Parent Guarantee
Exhibit
103
This
Parent Guarantee, dated as of May 31,
2007, is made by Xfone, Inc. ("Guarantor"), a company incorporated under
the laws of Nevada, in favor of Embarq Logistics, Inc. (“Embarq").
I. GUARANTEE
To
induce
Embarq to execute the Settlement Agreement and Release of the same date (the
"Agreement"), and to accept the Promissory Note of the same date from Xfone
USA,
Inc., a company incorporated under the laws of Mississippi and a wholly-owned
subsidiary of Guarantor (respectively,
the "Note", "Xfone USA"), Guarantor irrevocably and unconditionally guarantees
to Embarq, its successors, endorsees and assigns, the prompt payment and/or
performance when due, subject to any applicable grace period, of the Settlement
Amount (as defined in the Agreement) and/or any other obligation of Xfone USA
to
Embarq pursuant to the Agreement and the Note (collectively, the "Obligations")
and, without limitation, Guarantor undertakes with Embarq that whenever Xfone
USA fails to pay, perform, or discharge, or is otherwise in default in respect
of any of the Obligations, Guarantor shall forthwith on demand by Embarq pay,
perform, and discharge the Obligations and make good any such default as if
Guarantor instead of Xfone USA was bound by the Obligations
("Guarantee").
II. EXTENSIONS
Guarantor
agrees that Embarq, or any legitimate holder of the Obligations (subject to
Section X of this Guarantee) may at any time and from time to time, either
before or after maturity thereof, without notice to or further consent of
Guarantor, extend the time of payment and/or performance of, exchange, or
surrender any collateral for, or renew any of the Obligations and may also
make
any agreement with Xfone USA or with any other party to or person liable on
any
of the Obligations, or interested therein, for the extension, renewal, payment,
compromise, discharge or release thereof, in whole or in part, or for any
modification of the terms thereof, in whole or in part, or of any other
agreement between Embarq and Xfone USA or any such other party or person,
without impairing or affecting this Guarantee. Guarantor agrees that Embarq
may
seek payment of any of the Obligations from Guarantor, whether or not Embarq
shall have released the value of any collateral security, or shall have
proceeded against any other obligor principally or secondarily obligated for
any
of the Obligations.
III. EXPENSES
Guarantor
agrees to pay on demand all reasonable out-of-pocket expenses (including the
reasonable fees and expenses of Embarq's counsel) incurred in connection with
any default, collection, enforcement, or protection of the rights of Embarq
hereunder, provided that Guarantor shall not be liable for any expenses of
Embarq if no payment under this Guarantee is due.
IV.
SUBROGATION, INDEMNIFICATION, AND REIMBURSEMENT
Guarantor
will not exercise any rights it may acquire by subrogation, indemnification
and/or reimbursement that it may have against Xfone USA, until all the
Obligations to Embarq have been paid in full. If any amount is paid
to Guarantor in violation of the preceding sentence, such amount shall be held
in trust for the benefit of Embarq and shall be paid forthwith to Embarq to
be
credited and applied to the Obligations, whether matured or
not. Subject to the foregoing, upon payment of all the Obligations,
Guarantor shall be subrogated to the rights of Embarq against Xfone USA,
indemnified or reimbursed, and Embarq agrees to take, at Guarantor's expense,
such steps as Guarantor may reasonably request to implement such subrogation,
indemnification, or reimbursement.
