EXHIBIT 10.1
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GUARANTY
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This GUARANTY dated as of February 28, 2005 (the "Guaranty"), is given by
IVOICE INC., a New Jersey corporation ("Guarantor") in favor of the CORNELL
CAPITAL PARTNERS, LP., a Delaware limited partnership (the "Lender").
Capitalized terms used herein and not otherwise defined herein shall have the
respective meanings set forth in the following documents: (1) Promissory Note by
and between IVOICE TECHNOLOGY, INC. (a "Company"), a New Jersey corporation and
the Lender; (2) the Promissory Note by and between DEEP FIELD TECHNOLOGIES,
INC., a New Jersey corporation (a "Company") and the Lender; and (3) the
Promissory Note by and between SPEECHSWITCH, INC., a New Jersey corporation (a
"Company") and the Lender, all dated as of the date hereof (as amended,
restated, supplemented or otherwise modified from time to time (collectively the
"Promissory Notes," and individually the "Promissory Note") (each Company shall
be referred to as a "Company" and collectively as the "Companies".)
WHEREAS:
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A. Each Company and the Lender wish to provide for the funding contemplated
under the Promissory Note in the amounts set forth in each respective Promissory
Note of even date herewith.
B. To induce the Lender to enter into the Promissory Notes, the Guarantor has
agreed to provide a full and unconditional guaranty of the payment and
performance obligations of each Company under each respective Promissory Note
and Security Agreement, all of even date herewith (the "Transaction Documents").
C. The Guarantor is a Delaware corporation and the Guarantor acknowledges that
without this Guaranty, the Lender would not be willing to enter into the
Promissory Notes.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
set forth herein, and for other good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, the Guarantor hereby agrees as
follows:
1. GUARANTY.
1.1 GUARANTY. The Guarantor, as direct obligor and not merely as a surety,
hereby unconditionally, absolutely, and irrevocably guarantees to the Lender (i)
the full and prompt performance and payment of all of each Company's obligations
under the Promissory Notes and the other Transaction Documents, (collectively,
the "Obligations") and (ii) if any Company should default in the payment or
performance of any of the Obligations, the Guarantor, as direct obligor and not
merely as a surety, shall forthwith pay or perform such Obligations upon five
(5) business days written notice or demand by the Lender in the manner and on
the day required by this Guaranty. In order to effectuate repayment of the
Obligations the Guarantor may take an advance or advances, as may be necessary,
from the Standby Equity Distribution Agreement by and between the Guarantor and
Cornell Capital Partners, LP, dated November 25, 2003 (the "Standby Equity
Distribution Agreement").
1.2 CONTINUING GUARANTY. The Guarantor agrees that the obligations pursuant
to this Section 1 are unconditional, absolute, and irrevocable and shall not be
released, discharged or affected in any way by any circumstances or condition,
including without limitation:
(a) any amendment or modification or other change to any of the
Transaction Documents;
(b) any failure, omission or delay on the part of any Company to
conform or comply with any term of any of the Transaction Documents;
(c) any release or discharge by operation of law of any Company or any
Guarantor from any obligation or agreement contained in any of the
Transaction Documents or this Guaranty; and
(d) any other occurrence, circumstance, happening or event, whether
similar or dissimilar to the foregoing and whether foreseen or unforeseen,
which otherwise might constitute a legal or equitable defense or discharge
of the liabilities of a guarantor or surety or which otherwise might limit
recourse against the Company or the Guarantor.
1.3 DISCHARGE. The Guarantor covenants and agrees that this Guaranty will
not be discharged, except by complete performance of the obligations contained
herein. Notwithstanding anything to the contrary herein, so long as the
outstanding principal amount of the Promissory Notes is zero or would be made
zero simultaneously with the termination hereof, the Guarantor shall have the
right to terminate this Guaranty at any time by providing written notice of such
termination to the Lender. Notwithstanding any to the contrary, this Guaranty
shall be discharged and terminated upon each of the Company's registration
statements being declared effective by the U.S Securities and Exchange
Commission.
1.4 REPRESENTATIONS AND WARRANTIES. The Guarantor hereby represents and
warrants to the Lender as follows: (a) the Guarantor has full power, right and
authority to enter into and perform his obligations under this Guaranty, and
this Guaranty has been duly executed and delivered by the Guarantor and
constitutes the valid and binding obligation of the Guarantor and is enforceable
against the Guarantor in accordance with its terms. No permits, approvals or
consents of or notifications to (a) any governmental entities, or (b) any other
persons or entities are necessary in connection with the execution, delivery and
performance by the Guarantor of this Guaranty and the consummation by the
Guarantor of the transactions contemplated hereby. Neither the execution nor
delivery of this Guaranty by the Guarantor nor the performance by it of the
transactions contemplated hereby will:
(i) violate or conflict with or result in a breach of any provision of
any law, statute, rule, regulation, order, permit, judgment, ruling, injunction,
decree or other decision (collectively, "Rules") of any court or other tribunal
or any governmental entity or agency binding on the Guarantor or his properties,
or conflict with or cause an event of default under any contract or agreement of
the Guarantor; or
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(ii) require any authorization, consent, approval, exemption or other
action by or notice to any court, administrative or governmental body, person,
entity or any other third party.
