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EXHIBIT 4.9
GUARANTY AND SURETYSHIP AGREEMENT
THIS GUARANTY AND SURETYSHIP AGREEMENT (this "GUARANTY") is made and
entered into as of this 14th day of May, 2001, by INTERACTIVE PICTURES
CORPORATION, a Delaware corporation (the "GUARANTOR"), with an address at 0000
Xxxxxxxx Xxxx Xx., Xxx Xxxxx, XX 00000, in consideration of the extension of
credit by IMAGE INVESTOR PORTFOLIO, a separate series of MEMPHIS ANGELS, LLC, a
Delaware limited liability company (the "LENDER"), with an address at 0000
Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxx 00000, to INTERNET PICTURES
CORPORATION, a Delaware corporation (the "BORROWER"), and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged.
1. GUARANTY OF OBLIGATIONS. The Guarantor hereby guarantees, and
becomes surety for, the prompt payment and performance of all loans, advances,
debts, liabilities, obligations, covenants and duties owing by the Borrower to
the Lender, of any kind or nature, present or future (including any interest
accruing thereon after maturity, or after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
proceeding relating to the Borrower, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), under that certain
Convertible Promissory Note dated as May 14, 2001 made by the Borrower in favor
of the Lender (the "NOTE"), and under the other Documents (as defined in that
certain Securities Purchase Agreement dated as of May 14, 2001 between the
Lender and the Borrower, now existing or hereafter arising, and any amendments,
extensions, renewals or increases and all costs and expenses of the Lender
incurred in the documentation, negotiation, modification, enforcement,
collection or otherwise in connection with any of the foregoing, including
reasonable attorneys' fees and expenses (hereinafter referred to collectively as
the "OBLIGATIONS"). If the Borrower defaults under any such Obligations, the
Guarantor will pay the amount due to the Lender.
2. NATURE OF GUARANTY; WAIVERS. This is a guaranty of payment and not
of collection and the Lender shall not be required, as a condition of the
Guarantor's liability, to make any demand upon or to pursue any of its rights
against the Borrower, or to pursue any rights which may be available to it with
respect to any other person who may be liable for the payment of the
Obligations.
This is an absolute, unconditional, irrevocable and continuing guaranty
and will remain in full force and effect until all of the Obligations have been
indefeasibly paid in full, and the Lender has terminated this Guaranty. This
Guaranty will not be affected by any surrender, exchange, acceptance, compromise
or release by the Lender of any other party, or any other guaranty or any
security held by it for any of the Obligations, by any failure of the Lender to
take any steps to perfect or maintain its lien or security interest in or to
preserve its rights to any security or other collateral for any of the
Obligations or any guaranty, or by any irregularity, unenforceability or
invalidity of any of the Obligations or any part thereof or any security or
other guaranty thereof. The Guarantor's obligations hereunder shall not be
affected, modified or impaired by any counterclaim, set-off, deduction or
defense based upon any claim the Guarantor may have against the Borrower or the
Lender, except payment or performance of the Obligations.
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Notice of acceptance of this Guaranty, notice of extensions of credit
to the Borrower from time to time, notice of default, diligence, presentment,
notice of dishonor, protest, demand for payment, and any defense based upon the
Lender's failure to comply with the notice requirements of the applicable
version of Uniform Commercial Code ss. 9-504 are hereby waived. The Guarantor
waives all defenses based on suretyship or impairment of collateral.
The Lender at any time and from time to time, without notice to or the
consent of the Guarantor, and without impairing or releasing, discharging or
modifying the Guarantor's liabilities hereunder, may (a) change the manner,
place, time or terms of payment or performance of or interest rates on, or other
terms relating to, any of the Obligations; (b) renew, substitute, modify, amend
or alter, or grant consents or waivers relating to any of the Obligations, any
other guaranties, or any security for any Obligations or guaranties; (c) apply
any and all payments by whomever paid or however realized including any proceeds
of any collateral, to any Obligations of the Borrower in such order, manner and
amount as the Lender may determine in its sole discretion; (d) settle,
compromise or deal with any other person, including the Borrower or the
Guarantor, with respect to any Obligations in such manner as the Lender deems
appropriate in its sole discretion; (e) substitute, exchange or release any
security or guaranty; or (f) take such actions and exercise such remedies
hereunder as provided herein.
