CONTINUING AND UNCONDITIONAL
GUARANTY
1.
The Guaranty
. For valuable consideration, the
undersigned (“Guarantor”) hereby unconditionally
guarantees and promises to pay promptly to F&L LLP
(collectively, “Lender”), or order, in lawful money of
the United States, any and all Indebtedness of Oblio Telecom, Inc.
(“Borrower”) to Lender when due, whether at stated
maturity, upon acceleration or otherwise, and at all times
thereafter. The liability of Guarantor under this Guaranty is not
limited as to the principal amount of the Indebtedness guaranteed
and includes, without limitation, liability for all interest, fees,
indemnities (including, without limitation, hazardous waste
indemnities), and other costs and expenses relating to or arising
out of the Indebtedness and for all swap, option, or forward
obligations now or hereafter owing from Borrower to Lender. The
liability of Guarantor is continuing and relates to any
Indebtedness, including that arising under successive transactions
which shall either continue the Indebtedness or from time to time
renew it after it has been satisfied. This Guaranty is cumulative
and does not supersede any other outstanding guaranties, and the
liability of Guarantor under this Guaranty is exclusive of
Guarantor’s liability under any other guaranties signed by
Guarantor. If multiple individuals or entities sign this Guaranty,
their obligations under this Guaranty shall be joint and
several.
(a) “Borrower” shall mean the individual
or the entity named in Paragraph 1 of this Guaranty and, if
more than one, then any one or more of them.
(b) “Guarantor” shall mean the
individual or the entity signing this Guaranty and, if more than
one, then any one or more of them.
(c) “Indebtedness” shall mean any and
all debts, liabilities, and obligations of Borrower to Lender,
arising from or in connection with that certain Note and Security
Agreement dated August 11, 2005, made by Oblio Telecom, Inc., a
Delaware corporation (the "Borrower") in favor of Lender in the
original principal amount of Two Million Five Hundred Thousand
Dollars ($2,500,000) (the “Original Note”), and that
certain Note dated December 14, 2005, made by Borrower in favor the
Lender in the original principal amount of Two Million Three
Hundred Twenty Two Thousand Eight Hundred and Fifty Dollars
($2,322,850) (the “Second Note”, and together with the
Original Note, the “Notes”), or pursuant to Amendment
No. 1 to the Notes dated as of December 29, 2006 (the
“Amendment”).
(d) “Loan Documents” shall mean the
Notes and the Amendment, all as now in effect and as hereafter
amended, restated, renewed, or superseded.
3.
Obligations
Independent . The
obligations hereunder are independent of the obligations of
Borrower or any other guarantor, and a separate action or actions
may be brought and prosecuted against Guarantor whether action is
brought against Borrower or any other guarantor or whether Borrower
or any other guarantor be joined in any such action or actions.
Anyone executing this Guaranty shall be bound by its terms without
regard to execution by anyone else.
4.
Rights of Lender
. Guarantor authorizes Lender,
without notice or demand and without affecting its liability
hereunder, from time to time to:
(a) renew, compromise, extend, accelerate, or
otherwise change the time for payment, or otherwise change the
terms, of the Indebtedness or any part thereof, including increase
or decrease of the rate of interest thereon, or otherwise change
the terms of any Loan Documents;
(b) receive and hold security for the payment of
this Guaranty or any Indebtedness and exchange, enforce, waive,
release, fail to perfect, sell, or otherwise dispose of any such
security;
(c) apply such security and direct the order or
manner of sale thereof as Lender in its discretion may
determine;
(d) release or substitute any Guarantor or any one
or more of any endorsers or other guarantors of any of the
Indebtedness; and
(e) permit the Indebtedness to exceed
Guarantor’s liability under this Guaranty, and Guarantor
agrees that any amounts received by Lender from any source other
than Guarantor shall be deemed to be applied first to any portion
of the Indebtedness not guaranteed by Guarantor.
5.
Guaranty to be
Absolute . Guarantor
agrees that until the Indebtedness has been paid in full and any
commitments of Lender or facilities provided by Lender with respect
to the Indebtedness have been terminated, Guarantor shall not be
released by or because of the taking, or failure to take, any
action that might in any manner or to any extent vary the risks of
Guarantor under this Guaranty or that, but for this paragraph,
might discharge or otherwise reduce, limit, or modify
Guarantor’s obligations under this Guaranty. Guarantor waives
and surrenders any defense to any liability under this Guaranty
based upon any such action, including but not limited to any action
of Lender described in the immediately preceding paragraph of this
Guaranty. It is the express intent of Guarantor that
Guarantor’s obligations under this Guaranty are and shall be
absolute and unconditional.
6.
Guarantor’s Waivers of
Certain Rights and Certain Defenses . Guarantor waives:
(a) any right to require Lender to proceed against
Borrower, proceed against or exhaust any security for the
Indebtedness, or pursue any other remedy in Lender’s power
whatsoever including but not limited to the benefits of Chapter 34
of the Texas Business and Commerce Code, §17.001 of the Texas
Civil Practice and Remedies Code, and Rule 31 of the Texas Rules of
Civil Procedure, or any similar statute.
(b) any defense arising by reason of any disability
or other defense of Borrower, or the cessation from any cause
whatsoever of the liability of Borrower;
(c) any defense based on any claim that
Guarantor’s obligations exceed or are more burdensome than
those of Borrower; and
(d) the benefit of any statute of limitations
affecting Guarantor’s liability hereunder.
No provision or
waiver in this Guaranty shall be construed as limiting the
generality of any other waiver contained in this
Guaranty.
7.
Waiver of Subrogation
. Until the Indebtedness has been
paid in full and any commitments of Lender or facilities provided
by Lender with respect to the Indebtedness have been terminated,
even though the Indebtedness may be in excess of Guarantor’s
liability hereunder, Guarantor waives to the extent permitted by
applicable law any right of subrogation, reimbursement,
indemnification, and contribution (contractual, statutory, or
otherwise) including, without limitation, any claim or right of
subrogation under the Bankruptcy Code (Title 11, United States
Code) or any successor statute, arising from the existence or
performance of this Guaranty, and Guarantor waives to the extent
permitted by applicable law any right to enforce any remedy that
Lender now has or may hereafter have against Borrower, and waives
any benefit of, and any right to participate in, any security now
or hereafter held by Lender.
8.
Waiver of Notices
. Guarantor waives all
presentments, demands for performance, notices of nonperformance,
protests, notices of protest, notices of dishonor, notices of
intent to accelerate, notices of acceleration, notices of any suit
or any other action against Borr
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