GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty"), dated as of June 11,
1997, made by ARIZONA REPAIR SERVICES, INC., an Arizona corporation ("ARS"), and
ENHANCED SYSTEMS, INC., an Arizona corporation ("ESI", ARS and ESI are referred
to herein individually as a "Guarantor" and collectively as the "Guarantors"),
in favor of GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation (the
"Guaranteed Party").
W I T N E S S E T H:
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WHEREAS, Vodavi Communications Systems, Inc., an Arizona
corporation formerly known as V Technology Acquisition Corp. (the "Borrower"),
and the Guaranteed Party are parties to an Amended and Restated Credit
Agreement, dated as of April 11, 1994, as amended and restated effective as of
June 11, 1997 (as the same may hereafter be amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"; the terms defined
therein and not otherwise defined herein being used herein as therein defined),
pursuant to which the Guaranteed Party has committed to make a Revolving Credit
Loan available to the Borrower; and
WHEREAS, the Borrower and the Guarantors share an identity of
interests as members of a consolidated group of companies engaged in similar
businesses, and the making of the Revolving Credit Loan available to the
Borrower will facilitate expansion and enhance the overall financial strength
and stability of the Borrower's corporate group, including the Guarantors; and
WHEREAS, it is a condition precedent to the Guaranteed Party's
obligations to make the Revolving Credit Loan available under the Credit
Agreement that the Guarantors execute and deliver this Guaranty, and the
Guarantors desire to execute and deliver this Guaranty to satisfy such condition
precedent.
NOW, THEREFORE, in consideration of the premises and in order
to induce the Guaranteed Party to make the Revolving Credit Loan available under
the Credit Agreement, each Guarantor hereby agrees as follows:
1. Guaranty of Obligations. (a) Each Guarantor hereby
absolutely, unconditionally and irrevocably guarantees to the Guaranteed Party
the prompt payment when due, whether at stated maturity, by acceleration or
otherwise, of the Revolving Credit Loan and all other Obligations (as defined in
the Credit Agreement, and including all renewals, extensions, modifications, and
refinancings thereof) now or hereafter existing, whether for principal,
interest, fees, expenses or otherwise, and all expenses (including reasonable
attorney's fees and expenses) incurred by the Guaranteed Party in enforcing any
of its rights under the Credit Agreement and the other Loan Documents (all of
the foregoing, collectively, the "Guaranteed Obligations"). Any and all payments
made by any Guarantor hereunder shall be made free and clear of and without
deduction for any set-off, counterclaim, or
withholdings so that, in each case, the Guaranteed Party shall receive the full
amount that it would otherwise be entitled to receive with respect to the
Guaranteed Obligations.
(b) Each Guarantor acknowledges and agrees that this Guaranty is
a guaranty of payment and not of collection and that the liability of such
Guarantor under this Guaranty shall be immediate and primary and shall not be
contingent upon the exercise or enforcement by the Guaranteed Party of any
remedies the Guaranteed Party may have against the Borrower or any other
Guarantor any other person or the enforcement of any lien or realization upon
any collateral the Guaranteed Party may at any time possess for any of the
Guaranteed Obligations.
2. Maximum Liability; Contribution. (a) It is the intention of
each of the Guarantors and the Guaranteed Party that each Guarantor's
obligations hereunder shall be in, but not in excess of, the maximum amount (the
"Maximum Guaranty Liability") permitted by applicable federal bankruptcy, state
insolvency, fraudulent conveyance or transfer or similar laws ("Applicable
Law"). To that end, but only to the extent such obligations would otherwise be
subject to avoidance under Applicable Law if any Guarantor is not deemed to have
received valuable consideration, fair value or reasonably equivalent value for
its obligations hereunder, each Guarantor's respective obligations hereunder
shall be reduced to that amount which, after giving effect thereto, would not
render such Guarantor insolvent, or leave such Guarantor with unreasonably small
capital to conduct its business, or cause such Guarantor to have incurred debts
(or intended to have incurred debts) beyond its ability to pay such debts as
they mature, at the time such obligations are deemed to have been incurred under
Applicable Law. As used herein, the terms "insolvent" and "unreasonably small
capital" shall likewise be determined in accordance with Applicable Law. This
Section is intended solely to preserve the rights of the Guaranteed Party
hereunder to the maximum extent permitted by Applicable Law, and neither the
Guarantors nor any other Persons shall have any right or claim under this
Section that would not otherwise be available under Applicable Law. Each
Guarantor agrees that the Guaranteed Obligations may at any time and from time
to time exceed the Maximum Guaranty Liability of such Guarantor without
impairing this Guaranty or affecting the rights and remedies of the Guaranteed
Party hereunder.
