GUARANTY OF CORPORATION
Exhibit 10.2
GUARANTY
OF CORPORATION
THIS
GUARANTY OF CORPORATION,
dated
as of September 11, 2006 (this “Guaranty”),
is
made by MDU COMMUNICATIONS INTERNATIONAL, INC. a Delaware corporation
(“Guarantor”),
in
favor of FCC,
LLC d/b/a/
First
Capital (“Lender”).
RECITALS
A. Guarantor
is the sole
shareholder
of MDU
COMMUNICATIONS (USA) INC., a Washington corporation (“Borrower”).
Borrower and Lender are parties to that certain Loan and Security Agreement
of
even date herewith (as amended, restated or otherwise modified from time to
time, the “Loan
Agreement”;
capitalized terms used herein without definition shall have the meanings
ascribed to such terms in the Loan Agreement).
B. The
receipt of this Guaranty from Guarantor is a condition precedent to Lender’s
obligation to make loans to Borrower under the Loan Agreement.
C. Guarantor
will receive substantial direct and indirect benefits from Lender’s agreement to
make loans to Borrower under the Loan Agreement.
STATEMENT
OF AGREEMENT
NOW,
THEREFORE,
in
consideration of the foregoing and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, to induce Lender
to
make loans to Borrower under the Loan Agreement, Guarantor and Lender agree
as
follows:
1. CHARACTER
OF OBLIGATION.
Guarantor
hereby unconditionally guarantees the full payment and performance by Borrower
of all principal, interest and other Obligations (as such term is defined in
the
Loan Agreement) owing by Borrower to Lender, whether or not evidenced by
promissory notes, any obligations for letters of credit or agreements with
respect thereto, any drafts or any obligations for acceptances or agreements
with respect thereto, including all interest and other charges stated therein,
any other loans, promissory notes, advances or overadvances, including all
interest and other charges stated therein, all obligations of Borrower under
any
security agreement, instrument of lien, security deed or other security device
in favor of Lender, and all other obligations of Borrower to Lender however
and
whenever incurred or evidenced, whether direct or indirect, absolute or
contingent, or due or to become due (collectively, the “Guaranteed
Obligations”).
The obligation of Guarantor hereunder is primary and unconditional and shall
be
enforceable before, concurrently or after any claim or demand is made or suit
is
filed against Borrower or any other guarantor or surety, and before,
concurrently or after any proceeding by Lender against any security, and shall
be effective regardless of the solvency or insolvency of Borrower at any time,
the extension or modification of the Guaranteed Obligations by operation of
law,
or the subsequent reorganization, merger or consolidation of Borrower, or any
other change in its composition, nature, personnel or location. The
obligation hereunder may be considered by Lender either as a guaranty or
agreement of surety. Payment of any sum or sums due to Lender hereunder
will be made by Guarantor immediately upon demand by Lender. If claim is
ever made upon Lender for repayment or recovery of any amount or amounts
received by Lender in payment of any of the Guaranteed Obligations and Lender
repays all or part of said amount by reason of (a) any judgment, decree or
order of any court or administrative body having jurisdiction over Lender or
any
of its property, or (b) any settlement or compromise of any such claim
effected by Lender with any such claimant (including Borrower), then in such
event Guarantor agrees that any such judgment, decree, order, settlement or
compromise shall be binding upon Guarantor, notwithstanding any revocation
hereof or the cancellation of any note or other instrument evidencing any of
the
Guaranteed Obligations, and Guarantor shall be and remain obligated to Lender
hereunder for the amount so repaid or recovered to the same extent as if such
amount had never originally been received by Lender. Guarantor agrees that
the books and records of Lender showing the account between Lender and Borrower
shall be admissible in evidence in any action or proceeding, shall be binding
upon Guarantor for the purpose of establishing the items therein set forth,
and
shall constitute prima facie proof thereof, except that the monthly statements
rendered to Borrower by Lender shall, to the extent to which no objection is
made within thirty (30) days after date thereof, constitute an account stated
between Lender and Borrower binding upon Guarantor. Guarantor agrees to
pay all costs of Lender of collection of any sum or sums due hereunder, and,
if
collected by or through an attorney, reasonable attorneys’ fees, together with
all other legal and court expenses. Lender is hereby given a security
interest upon and in all of its balances, credits, deposits, accounts, items
and
monies and other property of Guarantor of every kind and description now or
hereafter in the possession or control of Lender or any affiliate of Lender
for
any reason, including all dividends and distributions or other rights in
connection therewith. Guarantor agrees that its obligation 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
security or any delay by Lender in perfecting any such lien or security
interest. Guarantor acknowledges and agrees that Guarantor will receive a
substantial direct and indirect benefit from Lender’s loans to Borrower, which
loans are conditioned upon Guarantor’s execution and delivery of this Guaranty
in favor of Lender.
