EXHIBIT 10.7
GUARANTY AGREEMENT
1. Identification.
This Guaranty Agreement (the "Guaranty"), dated as of July 5, 2005, is
entered into by and between Voipsolutions, a Florida corporation, eGlobalphone,
a Florida corporation, Caerus, Inc., a Delaware corporation, Vox Consulting
Group, Inc. d/b/a Voipamericas, a Florida corporation, VCG Technologies d/b/a
DTNet Technologies, Inc., a Florida corporation, Volo Communications, Inc., a
Delaware corporation, Caerus Billing, Inc., a Delaware corporation, Caerus
Networks, Inc., a Delaware corporation, VoiceOne Communications, LLC, a Delaware
Limited Liability corporation (each referred to as "Guarantor" and collectively
"Guarantors" herein) and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, as collateral agent acting in the
manner and to the extent described in the Collateral Agent Agreement defined
below (the "Collateral Agent"), for the benefit of the parties identified on
Schedule A hereto (each a "Lender" and collectively, the "Lenders").
2. Recitals.
2.1. Guarantors are direct or indirect wholly-owned subsidiary of VoIP,
Inc., a Texas corporation ("VoIP"). The Lenders have made and are making loans
to VoIP (the "Loans"). Guarantor will obtain substantial benefit from the
proceeds of the Loans.
2.2. The Loans are and will be evidenced by certain convertible promissory
notes (each a "Convertible Note" and collectively, the "Convertible Notes")
issued by VoIP on or about the date of this Agreement pursuant to subscription
agreements ("Subscription Agreements"). The Convertible Notes are further
identified on Schedule A hereto and were and will be executed by VoIP as
"Borrower" or "Debtor" for the benefit of each Lender as the "Holder" or
"Lender" thereof.
2.3. In consideration of the Loans made by Lenders to VoIP and for other
good and valuable consideration, and as security for the performance by VoIP of
its obligations under the Convertible Notes and as security for the repayment of
the Loans and all other sums due from Debtor to Lenders arising under the
Convertible Notes, Subscription Agreements, Collateral Agent Agreement and any
other agreement between or among them relating to the foregoing (collectively,
the "Obligations"), Guarantor, for good and valuable consideration, receipt of
which is acknowledged, has agreed to enter into this Agreement with the
Collateral Agent, for the benefit of the Lenders. Obligations include all future
advances by Lenders to VoIP made by all Lenders on substantially the same terms
and in proportion to their interests in the Obligations.
2.4. The Lenders have appointed ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as Collateral Agent
pursuant to that certain Collateral Agent Agreement dated at or about July 5,
2005 ("Collateral Agent Agreement"), among the Lenders and Collateral Agent.
3. Guaranty.
3.1. Guaranty. Guarantors hereby unconditionally and irrevocably guarantee
jointly and severally the punctual payment, performance and observance when due,
whether at stated maturity, by acceleration or otherwise, of all of the
Obligations now or hereafter existing, whether for principal, interest
(including, without limitation, all interest that accrues after the commencement
of any insolvency, bankruptcy or reorganization of VoIP, whether or not
constituting an allowed claim in such proceeding), fees, commissions, expense
reimbursements, liquidated damages, indemnifications or otherwise (such
obligations, to the extent not paid by VoIP being the "Guaranteed Obligations"),
and agrees to pay any and all costs, fees and expenses (including reasonable
counsel fees and expenses) incurred by Collateral Agent and the Lenders in
enforcing any rights under the guaranty set forth herein. Without limiting the
generality of the foregoing, Guarantor's liability shall extend to all amounts
that constitute part of the Guaranteed Obligations and would be owed by VoIP to
Collateral Agent and the Lenders, but for the fact that they are unenforceable
or not allowable due to the existence of an insolvency, bankruptcy or
reorganization involving VoIP.
