EXHIBIT 10.6
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PALWEB CORPORATION
GUARANTY
The Borrowers, GREYSTONE MANUFACTURING, L.L.C., an Oklahoma limited
liability company ("Greystone" or "Borrower"), and GLOG INVESTMENT, L.L.C., an
Oklahoma limited liability company ("GLOG"), (hereinafter Greystone and GLOG are
collectively referred to as "Borrowers") have borrowed or desire to borrow or
have advanced to them the aggregate principal sums of TWELVE MILLION DOLLARS
($12,000,000.00) on three notes, including: (i) a $1,500,000.00 revolving loan
issued by Greystone ("Revolving Note"); (ii) a $5,500,000.00 term loan issued by
Greystone ("Term Note"); and (iii) a $5,000,000.00 term loan issued by GLOG
("GLOG Note") which is not guaranteed under this Guaranty; (the Revolving Note
and Term Note of Greystone shall be referred to hereafter as the "Note" or
"Notes"), under the terms of a Loan Agreement and loan documents dated of equal
date herewith (collectively the "Loan Agreement") by Borrowers in favor of THE
F&M BANK & TRUST COMPANY, an Oklahoma banking corporation ("Bank"), with PALWEB
CORPORATION as the Guarantor ("Guarantor") under this Guaranty (hereinafter the
Notes and all the sums due under the Notes shall be referred to and defined
hereafter as "Indebtedness").
1. As an inducement for and in consideration of Bank agreeing to make
available or lend to Borrowers certain funds pursuant to that certain Loan
Agreement between Borrowers and Bank, and evidenced by the certain Notes
executed by Greystone and payable to the order of Bank, Guarantor absolutely and
unconditionally guarantees and promises to pay to Bank or its order, in legal
tender of the United States of America, the Notes and all of the Indebtedness of
Greystone to Bank on the terms and conditions set forth in this Guaranty. Under
this Guaranty, the liability of Guarantor is unlimited except as set forth
herein, and the obligations of Guarantor are absolute and continuing.
2. Guarantor's liability under this Guaranty shall be open and
continuous for so long as this Guaranty remains in force. Guarantor intends to
guarantee at all times the performance and prompt payment when due, whether at
maturity or earlier by reason of acceleration or otherwise, of all Indebtedness.
Accordingly, no payments made upon the Indebtedness will discharge or diminish
the continuing liability of Guarantor in connection with any remaining portions
of the Indebtedness or any of the Indebtedness, which subsequently arises or is
thereafter incurred or contracted. Anything in this Guaranty to the contrary
notwithstanding, Guarantor shall be entitled to any notices and opportunities to
cure a default pursuant to the Indebtedness, which may be afforded Greystone.
3. This Guaranty will take effect when received by Bank without the
necessity of any acceptance by Bank, or any notice to Guarantor or to Greystone,
and will continue in full force until all Indebtedness incurred shall have been
fully and finally paid and satisfied and all other obligations of Guarantor
under this Guaranty shall have been performed in full. Any payment by Guarantor
with respect to the Indebtedness shall reduce the maximum obligation hereunder.
This Guaranty is binding upon Guarantor and Guarantor's heirs, successors and
assigns so long as any of the guaranteed Indebtedness remains, but sums are
available for advance.