3. REPAYMENTS OR RECOVERY FROM THE LENDER. If any demand is made at any
time upon the Lender for the repayment or recovery of any amount received by it
in payment or on account of any of the Obligations and if the Lender repays all
or any part of such amount by reason of any judgment, decree or order of any
court or administrative body or by reason of any settlement or compromise of any
such demand, the Guarantor will be and remain liable hereunder for the amount so
repaid or recovered to the same extent as if such amount had never been received
originally by the Lender. The provisions of this section will be and remain
effective notwithstanding any contrary action which may have been taken by the
Guarantor in reliance upon such payment, and any such contrary action so taken
will be without prejudice to the Lender's rights hereunder and will be deemed to
have been conditioned upon such payment having become final and irrevocable.
4. FINANCIAL STATEMENTS. Unless compliance is waived in writing by the
Lender or until all of the Obligations have been paid in full, the Guarantor
will promptly submit to the Lender such information relating to the Guarantor's
affairs (including but not limited to annual financial statements and tax
returns for the Guarantor) or any security for the Guaranty as the Lender may
reasonably request.
5. ENFORCEABILITY OF OBLIGATIONS. No modification, limitation or
discharge of the Obligations arising out of or by virtue of any bankruptcy,
reorganization or similar proceeding for relief of debtors under federal or
state law will affect, modify, limit or discharge the Guarantor's liability in
any manner whatsoever and this Guaranty will remain and continue in full force
and effect and will be enforceable against the Guarantor to the same extent and
with the same force and effect as if any such proceeding had not been
instituted. The Guarantor waives all rights and benefits which might accrue to
it by reason of any such proceeding and will be liable to the full extent
hereunder, irrespective of any modification, limitation or discharge of the
liability of the Borrower that may result from any such proceeding.
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6. EVENTS OF DEFAULT. The occurrence of any of the following shall be
an "EVENT OF DEFAULT": (i) any Event of Default (as defined in the Note); (ii)
the Guarantor's failure to perform any of its obligations hereunder; (iii) the
falsity, inaccuracy or material breach by the Guarantor of any written warranty,
representation or statement made or furnished to the Lender by or on behalf of
the Guarantor; or (iv) the termination or attempted termination of this
Guaranty. Upon the occurrence of any Event of Default, (a) the Guarantor shall
pay to the Lender the amount of the Obligations; or (b) on demand of the Lender,
the Guarantor shall immediately deposit with the Lender, in U.S. dollars, all
amounts due or to become due under the Obligations, and the Lender may at any
time use such funds to repay the Obligations; or (c) the Lender in its
discretion may exercise with respect to any collateral any one or more of the
rights and remedies provided a secured party under the applicable version of the
Uniform Commercial Code; or (d) the Lender in its discretion may exercise from
time to time any other rights and remedies available to it at law, in equity or
otherwise.
7. RESERVED.
8. COLLATERAL. This Guaranty is secured by the property described in
any collateral security documents which the Guarantor executes and delivers to
the Lender and by such other collateral as previously may have been or may in
the future be granted to the Lender to secure any obligations of the Guarantor
to the Lender.
9. COSTS. To the extent that the Lender incurs any costs or expenses in
protecting or enforcing its rights under the Obligations or this Guaranty,
including reasonable attorneys' fees and the costs and expenses of litigation,
such costs and expenses will be due on demand, will be included in the
Obligations and will bear interest from the incurring or payment thereof at the
Default Rate (as defined in the Note).
10. POSTPONEMENT OF SUBROGATION. Until the Obligations are indefeasibly
paid in full, the Guarantor postpones and subordinates in favor of the Lender
any and all rights which the Guarantor may have to (a) assert any claim against
the Borrower based on subrogation rights with respect to payments made
hereunder, and (b) any realization on any property of the Borrower, including
participation in any marshalling of the Borrower's assets.
11. NOTICES. All notices, demands, requests, consents, approvals and
other communications required or permitted hereunder must be in writing and will
be effective upon receipt. Such notices and other communications may be
hand-delivered, sent by facsimile transmission with confirmation of delivery and
a copy sent by first-class mail, or sent by nationally recognized overnight
courier service, to the addresses for the Lender and the Guarantor set forth
above or to such other address as one may give to the other in writing for such
purpose.
12. PRESERVATION OF RIGHTS. No delay or omission on the Lender's part
to exercise any right or power arising hereunder will impair any such right or
power or be considered a waiver of any such right or power, nor will the
Lender's action or inaction impair any such right or power. The Lender's rights
and remedies hereunder are cumulative and not exclusive of any other rights or
remedies which the Lender may have under other agreements, at law or in equity.
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The Lender may proceed in any order against the Borrower, the Guarantor or any
other obligor of, or collateral securing, the Obligations.