3.2. Guaranty Absolute. Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the
Convertible Notes, regardless of any law, regulation or order now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of
Collateral Agent or the Lenders with respect thereto. The obligations of
Guarantor under this Agreement are independent of the Guaranteed Obligations,
and a separate action or actions may be brought and prosecuted against Guarantor
to enforce such obligations, irrespective of whether any action is brought
against VoIP or any other Guarantor or whether VoIP or any other Guarantor is
joined in any such action or actions. The liability of Guarantor under this
Agreement constitutes a primary obligation, and not a contract of surety, and
shall be irrevocable, absolute and unconditional irrespective of, and Guarantor
hereby irrevocably waives any defenses it may now or hereafter have in any way
relating to, any or all of the following:
(a) any lack of validity or enforceability of the Convertible Notes
or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations, or any other
amendment or waiver of or any consent to departure from the Convertible
Notes, including, without limitation, any increase in the Guaranteed
Obligations resulting from the extension of additional credit to VoIP or
otherwise;
(c) any taking, exchange, release, subordination or non-perfection
of any Collateral, or any taking, release or amendment or waiver of or
consent to departure from any other guaranty, for all or any of the
Guaranteed Obligations;
(d) any change, restructuring or termination of the corporate,
limited liability company or partnership structure or existence of VoIP;
or
(e) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by Collateral Agent or the Lenders that might otherwise
constitute a defense available to, or a discharge of, VoIP or any other
guarantor or surety.
This Agreement shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by Collateral Agent, the Lenders or any other
entity upon the insolvency, bankruptcy or reorganization of the VoIP or
otherwise (and whether as a result of any demand, settlement, litigation or
otherwise), all as though such payment had not been made.
3.3. Waiver. Guarantor hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Guaranteed
Obligations and this Agreement and any requirement that Collateral Agent or the
Lenders or exhaust any right or take any action against any Borrower or any
other person or entity or any Collateral. Guarantor acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated herein and that the waiver set forth in this Section 3.3 is
knowingly made in contemplation of such benefits. Guarantor hereby waives any
right to revoke this Agreement, and acknowledges that this Agreement is
continuing in nature and applies to all Guaranteed Obligations, whether existing
now or in the future.
3.4. Continuing Guaranty; Assignments. This Agreement is a continuing
guaranty and shall (a) remain in full force and effect until the later of the
indefeasible cash payment in full of the Guaranteed Obligations and all other
amounts payable under this Agreement, the Subscription Agreements and
Convertible Notes, (b) be binding upon Guarantor, its successors and assigns and
(c) inure to the benefit of and be enforceable by Collateral Agent and the
Lenders and their successors, pledgees, transferees and assigns. Without
limiting the generality of the foregoing clause (c), the Collateral Agent and
any Lender may pledge, assign or otherwise transfer all or any portion of its
rights and obligations under this Agreement (including, without limitation, all
or any portion of its Convertible Notes owing to it) to any other Person, and
such other Person shall thereupon become vested with all the benefits in respect
thereof granted such Collateral Agent or Lender herein or otherwise.
3.5. Subrogation. No Guarantor will exercise any rights that it may now or
hereafter acquire against the Collateral Agent or any Lender or other Guarantor
(if any) that arise from the existence, payment, performance or enforcement of
such Guarantor's obligations under this Agreement, including, without
limitation, any right of subrogation, reimbursement, exoneration, contribution
or indemnification, whether or not such claim, remedy or right arises in equity
or under contract, statute or common law, including, without limitation, the
right to take or receive from the Collateral Agent or any Lender or other
Guarantor (if any), directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security solely on account of such
claim, remedy or right, unless and until all of the Guaranteed Obligations and
all other amounts payable under this Agreement shall have been indefeasibly paid
in full in cash. If (i) any Guarantor shall make payment to Collateral Agent, or
the Lenders of all or any part of the Guaranteed Obligations, and (ii) of all or
any of the Guaranteed Obligations and all other amounts payable under this
Agreement such payments shall be paid in full in cash.
