Exhibit 99.9
AMENDED AND RESTATED GUARANTY
This AMENDED AND RESTATED GUARANTY is entered into as of
September 30, 2003 by VitalStream, Inc., a Delaware corporation ("VITALSTREAM"
or a "GUARANTOR") and VitalStream Broadcasting Corporation, a Nevada corporation
("VITALSTREAM BROADCASTING" or a "GUARANTOR" and collectively, together with
VitalStream and any future guarantors executing this Guaranty, the "GUARANTORS")
in favor of and for the benefit of the Beneficiaries (as defined below).
RECITALS
A. VitalStream is a wholly owned subsidiary of
VitalStream Holdings, Inc., a Nevada corporation ("COMPANY").
B. VitalStream Broadcasting is a wholly owned subsidiary
of Company.
C. Company entered into a Convertible Note and Warrant
Purchase Agreement dated November 1, 2002 (the "INITIAL PURCHASE AGREEMENT"),
pursuant to which the persons listed on ANNEX 1 AND ANNEX 2 attached thereto
purchased 10% Convertible Promissory Notes (the "INITIAL CONVERTIBLE NOTES")
from Company and warrants to purchase shares of Common Stock (the "COMMON
STOCK") of Company (the "INITIAL WARRANTS").
D. Company entered into an Amended and Restated
Convertible Note and Warrant Purchase Agreement dated January 15, 2003 (the
"SUBSEQUENT PURCHASE AGREEMENT"), pursuant to which the persons listed on ANNEX
1 AND ANNEX 2 attached thereto purchased 10% Convertible Promissory Notes (the
"SUBSEQUENT CONVERTIBLE NOTES").
E. Company entered into that certain Securities Exchange
and Purchase Agreement dated as of September 30, 2003 (as amended, restated and
modified from time to time, the "PURCHASE AGREEMENT"), by and among Company and
the Purchasers identified therein pursuant to which (i) the persons listed on
Annex 1 attached thereto purchased shares of 2003 Series A Preferred Stock,
$.001 par value, of Company (the shares of 2003 Series A Preferred Stock
issuable pursuant to the Purchase Agreement, the "NEW PREFERRED") and Additional
Warrants to purchase shares of Common Stock of Company (the "ADDITIONAL
WARRANTS") (all such persons set forth on Annex 1 and Annex 2 of the Purchase
Agreement are collectively referred to herein as the "LENDERS" and individually
as a "LENDER"), (ii) Lenders identified on Annex 2 to the Purchase Agreement and
holding Initial Convertible Notes and Subsequent Convertible Notes exchanged
(the "EXCHANGE") their then outstanding Initial Convertible Notes and Subsequent
Convertible Notes for Amended and Restated Convertible Promissory Notes of equal
principal amounts (such Amended and Restated Convertible Promissory Notes,
together with all other Amended and Restated Convertible Promissory Notes issued
under the Purchase Agreement, being the "AMENDED AND RESTATED NOTES"), which
Amended and Restated Notes are convertible into shares of 2003 Series B
Preferred Stock, $.001 par value, of Company (the shares of 2003 Series B
Preferred Stock issuable upon conversion of the Amended and Restated Notes, the
"CONVERSION PREFERRED"), and (iii) Lenders holding Initial Warrants exchanged
their Initial Warrants for Amended and Restated Warrants with respect to an
identical number of shares of Common Stock (such Amended and Restated Warrants,
together with all other
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Amended and Restated Warrants issued under the Purchase Agreement, being the
"AMENDED AND RESTATED WARRANTS"; and together with the Additional Warrants, the
"WARRANTS"). Unless otherwise indicated herein, capitalized terms used in this
Guaranty have the same meanings set forth in the Purchase Agreement.
F. It is desired that the obligations of Company under
the Purchase Agreement, Amended and Restated Notes (including without limitation
the obligation of Company to make payments under the Amended and Restated Notes
in the event of an Event of Default), New Preferred, Conversion Preferred,
Warrants and the documents executed in connection therewith, be guarantied as
set forth herein.
