CORPORATE GUARANTY
GREYSTONE
BUSINESS
CREDIT
II, L.L.C.
Borrowers
(and
each a Borrower):
|
TITAN
GLOBAL
HOLDINGS,
INC.,
a Utah
corporation
TITAN
PCB WEST,
INC.,
a Delaware
corporation
TITAN PCB
EAST,
INC.,
a
Delaware
corporation
OBLIO
TELECOM,
INC., a
Delaware
corporation
TITAN
WIRELESS
COMMUNICATIONS,
INC., a
Delaware
corporation
START
TALK
INC., a
Delaware corporation
PINLESS,
INC., a
Texas corporation
|
Guarantors
(and each a Guarantor):
|
APP
ALACHIAN
OIL
COMPANY, a
Tennessee
corporation
APPCO-KY,
INC., a
Tennessee corporation
|
GREYSTONE
BUSINESS
CREDIT
II, L.L.C. ("Lender"),
provided and continues to provide certain financial accommodations to Borrowers
pursuant to the terms of a Loan and Security Agreement among Borrowers and
Lender, dated December 29, 2006 (as amended from time to time, the "Loan
Agreement").
As
one of the conditions to continuing to provide financing under the Loan
Agreement, Lender has required that each Guarantor guaranty all obligations
of
Borrowers to Lender.
For
value
received and in consideration of any loan, advance or financial accommodation
of
any kind whatsoever heretofore, now or hereafter made, given or granted to
any
Borrower by Lender pursuant to the Loan Agreement, each Guarantor, jointly
and
severally, unconditionally guaranties the full and prompt payment when due,
whether at maturity or earlier, by reason of acceleration or otherwise, and
at
all times thereafter, of the indebtedness, liabilities and obligations of every
kind and nature of each Borrower to Lender (including, without limitation,
all
interest accruing after the filing of a proceeding under the Bankruptcy Code
(as
defined in the Loan Agreement) whether or not allowed by the court in such
proceeding, and all other indebtedness, liabilities and obligations arising
after the filing of any proceeding under the Bankruptcy Code), howsoever
created, arising or evidenced, whether direct or indirect, absolute or
contingent, joint or several, now or hereafter existing, or due or to become
due, in each case arising under the Loan Agreement or the other Loan Documents
(as defined in the Loan Agreement), plus all costs and expenses (including,
without limitation, all court costs and reasonable attorneys' and paralegals'
fees and expenses) paid or incurred by Lender in endeavoring to collect all
or
any part of such indebtedness, liabilities and obligations from, or in
prosecuting any action against, any Guarantor or any other guarantor of all
or
any part of such indebtedness, liabilities and obligations (all such
indebtedness, liabilities, obligations, costs and expenses being hereinafter
referred to as "Borrowers'
Obligations").
All
sums becoming due under this Guaranty shall bear interest from the due date
thereof until paid at the highest rate charged with respect to any of Borrowers'
Obligations under the Loan Agreement.
Each
Guarantor agrees that its obligations under this Guaranty are unconditional,
irrespective of (i) the validity or enforceability of Borrowers' Obligations
or
any note or other instrument evidencing Borrowers' Obligations, (ii) the absence
of any attempt by Lender to collect Borrowers' Obligations from any Borrower
or
any other guarantor, (iii) Lender's waiver or consent with respect to any
provision of the Loan Documents, (iv) Lender's failure to perfect or maintain
its security interests in, or to preserve its rights with respect to, any of
the
Collateral (as defined in the Loan Agreement), (v) Lender's election, in any
proceeding under Chapter 11 of the Bankruptcy Code, of the application of
Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a
security interest by any Borrower as debtor-in-possession under Section 364
of
the Bankruptcy Code, (vii) the disallowance, under Section 502 of the Bankruptcy
Code, of all or any of Xxxxxx's claims for repayment of Borrowers' Obligations
or (viii) any other circumstance which might constitute a legal or equitable
discharge or defense of any Borrower or a guarantor.