3.6. Maximum Obligations. Notwithstanding any provision herein contained
to the contrary, Guarantor's liability with respect to the Obligations shall be
limited to an amount not to exceed, as of any date of determination, the amount
that could be claimed by Lenders from Guarantor without rendering such claim
voidable or avoidable under Section 548 of the Bankruptcy Code or under any
applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance
Act or similar statute or common law.
4. Miscellaneous.
4.1. Expenses. Guarantor shall pay to the Collateral Agent, on demand, the
amount of any and all reasonable expenses, including, without limitation,
attorneys' fees, legal expenses and brokers' fees, which the Collateral Agent
may incur in connection with (a) exercise or enforcement of any the rights,
remedies or powers of the Collateral Agent hereunder or with respect to any or
all of the Obligations; or (b) failure by Guarantor to perform and observe any
agreements of Guarantor contained herein which are performed by the Collateral
Agent.
4.2. Waivers, Amendment and Remedies. No course of dealing by the
Collateral Agent and no failure by the Collateral Agent to exercise, or delay by
the Collateral Agent in exercising, any right, remedy or power hereunder shall
operate as a waiver thereof, and no single or partial exercise thereof shall
preclude any other or further exercise thereof or the exercise of any other
right, remedy or power of the Collateral Agent. No amendment, modification or
waiver of any provision of this Agreement and no consent to any departure by
Guarantor therefrom, shall, in any event, be effective unless contained in a
writing signed by the Collateral Agent, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. The rights, remedies and powers of the Collateral Agent, not only
hereunder, but also under any instruments and agreements evidencing or securing
the Obligations and under applicable law are cumulative, and may be exercised by
the Collateral Agent from time to time in such order as the Collateral Agent may
elect.
4.3. Notices. All notices or other communications given or made hereunder
shall be in writing and shall be personally delivered or deemed delivered the
first business day after being faxed (provided that a copy is delivered by first
class mail) to the party to receive the same at its address set forth below or
to such other address as either party shall hereafter give to the other by
notice duly made under this Section:
To VoIP and c/o VoIP, Inc.
Guarantor, to: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, President and CEO
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy by telecopier
only to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
To Lenders: To the addresses and telecopier numbers
set forth on Schedule A
To the Collateral Agent: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Grushko & ▇▇▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may change its address by written notice in accordance with this
paragraph.
4.4. Term; Binding Effect. This Agreement shall (a) remain in full force
and effect until payment and satisfaction in full of all of the Obligations; (b)
be binding upon Guarantor and its successors and permitted assigns; and (c)
inure to the benefit of the Collateral Agent, for the benefit of the Lenders and
their respective successors and assigns. All the rights and benefits granted by
Guarantor to the Collateral Agent and Lenders hereunder and other agreements and
documents delivered in connection therewith are deemed granted to both the
Collateral Agent and Lenders. Upon the payment in full of the Obligations, (i)
this Agreement shall terminate and (ii) Collateral Agent will, upon Guarantor's
request and at Guarantor's expense, execute and deliver to Guarantor such
documents as Guarantor shall reasonably request to evidence such termination,
all without any representation, warranty or recourse whatsoever.
4.5. Captions. The captions of Paragraphs, Articles and Sections in this
Agreement have been included for convenience of reference only, and shall not
define or limit the provisions hereof and have no legal or other significance
whatsoever.
4.6. Governing Law; Venue; Severability. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York without
regard to principles of conflicts or choice of law, except to the extent that
the perfection of the security interest granted hereby in respect of any item of
Collateral may be governed by the law of another jurisdiction. Any legal action
or proceeding against Guarantor with respect to this Agreement may be brought in
the courts of the State of New York or of the United States for the Southern
District of New York, and, by execution and delivery of this Agreement,
Guarantor hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts.
Guarantor hereby irrevocably waives any objection which they may now or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement brought in the
aforesaid courts and hereby further irrevocably waives and agrees not to plead
or claim in any such court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum. If any provision of this
Agreement, or the application thereof to any person or circumstance, is held
invalid, such invalidity shall not affect any other provisions which can be
given effect without the invalid provision or application, and to this end the
provisions hereof shall be severable and the remaining, valid provisions shall
remain of full force and effect.
