GUARANTY AGREEMENT
Borrower:
TALEN’S
MARINE AND FUEL, INC.
000
Xxxxxxxx Xxxxxx
Xxxx
Xxxxxx, Xxxxxxxxx 00000
Lender:
ALLEGRO
BIODIESEL CORPORATION
0000
Xxxx
Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Guarantor:
C.
XXXXXXX XXXXX
0000
Xxx
Xxx Xxxx
Xxxx
Xxxxxx, Xxxxxxxxx 00000
DEFINITIONS.
The
following terms shall have the following meanings when used in this
Agreement:
Agreement.
The
term "Agreement" refers to this Guaranty Agreement as this Agreement may be
amended or modified from time to time.
Appearers.
The
term “Appearers” refers individually, collectively and interchangeably to the
parties named above as Borrower and Guarantor.
Borrower.
The
term "Borrower" refers individually, collectively and interchangeably to the
above named Borrower(s).
Guarantor.
The
term "Guarantor" refers individually, collectively and interchangeably to the
above named Guarantor(s) and all other persons guaranteeing payment and
satisfaction of the Indebtedness as hereinafter defined.
Indebtedness.
The
term "Indebtedness" refers individually, collectively and interchangeably
to
i) a
debt by the Borrower to the Lender in the amount of $640,000.00, and ii)
Borrower’s obligations to Lender under that certain loan agreement among
Borrower, Talen Landing II, Inc., Guarantor and Lender, dated contemporaneously
herewith (as amended, modified or restated from time to time, the “Loan
Agreement”). The debt is represented by a promissory note in the amount of
$640,000.00, payable to the order of the Lender (including any amendments,
substitutions, renewals and restatements, the “Note”) such Note being executed
contemporaneously herewith. Payments on the Note are due as set forth in the
Note. The Note matures on the earlier of September 24, 2007 or the consummation
of the transaction contemplated by that Stock Purchase Agreement executed among
Lender, the shareholders of Borrower and Talen Landing II, Inc., dated
contemporaneously herewith (the “Stock Purchase Agreement”).
Lender.
The
term "Lender" refers collectively to the above named lenders, their successors
and assigns, and any subsequent holder or holders of the Indebtedness, the
obligations hereunder being fully enforceable.
GUARANTEE
OF THE INDEBTEDNESS.
Guarantor hereby absolutely and unconditionally agrees to, and by these presents
does hereby, guarantee the prompt and punctual payment, performance and
satisfaction of any and all of the present and future Indebtedness in favor
of
Lender. The amount of this guaranty is unlimited. This is a guaranty of payment
and performance. The liability of Guarantor under this Agreement shall be direct
and immediate and not conditional or contingent upon the pursuit of any remedies
against Appearers or any other person (including, without limitation, other
guarantors, if any), nor against any collateral securing the Indebtedness.
Guarantor waives any right to require that any action be brought against
Appearers or any other person or to require that resort be had to any collateral
for the Indebtedness. In the event, on account of the Bankruptcy Reform Act
of
1978, as amended, or any other debtor relief law (whether statutory, common
law,
case law or otherwise) of any jurisdiction whatsoever, now or hereafter in
effect, which may be or become applicable, Appearers shall be relieved of or
fail to incur any debt, obligation or liability including the Indebtedness,
Guarantor shall nevertheless be fully liable therefor. In the event of a default
under or in payment of the Indebtedness which is not cured within any applicable
grace or cure period, Lender shall have the right to enforce its rights, powers
and remedies (including, without limitation, foreclosure of all or any portion
of the collateral for the Indebtedness) thereunder or hereunder, in any order,
and all rights, powers and remedies available to Lender in such event shall
be
non-exclusive and cumulative of all other rights, powers and remedies provided
thereunder or hereunder or by law or in equity. If the Indebtedness and
obligations guaranteed hereby are partially paid or discharged by reason of
the
exercise of any of the remedies available to Lender, this Agreement shall
nevertheless remain in full force and effect, and Guarantor shall remain liable
for all remaining Indebtedness and obligations guaranteed hereby, even though
any rights which Guarantor may have against Appearers may be destroyed or
diminished by the exercise of any such remedy. The obligations of each Guarantor
(each signatory) under this Agreement shall be joint and several and
solidary.
