SUBSIDIARY GUARANTY
Exhibit
10.55
FOR
VALUE
RECEIVED, and in consideration of note purchases from, or credit otherwise
extended or to be extended by Laurus Master Fund, Ltd. (“Laurus”) to or for the
account of XFONE, INC., a Nevada corporation (the “Debtor”) from time to time
and at any time and for other good and valuable consideration and to induce
Xxxxxx, in its discretion, to purchase such notes or make other extensions
of
credit and to make or grant such renewals, extensions, releases of collateral
or
relinquishments of legal rights as Laurus may deem advisable, each of the
undersigned (and each of them if more than one, the liability under this
Guaranty being joint and several) (jointly and severally referred to as
“Guarantors” or “the undersigned”) unconditionally guaranties to Laurus, its
successors, endorsees and assigns the prompt payment when due (whether by
acceleration or otherwise) of all present and future obligations and liabilities
of any and all kinds of the Debtor to Laurus and of all instruments of any
nature evidencing or relating to any such obligations and liabilities upon
which
the Debtor or one or more parties and the Debtor is or may become liable
to
Laurus, whether incurred by the Debtor as maker, endorser, drawer, acceptor,
guarantors, accommodation party or otherwise, and whether due or to become
due,
secured or unsecured, absolute or contingent, joint or several, and however
or
whenever acquired by Laurus, whether arising under, out of, or in connection
with (i) that certain Securities Purchase Agreement dated as of the date
hereof
by and between the Debtor and Laurus (the “Securities Purchase Agreement”) and
(ii) each Related Agreement referred to in the Securities Purchase Agreement
(the Securities Purchase Agreement and each Related Agreement, as each may
be
amended, modified, restated and/or supplemented from time to time, are
collectively referred to herein as the “Documents”), or any documents,
instruments or agreements relating to or executed in connection with the
Documents or any documents, instruments or agreements referred to therein
or
otherwise, or any other obligations or liabilities of the Debtor to Laurus,
whether now existing or hereafter arising, direct or indirect, liquidated
or
unliquidated, absolute or contingent, due or not due and whether under, pursuant
to or evidenced by a note, agreement, guaranty, instrument or otherwise (all
of
which are herein collectively referred to as the “Obligations”), and
irrespective of the genuineness, validity, regularity or enforceability of
such
Obligations, or of any instrument evidencing any of the Obligations or of
any
collateral therefor or of the existence or extent of such collateral, and
irrespective of the allowability, allowance or disallowance of any or all
of the
Obligations in any case commenced by or against the Debtor under Title 11,
United States Code, including, without limitation, obligations or indebtedness
of the Debtor for post-petition interest, fees, costs and charges that would
have accrued or been added to the Obligations but for the commencement of
such
case. Terms not otherwise defined herein shall have the meaning assigned
such
terms in the Securities Purchase Agreement. In furtherance of the foregoing,
the
undersigned xxxxxx agrees as follows:
1. No
Impairment.
Laurus
may at any time and from time to time, either before or after the maturity
thereof, without notice to or further consent of the undersigned, extend
the
time of payment of, exchange or surrender any collateral for, renew or extend
any of the Obligations or increase or decrease the interest rate thereon,
or any
other agreement with the Debtor 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 or of any agreement between Laurus
and the
Debtor or any such other party or person, or make any election of rights
Xxxxxx
may deem desirable under the United States Bankruptcy Code, as amended, or
any
other federal or state bankruptcy, reorganization, moratorium or insolvency
law
relating to or affecting the enforcement of creditors’ rights generally (any of
the foregoing, an “Insolvency Law”) without in any way impairing or affecting
this Guaranty. This Guaranty shall be effective regardless of the subsequent
incorporation, merger or consolidation of the Debtor, or any change in the
composition, nature, personnel or location of the Debtor and shall extend
to any
successor entity to the Debtor, including a debtor in possession or the like
under any Insolvency Law.
2. Guaranty
Absolute.
