EXHIBIT 10.5
SUBSIDIARY GUARANTY
New York, New York June 30, 2006
FOR VALUE RECEIVED, and in consideration of note purchases from, or
credit otherwise extended or to be extended by Laurus Master Fund, Ltd.
("Laurus") to or for the account of Able Energy, Inc., a Delaware corporation
(the "Company") from time to time and at any time and for other good and
valuable consideration and to induce Xxxxxx, in its discretion, to purchase such
notes or make other extensions of credit and to make or grant such renewals,
extensions, releases of collateral or relinquishments of legal rights as Laurus
may deem advisable, each of the undersigned (and each of them if more than one,
the liability under this Guaranty being joint and several) (jointly and
severally referred to as "Guarantors" or "the undersigned") unconditionally
guaranties to Laurus, its successors, endorsees and assigns the prompt payment
when due (whether by acceleration or otherwise) of all present and future
obligations and liabilities of any and all kinds of each Company to Laurus and
of all instruments of any nature evidencing or relating to any such obligations
and liabilities upon which such Company or one or more parties and such Company
is or may become liable to Laurus, whether incurred by such Company as maker,
endorser, drawer, acceptor, guarantors, accommodation party or otherwise, and
whether due or to become due, secured or unsecured, absolute or contingent,
joint or several, and however or whenever acquired by Xxxxxx, whether arising
under, out of, or in connection with (i) that certain Securities Purchase
Agreement dated as of the date hereof by and between the Parent and Laurus (the
"Securities Purchase Agreement") and (ii) each Related Agreement referred to in
the Securities Purchase Agreement (the Securities Purchase Agreement and each
Related Agreement, as each may be amended, modified, restated and/or
supplemented from time to time, are collectively referred to herein as the
"Documents"), or any documents, instruments or agreements relating to or
executed in connection with the Documents or any documents, instruments or
agreements referred to therein, or any other obligations or liabilities of such
Company to Laurus related to the Documents, whether now existing or hereafter
arising, direct or indirect, liquidated or unliquidated, absolute or contingent,
due or not due and whether under, pursuant to or evidenced by a note, agreement,
guaranty, instrument or otherwise (all of which are herein collectively referred
to as the "Obligations"), and irrespective of the genuineness, validity,
regularity or enforceability of such Obligations, or of any instrument
evidencing any of the Obligations or of any collateral therefor or of the
existence or extent of such collateral, and irrespective of the allowability,
allowance or disallowance of any or all of the Obligations in any case commenced
by or against any Company under Title 11, United States Code, including, without
limitation, obligations or indebtedness of any Company for post-petition
interest, fees, costs and charges that would have accrued or been added to the
Obligations but for the commencement of such case. Terms not otherwise defined
herein shall have the meaning assigned such terms in the Securities Purchase
Agreement. In furtherance of the foregoing, the undersigned xxxxxx agrees as
follows:
1. NO IMPAIRMENT. Laurus may at any time and from time to time, either
before or after the maturity thereof, without notice to or further consent of
the undersigned, extend the time of payment of, exchange or surrender any
collateral for, renew or extend any of the Obligations or increase or decrease
the interest rate thereon, or any other agreement with any Company or with any
other party to or person liable on any of the Obligations, or interested
therein, for the extension, renewal, payment, compromise, discharge or release
thereof, in whole or in part, or for any modification of the terms thereof or of
any agreement between Laurus and any Company or any such other party or person,
or make any election of rights Laurus may deem desirable under the United States
Bankruptcy Code, as amended, or any other federal or state bankruptcy,
reorganization, moratorium or insolvency law relating to or affecting the
enforcement of creditors' rights generally (any of the foregoing, an "Insolvency
Law") without in any way impairing or affecting this Guaranty. This Guaranty
shall be effective regardless of the subsequent incorporation, merger or
consolidation of any Company, or any change in the composition, nature,
personnel or location of any Company and shall extend to any successor entity to
each Company, including a debtor in possession or the like under any Insolvency
Law.
