GUARANTY
AGREEMENT
THIS GUARANTY AGREEMENT (“ Agreement ”) is made
and entered into as of October 9, 2008, by EV Transportation, Inc.,
a Nevada corporation (“ Guarantor ”), in favor
of Plethora Partners LLC (“ Lender
”).
WITNESSETH:
A. Lender has agreed to make a $300,000 loan (the “
Loan ”) to EV Rental Cars, LLC, a California limited
liability company and a wholly owned subsidiary of Guarantor
(“ Subsidiary ”), as evidenced by that certain
Secured Promissory Note, dated as of the date hereof (the “
Note ”).
B. Lender is willing to make the Loan only on condition that
Guarantor guarantees the performance by Subsidiary of
Subsidiary’s obligations to promptly pay to Lender all
principal, interest, late charges, fees and other sums from time to
time outstanding under the Note and the performance by Subsidiary
of Subsidiary’s obligation to duly, promptly and completely
observe, perform and discharge each and every obligation, covenant
and agreement contained in the Note (the Note and any other
documents or instruments referred to therein or relating thereto
are referred to herein as the “ Loan Documents
”).
C. Guarantor acknowledges that Lender has examined, among other
things, Subsidiary’s creditworthiness and ability to repay
the Loan and Guarantor’s creditworthiness and ability to pay
Subsidiary’s obligations under the Loan Documents.
NOW, THEREFORE, in order to induce Lender to make the Loan to
Subsidiary and in consideration of the premises and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Guarantor hereby covenants and agrees as
follows:
1. Guarantor hereby absolutely, irrevocably and unconditionally
guarantees to Lender (and its successors and assigns), the payment
and performance of the Guaranteed Obligations as and when the same
shall be due and payable, whether by lapse of time, by acceleration
of maturity or otherwise. Guarantor hereby absolutely, irrevocably
and unconditionally covenants and agrees that it is liable for the
Guaranteed Obligations as a primary obligor, and that each
Guarantor shall fully perform each and every term and provision
hereof. As used herein, the term “Guaranteed
Obligations” shall mean each and all of the obligations of
Subsidiary under the Note and all of the other Loan
Documents.
2. This Agreement is irrevocable and shall remain in full force and
effect continuously from the date hereof to and until the date
(“ Termination Date ”) on which the Guaranteed
Obligations are satisfied in full, whereupon this Agreement shall
automatically terminate.
3. If at any time all or any part of any payment made by Guarantor
or received by Lender from Guarantor under or with respect to this
Agreement is avoided or recovered directly or indirectly from
Lender as a preference, fraudulent transfer, or
otherwise,
1
then
Guarantor’s obligations hereunder shall, to the extent of the
payment avoided or recovered, be deemed to have continued in
existence, notwithstanding such previous payment made by Guarantor
or receipt of payment by Lender, and Guarantor’s obligations
hereunder shall continue to be effective or be reinstated, as the
case may be, as to such payment, all as though such previous
payment by Guarantor had never been made. Notwithstanding any
payment made by Guarantor hereunder or any set-off or application
of funds of Guarantor by Lender, Guarantor shall not be entitled to
be subrogated to any of the rights of Lender against Subsidiary or
any collateral security or guarantee or right of offset held by
Lender for the payment of the Guaranteed Obligations, nor shall
Guarantor seek or be entitled to seek any contribution or
reimbursement from Subsidiary or any other guarantor in respect of
payments made by Guarantor hereunder until the Termination Date. If
any amount shall be paid to Guarantor on account of such
subrogation, contribution or reimbursement rights at any time when
all of the Guaranteed Obligations shall not have been paid in full,
such amount shall be held by Guarantor in trust for Lender,
segregated from other funds of Guarantor, and shall, immediately
upon receipt by Guarantor, be turned over to Lender, in the exact
form received by Guarantor (duly indorsed by Guarantor to Lender,
if required), to be applied against the Guaranteed Obligations,
whether matured or unmatured, in such order as Lender may
determine.
4. Guarantor WAIVES notice of acceptance of this Agreement
by Lender, and this Agreement shall immediately be binding upon
Guarantor.
5. To the fullest extent permitted by law, Guarantor hereby
WAIVES the following rights, defenses and
benefits:
(a) The defense of the statute of limitations in any action
hereunder or the performance of any obligation hereby
guaranteed;
(b) Any defense that may arise by reason of the incapacity, lack of
authority, death or disability of any other person or persons or
the failure of Lender to file or enforce a claim against the estate
(in administration, bankruptcy or any other proceeding) of any
other person or persons;
(c) Except as otherwise provided herein, diligence and all demands,
presentment for payment, notice of nonpayment, protest, notice of
protest and all other notices of any kind;
(d) Any duty or obligation on Lender’s part to perfect,
protect, retain or enforce any security for the performance of any
of the other obligations guaranteed herein;
