EXHIBIT 10.7
GUARANTY
THIS GUARANTY ("Guaranty") is made and delivered as of August 3, 2005, by
VOIP, ACQUISITION COMPANY, a Delaware corporation ("Guarantor"), to and in favor
of CEDAR BOULEVARD LEASE FUNDING, LLC, a Delaware limited liability company
("Lender").
RECITALS
A. Pursuant to that certain Subordinated Loan and Security Agreement dated
as of June 1, 2004, as amended by that certain First Amendment to Subordinated
Loan and Security Agreement dated as of July 22, 2004, and that certain Second
Amendment to Subordinated Loan and Security Agreement dated as of August 27,
2004 (collectively, along with all exhibits, schedules and annexes thereto, all
further amendments, restatements, modifications and supplements to any of the
foregoing, and all other documents and agreements entered into in connection
therewith, the "Agreement"), by and among Lender and Caerus, Inc. ("Caerus"),
Volo Communications, Inc. ("Volo"), Caerus Networks, Inc. ("CNI"), Caerus
Billing, Inc. ("CBI") and the Volo Subsidiaries (as defined in the Agreement)
(Caerus, Volo, CNI, CBI and the Volo Subsidiaries are each referred to as a
"Borrower" and collectively as the "Borrowers"), Lender has made certain loans
to and other financial accommodations in favor of Borrowers (the "Loans").
B. Borrowers and Guarantor are all wholly-owned subsidiaries of VoIP that
will engage in business with one another, serve each other's customers and
operate as one business; therefore, Guarantor will derive direct and indirect
economic benefits from the Loans.
C. The Loan Agreement requires and Guarantor have agreed to guarantee
payment and performance of Borrowers' obligations under the Loan Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. Guaranty of Obligations. Each Guarantor hereby fully, unconditionally,
jointly and severally guarantees to Lender the due and punctual payment,
performance, and discharge (whether upon acceleration or otherwise in accordance
with the terms thereof) of Borrowers' payment and performance obligations to
Lender under or in connection with the Loan Agreement (the "Guaranteed
Obligations"). Each Guarantor acknowledges it has had an opportunity to review
the Loan Agreement. Each Guarantor further agrees to indemnify and hold Lender,
its successors and assigns, harmless from and against any and all reasonable
attorneys' and other reasonable professionals' fees and costs in connection with
or related to the collection upon or enforcement of this Guaranty.
2. Absolute Continuing Guaranty. This is a continuing, absolute,
irrevocable and unconditional guaranty of performance and payment and not of
collection. Each Guarantor gives the following waivers to the extent permitted
by applicable law. Each Guarantor (i) specifically waives any right to
subrogation, reimbursement, recoupment, setoff or counterclaim, unless and until
the full and final payment in cash of all Guaranteed Obligations and obligations
hereunder; (ii) specifically waives any defense for changes in applicable law or
any other circumstances that might constitute a legal or equitable defense or
discharge of a guarantor or surety; (iii) waives notice of acceptance hereof and
of defaults hereunder or under the Loan Agreement; (iv) waives any right to
require Lender to first proceed against any Borrower, or against any collateral
or other property that is the subject of the Loan Agreement, or against any
collateral or security which may be held for this Guaranty; (v) waives notice of
acceptance of this Guaranty and of defaults under this Guaranty and the Loan
Agreement; (vi) waives notice of the extension of credit, of the amount of
indebtedness (subject, however, to such Guarantor's right to make inquiry of
Lender at any reasonable time to ascertain the amount of indebtedness), of
adverse change, of presentment for payment, demand, protest, and all other
notices and demands to which such Guarantor might otherwise be entitled; (vii)
waives any rights (statutory or otherwise) to require Lender to institute suit
against any Borrower or to exhaust Lender's rights and remedies against any
Borrower, and such Guarantor acknowledges and agrees that it is bound to pay any
and all Guaranteed Obligations, whether now existing or hereafter accruing, in
full as if such obligations were directly owing to Lender by any Guarantor; and
(viii) agrees that its liabilities under this Guaranty shall not be exonerated,
affected, or decreased based on (and such Guarantor waives any defenses based
on) principles of suretyship, including, but not limited to: (A) any amendment,
