Exhibit 99(f)
SUBSIDIARY GUARANTY
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THIS SUBSIDIARY GUARANTY is made and entered into as of June 6, 1997, by I-
LINK COMMUNICATIONS, INC., a Utah corporation ("I-Link"), and FAMILY
TELECOMMUNICATIONS, INCORPORATED, a Utah corporation ("FTI" and, together with
I-Link, collectively the "Guarantors" and individually, a "Guarantor"), in favor
of WINTER HARBOR, L.L.C., a Delaware limited partnership (the "Lender").
RECITALS
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A. Medcross, Inc., a Florida corporation (the "Borrower"), owns all of
the issued and outstanding shares of the capital stock of each of the
Guarantors. The Borrower and the Lender have entered into a Loan Agreement
dated as of even date herewith (as the same may be extended, amended, restated
or modified from time to time, the "Loan Agreement"), which is hereby
incorporated herein by this reference, pursuant to which the Lender has agreed
to loan to the Borrower up to $2,000,000 on a term loan basis. All capitalized
terms used herein and not otherwise defined herein shall have the meanings
ascribed to such terms in the Loan Agreement. The proceeds of the Loans will be
provided to the Guarantors for the acquisition of assets, for capital
expenditures and for working capital purposes.
B. It is a condition precedent to the extensions of credit to the
Borrower under the Loan Agreement that the Guarantors, among other things, shall
have executed and delivered this Guaranty.
C. The Borrower and the Guarantors share an identity of interests as
members of a consolidated group of companies engaged in substantially similar
businesses. The Borrower provides certain centralized financial, accounting and
management services to the Guarantors, and the making of the Loan will
facilitate the expansion and enhance the overall financial strength and
stability of the Borrower's corporate group, including the Guarantors.
Accordingly, the Guarantors will derive substantial benefits as a result of the
extensions of credit to the Borrower under the Loan Agreement, which benefits
are hereby acknowledged by the Guarantors, and the Guarantors, therefore, desire
to enter into this Guaranty in order to satisfy the condition precedent
described in the preceding paragraph.
AGREEMENTS
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In consideration of the foregoing Recitals, and of the Loan to be made by
the Lender to the Borrower under the Loan Agreement, which will be of material
economic benefit to the
Guarantors, the Guarantors agree as follows in favor of
the Lender:
1. Guaranty of Payment. The Guarantors, jointly and severally,
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hereby absolutely, unconditionally and irrevocably guarantee as primary
obligors, and not merely as sureties, the prompt performance and payment in full
when due, whether at stated maturity, by acceleration or otherwise (including,
without limitation, obligations that would become due but for the operation of
the automatic stay under Section 362(a) of Title 11 of the United States Code,
and including interest, fees and other charges whether or not a claim is allowed
for such obligations in any such bankruptcy proceeding), of (i) all
indebtedness, Obligations and liabilities of the Borrower arising at any time,
now or in the future, pursuant to the Loan Agreement, the Note or any Loan
Document; (ii) all reasonable costs and expenses incurred by the Lender,
including, without limitation, reasonable attorneys fees and legal expenses, in
the exercise, preservation or enforcement of any of the rights, powers or
remedies of the Lender, or in the enforcement of the obligations of the
Guarantors, hereunder and under any other Loan Document to which either
Guarantor is a party; and (iii) any renewals, continuations or extensions of any
of the foregoing (all of which are referred to herein as the "Guaranteed
Obligations").
