Exhibit 10.4
[LOGO]
CONTINUING GUARANTY
BORROWERS: SA TELECOMMUNICATIONS, INC.
U.S. COMMUNICATIONS, INC.
LONG DISTANCE NETWORK, INC.
SOUTHWEST LONG DISTANCE NETWORK, INC.
GUARANTORS: NORTH AMERICAN TELECOMMUNICATIONS CORPORATION
BALTIC STATES AND CIS VENTURES, INC.
CIS INTELLIGENCE INFORMATION SERVICES, INC.
UNIQUEST COMMUNICATIONS, INC.
DATE: DECEMBER 26, 1996
THIS CONTINUING GUARANTY is executed by the above-named guarantor(s) (jointly
and severally, the "Guarantor"), as of the above date, in favor of GREYROCK
BUSINESS CREDIT, A DIVISION OF NATIONSCREDIT COMMERCIAL CORPORATION ("GBC"),
whose address is 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, XX 00000,
with respect to the Indebtedness of the above-named borrower ("Borrower").
1. CONTINUING GUARANTY. Guarantor hereby unconditionally guarantees and
promises to pay on demand to GBC, at the address indicated above, or at such
other address as GBC may direct, in lawful money of the United States, and to
perform for the benefit of GBC, all Indebtedness of Borrower now or hereafter
owing to or held by GBC. As used herein, the term "Indebtedness" is used in its
most comprehensive sense and shall mean and include without limitation: (a) any
and all debts, duties, obligations, liabilities, representations, warranties and
guaranties of Borrower or any one or more of them, heretofore, now, or hereafter
made, incurred, or created, whether directly to GBC or acquired by GBC by
assignment or otherwise, or held by GBC on behalf of others, however arising,
whether voluntary or involuntary, due or not due, absolute or contingent,
liquidated or unliquidated, certain or uncertain, determined or undetermined,
monetary or nonmonetary, written or oral, and whether Borrower may be liable
individually or jointly with others, and regardless of whether recovery thereon
may be or hereafter become barred by any statute of limitations, discharged or
uncollectible in any bankruptcy, insolvency or other proceeding, or otherwise
unenforceable; and (b) any and all amendments, modifications, renewals and
extensions of any or all of the foregoing, including without limitation
amendments, modifications, renewals and extensions which are evidenced by any
new or additional instrument, document or agreement; and (c) any and all
attorneys' fees, court costs, and collection charges incurred in endeavoring to
collect or enforce any of the foregoing against Borrower, Guarantor, or any
other person liable thereon (whether or not suit be brought) and any other
expenses of, for or incidental to collection thereof. As used herein, the term
"Borrower" shall include any successor to the business and assets of Borrower,
and shall also include Borrower in its capacity as a debtor or debtor in
possession under the federal Bankruptcy Code, and any trustee, custodian or
receiver for Borrower or any of its assets, should Borrower hereafter become the
subject of any bankruptcy or insolvency proceeding, voluntary or involuntary;
and all indebtedness, liabilities and obligations incurred by any such person
shall be included in the Indebtedness guaranteed hereby. This Guaranty is given
in consideration for credit and other financial accommodations which may, from
time to time, be given by GBC to Borrower in GBC's sole discretion, but
Guarantor acknowledges and agrees that acceptance by GBC of this Guaranty shall
not constitute a commitment of any kind by GBC to extend such credit or other
financial accommodation to Borrower or to permit Borrower to incur Indebtedness
to GBC. All sums due under this Guaranty shall bear interest from the date due
until the date paid at the highest rate charged with respect to any of the
Indebtedness.