(b) If and to the extent that any Guarantor shall, under this
Guaranty make a payment (a "Guarantor Payment") of all or any portion of the
Guaranteed Obligations, then such Guarantor shall be entitled to contribution
and indemnification from, and shall be reimbursed by, each of the other
Guarantors (collectively the "Contributing Guarantors") in an amount, for each
such Contributing Guarantor, equal to a fraction of such Guarantor Payment, the
numerator of which fraction is such Contributing Guarantor's Allocable Amount of
such Guarantor Payment and the denominator of which is the sum of all of the
Allocable Amounts of such Guarantor Payment of all of the Contributing
Guarantors. As of any date of determination thereof and with respect to any
Guarantor Payment, the "Allocable Amount" of each Contributing Guarantor shall
be equal to the maximum amount of liability which could be asserted against such
Contributing Guarantor under this Guaranty with respect to such Guarantor
Payment without (i) rendering such Contributing Guarantor insolvent, (ii)
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leaving such Contributing Guarantor with unreasonably small capital to conduct
its business, or (iii) causing such Contributing Guarantor to have incurred
debts beyond its ability to pay such debts as they mature. As used in this
Section 2(b), the terms "insolvent" and "unreasonably small capital" shall be
determined in accordance with Applicable Laws. This Section 2(b) is intended
only to define the relative rights and obligations of the Guarantors with
respect to any and all Guarantor Payments, and nothing set forth in this Section
2(b) is intended to or shall otherwise modify, affect or impair the obligations
of the Guarantors, jointly and severally, to pay any or all of the Guaranteed
Obligations as and when the same shall become due and payable in accordance with
the terms of this Guaranty. Each of the Guarantors hereby acknowledges that the
rights of contribution and indemnification hereunder shall constitute assets in
favor of each Guarantor to which such contribution and indemnification is owing
hereunder. The agreements contained in this Section 2(b) shall continue in full
force and effect and may not be terminated or otherwise revoked by any Guarantor
until all of the Guaranteed Obligations have been indefeasibly paid in full, all
Commitments under the Credit Agreement have terminated or expired, and the
Credit Agreement and the other Loan Documents shall have been terminated in
accordance with the terms thereof.
3. Guaranty Absolute. This Guaranty shall in all respects be an
absolute, unconditional and irrevocable guaranty of payment of the Guaranteed
Obligations and each Guarantor guarantees that the Guaranteed Obligations will
be paid strictly in accordance with the terms of the Loan Documents under which
they arise, 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
Guaranteed Party with respect thereto. The liability of each Guarantor under
this Guaranty shall remain in full force and effect without regard to, and shall
not be released, suspended, discharged, terminated, modified or otherwise
affected by any circumstance or occurrence whatsoever, including without
limitation any of the following (whether or not any Guarantor consents thereto
or has notice thereof): (i) any change in or waiver of the time, place or manner
of payment, or any other term, of any of the Guaranteed Obligations or Loan
Documents, any waiver of or any renewal, extension, increase, amendment or
modification of or addition, consent or supplement to or deletion from, or any
other action or inaction under or in respect of, any of the Guaranteed
Obligations or Loan Documents or any other document, instrument or agreement
referred to therein or any assignment or transfer of any of the Guaranteed
Obligations or Loan Documents; (ii) any lack of validity, legality or
enforceability of any of the Guaranteed Obligations or Loan Documents or any
other document, instrument, or agreement referred to therein or of any