2. Fraudulent Transfer Laws. Anything contained in this Guaranty to
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the contrary notwithstanding, the obligations of each Guarantor hereunder shall
be limited to a maximum aggregate amount equal to the largest amount that would
not render its obligations hereunder subject to avoidance as a fraudulent
transfer or conveyance under Section 548 of Title 11 of the United States Code
or any applicable provisions of comparable state law (collectively, the
"Fraudulent Transfer Laws"), in each case after giving effect to all other
liabilities of such Guarantor, contingent or otherwise, that are relevant under
the Fraudulent Transfer Laws (specifically excluding, however, any liabilities
of such Guarantor in respect of intercompany indebtedness to the Borrower or
other affiliates of the Borrower to the extent that such indebtedness would be
discharged in an amount equal to the amount paid by such Guarantor hereunder)
and after giving effect as assets to the value (as determined under the
applicable provisions of the Fraudulent Transfer Laws) of any rights to
subrogation or contribution of such Guarantor pursuant to applicable law, this
Guaranty or any other agreement providing for an equitable allocation among such
Guarantor and other affiliates of the Borrower of obligations arising under
guaranties by such parties. This Section 2 shall be construed with the goal of
maximizing the amount payable by each Guarantor hereunder without rendering it
insolvent, leaving it with an unreasonably small amount of capital with which to
conduct its business or leaving it unable to pay its debts as they mature, and
in determining the solvency or net worth of a Guarantor, its
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right of contribution from the other Guarantors shall be taken into account to
the fullest extent permitted by law.
3. Contribution.
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(a) The Guarantors desire to allocate among themselves in a fair and
equitable manner their obligations arising under this Guaranty. Accordingly, in
the event any payment or distribution is made by a Guarantor under this Guaranty
(a "Funding Guarantor") that exceeds its Fair Share (as defined below), that
Funding Guarantor shall be entitled to a contribution from each of the other
Guarantors in the amount of such other Guarantor's Fair Share Shortfall (as
defined below), with the result that all such contributions will cause each
Guarantor's Aggregate Payments (as defined below) to equal its Fair Share. The
amounts payable as contributions hereunder shall be determined as of the date on
which the related payment or distribution is made by the applicable Funding
Guarantor. The allocation among Guarantors of their obligations as set forth in
this Section 3 shall not be construed in any way to limit the liability of
either Guarantor hereunder. Any right of contribution which a Guarantor may
have against any other Guarantor of the Guaranteed Obligations as a result of a
payment pursuant to this Section 3 shall only be exercisable at such time and
shall be subordinated as set forth in Section 13.
(b) "Fair Share" means, with respect to a Guarantor as of any date of
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determination, an amount equal to (i) the ratio of (x) the Adjusted Maximum
Amount (as defined below) with respect to such Guarantor to (y) the aggregate of
the Adjusted Maximum Amounts with respect to both Guarantors, multiplied by (ii)
the aggregate amount paid or distributed on or before such date by all Funding
Guarantors under this Guaranty in respect of the Guaranteed Obligations.
(c) "Fair Share Shortfall" means, with respect to a Guarantor as of
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any date of determination, the excess, if any, of the Fair Share of such
Guarantor over the Aggregate Payments of such Guarantor.
(d) "Adjusted Maximum Amount" means, with respect to a Guarantor, the
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maximum aggregate amount of the obligations of such Guarantor under this
Guaranty, determined in accordance with Section 2.
(e) "Aggregate Payments" means, with respect to a Guarantor as of any
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date of determination, the aggregate amount of all payments and distributions
made on or before such date by such Guarantor in respect of this Guaranty
(including, without limitation, in respect of this Section 3).
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4. Extension or Renewal of Guaranteed Obligations; Waiver. Each
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Guarantor agrees that the Guaranteed Obligations may be extended or renewed, in
whole or in part, without notice or further assent from it, that such Guarantor
will remain bound upon this Guaranty notwithstanding any extension, renewal or
other alteration of any Guaranteed Obligation and the guaranty herein made shall
apply to the Guaranteed Obligations as so amended, renewed or altered. Each
Guarantor waives diligence, presentment, demand of payment, filing of claims
with a court in the event of insolvency or bankruptcy of the Borrower, any right
to require a proceeding first against the Borrower, protest, notice and all
demands whatsoever and covenants that its guaranty of the Borrower's Obligations
under this Guaranty will not be discharged except by complete performance by the
Borrower or another Guarantor of such Obligations.
