Exhibit 10.17
LIMITED GUARANTY
(Individual)
April 3, 2003
FOR VALUE RECEIVED, and in consideration of a loan in the amount of
$550,000 made by IIG Equity Opportunities Fund Ltd. ("Lender") to or for the
account of Frontline Communications Corporation and Proyecciones y Ventas
Organizadas S.A. de C.V. (collectively, "Borrowers") and for other good and
valuable consideration, and to induce Lender to make such loan and to make or
grant such renewals, extensions, releases of collateral or relinquishments of
legal rights as Lender may deem advisable, the undersigned (hereinafter referred
to as "Guarantor" or "the undersigned") unconditionally guaranties to Lender,
its successors, endorsees and assigns, the prompt payment when due (whether by
acceleration or otherwise) of all obligations and liabilities of any and all
kinds of Borrowers to Lender and of all instruments of any nature evidencing or
relating to any such obligations and liabilities upon which Borrowers or one or
more parties and Borrowers are liable to Lender, whether incurred by Borrowers
as maker, endorser, drawer, acceptor, guarantor, accommodation party or
otherwise, and whether due or to become due, secured or unsecured, absolute or
contingent, joint or several, and whether arising under, out of, or in
connection with that certain Term Loan and Security Agreement dated as of the
date hereof among Lender and Borrowers (as amended, modified, restated or
supplemented from time to time, the "Loan Agreement") or any documents,
instruments or agreements relating to or executed in connection with the Loan
Agreement or any documents, instruments or agreements referred to therein
(together with the Loan Agreement, as each may be amended, modified, restated or
supplemented from time to time, the "Loan Documents"), or otherwise (all of
which are herein collectively referred to as the "Obligations"), and
irrespective of the genuineness, validity, regularity or enforceability of such
Obligations, or of any instrument evidencing any of the Obligations or of any
collateral therefor or of the existence or extent of such collateral, and
irrespective of the allowability, allowance or disallowance of any or all of the
Obligations in any case commenced by or against Borrowers under Title 11, United
States Code, including, without limitation, obligations or indebtedness of
Borrowers for post-petition interest, fees, costs and charges that would have
accrued or been added to the Obligations but for the commencement of such case.
In furtherance of the foregoing, the undersigned xxxxxx agrees as follows:
1. No Impairment. Lender may at any time and from time to time, either
before or after the maturity thereof, without notice to or further consent of
the undersigned, extend the time of payment of, exchange or surrender any
collateral for, renew or extend any of the Obligations or increase or decrease
the interest rate thereon, and may also make any agreement with Borrowers or
with any other party to or person liable on any of the Obligations, or
interested therein, for the extension, renewal, payment, compromise, discharge
or release thereof, in whole or in part, or for any modification of the terms
thereof or of any agreement between Lender and Borrowers or any such other party
or person, or make any election of rights Lender may deem desirable under the
United States Bankruptcy Code, as amended, or any other federal or state
bankruptcy, reorganization, moratorium or insolvency law relating to or
affecting the
enforcement of creditors' rights generally (any of the foregoing,
an "Insolvency Law") without in any way impairing or affecting this Guaranty.
This instrument shall be effective regardless of the subsequent incorporation,
merger or consolidation of Borrowers, or any change in the composition, nature,
personnel or location of Borrowers and shall extend to any successor entity to
Borrowers, including a debtor in possession or the like under any Insolvency
Law.