1
CONTINUING
GUARANTY.
Guarantor's obligations and liability under this Agreement shall be open and
continuous for so long as this Agreement remains in effect. Guarantor intends
to
and does hereby guarantee at all times the prompt and punctual payment,
performance and satisfaction of all of the present and future Indebtedness
in
favor of Lender. Accordingly, any payments made on the Indebtedness will not
discharge or diminish the obligations and liability of Guarantor under this
Agreement for any remaining and succeeding Indebtedness in favor of
Lender.
DURATION
OF GUARANTY.
This
Agreement and Guarantor's obligations and liability hereunder shall remain
in
full force and effect until the earlier of: a) such time as the Indebtedness
is
fully paid and satisfied without further obligations on the part of the Lender
to the Appearers to extend additional credit; or b) the consummation of the
transaction contemplated by the Stock Purchase Agreement, at which time Lender
shall provide Guarantor a written cancellation instrument in favor of Guarantor.
Fluctuations may occur in the aggregate amount of the Indebtedness guaranteed
under this Agreement and it is specifically acknowledged and agreed to by
Guarantor that reductions in the amount of the Indebtedness, even to zero
($0.00) dollars, prior to Lender's written cancellation of this Agreement,
shall
not constitute or give rise to a termination of this Agreement.
DEFAULT.
Should
any event of default occur or exist under any of the Indebtedness in favor
of
Lender, Guarantor unconditionally and absolutely agrees to pay Lender the then
unpaid amount of the Indebtedness, in principal, interest, costs, expenses,
attorneys' fees and other fees and charges, subject to the maximum principal
dollar amount limitations set forth above. Such payment or payments shall be
made at Lender's offices indicated above, immediately following demand by
Lender.
2
GUARANTOR'S
WAIVER.
Guarantor hereby waives:
(A) Notice
of
Lender's acceptance of this Agreement.
(B) Any
right
to require Lender to notify Guarantor of any nonpayment relating to any
collateral directly or indirectly securing the Indebtedness, or notice of any
action or nonaction on the part of any Appearer, Lender, or any other guarantor,
surety or endorser of the Indebtedness, or notice of the creation of any new
or
additional Indebtedness subject to this Agreement.
(C) Any
rights to demand or require collateral security from any Appearer or any other
person as provided under applicable Louisiana law or otherwise.
(D) Any
right
to require Lender to notify Guarantor of the terms, time and place of any public
or private sale of any collateral directly or indirectly securing the
Indebtedness.
(E) Any
"one
action" or "anti-deficiency" law or any other law which may prevent Lender
from
bringing any action, including a claim for deficiency against Guarantor, before
or after Lender's commencement or completion of any foreclosure action, or
any
action in lieu of foreclosure.
(F) Any
election of remedies by Lender that may destroy or impair Guarantor's
subrogation rights or Guarantor's right to proceed for reimbursement against
any
Appearer or any other guarantor, surety or endorser of the Indebtedness,
including without limitation, any loss of rights Guarantor may suffer by reason
of any law limiting, qualifying, or discharging the Indebtedness.
(G) Any
disability or other defense of any Appearer, or any other guarantor, surety
or
endorser, or any other person, or by reason of the cessation from any cause
whatsoever, other than payment in full of the Indebtedness.
(H) Any
statute of limitations or prescriptive period, if at the time an action or
suit
brought by Lender against Guarantor is commenced, there is any outstanding
Indebtedness of any Appearer to Lender which is barred by any applicable statute
of limitations or prescriptive period.
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, such 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.
