EXHIBIT 10.10
GUARANTEE
August 16, 2000
▇▇▇▇▇ Fargo Business Credit, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Re: XIT CORPORATION AND CXR TELCOM CORPORATION ("BORROWER")
Ladies and Gentlemen:
▇▇▇▇▇ Fargo Business Credit, Inc. ("LENDER") and XIT Corporation and
CXR Telcom Corporation ("Borrower") have entered into certain financing
arrangements pursuant to which Lender may make loans and advances and provide
other financial accommodations to Borrower as set forth in the Credit and
Security Agreement, dated August 16, 2000, by and between Borrower and Lender
(as the same now exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced, the "CREDIT AGREEMENT"), and other
agreements, documents and instruments referred to therein or at any time
executed and/or delivered in connection therewith or related thereto, including,
but not limited to, this Guarantee (all of the foregoing, together with the
Credit Agreement, as the same now exist or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced, being collectively
referred to herein as the "FINANCING AGREEMENTS").
Due to the close business and financial relationships between Borrower
and the undersigned ("GUARANTOR"), in consideration of the benefits which will
accrue to Guarantor and as an inducement for and in consideration of Lender
making loans and advances and providing other financial accommodations to
Borrower pursuant to the Credit Agreement and the other Financing Agreements,
Guarantor hereby agrees in favor of Lender as follows:
1. GUARANTEE.
(a) Guarantor absolutely and unconditionally guarantees and
agrees to be liable for the full and indefeasible payment and performance
when due of the following (all of which are collectively referred to herein
as the "GUARANTEED OBLIGATIONS"): (i) all obligations, liabilities and
indebtedness of any kind, nature and description of Borrower to Lender and/or
its affiliates, including principal, interest, charges, fees, costs and
expenses, however evidenced, whether as principal, surety, endorser,
guarantor or otherwise, whether arising under the Credit Agreement, the other
Financing Agreements or otherwise, whether now existing or hereafter arising,
whether arising before, during or after the initial or any renewal term of
the Credit Agreement or after the commencement of any case with respect to
Borrower under the United States Bankruptcy Code or any similar statute
(including, without limitation, the payment of interest and other amounts,
which would accrue and become due but for the commencement of such case,
whether or not such amounts are allowed or allowable in whole or in part in
any such case and including loans, interest, fees, charges and expenses
related thereto and all other
obligations of Borrower or its successors to Lender arising after the
commencement of such case), whether direct or indirect, absolute or
contingent, joint or several, due or not due, primary or secondary,
liquidated or unliquidated, secured or unsecured, and however acquired by
Lender and (ii) all expenses (including, without limitation, attorneys' fees
and legal expenses) incurred by Lender in connection with the preparation,
execution, delivery, recording, administration, collection, liquidation,
enforcement and defense of Borrower's obligations, liabilities and
indebtedness as aforesaid to Lender, the rights of Lender in any collateral
or under this Guarantee and all other Financing Agreements or in any way
involving claims by or against Lender directly or indirectly arising out of
or related to the relationships between Borrower, Guarantor or any other
Obligor (as hereinafter defined) and Lender, whether such expenses are
incurred before, during or after the initial or any renewal term of the
Credit Agreement and the other Financing Agreements or after the commencement
of any case with respect to Borrower or Guarantor under the United States
Bankruptcy Code or any similar statute.
(b) This Guarantee is a guaranty of payment and not of
collection. Guarantor agrees that Lender need not attempt to collect any
Guaranteed Obligations from Borrower, Guarantor or any other Obligor or to
realize upon any collateral, but may require Guarantor to make immediate
payment of all of the Guaranteed Obligations to Lender when due, whether by
maturity, acceleration or otherwise, or at any time thereafter. Lender may
apply any amounts received in respect of the Guaranteed Obligations to any of
the Guaranteed Obligations, in whole or in part (including attorneys' fees
and legal expenses incurred by Lender with respect thereto or otherwise
chargeable to Borrower or Guarantor) and in such order as Lender may elect.
(c) Payment by Guarantor shall be made to Lender at the
office of Lender from time to time on demand as Guaranteed Obligations become
due. Guarantor shall make all payments to Lender on the Guaranteed
Obligations free and clear of, and without deduction or withholding for or on
account of, any setoff, counterclaim, defense, duties, taxes, levies,
imposts, fees, deductions, withholding, restrictions or conditions of any
kind. One or more successive or concurrent actions may be brought hereon
against Guarantor either in the same action in which Borrower or any other
Obligor is sued or in separate actions. In the event any claim or action, or
action on any judgment, based on this Guarantee is brought against Guarantor,
Guarantor agrees not to deduct, set-off, or seek any counterclaim for or
recoup any amounts which are or may be owed by Lender to Guarantor.
