GENERAL CONTINUING GUARANTY
Exhibit 10.2
This GENERAL CONTINUING GUARANTY (this “Guaranty”), dated as of December 24, 2008, is
executed and delivered by VISUAL SCIENCES, INC., a Delaware corporation (“Guarantor”), in
favor of XXXXX FARGO FOOTHILL, LLC, a Delaware limited liability company, as agent for the Lender
Group and the Bank Product Providers (in such capacity, together with its successors and assigns,
if any, in such capacity, “Agent”), in light of the following:
WHEREAS, Omniture, Inc., a Delaware corporation (“Borrower”), the below defined
Lenders, and Agent are, contemporaneously herewith, entering into that certain Credit Agreement of
even date herewith (as amended, restated, modified, renewed or extended from time to time, the
“Credit Agreement”);
WHEREAS, Guarantor is a Subsidiary of Borrower and, as such, will benefit by virtue of the
financial accommodations extended to Borrower by the Lender Group; and
WHEREAS, in order to induce the Lender Group to enter into the Credit Agreement and the other
Loan Documents and to extend the loans and other financial accommodations to Borrower pursuant to
the Credit Agreement, and in consideration thereof, and in consideration of any loans or other
financial accommodations heretofore or hereafter extended by the Lender Group to Borrower pursuant
to the Loan Documents, Guarantor has agreed to guaranty the Guarantied Obligations.
NOW, THEREFORE, in consideration of the foregoing, Guarantor hereby agrees as follows:
1. Definitions and Construction.
(a) Definitions. Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to them in the Credit Agreement. The following terms, as used in this
Guaranty, shall have the following meanings:
“Agent” has the meaning set forth in the preamble to this Guaranty.
“Borrower” has the meaning set forth in the recitals to this Guaranty.
“Credit Agreement” has the meaning set forth in the recitals to this Guaranty.
“Guarantied Obligations” means all of the Obligations now or hereafter existing or
arising under any Loan Document, whether for principal, interest (including all interest that
accrues after the commencement of any Insolvency Proceeding irrespective of whether a claim
therefor is allowed in such case or proceeding), fees, expenses or otherwise, and also includes any
and all expenses (including reasonable counsel fees and expenses) incurred by the Agent, the
Lenders or the Issuing Lender (or any of them) in enforcing any rights under this Guaranty.
Without limiting the generality of the foregoing, Guarantied Obligations shall include all amounts
that constitute part of the Guarantied Obligations and would be owed by the Borrower to the Agent,
the Lenders or the Issuing Lender under any Loan Document but for the fact that they are
unenforceable or not allowable, including due to the existence of a bankruptcy, reorganization or
similar proceeding involving Borrower or any other guarantor.
“Guarantor” has the meaning set forth in the preamble to this Guaranty.
“Guaranty” has the meaning set forth in the preamble to this Guaranty.
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“Lender Group” has the meaning set forth in the Credit Agreement.
“Lenders” means, individually and collectively, each of the lenders identified on the
signature pages to the Credit Agreement, and shall include any other Person made a party to the
Credit Agreement in accordance with the provisions thereof (together with their respective
successors and assigns).
“Record” means information that is inscribed on a tangible medium or which is stored
in an electronic or other medium and is retrievable in perceivable form.
“Voidable Transfer” has the meaning set forth in Section 9 of this Guaranty.
(b) Construction. Unless the context of this Guaranty clearly requires otherwise,
references to the plural include the singular, references to the singular include the plural, the
part includes the whole, the terms “includes” and “including” are not limiting,
and the term “or” has, except where otherwise indicated, the inclusive meaning represented
by the phrase “and/or.” The words “hereof,” “herein,” “hereby,”
“hereunder,” and other similar terms in this Guaranty refer to this Guaranty as a whole and
not to any particular provision of this Guaranty. Section, subsection, clause, schedule, and
exhibit references herein are to this Guaranty unless otherwise specified. Any reference in this
Guaranty to any agreement, instrument, or document shall include all alterations, amendments,
changes, extensions, modifications, renewals, replacements, substitutions, joinders, and
supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations,
amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders,
and supplements set forth herein). Neither this Guaranty nor any uncertainty or ambiguity herein
shall be construed or resolved against the Lender Group or Borrower, whether under any rule of
construction or otherwise. On the contrary, this Guaranty has been reviewed by all parties and
shall be construed and interpreted according to the ordinary meaning of the words used so as to
accomplish fairly the purposes and intentions of Guarantor and Agent. Any reference herein to the
satisfaction or payment in full of the Guarantied Obligations shall mean the payment in full in
cash (or cash collateralization in accordance with the terms of the Credit Agreement) of all
Guarantied Obligations other than contingent indemnification Guarantied Obligations and other than
any Bank Product Obligations that, at such time, are allowed by the applicable Bank Product
Provider to remain outstanding and are not required to be repaid or cash collateralized pursuant to
the provisions of the Credit Agreement and the full and final termination of any commitment to
extend any financial accommodations under the Credit Agreement and any other Loan Document. Any
reference herein to any Person shall be construed to include such Person’s successors and assigns.