GUARANTOR'S
SUBORDINATION OF RIGHTS.
In the
event that Guarantor should for any reason (A) advance or lend monies to any
Appearer, whether or not such funds are used to make payment(s) under the
Indebtedness, and/or (B) make any payment(s) to Lender or others for and on
behalf of any Appearer under the Indebtedness, and/or (C) make any payment
to
Lender in total or partial satisfaction of Guarantor's obligations and
liabilities under this Agreement, Guarantor hereby agrees that any and all
rights that Guarantor may have or acquire to collect from or to be reimbursed
by
any Appearer (or from or by any other guarantor, endorser or surety of the
Indebtedness), whether Guarantor's rights of collection or reimbursement arise
by way of subrogation to the rights of Lender or otherwise, shall in all
respects, whether or not any Appearer is presently or subsequently becomes
insolvent, be subordinate, inferior and junior to the rights of Lender to
collect and enforce payment, performance and satisfaction of the then remaining
Indebtedness, until such time as the Indebtedness is fully paid and satisfied.
In the event of Appearers’ insolvency or consequent liquidation of Appearers'
assets, through bankruptcy, by an assignment for the benefit of creditors,
by
voluntary liquidation, or otherwise, the assets of Appearers applicable to
the
payment of claims of both Lender and Guarantor shall be paid to Lender and
shall
be first applied by Lender to the then remaining Indebtedness. If Guarantor
is,
or at any time may be, an "insider" of Appearers (or of any other guarantor,
surety or endorser of the Indebtedness) within the context of Section 101(30)
of
the Bankruptcy Code (11 U.S.C. 101(30)), Guarantor shall have no rights of,
and
unconditionally agrees not to seek or obtain, collection or reimbursement from
Appearers (or from any other guarantor, surety or endorser of the Indebtedness),
whether by subrogation of Lender's rights or otherwise until the thirteenth
(13th) month anniversary date following the full and final payment and
satisfaction of the Indebtedness.
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GUARANTOR'S
RECEIPT OF PAYMENTS.
Guarantor further agrees to refrain from attempting to collect and/or enforce
any of Guarantor's collection and/or reimbursement rights against any Appearer
(or against any other guarantor, surety or endorser of the Indebtedness) arising
because of payment pursuant to this Guaranty until such time as all of the
then
remaining Indebtedness in favor of Lender is fully paid and satisfied. In the
event that Guarantor should for any reason whatsoever receive any payment(s)
from any Appearer (or any other guarantor, surety or endorser of the
Indebtedness) that the Appearer (or such a third party) may owe to Guarantor
because of payment pursuant to this Guaranty, Guarantor agrees to accept such
payment(s) for and on behalf of Lender, advising the Appearer (or the third
party payee) of such fact. Guarantor further unconditionally agrees to
immediately deliver such funds to Lender, with such funds being held by
Guarantor over any interim period, in trust for Lender. In the event that
Guarantor should for any reason whatsoever receive any such funds from any
Appearer (or any third party), because of payment pursuant to this Guaranty,
and
Guarantor should deposit such funds in one or more of Guarantor's deposit
accounts, no matter where located, Lender shall have the right to attach such
accounts in which such funds were deposited, whether or not such funds were
commingled with other monies of Guarantor, and whether or not such funds then
remain on deposit in such an account or accounts, but only to the extent of
such
deposit of funds from the Appearer.
ADDITIONAL
COVENANTS.
Guarantor agrees that Lender may, at its sole option, at any time, and from
time
to time, without the consent of or notice to Guarantor, or any of them, or
to
any other party, and without incurring any responsibility to Guarantor or to
any
other party, and without impairing or releasing any of Guarantor's obligations
or liabilities under this Agreement:
(A) Make
additional secured and/or unsecured loans to any Appearer.
(B) Discharge,
release or agree not to xxx any party (including, but not limited to, any or
all
Appearer(s) or any other guarantor, surety, or endorser of the Indebtedness),
who is or may be liable to Lender for any of the Indebtedness.
