PERSONAL GUARANTY AGREEMENT
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THIS GUARANTY AGREEMENT ("Guaranty Agreement") is made and entered into
this 4th day of May, 2000 by Xxxxx X. Xxxxxxx ("Guarantor"), in favor of VDC
Communications, Inc. ("Lender").
WITNESSETH:
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WHEREAS, concurrently herewith, Rare Telephony, Inc. (f/k/a Washoe
Technology Corporation) and Cash Back Rebates XX.xxx, Inc. Nevada and Delaware
corporations respectively ("Borrower"), have executed a certain Promissory Note
in favor of Lender in the stated principal amount of One Hundred Thousand
Dollars ($100,000) (the "Note"); and
WHEREAS, to induce Lender to lend the One Hundred Thousand Dollars
($100,000) to Borrower, Guarantor has agreed to guarantee the Note;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby covenant and agree as follows:
1. Guarantor irrevocably and unconditionally, fully guarantees to Lender
the full and prompt payment of the indebtedness evidenced by the Note (the
"Indebtedness") at the times and according to the terms expressed.
Guarantor agrees that if all or any part of the Indebtedness is not paid
according to the tenor thereof, Guarantor shall, upon demand of Lender, pay the
Indebtedness in like manner as if the Indebtedness constituted the direct and
primary obligation of Guarantor as provided for herein. Guarantor's personal
liability hereunder shall be IN THE FULL AMOUNT of the Indebtedness.
2. This Guaranty Agreement is irrevocable and shall remain in full force
and effect continuously from the date hereof to and until the date on which the
Indebtedness is paid in full, whereupon this Guaranty Agreement shall
automatically terminate ("Termination Date").
3. Guarantor grants to Lender, in Lender's sole and absolute discretion
and without notice to Guarantor, the power and authority to deal in any lawful
manner with the Indebtedness and, without limiting the generality of the
foregoing, the power and authority from time to time:
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(a) To change, amend or modify the Note or any other documents relating
thereto in a non-material way (collectively, the "Loan Documents");
(b) To discharge or release any person liable under the Loan Documents;
(c) To take and hold security for the payment of the Indebtedness
and/or the performance of the other obligations guaranteed herein, and to
exchange, enforce, subordinate, waive or release any such security;
(d) To foreclose any security for the Indebtedness, and to direct the
order or manner of sale of any such security as Lender in Lender's sole and
absolute discretion may determine;
(e) To grant any extensions of time, renewals or other indulgences,
forbearance, waivers or releases to Borrower or any other person liable under
the Loan Documents.
(f) To accept or make compositions or other alignments or file or
refrain from filing a claim in any bankruptcy proceedings of Borrower or any
other person liable under the Loan Documents;
(g) To credit payments on the Indebtedness in such manner and in such
order of priority as Lender may determine in lender's sole and absolute
discretion; and
(h) To otherwise deal with Borrower or any other guarantor or person
related to the Indebtedness or any security as Lender may determine in Lender's
sole and absolute discretion.
Without limiting the generality of the foregoing, Guarantor WAIVES any and
all rights, benefits and defenses under law which may provide that a surety is
exonerated if a creditor, without the consent of the surety, alters the original
obligation of the principal in any respect, or if the creditor in any way
imperils or suspends the creditor's rights against the principal.
The liability of Guarantor shall not be terminated, affected, impaired or
reduced in any way by any action taken by Lender under the foregoing provisions
or any other provision hereof or by any delay, failure or refusal of Lender to
exercise any right or remedy Lender may have against Borrower or any other
person, including other guarantors, if any, liable for all or any part of the
Indebtedness hereby guaranteed.
4. If at any time all or any part of any payment made by Guarantor or
received by Lender from Guarantor under or with respect to this Guaranty
Agreement is avoided or recovered directly or indirectly from Lender as a
preference, fraudulent transfer, or otherwise, then Guarantor's obligations
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hereunder shall, to the extent of the payment avoided or recovered, be deemed to
have continued in existence, notwithstanding such previous payment made by
Guarantor or receipt of payment by Lender, and Guarantor's obligations hereunder
shall continue to be effective or be reinstated, as the case may be, as to such
payment, all as though such previous payment by Guarantor had never been made,
irrespective of the payment in full of the Indebtedness.
