor irrespective of whether such Guarantor was a
party
to the suit or action in which such determination was made.
-4-
Each
Guarantor hereby represents and warrants that (i) it is in such Guarantor's
direct interest to assist Borrower in procuring credit, because Borrower is
an
affiliate of such Guarantor, furnishes goods or services to such Guarantor,
purchases or acquires goods or services from such Guarantor, and/or otherwise
has a direct or indirect corporate or business relationship with such Guarantor,
(ii) this Guaranty has been duly and validly authorized, executed and
delivered and constitutes the valid and binding obligation of such Guarantor,
enforceable in accordance with its terms, and (iii) the execution and
delivery of this Guaranty does not violate or constitute a default under (with
or without the giving of notice, the passage of time, or both) any order,
judgment, decree, instrument or agreement to which such Guarantor is a party
or
by which it or its assets are affected or bound.
This
Guaranty shall be binding upon each Guarantor and upon the successors and
permitted assigns of each Guarantor and shall inure to the benefit of Agent
and
Lenders and their successors and assigns. All references herein to Borrower
shall be deemed to include its successors and permitted assigns and all
references herein to Agent shall be deemed to include its successors and
assigns. Xxxxxxxx's and each Guarantor's successors and permitted assigns shall
include a receiver, trustee, custodian of or for Borrower or such Guarantor
or
any of their respective assets and Borrower or such Guarantor as
debtor-in-possession. All references to the singular shall be deemed to include
the plural where the context so requires.
EACH
GUARANTOR HEREBY CONSENTS AND AGREES THAT THE STATE AND FEDERAL COURTS IN NEW
YORK COUNTY, NEW YORK SHALL HAVE NONEXCLUSIVE JURISDICTION TO HEAR AND DETERMINE
ANY CLAIMS OR DISPUTES WITH RESPECT TO THIS GUARANTY AND WAIVES ANY OBJECTION
WHICH IT MAY HAVE BASED ON IMPROPER VENUE OR FORUM NON CONVENIENS
TO THE CONDUCT OF ANY PROCEEDING IN ANY SUCH COURT AND CONSENTS THAT ALL SERVICE
OF PROCESS UPON SUCH GUARANTOR BE MADE BY REGISTERED MAIL OR MESSENGER DIRECTED
TO SUCH GUARANTOR AT THE ADDRESS SET FORTH BELOW SUCH XXXXXXXXX'S SIGNATURE
AND
THAT SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT
THEREOF. EACH GUARANTOR HEREBY AGREES THAT ANY CLAIM OR DISPUTE BROUGHT BY
SUCH
GUARANTOR AGAINST AGENT OR ANY LENDER OR ANY MATTER ARISING OUT OF THIS GUARANTY
SHALL BE BROUGHT EXCLUSIVELY IN THE STATE AND FEDERAL COURTS IN NEW YORK COUNTY,
NEW YORK. EACH GUARANTOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY LAW, TRIAL
BY
JURY. NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF AGENT OR ANY LENDER
TO
SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT
OF
AGENT OR ANY LENDER TO BRING ANY ACTION OR PROCEEDING AGAINST ANY GUARANTOR
OR
ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
-5-
THIS
GUARANTY SHALL BE GOVERNED IN ALL RESPECTS BY THE INTERNAL LAWS OF THE STATE
OF
NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF
LAWS.
Wherever
possible each provision of this Guaranty shall be interpreted in such manner
as
to be effective and valid under applicable law, but if any provision of this
Guaranty shall be prohibited by or invalid under such law, such provision shall
be ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of
this
Guaranty.
Each
Guarantor hereby agrees that this Guaranty shall be deemed a "Loan Document"
as
defined in the Loan Agreement.
This
Guaranty may be executed in any number of counterparts, all of which shall
constitute one and the same instrument, and any party hereto may execute this
Guaranty by signing and delivering one or more counterparts.
IN
WITNESS WHEREOF, this Guaranty has been duly executed by the undersigned
Guarantors this 17th day of September, 2007.
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| By | /s/ Xxxxx Xxxxxx | |
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Its President
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TITAN
PCB WEST, INC.
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| By | /s/ | |
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Its
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TITAN
PCB EAST, INC.
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| By | /s/ | |
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Its
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OBLIO
TELECOM, INC.
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| By | /s/ | |
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Its
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TITAN
WIRELESS COMMUNICATIONS, INC.
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| By | /s/ | |
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Its
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START
TALK INC.
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| By | /s/ | |
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Its
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PINLESS,
INC.
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| By | /s/ | |
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Its
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Address
for each Guarantor:
0000
Xxx Xxx Xxxxx, Xxxxx 000
Xxxxxxxxxx
XX 00000
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