EXHIBIT 10.7
GUARANTY
This Guaranty (this "Guaranty") is made and executed as of
June 30, 1999 by eGLOBE, INC., a Delaware corporation (the "Parent"), and IDX
INTERNATIONAL, INC., a Virginia corporation and a wholly owned subsidiary of the
Parent ("IDX") (hereinafter collectively called the "Guarantor"), in favor of
EXTL INVESTORS, LLC, a limited liability company organized under the laws of
Nevada (hereinafter called the "Investor").
WHEREAS, eGlobe Financing Corporation, a Delaware corporation
and a wholly owned subsidiary of the Parent ("eGlobe Financing"), IDX Financing
Corporation, a Delaware corporation and a wholly owned subsidiary of IDX ("IDX
Financing"), and Telekey Financing Corporation, a Delaware corporation and a
wholly owned subsidiary of Telekey, Inc., a wholly owned subsidiary of the
Parent ("Telekey Financing" and together with eGlobe Financing and IDX
Financing, the "Borrower"), is issuing and selling to the Investor on the date
hereof, and the Investor is purchasing from the Borrower, the Borrower's 5%
Secured Notes (the "Secured Notes") and the Borrower is executing and delivering
a revolving note based on the balance of accounts receivable (the "A/R Note" and
collectively with the Secured Notes, the "Notes"), pursuant to the terms and
conditions of the Loan and Note Purchase Agreement dated April 9, 1999 by and
among eGlobe Financing, the Parent, and the Investor, as amended by Amendment
No. 1 to the Loan and Note Purchase Agreement dated as of the date hereof (as
amended, the "Loan and Note Purchase Agreement"); and
WHEREAS, in connection with the purchase of the Secured Notes
and issuance of the A/R Note, the Investor desires to obtain from the Guarantor
and the Guarantor desires to provide to the Investor the guaranty more fully set
forth below;
NOW, THEREFORE, in consideration of the foregoing, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Guarantor hereby agrees as follows:
1. The Guarantor hereby unconditionally guarantees to the
Investor the due, timely and full payment and satisfaction by Borrower of all
its obligations that arise under the Loan and Note Purchase Agreement and the
Notes on or after the date hereof, including, without limitation, payment in
full, when due, of the indebtedness evidenced by the Notes and the due, timely
and complete performance by the Borrower of all of its other agreements, terms
and covenants under the Loan and Note Purchase Agreement and the Notes, provided
that a violation of such other agreements, terms and covenants would constitute
an Event of Default under the Loan and Note Purchase Agreement or the applicable
Note
(collectively, the "Guaranteed Obligations"). The obligations of the Guarantor
hereunder are absolute and unconditional and this Guaranty is a continuing
guaranty of payment and performance by Borrower which will not terminate until
the Guaranteed Obligations shall have been paid and performed in full.
2. The Investor may, at the Investor's option, proceed to
enforce this Guaranty directly against the Guarantor without first proceeding
against Borrower or any other person liable for payment or performance under the
Loan and Note Purchase Agreement, the Secured Notes, the A/R Note or this
Guaranty and without first proceeding against or exhausting any collateral now
or hereafter held by the Investor to secure payment or performance under the
Loan and Note Purchase Agreement, the Secured Notes, the A/R Note or the
Security Agreement securing this Guaranty (the "Security Agreement").
3. The Guarantor waives diligence, presentment, protest,
notice of dishonor, demand for payment, notice of nonpayment or nonperformance,
notice of acceptance of this Guaranty, notice of intention to accelerate, notice
of acceleration, and all other notices of any nature in connection with the
exercise of the Investor's rights under the Loan and Note Purchase Agreement,
the Secured Notes, the A/R Note, the Security Agreement or this Guaranty.
Performance by the Guarantor hereunder will not entitle the Guarantor to any
payment by Borrower under any claim for contribution, indemnification,
subrogation or otherwise, and the Guarantor hereby irrevocably waives and
relinquishes any and all rights to recover from Borrower, whether by way of
subrogation, reimbursement, indemnity, contribution, or otherwise, any amounts
paid by the Guarantor under this Guaranty until such time as the Guaranteed
Obligations have been paid and performed in full.
4. The Guarantor hereby consents and agrees that renewals and
extensions of time of payment, surrender, release, exchange, substitution,
dealing with or taking of additional collateral security, taking or release of
other guarantees, abstaining from taking advantage of or realizing upon any
collateral security or other guarantees and any and all other forbearances or
indulgences granted by the Investor to Borrower or any other party may be made,
granted and effected by the Investor without notice to the Guarantor and without
in any manner affecting the Guarantor's liability hereunder.
