[LOGO OF GREYLOCK CAPITAL APPEARS HERE]
Exhibit 10.28
CONTINUING GUARANTY
Borrower: Prime Response, Inc.
Guarantor(s): Prime Response Group, Inc.
Date: October 28, 1999
This Continuing Guaranty is executed by the above-named guarantor(s) (jointly
and severally, the "Guarantor"), as of the above date, in favor of GREYROCK
CAPITAL, A DIVISION OF BANC OF AMERICA COMMERCIAL FINANCE CORPORATION ("GC"),
whose address is 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx
00000, with respect to the Indebtedness of the above-named borrower
("Borrower").
1. CONTINUING GUARANTY. Guarantor hereby unconditionally guarantees and promises
to pay on demand to GC, at the address indicated above, or at such other address
as GC may direct, in lawful money of the United States, and to perform for the
benefit of GC, all Indebtedness of Borrower now or hereafter owing to or held by
GC. As used herein, 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, 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. As used herein, the term "Borrower" shall include any successor to the
business and assets of Borrower, and shall also include Borrower in its capacity
as a debtor or debtor in possession under the federal Bankruptcy Code, and any
trustee, custodian or receiver for Borrower or any of its assets, should
Borrower hereafter become the subject of any bankruptcy or insolvency
proceeding, voluntary or involuntary; and all indebtedness, liabilities and
obligations incurred by any such person shall be included in the Indebtedness
guaranteed hereby. This Guaranty is given in consideration for credit and other
financial accommodations which may, from time to time, be given by GC to
Borrower in GC's sole discretion, but Guarantor acknowledges and agrees that
acceptance by GC of this Guaranty shall not constitute a commitment of any kind
by GC to extend such credit or other financial accommodation to Borrower or to
permit Borrower to incur Indebtedness to GC. 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.
2. 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 GC 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 GC 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 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 GC or any indebtedness of
GC to Borrower, or to exercise any other right or power, or pursue any other
remedy GC 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 GC 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 GC 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 GC 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 GC 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 GC 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 GC for repayment or recovery of any amount or amounts received by
GC 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 GC repays all or part of
said amount by reason of any judgment, decree or order of any court or
administrative body having jurisdiction over GC or any of its property, or by
reason of any settlement or compromise of any such claim effected by GC 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 GC under this Guaranty for the
amount so repaid or recovered, to the same extent as if such amount had never
originally been received by GC, 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 GC, nor any of its directors, officers, employees,
agents, attorneys or any other person affiliated with or representing GC 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 GC, or any of its
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directors, officers, employees, agents, attorneys or any other person affiliated
with or representing GC.
3. 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, GC may, from time to time before or after
revocation of this Guaranty, do any one or more of the following in GC'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 GC 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 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 GC 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 GC determines in its sole discretion, regardless of whether or not such
Indebtedness is secured or is due and payable. Guarantor consents and agrees
that GC 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 GC 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, GC 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.
4. ACCOUNT STATED. GC's books and records showing the account between it and the
Borrower shall be admissible in evidence in any action or proceeding as prima
facie proof of the items therein set forth.
5. 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, GC 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 GC, 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 GC, 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 GC forecloses any present or future trust deed, which secures any or all of
the Indebtedness or which secures any other
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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
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all such defenses. (d) Guarantor understands and agrees that, in the event GC in
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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 GC for any deficiency, even though Guarantor will lose its 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 its right of subrogation
against Borrower if GC 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 GC
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 GC for any deficiency, even though Guarantor
will lose its 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 its right of subrogation or contribution against the other
guarantor if GC 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.
6. 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 GC, immediately become due and
payable, without notice, and without regard to the expressed maturity of any of
the Indebtedness, in the event: (a) Borrower shall fail to pay or perform when
due all or any part of the Indebtedness; or (b) Guarantor shall revoke this
Guaranty or contest or deny liability under this Guaranty. All of the foregoing
are hereinafter referred to as "Events of Default".
