SECURED CONTINUING UNCONDITIONAL GUARANTY
This
SECURED CONTINUING UNCONDITIONAL GUARANTY (this “Guaranty”),
is
made this 26th
day of
March, 2007, by TOV
Energy-Servicing Company Esko Pivnich, a
Ukrainian Closed Joint Stock Company, having a mailing address at 00x Xxxxxxx
Xx., Xxxx, Xxxxxxx (“Esko”);
and
Pari,
Ltd., a Ukrainian
Limited Liability company,
having a
mailing address at 00x Xxxxxxx Xx., Xxxx, Xxxxxxx (“Pari”),
and
together with Esko, individually and collectively, jointly and severally, the
“Guarantor”)
in
favor of and for the benefit and security of DUTCHESS
PRIVATE EQUITIES FUND, LTD.,
having
a mailing address at 00 Xxxxxxxxxxxx Xxxxxx, Xxxxx 0, Xxxxxx, Xxxxxxxxxxxxx
00000 (the “Secured
Party”).
WHEREAS,
pursuant to one or more promissory notes or other debentures or instruments,
including, without limitation that certain Promissory Note, dated of even date
herewith from the Company in favor of the Secured Party (as amended or otherwise
modified from time to time, collectively, the “Notes”),
the
Secured Party has agreed to make certain loans and other financial
accommodations to Sunrise Energy Resources, Inc. (the “Company”);
WHEREAS,
each Guarantor is desirous of having the Secured Party extend and/or continue
the extension of credit to the Company, and the Secured Party has required
that
each Guarantor execute and deliver this Guaranty to the Secured Party, as a
condition to the extension and continuation of credit by the Secured Party;
and
WHEREAS,
the extension and/or continued extension of credit, as aforesaid, by the Secured
Party is necessary and desirable to the conduct and operation of the business
of
the Company, and each Guarantor will derive substantial benefits from the credit
made available to the Company pursuant to the Notes;
NOW,
THEREFORE, 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 the Company by the Secured Party, each Guarantor
agrees as follows:
1. Each
Guarantor unconditionally guaranties (i) the full and prompt payment when due,
whether at maturity or earlier, by reason of acceleration or otherwise, and
at
all times thereafter, of all of the indebtedness, liabilities and obligations
of
every kind and nature of the Company to the Secured Party or any parent,
affiliate or subsidiary of the Secured Party (the terms “Secured Party” as used
hereafter shall include such parents, affiliates and subsidiaries), 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, and howsoever owned, held or acquired by the Secured Party, whether through
discount, overdraft, purchase, direct loan or as collateral or otherwise,
including, without limitation, all obligations and liabilities of the Company
to
the Secured Party under the Notes, and (ii) the prompt, full and faithful
discharge by the Company of each and every term, condition, agreement,
representation and warranty now or hereafter made by the Company to Secured
Party (all such indebtedness, liabilities and obligations being hereinafter
collectively referred to as the “Liabilities”).
Guarantor further agrees to pay all costs and expenses, including, without
limitation, all court costs and reasonable attorneys’ and paralegals’ fees paid
or incurred by Secured Party in endeavoring to collect all or any part of the
Liabilities from, or in prosecuting any action against, Guarantor. All amounts
payable by Guarantor under this Guaranty shall be payable by Guarantor upon
demand by Secured Party.
|
|
|
|
SEYR.SUB.GUARANTY.FINAL.3.23.07
|
|||
|
DHL
|
KT
|
RL
|
1
2. Notwithstanding
any provision of this Guaranty to the contrary, it is intended that this
Guaranty, and any liens and security interests granted by Guarantor to secure
this Guaranty, not constitute a “Fraudulent Conveyance” (as defined below).
Consequently, 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, “Fraudulent
Conveyance”
means
a
fraudulent conveyance under Section 548 of the “Bankruptcy Code” (as hereinafter
defined) or a fraudulent conveyance or fraudulent transfer under the provisions
of any applicable fraudulent conveyance or fraudulent transfer law or similar
law of any state, nation or other governmental unit, as in effect from time
to
time.