Any requirement of a writing contained herein shall be satisfied by the transmission of a Record
and any Record transmitted shall constitute a representation and warranty as to the accuracy and
completeness of the information contained therein. The captions and headings are for convenience
of reference only and shall not affect the construction of this Guaranty.
2. Guarantied Obligations. Guarantor hereby irrevocably and unconditionally
guaranties to Agent, for the benefit of the Lender Group and the Bank Product Providers, as and for
its own debt, until the final and indefeasible payment in full thereof, in cash, has been made, (a)
the due and punctual payment of the Guarantied Obligations, when and as the same shall become due
and payable, whether at maturity, pursuant to a mandatory prepayment requirement, by acceleration,
or otherwise; it being the intent of Guarantor that the guaranty set forth herein shall be a
guaranty of payment and not a guaranty of collection; and (b) the punctual and faithful
performance, keeping, observance, and fulfillment by Borrower of all of the agreements, conditions,
covenants, and obligations of Borrower contained in the Credit Agreement and under each of the
other Loan Documents.
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3. Continuing Guaranty. This Guaranty includes Guarantied Obligations arising under
successive transactions continuing, compromising, extending, increasing, modifying, releasing, or
renewing the Guarantied Obligations, changing the interest rate, payment terms, or other terms and
conditions thereof, or creating new or additional Guarantied Obligations after prior Guarantied
Obligations have been satisfied in whole or in part. To the maximum extent permitted by law,
Guarantor hereby waives any right to revoke this Guaranty as to future Guarantied Obligations. If such a revocation is effective
notwithstanding the foregoing waiver, Guarantor acknowledges and agrees that (a) no such revocation
shall be effective until written notice thereof has been received by Agent, (b) no such revocation
shall apply to any Guarantied Obligations in existence on the date of receipt by Agent of such
written notice (including any subsequent continuation, extension, or renewal thereof, or change in
the interest rate, payment terms, or other terms and conditions thereof), (c) no such revocation
shall apply to any Guarantied Obligations made or created after such date to the extent made or
created pursuant to a legally binding commitment of the Lender Group in existence on the date of
such revocation, (d) no payment by Guarantor, Borrower, or from any other source, prior to the date
of Agent’s receipt of written notice of such revocation shall reduce the maximum obligation of
Guarantor hereunder, and (e) any payment by Borrower or from any source other than Guarantor
subsequent to the date of such revocation shall first be applied to that portion of the Guarantied
Obligations as to which the revocation is effective and which are not, therefore, guarantied
hereunder, and to the extent so applied shall not reduce the maximum obligation of Guarantor
hereunder.
4. Performance Under this Guaranty. In the event that Borrower fails to make any
payment of any Guarantied Obligations, on or prior to the due date thereof, or if Borrower shall
fail to perform, keep, observe, or fulfill any other obligation referred to in clause (b) of
Section 2 of this Guaranty in the manner provided in the Credit Agreement or any other Loan
Document, Guarantor immediately shall cause, as applicable, such payment in respect of the
Guarantied Obligations to be made or such obligation to be performed, kept, observed, or fulfilled.
