EXHIBIT 10.m
CORPORATE GUARANTY
THIS CORPORATE GUARANTY ("Guaranty") is made and entered into as of the
thirty-first day of May, 1995, by C.I.S. Technologies, Inc., a Delaware
corporation ("Guarantor"), in favor of FIRST FINANCIAL MANAGEMENT CORPORATION, a
Georgia corporation ("Lender").
WHEREAS, Hospital Cost Consultants, Inc., a California corporation
("Borrower"), is indebted to Lender pursuant to the terms of that certain
Promissory Note of even date herewith in the principal amount of $5,000,000 (as
the same may be amended, supplemented, restated, extended or renewed from time
to time, the "Note"), made and executed by Borrower and payable to the order of
Lender;
WHEREAS, Guarantor is the sole shareholder of Borrower; and
WHEREAS, the financial accommodations to be extended to Borrower under the
Note will inure to the benefit of Guarantor; and
WHEREAS, Lender has required, as a condition to the continuation of
financial accommodations to be extended to Borrower under the Note that
Guarantor execute and deliver this Guaranty to Lender; and
NOW, THEREFORE, in consideration of the premises, the sum of Ten Dollars
($10.00), and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Guarantor hereby represents,
warrants and agrees as follows:
1. Guarantor unconditionally guarantees the due and punctual payment in
full of all principal of and interest on the Note (the "Guaranteed
Obligations"). This Guaranty constitutes a guaranty of payment and not of
collection and Guarantor waives any right to require that any resort be had by
Lender to (i) Borrower, (ii) any security held by Lender for payment of the
Guaranteed Obligations, (iii) any other monetary obligations of Borrower to
Lender or (iv) Lender's rights against any other guarantor of the Guaranteed
Obligations.
2. Guarantor agrees that the Guaranteed Obligations may be extended or
renewed, in whole or in part, without notice or further assent from Guarantor,
whether in its capacity as Guarantor of the Guaranteed Obligations or otherwise,
or from any other guarantor, and that Guarantor will remain bound upon this
Guaranty notwithstanding other extension or renewal of the Guaranteed
Obligations.
3. Guarantor waives presentation to, demand of payment from and protest to
Borrower of any of the Guaranteed Obligations and also waives notice of protest
for nonpayment. Guarantor further waives the benefit of all principles or
provisions of applicable law which are or might be
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in conflict with the terms of this Guaranty, including, without limitation,
Section 10-7-24 of the Official Code of Georgia Annotated. The obligations of
Guarantor hereunder shall not be affected by (i) the failure of Lender to assert
any claim or demand or to enforce any right or remedy against Borrower or any
collateral for the Guaranteed Obligations, (ii) any extension or renewal of the
Guaranteed Obligations, (iii) any rescission, waiver, amendment or modification
of any of the terms or provisions of the Note or any other agreement, document
or instrument evidencing or securing the Guaranteed Obligations (collectively,
the "Loan Documents") or (iv) the release of any security held by Lender for the
Guaranteed Obligations.
4. The obligations of Guarantor hereunder shall not be subject to any
reduction, limitation, impairment or termination for any reason, including,
without limitation, any claim of waiver, release, surrender, alteration or
compromise, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the provisions of this Guaranty, the Note, any Loan
Documents or the Guaranteed Obligations. Without limiting the generality of the
foregoing, the obligations of Guarantor hereunder shall not be discharged or
impaired or otherwise affected by the failure of Lender to assert any claim or
demand or to enforce any remedy hereunder or under the Note or any of the Loan
Documents, by any default, failure or delay, wilful or otherwise, in the
performance of the terms and conditions of the Note or any of the Loan
Documents, or by any other act or thing or omission or delay to do any other act
or thing which may or might in any manner or to any extent vary the risk of
Guarantor, or which would otherwise operate as a discharge of Guarantor, as a
matter of law.
5. Guarantor further agrees that this Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time payment, or any
part thereof, on the Guaranteed Obligations is rescinded or must otherwise be
restored by Lender upon the bankruptcy or reorganization of Borrower or
otherwise.
6. In furtherance of the foregoing and not in limitation of any other right
which Lender may have at law or in equity against Guarantor by virtue hereof,
upon failure of Borrower to make any payment on the Guaranteed Obligations when
and as the same shall become due, whether at maturity, by acceleration, after
notice of prepayment or otherwise, Guarantor hereby promises to, and will, upon
receipt of written demand by Lender, forthwith pay or cause to be paid to Lender
in immediately available funds, an amount equal to and to be applied in payment
of the unpaid amount of such portion of the Guaranteed Obligations and all other
monetary obligations of Guarantor to Lender under this Guaranty.
