Exhibit 10.4
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UNCONDITIONAL GUARANTY
For and in consideration of certain loans by SILICON VALLEY BANK, a
California-chartered bank, with its principal place of business at 0000 Xxxxxx
Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000 and with a loan production office located
at One Xxxxxx Executive Park, Suite 200, 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, doing business under the name "Silicon Valley East"
("Bank") to Switchboard, Incorporated, a Delaware corporation with its chief
executive office located at 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
(hereinafter, the "Borrower"), which loans were made pursuant to a certain Loan
and Security Agreement between Borrower and Bank dated May 31, 2002, as may be
amended from time to time (hereinafter, the "Agreement"), the undersigned
guarantor SWITCHBOARD SECURITIES CORPORATION, a Massachusetts corporation with
its principal office at 000 Xxxxxxxx Xxxx, Xxxxxxxx, XX 00000 ("Guarantor"),
hereby unconditionally and irrevocably guarantees the prompt and complete
payment of all amounts that Borrower owes to Bank and performance by Borrower of
the Agreement and any other agreements now existing or hereafter arising between
Borrower and Bank, as each may be amended from time to time (collectively
referred to as the "Agreements"), in strict accordance with their respective
terms.
1. If Borrower does not perform its obligations under the Agreements,
Guarantor will immediately pay all amounts due (including, without limitation,
all principal, interest, and fees) and satisfy all Borrower's obligations under
the Agreements.
2. These obligations are independent of Borrower's obligations and separate
actions may be brought against Guarantor (whether action is brought against
Borrower or whether Borrower is joined in the action). Guarantor waives benefit
of any statute of limitations affecting its liability. Guarantor's liability is
not contingent on the genuineness or enforceability of the Agreements.
3. Bank may, without notice to Guarantor and without affecting Guarantor's
obligations under this Guaranty: (a) renew, extend, or otherwise change the
terms of the Agreements; (b) take security for the payment of this Guaranty or
the Agreements; (c) exchange, enforce, waive and release any security; and (d)
apply the security and direct its sale as Bank, in its discretion, chooses.
4. Guarantor waives:
(a) Any right to require Bank to: (i) proceed against Borrower or any
other person; (ii) proceed against or exhaust any security; or (iii) pursue
any other remedy. Bank may exercise or not exercise any right or remedy it
has against Borrower or any security it holds (including the right to
foreclose by judicial or non-judicial sale) without affecting Guarantor's
liability.
(b) Any defenses from disability or other defense of Borrower or from
the cessation of Borrowers liabilities.
(c) Any setoff, defense or counterclaim against Bank.
(d) Any defense from the absence, impairment or loss of any right of
reimbursement or subrogation or any other rights against Borrower. Until
Borrower's obligations to Bank have been paid, Guarantor has no right of
subrogation or reimbursement or subrogation or other rights against
Borrower.
(e) Any right to enforce any remedy that Bank has against Borrower.
(f) Any rights to participate in any security held by Bank.
(g) Any demands for performance, notices of nonperformance or of new
or additional indebtedness. Guarantor is responsible for being and keeping
itself informed of Borrower's financial condition. Unless Guarantor
requests particular information, Bank has no duty to provide information to
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Guarantor.
5. Guarantor acknowledges that, to the extent Guarantor has or may have
rights of subrogation or reimbursement against Borrower for claims arising out
of this Guaranty, those rights may be impaired or destroyed if Bank elects to
proceed against any real property security of Borrower by non-judicial
foreclosure. That impairment or destruction could, under certain judicial cases
and based on equitable principles of estoppel, give rise to a defense by
Guarantor against its obligations under this Guaranty. Guarantor waives that
defense and any others arising from Bank's election to pursue non-judicial
foreclosure.
6. If Borrower becomes insolvent or is adjudicated bankrupt or files a
petition for reorganization or similar relief under the United States Bankruptcy
Code, or if a petition is filed against Borrower and/or any obligation under the
Agreements is terminated or rejected, or any obligation of Borrower is modified
or if Borrower's obligations are avoided Guarantor's liability will not be
affected and its liability will continue. If Bank must return any payment
because of the insolvency, bankruptcy or reorganization of Borrower, Guarantor
or any other guarantor, this Guaranty will remain effective or be reinstated.
