CORPORATE GUARANTY AGREEMENT
State of
Georgia
County
of Dekalb
In
consideration of the sum of One Dollar ($1.00) and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged by
the undersigned, and to induce Presidential Financial Corporation (hereinafter
referred to as “Lender" to extend credit to OE Source, L.C. (hereinafter
referred to as “Borrower”) and/or to renew or extend, in whole or in part, loans
or discounts already contracted for by Borrower, and/or from time to time to
make loans to Borrower and/or enter into with Borrower any agreement with regard
to the assignment and/or financing of accounts, which extensions, renewals, and
other financial accommodations to Borrower will be of direct financial benefit
to the undersigned, the undersigned, jointly and severally, do hereby
unconditionally guarantee to Lender and to its endorsers, transferees,
successors and assigns, of either this Guaranty or any of the Obligations (as
hereinafter defined) secured hereby, the due and punctual payment in full of all
principal of and interest and premium, if any, on, and all other amounts in
respect of all Obligations of Borrower to Lender of any and every kind or
character, according to their respective terms, and do agree that if such
Obligations, or any of them, are not timely performed or paid by Borrower, the
undersigned will immediately perform and/or pay such Obligations according to
respective terms
The
“Obligations” covered by this Guaranty include all obligations of Borrower to
Lender now existing or hereafter coming into existence, including, but not
limited to, all obligations of Borrower to Lender arising under or pertaining
to: any agreement regarding accounts receivable; any security device; any
promissory note; any loan, advance, over-advance, and/or account; any and all
other indebtedness and obligations of Borrower to Lender however evidenced or
arising; and any renewals or extensions, in whole or in part, of any of the
obligations heretofore described, together with all damages, losses, costs,
interest, charges, expenses and liabilities of every kind, nature and
description suffered or incurred by Lender, arising in any manner out of or in a
way connected with, or growing out of said Obligations of Borrower to Lender.
This is a continuing guaranty
and shall remain in force until a written notice revoking it has been received
by Lender via USPS Certified Mail to the following address: Caller
Service #105100, Xxxxxx, XX 00000-0000, but such revocation shall not release
the undersigned from liability for any and all Obligations of the principal then
in existence, or from any renewals or extensions thereof, in whole or in part,
and whether such renewals are made before or after such
revocation.
The
undersigned hereby consent and agree that Lender may at any time, either with or
without consideration, surrender any property or other security of any kind or
nature whatsoever held by it or by any person, firm or corporation on its behalf
or for its account securing any of the Obligations covered by this Guaranty, or
substitute any collateral so held by it for other collateral of like kind or of
any kind without notice to or further consent from the undersigned and such
surrender or substitution shall not in any way affect the liability of the
undersigned hereunder. The undersigned shall not be discharged from
their obligations and undertakings hereunder in the event Lender releases or
agrees not to xxx any person against whom the undersigned has, to the knowledge
of Lender, a right of recourse or in the event Lender agrees to suspend its
rights to enforce any promissory note(s) signed by Borrower, or any guaranty
given by any other person, or any of Lender's rights in the collateral given by
Borrower to secure the loans made by Lender. Lender shall be under no
duty to exercise all or any rights and remedies given by any note or agreement
signed by Borrower, nor given by any other guaranty given to Lender to secure
Borrower's indebtedness to Lender, as a condition or requirement of enforcing
this Guaranty.
The
undersigned hereby waive any right to direct apportionment of payments provided
for in O.C.G.A. Section 13-4-42. The undersigned further consent and
agree that lender shall have the right to apportion said payments at its
election and in its sole discretion. The undersigned waive any
further notice of election by Lender.
1
The
undersigned waive notice of: the creation of any of the Obligations, notice of
nonpayment or default by Borrower under any of the Obligations or under any
agreement now or hereafter existing between Borrower and Lender; notice of
presentment, demand, dishonor, or protest; notice of acceptance of this Guaranty
or of the creation or extension or renewal of any Obligations of Borrower to
which this Guaranty relates; and any other notices whatsoever; and agrees that
no modification of any of the Obligations, and that no waiver, extension,
renewal, indulgence, settlement, compromise or failure to exercise due diligence
in collection, for any period or periods whether or not longer than the original
period, nor any surrender, substitution or release of any other person directly
or indirectly liable for any of the Obligations, or of any collateral security
given by Borrower, shall release the undersigned from any of the indebtedness
then accrued or thereafter to accrue under this Guaranty or any part
thereof. In the event any claim hereunder is collected by law or
through an attorney-at-law, the undersigned shall be liable to Lender for
attorneys' fees equal to lesser of: (a) actual fees and expenses or (b) the
greater of (i) fifteen percent (15%) of the Obligations or (ii) the maximum
amount permitted by law then in effect.