G. The Lenders and all other Persons to whom from time
to time any Guarantied Obligation (as defined in Section 1(a) of this Guaranty)
may be owed or owing are sometimes referred to herein as "BENEFICIARIES."
H. A portion of the proceeds of the Amended and Restated
Notes, New Preferred and Warrants may be contributed or advanced to any
Guarantor and thus the Guarantied Obligations are being incurred for, and will
inure to the benefit of, such Guarantor (which benefits are hereby
acknowledged).
I. It is a condition precedent to the consummation of
the Exchange and the purchase of the New Preferred and Additional Warrants under
the Purchase Agreement that Company's obligations thereunder be guarantied by
each Guarantor.
J. Each Guarantor is willing irrevocably and
unconditionally to guaranty such obligations of Company.
NOW, THEREFORE, based upon the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and in order to induce Lenders to enter into the Purchase
Agreement and to purchase the Amended and Restated Notes, New Preferred and
Warrants, each Guarantor hereby agrees as follows:
1. GUARANTY.
(a) In order to induce the Lenders to participate in the
Exchange and purchase New Preferred and Additional Warrants from Company
pursuant to the Purchase Agreement, each Guarantor jointly and severally
irrevocably and unconditionally guaranties, as primary obligor and not merely as
surety, the due and punctual payment in full of all Guarantied Obligations (as
hereinafter defined) when the same shall become due, whether at stated maturity,
by acceleration, demand or otherwise. The term "GUARANTIED OBLIGATIONS" means,
collectively, (i) the unpaid principal and interest on the Amended and Restated
Notes (including interest accruing at the then applicable rate provided in the
Purchase Agreement and/or the Amended and Restated Notes after the Maturity Date
or any acceleration thereof pursuant to the terms of the Purchase Agreement
and/or any Amended and Restated Note and interest accruing at the then
applicable rate provided in the Purchase Agreement and/or the Amended and
Restated Notes after the commencement of any insolvency, reorganization or like
proceeding relating to any Guarantor), (ii) to the extent applicable, any
redemptions required to be made on the New Preferred or Conversion Preferred or
dividends required to be paid in respect of the New
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Preferred or Conversion Preferred, in each case in accordance with the terms of
the Certificate of Designation (as defined below) and (iii) all other monetary
obligations and liabilities of Company or any Guarantor to the Beneficiaries,
whether direct or indirect, absolute or contingent, due or to become due, or now
existing or hereafter incurred, which may arise under, out of or in connection
with the Amended and Restated Notes, New Preferred, Conversion Preferred,
Warrants, Purchase Agreement and other Transaction Agreements, in each case
whether on account of principal, interest, dividends, right of redemption,
reimbursement obligations, fees, indemnities, costs, expenses or otherwise
(including all fees and disbursements of counsel to the Beneficiaries that are
required to be paid by Company or any Guarantor pursuant to the terms of any of
the foregoing). As used herein, the term "CERTIFICATE OF DESIGNATION" means the
Certificate of Designation, setting forth, among other matters, the rights,
preferences and privileges of the New Preferred and Conversion Preferred, in the
form of EXHIBIT D attached to the Purchase Agreement.
(b) Guarantor acknowledges that (i) a portion of the
proceeds of the Amended and Restated Notes, New Preferred and Warrants may be
contributed or advanced to it for the benefit of its business and (ii) that the
Guarantied Obligations are being incurred for and will inure to its benefit.
(c) Any interest on any portion of the Guarantied
Obligations that accrues after the commencement of any proceeding, voluntary or
involuntary, involving the bankruptcy, insolvency, receivership, reorganization,
liquidation or arrangement of Company (or, if interest on any portion of the
Guarantied Obligations ceases to accrue by operation of law by reason of the
commencement of said proceeding, such interest as would have accrued on such
portion of the Guarantied Obligations if said proceeding had not been commenced)
shall be included in the Guarantied Obligations because it is the intention of
each Guarantor and the Beneficiaries that the Guarantied Obligations should be
determined without regard to any rule of law or order that may relieve Company
of any portion of such Guarantied Obligations.
