EXHIBIT 10.38
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT ("Agreement") is dated as of January 23, 2002,
and is executed by XXXXXX X. XXXXX ("Guarantor") in favor of XXXXXXX XXXXX
("Lender").
Lender has made a loan to Oasis Group, Inc., a Georgia corporation
("Oasis"), in the original principal amount of $100,000 (the "Loan"). The Loan
and the obligation to repay the Loan are represented by a Promissory Note made
by Oasis in favor of Lender and dated as of the date of this Agreement (the
"Promissory Note"). In order to induce lender to make the Loan and accept the
Promissory Note, Guarantor has agreed to execute and enter into this Agreement.
In consideration of the mutual agreements set forth in this Agreement
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as follows:
1. GUARANTY. Guarantor hereby unconditionally guarantees to the
Lender (a) the full and prompt payment when due, whether by acceleration or
otherwise, with such interest as may accrue thereon, either before or after
maturity thereof, of the Promissory Note, and (b) the full and prompt payment
and performance of any and all other obligations of Borrower to Lender under any
other documents or instruments now or hereafter evidencing, securing or
otherwise relating to the indebtedness evidenced by the Promissory Note.
Guarantor does hereby agree that if the Promissory Note is not paid by Borrower
in accordance with their terms or if any and all sums which are now or may
hereafter become due from Borrower to Lender under the Promissory Note is not
paid by Borrower in accordance with their terms, Guarantor will immediately make
such payments. Guarantor further agrees to pay Lender all expenses (including
reasonable attorney fees) paid or incurred by Lender in endeavoring to collect
the indebtedness, to enforce the obligations of Borrower guaranteed hereby, or
any portion thereof, or to enforce this Guaranty.
2. ACTION BY LENDER. Guarantor hereby consents and agrees that
Lender may at any time, and from time to time, without notice to or further
consent from Guarantor, either with or without consideration, substitute for any
collateral so held by it, other collateral of like kind or of any kind; agree to
modify the terms of the Promissory Note; extend or renew obligations evidenced
by the Promissory Note for any period; grant releases, compromises and
indulgences with respect to the Promissory Note and to any persons or entities
now or hereafter liable thereunder or hereunder; release any Guarantor or any
other guarantor or endorser of the Promissory Note; or take or fail to take any
action of any type whatsoever. No such action which Lender shall take or fail to
take in connection with the Promissory Note, or any security for the payment of
the indebtedness of Borrower to Lender or for the performance of any obligations
or undertakings of Borrower, nor any course of dealing with Borrower or any
other person, shall release Guarantor's obligations hereunder, affect this
Guaranty in any way or afford Guarantor any recourse against Lender. The
provisions of this Guaranty shall extend and be applicable to all renewals,
amendments, extensions, consolidations or modifications of the Promissory Note,
and any and all references herein to the Promissory Note shall be deemed to
include any such renewals, extensions, amendments, consolidations or
modifications thereof.
3. WAIVERS. Guarantor hereby waives and agrees not to assert or
take advantage of (a) the defense of the statute of limitations in any action
hereunder or for the collection of the indebtedness or the performance of any
obligation hereby guaranteed; (b) any defense that may arise by reason of the
incapacity, lack of authority, death or disability of Guarantor or any other
person or entity, or the failure of Lender to file or enforce a claim against
the estate (either in administration, bankruptcy or any other proceeding) of
Borrower or any other person or entity; (c) any defense based on the failure of
Lender to give notice of the existence, creation or incurring of any new or
additional indebtedness or obligation or of any action or non-action on the part
of any other person whomsoever, in connection with any obligation hereby
guaranteed; (d) any defense based upon an election of remedies by Lender which
destroys or otherwise impairs any subrogation rights of Guarantor or the right
of Guarantor to proceed against Borrower for reimbursement, or both; (e) any
defense based upon failure of Lender to commence an action against Borrower; (f)
any duty on the part of Lender to disclose to Guarantor any facts it may now or
hereafter know regarding Borrower; (g) acceptance or notice of acceptance of
this Guaranty by Lender; (h) notice of presentment and demand for payment of any
of the indebtedness or performance of any of the obligations hereby guaranteed;
(i) protest and notice of dishonor or of default to Guarantor or to any other
party with respect to the indebtedness or performance of obligations hereby
guaranteed; (j) any and all other notices whatsoever to which Guarantor might
otherwise be entitled; (k) any defense based on lack of due diligence by Lender
in collection, protection or realization upon any collateral securing the
indebtedness evidenced by the Promissory Note; and (l) any other legal or
equitable defenses whatsoever to which Guarantor might otherwise be entitled.