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2. CONSENT
AND WAIVER.
Guarantor
waives notice of acceptance hereof, creation of any of the Guaranteed
Obligations, or nonpayment or default by Borrower under any of the Guaranteed
Obligations or any agreement now or hereafter existing between Borrower and
Lender, presentment, demand, notice of dishonor, protest and any other notices
whatever. Guarantor waives any right to direct apportionment of payments and
agrees that Lender may apply any payments received from Guarantor, Borrower
or
any other person or entity to the Guaranteed Obligations in such order as Lender
may elect in its discretion. Guarantor, without affecting its liability
hereunder, consents to and waives notice of all changes of terms of the
Guaranteed Obligations, the withdrawal or extension of credit or time to pay,
the release of the whole or any part of the Guaranteed Obligations, renewal,
indulgence, settlement, compromise or failure to exercise due diligence in
collection, the acceptance or release of security, extension of the time to
pay
for any period or periods whether or not longer than the original period, or
any
surrender, substitution or release of any other person directly or indirectly
liable for any of the Guaranteed Obligations or any collateral security given
by
Borrower. Guarantor agrees to subordinate and postpone any right of
subrogation, reimbursement or indemnity whatsoever and any “claim” against
Borrower in any proceeding under Title 11 of the United States Code, as amended
(the “Bankruptcy
Code”)
and
any right of recourse to or with respect to any assets or property of Borrower
or to any collateral for the Guaranteed Obligations, until payment in full
of
the Guaranteed Obligations. Guarantor also consents to and waives notice
of any arrangements or settlements made in or out of court in the event of
receivership, liquidation, readjustment, any proceeding under the Bankruptcy
Code, or assignment for the benefit of creditors of Borrower, and anything
whatever whether or not herein specified which may be done or waived by or
between Lender and Borrower, or Borrower and any other person whose claim
against Borrower has been or shall be assigned or transferred to Lender.
Guarantor agrees that if any notification of intended disposition of collateral
or of any other act by Lender is required by law and a specific time period
is
not stated therein, such notification, if mailed by first class mail at least
ten (10) days before such disposition or act, postage prepaid, addressed to
Guarantor at the address set forth on the signature page hereto or at any other
address of Guarantor appearing on the records of Lender, shall be deemed
reasonably and properly given. Lender may, without notice of any kind,
sell, assign or transfer any or all of the Guaranteed Obligations and in such
event each and every immediate and successive assignee, transferee or holder
of
any of the Guaranteed Obligations shall have the right to enforce this Guaranty,
by suit or otherwise for the benefit of such assignee, transferee or holder,
as
fully as if such assignee, transferee or holder were herein by name specifically
given such rights, powers and benefits; Lender shall have an unimpaired right
prior and superior to that of any such assignee, transferee or holder to enforce
this Guaranty for the benefit of Lender as to such of the Guaranteed Obligations
as is not sold, assigned or transferred. LENDER AND GUARANTOR EACH HEREBY
WAIVES ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING BASED
HEREON. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY
RELATED DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW
YORK
LOCATED
IN NEW YORK COUNTY OR OF THE UNITED STATES OF AMERICA LOCATED IN THE SOUTHERN
DISTRICT OF NEW
YORK,
AND
EACH OF GUARANTOR AND LENDER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF GUARANTOR
AND LENDER IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE
LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM
NON CONVENIENS,
WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN
SUCH
JURISDICTION IN RESPECT OF THIS GUARANTY OR ANY DOCUMENT RELATED
HERETO.
