AMENDED AND RESTATED UNCONDITIONAL GUARANTY
EXHIBIT
10.8
AMENDED
AND RESTATED UNCONDITIONAL GUARANTY
This
continuing Amended and Restated Unconditional Guaranty (“Guaranty”) is entered
into as of December 16, 2009 by GTT Global Telecom, LLC, a
Virginia limited liability company; GTT Global Telecom Government
Services, LLC, a Virginia limited liability company, Global Internetworking of Virginia,
Inc., a Virginia corporation and TEK Channel Consulting, LLC, a
Colorado limited liability company (each a “Guarantor” and collectively, the
“Guarantors”), in favor of Silicon Valley Bank
(“Bank”). This Guaranty amends and restates that certain
Unconditional Guaranty executed by GTT Global Telecom, LLC, GTT Global Telecom
Government Services, LLC, and Global Internetworking of Virginia, Inc. in favor
of Bank, dated December 16, 2009, in its entirety
RECITALS
A. Bank,
Global Telecom & Technology, Inc., Global Telecom & Technology Americas,
Inc., WBS Connect, LLC and GTT-EMEA, Ltd. (the “Borrowers”), have entered into
that certain Second Amended and Restated Loan and Security Agreement dated of
even date herewith, (as amended, restated, or otherwise modified from time to
time, the “Loan Agreement”) pursuant to which Bank has agreed to make certain
advances of money and to extend certain financial accommodations to Borrowers
(collectively, the “Loans”), subject to the terms and conditions set forth
therein. Capitalized terms used but not otherwise defined herein
shall have the meanings given them in the Loan Agreement.
B. In
consideration of the agreement of Bank to make the Loans to Borrowers under the
Loan Agreement, each Guarantor is willing to guaranty the full payment and
performance by Borrowers of all of their obligations thereunder and under the
other Loan Documents, all as further set forth herein.
C. Guarantors
are each wholly-owned subsidiaries of Global Telecom & Technology Americas,
Inc. and will obtain substantial direct and indirect benefit from the Loans made
by Bank to Borrowers under the Loan Agreement.
NOW,
THEREFORE, to induce Bank to enter into the Loan Agreement, and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, and intending to be legally bound, each Guarantor hereby
represents, warrants, covenants and agrees as follows:
Section
1. Guaranty.
1.1 Unconditional Guaranty of
Payment. In consideration of the foregoing, each Guarantor
hereby irrevocably, absolutely and unconditionally, jointly and severally,
guarantees to Bank the prompt and complete payment and performance when due
(whether at stated maturity, by acceleration or otherwise) of all
Obligations. Each Guarantor agrees that it shall execute such other
documents or agreements and take such action as Bank shall reasonably request to
effect the purposes of this Guaranty.
1.2 Separate
Obligations. These obligations are independent of Borrowers’
obligations and separate actions may be brought against each Guarantor (whether
action is brought against Borrowers or whether Borrowers are joined in the
action).
Section
2. Representations and
Warranties.
Each
Guarantor hereby represents and warrants that:
(a) Guarantor
(i) is a corporation or limited liability company, as the case may be, duly
organized, validly existing and in good standing under the laws of the State set
forth in the first paragraph of this Guaranty; (ii) is duly qualified to do
business and is in good standing in every jurisdiction where the nature of its
business requires it to be so qualified (except where the failure to so qualify
would not have a material adverse effect on Guarantor’s condition, financial or
otherwise, or on Guarantor’s ability to pay or perform the obligations
hereunder); and (iii) has all requisite power and authority to execute and
deliver this Guaranty and each Loan Document executed and delivered by Guarantor
pursuant to the Loan Agreement or this Guaranty and to perform its obligations
thereunder and hereunder.
(b) The
execution, delivery and performance by Guarantor of this Guaranty (i) are within
Guarantor’s powers and have been duly authorized by all necessary action; (ii)
do not contravene Guarantor’s charter documents or any law or any contractual
restriction binding on or affecting Guarantor or by which Guarantor’s property
may be affected; (iii) do not require any authorization or approval or other
action by, or any notice to or filing with, any governmental authority or any
other Person under any indenture, mortgage, deed of trust, lease, agreement or
other instrument to which Guarantor is a party or by which Guarantor or any of
its property is bound, except such as have been obtained or made; and (iv) do
not result in the imposition or creation of any Lien upon any property of
Guarantor.