Subject
to Section 5(c) hereof, each of the undersigned jointly and severally guarantees
that the Obligations will be paid strictly in accordance with the terms of
the
Documents and/or any other document, instrument or agreement creating or
evidencing the Obligations, regardless of any law, regulation or order now
or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Debtor with respect thereto. Guarantors hereby knowingly accept
the full range of risk encompassed within a contract of “continuing guaranty”
which risk includes the possibility that a Debtor will contract additional
obligations and liabilities for which Guarantors may be liable hereunder
after
the Debtor’s financial condition or ability to pay its lawful debts when they
fall due has deteriorated, whether or not the Debtor has properly authorized
incurring such additional obligations and liabilities. The undersigned
acknowledge that (i) no oral representations, including any representations
to
extend credit or provide other financial accommodations to the Debtor, have
been
made by Xxxxxx to induce the undersigned to enter into this Guaranty and
(ii)
any extension of credit to the Debtor shall be governed solely by the provisions
of the Documents. The liability of each of the undersigned under this Guaranty
shall be absolute and unconditional, in accordance with its terms, and shall
remain in full force and effect without regard to, and shall not be released,
suspended, discharged, terminated or otherwise affected by, any circumstance
or
occurrence whatsoever, including, without limitation: (a) any waiver,
indulgence, renewal, extension, amendment or modification of or addition,
consent or supplement to or deletion from or any other action or inaction
under
or in respect of the Documents or any other instruments or agreements relating
to the Obligations or any assignment or transfer of any thereof, (b) any
lack of
validity or enforceability of any Document or other documents, instruments
or
agreements relating to the Obligations or any assignment or transfer of any
thereof, (c) any furnishing of any additional security to Laurus or its
assignees or any acceptance thereof or any release of any security by Laurus
or
its assignees, (d) any limitation on any party’s liability or obligation under
the Documents or any other documents, instruments or agreements relating
to the
Obligations or any assignment or transfer of any thereof or any invalidity
or
unenforceability, in whole or in part, of any such document, instrument or
agreement or any term thereof, (e) any bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation or other like proceeding
relating to the Debtor, or any action taken with respect to this Guaranty
by any
trustee or receiver, or by any court, in any such proceeding, whether or
not the
undersigned shall have notice or knowledge of any of the foregoing, (f) any
exchange, release or nonperfection of any collateral, or any release, or
amendment or waiver of or consent to departure from any guaranty or security,
for all or any of the Obligations or (g) any other circumstance which might
otherwise constitute a defense available to, or a discharge of, the undersigned.
Any amounts due from the undersigned to Laurus shall bear interest until
such
amounts are paid in full at the highest rate then applicable to the Obligations.
Obligations include post-petition interest whether or not allowed or
allowable.
3. Waivers.
(a) This
Guaranty is a guaranty of payment and not of collection. Laurus shall be
under
no obligation to institute suit, exercise rights or remedies or take any
other
action against the Debtor or any other person or entity liable with respect
to
any of the Obligations or resort to any collateral security held by it to
secure
any of the Obligations as a condition precedent to the undersigned being
obligated to perform as agreed herein and each of the Guarantors hereby waives
any and all rights which it may have by statute or otherwise which would
require
Laurus to do any of the foregoing. Each of the Guarantors further consents
and
agrees that Xxxxxx shall be under no obligation to marshal any assets in
favor
of Guarantors, or against or in payment of any or all of the Obligations.
Each
of the undersigned hereby waives all suretyship defenses and any rights to
interpose any defense, counterclaim or offset of any nature and description
which the undersigned may have or which may exist between and among Laurus,
the
Debtor and/or the undersigned with respect to the undersigned’s obligations
under this Guaranty, or which the Debtor may assert on the underlying debt,
including but not limited to failure of consideration, breach of warranty,
fraud, payment (other than cash payment in full of the Obligations), statute
of
frauds, bankruptcy, infancy, statute of limitations, accord and satisfaction,
and usury.
(b) Each
of
the undersigned further waives (i) notice of the acceptance of this Guaranty,
of
the extensions of credit, and of all notices and demands of any kind to which
the undersigned may be entitled, including, without limitation, notice of
adverse change in the Debtor’s financial condition or of any other fact which
might materially increase the risk of the undersigned and (ii) presentment
to or
demand of payment from anyone whomsoever liable upon any of the Obligations,
protest, notices of presentment, non-payment or protest and notice of any
sale
of collateral security or any default of any sort.