4. Guarantor authorizes Bank, either before or after any revocation
hereof, without notice or demand and without lessening Guarantor's liability
under this Guaranty, from time to time: (a) prior to revocation as set forth
above, to make one or more additional secured or unsecured loans to Greystone,
to lease equipment or other goods to Greystone, or otherwise to extend
additional credit to Greystone; (b) to alter, compromise, renew, extend,
accelerate, or otherwise change one or more times the time for payment or other
terms of the Indebtedness or any part of the Indebtedness, including increases
and decreases of the rate of interest on the Indebtedness; extensions may be
repeated and may be for longer than the original loan term; (c) to take and hold
security for the payment of this Guaranty or the Indebtedness, and exchange,
enforce, waive, fail or decide not to perfect, and release any such security,
with or without the substitution of new collateral; (d) to release, substitute,
agree not to xxx, or deal with any one or more of Greystone's sureties,
endorsers, or other guarantors on any terms or in any manner Bank may choose;
(e) to determine how, when and what application of payments and credits shall be
made on the Indebtedness; (f) to apply such security and direct the order or
manner of sale thereof, including, without limitation, any non-judicial sale
permitted by the terms of the controlling security agreement, as Bank, in its
reasonable discretion, may determine; (g) to sell, transfer, assign, or grant
participations in all or any part of the Indebtedness; (h) to assign or transfer
this Guaranty in whole or in part; (i) to exercise or refrain from exercising
any rights against Greystone or others, or otherwise act or refrain from acting;
(j) to settle or compromise any Indebtedness; and (k) to subordinate the payment
of all or any part of the Indebtedness of Greystone to Bank to the payment of
any liabilities which may be due Bank or others.
5. Guarantor represents and warrants to Bank that (a) no
representations or agreements of any kind have been made to Guarantor which
would limit or qualify in any way the terms of this Guaranty; (b) this Guaranty
is executed at Greystone's request and at the request of Bank; (c) Guarantor has
not and will not, without the prior written consent of Bank, sell, lease,
assign, encumber, hypothecate, transfer, or otherwise dispose of all or
substantially all of Guarantor's assets; (d) Bank has made no representation to
Guarantor as to the credit worthiness of Greystone; (e) upon Bank's request,
Guarantor will provide to Bank financial and credit information in a form
reasonably acceptable to Bank, and all such financial information provided to
Bank is true and correct in all material respects and fairly presents the
financial condition of Guarantor as of the dates thereof, and no material
adverse change has occurred in the financial condition of Guarantor since the
date of the financial statements; and (f) Guarantor has established adequate
means of obtaining from Greystone on a continuing basis information regarding
Greystone's financial condition. Guarantor agrees to keep adequately informed
from such means of any facts, events, or circumstances which might in any way
affect Guarantor's risks under this Guaranty, and Guarantor further agrees that,
absent a request for information, Bank shall have no obligation to disclose to
Guarantor any information or documents acquired by Bank in the course of its
relationship with Greystone.
6. Except as prohibited by applicable law, Guarantor waives any right
to require Bank (a) to continue lending money or to extend other credit to
Greystone; (b) to make any presentment, protest, demand, or notice of any kind
including notice of any nonpayment of the
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Indebtedness or of any nonpayment related to any collateral, or notice of any
action or non-action on the part of Greystone or Bank in connection with the
Indebtedness or in connection with the creation of new or additional loans or
obligations; (c) to resort for payment or to proceed directly or at once against
any person, including Greystone or any other guarantor; (d) to proceed directly
against or exhaust any collateral held by Bank from Greystone, any other
guarantor, or any other person; (e) to give notice of the terms, time, and place
of any public or private sale of personal property security held by Bank from
Greystone or to comply with any other applicable provisions of the Uniform
Commercial Code; (f) to pursue any other remedy within Bank's power; or (g) to
commit any act or omission of any kind, or at any time, with respect to any
matter whatsoever.
If now or hereafter (a) Greystone shall be or become insolvent; and (b)
the Indebtedness shall not at all times until paid be fully secured by
collateral pledged by Greystone, Guarantor hereby forever waives and
relinquishes in favor of Bank and Greystone, and their respective successors,
any claim or right to payment Guarantor may now have or hereafter have or
acquire against Greystone, by subrogation or otherwise, so that at no time shall
Guarantor be or become a "creditor" of Greystone within the meaning of 11 U.S.C.
ss. 547(b), or any successor provision of the Federal bankruptcy laws.
