EXHIBIT 10.2
GUARANTY
In consideration of, and as an inducement for the granting, execution
and delivery of the foregoing Lease Agreement, dated October 28, 2005 (the
"Lease"), by 3280 PEACHTREE I LLC, landlord therein named ("Landlord", which
term shall be deemed to include the named Landlord, its successors and assigns),
to XPEDITE SYSTEMS, LLC, D/B/A PREMIERE GLOBAL SERVICES, tenant therein named
("Tenant", which term shall be deemed to include the named Tenant and its
successors and assigns), and in further consideration of the sum of One Dollar
($1.00) and other good and valuable consideration paid by Landlord to the
undersigned, the receipt and sufficiency of which are hereby acknowledged, the
undersigned, PREMIERE GLOBAL SERVICES, INC. ("Guarantor", which term shall be
deemed to include the named Guarantor and its successors and assigns), does
hereby guarantee, absolutely and unconditionally, to Landlord the full and
prompt payment of Base Rental, additional rent and all other charges and sums
(including, without limitation, Landlord's legal expenses and attorneys' fees
and disbursements) payable by Tenant under the Lease, and hereby further
guarantees the full and timely performance and observance of all the covenants,
terms, conditions and agreements therein provided to be performed and observed
by Tenant; and Guarantor hereby covenants and agrees to and with Landlord that
if an event of default shall at any time be made by Tenant in the payment of any
Base Rental, additional rent or other charges and sums, or if Tenant should
default in the performance and observance of any of the terms, covenants and
conditions contained in the Lease under Article 19 of the Lease, Guarantor shall
and will forthwith pay Base Rental, additional rent and all other charges and
sums, to Landlord and any arrears thereof, and shall and will forthwith
faithfully perform and fulfill all of such terms, covenants and conditions and
will forthwith pay to Landlord all damages that may arise in consequence of any
such event of default by Tenant under the Lease, including, without limitation,
all reasonable attorneys' fees and disbursements actually incurred by Landlord
or caused by any such default or the enforcement of this Guaranty.
This Guaranty is an absolute and unconditional guaranty of payment (and
not of collection) and of performance. The liability of Guarantor is
co-extensive with that of Tenant and also joint and several and this Guaranty
shall be enforceable against Guarantor without the necessity of any suit or
proceeding on Landlord's part of any kind or nature whatsoever against Tenant
and without the necessity of any notice of non-payment, non-performance or
non-observance or of any notice of acceptance of this Guaranty or of any other
notice or demand to which Guarantor might otherwise be entitled, all of which
Guarantor hereby expressly waives. Guarantor hereby expressly agrees that the
validity of this Guaranty and the obligations of Guarantor hereunder shall in no
way be terminated, affected, diminished or impaired by reason of (a) the
assertion or the failure to assert by Landlord against Tenant of any of the
rights or remedies reserved by Landlord pursuant to the terms, covenants and
conditions of the Lease, or (b) any non-liability of Tenant under the Lease,
whether by insolvency, discharge in bankruptcy, or any other defect or defense
which may now or hereafter exist in favor of Tenant.
This Guaranty shall be a continuing guaranty, and the liability of
Guarantor hereunder shall in no way be affected, modified or diminished by
reason of (a) any assignment, renewal, modification, amendment or extension of
the Lease, or (b) any modification or waiver of or change in any of the terms,
covenants and conditions of the Lease by Landlord and Tenant, or (c) any
extension of time that may be granted by Landlord to Tenant, or (d) any consent,
release, indulgence or other action, inaction or omission under or in respect of
the Lease, or (e) any dealings or transactions or matter or thing occurring
between Landlord and Tenant, or (f) any bankruptcy, insolvency, reorganization,
liquidation, arrangement, assignment for the benefit of creditors, receivership,
trusteeship or similar proceeding affecting Tenant, whether or not notice
thereof is given to Guarantor. Guarantor expressly waives the right to require
Landlord to take action against Tenant as provided for in Official Code of
Georgia Annotated Section 10-7-24 (Xxxxxx 1981, as amended or hereafter
amended).
Should Landlord be obligated by any bankruptcy or other law to repay to
Tenant or to Guarantor or to any trustee, receiver or other representative of
either of them, any amounts previously paid, this Guaranty shall be reinstated
in the amount of such repayments. Landlord shall not be required to litigate or
otherwise dispute its obligations to make such repayments if it in good faith
believes that such obligation exists.
No delay on the part of Landlord in exercising any right, power or
privilege under this Guaranty or failure to exercise the same shall operate as a
waiver of or otherwise affect any such right, power or privilege, nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
No waiver or modification of any provision of this Guaranty nor any
termination of this Guaranty shall be effective unless in writing, signed by
Landlord; nor shall any such waiver be applicable except in the specific
instance for which given.
All of Landlord's rights and remedies under the Lease and under this
Guaranty, now or hereafter existing at law or in equity or by statute or
otherwise, are intended to be distinct, separate and cumulative and no exercise
or partial exercise of any such right or remedy therein or herein mentioned is
intended to be in exclusion of or a waiver of any of the others.
Guarantor agrees that whenever at any time or from time to time
Guarantor shall make any payment to Landlord or perform or fulfill any term,
covenant or condition hereunder on account of the liability of Guarantor
hereunder, Guarantor will notify Landlord in writing that such payment or
performance, as the case may be, is for such purpose. No such payment or
performance by Guarantor pursuant to any provision hereof shall entitle
Guarantor by subrogation or otherwise to the rights of Landlord to any payment
by Tenant or out of the property of Tenant, except after payment of all sums or
fulfillment of all covenants, terms, conditions or agreements to be paid or
performed by Tenant.
Guarantor agrees that it will, at any time and from time to time,
within ten (10) business days following written request by Landlord, execute,
acknowledge and deliver to Landlord a statement certifying that this Guaranty is
unmodified and in full force and effect (or if there have been
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modifications, that the same is in full force and effect as modified and stating
such modification). Guarantor agrees that such certificate may be relied on by
anyone holding or proposing to acquire any interest in the Building (as defined
in the Lease) from or through Landlord or by any mortgagee (as defined in the
Lease) or prospective mortgagee or lessor of the Building or of any interest
therein.
Without regard to principles of conflicts of laws, the validity,
interpretation, performance and enforcement of this Guaranty shall be governed
by and construed in accordance with the internal laws of the State of Georgia.
Guarantor hereby submits to the non-exclusive personal jurisdiction in the State
of Georgia, the courts thereof and the United States District Courts sitting
therein, for the enforcement of this Guaranty, and Guarantor hereby waives any
and all personal rights under the law of any jurisdiction to object on any basis
(including, without limitation, inconvenience of forum) to jurisdiction or venue
within the State of Georgia for the purpose of litigation to enforce this
Guaranty.
IN WITNESS WHEREOF, the undersigned has duly executed this Guaranty
this 28th day of October, 2005.
GUARANTOR(S):
PREMIERE GLOBAL SERVICES, INC.
Signed, sealed and delivered in the presence of:
/s/ Xxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx (SEAL)
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Witness Its: President
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Attest: /s/ L. Xxxxx Xxxxxx
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/s/ Xxxx X. Xxxxxx Its: Svp - Legal and Secretary
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Notary Public (CORPORATE SEAL)
My Commission Expires: May 16, 2006 Address:
0000 Xxxxxxxxx Xx Xx
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(NOTARIAL SEAL) Suite 700
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Xxxxxxx, Xx 00000
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Social Security Number or
Federal Identification Number:
00-0000000
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