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CROSS-CORPORATE CONTINUING GUARANTY
Borrower(s): SA Telecommunications, Inc.
U.S. Communications, Inc.
Long Distance Network, Inc.
Southwest Long Distance Network, Inc.
Guarantor(s): AddTel Communications, Inc.
Date: February 12, 1997
This Cross-Corporate Continuing Guaranty is executed by the
above-named guarantors (jointly and severally, the "Guarantor"),
as of the above date, in favor of GREYROCK BUSINESS CREDIT, a
Division of NationsCredit Commercial Corporation ("GBC"), whose
address is 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx, XX
00000 with respect to the Indebtedness of each and all of the
above-named borrowers (jointly and severally, the "Borrower").
1. CONTINUING GUARANTY. Guarantor hereby unconditionally
guarantees and promises to pay on demand to GBC in lawful money
of the United States, and to perform for the benefit of GBC, all
of the Borrower's present and future Indebtedness (as defined
below) to GBC.
2. "INDEBTEDNESS." As used in this Guaranty, the term
"Indebtedness" is used in its most comprehensive sense and shall
mean and include without limitation: (a) any and all debts,
duties, obligations, liabilities, representations, warranties and
guaranties of Borrower or any one or more of them, heretofore,
now, or hereafter made, incurred, or created, whether directly to
GBC or acquired by GBC by assignment or otherwise, or held by GBC
on behalf of others, however arising, whether voluntary or
involuntary, due or not due, absolute or contingent, liquidated
or unliquidated, certain or uncertain, determined or
undetermined, monetary or nonmonetary, written or oral, and
whether Borrower may be liable individually or jointly with
others, and regardless of whether recovery thereon may be or
hereafter become barred by any statute of limitations, discharged
or uncollectible in any bankruptcy, insolvency or other
proceeding, or otherwise unenforceable; and (b) any and all
amendments, modifications, renewals and extensions of any or all
of the foregoing, including without limitation amendments,
modifications, renewals and extensions which are evidenced by any
new or additional instrument, document or agreement; and (c) any
and all attorneys' fees, court costs, and collection charges
incurred in endeavoring to collect or enforce any of the
foregoing against Borrower, Guarantor, or any other person liable
thereon (whether or not suit be brought) and any other expenses
of, for or incidental to collection thereof.
3. WAIVERS. Guarantor hereby waives: (a) presentment for
payment, notice of dishonor, demand, protest, and notice thereof
as to any instrument, and all other notices and demands to which
Guarantor might be entitled, including without limitation notice
of all of the following: the acceptance hereof; the creation,
existence, or acquisition of any Indebtedness; the amount of the
Indebtedness from time to time outstanding; any foreclosure sale
or other disposition of any property which secures any or all of
the Indebtedness or which secures the obligations of any other
guarantor of any or all of the Indebtedness; any adverse change
in Borrower's financial position; any other fact which might
increase Guarantor's risk; any default, partial payment or non-
payment of all or any part of the Indebtedness; the occurrence of
any other Event of Default (as hereinafter defined); any and all
agreements and arrangements between GBC and Borrower and any
changes, modifications, or extensions thereof, and any
revocation, modification or release of any guaranty of any or all
of the Indebtedness by any person (including without limitation
any other person signing this Guaranty); (b) any right to require
GBC to institute suit against, or to exhaust its rights and
remedies against, Borrower or any other person, or to proceed
against any property of any kind
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which secures all or any part of the Indebtedness, or to exercise
any right of offset or other right with respect to any reserves,
credits or deposit accounts held by or maintained with GBC or any
indebtedness of GBC to Borrower, or to exercise any other right
or power, or pursue any other remedy GBC may have; (c) any
defense arising by reason of any disability or other defense of
Borrower or any other guarantor or any endorser, co-maker or
other person, or by reason of the cessation from any cause
