GUARANTY
This GUARANTY, dated as of the 1st day of September, 1999 (this
"Guaranty"), is made by Xx. Xxxxx X. Xxxxxxx ("Guarantor"), for the benefit
of Commtel Services Ltd., Xxxxxxx X. Xxxxxx and Xxxxxxx Xxxxxx, in their
capacity as Bridge Lenders (the "Lenders").
RECITALS:
WHEREAS, Guarantor is the legal and beneficial owner of a majority of
the issued and outstanding capital stock of Telecom Wireless Corporation (the
"Borrower"); and
WHEREAS, Borrower and Lenders are parties to certain Bridge Loan
Agreements dated August 1, 1999 (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Bridge Loan
Agreements") pursuant to which Lenders have agreed to make loans available to
Borrower; and
WHEREAS, Guarantor acknowledges that he will receive substantial
direct and indirect benefits by reason of the making of loans to Borrower as
provided in the Bridge Loan Agreements;
NOW, THEREFORE, in consideration of the premises and in order to
induce Lenders to make the loans and extend other financial accomodations to
Borrower under the Bridge Loan Agreements, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Guarantor hereby agrees with Lenders, as follows:
1. INCORPORATION OF RECITALS, DEFINED TERMS. The foregoing
recitals are incorporated herein by this reference. Capitalized terms used
in this Guaranty without definition shall have the respective meanings
ascribed to such terms in the Credit Agreement.
2. GUARANTY OF PAYMENT AND PERFORMANCE. Guarantor hereby
unconditionally and irrevocably guarantees to Lenders the punctual payment
and performance when due, whether at stated maturity, by acceleration or
otherwise, of the Obligations. Without limitation of the foregoing, the
Obligations shall include (a) all costs and expenses (including reasonable
attorneys' fees and expenses) incurred by Lenders in collecting any amount
due Lenders under this Guaranty or in prosecuting any action against Borrower
or Guarantor with respect to all or any part of the Obligations
(collectively, the "Enforcement Costs"), and (b) all interest, fees, costs
and expenses due Lenders after the filing of a bankruptcy petition by or
against Guarantor or Borrower regardless of whether such amounts can be
collected during the pendency of the bankruptcy proceedings. Guarantor agrees
that this Guaranty is a present and continuing guaranty of payment and not of
collectibility, and that Lenders shall not be required to
prosecute collection, enforcement or other remedies against Borrower, or to
enforce or resort to any of the Collateral or other rights or remedies
pertaining thereto, before calling on Guarantor for payment. Guarantor
agrees that if, for any reason, Borrower or any other guarantor of the
Obligations shall fail or be unable to pay, punctually and fully, any of the
Obligations, Guarantor shall pay such obligations to Lenders in full
immediately upon demand. Guarantor agrees that one or more successive actions
may be brought against Guarantor, as often as Lenders deem advisable, until
all of the Obligations are paid and performed in full.
3. CONTINUING GUARANTY. Guarantor agrees that the obligations of
Guarantor pursuant to Section 2 above shall be primary obligations, such not
be subject to any counterclaim, set-off, abatement, deferment or defense
based upon any claim that Guarantor may have against Lenders, Borrower, any
other guarantor of the Obligations or any other Person, and shall remain in
full force and effect without regard to, and shall not be released,
discharged or affected in any way by any circumstance or condition (whether
or not Guarantor shall have any knowledge thereof), including without
limitation;
(a) any lack of validity or enforceability of any of the
Loan Documents;
(b) any termination, amendment, modification or other change
in any of the Loan Documents;
(c) any failure, omission or delay on the part of Borrower,
Guarantor or Lenders to conform or comply with any term of any of the Loan
Documents or any failure of Lenders to give notice of any Default or Event of
Default;
(d) any waiver, compromise, release, settlement or extension
of time of payment or performance or observance of any of the obligations or
agreements contained in any of the Loan Documents;
(e) any action or inaction by Lenders under or in respect of
any of the Loan Documents, any failure, lack of diligence, omission or delay
on the part of the Lenders to enforce, assert or exercise any right, power or
remedy conferred on them in any of the Loan Documents, or any other action or
inaction on the part of Lenders;
(f) any dissolution of Guarantor or any voluntary or
involuntary bankruptcy, insolvency, reorganization, arrangement,
readjustment, assignment for the benefit of creditors, composition,
receivership, liquidation, marshaling of assets and liabilities or similar
events or proceedings with respect to Borrower, Guarantor or any other
guarantor of the Obligations, as applicable, or any of their respective
property or creditors, or any action taken by any trustee or receiver or by
any court in any such proceeding including, without limitation, any
proceeding under Title 11 of the United States Code (11 U.S.C. Section 101 et
seq.), as amended (the "Bankruptcy Code");
(g) any merger or consolidation of Borrower, Guarantor or
any other guarantor of the Obligations into or with any Person, or any sale,
lease or transfer of any of the assets of Borrower, Guarantor or any other
guarantor of the Obligations to any other Person;
(h) any change in the ownership of the capital stock of
Borrower or any change in the relationship between Borrower and Guarantor, or
any termination of any such relationship;
(i) any release or discharge by operation of law of Borrower
or Guarantor from any obligation or agreement contained in any of the Loan
Documents;
(j) any Lender's election in any proceeding instituted under
the Bankruptcy Code, of the application of Section 1111(b)(2) of the
Bankruptcy Code;
(k) any borrowing or grant of a security interest by
Borrower as debtor-in-possession under Section 364 of the Bankruptcy Code;
(l) the inability of any Lender to enforce the Obligations
of Borrower as a result of the automatic stay provisions of Section 362 of
the Bankruptcy Code;
(m) the disallowance, under Section 502 of the Bankruptcy
Code, of all or any portion of Agent's or any Lender's claim or claims for
repayment of the Obligations, or
(n) any other occurrence, circumstance, happening or event,
whether similar or dissimilar to the foregoing and whether foreseen or
unforeseen, which otherwise might constitute a legal or equitable defense or
discharge of the liabilities or a guarantor or surety or which otherwise
might limit recourse against Borrower or Guarantor.
