EXHIBIT 10.42
GUARANTY
This Guaranty (this "Guaranty") is made and executed as of April 5,
2000 by eGLOBE, INC., a Delaware corporation (the "Parent"), 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 International, Inc., a wholly owned subsidiary of
the Parent ("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") (hereinafter collectively called
the "Guarantor"), in favor of SPECIAL INVESTMENT RISKS, LLC, a limited liability
company organized under the laws of Nevada (hereinafter called the "Investor").
WHEREAS, on December 2, 1999, Coast International, Inc. ("Coast")
merged with and into eGlobe/Coast, Inc., a Delaware corporation (the
"Borrower"), pursuant to the terms of an Agreement and Plan of Merger dated
November 29, 1999 among Parent, the Borrower, Coast and the stockholders of
Coast, as a result of which the Borrower was the surviving company and remained
a wholly owned subsidiary of Parent (the "Coast Merger");
WHEREAS, prior to the Coast Merger and pursuant to a certain Revolving
Credit Note Agreement dated March 5, 1999, Investor has lent to Coast an
aggregate principal amount of $3,250,000 as evidenced by a promissory note
("Special Investment Note");
WHEREAS, in connection with the consummation of the Coast Merger, the
Borrower assumed Coast's obligations to repay all amounts due and payable under
the Special Investment Note, whether at maturity, by acceleration or otherwise,
in accordance with the terms of the Special Investment Note;
WHEREAS, 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 the Borrower of all its
obligations that arise under the Special Investment Note on or after the date
hereof, including, without limitation, payment in full, when due, of the
indebtedness evidenced by the Special Investment Note and the due, timely and
complete performance by the the Borrower of all of its other agreements, terms
and covenants under the Special Investement Note, provided that a violation of
such
other agreements, terms and covenants would constitute an event of default under
the Special Investment 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 the 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 the
Borrower or any other person liable for payment or performance under the Special
Investment 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 Special Investment 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 Special Investment Note or this
Guaranty. Performance by the Guarantor hereunder will not entitle the Guarantor
to any payment by the 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 the 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 the 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 Special Investment Note or the Security Agreement. In the
event of any default under the Special Investment 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
Special Investment Note and the Security Agreement are cumulative and not
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alternative. If the Investor elects to foreclose any lien created by the Special
Investment 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 the Borrower under any bankruptcy law or for the appointment
of a receiver for the Borrower or any of its property is filed by the Borrower,
or if the Borrower shall make an assignment for the benefit of creditors or
shall become insolvent, all indebtedness of the 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 Special Investment Note, 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 the Borrower under
the Special Investment 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 "the 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.
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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: 0000 00xx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
eGLOBE FINANCING CORPORATION
By:
-------------------------------
Title:
----------------------------
Address: 0000 00xx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
IDX FINANCING CORPORATION
By:
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Title:
----------------------------
Address: 0000 00xx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
TELEKEY FINANCING CORPORATION
By:
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Title:
----------------------------
Address: 0000 00xx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, XX 00000
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AGREED AND ACKNOWLEDGED:
SPECIAL INVESTMENT RISKS, LLC.
By:
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Title:
----------------------------
Address: 000 Xxxxxx, Xxxxx 000
Xxxxx, XX 00000
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