whatsoever of any liability of Borrower or any other guarantor or
any endorser, co-maker or other person, with respect to all or
any part of the Indebtedness, or by reason of any act or omission
of GBC or others which directly or indirectly results in the
discharge or release of Borrower or any other guarantor or any
other person or any Indebtedness or any security therefor,
whether by operation of law or otherwise; (d) any defense arising
by reason of any failure of GBC to obtain, perfect, maintain or
keep in force any security interest in, or lien or encumbrance
upon, any property of Borrower or any other person; (e) any
defense based upon any failure of GBC to give Guarantor notice of
any sale or other disposition of any property securing any or all
of the Indebtedness, or any defects in any such notice that may
be given, or any failure of GBC to comply with any provision of
applicable law in enforcing any security interest in or lien upon
any property securing any or all of the Indebtedness including,
but not limited to, any failure by GBC to dispose of any property
securing any or all of the Indebtedness in a commercially
reasonable manner; (f) any defense based upon or arising out of
any bankruptcy, insolvency, reorganization, arrangement,
readjustment of debt, liquidation or dissolution proceeding
commenced by or against Borrower or any other guarantor or any
endorser, co-maker or other person, including without limitation
any discharge of, or bar against collecting, any of the
Indebtedness (including without limitation any interest thereon),
in or as a result of any such proceeding; and (g) the benefit of
any and all statutes of limitation with respect to any action
based upon, arising out of or related to this Guaranty. Until
all of the Indebtedness has been paid, performed, and discharged
in full, nothing shall discharge or satisfy the liability of
Guarantor hereunder except the full performance and payment of
all of the Indebtedness. If any claim is ever made upon GBC for
repayment or recovery of any amount or amounts received by GBC in
payment of or on account of any of the Indebtedness, because of
any claim that any such payment constituted a preferential
transfer or fraudulent conveyance, or for any other reason
whatsoever, and GBC repays all or part of said amount by reason
of any judgment, decree or order of any court or administrative
body having jurisdiction over GBC or any of its property, or by
reason of any settlement or compromise of any such claim effected
by GBC with any such claimant (including without limitation the
Borrower), then and in any such event, Guarantor agrees that any
such judgment, decree, order, settlement and compromise shall be
binding upon Guarantor, notwithstanding any revocation or release
of this Guaranty or the cancellation of any note or other
instrument evidencing any of the Indebtedness, or any release of
any of the Indebtedness, and the Guarantor shall be and remain
liable to GBC under this Guaranty for the amount so repaid or
recovered, to the same extent as if such amount had never
originally been received by GBC, and the provisions of this
sentence shall survive, and continue in effect, notwithstanding
any revocation or release of this Guaranty. Until all of the
Indebtedness has been irrevocably paid and performed in full,
Guarantor hereby expressly and unconditionally waives all rights
of subrogation, reimbursement and indemnity of every kind against
Borrower, and all rights of recourse to any assets or property of
Borrower, and all rights to any collateral or security held for
the payment and performance of any Indebtedness, including (but
not limited to) any of the foregoing rights which Guarantor may
have under any present or future document or agreement with any
Borrower or other person, and including (but not limited to) any
of the foregoing rights which Guarantor may have under any
equitable doctrine of subrogation, implied contract, or unjust
enrichment, or any other equitable or legal doctrine. Neither
GBC, nor any of its directors, officers, employees, agents,
attorneys or any other person affiliated with or representing GBC
shall be liable for any claims, demands, losses or damages, of
any kind whatsoever, made, claimed, incurred or suffered by
Guarantor or any other party through the ordinary negligence of
GBC, or any of its directors, officers, employees, agents,
attorneys or any other person affiliated with or representing
GBC.