5. Nature of Guaranty: Continuing, Absolute and Unconditional.
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(a) This Guaranty is and is intended to be a continuing guaranty of
payment when due of the Guaranteed Obligations, and not of collection, and is
independent of and in addition to any other guaranty, indorsement, collateral or
other agreement held by the Lender therefor or with respect thereto, whether or
not furnished by either Guarantor. Each Guarantor waives any right to require
that any resort be had by the Lender to the other Guarantor or to any of the
security held for payment of any of the Guaranteed Obligations or to any balance
of any deposit account or credit on the books of the Lender in favor of the
Borrower or any other Person. Upon the occurrence and during the continuance of
any Event of Default, the Lender may, at its sole election, proceed directly and
at once, without notice, against either or both of the Guarantors to collect and
recover the full amount or any portion of the Guaranteed Obligations, without
first proceeding against the Borrower, the other Guarantor or any other Person,
or against any security or collateral for the Guaranteed Obligations. All
Guaranteed Obligations shall be conclusively presumed to have been created in
reliance hereon.
(b) This Guaranty shall not be changed or affected by any
representation, oral agreement, act or thing whatsoever, except as herein
provided. This Guaranty is intended by the Guarantors to be the final, complete
and exclusive expression of the agreement among the Guarantors and the Lender
with respect to the subject matter hereof.
(c) The obligations of the Guarantors under this Guaranty are absolute
and unconditional and shall not be impaired or discharged by:
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(i) the failure of the Lender to assert any claim or demand or to
enforce any right or remedy against the Borrower, any other guarantor or any
other party to a Loan Document under the provisions of the Loan Agreement, the
Note, any Loan Document or any other agreement or otherwise;
(ii) any extension, renewal or other alteration of any provision of
the Loan Agreement, the Note, any Loan Document or any other agreement or
otherwise;
(iii) any rescission, waiver, amendment or modification of any of the
terms or provisions of the Loan Agreement, the Note, any Loan Document or any
other agreement or otherwise;
(iv) the failure of the Lender to assert any claim or demand or to
exercise or enforce any right or remedy under the Loan Agreement, any Loan
Document or any other agreement or otherwise, or against any other guarantor of,
or any other party which has provided security for, any of the Guaranteed
Obligations;
(v) the sale, exchange, release, surrender, realization of or upon
or the failure to perfect with respect to or otherwise deal with in any manner
and in any order any property by whomsoever at any time pledged or mortgaged to
secure, or howsoever securing, the Guaranteed Obligations;
(vi) the settlement or compromise of any of the Guaranteed
Obligations, any security therefor or any liability (including any of those
hereunder) incurred directly or indirectly in respect thereof or hereof, or any
subordination of the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrower to creditors of the Borrower
other than the Lender and the Guarantors;
(vii) application of any sums by whomsoever paid or howsoever
realized to any liability or liabilities of the Borrower to the Lender
regardless of what liability or liabilities of the Borrower remain unpaid;
(viii) the act or failure to act in any manner referred to in this
Guaranty which may deprive either Guarantor of its right to subrogation or
contribution against the Borrower or any other guarantor to recover any payments
made pursuant to this Guaranty; or
(ix) or any other act, agreement, thing, omission or delay to do any
other act or thing that may or might in any manner or to any extent vary the
risk of either Guarantor or that would otherwise operate as a discharge of a
guarantor as a matter of law or equity.
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(d) Each Guarantor's obligation hereunder is to pay the Guaranteed
Obligations in full when due according to the Loan Agreement to the extent
provided herein, and such obligation shall not be affected by any stay or
extension of time for payment by the Borrower resulting from any proceeding
under Title 11 of the United States Code, as now constituted or hereafter
amended or replaced, or any similar federal or state law.