5. Primary Obligations. This Guaranty is a primary and original obligation of
Guarantor, is not merely the creation of a surety relationship, and is an absolute, unconditional,
and continuing guaranty of payment and performance which shall remain in full force and effect
without respect to future changes in the financial condition of Borrower or Guarantor. Guarantor
hereby agrees that it is directly, jointly and severally with any other guarantor of the Guarantied
Obligations, liable to Agent, for the benefit of the Lender Group and the Bank Product Providers,
that the obligations of Guarantor hereunder are independent of the obligations of Borrower or any
other guarantor, and that a separate action may be brought against Guarantor, whether such action
is brought against Borrower or any other guarantor or whether Borrower or any other guarantor is
joined in such action. Guarantor hereby agrees that its liability hereunder shall be immediate and
shall not be contingent upon the exercise or enforcement by any member of the Lender Group or any
Bank Product Provider of whatever remedies they may have against Borrower or any other guarantor,
or the enforcement of any lien or realization upon any security by any member of the Lender Group
or any Bank Product Provider. Guarantor hereby agrees that any release which may be given by Agent
to Borrower or any other guarantor, or with respect to any property or asset subject to a Lien,
shall not release Guarantor. Guarantor consents and agrees that no member of the Lender Group nor
any Bank Product Provider shall be under any obligation to marshal any property or assets of
Borrower or any other guarantor in favor of Guarantor, or against or in payment of any or all of
the Guarantied Obligations.
6. Waivers.
(a) To the fullest extent permitted by applicable law, Guarantor hereby waives: (i) notice of
acceptance hereof; (ii) notice of any loans or other financial accommodations made or extended
under the Credit Agreement, or the creation or existence of any Guarantied Obligations; (iii)
notice of the amount of the Guarantied Obligations, subject, however, to Guarantor’s right to make
inquiry of Agent to ascertain the amount of the Guarantied Obligations at any reasonable time; (iv)
notice of any adverse change in the financial condition of Borrower or of any other fact that might
increase Guarantor’s risk hereunder; (v) notice of presentment for payment, demand, protest, and
notice thereof as to any instrument among the Loan Documents; (vi) notice of any Default or Event
of Default under any of the Loan Documents; and (vii) all other notices (except if such notice is
specifically required to be given to Guarantor under this Guaranty or any other Loan Documents to
which Guarantor is a party) and demands to which Guarantor might otherwise be entitled.
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(b) To the fullest extent permitted by applicable law, Guarantor hereby waives the right by
statute or otherwise to require any member of the Lender Group or any Bank Product Provider, to
institute suit against Borrower or any other guarantor or to exhaust any rights and remedies which
any member of the Lender Group or any Bank Product Provider, has or may have against Borrower or
any other guarantor. In this regard, Guarantor agrees that it is bound to the payment of each and
all Guarantied Obligations, whether now existing or hereafter arising, as fully as if the
Guarantied Obligations were directly owing to Agent, the Lender Group, or the Bank Product
Providers, as applicable, by Guarantor. To the fullest extent permitted by applicable law,
Guarantor further waives any defense arising by reason of any disability or other defense (other
than the defense that the Guarantied Obligations shall have been fully and finally performed and
indefeasibly paid in full in cash, to the extent of any such payment) of Borrower or by reason of
the cessation from any cause whatsoever of the liability of Borrower in respect thereof.
(c) To the fullest extent permitted by applicable law, Guarantor hereby waives: (i) any right
to assert against any member of the Lender Group or any Bank Product Provider, any defense (legal
or equitable), set-off, counterclaim, or claim which Guarantor may now or at any time hereafter
have against Borrower or any other party liable to any member of the Lender Group or any Bank
Product Provider; (ii) any defense, set-off, counterclaim, or claim, of any kind or nature, arising
directly or indirectly from the present or future lack of perfection, sufficiency, validity, or
enforceability of the Guarantied Obligations or any security therefor; (iii) any right or defense
arising by reason of any claim or defense based upon an election of remedies by any member of the
Lender Group or any Bank Product Provider including any defense based upon an impairment or
elimination of Guarantor’s rights of subrogation, reimbursement, contribution, or indemnity of
Guarantor against Borrower or other guarantors or sureties; (iv) the benefit of any statute of
limitations affecting Guarantor’s liability hereunder or the enforcement thereof, and any act which
shall defer or delay the operation of any statute of limitations applicable to the Guarantied
Obligations shall similarly operate to defer or delay the operation of such statute of limitations
applicable to Guarantor’s liability hereunder.