4. CONSENTS. Guarantor hereby consents and agrees that,
without notice to or by Guarantor and without affecting or
impairing in any way the obligations or liability of Guarantor
hereunder, GBC may, from time to time before or after revocation
of this Guaranty, do any one or more of the following in GBC's
sole and absolute discretion: (a) accelerate, accept partial
payments of, compromise or settle, renew, extend the time for the
payment, discharge, or performance of, refuse to enforce, and
release all or any parties to, any or all of the Indebtedness;
(b) grant any other indulgence to Borrower or any other person in
respect of any or all of the Indebtedness or any other matter;
(c) accept, release, waive, surrender, enforce, exchange, modify,
impair, or extend the time for the performance, discharge, or
payment of, any and all property of any kind securing any or all
of the Indebtedness or any guaranty of any or all of the
Indebtedness, or on which GBC at any time may have a lien, or
refuse to enforce its rights or make any compromise or settlement
or agreement therefor in respect of any or all of such property;
(d) substitute or add, or take any action or omit to take any
action which results in the release of, any one or more endorsers
or guarantors of all or any part of the Indebtedness, including,
without limitation one or more parties to this
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Guaranty, regardless of any destruction or impairment of any
right of contribution or other right of Guarantor; (e) amend,
alter or change in any respect whatsoever any term or provision
relating to any or all of the Indebtedness, including the rate of
interest thereon; (f) apply any sums received from Borrower, any
other guarantor, endorser, or co-signer, or from the disposition
of any collateral or security, to any indebtedness whatsoever
owing from such person or secured by such collateral or security,
in such manner and order as GBC determines in its sole
discretion, and regardless of whether such indebtedness is part
of the Indebtedness, is secured, or is due and payable; (g) apply
any sums received from Guarantor or from the disposition of any
collateral or security securing the obligations of Guarantor, to
any of the Indebtedness in such manner and order as GBC
determines in its sole discretion, regardless of whether or not
such Indebtedness is secured or is due and payable. Guarantor
consents and agrees that GBC shall be under no obligation to
marshal any assets in favor of Guarantor, or against or in
payment of any or all of the Indebtedness. Guarantor further
consents and agrees that GBC shall have no duties or
responsibilities whatsoever with respect to any property securing
any or all of the Indebtedness. Without limiting the generality
of the foregoing, GBC shall have no obligation to monitor,
verify, audit, examine, or obtain or maintain any insurance with
respect to, any property securing any or all of the Indebtedness.
5. NO COMMITMENT. Guarantor acknowledges and agrees that
acceptance by GBC of this Guaranty shall not constitute a
commitment of any kind by GBC to extend such credit or other
financial accommodation to Borrower or to permit Borrower to
incur Indebtedness to GBC.
6. EXERCISE OF RIGHTS AND REMEDIES; FORECLOSURE OF TRUST DEEDS.
Guarantor consents and agrees that, without notice to or by
Guarantor and without affecting or impairing in any way the
obligations or liability of Guarantor hereunder, GBC may, from
time to time *, before or after revocation of this Guaranty,
exercise any right or remedy it may have with respect to any or
all of the Indebtedness or any property securing any or all of
the Indebtedness or any guaranty thereof, including without
limitation judicial foreclosure, nonjudicial foreclosure,
exercise of a power of sale, and taking a deed, assignment or
transfer in lieu of foreclosure as to any such property, and
Guarantor expressly waives any defense based upon the exercise of
any such right or remedy, notwithstanding the effect thereof upon
any of Guarantor's rights, including without limitation, any
destruction of Guarantor's right of subrogation against Borrower
and any destruction of Guarantor's right of contribution or other
right against any other guarantor of any or all of the
Indebtedness or against any other person, whether by operation of
Sections 580a, 580d or 726 of the California Code of Civil
Procedure, or any comparable provisions of the laws of any other
jurisdiction, or any other statutes or rules of law now or
hereafter in effect, or otherwise. Without limiting the
generality of the foregoing, (a) Guarantor waives all rights and
defenses arising out of an election of remedies by GBC, even
though that election of remedies, such as a nonjudicial
foreclosure with respect to security for any of the Indebtedness,
has destroyed the guarantor's rights of subrogation and
reimbursement against the principal by the operation of Section
580d of the Code of Civil Procedure or otherwise. (b) Guarantor
further waives all rights and defenses arising out of an election
of remedies by GBC, even though that election of remedies, such
as a nonjudicial foreclosure with respect to security for any of
the Indebtedness, has destroyed the guarantor's rights of
subrogation, reimbursement and contribution against any other
guarantor of the guaranteed obligation, by the operation of
Section 580d of the Code of Civil Procedure or otherwise. (c)
Guarantor understands that if GBC forecloses any present or
future trust deed, which secures any or all of the Indebtedness
or which secures any other guaranty of any or all of the
Indebtedness, by nonjudicial foreclosure, Guarantor may, as a
result, have a complete defense to liability under this Guaranty,
based on the legal doctrine of estoppel and Sections 580a, 580d
or 726 of the California Code of Civil Procedure, AND GUARANTOR
HEREBY EXPRESSLY WAIVES ALL SUCH DEFENSES. (d) Guarantor
understands and agrees that, in the event GBC in its sole
discretion forecloses any trust deed now or hereafter securing
any or all of the Indebtedness, by nonjudicial foreclosure,
Guarantor will remain liable to GBC for any deficiency, even
though Guarantor will lose his right of subrogation against the
Borrower, and even though Guarantor will be unable to recover
from the Borrower the amount of the deficiency for which
Guarantor is liable, and even though Guarantor may have retained
his right of subrogation against Borrower if GBC had foreclosed
said trust deed by judicial foreclosure as opposed to nonjudicial
foreclosure, and even though absent the waivers set forth herein
Guarantor may have had a complete defense to any liability for
any deficiency hereunder. (e) Guarantor understands and agrees
that, in the event GBC in its sole discretion forecloses any
trust deed now or hereafter securing any other guaranty of any or
all of the Indebtedness, by nonjudicial foreclosure, Guarantor
will remain liable to GBC for any deficiency, even though
Guarantor will lose his right of subrogation or contribution
against the other guarantor, and even though Guarantor will be
unable to recover from the other guarantor any part of the
deficiency for which Guarantor is liable, and even though
Guarantor may have retained his right of subrogation or
contribution against the other guarantor if GBC had foreclosed
said trust deed by judicial foreclosure as opposed to nonjudicial
foreclosure, and even though absent the waivers set forth herein
Guarantor may have had a complete defense to any liability for
any deficiency hereunder.