(c) This
Guaranty is a valid and binding obligation of Guarantor, enforceable against
Guarantor in accordance with its terms, except as the enforceability thereof may
be subject to or limited by bankruptcy, insolvency, reorganization, arrangement,
moratorium or other similar laws relating to or affecting the rights of
creditors generally.
(d) There
is no action, suit or proceeding affecting Guarantor pending or threatened
before any court, arbitrator, or governmental authority, domestic or foreign,
which may have a material adverse effect on the ability of Guarantor to perform
its obligations under this Guaranty.
(e) Guarantor’s
obligations hereunder are not subject to any offset or defense against Bank or
Borrower of any kind (other than defenses of the Borrowers arising under the
Loan Agreement).
(f) The
financial statements of Guarantor delivered to Bank in connection herewith, if
any, fairly present the financial position and results of operations for
Guarantor for the dates and periods purported to be covered thereby, all in
accordance with GAAP, and there has been no material adverse change in the
financial position or operations of Guarantor since the date of such financial
statements.
(g) The
incurrence of Guarantor’s obligations under this Guaranty will not cause
Guarantor to (i) become insolvent; (ii) be left with unreasonably small capital
for any business or transaction in which Guarantor is presently engaged or plans
to be engaged; or (iii) be unable to pay its debts as such debts
mature.
(h) Guarantor
covenants, warrants, and represents to Bank that all representations and
warranties contained in this Guaranty shall be true at the time of Guarantor’s
execution of this Guaranty, and shall continue to be true so long as this
Guaranty remains in effect. Guarantor expressly agrees that any
misrepresentation or breach of any warranty whatsoever contained in this
Guaranty shall be deemed material.
Section
3. General
Waivers.
Each Guarantor waives:
(a) Any
right to require Bank to (i) proceed against Borrowers or any other person; (ii)
proceed against or exhaust any security or (iii) pursue any other
remedy. Bank may exercise or not exercise any right or remedy it has
against Borrowers or any security it holds (including the right to foreclose by
judicial or nonjudicial sale) without affecting Guarantor’s liability
hereunder.
2
(b) Any
defenses from disability or other defense of Borrowers or from the cessation of
Borrowers’ liabilities.
(c) Any
setoff, defense or counterclaim against Bank (other than defenses or
counterclaims of the Borrowers arising under the Loan Agreement).
(d) Any
defense from the absence, impairment or loss of any right of reimbursement or
subrogation or any other rights against Borrowers. Until Borrowers’
obligations to Bank have been paid, Guarantor has no right of subrogation or
reimbursement or other rights against Borrowers.
(e) Any
right to enforce any remedy that Bank has against Borrowers.
(f) Any
rights to participate in any security held by Bank.
(g) Any
demands for performance, notices of nonperformance or of new or additional
indebtedness incurred by Borrowers to Bank. Guarantor is responsible
for being and keeping itself informed of each Borrower’s financial
condition.
(h) The
benefit of any act or omission by Bank which directly or indirectly results in
or aids the discharge of any Borrower from any of the Obligations by operation
of law or otherwise.
(i) The
benefit of California Civil Code Section 2815 permitting the revocation of this
Guaranty as to future transactions and the benefit of California Civil Code
Sections 2809, 2810, 2819, 2839, 2845, 2848, 2849, 2850, 2899 and 1432 with
respect to certain suretyship defenses.
Section
4. Reinstatement. Notwithstanding any
provision of the Loan Agreement to the contrary, the liability of each Guarantor
hereunder shall be reinstated and revived and the rights of Bank shall continue
if and to the extent that for any reason any payment by or on behalf of any
Guarantor or Borrower is rescinded or must be otherwise restored by Bank,
whether as a result of any proceedings in bankruptcy or reorganization or
otherwise, all as though such amount had not been paid. The
determination as to whether any such payment must be rescinded or restored shall
be made by Bank in its sole discretion; provided, however, that if Bank chooses
to contest any such matter at the request of a Guarantor, such Guarantor agrees
to indemnify and hold harmless Bank from all costs and expenses (including,
without limitation, reasonable attorneys’ fees) of such
litigation. To the extent any payment is rescinded or restored, such
Guarantor’s obligations hereunder shall be revived in full force and effect
without reduction or discharge for that payment.