V. ABSOLUTE
AND CONTINUING GUARANTEE
This
Guarantee is absolute, unconditional, and irrevocable and shall remain in full
force and effect and be binding upon Guarantor, its successors, and permitted
assigns until all of the Obligations have been satisfied in full,
notwithstanding any intermediate settlement of account or payment or any change
in the constitution or control of, or the appointment of a receiver,
administrative receiver, or administrator of any of Xfone USA's assets,
insolvency, or any bankruptcy, winding-up, reorganization, amalgamation,
reconstruction or analogous matter or proceedings relating to Xfone
USA. Further, this Guarantee shall not be affected by any other
circumstance affecting Xfone USA's ability to meet its liabilities, or any
other
matter or thing whatsoever. Embarq shall not be obligated to file any
claim relating to the Obligations if Xfone USA becomes subject to a bankruptcy,
reorganization, or similar proceeding, and the failure of Embarq to so file
shall not affect this Guarantee. If any payment of Xfone USA on
account of any Obligation is rescinded or must otherwise be returned as a result
of any bankruptcy proceeding, or for any reason whatsoever, Guarantor shall
remain liable hereunder for such Obligation as if such payment had not been
made, and Guarantor agrees that Guarantor will indemnify Embarq on demand for
all reasonable costs and expenses (including, without limitation, fees of
counsel) incurred by Embarq in connection with such rescission or restoration
to
the extent the amount of such payment is guaranteed hereunder. If any
present or future Obligations are guaranteed by persons, partnerships, or
corporations in addition to Guarantor, the death, release, discharge in whole
or
in part, or the bankruptcy, liquidation, or dissolution of one or more of them
shall not discharge or affect the liabilities of Guarantor under this Guarantee.
This Guarantee is a guarantee of payment and not of collection.
VI. NO
WAIVER, CUMULATIVE RIGHTS
No
failure on the part of Embarq to exercise, and no delay in exercising, any
right, remedy or power hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise by Embarq of any right, remedy, or power
hereunder preclude any other or future exercise of any right, remedy, or
power. Each and every right, remedy, and power hereby granted to
Embarq or allowed it
by law or other agreement shall be cumulative and not exclusive of any other,
and may be exercised by Embarq from time to time.
VII. WAIVER
OF NOTICE
Guarantor
waives presentment to, demand
of payment, diligence, filing of claims with any court, proceeding to enforce
any provisions of this Guarantee, or to exhaust any security for the performance
of Xfone USA's Obligations, notice of any sale of collateral security, notice
of
dishonor, protest, and all other notices that may otherwise be required by
law
from anyone liable for any of the Obligations. Notwithstanding the
preceding, Embarq will notify Guarantor of any assignment of this Guaranty
in
accordance with Section X hereof; provided, however, that failure to give or
receive notice of assignment shall not impair any party’s rights or obligations
under this Guaranty.
VIII.
REPRESENTATIONS AND WARRANTIES
Guarantor
represents and warrants to Embarq the following:
● Guarantor
is duly organized, validity existing, and in good standing under the laws of
Nevada and has full corporate power to execute, deliver, and perform this
Guarantee;
● The
execution, delivery, and performance of this Guarantee has been and remains
duly
authorized by all necessary corporate action and does not contravene any
provision of Guarantor's charter or by-laws, as amended to date, or any law,
regulation, rule, decree, order, judgment, or contractual restriction binding
on
Guarantor or its assets;
● All
consents, licenses, clearances, authorizations and approvals of, and
registrations and declarations with, any governmental authority or regulatory
body necessary for the due execution, delivery and performance of this Guarantee
have been obtained and remain in full force and effect, and all conditions
thereof have been duly complied with, and no other action by, and no notice
of
or filing with any governmental authority or regulatory body is
required in connection with the execution, delivery, or performance of this
Guarantee;
● This
Guarantee constitutes the legal, valid, and binding obligation of Guarantor
enforceable against Guarantor in accordance with its terms, subject, as to
enforceability to bankruptcy, insolvency, reorganization, moratorium, and other
laws of general applicability relating to or affecting creditor's rights and
to
equitable principles of general application;
● This
Guarantee ranks at least at parity with all its other unsecured
obligations;
● No
statement made, or other information furnished and delivered, by or on behalf
of
Guarantor to Embarq, in any document furnished from time to time by or on behalf
of Guarantor in connection herewith or therewith contains any untrue statement
of a material fact or omits to state (as of the date made or furnished) any
material fact necessary to make the statements herein or therein not misleading
in light of the circumstances under which they were made.
