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i2 Telecom
Michigan Guaranty Initials
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-1996 Bankers Systems, Inc., St. Cloud, MN C Page 2
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i2 Telecom
Michigan Guaranty Initials
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-1996 Bankers Systems, Inc., St. Cloud, MN C Page 1
GUARANTY
(Continuing Debt - Unlimited)
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DATE AND PARTIES. The date of this Guaranty is January 4, 2007. The parties
and their addresses are:
LENDER:
UNIVERSITY BANK
0000 Xxxxxxxxx
Xxx Xxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
BORROWER:
XXXXXX X XXXXXXXX
00000 XXXXXXX XXXXX XX.
XXXXXXX, Xxxxxxxxxx 00000
GUARANTOR:
I2 TELECOM
a Delaware Corporation
0000 Xxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
1. DEFINITIONS. As used in this Guaranty, the terms have the following
meanings:
A. Pronouns. The pronouns "I", "me" and "my" refer to all persons or
entities signing this Guaranty, individually and together. "You" and "your"
refer to the Lender. B. Note. "Note" refers to the document that evidences
the Borrower's indebtedness, and any extensions, renewals, modifications
and substitutions of the Note.
C. Property. "Property" means any property, real, personal or intangible,
that secures performance of the obligations of the Note, Debt, or this
Guaranty.
2. SPECIFIC AND FUTURE DEBT GUARANTY. For good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, and to induce you, at
your option, to make loans or engage in any other transactions with the
Borrower from time to time, I absolutely and unconditionally agree to all terms
of and guaranty to you the payment and performance of each and every Debt, of
every type, purpose and description that the Borrower either individually,
among all or a portion of themselves, or with others, may now or at any time in
the future owe you, including, but not limited to the following described
Debt(s) including without limitation, all principal, accrued interest,
attorneys' fees and collection costs, when allowed by law, that may become due
from the Borrower to you in collecting and enforcing the Debt and all other
agreements with respect to the Borrower.
This guaranty includes all debt now and hereafter owed to University Bank.
In addition, Debt refers to debts, liabilities, and obligations of the Borrower
(including, but not limited to, amounts agreed to be paid under the terms of
any notes or agreements securing the payment of any debt, loan, liability or
obligation, overdrafts, letters of credit, guaranties, advances for taxes,
insurance, repairs and storage, and all extensions, renewals, refinancings and
modifications of these debts) whether now existing or created or incurred in
the future, due or to become due, or absolute or contingent, including
obligations and duties arising from the terms of all documents prepared or
submitted for the transaction such as applications, security agreements,
disclosures, and the Note.
You may, without notice, apply this Guaranty to such Debt of the Borrower as
you may select from time to time. 3. EXTENSIONS. I consent to all renewals,
extensions, modifications and substitutions of the Debt which may be made by
you upon such terms and conditions as you may see fit from time to time without
further notice to me and without limitation as to the number of renewals,
extensions, modifications or substitutions.
4. UNCONDITIONAL LIABILITY. I am unconditionally liable under this Guaranty,
regardless of whether or not you pursue any of your remedies against the
Borrower, against any other maker, surety, guarantor or endorser of the
Debt or against any Property. You may xxx me alone, or anyone else who is
obligated on this Guaranty, or any number of us together, to collect the
Debt. My liability is not conditioned on the signing of this Guaranty by
any other person and further is not subject to any condition not expressly
set forth in this Guaranty or any instrument executed in connection with
the Debt. My obligation to pay according to the terms of this Guaranty
shall not be affected by the illegality, invalidity or unenforceability of
any notes or agreements evidencing the Debt, the violation of any
applicable usury laws, forgery, or any other circumstances which make the
indebtedness unenforceable against the Borrower. I will remain obligated to
pay on this Guaranty even if any other person who is obligated to pay the
Debt, including the Borrower, has such obligation discharged in bankruptcy,
foreclosure, or otherwise discharged by law.
5. BANKRUPTCY. If a bankruptcy petition should at any time be filed by or
against the Borrower, the maturity of the Debt, so far as my liability is
concerned, shall be accelerated and the Debt shall be immediately payable
by me. I acknowledge and agree that this Guaranty, and the Debt secured
hereby, will remain in full force and effect at all times, notwithstanding
any action or undertakings by, or against, you or against any Property, in
connection with any obligation in any proceeding in the United States
Bankruptcy Courts. Such action or undertaking includes, without limitation,
valuation of Property, election of remedies or imposition of secured or
unsecured claim status upon claims by you, pursuant to the United States
Bankruptcy Code, as amended. In the event that any payment of principal or
interest received and paid by any other guarantor, borrower, surety,
endorser or co-maker is deemed, by final order of a court of competent
jurisdiction, to have been a voidable preference under the bankruptcy or
insolvency laws of the United States or otherwise, then my obligation will
remain as an obligation to you and will not be considered as having been
extinguished.