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2. WAIVERS. Guarantor hereby waives: (a) presentment for payment, notice of
dishonor, demand, protest, and notice thereof as to any instrument, and all
other notices and demands to which Guarantor might be entitled, including
without limitation notice of all of the following: the acceptance hereof; the
creation, existence, or acquisition of any Indebtedness; the amount of the
Indebtedness from time to time outstanding; any foreclosure sale or other
disposition of any property which secures any or all of the Indebtedness or
which secures the obligations of any other guarantor of any or all of the
Indebtedness; any adverse change in Borrower's financial position; any other
fact which might increase Guarantor's risk; any default, partial payment or non-
payment of all or any part of the Indebtedness; the occurrence of any other
Event of Default (as hereinafter defined); any and all agreements and
arrangements between GBC and Borrower and any changes, modifications, or
extensions thereof, and any revocation, modification or release of any guaranty
of any or all of the Indebtedness by any person (including without limitation
any other person signing this Guaranty); (b) any right to require GBC to
institute suit against, or to exhaust its rights and remedies against, Borrower
or any other person, or to proceed against any property of any kind which
secures all or any part of the Indebtedness, or to exercise any right of offset
or other right with respect to any reserves, credits or deposit accounts held by
or maintained with GBC or any indebtedness of GBC to Borrower, or to exercise
any other right or power, or pursue any other remedy GBC may have; (c) any
defense arising by reason of any disability or other defense of Borrower or any
other guarantor or any endorser, co-maker or other person, or by reason of the
cessation from any cause whatsoever of any liability of Borrower or any other
guarantor or any endorser, co-maker or other person, with respect to all or any
part of the Indebtedness, or by reason of any act or omission of GBC or others
which directly or indirectly results in the discharge or release of Borrower or
any other guarantor or any other person or any Indebtedness or any security
therefor, whether by operation of law or otherwise; (d) any defense arising by
reason of any failure of GBC to obtain, perfect, maintain or keep in force any
security interest in, or lien or encumbrance upon, any property of Borrower or
any other person; (e) any defense based upon any failure of GBC to give
Guarantor notice of any sale or other disposition of any property securing any
or all of the Indebtedness, or any defects in any such notice that may be given,
or any failure of GBC to comply with any provision of applicable law in
enforcing any security interest in or lien upon any property securing any or all
of the Indebtedness including, but not limited to, any failure by GBC to dispose
of any property securing any or all of the Indebtedness in a commercially
reasonable manner; (f) any defense based upon or arising out of any bankruptcy,
insolvency, reorganization, arrangement, readjustment of debt, liquidation or
dissolution proceeding commenced by or against Borrower or any other guarantor
or any endorser, co-maker or other person, including without limitation any
discharge of, or bar against collecting, any of the Indebtedness (including
without limitation any interest thereon), in or as a result of any such
proceeding; and (g) the benefit of any and all statutes of limitation with
respect to any action based upon, arising out of or related to this Guaranty.
Until all of the Indebtedness has been paid, performed, and discharged in full,
nothing shall discharge or satisfy the liability of Guarantor hereunder except
the full performance and payment of all of the Indebtedness. If any claim is
ever made upon GBC for repayment or recovery of any amount or amounts received
by GBC in payment of or on account of any of the Indebtedness, because of any
claim that any such payment constituted a preferential transfer or fraudulent
conveyance, or for any other reason whatsoever, and GBC repays all or part of
said amount by reason of any judgment, decree or order of any court or
administrative body having jurisdiction over GBC or any of its property, or by
reason of any settlement or compromise of any such claim effected by GBC with
any such claimant (including without limitation the Borrower), then and in any
such event, Guarantor agrees that any such judgment, decree, order, settlement
and compromise shall be binding upon Guarantor, notwithstanding any revocation
or release of this Guaranty or the cancellation of any note or other instrument
evidencing any of the Indebtedness, or any release of any of the Indebtedness,
and the Guarantor shall be and remain liable to GBC under this Guaranty for the
amount so repaid or recovered, to the same extent as if such amount had never
originally been received by GBC, and the provisions of this sentence shall
survive, and continue in effect, notwithstanding any revocation or release of
this Guaranty. Until all of the Indebtedness has been irrevocably paid and
performed in full, Guarantor hereby expressly and unconditionally waives all
rights of subrogation, reimbursement and indemnity of every kind against
Borrower, and all rights of recourse to any assets or property of Borrower, and
all rights to any collateral or security held for the payment and performance of
any Indebtedness, including (but not limited to) any of the foregoing rights
which Guarantor may have under any present or future document or agreement with
any Borrower or other person, and including (but not limited to) any of the
foregoing rights which Guarantor may have under any equitable doctrine of
subrogation, implied contract, or unjust enrichment, or any other equitable or
legal doctrine. Neither GBC, nor any of its directors, officers, employees,
agents, attorneys or any other person affiliated with or representing GBC shall
be liable for any claims, demands, losses or damages, of any kind whatsoever,
made, claimed, incurred or suffered by Guarantor or any other party through the
ordinary negligence of GBC, or any of its directors, officers, employees,
agents, attorneys or any other person affiliated with or representing GBC.