5. To the fullest extent permitted by law, Guarantor hereby WAIVES the
following rights, defenses and benefits:
a. The defense of the statute of limitations in any action hereunder
or in any action for the collection of the Indebtedness or the performance of
any other obligation hereby guaranteed;
b. Any defense that may arise by reason of the incapacity, lack of
authority, death or disability of any other person or persons or the failure of
Lender to file or enforce a claim against the estate (in administration,
bankruptcy or any other proceeding) of any other person or persons
c. Except as otherwise provided herein, diligence and all demands,
presentment for payment, notice of nonpayment, protest, notice of protest and
all other notices of any kind, including, without limiting the generality of the
foregoing, notice of the existence, creation or incurring of any new or
additional obligation or of any action or nonaction on the part of Borrower,
Lender, any endorser or creditor of Borrower or of Guarantor or on the part of
any other person whomsoever under this or any other instrument in connection
with any Indebtedness or evidence of Indebtedness held by Lender or in
connection with the Indebtedness hereby guaranteed;
d. Any duty or obligation on Lender's part to perfect, protect, retain
or enforce any security for the payment of the Indebtedness or the performance
of any of the other obligations guaranteed herein;
e. Any duty on the part of Lender to disclose to Guarantor any facts
Lender may now or hereafter know about Borrower, regardless of whether Lender
has reason to believe that any such facts materially increase the risk beyond
that which Guarantor intends to assume or has reason to believe that such facts
are unknown to Guarantor or has a reasonable opportunity to communicate such
facts to Guarantor, it being understood and agreed that Guarantor is fully
responsible for being and keeping informed of the financial condition of
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Borrower and of any and all circumstances bearing on the risk that liability may
be incurred by Guarantor hereunder; and
f. Any and all rights, benefits and defenses under law available to
guarantors or sureties, including without limitations, any such rights, benefits
or defenses which would otherwise require Lender to proceed against Borrower or
any other person, or to proceed against or exhaust any security held by Lender
at any time, or to first apply any security of Borrower to the discharge of the
Indebtedness, or to pursue any other remedy in Lender's power before proceeding
against Guarantor hereunder.
6. Guarantor agrees that Guarantor shall have no right of subrogation,
reimbursement, exoneration, contribution, indemnity, or similar right as against
Borrower which would result in Guarantor being deemed a creditor of Borrower
under the Federal Bankruptcy Code or any other law or for any other purpose; and
Guarantor further WAIVES any and all rights, benefits and defenses under law,
which may provide that a surety is entitled to the benefit of every security for
the performance of the principal obligation held by the creditor.
7. With or without notice to Guarantor and without affecting in any way
Guarantor's obligation or liability hereunder for payment of the Indebtedness,
Lender, in Lender's sole and absolute discretion, at any time and from time to
time, and in such manner and upon such terms as Lender deems fit, may:
a. Apply any or all payments or recoveries from Borrower or from all other
guarantors or endorsers under any other instrument or realized from any
security, in such manner and order of priority as lender may determine in
Lender's sole and absolute discretion, to any Indebtedness of Borrower to
Lender, whether or not such Indebtedness is guaranteed hereby or is otherwise
secured or is due at the time of such application; or
b. Refund to Borrower any payment received by Lender upon the Indebtedness
hereby guaranteed.
8. All rights, powers and remedies of Lender hereunder shall be cumulative
and not alternative and such rights, powers and remedies shall be in addition to
all rights, powers and remedies given to lender under the Loan Documents
(including any other guarantees of the Indebtedness) or otherwise by law.
9. The liability of Guarantor under this Guaranty Agreement shall be an
absolute, direct, immediate and unconditional guarantee of payment and not of
collection. The Indebtedness of Guarantor hereunder is independent of the
Indebtedness of Borrower and is not conditioned on contingent upon the
genuineness, validity, regularity or enforceability of any of the Loan
Documents. In the event of any default hereunder, a separate action or actions
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may be brought and prosecuted against Guarantor, whether or not Borrower is
joined therein or a separate action or actions are brought against Borrower.