(d) Until the Guarantied Obligations have been paid in full in cash, (i) Guarantor hereby
postpones and agrees not to exercise any right of subrogation Guarantor has or may have as against
Borrower with respect to the Guarantied Obligations; (ii) Guarantor hereby postpones and agrees not
to exercise any right to proceed against Borrower or any other Person now or hereafter liable on
account of the Obligations for contribution, indemnity, reimbursement, or any other similar rights
(irrespective of whether direct or indirect, liquidated or contingent); and (iii) Guarantor hereby
postpones and agrees not to exercise any right it may have to proceed or to seek recourse against
or with respect to any property or asset of Borrower or any other Person now or hereafter liable on
account of the Obligations. Notwithstanding anything to the contrary contained in this Guaranty,
Guarantor shall not exercise any rights of subrogation, contribution, indemnity, reimbursement or
other similar rights against, and shall not proceed or seek recourse against or with respect to any
property or asset of, Borrower or any other guarantor (including after payment in full of the
Guaranteed Obligations) if all or any portion of the Obligations have been satisfied in connection
with an exercise of remedies in respect of the Stock of Borrower or such other guarantor whether
pursuant to the Security Agreement or otherwise.
(e) To the fullest extent permitted by applicable law, if any of the Guarantied Obligations or
the obligations of Guarantor under this Guaranty at any time are secured by a mortgage or deed of
trust upon real property, any member of the Lender Group or any Bank Product Provider may elect, in
its sole discretion, upon a default with respect to the Guarantied Obligations or the obligations
of Guarantor under this Guaranty, to foreclose such mortgage or deed of trust judicially or
nonjudicially in any manner permitted by law, before or after enforcing this Guaranty, without
diminishing or affecting the liability of Guarantor hereunder. Guarantor understands that (a) by
virtue of the operation of antideficiency law applicable to nonjudicial foreclosures, an election
by any member of the Lender Group or any Bank Product Provider to nonjudicially foreclose on such a
mortgage or deed of trust probably would have the effect of impairing or destroying rights of
subrogation, reimbursement, contribution, or indemnity of Guarantor against Borrower or other
guarantors or sureties, and (b) absent the waiver given by Guarantor herein, such an election would
estop any member of the Lender Group and the Bank Product Providers from enforcing this Guaranty
against Guarantor. To the fullest extent permitted by applicable law, understanding the foregoing,
and understanding that Guarantor is hereby relinquishing a defense to the enforceability of this Guaranty,
Guarantor hereby waives any right to assert against any member of the Lender Group or any Bank
Product Provider any defense to the enforcement of this Guaranty, whether denominated
“estoppel” or otherwise, based on or arising from an election by any member of the Lender
Group or any Bank Product Provider to nonjudicially foreclose on any such mortgage or deed of trust
or as a result of any other exercise of remedies, whether under a mortgage or deed of trust or
under any personal property security agreement. Guarantor understands that the effect of the
foregoing waiver may be that Guarantor may have liability hereunder for amounts with respect to
which Guarantor may be left without rights of subrogation, reimbursement, contribution, or
indemnity against Borrower or other guarantors or sureties. Guarantor also agrees that the
“fair market value” provisions of Section 580a of the California Code of Civil Procedure
(and any similar law of any other applicable jurisdiction) shall have no applicability with respect
to the determination of Guarantor’s liability under this Guaranty.
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(f) Without limiting the generality of any other waiver or other provision set forth in this
Guaranty, Guarantor, to the fullest extent permitted by applicable law, waives all rights and
defenses that Guarantor may have if all or part of the Guarantied Obligations are secured by real
property. This means, among other things:
(i) Any member of the Lender Group or any Bank Product Provider may collect from Guarantor
without first foreclosing on any real or personal property collateral that may be pledged by
Guarantor, Borrower, or any other guarantor.
(ii) If any member of the Lender Group or any Bank Product Provider forecloses on any real
property collateral that may be pledged by Guarantor, Borrower or any other guarantor:
| (1) | The amount of the Guarantied Obligations or any obligations of any guarantor in respect thereof may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price. | ||
| (2) | Agent may collect from Guarantor even if any member of the Lender Group or any Bank Product Provider, by foreclosing on the real property collateral, has destroyed any right Guarantor may have to collect from Borrower or any other Guarantor. |
This is an unconditional and irrevocable waiver of any rights and defenses Guarantor may have
if all or part of the Guarantied Obligations are secured by real property. These rights and
defenses are based upon Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure
and any similar laws of any other applicable jurisdiction.