2. WAIVERS AND CONSENTS.
(a) Notice of acceptance of this Guarantee, the making of
loans and advances and providing other financial accommodations to Borrower
and presentment, demand, protest, notice of protest, notice of nonpayment or
default and all other notices to which Borrower or Guarantor is entitled are
hereby waived by Guarantor. Guarantor also waives notice of and hereby
consents to, (i) any amendment, modification, supplement, extension, renewal,
or restatement of the Credit Agreement and any of the other Financing
Agreements, including, without limitation, extensions of time of payment of
or increase or decrease in the amount of any of the Guaranteed Obligations,
the interest rate, fees, other charges, or any collateral, and the guarantee
made herein shall apply to the Credit Agreement and the other Financing
Agreements and the Guaranteed Obligations as so amended, modified,
supplemented, renewed, restated or extended, increased or decreased, (ii) the
taking, exchange, surrender and releasing of collateral
2
or guarantees now or at any time held by or available to Lender for the
obligations of Borrower or any other party at any time liable on or in
respect of the Guaranteed Obligations or who is the owner of any property
which is security for the Guaranteed Obligations (individually, an "OBLIGOR"
and collectively, the "OBLIGORS"), (iii) the exercise of, or refraining from
the exercise of any rights against Borrower or any other Obligor or any
collateral, (iv) the settlement, compromise or release of, or the waiver of
any default with respect to, any of the Guaranteed Obligations and (v) any
financing by Lender of Borrower under Section 364 of the United States
Bankruptcy Code or consent to the use of cash collateral by Lender under
▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code. Guarantor agrees that the
amount of the Guaranteed Obligations shall not be diminished and the
liability of Guarantor hereunder shall not be otherwise impaired or affected
by any of the foregoing.
(b) No invalidity, irregularity or unenforceability of all
or any part of the Guaranteed Obligations shall affect, impair or be a
defense to this Guarantee, nor shall any other circumstance which might
otherwise constitute a defense available to or legal or equitable discharge
of Borrower in respect of any of the Guaranteed Obligations, or Guarantor in
respect of this Guarantee, affect, impair or be a defense to this Guarantee.
Without limitation of the foregoing, the liability of Guarantor hereunder
shall not be discharged or impaired in any respect by reason of any failure
by Lender to perfect or continue perfection of any lien or security interest
in any collateral or any delay by Lender in perfecting any such lien or
security interest. As to interest, fees and expenses, whether arising before
or after the commencement of any case with respect to Borrower under the
United States Bankruptcy Code or any similar statute, Guarantor shall be
liable therefor, even if Borrower's liability for such amounts does not, or
ceases to, exist by operation of law. Guarantor acknowledges that Lender has
not made any representations to Guarantor with respect to Borrower, any other
Obligor or otherwise in connection with the execution and delivery by
Guarantor of this Guarantee and Guarantor is not in any respect relying upon
Lender or any statements by Lender in connection with this Guarantee.
(c) Guarantor hereby irrevocably and unconditionally waives
and relinquishes all statutory, contractual, common law, equitable and all
other claims against Borrower, any collateral for the Guaranteed Obligations
or other assets of Borrower or any other Obligor, for subrogation,
reimbursement, exoneration, contribution, indemnification, setoff or other
recourse in respect to sums paid or payable to Lender by Guarantor hereunder
and Guarantor hereby further irrevocably and unconditionally waives and
relinquishes any and all other benefits which Guarantor might otherwise
directly or indirectly receive or be entitled to receive by reason of any
amounts paid by or collected or due from Guarantor, Borrower or any other
Obligor upon the Guaranteed Obligations or realized from their property.
3. SUBORDINATION. Payment of all amounts now or hereafter owed to
Guarantor by Borrower or any other Obligor is hereby subordinated in right of
payment to the indefeasible payment in full to Lender of the Guaranteed
Obligations and all such amounts and any security and guarantees therefor are
hereby assigned to Lender as security for the Guaranteed Obligations.
4. ACCELERATION. Notwithstanding anything to the contrary contained
herein or any of the terms of any of the other Financing Agreements, the
liability of Guarantor for the entire
3
Guaranteed Obligations shall mature and become immediately due and payable, even
if the liability of Borrower or any other Obligor therefor does not, upon the
occurrence of any act, condition or event which constitutes an Event of Default
as such term is defined in the Credit Agreement.
5. ACCOUNT STATED. The books and records of Lender showing the
account between Lender and Borrower shall be admissible in evidence in any
action or proceeding against or involving Guarantor as PRIMA FACIE proof of
the items therein set forth, and the monthly statements of Lender rendered to
Borrower, to the extent to which no written objection is made within thirty
(30) days from the date of sending thereof to Borrower, shall be deemed
conclusively correct and constitute an account stated between Lender and
Borrower and be binding on Guarantor.
