AGREEMENT
This Agreement dated as of June 7, 1996 between ViewCall
America, Inc., a Georgia corporation ("ViewCall") and Colorocs
Information Technologies, Inc., a Georgia corporation (the
"Guarantor").
WHEREAS, contemporaneously with the execution of this
Agreement, ViewCall will issue to the Guarantor a common stock
purchase warrant for the purchase of shares of common stock of
ViewCall;
WHEREAS, in consideration of the issuance of such warrant to
the Guarantor, the Guarantor has agreed to guaranty certain
indebtedness of ViewCall which may be incurred, renewed or
otherwise extended to ViewCall after the date hereof; and
WHEREAS, the parties desire to enter into this Agreement to
evidence the guaranty obligations of the Guarantor.
NOW, THEREFORE, in consideration of the foregoing premises
and intending to be legally bound hereby, the parties hereto
agree as follows:
1. For a period of five (5) years from the date hereof,
the Guarantor hereby agrees to guarantee any borrowings,
fundings, loans, debts or other forms of credit extension, which
have been duly authorized and validly approved by the Board of
Directors of ViewCall and the Board of Directors of Colorocs
Information Technologies, Inc., to ViewCall from any lender (any
such lender, the "Lender") in an aggregate principal amount up
to, but not to exceed $1,000,000. Any such borrowings, findings,
loans, debt or other forms of credit extension are to be obtained
on commercially reasonable terms and conditions. Further, the
Guarantor agrees, upon the request of ViewCall, to execute and
deliver to the Lender a guaranty in substantially the form
attached hereto as Exhibit A or such other form as the Guarantor
and the Lender may mutually agree.
2. The agreement of Guarantor to Guarantee such
indebtedness is part of a series of three integrated agreements
by Guarantor, Xxxxxx Xxxxxxx ("Xxxxxxx") and Xxxxxxx X. Xxxxx
("Xxxxx") for a total of $4,000,000 and Guarantor shall be liable
under any guarantee for the first One Million Dollars
($1,000,000) of such indebtedness with Xxxxxxx and Xxxxx being
liable as between themselves for one half (1/2) of the indebtedness
guaranteed in excess of the $1,000,000 for which Guarnator shall
have primary liability;
3. The Guarantor further agrees to cause appropriate
officers and/or representatives of the Guarantor available to
participate in information meetings with the Lender at such times
and places as the Lender may reasonably request.
4. This Agreement shall be binding upon the Guarantor and
his respective successors and assigns. The Guarantor may not
assign his obligations under this Agreement without the prior
written consent of ViewCall.
5. This Agreement sets forth the entire agreement of the
parties hereto with regard to the subject matter hereof and
supersedes and replaces all prior agreements, understandings and
representations, oral or written, with regard to such matters.
6. This Agreement shall be governed by and under the laws
of the State of Georgia.
7. If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable under any present or future
laws effective during the terms hereof, such provision shall be
fully severable and this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision
never comprised a part hereof; and the remaining provisions
hereof shall remain in full force and effect and shall not be
affected by the illegal, invalid or unenforceable provision or by
its severance herefrom. Furthermore, in lieu of such illegal,
invalid or unenforceable provisions, there shall be added
automatically, as part of this Agreement, a provision as similar
in its terms to such illegal, invalid or unenforceable provision
as may be possible and be legal, valid and enforceable.
IN WITNESS WHEREOF, the parties have caused this Agreement
to be duly executed as of the date first written above.
COLOROCS INFORMATION TECHNOLOGIES, INC.
By: __________________________________
Name: Xxxx XxXxxx
Title: President
VIEWCALL AMERICA, INC.
By: _______________________________
Name: Xxxx XxXxxx
Title: President
EXHIBIT A
FORM OF GUARANTY
THIS GUARANTY dated as of ______________, 199_ executed and
delivered by ______________________________ (the "Guarantor") in
favor of __________________________ (the "Lender").