(C) Sell,
exchange, release, surrender, realize upon, or otherwise deal with, in any
manner and in any order, any collateral directly or indirectly securing
repayment of any of the Indebtedness.
(D) Alter,
renew, extend, accelerate, or otherwise change the manner, place, terms and/or
times of payment or other terms of the Indebtedness, or any part thereof,
including any decrease in the rate or rates of interest on any of the
Indebtedness.
(E) Settle
or
compromise any of the Indebtedness.
(F) Apply
any
payments and/or proceeds to any of the Indebtedness in such priority or with
such preferences as Lender may determine in its sole discretion, regardless
of
which of the Indebtedness then remains unpaid.
(G) Take
or
accept any other collateral as security or guaranty for any or all of the
Indebtedness.
NO
IMPAIRMENT OF GUARANTOR'S OBLIGATIONS.
No
course of dealing between Lender and Appearers (or any other guarantor, surety
of endorser of the Indebtedness), nor any failure or delay on the part of Lender
to exercise any of Lender's rights and remedies under this Agreement or any
other agreement or agreements by and between Lender and Appearers (or any other
guarantor, surety or endorser), shall have the effect of impairing or releasing
Guarantor's obligations and liabilities to Lender, or of waiving any of Lender's
rights and remedies under this Agreement or otherwise. Any partial exercise
of
any rights and remedies granted to Lender shall furthermore not constitute
a
waiver of any of Lender's other rights and remedies; it being Guarantor's intent
and agreement that Lender's rights and remedies shall be cumulative in nature.
Guarantor further agrees that, should any Appearer default under any of the
Indebtedness, any waiver or forbearance on the part of Lender to pursue Lender's
available rights and remedies shall be binding upon Lender only to the extent
that Lender specifically agrees to such waiver or forbearance in writing. A
waiver or forbearance on the part of Lender as to one event of default shall
not
constitute a waiver or forbearance as to any other default.
4
NO
RELEASE OF GUARANTOR.
Guarantor's obligations and liabilities under this Agreement shall not be
released, impaired, reduced, or otherwise affected by, and shall continue in
full force and effect notwithstanding the occurrence of any event, including
without limitation any one or more of the following events:
(A) The
death, insolvency, bankruptcy, arrangement, adjustment, composition,
liquidation, disability, dissolution, or lack of authority (whether corporate,
partnership or trust) of any Appearer (or any person acting on an Appearer's
behalf), or of any other guarantor, surety or endorser of the
Indebtedness.
(B) Any
payment by Appearers, or any party, to Lender that is held to constitute a
preferential transfer or a fraudulent conveyance under any applicable law,
or
any such amounts or payment which, for any reason, Lender is required to refund
or repay to Appearers or to any other person.
(C) Any
dissolution of any Appearer, or any sale, lease or transfer of all or any part
of any Appearer's assets.
(D) Any
failure of Lender to notify Guarantor of the making of additional loans or
other
extensions of credit in reliance on this Agreement.
REPRESENTATIONS
AND WARRANTIES BY GUARANTOR.
Guarantor represents and warrants that:
(A) Guarantor
has the lawful power to own its properties and to engage in its business as
presently conducted.
(B) Guarantor's
guaranty of the Indebtedness and Guarantor's execution, delivery and performance
of this Agreement are not in violation of any laws and will not result in a
default under any contract, agreement, or instrument to which Guarantor is
a
party, or by which Guarantor or its property may be bound.
(C) Guarantor
has agreed and consented to execute this Agreement and to guarantee the
Indebtedness in favor of Lender, at Appearers' request and not at the request
of
Lender.
(D) Guarantor
will receive and/or has received a direct or indirect material benefit from
the
transactions contemplated herein and/or arising out of the
Indebtedness.
