[LOGO]
Continuing Guaranty
Borrower: AddTel Communications, Inc.
Guarantors: North American Telecommunications Corporation
Baltic States and CIS Ventures, Inc.
CIS Intelligence Information Services, Inc.
Uniquest Communications, Inc.
Date: February 12, 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, 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.
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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 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
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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 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 dated December 26, 1996 between Guarantor and GBC,
or
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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.
*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
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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.
12. FINANCIAL CONDITION OF BORROWER. Guarantor is fully aware of the
financial condition of Xxxxxxxx and is executing and delivering this
Guaranty at Xxxxxxxx'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 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,
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,
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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, 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 de
fend 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
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. 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
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Greyrock Business Credit Continuing Guaranty
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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 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 Xxxxxxxxx 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 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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Greyrock Business Credit Continuing Guaranty
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22. RECEIPT OF COPY. Guarantor acknowledges receipt of a copy of
this Guaranty.
Guarantor Signature:
North American Telecommunications Corporation
By /s/ X.Xxxxx Xxxxxxx
--------------------
Title Vice President
-------------------
Address: 0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
Baltic States and CIS Ventures, Inc.
By /s/ X. Xxxxx Xxxxxxx
---------------------
Title Vice President
--------------------
Address: 0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
Guarantor Signature:
CIS Intelligence Information Services, Inc.
By /s/ X. Xxxxx Xxxxxxx
-----------------------
Title Vice President
-----------------------
Address: 0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
Guarantor Signature:
Uniquest Communications, Inc.
By /s/ X. Xxxxx Xxxxxxx
--------------------
Title Vice President
-------------------
Address: 0000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, Xxxxx 00000
