G REYSTONE
B USINESS
C REDIT
II, L.L.C.
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Borrower
:
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A PP
A
LACHIAN O IL
C OMPANY
,
a
Tennessee
corporation
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|
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Guarantors
(and each a
Guarantor
):
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A PPCO
-KY, I NC.
,
a
Tennessee corporation
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Borrower
has requested that
G REYSTONE
B USINESS
C REDIT
II, L.L.C. as
agent ("
Agent ")
for itself and certain lenders ("
Lenders ")
provide certain financial accommodations to Borrower pursuant to
the terms of a Loan and Security Agreement among Borrower, Agent
and the Lenders parties thereto from time to time, dated of even
date herewith (as amended from time to time, the "
Loan Agreement ").
As one of the conditions to providing financing, Agent and Lenders
have required that each Guarantor guaranty all obligations of
Borrower to Agent and Lenders.
For
value received and in consideration of any loan, advance or
financial accommodation of any kind whatsoever heretofore, now
or hereafter made, given or granted to Borrower by any Lender
pursuant to the Loan Agreement, each Guarantor, jointly and
severally, unconditionally guaranties the full and prompt
payment when due, whether at maturity or earlier, by reason of
acceleration or otherwise, and at all times thereafter, of the
indebtedness, liabilities and obligations of every kind and
nature of Borrower to Agent and Lenders (including, without
limitation, all interest accruing after the filing of a
proceeding under the Bankruptcy Code (as defined in the Loan
Agreement) whether or not allowed by the court in such
proceeding, and all other indebtedness, liabilities and
obligations arising after the filing of any proceeding under
the Bankruptcy Code), howsoever created, arising or evidenced,
whether direct or indirect, absolute or contingent, joint or
several, now or hereafter existing, or due or to become due,
in each case arising under the Loan Agreement or the other
Loan Documents (as defined in the Loan Agreement), plus all
costs and expenses (including, without limitation, all court
costs and reasonable attorneys' and paralegals' fees and
expenses) paid or incurred by Agent and Lenders in endeavoring
to collect all or any part of such indebtedness, liabilities
and obligations from, or in prosecuting any action against,
any Guarantor or any other guarantor of all or any part of
such indebtedness, liabilities and obligations (all such
indebtedness, liabilities, obligations, costs and expenses
being hereinafter referred to as "
Borrower's Obligations ").
All sums becoming due under this Guaranty shall bear interest from
the due date thereof until paid at the highest rate charged with
respect to any of Borrower's Obligations under the Loan
Agreement.
Each
Guarantor agrees that its obligations under this Guaranty are
unconditional, irrespective of (i) the validity or
enforceability of Borrower's Obligations or any note or other
instrument evidencing Borrower's Obligations, (ii) the absence
of any attempt by any Lender to collect Borrower's Obligations
from Borrower or any other guarantor, (iii) any Lender's
waiver or consent with respect to any provision of the Loan
Documents, (iv) any Lender's failure to perfect or maintain
its security interests in, or to preserve its rights with
respect to, any of the Collateral (as defined in the Loan
Agreement), (v) any Lender's election, in any proceeding under
Chapter 11 of the Bankruptcy Code, of the application of
Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing
or grant of a security interest by Borrower as
debtor-in-possession under Section 364 of the Bankruptcy Code,
(vii) the disallowance, under Section 502 of the Bankruptcy
Code, of all or any of any Lender's claims for repayment of
Borrower's Obligations or (viii) any other circumstance which
might constitute a legal or equitable discharge or defense of
Borrower or a guarantor.
No
payment made by or for the account or benefit of any Guarantor
(including, without limitation, (i) a payment made by Borrower
in respect of Borrower's Obligations, (ii) a payment made by
any other Guarantor under this Guaranty or by any other person
under any other guaranty of Borrower's Obligations or (iii) a
payment made by means of set off or other application of funds
by any Lender) shall entitle any Guarantor, by subrogation or
otherwise, to any payment by Borrower or any
other Guarantor or from
or out of any property of Borrower or any other Guarantor, and
no Guarantor shall exercise any rights or remedies against
Borrower or any other Guarantor or any property of Borrower or
any other Guarantor including, without limitation, any right
of contribution, indemnity or reimbursement by reason of any
performance by such Guarantor under this Guaranty, all of such
rights of subrogation, contribution, indemnity and
reimbursement being hereby waived by such Guarantor. The
provisions of this paragraph shall survive the termination of
this Guaranty or the release or discharge of any Guarantor
from liability hereunder. Borrower is a third party
beneficiary of the provisions of this paragraph.
Each
Guarantor hereby waives diligence, presentment, demand for
payment, filing of claims with a court in the event of
receivership or bankruptcy of Borrower, protest or notice with
respect to Borrower's Obligations and all demands whatsoever,
and covenants that this Guaranty will not be discharged,
except by complete and irrevocable payment and performance of
the obligations and liabilities contained herein. No notice to
any party, including any Guarantor, shall be required for
Lender to make demand hereunder. Such demand shall constitute
a mature and liquidated claim against such Guarantor. At any
time after maturity of Borrower's Obligations, whether by
acceleration or otherwise, Agent may, at its sole election,
proceed directly and at once, without notice, against any
Guarantor to collect and recover the full amount or any
portion of Borrower's Obligations, without first proceeding
against Borrower or any other person or against any of the
Collateral. Agent shall have the exclusive right to determine
the application of payments and credits, if any, from any
Guarantor, Borrower or any other person, on account of
Borrower's Obligations.
Agent
is hereby authorized, without notice or demand to any
Guarantor and without affecting or impairing the liability of
any Guarantor hereunder, to from time to time (i) renew,
extend, accelerate or otherwise change the time for payment
of, or other terms relating to, Borrower's Obligations or
otherwise modify, amend or change the terms of any promissory
note or other agreement, document or instrument now or
hereafter executed by Borrower and delivered to Agent and/or
Lenders; (ii) accept partial payments on Borrower's
Obligations; (iii) take and hold Collateral for the payment of
Borrower's Obligations, or for the payment of this Guaranty,
or for the payment of any other guaranties of Borrower's
Obligations or other liabilities of Borrower, and exchange,
enforce, waive and release any Collateral; (iv) apply
Collateral and direct the order or manner of sale thereof as
it may determine in its sole discretion; and (v) settle,
release, compromise, collect or otherwise liquidate Borrower's
Obligations and any Collateral in any manner.
At
any time after maturity of Borrower's Obligations, Agent may,
in its sole discretion, without notice to any Guarantor and
regardless of the acceptance
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