3. Each
Guarantor hereby agrees that this Guaranty is a guaranty of payment and
performance and not of collection, and that, except as hereinafter provided,
its
obligations under this Guaranty shall be unconditional, irrespective of (i)
the
validity or enforceability of the Liabilities or any part thereof, or of any
promissory note or other document evidencing all or any part of the Liabilities,
(ii) the absence of any attempt to collect Liabilities from the Company or
any
other guarantor or other action to enforce the same, (iii) the waiver or consent
by Secured Party with respect to any provision of any instrument evidencing
Liabilities, or any part thereof, or any other agreement heretofore, now or
hereafter executed by Company and delivered to Secured Party, (iv) failure
by Secured Party to take any steps to perfect and maintain its security interest
in, or to preserve its rights to, any security or collateral for Liabilities,
(v) the institution of any proceeding under Chapter 11 of Title 11 of the
United States Code (11 U.S.C. §101 et seq.), as amended (the “Bankruptcy
Code”)
or any
similar or analogous statutory or nonstatutory proceedings under any other
law,
whether state, provincial or federal, now existing or hereafter existing for
relief of the debtors, by or against Company, (vi) Secured Party’s election
in any such proceeding of the application of Section 1111(b)(2) of the
Bankruptcy Code, (vii) any borrowing or grant of a security interest by Company
as debtor-in-possession, under Section 364 of the Bankruptcy Code, (viii) the
disallowance, under Section 502 of the Bankruptcy Code, of all or any portion
of
Secured Party’s claim(s) for repayment of Liabilities, or (ix) any other
circumstance which might otherwise constitute a legal or equitable discharge
or
defense of a guarantor.
4. Each
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of receivership, insolvency or bankruptcy
of
the Company, protest or notice with respect to Liabilities and all demands
whatsoever, and covenants that this Guaranty will not be discharged, except
by
complete performance of the obligations and liabilities contained herein. Upon
any default by the Company as provided in any instrument or document evidencing
all or any part of Liabilities, including, without limitation, the Notes,
Secured Party 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 Liabilities, without first proceeding against the Company, or any
other person, firm, or corporation, or against any security or collateral for
Liabilities.
|
|
|
|
|
|||
|
DHL
|
KT
|
RL
|
2
5. Secured
Party is hereby authorized, without notice or demand and without affecting
the
liability of any Guarantor, to at any time and from time to time (i) renew,
extend, accelerate or otherwise change the time for payment of, or other terms
relating to, Liabilities or otherwise modify, amend or change the terms of
any
promissory note or other agreement, document or instrument now or hereafter
executed by the Company and delivered to Secured Party; (ii) accept partial
payments on Liabilities; (iii) take and hold security or collateral for the
payment of Liabilities guaranteed hereby, or for the payment of this Guaranty,
or for the payment of any other guaranties of Liabilities or other liabilities
of the Company, and exchange, enforce, waive and release any such security
or
collateral; (iv) apply such security or collateral and direct the order or
manner of sale thereof as in its sole discretion it may determine; and (v)
settle, release, compromise, collect or otherwise liquidate Liabilities and
any
security or collateral therefor in any manner, without affecting or impairing
the obligations of any Guarantor hereunder. Secured Party shall have the
exclusive right to determine the time and manner of application of any payments
or credits, whether received from the Company or any other source, and such
determination shall be binding on each Guarantor. All such payments and credits
may be applied, reversed and reapplied, in whole or in part, to any of the
Liabilities as Secured Party shall determine in its sole discretion without
affecting the validity or enforceability of this Guaranty.