13. ILLEGALITY. In case any one or more of the provisions contained in
this Guaranty should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
14. CHANGES IN WRITING. No modification, amendment or waiver of any
provision of this Guaranty nor consent to any departure by the Guarantor
therefrom will be effective unless made in a writing signed by the Lender, and
then such waiver or consent shall be effective only in the specific instance and
for the purpose for which given. No notice to or demand on the Guarantor in any
case will entitle the Guarantor to any other or further notice or demand in the
same, similar or other circumstance.
15. ENTIRE AGREEMENT. This Guaranty (including the documents and
instruments referred to herein) constitutes the entire agreement and supersedes
all other prior agreements and understandings, both written and oral, between
the Guarantor and the Lender with respect to the subject matter hereof;
provided, however, that this Guaranty is in addition to, and not in substitution
for, any other guarantees from the Guarantor to the Lender.
16. SUCCESSORS AND ASSIGNS. This Guaranty will be binding upon and
inure to the benefit of the Guarantor and the Lender and their respective heirs,
executors, administrators, successors and assigns; provided, however, that the
Guarantor may not assign this Guaranty in whole or in part without the Lender's
prior written consent and the Lender at any time may assign this Guaranty in
whole or in part.
17. INTERPRETATION. In this Guaranty, unless the Lender and the
Guarantor otherwise agree in writing, the singular includes the plural and the
plural the singular; references to statutes are to be construed as including all
statutory provisions consolidating, amending or replacing the statute referred
to; the word "or" shall be deemed to include "and/or", the words "including",
"includes" and "include" shall be deemed to be followed by the words "without
limitation"; and references to sections or exhibits are to those of this
Guaranty unless otherwise indicated. Section headings in this Guaranty are
included for convenience of reference only and shall not constitute a part of
this Guaranty for any other purpose. If this Guaranty is executed by more than
one party as Guarantor, the obligations of such persons or entities will be
joint and several.
18. INDEMNITY. The Guarantor agrees to indemnify each of the Lender,
its directors, officers and employees and each legal entity, if any, who
controls the Lender (the "INDEMNIFIED PARTIES") and to hold each Indemnified
Party harmless from and against any and all claims, damages, losses, liabilities
and expenses (including all fees and charges of internal or external counsel
with whom any Indemnified Party may consult and all expenses of litigation or
preparation therefor) which any Indemnified Party may incur or which may be
asserted against any Indemnified Party as a result of the execution of or
performance under this Guaranty; provided, however, that the foregoing indemnity
agreement shall not apply to claims, damages, losses, liabilities and expenses
solely attributable to an Indemnified Party's gross negligence or willful
misconduct. The indemnity agreement contained in this Section shall survive the
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termination of this Guaranty. The Guarantor may participate at its expense in
the defense of any such claim.
19. GOVERNING LAW AND JURISDICTION. This Guaranty has been delivered to
and accepted by the Lender and will be deemed to be made in the State where the
Lender's office indicated above is located. THIS GUARANTY WILL BE INTERPRETED
AND THE RIGHTS AND LIABILITIES OF THE LENDER AND THE GUARANTOR DETERMINED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, EXCLUDING ITS CONFLICT OF
LAWS RULES. The Guarantor hereby irrevocably consents to the exclusive
jurisdiction of any state or federal court of Delaware; provided that nothing
contained in this Guaranty will prevent the Lender from bringing any action,
enforcing any award or judgment or exercising any rights against the Guarantor
individually, against any security or against any property of the Guarantor
within any other county, state or other foreign or domestic jurisdiction. The
Guarantor acknowledges and agrees that the venue provided above is the most
convenient forum for both the Lender and the Guarantor. The Guarantor waives any
objection to venue and any objection based on a more convenient forum in any
action instituted under this Guaranty.
20. WAIVER OF JURY TRIAL. THE GUARANTOR IRREVOCABLY WAIVES ANY AND ALL
RIGHT THE GUARANTOR MAY HAVE TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
CLAIM OF ANY NATURE RELATING TO THIS GUARANTY, ANY DOCUMENTS EXECUTED IN
CONNECTION WITH THIS GUARANTY OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH
DOCUMENTS. THE GUARANTOR ACKNOWLEDGES THAT THE FOREGOING WAIVER IS KNOWING AND
VOLUNTARY.
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THE GUARANTOR ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL THE
PROVISIONS OF THIS GUARANTY, INCLUDING THE WAIVER OF JURY TRIAL, AND HAS BEEN
ADVISED BY COUNSEL AS NECESSARY OR APPROPRIATE.
WITNESS the due execution hereof as a document under seal, as of the
date first written above, with the intent to be legally bound hereby.
WITNESS / ATTEST: INTERACTIVE PICTURES CORPORATION
By:
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Name:
Title:
GUARANTY AND SURETYSHIP AGREEMENT
SIGNATURE PAGE
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