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3. REPRESENTATIONS
AND WARRANTIES.
Guarantor
hereby represents and warrants to Lender as follows:
(a) Guarantor
(i) is a duly organized and validly existing corporation in good standing under
the laws of the State of Delaware, (ii) is duly licensed or qualified to do
business and in good standing in each jurisdiction where the failure to be
so
licensed or qualified would impair its ability to perform its obligations
hereunder, and (iii) has all requisite corporate power and authority to own
its
properties and conduct its business as presently conducted and to execute and
deliver, and to perform its obligations hereunder.
(b) There
is
no action, suit, proceeding or investigation at law or in equity by or before
any court, governmental body or other agency now pending or, to the knowledge
of
Guarantor, threatened against or affecting Guarantor or its property or rights
in which there is a reasonable possibility of an adverse determination and
which, if adversely determined, could have a material adverse effect on
Guarantor, its property or its business or prospects.
(c) The
execution, delivery and performance of this Guaranty will not (i) conflict
with
or result in a breach of any terms or provisions of, or constitute a default
under, any indenture, mortgage or other agreement or instrument to which
Guarantor is a party or by which it or any of its property is bound, or any
existing applicable law, rule, regulation, license, judgment, order or decree
of
any government, governmental body or court having jurisdiction over Guarantor
or
any of its activities or properties, or the articles of incorporation or by-laws
of Guarantor, or (ii) result in, or require the creation or imposition of,
any
lien or security interest upon or with respect to any properties now or
hereafter owned by Guarantor.
(d) The
execution, delivery and performance of this Guaranty has been duly authorized
by
all necessary action of Guarantor, including, if necessary, approval by the
board of directors and/or shareholders of Guarantor. This Guaranty has been
duly
executed and delivered by Guarantor and constitutes a legal, valid and binding
obligation of Guarantor, enforceable according to its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors’ rights
generally.
4. CONSTRUCTION.
This
Guaranty shall be governed by and construed and enforced in accordance with
the
laws of the State of New York. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by
or
invalid under applicable law, said provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder
of
such provision or the remaining provisions of this Guaranty. This Guaranty
does not supersede any other guaranty or other agreement executed by Guarantor,
or any other guaranty in favor of Lender.
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5. BENEFIT.
This
Guaranty shall bind Guarantor, and its successors and assigns, and the rights
and privileges of Lender hereunder shall inure to the benefit of its successors
and assigns, and this Guaranty shall be effective with respect to loans or
advances made by Lender’s successors and assigns to Borrower.
6. DURATION.
This
Guaranty shall continue in full force and effect until terminated by the actual
receipt by Lender by registered or certified mail of written notice of
termination from Guarantor. Such termination shall be applicable only to
transactions having their inception thereafter, and rights and obligations
arising out of transactions having their inception prior to such termination
shall not be affected.
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IN
WITNESS WHEREOF,
Guarantor has caused this Guaranty to be executed by its duly authorized officer
as of the date first above written.
| GUARANTOR: | |
| MDU COMMUNICATIONS INTERNATIONAL, INC. | |
|
By:
______________________________
Name: ____________________________ Title: _____________________________ |
ACCEPTANCE
The
foregoing Guaranty is accepted in __________________, ________________ this
_____ day of September, 2006.
| FCC, LLC, d/b/a FIRST CAPITAL | |
|
By:
_________________________________
Name: _______________________________ Title: ________________________________ |
|
FULL
CIRCLE FUNDING, LP
By its General Partner FULL CIRCLE FUNDING, LLC By its Managing Members |
|
|
By:
______________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇ Managing Member |
|
By:
______________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇ Managing Member |