UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE (ABRAMS POWER, INC.)
EXHIBIT
10.10
UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE
(XXXXXX POWER, INC.)
(XXXXXX POWER, INC.)
THIS UNCONDITIONAL GUARANTY OF PAYMENT AND PERFORMANCE (“Guaranty”) is made and
entered into this 9th day of March, 2011, by XXXXXX POWER, INC., a corporation organized and
existing under the laws of the State of Georgia (“Guarantor”), to and in favor of NATIONAL
LOAN INVESTORS, L.P., a Delaware Limited Partnership (hereinafter referred to as “Lender”),
having an address of 0000 Xxxxx Xxxxxxx Xxxx., Xxxxxxxx Xxxx, Xxxxxxxx 00000.
W I T N E S S E T H:
WHEREAS, Lender has agreed to make a loan and/or extend credit (hereinafter referred to as the
“Loan”) to SERVIDYNE SYSTEMS, LLC, a Georgia limited liability company (hereinafter
referred to as the “Borrower”), in the amended, restated, renewed and modified amount of
ONE MILLION SEVEN THOUSAND TWO HUNDRED FIFTEEN AND 49/100 DOLLARS ($1,007,215.49) (hereinafter
referred to as the “Loan Amount”); and
WHEREAS, the obligation to repay the Loan is evidenced by (i) that certain Modification and
Extension Promissory Note and Security Agreement No. 1 of even date herewith in the original
principal face amount of ONE HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS ($150,000.00); and (ii) that
certain Modification and Extension Promissory Note and Security Agreement No.2 of even date
herewith in the original principal face amount of EIGHT HUNDRED FIFTY-SEVEN TWO HUNDRED FIFTEEN AND
49/100 DOLLARS ($857,215.49) (each of the foregoing being hereinafter collectively referred to as
the “Note”); and
WHEREAS, pursuant to that certain Loan Modification, Extension, Reaffirmation and Assumption
Agreement of even date herewith between and among Borrower, Lender and Guarantor (the
“Assumption Agreement”) and also as a condition to Lender’s making the Loan, Lender is
requiring that Guarantor enter into this Guaranty; and
WHEREAS, Guarantor hereby represents and warrants to Lender that the making of said Loan shall
be to the direct benefit, interest and advantage of Guarantor;
NOW, THEREFORE, for and in consideration of said benefit, the above-recited premises, $10.00
in hand paid and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Guarantor hereby agrees with Lender as follows:
Guarantor hereby unconditionally and irrevocably guarantees as for Guarantor’s own debt, until
full performance and payment have been effected: (a) the full, due and punctual payment of all
principal and interest on all indebtedness to Lender under the terms of the Note, and the payment
of all other obligations under the Note and/or the Assumption Agreement, whether in due course, by
acceleration, or otherwise, and any and all extensions, revisions, amendments, modifications,
restatements and/or renewals thereof, and under the terms of any instrument or document evidencing,
securing or relating to the indebtedness evidenced by the Note and/or the Assumption Agreement
(hereinafter, together with the Note and/or the Assumption Agreement, collectively referred to as
the “Loan Documents”), including without limitation attorneys’ fees in the amount of
fifteen percent (15%) of all principal and interest owing on the Note if collected by or through an
attorney at law; (b) the full and prompt performance of any and all obligations of Borrower to
Lender under the terms of the Loan Documents; and (c) the full, due and punctual payment of all
principal and interest on all other indebtedness owed by Borrower to Lender, however and whenever
evidenced, whether in due course, by acceleration, or otherwise, and any and all extensions,
revisions, amendments, modifications, restatements and/or renewals thereof (all of the foregoing
being hereinafter referred to as the “Obligations”).
This Guaranty is a guaranty of payment and performance and not of collection. The liability
of Guarantor hereunder shall be direct and immediate. This Guaranty shall be a guarantee as for
the own debts of Guarantor, and, accordingly, Lender shall not be obligated, before enforcing this
Guaranty against Guarantor, to take any action in any
court against Borrower or any other guarantor of the Obligations, to make any claim in a
liquidation or bankruptcy of Borrower or of any other guarantor of the Obligations, to make demand
of Borrower or of any other guarantor of the Obligations, or to enforce or seek to enforce any
other security held by any person with respect to the Obligations. This Guaranty shall be a
continuing security in addition to and not in substitution for any other security now or hereafter
held by or on behalf of Lender with respect to the Obligations and shall not be discharged except
by: (i) complete performance by Borrower of all of the Obligations; or (ii) full payment and
performance by Guarantor hereunder.
Guarantor shall not be exonerated from Guarantor’s obligations hereunder by any time being
given to or by any concession or arrangement or indulgence granted to or made with Borrower or by
any delay or waiver on the part of Lender or by anything done or omitted which, but for this
provision, might operate so to exonerate Guarantor or by any invalidity, unenforceability,
limitation or the lapse of any security or evidence of indebtedness given to Lender by Borrower or
any other person. Lender may, at any time and from time to time, without the consent of or notice
to Guarantor, and without incurring any responsibility to Guarantor, and without impairing or
releasing any of its rights, or any of the obligations of Guarantor hereunder: (a) change the
manner, place or terms of payment or change or extend the time of payment of or renew or otherwise
alter the Obligations in any manner; (b) sell, exchange, release or otherwise deal with all or any
part of any property, real or personal, by whomsoever at any time pledged, conveyed or mortgaged to
secure, or howsoever securing, the Obligations; (c) release anyone liable in any manner for the
payment or collection of the Obligations (other than Borrower); (d) exercise or refrain from
exercising any rights against Borrower and others (including any other guarantor of the
Obligations), and Guarantor hereby expressly waives any statutory right pursuant to O.C.G.A.
10-7-24 to require any holder of the Obligations to take action against Borrower; and (e) apply any
sum, by whomsoever paid or however realized, to the Obligations in such order as Lender shall
elect. Guarantor, to the fullest extent permitted by law, hereby waives the following: (a) notice
of acceptance hereof, of any action taken or omitted in reliance hereon, and of any default of
Borrower in the payment of the Obligations; (b) any presentment, demand, protest or notice thereof
or of any other kind; and (c) any other act or thing or omission or delay to do any other act or
thing which might in any manner or to any extent vary the risk of Guarantor or which might
otherwise operate as a discharge of Guarantor. It is fully understood that until each and every
one of the covenants and agreements of this Guaranty is fully performed, Guarantor’s undertakings
hereunder shall not be released, in whole or in part, by any action or thing which might, but for
this provision of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor,
or by reason of any waiver, extension, modification, forbearance, or delay, or other act or
omission of Lender of its failure to proceed promptly or otherwise, or by reason of any action
taken or omitted by Lender, whether or not such action or failure to act varies or increases the
risk of, or affects the rights or remedies of Guarantor, and Guarantor hereby expressly waives and
surrenders any defense to the performance of Guarantor’s undertakings hereunder based upon any of
the foregoing acts, omissions, things, agreements or waivers, or any of them, it being the purpose
and intent of the parties hereto that the covenants, agreements and all undertakings hereunder are
absolute, unconditional, and irrevocable under any and all circumstances except as expressly
provided herein.
If any default under the Note shall have occurred and be continuing and Lender or the holder
of any of the Obligations is prevented from accelerating payment thereof, Lender or such holder
shall be entitled to receive hereunder from Guarantor, upon demand therefore, the sums which
otherwise would have been due had such acceleration occurred.
Guarantor further confirms that this Guaranty shall continue to be effective or be reinstated,
as the case may be, if at any time payment of principal of, or any part thereof, or interest on,
any of the Obligations is rescinded or must otherwise be restored by Lender upon the bankruptcy of
Borrower, or otherwise. In furtherance of the foregoing and not in limitation of any other right
which Lender may have at law or in equity against Guarantor by virtue hereof, upon failure of
Borrower to pay any of the Obligations when and as the same shall become due, whether upon demand,
at maturity, by acceleration, after notice of prepayment or otherwise, Guarantor hereby promises to
and will, upon receipt of written demand by Lender, pay or cause to be paid, not later than ten
(10) days following the date of receipt of such written demand, to Lender, the respective holder of
any of the Obligations, or any party entitled thereto, in cash, an amount equal to the sum of: (i)
the unpaid principal amount of the Obligations; (ii) accrued but unpaid interest on such
Obligations; and (iii) any and all other sums due and then owing under the Obligations. All sums
payable by Guarantor hereunder, whether of principal, interest, fees, expenses, premiums or
otherwise, shall be paid in full, without setoff, counterclaim, deduction, or withholding
whatsoever, or, in the event that Guarantor is required by law to make any such deduction or
withholding, Guarantor shall, to the extent permitted by law, pay to Lender such amount as will
result in the receipt by Lender of the full amount due Lender hereunder.
In addition, Guarantor further agrees to pay all costs and expenses paid or incurred by or on
behalf of Lender in (i) collecting any and all sums owing under this Guaranty including without
limitation attorneys’ fees in the amount of fifteen percent (15%) of all sums due and payable under
this Guaranty; (ii) enforcing this Guaranty and the representations, covenants and agreements of
Guarantor set forth herein; and (iii) enforcing its rights under the security given by Guarantor
for this Guaranty and under any security given by the Borrower or any other guarantor relating to
the Obligations. Any and all sums owing hereunder shall, from their due date, bear interest at the
default rate of interest set forth in the Note until paid in full.
This Guaranty shall be binding upon Guarantor and Guarantor’s heirs, legal representatives,
successors, and permitted assigns. Each reference herein to Lender shall be deemed to include its
successors and assigns (including, but not by way of limitation, any holder of the Obligations) in
whose favor the provisions of this Guaranty shall also inure. In the event that any term of
provision hereof shall conflict with any term or provision of the Loan Documents, the term or
provision hereof shall control. Words herein importing the masculine shall include the feminine
and neuter genders, and words herein importing persons shall include legal entities, and the
singular shall include the plural, and vice versa, all as the context shall require. If more than
one person or entity constitutes Guarantor, all of the provisions hereof shall be construed to
refer to each such person or entity, individually and collectively. Each such person or entity
comprising Guarantor shall in all respects be jointly and severally liable and obligated to Lender
hereunder. This Guaranty may not be amended except in writing signed by Lender and Guarantor.
This Guaranty may not be changed orally, and no obligation of Guarantor can be released or waived
by Lender or any officer or agent of Lender, except in the writing signed by a duly authorized
officer of Lender. This Guaranty shall be irrevocable by Guarantor until all obligations
guaranteed hereby have been completely performed or until Guarantor has been released in writing by
Lender. In case any provision in this Guaranty shall be held invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby, and to the fullest extent allowed by law there shall be deemed
substituted for the offending provision or provisions valid, legal, and enforceable provision or
provisions as similar as possible to the offending provision.
Guarantor hereby authorizes Lender, without notice to Guarantor, to apply all payments and
credits received from Borrower or from Guarantor or realized from any security in such manner and
in such priority as Lender in its sole judgment shall see fit to the Obligations.
Guarantor warrants and represents to Lender that all financial statements heretofore delivered
by Guarantor to Lender are true and correct in all respects as of the date hereof.
Furthermore, Guarantor shall comply with and perform all covenants, conditions, and agreements
on Guarantor’s part to be performed under the Loan Documents.
Guarantor acknowledges that this Guaranty, the Note, and all other Loan Documents were
executed and/or delivered in the State of Georgia and shall be governed and construed in accordance
with the laws of the State of Georgia, notwithstanding any conflicts of law rules or principles
that might refer construction of any provision hereof to the laws of another jurisdiction.
Guarantor hereby submits to personal jurisdiction in the State of Georgia for the enforcement
of this Guaranty and waives any and all personal rights under the laws of the State of Georgia or
the United States to object to jurisdiction within the State of Georgia for the purposes of
litigation to enforce this Guaranty. Without limiting the generality of the foregoing, Guarantor
hereby submits to service of process, to venue, and to personal jurisdiction in the State Court of
Xxxx County, Georgia, the Superior Court of Xxxx County, Georgia, or the United States District
Court, Northern District of Georgia, Atlanta Division, and waives all rights Guarantor might have
to make objections to lack of personal jurisdiction or lack of venue in all of said Courts.
Guarantor hereby knowingly, irrevocably, and unconditionally waives any right to a trial by
jury in any action (whether sounding in contract, tort, or otherwise) to enforce or defend any
matter arising from or relating in any way to this Guaranty or any other document or agreement
evidencing or relating to the Loan, whether any such right is now or hereafter existing.
The books and records of Lender showing the account between Lender and Borrower shall be
admissible in evidence in any action or proceeding hereon as a prima facie proof of
the items set forth therein.
Any notice or demand which by any provision of this Guaranty is required or permitted to be
given to Guarantor shall be deemed to have been sufficiently given or served for all purposes by
being delivered personally or by being mailed via Certified Mail, Return Receipt Requested, postage
prepaid, to Guarantor at the address of Guarantor set forth at the end of this Guaranty, or at such
other address as shall have been designated by like written notice to Lender.
Until payment in full by Guarantor of any and all sums owing to Lender hereunder, all rights
of Guarantor against Borrower arising as a result thereof by way of subrogation or otherwise shall
in all respects be subordinate and junior in right of payment to the prior indefeasible payment in
full of all the Obligations. Guarantor hereby subordinates any and all indebtedness of Borrower
now or hereafter owed to Guarantor and subordinates any and all security held by Guarantor to the
Loan and to all security held by Lender. Guarantor agrees with Lender that Guarantor shall not
demand or accept any payment of principal or interest from Borrower, shall not claim any offset or
other reduction of Guarantor’s obligations hereunder because of any such indebtedness and shall not
take any action to obtain a superior interest to Lender in any of the security for the Loan;
provided, however that if Lender so requests, such indebtedness shall be collected, enforced and
received by Guarantor as trustee for Lender and be paid over to Lender on account of the
indebtedness of Borrower to Lender, but without reducing or affecting in any manner the liability
of Guarantor under the other provisions of this Guaranty.
If from any circumstances whatsoever fulfillment of any provisions of this Guaranty, at the
time performance of such provision shall be due, shall involve transcending the limit of validity
presently prescribed by any applicable usury statute or any other applicable law, with regard to
obligations of like character and amount, then ipso facto the obligation to be fulfilled
shall be reduced to the limit of such validity. The provisions of this paragraph shall control
every other provision of this Guaranty.
This Guaranty is assignable by Lender without notice to or consent of Guarantor, and any
assignment hereof by Lender shall operate to vest in such assignee all rights and powers herein
conferred upon and granted to Lender. This Guaranty is not assignable by Guarantor.
IN WITNESS WHEREOF, Guarantor, acting by and through its duly authorized officer, member, or
manager, has signed and sealed this Guaranty the day and year first above written.
| GUARANTOR: | ||||||||
| XXXXXX POWER, INC., | ||||||||
| a Georgia corporation | ||||||||
/s/ [illegible]
|
By: | /s/ Xxxx X. Xxxxxx | (SEAL) | |||||
/s/ Xxxxx Xxxxxx
|
Attest:/s/ Xxxx Xxxxxx | (SEAL) | ||||||
| [CORPORATE SEAL] | ||||||||
| Address for Guarantor: 0000 Xxx Xxxxxxxx, Xxxxx 000 |
||||||||
| Xxxxxxx, XX 00000 | ||||||||
