PERSONAL GUARANTY
Exhibit
10.8
PERSONAL
GUARANTY
1. Identification.
This
Guaranty (the "Guaranty"), dated as of December 18, 2007, is entered into by
Xxxxxxx Xxxxxxx (“Guarantor”), for the benefit of the parties identified on
Schedule A (the “Lenders”).
2. Recitals.
2.1 Guarantor
is a shareholder and the Chief Executive Officer of VoIP, Inc. a Texas
corporation (“VoIP”). Lenders have made or will make loans to VoIP (the
“Loans”). Guarantor will obtain substantial benefit from the proceeds of the
Loans.
2.2 The
Loans
are and will be evidenced by a certain promissory notes (“Notes”) to be issued
by VoIP, pursuant to a Subscription Agreement between VoIP and the Lender dated
the same date as this Guaranty, commencing on or about the date of this
Guaranty. The Notes are further identified on Schedule A hereto and was or
will
be executed by VoIP as Borrower for the benefit of Lenders as the “Holder” or
“Lenders” thereof.
2.3 In
consideration of the Loans made or to be made by Lenders to VoIP and for other
good and valuable consideration, and as security for the performance by VoIP
of
its obligations under the Notes and as security for the repayment of the Loans
and all other sums due from VoIP to Lenders arising under the Notes and any
other agreement between or among them relating to the foregoing Notes
(collectively, the "Obligations"), Guarantor, for good and valuable
consideration, receipt of which is acknowledged, has agreed to enter into this
Guaranty.
3. Guaranty.
3.1 Guaranty.
Guarantor hereby unconditionally and irrevocably guarantees, the punctual
payment, performance and observance when due, whether at stated maturity, by
acceleration or otherwise, of all of the Obligations now or hereafter existing,
whether for principal, interest (including, without limitation, all interest
that accrues after the commencement of any insolvency, bankruptcy or
reorganization of the Companies, whether or not constituting an allowed claim
in
such proceeding), fees, commissions, expense reimbursements, liquidated damages,
indemnifications or otherwise (such obligations, to the extent not paid by
the
Companies being included in the “Obligations”), and agrees to pay any and all
reasonable costs, fees and expenses (including reasonable counsel fees and
expenses) incurred by the Lenders in enforcing any rights under the guaranty
set
forth herein. Without limiting the generality of the foregoing, Guarantor’s
liability shall extend to all amounts that constitute part of the Obligations
and would be owed by VoIP to Lenders, but for the fact that they are
unenforceable or not allowable due to the existence of an insolvency, bankruptcy
or reorganization involving VoIP.
3.2 Guaranty
Absolute.
Guarantor guarantees that the Obligations will be paid strictly in accordance
with the terms of the Notes, regardless of any law, regulation or order now
or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Lenders with respect thereto. The obligations of Guarantor under
this Guaranty are independent of the Obligations, and a separate action or
actions may be brought and prosecuted against Guarantor to enforce such
Obligations, irrespective of whether any action is brought against the Companies
or any other Guarantor or whether the Companies or any other Guarantor is joined
in any such action or actions. The liability of Guarantor under this Guaranty
constitutes a primary obligation, and not a contract of surety, and to the
extent permitted by law, shall be irrevocable, absolute and unconditional
irrespective of, and Guarantor hereby irrevocably waives any defenses it may
now
or hereafter have in any way relating to, any or all of the
following:
(a)
any
lack
of validity or enforceability of the Notes or any agreement or instrument
relating thereto;
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(b)
any
change in the time, manner or place of payment of, or in any other term of,
all
or any of the Obligations, or any other amendment or waiver of or any consent
to
departure from the Notes, including, without limitation, any increase in the
Obligations resulting from the extension of additional credit to VoIP or
otherwise;
(c)
any
taking, exchange, release, subordination or non-perfection of any Collateral,
or
any taking, release or amendment or waiver of or consent to departure from
any
other guaranty, for all or any of the Obligations;
(d)
any
change, restructuring or termination of the corporate, limited liability company
or partnership structure or existence of VoIP; or
(e)
any
other
circumstance (including, without limitation, any statute of limitations) or
any
existence of or reliance on any representation by the Lenders that might
otherwise constitute a defense available to, or a discharge of, VoIP or any
other guarantor or surety.
This
Guaranty shall continue to be effective or be reinstated, as the case may be,
if
at any time any payment of any of the Obligations is rescinded or must otherwise
be returned by the Lenders or any other entity upon the insolvency, bankruptcy
or reorganization of VoIP or otherwise (and whether as a result of any demand,
settlement, litigation or otherwise), all as though such payment had not been
made.
3.3 Waiver.
Guarantor hereby waives promptness, diligence, notice of acceptance and any
other notice with respect to any of the Obligations and this Guaranty and any
requirement that the Lenders exhaust any right or take any action against VoIP
or any other person or entity or any Collateral. Guarantor acknowledges that
it
will receive direct and indirect benefits from the financing arrangements
contemplated herein and that the waiver set forth in this Section 3.3
is
knowingly made in contemplation of such benefits. Guarantor hereby waives any
right to revoke this Guaranty, and acknowledges that this Guaranty is continuing
in nature and applies to all Obligations, whether existing now or in the
future.
