EXHIBIT 10.43
GUARANTY
This Guaranty (this "Guaranty") is made and executed as of April 5,
2000 by EGLOBE/COAST, INC., a Delaware corporation (the "Guarantor"), in favor
of EXTL INVESTORS, LLC, a limited liability company organized under the laws of
Nevada (hereinafter called the "Investor").
WHEREAS, eGlobe Financing Corporation, a Delaware corporation ("eGlobe
Financing") and a wholly owned subsidiary of eGlobe, Inc., a Delaware
corporation (the "Parent"), IDX Financing Corporation, a Delaware corporation
and a wholly owned subsidiary of IDX International, Inc., a wholly owned
subsidiary of the Parent ("IDX Financing"), and Telekey Financing Corporation, a
Delaware corporation and a wholly owned subsidiary of Telekey, Inc., a wholly
owned subsidiary of the Parent ("Telekey Financing" and together with eGlobe
Financing and IDX Financing, the "Borrower"), issued and sold to the Investor as
of June 30, 1999, and the Investor purchased from the Borrower, the Borrower's
5% Secured Notes (the "Secured Notes") and the Borrower executed and delivered a
revolving note based on the balance of accounts receivable (the "A/R Note" and
collectively with the Secured Notes, the "Notes"), pursuant to the terms and
conditions of the Loan and Note Purchase Agreement dated April 9, 1999 by and
among eGlobe Financing, the Parent, and the Investor, as amended by a letter
agreement dated June 16, 1999, Amendment No. 1 to the Loan and Note Purchase
Agreement dated as of June 30, 1999 and Amendment No. 2 to the Loan and Note
Purchase Agreement dated as of the date hereof (as amended, the "Loan and Note
Purchase Agreement"); and
WHEREAS, on December 2, 1999, Coast International, Inc. ("Coast")
merged with and into the Guarantor pursuant to the terms of an Agreement and
Plan of Merger dated November 29, 1999 among Parent, the Guarantor, Coast and
the stockholders of Coast, as a result of which the Guarantor was the surviving
company and remained a wholly owned subsidiary of Parent (the "Coast Merger");
WHEREAS, in connection with the Investor's waiver of its right under
the Loan and Note Purchase Agreement to cause the Parent to convey to one of the
Financing Companies the assets acquired in the Coast Merger, the Investor
desires to obtain from the Guarantor and the Guarantor desires to provide to the
Investor the guaranty more fully set forth below;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor hereby agrees as follows:
1. The Guarantor hereby unconditionally guarantees to the Investor the
due, timely and full payment and satisfaction by the Borrower of all its
obligations that arise under the Loan and Note Purchase Agreement and the Notes
on or after the date hereof, including, without limitation, payment in full,
when due, of the indebtedness evidenced by the Notes and the due, timely and
complete performance by the Borrower of all of its other agreements, terms and
covenants under the Loan and Note Purchase Agreement and the Notes, provided
that a violation of such other agreements, terms and covenants would constitute
an Event of Default under the Loan and Note Purchase Agreement or the applicable
Note (collectively, the "Guaranteed Obligations"). The obligations of the
Guarantor hereunder are absolute and unconditional and this Guaranty is a
continuing guaranty of payment and performance by the Borrower which will not
terminate until the Guaranteed Obligations shall have been paid and performed in
full.
2. The Investor may, at the Investor's option, proceed to enforce this
Guaranty directly against the Guarantor without first proceeding against the
Borrower or any other person liable for payment or performance under the Loan
and Note Purchase Agreement, the Secured Notes, the A/R Note or this Guaranty
and without first proceeding against or exhausting any collateral now or
hereafter held by the Investor to secure payment or performance under the Loan
and Note Purchase Agreement, the Secured Notes, the A/R Note or the Security
Agreement securing this Guaranty (the "Security Agreement").
3. The Guarantor waives diligence, presentment, protest, notice of
dishonor, demand for payment, notice of nonpayment or nonperformance, notice of
acceptance of this Guaranty, notice of intention to accelerate, notice of
acceleration, and all other notices of any nature in connection with the
exercise of the Investor's rights under the Loan and Note Purchase Agreement,
the Secured Notes, the A/R Note, the Security Agreement or this Guaranty.
Performance by the Guarantor hereunder will not entitle the Guarantor to any
payment by the Borrower under any claim for contribution, indemnification,
subrogation or otherwise, and the Guarantor hereby irrevocably waives and
relinquishes any and all rights to recover from the Borrower, whether by way of
subrogation, reimbursement, indemnity, contribution, or otherwise, any amounts
paid by the Guarantor under this Guaranty until such time as the Guaranteed
Obligations have been paid and performed in full.