(c) Notwithstanding
any payment or payments made by the undersigned hereunder, or any setoff
or
application of funds of the undersigned by Xxxxxx, the undersigned shall
not be
entitled to be subrogated to any of the rights of Xxxxxx against the Debtor
or
against any collateral or guarantee or right of offset held by Xxxxxx for
the
payment of the Obligations, nor shall the undersigned seek or be entitled
to
seek any contribution or reimbursement from the Debtor in respect of payments
made by the undersigned hereunder, until all amounts owing to Laurus by the
Debtor on account of the Obligations are indefeasibly paid in full and Laurus’
obligation to extend credit pursuant to the Documents has been irrevocably
terminated. If, notwithstanding the foregoing, any amount shall be paid to
the
undersigned on account of such subrogation rights at any time when all of
the
Obligations shall not have been paid in full and Laurus’ obligation to extend
credit pursuant to the Documents shall not have been terminated, such amount
shall be held by the undersigned in trust for Laurus, segregated from other
funds of the undersigned, and shall forthwith upon, and in any event within
two
(2) business days of, receipt by the undersigned, be turned over to Laurus
in
the exact form received by the undersigned (duly endorsed by the undersigned
to
Laurus, if required), to be applied against the Obligations, whether matured
or
unmatured, in such order as Laurus may determine, subject to the provisions
of
the Documents. Any and all present and future obligations and liabilities
of the
Debtor to any of the undersigned are hereby waived and postponed in favor
of,
and subordinated to the full payment and performance of, all Obligations
of the
Debtor to Laurus.
4. Security.
All
sums at any time to the credit of the undersigned and any property of the
undersigned in Laurus’ possession or in the possession of any bank, financial
institution or other entity that directly or indirectly, through one or more
intermediaries, controls or is controlled by, or is under common control
with,
Laurus (each such entity, an “Affiliate”) shall be deemed held by Laurus or such
Affiliate, as the case may be, as security for any and all of the undersigned’s
obligations and liabilities to Laurus and to any Affiliate of Laurus, no
matter
how or when arising and whether under this or any other instrument, agreement
or
otherwise.
5. Representations
and Warranties.
Each of
the undersigned hereby jointly and severally represents and warrants (all
of
which representations and warranties shall survive until all Obligations
are
indefeasibly satisfied in full and the Documents, except for the Warrants,
have
been irrevocably terminated), that:
(a) Corporate
Status.
It is a
corporation, partnership or limited liability company, as the case may be,
duly
formed, validly existing and in good standing under the laws of its jurisdiction
of formation indicated on the signature page hereof and has full power,
authority and legal right to own its property and assets and to transact
the
business in which it is engaged.
(b) Authority
and Execution.
It has
full power, authority and legal right to execute and deliver, and to perform
its
obligations under, this Guaranty and has taken all necessary corporate,
partnership or limited liability company, as the case may be, action to
authorize the execution, delivery and performance of this Guaranty.
(c) Legal,
Xxxxx and Binding Character.
This
Guaranty constitutes its legal, valid and binding obligation enforceable
in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application affecting the enforcement of creditor’s rights and general
principles of equity that restrict the availability of equitable or legal
remedies.
(d) Violations.
The
execution, delivery and performance of this Guaranty will not violate any
requirement of law applicable to it or any contract, agreement or instrument
to
which it is a party or by which it or any of its property is bound or result
in
the creation or imposition of any mortgage, lien or other encumbrance other
than
in favor of Xxxxxx on any of its property or assets pursuant to the provisions
of any of the foregoing, which, in any of the foregoing cases, could reasonably
be expected to have, either individually or in the aggregate, a Material
Adverse
Effect.
(e) Consents
or Approvals.
No
consent of any other person or entity (including, without limitation, any
creditor of the undersigned) and no consent, license, permit, approval or
authorization of, exemption by, notice or report to, or registration, filing
or
declaration with, any governmental authority is required in connection with
the
execution, delivery, performance, validity or enforceability of this Guaranty
by
it, except to the extent that the failure to obtain any of the foregoing
could
not reasonably be expected to have, either individually or in the aggregate,
a
Material Adverse Effect.