3.4
Continuing
Guaranty; Assignments.
This
Guaranty is a continuing guaranty and shall (a) remain in full force and effect
until the later of the indefeasible cash payment in full of the Obligations
and
all other amounts payable under this Guaranty and Notes, (b) be binding upon
Guarantor, its successors and assigns and (c) inure to the benefit of and be
enforceable by the Lenders and its successors, pledgees, transferees and
assigns. Without limiting the generality of the foregoing clause, (c)
Lenderss may pledge, assign or otherwise transfer all or any portion of its
rights and obligations under this Guaranty (including, without limitation,
all
or any portion of its Notes owing to it) to any other Person, and such other
Person shall thereupon become vested with all the benefits in respect thereof
granted such Lenders herein or otherwise.
3.5
Subrogation.
No
Guarantor will exercise any rights that it may now or hereafter acquire against
the Lenders or other Guarantor (if any) that arise from the existence, payment,
performance or enforcement of such Guarantor’s obligations under this Guaranty,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution or indemnification, whether or not such claim, remedy
or right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from the Lenders or other
Guarantor, directly or indirectly, in cash or other property or by set-off
or in
any other manner, payment or security solely on account of such claim, remedy
or
right, unless and until all of the Obligations and all other amounts payable
under this Guaranty shall have been indefeasibly paid in full in cash or
otherwise satisfied.
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3.6 Monetary
Limit of Guaranty.
Notwithstanding anything o the contrary in this Agreement Except for any
attorney’s fees incurred in the enforcement of this Guaranty, the Guarantor
shall not be obligated to pay more than $65,000 to satisfy the
Obligations
4. Miscellaneous.
4.1 Expenses.
Guarantor shall pay to the Lenders, on demand, the amount of any and all
reasonable expenses, including, without limitation, attorneys' fees, legal
expenses and brokers' fees, which the Lenders may incur in connection with
exercise or enforcement of any the rights, remedies or powers of the Lenders
hereunder or with respect to any or all of the Obligations.
4.2 Waivers,
Amendment and Remedies.
No
course of dealing by the Lenders and no failure by the Lenders to exercise,
or
delay by the Lenders in exercising, any right, remedy or power hereunder shall
operate as a waiver thereof, and no single or partial exercise thereof shall
preclude any other or further exercise thereof or the exercise of any other
right, remedy or power of the Lenders. No amendment, modification or waiver
of
any provision of this Guaranty and no consent to any departure by Guarantor
there from, shall, in any event, be effective unless contained in a writing
signed by the Lenders, and then such waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given. The
rights, remedies and powers of the Lenders, not only hereunder, but also under
any instruments and agreements evidencing or securing the Obligations and under
applicable law are cumulative, and may be exercised by the Lenders from time
to
time in such order as the Lenders may elect.
4.3 Notices.
All
notices or other communications given or made hereunder shall be in writing
and
shall be personally delivered or deemed delivered the first business day after
being faxed (provided that a copy is delivered by first class mail) to the
party
to receive the same at its address set forth below or to such other address
as
either party shall hereafter give to the other by notice duly made under this
Section:
To
Guarantor:
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Xxxxxxx
Xxxxxxx
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c/o
VoIP, Inc.
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000
Xx. Xxxxxx Xxxx, Xxxxx 0000
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Xxxxxxxxx
Xxxxxxx, XX 00000
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Fax:
(000) 000-0000
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With
a copy by telecopier only to:
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Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
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00
Xxxxxxxx, 00xx Xxxxx
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Xxx
Xxxx, XX 00000
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Attn:
Xxxx Xxxx, Esq.
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Fax:
(000) 000-0000
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To
Lenders:
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To
the addresses and facsimile numbers listed
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on
Schedule A hereto.
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With
a copy by telecopier only to:
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Grushko
& Xxxxxxx, P.C.
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000
Xxxxx Xxxxxx, Xxxxx 0000
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Xxx
Xxxx, Xxx Xxxx 00000
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Fax:
(000) 000-0000
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Any
party
may change its address by written notice in accordance with this
paragraph.
4.4 Term;
Binding Effect.
This
Guaranty shall (a) remain in full force and effect until the Obligations have
been paid in full or otherwise satisfied ; (b) be binding upon Guarantor and
its
successors and permitted assigns; and (c) inure to the benefit of the Lenders
and its respective successors and assigns. Upon
satisfaction of the Obligations (whether by payment in full or conversion of
the
Loans , (i) this Guaranty shall terminate and (ii) the Lenders will, upon
Guarantor's request and at Guarantor's expense, execute and deliver to Guarantor
such documents as Guarantor shall reasonably request to evidence such
termination, all without any representation, warranty or recourse
whatsoever.
4.5 Captions.
The
captions of Paragraphs, Articles and Sections in this Guaranty have been
included for convenience of reference only, and shall not define or limit the
provisions hereof and have no legal or other significance
whatsoever.
