Corporate Guaranty

GBC FUNDING, LLC 

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Borrower:		USA DETERGENTS, INC., a Delaware corporation
Guarantors (each, a Guarantor):		APPALACHIAN OIL COMPANY, a Tennessee corporation APPCO-KY, INC., a Tennessee corporation

GBC FUNDING, LLC ("Lender") has agreed to provide certain financial accommodations to Borrower pursuant to the terms of the Loan and Security Agreement between Borrower and Lender dated as of December 27, 2006 (as amended, modified or otherwise supplemented from time to time, including pursuant to the Amendment Agreement (as defined below), the "Loan Agreement"; capitalized terms used herein but not otherwise defined herein shall have the meaning set forth in the Loan Agreement). Borrower has requested that Lender provide additional financial accommodations to Borrower pursuant to the terms of the Amendment No. 2 to Loan and Security Agreement between Borrower and Lender dated of even date herewith (as amended, modified or otherwise supplemented from time to time, the "Amendment Agreement"). As one of the conditions to providing such additional financing, Lender has required that each Guarantor guaranty all obligations of Borrower to Lender pursuant to the terms hereof.

 

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 Lender pursuant to the Loan Agreement, Guarantors unconditionally, and jointly and severally, guaranty 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 Lender (including, without limitation, all interest accruing after the filing of a proceeding under the Bankruptcy Code or any other applicable insolvency law 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 or any other applicable insolvency law), 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, the Amendment Agreement or the other Loan Documents, plus all costs and expenses (including, without limitation, all court costs and reasonable attorneys' and paralegals' fees and expenses) paid or incurred by Lender 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 Lender to collect Borrower's Obligations from Borrower or any other guarantor, (iii) Lender's waiver or consent with respect to any provision of the Loan Documents, (iv) Lender's failure to perfect or maintain its security interests in, or to preserve its rights with respect to, any of the Collateral, (v) Lender's election, in any proceeding under Chapter 11 of the Bankruptcy Code or other applicable insolvency law, of the application of Section 1111(b)(2) of the Bankruptcy Code or similar provision of any other applicable insolvency law, (vi) any borrowing or grant of a security interest by Borrower as debtor-in-possession under Section 364 of the Bankruptcy Code or similar provision of any other applicable insolvency law, (vii) the disallowance, under Section 502 of the Bankruptcy Code or similar provision of any other applicable insolvency law, of all or any of 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 any 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 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 each Guarantor shall not 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 Guarantors 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 the Guarantors. At any time after the maturity of any of Borrower's Obligations, whether by acceleration or otherwise, Lender 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. Lender 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.

 

Lender 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 Lender; (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, Lender may, in its sole discretion, without notice to any Guarantor and regardless of the acceptance of any Collateral for the payment hereof, appropriate and apply toward payments of Borrower's Obligations, (i) any indebtedness due or to become due from Lender to any Guarantor and (ii) any moneys, credits or other property belonging to any Guarantor at any time held by or coming into the possession of Lender or any affiliates of Lender, whether for deposit or otherwise.

 

Each Guarantor assumes responsibility for keeping itself informed of the financial condition of Borrower and all other guarantors of all or any of Borrower's Obligations, and of all other circumstances bearing upon the risk of nonpayment of Borrower's Obligations or any part thereof that diligent inquiry might reveal, and each Guarantor agrees that Lender shall have no duty to advise such Guarantor of information known to Lender regarding any of the foregoing. Each Guarantor acknowledges familiarity with Borrower's financial condition and represents that it has not relied on any statements made, or information furnished, by Lender or its agents in obtaining such familiarity. If Lender provides any such information to any Guarantor, Lender shall be under no obligation to (i) undertake any investigation not a part of its regular business routine, (ii) disclose any information which, pursuant to accepted or reasonable commercial finance practices, Lender wishes to maintain confidential or (iii) make any other or future disclosures of any information to such Guarantor.

 

Notwithstanding any contrary provision of this Guaranty, it is intended that neither this Guaranty nor any liens or security interests securing this Guaranty constitute a "Fraudulent Conveyance" (as defined below). Consequently, each Guarantor agrees that, if this Guaranty or any liens or security interests securing this Guaranty would, but for the application of this sentence, constitute a Fraudulent Conveyance, this Guaranty and each such lien and security interest shall be valid and enforceable only to the maximum extent that would not cause this Guaranty or such lien or security interest to constitute a Fraudulent Conveyance, and this Guaranty shall automatically be deemed to have been amended accordingly at all relevant times. For purposes hereof, a "Fraudulent Conveyance" means a fraudulent conveyance under Section 548 of the Bankruptcy Code or a fraudulent conveyance or fraudulent transfer under any applicable fraudulent conveyance or fraudulent transfer law or similar law of any state or other governmental unit as in effect from time to time or similar provision of any other applicable insolvency law.

 

Each Guarantor waives the right to assert the doctrine of marshaling with respect to any of the Collateral securing Borrower's Obligations. Each Guarantor further agrees that, to the extent Borrower makes one or more payments to Lender, or Lender receives any proceeds of Collateral, which are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to Borrower, its estate, trustee, receiver or any other party under the Bankruptcy Code or other law, that portion of Borrower's Obligations which has been paid, reduced or satisfied by such payment or proceeds shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred, and this Guaranty shall continue to be in existence and in full force and effect, irrespective of whether any evidence of indebtedness or this Guaranty has been surrendered or canceled.