2. GUARANTY ABSOLUTE. Subject to Section 5(c) hereof, each of the
undersigned jointly and severally guarantees that the Obligations will be paid
strictly in accordance with the terms of the Documents and/or any other
document, instrument or agreement creating or evidencing the Obligations,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of any Company with
respect thereto. Guarantors hereby knowingly accept the full range of risk
encompassed within a contract of "continuing guaranty" which risk includes the
possibility that a Company will contract additional obligations and liabilities
for which Guarantors may be liable hereunder after such Company's financial
condition or ability to pay its lawful debts when they fall due has
deteriorated, whether or not such Company has properly authorized incurring such
additional obligations and liabilities. The undersigned acknowledge that (i) no
oral representations, including any representations to extend credit or provide
other financial accommodations to any Company, have been made by Laurus to
induce the undersigned to enter into this Guaranty and (ii) any extension of
credit to any Company shall be governed solely by the provisions of the
Documents. The liability of each of the undersigned under this Guaranty shall be
absolute and unconditional, in accordance with its terms, and shall remain in
full force and effect without regard to, and shall not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance or occurrence
whatsoever, including, without limitation: (a) any waiver, indulgence, renewal,
extension, amendment or modification of or addition, consent or supplement to or
deletion from or any other action or inaction under or in respect of the
Documents or any other instruments or agreements relating to the Obligations or
any assignment or transfer of any thereof, (b) any lack of validity or
enforceability of any Document or other documents, instruments or agreements
relating to the Obligations or any assignment or transfer of any thereof, (c)
any furnishing of any additional security to Laurus or its assignees or any
acceptance thereof or any release of any security by Laurus or its assignees,
(d) any limitation on any party's liability or obligation under the Documents or
any other documents, instruments or agreements relating to the Obligations or
any assignment or transfer of any thereof or any invalidity or unenforceability,
in whole or in part, of any such document, instrument or agreement or any term
thereof, (e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to any
Company, or any action taken with respect to this Guaranty by any trustee or
receiver, or by any court, in any such proceeding, whether or not the
undersigned shall have notice or knowledge of any of the foregoing, (f) any
exchange, release or nonperfection of any collateral, or any release, or
amendment or waiver of or consent to departure from any guaranty or security,
for all or any of the Obligations or (g) any other circumstance which might
otherwise constitute a defense available to, or a discharge of, the undersigned.
Any amounts due
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from the undersigned to Laurus shall bear interest until such
amounts are paid in full at the highest rate then applicable to the Obligations.
Obligations include post-petition interest whether or not allowed or allowable.
3. WAIVERS.
(a) This Guaranty is a guaranty of payment and not of collection.
Laurus shall be under no obligation to institute suit, exercise rights
or remedies or take any other action against any Company or any other
person or entity liable with respect to any of the Obligations or
resort to any collateral security held by it to secure any of the
Obligations as a condition precedent to the undersigned being obligated
to perform as agreed herein and each of the Guarantors hereby waives
any and all rights which it may have by statute or otherwise which
would require Laurus to do any of the foregoing. Each of the Guarantors
further consents and agrees that Xxxxxx shall be under no obligation to
marshal any assets in favor of Guarantors, or against or in payment of
any or all of the Obligations. Each of the undersigned hereby waives
all suretyship defenses and any rights to interpose any defense,
counterclaim or offset of any nature and description which the
undersigned may have or which may exist between and among Laurus, any
Company and/or the undersigned with respect to the undersigned's
obligations under this Guaranty, or which any Company may assert on the
underlying debt, including but not limited to failure of consideration,
breach of warranty, fraud, payment (other than cash payment in full of
the Obligations), statute of frauds, bankruptcy, infancy, statute of
limitations, accord and satisfaction, and usury.
(b) Each of the undersigned further waives (i) notice of the
acceptance of this Guaranty, of the extensions of credit, and of all
notices and demands of any kind to which the undersigned may be
entitled, including, without limitation, notice of adverse change in
any Company's financial condition or of any other fact which might
materially increase the risk of the undersigned and (ii) presentment to
or demand of payment from anyone whomsoever liable upon any of the
Obligations, protest, notices of presentment, non-payment or protest
and notice of any sale of collateral security or any default of any
sort.