*after an Event of Default which is continuing
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7. ACCELERATION. Notwithstanding the terms of all or any part of
the Indebtedness, the obligations of the Guarantor hereunder to
pay and perform all of the Indebtedness shall, at the option of
GBC, immediately become due and payable, without notice, and
without regard to the expressed maturity of any of the
Indebtedness, in the event: (a) Guarantor shall fail to pay or
perform when due any of its obligations under this Guaranty; or
(b) any event of default occurs under any present or future loan
agreement or other instrument, document, or agreement between GBC
and Borrower or between GBC and Guarantor. The foregoing are
referred to in this Guaranty as "Events of Default".
8. INDEMNITY. Guarantor hereby agrees to indemnify GBC and hold
GBC harmless from and against any and all claims, debts,
liabilities, demands, obligations, actions, causes of action,
penalties, costs and expenses (including without limitation *
attorneys' fees), of every nature, character and description,
which GBC may sustain or incur based upon or arising out of any
of the Indebtedness, any actual or alleged failure to collect and
pay over any withholding or other tax relating to Borrower or its
employees, any relationship or agreement between GBC and
Borrower, any actual or alleged failure of GBC to comply with any
writ of attachment or other legal process relating to Borrower or
any of its property, or any other matter, cause or thing
whatsoever occurred, done, omitted or suffered to be done by GBC
relating in any way to Borrower or the Indebtedness (except any
such amounts sustained or incurred as the result of the gross
negligence or willful misconduct of GBC or any of its directors,
officers, employees, agents, attorneys, or any other person
affiliated with or representing GBC). Notwithstanding any
provision in this Guaranty to the contrary, the indemnity
agreement set forth in this Section shall survive any termination
or revocation of this Guaranty and shall for all purposes
continue in full force and effect.
*reasonable
9. SUBORDINATION. *Any and all rights of Guarantor under any and
all debts, liabilities and obligations owing from Borrower to
Guarantor, including any security for and guaranties of any such
obligations, whether now existing or hereafter arising, are
hereby subordinated in right of payment to the prior payment in
full of all of the Indebtedness. If any Event of Default has
occurred, Borrower and any assignee, trustee in bankruptcy,
receiver, or any other person having custody or control over any
or all of Borrower's property are hereby authorized and directed
to pay to GBC the entire unpaid balance of the Indebtedness
before making any payments whatsoever to Guarantor, whether as a
creditor, shareholder, or otherwise; and insofar as may be
necessary for that purpose, Guarantor hereby assigns and
transfers to GBC all rights to any and all debts, liabilities and
obligations owing from Borrower to Guarantor, including any
security for and guaranties of any such obligations, whether now
existing or hereafter arising, including without limitation any
payments, dividends or distributions out of the business or
assets of Borrower. Any amounts received by Guarantor in
violation of the foregoing provisions shall be received and held
as trustee for the benefit of GBC and shall forthwith be paid
over to GBC to be applied to the Indebtedness in such order and
sequence as GBC shall in its sole discretion determine, without
limiting or affecting any other right or remedy which GBC may
have hereunder or otherwise and without otherwise affecting the
liability of Guarantor hereunder. Guarantor hereby expressly
waives any right to set-off or assert any counterclaim against
Borrower.