4.6 Governing
Law; Venue; Severability.
This
Guaranty shall be governed by and construed in accordance with the laws of
the
State of New York without regard to principles of conflicts or choice of law.
Any legal action or proceeding against Guarantor with respect to this Guaranty
may be brought in the state and federal courts located in the State and County
of New York, and, by execution and delivery of this Guaranty, Guarantor hereby
irrevocably accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. Guarantor hereby
irrevocably waives any objection which they may now or hereafter have to the
laying of venue of any of the aforesaid actions or proceedings arising out
of or
in connection with this Guaranty brought in the aforesaid courts and hereby
further irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been brought
in
an inconvenient forum. If any provision of this Guaranty, or the application
thereof to any person or circumstance, is held invalid, such invalidity shall
not affect any other provisions which can be given effect without the invalid
provision or application, and to this end the provisions hereof shall be
severable and the remaining, valid provisions shall remain of full force and
effect. This
Guaranty shall be deemed an unconditional obligation of Guarantor for the
payment of money and, without limitation to any other remedies of Lenders,
may
be enforced against Guarantor by summary proceeding pursuant to New York Civil
Procedure Law and Rules Section 3213 or any similar rule or statute in the
jurisdiction where enforcement is sought. For purposes of such rule or statute,
any other document or agreement to which Lenders and Guarantor are parties
or
which Guarantor delivered to Lenders, which may be convenient or necessary
to
determine Lenders’ rights hereunder or Guarantor’s obligations to Lenders are
deemed a part of this Guaranty, whether or not such other document or agreement
was delivered together herewith or was executed apart from this
Guaranty.
4.7 Satisfaction
of Obligations.
For all
purposes of this Guaranty, the payment in full of the Obligations shall be
conclusively deemed to have occurred when the Obligations have been indefeasibly
paid in cash.
4.8 Counterparts/Execution.
This
Agreement may be executed in any number of counterparts and by the different
signatories hereto on separate counterparts, each of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute but
one
and the same instrument. This Agreement may be executed by facsimile signature
and delivered by facsimile transmission.
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[THE
BALANCE OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, the
undersigned has executed and delivered this Personal Guaranty, as of the date
first written above.
“GUARANTOR”
XXXXXXX
XXXXXXX
/s/ Xxxxxxx Xxxxxxx | |||
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SCHEDULE
A TO GUARANTY
Alpha
Capital Anstalt
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Xxxxx
International Ltd.
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Pradafant
0
|
00xx
Xxxxxx Xxxxxxxxxxxx Xxxxxxx
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0000
Furstentums
|
Xxxxx
Xxxxx, 00xx Xxxxx, Xxxxxx
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Xxxxx,
Xxxxxxxxxxxx
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Xxxxxxxx
of Panama
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Fax:
***
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***
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Brio
Capital, X.X.
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Xxxxxxx
& Xxxxxxx, P.C.
|
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000
Xxxxxxxxx Xxxx
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000
Xxxxx Xxxxxx, Xxxxx 0000
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Xxxxxxxxxx,
XX 00000
|
Xxx
Xxxx, Xxx Xxxx 00000
|
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Fax:
***
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Fax:
***
|
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Bristol
Investment Fund, Ltd.
|
Iroquois
Capital
|
|
c/o
Bristol Capital Advisers, LLC
|
000
Xxxxxxxxx Xxxxxx, 00xx Floor
|
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00000
Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
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Xxx
Xxxx, XX 00000
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Xxx
Xxxxxxx, Xxxxxxxxxx 00000
|
***
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Fax:
***
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Osher
Capital
|
||
Centurion
Microcap, L.P.
|
0
Xxxxxxxxx Xxxx
|
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0000
Xxxxxx X
|
Xxxxxx
Xxxxxx, XX 00000
|
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Xxxxxxxx,
XX 00000
|
***
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Fax:
***
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Platinum
Long term Growth II, Inc.
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Chestnut
Ridge Partners, L.P.
|
000
Xxxx 00xx Xxxxxx
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00
Xxxx Xxxxxxxxx
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Xxx
Xxxx, XX 00000
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Xxxxxxxxx
Xxxx, XX 00000
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***
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Fax:
***
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Xxxxxxxxxxx
Limited Partnership
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CMS
Capital
|
00
Xxxxxx Xxxxxx Xxxxxx
|
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0000
Xxx Xxxx Xxxxxxxxx, Xxxxx 000
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Xxxxxxx
Xxx. X0X 0X0
|
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Xxxxxxxx
Xxxx, XX 00000
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Canada
|
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***
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***
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Double
U Master Fund, L.P.
|
Whalehaven
Capital Fund Limited
|
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c/o
Navigator Management, Ltd.
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c/o
FWS Capital Ltd.
|
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Xxxxxx
Xxxxx, Xxxxxxxxxx Xxxxx, X.X Xxx 000
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0xx
Xxxxx, 00 Xxx-Xxxxxxx Xxxx
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Xxxx
Xxxx XXX
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Xxxxxxxx,
Xxxxxxx XX00
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***
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Fax:
***
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