6. To
secure
the payment and performance of the Liabilities, including the obligations and
liabilities contained herein, each Guarantor has granted to Secured Party a
security interest pursuant to a Security Agreement dated as of even date
herewith among the Company, each Guarantor and Secured Party (the “Security
Agreement”) in all property of Guarantor. Guarantor agrees that Secured Party
shall have the rights and remedies of a secured party under the UCC (as defined
in the Security Agreement), as now existing or hereafter amended, with respect
to all of the aforesaid property, including without limitation thereof, the
right to sell or otherwise dispose of any or all of such property and apply
the
proceeds of such sale to the payment of Liabilities. In addition, Secured Party
may, in its sole discretion, without notice to Guarantor and regardless of
the
acceptance of any security or collateral for the payment hereof, appropriate
and
apply toward the payment of Liabilities (i) any indebtedness due or to become
due from Secured Party to Guarantor, and (ii) any moneys, credits or other
property belonging to Guarantor, at any time held by or coming into the
possession of Secured Party, whether for deposit or otherwise.
7. Each
Guarantor hereby assumes responsibility for keeping itself informed of the
financial condition of the Company, and any and all endorsers and/or other
guarantors of any instrument or document evidencing all or any part of
Liabilities and of all other circumstances bearing upon the risk of nonpayment
of Liabilities or any part thereof that diligent inquiry would reveal, and
each
Guarantor hereby agrees that Secured Party shall not have any duty to advise
Guarantor of information known to Secured Party regarding such condition or
any
such circumstances or to undertake any investigation not a part of its regular
business routine. If Secured Party, in its sole discretion, undertakes at any
time or from time to time to provide any such information to any Guarantor,
Secured Party shall be under no obligation to update any such information or
to
provide any such information to Guarantor on any subsequent
occasion.
|
|
|
|
|
|||
|
DHL
|
KT
|
RL
|
3
8. Each
Guarantor consents and agrees that Secured Party shall be under no obligation
to
marshal any assets in favor of Guarantor or against or in payment of any or
all
of Liabilities. Each Guarantor further agrees that, to the extent that the
Company make a payment or payments to Secured Party, or Secured Party receives
any proceeds of collateral, 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 the Company, its estate, trustee, receiver
or
any other party, including, without limitation, Guarantor, under any bankruptcy
law, state, provincial or federal law, common law or equitable theory, then
to
the extent of such payment or repayment, Liabilities or the part thereof which
has been paid, reduced or satisfied by such amount, and Guarantor’s obligations
hereunder with respect to such portion of Liabilities, shall be reinstated
and
continued in full force and effect as of the date such initial payment,
reduction or satisfaction occurred.
9. Each
Guarantor agrees that any and all claims of any Guarantor against the Company,
any endorser or any other guarantor of all or any part of Liabilities, or
against Company’s properties, whether arising by reason of any payment by any
Guarantor to Secured Party pursuant to the provisions hereof, or otherwise,
shall be subordinate and subject in right of payment to the prior payment,
in
full, of all of Liabilities.
10. Secured
Party may, without notice to anyone, sell or assign Liabilities or any part
thereof, or grant participations therein, and in any such event each and every
immediate or remote assignee or holder of, or participant in, all or any of
Liabilities shall have the right to enforce this Guaranty, by suit or otherwise
for the benefit of such assignee, holder, or participant, as fully as if herein
by name specifically given such right, but Secured Party shall have an
unimpaired right, prior and superior to that of any such assignee, holder or
participant, to enforce this Guaranty for the benefit of Secured Party, as
to
any part of Liabilities retained by Secured Party.
11. This
Guaranty shall be binding upon Guarantor and upon the successors (including
without limitation, any receiver, trustee or debtor in possession of or for
Guarantor) of Guarantor and shall inure to the benefit of Secured Party and
its
respective successors and assigns. Guarantor hereby represents and warrants
that
it has all necessary corporate authority to execute and deliver this Guaranty
and to perform its obligations hereunder.
12. This
Guaranty shall continue in full force and effect, and Secured Party shall be
entitled to make loans and advances and extend financial accommodations to
the
Company on the faith hereof until such time as Secured Party has, in writing,
notified Guarantor that all of Liabilities have been paid in full and discharged
or until Secured Party has actually received written notice from Guarantor
of
the discontinuance of this Guaranty, or written notice of the dissolution of
Guarantor. In case of any discontinuance by, or dissolution of, Guarantor
(collectively, a “Termination
Event”),
this
Guaranty and the obligations of Guarantor and its successors or assigns, as
the
case may be, shall remain in full force and effect with respect to all of
Liabilities incurred prior to the receipt by Secured Party of written notice
of
the Termination Event.
|
|
|
|
|
|||
|
DHL
|
KT
|
RL
|
4
13. 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.