(d) In the event that all or any portion of the
Guarantied Obligations is paid by Company, the obligations of each Guarantor
hereunder shall continue and remain in full force and effect or be reinstated,
as the case may be, in the event that all or any part of such payment(s) is
rescinded or recovered directly or indirectly from any Beneficiary as a
preference, fraudulent transfer or otherwise, and any such payments that are so
rescinded or recovered shall constitute Guarantied Obligations.
(e) Subject to the other provisions of this Section 1,
upon the failure of Company to pay any of the Guarantied Obligations when and as
the same shall become due, each Guarantor will upon demand pay, or cause to be
paid, in cash, to each Beneficiary, an amount equal to such Beneficiary's pro
rata amount of the unpaid Guarantied Obligations.
(f) Anything contained in this Guaranty to the contrary
notwithstanding, the obligations of each Guarantor under this Guaranty and the
other Transaction Agreements shall be limited to a maximum aggregate amount
equal to the largest amount that would not render its obligations hereunder
subject to avoidance as a fraudulent transfer or conveyance under Section 548 of
Title 11 of the United States Code or any applicable provisions of comparable
state law (collectively, the "FRAUDULENT TRANSFER LAWS"), in each case after
giving effect to all other
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liabilities of such Guarantor, contingent or otherwise, that are relevant under
the Fraudulent Transfer Laws (specifically excluding, however, any liabilities
of such Guarantor in respect of intercompany indebtedness to Company or other
affiliates of Company to the extent that such indebtedness would be discharged)
in an amount equal to the amount paid by such Guarantor hereunder and after
giving effect as assets to the value (as determined under the applicable
provisions of the Fraudulent Transfer Laws) of any rights to subrogation,
reimbursement, indemnification or contribution of such Guarantor pursuant to
applicable law or pursuant to the terms of any agreement.
(g) The Guarantors desire to allocate among themselves,
in a fair and equitable manner, their obligations arising under this Guaranty.
Accordingly, in the event any payment or distribution is made on any date by a
Guarantor under this Guaranty, each such Guarantor or such other Guarantor shall
be entitled to a contribution from each of the other Guarantors in the maximum
amount permitted by law so as to maximize the aggregate amount of the Guarantied
Obligations paid to Beneficiaries.
2. GUARANTY ABSOLUTE; CONTINUING GUARANTY. The
obligations of each Guarantor hereunder are irrevocable, absolute, independent
and unconditional and shall not be affected by any circumstance which
constitutes a legal or equitable discharge of a Guarantor or surety other than
payment in full of the Guarantied Obligations (other than contingent
indemnification obligations). In furtherance of the foregoing and without
limiting the generality thereof, each Guarantor agrees that: (a) this Guaranty
is a guaranty of payment when due and not of collectibility; (b) any Beneficiary
may enforce this Guaranty upon the occurrence and during the continuance of an
Event of Default under the Purchase Agreement, (c) the obligations of each
Guarantor hereunder are independent of the obligations of Company and each other
Guarantor under the Purchase Agreement and the other Transaction Agreements and
a separate action or actions may be brought and prosecuted against each
Guarantor whether or not any action is brought against Company or any of such
other Guarantors and whether or not Company is joined in any such action or
actions; and (d) a payment of a portion, but not all, of the Guarantied
Obligations by one or more Guarantors shall in no way limit, affect, modify or
abridge the liability of such or any other Guarantor for any portion of the
Guarantied Obligations that has not been paid. This Guaranty is a continuing
guaranty and shall be binding upon each Guarantor and its successors and
assigns, and each Guarantor irrevocably waives any right to revoke this Guaranty
as to future transactions giving rise to any Guarantied Obligations.
