UNCONDITIONAL GUARANTY AGREEMENT
This
Unconditional Guaranty Agreement (this "Guaranty") is given this 6th day of
June, 2008, by Chips
& Bits, Inc., a Vermont
corporation,
Strategy Plus, Inc., a Vermont
corporation,
xxxx.xxx, inc., a
Delaware corporation, Direct
Partner Telecom, Inc.,
a
Florida corporation, Tralliance
Corporation, a
New
York corporation, and Tralliance
Partners International Corp.,
a
Delaware corporation (each a “Guarantor”
and
collectively, the "Guarantor"`)
in
conjunction with that certain Revolving Loan Agreement dated June 6th, 2008,
(the "Revolving Loan Agreement") by and between xxxxxxxx.xxx,
inc.,
a
Delaware corporation (the “Borrower") and Dancing Bear Investments, Inc., a
Florida corporation (the "Lender").
A. In
order
to induce Lender to enter into the Revolving Loan Agreement and in furtherance
of covenants and undertakings pursuant to that certain Revolving Loan Agreement,
each Guarantor does hereby undertake and agree that, if for any reason the
Borrower does not make payment of any such sums or comply with any such
obligations by the time, on the date and otherwise in the manner specified
in
the Revolving Loan Agreement (or in any of the promissory notes issued to the
Lender in connection therewith, whether such notes are issued at the initial
closing thereof or any subsequent additional closing (the “Notes”)) (the Notes
together with the Revolving Loan Agreement, this Agreement and the Security
Agreement of even date, the “Note Documentation”), the Guarantor will pay to the
Lender such sums and comply with such obligations on demand by the Lender in
the
manner provided in the Note Documentation. Each Guarantor agrees that its
obligations hereunder shall be joint and several with each other Guarantor;
and
B. Each
Guarantor is a subsidiary of the Borrower, and will substantially benefit,
economically and otherwise, from the Borrower executing the Note Documentation
and from the proceeds of the loans derived therefrom.
NOW,
THEREFORE,
in
consideration of the premises herein, in the Revolving Loan Agreement, and
of
the sum of TEN DOLLARS ($10.00) paid to Guarantor by the Lender, the receipt
and
adequacy whereof is hereby acknowledged, and as part of the consideration for
the execution by the Lender of the Revolving Loan Agreement, each Guarantor
hereby covenants and agrees with the Lender as follows:
1. Guaranty
of Borrower’s Obligations.
Each
Guarantor, jointly and severally, irrevocably, absolutely and unconditionally
guarantees to Lender the due and punctual payment, when due, by acceleration
or
otherwise, of all obligations to pay under the Note Documentation and
performance of all of the obligations of the Note Documentation and related
documents.
2. Absolute
and Unconditional Guaranty.
This is
also an absolute and unconditional Guaranty pursuant to which the obligations
of
the Guarantors may be enforced without first having recourse to the Borrower,
any other Guarantor or person or any other agreement, security, guaranty or
indemnity.
3. General
Guaranty.
This
Guaranty is a general guaranty and shall inure to the benefit of the Lender
and
its successors and assigns. The obligations of each Guarantor under this
Guaranty shall be binding on each of the Guarantors and their respective
successors and assigns. No Guarantor may assign its rights or transfer its
obligations under this Guaranty without the prior written approval of the
Lender.
4.
Waiver
of Defenses.
Each
Guarantor specifically waives any and all defenses to any action or proceeding
brought to enforce this Guaranty or any part of this Guaranty, either at law
or
in equity, except for the defense that the sum claimed by the Lender to be
due
has actually been paid to the Lender. Any release of any Guarantor from this
Guarantor shall not affect the obligation and liability of the remaining
Guarantors.
1
5.
Waiver
of Jury Trial.
Each
Guarantor hereby knowingly, voluntarily, and intentionally, waives the right
it
may have to a trial by jury in respect of any litigation based on, or arising
out of, under or in connection with this Guaranty and any document executed
in
conjunction herewith or any course of conduct, course of dealing, statement
(whether oral or written) or actions of or by any Guarantor or the
Lender.
6.
Submission
to Jurisdiction; Attorneys’ Fees.