extension, renewal, waiver, or modification of the Loan Agreement; (B) any
rejection, breach, disaffirmance, discharge, assignment or transfer of any
Borrowers' obligations under the Loan Agreement, including any such action as
may occur in a bankruptcy, reorganization, liquidation, workout or
restructuring; (C) that some or all of the obligations under the Loan Agreement
may be accelerated upon any nonpayment thereof by any Borrower; (D) any
alteration, suspension, or impairment of any Borrowers' obligations or of
Lender's rights or remedies against any Borrower or any collateral or other
property that is the subject of the Loan Agreement; (E) the release, termination
or failure to perfect Lender's interest in any collateral or other property that
is the subject of the Loan Agreement; (F) any action or inaction by Lender that
impairs such Guarantor's subrogation or reimbursement rights as against any
Borrower or the property which is the subject of the Loan Agreement, including
the stay, tolling, or expiration of any statute of limitations; (G) any action
or inaction by Lender or the failure to pursue any remedy in Lender's power that
would lighten such Guarantor's burden; or (H) any changes in any Borrower's
financial condition or any Borrower's incurring obligations under the Loan
Agreement that it is unable to pay.
3. Subordination. Any and all present and future debts and obligations of
any Borrower to any Guarantor are hereby postponed in favor of, and are
subordinated in right and time of payment to the full and final payment in cash
of all Guaranteed Obligations and obligations hereunder. Lender may apply any
payments from any Borrower or proceeds of collateral or proceeds of other
property to any obligations that any Borrower owes to Lender, whether under the
Loan Agreement, or under any other rental, lease, loan, or financial agreement,
in whatever amount and order of priority as Lender, in its sole discretion, may
elect, subject to the terms of Lender's agreements with Borrowers. Each
Guarantor waives any right to require Lender to apply payments from any Borrower
or proceeds of collateral granted by any Borrower to the obligations guaranteed
by any Guarantor.
4. Demand for Payment. Each Guarantor shall pay all amounts due to Lender
hereunder within ten (10) days after written demand therefor in accordance with
the following sentence. Demand may be made by Lender, in its sole discretion,
for: (a) the full amount of the Guaranteed Obligations or any unperformed
balance thereof, if an Event of Default under the Loan Agreement or the Security
Agreement executed by Guarantor concurrently herewith has occurred and has not
been cured within any applicable cure period; or (b) the amount of the
Guaranteed Obligations due but unpaid at the time of demand, reserving all of
Lender's rights thereafter to collect from Borrowers or Guarantor any other
obligations under the Loan Agreement and exercise all remedies for the whole
amount of the obligations under the Loan Agreement.
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5. Termination. Upon the date on which Borrowers have indefeasibly repaid
in full and completely discharged all of their obligations to Lender under the
Loan Agreement, and Borrowers have no further obligations under the Loan
Agreement, this Guaranty shall terminate.
6. Reinstatement. If any payment by any Borrower or any Guarantor to or
for the benefit of Lender is avoided or recovered under any law respecting
fraudulent transfers, preferences or other avoiding powers or laws respecting
creditors' remedies, then this Guaranty shall be deemed to be revived and fully
enforceable until the full, final and indefeasible payment to Lender in cash of
all Guaranteed Obligations and all obligations under this Guaranty.
7. Independent Investigation. Each Guarantor shall undertake to keep
itself informed of Borrowers' financial condition, and Lender shall have no
obligation to inform any Guarantor of Borrowers' financial condition. Each
Guarantor delivers this Guaranty based solely upon Guarantor's own independent
investigation and in no part upon any representation or statement of Lender with
respect thereto. Each Guarantor is in a position to obtain, and hereby assumes
full responsibility for obtaining, any information concerning Borrowers'
financial condition as such Guarantor may deem material to such Guarantor's
obligations under this Guaranty. No Guarantor is relying upon or expecting
Lender to furnish to any Guarantor, any information in Lender's possession
concerning Borrowers' financial condition or business operations.