(f) Litigation.
No
litigation, arbitration, investigation or administrative proceeding of or
before
any court, arbitrator or governmental authority, bureau or agency is currently
pending or, to the best of its knowledge, threatened (i) with respect to
this
Guaranty or any of the transactions contemplated by this Guaranty or (ii)
against or affecting it, or any of its property or assets, which, in each
of the
foregoing cases, if adversely determined, could reasonably be expected to
have a
Material Adverse Effect.
(g) Financial
Benefit.
It has
derived or expects to derive a financial or other advantage from each and
every
loan, advance or extension of credit made under the Documents or other
Obligation incurred by the Debtor and/or the undersigned to Laurus.
(h) Solvency.
As of
the date of this Guaranty, (a) the fair saleable value of its assets exceeds
its
liabilities and (b) it is meeting its current liabilities as they
mature.
6. Acceleration.
(a) If
any
material breach of any covenant or condition or event of default shall occur
and
be continuing under any agreement made by the Debtor or any of the undersigned
to Laurus, or either of the Debtor or any of the undersigned should at any
time
become insolvent, or make a general assignment, or if a proceeding in or
under
any Insolvency Law shall be filed or commenced by, or in respect of, any
of the
undersigned, or if a notice of any lien, levy, or assessment, other than
in such
amounts as permitted in the Securities Purchase Agreement, is filed of record
with respect to any assets of any of the undersigned by the United States
of
America or any department, agency, or instrumentality thereof, or if any
taxes
or debts owing at any time or times hereafter to any one of them becomes
a lien
or encumbrance upon any assets of the undersigned in Laurus’ possession, or
otherwise, any and all Obligations shall for purposes hereof, at Laurus’ option,
be deemed due and payable without notice notwithstanding that any such
Obligation is not then due and payable by the Debtor and/or the
undersigned.
(b) Each
of
the undersigned will promptly notify Laurus of any default by such undersigned
in its respective performance or observance of any term or condition of any
agreement to which the undersigned is a party if the effect of such default
is
to cause, or permit the holder of any obligation under such agreement to
cause,
such obligation to become due prior to its stated maturity and, if such an
event
occurs, Xxxxxx shall have the right to accelerate such undersigned’s obligations
hereunder.
7. Payments
from Guarantors.
Laurus,
in its sole and absolute discretion, with or without notice to the undersigned,
may apply on account of the Obligations any payment from the undersigned
or any
other guarantors, or amounts realized from any security for the Obligations,
or
may deposit any and all such amounts realized in a non-interest bearing cash
collateral deposit account to be maintained as security for the
Obligations.
8. Costs.
The
undersigned shall pay on demand, all costs, fees and expenses (including
reasonable expenses for legal services of every kind) relating or incidental
to
the enforcement or protection of the rights of Laurus hereunder or under
any of
the Obligations.
9. No
Termination.
This is
a continuing irrevocable guaranty and shall remain in full force and effect
and
be binding upon the undersigned, and each of the undersigned’s successors and
assigns, until all of the Obligations have been indefeasibly paid in full
and
Laurus’ obligation to extend credit pursuant to the Documents has been
irrevocably terminated. If any of the present or future Obligations are
guarantied by persons, partnerships, corporations or other entities in addition
to the undersigned, the death, release or discharge in whole or in part or
the
bankruptcy, merger, consolidation, incorporation, liquidation or dissolution
of
one or more of them shall not discharge or affect the liabilities of any
undersigned under this Guaranty.
10. Recapture.
Anything in this Guaranty to the contrary notwithstanding, if Xxxxxx receives
any payment or payments on account of the liabilities guaranteed hereby,
which
payment or payments or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside and/or required to be repaid
to a
trustee, receiver, or any other party under any Insolvency Law, common law
or
equitable doctrine, then to the extent of any sum not finally retained by
Xxxxxx, the undersigned’s obligations to Xxxxxx shall be reinstated and this
Guaranty shall remain in full force and effect (or be reinstated) until payment
shall have been made to Laurus, which payment shall be due on
demand.
11. Books
and Records.