3. CONSENTS. Guarantor hereby consents and agrees that, without notice to or
by Guarantor and without affecting or impairing in any way the obligations or
liability of Guarantor hereunder, GBC may, from time to time before or after
revocation of this Guaranty, do any one or more of the following in GBC's sole
and absolute discretion: (a) accelerate, accept partial payments of, compromise
or settle, renew, extend the time for the payment, discharge, or performance of,
refuse to enforce, and release all or any parties to, any or all of the
Indebtedness; (b) grant any other indulgence to Borrower or any other person in
respect of any or all of the Indebtedness or any other matter;
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(c) accept, release, waive, surrender, enforce, exchange, modify, impair, or
extend the time for the performance, discharge, or payment of, any and all
property of any kind securing any or all of the Indebtedness or any guaranty
of any or all of the Indebtedness, or on which GBC at any time may have a
lien, or refuse to enforce its rights or make any compromise or settlement or
agreement therefor in respect of any or all of such property; (d) substitute
or add, or take any action or omit to take any action which results in the
release of, any one or more endorsers or guarantors of all or any part of the
Indebtedness, including, without limitation one or more parties to this
Guaranty, regardless of any destruction or impairment of any right of
contribution or other right of Guarantor; (e) amend, alter or change in any
respect whatsoever any term or provision relating to any or all of the
Indebtedness, including the rate of interest thereon; (f) apply any sums
received from Borrower, any other guarantor, endorser, or co-signer, or from
the disposition of any collateral or security, to any indebtedness whatsoever
owing from such person or secured by such collateral or security, in such
manner and order as GBC determines in its sole discretion, and regardless of
whether such indebtedness is part of the Indebtedness, is secured, or is due
and payable; (g) apply any sums received from Guarantor or from the
disposition of any collateral or security securing the obligations of
Guarantor, to any of the Indebtedness in such manner and order as GBC
determines in its sole discretion, regardless of whether or not such
Indebtedness is secured or is due and payable. Guarantor consents and agrees
that GBC shall be under no obligation to marshal any assets in favor of
Guarantor, or against or in payment of any or all of the Indebtedness.
Guarantor further consents and agrees that GBC shall have no duties or
responsibilities whatsoever with respect to any property securing any or all
of the Indebtedness. Without limiting the generality of the foregoing, GBC
shall have no obligation to monitor, verify, audit, examine, or obtain or
maintain any insurance with respect to, any property securing any or all of
the Indebtedness.
4. ACCOUNT STATED. GBC's books and records showing the account between it and
the Borrower shall be admissible in evidence in any action or proceeding as
prima facie proof of the items therein set forth. GBC's monthly statements
rendered to the Borrower shall be binding upon the Guarantor (whether or not the
Guarantor receives copies thereof), and shall constitute an account stated
between GBC and the Borrower, unless GBC receives a written statement of the
Borrower's exceptions within 30 days after the statement was mailed to the
Borrower. The Guarantor assumes full responsibility for obtaining copies of
such monthly statements from the Borrower, if the Guarantor desires such copies.
5. EXERCISE OF RIGHTS AND REMEDIES; FORECLOSURE OF TRUST DEEDS. Guarantor
consents and agrees that, without notice to or by Guarantor and without
affecting or impairing in any way the obligations or liability of Guarantor
hereunder, GBC may, from time to time*, before or after revocation of this
Guaranty, exercise any right or remedy it may have with respect to any or all of
the Indebtedness or any property securing any or all of the Indebtedness or any
guaranty thereof, including without limitation judicial foreclosure, nonjudicial
foreclosure, exercise of a power of sale, and taking a deed, assignment or
transfer in lieu of foreclosure as to any such property, and Guarantor expressly
waives any defense based upon the exercise of any such right or remedy,
notwithstanding the effect thereof upon any of Guarantor's rights, including
without limitation, any destruction of Guarantor's right of subrogation against
Borrower and any destruction of Guarantor's right of contribution or other right
against any other guarantor of any or all of the Indebtedness or against any
other person, whether by operation of Sections 580a, 580d or 726 of the
California Code of Civil Procedure, or any comparable provisions of the laws of
any other jurisdiction, or any other statutes or rules of law now or hereafter
in effect, or otherwise. Without limiting the generality of the foregoing, (a)
Guarantor waives all rights and defenses arising out of an election of remedies
by GBC, even though that election of remedies, such as a nonjudicial foreclosure
with respect to security for any of the Indebtedness, has destroyed the
guarantor's rights of subrogation and reimbursement against the principal by the
operation of Section 580d of the Code of Civil Procedure or otherwise. (b)
Guarantor further waives all rights and defenses arising out of an election of
remedies by GBC, even though that election of remedies, such as a nonjudicial
foreclosure with respect to security for any of the Indebtedness, has destroyed
the guarantor's rights of subrogation, reimbursement and contribution against
any other guarantor of the guaranteed obligation, by the operation of Section
580d of the Code of Civil Procedure or otherwise. (c) Guarantor understands
