Coast
Continuing Guaranty
Co-Borrower: Xxxxxxx Square Teleconferencing, Inc.,
a Massachusetts corporation
Address: 0 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Co-Borrower: Conference Source International, Inc.,
a Georgia corporation
Address: 000 Xxxxxxxxxx Xxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxx 00000
Co-Borrower: Telephone Business Meetings, Inc.,
a Delaware corporation
Address: 0000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000-0000
Co-Borrower: Call Points, Inc.,
a Delaware corporation
Address: 0000 Xxxxxx Xxxx Xxxx
Xxxxxxxxxx, Xxxxxxx 00000
Co-Borrower: American Conferencing Company, Inc.,
a Delaware corporation
Address: 000 Xxxxxxxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxx 00000
Co-Borrower: Communication Development Corporation,
a Connecticut corporation
Address: 00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxx 00000
Guarantor: VIALOG Corporation
00 Xxx Xxxxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxxx 00000
Date: September 30, 1998
This Continuing Guaranty is executed by the above-named guarantor
("Guarantor"), as of the above date, in favor of COAST BUSINESS CREDIT(R), a
division of Southern Pacific Bank ("Coast"), a California corporation, with
offices at 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000,
with respect to the Indebtedness of the above-referenced Co-Borrowers jointly
and severally (except where expressly stated otherwise or unless the context
requires a different meaning, reference to "Borrower" in this Continuing
Guaranty, and all documents and agreements related thereto, shall mean each of
the above-referenced Co-Borrowers, jointly and severally). All capitalized terms
not otherwise defined herein shall have the meaning assigned to them in the Loan
and Security Agreement dated as of the date hereof between Borrower and Coast
(the "Loan Agreement").
1. Continuing Guaranty. Guarantor hereby unconditionally guarantees and
promises to pay on demand to Coast, which demand shall be made by Coast only
after the occurrence of an Event of Default under the Loan Agreement, at the
address indicated above, or at such other address as Coast may direct, in lawful
money of the United States, and to perform for the benefit of Coast, all
Indebtedness of Borrower now or hereafter owing to or held by Coast. 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 Coast or acquired by Coast by assignment or
otherwise, or held by Coast 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
reasonable 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 substantially all 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 Coast to
Borrower in Coast's sole discretion, but Guarantor acknowledges and agrees that
acceptance by Coast of this Guaranty shall not constitute a commitment of any
kind by Coast to extend such credit or other financial accommodation to Borrower
or to permit Borrower to incur Indebtedness to Coast. 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.
2. Waivers. Guarantor, to the maximum extent permitted by law, hereby
waives: (a) presentment for payment, notice of dishonor, 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;
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 Coast 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 Coast 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 Coast or any indebtedness of Coast to Borrower, or to
exercise any other right or power, or pursue any other remedy Coast 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 Coast 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 Coast 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 Coast 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 Coast 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 Coast 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 Coast for repayment or recovery of any amount or amounts received
by Coast 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 Coast repays all or part of
said amount by reason of any judgment, decree or order of any court or
administrative body having jurisdiction over Coast or any of its property, or by
reason of any settlement or compromise of any such claim effected by Coast 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 Coast under this Guaranty for
the amount so repaid or recovered, to the same extent as if such amount had
never originally been received by Coast, 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 Coast, nor any of its directors, officers, employees,
agents, attorneys or any other person affiliated with or representing Coast
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 Coast, or any of its directors, officers,
employees, agents, attorneys or any other person affiliated with or representing
Coast.
3. Consents. Guarantor hereby consents and agrees, to the maximum
extent permitted by law, that, without notice to or by Guarantor and without
affecting or impairing in any way the obligations or liability of Guarantor
hereunder, Coast may, from time to time before or after revocation of this
Guaranty, do any one or more of the following in Coast'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 Coast 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 Coast 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 Coast determines in its sole discretion, regardless of whether or not
such Indebtedness is secured or is due and payable. Guarantor, to the maximum
extent permitted by law, consents and agrees that Coast 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
any and all duties and responsibilities imposed on Coast by operation of law or
otherwise with respect to any property securing any or all of the Indebtedness
shall be deemed waived to the extent such duties or responsibilities may be
waived by consent or agreement of the parties. Without limiting the generality
of the foregoing, Coast 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. Coast's books and records showing the account
between it and the Borrower shall be admissible in evidence, to the maximum
extent permitted by law, in any action or proceeding as prima facie proof of the
items therein set forth. Coast'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 Coast and the
Borrower, unless Coast 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, to the maximum extent permitted by law, 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, Coast 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, to the maximum extent permitted by law,
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 or decisional law now or hereafter in effect, or otherwise ("Comparable
Law"). Without limiting the generality of the foregoing, to the maximum extent
permitted by law, (a) Guarantor waives all rights and defenses arising out of an
election of remedies by Coast, 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
Comparable Law; (b) Guarantor further waives all rights and defenses arising out
of an election of remedies by Coast, 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 Comparable Law;
(c) Guarantor understands that if Coast 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 doctrine of estoppel and Sections 580a, 580d or 726
of the California Code of Civil Procedure or Comparable Law, and Guarantor
hereby expressly waives all such defenses. (d) Guarantor understands and agrees
that, in the event Coast 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 Coast 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 Coast 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 Coast 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 Coast 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
Coast 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.