IX. PAYMENT
All
sums
payable under this Guarantee shall be paid in full without set-off or
counterclaim and free and clear of and without deduction of or withholding
for
or on account of any present or future taxes, duties and/or other
charges. If Guarantor is compelled to make any deduction, it shall
pay additional amounts to ensure receipt by Embarq of the full amount Embarq
would have received but for the deduction.
X. ASSIGNMENT
Guarantor
may not assign its rights, interest or obligations hereunder to any other person
without the prior written consent of Embarq. Guarantor agrees that the
Obligations guaranteed hereunder may be exchanged, sold, or surrendered by
Embarq or any legitimate holder of such Obligations, all without impairing
or
affecting in any way the obligations of Guarantor hereunder.
XI. JURISDICTION,
CHOICE OF LAW, AND WAIVER OF JURY TRIAL
Guarantor
agrees, for the benefit of Embarq and without prejudice to the right of Embarq
to take proceedings before any other court of competent jurisdiction, that
the
courts of the state of Kansas, United States of America, more specifically
the
courts of Xxxxxxx County, Kansas, or a U.S. federal court located within
Wyandotte County, Kansas, have jurisdiction to settle any disputes in connection
with this Guarantee. For this purpose, Guarantor irrevocably submits
to the jurisdiction of these courts. This Guarantee shall be governed
by, and construed in accordance with, the laws of the State of Kansas,
United States of America, without giving effect to any conflicts of
laws
principles thereof which would result in the application of the laws of another
jurisdiction.
FOR
PURPOSES OF THIS GUARANTEE AND ANY RELATED DOCUMENT, GUARANTOR AND EMBARQ HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS ANY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS GUARANTEE OR ANY OTHER RELATED DOCUMENT,
OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN), OR ACTIONS OR OMISSIONS OF ANY PARTY HERETO, OR ANY OTHER PERSON,
ELATING TO THIS GUARANTEE OR ANY OTHER RELATED DOCUMENT.
XII. AMENDMENTS
Any
provision of this Guarantee may be amended or modified only by an instrument
in
writing signed by Guarantor and Embarq, and the provisions of this Guarantee
may
be waived only by an instrument in writing signed by Embarq and
Guarantor.
XIII. SEVERABILITY
If
any
provision of this Guarantee is invalid or unenforceable in any jurisdiction,
then, to the fullest extent permitted by law: (1) The other provisions hereof
shall remain in full force and effect in such jurisdiction; (2) Such invalidity
or unenforceability shall not affect the validity or enforceability of such
provision in any other jurisdiction; and (3) The parties hereto shall negotiate
in good faith to substitute therefore a provision in accordance with the spirit
and purpose of this Guarantee.
XIV.
ENGLISH LANGUAGE
All
documents to be delivered by any party hereto pursuant to the terms hereof
shall
be in the English language or, if originally written in another language, shall
be accompanied by an accurate English translation upon which the other parties
hereto shall have the right to rely for all purposes under this
Guarantee.
XV. NOTICES
All
notices concerning this Guarantee or demands on Guarantor shall be deemed made
when received, and shall be in writing and sent by facsimile transmission
("fax"), confirmed by registered mail, and addressed as follows:
To
Guarantor: Xfone, Inc.
Attn:
Xxx
Xxxxxxxxx
Fax:
000-000-0000
cc General
Counsel, Xxxx Xxxxxxx
To
Embarq:
Attn:
Xxxx Xxxxx
Fax:
(000) 000-0000
cc
VP-Commercial Law, Xxxxx Xxxxxxxxx
Each
party may amend its address for notice by giving notice hereunder to the other
party.
IN
WITNESS WHEREOF, this Guarantee has been duly executed and delivered by each
of
Guarantor and Embarq as of the date first above written.
| XFONE, INC. | |||
|
Date:
05/31/2007
|
By:
|
/s/ Xxx Xxxxxxxxx | |
| Name: Xxx Xxxxxxxxx | |||
| Title: President and CEO | |||
| EMBARQ LOGISTICS, INC. | |||
|
Date:
05/31/2007
|
By:
|
/s/ Xxxx Xxxxx | |
| Name: Xxxx Xxxxx | |||
| Title: VP, Marketing & Sales | |||
