Guarantee
Exhibit
10.23
This
Guarantee (“Guarantee”) is made by the undersigned XXX Consulting, Inc., a
Florida corporation (“Guarantor”), to Summit Financial Resources, L.P., a Hawaii
limited partnership (“Summit”), as an inducement to Summit to enter into a
Financing Agreement (the “Financing Agreement”) with One Up Innovations, Inc., a
Georgia corporation, and FoamLabs, Inc., a Georgia corporation (individually and
collectively, “Client”).
For good
and valuable consideration, receipt of which is hereby acknowledged, Guarantor,
as a compensated guarantor, agrees as follows:
1. Definitions. Terms
defined in the above recitals shall have the meanings set forth
above. Terms defined in the singular shall have the same meaning when
used in the plural and vice versa. As used herein, the
term:
“Account” shall have the meaning set
forth in the Financing Agreement.
“Agreements”
means the Financing Agreement and any agreements related thereto.
“Collateral”
means any and all collateral for the Indebtedness, now existing or hereafter
created or arising, including Accounts purchased by Summit.
“Indebtedness”
means any and all obligations of Client owing to Summit arising from or related
to the Agreements.
2. Guarantee. Guarantor
absolutely and unconditionally guarantees to Summit that Client shall promptly
and fully perform, pay and discharge the Indebtedness. If Client
fails to pay any Indebtedness promptly as the same becomes due, Guarantor agrees
to pay the Indebtedness on demand.
3. Guarantee
Unconditional. This Guarantee is an absolute and unconditional
guarantee of payment and not of collectibility. The liability of
Guarantor hereunder is not conditional or contingent upon the genuineness,
validity, sufficiency or enforceability of the Agreements or any
Collateral. Summit shall not be required to (i) proceed against
Client by suit or otherwise, (ii) foreclose, proceed against, liquidate or
exhaust any Collateral, or (iii) exercise, pursue or enforce any
right or remedy Summit may have against any other guarantor (whether hereunder
or under a separate instrument), any other party, or otherwise, prior to
proceeding against Guarantor.
4. Collection Costs
and Attorneys Fees. If Guarantor fails to pay any
Indebtedness promptly as the same becomes due, Guarantor agrees to pay all costs
and expenses, including reasonable attorneys fees, incurred by Summit in
enforcing or exercising any remedies under this Guarantee and any other rights
and remedies against Guarantor. Additionally, Guarantor agrees to pay
all costs and expenses, including reasonable attorneys fees and legal expenses,
incurred by Summit in any bankruptcy proceedings of any type involving
Guarantor, including, without limitation, expenses incurred in modifying or
lifting the automatic stay, determining adequate protection, use of cash
collateral, or relating to any plan of reorganization.
5. Waiver by
Guarantor. Guarantor expressly and absolutely, without
affecting the liability of Guarantor hereunder:
a. Waives
notice of acceptance by Summit of this Guarantee, the offer of guarantee
contemplated by this Guarantee, or any other notice which may be required
relative to the acceptance of this Guarantee;
b. Waives
notice of the failure of Client to make any payment on the Indebtedness and
notice of the failure of any party to pay to Summit any Account or other
indebtedness held by Summit as Collateral;
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c. Waives
notice of any adverse change in Client’s condition, financial or otherwise, or
of any other fact which might materially increase Guarantor’s risk, whether or
not Summit has knowledge of the same;
d. Waives
notice of transactions which have occurred under the Agreements or relating to
or affecting this Guarantee;
e. Waives
demand, protest, notice of dishonor or nonpayment or presentment for payment of
any note, agreement, or other evidence of the Indebtedness;
f.
Waives notice of any kind in bringing and
prosecuting any action on any note, agreement, or other evidence of the
Indebtedness, diligence in connection with the collection on any note,
agreement, or other evidence of Indebtedness and the handling of any Collateral
existing, or to exist, in connection therewith; and
g. Waives
any right to require Summit to exhaust any Collateral or to first proceed
against any other person or property.
6. Consent to Summit’s
Acts. Guarantor hereby authorizes and consents to Summit at
any time and from time to time, without notice or further consent of Guarantor,
doing the following and Guarantor agrees that the liability of Guarantor shall
not be released, diminished, impaired, reduced, exonerated, or affected
by:
a. The
taking or accepting, or the failure by Summit to take or accept, any other
collateral or guarantee for the Indebtedness;
b. The
modification, amendment, or extension, of any of the Agreements, or other
evidence of the Indebtedness, to the granting of any other credit, and to the
acceleration of maturity of the Indebtedness;
c. Any
complete or partial release, waiver, exchange, substitution, subordination,
impairment, loss, compromise, or other modification of the Collateral or any
other guarantee at any time existing in connection with the
Indebtedness;
d. The
complete or partial release or substitution of Client or any other guarantors on
the Indebtedness;
e. Any
renewal, extension, modification, acceleration, consolidation, adjustment,
indulgence, forbearance, waiver or compromise of the payment of any part or all
of the Indebtedness, or any liability of any other party or any other guarantor
therefor, or the performance of any covenant contained in any agreement had or
to be had in connection with the Indebtedness, the Agreements, or the
Collateral, either with or without notice to or consent of
Guarantor;
f.