4.7. Satisfaction of Obligations. For all purposes of this Agreement, the
payment in full of the Obligations shall be conclusively deemed to have occurred
when either the Obligations have been indefeasibly paid in cash or all
outstanding Convertible Notes have been converted to common stock pursuant to
the terms of the Convertible Notes and the Subscription Agreements.
4.8. Counterparts/Execution. This Agreement may be executed in any number
of counterparts and by the different signatories hereto on separate
counterparts, each of which, when so executed, shall be deemed an original, but
all such counterparts shall constitute but one and the same instrument. This
Agreement may be executed by facsimile signature and delivered by facsimile
transmission.
This Guaranty Agreement may be signed by facsimile signature and
delivered by confirmed facsimile transmission.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Guaranty Agreement, as of the date first written above.
"GUARANTOR" "GUARANTOR"
VOIPSOLUTIONS, EGLOBALPHONE,
a Florida corporation a Florida corporation
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------- -------------------
Its: CEO Its: CEO
-------------------------------- ----
"GUARANTOR" "GUARANTOR"
VOIPSOLUTIONS, VOIPSOLUTIONS,
a Florida corporation a Florida corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------- -------------------
Its: CEO Its: CEO
-------------------------------- ----
"GUARANTOR" "GUARANTOR"
CAERUS, INC., VOX CONSULTING GROUP, INC.,
a Delaware corporation a Florida corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------- -------------------
Its: CEO Its: CEO
-------------------------------- ----
"GUARANTOR" "GUARANTOR"
VCG TECHNOLOGIES, VOLO COMMUNICATIONS, INC.,
a Florida corporation a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------- -------------------
Its: CEO Its: CEO
-------------------------------- ----
"GUARANTOR" "GUARANTOR"
CAERUS BILLING, INC., CAERUS NETWORKS, INC.,
a Delaware corporation a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------- -------------------
Its: CEO Its: CEO
-------------------------------- ----
"GUARANTOR" "THE COLLATERAL AGENT"
VOICEONE COMMUNICATIONS, LLC, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
a Delaware Limited Liability corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------- ----------------------
Its: CEO
APPROVED BY "LENDERS":
/s/ ▇▇▇▇▇▇▇▇▇▇▇ Limited Partnership /s/ Whalehaven Capital Fund Ltd.
-------------------------------------------- --------------------------------
▇▇▇▇▇▇▇▇▇▇▇ LIMITED PARTNERSHIP WHALEHAVEN CAPITAL FUND LTD.
/s/ ▇▇▇▇▇ Enterprises Ltd. /s/ Bristol Investment Fund, Ltd.
-------------------------------------------- ---------------------------------
▇▇▇▇▇ ENTERPRISES LTD. BRISTOL INVESTMENT FUND, LTD.
/s/ Alpha Capital Aktiengesellschaft
------------------------------------
ALPHA CAPITAL AKTIENGESELLSCHAFT
SCHEDULE A TO GUARANTY
LENDER INTIAL CLOSING SECOND CLOSING
NOTE PRINCIPAL NOTE PRINCIPAL
▇▇▇▇▇▇▇▇▇▇▇ LIMITED $287,500.00 $287,500.00
PARTNERSHIP
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
WHALEHAVEN CAPITAL FUND $230,000.00 $230,000.00
LTD.
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇-▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ INTERNATIONAL LTD. $143,750.00 $143,750.00
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ of Panama
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
BRISTOL INVESTMENT FUND, $383,332.95 $383,332.95
LTD.
Caledonia House, ▇▇▇▇▇▇▇ Street
▇▇▇▇▇▇ Town, Grand Cayman
Cayman Islands
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
ALPHA CAPITAL $383,332.95 $383,332.95
AKTIENGESELLSCHAFT
▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Vaduz, Lichtenstein
Fax: ▇▇▇-▇▇-▇▇▇▇▇▇▇▇
TOTAL $1,427,915.90 $1,427,915.90