14. THIS
GUARANTY SHALL BE GOVERNED AND CONTROLLED BY THE INTERNAL LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS, without regard to its conflicts of law
principles.
15.
Each
Guarantor irrevocably agrees that, subject to Secured Party’s sole and absolute
election, all disputes arising under this Guaranty will be submitted to
arbitration in Boston, Massachusetts before a single arbitrator of the American
Arbitration Association (“AAA”). The arbitrator shall be selected by application
of the rules of the AAA, or by mutual agreement of the parties, except that
such
arbitrator shall be an attorney admitted to practice law in the Commonwealth
of
Massachusetts. No party to this agreement will challenge the jurisdiction or
venue provisions as provided in this section. Nothing
in this section shall limit the Secured Party’s right to obtain an injunction
for a breach of this Guaranty from a court of law.
16.
Termination.
This
Agreement shall terminate on the date on which all Liabilities have been
satisfied, performed, paid or discharged in full.
[Signature
Page Follows]
|
|
|
|
|
|||
|
DHL
|
KT
|
RL
|
5
IN
WITNESS WHEREOF, this Guaranty has been duly executed by the undersigned as
of
this 26th
day of
March, 2007.
|
GUARANTOR:
|
|
|
Sunrise
Energy Resources
|
|
|
By:
|
/s/
Konstantin Tsiryulnikov
|
|
Name:
|
Konstantin
Tsiryulnikov
|
|
Title:
|
President
and CEO
|
|
Pari,
Ltd.
|
|
|
By:
|
/s/
Konstantin Tsiryulnikov
|
|
Name:
|
Konstantin
Tsiryulnikov
|
|
Title:
|
President
and CEO
|
|
TOV
Energy-Servicing Company Esko Pivnich
|
|
|
By:
|
/s/
Konstantin Tsiryulnikov
|
|
Name:
|
Konstantin
Tsiryulnikov
|
|
Title:
|
President
and CEO
|
ACKNOWLEDGMENT
OF SIGNATURES
|
STATE
OF
|
}
|
|
|
|
}
SS
|
|
|
COUNTY
OF
|
}
|
I,
___________________________, a Notary Public in and for the state and county
aforesaid, so hereby certify that before me this day personally appeared
_______________________, known to me to be the same person whose name is
subscribed to the foregoing Secured Continuing Unconditional Guaranty and known
to me to be the _____________________________ of the corporation that executed
the foregoing Secured Continuing Unconditional Guaranty, and acknowledged to
me
that he executed and delivered the foregoing consent as his free and voluntary
act, for the uses set forth therein.
IN
WITNESS WHEREOF, I have hereunto set my hand and official seal this ______
day
of February, 2007.
|
|
|||
|
Notary
Public
|
|||
|
|
|||
|
My
Commission Expires:
|
|
||
ACKNOWLEDGMENT
OF SIGNATURES
|
STATE
OF
|
}
|
|
|
|
}
SS
|
|
|
COUNTY
OF
|
}
|
I,
___________________________, a Notary Public in and for the state and county
aforesaid, so hereby certify that before me this day personally appeared
_______________________, known to me to be the same person whose name is
subscribed to the foregoing Secured Continuing Unconditional Guaranty and known
to me to be the _____________________________ of the corporation that executed
the foregoing Secured Continuing Unconditional Guaranty, and acknowledged to
me
that he executed and delivered the foregoing consent as his free and voluntary
act, for the uses set forth therein.
IN
WITNESS WHEREOF, I have hereunto set my hand and official seal this ______
day
of February, 2007.
|
|
|||
|
Notary
Public
|
|||
|
|
|||
|
My
Commission Expires:
|
|
||