Any neglect,
delay, omission, failure, or refusal of Summit to take or prosecute any action
for the collection of the Indebtedness or any part thereof, or for the
enforcement of any provision of any of the Agreements, or to foreclose or
exhaust, or take or prosecute any action in connection with any Collateral or
any guarantee of the Indebtedness, specifically including, but without
limitation, the failure of Summit to perfect any security interest in any
Collateral;
g. Any
increase or decrease in the rate of interest on any note, agreement, or other
evidence of the Indebtedness;
h. Acceptance
of any partial payments on the Indebtedness and the application of such partial
payments to part of the Indebtedness; or
i.
Summit’s exercising any and all rights and remedies available to Summit by law,
at equity or agreement, even if the exercise thereof may affect, modify, or
eliminate Guarantor’s right of subrogation against Client or any other
party.
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7. Subordination by
Guarantor.
a. Collateral. Irrespective
of the time, order, manner, or method of creation, attachment, or perfection,
any and all security interests, liens, mortgages, deeds of trust, assignments,
and any other right, title, or interest in, to, or on any Collateral, whether
obtained by agreement or by judicial process (“Encumbrance”), in favor of
Summit, now existing or hereafter created, shall have priority over any and all
Encumbrances in favor of Guarantor in, to, or on any Collateral, now existing or
hereafter created. Guarantor hereby subordinates any and all
Encumbrances in favor of Guarantor in, to, or on any Collateral, now existing or
hereafter created, to any and all Encumbrances in favor of Summit in, to, or on
any Collateral, now existing or hereafter created.
b. Payment. Upon
request by Summit, (i) the right of Guarantor to receive any payment, whether of
principal or interest, on any indebtedness owing by Client to Guarantor shall be
subordinated to the right of Summit to receive payment on the Indebtedness; (ii)
Guarantor shall not receive or accept any payments from or on behalf of Client,
any guarantor, or any other obligor on any indebtedness owing by Client to
Guarantor without the prior written consent of Summit, and, if Guarantor
receives any payment without Summit’s prior written consent, such payment shall
be received in trust for Summit and shall be immediately tendered to Summit to
be applied towards the Indebtedness; and (iii) Guarantor shall direct Client to
make all payments on any indebtedness owing to Guarantor by Client directly to
Summit to be applied towards the Indebtedness, which direction may not be
changed or terminated without the prior written consent of Summit.
8. Summit’s
Remedies. In the event Summit obtains another guarantee for
the Indebtedness or there is more than one Guarantor under this Guarantee,
Guarantor agrees that Summit, in its sole discretion, may (i) bring suit against
Guarantor and/or the guarantors under any other guarantee, or any of the
Guarantors individually, for the Indebtedness, (ii) compromise or settle with
any one or more of Guarantor and/or the guarantors under any other guarantee for
such consideration as Summit may deem proper, and (iii) release one or more of
Guarantor and/or the guarantors under any other guarantee from
liability. Guarantor further agrees that such action shall not impair
or affect the rights of Summit to collect the entire unpaid Indebtedness from
Guarantor pursuant to this Guarantee.
9. Secured
Guarantee. The obligations of Guarantor under this Guarantee
shall be secured by the collateral identified in that certain Security Agreement
(All Assets) of approximate even date herewith by and between Guarantor and
Summit.
10. Application of
Payments. Without affecting any obligation created hereby or
hereunder, Guarantor grants to Summit full power and authority, in its
discretion and at any time and in such manner and on such terms as it deems fit,
with or without notice to Guarantor, to apply payments and recoveries on the
Indebtedness in such manner and in such order of priority as Summit deems
proper, whether or not such obligation is due at the time of such
application.
11. Term of
Guarantee. This Guarantee shall remain in full force and
effect until all Indebtedness has been fully paid. No
termination of this Guarantee by Guarantor shall be effective.
12. Subrogation, Contribution
and Indemnification. Guarantor hereby waives any and all
rights of subrogation, contribution or indemnification against Client or any
other guarantor of any nature whatsoever, now existing or hereafter arising or
created.
