GUARANTY AGREEMENT
Exhibit 10.12
THIS
GUARANTY AGREEMENT (this “Guaranty”) is entered into as of
November 3, 2020 by and among each of the parties identified as a
Guarantor on the signature pages hereto (each, a
“Guarantor”, and
collectively, the “Guarantors”), in favor of the
purchasers signatory to the Securities Purchase Agreements (as
defined below) (together with their respective successors and
assigns, including, any future holder of the Notes (as defined
below), the “Holders”). Capitalized terms used
herein and not otherwise defined shall have the meanings ascribed
thereto in the Securities Purchase Agreements (as defined
below).
RECITALS
WHEREAS, pursuant
to a Securities Purchase Agreement, dated as of May 8, 2020 (as
amended and in effect from time to time, including any replacement
agreement therefor, the “May
2020 Securities Purchase Agreement”), among Transworld
Holdings, Inc., a Delaware corporation (formerly known as GoIP
Global, Inc., a Colorado corporation) (the “Company”) and the Holders, the
Holders have extended credit to the Company as evidenced by certain
Senior Secured Convertible Notes in the aggregate principal amount
of $3,000,000.00 issued by the Company to the Holders (together
with any notes issued in exchange therefor or replacement thereof
or any additional investment made by the Holders and as the same
may be amended, supplemented, restated or otherwise modified from
time to time, the “May 2020
Senior Notes”); and
WHEREAS, pursuant
to a Securities Purchase Agreement, dated as of the date hereof (as
amended and in effect from time to time, including any replacement
agreement therefor, the “October 2020 Securities Purchase
Agreement” and together with the May 2020 Securities
Purchase Agreement, the “Securities Purchase Agreements”),
among the Company and the Holders, the Holders have extended credit
to the Company as evidenced by certain Senior Secured Convertible
Notes in the aggregate principal amount of $3,888,889.00 issued by
the Company to the Holders (together with any notes issued in
exchange therefor or replacement thereof or any additional
investment made by the Holders and as the same may be amended,
supplemented, restated or otherwise modified from time to time, the
“October 2020 Senior
Notes” and together with the May 2020 Senior Notes,
the “Senior
Notes”); and
WHEREAS, each
Guarantor will derive substantial direct and indirect benefit from
the provision of the loans evidenced by the Notes.
NOW,
THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as
follows:
1. The
Guaranty. Each Guarantor hereby guarantees, as a co-obligor
and not merely as surety, to the Holders, the prompt payment of all
Liabilities (including without limitation principal, premium if
any, and interest (including all interest that accrues after the
commencement of any proceeding under Applicable Insolvency Laws of
the Company or any Guarantor (the Company and each Guarantor
collectively referred to herein as the “Note Parties” and each
individually, a “Note
Party”) at the rate provided in the respective
Transaction Document, whether or not a claim for post-petition
interest is allowed in such proceeding under Applicable Insolvency
Laws) on the Notes, and all obligations which, but for the
automatic stay under 11 U.S.C. Section 362 (or similar successor
statute), would become due), whenever arising, in full when due
(whether at stated maturity, as a mandatory prepayment, by
acceleration or otherwise in accordance with any Transaction
Document) strictly in accordance with the terms thereof
(hereinafter, collectively, the “Guaranteed Obligations”). Each
Guarantor hereby further agrees that if any of the Guaranteed
Obligations are not paid in full when due (whether at stated
maturity, as a mandatory prepayment, by acceleration or otherwise
in accordance with any Transaction Document), such Guarantor will
promptly pay the same, without any demand or notice whatsoever, and
that in the case of any extension of time of payment or renewal of
any of the Guaranteed Obligations, the same will be promptly paid
in full when due (whether at extended maturity, as a mandatory
prepayment, by acceleration or otherwise in accordance with any
Transaction Document) in accordance with the terms of such
extension or renewal. This Guaranty is a guaranty of payment and
not of collection. This Guaranty is a continuing guaranty and shall
apply to all Guaranteed Obligations whenever arising.
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2. Joint
and Several Liability.
(a)
Each of the Guarantors is accepting joint and several liability
hereunder in consideration of the financial accommodations to be
provided by the Holders under the Transaction Documents, for the
mutual benefit, directly and indirectly, of each of the Note
Parties and other Guarantors (if any) and in consideration of the
undertakings of each of the Guarantors to accept joint and several
liability for the obligations of each of the Note
Parties.
(b)
Each of the Guarantors jointly and severally hereby irrevocably and
unconditionally accepts, not merely as a surety but also as a
co-obligor, joint and several liability with the other Guarantors
with respect to the payment and performance of all of the
Guaranteed Obligations, it being the intention of the parties
hereto that all the Guaranteed Obligations shall be the joint and
several obligations of the Guarantors without preferences or
distinction among them.