assignment or transfer of any of the foregoing; (iii) any furnishing to the
Guaranteed Party of any additional collateral for any of the Guaranteed
Obligations or any sale, exchange, release or surrender of, or realization on,
any collateral for any of the Guaranteed Obligations; (iv) any settlement,
release or compromise of any of the Guaranteed Obligations or Loan Documents,
any collateral therefor, or any liability of any other party (including without
limitation any other guarantor) with respect to any of the Guaranteed
Obligations or Loan Documents, or any subordination of payment of any of the
Guaranteed Obligations to the payment of any other indebtedness, liability or
obligation of the Borrower; (v) any bankruptcy, insolvency, reorganization,
composition, adjustment, merger, consolidation, dissolution, liquidation or
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other like proceeding or occurrence relating to the Borrower or any other change
in the ownership, composition or nature of the Borrower; (vi) any
non-perfection, subordination, release, avoidability or voidability of any
security interest, security title, pledge, collateral assignment or other lien
of the Guaranteed Party on any collateral for any of the Guaranteed Obligations
or this Guaranty; (vii) any application of sums paid by the Borrower or any
other person with respect to any of the Guaranteed Obligations, except to the
extent actually applied against the Guaranteed Obligations, regardless of what
other liabilities of the Borrower remain unpaid; (viii) the failure of the
Guaranteed Party to assert any claim or demand or to enforce any right or remedy
against the Borrower or any other person (including any other guarantor of any
of the Guaranteed Obligations) under the provisions of any of the Loan Documents
or otherwise, or any failure of the Guaranteed Party to exercise any right or
remedy against any other guarantor of or any collateral for any of the
Guaranteed Obligations; (ix) any other act or failure to act by the Guaranteed
Party which may adversely affect any Guarantor; or (x) any other circumstance
which might otherwise constitute a defense against, or a legal or equitable
discharge of, any Guarantor's liability under this Guaranty.
4. Guaranty Continuing; Reinstatement. This Guaranty shall in
all respects be a continuing and irrevocable guaranty of payment and shall
remain in full force and effect until the Termination Date. If claim is ever
made upon the Guaranteed Party for repayment or recovery of any amount received
by the Guaranteed Party in payment or on account of any of the Guaranteed
Obligations, and if the Guaranteed Party repays all or part of said amount by
reason of (i) any judgment, decree or order of any court or administrative body
having jurisdiction over the Guaranteed Party or any of its property or (ii) any
settlement or compromise of any such claim effected by the Guaranteed Party with
any such claimant (including without limitation the Borrower or a trustee,
conservator or receiver for the Borrower), then and in such event each Guarantor
agrees that any such judgment, decree, order, settlement or compromise shall be
binding upon such Guarantor, notwithstanding any revocation or cancellation of
this Guaranty or of any of the Loan Documents, and each Guarantor shall be and
remain liable to the Guaranteed Party hereunder for the amount so repaid or
recovered to the same extent as if such amount had never originally been paid to
the Guaranteed Party and each Guarantor's obligations and liabilities to the
Guaranteed Party under this Guaranty shall be reinstated to such extent and this
Guaranty and any collateral for this Guaranty shall remain in full force and
effect (or shall be reinstated) to such extent. Each Guarantor hereby expressly
waives the benefit of any applicable statute of limitations and agrees that it
shall be liable under this Guaranty whenever the Guaranteed Party seeks to
enforce such liability against such Guarantor or its property.