that if GBC forecloses any present or future trust deed, which secures any or
all of the Indebtedness or which secures any other guaranty of any or all of the
Indebtedness, by nonjudicial foreclosure, Guarantor may, as a result, have a
complete defense to liability under this Guaranty, based on the legal doctrine
of estoppel and Sections 580a, 580d or 726 of the California Code of Civil
Procedure, and GUARANTOR HEREBY EXPRESSLY WAIVES ALL SUCH DEFENSES. (d)
Guarantor understands and agrees that, in the event GBC in its sole discretion
forecloses any trust deed now or hereafter securing any or all of the
Indebtedness, by nonjudicial foreclosure, Guarantor will remain liable to GBC
for any deficiency, even though Guarantor will lose his right of subrogation
against the Borrower, and even though Guarantor will be unable to recover from
the Borrower the amount of the deficiency for which Guarantor is liable, and
even though Guarantor may have retained his right of subrogation against
Borrower if GBC had foreclosed said trust deed by judicial foreclosure as
opposed to nonjudicial foreclosure, and even though absent the waivers set forth
herein Guarantor may have had a complete defense to any liability for any
deficiency hereunder. (e) Guarantor understands and agrees that, in the event
GBC in its sole discretion forecloses any trust deed now or hereafter securing
any other guaranty of any or all of the Indebtedness, by nonjudicial
foreclosure, Guarantor will remain liable to GBC for any deficiency, even though
Guarantor will lose his right of subrogation or contribution against the other
guarantor, and even though Guarantor will be unable to recover from the other
guarantor any part of the
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deficiency for which Guarantor is liable, and even though Guarantor may have
retained his right of subrogation or contribution against the other guarantor
if GBC had foreclosed said trust deed by judicial foreclosure as opposed to
nonjudicial foreclosure, and even though absent the waivers set forth herein
Guarantor may have had a complete defense to any liability for any deficiency
hereunder.
*AFTER AN EVENT OF DEFAULT WHICH IS CONTINUING
6. ACCELERATION. Notwithstanding the terms of all or any part of the
Indebtedness, the obligations of the Guarantor hereunder to pay and perform all
of the Indebtedness shall, at the option of GBC, immediately become due and
payable, without notice, and without regard to the expressed maturity of any of
the Indebtedness, in the event: * Guarantor shall revoke this Guaranty or
contest or deny liability under this Guaranty. All of the foregoing are
hereinafter referred to as "Events of Default".
*GUARANTOR FAILS TO PAY ANY OF THE INDEBTEDNESS WHEN DUE, OR ANY EVENT OF
DEFAULT OCCURS UNDER ANY PRESENT OR FUTURE LOAN OR OTHER AGREEMENT BETWEEN GBC
AND ANY BORROWER, OR ANY EVENT OF DEFAULT OCCURS UNDER THE SECURITY AGREEMENT OF
EVEN DATE BETWEEN GUARANTOR AND GBC, OR
7. RIGHT TO ATTACHMENT REMEDY. Guarantor agrees that, notwithstanding the
existence of any property securing any or all of the Indebtedness, GBC shall
have all of the rights of an unsecured creditor of Guarantor, including without
limitation the right to obtain a temporary protective order and writ of
attachment against Guarantor with respect to any sums due under this Guaranty.
Guarantor further agrees that in the event any property secures the obligations
of Guarantor under this Guaranty, to the extent that GBC, in its sole and
absolute discretion, determines prior to the disposition of such property that
the amount to be realized by GBC therefrom may be less than the indebtedness of
the Guarantor under this Guaranty, GBC shall have all the rights of an unsecured
creditor against Guarantor, including without limitation the right of GBC, prior
to the disposition of said property, to obtain a temporary protective order and
writ of attachment against Guarantor. Guarantor waives the benefit of Section
483.010(b) of the California Code of Civil Procedure and of any and all other
statutes and rules of law now or hereafter in effect requiring GBC to first
resort to or exhaust all such collateral before seeking or obtaining any
attachment remedy against Guarantor. GBC shall have no liability to Guarantor
as a result thereof, whether or not the actual deficiency realized by GBC is
less than the anticipated deficiency on the basis of which GBC obtains a
temporary protective order or writ of attachment.
8. INDEMNITY. Guarantor hereby agrees to indemnify GBC and hold GBC harmless
from and against any and all claims, debts, liabilities, demands, obligations,
actions, causes of action, penalties, costs and expenses (including without
limitation * attorneys' fees), of every nature, character and description, which
GBC may sustain or incur based upon or arising out of any of the Indebtedness,
any actual or alleged failure to collect and pay over any withholding or other
tax relating to Borrower or its employees, any relationship or agreement between
GBC and Borrower, any actual or alleged failure of GBC to comply with any writ
of at-
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tachment or other legal process relating to Borrower or any of its property,
or any other matter, cause or thing whatsoever occurred, done, omitted or
suffered to be done by GBC relating in any way to Borrower or the Indebtedness
(except any such amounts sustained or incurred as the result of the gross
negligence or willful misconduct of GBC or any of its directors, officers,
employees, agents, attorneys, or any other person affiliated with or
representing GBC). Notwithstanding any provision in this Guaranty to the
contrary, the indemnity agreement set forth in this Section shall survive any
termination or revocation of this Guaranty and shall for all purposes
continue in full force and effect.