The
books and records of Xxxxxx showing the account between Xxxxxx and the Debtor
shall be admissible in evidence in any action or proceeding, shall be binding
upon the undersigned for the purpose of establishing the items therein set
forth
and shall constitute prima facie proof thereof.
12. No
Waiver.
No
failure on the part of Laurus 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 Xxxxxx of any right, remedy or power hereunder
preclude any other or future exercise of any other legal right, remedy or
power.
Each and every right, remedy and power hereby granted to Laurus or allowed
it by
law or other agreement shall be cumulative and not exclusive of any other,
and
may be exercised by Xxxxxx at any time and from time to time.
13. Waiver
of Jury Trial.
EACH OF
THE UNDERSIGNED DESIRES THAT ITS DISPUTES BE RESOLVED BY A JUDGE APPLYING
SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS
OF
THE JUDICIAL SYSTEM AND OF ARBITRATION, EACH OF THE UNDERSIGNED HERETO WAIVES
ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO
RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE BETWEEN
LAURUS, AND/OR ANY OF THE UNDERSIGNED ARISING OUT OF, CONNECTED WITH, RELATED
OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH
THIS
GUARANTY, ANY DOCUMENT OR THE TRANSACTIONS RELATED HERETO OR THERETO.
14. Governing
Law; Jurisdiction.
THIS
GUARANTY CANNOT BE CHANGED OR TERMINATED ORALLY, AND SHALL BE GOVERNED BY
AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD
TO
PRINCIPLES OF CONFLICTS OF LAWS. EACH OF THE UNDERSIGNED HEREBY CONSENTS
AND
AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK,
STATE
OF NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS
OR DISPUTES BETWEEN ANY OF THE UNDERSIGNED, ON THE ONE HAND, AND LAURUS,
ON THE
OTHER HAND, PERTAINING TO THIS GUARANTY OR ANY OF THE DOCUMENTS OR TO ANY
MATTER
ARISING OUT OF OR RELATED TO THIS GUARANTY OR ANY OF THE DOCUMENTS; PROVIDED,
THAT
EACH OF THE UNDERSIGNED ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY
HAVE
TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE COUNTY OF NEW YORK, STATE OF
NEW
YORK; AND FURTHER PROVIDED,
THAT
NOTHING IN THIS GUARANTY SHALL BE DEEMED OR OPERATE TO PRECLUDE LAURUS FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO COLLECT
THE OBLIGATIONS, TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF LAURUS.
EACH OF THE UNDERSIGNED EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH
UNDERSIGNED HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK
OF
PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM
NON CONVENIENS.
EACH OF
THE UNDERSIGNED HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT
AND
OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF
SUCH
SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL
ADDRESSED TO SUCH UNDERSIGNED IN ACCORDANCE WITH SECTION 18 AND THAT SERVICE
SO
MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH UNDERSIGNED’S ACTUAL
RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER
POSTAGE PREPAID.
15. Understanding
With Respect to Waivers and Consents.
Each
Guarantor warrants and agrees that each of the waivers and consents set forth
in
this Guaranty is made voluntarily and unconditionally after consultation
with
outside legal counsel and with full knowledge of its significance and
consequences, with the understanding that events giving rise to any defense
or
right waived may diminish, destroy or otherwise adversely affect rights which
such Guarantor otherwise may have against the Debtor, Laurus or any other
person
or entity or against any collateral. If, notwithstanding the intent of the
parties that the terms of this Guaranty shall control in any and all
circumstances, any such waivers or consents are determined to be unenforceable
under applicable law, such waivers and consents shall be effective to the
maximum extent permitted by law.
16. Severability.
To the
extent permitted by applicable law, any provision of this Guaranty which
is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
17. Amendments,
Waivers.
No
amendment or waiver of any provision of this Guaranty nor consent to any
departure by the undersigned therefrom shall in any event be effective unless
the same shall be in writing executed by each of the undersigned directly
affected by such amendment and/or waiver and Xxxxxx.
18. Notice.
All
notices, requests and demands to or upon the undersigned, shall be in writing
and shall be deemed to have been duly given or made (a) when delivered, if
by
hand, (b) three (3) business days after being sent, postage prepaid,
if by
registered or certified mail, (c) when confirmed electronically, if by
facsimile, or (d) when delivered, if by a recognized overnight delivery service
in each event, to the numbers and/or address set forth beneath the signature
of
the undersigned.