*After the occurrence and during the continuance of an Event of
Default
10. REVOCATION. This is a Continuing Guaranty relating to all
of the Indebtedness, including Indebtedness arising under
successive transactions which from time to time continue the
Indebtedness or renew it after it has been satisfied. The
obligations of Guarantor hereunder may be terminated only as to
future transactions and only by giving 90 days' advance written
notice thereof to GBC at its address above by registered first-
class U.S. mail, postage prepaid, return receipt requested. No
such revocation shall be effective until 90 days following the
date of actual receipt thereof by GBC. Notwithstanding such
revocation, this Guaranty and all consents, waivers and other
provisions hereof shall continue in full force and effect as to
any and all Indebtedness which is outstanding on the effective
date of revocation and all extensions, renewals and modifications
of said Indebtedness (including without limitation amendments,
extensions, renewals and modifications which are evidenced by new
or additional instruments, documents or agreements executed after
revocation), and all interest thereon, then and thereafter
accruing, and all * attorneys' fees, court costs and collection
charges theretofore and thereafter incurred in endeavoring to
collect or enforce any of the foregoing against Borrower,
Guarantor or any other person liable thereon (whether or not suit
be brought) and any other expenses of, for or incidental to
collection thereof.
*reasonable
11. INDEPENDENT LIABILITY. Guarantor hereby agrees that one or
more successive or concurrent actions may be brought hereon
against Guarantor, in the same action in which Borrower may be
sued or in separate actions, as often as deemed advisable by GBC.
The liability of Guarantor hereunder is exclusive and independent
of any other guaranty of any or all of the Indebtedness whether
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executed by Guarantor or by any other guarantor (including
without limitation any other persons signing this Guaranty). The
liability of Guarantor hereunder shall not be affected, revoked,
impaired, or reduced by any one or more of the following: (a)
the fact that the Indebtedness exceeds the maximum amount of
Guarantor's liability, if any, specified herein or elsewhere (and
no agreement specifying a maximum amount of Guarantor's liability
shall be enforceable unless set forth in a writing signed by GBC
or set forth in this Guaranty); or (b) any direction as to the
application of payment by Borrower or by any other party; or (c)
any other continuing or restrictive guaranty or undertaking or
any limitation on the liability of any other guarantor (whether
under this Guaranty or under any other agreement); or (d) any
payment on or reduction of any such other guaranty or
undertaking; or (e) any revocation, amendment, modification or
release of any such other guaranty or undertaking; or (f) any
dissolution or termination of, or increase, decrease, or change
in membership of any Guarantor which is a partnership. Guarantor
hereby expressly represents that it was not induced to give this
Guaranty by the fact that there are or may be other guarantors
either under this Guaranty or otherwise, and Guarantor agrees
that any release of any one or more of such other guarantors
shall not release Guarantor from its obligations hereunder either
in full or to any lesser extent.
12. FINANCIAL CONDITION OF BORROWER. Guarantor is fully aware
of the financial condition of Xxxxxxxx and is executing and
delivering this Guaranty at Borrower's request and based solely
upon its own independent investigation of all matters pertinent
hereto, and Guarantor is not relying in any manner upon any
representation or statement of GBC with respect thereto.
Guarantor represents and warrants that it is in a position to
obtain, and Guarantor hereby assumes full responsibility for
obtaining, any additional information concerning Borrower's
financial condition and any other matter pertinent hereto as
Guarantor may desire, and Guarantor is not relying upon or
expecting GBC to furnish to him any information now or hereafter
in GBC's possession concerning the same or any other matter.
13. REPRESENTATIONS AND WARRANTIES. Guarantor hereby represents
and warrants that (I) it is in Guarantor's direct interest to
assist Borrower in procuring credit, because Borrower is an
affiliate of Guarantor, furnishes goods or services to Guarantor,
purchases or acquires goods or services from Guarantor, and/or
otherwise has a direct or indirect corporate or business
relationship with Guarantor, (ii) this Guaranty has been duly and
validly authorized, executed and delivered and constitutes the
valid and binding obligation of Guarantor, enforceable in
accordance with its terms, and (iii) the execution and delivery
of this Guaranty does not violate or constitute a default under
(with or without the giving of notice, the passage of time, or
both) any order, judgment, decree, instrument or agreement to
which Guarantor is a party or by which it or its assets are
affected or bound.