*REASONABLE
9. SUBORDINATION. *Any and all rights of Guarantor under any and all debts,
liabilities and obligations owing from Borrower to Guarantor, including any
security for and guaranties of any such obligations, whether now existing or
hereafter arising, are hereby subordinated in right of payment to the prior
payment in full of all of the Indebtedness. If any Event of Default has
occurred, Borrower and any assignee, trustee in bankruptcy, receiver, or any
other person having custody or control over any or all of Borrower's property
are hereby authorized and directed to pay to GBC the entire unpaid balance of
the Indebtedness before making any payments whatsoever to Guarantor, whether
as a creditor, shareholder, or otherwise; and insofar as may be necessary for
that purpose, Guarantor hereby assigns and transfers to GBC all rights to any
and all debts, liabilities and obligations owing from Borrower to Guarantor,
including any security for and guaranties of any such obligations, whether now
existing or hereafter arising, including without limitation any payments,
dividends or distributions out of the business or assets of Borrower. Any
amounts received by Guarantor in violation of the foregoing provisions shall
be received and held as trustee for the benefit of GBC and shall forthwith be
paid over to GBC to be applied to the Indebtedness in such order and sequence
as GBC shall in its sole discretion determine, without limiting or affecting
any other right or remedy which GBC may have hereunder or otherwise and
without otherwise affecting the liability of Guarantor hereunder. Guarantor
hereby expressly waives any right to set-off or assert any counterclaim
against Borrower.
*AFTER THE OCCURRENCE AND DURING THE CONTINUANCE OF AN EVENT OF DEFAULT
10. REVOCATION. This is a Continuing Guaranty relating to all of the
Indebtedness, including Indebtedness arising under successive transactions which
from time to time continue the Indebtedness or renew it after it has been
satisfied. Guarantor waives all benefits of California Civil Code Section 2815,
and agrees that the obligations of Guarantor hereunder may not be terminated or
revoked in any manner except by giving 90 days' advance written notice of
revocation to GBC at its address above by registered first-class U.S. mail,
postage prepaid, return receipt requested, and only as to new loans made by GBC
to Borrower more than 90 days after actual receipt of such written notice by
GBC. No termination or revocation of this Guaranty shall be effective until
90 days following the date of actual receipt of said written notice of
revocation by GBC. Notwithstanding such written notice of revocation or any
other act of Guarantor or any other event or circumstance, Guarantor agrees that
this Guaranty and all consents, waivers and other provisions hereof shall
continue in full force and effect as to any and all Indebtedness which is
outstanding on or before the 90th day following actual receipt of said written
notice of revocation by GBC, and all extensions, renewals and modifications of
said Indebtedness (including without limitation amendments, extensions, renewals
and modifications which are evidenced by new or additional instruments,
documents or agreements executed before or after expiration of said 90-day
period), and all interest thereon, accruing before or after expiration of said
90-day period, and all attorneys' fees, court costs and collection charges,
incurred before or after expiration of said 90-day period, in endeavoring to
collect or enforce any of the foregoing against Borrower, Guarantor or any other
person liable thereon (whether or not suit be brought) and any other expenses
of, for or incidental to collection thereof.
11. INDEPENDENT LIABILITY. Guarantor hereby agrees that one or more successive
or concurrent actions may be brought hereon against Guarantor, in the same
action in which Borrower may be sued or in separate actions, as often as deemed
advisable by GBC. The liability of Guarantor hereunder is exclusive and
independent of any other guaranty of any or all of the Indebtedness whether
executed by Guarantor or by any other guarantor (including without limitation
any other persons signing this Guaranty). The liability of Guarantor hereunder
shall not be affected, revoked, impaired, or reduced by any one or more of the
following: (a) the fact that the Indebtedness exceeds the maximum amount of
Guarantor's liability, if any, specified herein or elsewhere (and no agreement
specifying a maximum amount of Guarantor's liability shall be enforceable unless
set forth in a writing signed by GBC or set forth in this Guaranty); or (b) any
direction as to the application of payment by Borrower or by any other party; or
(c) any other continuing or restrictive guaranty or undertaking or any
limitation on the liability of any other guarantor (whether under this Guaranty
or under any other agreement); or (d) any payment on or reduction of any such
other guaranty or undertaking; or (e) any revocation, amendment, modification or
release of any such other guaranty or undertaking; or (f) any dissolution or
termination of, or increase, decrease, or change in membership of any Guarantor
which is a partnership. Guarantor hereby expressly represents that he was not
induced to give this Guaranty by the fact that there are or may be other
guarantors either under this Guaranty or otherwise, and Guarantor agrees that
any release of any one or more of such other guarantors shall not release
Guarantor from his obligations hereunder either in full or to any lesser extent.