(c) Notwithstanding any payment or payments made by the undersigned
hereunder, or any setoff or application of funds of the undersigned by
Xxxxxx, the undersigned shall not be entitled to be subrogated to any
of the rights of Laurus against any Company or against any collateral
or guarantee or right of offset held by Xxxxxx for the payment of the
Obligations, nor shall the undersigned seek or be entitled to seek any
contribution or reimbursement from any Company in respect of payments
made by the undersigned hereunder, until all amounts owing to Laurus by
each Company on account of the Obligations are indefeasibly paid in
full and Laurus' obligation to extend credit pursuant to the Documents
has been irrevocably terminated. If, notwithstanding the foregoing, any
amount shall be paid to the undersigned on account of such subrogation
rights at any time when all of the Obligations shall not have been paid
in full and Laurus' obligation to extend credit pursuant to the
Documents shall not have been terminated, such amount shall be held by
the undersigned in trust for Laurus, segregated from other funds of the
undersigned, and shall forthwith upon, and in any event within two (2)
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business days of, receipt by the undersigned, be turned over to Laurus
in the exact form received by the undersigned (duly endorsed by the
undersigned to Laurus, if required), to be applied against the
Obligations, whether matured or unmatured, in such order as Laurus may
determine, subject to the provisions of the Documents. Any and all
present and future obligations and liabilities of each Company to any
of the undersigned are hereby waived and postponed in favor of, and
subordinated to the full payment and performance of, all Obligations of
each Company to Laurus.
4. SECURITY. All sums at any time to the credit of the undersigned and
any property of the undersigned in Laurus' possession or in the possession of
any bank, financial institution or other entity that directly or indirectly,
through one or more intermediaries, controls or is controlled by, or is under
common control with, Laurus (each such entity, an "Affiliate") shall be deemed
held by Laurus or such Affiliate, as the case may be, as security for any and
all of the undersigned's obligations and liabilities to Laurus and to any
Affiliate of Laurus, no matter how or when arising and whether under this or any
other instrument, agreement or otherwise.
5. REPRESENTATIONS AND WARRANTIES. Each of the undersigned hereby
jointly and severally represents and warrants (all of which representations and
warranties shall survive until all Obligations are indefeasibly satisfied in
full and the Documents have been irrevocably terminated), that:
(a) CORPORATE STATUS. It is a corporation, partnership or limited
liability company, as the case may be, duly formed, validly existing
and in good standing under the laws of its jurisdiction of formation
indicated on the signature page hereof and has full power, authority
and legal right to own its property and assets and to transact the
business in which it is engaged.
(b) AUTHORITY AND EXECUTION. It has full power, authority and
legal right to execute and deliver, and to perform its obligations
under, this Guaranty and has taken all necessary corporate, partnership
or limited liability company, as the case may be, action to authorize
the execution, delivery and performance of this Guaranty.
(c) LEGAL, VALID AND BINDING CHARACTER. This Guaranty constitutes
its legal, valid and binding obligation enforceable in accordance with
its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of
general application affecting the enforcement of creditor's rights and
general principles of equity that restrict the availability of
equitable or legal remedies.
(d) VIOLATIONS. The execution, delivery and performance of this
Guaranty will not violate any requirement of law applicable to it or
any contract, agreement or instrument to which it is a party or by
which it or any of its property is bound or result in the creation or
imposition of any mortgage, lien or other encumbrance other than in
favor of Xxxxxx on any of its property or assets pursuant to the
provisions of any of the foregoing, which, in any of the foregoing
cases, could reasonably be expected to have, either individually or in
the aggregate, a Material Adverse Effect.
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(e) CONSENTS OR APPROVALS. No consent of any other person or
entity (including, without limitation, any creditor of the undersigned)
and no consent, license, permit, approval or authorization of,
exemption by, notice or report to, or registration, filing or
declaration with, any governmental authority is required in connection
with the execution, delivery, performance, validity or enforceability
of this Guaranty by it, except to the extent that the failure to obtain
any of the foregoing could not reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.
(f) LITIGATION. No litigation, arbitration, investigation or
administrative proceeding of or before any court, arbitrator or
governmental authority, bureau or agency is currently pending or, to
the best of its knowledge, threatened (i) with respect to this Guaranty
or any of the transactions contemplated by this Guaranty or (ii)
against or affecting it, or any of its property or assets, which, in
each of the foregoing cases, if adversely determined, could reasonably
be expected to have a Material Adverse Effect.
(g) FINANCIAL BENEFIT. It has derived or expects to derive a
financial or other advantage from each and every loan, advance or
extension of credit made under the Documents or other Obligation
incurred by the Companies to Laurus.
(h) SOLVENCY. As of the date of this Guaranty, (a) the fair
saleable value of its assets exceeds its liabilities and (b) it is
meeting its current liabilities as they mature.