6. REVOCATION. I agree that this is an absolute and unconditional Guaranty. I
agree that this Guaranty will remain binding on me, whether or not there
are any Debts outstanding, until you have actually received written notice
of my revocation or written notice of my death or incompetence. Notice of
revocation or notice of my death or incompetence will not affect my
obligations under this Guaranty with respect to any Debts incurred by or
for which you have made a commitment to Borrower before you actually
receive such notice, and all renewals, extensions, refinancings, and
modifications of such Debts. I agree that if any other person signing this
Guaranty provides a notice of revocation to you, I will still be obligated
under this Guaranty until I provide such a notice of revocation to you. If
any other person signing this Guaranty dies or is declared incompetent,
such fact will not affect my obligations under this Guaranty.
7. PROPERTY. I agree that any Property may be assigned, exchanged, released in
whole or in part or substituted without notice to me and without defeating,
discharging or diminishing my liability. My obligation is absolute and your
failure to perfect any security interest or any act or omission by you
which impairs the Property will not relieve me or my liability under this
Guaranty. You are under no duty to preserve or protect any Property until
you are in actual or constructive possession. For purposes of this
paragraph, you will only be in "actual" possession when you have physical,
immediate and exclusive control over the Property and have accepted such
control in writing. Further, you will only be deemed to be in
"constructive" possession when you have both the power and intent to
exercise control over the Property.
8. DEFAULT. I will be in default if any of the following occur: A. Payments. I
fail to make a payment in full when due.
B. Insolvency or Bankruptcy. The death, dissolution or insolvency of,
appointment of a receiver by or on behalf of, application of any debtor
relief law, the assignment for the benefit of creditors by or on behalf of,
the voluntary or involuntary termination of existence by, or the
commencement of any proceeding under any present or future federal or state
insolvency, bankruptcy, reorganization, composition or debtor relief law by
or against me, Borrower, or any co-signer, endorser, surety or guarantor of
this Guaranty or any Debt.
C. Business Termination. I merge, dissolve, reorganize, end my business or
existence, or a partner or majority owner dies or is declared legally
incompetent. D. Failure to Perform. I fail to perform any condition or to
keep any promise or covenant of this Guaranty. E. Other Documents. A
default occurs under the terms of any other document relating to the Debt.
F. Other Agreements. I am in default on any other debt or agreement I have
with you.
G. Misrepresentation. I make any verbal or written statement or provide any
financial information that is untrue, inaccurate, or conceals a material
fact at the time it is made or provided. H. Judgment. I fail to satisfy or
appeal any judgment against me.
I. Forfeiture. The Property is used in a manner or for a purpose that
threatens confiscation by a legal authority. J. Name Change. I change my
name or assume an additional name without notifying you before making such
a change. K. Property Transfer. I transfer all or a substantial part of my
money or property. L. Property Value. You determine in good faith that the
value of the Property has declined or is impaired. M. Material Change.
Without first notifying you, there is a material change in my business,
including ownership, management, and financial conditions.
N. Insecurity. You determine in good faith that a material adverse change
has occurred in my financial condition from the conditions set forth in my
most recent financial statement before the date of this Guaranty or that
the prospect for payment or performance of the Debt is impaired for any
reason.
9. WAIVERS AND CONSENT. To the extent not prohibited by law, I waive protest,
presentment for payment, demand, notice of acceleration, notice of intent to
accelerate and notice of dishonor.
A. Additional Waivers. In addition, to the extent permitted by law, I
consent to certain actions you may take, and generally waive defenses that
may be available based on these actions or based on the status of a party
to the Debt or this Guaranty.
(1) You may renew or extend payments on the Debt, regardless of the
number of such renewals or extensions. (2) You may release any
Borrower, endorser, guarantor, surety, accommodation maker or any other
co-signer. (3) You may release, substitute or impair any Property.
(4) You, or any institution participating in the Debt, may invoke your
right of set-off.
(5) You may enter into any sales, repurchases or participations of the
Debt to any person in any amounts and I waive notice of such sales,
repurchases or participations. (6) I agree that the Borrower is
authorized to modify the terms of the Debt or any instrument securing,
guarantying or relating to the Debt.
(7) You may undertake a valuation of any Property in connection with
any proceedings under the United States Bankruptcy Code concerning the
Borrower or me, regardless of any such valuation, or actual amounts
received by you arising from the sale of such Property.