3. ACTIONS BY BENEFICIARIES. Any Beneficiary may from
time to time, without notice or demand and without affecting the validity or
enforceability of this Guaranty or giving rise to any limitation, impairment or
discharge of any Guarantor's liability hereunder, (a) renew, extend, accelerate
or otherwise change the time, place, manner or terms of payment of the
Guarantied Obligations, (b) settle, compromise, release or discharge, or accept
or refuse any offer of performance with respect to, or substitutions for, the
Guarantied Obligations or any agreement relating thereto and/or subordinate the
payment of the same to the payment of any other obligations, (c) request and
accept other guaranties of the Guarantied Obligations and take and hold security
for the payment of this Guaranty or the Guarantied Obligations, (d) release,
exchange, compromise, subordinate or modify, with or without consideration, any
security for payment of the Guarantied Obligations, any other guaranties of the
Guarantied Obligations, or any other obligation of any Person with respect to
the Guarantied Obligations, (e) enforce and
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apply any security now or hereafter held by or for the benefit of any
Beneficiary in respect of this Guaranty or the Guarantied Obligations and direct
the order or manner of sale thereof, or exercise any other right or remedy that
the Beneficiaries, or any of them, may have against any such security, as each
such Beneficiary in its discretion may determine consistent with the Transaction
Agreements, including foreclosure on any such security pursuant to one or more
judicial or nonjudicial sales, whether or not every aspect of any such sale is
commercially reasonable, and (f) exercise any other rights available to the
Beneficiaries, or any of them, under the Transaction Agreements.
4. NO DISCHARGE. This Guaranty and the obligations of
Guarantors hereunder shall be valid and enforceable and shall not be subject to
any limitation, impairment or discharge for any reason (other than payment in
full of the Guarantied Obligations), including without limitation the occurrence
of any of the following, whether or not any Guarantor shall have had notice or
knowledge of any of them: (a) any failure to assert or enforce or agreement not
to assert or enforce, or the stay or enjoining, by order of court, by operation
of law or otherwise, of the exercise or enforcement of, any claim or demand or
any right, power or remedy with respect to the Guarantied Obligations or any
agreement relating thereto, or with respect to any other guaranty of or security
for the payment of the Guarantied Obligations, (b) any waiver or modification
of, or any consent to departure from, any of the terms or provisions of any
Transaction Agreement, or any agreement or instrument executed pursuant thereto,
(c) the Guarantied Obligations, or any agreement relating thereto, at any time
being found to be illegal, invalid or unenforceable in any respect, (d) the
application of payments received from any source to the payment of indebtedness
other than the Guarantied Obligations, even though the Beneficiaries, or any of
them, might have elected to apply such payment to any part or all of the
Guarantied Obligations, (e) any failure to perfect or continue perfection of a
security interest in any collateral which secures any of the Guarantied
Obligations, (f) any defenses, set-offs or counterclaims which Company may
assert against any Beneficiary in respect of the Guarantied Obligations,
including but not limited to failure of consideration, breach of warranty,
statute of frauds, statute of limitations, accord and satisfaction and usury,
other than payment in full, and (g) any other act or thing or omission, or delay
to do any other act or thing, which may or might in any manner or to any extent
vary the risk of a Guarantor as an obligor in respect of the Guarantied
Obligations.