(g) Without limiting the generality of any other waiver or other provision set forth in this
Guaranty, Guarantor hereby waives, to the maximum extent such waiver is permitted by law, any and
all benefits or defenses arising directly or indirectly under any one or more of California Civil
Code §§ 2787, 2799, 2808, 2815, 2819, 2820, 2821, 2822, 2838, 2839, 2847, 2848, and 2855,
California Code of Civil Procedure §§ 580a, 580b, 580c, 580d, and 726, and Chapter 2 of Title 14 of
the California Civil Code or any similar laws of any other applicable jurisdiction.
Notwithstanding anything contained in this Guaranty, such waivers with respect to Sections 2847,
2848 and 2849 of the California Civil Code shall only be effective until all Guarantied Obligations
have been paid in full.
(h) Without limiting the generality of any other waiver or other provision set forth in this
Guaranty, Guarantor waives all rights and defenses arising out of an election of remedies by any
member of the Lender Group or any Bank Product Provider, even though such election of remedies,
such as a non-judicial foreclosure with respect to security for the Guarantied Obligations, has
destroyed Guarantor’s rights of subrogation and reimbursement against Borrower by the operation of applicable law including
§580d of the California Code of Civil Procedure or any similar laws of any other applicable
jurisdiction.
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(i) Without limiting the generality of any other waiver or other provision set forth in this
Guaranty, Guarantor, to the fullest extent permitted by applicable law, hereby also agrees to the
following waivers:
(i) Agent’s right to enforce this Guaranty is absolute and is not contingent upon the
genuineness, validity or enforceability of the Guarantied Obligations or any of the Loan Documents.
Guarantor waives all benefits and defenses it may have under California Civil Code Section 2810 or
any similar laws in any other applicable jurisdiction and agrees that Agent’s rights under this
Guaranty shall be enforceable even if Borrower had no liability at the time of execution of the
Loan Documents or the Guarantied Obligations are unenforceable in whole or in part, or Borrower
ceases to be liable with respect to all or any portion of the Guarantied Obligations.
(ii) Guarantor waives all benefits and defenses it may have under California Civil Code
Section 2809 or any similar laws in any other applicable jurisdiction with respect to its
obligations under this Guaranty and agrees that Agent’s rights under the Loan Documents will remain
enforceable even if the amount guaranteed hereunder is larger in amount and more burdensome than
that for which Borrower is responsible. The enforceability of this Guaranty against Guarantor
shall continue until all sums due under the Loan Documents have been paid in full and shall not be
limited or affected in any way by any impairment or any diminution or loss of value of any security
or collateral for Borrower’s obligations under the Loan Documents, from whatever cause, the failure
of any security interest in any such security or collateral or any disability or other defense of
Borrower, any other guarantor of Borrower’s obligations under any other Loan Document, any pledgor
of collateral for any person’s obligations to Agent or any other person in connection with the Loan
Documents.
(iii) Guarantor waives all benefits and defenses it may have under California Civil Code §§
2845, 2849 and 2850 or any similar laws of any other applicable jurisdiction with respect to its
obligations under this Guaranty, including the right to require Agent to (A) proceed against
Borrower, any guarantor of Borrower’s obligations under any Loan Document, any other pledgor of
collateral for any person’s obligations to Agent or any other person in connection with the
Guarantied Obligations, (B) proceed against or exhaust any other security or collateral Agent may
hold, or (C) pursue any other right or remedy for Guarantor’s benefit, and agrees that Agent may
exercise its right under this Guaranty without taking any action against Borrower, any other
guarantor of Borrower’s obligations under the Loan Documents, any pledgor of collateral for any
person’s obligations to Agent or any other person in connection with the Guarantied Obligations,
and without proceeding against or exhausting any security or collateral Agent holds.
Notwithstanding anything contained in this Guaranty, such waivers with respect to Section 2849 of
the California Civil Code shall only be effective until all Guarantied Obligations have been paid
in full.
(iv) The paragraphs in this Section 6 which refer to certain sections of the California Civil
Code are included in this Guaranty solely out of an abundance of caution and shall not be construed
to mean that any of the above-referenced provisions of California law are in any way applicable to
this Guaranty.