Each
Guarantor irrevocably and unconditionally (a) agrees that any suit, action
or
other legal proceeding arising out of or relating to this Guaranty shall be
brought in the circuit court located in Broward County, Florida or the court
of
the United States, Southern District of Florida; (b) consents to the
jurisdiction of each such court located in any such suit, action or proceeding;
(c) waives any objection which it may have to the laying of venue of any such
suit, action or proceeding in any of such courts; and (d) agrees that service
of
any court paper may be affected on such party by mail or in such other manner
as
may be provided under applicable laws or court rules in said state. Each
Guarantor further agrees to pay all costs of collection, including reasonable
attorneys' fees, costs and other legal expenses incurred by the Lender in
attempting to enforce the Guarantors’ obligations under this
Guaranty.
7.
Notices.
All
notices, requests, consents and other communications under this Guaranty shall
be in writing and shall be (as elected by the person giving such notice) (i)
hand delivered by messenger or courier service, (ii) telecommunicated, (iii)
mailed by registered or certified mail (postage prepaid, return receipt
requested), or (iv) sent by recognized overnight courier service to the relevant
party at its/his/her address listed below (or at such other address as the
relevant Guarantor or the Lender may specify by written notice in accordance
with this paragraph). Each such notice shall be deemed delivered (a) on the
date
delivered if by personal delivery; (b) on the date of transmission with
confirmed answer back if by facsimile (provided that notice is also sent on
such
date in accordance with either clause (i), (iii) or (iv); (c) on the date upon
which the return receipt is signed or delivery is refused or the notice is
designated by the postal authorities as not deliverable, as the case may be,
if
mailed; or (d) on the second business day following delivery to a recognized
overnight courier service for next business day delivery.
If
to the
Borrower:
000
X.
Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxx
Xxxxxxxxxx, XX 00000
Attn:
Xxxxxx Xxxxxxxx
If
to a
Guarantor:
000
X.
Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxx
Xxxxxxxxxx, XX 00000
Attn:
Xxxxxx Xxxxxxxx
If
to the
Lender:
000
X.
Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxx
Xxxxxxxxxx, XX 00000
Attn:
Xxxxxxx Xxxx
8.
Entire
Agreement.
This
Guaranty (together with the Security Agreement of even date herewith) represents
the entire understanding and agreement among the Guarantors and the Lender
with
respect to the subject matter hereof and supersedes all other negotiations,
understandings and representations (if any) made by and among such parties.
No
course of dealing, course of performance or trade usage, shall be used to
supplement or modify any terms hereof.
9.
Severability.
If any
part of this Guaranty is contrary to, prohibited by or deemed invalid under
applicable law or regulation, such provision shall be inapplicable and deemed
omitted to the extent so contrary, prohibited or invalid, but the remainder
of
this Guaranty shall not be invalidated and shall be given full force and
effect.
2
10.
Governing
Law.
This
Guaranty shall be governed by the laws of the State of Florida, without regard
to the conflicts of law principles thereof.
11.
Amendment
and Waiver.
Any
term of this Guaranty may be amended, only with the written consent of the
Guarantors and the Secured Parry. Any amendment or waiver effected in accordance
with this paragraph shall be binding upon the Guarantors and the
Lender.
[EXECUTION
PAGES FOLLOW]
3
Signed,
sealed, and delivered
in
the
presence of:
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Chips
& Bits, Inc., a Vermont corporation
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By:
Xxxxxx
X.
Xxxxxxxx
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Signature
of Witness 1
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Its:
President
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Print
Name: Xxxxxx
X.
Xxxxxxxx
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Print
Name of Witness 1
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Signature
of Witness 2
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Print
Name of Witness 2
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STATE
OF
)
) SS:
COUNTY
OF )
The
foregoing instrument was acknowledged before me this ____ day of
________________, 2008, by _________________________ as _____________ of Chips
& Bits, Inc., a Vermont corporation, on behalf of the corporation. He/She is
(check one) ____ personally known to me or ____ has produced
_____________________________________ as identification.
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Notary
Public Signature
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Print
Name
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(SEAL)
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State
of
at Large
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Commission
No.:
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My
Commission expires:
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4
Signed,
sealed, and delivered
in
the
presence of:
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Strategy
Plus, Inc., a Vermont corporation
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By:
Xxxxxx X.
Xxxxxxxx
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Signature
of Witness 1
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Its:
President
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|
Print
Name: Xxxxxx X.