4. WAIVERS. Guarantor unconditionally waives, to the extent
permitted by law, (i) notice of any of the matters referred to in Section 3
above, (ii) all notices which may be required by statute, rule of law or
otherwise, now or hereafter in effect, to preserve intact any rights against
Guarantor, including, without limitation, any demand, presentment and
protest, proof of notice on non-payment under any of the Loan Documents and
notice of any Default or any Event of Default or any failure on the part of
Borrower or Guarantor of the Obligations to perform or comply with any
covenant, agreement, term or condition of any of the Loan Documents, (iii)
any right to the enforcement, assertion or exercise against Borrower,
Guarantor or any other guarantor of the Obligations of any right or remedy
conferred under any of the Loan Documents, (iv) any requirement of diligence
on the part of any Person, (v) any requirement to exhaust any remedies or to
mitigate the damages resulting from any default under any of the Loan
Documents, and (vi) any notice of any sale, transfer or other disposition of
any right, title or interest of Lenders under any of the Loan Documents.
5. REPRESENTATIONS AND WARRANTIES. Guarantor represents and
warrants to Lenders as follows:
(a) QUALIFICATION. Guarantor is an individual residing in the
state of Colorado.
(b) POWER AND AUTHORITY. Guarantor has the power and authority to
enter into, execute, deliver, and carry out the terms of the Guaranty and to
incur the obligations provided for herein.
(c) BINDING OBLIGATION. This Guaranty, when executed and
delivered, will constitute the valid and legally binding obligations of
Guarantor, enforceable against the Guarantor in accordance with its terms.
(d) NO CONFLICT. The execution, delivery and performance by
Guarantor of this Guaranty and the consummation of the transactions
contemplated hereby do not and will not: (1) violate any provision of law
applicable to Guarantor, or any order, judgment or decree of any court or
other agency of government binding on Guarantor; (2) conflict with, result in
a breach of or constitute (with due notice or lapse of time or both) a
default under any contract or agreement to which Guarantor is a party or by
which Guarantor is bound; (3) result in or require the creation or imposition
of any material Lien upon any of the properties or assets of Guarantor; or
(4) require any approval or consent of any Person under any contract or
agreement to which Guarantor is a party or by which Guarantor is bound.
(e) GOVERNMENTAL CONSENTS. The execution, delivery and performance
by Guarantor of this Guaranty, and the consummation of the transactions
contemplated thereby do not and will not require any registration with,
consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory body.
(f) BURDENSOME OBLIGATIONS; SOLVENCY. After giving effect to the
transactions contemplated by this Guaranty, Guarantor (i) does not intend to
incur, and does not believe that it will incur, debts beyond its ability to
pay such debts as they become due, (ii) owns and will own property, the fair
salable value of which is (A) greater than the total amount of his
liabilities (including contingent liabilities) and (B) greater than the
amount that will be required to pay the probable liabilities of his then
existing debts as they become absolute and matured, and (iii) has and will
have capital that is not unreasonably small in relation to his business as
presently conducted and proposed to be conducted.
6. REINSTATEMENT. The obligations of Guarantor pursuant to this
Guaranty shall continue to be effective or automatically be reinstated, as
the case may be, if at any time payment of any of the Obligations is
rescinded or otherwise must be restored or returned by Lenders upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of
Guarantor or Borrower or otherwise, all as though such payment had not been
made.
7. SUCCESSORS AND ASSIGNS. This Guaranty shall inure to the
benefit of Lenders, and their respective successors and assigns. This
Guaranty shall be binding on Guarantor, its successors and assigns, and shall
continue in full force and effect until all of the Obligations are paid and
performed in full.