(8) I agree to consent to any waiver granted the Borrower, and agree
that any delay or lack of diligence in the enforcement of the Debt, or
any failure to file a claim or otherwise protect any of the Debt, in no
way affects or impairs my liability.
(9) I agree to waive reliance on any anti-deficiency statutes, through
subrogation or otherwise, and such statutes in no way affect or impair
my liability. In addition, until the obligations of the Borrower to
Lender have been paid in full, I waive any right of subrogation,
contribution, reimbursement, indemnification, exoneration, and any
other right I may have to enforce any remedy which you now have or in
the future may have against the Borrower or another guarantor or as to
any Property.
Any Guarantor who is an "insider," as contemplated by the United States
Bankruptcy Code, 11 U.S.C. 101, as amended, makes these waivers
permanently. (An insider includes, among others, a director, officer,
partner, or other person in control of the Borrower, a person or an
entity that is a co-partner with the Borrower, an entity in which the
Borrower is a general partner, director, officer or other person in
control or a close relative of any of these other persons.) Any
Guarantor who is not an insider makes these waivers until all Debt is
fully repaid.
B. No Waiver By Lender. Your course of dealing, or your forbearance from,
or delay in, the exercise of any of your rights, remedies, privileges or
right to insist upon my strict performance of any provisions contained in
the Debt instruments, shall not be construed as a waiver by you, unless any
such waiver is in writing and is signed by you. C. Waiver of Claims. I
waive all claims for loss or damage caused by your acts or omissions where
you acted reasonably and in good faith.
10. REMEDIES. After the Borrower or I default, and after you give any legally
required notice and opportunity to cure the default, you may at your option do
any one or more of the following.
A. Acceleration. You may make all or any part of the amount owing by the
terms of this Guaranty immediately due. B. Sources. You may use any and all
remedies you have under state or federal law or in any documents relating
to the Debt. C. Insurance Benefits. You may make a claim for any and all
insurance benefits or refunds that may be available on default. D. Payments
Made on the Borrower's Behalf. Amounts advanced on the Borrower's behalf
will be immediately due and may be added to the balance owing under the
Debt.
E. Termination. You may terminate my right to obtain advances and may
refuse to make any further extensions of credit. F. Set-Off. You may use
the right of set-off. This means you may set-off any amount due and payable
under the terms of this Guaranty against any right I have to receive money
from you.
My right to receive money from you includes any deposit or share account
balance I have with you; any money owed to me on an item presented to you
or in your possession for collection or exchange; and any repurchase
agreement or other non-deposit obligation. "Any amount due and payable
under the terms of this Guaranty" means the total amount to which you are
entitled to demand payment under the terms of this Guaranty at the time you
set-off.
Subject to any other written contract, if my right to receive money from
you is also owned by someone who has not agreed to pay the Debt, your right
of set-off will apply to my interest in the obligation and to any other
amounts I could withdraw on my sole request or endorsement.
Your right of set-off does not apply to an account or other obligation
where my rights arise only in a representative capacity. It also does not
apply to any Individual Retirement Account or other tax-deferred retirement
account. You will not be liable for the dishonor of any check when the
dishonor occurs because you set-off against any of my accounts. I agree to
hold you harmless from any such claims arising as a result of your exercise
of your right of set-off. G. Waiver. Except as otherwise required by law,
by choosing any one or more of these remedies you do not give up your right
to use any other remedy. You do not waive a default if you choose not to
use a remedy. By electing not to use any remedy, you do not waive your
right to later consider the event a default and to use any remedies if the
default continues or occurs again.
11. COLLECTION EXPENSES AND ATTORNEYS' FEES. On or after Default, to the extent
permitted by law, I agree to pay all expenses of collection, enforcement or
protection of your rights and remedies under this Guaranty or any other
document relating to the Debt. To the extent permitted by law, expenses
include, but are not limited to, reasonable attorneys' fees, court costs and
other legal expenses. All fees and expenses will be secured by the Property I
have granted to you, if any. In addition, to the extent permitted by the United
States Bankruptcy Code, I agree to pay the reasonable attorneys' fees incurred
by you to protect your rights and interests in connection with any bankruptcy
proceedings initiated by or against me. 12. WARRANTIES AND REPRESENTATIONS. I
make to you the following warranties and representations which will continue as
long as this Guaranty is in effect:
A. Power. I am duly organized, and validly existing and in good standing in
all jurisdictions in which I operate. I have the power and authority to
enter into this transaction and to carry on my business or activity as it
is now being conducted and, as applicable, am qualified to do so in each
jurisdiction in which I operate.