6. No Discharge or Diminishment of Guaranty. The obligations of the
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Guarantors under this Guaranty shall not be subject to any reduction,
limitation, impairment or termination for any reason (other than if the
Guaranteed Obligations have been indefeasibly paid in full in cash), including,
without limitation, any claim of waiver, release, surrender, alteration or
compromise of any of the Guaranteed Obligations, and shall not be subject to any
defense or setoff, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality or unenforceability of any of the Guaranteed
Obligations or any discharge of the Borrower from any of the Guaranteed
Obligations in a bankruptcy or similar proceeding or otherwise.
7. Representations and Warranties. Each Guarantor hereby
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represents, warrants and agrees as follows:
(a) Such Guarantor (i) is a duly organized and validly existing
corporation, in good standing under the laws of its state of incorporation, (ii)
has the corporate power and authority to own its property and assets and to
transact the business in which it is engaged and (iii) is duly qualified as a
foreign corporation and in good standing in each jurisdiction where the
ownership, leasing or operation of property or the conduct of its business
requires such qualification, except where the failure to so qualify could not
reasonably be expected to have a Material Adverse Effect.
(b) Such Guarantor has the corporate power and authority to execute,
deliver and perform the terms and provisions of this Guaranty, the Subsidiary
Security Agreement and the other Loan Documents to which it is a party
(collectively, the "Subsidiary Agreements") and has taken all necessary action
to authorize the execution, delivery and performance by it of this Guaranty and
the Subsidiary Agreements. Such Guarantor has duly executed and delivered this
Guaranty and the Subsidiary Agreements, and this Guaranty and the Subsidiary
Agreements constitute its legal, valid and binding obligations enforceable in
accordance with their respective terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization or other similar
laws affecting the enforcement of creditors' rights generally and by general
principles of equity.
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(c) Neither the execution, delivery or performance by such Guarantor
of this Guaranty and the Subsidiary Agreements, nor compliance by it with the
terms and provisions hereof and thereof, (i) will contravene any provision of
any law, statute, rule or regulation or any order, writ, injunction or decree of
any court or governmental instrumentality, (ii) will conflict or be inconsistent
with or result in any breach of any of the terms, covenants, conditions or
provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any lien, security
interest or encumbrance (other than pursuant to the Loan Documents) upon any of
the property or assets of such Guarantor pursuant to the terms of any indenture,
mortgage, deed of trust, loan agreement or any other agreement, contract or
instrument to which such Guarantor is a party or by which it or any of its
property or assets is bound or to which it may be subject or (iii) will violate
any provision of the organizational documents of such Guarantor.
(d) No order, consent, approval, license, authorization or validation
of, or filing, recording or registration with, or exemption by, any governmental
or public body or authority, or any subdivision thereof, is required to
authorize, or is required in connection with, the execution, delivery,
performance, legality, validity, binding effect or enforceability of this
Guaranty and the Subsidiary Agreements by or against such Guarantor.
(e) There are no actions, suits or proceedings pending or, to the best
knowledge of such Guarantor, threatened against or affecting such Guarantor. No
judgment or order for the payment of money has been entered against such
Guarantor which remains outstanding and unpaid.
(f) There have been no changes in the business, properties, operations
or condition, financial or otherwise, or prospects of such Guarantor since
December 31, 1996, which could reasonably be expected to have a Material Adverse
Effect.
(g) Such Guarantor has received, or has the right hereunder to receive
(including rights to contribution and subrogation), consideration which is the
reasonably equivalent value of the obligations and liabilities that such
Guarantor has incurred to the Lender. Such Guarantor is not insolvent as
defined in Section 101 of Title 11 of the United States Code or any applicable
state insolvency statute, nor, after giving effect to the consummation of the
transactions contemplated herein, will such Guarantor be rendered insolvent by
the execution and delivery of this Guaranty or any other Loan Document to which
it is a party. Such Guarantor is neither engaged nor about to engage in any
business or transaction for which the assets retained by it shall be an
unreasonably small capital, taking into consideration the obligations to the
Lender incurred
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hereunder. Such Guarantor does not intend to, nor does it
believe that it will, incur debts beyond its ability to pay them as they mature.