7. Releases. To the maximum extent permitted by applicable law, Guarantor consents
and agrees that, without notice to or by Guarantor and without affecting or impairing the
obligations of Guarantor hereunder, any member of the Lender Group or any Bank Product Provider
may, by action or inaction, compromise or settle, shorten or extend the Maturity Date or any other
period of duration or the time for the payment of the Obligations, or discharge the performance of
the Obligations, or may refuse to enforce the Obligations, or otherwise elect not to enforce the
Obligations, or may, by action or inaction, release all or any one or more parties to, any one or
more of the terms and provisions of the Credit Agreement or any of the other Loan Documents or may
grant other indulgences to Borrower or any other guarantor in respect thereof, or may
amend or modify in any manner and at any time (or from time to time) any one or more of the
Obligations, the Credit Agreement or any other Loan Document (including any increase or decrease in
the principal amount of any Obligations or the interest, fees or other amounts that may accrue from
time to time in respect thereof), or may, by action or inaction, release or substitute the Borrower
or any guarantor, if any, of the Guarantied Obligations, or may enforce, exchange, release, or
waive, by action or inaction, any security for the Guarantied Obligations or any other guaranty of
the Guarantied Obligations, or any portion thereof.
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8. No Election. The Lender Group and the Bank Product Providers shall have the right
to seek recourse against Guarantor to the fullest extent provided for herein and no election by any
member of the Lender Group or any Bank Product Provider to proceed in one form of action or
proceeding, or against any party, or on any obligation, shall constitute a waiver of the Lender
Group’s or any Bank Product Provider’s right to proceed in any other form of action or proceeding
or against other parties unless Agent, on behalf of the Lender Group or the Bank Product Providers,
has expressly waived such right in writing. Specifically, but without limiting the generality of
the foregoing, no action or proceeding by the Lender Group or the Bank Product Providers under any
document or instrument evidencing the Guarantied Obligations shall serve to diminish the liability
of Guarantor under this Guaranty except to the extent that the Lender Group and the Bank Product
Providers finally and unconditionally shall have realized indefeasible payment in full of the
Guarantied Obligations by such action or proceeding.
9. Revival and Reinstatement. If the incurrence or payment of the Guarantied
Obligations or the obligations of Guarantor under this Guaranty by Guarantor or the transfer by
Guarantor to Agent of any property of Guarantor should for any reason subsequently be declared to
be void or voidable under any state or federal law relating to creditors’ rights, including
provisions of the Bankruptcy Code relating to fraudulent conveyances, preferences, or other
voidable or recoverable payments of money or transfers of property (collectively, a “Voidable
Transfer”), and if the Lender Group or any Bank Product Provider is required to repay or
restore, in whole or in part, any such Voidable Transfer, or elects to do so upon the reasonable
advice of its counsel, then, as to any such Voidable Transfer, or the amount thereof that the
Lender Group or any Bank Product Provider is required or elects to repay or restore, and as to all
reasonable costs, expenses, and attorneys fees of the Lender Group or any Bank Product Provider
related thereto, to the fullest extent permitted by applicable law, the liability of Guarantor
automatically shall be revived, reinstated, and restored and shall exist as though such Voidable
Transfer had never been made.
10. Financial Condition of Borrower. Guarantor represents and warrants to the Lender
Group and the Bank Product Providers that it is currently informed of the financial condition of
Borrower and of all other circumstances which a diligent inquiry would reveal and which bear upon
the risk of nonpayment of the Guarantied Obligations. Guarantor further represents and warrants to
the Lender Group and the Bank Product Providers that it has read and understands the terms and
conditions of the Credit Agreement and each other Loan Document. Guarantor hereby covenants that
it will continue to keep itself informed of Borrower’s financial condition, the financial condition
of other guarantors, if any, and of all other circumstances which bear upon the risk of nonpayment
or nonperformance of the Guarantied Obligations.
11. Payments; Application. All payments to be made hereunder by Guarantor shall be
made in Dollars, in immediately available funds, and without deduction (whether for taxes or
otherwise) or offset and shall be applied to the Guarantied Obligations in accordance with the
terms of the Credit Agreement.