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 Coast, immediately become due and
payable, without notice, and without regard to the expressed maturity of any of
the Indebtedness, in the event: (a) any warranty, representation, statement,
report, or certificate made or delivered to Coast by Borrower or Guarantor, or
any of their respective officers, partners, employees, or agents, is incorrect,
false, untrue, or misleading when given in any material respect, or (b) Borrower
or Guarantor shall fail to pay or perform when due all or any part of the
Indebtedness; or (c) Guarantor shall fail to pay or perform within 5 days after
the same is due any indebtedness or obligation of Guarantor to Coast or to any
parent, subsidiary or corporate affiliate of Coast, whether under this Guaranty
or any other instrument, document, or agreement heretofore or hereafter entered
into; or (d) there occurs in Coast's good faith exercise of reasonable judgment
a material impairment of the prospect of payment or performance of any or all of
the Indebtedness; or (e) any event shall occur which does result in the
acceleration of the maturity of any indebtedness of Borrower or Guarantor to
others in excess of $25,000 (regardless of any requirement of notice,
opportunity to cure or other condition prior to the exercise of any right of
acceleration); or (f) Borrower or Guarantor shall fail promptly to perform or
comply with any term or condition of any agreement with any third party which
does or could result in a material adverse effect on the business of Borrower or
Guarantor unless timely cured or waived in writing by such third party; or (g)
there shall be made or exist any levy, assessment, attachment, seizure, lien, or
encumbrance for any cause or reason whatsoever upon all or any material part of
the property of Borrower or Guarantor (unless discharged by payment, release or
bond not more than ten days after such event has occurred); or (h) there shall
occur the dissolution, termination of existence, insolvency, or business failure
of Borrower or Guarantor, or the appointment of a receiver, trustee or custodian
for Borrower or Guarantor or all or any part of the property of either of them,
or the assignment for the benefit of creditors by Borrower or Guarantor, or the
commencement of any proceeding by or against Borrower or Guarantor under any
reorganization, bankruptcy, insolvency, arrangement, readjustment of debt,
dissolution or liquidation law or statute of any jurisdiction, now or hereafter
in effect which, if commenced by or against Borrower or Guarantor, is not
dismissed within thirty (30) days; or (i) Borrower or Guarantor shall be
deceased or declared incompetent by any court or a guardian or conservator shall
be appointed for either of them or for the property of either of them; or (j)
Guarantor or Borrower shall generally not pay their respective debts as they
become due or shall enter into any agreement (whether written or oral), or offer
to enter into any such agreement, with all or a significant number of its
creditors regarding any moratorium or other indulgence with respect to its debts
or the participation of such creditors or their representatives in the
supervision, management, or control of the business of either of them; or (k)
Borrower or Guarantor shall conceal, remove or permit to be concealed or removed
any part of its property, with intent to hinder, delay or defraud its creditors,
or make or suffer any transfer (unless it is permitted by the Loan Agreement) of
any of its property which would be fraudulent under any bankruptcy, fraudulent
conveyance or similar law, or shall make any transfer (not permitted by law) of
its property to or for the benefit of any creditor at a time when other
creditors similarly situated have not been paid; or (l) the board of directors
or shareholders of Borrower or Guarantor shall adopt any resolution or plan for
its dissolution or the liquidation of all or substantially all of its assets; or
(m) 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".