(h) The representations and warranties contained in the Loan Agreement
as they pertain to such Guarantor are true and correct in all material respects.
8. Covenants.
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(a) Except as permitted in the Loan Agreement, each Guarantor will at
all times preserve and keep in full force and effect its existence as a
corporation, organized in its state of incorporation, and shall at all times
preserve and keep in full force and effect all rights and franchises material to
its business.
(b) Each Guarantor shall comply in all material respects with all
applicable material laws, rules, regulations and orders, such compliance to
include, without limitation, paying when due all material taxes, assessments and
governmental charges imposed upon it or upon any of its properties or assets or
in respect of any of its franchises, businesses, income or property before any
penalty or interest accrues thereon unless such taxes, assessments or
governmental charges are being diligently contested by such Guarantor in good
faith.
(c) Each Guarantor shall keep and maintain books, records and accounts
with respect to its operations sufficient to enable it to prepare its financial
statements in accordance with generally accepted accounting principles,
consistently applied, and shall permit the Lender and its officers, employees
and authorized agents to examine, copy and make excerpts from such books and
records and to inspect the properties of such Guarantor both real and personal
at any reasonable time.
(d) No Guarantor shall, directly or indirectly, incur, create, assume,
guaranty or otherwise become or remain directly or indirectly liable with
respect to, any indebtedness, except pursuant hereto or as expressly permitted
in the Loan Agreement.
(e) Each Guarantor shall comply with all of the covenants, agreements,
terms and conditions set forth in the Loan Agreement and the other Loan
Documents to the extent applicable to it.
9. Security. To secure timely payment of the Guaranteed Obligations
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and performance in full of the obligations related thereto, each Guarantor is
concurrently herewith entering into a Subsidiary Security Agreement pursuant to
which such Guarantor is granting to the Lender a security interest in
substantially all of such Guarantor's personal property.
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10. Information. Each Guarantor assumes all responsibility for being
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and keeping itself informed of the financial condition and assets of the
Borrower and its subsidiaries and of all other circumstances bearing upon the
risk of nonpayment of the Guaranteed Obligations and the nature, scope and
extent of the risks which such Guarantor assumes and incurs hereunder, and
agrees that the Lender shall not have any duty to advise such Guarantor of
information known to it regarding such circumstances or risks.
11. Reinstatement. Each Guarantor agrees that this Guaranty shall
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continue to be effective or be reinstated, as the case may be, if at any time
any payment, or any part thereof, of principal of, interest on or any other
amount with respect to the Guaranteed Obligations is rescinded or must otherwise
be restored by the Lender upon the bankruptcy, insolvency or reorganization of
the Borrower, either Guarantor or any other Person.
12. Use of Proceeds. Each Guarantor further agrees, in furtherance
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of the foregoing and not in limitation of any other right that the Lender may
have at law or in equity against either Guarantor by virtue hereof, upon the
failure of the Borrower to pay any of the Guaranteed Obligations when and as the
same shall become due, whether at stated maturity, by acceleration or otherwise
(including, without limitation, amounts that would have become due but for the
operation of the automatic stay under Section 362(a) of Title 11 of the United
States Code), the Guarantors shall jointly and severally forthwith pay, or cause
to be paid, in cash, to the Lender an amount equal to the sum of the unpaid
principal amount of such Guaranteed Obligations then due as aforesaid, accrued
and unpaid interest on such Guaranteed Obligations (including, without
limitation, interest, fees and other charges that, but for the filing of a
petition in bankruptcy with respect to the Borrower, would have accrued on such
Guaranteed Obligations, whether or not a claim is allowed against the Borrower
for such interest, fees or other charges in any such bankruptcy proceeding) and
all other Guaranteed Obligations then owed to the Lender as aforesaid. All such
payments shall be applied promptly, from time to time, by the Lender:
First, to the payment of the costs and expenses of any collection or other
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realization under this Guaranty, and all expenses, liabilities and advances made
or incurred by the Lender in connection therewith;
Second, after payment in full of the amounts specified in the preceding
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subparagraph, to the payment in full of all other Guaranteed Obligations; and
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Third, after payment in full of all Guaranteed Obligations, to the
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Guarantors or to whomsoever may be lawfully entitled to receive the same or as a
court of competent jurisdiction may direct, of any surplus then remaining from
such payments.