5. Waivers and Consents. Each Guarantor hereby waives: (i)
notice of acceptance of this Guaranty by the Guaranteed Party; (ii) notice of
the creation, existence, acquisition, extension, or renewal of any of the
Guaranteed Obligations; (iii) notice of the amount of the Guaranteed Obligations
outstanding from time to time, subject, however, to each Guarantor's right to
make inquiry of the Guaranteed Party at reasonable intervals to ascertain the
amount of Guaranteed Obligations then outstanding; (iv) except as otherwise
expressly required under the Loan Documents, notice of any default or event of
default under any of the Loan Documents or with respect to any of the Guaranteed
Obligations or notice of
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any other adverse change in the Borrower's financial condition or means or
ability to pay any of the Guaranteed Obligations or perform its obligations
under any of the Loan Documents or notice of any other fact which might increase
any Guarantor's risk hereunder; (v) notice of presentment, demand, protest, and
notice of dishonor or nonpayment as to any instrument; (vi) notice of any
acceleration or other demand for payment of any of the Guaranteed Obligations;
and (vii) all other notices and demands to which any Guarantor might otherwise
be entitled with respect to any of the Guaranteed Obligations or the Loan
Documents or with respect to the Guaranteed Party's enforcement of its rights
and remedies thereunder. Each Guarantor further waives any right such Guarantor
may have, by statute or otherwise, to require the Guaranteed Party to seek
recourse first against the Borrower or any other person, or to realize upon any
collateral for any of the Guaranteed Obligations, as a condition precedent to
enforcing such Guarantor's liability and obligations under this Guaranty, and
each Guarantor further waives any defense arising by reason of any incapacity or
other disability of the Borrower or by reason of any other defense which the
Borrower may have on any of the Guaranteed Obligations or under any of the Loan
Documents. Each Guarantor consents and agrees that, without notice to or consent
by any Guarantor and without affecting or impairing the liability of any
Guarantor under this Guaranty, the Guaranteed Party may compromise or settle,
extend the period of duration or the time for the payment, discharge or
performance of any of the Guaranteed Obligations or Loan Documents, or may
refuse to enforce or may release all or any parties to any or all of the
Guaranteed Obligations (including without limitation any other guarantor
thereof) or any collateral therefor, or may grant other indulgences to the
Borrower or such other parties in respect thereof, or may waive, amend or
supplement in any manner the provisions of any of the Loan Documents or any
other document, instrument or agreement relating to or securing any of the
Guaranteed Obligations (other than this Guaranty), or may release, surrender,
exchange, modify, or compromise any and all collateral securing any of the
Guaranteed Obligations or in which the Guaranteed Party may at any time have a
lien, or may refuse to enforce its rights or may make any compromise or
settlement or agreement therefor, in respect of any and all of such collateral,
or with any party to any of the Guaranteed Obligations or Loan Documents, or
with any other person, or may release or substitute any one or more of the other
endorsers or guarantors of the Guaranteed Obligations whether parties to this
Guaranty or not, or may exchange, enforce, waive or release any collateral for
any guaranty of any of the Guaranteed Obligations. Each Guarantor further
consents and agrees that the Guaranteed Party shall not be under any obligation
to marshal any assets in favor of such Guarantor or against or in payment of any
of the Guaranteed Obligations.
6. Subrogation and Other Rights. Each Guarantor agrees that no
payment, performance or enforcement of such Guarantor's liabilities and
obligations under this Guaranty shall cause such Guarantor, by subrogation or
otherwise, to acquire any of the Guaranteed Party's rights against the Borrower
or any property of the Borrower (or any interest in such rights) unless and
until the Guaranteed Party has received full and indefeasible payment of all of
the Guaranteed Obligations.
7. Cross-Collateralization. Each Guarantor's obligations and
liabilities to the Guaranteed Party under this Guaranty shall be secured by (i)
any and all property pledged by
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such Guarantor to the Guaranteed Party or in which the Guaranteed Party is
granted a Lien pursuant to the Security Agreement or any other Collateral
Document from such Guarantor to the Guaranteed Party and any and all other
security interests, security titles, pledges, collateral assignments or other
Liens which the Guaranteed Party may now or hereafter have or acquire in, to or
on any real or personal property assets of such Guarantor, whether such assets
now exist or are hereafter acquired, except to the extent that such Guarantor's
obligations and liabilities hereunder are expressly excluded from the coverage
of any such Lien under the express terms of the mortgage, security deed,
security agreement, pledge agreement, collateral assignment or other document
which granted or grants such Lien.
8. Guarantor Due Diligence and Benefit. Each Guarantor is fully
aware of the financial condition, assets and prospects of the Borrower, and each
Guarantor is executing and delivering this Guaranty based solely upon such
Guarantor's own independent investigation thereof and in no part upon any
representation, warranty or statement of the Guaranteed Party with respect to
the Borrower's financial condition, assets or prospects. Each Guarantor is in a
position to and hereby assumes full responsibility for obtaining any and all
information concerning the Borrower's financial condition, assets and prospects
as such Guarantor may now or hereafter deem material to such its decision to
enter into and become liable under this Guaranty and such Guarantor is not
relying upon, nor does such Guarantor expect the Guaranteed Party to furnish it
with any information which may be now or hereafter in the Guaranteed Party's
possession concerning the Borrower's financial condition, assets or prospects.