7. RIGHT TO ATTACHMENT REMEDY. Guarantor agrees that, notwithstanding the
existence of any property securing any or all of the Indebtedness, GC shall have
all of the rights of an unsecured creditor of Guarantor, including without
limitation the right to obtain a temporary protective order and writ of
attachment against Guarantor with respect to any sums due under this Guaranty.
Guarantor further agrees that in the event any property secures the obligations
of Guarantor under this Guaranty, to the extent that GC, in its sole and
absolute discretion, determines prior to the disposition of such property that
the amount to be realized by GC therefrom may be less than the indebtedness of
the Guarantor under this Guaranty, GC shall have all the rights of an unsecured
creditor against Guarantor, including without limitation the right of GC, prior
to the disposition of said property, to obtain a temporary protective order and
writ of attachment against Guarantor. Guarantor waives the benefit of Section
483.010(b) of the California Code of Civil Procedure and of any and all other
statutes and rules of law now or hereafter in effect requiring GC to first
resort to or exhaust all such collateral before seeking or obtaining any
attachment remedy against Guarantor. GC shall have no liability to Guarantor as
a result thereof, whether or not the actual deficiency realized by GC is less
than the anticipated deficiency on the basis of which GC obtains a temporary
protective order or writ of attachment.
8. INDEMNITY. Guarantor hereby agrees to indemnify GC and hold GC 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
GC 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
GC and Borrower, any actual or alleged failure of GC 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 GC 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 GC or any of its directors, officers,
employees, agents, attorneys, or any other person affiliated with or
representing GC). 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.
9. SUBORDINATION. Any and all rights of Guarantor under any and all
debts, liabilities and obligations owing
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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. No payment in respect of any such subordinated obligations shall
at any time be made to or accepted by Guarantor if at the time of such payment
any Indebtedness is outstanding. 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 GC 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 GC 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 GC and shall forthwith be paid over to GC to be applied to the
Indebtedness in such order and sequence as GC shall in its sole discretion
determine, without limiting or affecting any other right or remedy which GC 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.
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. Guarantor waives all benefits of California Civil Code Section 2815,
and agrees that the obligations of Guarantor hereunder may not be terminated or
revoked in any manner except by giving 90 days' advance written notice of
revocation to GC at its address above by registered first-class U.S. mail,
postage prepaid, return receipt requested, and only as to new loans made by GC
to Borrower more than 90 days after actual receipt of such written notice by GC.
No termination or revocation of this Guaranty shall be effective until 90 days
following the date of actual receipt of said written notice of revocation by GC.
Notwithstanding such written notice of revocation or any other act of Guarantor
or any other event or circumstance, Guarantor agrees that 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 or before the 90th
day following actual receipt of said written notice of revocation by GC, 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
before or after expiration of said 90-day period), and all interest thereon,
accruing before or after expiration of said 90-day period, and all attorneys'
fees, court costs and collection charges, incurred before or after expiration of
said 90-day period, 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.
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 GC. The liability of Guarantor hereunder is exclusive and
independent of any other guaranty of any or all of the Indebtedness whether
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 GC 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.
If Guarantor is a
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married person, Guarantor hereby expressly agrees that recourse may be had
against his or her separate property for all of his or her obligations
hereunder.
12. FINANCIAL CONDITION OF BORROWER. Guarantor is fully aware of the financial
condition of Borrower 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 GC 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 GC to
furnish to him any information now or hereafter in GC's possession concerning
the same or any other matter. By executing this Guaranty, Guarantor knowingly
accepts the full range of risks encompassed within a contract of continuing
guaranty, which risks Guarantor acknowledges include without limitation the
possibility that Borrower will incur additional Indebtedness for which Guarantor
will be liable hereunder after Borrower's financial condition or ability to pay
such Indebtedness has deteriorated and/or after bankruptcy or insolvency
proceedings have been commenced by or against Borrower. Guarantor shall have no
right to require GC to obtain or disclose any information with respect to the
Indebtedness, the financial condition or character of Borrower, the existence of
any collateral or security for any or all of the Indebtedness, the filing by or
against Borrower of any bankruptcy or insolvency proceeding, the existence of
any other guaranties of all or any part of the Indebtedness, any action or non-
action on the part of GC, Borrower, or any other person, or any other matter,
fact, or occurrence.