5. Nothing herein contained will limit the Investor in
exercising any rights held under the Loan and Note Purchase Agreement, the
Secured Notes, the A/R Note or the Security Agreement. In the event of any
default under the Loan and Note Purchase Agreement, the Secured Notes, the A/R
Note, the Security Agreement or this Guaranty, the Investor will be entitled
selectively and successively to enforce any one or more of the rights held by
the Investor hereunder or thereunder and such action will not be deemed a waiver
of any other right held by the Investor. All of the remedies of the Investor
under this Guaranty, the Loan
and Note Purchase Agreement, the Secured Notes, the A/R Note and the Security
Agreement are cumulative and not alternative. If the Investor elects to
foreclose any lien created by the Loan and Note Purchase Agreement, the Secured
Notes, the A/R Note or the Security Agreement, the Investor is authorized to
purchase for the Investor's account all or any part of the collateral covered by
such lien at public or private sale.
6. In the event that a petition in bankruptcy for an
arrangement or reorganization of Borrower under any bankruptcy law or for the
appointment of a receiver for Borrower or any of its property is filed by
Borrower, or if Borrower shall make an assignment for the benefit of creditors
or shall become insolvent, all indebtedness of Borrower shall, for the purpose
of this Guaranty, be deemed at the Investor's election to have become
immediately due and payable.
7. The Guarantor further agrees to pay the Investor any and
all costs, expenses and reasonable attorneys' fees paid or incurred by the
Investor in enforcing or endeavoring to enforce this Guaranty.
8. If any provision of this Guaranty is held to be invalid,
illegal or unenforceable in any respect for any reason, such invalidity,
illegality or unenforceability will not affect any other provisions herein
contained and such other provisions will remain in full force and effect. This
Guaranty will be binding on the Guarantor and all successors and assigns of the
Guarantor and will inure to the benefit of the Investor and all successors and
assigns of the Investor. The Guarantor consents to the assignment of all or any
portion of the rights of the Investor hereunder in connection with any
assignment of the rights of the Investor under the Loan and Note Purchase
Agreement, without notice to the Guarantor.
9. If any payment or thing of value should be received and
accepted by the Investor in payment of any indebtedness or obligation of
Borrower under the Loan and Note Purchase Agreement or any Note and it should
subsequently be determined or adjudged that such payment be void or voidable
under any law or statute now or hereafter in effect, the receipt of such payment
by the Investor shall, as to the Guarantor, be deemed a provisional receipt and
if any such payment should be avoided or set aside under any such law or statute
the Guarantor shall be and remain liable to the Investor in respect thereof as
if such payment had not been received by the Investor, notwithstanding any
release or discharge of this Guaranty issued or granted by the Investor in the
belief or assumption that its receipt of such payment was absolute and not
subject to any avoidance or set aside.
10. The terms "the Guarantor" and "Borrower" and any pronouns
referring thereto as used herein shall be construed in the masculine, feminine,
neuter, singular or plural as the context may require.
11. The obligations of each of the parties hereto which are
included in the defined term "the Guarantor" are joint and several.
12. This Agreement may not be amended except by an instrument
in writing signed by the parties hereto.
13. All corporate law matters arising under this Agreement
shall be governed by and construed in accordance with the laws of the State of
Delaware, and all other matters arising under this Agreement shall be governed
by and construed in accordance with the laws of the State of Texas, in each case
regardless of the laws that might otherwise govern under applicable principles
of conflicts of law. Each of the parties consents to the jurisdiction of the
federal courts whose districts encompass any part of the State of Texas or the
state courts of the State of Texas in connection with any dispute arising under
this Agreement and hereby waives, to the maximum extent permitted by law, any
objection, including any objection based on forum non conveniens, to the
bringing of any such proceeding in such jurisdictions.
14. This Agreement may be executed and delivered in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed and delivered shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed as of the day and year first above written.
EGLOBE, INC.
By:
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Title:
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Address: 2000 Pennsylvania Avenue, NW
Suite 4800
Washington, DC 20006
IDX FINANCING CORPORATION
By:
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Title:
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Address: 11410 Issac Newton Square North
Suite 10
Reston, Virginia 20190
EXTL INVESTORS, LLC
By:
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Title:
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Address: 850 Cannon, Suite 200
Hurst, TX 76054