Each Guarantor hereby knowingly accepts the full range of risks encompassed
within a contract of guaranty, which risks such Guarantor understands may
include, without limitation, the possibility that the Borrower may incur
additional indebtedness to the Guaranteed Party for which such Guarantor may be
liable hereunder after the Borrower's financial condition or means or ability to
pay its lawful debts when they fall due has deteriorated. Each Guarantor further
acknowledges and agrees that any credit or other financial accommodations now or
hereafter extended by the Guaranteed Party to the Borrower and any and all
forbearances with respect to the Borrower or its assets which the Guaranteed
Party may now or hereafter grant are and will be of direct interest, benefit and
advantage to such Guarantor.
9. Guaranteed Party's Accounts and Records; Application of
Payments. Each Guarantor agrees that, in the absence of manifest error, any and
all books and records relating to the Guaranteed Obligations which are prepared
and maintained by the Guaranteed Party shall constitute prima facie evidence of
the existence and amount of the Guaranteed Obligations. In the event that the
Guaranteed Party sends to the Borrower any periodic or other statements of
account with respect to any or all of the Guaranteed Obligations, each such
statement rendered by the Guaranteed Party shall, in the absence of manifest
error, be deemed final, binding and conclusive upon each Guarantor unless the
Guaranteed Party is notified by the Borrower in writing to the contrary within
thirty (30) days after the date such statement was sent by the Guaranteed Party
to the Borrower (and each such notice shall only be deemed an objection to those
items specifically objected to therein). Each Guarantor irrevocably waives the
right to direct the application of any and all payments and collections at any
time hereafter received by the Guaranteed Party from or on behalf of the
Borrower,
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any Guarantor or otherwise with respect to any of the Guaranteed Obligations and
each Guarantor does hereby irrevocably agree that the Guaranteed Party shall
have the continuing exclusive right to apply and re-apply any and all such
payments and collections received at any time hereafter by the Guaranteed Party
against the Guaranteed Obligations in such manner and order as the Guaranteed
Party may deem advisable, notwithstanding any contrary entry by the Guaranteed
Party upon any of its books and records.
10. Automatic Acceleration of Guaranty. Upon the occurrence of
any Event of Default described in Section 8.1(f), (g) or (h) of the Credit
Agreement, all of the Guaranteed Obligations shall be deemed immediately due and
payable, without notice or demand of any kind by the Guaranteed Party, and each
Guarantor agrees immediately to pay the Guaranteed Obligations in full,
irrespective of whether any or all of the Guaranteed Obligations can then be
accelerated against the Borrower and irrespective of any right which the
Borrower then may have under any bankruptcy, receivership, insolvency or
moratorium law to cure defaults and reinstate the maturities of the Obligations.
11. Notices to Guarantors. All notices, demands and other
communications hereunder or under any of the other Loan Documents by the
Guaranteed Party to any Guarantor shall be effective (i) if given by telecopy,
when such communication is transmitted to the telecopy number set forth beneath
such Guarantor's signature below (with such telecopy promptly confirmed by
delivery of a copy by personal delivery or U.S. mail as otherwise provided in
this Section), (ii) if given by mail within the United States of America, three
(3) days after such communication is deposited in the United States mail with
first class postage prepaid, return receipt requested addressed to such
Guarantor at its address set forth beneath such Guarantor's signature below,
(iii) if sent for overnight delivery within the United States of America by
Federal Express or other reputable national overnight delivery service, one (1)
Business Day after such communication is entrusted to such service for overnight
delivery and with recipient signature required, addressed as aforesaid or (iv)
if given by any other means, when delivered at the address of the party to whom
such notice is being delivered. Any Guarantor may designate a different address
or telecopy number for such Guarantor's receipt of such notices or other
communications but no such change shall be effective unless and until the
Guaranteed Party actually receives written notice thereof from such Guarantor.
12. Collection Costs. Each Guarantor shall be liable to the
Guaranteed Party for, and shall pay to the Guaranteed Party on demand, all
reasonable costs (including without limitation reasonable attorney's fees and
expenses) incurred by the Guaranteed Party in enforcing performance of or
collecting any payments due under this Guaranty.