6. TERMINATION. This Guarantee is continuing, unlimited, absolute
and unconditional. All Guaranteed Obligations shall be conclusively presumed
to have been created in reliance on this Guarantee. Guarantor shall continue
to be liable hereunder until one of Lender's officers actually receives a
written termination notice from Guarantor sent to Lender at its address set
forth above by certified mail, return receipt requested and thereafter as set
forth below. Revocation or termination hereof by Guarantor shall not affect,
in any manner, the rights of Lender or any obligations or duties of Guarantor
under this Guarantee with respect to (a) Guaranteed Obligations which have
been created, contracted, assumed or incurred prior to the receipt by Lender
of such written notice of revocation or termination as provided herein,
including, without limitation, (i) all amendments, extensions, renewals and
modifications of such Guaranteed Obligations (whether or not evidenced by new
or additional agreements, documents or instruments executed on or after such
notice of revocation or termination), (ii) all interest, fees and similar
charges accruing or due on and after revocation or termination, and (iii) all
attorneys' fees and legal expenses, costs and other expenses paid or incurred
on or after such notice of revocation or termination in attempting to collect
or enforce any of the Guaranteed Obligations against Borrower, Guarantor or
any other Obligor (whether or not suit be brought), or (b) Guaranteed
Obligations which have been created, contracted, assumed or incurred after
the receipt by Lender of such written notice of revocation or termination as
provided herein pursuant to any contract entered into by Lender prior to
receipt of such notice. The sole effect of such revocation or termination by
Guarantor shall be to exclude from this Guarantee the liability of Guarantor
for those Guaranteed Obligations arising after the date of receipt by Lender
of such written notice which are unrelated to Guaranteed Obligations arising
or transactions entered into prior to such date. Without limiting the
foregoing, this Guarantee may not be terminated and shall continue so long as
the Credit Agreement shall be in effect (whether during its original term or
any renewal, substitution or extension thereof).
7. REINSTATEMENT. If after receipt of any payment of, or proceeds of
collateral applied to the payment of, any of the Guaranteed Obligations,
Lender is required to surrender or return such payment or proceeds to any
Person for any reason, then the Guaranteed Obligations intended to be
satisfied by such payment or proceeds shall be reinstated and continue and
this Guarantee shall continue in full force and effect as if such payment or
proceeds had not been received by Lender. Guarantor shall be liable to pay to
Lender, and does indemnify and hold Lender harmless for the amount of any
payments or proceeds surrendered or returned. This Section 7 shall remain
effective notwithstanding any contrary action which may be taken by
4
Borrower or Guarantor to Lender or to otherwise enforce its rights against
Guarantor or its property).
(c) Guarantor hereby waives personal service of any and all
process upon it and consents that all such service of process may be made by
certified mail (return receipt requested) directed to its address set forth
on the signature pages hereof and service so made shall be deemed to be
completed five (5) days after the same shall have been so deposited in the
U.S. mails, or, at Lender's option, by service upon Guarantor in any other
manner provided under the rules of any such courts. Within thirty (30) days
after such service, Guarantor shall appear in answer to such process, failing
which Guarantor shall be deemed in default and judgment may be entered by
Lender against Guarantor for the amount of the claim and other relief
requested.
(d) GUARANTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS GUARANTEE OR ANY
OF THE OTHER FINANCING AGREEMENTS OR (ii) IN ANY WAY CONNECTED WITH OR RELATED
OR INCIDENTAL TO THE DEALINGS OF GUARANTOR AND LENDER IN RESPECT OF THIS
GUARANTEE OR ANY OF THE OTHER FINANCING AGREEMENTS OR THE TRANSACTIONS RELATED
HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. GUARANTOR HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY AND THAT GUARANTOR OR LENDER MAY FILE AN ORIGINAL
COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF GUARANTOR AND LENDER TO THE WAIVER OF THEIR RIGHT TO TRIAL BY
JURY.
(e) Lender shall not have any liability to Guarantor
(whether in tort, contract, equity or otherwise) for losses suffered by
Guarantor in connection with, arising out of, or in any way related to the
transactions or relationships contemplated by this Guarantee, or any act,
omission or event occurring in connection herewith, unless it is determined
by a final and non-appealable judgment or court order binding on Lender that
the losses were the result of acts or omissions constituting gross negligence
or willful misconduct. In any such litigation, Lender shall be entitled to
the benefit of the rebuttable presumption that it acted in good faith and
with the exercise of ordinary care in the performance by it of the terms of
the Credit Agreement and the other Financing Agreements.