8. NO WAIVER OF RIGHTS. No delay or failure on the part of
Lenders to exercise any right, power or privilege under this Guaranty or any
of the other Loan Documents shall operate as a waiver thereof, and no single
or partial exercise of any right, power or privilege shall be deemed to
establish a custom or course of dealing or performance between the parties
hereto. The rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies provided by law. No notice to or demand
on Guarantor in any case shall entitle Guarantor to any other or further
notice or demand in the same, similar or other circumstance.
9. MODIFICATION. The terms of this Guaranty may be waived,
discharged, or terminated only by an instrument in writing signed by the
party against which enforcement of the change, waiver, discharge or
termination is sought. No amendment, modification, waiver or other change of
any of the terms of the Guaranty shall be effective without the prior written
consent of Lenders.
10. COSTS AND EXPENSES. Guarantor agrees to pay on demand all
costs and expenses incurred by or on behalf of Lenders (including, without
limitation, reasonable attorneys' fees and expenses) in enforcing the
obligations of Guarantor under this Guaranty.
11. JOINDER. Guarantor agrees that any action to enforce this
Guaranty may be brought against Guarantor without any reimbursement or
joinder of Borrower in such action.
12. SEVERABILITY. If any provision of this Guaranty is deemed to
be invalid by reason of the operation of any law, or by reason of the
interpretation placed thereon by any court or other governmental authority,
this Guaranty shall be construed as not containing such provision and the
invalidity of such provision shall not affect the validity of any other
provision hereof, and any and all other provisions hereof which otherwise are
lawful shall remain in full force and effect.
13. NOTICES. Unless otherwise specifically provided herein, any
notice or other communication required or permitted to be given shall be in
writing addressed to the respective party as set forth below and may be
personally served, telecopied, telexed or sent by overnight courier service
or United States mail and shall be deemed to have been given: (a) if
delivered in person, when delivered; (b) if delivered by telecopy or telex,
on the date of transmission if transmitted on a Business Day before 4:00 p.m.
(New York time) or, if not, on the very next succeeding Business Day; (c) if
delivered by overnight courier, two days after delivery to such courier
properly addressed; or (d) if by
U.S. Mail, four Business Days after depositing in the United States mail,
with postage prepaid and properly addressed.
Notices shall be addressed as follows:
If to Lender Commtel Services Ltd:
Commtel Services Ltd.
c/o Teacher Xxxxx Xxxxx
00-00 Xxxxxxx Xxx
Xxxxxx XX0X0XX
Attn: Xxxxx Teacher
Telecopy:
If to Lender Xxxxxxx X. Xxxxxx:
0000 Xxxxxxxx, Xxx. 0000
Xxx Xxxx, X.X. 00000
Telecopy: (000) 000-0000
If to Lender Xxxxxxx Xxxxxx:
00 Xxxx Xxx Xxxxxx, Xxx. 0X
Xxx Xxxx, X.X. 10021
If to Guarantor:
Telecom Wireless Corporation
0000 XXX Xxxxxxxxx, 00xx Xx.
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Or to such other address as the party addressed shall have previously
designated by written notice to the serving party given in accordance with
this Section 13. A notice not given as provided above shall, if it is in
writing, be deemed given if and when actually received by the party to whom
given.
14. APPLICABLE LAW. THIS GUARANTY SHALL BE GOVERNED BY, AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE
OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
15. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. GUARANTOR
HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED
WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK AND IRREVOCABLE AGREES THAT,
SUBJECT TO AGENT'S
ELECTION ALL ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
GUARANTY SHALL BE LITIGATED IN SUCH COURTS. GUARANTOR EXPRESSLY SUBMITS AND
CONSENTS TO THE JURISDICTION OF THE AFORESAID COURTS AND WAIVES ANY DEFENSE
OF FORUM NON CONVENIENS. GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF ANY AND
ALL PROCESS AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON
GUARANTOR BY CERTIFIED OR REGISTERED MAJL, RETURN RECEIPT REQUESTED,
ADDRESSED TO GUARANTOR, AT THE ADDRESS SET FORTH IN THIS AGREEMENT AND
SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN
POSTED.
16. WAIVER OF JURY TRIAL. GUARANTOR AND LENDERS HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON
OR ARISING OUT OF THIS GUARANTY. GUARANTOR AND LENDERS ACKNOWLEDGE THAT HIS
WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT
EACH HAS RELIED ON THE WAIVER IN ENTERING INTO THIS GUARANTY AND THAT EACH
WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS.
GUARANTOR AND LENDERS WARRANT AND REPRESENT THAT EACH HAS HAD THE OPPORTUNITY
OF REVIEWING THIS JURE WAIVE WITH LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND
VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.
IN WITNESS WHEREOF, Guarantor bas executed this Guaranty as of the
date first above written
/s/ Xx. Xxxxx X. Xxxxxxx
-----------------------------------
Xx. Xxxxx X. Xxxxxxx
COMMTEL SERVICES LTD
By:
-------------------------------
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx Xxxxxx