13. Assignment and Transfer. This Guaranty shall be binding upon
each Guarantor and its successors and permitted assigns and shall inure to the
benefit of and be enforceable by the Guaranteed Party and its successors and
permitted assigns. Without limiting the generality of the preceding sentence,
the Guaranteed Party may assign or grant participations in all or any part of
the Guaranteed Obligations, whereupon such assignee or participant shall become
entitled to all of the rights in respect thereof granted to the Guaranteed Party
herein.
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14. Governing Law. This Guaranty shall be governed by the
internal laws of the State of New York (without giving effect to its conflicts
of law rules).
15. Subordination of Borrower's and other Credit Party's
Obligations to the Guarantors. As an independent covenant, each Guarantor hereby
expressly covenants and agrees for the benefit of the Guaranteed Party that all
present or future indebtedness, obligations and liabilities of the Borrower or
any other Credit Party (including without limitation any other Guarantor) to any
Guarantor of whatsoever description (collectively, the "Junior Claims") shall be
subordinate and junior in right of payment to all Obligations of the Borrower or
any such other Credit Party to the Guaranteed Party (collectively, the "Senior
Claims"), effective upon the occurrence and during the continuance of an Event
of Default under the Credit Agreement. If an Event of Default under the Credit
Agreement shall occur, then, unless and until such Event of Default shall have
been cured or shall have ceased to exist, no direct or indirect payment (in
cash, property, securities, by set-off or otherwise) shall be made by the
Borrower or any other Credit Party to any Guarantor on account of or in any
manner in respect of any Junior Claim except such payments and distributions the
proceeds of which shall be applied to the Senior Claims. In the event of a
Proceeding (as hereinafter defined), all Senior Claims shall first be paid in
full before any direct or indirect payment or distribution (in cash, property,
securities, by set-off or otherwise) shall be made to any Guarantor on account
of or in any manner in respect of any Junior Claim except such payments and
distributions the proceeds of which shall be applied to the Senior Claims. For
the purposes of the previous sentence, a "Proceeding" shall occur if the
Borrower or any other Credit Party shall make an assignment for the benefit of
creditors, file a petition in bankruptcy, have entered against or in favor of it
an order for relief under the Bankruptcy Code or similar law of any other
jurisdiction, generally fail to pay its debts as they come due (either as to
number or amount), admit in writing its inability to pay its debts generally as
they mature, make a voluntary assignment for the benefit of creditors, commence
any proceeding relating to it under any reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute of any
jurisdiction, whether now or hereafter in effect, or by any act, indicate its
consent to, approval of or acquiescence in any such proceeding or in the
appointment of any receiver of, or trustee or custodian (as defined in the
Bankruptcy Code) for itself, or any substantial part of its property, or a
trustee or a receiver shall be appointed for the Borrower or any other Credit
Party or for a substantial part of the property of the Borrower or any other
Credit Party, or a petition under any bankruptcy, reorganization, arrangement,
readjustment of debt, dissolution or liquidation law or statute or any
jurisdiction (whether now or hereafter in effect) shall be filed against the
Borrower or any other Credit Party. In the event any direct or indirect payment
or distribution is made to any Guarantor in contravention of this Section, such
payment or distribution shall be deemed received in trust for the benefit of the
Guaranteed Party and shall be immediately paid over to the Guaranteed Party for
application against the Senior Claims. Each Guarantor agrees to execute such
additional documents as the Guaranteed Party may reasonably request to evidence
the subordination provided for in this Section.
16. Miscellaneous. (a) This Guaranty (together with any
collateral documents executed by any Guarantor to secure its obligations and
liabilities hereunder) constitutes the
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sole and entire agreement between the Guarantors and the Guaranteed Party with
respect to the subject matter hereof and supersedes and replaces any and all
prior agreements, understandings, negotiations or correspondence between them
with respect thereto, including without limitation any and all prior guaranty
agreements executed by any Guarantor in favor of the Guaranteed Party with
respect to any or all of the Guaranteed Obligations.
(b) Time is of the essence of this Guaranty.
(c) Words importing the singular number hereunder shall include
the plural number and vice versa and any pronouns used herein shall be deemed to
cover all genders. The term "person" as used herein means any individual,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated association, or government (or any agency or political
subdivision thereof).