8. Indulgences Not Waivers. Neither the failure nor any delay on the part
of Lender to exercise any right, remedy, power or privilege hereunder shall
operate as a waiver thereof or give rise to any estoppel, nor be construed as an
agreement to modify the terms of this Guaranty, nor shall any single or partial
exercise by Lender of any right, remedy, power or privilege preclude any other
or further exercise by Lender of the same or of any other right, remedy, power,
or privilege; nor shall any waiver by Lender of any right, remedy, power or
privilege with respect to any occurrence be construed as a waiver of such right,
remedy, power or privilege with respect to any other occurrence. No waiver by a
party hereunder shall be effective unless it is in writing and signed by the
party making such waiver, and then only to the extent specifically stated in
such writing.
9. Notices. Except as otherwise provided herein, any notice, demand,
request, consent, approval, declaration, service of process or other
communication that is required, contemplated, or permitted under this Guaranty
or with respect to the subject matter hereof shall be in writing, and shall be
deemed to have been validly served, given, delivered, and received upon the
earlier of: (i) the first business day after transmission by facsimile (receipt
confirmed) or hand delivery or deposit with an overnight express service or
overnight mail delivery service; or (ii) the fifth calendar day after deposit in
the United States mails, with proper first class postage prepaid, and shall be
addressed to the party to be notified as follows:
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If to Lender: Cedar Boulevard Lease Funding LLC
Xxx Xxxx, Managing Partner
00 Xxxxx Xxxx Xx., Xxxxx 0
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
with copies to:
Winston & Xxxxxx LLP
Attention: Xxxx X. Xxxxxxxxxx, Esq.
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
If to Guarantor:
or to such other address as each party may designate for itself by like
notice.
10. Governing Law. THIS GUARANTY SHALL BE DEEMED TO HAVE BEEN MADE AND
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS
APPLICABLE THEREIN AND SHALL BE TREATED IN ALL RESPECTS AS AN ILLINOIS CONTRACT.
EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE
COURTS OF XXXX COUNTY, ILLINOIS FOR ANY ACTION, SUIT OR ANY OTHER PROCEEDING
ARISING OUT OF OR RELATING TO THIS GUARANTY AND ANY OTHER AGREEMENT OR
INSTRUMENT MENTIONED HEREIN OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
11. Entire Agreement. This Guaranty constitutes and expresses the entire
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, and the express terms hereof control
and supersede any course of performance and/or usage of the trade inconsistent
with any of the terms hereof. Neither this Guaranty nor any portion or provision
hereof may be changed, altered, waived, modified, supplemented, discharged,
canceled, terminated, or amended orally or in any manner other than by an
agreement in writing signed by the parties hereto.
12. Paragraph Headings. The paragraph headings in this Guaranty are for
convenience of reference only; they form no part of this Guaranty and shall not
affect its interpretation.
13. Severability. The provisions of this Guaranty are independent of and
separable from each other. If any provision hereof shall for any reason be held
invalid or unenforceable, such invalidity or unenforceability shall not affect
the validity or enforceability of any other provision hereof, but this Guaranty
shall be construed as if such invalid or unenforceable provision had never been
contained herein.
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14. Successors and Assigns. Lender may assign, or sell participations in,
this Guaranty and its right, title and interest in the Guaranteed Obligations,
and in any agreements or instruments now or hereafter evidencing or securing any
agreements or instruments now or hereafter evidencing or securing any of the
Guaranteed Obligations at any time or times without notice to or the consent of
any Guarantor. However, Guarantor may rely on Lender continuing to hold this
Guaranty and the Guaranteed Obligations and all agreements and instruments
evidencing or securing the same until Guarantor have received actual notice from
Lender of any such assignment. The rights, remedies, powers, and privileges of
Lender hereunder shall inure to the benefit of the successors and assigns of
Lender, and the duties and obligations of Guarantor hereunder shall bind the
heirs, executors, administrators, successors and assigns of Guarantor.
15. Mutual Waiver Of Jury Trial. Because disputes arising in connection
with complex financial transactions are most quickly and economically resolved
by an experienced and expert person and the parties wish applicable provincial
and federal laws to apply (rather than arbitration rules), the parties desire
that their disputes be resolved by a judge applying such applicable laws. LENDER
AND EACH GUARANTOR SPECIFICALLY WAIVES ANY RIGHT IT MAY HAVE TO TRIAL BY JURY OF
ANY CAUSE OF ACTION, CLAIM, CROSS-CLAIM, COUNTERCLAIM, THIRD PARTY CLAIM OR ANY
OTHER CLAIM ARISING OUT OF THIS GUARANTY (COLLECTIVELY, "CLAIMS") ASSERTED BY
ANY GUARANTOR AGAINST LENDER OR ITS ASSIGNEE OR BY LENDER OR ITS ASSIGNEE
AGAINST ANY GUARANTOR. This waiver extends to all such Claims, including Claims
that involve persons other than Guarantor and Lender.
16. WAIVERS. EACH GUARANTOR ACKNOWLEDGES THAT THE FOREGOING WAIVERS ARE A
MATERIAL INDUCEMENT TO LENDER'S ENTERING INTO THIS GUARANTY AND THAT LENDER IS
RELYING UPON THE FOREGOING WAIVERS IN ITS FUTURE DEALINGS WITH GUARANTOR. EACH
GUARANTOR WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THE FOREGOING WAIVERS
WITH ITS LEGAL COUNSEL AND HAS KNOWINGLY AND VOLUNTARILY WAIVED ITS JURY TRIAL
RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION,
THIS GUARANTY MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
17. Costs and Expenses. Each Guarantor agrees to pay to Lender, on demand,
all reasonable out-of-pocket costs and expenses, including attorneys' fees,
incurred by Lender in connection with the Guaranteed Obligations, this Guaranty,
or any of the other documents, instruments or agreements entered into or
delivered in connection herewith, including in connection with respect to (a)
exercising any right, power or remedy conferred by this Guaranty, or (b) the
enforcement of this Guaranty, whether or not any action is filed in connection
therewith, unless such Guarantor is the prevailing party, or (c) any bankruptcy,
assignment for benefit of creditors, receivership or other insolvency proceeding
involving Guarantor.
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18. Further Assurances. Each Guarantor agrees that it will, at its
expense, upon the written request of Lender, from time to time, promptly execute
and deliver to Lender any additional instruments or documents reasonably
considered necessary by Lender to cause this Guaranty to be, become, or remain
valid and effective in accordance with its terms.
19. Counterparts. This Guaranty may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so delivered shall be deemed an original, but all of which
counterparts shall constitute but one and the same instrument. Delivery of an
executed counterpart of a signature page to this Guaranty by facsimile
transmission shall be effective as delivery of a manually executed counterpart
thereof.
20. Taxes and Set off by Guarantor. All payments to be made by any
Guarantor hereunder will be made without set off or counterclaim and without
deduction for any taxes, levies, duties, fees, deductions, withholdings,
restrictions or conditions of any nature whatsoever. If at any time any
applicable law, regulation or international agreement requires any Guarantor to
make any such deduction or withholding from any such payment, the sum due from
such Guarantor with respect to such payment will be increased to the extent
necessary to ensure that, after the making of such deduction or withholding,
Lender receives a net sum equal to the sum which it would have received had no
deduction or withholding been required.
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IN WITNESS WHEREOF, Lender and each Guarantor have duly executed and
delivered this Guaranty as of the day and year first above written.
GUARANTOR: VOIP ACQUISITION COMPANY
Signature: /s/ Xxxxxx Xxxxxxx
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Print Name: Xxxxxx Xxxxxxx
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Title: CEO
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LENDER: CEDAR BOULEVARD LEASE FUNDING LLC
Signature: /s/ Xxxxxxxxxxx Xxxxxxxx
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Print Name: Xxxxxxxxxxx Xxxxxxxx
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Title: Authorized Signatory