12. Attorneys Fees and Costs. Guarantor agrees to pay, on demand, all attorneys fees
and all other costs and expenses which may be incurred by Agent, the Lender Group or any Bank
Product Provider in connection with the enforcement of this Guaranty or in any way arising out of,
or consequential to, the protection, assertion, or enforcement of the Guarantied Obligations (or
any security therefor), irrespective of whether suit is brought..
13. Notices. All notices and other communications hereunder to Agent shall be in
writing and shall be mailed, sent, or delivered in accordance Section 11 of the Credit Agreement.
All notices and other
communications hereunder to Guarantor shall be in writing and shall be mailed, sent, or
delivered in care of Borrower in accordance with Section 11 of the Credit Agreement.
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14. Cumulative Remedies. No remedy under this Guaranty, under the Credit Agreement,
or any other Loan Document is intended to be exclusive of any other remedy, but each and every
remedy shall be cumulative and in addition to any and every other remedy given under this Guaranty,
under the Credit Agreement, or any other Loan Document, and those provided by law. No delay or
omission by the Lender Group or Agent on behalf thereof to exercise any right under this Guaranty
shall impair any such right nor be construed to be a waiver thereof. No failure on the part of the
Lender Group or Agent on behalf thereof to exercise, and no delay in exercising, any right under
this Guaranty shall operate as a waiver thereof; nor shall any single or partial exercise of any
right under this Guaranty preclude any other or further exercise thereof or the exercise of any
other right.
15. Severability of Provisions. Each provision of this Guaranty shall be severable
from every other provision of this Guaranty for the purpose of determining the legal enforceability
of any specific provision.
16. Entire Agreement; Amendments. This Guaranty constitutes the entire agreement
between parties pertaining to the subject matter contained herein. This Guaranty may not be
altered, amended, or modified, nor may any provision hereof be waived or noncompliance therewith
consented to, except by means of a writing executed by Guarantor and Agent, on behalf of the Lender
Group. Any such alteration, amendment, modification, waiver, or consent shall be effective only to
the extent specified therein and for the specific purpose for which given. No course of dealing
and no delay or waiver of any right or default under this Guaranty shall be deemed a waiver of any
other, similar or dissimilar, right or default or otherwise prejudice the rights and remedies
hereunder.
17. Successors and Assigns. This Guaranty shall be binding upon Guarantor and its
successors and assigns and shall inure to the benefit of the successors and assigns of the Lender
Group and the Bank Product Providers; provided, however, Guarantor shall not assign this Guaranty
or delegate any of its duties hereunder without Agent’s prior written consent and any assignment to
which Agent does not consent shall be absolutely null and void. In the event of any assignment,
participation, or other transfer of rights by the Lender Group or the Bank Product Providers, the
rights and benefits herein conferred upon the Lender Group and the Bank Product Providers shall
automatically extend to and be vested in such assignee or other transferee.
18. No Third Party Beneficiary. This Guaranty is solely for the benefit of each
member of the Lender Group, each Bank Product Provider, and each of their successors and assigns
and may not be relied on by any other Person.
19. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE.
(a) THE VALIDITY OF THIS GUARANTY, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF,
AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED
HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF CALIFORNIA.
(b) THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS GUARANTY
SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
FEDERAL COURTS LOCATED IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA, PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT AGENT’S
OPTION, IN THE COURTS OF ANY
JURISDICTION WHERE AGENT ELECTS TO BRING SUCH ACTION OR WHERE SUCH COLLATERAL OR OTHER
PROPERTY MAY BE FOUND. GUARANTOR AND EACH MEMBER OF THE LENDER GROUP WAIVE, TO THE EXTENT
PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON
CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS
SECTION 19(b).
