CAPCO
FINANCIAL
GUARANTY
This contract of guaranty made and entered into this JULY 27, 2005 between CAPCO
FINANCIAL COMPANY- A DIVISION OF GREATER BAY BANK N.A. hereinafter referred to
as "CAPCO", and CCI TELECOM, INC. hereinafter referred to as Client; and CHARYS
HOLDING COMPANY, INC. hereinafter referred to as the Guarantors,
WITNESSETH:
That the Client has made application to CAPCO for financial accommodation, which
the Guarantors seek to induce CAPCO to grant.
NOW, THEREFORE, IT IS UNDERSTOOD AND AGREED AS FOLLOWS:
1. To induce CAPCO to grant or extend and/or to continue to grant or extend to
or for the benefit of the Client such invoice financing, factoring, loan(s),
credit(s), or other financial accommodation upon such terms and conditions and
at such rate, or rates of discount, or interest, as may be agreed upon between
the Client and CAPCO, and for other good and valuable consideration, including
the sum of One Dollar to Guarantors in hand paid, receipt of which is hereby
acknowledged, the Guarantors, and each of them (if more than one), and their
respective marital communities, hereby jointly and severally guarantee to CAPCO
absolutely and unconditionally, at all times, payment immediately when due, of
any and all indebtedness and/or liabilities, direct or contingent, irrespective
of their character, regularity, enforceability or validity, now owing, or which
may hereafter be owing or become due, from the Client to CAPCO, its successors
or assigns, or which may arise from dealings between CAPCO and the Client and/or
from other dealings by which CAPCO may become in any manner whatsoever a
creditor of the Client, including in such indebtedness and/or liabilities (and
in addition to whatever limiting amount may be set forth herein), all fees, and
or interest charges and expenses accrued with respect thereto, and all costs,
charges and expenses which CAPCO may incur in enforcing or obtaining payment of
any such indebtedness and/or liabilities, or pay in connection with the Client's
account, up to a limiting principal amount of ($5,000,000.00) FIVE MILLION AND
00/100 dollars, (regardless of any excess amount which may now or hereafter be
or become owing from Client to CAPCO): but nothing herein contained shall be
deemed to obligate CAPCO to extend any definite amount of credit to the Client.
2. CAPCO is hereby given the following powers and rights, which CAPCO may at
its sole discretion exercise one or more times and from time to time without in
any way diminishing, releasing or discharging the Guarantors' obligation
hereunder. To make change, alter, cancel, renew, extend, decrease or increase
the amount, principal and/or fee of the indebtedness and/or liabilities of the
Client; to change, substitute, withdraw, decrease, increase, release, alter,
collect or sell (at public or private sale for such price and upon such terms as
CAPCO may deem reasonable) any Account, account receivable, right to payment,
collateral or property securing such indebtedness and/or liabilities, or any
part thereof (CAPCO shall not be bound in any way to effect the reduction or
satisfaction of the Client's indebtedness and/or liabilities to CAPCO and
neither the Guarantors nor the Client shall have the right to require CAPCO to
reduce or to satisfy said indebtedness and/or liabilities either by application
of any Account, or collateral or by the enforcement of any guaranty, which CAPCO
either now holds or hereafter may obtain as security for the whole or any part
of said indebtedness and/or liabilities): to add other guarantors to the
guaranty; to procure additional guaranties of any or all of the Clients
indebtedness and/or liabilities to CAPCO; to release any of the guarantors
executing either this guaranty or other guaranties now extant or hereafter
obtained; to enforce for CAPCO's benefit any security which the Client has given
to the Guarantors for the Guarantors' indemnity; to apply all sums of money
and/or property, of any kind or nature, which may be received by CAPCO from the
Client, or from any one on the Client's behalf, or for the Client's use or
benefit, to the reduction and/or payment of whatever portion of the Client's
indebtedness and/or liabilities which CAPCO, in its sole discretion, may
determine, regardless of
Form Date 6/97 Initial RB
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whether said portion is unsecured, is in any way secured or guaranteed, is
barred by the statute of limitations, or is in excess of the limit of this
guaranty (it being the intention of the parties hereto that CAPCO shall have
absolute control over the application of all payments from whatever source
received); to receive payment in full of all of the indebtedness and/or
liabilities owing from the Client to CAPCO before the Guarantors shall be
entitled to receive any of the aforesaid money or property or to apply the same
upon the Guarantors claims against the Client (including claims acquired by
subrogation from CAPCO); to exercise the same powers and rights in the event of
the Client's insolvency, bankruptcy, receivership, or assignment for the benefit
of creditors, in which event all of the indebtedness and/or liabilities owing
from the Client to CAPCO shall be satisfied in full before the Guarantors shall
be entitled to participate in the distribution of the Client's assets; and to
otherwise deal with the Client, the Guarantors and/or any endorser or guarantor
as CAPCO may elect. The liability of Guarantors shall not be affected or
impaired by CAPCO'S failure, neglect or omission to realize on the indebtedness
and/or liabilities or any collateral therefore.