14. COSTS; INTEREST. Whether or not suit be instituted,
Xxxxxxxxx agrees to reimburse GBC on demand for all reasonable
attorneys' fees and all other reasonable costs and expenses
incurred by GBC in enforcing this Guaranty, or arising out of or
relating in any way to this Guaranty, or in enforcing any of the
Indebtedness against Borrower, Guarantor, or any other person, or
in connection with any property of any kind securing all or any
part of the Indebtedness. Without limiting the generality of the
foregoing, and in addition thereto, Guarantor shall reimburse GBC
on demand for all reasonable attorneys' fees and costs GBC incurs
in any way relating to Guarantor, Borrower or the Indebtedness,
in order to: obtain legal advice; enforce or seek to enforce any
of its rights; commence, intervene in, respond to, or defend any
action or proceeding; file, prosecute or defend any claim or
cause of action in any action or proceeding (including without
limitation any probate claim, bankruptcy claim, third-party
claim, secured creditor claim, reclamation complaint, and
complaint for relief from any stay under the Bankruptcy Code or
otherwise); protect, obtain possession of, sell, lease, dispose
of or otherwise enforce any security interest in or lien on any
property of any kind securing any or all of the Indebtedness; or
represent GBC in any litigation with respect to Borrower's or
Guarantor's affairs. In the event either GBC or Guarantor files
any lawsuit against the other predicated on a breach of this
Guaranty, the prevailing party in such action shall be entitled
to recover its attorneys' fees and costs of suit from the non-
prevailing party. All sums due under this Guaranty shall bear
interest from the date due until the date paid at the highest
rate charged with respect to any of the Indebtedness.
15. NOTICES. Any notice which a party shall be required or
shall desire to give to the other hereunder (except for notice of
revocation, which shall be governed by Section 10 of this
Guaranty) shall be given by personal delivery or by telecopier or
by depositing the same in the United States mail, first class
postage pre-paid, addressed to GBC at its address set forth in
the heading of this Guaranty and to Guarantor at its address
provided by Guarantor to GBC in writing, and such notices shall
be deemed duly given on the date of personal delivery or one day
after the date telecopied or 3 business days after the date of
mailing as aforesaid. GBC and Guarantor may change their address
for purposes of receiving notices hereunder by giving written
notice thereof to the other party in accordance herewith.
Guarantor shall give GBC immediate written notice of any change
in its address.
16. CLAIMS. Guarantor agrees that any claim or cause of action
by Guarantor against GBC, or any of GBC's directors, officers,
employees, agents, accountants or attorneys, based upon, arising
from, or relating to this
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Guaranty, or any other present or future agreement between GBC
and Guarantor or between GBC and Borrower, or any other
transaction contemplated hereby or thereby or relating hereto or
thereto, or any other matter, cause or thing whatsoever, whether
or not relating hereto or thereto, occurred, done, omitted or
suffered to be done by GBC, or by GBC's directors, officers,
employees, agents, accountants or attorneys, whether sounding in
contract or in tort or otherwise, shall be barred unless asserted
by Guarantor by the commencement of an action or proceeding in a
court of competent jurisdiction within Los Angeles County,
California, by the filing of a complaint within one year after
the first act, occurrence or omission upon which such claim or
cause of action, or any part thereof, is based and service of a
summons and complaint on an officer of GBC or any other person
authorized to accept service of process on behalf of GBC, within
30 days thereafter. Xxxxxxxxx agrees that such one year period
is a reasonable and sufficient time for Guarantor to investigate
and act upon any such claim or cause of action. The one year
period provided herein shall not be waived, tolled, or extended
except by a specific written agreement of GBC. This provision
shall survive any termination of this Guaranty or any other
agreement.
17. CONSTRUCTION; SEVERABILITY. The term "Guarantor" as used
herein shall be deemed to refer to all and any one or more such
persons and their obligations hereunder shall be joint and
several. As used in this Guaranty, the term "property" is used
in its most comprehensive sense and shall mean all property of
every kind and nature whatsoever, including without limitation
real property, personal property, mixed property, tangible
property and intangible property. If any provision of this
Guaranty or the application thereof to any party or circumstance
is held invalid, void, inoperative or unenforceable, the
remainder of this Guaranty and the application of such provision
to other parties or circumstances shall not be affected thereby,
the provisions of this Guaranty being severable in any such
instance.