(c)
If and to the extent that any of the Note Parties or Guarantors
shall fail to make any payment with respect to any of the
Guaranteed Obligations as and when due or to perform any of the
Guaranteed Obligations in accordance with the terms thereof, then
in each such event, the other Guarantors will make such payment
with respect to, or perform, such Guaranteed
Obligation.
3. Obligations
Unconditional. The obligations of each of the Guarantors
under Section 1
hereof are absolute and unconditional, irrespective of the value,
genuineness, validity, regularity or enforceability of any of the
Transaction Documents, or any other agreement or instrument
referred to therein, or any substitution, release or exchange of
any other guaranty of or security for any of the Guaranteed
Obligations, and, to the fullest extent permitted by applicable
law, irrespective of any other circumstance whatsoever which might
otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor other than payment in full of the Guaranteed
Obligations (other than contingent indemnification obligations to
the extent no claim giving rise thereto has been asserted) and
termination of the Purchase Agreements in accordance with their
terms, it being the intent of this Section 3 that the obligations
of each Guarantor hereunder shall be absolute and unconditional
under any and all circumstances. Each Guarantor agrees that it
shall have no right of subrogation, indemnity, reimbursement or
contribution against any Note Party for amounts paid under this
Guaranty until the Guaranteed Obligations are paid in full (other
than contingent indemnification obligations to the extent no claim
giving rise thereto has been asserted) and the Purchase Agreements
have terminated in accordance with its terms. Without limiting the
generality of the foregoing, it is agreed that, to the fullest
extent permitted by applicable law, the occurrence of any one or
more of the following shall not alter or impair the liability of
any Guarantor hereunder which shall remain absolute and
unconditional as described above:
(a)
at any time or from time to time, without notice to any Guarantor,
the time for any performance of or compliance with any of the
Guaranteed Obligations shall be extended, or such performance or
compliance shall be waived;
(b)
any of the acts mentioned in any of the provisions of any of the
Purchase Agreements, the Transaction Documents, or any other
agreement or instrument referred to in the Purchase Agreements or
the Transaction Documents shall be done or omitted;
(c)
the maturity of any of the Guaranteed Obligations shall be
accelerated, or any of the Guaranteed Obligations shall be
modified, supplemented or amended in any respect, or any right
under any of the Purchase Agreements, the Transaction Documents, or
any other agreement or instrument referred to in the Purchase
Agreements or the Transaction Documents shall be waived or any
other guarantee of any of the Guaranteed Obligations or any
security therefor shall be released or exchanged in whole or in
part or otherwise dealt with, in each case, in accordance with the
Transaction Documents; or
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(d)
any of the Guaranteed Obligations shall be determined to be void or
voidable (including, without limitation, for the benefit of any
creditor of any Guarantor) or shall be subordinated to the claims
of any Person (including, without limitation, any creditor of any
Guarantor).
4. Reinstatement.
The obligations of each Guarantor under this Guaranty shall be
automatically reinstated if and to the extent that for any reason
any payment by or on behalf of any Person in respect of the
Guaranteed Obligations is rescinded or must be otherwise restored
by any holder of any of the Guaranteed Obligations, whether as a
result of any proceedings in bankruptcy or reorganization or
otherwise, and each Guarantor agrees that it will indemnify each
Holder on demand for all reasonable out-of-pocket costs and
expenses (including, without limitation, reasonable fees and
out-of-pocket expenses of counsel) incurred by any Holder in
connection with such rescission or restoration, including any such
costs and expenses incurred in defending against any claim alleging
that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar
law.
5. Certain
Additional Waivers. With respect to its obligations
hereunder, each Guarantor hereby expressly waives diligence,
presentment, demand of payment, protest and all notices whatsoever,
to the extent permitted by applicable law, and any requirement that
any Holder exhaust any right, power or remedy or proceed against
any Person under any of the Purchase Agreements, the Transaction
Documents or any other agreement or instrument referred to in the
Purchase Agreements or the Transaction Documents, or against any
other Person under any other guarantee of, or security for, any of
the Guaranteed Obligations.
6. Remedies.
Each Guarantor agrees that, to the fullest extent permitted by
applicable law, as between such Guarantor and the Holders, the
Guaranteed Obligations may be declared to be forthwith due and
payable for purposes of Section 1 hereof
notwithstanding any stay, injunction or other prohibition
preventing such declaration (or preventing the Guaranteed
Obligations from becoming automatically due and payable) as against
any other Person and that, in the event of such declaration (or the
Guaranteed Obligations being deemed to have become automatically
due and payable), the Guaranteed Obligations (whether or not due
and payable by any other Person) shall forthwith become due and
payable by the Guarantors for purposes of said Section 1.