Guarantor also waives any and all rights or defenses arising by reason
of (a) any "one action" or "anti-deficiency" law or any other law which may
prevent Bank from bringing any action, including a claim for deficiency, against
Guarantor, before or after Bank's commencement or completion of any foreclosure
action, either judicially or by exercise of a power of sale; (b) any election of
remedies by Bank which destroys or otherwise adversely affects Guarantor's
subrogation rights or Guarantor's rights to proceed against Greystone for
reimbursement, including, without limitation, any loss of rights Guarantor may
suffer by reason of any law limiting, qualifying, or discharging the
Indebtedness; (c) any disability or other defense of Greystone or of any other
person, or by reason of the cessation of Greystone's liability from any cause
whatsoever, other than payment in full in legal tender, of the Indebtedness; (d)
any right to claim discharge of the Indebtedness on the basis of impairment of
any collateral for the Indebtedness; (e) any statute of limitations, if at any
time any action or suit brought by Bank against Guarantor is commenced there is
outstanding Indebtedness of Greystone to Bank which is not barred by any
applicable statute of limitations; (f) any defenses given to guarantors at law
or in equity other than actual payment and performance of the Indebtedness; or
(g) by any failure, neglect, or omission by Bank to perfect in any manner the
collection of the Indebtedness or the security given therefor, including the
failure or omission to seek a deficiency judgment against Greystone. If payment
is made by Greystone, whether voluntarily or otherwise, or by any third party,
on the Indebtedness and thereafter Bank is forced to remit the amount of that
payment to Greystone's trustee in bankruptcy or to any similar person under any
federal or state bankruptcy law or law for the relief of debtors, the
Indebtedness shall be considered unpaid for the purpose of enforcement of this
Guaranty.
Guarantor further waives and agrees not to assert or claim at any time
any deductions to the amount guaranteed under this Guaranty for any claim of
setoff, counterclaim, counter demand, recoupment or similar right, whether such
claim, demand or right may be asserted by the Greystone, the Guarantor, or both.
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7. In the event of (i) an Event of Default by Greystone as that term is
defined in the Loan Agreement of even date herewith between Greystone and Bank;
or (ii) an uncured breach of any of the covenants or agreements of Guarantor
contained herein; or (iii) a default or events of default under any loan
agreement, credit agreement, pledge agreement, guaranty, mortgage or security
agreement between or among the Greystone and/or the Bank, or a material default
or events of default under any loan agreement, credit agreement, pledge
agreement, guaranty, mortgage or security agreement between or among the
Guarantor and/or the Bank; or (iv) the business failure of Greystone or
Guarantor; or (v) the appointment of a receiver, trustee, custodian or
liquidator of any substantial portion of the property or assets of Greystone or
Guarantor; or (vi) the commencement of any proceedings under any bankruptcy or
insolvency laws by or against Greystone or Guarantor and as to involuntary
proceedings, a failure to obtain a dismissal thereof within 90 days; or (viii)
the death of Guarantor and even if such event shall occur at a time when any of
the Indebtedness may not be due and payable, all Indebtedness shall, for the
purposes of this Guaranty Agreement, be deemed, at Bank's election and after
written notice, to be immediately due and payable.
8. Guarantor warrants and agrees that each of the waivers set forth
above is made with Guarantor's full knowledge of its significance and
consequences and that, under the circumstances, the waivers are reasonable and
not contrary to public policy or law. If any such waiver is determined to be
contrary to any applicable law or public policy, such waiver shall be effective
only to the extent permitted by law or public policy.