2. Guaranty Absolute. The undersigned guarantees that the Obligations will
be paid strictly in accordance with the terms of the Loan Agreement and/or any
other document, instrument or agreement creating or evidencing the Obligations,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of Borrowers with respect
thereto. Guarantor hereby knowingly accepts the full range of risk encompassed
within a contract of "continuing guaranty" which risk includes the possibility
that Borrowers will contract additional indebtedness for which Guarantor may be
liable hereunder after Borrowers' financial condition or ability to pay its
lawful debts when they fall due has deteriorated, whether or not Borrowers has
properly authorized incurring such additional indebtedness. The undersigned
acknowledges that (i) no oral representations, including any representations to
extend credit or provide other financial accommodations to Borrowers, have been
made by Lender to induce the undersigned to enter into this Limited Guaranty and
(ii) any extension of credit to the Borrowers shall be governed solely by the
provisions of the Loan Agreement. The liability of the undersigned under this
Limited 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, including, without limitation: (a) any
waiver, indulgence, renewal, extension, amendment or modification of or
addition, consent or supplement to or deletion from or any other action or
inaction under or in respect of the Loan Documents or any other instruments or
agreements relating to the Obligations or any assignment or transfer of any
thereof, (b) any lack of validity or enforceability of any Loan Document or
other documents, instruments or agreements relating to the Obligations or any
assignment or transfer of any thereof, (c) any furnishing of any additional
security to Lender or its assignees or any acceptance thereof or any release of
any security by Lender or its assignees, (d) any limitation on any party's
liability or obligation under the Loan Documents or any other documents,
instruments or agreements relating to the Obligations or any assignment or
transfer of any thereof or any invalidity or unenforceability, in whole or in
part, of any such document, instrument or agreement or any term thereof, (e) any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to Borrowers, or any action taken
with respect to this Limited Guaranty by any trustee or receiver, or by any
court, in any such proceeding, whether or not the undersigned shall have notice
or knowledge of any of the foregoing, (f) any exchange, release or nonperfection
of any collateral, or any release, or amendment or waiver of or consent to
departure from any guaranty or security, for all or any of the Obligations, or
(g) any other circumstance which might otherwise constitute a defense available
to, or a discharge of, the undersigned. Any amounts due from the undersigned to
Lender shall bear interest until such amounts are paid in full at the highest
rate then applicable to the Obligations. Obligations include post-petition
interest whether or not allowed or allowable.
3. Waivers. (a)This Limited Guaranty is a guaranty of payment and not of
collection. Lender shall be under no obligation to institute suit, exercise
rights or remedies or take any other action against Borrowers or any other
person liable with respect to any of the
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Obligations or resort to any collateral security held by it to secure any of the
Obligations as a condition precedent to the undersigned being obligated to
perform as agreed herein and Guarantor hereby waives any and all rights which it
may have by statute or otherwise which would require Lender to do any of the
foregoing. Guarantor further consents and agrees that Xxxxxx shall be under no
obligation to marshal any assets in favor of Guarantor, or against or in payment
of any or all of the Obligations. The undersigned hereby waives all suretyship
defenses and any rights to interpose any defense, counterclaim or offset of any
nature and description which the undersigned may have or which may exist between
and among Lender, Borrowers and/or the undersigned with respect to the
undersigned's obligations under this Limited Guaranty, or which Borrowers may
assert on the underlying debt, including but not limited to failure of
consideration, breach of warranty, fraud, payment (other than cash payment in
full of the Obligations), statute of frauds, bankruptcy, infancy, statute of
limitations, accord and satisfaction, and usury.
b. The undersigned further waives (i) notice of the acceptance of this
Limited Guaranty, of the making of any such loans or extensions of credit, and
of all notices and demands of any kind to which the undersigned may be entitled,
including, without limitation, notice of adverse change in Borrowers' financial
condition or of any other fact which might materially increase the risk of the
undersigned and (ii) presentment to or demand of payment from anyone whomsoever
liable upon any of the Obligations, protest, notices of presentment, non-payment
or protest and notice of any sale of collateral security or any default of any
sort.
c. Notwithstanding any payment or payments made by the undersigned
hereunder, or any setoff or application of funds of the undersigned by Xxxxxx,
the undersigned shall not be entitled to be subrogated to any of the rights of
Lender against Borrowers or against any collateral or guarantee or right of
offset held by Lender for the payment of the Obligations, nor shall the
undersigned seek or be entitled to seek any contribution or reimbursement from
Borrowers in respect of payments made by the undersigned hereunder, until all
amounts owing to Lender by Borrowers on account of the Obligations are paid in
full and the Loan Agreement has been terminated. If, notwithstanding the
foregoing, any amount shall be paid to the undersigned on account of such
subrogation rights at any time when all of the Obligations shall not have been
paid in full and the Loan Agreement shall not have been terminated, such amount
shall be held by the undersigned in trust for Lender, segregated from other
funds of the undersigned, and shall forthwith upon, and in any event within two
(2) business days of, receipt by the undersigned, be turned over to Lender in
the exact form received by the undersigned (duly endorsed by the undersigned to
Lender, if required), to be applied against the Obligations, whether matured or
unmatured, in such order as Lender may determine, subject to the provisions of
the Loan Agreement. Any and all present and future debts and obligations of
Borrowers to any of the undersigned are hereby subordinated to the full payment
and performance of, all present and future debts and obligations of Borrowers to
Lender.