7. Guarantor shall not exercise any rights, by reason of any payment made
hereunder or otherwise, of subrogation to the rights of Lender or of
reimbursement from Borrower until all of the Guaranteed Obligations have been
paid in full.
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8. Guarantor agrees that, with or without notice or demand, it will
reimburse Lender, to the extent that such reimbursement is required to be made
but not made by Borrower, for all expenses (including reasonable attorneys'
fees) incurred by Lender in connection with any Guaranteed Obligations of
Borrower under the Note or any of the Loan Documents, or the collection thereof.
9. Each reference herein to Lender shall be deemed to include its
successors and assigns, in whose favor the provisions of this Guaranty shall
also inure. Each reference herein to Guarantor shall be deemed to include the
legal representatives, successors and assigns of Guarantor, all of whom shall be
bound by the provisions of this Guaranty.
10. No delay on the part of Lender in exercising any right hereunder or
failure to exercise the same shall operate as a waiver of such right; no notice
to or demand on Guarantor shall be deemed to be a waiver of the obligations of
Guarantor or of the right of Lender to take further action without notice or
demand as provided herein, nor in any event shall any modification or waiver of
the provisions of this Guaranty be effective unless in writing and signed by
Guarantor and Lender, nor shall any such waiver be applicable except in the
specific instance for which given.
11. (a) Guarantor agrees to indemnify Lender from and hold them harmless
against any documentary taxes, withholding taxes, assessments or charges made by
any governmental authority by reason of the execution, delivery and performance
of this Guaranty.
(b) Additionally, Guarantor agrees to reimburse Lender for all
expenses (including reasonable attorneys' fees) incurred by Lender in connection
with the enforcement of this Guaranty.
12. Guarantor represents and warrants to Lender as follows:
(a) Guarantor is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its incorporation and is
qualified to do business in all jurisdictions where failure to so qualify would
have a material adverse effect on the Company.
(b) The execution, delivery and performance of this Agreement are
within Guarantor's corporate power, have been duly authorized by all necessary
or proper corporate action, are not in contravention of any provision of law or
of any agreement or indenture by which Guarantor is bound, or of Guarantor's
articles or certificate of incorporation or bylaws, and do not require the
consent or approval of any governmental body, agency, authority or other person
or entity, which has not been obtained and a copy thereof furnished to Lender.
(c) This Agreement constitutes Guarantor's valid and legally binding
obligation, enforceable in accordance with its terms.
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13. This Guaranty is, and shall be deemed to be, a contract entered into,
under and pursuant to the laws of the State of Georgia and shall be in all
respects governed, construed, applied and enforced in accordance with the laws
of said state; and no defense given or allowed by the laws of any other state
shall be interposed in any action hereon unless such defense is also given or
allowed by the laws of the State of Georgia.
14. GUARANTOR HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL
COURT LOCATED WITHIN THE COUNTY OF FULTON, STATE OF GEORGIA AND IRREVOCABLY
AGREES THAT, SUBJECT TO LENDER'S ELECTION, ALL ACTIONS OR PROCEEDINGS ARISING
OUT OF OR RELATING TO THIS GUARANTY SHALL BE LITIGATED IN SUCH COURTS.
GUARANTOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY
AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS, AND IRREVOCABLY AGREES TO BE BOUND
BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS GUARANTY. GUARANTOR
HEREBY AGREES THAT SERVICE UPON IT BY MAIL AT THE ADDRESS SET FORTH BELOW ITS
SIGNATURE SHALL CONSTITUTE SUFFICIENT SERVICE. NOTHING HEREIN SHALL AFFECT THE
RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT OF LENDER TO BRING PROCEEDINGS AGAINST GUARANTOR IN THE COURTS OF ANY
OTHER JURISDICTION.
15. In case any one or more of the provisions contained in this Guaranty
should be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby.
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IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly executed
as of the date first above written.
C.I.S. TECHNOLOGIES, INC.
By: /s/ Philip D. Kurtz
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Title: CEO
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Address:
C.I.S. Technologies, Inc.
One Warren Place, Suite 1900
6100 South Yale Avenue
Tulsa, Oklahoma 74136
Attention: Philip D. Kurtz,
Chief Executive Officer
Facsimile No.: (918) 481-4205
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