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. Whether or not suit be instituted, Guarantor agrees to reimburse GC
on demand for all reasonable attorneys' fees and all other reasonable costs and
expenses incurred by GC 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 GC on demand for all reasonable attorneys' fees and costs GC
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
GC in any litigation with respect to Borrower's or Guarantor's affairs. In the
event either GC 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.
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
facsimile or by depositing the same in the United States mail, first class
postage pre-paid, addressed to GC at its address set forth in the heading of
this Guaranty and to Guarantor at its address set forth under its signature
hereon, and such notices shall be deemed duly given on the date of personal
delivery or one day after the date sent by facsimile or two business days after
the date of mailing as aforesaid. GC 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 GC immediate written
notice of any change in its address.
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16. CLAIMS. Guarantor agrees that any claim or cause of action by Guarantor
against GC, or any of GC's directors, officers, employees, agents, accountants
or attorneys, based upon, arising from, or relating to this Guaranty, or any
other present or future agreement between GC and Guarantor or between GC 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 GC, or by GC'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 GC or any other person
authorized to accept service of process on behalf of GC, within 30 days
thereafter. Guarantor 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 GC. This provision
shall survive any termination of this Guaranty or any other agreement.
17. CONSTRUCTION; SEVERABILITY. If more than one person has executed this
Guaranty, 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. Without limiting the generality of the foregoing, if more than one
person has executed this Guaranty, this Guaranty shall in all respects be
interpreted as though each person signing this Guaranty had signed a separate
Guaranty, and references herein to "other guarantors" or words of similar effect
shall include without limitation other persons signing this Guaranty. 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. Words used herein in the masculine gender shall include
the neuter and feminine gender, words used herein in the neuter gender shall
include the masculine and feminine, words used herein in the singular shall
include the plural and words used in the plural shall include the singular,
wherever the context so reasonably requires. 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. GC 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 GC, 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 GC's right to proceed in any other form of action or proceeding or
against any other party. The failure of GC 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 GC 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. If Borrower is a corporation, partnership
or other entity, Guarantor hereby agrees that GC shall have no obligation to
inquire into the power or authority of Borrower or any of its officers,
directors, partners, 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 GC 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 Guarantor and a duly authorized officer of GC. All rights, benefits
and privileges hereunder shall inure to the benefit of and be enforceable by GC
and its successors and assigns and shall be binding upon Guarantor and its
heirs, executors, administrators, personal representatives, successors and
assigns. Neither the death of Guarantor nor notice thereof to GC shall terminate
this Guaranty as to its
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estate, and, notwithstanding the death of Guarantor or notice thereof to GC,
this Guaranty shall continue in full force and effect with respect to all
Indebtedness, including without limitation Indebtedness incurred or created
after the death of Guarantor and notice thereof to GC. 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 GC 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 GC, 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. MUTUAL WAIVER OF RIGHT TO JURY TRIAL. GC 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 GC AND GUARANTOR ; OR (III) ANY BREACH, CONDUCT, ACTS OR
OMISSIONS OF GC OR GUARANTOR OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSON AFFILIATED WITH OR REPRESENTING
GC OR GUARANTOR; IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT OR
TORT OR OTHERWISE.
21. RECEIPT OF COPY. Guarantor acknowledges receipt of a copy of this Guaranty:
Guarantor Signature
Prime Response Group, Inc.
By: /s/ Xxxxx Xxxx
-----------------------------------
Address:
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
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