INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT, (the "Agreement") is made and entered
into as of April 25, 2001, by and among Worldport Communications, Inc., a
Delaware corporation ("Worldport"), WorldPort Holdings, Inc., a Delaware
corporation ("Purchaser"), Hostmark World, LP, a Delaware limited partnership
("Seller"), Hostmark World Holdings, LLC, a Delaware limited liability company
("Hostmark"), Xxxxx Group, Inc., a Wyoming corporation ("SGI") and Xxxxxx X.
Xxxxx ("Xxxxx" and, together with Hostmark and SGI, the "Guarantors").
RECITALS
A. Seller and Purchaser have entered into a Stock Purchase Agreement,
dated as of April 25, 2001 (the "Purchase Agreement"), pursuant to which
Purchaser will acquire from Seller all of the issued and outstanding shares of
Hostmark World Limited, a private limited company formed under the laws of
England and Wales, Hostmark AB, a company formed under the laws of Sweden, and
Hostmark GmbH, a company formed under the laws of Germany (the "Entities") in
exchange for up to 5,100,000 shares of Worldport common stock to be issued as
and when provided in the Purchase Agreement (the "Transaction").
B. One or more of the Guarantors have entered into the following
agreements which provide for guaranties with respect to obligations of one or
more of the Entities (each a "Guaranty" and collectively, the "Guaranties"): (i)
a Deed incorporating Licence to Assign, Licence to Change Use and Deed of
Variation dated 28 September 2000, relating to Building 00/00 Xxxxxxxxx Xxxx,
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxx, Xxxxxxx; (ii) a Lease dated 28 September
2000, relating to Building 00/00 Xxxxxxxxx Xxxx, Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxx, Xxxxxxx; (iii) a Guarantee (SW: Proprieborgen) dated 7 April 2000
relating to a lease agreement entered into on 6 April 0000, xxxxxxx Xxxxxxxxxx
XX (now known as Hostmark AB), and KGK Fastigheter i Lunda AB for the property
Xxxxxxx 0, Xxxxxxxxxxxxxx 00, