GUARANTY AGREEMENT
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Guaranty Agreement dated November 12, 1999 (this "Guaranty"),
from PICK Communications Corp., with offices at 000 Xxxxx 00 Xxxx, Xxxxx, Xxx
Xxxxxx 00000 ("PICK" or the "Guarantor"), to IDT Corporation, with offices at
000 Xxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000 ("IDT").
W I T N E S S E T H
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WHEREAS, PICKNET, INC. ("PICKNET") is currently indebted to
IDT in the amount of $2,350,000 consisting of (a) $2,000,000 in Promissory Notes
dated February 12, 1998, April 8, 1998 and May 21, 1998, (b) accrued interest on
such Promissory Notes from their dates through the date hereof in the amount of
$150,000, and (c) outstanding receivables owed to IDT by PICKNET through the
date hereof in the amount of $200,000 (the "Indebtedness"); and
WHEREAS, such Indebtedness has been restructured pursuant to
the terms of an Agreement dated the date hereof (the "Agreement"), among PICK,
PICKNET and IDT and a Note dated the date hereof from PICKNET to IDT (the
"Note") in the principal amount of $2,350,000;
WHEREAS, PICK has agreed to guarantee such Indebtedness
pursuant to this Guaranty;
NOW THEREFORE, in consideration of the foregoing and the terms
and conditions appearing in this Guaranty, the parties hereto agree as follows:
1. Guarantee.
The Guarantor unconditionally and irrevocably guarantees as primary
obligor and not merely as surety the punctual payment when due, whether at
stated maturity, by acceleration or otherwise, of all obligations of PICKNET
arising under the Note and the Agreement, including all extensions,
modifications, substitutions, amendments and renewals thereof, whether for
principal, interest
(including without limitation interest on any overdue principal, premium and
interest at the rate specified in the Note) fees, expenses or otherwise. The
Guarantor also agrees to pay, in addition to the amount stated above, all
reasonable expenses (including reasonable counsel fees and expenses) incurred by
IDT in enforcing any rights under this Guaranty or in connection with any
amendment of this Agreement.
2. Method of Payment.
All payments to be paid by PICK to IDT pursuant to this Guaranty shall
be paid by wire transfer in immediately available funds to IDT as follows (or in
such other manner as IDT shall advise PICK):
First Union Bank
000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
ABA Routing No. 000000000
Swift Code FUNB US33INT
A/C #2079950015213
A/C Name "IDT Corporation"
3. Default.
Each of the following shall constitute an Event of Default:
(a) The Guarantor shall fail to pay any portion of the amounts
described in Section 1 hereof or under the Note.
(b) There shall be, with respect to indebtedness of PICK
having an outstanding principal amount of $2.0 million or more in the aggregate,
whether such indebtedness now exists or shall hereafter be created, (x) an event
of default that has caused the holder or holders thereof (or their
representative) (I) to declare such indebtedness to be due and payable prior to
its scheduled maturity and/or (II) to commence judicial proceedings to foreclose
upon, or to exercise remedies
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under applicable law or applicable security documents to take ownership of, the
property or assets securing such indebtedness and/or (y) the failure to make a
principal payment at the final (but not any interim) fixed maturity and such
defaulted payment shall not have been made or waived within 45 days of such
default.
(c) PICK pursuant to or under or within the meaning of
any Bankruptcy law of any U.S. or foreign jurisdiction:
(i) admits in writing its inability to pay its debts
generally as they become due;
(ii) commences a voluntary case or proceeding;
(iii) consents to the entry of an order for relief against
it in an involuntary case or proceeding;
(iv) consents or acquiesces in the institution of a
bankruptcy or insolvency proceeding against it;
(v) consents to the appointment of a custodian of it or for
all or substantially all of its property;
(vi) makes a general assignment for the benefit of its
creditors, or any of them takes any action to authorize
or effect any of the foregoing, or takes any other
similar action under foreign laws relating to
insolvency; or
(vii) is placed into involuntary Bankruptcy proceedings by a
creditor or creditors.
(d) a court of competent jurisdiction enters an order or
decree under any
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Bankruptcy law that:
(i) is for relief against PICK in an involuntary case or
proceeding;
(ii) appoints a custodian of PICK for all or substantially
all of their properties taken as a whole; or
(iii) orders the liquidation of PICK or any similar release
is granted under foreign laws relating to insolvency,
and in each case, the order or decree remains unstayed
and in effect for 60 days.
If any Event of Default shall occur, IDT may declare all amounts due
hereunder to be due and payable by notice in writing to PICK specifying the
Event of Default and the same shall become immediately due and payable.
4. Governing Law.
This Guaranty shall be deemed to have been made under and shall be
governed by the laws of the State of New York in all respects and including
matters of construction, validity and performance, but otherwise excluding the
laws of New York regarding conflicts of law.
5. Notices.
All notices to PICK or to IDT shall be given in writing by first class
registered United States mail, or by a recognized overnight carrier service,
postage prepaid, and sent to their respective addresses set forth above, or to
such other address as either may specify to the other by due notice.
6. Entire Agreement.
This instrument contains the entire agreement and understanding between
the parties and supersedes all prior agreements. It may be amended, modified or
waived only by an agreement, in writing, signed by the party against whom
enforcement of any waiver, change, modification,
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amendment or discharge is sought, and not orally. The invalidity or
unenforceability of any provision hereof shall not affect the validity or
enforceability of any other provision.
7. Headings.
The headings are for organization, convenience and clarity and shall
have no force or effect upon the construction or interpretation hereof.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement on the date first above written.
PICK COMMUNICATIONS CORP.
By: /s/ Xxxxx Xxxxx
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Chairman
Agreed to and Accepted:
IDT Corporation
By: /s/ Xxx Xxxxxxx
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Name: Xxx Xxxxxxx
Title: President
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