d. The undersigned further waives the right to renounce any
disposition or transfer of assets whether created under a will, trust agreement
or intestacy statute, with respect to any devise, bequest, distributive share,
trust account, life insurance or annuity contract, employee benefit plan
(including, without limitation, any pension, retirement, death benefit, stock
bonus or profit sharing plan, system or trust), or any other disposition or
transfer created by
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any testamentary or nontestamentary instrument or by operation of law, and any
of the foregoing created or increased by reason of a renunciation made by
another person.
4. Representations and Warranties. The undersigned hereby represents and
warrants (all of which representations and warranties shall survive until all
Obligations are indefeasibly satisfied in full and the Loan Agreement has been
irrevocably terminated), that:
a. Legal Capacity. The undersigned has full legal capacity to execute
and deliver this Limited Guaranty and to perform the obligations of the
undersigned under this Limited Guaranty.
b. Legal, Xxxxx and Binding Character. This Limited Guaranty
constitutes the legal, valid and binding obligation of the undersigned
enforceable in accordance with its terms, except as enforceability may be
limited by applicable Insolvency Law.
c. Violations. The execution, delivery and performance of this Limited
Guaranty will not violate any requirement of law applicable to the undersigned
or any material contract, agreement or instrument to which the undersigned is a
party or by which the undersigned or any property of the undersigned is bound or
result in the creation or imposition of any mortgage, lien or other encumbrance
other than to Lender on any of the property or assets of the undersigned
pursuant to the provisions of any of the foregoing.
d. Consents or Approvals. No consent of any other person or entity
(including, without limitation, any creditor of the undersigned) and no consent,
license, permit, approval or authorization of, exemption by, notice or report
to, or registration, filing or declaration with, any governmental authority is
required in connection with the execution, delivery, performance, validity or
enforceability of this Limited Guaranty.
e. Litigation. No litigation, arbitration, investigation or
administrative proceeding of or before any court, arbitrator or governmental
authority, bureau or agency is currently pending or, to the best knowledge of
the undersigned, threatened (i) with respect to this Limited Guaranty or any of
the transactions contemplated by this Limited Guaranty or (ii) against or
affecting the undersigned, or any property or assets of the undersigned, which,
if adversely determined, would have a material adverse effect on the business,
operations, assets or condition, financial or otherwise, of the undersigned.
f. Financial Benefit. The undersigned has derived or expects to derive
a financial or other advantage from each and every loan, advance or extension of
credit made under the Loan Agreement or other Obligation incurred by Borrowers
to Lender.
5. Acceleration.
a. If any breach of any covenant or condition or other event of
default shall occur and be continuing under any agreement made by Borrowers or
the undersigned to Lender, or either Borrowers or the undersigned should at any
time become insolvent, or make a general assignment, or if a proceeding in or
under any Insolvency Law shall be filed or commenced by, or in respect of, the
undersigned, or if a notice of any lien, levy, or assessment is filed of record
with respect to any assets of the undersigned by the United States of America or
any department,
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agency, or instrumentality thereof, or if any taxes or debts owing at any time
or times hereafter to any one of them becomes a lien or encumbrance upon any
assets of the undersigned in Lender's possession, or otherwise, any and all
Obligations shall for purposes hereof, at Lender's option, be deemed due and
payable without notice notwithstanding that any such Obligation is not then due
and payable by Borrowers.
b. The undersigned will promptly notify Lender of any default by the
undersigned in the performance or observance of any term or condition of any
agreement to which the undersigned is a party if the effect of such default is
to cause, or permit the holder of any obligation under such agreement to cause,
such obligation to become due prior to its stated maturity and, if such an event
occurs, Lender shall have the right to accelerate the undersigned's obligations
hereunder.
