UNCONDITIONAL GUARANTY
Exhibit 10.3
This Unconditional Guaranty (“Guaranty”) is entered into as of September 30, 2010, by TEK
CHANNEL CONSULTING, LLC, a Colorado limited liability company (“Guarantor”), in favor of Silicon
Valley Bank (“Bank”).
Recitals
A. Concurrently herewith, (1) Bank, and (2) GLOBAL TELECOM & TECHNOLOGY, INC., a Delaware
corporation, GLOBAL TELECOM & TECHNOLOGY AMERICAS, INC., a Virginia corporation, WBS CONNECT,
INC., a Colorado corporation, and GTT-EMEA, LTD, a company organized and existing under the laws of
England and Wales (individually and collectively, “Borrower”), are entering into that certain Loan
and Security Agreement dated as of the date hereof (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 Borrower (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 Borrower under the Loan
Agreement, Guarantor is willing to guaranty the full payment and performance by Borrower of all of
its obligations thereunder and under the other Loan Documents, all as further set forth herein.
C. Guarantor will obtain substantial direct and indirect benefit from the Loans made by Bank
to Borrower 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, Guarantor hereby represents, warrants, covenants and agrees as
follows:
Section 1. Guaranty.
1.1 Unconditional Guaranty of Payment. In consideration of the foregoing, Guarantor hereby
irrevocably, absolutely and unconditionally guarantees to Bank the prompt and complete payment and
performance when due (whether at stated maturity, by acceleration or otherwise) of all Obligations.
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 Borrower’s obligations and
separate actions may be brought against Guarantor (whether action is brought against Borrower or
whether Borrower is joined in the action).
Section 2. Representations and Warranties.
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Guarantor hereby represents and warrants that:
(a) Guarantor (i) is a corporation duly organized, validly existing and in good
standing under the laws of the State of Colorado; (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, other than
the Lien created pursuant to that certain Security Agreement by and between Guarantor and
Bank dated as of the date hereof.
(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.
(f) The financial statements of Guarantor, copies of which have been furnished to Bank,
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) Neither Guarantor nor its property has any immunity from jurisdiction of any court
or from any legal process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) under applicable law.
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(h) 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.
(i) 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. Guarantor waives:
(a) Any right to require Bank to (i) proceed against Borrower 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 Borrower or any security it holds
(including the right to foreclose by judicial or nonjudicial sale) without affecting
Guarantor’s liability hereunder.
(b) Any defenses from disability or other defense of Borrower or from the cessation of
Borrowers liabilities.
(c) Any setoff, defense or counterclaim against Bank.
(d) Any defense from the absence, impairment or loss of any right of reimbursement or
subrogation or any other rights against Borrower. Until Borrower’s obligations to Bank have
been paid and the Borrower’s financing arrangements have been terminated, Guarantor has no
right of subrogation or reimbursement or other rights against Borrower.
(e) Any right to enforce any remedy that Bank has against Borrower.
(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 Borrower to Bank. Guarantor is responsible for being and keeping
itself informed of 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 Borrower from any of the Obligations by operation of law or
otherwise.
Section 4. Real Property Security Waiver. Guarantor acknowledges that, to the extent
Guarantor has or may have rights of subrogation or reimbursement against Borrower for claims
arising out of this Guaranty, those rights may be impaired or destroyed if Bank elects to proceed
against any real property security of Borrower by non-judicial foreclosure. That impairment or
destruction could, under certain judicial cases and based on equitable principles of estoppel, give
rise to a defense by Guarantor against its obligations under this Guaranty.
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Guarantor waives that defense and any others arising from Bank’s election to pursue
non-judicial foreclosure. Guarantor waives the benefits, if any, of any statutory or common law
rule that may permit a subordinating creditor to assert any defenses of a surety or guarantor, or
that may give the subordinating creditor the right to require a senior creditor to marshal assets,
and Guarantor agrees that it shall not assert any such defenses or rights.
Section 5. Reinstatement. Notwithstanding any provision of the Loan Agreement to the
contrary, the liability of 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
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 Guarantor, 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, Guarantor’s obligations hereunder shall be
revived in full force and effect without reduction or discharge for that payment.
Section 6. 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 Guarantor and Bank, and no consent or waiver hereunder
shall be valid unless in writing and signed by Bank.
Section 7. 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 Borrower from the performance of any of the Obligations shall release or discharge Guarantor
from this Guaranty or the performance of the obligations hereunder.
Section 8. 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 Guarantor:
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c/o Global Telecom and Technology, Inc. 0000 Xxxxxxxx Xxxxx, Xxxxx 000 XxXxxx, Xxxxxxxx 00000 Attn: Xx. Xxxx Xxxxx Fax: (000) 000-0000 Email: xxxx.xxxxx@xx-x.xxx |
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If to Bank:
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Silicon Valley Bank 000 Xxxxx Xxxxxx, Xxxxx 0-000 Xxxxxx, Xxxxxxxxxxxxx 00000 |
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| Attention: Xx. Xxxxxxxxxxx Xxxxx Telephone No.: (000) 000-0000 Facsimile No.: (000) 000-0000 |
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with copies to:
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Xxxxxx & Xxxxxxxxxx LLP Xxxxx Xxxxxx Xxxxx Xxxxxx, Xxxxxxxxxxxxx 00000 Attention: Xxxxxxx X. Xxxxxxx, Esquire Telephone No.: (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 9. 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 Guarantor and Bank, whether written or
oral, respecting the subject matter hereof.
Section 10. 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 Guarantor 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 11. Subordination of Indebtedness. Any indebtedness or other obligation of Borrower
now or hereafter held by or owing to Guarantor 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 Borrower to
Guarantor is assigned to Bank as security for this Guaranty, and if Bank so requests shall be
collected, enforced and received by Guarantor in trust for Bank and to be paid over to Bank on
account of the Obligations of Borrower to Bank, but without reducing or affecting in any manner the
liability of Guarantor under the other provisions of this Guaranty. Any notes now or hereafter
evidencing such indebtedness of Borrower to Guarantor shall be marked with a legend that the same
are subject to this Guaranty and shall be delivered to Bank.
Section 12. Payment of Expenses. Guarantor 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 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
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the benefit of creditors, compositions, extensions generally with its creditors, or
proceedings seeking reorganization, arrangement, or other relief).
Section 13. Assignment; Governing Law. This Guaranty shall be binding upon and inure to the
benefit of Guarantor and Bank and their respective successors and assigns, except that Guarantor
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 Guarantor without Bank’s written consent shall be void. This Guaranty
shall be governed by, and construed in accordance with, the laws of the State of New York without
regard to principles thereof regarding conflict of laws.
Section 14. JURISDICTION. 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
State of New York as Bank may elect (PROVIDED THAT GUARANTOR ACKNOWLEDGES THAT ANY APPEALS FROM
THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE STATE OF NEW YORK), 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 Guarantor
against Bank. Nothing herein shall limit the right of Bank to bring proceedings against Guarantor
in the courts of any other jurisdiction. 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 15. WAIVER OF JURY TRIAL. EACH OF BANK AND 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 15.
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| GUARANTOR TEK CHANNEL CONSULTING, LLC |
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| By: | /s/ Xxxx X. Xxxxx | |||
| Name: | Xxxx X. Xxxxx | |||
| Title: | CFO of Managing Member | |||
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