For good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the Guarantor,
the Guarantor hereby agrees as follows:
Section 1. Guaranty. The Guarantor hereby, irrevocably and
unconditionally, guarantees the due and punctual payment when
due, whether at stated maturity, by acceleration or otherwise, of
the following (the following collectively referred to as the
"Guaranteed Obligations"): (a) all indebtedness and obligations
now or hereafter owing by the ViewCall America, Inc. (the
"Borrower") to the Lender, whenever and however incurred or
evidenced, whether direct or indirect, absolute or contingent, or
due or to become due ; and (b) any and all extensions, renewals,
modifications, amendments or substitutions of the foregoing.
Section 2. Guaranty of Payment and Not of Collection. This
Guaranty is a guaranty of payment, and not of collection, and a
debt of the Guarantor for its own account.
Section 3. Guaranty Absolute. The Guarantor guarantees
that the Guaranteed Obligations will be paid strictly in
accordance with the terms of the documents evidencing the same,
regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the
rights of the Lender with respect thereto. The liability of the
Guarantor under this Guaranty shall be absolute and unconditional
in accordance with its terms and shall remain in full force and
effect without regard to, and shall not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance
or occurrence whatsoever.
Section 4. Inability to Accelerate Loan. If the Lender or
the holder of any of the Guaranteed Obligations is prevented
under applicable law or otherwise from demanding or accelerating
payment thereof by reason of any automatic stay or otherwise, the
Lender or such holder shall be entitled to receive from the
Guarantor, upon demand therefor, the sums which otherwise would
have been due had such demand or acceleration occurred.
Section 5. Set-off. The Guarantor authorizes the Lender at
any time and from time to time, without notice to the Guarantor,
which notice the Guarantor hereby expressly waives, to set off
and apply any and all deposits (whether general or special, time
or demand, provisional or final, including any negotiable or
non-negotiable certificate of deposit now or hereafter issued by
the Lender to the Guarantor) or other indebtedness owing by the
Lender to the Guarantor, to the then outstanding Guaranteed
Obligations then due and payable.
Section 6. Information. The Guarantor assumes all
responsibility for being and keeping itself informed of the
Borrower's financial condition and assets, and of all other
circumstances bearing upon the risk of nonpayment of the
Guaranteed Obligations and the nature, scope and extent of the
risks that the Guarantor assumes and incurs hereunder, and agrees
that the Lender will not have any duty to advise the Guarantor of
information known to it or any of them regarding such
circumstances or risks.
Section 7. Governing Law. THIS GUARANTY SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
GEORIGA.
Section 8. Waiver of Remedies. No delay or failure on the
part of the Lender in the exercise of any right or remedy it may
have against the Guarantor hereunder or otherwise shall operate
as a waiver thereof, and no single or partial exercise by the
Lender of any such right or remedy shall preclude other or
further exercise thereof or the exercise of any other such right
or remedy.
Section 9. Amendments. This Guaranty may not be amended
except in writing signed by the Lender and the Guarantor.
Section 10. Payments/Expenses. All payments made by the
Guarantor pursuant to this Guaranty shall be made in the lawful
currency of the United States of America, in immediately
available funds on the date demand therefor is made. The
Guarantor shall pay, on demand, all costs and expenses incurred
by the Lender in the collection and enforcement of this Guaranty
including the reasonable fees and disbursements of counsel to the
Lender if collection is sought by or through an attorney.
Section 11. Notices. All notices, demands or other
communications to the Guarantor hereunder shall be in writing and
shall be mailed or hand delivered or sent via facsimile
transmission to the address for the Guarantor set forth below its
signature hereto. All such notices, demands and communications
shall be deemed received by the Guarantor (a) if personally
delivered or by messenger or overnight courier or delivered via
facsimile transmission, on the date of delivery thereof or (b) if
through the United States mail, on the earlier of (i) the date
three days after the posting thereof and (ii) the date of actual
receipt by the Guarantor.
Section 12. Severability. In case any provision of this
Guaranty shall be invalid, illegal or unenforceable in any
jurisdiction, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired
thereby.
Section 13. Headings. Section headings used in this
Guaranty are for convenience only and shall not affect the
construction of this Guaranty.
IN WITNESS WHEREOF, the Guarantor has duly executed and
delivered this Guaranty as of the date and year first written
above.
[GUARANTOR]
By:_________________________
Title:___________________
Address for Notices:
__________________________
__________________________
__________________________
Telephone Number:_________
Telecopy Number:__________