6. ACCELERATION.
(a) If any breach of any covenant or condition or other event of
default shall occur and be continuing under any agreement made by
any Company or any of the undersigned to Laurus, or either any Company
or any of the undersigned should at any time become insolvent, or make
a general assignment, or if a proceeding in or under any Insolvency Law
shall be filed or commenced by, or in respect of, any of the
undersigned, or if a notice of any lien, levy, or assessment is filed
of record with respect to any assets of any of the undersigned by the
United States of America or any department, agency, or instrumentality
thereof, or if any taxes or debts owing at any time or times hereafter
to any one of them becomes a lien or encumbrance upon any assets of the
undersigned in Laurus' possession, or otherwise, in each case in an
aggregate amount in excess of [$50,000], any and all Obligations shall
for purposes hereof, at Laurus' option, be deemed due and payable
without notice notwithstanding that any such Obligation is not then due
and payable by the Companies.
(b) Each of the undersigned will promptly notify Laurus of any
default by such undersigned in its respective performance or observance
of any term or condition of any agreement to which the undersigned is a
party if the effect of such default is to cause, or permit the holder
of any obligation under such agreement to cause, such obligation to
become due prior to its stated maturity and, if such an event occurs,
Xxxxxx shall have the right to accelerate such undersigned's
obligations hereunder.
7. PAYMENTS FROM GUARANTORS. After applying any payment from
the undersigned or any other guarantors to any shortfall, if any, due
pursuant to the Documents, Laurus, in its sole
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and absolute discretion, with or without notice to the undersigned, may
apply on account of the Obligations any payment from the undersigned or
any other guarantors, or amounts realized from any security for the
Obligations, or may deposit any and all such amounts realized in a
non-interest bearing cash collateral deposit account to be maintained
as security for the Obligations.
8. COSTS. The undersigned shall pay on demand, all costs, fees
and expenses (including expenses for legal services of every kind)
relating or incidental to the enforcement or protection of the rights
of Laurus hereunder or under any of the Obligations.
9. NO TERMINATION. This is a continuing irrevocable guaranty
and shall remain in full force and effect and be binding upon the
undersigned, and each of the undersigned's successors and assigns,
until all of the Obligations have been indefeasibly paid in full and
Laurus' obligation to extend credit pursuant to the Documents has been
irrevocably terminated. If any of the present or future Obligations are
guarantied by persons, partnerships, corporations or other entities in
addition to the undersigned, the death, release or discharge in whole
or in part or the bankruptcy, merger, consolidation, incorporation,
liquidation or dissolution of one or more of them shall not discharge
or affect the liabilities of any undersigned under this Guaranty.
10. RECAPTURE. Anything in this Guaranty to the contrary
notwithstanding, if Xxxxxx receives any payment or payments on account
of the liabilities guaranteed hereby, which payment or payments or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee,
receiver, or any other party under any Insolvency Law, common law or
equitable doctrine, then to the extent of any sum not finally retained
by Xxxxxx, the undersigned's obligations to Xxxxxx shall be reinstated
and this Guaranty shall remain in full force and effect (or be
reinstated) until payment shall have been made to Laurus, which payment
shall be due on demand.
11. BOOKS AND RECORDS. The books and records of Xxxxxx showing
the account between Laurus and each Company shall be admissible in
evidence in any action or proceeding, shall be binding upon the
undersigned for the purpose of establishing the items therein set forth
and shall constitute prima facie proof thereof.
12. NO WAIVER. No failure on the part of Laurus to exercise, and no
delay in exercising, any right, remedy or power hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise by Xxxxxx
of any right, remedy or power hereunder preclude any other or future
exercise of any other legal right, remedy or power. Each and every
right, remedy and power hereby granted to Laurus or allowed it by law
or other agreement shall be cumulative and not exclusive of any other,
and may be exercised by Xxxxxx at any time and from time to time.
13. WAIVER OF JURY TRIAL. EACH OF THE UNDERSIGNED DESIRES THAT ITS
DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS.
THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE
JUDICIAL SYSTEM AND OF ARBITRATION, EACH OF THE UNDERSIGNED HERETO
WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING
BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR
OTHERWISE BETWEEN LAURUS, AND/OR ANY OF THE UNDERSIGNED ARISING OUT OF,
CONNECTED WITH, RELATED OR INCIDENTAL TO THE RELATIONSHIP
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ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS GUARANTY, ANY DOCUMENT
OR THE TRANSACTIONS RELATED HERETO OR THERETO.