5. WAIVERS. Each Guarantor waives, to the extent
permitted at law, for the benefit of Beneficiaries: (a) any right to require the
Beneficiaries, as a condition of payment or performance by such Guarantor, to
(i) proceed against Company, any other guarantor of the Guarantied Obligations
or any other Person, (ii) proceed against or exhaust any security held from
Company, any other guarantor of the Guarantied Obligations or any other Person,
(iii) proceed against or have resort to any balance of any deposit account or
credit on the books of any Beneficiary in favor of Company or any other Person
or (iv) pursue any other remedy in the power of any Beneficiary; (b) any defense
arising by reason of the incapacity, lack of authority or any disability or
other defense of Company including, without limitation, any defense based on or
arising out of the lack of validity or the unenforceability of the Guarantied
Obligations or any agreement or instrument relating thereto or by reason of the
cessation of the liability of Company from any cause other than payment in full
of the Guarantied Obligations (other than contingent indemnification
obligations); (c) any defense based upon any statute or rule of law which
provides that the obligation of a surety must be neither larger in amount nor in
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other respects more burdensome than that of the principal; (d) any defense based
upon any Beneficiary's errors or omissions in the administration of the
Guarantied Obligations, except behavior that amounts to gross negligence,
willful misconduct or bad faith; (e) (i) any principles or provisions of law,
statutory or otherwise, that are or might be in conflict with the terms of this
Guaranty and any legal or equitable discharge of such Guarantor's obligations
hereunder, (ii) the benefit of any statute of limitations affecting such
Guarantor's liability hereunder or the enforcement hereof, (iii) any rights to
set-offs, recoupments and counterclaims, and (iv) promptness, diligence and any
requirement that any Beneficiary protect, secure, perfect or insure any Lien or
any property subject thereto; (f) notices, demands, presentments, protests,
notices of protest, notices of dishonor and notices of any action or inaction,
including acceptance of this Guaranty, notices of default under the Amended and
Restated Notes, the Purchase Agreement or any other Transaction Agreement or any
agreement or instrument related thereto, notices of any renewal, extension or
modification of the Guarantied Obligations or any agreement related thereto, and
notices of any of the matters referred to in Section 3 and Section 4 hereof and
any right to consent to any thereof; and (g) to the fullest extent permitted by
law, any defenses or benefits that may be derived from or afforded by law which
limit the liability of or exonerate guarantors or sureties, or which may
conflict with the terms of this Guaranty.
6. GUARANTORS' RIGHTS OF SUBROGATION, CONTRIBUTION,
ETC.; SUBORDINATION OF OTHER OBLIGATIONS. So long as any Guarantied Obligation
remains outstanding and has not been paid in full, Guarantor waives any claim,
right or remedy, direct or indirect, that such Guarantor now has or may
hereafter have against Company or any of its assets in connection with this
Guaranty or the performance by such Guarantor of its obligations hereunder, in
each case whether such claim, right or remedy arises in equity, under contract,
by statute under common law or otherwise and including without limitation (a)
any right to enforce, or to participate in, any claim, right or remedy that any
Beneficiary now has or may hereafter have against Company unless Guarantor pays
the Guarantied Obligations in full, and (b) any benefit of, and any right to
participate in, any collateral or security now or hereafter held by any
Beneficiary. Guarantor will defer any exercise or enforcement of any right of
subrogation, reimbursement or indemnification that such Guarantor now has or may
hereafter have against Company until payment in full of the Guarantied
Obligations. In addition, until the Guarantied Obligations shall have been paid
in full, each Guarantor shall withhold exercise of any right of contribution
such Guarantor may have against any other guarantor of any of the Guarantied
Obligations. Each Guarantor further agrees that, to the extent the waiver or
agreement to withhold the exercise of its rights of subrogation, reimbursement,
indemnification and contribution as set forth herein is found by a court of
competent jurisdiction to be void or voidable for any reason, any rights of
subrogation, reimbursement or indemnification such Guarantor may have against
Company or against any collateral or security, and any rights of contribution
such Guarantor may have against any such other Guarantor, shall be junior and
subordinate to any rights the Beneficiaries may have against Company, to all
right, title and interest the Beneficiaries may have in any such collateral or
security, and to any right the Beneficiaries may have against any other
Guarantor.
Any indebtedness of Company now or hereafter held by any
Guarantor is subordinated in right of payment to the Guarantied Obligations, and
any such indebtedness of Company to a Guarantor collected or received by such
Guarantor after an Event of Default has
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occurred and is continuing, and any amount paid to Guarantor on account of any
subrogation, reimbursement, indemnification or contribution rights referred to
in the preceding paragraph when all Guarantied Obligations (other than
contingent indemnification obligations) have not been paid in full, shall be
held in trust for the Beneficiaries and shall forthwith be paid over to the
Beneficiaries to be credited and applied against the Guarantied Obligations.