Section 5. No
Waiver; Amendments. No failure on the part of Bank to
exercise, no delay in exercising and no course of dealing with respect to, any
right hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by
law. This Guaranty may not be amended or modified except by written
agreement between Guarantors and Bank, and no consent or waiver hereunder shall
be valid unless in writing and signed by Bank.
Section
6. Compromise and Settlement. No compromise,
settlement, release, renewal, extension, indulgence, change in, waiver or
modification of any of the Obligations or the release or discharge of Borrowers
from the performance of any of the Obligations shall release or discharge
Guarantors from this Guaranty or the performance of the obligations
hereunder.
3
Section
7. Notice. Any notice or other communication
herein required or permitted to be given shall be in writing and may be
delivered in person or sent by facsimile transmission, overnight courier, or by
United States mail, registered or certified, return receipt requested, postage
prepaid and addressed as follows:
|
If to Guarantors:
|
c/o
Global Telecom & Technology Americas, Inc.
|
|
|
0000
Xxxxxxxx Xxxxx, Xxxxx 000
XxXxxx,
XX 00000
|
||
|
Attention:
|
Chief
Financial Officer
|
|
|
Telephone
#:
|
(000)
000-0000
|
|
|
Facsimile
No.:
|
(000)
000-0000
|
|
|
If to
Bank
|
Silicon
Valley Bank
|
|
|
0000
Xxxxxxxxxx Xx.
Xxx
Xxxxxx Xxxxxxxxx Xxxx, Xxx 000
Xxxxxx,
XX 00000-0000
|
||
|
Attention:
|
Xxxxxxxxx
Xxxxxx
|
|
|
Telephone
#:
|
(000)
000-0000
|
|
|
Facsimile
No.:
|
(000)
000-0000
|
|
or at
such other address as may be substituted by notice given as herein
provided. Every notice, demand, request, consent, approval,
declaration or other communication hereunder shall be deemed to have been duly
given or served on the date on which personally delivered or sent by facsimile
transmission or three (3) Business Days after the same shall have been deposited
in the United States mail. If sent by overnight courier service, the
date of delivery shall be deemed to be the next Business Day after deposited
with such service.
Section 8. Entire
Agreement. This Guaranty constitutes and contains the entire
agreement of the parties and supersedes any and all prior and contemporaneous
agreements, negotiations, correspondence, understandings and communications
between Guarantors and Bank, whether written or oral, respecting the subject
matter hereof.
Section
9. Severability. If any provision of this
Guaranty is held to be unenforceable under applicable law for any reason, it
shall be adjusted, if possible, rather than voided in order to achieve the
intent of Guarantors and Bank to the extent possible. In any event,
all other provisions of this Guaranty shall be deemed valid and enforceable to
the full extent possible under applicable law.
Section
10. Subordination of Indebtedness. Any
indebtedness or other obligation of Borrowers now or hereafter held by or owing
to Guarantors is hereby subordinated in time and right of payment to all
obligations of Borrower to Bank, except as such indebtedness or other obligation
is expressly permitted to be paid under the Credit Agreement; and such
indebtedness of Borrowers to Guarantors is assigned to Bank as security for this
Guaranty, and if Bank so requests shall be collected, enforced and received by
Guarantors in trust for Bank and to be paid over to Bank on account of the
Obligations of Borrowers to Bank, but without reducing or affecting in any
manner the liability of Guarantors under the other provisions of this
Guaranty. Any notes now or hereafter evidencing such indebtedness of
Borrowers to Guarantors shall be marked with a legend that the same are subject
to this Guaranty.
