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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.
2. Definitions .
(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 Borrower or any other person,
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