Xxxxxxxx
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Print
Name of Witness 1
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Signature
of Witness 2
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Print
Name of Witness 2
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STATE
OF )
)
SS:
COUNTY
OF )
The
foregoing instrument was acknowledged before me this ____ day of
________________, 2008, by _________________________ as _____________ of
Strategy Plus, Inc., a Vermont corporation on behalf of the corporation. He/She
is (check one) ____ personally known to me or ____ has produced
_____________________________________ as identification.
|
Notary
Public Signature
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||
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Print
Name
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||
|
(SEAL)
|
State
of at
Large
|
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|
Commission
No.:
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My
Commission
expires:
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5
Signed,
sealed, and delivered
in
the
presence of:
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xxxx.xxx,
inc., a Delaware corporation
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By:
Xxxxxx X.
Xxxxxxxx
|
||||
|
Signature
of Witness 1
|
Its:
President
|
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|
Print
Name: Xxxxxx X.
Xxxxxxxx
|
||||
|
Print
Name of Witness 1
|
||||
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Signature
of Witness 2
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Print
Name of Witness 2
|
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STATE
OF )
)
SS:
COUNTY
OF )
The
foregoing instrument was acknowledged before me this ____ day of
________________, 2008, by _________________________ as _____________ of
xxxx.xxx, inc., a Delaware corporation on behalf of the corporation. He/She
is
(check one) ____ personally known to me or ____ has produced
_____________________________________ as identification.
|
Notary
Public Signature
|
||
|
Print
Name
|
||
|
(SEAL)
|
State
of
at Large
|
|
|
Commission
No.:
|
||
|
My
Commission expires:
|
6
Signed,
sealed, and delivered
in
the
presence of:
|
Tralliance
Partners International Corp.,
a
Delaware corporation
|
||||
|
By:
Xxxxxx X.
Xxxxxxxx
|
||||
|
Signature
of Witness 1
|
Its:
President
|
|||
|
Print
Name: Xxxxxx X.
Xxxxxxxx
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||||
|
Print
Name of Witness 1
|
||||
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Signature
of Witness 2
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|
Print
Name of Witness 2
|
||||
STATE
OF )
)
SS:
COUNTY
OF )
The
foregoing instrument was acknowledged before me this ____ day of
________________, 2008, by _________________________ as _____________ of
Tralliance Partners International Corp., a Delaware corporation on behalf of
the
corporation. He/She is (check one) ____ personally known to me or ____ has
produced _____________________________________ as identification.
|
Notary
Public Signature
|
||
|
Print
Name
|
||
|
(SEAL)
|
State
of
at Large
|
|
|
Commission
No.:
|
||
|
My
Commission expires:
|
7
Signed,
sealed, and delivered
in
the
presence of:
|
Direct
Partner Telecom, Inc.,
a
Florida corporation
|
||||
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By:
Xxxxxx X.
Xxxxxxxx
|
||||
|
Signature
of Witness 1
|
Its:
President
|
|||
|
Print
Name: Xxxxxx X.
Xxxxxxxx
|
||||
|
Print
Name of Witness 1
|
||||
|
Signature
of Witness 2
|
||||
|
Print
Name of Witness 2
|
||||
STATE
OF )
)
SS:
COUNTY
OF )
The
foregoing instrument was acknowledged before me this ____ day of
________________, 2008, by _________________________ as _____________ of Direct
Partner Telecom, Inc., a Florida corporation on behalf of the corporation.
He/She is (check one) ____ personally known to me or ____ has produced
_____________________________________ as identification.
|
Notary
Public Signature
|
||
|
Print
Name
|
||
|
(SEAL)
|
State
of
at Large
|
|
|
Commission
No.:
|
||
|
My
Commission
expires:
|
8
Signed,
sealed, and delivered
in
the
presence of:
|
Tralliance
Corporation,
a
New York corporation
|
||||
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By:
Xxxxxx X.
Xxxxxxxx
|
||||
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Signature
of Witness 1
|
Its:
President
|
|||
|
Print
Name: Xxxxxx X.
Xxxxxxxx
|
||||
|
Print
Name of Witness 1
|
||||
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Signature
of Witness 2
|
||||
|
Print
Name of Witness 2
|
||||
STATE
OF )
)
SS:
COUNTY
OF )
The
foregoing instrument was acknowledged before me this ____ day of
________________, 2008, by _________________________ as _____________ of
Tralliance Corporation., a New York corporation on behalf of the corporation.
He/She is (check one) ____ personally known to me or ____ has produced
_____________________________________ as identification.
|
Notary
Public Signature
|
||
|
Print
Name
|
||
|
(SEAL)
|
State
of at
Large
|
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|
Commission
No.:
|
||
|
My
Commission
expires:
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9