No
payment made by or for the account or benefit of any Guarantor (including,
without limitation, (i) a payment made by any Borrower in respect of Borrowers'
Obligations, (ii) a payment made by any other Guarantor under this Guaranty
or
by any other person under any other guaranty of Borrowers' Obligations or (iii)
a payment made by means of set off or other application of funds by Lender)
shall entitle any Guarantor, by subrogation or otherwise, to any payment by
any
Borrower or any
other
Guarantor or from
or
out of any property of any Borrower or any other Guarantor, and no Guarantor
shall exercise any rights or remedies against any Borrower or any other
Guarantor or any property of any Borrower or any other Guarantor including,
without limitation, any right of contribution, indemnity or reimbursement by
reason of any performance by such Guarantor under this Guaranty, all of such
rights of subrogation, contribution, indemnity and reimbursement being hereby
waived by such Guarantor. The provisions of this paragraph shall survive the
termination of this Guaranty or the release or discharge of any Guarantor from
liability hereunder. Each Borrower is a third party beneficiary of the
provisions of this paragraph.
Each
Guarantor hereby waives diligence, presentment, demand for payment, filing
of
claims with a court in the event of receivership or bankruptcy of any Borrower,
protest or notice with respect to Borrowers' Obligations and all demands
whatsoever, and covenants that this Guaranty will not be discharged, except
by
complete and irrevocable payment and performance of the obligations and
liabilities contained herein. No notice to any party, including any Guarantor,
shall be required for Lender to make demand hereunder. Such demand shall
constitute a mature and liquidated claim against such Guarantor. At any time
after maturity of Borrowers' Obligations, whether by acceleration or otherwise,
Lender may, at its sole election, proceed directly and at once, without notice,
against any Guarantor to collect and recover the full amount or any portion
of
Borrowers' Obligations, without first proceeding against any Borrower or any
other person or against any of the Collateral. Lender shall have the exclusive
right to determine the application of payments and credits, if any, from any
Guarantor, any Borrower or any other person, on account of Borrowers'
Obligations.
-2-
Lender
is
hereby authorized, without notice or demand to any Guarantor and without
affecting or impairing the liability of any Guarantor hereunder, to from time
to
time (i) renew, extend, accelerate or otherwise change the time for payment
of,
or other terms relating to, Borrowers' Obligations or otherwise modify, amend
or
change the terms of any promissory note or other agreement, document or
instrument now or hereafter executed by any Borrower and delivered to Lender;
(ii) accept partial payments on Borrowers' Obligations; (iii) take and hold
Collateral for the payment of Borrowers' Obligations, or for the payment of
this
Guaranty, or for the payment of any other guaranties of Borrowers' Obligations
or other liabilities of any Borrower, and exchange, enforce, waive and release
any Collateral; (iv) apply Collateral and direct the order or manner of sale
thereof as it may determine in its sole discretion; and (v) settle, release,
compromise, collect or otherwise liquidate Borrowers' Obligations and any
Collateral in any manner.
At
any
time after maturity of Borrowers' Obligations, Lender may, in its sole
discretion, without notice to any Guarantor and regardless of the acceptance
of
any Collateral for the payment hereof, appropriate (or cause to be appropriated)
and apply toward payments of Borrowers' Obligations, (i) any indebtedness due
or
to become due from Lender to any Guarantor and (ii) any moneys, credits or
other
property belonging to any Guarantor at any time held by or coming into the
possession of Lender or any affiliates of Lender, whether for deposit or
otherwise.
Each
Guarantor assumes responsibility for keeping itself informed of the financial
condition of each Borrower and all other guarantors of all or any of Borrowers'
Obligations, and of all other circumstances bearing upon the risk of nonpayment
of Borrowers' Obligations or any part thereof that diligent inquiry might
reveal, and each Guarantor agrees that Lender shall have no duty to advise
such
Guarantor of information known to Lender regarding any of the foregoing. Each
Guarantor acknowledges familiarity with each Borrower's financial condition
and
represents that it has not relied on any statements made, or information
furnished, by Lender or their agents in obtaining such familiarity. If Lender
provides any such information to any Guarantor, Lender shall be under no
obligation to (i) undertake any investigation not a part of its regular business
routine, (ii) disclose any information which, pursuant to accepted or reasonable
commercial finance practices, Lender wishes to maintain confidential or (iii)
make any other or future disclosures of any information to such
Guarantor.