7. Limitation
on Guaranteed Obligations. Notwithstanding any provision to
the contrary contained herein or in any other of the Transaction
Documents, the obligations of each Guarantor hereunder shall be
limited to an aggregate amount equal to the largest amount that
would not render its obligations hereunder subject to avoidance
under applicable law (whether federal or state and including,
without limitation, 11 U.S.C. Section 548 (or similar successor
statute)), after taking into account, among other things, such
Guarantor’s right of contribution and indemnification from
each other Guarantor under applicable law.
The
Guarantors hereby agree, as among themselves, that if any Guarantor
shall become an Excess Funding Company (as defined below), each
other Guarantor shall, on demand of such Excess Funding Company
(but subject to the next sentence hereof and to subsection (B)
below), pay to such Excess Funding Company an amount equal to such
Guarantor’s Pro Rata Share (as defined below and determined,
for this purpose, without reference to the properties, assets,
liabilities and debts of such Excess Funding Company) of such
Excess Funding Company’s Excess Payment (as defined below).
The payment obligation of any Guarantor to any Excess Funding
Company under this Section
7 shall be subordinate and subject in right of payment to
the prior payment in full of the Guaranteed Obligations of such
Guarantor under the other provisions of this Guaranty, and such
Excess Funding Company shall not exercise any right or remedy with
respect to such excess until payment and satisfaction in full of
all of such Guaranteed Obligations. For purposes hereof, (i)
“Excess Funding
Company” means, in respect of any Guaranteed
Obligations arising under the other provisions of this Guaranty
(hereafter, the “Joint
Obligations”), a Guarantor that has paid an amount in
excess of its Pro Rata Share of the Joint Obligations; (ii)
“Excess Payment”
means, in respect of any Joint Obligations, the amount paid by an
Excess Funding Company in excess of its Pro Rata Share of such
Joint Obligations; and (iii) “Pro Rata Share”, for the purposes
of this Section 7,
means, for any Guarantor, the ratio (expressed as a percentage) of
(A) the amount by which the aggregate present fair salable value of
all of its assets and properties exceeds the amount of all debts
and liabilities of such Guarantor (including contingent,
subordinated, unmatured, and unliquidated liabilities, but
excluding the obligations of such Guarantor hereunder) to (B) the
amount by which the aggregate present fair salable value of all
assets and other properties of such Guarantor and all of the other
Note Parties exceeds the amount of all of the debts and liabilities
(including contingent, subordinated, unmatured, and unliquidated
liabilities, but excluding the obligations of such Guarantor and
the other Note Parties hereunder) of such Guarantor and all of the
other Note Parties, all as of the Closing Date (if any Guarantor
becomes a party hereto subsequent to the Closing Date, then for the
purposes of this Section
7 such subsequent Guarantor shall be deemed to have been a
Guarantor as of the Closing Date and the information pertaining to,
and only pertaining to, such Guarantor as of the date such
Guarantor became a Guarantor shall be deemed true as of the Closing
Date).
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8. Representations.
(a)
Each Guarantor hereby represents and warrants that it is duly
organized, validly existing and in good standing under the laws of
the jurisdiction of its formation or incorporation and in each
other jurisdiction in which the failure to be so qualified could
reasonably be expected to have a Material Adverse
Effect.
(b)
Each Guarantor further represents and warrants that it has the
power and authority to enter into this Guaranty and to perform its
obligations and to consummate the transactions contemplated hereby
and has by proper action duly authorized the execution and delivery
of this Guaranty.
(c)
Each Guarantor further represents and warrants that this Guaranty
constitutes the legal, valid and binding obligation of such
Guarantor enforceable in accordance with its terms, subject to
bankruptcy laws and other similar laws of general application
affecting rights of creditors and subject to the application of the
rules of equity, including those respecting the availability of
specific performance.
(d)
Each Guarantor further represents and warrants that it has
knowledge of the other Note Parties’ financial condition and
affairs and represents and agrees that it will keep so informed
while this Guaranty is in force. Each Guarantor agrees that no
Holder will have any obligation to investigate the financial
condition or affairs of the other Note Parties for the benefit of
such Guarantor nor to advise such Guarantor of any fact respecting,
or any change in, the financial condition or affairs of the other
Note Parties which might come to the knowledge of the Holders at
any time, whether or not any Holder knows or believes or has reason
to know or believe that any such fact or change is unknown to such
Guarantor or might (or does) materially increase the risk of such
Guarantor as a guarantor or might (or would) affect the willingness
of such Guarantor to continue as a guarantor with respect to the
Guaranteed Obligations.
9. Incorporated
Provisions. Each Guarantor acknowledges, agrees to, and
agrees to perform, as applicable, all of the representations,
warranties, covenants, waivers and other provisions pertaining to
it as a Guarantor or Subsidiary contained in any Transaction
Document.
10.