4. The Guarantor hereby consents and agrees that renewals and
extensions of time of payment, surrender, release, exchange, substitution,
dealing with or taking of additional collateral security, taking or release of
other guarantees, abstaining from taking advantage of or realizing upon any
collateral security or other guarantees and any and all other forbearances or
indulgences granted by the Investor to the Borrower or any other party may be
made, granted and effected by the Investor without notice to the Guarantor and
without in any manner affecting the Guarantor's liability hereunder.
5. Nothing herein contained will limit the Investor in exercising any
rights held under the Loan and Note Purchase Agreement, the Secured Notes,
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the A/R Note or the Security Agreement. In the event of any default under the
Loan and Note Purchase Agreement, the Secured Notes, the A/R Note, the Security
Agreement or this Guaranty, the Investor will be entitled selectively and
successively to enforce any one or more of the rights held by the Investor
hereunder or thereunder and such action will not be deemed a waiver of any other
right held by the Investor. All of the remedies of the Investor under this
Guaranty, the Loan and Note Purchase Agreement, the Secured Notes, the A/R Note
and the Security Agreement are cumulative and not alternative. If the Investor
elects to foreclose any lien created by the Loan and Note Purchase Agreement,
the Secured Notes, the A/R Note or the Security Agreement, the Investor is
authorized to purchase for the Investor's account all or any part of the
collateral covered by such lien at public or private sale.
6. In the event that a petition in bankruptcy for an arrangement or
reorganization of the Borrower under any bankruptcy law or for the appointment
of a receiver for the Borrower or any of its property is filed by the Borrower,
or if the Borrower shall make an assignment for the benefit of creditors or
shall become insolvent, all indebtedness of the Borrower shall, for the purpose
of this Guaranty, be deemed at the Investor's election to have become
immediately due and payable.
7. The Guarantor further agrees to pay the Investor any and all costs,
expenses and reasonable attorneys' fees paid or incurred by the Investor in
enforcing or endeavoring to enforce this Guaranty.
8. If any provision of this Guaranty is held to be invalid, illegal or
unenforceable in any respect for any reason, such invalidity, illegality or
unenforceability will not affect any other provisions herein contained and such
other provisions will remain in full force and effect. This Guaranty will be
binding on the Guarantor and all successors and assigns of the Guarantor and
will inure to the benefit of the Investor and all successors and assigns of the
Investor. The Guarantor consents to the assignment of all or any portion of the
rights of the Investor hereunder in connection with any assignment of the rights
of the Investor under the Loan and Note Purchase Agreement, without notice to
the Guarantor.
9. If any payment or thing of value should be received and accepted by
the Investor in payment of any indebtedness or obligation of the Borrower under
the Loan and Note Purchase Agreement or any Note and it should subsequently be
determined or adjudged that such payment be void or voidable under any law or
statute now or hereafter in effect, the receipt of such payment by the Investor
shall, as to the Guarantor, be deemed a provisional receipt and if any such
payment should be avoided or set aside under any such law or statute the
Guarantor shall be and remain liable to the Investor in respect thereof as if
such payment had not been received by the Investor, notwithstanding any release
or discharge of this Guaranty issued or granted by the Investor in the belief or
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assumption that its receipt of such payment was absolute and not subject to any
avoidance or set aside.
10. The terms "the Guarantor" and "the Borrower" and any pronouns
referring thereto as used herein shall be construed in the masculine, feminine,
neuter, singular or plural as the context may require.
11. This Agreement may not be amended except by an instrument in
writing signed by the parties hereto.
12. All corporate law matters arising under this Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware,
and all other matters arising under this Agreement shall be governed by and
construed in accordance with the laws of the State of Texas, in each case
regardless of the laws that might otherwise govern under applicable principles
of conflicts of law. Each of the parties consents to the jurisdiction of the
federal courts whose districts encompass any part of the State of Texas or the
state courts of the State of Texas in connection with any dispute arising under
this Agreement and hereby waives, to the maximum extent permitted by law, any
objection, including any objection based on forum non conveniens, to the
bringing of any such proceeding in such jurisdictions.
13. This Agreement may be executed and delivered in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed and delivered shall be deemed to be an original but all
of which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed as of the day and year first above written.
EGLOBE/COAST, INC.
By:
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Title:
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Address: 00000 X. 00xx Xxxxxx
Xxxxxx, Xxxxxx 00000
AGREED AND ACKNOWLEDGED:
EXTL INVESTORS, LLC
By:
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Title:
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Address: 000 Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
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