B. Authority. The execution, delivery and performance of this Guaranty and
the obligation evidenced by this Guaranty are within my powers, have been
duly authorized, have received all necessary governmental approval, will
not violate any provision of law, or order of court or governmental agency,
and will not violate any agreement to which I am a party or to which I am
or any of my Property is subject.
C. Name and Place of Business. Other than previously disclosed in writing
to you I have not changed my name or principal place of business within the
last 10 years and have not used any other trade or fictitious name. Without
your prior written consent, I do not and will not use any other name and
will preserve my existing name, trade names and franchises.
In addition, I represent and warrant that this Guaranty was entered into at the
request of the Borrower, and that I am satisfied regarding the Borrower's
financial condition and existing indebtedness, authority to borrow and the use
and intended use of all Debt proceeds. I further represent and warrant that I
have not relied on any representations or omissions from you or any information
provided by you respecting the Borrower, the Borrower's financial condition and
existing indebtedness, the Borrower's authority to borrow or the Borrower's use
and intended use of all Debt proceeds. 13. RELIANCE. I acknowledge that you are
relying on this Guaranty in extending credit to the Borrower, and I have signed
this Guaranty to induce you to extend such credit. I represent and warrant to
you that I expect to derive substantial benefits from any loans and financial
accommodations resulting in the creation of indebtedness guarantied hereby, and
that this Guaranty is given for a business purpose.I agree to rely exclusively
on the right to revoke this Guaranty prospectively as to future transactions in
the manner as previously described in this Guaranty if at any time, in my
opinion or the opinion of the directors or officers of my business, the
benefits then being received by me in connection with this Guaranty are not
sufficient to warrant the continuance of this Guaranty. You may rely
conclusively on a continuing warranty that I continue to be benefited by this
Guaranty and you will have no duty to inquire into or confirm the receipt of
any such benefits, and this Guaranty will be effective and enforceable by you
without regard to the receipt, nature or value of any such benefits. 14.
APPLICABLE LAW. This Guaranty is governed by the laws of Michigan, the United
States of America, and to the extent required, by the laws of the jurisdiction
where the Property is located, except to the extent such state laws are
preempted by federal law.
15. AMENDMENT, INTEGRATION AND SEVERABILITY. This Guaranty may not be amended
or modified by oral agreement. No amendment or modification of this Guaranty is
effective unless made in writing and executed by you and me. This Guaranty is
the complete and final expression of the agreement. If any provision of this
Guaranty is unenforceable, then the unenforceable provision will be severed and
the remaining provisions will still be enforceable.
16. ASSIGNMENT. If you assign any of the Debts, you may assign all or any part
of this Guaranty without notice to me or my consent, and this Guaranty will
inure to the benefit of your assignee to the extent of such assignment. You
will continue to have the unimpaired right to enforce this Guaranty as to any
of the Debts that are not assigned. This Guaranty shall inure to the benefit of
and be enforceable by you and your successors and assigns and any other person
to whom you may grant an interest in the Debts and shall be binding upon and
enforceable against me and my personal representatives, successors, heirs and
assigns. 17. INTERPRETATION. Whenever used, the singular includes the plural
and the plural includes the singular. The section headings are for convenience
only and are not to be used to interpret or define the terms of this Guaranty.
18. NOTICE, FINANCIAL REPORTS AND ADDITIONAL DOCUMENTS. Unless otherwise
required by law, any notice will be given by delivering it or mailing it by
first class mail to the appropriate party's address listed in the DATE AND
PARTIES section, or to any other address designated in writing. Notice to one
Guarantor will be deemed to be notice to all Guarantors. I will inform you in
writing of any change in my name, address or other application information. I
will provide you any financial statement or information you request. All
financial statements and information I give you will be correct and complete. I
agree to sign, deliver, and file any additional documents or certifications
that you may consider necessary to perfect, continue, and preserve my
obligations under this Guaranty and to confirm your lien status on any
Property. Time is of the essence. 19. CREDIT INFORMATION. I agree that from
time to time you may obtain credit information about me from others, including
other lenders and credit reporting agencies, and report to others (such as a
credit reporting agency) your credit experience with me. I agree that you will
not be liable for any claim arising from the use of information provided to you
by others or for providing such information to others.
20. SIGNATURES. By signing under seal, I agree to the terms contained in this
Guaranty. I also acknowledge receipt of a copy of this Guaranty.
GUARANTOR:
i2 Telecom
By_________________________________ (Seal)
Xxxx Xxxxx, CEO
LENDER:
University Bank
By_________________________________ (Seal)