9. In addition to all liens upon and rights of setoff against the
moneys, securities or other property of Guarantor given to Bank by law, Bank
shall have, with respect to Guarantor's obligations to Bank under this Guaranty
and to the extent permitted by law, a contractual possessory security interest
in and a right of setoff against, and Guarantor hereby assigns, conveys,
delivers, pledges, and transfers to Bank all of Guarantor's right, title and
interest in and to all deposits, moneys, securities and other property of
Guarantor now or hereafter in the possession of or on deposit with Bank, whether
held in a general or special account or deposit, whether held jointly with
someone else, or whether held for safekeeping or otherwise, excluding however
all XXX, Xxxxx, and trust accounts. Every such security interest and right of
setoff may be exercised without demand upon or notice to Guarantor. No security
interest or right of setoff shall be deemed to have been waived by any act or
conduct on the part of Bank or by any neglect to exercise such right of setoff
or to enforce such security interest or by any delay in so doing. Every right of
setoff and security interest shall continue in full force and effect until such
right of setoff or security interest is specifically waived or released by an
instrument in writing executed by Bank.
10. Guarantor agrees that the Indebtedness of Greystone to Bank,
whether now existing or hereafter created, shall be prior to any claim that
Guarantor may now have or hereafter acquire against Greystone, whether or not
Greystone become insolvent. Guarantor hereby expressly subordinates any claim
Guarantor may have against Greystone, upon any account whatsoever, to any claim
that Bank may now or hereafter have against Greystone. In the event of
insolvency and consequent liquidation of the assets of
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Greystone, through bankruptcy, by an assignment for the benefit of creditors, by
voluntary liquidation, or otherwise, the assets of Greystone applicable to the
payment of the claims of both Bank and Guarantor shall be paid to Bank and shall
be first applied by Bank to the Indebtedness of Greystone to Bank. Guarantor
does hereby assign to Bank all claims which it may have or acquire against
Greystone or against any assignee or trustee in bankruptcy of Greystone;
provided. however, that such assignment shall be effective only for the purpose
of assuring to Bank full payment in legal tender of the Indebtedness. If Bank so
requests, any notes or credit agreements now or hereafter evidencing any debts
or obligations of Greystone to Guarantor shall be marked with a legend that the
same are subject to this Guaranty and shall be delivered to Bank. Guarantor
agrees, and Bank hereby is authorized, in the name of Guarantor, from time to
time, to execute and file financing statements and continuation statements and
to execute such other documents and to take such other actions as Bank deems
necessary or appropriate to perfect, preserve and enforce its rights under this
Guaranty.
11. The following words shall have the following meaning when used in
this Guaranty:
GUARANTOR OR GUARANTORS shall have the meaning set out in the preamble
and shall refer to the signatory to this Guaranty Agreement. GUARANTY. The word
"Guaranty" means this Guaranty made by Guarantor for the benefit of Bank dated
of even date herewith. INDEBTEDNESS. The word "Indebtedness" as used herein is
used in its most comprehensive sense and means and includes any and all of
Greystone's liabilities, obligations, debts, and indebtedness to Bank on the
Notes, including without limitation all extensions, renewals, and/or
consolidations of the sums due under the Notes. BANK. The word "Bank" means The
F&M Bank & Trust Company of Tulsa, Oklahoma, its successors and assigns. RELATED
DOCUMENTS. The words "Related Documents" mean and include, without limitation,
all notes, loan agreements, guaranties, security agreements, mortgages, deeds of
trust, and all other instruments, agreements and documents, whether now or
hereafter existing, executed in connection with the Indebtedness.
12. The following miscellaneous provisions are a part of this Guaranty:
AMENDMENTS. This Guaranty, together with the Loan Agreement,
constitutes the entire understanding and agreement of the parties as to the
matters set forth in this Guaranty. All prior and contemporaneous
representations and discussions concerning the subject are included in this
document and the Loan Agreement or do not constitute an aspect of the agreement
of the parties. Except as may be specifically set forth in this Guaranty and the
Loan Agreement, no conditions precedent or subsequent, of any kind whatsoever,
exist with respect to Guarantor's obligations under this Guaranty. No alteration
of or amendment to this Guaranty shall be effective unless given in writing and
signed by the party or parties sought to be charged or bound by the alteration
or amendment.