Amendment. This
Guaranty may be amended or modified only in a writing executed by
the parties hereto.
11.
Termination. This
Guaranty shall terminate automatically upon the indefeasible
payment in full in cash of the Guaranteed Obligations. Upon the
sale, transfer, conveyance or other disposition of all of the
equity interests of any Guarantor in a transaction permitted
pursuant to the Transaction Documents (other than to a Note Party)
and the application of the proceeds thereof as provided in the
Transaction Documents, such Guarantor shall cease to be a
“Guarantor” for purposes of the Transaction Documents
and shall be released from its obligations hereunder.
12.
Counterparts. This
Guaranty may be executed in any number of counterparts, each of
which where so executed and delivered shall be an original, but all
of which shall constitute one and the same instrument. It shall not
be necessary in making proof of this Guaranty to produce or account
for more than one such counterpart. Facsimile or electronic
transmissions of any executed original document and/or
retransmission of any executed facsimile or electronic transmission
shall be deemed to be the same as the delivery of an executed
original. At the request of any party hereto, the other parties
hereto shall confirm such transmissions by executing duplicate
original documents and delivering the same to the requesting party
or parties.
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13.
Headings. The
headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning,
construction or interpretation of any provision of this
Guaranty.
14.
Governing Law; Submission
to Jurisdiction; Waiver of Jury Trial; Notice THIS GUARANTY AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY,
CONSTRUED IN ACCORDANCE WITH, AND ENFORCED UNDER, THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAW OF SUCH STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAW OF
ANOTHER JURISDICTION. THE PROVISIONS OF THE PURCHASE AGREEMENTS
RELATING TO SUBMISSION TO JURISDICTION, WAIVER OF JURY TRIAL AND
VENUE ARE HEREBY INCORPORATED BY REFERENCE HEREIN, MUTATIS
MUTANDIS.
15.
Entirety. This
Guaranty represents the entire agreement of the parties hereto and
thereto, and supersedes all prior agreements and understandings,
oral or written, if any, including any commitment letters or
correspondence relating to the transactions contemplated
herein.
16.
Holder Assigns.
This Guaranty is intended for and shall inure to the benefit of
each and every person who shall from time to time be or become the
owner or holder of (or participant in) any of the Guaranteed
Obligations, and each and every reference herein to a
“Holder” shall include and refer to each and every
successor or assignee of a Holder, as applicable, at any time
holding or owning any part of or interest (or participation) in any
part of the Guaranteed Obligations. Each Holder shall be entitled to rely upon
and be the third party beneficiary of the provisions of this
Guaranty and shall be entitled to enforce the terms and provisions
hereof to the same extent as if such Holder were directly party
hereto. This Guaranty shall be transferable and negotiable by such
Persons only with the same force and effect, and to the same
extent, that the Guaranteed Obligations are transferable and
negotiable, it being understood and stipulated that upon assignment
or transfer by any Holder of any of the Guaranteed Obligations the
legal holder or owner of said Guaranteed Obligations (or a part
thereof or interest therein thus transferred or assigned by a
Holder) shall (except as otherwise stipulated by a Holder in its
assignment) have and may exercise all of the rights granted to the
Holders under this Guaranty to the extent of that part of or
interest in the Guaranteed Obligations thus assigned or transferred
to said person. Each Guarantor expressly waives notice of transfer
or assignment of the Guaranteed Obligations, or any part thereof,
or of the rights of the Holders hereunder. Failure to give notice
will not affect the liabilities of any Guarantor
hereunder.
[Signature
Page Follows]
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Each of
the parties hereto has caused a counterpart of this Guaranty to be
duly executed and delivered as of the date first above
written.
GUARANTORS:
TRANSWORLD
ENTERPRISES INC.
By:
Name:
Title:
GETCHARGED,
INC.
By:
Name:
Title:
Accepted
and agreed to as of the date first above written.
HOLDERS:
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MT. WHITNEY SECURITIES, LLC
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By:
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Name:
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Xxxxxxxx Xxxxxx
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Title:
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Authorized Signatory
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ARENA ORIGINATING CO., LLC
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By:
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Name:
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Xxxxxxxx Xxxxxx
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Title:
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Authorized Signatory
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ARENA SPECIAL OPPORTUNITIES FUND, LP
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By:
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Name:
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Xxxxxxxx Xxxxxx
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Title:
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Authorized Signatory
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ARENA SPECIAL OPPORTUNITIES PARTNERS I, LP
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By:
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Name:
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Xxxxxxxx Xxxxxx
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Title:
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Authorized Signatory
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ARENA STRUCTURED PRIVATE INVESTMENTS (CAYMAN), LLC
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Xxxxxxxx Xxxxxx
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Authorized Signatory
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[Signature Page to Subsidiary Guaranty Agreement]
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