14. GOVERNING LAW; JURISDICTION. THIS GUARANTY CANNOT BE CHANGED OR
TERMINATED ORALLY, AND SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS. EACH OF THE UNDERSIGNED HEREBY
CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE
COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION
TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN ANY OF THE
UNDERSIGNED, ON THE ONE HAND, AND LAURUS, ON THE OTHER HAND, PERTAINING
TO THIS GUARANTY OR ANY OF THE DOCUMENTS OR TO ANY MATTER ARISING OUT
OF OR RELATED TO THIS GUARANTY OR ANY OF THE DOCUMENTS; PROVIDED, THAT
EACH OF THE UNDERSIGNED ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS
MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE COUNTY OF NEW
YORK, STATE OF NEW YORK; AND FURTHER PROVIDED, THAT NOTHING IN THIS
GUARANTY SHALL BE DEEMED OR OPERATE TO PRECLUDE LAURUS FROM BRINGING
SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO COLLECT
THE OBLIGATIONS, TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR
THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR
OF LAURUS. EACH OF THE UNDERSIGNED EXPRESSLY SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY
SUCH COURT, AND EACH UNDERSIGNED HEREBY WAIVES ANY OBJECTION WHICH IT
MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR
FORUM NON CONVENIENS. EACH OF THE UNDERSIGNED HEREBY WAIVES PERSONAL
SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH
ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND
OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO
SUCH UNDERSIGNED IN ACCORDANCE WITH SECTION 18 AND THAT SERVICE SO MADE
SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH UNDERSIGNED'S ACTUAL
RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS,
PROPER POSTAGE PREPAID.
15. UNDERSTANDING WITH RESPECT TO WAIVERS AND CONSENTS. Each
Guarantor warrants and agrees that each of the waivers and consents set
forth in this Guaranty is made voluntarily and unconditionally after
consultation with outside legal counsel and with full knowledge of its
significance and consequences, with the understanding that events
giving rise to any defense or right waived may diminish, destroy or
otherwise adversely affect rights which such Guarantor otherwise may
have against any Company, Laurus or any other person or entity or
against any collateral. If, notwithstanding the intent of the parties
that the terms of this Guaranty shall control in any and all
circumstances, any such waivers or consents are determined to be
unenforceable under applicable law, such waivers and consents shall be
effective to the maximum extent permitted by law.
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16. SEVERABILITY. To the extent permitted by applicable law, any
provision of this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
17. AMENDMENTS, WAIVERS. No amendment or waiver of any provision of
this Guaranty nor consent to any departure by the undersigned therefrom
shall in any event be effective unless the same shall be in writing
executed by each of the undersigned directly affected by such amendment
and/or waiver and Xxxxxx.
18. NOTICE. All notices, requests and demands to or upon the
undersigned, shall be in writing and shall be deemed to have been duly
given or made (a) when delivered, if by hand, (b) three (3) days after
being sent, postage prepaid, if by registered or certified mail, (c)
when confirmed electronically, if by facsimile, or (d) when delivered,
if by a recognized overnight delivery service in each event, to the
numbers and/or address set forth beneath the signature of the
undersigned.
19. SUCCESSORS. Laurus may, from time to time, without notice to
the undersigned, sell, assign, transfer or otherwise dispose of all or
any part of the Obligations and/or rights under this Guaranty. Without
limiting the generality of the foregoing, Laurus may assign, or grant
participations to, one or more banks, financial institutions or other
entities all or any part of any of the Obligations. In each such event,
Laurus, its Affiliates and each and every immediate and successive
purchaser, assignee, transferee or holder of all or any part of the
Obligations shall have the right to enforce this Guaranty, by legal
action or otherwise, for its own benefit as fully as if such purchaser,
assignee, transferee or holder were herein by name specifically given
such right. Laurus shall have an unimpaired right to enforce this
Guaranty for its benefit with respect to that portion of the
Obligations which Xxxxxx has not disposed of, sold, assigned, or
otherwise transferred.