Lender may enforce Lender's rights under the Guaranty Agreement without first
exercising any other remedy or right that Lender may have or seeking to obtain
payment or performance from Borrower, any other person (including any other
guarantor) or from any collateral which Lender may hold as security for the
Indebtedness. Lender may maintain successive actions for other defaults.
Lender's rights hereunder shall not be exhausted by the exercise of any of
Lender's rights or remedies or by any such action or by any number of successive
actions. Guarantor WAIVES any and all rights, benefits and defenses under law
which may generally provide that a guarantor or surety is not liable if for
certain reasons there is no liability upon the part of the principal or if the
principal ceases to become liable or which may generally provide that the
Indebtedness of a guarantor or surety must not be larger nor more burdensome
than that of the principal.
10. Notwithstanding the fact that Borrower may be a corporation, a joint
venture or a partnership, Lender is not to be concerned to see or inquire into
the powers of Borrower, its directors, officers, joint ventures, partners,
associates or other agents acting or purporting to act on its behalf, and
Guarantor expressly waives any defense to the enforcement of this Guaranty
Agreement to the effect that the transaction between Borrower and Lender is in
excess of the powers of the Borrower, or shall be in any way irregular,
defective or informal. Guarantor's liability hereunder shall not be affected by
changes in the name of the entity or the constituent members of the entity which
constitutes Borrower.
11. It is expressly understood that the obligations of Guarantor hereunder
are an additional and cumulative benefit given to Lender for Lender's security.
12. No action based on this Guaranty Agreement shall be instituted until
written demand for payment or performance, as appropriate, has been made upon
Guarantor (a) upon delivery of such demand in person to Guarantor, or (b) on the
next business day following deposit of an envelope containing such demand with
an overnight courier service (such as United Parcel Service) for delivery to
Guarantor at the address set forth next to Guarantor's signature hereon, or (c)
on the second business day following deposit of an envelope containing such
demand in the United States mail, postage prepaid, certified mail,
return-receipt requested, addressed to Guarantor as described above. Guarantor
may change Guarantor's address for such notices by giving notice of the change
of address to Lender in the manner provided herein. All payments hereunder shall
be made in lawful money of the United States of America. No delay in making
demand on Guarantor for satisfaction of Guarantor's liabilities hereunder shall
prejudice Lender's right to enforce such satisfaction.
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13. Guarantor shall pay to Lender, upon written demand, all reasonable
attorneys' fees (including an allocable portion of in-house counsel fees) and
all costs and other expenses which Lender expends or incurs in enforcing this
Guaranty Agreement against Guarantor whether or not suit is filed, including,
without limitation, all reasonable attorneys' fees (including an allocable
portion of in-house counsel fees), costs and expenses incurred by Lender in
connection with any insolvency, bankruptcy, reorganization, arrangement or other
similar proceedings involving Borrower or Guarantor which in any way affect the
exercise by Lender of Lender's rights and remedies hereunder. Until paid to
Lender, such attorneys' fees (including an allocable portion of in-house counsel
fees), costs and expenses shall bear interest at the highest rate of interest
allowable by law.
14. Should any one or more provisions of this Guaranty Agreement be
determined to be illegal or unenforceable, all other provisions nevertheless
shall be effective.
15. No provision of this Guaranty Agreement or right of Lender hereunder
can be waived nor shall Guarantor be released from any of Guarantor's
obligations hereunder except by a writing duly executed by Lender, or unless
this Guaranty Agreement terminates pursuant to its terms as set forth herein.
This Guaranty Agreement may not be modified, amended, revised, changed or varied
in any way whatsoever except by the express terms of a writing duly executed by
Lender and Guarantor.