APPLICABLE LAW. This Guaranty has been delivered to Bank and accepted
by Bank in the State of Oklahoma. If there is a lawsuit, Guarantor agrees upon
Bank's request to submit to the jurisdiction of the courts of Tulsa County,
State of Oklahoma. This Guaranty shall be governed by and construed in
accordance with the laws of the State of Oklahoma.
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ATTORNEYS' FEES; EXPENSES. Guarantor agrees to pay upon demand all of
Bank's reasonable costs and expenses, including reasonable attorneys' fees and
Bank's reasonable legal expenses, incurred in connection with the enforcement of
this Guaranty. Bank may pay someone else to help enforce this Guaranty, and
Guarantor shall pay the reasonable costs and expenses of such enforcement. Costs
and expenses include Bank's reasonable attorneys' fees and legal expenses
whether or not there is a lawsuit, including reasonable attorneys' fees and
legal expenses for bankruptcy proceedings (and including efforts to modify or
vacate any automatic stay or injunction), appeals, and any anticipated
post-judgment collection services. Guarantor also shall pay all court costs and
such additional fees as may be directed by the court.
NOTICES. All notices required to be given by either party to the other
under this Guaranty shall be in writing and shall be delivered either
personally, by overnight courier, or by United States mail (postage prepaid),
addressed to the intended recipient at the last known address or to such other
addresses as either party may designate to the other in writing and shall be
effective on the date of actual delivery. For notice purposes, Guarantor agrees
to keep Bank informed at all times of Guarantor's current address.
INTERPRETATION. The words "Guarantor", "Borrower", and "Bank" include
the heirs, successors, assigns, and transferees of each of them. Caption
headings in this Guaranty are for convenience purposes only and are not to be
used to interpret or define the provisions of this Guaranty. If a court of
competent jurisdiction finds any provision of this Guaranty to be invalid or
unenforceable as to any person or circumstance, such finding shall not render
that provision invalid or unenforceable as to any other persons or
circumstances, and all provisions of this Guaranty in all other respects shall
remain valid and enforceable. It is not necessary for Bank to inquire into the
powers of Greystone or Guarantor or of the officers, directors, partners, or
agents acting or purporting to act on their behalf, and any Indebtedness made or
created in reliance upon the professed exercise of such powers shall be
guaranteed under this Guaranty.
WAIVER. Bank shall not be deemed to have waived any rights under this
Guaranty unless such waiver is given in writing and signed by Bank. No delay or
omission on the part of Bank in exercising any right shall operate as a waiver
of such right or any other right. A waiver by Bank of a provision of this
Guaranty shall not prejudice or constitute a waiver of Bank's right otherwise to
demand strict compliance with that provision or any other provision of this
Guaranty. No prior waiver by Bank, nor any course of dealing between Bank and
Guarantor, shall constitute a waiver of any of Bank's rights or of any of
Guarantor's obligations as to any future transactions. Whenever the consent of
Bank is required under this Guaranty, the granting of such consent by Bank in
any instance shall not constitute continuing consent to subsequent instances
where such consent is required and in all cases such consent may be granted or
withheld in the sole discretion of Bank.
Dated effective this 4th day of March, 2005.
(SIGNATURE PAGES FOLLOW)
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GUARANTOR:
PALWEB CORPORATION,
AN OKLAHOMA CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, President
STATE OF OKLAHOMA )
) ss.
COUNTY OF TULSA )
On this 4th day of March, 2005, before me, the undersigned Notary
Public in and for said County and State, personally appeared Xxxxxx X. Xxxxxx,
as President of PALWEB CORPORATION, who executed the foregoing instrument on
behalf of said corporation for the purposes therein expressed.
WITNESS my hand and seal the day and year last above set forth.
/s/ Xxx Xxxxxx
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NOTARY PUBLIC
( S E A L )
Notary Commission Number: 02007996
My Commission Expires: June 2, 2006
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