13. Subrogation and Subordination. Until the indefeasible payment in
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full in cash of the Guaranteed Obligations, each Guarantor hereby waives any
claim, right or remedy, direct or indirect, that such Guarantor now has or may
hereafter have against the Borrower or its assets in connection with this
Guaranty or the performance by such Guarantor of its obligations hereunder, in
each case whether such claim, right or remedy arises in equity, under contract,
by statute, under common law or otherwise, including, without limitation (a) any
right of subrogation, reimbursement or indemnification that such Guarantor now
has or may hereafter have against the Borrower, (b) any right to enforce, or to
participate in, any claim, right or remedy that the Lender now has or may
hereafter have against the Borrower or any other guarantor, and (c) any benefit
of, and any right to participate in, any collateral or security now or hereafter
held by the Lender. In addition, until the Guaranteed Obligations shall have
been indefeasibly paid in full in cash, each Guarantor shall withhold exercise
of any right of contribution that such Guarantor may have against the other
Guarantor or any other guarantor of the Guaranteed Obligations under Section 3
hereof or at law or in equity or otherwise. Each Guarantor further agrees that,
to the extent the waiver of its rights of subrogation, reimbursement,
indemnification and contribution as set forth herein is found by a court of
competent jurisdiction to be void or voidable for any reason, such rights of
subrogation, reimbursement or indemnification that such Guarantor may have
against the Borrower or against any collateral or security, and any rights of
contribution that such Guarantor may have against any such other guarantor,
shall be junior and subordinate to any rights that the Lender may have against
the Borrower, to all right, title and interest the Lender may have in any such
collateral or security, and to any right the Lender may have against such other
guarantor. The Lender may use, sell or dispose of any items of collateral or
security as it sees fit without regard to any subrogation rights arising out of
this Guaranty that either Guarantor may have and, upon any such disposition or
sale, any rights of subrogation that either Guarantor may have shall, with
respect to the collateral disposed of, terminate. If any amount shall be paid
to either Guarantor on account of subrogation rights at any time when all
Guaranteed Obligations shall not have been paid in full in cash, such amount
shall be held in trust for the Lender and shall forthwith be paid over to the
Lender to be credited and applied against the Guaranteed Obligations, whether
matured or unmatured, in accordance with the terms of the Loan Agreement, the
Note or any applicable Loan Document.
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14. Delays; Omissions. No delay or omission by the Lender in the
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exercise of any right under this Guaranty shall impair any such right, nor shall
it be construed to be a waiver thereof; nor shall any single or partial exercise
of any right hereunder preclude any other or further exercise of any other
right.
15. Modification. Any term of this Guaranty may be amended and the
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observance of any term of this Guaranty may be waived (either generally or in a
particular instance and either retroactively or prospectively) only with the
written consent of the affected Guarantor and the Lender. No waiver of any
single breach or default under this Guaranty shall be deemed a waiver of any
other breach or default.
16. Successors and Assigns. This Guaranty is a continuing guaranty
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and shall be binding upon the Guarantors and their successors and assigns;
provided, however, that neither Guarantor may assign or transfer any of its
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rights or obligations hereunder without the prior written consent of the Lender.
This Guaranty shall inure to the benefit of the successors and assigns of the
Lender.
17. GOVERNING LAW. THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE
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WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO THE
CONFLICTS OF LAW PROVISIONS THEREOF.