7. Right to Attachment Remedy. Guarantor agrees that, notwithstanding
the existence of any property securing any or all of the Indebtedness, Coast
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 Coast, in its sole and
absolute discretion, determines prior to the disposition of such property that
the amount to be realized by Coast therefrom may be less than the indebtedness
of the Guarantor under this Guaranty, Coast shall have all the rights of an
unsecured creditor against Guarantor, including without limitation the right of
Coast, prior to the disposition of said property, to obtain a temporary
protective order and writ of attachment against Guarantor. Guarantor, to the
maximum extent permitted by law, waives the benefit of Section 483.010(b) of the
California Code of Civil Procedure or Comparable Law and of any and all other
statutes and rules of law now or hereafter in effect requiring Coast to first
resort to or exhaust all such collateral before seeking or obtaining any
attachment remedy against Guarantor. Coast shall have no liability to Guarantor
as a result thereof, whether or not the actual deficiency realized by Coast is
less than the anticipated deficiency on the basis of which Coast obtains a
temporary protective order or writ of attachment.
8. Indemnity. Guarantor hereby agrees to indemnify Coast and hold Coast
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 Coast 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 Coast and Borrower, any actual or alleged failure of Coast
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 Coast 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 Coast or any of its
directors, officers, employees, agents, attorneys, or any other person
affiliated with or representing Coast). 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.
9. Subordination. 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.
Except as permitted in that certain Subordination Agreement between Guarantor
and Coast dated as of the date hereof, and any written amendments there, no
payment in respect of any such subordinated obligations shall at any time be
made to or accepted by Guarantor if at the time of such payment any Indebtedness
is outstanding unless Coast, in its sole discretion, agrees to such payment in
writing. The agreement by Coast to a payment on account of subordinated debt
shall not constitute an agreement to the payment of any other subordinated debt.
If any Event of Default has occurred, all debts, liabilities and obligations
owing form Borrower to Guarantor shall be subordinated, Borrower and any
assignee, trustee in bankruptcy, receiver, or any other person having custody or
control ever any or all of Borrower's property are hereby authorized and
directed to pay to Coast 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 Coast 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 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 Coast and shall forthwith be paid over to Coast to be applied to the
Indebtedness in such order and sequence as Coast shall in its sole discretion
determine, without limiting or affecting any other right or remedy which Coast
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.
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, to the maximum extent permitted by law, waives all
benefits of California Civil Code Section 2815 and Comparable Law, and agrees
that the obligations of Guarantor hereunder may not be terminated or revoked in
any manner except by giving written notice of revocation to Coast at its address
above by registered first-class U.S. mail, postage prepaid, return receipt
requested, and only as to new loans made by Coast to Borrower after actual
receipt of such written notice by Coast. No termination or revocation of this
Guaranty shall be effective until actual receipt or, if properly delivered to
Coast in accordance herewith and Coast wrongfully or without just cause refuses
to accept delivery, of said written notice of revocation by Coast.
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 day
following actual receipt or, if properly delivered to Coast in accordance
herewith and Coast wrongfully or without just cause refuses to accept delivery,
of said written notice of revocation by Coast, 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 receipt of revocation), and
all attorneys' fees, court costs and collection charges, incurred before or
after receipt of revocation, 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 Coast. 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 Coast 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 Borrower and is executing and delivering this Guaranty at
Borrower'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 Coast 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 Coast to
furnish to him any information now or hereafter in Coast'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 Borrower'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 Coast 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 Coast, 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 Coast upon Coast's request (i) such financial
statements and reports concerning Guarantor for such periods of time as Coast
may designate as are customarily prepared by Guarantor or which are required by
the Loan Agreement and any other related document or agreement, (ii) any other
information concerning Guarantor's business, financial condition or affairs as
Coast may in the exercise of its good faith business judgment request, and (iii)
copies of any and all foreign, federal, state and local tax returns and reports
of or relating to Guarantor as Coast may from time to time request and Coast
shall take reasonable steps to keep confidential all tax returns and reports
obtained by Coast, but Coast shall have the right to disclose such documents and
information contained therein to its auditors, regulatory agencies, and
attorneys, and pursuant to any subpoena or other legal process. 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 Coast hereunder or in any litigation in which Coast may be
involved relating directly or indirectly to Borrower or to Guarantor. Guarantor
further agrees immediately to give written notice to Coast of any material
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 Coast hereunder shall be complete, accurate and correct
in all respects. Whenever requested, Guarantor shall further deliver to Coast 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 an officer of Guarantor approved by Coast) warranting and
representing that all reports, financial statements and other documents and
information delivered or caused to be delivered to Coast 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 Coast no condition or event which constitutes an Event of Default
under this Guaranty.