7. EXPENSES. Guarantors jointly and severally agree to
pay, or cause to be paid, on demand, and to save the Beneficiaries harmless
against liability for, (i) any and all costs and expenses (including reasonable
fees and disbursements of counsel and allocated costs of internal counsel)
incurred or expended by any Beneficiary in connection with the enforcement of or
preservation of any rights under this Guaranty and (ii) any and all costs and
expenses (including those arising from rights of indemnification) required to be
paid by any Guarantor under the provisions of any other Transaction Agreement
executed by such Guarantor. The agreements in this Section 7 shall survive
repayment of the Guarantied Obligations and all other amounts payable under the
Transaction Agreements.
8. FINANCIAL CONDITION OF COMPANY. No Beneficiary shall
have any obligation, and each Guarantor waives any duty on the part of any
Beneficiary, to disclose or discuss with such Guarantor its assessment, or such
Guarantor's assessment, of the financial condition of Company or any matter or
fact relating to the business, operations or condition of Company. Each
Guarantor has adequate means to obtain information from Company on a continuing
basis concerning the financial condition of Company and its ability to perform
its obligations under the Purchase Agreement and the other Transaction
Agreements, and each Guarantor assumes the responsibility for being and keeping
informed of the financial condition of Company and of all circumstances bearing
upon the risk of nonpayment of the Guarantied Obligations.
9. REPRESENTATIONS AND WARRANTIES. Each Guarantor makes,
for the benefit of Beneficiaries, each of the representations and warranties
made in the Purchase Agreement by Company as to such Guarantor's organization
and legal status, and the enforceability of the Transaction Agreements to which
such Guarantor is a party.
10. SET OFF. In addition to any other rights any
Beneficiary may have under law or in equity, if any amount shall at any time be
due and owing by a Guarantor to any Beneficiary under this Guaranty, such
Beneficiary is authorized at any time or from time to time, without notice (any
such notice being expressly waived), to set off and to appropriate and to apply
any and all deposits (general or special, including but not limited to
indebtedness evidenced by certificates of deposit, whether matured or unmatured)
and any other indebtedness of such Beneficiary owing to a Guarantor and any
other property of such Guarantor held by a Beneficiary to or for the credit or
the account of such Guarantor against and on account of the Guarantied
Obligations and liabilities of such Guarantor to any Beneficiary under this
Guaranty.
11. MISCELLANEOUS. It is not necessary for Beneficiaries
to inquire into the capacity or powers of any Guarantor or Company or the
officers, directors or any agents acting or purporting to act on behalf of any
of them.
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The rights, powers and remedies given to Beneficiaries by this
Guaranty are cumulative and shall be in addition to and independent of all
rights, powers and remedies given to Beneficiaries by virtue of any statute or
rule of law or in any of the Transaction Agreements or any agreement between one
or more Guarantors and one or more Beneficiaries or between Company and one or
more Beneficiaries. Any forbearance or failure to exercise, and any delay by any
Beneficiary in exercising, any right, power or remedy hereunder shall not impair
any such right, power or remedy or be construed to be a waiver thereof, nor
shall it preclude the further exercise of any such right, power or remedy.
12. ADDITIONAL GUARANTORS. The initial Guarantors
hereunder shall be VitalStream and VitalStream Broadcasting. From time to time
subsequent to the date hereof, additional Subsidiaries of Company, VitalStream
Broadcasting or VitalStream shall become parties hereto within five (5) business
days after becoming a Subsidiary of Company, VitalStream Broadcasting or
VitalStream, as additional Guarantors (each an "ADDITIONAL GUARANTOR"), by
executing a counterpart, a form of which is attached as Exhibit A, of this
Guaranty. Upon delivery of any such counterpart to each Beneficiary, notice of
which is hereby waived by Guarantors, each such Additional Guarantor shall be a
Guarantor and shall be as fully a party hereto as if such Additional Guarantor
were an original signatory hereof. Each Guarantor expressly agrees that its
obligations arising hereunder shall not be affected or diminished by the
addition or release of any other Guarantor hereunder, nor by any subsidiary of
Company becoming an Additional Guarantor hereunder. This Guaranty shall be fully
effective as to any Guarantor that is or becomes a party hereto regardless of
whether any other Person becomes or fails to become or ceases to be a Guarantor
hereunder.