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12. FINANCIAL CONDITION OF BORROWER. Guarantor is fully aware of the financial
condition of Borrower and is executing and delivering this Guaranty at
Borrower's request and based solely upon his own independent investigation of
all matters pertinent hereto, and Guarantor is not relying in any manner upon
any representation or statement of GBC with respect thereto. Guarantor
represents and warrants that he is in a position to obtain, and Guarantor hereby
assumes full responsibility for obtaining, any additional information concerning
Borrower's financial condition and any other matter pertinent hereto as
Guarantor may desire, and Guarantor is not relying upon or expecting GBC to
furnish to him any information now or hereafter in GBC's possession concerning
the same or any other matter. By executing this Guaranty, Guarantor knowingly
accepts the full range of risks encompassed within a contract of continuing
guaranty, which risks Guarantor acknowledges include without limitation the
possibility that Borrower will incur additional Indebtedness for which Guarantor
will be liable hereunder after Borrower's financial condition or ability to pay
such Indebtedness has deteriorated and/or after bankruptcy or insolvency
proceedings have been commenced by or against Borrower. Guarantor shall have no
right to require GBC to obtain or disclose any information with respect to the
Indebtedness, the financial condition or character of Borrower, the existence of
any collateral or security for any or all of the Indebtedness, the filing by or
against Borrower of any bankruptcy or insolvency proceeding, the existence of
any other guaranties of all or any part of the Indebtedness, any action or non-
action on the part of GBC, Borrower, or any other person, or any other matter,
fact, or occurrence.
13. REPORTS AND FINANCIAL STATEMENTS OF GUARANTOR. Guarantor shall, at its
sole cost and expense, at any time and from time to time, prepare or cause to be
prepared, and provide to GBC upon GBC's request (i) such * financial statements
** and reports concerning Guarantor for such periods of time as GBC may
designate, (ii) any other information concerning Guarantor's business, financial
condition or affairs as GBC may request, and (iii) copies of any and all
foreign, federal, state and local tax returns and reports of or relating to
Guarantor as GBC may from time to time request. Guarantor hereby intentionally
and knowingly waives any and all rights and privileges it may have not to
divulge or deliver said tax returns, reports and other information which are
requested by GBC hereunder or in any litigation in which GBC may be involved
relating directly or indirectly to Borrower or to Guarantor. Guarantor further
agrees immediately to give written notice to GBC of any adverse change in
Guarantor's financial condition and of any condition or event which constitutes
an Event of Default under this Guaranty. All reports and information furnished
to GBC hereunder shall be complete, accurate and correct in all respects.
Whenever requested, Guarantor shall further deliver to GBC a certificate signed
by Guarantor (and, if Guarantor is a partnership, by all general partners of
Guarantor, in their individual capacities, and, if Guarantor is a corporation,
by the president and secretary of Guarantor, in their individual capacities)
warranting and representing that all reports, financial statements and other
documents and information delivered or caused to be delivered to GBC under this
Guaranty, are complete, correct and thoroughly and accurately present the
financial condition of Guarantor, and that there exists on the date of delivery
of said certificate to GBC no condition or event which constitutes an Event of
Default under this Guaranty.
*CONSOLIDATED AND CONSOLIDATING
**OF GUARANTOR AND BORROWERS
14. REPRESENTATIONS AND WARRANTIES. Guarantor hereby represents and warrants
that (i) it is in Guarantor's direct interest to assist Borrower in procuring
credit, because Borrower is an affiliate of Guarantor, furnishes goods or
services to Guarantor, purchases or acquires goods or services from Guarantor,
and/or otherwise 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
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 Guarantor is a party or by
which it or its assets are affected or bound.
