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EXHIBIT 99.5
Greyrock
Business
Credit
A NationsBank Company
CONTINUING GUARANTY
BORROWER: QUARTERDECK CORPORATION
GUARANTOR(S): DATASTORM TECHNOLOGIES, INC.
DATE: APRIL 1, 1997
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,
Xxxxxxxxxx 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, obligations, and liabilities 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
reasonable 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 reasonable 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
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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
to Borrower with respect to any of the Indebtedness.
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
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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; (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 60 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,
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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 its 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 its 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 its 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
deficiency for which Guarantor is liable, and even though Guarantor may have
retained its 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.
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: (a) any warranty, representation, statement,
report, or certificate made or delivered to GBC by Guarantor, or any of their
respective officers, partners, employees, or agents, is incorrect, false,
untrue, or misleading when given in any material respect as of the time made or
deemed made; or (b) Guarantor shall fail to pay or perform when due all or any
part of the Indebtedness; or (c) Guarantor shall fail to pay or perform when
due any indebtedness or obligation of Guarantor to GBC or to any parent,
subsidiary or corporate affiliate of GBC, whether under this Guaranty or any
other instrument, document, or agreement heretofore or hereafter entered into;
or (d) any event shall occur which may or does result in the acceleration of
the maturity of any material indebtedness of Guarantor to others (regardless of
any requirement of notice, opportunity to cure or other condition prior to the
exercise of any right of acceleration); or (e) Guarantor shall fail promptly to
perform or comply with any term or condition of any agreement with any third
party which reasonably may be expected to have a Material Adverse Effect (as
defined in Section 13 below); or (f) there shall be made or exist any levy,
assessment, attachment, seizure, lien, or encumbrance for any cause or reason
whatsoever upon all or any part of the property of Guarantor (unless discharged
by payment, release or bond not more than 30 days after such event has
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occurred); or (g) there shall occur the dissolution, termination of existence,
insolvency, or business failure of Guarantor, or the appointment of a receiver,
trustee or custodian for Guarantor or all or any part of the property of either
of them, or the assignment for the benefit of creditors by Guarantor, or the
commencement of any proceeding by or against Guarantor under any
reorganization, bankruptcy, insolvency, arrangement, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction, now or hereafter
in effect (in the case of any involuntary proceeding, if not cured by the
dismissal thereof within 45 days after the date commenced); or (h) Guarantor
shall generally not pay its debts as they become due or shall enter into any
agreement (whether written or oral), or offer to enter into any such agreement,
with all or a significant number of its creditors regarding any moratorium or
other indulgence with respect to its debts or the participation of such
creditors or their representatives in the supervision, management, or control
of the business of either of them; or (i) Guarantor shall conceal, remove or
permit to be concealed or removed any part of its property, with intent to
hinder, delay or defraud its creditors, or make or suffer any transfer of any
of its property which may be fraudulent under any bankruptcy, fraudulent
conveyance or similar law, or shall make any transfer of its property to or for
the benefit of any creditor at a time when other creditors similarly situated
have not been and will not be paid; or (j) the board of directors or
shareholders of Guarantor shall adopt any resolution or plan for its
dissolution or the liquidation of all or substantially all of its assets,
except that Guarantor may merge with, consolidate into or transfer all or
substantially all of its assets to another of Borrower's wholly owned
subsidiaries which is a guarantor of the Indebtedness or to the Borrower and in
connection therewith Guarantor may be liquidated or dissolved; or (k) 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."
7. RIGHT TO ATTACHMENT REMEDY. Xxxxxxxxx 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 attachment 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.
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. No payment in respect of
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any such subordinated obligations shall at any time be made to or accepted by
Guarantor if at the time of such payment any Indebtedness is outstanding. 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.
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 it 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 its 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 Xxxxxxxx and is executing and delivering this Guaranty
at Borrower's request and based solely upon its 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 it 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 Xxxxxxxx'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, provide to GBC
upon GBC's reasonable prior request: (i) such financial statements and reports
concerning Guarantor for such periods of time as GBC may reasonably designate,
(ii) any other information concerning Guarantor's business, financial condition
or affairs as GBC may reasonably 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 promptly (and in any event within one business day) to give written
notice to GBC of any Material Adverse Effect (as defined below) 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 material respects. Whenever requested, Guarantor
shall further deliver to GBC a certificate signed by Guarantor 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 and correct and accurately present the financial condition of
Guarantor in all material respects, 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. As used herein, "Material Adverse
Effect" means any event, matter, condition or circumstance which (i) has or
would reasonably be expected to have a material adverse effect on the business,
properties, results of operations or condition (financial or otherwise) of
Borrower and its subsidiaries taken as a whole; or (ii) affects the legality,
validity, binding effect or enforceability of any of this Guaranty or any
related agreement or instrument.
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 material order, judgment, decree, instrument or agreement to which
Guarantor is a party or by which it or its assets are affected or bound.
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15. COSTS. Whether or not suit shall be instituted, Xxxxxxxxx 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. Notwithstanding the foregoing, 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.
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 facsimile 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 its address set forth under its
signature hereon, and such notices shall be deemed duly given on the date of
personal delivery or one day after the date sent by facsimile or two 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 written notice of any change in its address promptly (and in any event
within one business day of such change).
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. Xxxxxxxxx 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 Xxxxxxxx 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
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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. 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 Xxxxxxxxx
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 its successors
and assigns. Section headings are 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.
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22. RECEIPT OF COPY. Guarantor acknowledges receipt of a copy of this
Guaranty.
Guarantor Signature:
Datastorm Technologies, Inc.
By_____________________________
Title__________________________
Address: 00000 Xxxxxxxx Xxx
Marina del Rey, CA 90292