13. ENTIRE AGREEMENT. This Guaranty, the other
Transaction Agreements and the other agreements and instruments referred to
herein and therein contain the entire agreement between the Parties hereto and
supersede any prior understandings, agreements or representations by or between
the Parties hereto, written or oral, which may have related to the subject
matter hereof in any way.
14. SUCCESSORS AND ASSIGNS. Except as otherwise expressly
provided herein, all covenants and agreements contained in this Guaranty by or
on behalf of any of the Parties hereto shall bind and inure to the benefit of
the respective successors and assigns of the Parties hereto whether so expressed
or not.
15. COUNTERPARTS; EFFECTIVENESS. This Guaranty may be
executed in any number of counterparts and by the different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original for all purposes; but all such counterparts together
shall constitute but one and the same instrument. This Guaranty shall become
effective as to each Guarantor upon the execution of a counterpart hereof by
such Guarantor (whether or not a counterpart hereof shall have been executed by
any other Guarantor).
16. DESCRIPTIVE HEADINGS; INTERPRETATION. Section
headings used in this Guaranty are for convenience only and are not to affect
the construction of, or to be taken into consideration in interpreting, such
Guaranty.
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17. NOTICE. All notices, demands or other communications
to be given or delivered under or by reason of the provisions of this Guaranty
shall be in writing and shall be deemed to have been given when delivered
personally to the recipient or when sent by facsimile followed by delivery by
reputable overnight courier service (charges prepaid), one day after being sent
to the recipient by reputable overnight courier service (charges prepaid) or
five days after being mailed to the recipient by certified or registered mail,
return receipt requested and postage prepaid. Any notice, demand or other
communication hereunder may be given by any other means (including telecopy or
electronic mail), but shall not be deemed to have been duly given unless and
until it is actually received by the intended recipient. Such notices, demands
and other communications shall be sent to (i) each Beneficiary at the address
indicated for such Beneficiary in the Purchase Agreement and (ii) Company or any
Guarantor at the address indicated below:
Xxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Chief Operating Officer and
General Counsel
with a copy (which shall not constitute
notice to VitalStream or VitalStream
Broadcasting) to:
Stoel Rives LLP
000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
or to such other address, to the attention of such other Person and/or with such
other copy or copies as the recipient party has specified by prior written
notice to the sending party. If any time period for giving notice or taking
action expires on a day which is a Saturday, Sunday or legal holiday in the
State of New York (any other day being a "business day"), such time period shall
automatically be extended to, the next business day immediately following such
Saturday, Sunday or legal holiday.
18. CONSENT AMENDMENTS AND WAIVERS. No amendment,
modification, termination or waiver of any provision of this Guaranty, and no
consent to any departure by any Guarantor therefrom, shall in any event be
effective without the written concurrence of each Beneficiary and, in the case
of any such amendment or modification, Guarantor. Any such waiver or consent
shall be effective only in the specific instance and for the specific purpose
for which it was given.
19. SEVERABILITY. In case any provision in or obligation
under this Guaranty shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby.
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20. NO STRICT CONSTRUCTION. The parties hereto have
participated jointly in the negotiation and drafting of this Guaranty. In the
event an ambiguity or question of intent or interpretation arises, this Guaranty
shall be construed as if drafted jointly by the parties hereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Guaranty. Any
reference to any federal, state, local, or foreign Law shall be deemed also to
refer to all rules and regulations promulgated thereunder, unless the context
requires otherwise.
21. GOVERNING LAW. THIS GUARANTY AND THE RIGHTS AND
OBLIGATIONS OF GUARANTORS AND THE BENEFICIARIES HEREUNDER SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING
WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR CONFLICT OF LAW RULES
OR PROVISIONS (WHETHER OF THE STATE OF NEW YORK OR ANY OTHER JURISDICTION) THAT
WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THE STATE
OF NEW YORK. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL LAW OF THE STATE OF
NEW YORK SHALL CONTROL THE INTERPRETATION AND CONSTRUCTION OF THIS GUARANTY,
EVEN THOUGH UNDER THAT JURISDICTION'S CHOICE OF LAW OR CONFLICT OF LAW ANALYSIS,
THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD ORDINARILY APPLY.