4. CLASSIFICATION OF GUARANTY. This is a guaranty of payment and
performance and not of collection. The liability of Guarantor under this
Guaranty shall be direct and immediate and not conditional nor contingent upon
the pursuit of any remedies against Borrower or any other person, nor against
securities or liens available to Lender, its successors, successors-in-title,
endorsees or assigns. Guarantor waives any right to require that an action be
brought against Borrower or any other person or to require that resort be had to
any security or to any balance of any deposit account or credit on the books of
Lender in favor of Borrower or any other person. In the event of a default under
the Promissory Note, Lender shall have the right to enforce its rights, powers
and remedies thereunder or hereunder or under any other instrument now or
hereafter evidencing, securing or otherwise relating to the indebtedness
evidenced by the Promissory Note, in any order, and all rights, powers and
remedies available to Lender in such event shall be nonexclusive and cumulative
of all other rights, powers and remedies provided thereunder or hereunder or by
law or in equity. Accordingly, Guarantor hereby authorizes and empowers Lender
upon acceleration of the maturity of the Promissory Note, at its sole
discretion, and without notice to Guarantor, to exercise any right or remedy
which Lender may have. If the indebtedness guaranteed hereby is partially paid
by reason of the election of Lender, its successors, endorsees or assigns, to
pursue any of the remedies available to Lender, or if such indebtedness is
otherwise partially paid, this Guaranty shall nevertheless remain in full force
and effect, and Guarantor shall remain liable for the entire unpaid balance of
the indebtedness guaranteed hereby, even though any rights which Guarantor may
have against Borrower may be destroyed or diminished by the exercise of any such
remedy. Until all of the obligations of Borrower to Lender have been paid and
performed in full, Guarantor shall have no right of subrogation to Lender
against Borrower, and Guarantor hereby waives any rights to enforce any
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remedy which Lender may have against Borrower and any rights to participate in
any security for the Promissory Note.
5. APPLICATION OF PAYMENTS. 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
indebtednesses, obligations and undertakings which are the subject of this
Guaranty.
6. GOVERNING LAW. Guarantor acknowledges that this Guaranty and
the Promissory Note were negotiated, executed and delivered in the State of
Georgia, and shall be governed and construed in accordance with the law of the
State of Georgia.
7. MODIFICATION; IRREVOCABILITY. 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 writing signed by a duly authorized
officer of Lender and bearing the seal of Lender. This Guaranty shall be
irrevocable by Guarantor so long as the Promissory Note shall remain in effect
and until all indebtedness guaranteed hereby has been completely repaid and all
obligations and undertakings of Borrower under, by reason of, or pursuant to the
Promissory Note have been completely performed.
8. NOTICES. Any and all notices, elections, demands, requests and
responses thereto permitted or required to be given under this Guaranty must be
given in accordance with the terms and provisions of the Stock Purchase
Agreement.
9. BINDING EFFECT. The provisions of this Guaranty shall be
binding upon the Guarantor and his successors, successors-in-title, heirs, legal
representatives and assigns and shall inure to the benefit of Lender, its
successors, successors-in-title, heirs, legal representatives and assigns. This
Guaranty shall in no event be impaired by any change which may arise by reason
of the dissolution of Borrower.
19. EXECUTION. Guarantor has executed this Guaranty individually
and not as a partner of Borrower.
11. LEGALITY. 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, so that in no event
shall any exaction be possible under this Guaranty that is in excess of the
current limit of such validity, but such obligation shall be fulfilled to the
limit of such validity. The provisions of this paragraph shall control every
other provision of this Guaranty.
12. ASSIGNMENT. The Guaranty is assignable by Lender, and any full
or partial assignment hereof by Lender shall operate to vest in the assignee all
rights and powers herein conferred upon and granted to Lender and so assigned by
Lender.
[Remainder of page intentionally left blank. Signature on next page.]
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[Signature page of Guaranty Agreement.]
IN WITNESS WHEREOF, Guarantor has executed this Agreement as of the
date first above written.
GUARANTOR:
/s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx, Individually
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