(E) This
Agreement, when executed and delivered to Lender, will constitute a valid,
legal
and binding obligation of Guarantor, enforceable in accordance with its
terms.
(F) Guarantor
has established adequate means of obtaining information from Appearers on a
continuing basis regarding Appearers' financial condition.
(G) Lender
has made no representations to Guarantor as to the creditworthiness of
Appearers.
ADDITIONAL
OBLIGATIONS OF GUARANTOR.
So long
as this Agreement remains in full force and effect, Guarantor has not and will
not, without Lender's prior written consent, sell, lease, assign, pledge,
hypothecate, encumber, transfer, or otherwise dispose of all or substantially
all of Guarantor's assets. Guarantor agrees to keep adequately informed of
any
facts, events or circumstances which might in any way affect Guarantor's risks
under this Agreement. Guarantor further agrees that Lender shall have no
obligation to disclose to Guarantor any information or material relating to
Appearers or the Indebtedness.
NOTICES.
Any
notice provided in this Agreement must be in writing and will be considered
as
given on the day it is delivered by hand or deposited in the U.S. mail, postage
prepaid, addressed to the person to whom the notice is to be given at the
address shown above or at such other addresses as any party may designate to
the
other in writing. If there is more than one Guarantor under this Agreement,
notice to any Guarantor shall constitute notice to all Guarantors. Notice to
each Appearer shall be sent or delivered to the following address:
5
Allegro
Biodiesel Corporation
0000
Xxxx
Xxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention:
W. Xxxxx Xxxxx, III
ADDITIONAL
GUARANTIES.
Guarantor recognizes and agrees that Guarantor may be simultaneously herewith
executing another Guaranty in favor of Lender and may have previously and may
in
the future grant one or more additional guaranties of the Indebtedness in favor
Lender. The execution of this Agreement and any additional guaranties on the
part of Guarantor will not be construed as a cancellation of this Agreement
or
any of Guarantor's other guaranties; it being Guarantor's full intent and
agreement that all such guaranties of the Indebtedness in favor of Lender shall
remain in full force and effect and shall be cumulative in nature and
effect.
AMENDMENT.
No
amendment, modification, consent or waiver of any provision of this Agreement,
or consent to any departure by Guarantor therefrom, shall be effective unless
the same shall be in writing signed by a duly authorized officer of Lender,
and
then shall be effective only as to the specific instance and for the specific
purpose for which given.
SUCCESSORS
AND ASSIGNS BOUND.
Guarantor's and Lender's obligations and liabilities under this Agreement shall
be binding upon Guarantor's and Lender's successors, heirs, legatees, devisees,
administrators, executors and assigns. The obligations of Guarantor hereunder
shall flow in favor of any assignee of Lender’s rights in respect of the
Indebtedness.
CAPTION
HEADINGS.
Caption
headings of the sections of this Agreement are for convenience purposes only
and
are not to be used to interpret or to define their provisions. In this
Agreement, whenever the context so requires, the singular includes the plural
and the plural also includes the singular.
GOVERNING
LAW.
This
Agreement shall be governed and construed in accordance with the substantive
laws of the State of Louisiana.
SEVERABILITY.
If any
provision of this Agreement is held to be illegal, invalid or unenforceable
under present or future laws effective during the term hereof, such provision
shall be fully severable. This Agreement shall be construed and enforceable
as
if the illegal, invalid or unenforceable provision had never comprised a part
of
it, and the remaining provisions of this Agreement shall remain in full force
and effect and shall not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom. Furthermore, in lieu of such illegal,
invalid and unenforceable provision, there shall be added automatically as
a
part of this Agreement, a provision as similar in terms to such illegal invalid
or unenforceable provision as may be possible and legal, valid and
enforceable.
IN
WITNESS WHEREOF, the Guarantor has executed this Agreement as of June 26,
2007.
GUARANTOR:
| /s/ C. Xxxxxxx Xxxxx | |||
|
C.
Xxxxxxx Xxxxx
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