6. Payments from Guarantor. Lender, in its sole and absolute discretion,
with or without notice to the undersigned, may apply on account of the
Obligations any payment from the undersigned or any other guarantor, or amounts
realized from any security for the Obligations, or may deposit any and all such
amounts realized in a non-interest bearing cash collateral deposit account to be
maintained as security for the Obligations.
7. Costs. Subject to Section 19 hereof, the undersigned shall pay on
demand, all costs, fees and expenses (including expenses for legal services of
every kind) relating or incidental to the enforcement or protection of the
rights of Lender hereunder or under any of the Obligations.
8. No Termination. This is a continuing irrevocable guaranty and shall
remain in full force and effect and be binding upon the undersigned, and the
undersigned's heirs, administrators, executors, successors and assigns, until
all of the Obligations have been paid in full and the Loan Agreement has been
irrevocably terminated. If any of the present or future Obligations are
guarantied by persons, partnerships or corporations in addition to the
undersigned, the death, release or discharge in whole or in part or the
bankruptcy, merger, consolidation, incorporation, liquidation or dissolution of
one or more of them shall not discharge or affect the liabilities of the
undersigned under this Limited Guaranty. The death of the undersigned shall not
effect a termination of this Limited Guaranty and loans and advances made by
Xxxxxx and any indebtedness incurred by Borrowers from Lender subsequent to such
death shall continue to constitute Obligations guaranteed hereunder.
9. Recapture. Anything in this Limited Guaranty to the contrary
notwithstanding, if Lender receives any payment or payments on account of the
liabilities guaranteed hereby, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver, or any other party under
any Insolvency Law, common law or equitable doctrine, then to the extent of any
sum not finally retained by Xxxxxx, the undersigned's obligations to Lender
shall be reinstated and this Limited Guaranty shall remain in full force and
effect (or be reinstated) until payment shall have been made to Lender, which
payment shall be due on demand.
10. Books and Records. The books and records of Xxxxxx showing the account
between Xxxxxx and Borrowers shall be admissible in evidence in any action or
proceeding, shall
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be binding upon the undersigned for the purpose of establishing the items
therein set forth and shall constitute prima facie proof thereof.
11. No Waiver. No failure on the part of Lender to exercise, and no delay
in exercising, any right, remedy or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by Lender of any right, remedy
or power hereunder preclude any other or future exercise of any other legal
right, remedy or power. Each and every right, remedy and power hereby granted to
Lender or allowed it by law or other agreement shall be cumulative and not
exclusive of any other, and may be exercised by Lender at any time and from time
to time.
12. Waiver of Jury Trial. THE UNDERSIGNED DOES HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING BASED ON OR WITH RESPECT TO THIS LIMITED GUARANTY OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR RELATING OR INCIDENTAL HERETO. THE
UNDERSIGNED DOES HEREBY CERTIFY THAT NO REPRESENTATIVE OR AGENT OF XXXXXX HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LENDER WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.
13. Governing Law; Jurisdiction; Amendments. THIS INSTRUMENT CANNOT BE
CHANGED OR TERMINATED ORALLY, AND SHALL BE GOVERNED, CONSTRUED AND INTERPRETED
AS TO VALIDITY, ENFORCEMENT AND IN ALL OTHER RESPECTS IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. THE UNDERSIGNED EXPRESSLY CONSENTS TO THE
JURISDICTION AND VENUE OF THE FEDERAL AND STATE COURTS LOCATED IN THE STATE OF
NEW YORK FOR ALL PURPOSES IN CONNECTION HEREWITH. ANY JUDICIAL PROCEEDING BY THE
UNDERSIGNED AGAINST LENDER INVOLVING, DIRECTLY OR INDIRECTLY ANY MATTER OR CLAIM
IN ANY WAY ARISING OUT OF, RELATED TO OR CONNECTED HEREWITH SHALL BE BROUGHT
ONLY IN THE FEDERAL AND STATE COURTS LOCATED IN THE STATE OF NEW YORK. THE
UNDERSIGNED FURTHER CONSENTS THAT ANY SUMMONS, SUBPOENA OR OTHER PROCESS OR
PAPERS (INCLUDING, WITHOUT LIMITATION, ANY NOTICE OR MOTION OR OTHER APPLICATION
TO EITHER OF THE AFOREMENTIONED COURTS OR A JUDGE THEREOF) OR ANY NOTICE IN
CONNECTION WITH ANY PROCEEDINGS HEREUNDER, MAY BE SERVED INSIDE OR OUTSIDE OF
THE STATE OF NEW YORK BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED,
OR BY PERSONAL SERVICE PROVIDED A REASONABLE TIME FOR APPEARANCE IS PERMITTED,
OR IN SUCH OTHER MANNER AS MAY BE PERMISSIBLE UNDER THE RULES OF SAID COURTS.