Section 11. Payment
of Expenses. Guarantors shall pay, promptly on demand, all
Expenses incurred by Bank in defending and/or enforcing this
Guaranty. For purposes hereof, “Expenses” shall mean costs and
expenses (including reasonable fees and disbursements of any law firm or other
external counsel and the allocated cost of internal legal services and all
disbursements of internal counsel) for defending and/or enforcing
4
this
Guaranty (including those incurred in connection with appeals or proceedings by
or against any Guarantor under the United States Bankruptcy Code, or any other
bankruptcy or insolvency law, including assignments for the benefit of
creditors, compositions, extensions generally with its creditors, or proceedings
seeking reorganization, arrangement, or other relief).
Section
12. Assignment; Governing Law. This Guaranty
shall be binding upon and inure to the benefit of Guarantors and Bank and their
respective successors and assigns, except that Guarantors shall not have the
right to assign its rights hereunder or any interest herein without the prior
written consent of Bank, which may be granted or withheld in Bank’s sole
discretion. Any such purported assignment by Guarantors without
Bank’s written consent shall be void. This Guaranty shall be governed
by, and construed in accordance with, the laws of the Commonwealth of Virginia
without regard to principles thereof regarding conflict of laws.
Section 13. PERSONAL
JURISDICTION. EACH GUARANTOR HEREBY IRREVOCABLY AGREES THAT
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OF THE
AGREEMENTS, DOCUMENTS OR INSTRUMENTS DELIVERED IN CONNECTION HEREWITH MAY BE
BROUGHT IN THE STATE AND FEDERAL COURTS LOCATED IN THE COMMONWEALTH OF
VIRGINIA AS BANK MAY ELECT (PROVIDED THAT SUCH GUARANTOR ACKNOWLEDGES
THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED
OUTSIDE OF THE COMMONWEALTH OF VIRGINIA), AND, BY EXECUTION AND DELIVERY HEREOF,
GUARANTOR ACCEPTS AND CONSENTS TO, GENERALLY AND UNCONDITIONALLY, THE
JURISDICTION OF THE AFORESAID COURTS AND AGREES THAT SUCH JURISDICTION SHALL BE
EXCLUSIVE, UNLESS WAIVED BY BANK IN WRITING, WITH RESPECT TO ANY ACTION OR
PROCEEDING BROUGHT BY SUCH GUARANTOR AGAINST BANK. NOTHING HEREIN
SHALL LIMIT THE RIGHT OF BANK TO BRING PROCEEDINGS AGAINST EACH GUARANTOR IN THE
COURTS OF ANY OTHER JURISDICTION. EACH GUARANTOR HEREBY WAIVES, TO
THE FULL EXTENT PERMITTED BY LAW, ANY RIGHT TO STAY OR TO DISMISS ANY ACTION OR
PROCEEDING BROUGHT BEFORE SAID COURTS ON THE BASIS OF FORUM NON
CONVENIENS.
Section 14. WAIVER
OF JURY TRIAL. EACH OF BANK AND EACH GUARANTOR HEREBY WAIVES,
TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS GUARANTY. EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTY HERETO HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY
AND ANY RELATED INSTRUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 14
[Signatures
on Following Page]
5
|
GUARANTORS:
|
GTT
GLOBAL TELECOM, LLC
|
|||
|
By:
|
/s/ Xxxx X. Xxxxx | |||
|
Print
Name:
|
Xxxx
X. Xxxxx
|
|||
|
Title:
|
Chief
Financial Officer
|
|||
|
GTT
GLOBAL TELECOM GOVERNMENT SERVICES, LLC
|
||||
|
By:
|
/s/ Xxxx X. Xxxxx | |||
|
Print
Name:
|
Xxxx
X. Xxxxx
|
|||
|
Title:
|
Chief
Financial Officer
|
|||
|
GLOBAL
INTERNETWORKING OF VIRGINIA, INC.
|
||||
|
By:
|
/s/ Xxxx X. Xxxxx | |||
|
Print
Name:
|
Xxxx
X. Xxxxx
|
|||
|
Title:
|
Chief
Financial Officer
|
|||
|
|
||||
|
By:
|
/s/ Xxxx X. Xxxxx | |||
|
Print
Name:
|
Xxxx
X. Xxxxx
|
|||
|
Title:
|
Chief
Financial Officer of Managing
Partner
|
|||
6