16. When the context and construction so requires, all words used in the
singular herein shall be deemed to have been used in the plural, and the
masculine shall include the feminine and neuter, and vice versa. The word
"person" as used herein shall include any individual, company, firm,
association, partnership, corporation, trust or other legal entity of any kind
whatsoever. The word "Borrower" as used herein includes Borrower acting on
behalf of itself or any estate created by the commencement of a case under the
Federal Bankruptcy Code or any other insolvency, bankruptcy, reorganization or
liquidation proceeding, or by any trustee under the Federal Bankruptcy Code,
liquidator, sequestrator, and receiver of Borrower and Borrower's property or
similar person duly appointed pursuant to any laws generally governing any
insolvency, bankruptcy, reorganization, liquidation, receivership or like
proceeding. If more than one person has signed this Guaranty Agreement as
Guarantor, it shall be the joint and several obligation of each of them. The
words "Loan Documents" as used herein include any modifications, extensions,
renewals, or replacements thereof. All references to statutes herein shall
include any modifications, amendments, substitutions or replacements thereof.
17. In the event that all or any part of the Indebtedness is assigned by
Lender, this Guaranty Agreement shall automatically be assigned therewith in
whole or in part, as applicable, without the need of any express assignment and,
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when so assigned, Guarantor shall be bound as above to the assignee(s) without
in any manner affecting Guarantor's liability hereunder for any part of the
Indebtedness retained by Lender.
18. Guarantor agrees, within seven (7) calendar days after request from
Lender, to deliver to Lender a statement certifying that this Guaranty Agreement
is in full force and effect, and that no defense of offset exists to Guarantor's
obligations under the Guaranty Agreement (or stating any facts to the contrary).
19. This Guaranty Agreement shall inure to the benefit of and bind the
heirs, legal representatives, administrators, executors, successors, and assigns
of Lender and of Guarantor.
20. Guarantor hereby agrees that:
a. The execution and delivery to Lender of this Guaranty Agreement of
the accrual of a claim hereunder in favor of Lender shall be deemed to have
caused an event to occur in the State of New Jersey, bringing Guarantor within
the jurisdiction of the state and federal courts in the State of New Jersey, and
Guarantor further hereby agrees to and, as a separate and independent covenant,
does hereby submit to the jurisdiction of the state and federal courts in the
State of New Jersey; and
b. This Guaranty Agreement is made in the State of New Jersey and the
provisions hereof shall be construed and enforced in accordance with the laws of
the State of New Jersey (irrespective of its conflicts of laws rules) and, to
the extent that federal law may preempt the applicability of state laws, federal
law.
21. Except as provided in any other written agreement at any time hereafter
in force between Lender and Guarantor, this Guaranty Agreement shall constitute
the entire agreement of Guarantor with Lender with respect to the subject matter
hereof and no representation, understanding, promise or condition concerning the
subject matter hereof shall be binding upon Lender unless expressed herein.
THE UNDERSIGNED GUARANTOR ACKNOWLEDGES THAT HE WAS AFFORDED THE OPPORTUNITY
TO READ THIS DOCUMENT CAREFULLY AND TO REVIEW IT WITH AN ATTORNEY OF HIS CHOICE
BEFORE SIGNING IT. THE UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ AND
UNDERSTOOD THE MEANING AND EFFECT OF THIS DOCUMENT, INCLUDING BUT NOT LIMITED TO
ALL WAIVERS CONTAINED HEREIN, BEFORE SIGNING IT.
IN WITNESS WHEREOF, the parties have executed this Guaranty Agreement as of
the day and year first above written.
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WITNESS: "GUARANTOR"
/s/ Xxxxx X. Santa Xxxxx /s/ Xxxxx X. Xxxxxxx
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Signature Xxxxx X. Xxxxxxx
Xxxxx X. Santa Xxxxx Address:
------------------------ 74 Xxxxx Court
Print Name Xxxxxxxxx, XX 00000
ATTEST "LENDER"
VDC COMMUNICATIONS, INC.
/s/ Xxxxx X. Xxxxx By: /s/ Xxxxxxxxx X. Xxxxx
------------------------ ---------------------------------
Signature Xxxxxxxxx X. Xxxxx
Chief Executive Officer
Xxxxx X. Xxxxx Address:
------------------------ 00 Xxxxx Xxxx Xxxx
Print Name Xxxxxxxxx, XX 00000
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