Notwithstanding
any contrary provision of this Guaranty, it is intended that neither this
Guaranty nor any liens or security interests securing this Guaranty constitute
a
"Fraudulent Conveyance" (as defined below). Consequently, each Guarantor agrees
that if this Guaranty or any liens or security interests securing this Guaranty
would, but for the application of this sentence, constitute a Fraudulent
Conveyance, this Guaranty and each such lien and security interest shall be
valid and enforceable only to the maximum extent that would not cause this
Guaranty or such lien or security interest to constitute a Fraudulent
Conveyance, and this Guaranty shall automatically be deemed to have been amended
accordingly at all relevant times. For purposes hereof, a "Fraudulent
Conveyance"
means a
fraudulent conveyance under Section 548 of the Bankruptcy Code or a fraudulent
conveyance or fraudulent transfer under any applicable fraudulent conveyance
or
fraudulent transfer law or similar law of any state or other governmental unit
as in effect from time to time.
-3-
Each
Guarantor waives the right to assert the doctrine of marshaling with respect
to
any of the Collateral securing Borrowers' Obligations. Each Guarantor further
agrees that, to the extent any Borrower makes one or more payments to Lender,
or
Lender receives any proceeds of Collateral, which are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid
to
such Borrower, its estate, trustee, receiver or any other party under the
Bankruptcy Code or other law, that portion of Borrowers' Obligations which
has
been paid, reduced or satisfied by such payment or proceeds shall be reinstated
and continued in full force and effect as of the date such initial payment,
reduction or satisfaction occurred, and this Guaranty shall continue to be
in
existence and in full force and effect, irrespective of whether any evidence
of
indebtedness or this Guaranty has been surrendered or canceled.
Each
Guarantor agrees that all payments hereunder shall be made without setoff or
counterclaims and each Guarantor waives all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices
of
dishonor and notices of acceptance of this Guaranty. Each Guarantor further
waives all notices of the existence, creation or incurring of new or additional
indebtedness, arising either from additional loans extended to any Borrower
or
otherwise, and also waives all notices that the principal amount, or any portion
thereof, or any interest on any instrument or document evidencing all or any
part of Borrowers' Obligations is due, notices of any and all proceedings to
collect from the maker, any endorser or any other guarantor of all or any part
of Borrowers' Obligations, or from anyone else, and, to the extent permitted
by
law, notices of exchange, sale, foreclosure, surrender or other handling of
any
Collateral securing Borrowers' Obligations.
No
delay
on the part of Lender in the exercise of any right or remedy shall operate
as a
waiver thereof, and no single or partial exercise by Lender of any right or
remedy shall preclude any further exercise thereof except as expressly set
forth
in a writing duly signed and delivered on Xxxxxx's behalf by an authorized
officer or agent of Lender; nor shall any modification or waiver of any of
the
provisions of this Guaranty be binding upon Lender, except as expressly set
forth in a writing duly signed and delivered on Xxxxxx's behalf by an authorized
officer or agent of Xxxxxx. Lender's failure at any time or times hereafter
to
require strict performance by any Borrower or any Guarantor of any of the
provisions, warranties, terms and conditions contained in any promissory note,
security agreement, agreement, guaranty, instrument or document now or at any
time or times hereafter executed by any Borrower or any Guarantor and delivered
to Lender, shall not waive, affect or diminish any right of Lender at any time
or times hereafter to demand strict performance thereof, and such right shall
not be deemed to have been waived by any act or knowledge of Lender, or its
respective agents, officers or employees, unless such waiver is contained in
an
instrument in writing signed by an officer or agent of Lender, and directed
to
such Borrower or such Guarantor, as applicable, specifying such waiver. No
waiver by Lender of any default shall operate as a waiver of any other default
or the same default on a future occasion, and no action by Xxxxxx permitted
hereunder shall in any way affect or impair Xxxxxx's rights or the obligations
of any Guarantor under this Guaranty. Any determination by a court of competent
jurisdiction of the amount of any principal or interest owing by any Borrower
to
Lender shall be conclusive and binding on each Guarantor irrespective of whether
such Guarantor was a party to the suit or action in which such determination
was
made.