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, and Guarantor has a financial interest and
investment in Borrower, (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, Guarantor agrees to
reimburse Coast on demand for all reasonable attorneys' fees and all other
reasonable costs and expenses incurred by Coast 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 Coast on demand for all reasonable attorneys'
fees and costs Coast 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 defend 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 Coast in any litigation with respect to Borrower's or
Guarantor's affairs. In the event either Coast or Guarantor files any lawsuit
against the other predicated on a breach of this Guaranty, to the maximum extent
permitted by law, the prevailing party in such action shall be entitled to
recover its attorneys' fees and costs of suit from the non-prevailing party.
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 Coast 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. Coast 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 Coast immediate written
notice of any change in his address.
17. Claims. Guarantor agrees that any claim or cause of action by
Guarantor against Coast, or any of Coast'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 Coast and Guarantor
or between Coast 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 Coast, or by Coast'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
Coast or any other person authorized to accept service of process on behalf of
Coast, within 30 days thereafter. Guarantor 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 Coast.
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 or hereafter executes this or a Guaranty of the obligations of Borrower
(all or less than all Borrowers), 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 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. Coast 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 Coast, 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 Coast's right to proceed in any other form of action or
proceeding or against any other party. The failure of Coast 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 Coast 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 Coast
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 Coast 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 Guarantor and a duly authorized
officer of Coast. All rights, benefits and privileges hereunder shall inure to
the benefit of and be enforceable by Coast and its successors and assigns and
shall be binding upon Guarantor and his heirs, executors, administrators,
personal representatives, successors and assigns. Neither the death of Guarantor
nor notice thereof to Coast shall terminate this Guaranty as to his estate, and,
notwithstanding the death of Guarantor or notice thereof to Coast, 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 Coast. 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. One Satisfaction. Notwithstanding any other provision of this
Continuing Guaranty to the contrary, nothing herein shall permit Coast to
receive more payments than which, in the aggregate, would be required under the
Loan Agreement and all related documents and agreements as they may be modified,
amended or supplemented from time to time, to indefeasibly satisfy, in full, any
and all Obligations of Borrower to Coast.
21. 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 Coast 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 Coast, 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.
22. Mutual Waiver of Right to Jury Trial. COAST 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 COAST AND GUARANTOR UNLESS OTHERWISE EXPRESSLY AGREED TO IN
WRITING ; OR (iii) ANY BREACH, CONDUCT, ACTS OR OMISSIONS OF COAST OR GUARANTOR
OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR
ANY OTHER PERSON AFFILIATED WITH OR REPRESENTING COAST OR GUARANTOR; IN EACH OF
THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE.
23. Unless and until the Indebtedness being guaranteed hereby is
indefeasibly paid and satisfied in full, Guarantor will not, without the prior
express written consent of Coast, pay or declare any dividends or distributions
on the ownership interests in Guarantor except for (a) dividends or
distributions payable solely in stock form of ownership interests in Guarantor
and (b) dividends to Guarantor if, when and to the extent required by Guarantor
in order to make regularly-scheduled payments of principal and interest on the
12 3/4% $75,000,000.00 Senior Notes issued by Guarantor, provided such dividends
or payments on the 12 3/4% Senior Notes would not result in a Default or Event
of Default by Borrower or Guarantor with respect to any of their respective
obligations to Coast.
23. Receipt of Copy. Guarantor acknowledges receipt of a copy of this
Guaranty.
VIALOG CORPORATION
By /s/Xxxx X. Xxxx
---------------
Xxxx X. Xxxx
Title Vice President - Finance
Address: 00 Xxx Xxxxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxx
Agreed:
COAST BUSINESS CREDIT(R), a division of Southern Pacific Bank
By /s/Xxxxxx X. Xxxxxx
-------------------
Xxxxxx X. Xxxxxx
Title Vice President
Address: 00000 Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Edit Kondorosi
Sr. Vice President
STATE OF Massachusetts )
) ss.
COUNTY OF Essex )
On October 1, 1998, before me, Xxxxxxx X. XxXxxxx Commission expires
May 28, 2004, Notary Public, personally appeared Xxxx Xxxx, personally known to
me (or proved to me on the basis of satisfactory evidence) to be the person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies),
and that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
/s/Xxxxxxx X. XxXxxxx
-------------------------------
Xxxxxxx X. XxXxxxx
(Seal)