20. JOINDER. It is understood and agreed that any person or entity
that desires to become a Guarantor hereunder, or is required to execute
a counterpart of this Guaranty after the date hereof pursuant to the
requirements of any Document, shall become a Guarantor hereunder by (x)
executing a joinder agreement in form and substance satisfactory to
Laurus, (y) delivering supplements to such exhibits and annexes to such
Documents as Laurus shall reasonably request and/or as may be required
by such joinder agreement and (z) taking all actions as specified in
this Guaranty as would have been taken by such such Guarantor had it
been an original party to this Guaranty, in each case with all
documents required above to be delivered to Laurus and with all
documents and actions required above to be taken to the reasonable
satisfaction of Xxxxxx.
21. RELEASE. Nothing except indefeasible payment in full of the
Obligations shall release any of the undersigned from liability under
this Guaranty.
22. REMEDIES NOT EXCLUSIVE. The remedies conferred upon Xxxxxx in
this Guaranty are intended to be in addition to, and not in limitation
of any other remedy or remedies available to Laurus under applicable
law or otherwise.
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23. LIMITATION OF OBLIGATIONS UNDER THIS GUARANTY. Each Guarantor
and Laurus (by its acceptance of the benefits of this Guaranty) hereby
confirms that it is its intention that this Guaranty not constitute a
fraudulent transfer or conveyance for purposes of the Bankruptcy Code,
the Uniform Fraudulent Conveyance Act of any similar Federal or state
law. To effectuate the foregoing intention, each Guarantor and Laurus
(by its acceptance of the benefits of this Guaranty) hereby irrevocably
agrees that the Obligations guaranteed by such Guarantor shall be
limited to such amount as will, after giving effect to such maximum
amount and all other (contingent or otherwise) liabilities of such
Guarantor that are relevant under such laws and after giving effect to
any rights to contribution pursuant to any agreement providing for an
equitable contribution among such Guarantor and the other Guarantors
(including this Guaranty), result in the Obligations of such Guarantor
under this Guaranty in respect of such maximum amount not constituting
a fraudulent transfer or conveyance.
[REMAINDER OF THIS PAGE IS BLANK.
SIGNATURE PAGE IMMEDIATELY FOLLOWS]
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IN WITNESS WHEREOF, this Guaranty has been executed by the undersigned
as of the date and year here above written.
ABLE OIL CO.
By: S/XXXXXXXXXXX X. XXXXXX
Name: Xxxxxxxxxxx X. Xxxxxx
Title: President
Address: 000 Xxxxx Xxxx Xxxx, Xxxxxxxx, XX
00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
State of Formation: New Jersey
ABLE PROPANE CO., LLC
By: S/XXXXXXXXXXX X. XXXXXX
Name: Xxxxxxxxxxx X. Xxxxxx
Title: President
Address: 000 Xxxxx Xxxx Xxxx, Xxxxxxxx, XX
00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
State of Formation: New Jersey
ABLE ENERGY NEW YORK, INC.
By: S/XXXXXXXXXXX X. XXXXXX
Name: Xxxxxxxxxxx X. Xxxxxx
Title: President
Address: 000 Xxxxx Xxxx Xxxx, Xxxxxxxx, XX
00000
Telephone: 000-000-0000
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Facsimile: 000-000-0000
State of Formation: New Jersey
ABLE OIL MELBOURNE, INC.
By: S/XXXXXXXXXXX X. XXXXXX
Name: Xxxxxxxxxxx X. Xxxxxx
Title: President
Address: 000 Xxxxx Xxxx Xxxx, Xxxxxxxx, XX
00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
State of Formation: Florida
ABLE ENERGY TERMINAL, INC.
By: S/XXXXXXXXXXX X. XXXXXX
Name: Xxxxxxxxxxx X. Xxxxxx
Title: President
Address: 000 Xxxxx Xxxx Xxxx, Xxxxxxxx, XX
00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
State of Formation: New Jersey
XXXXXXXXXXX.XXX, INC.
By: S/XXXXXXXXXXX X. XXXXXX
Name: Xxxxxxxxxxx X. Xxxxxx
Title: President
Address: 000 Xxxxx Xxxx Xxxx, Xxxxxxxx, XX
00000
Telephone: 000-000-0000
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Facsimile: 000-000-0000
State of Formation: New Jersey
XXXXXXXXXXX.XXX FRANCHISING, LLC.
By: S/XXXXXXXXXXX X. XXXXXX
Name: Xxxxxxxxxxx X. Xxxxxx
Title: President
Address: 000 Xxxxx Xxxx Xxxx, Xxxxxxxx, XX
00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
State of Formation: New York
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