11. NOTICES. All notices, requests and demands hereunder shall be in
writing and (a) made to Lender at its address set forth above and to Guarantor
at its chief executive office set forth below, or to such other address as
either party may designate by written notice to the other in accordance with
this provision, and (b) deemed to have been given or made: if delivered in
person, immediately upon delivery; if by telex, telegram or facsimile
transmission, immediately upon sending and upon confirmation of receipt; if by
nationally recognized overnight courier service with instructions to deliver the
next business day, one (1) business day after sending; and if by certified mail,
return receipt requested, five (5) days after mailing.
6
12. PARTIAL INVALIDITY. If any provision of this Guarantee is held
to be invalid or unenforceable, such invalidity or unenforceability shall not
invalidate this Guarantee as a whole, but this Guarantee shall be construed
as though it did not contain the particular provision held to be invalid or
unenforceable and the rights and obligations of the parties shall be
construed and enforced only to such extent as shall be permitted by
applicable law.
13. ENTIRE AGREEMENT. This Guarantee represents the entire agreement
and understanding of these parties concerning the subject matter hereof, and
supersedes all other prior agreements, understandings, negotiations and
discussions, representations, warranties, commitments, proposals, offers and
contracts concerning the subject matter hereof, whether oral or written.
14. SUCCESSORS AND ASSIGNS. This Guarantee shall be binding upon
Guarantor and its successors and assigns and shall inure to the benefit of
Lender and its successors, endorsees, transferees and assigns. The liquidation,
dissolution or termination of Guarantor shall not terminate this Guarantee as to
such entity or as to Guarantor.
15. CONSTRUCTION. All references to the term "Guarantor" wherever used
herein shall mean Guarantor and its successors and assigns (including, without
limitation, any receiver, trustee or custodian for Guarantor or any of its
assets or Guarantor in its capacity as debtor or debtor-in-possession under the
United States Bankruptcy Code). All references to the term "Lender" wherever
used herein shall mean Lender and its successors and assigns and all references
to the term "Borrower" wherever used herein shall mean Borrower and its
successors and assigns (including, without limitation, any receiver, trustee or
custodian for Borrower or any of its assets or Borrower in its capacity as
debtor or debtor-in-possession under the United States Bankruptcy Code). All
references to the term "Person" or "person" wherever used herein shall mean any
individual, sole proprietorship, partnership, corporation (including, without
limitation, any corporation which elects subchapter S status under the Internal
Revenue Code of 1986, as amended), limited liability company, limited liability
partnership, business trust, unincorporated association, joint stock
corporation, trust, joint venture or other entity or any government or any
agency or instrumentality or political subdivision thereof. All references to
the plural shall also mean the singular and to the singular shall also mean the
plural.
7
IN WITNESS, WHEREOF, Guarantor has executed and delivered this
Guarantee as of the day and year first above written.
ATTEST: MICROTEL INTERNATIONAL INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
[ILLEGIBLE] Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------ -------------------------------
[CORPORATE SEAL] Title: Sr. VP/CFO
------------------------------
CHIEF EXECUTIVE ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
8
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
--------------------------------------------------------------------------------
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES ) SS.
)
On AUGUST 16, 2000, before me, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ - NOTARY PUBLIC
---------------- ------------------------------------------
Date Name and Title of Officer
(e.g. "▇▇▇▇ ▇▇▇, Notary Public")
personally appeared ▇▇▇▇▇▇▇▇ ▇. FOOT & ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
-----------------------------------------------------------
Name of Signer(s)
Personally Known to me - OR - /x/ proved to me on the basis of satisfactory
evidence to be the person(s) whose name(s)
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ is/are subscribed to the within instrument
COMMISSION # 1141113 and acknowledged to me that they
[LOGO] NOTARY PUBLIC-CALIFORNIA executed the same in their authorized
LOS ANGELES COUNTY capacity(ies), and that by their
MY COMM. EXPIRES JUN 3, 2001 signature(s) on the instrument the person(s),
or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS my hand and official seal
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------
Signature of Notary Public
--------------------------------------------------------------------------------
OPTIONAL
Though the data below is not required by law, it may prove valuable to persons
relying on the document and could prevent fraudulent reattachment of this form.
CAPACITY(IES) CLAIMED BY SIGNER(S) DESCRIPTION OF ATTACHED DOCUMENT
/ / Individual
/ / Corporate Officer
PATENT AND TRADEMARK SECURITY AGREEMENT
---------------------------------- ---------------------------------------
Title(s) Title or Type of Document
/ / Partner(s) / / Limited
/ / General ---------------------------------------
/ / Attorney-In-Fact Number of Pages
/ / Trustee(s)
/ / Guardian/Conservator
/ / Other:
---------------------------- ---------------------------------------
Date of Document
Signer is Representing:
Name of Person(s) or Entity(les)
-------------------------------------- ---------------------------------------
Signer(s) Other Than Named Above
--------------------------------------