(d) Wherever possible, any provision in this Guaranty which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective only to the extent of such prohibition or unenforceability
without invalidating the remaining provisions hereof, and any such prohibition
or unenforceability in any one jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
(e) No amendment or waiver of any provision of this Guaranty,
nor consent to any departure by any Guarantor therefrom, shall be effective or
binding upon the Guaranteed Party unless the Guaranteed Party shall first have
given written consent thereto. Any such amendment, waiver or consent which is so
granted by the Guaranteed Party shall apply only to the specific occasion which
is the subject of such amendment, waiver or consent and shall not apply to the
occurrence of the same or any similar event on any future occasion. No failure
on the part of the Guaranteed Party to exercise, and no delay by the Guaranteed
Party in exercising, any right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of any other right by the Guaranteed
Party. No notice to or demand on any Guarantor in any case by the Guaranteed
Party hereunder shall entitle such Guarantor to any further notice or demand in
any similar or other circumstances or constitute a waiver of the rights of the
Guaranteed Party to take any other or future action in any circumstances without
notice or demand. The remedies provided to the Guaranteed Party in this Guaranty
are cumulative and not exclusive of any other remedies provided by law.
(f) This Guaranty may be executed in one or more counterparts
and each such counterpart shall constitute an original and all such counterparts
together shall constitute one and the same instrument.
(g) All Section headings herein are for convenience of reference
only and shall not limit or otherwise affect the meaning or interpretation of
the provisions of this Guaranty.
17. Jury Trial Waiver; Consent to Jurisdiction and Venue. EACH
GUARANTOR HEREBY WAIVES ANY RIGHT SUCH GUARANTOR MAY HAVE
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UNDER ANY APPLICABLE LAW TO A TRIAL BY JURY WITH RESPECT TO ANY SUIT OR LEGAL
ACTION WHICH MAY BE COMMENCED BY OR AGAINST ANY GUARANTOR, THE GUARANTEED PARTY
OR THE BORROWER CONCERNING THE INTERPRETATION, CONSTRUCTION, VALIDITY,
ENFORCEMENT OR PERFORMANCE OF THIS GUARANTY OR ANY OF THE LOAN DOCUMENTS. IN THE
EVENT ANY SUCH SUIT OR LEGAL ACTION IS COMMENCED BY THE GUARANTEED PARTY, EACH
GUARANTOR HEREBY EXPRESSLY AGREES, CONSENTS AND SUBMITS TO THE PERSONAL
JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN THE CITY AND STATE OF NEW
YORK, BOROUGH OF MANHATTAN, WITH RESPECT TO SUCH SUIT OR LEGAL ACTION, AND EACH
GUARANTOR ALSO EXPRESSLY CONSENTS AND SUBMITS TO AND AGREES THAT VENUE IN ANY
SUCH SUIT OR LEGAL ACTION IS PROPER IN SAID COURTS AND COUNTY AND EACH GUARANTOR
HEREBY EXPRESSLY WAIVES ANY AND ALL PERSONAL RIGHTS UNDER APPLICABLE LAW OR IN
EQUITY TO OBJECT TO THE JURISDICTION AND VENUE OF SAID COURTS. THE JURISDICTION
AND VENUE OF THE COURTS CONSENTED AND SUBMITTED TO AND AGREED UPON IN THIS
SECTION ARE NOT EXCLUSIVE BUT ARE CUMULATIVE AND IN ADDITION TO THE JURISDICTION
AND VENUE OF ANY OTHER COURT UNDER ANY APPLICABLE LAW OR IN EQUITY.
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IN WITNESS WHEREOF, the Guarantors have executed and delivered
this Guaranty by its duly authorized officer as of the date first above written.
ARIZONA REPAIR SERVICES, INC.
By: /s/ Xxxx Xxxxxx
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Title: CFO and V.P.
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Address for Notices:
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0000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxx
Telecopy: (000) 000-0000
ENHANCED SYSTEMS, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Title: Secretary and Treasurer
---------------------------------
Address for Notices:
-------------------
0000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxx Xxxxxx
Telecopy: (000) 000-0000
SECTION 15 OF THE FOREGOING
GUARANTY ACKNOWLEDGED AND
AGREED TO:
VODAVI COMMUNICATIONS
SYSTEMS, INC.
By: /s/ Xxxx Xxxxxx
------------------------------------
Title: CFO and V.P.
---------------------------------
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