3. Any financial accommodation granted or continued by CAPCO to the Client
shall be conclusively deemed to have been induced hereby and in reliance hereon.
Notice of acceptance of this guaranty as well as all demands, presentments,
notices of protest and notices of every kind or nature, including those of any
action or non-action on the part of the Client, CAPCO, any of the Guarantors,
any other Guarantor, any creditor of the Client, of CAPCO, or any of the
Guarantors, or of any other Guarantor, or any other person, whomsoever, are
hereby fully waived by the Guarantors.
4. This is a continuing guaranty and neither the exercise by CAPCO of any of
the aforesaid rights and powers, nor the payment and/or satisfaction by anyone,
either in whole or in part, of the Client's indebtedness and/or liabilities to
CAPCO, nor the intervention of lapses of time between CAPCO'S transactions with
the Client, regardless of how long or how frequent the lapses shall be, shall
operate either as a full or partial discharge of this guaranty but the
Guarantors' obligation to CAPCO hereunder, regardless of the foregoing
contingencies, shall continue binding and enforceable to the full limit
aforesaid, both as to said indebtedness and/or liabilities which then may be
extant and unpaid, and as to those which thereafter in any manner may arise
until notice in writing, via certified mail, signed by the Guarantors to make no
further advances to the Client hereunder is received by CAPCO. If the
Guarantors, or any of them, give such notice of their election to be no longer
bound by this guaranty, they shall thereby be released from future liability
hereunder, but they and their personal representatives shall remain bound as to
indebtedness and/or liabilities then existing and renewals or extensions in
whole or in part of the then existing indebtedness and/or liabilities, but this
guaranty, at CAPCO's option shall continue in full force and effect as to any or
all of the Guarantors who have not given such notice.
5. Each Guarantor also hereby waives any claim, right, or remedy which such
Guarantor may now have or hereafter acquire against the Client, or against other
Guarantors, including, without limitation, any claim, right or remedy of
subrogation, reimbursement, exoneration, indemnification, contribution, or
participation in any claim, right, or remedy of CAPCO against the Client, or
against any Guarantor, or any security which CAPCO now has or hereafter
acquires, whether or not such claim, right or remedy arises in equity, under
contract, by statute, under common law, or otherwise.
6. Upon any default of the Client in any of its indebtedness and/or
liabilities to be due and payable, and, without making any demand upon or
bringing any action against the Client, without seeking recovery against the
guarantors under any other guaranties, and without foreclosing upon, selling or
otherwise disposing of or collecting any collateral which CAPCO may then have as
security for such indebtedness and/or liabilities, CAPCO may proceed directly
against the Guarantors to enforce payment by the Guarantors to the full extent
of the Guaranty, or, without in any way releasing the Guarantors from their full
obligation hereunder, CAPCO may seek recovery from the Client and/or from the
guarantors under any other guaranties, and may apply the proceeds of such
recovery in the manner set forth in paragraph 2 above. In the event that suit is
instituted to enforce this guaranty or any claim arising hereunder, the
Guarantors agree and undertake to pay to CAPCO its costs, together with a
reasonable attorneys fee (as fixed by the court), and further agree that the
venue of any such suit may be laid in King County Washington.
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7. Words used herein in the singular number shall be deemed to include the
plural and vice versa, and word importing the masculine gender shall also
include the feminine and neuter, where the number or gender of the signatories
hereto shall require such construction.
8. This guaranty shall be valid and binding upon the Guarantors who have
executed this Guaranty notwithstanding the non-execution hereof by any of the
within named Guarantors, by any prospective Guarantors, or by the Client, and
notwithstanding the existence of other guaranties of the Client's indebtedness
and/or liabilities to CAPCO, and this Guaranty shall inure to the benefit of and
bind the heirs, administrators, executors, successors (including successor
partnerships of the Client and/or of the Guarantors regardless of changes in
name and membership) and assigns of CAPCO, the Client and the Guarantors.
IN WITNESS THEREOF, WE have signed, sealed and delivered this instrument, at San
Antonio, Texas this 27th day of July, 2005.
CAPCO FINANCIAL COMPANY- A DIVISION OF GREATER BAY BANK N.A.
By /s/ [Illegible]
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Title AVP
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CCI TELECOM, INC.
By /s/ Xxx X. Ber
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Title VP & CFO
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GUARANTORS:
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Charys Holding Company, Inc.
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Form Date 6/97 Initial RB
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