18. ENFORCEMENT. EACH GUARANTOR (A) HEREBY IRREVOCABLY SUBMITS TO THE
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JURISDICTION OF THE FEDERAL AND STATE COURTS IN THE STATE OF DELAWARE FOR THE
PURPOSE OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF OR BASED UPON
THIS GUARANTY OR THE SUBJECT MATTER HEREOF BROUGHT BY THE LENDER OR ITS
SUCCESSORS OR ASSIGNS AND (B) HEREBY WAIVES, AND AGREES NOT TO ASSERT, BY WAY OF
MOTION, AS A DEFENSE, OR OTHERWISE, IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY
CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE JURISDICTION OF THE ABOVE-NAMED
COURTS, THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT
THE SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE
VENUE OF THE SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT THIS GUARANTY OR THE
SUBJECT MATTER HEREOF MAY NOT BE ENFORCED IN OR BY SUCH COURT, AND (C) HEREBY
WAIVES AND AGREES NOT TO SEEK ANY REVIEW BY ANY COURT OF ANY OTHER JURISDICTION
WHICH MAY BE CALLED UPON TO GRANT AN ENFORCEMENT OF THE JUDGMENT OF ANY SUCH
DELAWARE STATE OR FEDERAL COURT. EACH GUARANTOR HEREBY CONSENTS TO SERVICE OF
PROCESS BY REGISTERED MAIL AT THE ADDRESS TO WHICH NOTICES ARE TO BE GIVEN.
EACH GUARANTOR AGREES THAT ITS SUBMISSION TO JURISDICTION AND ITS CONSENT TO
SERVICE OF PROCESS BY MAIL IS MADE FOR THE EXPRESS BENEFIT OF THE LENDER. FINAL
JUDGMENT AGAINST EACH GUARANTOR IN ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE
ENFORCED IN OTHER JURISDICTIONS BY SUIT, ACTION OR PROCEEDING ON THE JUDGMENT,
OR IN ANY OTHER MANNER PROVIDED BY
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OR PURSUANT TO THE LAWS OF SUCH OTHER JURISDICTION; PROVIDED, HOWEVER, THAT THE
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LENDER MAY AT ITS OPTION BRING SUIT, OR INSTITUTE OTHER JUDICIAL PROCEEDINGS,
AGAINST EACH GUARANTOR OR ANY OF ITS ASSETS IN ANY STATE OR FEDERAL COURT OF THE
UNITED STATES OR OF ANY COUNTRY OR PLACE WHERE SUCH GUARANTOR, OR SUCH ASSETS,
MAY BE FOUND.
19. JURY TRIAL WAIVER. EACH GUARANTOR WAIVES IRREVOCABLY, TO THE
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EXTENT PERMITTED BY LAW, ALL RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, BETWEEN THE LENDER AND
SUCH GUARANTOR ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS GUARANTY OR
THE NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED HERETO.
20. Notices. All notices, demands and requests required or permitted
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to be given under the provisions of this Guaranty shall be in writing and shall
be deemed to have been duly delivered and received if given in accordance with
the provisions of the Loan Agreement with the address of the Guarantors being
the address of the Borrower in the Loan Agreement.
21. Separability. If any one or more of the provisions contained in
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this Guaranty should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of all remaining provisions shall not in
any way be affected or impaired. Any provision of this Guaranty which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
22. Section Headings. The section headings contained herein are for
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reference purposes only and shall not in any way affect the meaning and
interpretation of this Guaranty.
23. Counterparts. This Guaranty may be executed in any number of
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counterparts or duplicate originals, each of which shall be deemed to be an
original, but all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the Guarantors have caused this Subsidiary Guaranty to
be duly executed as of the day and year first written above.
GUARANTORS:
I-LINK COMMUNICATIONS, INC.
By: /s/ John Edwards
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Name: John Edwards
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Its : President
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FAMILY TELECOMMUNICATIONS, INCORPORATED
By: /s/ John Edwards
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Name: John Edwards
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Its : President
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