THE UNDERSIGNED WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION
INSTITUTED HEREON AND SHALL NOT ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION
OR VENUE OR BASED UPON FORUM NON CONVENIENS.
14. Severability. To the extent permitted by applicable law, any provision
of this Limited Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without
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invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
15. Amendments, Waivers. No amendment or waiver of any provision of this
Limited Guaranty nor consent to any departure by the undersigned therefrom shall
in any event be effective unless the same shall be in writing executed by the
undersigned and Xxxxxx.
16. Notice. All notices, requests and demands to or upon the undersigned,
shall be in writing and shall be deemed to have been duly given or made (a) when
delivered, if by hand, (b) three (3) days after being sent, postage prepaid, if
by registered or certified mail, (c) when confirmed electronically, if by
facsimile, or (d) when delivered, if by a recognized overnight delivery service
in each event, to the numbers and/or address set forth beneath the signature of
the undersigned.
17. Successors. Lender may, from time to time, without notice to the
undersigned, sell, assign, transfer or otherwise dispose of all or any part of
the Obligations and/or rights under this Limited Guaranty. Without limiting the
generality of the foregoing, Lender may assign, or grant participations to, one
or more banks, financial institutions or other entities all or any part of any
of the Obligations. In each such event, Lender, its Affiliates and each and
every immediate and successive purchaser, assignee, transferee or holder of all
or any part of the Obligations shall have the right to enforce this Limited
Guaranty, by legal action or otherwise, for its own benefit as fully as if such
purchaser, assignee, transferee or holder were herein by name specifically given
such right.
18. Release. Nothing except cash payment in full of the Obligations shall
release the undersigned from liability under this Limited Guaranty.
19. Limited Recourse. Notwithstanding anything to the contrary contained in
this Limited Guaranty, Xxxxxx's recourse under this Limited Guaranty shall be
limited to the enforcement of its rights under (a) the Mortgage dated as of the
date hereof executed and delivered by the undersigned to Lender covering the
real property located at 00 Xxxxx Xxxx, Xxxxx Xxxxx, Xxx Xxxx 00000, (b) the
Mortgage and Security Agreement dated as of the date hereof executed and
delivered by the undersigned and Xxx X. Xxxx-Xxxxxxxx in favor of Lender
covering the real property located at 0000 Xxxxx Xxxxx, Xxx Xxxxx, Xxxxxxx 00000
and (c) the Pledge Agreement dated as of the date hereof executed and delivered
by the undersigned and Xxxxx Xxxxxxxx in favor of Xxxxxx.
[Signature Page to Follow]
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IN WITNESS WHEREOF, this Limited Guaranty has been executed by the
undersigned this 3 day of April, 2003.
/s/
-----------------------------
Xxxxxxx X. Xxxx-Xxxxxxxx
Mailing Address:
000 Xxxxx 000
Xxxxx Xxxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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STATE OF NEW YORK )
): ss.:
COUNTY OF ___________
On the ____ day of April, 2003, before me personally came Xxxxxxx X.
Xxxx-Xxxxxxxx to me known, who being by me duly sworn, did depose and say that
he resides at ___________________, that he has read the foregoing instrument and
is fully familiar with the contents thereof; that he signed his name thereto of
his own free will and volition.
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Notary Public
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