18. GENERAL PROVISIONS. GBC shall have the right to seek
recourse against Guarantor to the full extent provided for herein
and in any other instrument or agreement evidencing obligations
of Guarantor to GBC, and against Borrower to the full extent of
the Indebtedness. No election in one form of action or
proceeding, or against any party, or on any obligation, shall
constitute a waiver of GBC's right to proceed in any other form
of action or proceeding or against any other party. The failure
of GBC to enforce any of the provisions of this Guaranty at any
time or for any period of time shall not be construed to be a
waiver of any such provision or the right thereafter to enforce
the same. All remedies hereunder shall be cumulative and shall
be in addition to all rights, powers and remedies given to GBC by
law or under any other instrument or agreement. Time is of the
essence in the performance by Guarantor of each and every
obligation under this Guaranty. GBC shall have no obligation to
inquire into the power or authority of Borrower or any of its
officers, directors, employees, or agents acting or purporting to
act on its behalf, and any Indebtedness made or created in
reliance upon the professed exercise of any such power or
authority shall be included in the Indebtedness guaranteed
hereby. This Guaranty is the entire and only agreement between
Guarantor and GBC with respect to the guaranty of the
Indebtedness of Borrower by Guarantor, and all representations,
warranties, agreements, or undertakings heretofore or
contemporaneously made, which are not set forth herein, are
superseded hereby. No course of dealings between the parties, no
usage of the trade, and no parol or extrinsic evidence of any
nature shall be used or be relevant to supplement or explain or
modify any term or provision of this Guaranty. There are no
conditions to the full effectiveness of this Guaranty. The terms
and provisions hereof may not be waived, altered, modified, or
amended except in a writing executed by Xxxxxxxxx and a duly
authorized officer of GBC. All rights, benefits and privileges
hereunder shall inure to the benefit of and be enforceable by GBC
and its successors and assigns and shall be binding upon
Guarantor and its successors and assigns. Section headings are
used herein for convenience only. Guarantor acknowledges that
the same may not describe completely the subject matter of the
applicable Section, and the same shall not be used in any manner
to construe, limit, define or interpret any term or provision
hereof.
19. GOVERNING LAW; VENUE AND JURISDICTION. This
instrument and all acts and transactions pursuant or relating
hereto and all rights and obligations of the parties hereto shall
be governed, construed, and interpreted in accordance with the
internal laws of the State of California. In order to induce GBC
to accept this Guaranty, and as a material part of the
consideration therefor, Guarantor (i) agrees that all actions or
proceedings relating directly or indirectly hereto shall, at the
option of GBC, be litigated in courts located within Los Angeles
County, California, (ii) consents to the jurisdiction of any such
court and consents to the service of process in any such action
or proceeding by personal delivery or any other method permitted
by law; and (iii) waives any and all rights Guarantor may have to
transfer or change the venue of any such action or proceeding.
20. RECEIPT OF COPY. Guarantor acknowledges receipt of a copy
of this Guaranty.
21. MUTUAL WAIVER OF RIGHT TO JURY TRIAL. GBC AND GUARANTOR
HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM,
LAWSUIT OR PROCEEDING BASED UPON, ARISING OUT OF, OR IN ANY WAY
RELATING TO: (i) THIS GUARANTEE OR ANY SUPPLEMENT OR AMENDMENT
THERETO; OR (ii) ANY OTHER PRESENT OR FUTURE INSTRUMENT OR
AGREEMENT BETWEEN GBC AND GUARANTOR; OR (iii) ANY BREACH,
CONDUCT, ACTS OR OMISSIONS OF GBC OR GUARANTOR OR ANY OF THEIR
RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS OR
ANY OTHER PERSON AFFILIATED WITH OR REPRESENTING GBC OR
GUARANTOR; IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN
CONTRACT OR TORT OR OTHERWISE.
-6-
Greyrock Business Credit Cross-Corporate Continuing Guaranty
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Guarantor Signature:
AddTel Communications, Inc.
By /s/ X. Xxxxx Xxxxxxx
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Title Vice President
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