15. COSTS. Whether or not suit be instituted, Guarantor agrees to reimburse
GBC on demand for all reasonable attorneys' fees and all other reasonable costs
and expenses incurred by GBC in enforcing this Guaranty, or arising out of or
relating in any way to this Guaranty, or in enforcing any of the Indebtedness
against Borrower, Guarantor, or any other person, or in connection with any
property of any kind securing all or any part of the Indebtedness. Without
limiting the generality of the foregoing, and in addition thereto, Guarantor
shall reimburse GBC on demand for all reasonable attorneys' fees and costs GBC
incurs in any way relating to Guarantor, Borrower or the Indebtedness, in order
to: obtain legal advice; enforce or seek to enforce any of its rights;
commence, intervene in, respond to, or defend any action or proceeding; file,
prosecute or defend any claim or cause of action in any action or proceeding
(including without limitation any probate claim, bankruptcy claim, third-party
claim, secured creditor claim, reclamation complaint, and complaint for relief
from any stay under the Bankruptcy Code or otherwise); protect, obtain
possession of, sell, lease, dispose of or otherwise enforce any security
interest in or lien on any property of any kind securing any or all of the
Indebtedness; or represent GBC in any litigation with respect to Borrower's or
Guarantor's affairs. In the event either GBC or Guarantor files any lawsuit
against the other predicated on a breach of this Guaranty, the prevailing party
in such action shall be entitled to recover its * attorneys' fees and costs of
suit from the non-prevailing party.
*REASONABLE
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GREYROCK BUSINESS CREDIT CONTINUING GUARANTY
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16. NOTICES. Any notice which a party shall be required or shall desire to
give to the other hereunder (except for notice of revocation, which shall be
governed by Section 10 of this Guaranty) shall be given by personal delivery or
by telecopier or by depositing the same in the United States mail, first class
postage pre-paid, addressed to GBC at its address set forth in the heading of
this Guaranty and to Guarantor at his address set forth under his signature
hereon, and such notices shall be deemed duly given on the date of personal
delivery or one day after the date telecopied or 3 business days after the date
of mailing as aforesaid. GBC and Guarantor may change their address for
purposes of receiving notices hereunder by giving written notice thereof to the
other party in accordance herewith. Guarantor shall give GBC immediate written
notice of any change in his address.
17. CLAIMS. Guarantor agrees that any claim or cause of action by Guarantor
against GBC, or any of GBC's directors, officers, employees, agents, accountants
or attorneys, based upon, arising from, or relating to this Guaranty, or any
other present or future agreement between GBC and Guarantor or between GBC and
Borrower, or any other transaction contemplated hereby or thereby or relating
hereto or thereto, or any other matter, cause or thing whatsoever, whether or
not relating hereto or thereto, occurred, done, omitted or suffered to be done
by GBC, or by GBC's directors, officers, employees, agents, accountants or
attorneys, whether sounding in contract or in tort or otherwise, shall be barred
unless asserted by Guarantor by the commencement of an action or proceeding in
a court of competent jurisdiction within Los Angeles County, California, by
the filing of a complaint within one year after the first act, occurrence or
omission upon which such claim or cause of action, or any part thereof, is based
and service of a summons and complaint on an officer of GBC or any other person
authorized to accept service of process on behalf of GBC, within 30 days
thereafter. Guarantor agrees that such one year period is a reasonable and
sufficient time for Guarantor to investigate and act upon any such claim or
cause of action. The one year period provided herein shall not be waived,
tolled, or extended except by a specific written agreement of GBC. This
provision shall survive any termination of this Guaranty or any other agreement.
18. CONSTRUCTION; SEVERABILITY. If more than one person has executed this
Guaranty, the term "Guarantor" as used herein shall be deemed to refer to all
and any one or more such persons and their obligations hereunder shall be joint
and several. Without limiting the generality of the foregoing, if more than one
person has executed this Guaranty, this Guaranty shall in all respects be
interpreted as though each person signing this Guaranty had signed a separate
Guaranty, and references herein to "other guarantors" or words of similar effect
shall include without limitation other persons signing this Guaranty. As used
in this Guaranty, the term "property" is used in its most comprehensive sense
and shall mean all property of every kind and nature whatsoever, including
without limitation real property, personal property, mixed property, tangible
property and intangible property. Words used herein in the masculine gender
shall include the neuter and feminine gender, words used herein in the neuter
gender shall include the masculine and feminine, words used herein in the
singular shall include the plural and words used in the plural shall include the
singular, wherever the context so reasonably requires. If any provision of this
Guaranty or the application thereof to any party or circumstance is held
invalid, void, inoperative or unenforceable, the remainder of this Guaranty and
the application of such provision to other parties or circumstances shall not be
affected thereby, the provisions of this Guaranty being severable in any such
instance.