13. Cumulative
Rights. The rights and remedies herein conferred are
cumulative and not exclusive of any other rights or remedies and shall be in
addition to every other right, power and remedy herein specifically or hereafter
existing at law, in equity or by statute which Summit might otherwise have and
may be exercised from time to time and as often and in such order as may be
deemed expedient by Summit. No delay or omission by Summit in the
exercise of any such right, power or remedy or in the pursuance of any remedy
shall impair any such right, power, or remedy or be construed to be a waiver of
any default or to be an acquiescence therein.
14. Governing
Law. This Guarantee shall be governed by, and construed in
accordance with, the laws of the State of Utah.
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15. Binding
Effect. This Guarantee may be executed and delivered to Summit
prior to the execution and delivery of the Agreements. This Guarantee
shall nonetheless be considered a binding, enforceable Guarantee upon its
execution and delivery to Summit.
16. Revival
Clause. If the incurring of any debt by Client or Guarantor or
the payment of any money or transfer of property to Summit by or on behalf of
Client, Guarantor, or any other party, should for any reason subsequently be
determined to be “voidable” or “avoidable” in whole or in part within the
meaning of any state or federal law (collectively “voidable transfers”),
including, without limitation, fraudulent conveyances or preferential transfers
under the United States Bankruptcy Code or any other federal or state law, and
Summit is required to repay or restore any voidable transfers or the amount or
any portion thereof, or upon the advice of Summit’s counsel is advised to do so,
then, as to any such amount or property repaid or restored, including all
reasonable costs, expenses, and attorneys fees of Summit related thereto, the
liability of Guarantor shall automatically be revived, reinstated and restored
and shall exist as though the voidable transfers had never been
made.
17. Severability and
Interpretation. Any provision of this Guarantee which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction
only, be ineffective only 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. All
references in this Guarantee to the singular shall be deemed to include the
plural when the context so requires, and vice versa. References in
the collective or conjunctive shall also include the disjunctive unless the
context otherwise clearly requires a different interpretation.
18. Continuing
Guarantee. All agreements, representations, warranties, and
covenants made herein by Guarantor shall survive the execution and delivery of
this Guarantee and shall continue in effect so long as the Indebtedness or any
portion thereof is outstanding and unpaid, notwithstanding any termination of
the Guarantee. All agreements, representations, warranties, and
covenants made herein by Guarantor shall survive any bankruptcy
proceedings. This Guarantee shall bind the party making the same, and
its successors, assigns, heirs, executors, and personal
representatives. The death, insolvency, bankruptcy, disability, or
lack of corporate power of Client, Guarantor, or any party at any time which is
liable for the payment of any part or all of any Indebtedness will not affect
this Guarantee.
19. Joint and Several
Liability. Guarantor shall be jointly and severally liable
with Client and with any other guarantors for all obligations and liabilities
arising under this Guarantee.
20. Jury Waiver, Exclusive
Jurisdiction of Utah Courts. GUARANTOR HEREBY IRREVOCABLY
WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM, WHETHER IN CONTRACT OR IN TORT, AT LAW OR IN EQUITY, ARISING OUT
OF OR IN ANY WAY RELATED TO THIS GUARANTEE.
Guarantor
acknowledges that by execution and delivery of this Guarantee, Guarantor has
transacted business in the State of Utah and Guarantor hereby voluntarily
submits himself or herself, consents to, and waives any defense, to the
jurisdiction of courts located in the State of Utah as to all matters relating
to or arising from this Guarantee. EXCEPT AS EXPRESSLY AGREED IN
WRITING BY SUMMIT, THE STATE AND FEDERAL COURTS LOCATED IN THE STATE OF UTAH
SHALL HAVE SOLE AND EXCLUSIVE JURISDICTION OF ANY AND ALL CLAIMS, DISPUTES, AND
CONTROVERSIES ARISING UNDER OR RELATING TO THIS GUARANTEE. NO
LAWSUIT, PROCEEDING, OR ANY OTHER ACTION RELATING TO OR ARISING UNDER THIS
GUARANTEE MAY BE COMMENCED OR PROSECUTED IN ANY OTHER FORUM EXCEPT AS EXPRESSLY
AGREED IN WRITING BY SUMMIT.
21. Disclosure of
Information. Guarantor hereby consents to Summit disclosing to
any financial institution or investor providing financing or capital for Summit,
any and all information, knowledge, reports, and records, including, without
limitation, financial statements, concerning Guarantor.
22. Entire
Agreement. This Guarantee constitutes the entire agreement
between Summit and Guarantor and may not be altered, amended or modified except
in writing signed by Summit and Guarantor. All prior and
contemporaneous agreements and representations, express or implied, are merged
herein.
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Dated: May
17, 2010.
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XXX
Consulting, Inc.
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By:
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/s/ Xxxxx X. Xxxxxxxx
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Name:
Xxxxx X. Xxxxxxxx
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Title:
President & CEO
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