22. JURISDICTION AND VENUE. ALL JUDICIAL PROCEEDINGS
BROUGHT AGAINST ANY GUARANTOR ARISING OUT OF OR RELATING TO THIS GUARANTY MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN NEW YORK
CITY, NEW YORK. BY EXECUTING AND DELIVERING THIS GUARANTY, COMPANY AND EACH
GUARANTOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY
AND UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY
AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS
GUARANTY. COMPANY AND EACH GUARANTOR HEREBY WAIVES ANY CLAIM THAT NEW YORK CITY,
NEW YORK IS AN INCONVENIENT FORUM OR AN IMPROPER FORUM BASED ON LACK OF VENUE.
Each Guarantor agrees that service of all process in any such proceeding in any
such court may be made by registered or certified mail, return receipt
requested, to such Guarantor at its address provided pursuant to Section 17 of
this Guaranty, such service being acknowledged by such Guarantor to be
sufficient for personal jurisdiction in any action against such Guarantor in any
such court and to be otherwise effective and binding service in every respect.
Nothing herein shall affect the right to serve process in any other manner
permitted by law or shall limit the right of any Beneficiary to bring
proceedings against such Guarantor in the courts of any other jurisdiction.
23. WAIVER OF RIGHT TO JURY TRIAL. COMPANY AND EACH
GUARANTOR HEREBY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRIAL BY JURY
in any litigation in any court with respect to, in connection with, or arising
out of this Guaranty or the validity, protection, interpretation, collection or
enforcement hereof or
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thereof; AND COMPANY AND EACH GUARANTOR HEREBY WAIVES, TO THE EXTENT PERMITTED
BY APPLICABLE LAW, THE RIGHT TO INTERPOSE ANY SETOFF in connection with any such
litigation, irrespective of the nature of such setoff except to the extent that
the failure so to assert any such setoff would permanently preclude the
prosecution of or recovery upon same. COMPANY AND EACH GUARANTOR AGREES THAT
THIS SECTION 23 IS A SPECIFIC AND MATERIAL ASPECT OF THIS GUARANTY AND
ACKNOWLEDGES THAT EACH BENEFICIARY WOULD NOT HAVE ENTERED INTO THIS GUARANTY IF
THIS SECTION 23 WERE NOT PART OF THIS GUARANTY.
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IN WITNESS WHEREOF, each Guarantor has caused this Amended and
Restated Guaranty to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
GUARANTORS
VITALSTREAM, INC.
By: ___________________________
Name: Xxxx X. Xxxxxxx
Title: President
VITALSTREAM BROADCASTING, INC.
By: ___________________________
Name: Xxxx X. Xxxxxxx
Title: President
EXHIBIT A
[FORM OF COUNTERPART FOR ADDITIONAL GUARANTORS]
This COUNTERPART (this "COUNTERPART"), dated _______, 20__, is
delivered pursuant to Section 12 of the Guaranty referred to below. The
undersigned hereby agrees that this Counterpart may be attached to the Guaranty,
dated as of September 30, 2003 (as it may be from time to time amended, modified
or supplemented, the "GUARANTY"; capitalized terms used herein not otherwise
defined herein shall have the meanings ascribed therein), among the Guarantors
named therein and the Beneficiaries. The undersigned, by executing and
delivering this Counterpart, hereby becomes an Additional Guarantor under the
Guaranty in accordance with Section 12 thereof and agrees to be bound by all of
the terms thereof.
IN WITNESS WHEREOF, the undersigned has caused this
Counterpart to be duly executed and delivered by its officer thereunto duly
authorized as of ___________, 20___.
[NAME OF ADDITIONAL GUARANTOR]
By: ___________________________
Name:
Title:
Address: ________________________________
________________________________
________________________________