19. GENERAL PROVISIONS. GBC shall have the right to seek recourse against
Guarantor to the full extent provided for herein and in any other instrument or
agreement evidencing obligations of Guarantor to GBC, and against Borrower to
the full extent of the Indebtedness. No election in one form of action or
proceeding, or against any party, or on any obligation, shall constitute a
waiver of GBC's right to proceed in any other form of action or proceeding or
against any other party. The failure of GBC to enforce any of the provisions of
this Guaranty at any time or for any period of time shall not be construed to be
a waiver of any such provision or the right thereafter to enforce the same. All
remedies hereunder shall be cumulative and shall be in addition to all rights,
powers and remedies given to GBC by law or under any other instrument or
agreement. Time is of the essence in the performance by Guarantor of each and
every obligation under this Guaranty. If Borrower is a corporation, partnership
or other entity, Guarantor hereby agrees that GBC shall have no obligation to
inquire into the power or authority of Borrower or any of its officers,
directors, partners, or agents acting or purporting to act on its behalf, and
any Indebtedness made or created in reliance upon the professed exercise of any
such power or authority shall be included in the Indebtedness guaranteed hereby.
This Guaranty is the entire and only agreement between Guarantor and GBC with
respect to the guaranty of the Indebtedness of Borrower by Guarantor, and all
representations, warranties, agreements, or undertakings heretofore or
contemporaneously made, which are not set forth herein, are superseded hereby.
No course of dealings between the parties, no usage of the trade, and no parol
or extrinsic evidence of any nature shall be used or be relevant to supplement
or explain or modify any term or provision of this Guaranty. There are no
conditions to the full effectiveness of this Guaranty. The terms and provisions
hereof may not be waived, altered, modified, or amended except in a writing
executed by Guarantor and a duly authorized officer of GBC. All rights,
benefits and privileges hereunder shall inure to the benefit of and be
enforceable by GBC and its successors and assigns and shall be binding upon
Guarantor and his heirs, executors, administrators, personal representatives,
successors and assigns. Neither the death of Guarantor nor notice thereof to
GBC shall terminate this Guaranty as to his estate, and, notwithstanding the
death of Guarantor or notice thereof to GBC, this Guaranty shall continue in
full force and effect with respect to all Indebtedness, including without
limitation Indebtedness incurred or created after the death of Guarantor and
notice thereof to GBC. Section headings are
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GREYROCK BUSINESS CREDIT CONTINUING GUARANTY
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used herein for convenience only. Guarantor acknowledges that the same may
not describe completely the subject matter of the applicable Section, and the
same shall not be used in any manner to construe, limit, define or interpret
any term or provision hereof.
20. GOVERNING LAW; VENUE AND JURISDICTION. This instrument and all acts and
transactions pursuant or relating hereto and all rights and obligations of the
parties hereto shall be governed, construed, and interpreted in accordance with
the internal laws of the State of California. In order to induce GBC to accept
this Guaranty, and as a material part of the consideration therefor, Guarantor
(i) agrees that all actions or proceedings relating directly or indirectly
hereto shall, at the option of GBC, be litigated in courts located within Los
Angeles County, California, (ii) consents to the jurisdiction of any such court
and consents to the service of process in any such action or proceeding by
personal delivery or any other method permitted by law; and (iii) waives any and
all rights Guarantor may have to transfer or change the venue of any such action
or proceeding.
21. MUTUAL WAIVER OF RIGHT TO JURY TRIAL. GBC AND GUARANTOR HEREBY WAIVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM, LAWSUIT OR PROCEEDING BASED UPON,
ARISING OUT OF, OR IN ANY WAY RELATING TO: (i) THIS GUARANTEE OR ANY SUPPLEMENT
OR AMENDMENT THERETO; OR (ii) ANY OTHER PRESENT OR FUTURE INSTRUMENT OR
AGREEMENT BETWEEN GBC AND GUARANTOR ; OR (iii) ANY BREACH, CONDUCT, ACTS OR
OMISSIONS OF GBC OR GUARANTOR OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSON AFFILIATED WITH OR REPRESENTING
GBC OR GUARANTOR; IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT
OR TORT OR OTHERWISE.
22. RECEIPT OF COPY. Guarantor acknowledges receipt of a copy of this
Guaranty.
Guarantor Signature:
North American Telecommunications Corporation
By /s/ J. Xxxxx Xxxxxxx
--------------------------
Title Vice President
-----------------------
Address: 0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
Baltic States and CIS Ventures, Inc.
By /s/ J. Xxxxx Xxxxxxx
--------------------------
Title Vice President
-----------------------
Address: 0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
Guarantor Signature:
CIS Intelligence Information Services, Inc.
By /s/ J. Xxxxx Xxxxxxx
--------------------------
Title Vice President
-----------------------
Address: 0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
Guarantor Signature:
Uniquest Communications, Inc.
By /s/ J. Xxxxx Xxxxxxx
--------------------------
Title Vice President
-----------------------
Address: 0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
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