1.5 FULL RIGHTS OF SUBROGATION. The Guarantor shall be entitled to full
rights of subrogation under this Guaranty.
2. MISCELLANEOUS.
2.1 NOTICES, CONSENTS, ETC. Any notices, consents, waivers or other
communications required or permitted to be given under the terms hereof must be
in writing and will be deemed to have been delivered: (i) upon receipt, when
delivered personally; (ii) upon receipt, when sent by facsimile (provided
confirmation of transmission is mechanically or electronically generated and
kept on file by the sending party); or (iii) one (1) business day after deposit
with a nationally recognized overnight delivery service, in each case properly
addressed to the party to receive the same. The addresses and facsimile numbers
for such communications shall be:
If to Guarantor: iVoice, Inc.
000 Xxxxxxx 00
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With Copy to: Xxxxxxxx X. Xxxxx, Esquire
Meritz & Xxxxx LLP
0000 X Xxxxxx, XX
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Lender: Cornell Capital Partners, LP.
000 Xxxxxx Xxxxxx-Xxxxx 0000
Xxxxxx Xxxx, Xxx Xxxxxx 00000
Attention: Xxxx Xxxxxx
Portfolio Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or at such other address and/or facsimile number and/or to the attention of such
other person as the recipient party has specified by written notice given to
each other party three (3) trading days prior
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to the effectiveness of such change. Written confirmation of receipt (A) given
by the recipient of such notice, consent, waiver or other communication, (B)
mechanically or electronically generated by the sender's facsimile machine
containing the time, date, recipient facsimile number and an image of the first
page of such transmission or (C) provided by a nationally recognized overnight
delivery service, shall be rebuttable evidence of personal service, receipt by
facsimile or receipt from a nationally recognized overnight delivery service in
accordance with clause (i), (ii) or (iii) above, respectively.
2.2 SEVERABILITY. The unenforceability or invalidity of any provision of
this Guaranty shall not affect the enforceability or validity of any other
provision.
2.3 INDULGENCE. Failure of party to exercise any right or remedy under this
Guaranty or otherwise, or delay by a party in exercising such right or remedy,
shall not operate as a waiver thereof.
2.4 MODIFICATION. The terms of this Guaranty may be changed, waived,
discharged or terminated only by a written instrument executed by the party
against which enforcement of the change, waiver, discharge or termination is
sought.
2.5 HEADINGS. The subject headings of Articles and Sections of this
Guaranty are included for purposes of convenience only and shall not affect the
construction or interpretation of any of its provisions.
2.6 ASSIGNMENT. This Guaranty will be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted assigns, but
will not be assignable or delegable by either the Guarantor or the Lender.
2.7 ENTIRE AGREEMENT. This Guaranty (including the recitals hereto), and
the Transaction Documents set forth the entire understanding of the parties with
respect to the subject matter hereof, and shall not be modified or affected by
any offer, proposal, statement or representation, oral or written, made by or
for any party in connection with the negotiation of the terms hereof, and may be
modified only by instruments signed by all of the parties hereto.
2.8 THIRD PARTIES. Nothing herein expressed or implied is intended or shall
be construed to confer upon or give to any person or entity, other than the
stated beneficiaries of this Guaranty and their respective permitted successors
and assigns, any rights or remedies under or by reason of this Guaranty.
2.9 NO STRICT CONSTRUCTION. The language used in this Guaranty will be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any party
hereto.
2.10 EVENT OF DEFAULT. For purposes of this Guaranty, an event of default
shall be deemed to have occurred hereunder:
(a) If any Company should default in the payment or performance
of any of the
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Obligations, the Guarantor shall fail for any reason or for no reason,
to forthwith pay or perform such Obligations after notice or demand by
the Lender in the manner and on the day requested by the Lender; or
(b) if the Guarantor makes an assignment for the benefit of
creditors or admits in writing its inability to pay its debts
generally as they become due; or an order, judgment or decree is
entered adjudicating the Guarantor bankrupt or insolvent; or any order
for relief with respect to the Guarantor is entered under any
bankruptcy or insolvency laws; or the Guarantor petitions or applies
to any tribunal for the appointment of a custodian, trustee, receiver
or liquidator of the Guarantor of any substantial part of the assets
of the Guarantor, or commences any proceeding relating to the
Guarantor under any bankruptcy reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation law of
any jurisdiction; or any such petition or application is filed, or any
such proceeding is commenced, against the Guarantor.
2.11 GOVERNING LAW; JURISDICTION; JURY TRIAL. This Agreement shall be
governed by and interpreted in accordance with the laws of the State of New
Jersey without regard to the principles of conflict of laws. The parties further
agree that any action between them shall be heard in Xxxxxx County, New Jersey,
and expressly consent to the jurisdiction and venue of the Superior Court of New
Jersey, sitting in Xxxxxx County and the United States District Court for the
District of New Jersey sitting in Newark, New Jersey for the adjudication of any
civil action asserted pursuant to this Paragraph.
Each party hereby irrevocably waives personal service of process and
consents to process being served in any such suit, action or proceeding by
mailing a copy thereof to such party at the address for such notices to it under
this Guaranty and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any manner permitted by law.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be signed as
of the date first written above.
GUARANTOR:
IVOICE INC.
By: _________________________________
Name: Xxxxxx X. Xxxxxxx
Title: President and Chief Executive Officer
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