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(c) GUARANTOR AND EACH MEMBER OF THE LENDER GROUP HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS,
AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. GUARANTOR AND EACH MEMBER OF THE LENDER GROUP
REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY
TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS
SECTION MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
(d) THE PARTIES TO THIS GUARANTY PREFER THAT ANY DISPUTE BETWEEN OR AMONG THEM BE RESOLVED IN
LITIGATION SUBJECT TO A JURY TRIAL WAIVER AS SET FORTH IN SECTION 19(c). IF, HOWEVER,
UNDER THE THEN APPLICABLE LAW OF THE JURISDICTION IN WHICH A PARTY SEEKS TO COMMENCE ANY SUCH
LITIGATION, A PRE-DISPUTE JURY TRIAL WAIVER OF THE TYPE PROVIDED FOR IN SECTION 19(c) IS
UNENFORCEABLE IN LITIGATION TO RESOLVE ANY DISPUTE, CLAIM, CAUSE OF ACTION OR CONTROVERSY UNDER
THIS GUARANTY OR ANY OTHER LOAN DOCUMENT (EACH, A “CLAIM”), THEN, UPON THE WRITTEN REQUEST
OF SUCH PARTY, SUCH CLAIM, INCLUDING ANY AND ALL QUESTIONS OF LAW OR FACT RELATING THERETO, SHALL
BE DETERMINED EXCLUSIVELY BY A JUDICIAL REFERENCE PROCEEDING. EXCEPT AS OTHERWISE PROVIDED IN
SECTION 19(b), VENUE FOR ANY SUCH REFERENCE PROCEEDING SHALL BE IN THE STATE OR FEDERAL
COURT IN THE COUNTY OR DISTRICT WHERE VENUE IS APPROPRIATE UNDER APPLICABLE LAW (THE
“COURT”). THE PARTIES SHALL SELECT A SINGLE NEUTRAL REFEREE, WHO SHALL BE A RETIRED STATE
OR FEDERAL JUDGE. IF THE PARTIES CANNOT AGREE UPON A REFEREE, THE COURT SHALL APPOINT THE REFEREE.
THE REFEREE SHALL REPORT A STATEMENT OF DECISION TO THE COURT. NOTHING IN THIS PARAGRAPH SHALL
LIMIT THE RIGHT OF ANY PARTY AT ANY TIME TO EXERCISE SELF-HELP REMEDIES, FORECLOSE AGAINST
COLLATERAL OR OBTAIN PROVISIONAL REMEDIES (INCLUDING, WITHOUT LIMITATION, CLAIM AND DELIVERY,
INJUNCTIVE RELIEF, ATTACHMENT OR THE APPOINTMENT OF A RECEIVER). THE PARTIES SHALL BEAR THE FEES
AND EXPENSES OF THE REFEREE EQUALLY UNLESS THE REFEREE ORDERS OTHERWISE. THE REFEREE ALSO SHALL
DETERMINE ALL ISSUES RELATING TO THE APPLICABILITY, INTERPRETATION, AND ENFORCEABILITY OF THIS
SECTION 19(d). THE PARTIES ACKNOWLEDGE THAT ANY CLAIM DETERMINED BY REFERENCE PURSUANT TO
THIS SECTION 19(d) SHALL NOT BE ADJUDICATED BY A JURY.
20. Counterparts; Telefacsimile Execution. This Guaranty may be executed in any
number of counterparts and by different parties on separate counterparts, each of which, when
executed and delivered, shall be deemed to be an original, and all of which, when taken together,
shall constitute but one and the same Guaranty. Delivery of an executed counterpart of this
Guaranty by telefacsimile shall be equally as effective as delivery of an original executed
counterpart of this Guaranty. Any party delivering an executed counterpart of this Guaranty by
telefacsimile also shall deliver an original executed counterpart of this Guaranty but the failure
to deliver an original executed counterpart shall not affect the validity, enforceability, and
binding effect of this Guaranty.
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21. Agreement to be Bound. Guarantor hereby agrees to be bound by each and all of the
terms and provisions of the Credit Agreement applicable to Guarantor. Without limiting the
generality of the foregoing, by its execution and delivery of this Guaranty, Guarantor hereby: (a)
makes to the Lender Group each of the representations and warranties set forth in the Credit
Agreement applicable to Guarantor fully as though Guarantor were a party thereto, and such
representations and warranties are incorporated herein by this reference, mutatis mutandis; and (b)
agrees and covenants (i) to do each of the things set forth in the Credit Agreement that Borrower
agrees and covenants to cause Guarantor to do, and (ii) to not do each of the things set forth in
the Credit Agreement that Borrower agrees and covenants to cause Guarantor not to do, in each case,
fully as though Guarantor was a party thereto, and such agreements and covenants are incorporated
herein by this reference, mutatis mutandis.
[Signature page to follow]
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IN WITNESS WHEREOF, the undersigned has executed and delivered this Guaranty as of the date
first written above.
| VISUAL SCIENCES, INC., a Delaware corporation |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Chief Financial Officer | |||
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