The
undersigned hereby subordinates any right of contribution, reimbursement,
recourse, indemnity, subrogation and any other 'claim,' as that term is defined
in Title 11 of the United States Code (hereinafter referred to as the
'Bankruptcy Code'), which the undersigned might now have or hereafter acquire,
against Borrower or Borrower's estate, which arise from the existence or
performance of the Obligations of the undersigned under this
Guaranty. In the event that the Borrower files a petition under the
Bankruptcy Code or is the subject of an involuntary petition filed under the
Bankruptcy Code, then the Obligations covered by this Guaranty shall include all
Obligations of the Debtor, Debtor-in-Possession, or a trustee in bankruptcy to
the Lender. The Obligations of the undersigned shall not be
considered fully paid, performed, and discharged unless and until all payments
by Borrower to Lender are no longer subject to any right of any person
(including, without limitation, any Debtor, Debtor-in-Possession or any trustee
in bankruptcy) to set aside such payments, or to seek to recoup the amount of
such payments or any part thereof. Without limiting the generality of
the foregoing, the above-referenced right shall include, but is not limited to,
any right to recover preferences avoidable under the Bankruptcy
Code. If any such payments by the Borrower to the Lender are set
aside, in whole or in part, or are settled by Lender (the terms and conditions
of any such settlement to be determined in Lender's absolute discretion), then
to the extent of such settlement, the undersigned shall indemnify and be liable
for the full amount Lender so pays together with costs, interest, attorneys'
fees and any and all expenses which Lender pays or incurs in connection
therewith.
The
undersigned agree that no act or omission on the part of Lender shall in any way
affect or impair this Guaranty. The undersigned hereby waive the
right to require the holder of the Obligations guaranteed to take action against
the principal as provided for in O.C.G.A. Section 10-7-24.
This
Guaranty is made subject to all terms, conditions, agreements, or stipulations
contained in the agreements, instruments and other documents evidencing the
Obligations hereby guaranteed, which are hereby expressly incorporated herein,
and the undersigned agrees that the terms, conditions and provisions of any
agreements, instruments or other documents which may be executed by Borrower to
evidence such Obligations in the future shall simultaneously with their
execution, become a part of this Guaranty.
The
undersigned and each of them waive and renounce each for himself and family any
and all homestead or exemption rights either of them may have under or by virtue
of the constitution or laws of Georgia, any other state, or the United States,
against the liabilities and Obligations hereby created, and do hereby, jointly
and severally, transfer, convey and assign to Lender or holder hereof a
sufficient amount of any homestead or exemption that may be allowed to the
undersigned, or any of them, including such homestead or exemption as may be set
apart in bankruptcy to pay this obligation in full, with all costs of
collection; and each of the undersigned hereby directs the trustee in bankruptcy
having possession of such homestead or exemption to deliver to Lender a
sufficient amount of property or money so set apart as exempt to pay the
obligation hereby created.
2
Where the
Obligations of Borrower hereby guaranteed is an obligation of a corporation,
this Guaranty is to cover all Obligations to Lender purporting to be made in
behalf of Borrower by an officer or agent of Borrower without regard to the
actual authority of such officer or agent. The term "corporation'or
Borrower shall include associations of all kinds and all purported corporations
whether correctly and legally natural persons. This agreement binds
any natural person's heirs, administrators and executors, and where a
corporation, its successors and assigns. Where signed by more than
one person, the singular term 'undersigned' shall include the plural, and their
obligation shall be joint and several.
The
undersigned agree that this Guaranty shall be governed by and construed and
enforced according to the laws of the State of Georgia. Wherever
possible each provision of the 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 applicable law, such provision
shall be effective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of the
Guaranty. The undersigned irrevocably consents that any legal action
or proceeding against it under, arising out of, or in any manner related to this
agreement may be brought in any court in Dekalb County, Georgia. The
undersigned, by the execution and delivery of this agreement, expressly and
irrevocably assents to and submits to the personal jurisdiction of such court in
any such action or proceeding. The undersigned hereby expressly and
irrevocably waives any claim or defense in any such action or proceeding based
on any alleged lack of jurisdiction and proper venue or forum non conveniens or
any similar defense.
IN WITNESS WHEREOF, the
undersigned, intending to be jointly and severally bound hereby, as hereinabove
described, have caused this Guaranty to be signed by their duly authorized
officers, and their seals affixed this the twenty-sixth day of August, 2008 at
Tucker, Georgia.
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ATTEST:
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By:
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SEAL
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Name:
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Xxxxx
Xxxxxxxxxxx
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Title:
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Chief
Financial Officer
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ACCEPTANCE
The
foregoing guaranty is accepted in Atlanta, Georgia, this twenty-sixth day of
August, 2008.
PRESIDENTIAL FINANCIAL
CORPORATION
By:
Senior
Vice President