 

 

Each Guarantor agrees that all payments hereunder shall be made without setoff or counterclaims, and each Guarantor waives all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor and notices of acceptance of this Guaranty. Each Guarantor further waives all notices of the existence, creation or incurring of new or additional indebtedness, arising either from additional loans extended to Borrower or otherwise, and also waives all notices that the principal amount, or any portion thereof, or any interest on any instrument or document evidencing all or any part of Borrower's Obligations is due, notices of any and all proceedings to collect from the maker, any endorser or any other guarantor of all or any part of Borrower's Obligations, or from anyone else, and, to the extent permitted by law, notices of exchange, sale, foreclosure, surrender or other handling of any Collateral securing Borrower's Obligations.

 

No delay on the part of Lender in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by Lender of any right or remedy shall preclude any further exercise thereof except as expressly set forth in a writing duly signed and delivered on Lender's behalf by an authorized officer or agent of Lender; nor shall any modification or waiver of any of the provisions of this Guaranty be binding upon Lender, except as expressly set forth in a writing duly signed and delivered on Lender's behalf by an authorized officer or agent of Lender. Lender's failure at any time or times hereafter to require strict performance by Borrower or any Guarantor of any of the provisions, warranties, terms and conditions contained in any promissory note, security agreement, agreement, guaranty, instrument or document now or at any time or times hereafter executed by Borrower or any Guarantor and delivered to Lender, shall not waive, affect or diminish any right of Lender at any time or times hereafter to demand strict performance thereof, and such right shall not be deemed to have been waived by any act or knowledge of Lender, or its agents, officers or employees, unless such waiver is contained in an instrument in writing signed by an officer or agent of Lender, and directed to Borrower or any Guarantor, as applicable, specifying such waiver. No waiver by Lender of any default shall operate as a waiver of any other default or the same default on a future occasion, and no action by Lender permitted hereunder shall in any way affect or impair Lender's rights or the obligations of any Guarantor under this Guaranty. Any determination by a court of competent jurisdiction of the amount of any principal or interest owing by Borrower to Lender shall be conclusive and binding on each Guarantor irrespective of whether such Guarantor was a party to the suit or action in which such determination was made.

 

Each Guarantor hereby represents and warrants that (i) it is in such Guarantor's direct interest to assist Borrower in procuring credit, because Borrower has a direct or indirect corporate or business relationship with Guarantor, (ii) this Guaranty has been duly and validly authorized, executed and delivered and constitutes the valid and binding obligation of such Guarantor, enforceable in accordance with its terms, and (iii) the execution and delivery of this Guaranty does not violate or constitute a default under (with or without the giving of notice, the passage of time, or both) any order, judgment, decree, instrument or agreement to which such Guarantor is a party or by which it or its assets are affected or bound.

 

 

All payments to be made hereunder by each Guarantor shall be made free and clear of deduction for any present or future tax, levy, impost, duty, charge, withholding, assessment or fee of any nature (including interest, penalties and additions thereto) that is imposed by any government or other taxing authority, but excluding, (i) taxes imposed on or measured by Lender’s capital, net income and franchise taxes or any other tax imposed on Lender for the privilege of doing business, (ii) any taxes (other than withholding taxes) that would not be imposed but for a connection between Lender and the jurisdiction imposing such taxes (other than a connection arising solely by virtue of the activities of Lender pursuant to or in respect of this Guaranty or any other Loan Document), (iii) any taxes imposed on Lender as a result of its voluntary transfer of the Loans or any interest therein, (iv) any taxes imposed on or measured by Lender's assets, gross or net income, gross or net receipts, branch profits, capital gains, excess profits, minimum taxes from tax preferences, alternative minimum taxes or accumulated earnings taxes and (v) any taxes for which Lender is actually reimbursed pursuant to any other provisions of this Guaranty (all such non-excluded taxes, levies, imposts, deductions, charges, withholdings and liabilities being collectively referred to herein as "Taxes"). If any Taxes are imposed and required to be withheld from any payment hereunder, each Guarantor shall (a) increase the amount of such payment so that Lender will receive a net amount (after deduction of all Taxes, including any Taxes on the amount of any such increase) equal to the amount due hereunder, (b) pay such Taxes to the appropriate taxing authority for the account of Lender and (c) as promptly as possible thereafter, send Lender an original receipt showing payment thereof, together with such additional documentary evidence as Lender may from time to time reasonably require. If any Guarantor fails to perform its obligations under parts (b) or (c) of the preceding sentence, each Guarantor shall indemnify Lender for any incremental Taxes, interest or penalties that may become payable by Lender as a consequence of such failure.

 

This Guaranty shall be binding upon each Guarantor and upon the successors and permitted assigns of each Guarantor and shall inure to the benefit of Lender and its successors and assigns. All references herein to Borrower shall be deemed to include its successors and permitted assigns and all references herein to Lender shall be deemed to include its successors and assigns. Borrower's and each Guarantor's successors and permitted assigns shall include a receiver, trustee, custodian of or for Borrower or such Guarantor or any of their respective assets and Borrower or such Guarantor as debtor-in-possession. All references to the singular shall be deemed to include the plural where the context so requires.

 

 

 

 

Wherever possible each provision of this Guaranty shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Guaranty shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Guaranty.

 

Each Guarantor hereby agrees that this Guaranty shall be deemed a "Loan Document" as defined in the Loan Agreement.

 

This Guaranty may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Guaranty by signing and delivering one or more counterparts.

 

IN WITNESS WHEREOF, this Guaranty has been duly executed by the undersigned Guarantors this 16th day of October, 2007.

 

	GUARANTORS:
	APPALACHIAN OIL COMPANY, a Tennessee corporation
	By	/s/ Bryan Chance
	Its
	Address

Signature Page to Appco Guaranty of USAD Facility