19. Successors.
Laurus
may, from time to time, with notice to the undersigned, sell, assign, transfer
or otherwise dispose of all or any part of the Obligations and/or rights
under
this Guaranty. Without limiting the generality of the foregoing, Xxxxxx may
assign, or grant participations to, one or more banks, financial institutions
or
other entities all or any part of any of the Obligations, but in no event
shall
any assignment hereunder be made to a direct competitor of the Debtor or
the
undersigned. In each such event, Laurus, its Affiliates and each and every
immediate and successive purchaser, assignee, transferee or holder of all
or any
part of the Obligations shall have the right to enforce this Guaranty, by
legal
action or otherwise, for its own benefit as fully as if such purchaser,
assignee, transferee or holder were herein by name specifically given such
right. Laurus shall have an unimpaired right to enforce this Guaranty for
its
benefit with respect to that portion of the Obligations which Xxxxxx has
not
disposed of, sold, assigned, or otherwise transferred.
20. Joinder.
It is
understood and agreed that any person or entity that desires to become a
Guarantor hereunder, or is required to execute a counterpart of this Guaranty
after the date hereof pursuant to the requirements of any Document, shall
become
a Guarantor hereunder by (x) executing a joinder agreement in form and substance
satisfactory to Laurus, (y) delivering supplements to such exhibits
and
annexes to such Documents as Laurus shall reasonably request and/or as may
be
required by such joinder agreement and (z) taking all actions as specified
in
this Guaranty as would have been taken by such Guarantor had it been an original
party to this Guaranty, in each case with all documents required above to
be
delivered to Laurus and with all documents and actions required above to
be
taken to the reasonable satisfaction of Xxxxxx.
21. Release.
Nothing
except indefeasible payment in full of the Obligations shall release any
of the
undersigned from liability under this Guaranty.
22. Remedies
Not Exclusive.
The
remedies conferred upon Xxxxxx in this Guaranty are intended to be in addition
to, and not in limitation of any other remedy or remedies available to Laurus
under applicable law or otherwise.
23. Limitation
of Obligations under this Guaranty.
Each
Guarantor and Laurus (by its acceptance of the benefits of this Guaranty)
hereby
confirms that it is its intention that this Guaranty not constitute a fraudulent
transfer or conveyance for purposes of the Bankruptcy Code, the Uniform
Fraudulent Conveyance Act of any similar Federal or state law. To effectuate
the
foregoing intention, each Guarantor and Laurus (by its acceptance of the
benefits of this Guaranty) hereby irrevocably agrees that the Obligations
guaranteed by such Guarantor shall be limited to such amount as will, after
giving effect to such maximum amount and all other (contingent or otherwise)
liabilities of such Guarantor that are relevant under such laws and after
giving
effect to any rights to contribution pursuant to any agreement providing
for an
equitable contribution among such Guarantor and the other Guarantors (including
this Guaranty), result in the Obligations of such Guarantor under this Guaranty
in respect of such maximum amount not constituting a fraudulent transfer
or
conveyance.
[REMAINDER
OF THIS PAGE IS BLANK.
SIGNATURE
PAGE IMMEDIATELY FOLLOWS]
IN
WITNESS WHEREOF, this Guaranty has been executed by the undersigned as of
the
date and year here above written.
XFONE
USA, INC.
By:
____________________
Name:
Xxxx Xxxxxxx
Title:
President & CEO
Address:
0000 Xxxxxxxx Xxxxx Xxxxx 000
Jackson,
Mississippi 39232
EXPETEL
COMMUNICATIONS, INC.
By:
____________________
Name:
Xxxx Xxxxxxx
Title:
President & CEO
Address:
0000 Xxxxxxxx Xxxxx Xxxxx 000
Jackson,
Mississippi 39232
GULF
COAST UTILITIES, INC.
By:
____________________
Name:
Xxxx Xxxxxxx
Title:
President & CEO
Address:
0000 Xxxxxxxx Xxxxx Xxxxx 000
Jackson,
Mississippi 39232