-4-
Each
Guarantor hereby represents and warrants that (i) it is in such Guarantor's
direct interest to assist each Borrower in procuring credit, because each
Borrower is an affiliate of such Guarantor, furnishes goods or services to
such
Guarantor, purchases or acquires goods or services from such Guarantor, and/or
otherwise has a direct or indirect corporate or business relationship with
such
Guarantor, (ii) this Guaranty has been duly and validly authorized,
executed and delivered and constitutes the valid and binding obligation of
such
Guarantor, enforceable in accordance with its terms, and (iii) the
execution and delivery of this Guaranty does not violate or constitute a default
under (with or without the giving of notice, the passage of time, or both)
any
order, judgment, decree, instrument or agreement to which such Guarantor is
a
party or by which it or its assets are affected or bound.
This
Guaranty shall be binding upon each Guarantor and upon the successors and
permitted assigns of each Guarantor and shall inure to the benefit of Lender
and
its successors and assigns. All references herein to any Borrower shall be
deemed to include its successors and permitted assigns and all references herein
to Lender shall be deemed to include its successors and assigns. Each Borrower's
and each Guarantor's successors and permitted assigns shall include a receiver,
trustee, custodian of or for such Borrower or such Guarantor or any of their
respective assets and such Borrower or such Guarantor as debtor-in-possession.
All references to the singular shall be deemed to include the plural where
the
context so requires.
EACH
GUARANTOR HEREBY CONSENTS AND AGREES THAT THE STATE AND FEDERAL COURTS IN NEW
YORK COUNTY, NEW YORK SHALL HAVE NONEXCLUSIVE JURISDICTION TO HEAR AND DETERMINE
ANY CLAIMS OR DISPUTES WITH RESPECT TO THIS GUARANTY AND WAIVES ANY OBJECTION
WHICH IT MAY HAVE BASED ON IMPROPER VENUE OR FORUM NON CONVENIENS
TO THE CONDUCT OF ANY PROCEEDING IN ANY SUCH COURT AND CONSENTS THAT ALL SERVICE
OF PROCESS UPON SUCH GUARANTOR BE MADE BY REGISTERED MAIL OR MESSENGER DIRECTED
TO SUCH GUARANTOR AT THE ADDRESS SET FORTH BELOW SUCH XXXXXXXXX'S SIGNATURE
AND
THAT SERVICE SO MADE SHALL BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT
THEREOF. EACH GUARANTOR HEREBY AGREES THAT ANY CLAIM OR DISPUTE BROUGHT BY
SUCH
GUARANTOR AGAINST LENDER OR ANY MATTER ARISING OUT OF THIS GUARANTY SHALL BE
BROUGHT EXCLUSIVELY IN THE STATE AND FEDERAL COURTS IN NEW YORK COUNTY, NEW
YORK. EACH GUARANTOR HEREBY WAIVES, TO THE EXTENT PERMITTED BY LAW, TRIAL BY
JURY. NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT OF LENDER TO SERVE LEGAL
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF LENDER
TO
BRING ANY ACTION OR PROCEEDING AGAINST ANY GUARANTOR OR ITS PROPERTY IN THE
COURTS OF ANY OTHER JURISDICTION.
-5-
THIS
GUARANTY SHALL BE GOVERNED IN ALL RESPECTS BY THE INTERNAL LAWS OF THE STATE
OF
NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF
LAWS.
Wherever
possible each provision of this 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 such law, such provision shall
be ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of
this
Guaranty.
Each
Guarantor hereby agrees that this Guaranty shall be deemed a "Loan Document"
as
defined in the Loan Agreement.
This
Guaranty may be executed in any number of counterparts, all of which shall
constitute one and the same instrument, and any party hereto may execute this
Guaranty by signing and delivering one or more counterparts.
-6-
IN
WITNESS WHEREOF, this Guaranty has been duly executed by the undersigned
Guarantors this 17th day of September, 2007.
APPALACHIAN OIL COMPANY, INC. | ||
|
|
|
By | /s/ Xxxxx Xxxxxx | |
Its President |
APPCO-KY, INC. | ||
|
|
|
By | /s/ Xxxxx Xxxxxx | |
Its
President
|