CONTINUING GUARANTY AGREEMENT
This
CONTINUING GUARANTY AGREEMENT (the “ Guaranty
”), dated as of September 13th, 2007 by FORTIFIED DATA
COMMUNICATIONS, INC. , a Delaware corporation (the “
Guarantor ”), in favor of THOMAS KEENAN VENTURES,
LLC ( “TKV” ).
PREAMBLE
Reference
is made to that certain $5,000,000 term loan (the
“Loan” ) from TKV to Fortified Holdings Corp., a
Nevada corporation (the “ Company ”), which Loan
is evidenced by, among other things, a Term Loan Note of the
Company in favor of TKV (as the same may be amended, supplemented,
modified or replaced from time to time, the “ Note
”).
The
Company owns 100% of the issued and outstanding capital stock of
the Guarantor and as such the Guarantor will receive a direct
material benefit from the extension of the Loan by TKV to the
Company.
In
consideration of and as a material inducement for TKV having
extended the Loan to the Company, the Guarantor does hereby
represent, warrant, covenant and agree as follows:
1. Definitions .
The
term “Obligations” and all other capitalized terms used
herein without definition shall have the respective meanings
provided therefor in the Note.
2. Guaranty of Payment and Performance
.
The
Guarantor hereby guarantees to TKV the full and punctual payment
when due (whether at stated maturity, by required pre-payment, by
acceleration or otherwise), of (a) the principal of and premium, if
any, and interest on the Loan, (b) obligations of the Company under
the Note, and (c) all other monetary Obligations of the Company to
TKV, including, without limitation, all fees, costs, expenses and
indemnities, whether primary, secondary, direct, contingent, fixed
or otherwise, in each case whether now in existence or hereafter
incurred or arising, including all such Obligations which would
become due but for the operation of the automatic stay pursuant to
§362(a) of the Federal Bankruptcy Code and the operation of
§§502(b) and 506(b) of the Federal Bankruptcy Code
(collectively, the “ Guaranteed Obligations ”).
This Guaranty is an absolute, unconditional and continuing guaranty
of the full and punctual payment and performance of all of the
Guaranteed Obligations and not of their collectibility only and is
in no way conditioned upon any requirement that TKV first attempt
to collect any of the Guaranteed Obligations from the Company or
any other entity or other person primarily or secondarily liable
with respect to any of the Guaranteed Obligations or
resort to any collateral security or other means
of obtaining payment. Should the Company default in the payment or
performance of any of the Guaranteed Obligations, the obligations
of the Guarantor hereunder with respect to such Guaranteed
Obligations in default shall become immediately due and payable to
the TKV, without demand or notice of any nature, all of which are
expressly waived by the Guarantor. Payments by the Guarantor
hereunder may be required by TKV on any number of occasions.
2.1.
Guarantor’s Agreement to Pay Enforcement Costs,
etc.
The
Guarantor further agrees, as the principal obligor and not as a
guarantor only, to pay to TKV, on demand, all costs and expenses
(including court costs and legal expenses) incurred or expended by
TKV following the occurrence and during the continuation of an
Event of Default in connection with the Guaranteed Obligations,
this Guaranty and the enforcement thereof, together with interest
on amounts recoverable under this §3 from the time when such
amounts become due until payment, whether before or after judgment,
at the Default Rate, provided that if such interest exceeds
the maximum amount permitted to be paid under applicable law, then
such interest shall be reduced to such maximum permitted
amount.
3. Waivers by Guarantor; TKV’s Freedom to Act
.
The
Guarantor agrees that the Guaranteed Obligations will be paid and
performed strictly in accordance with their respective terms,
regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the
rights of TKV with respect thereto. The Guarantor waives
promptness, diligences, presentment, demand, protest, notice of
acceptance, notice of any Guaranteed Obligations incurred and all
other notices of any kind, all defenses which may be available by
virtue of any valuation, stay, moratorium law or other similar law
now or hereafter in effect, any right to require the marshalling of
assets of the Company or any other entity or other person primarily
or secondarily liable with respect to any of the Guaranteed
Obligations, and all suretyship defenses generally. Without
limiting the generality of the foregoing, the Guarantor agrees to
the provisions of all Loan Documents evidencing, securing or
otherwise executed in connection with any Guaranteed Obligation and
agrees that the obligations of the Guarantor hereunder shall not be
released or discharged, in whole or in part, or otherwise affected
by (i) the failure of TKV to assert any claim or demand or to
enforce any right or remedy against the Company or any other entity
or other person primarily or secondarily liable with respect to any
of the Guaranteed Obligations; (ii) any extensions, compromise,
refinancing, consolidation or renewals of any Guaranteed
Obligation; (iii) any change in the time, place or manner of
payment of any of the Guaranteed Obligations or any rescissions,
waivers, compromise, refinancing, consolidation, amendments or
modifications of any of the terms or provisions of any Loan
Document evidencing, securing or otherwise executed in connection
with any of the Guaranteed Obligations; (iv) the addition,
substitution or release of any entity or other person primarily or
secondarily liable for any Guaranteed Obligation, (v) the adequacy
of any rights which TKV may have against any collateral security or
other means of obtaining repayment of any of the Guaranteed
Obligations; (vi) the impairment of any collateral securing any of
the Guaranteed Obligations, including without limitation the
failure to perfect or preserve any rights which TKV might have in
such collateral security or the substitution, exchange, surrender,
release, loss or destruction of any such collateral security;
or
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(vii) any other act or omission (other than
wrongful acts or omissions of TKV that affect the validity or
enforceability of the Obligations against the Company) which might
in any manner or to any extent vary the risk of the Guarantor or
otherwise operate as a release or discharge of the Guarantor, all
of which may be done without notice to the Guarantor. To the
fullest extent permitted by law, the Guarantor hereby expressly
waives any and all rights or defenses arising by reason of (A) any
“one action” or “anti-deficiency” law which
would otherwise prevent TKV from bringing any action, including any
claim for a deficiency, or exercising any other right or remedy
(including any right of set-off), against the Guarantor before or
after TKV’s commencement or completion of any foreclosure
action, whether judicially, by exercise of power of sale or
otherwise, or (B) any other law which in any other way would
otherwise require any election of remedies by TKV.
4. Unenforceability of Guaranteed Obligations Against
Company .
If for
any reason the Company has no legal existence or is under no legal
obligation to discharge any of the Guaranteed Obligations, or if
any of the Guaranteed Obligations have become irrecoverable from
the Company by reason of the Company’s insolvency, bankruptcy
or reorganization or by other operation of law or for any other
reason, this Guaranty shall nevertheless be binding on the
Guarantor to the same extent as if the Guarantor at all times had
been the principal obligor on all such Guaranteed Obligations. In
the eve
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