7. Guarantor subordinates any indebtedness of Borrower it holds to Bank;
and Guarantor will collect, enforce and receive payments as Bank's trustee and
will pay Bank those payments without reducing or affecting its liability under
this Guaranty.
8. Guarantor will pay Bank's reasonable attorneys' fees and other costs and
expenses incurred enforcing this Guaranty. This Guaranty may not be waived,
revoked or amended without Bank's prior written consent. If any provision of
this Guaranty is unenforceable, all other provisions remain effective. This
Guaranty represents the entire agreement among the parties about this guaranty.
No prior dealings, no usage of trade, and no parol or extrinsic evidence may
supplement or vary this Guaranty. Bank may assign this Guaranty. This Guaranty
benefits Bank, its successors and assigns. This Guaranty is in addition to any
other guaranties Bank obtains.
9. Guarantor represents and warrants that (i) it has taken all action
necessary to authorize execute, deliver and perform this Guaranty; (ii)
execution, delivery and performance of this Guaranty do not conflict with any
organizational documents or agreements to which it is a party; and (iii) this
Guaranty is a valid and binding obligation, enforceable against Guarantor
according to its terms.
10. Guarantor will do all of the following:
(a) Maintain its corporate existence, remain in good standing in
Massachusetts, and continue to qualify in each jurisdiction in which the
failure to qualify could have a material adverse effect on the financial
condition, operations or business. Maintain all licenses, approvals, and
agreements, the loss of which could have a material adverse effect on its
financial condition, operations or business.
(b) Comply with all statutes and regulations if non-compliance could
adversely affect its financial condition, operations or business.
(c) Execute other instruments and take action Bank reasonably requests
to effect the purposes of this Agreement.
11. Guarantor hereby grants to Bank, a lien, security interest and right of
setoff as security for all obligations to Bank, whether now existing or
hereafter arising upon and against all deposits, credits, collateral and
property, now or hereafter in the possession, custody, safekeeping or control of
Bank or any entity under the control of Bank or in transit to any of them. At
any time after the occurrence and during the continuance of an Event of Default
(as defined in the Agreement), without demand or notice, Bank may set off the
same or any part thereof and apply the same to any liability or obligation of
Guarantor even though unmatured and regardless of the adequacy of any other
collateral securing the loan. ANY AND ALL RIGHTS TO REQUIRE BANK TO EXERCISE ITS
RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LOAN,
PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS
OR OTHER PROPERTY OF THE GUARANTOR, ARE HEREBY KNOWINGLY, VOLUNTARILY AND
IRREVOCABLY WAIVED.
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12. Massachusetts law governs this Guaranty without regard to principles of
conflicts of law. Guarantor and Bank each submit to the exclusive jurisdiction
of the State and Federal courts in Massachusetts; provided, however, that if for
any reason Bank cannot avail itself of such courts in the Commonwealth of
Massachusetts, Guarantor accepts jurisdiction of the courts and venue in Santa
Xxxxx County, California. NOTWITHSTANDING THE FOREGOING, THE BANK SHALL HAVE THE
RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST THE GUARANTOR OR ITS PROPERTY IN
THE COURTS OF ANY OTHER JURISDICTION WHICH THE BANK DEEMS NECESSARY OR
APPROPRIATE IN ORDER TO REALIZE ON THE COLLATERAL OR TO OTHERWISE ENFORCE THE
BANK'S RIGHTS AGAINST THE GUARANTOR OR ITS PROPERTY. GUARANTOR AND BANK EACH
WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF
OR BASED UPON THIS AGREEMENT, THE LOAN DOCUMENTS OR ANY CONTEMPLATED
TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS
WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT.
EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty as
an instrument under seal under the laws of the Commonwealth of Massachusetts, as
of this 31st day of May, 2002.
SWITCHBOARD SECURITIES CORPORATION
By: /s/Xxxxxx X. Xxxxxxx
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Title: Secretary & Treasurer
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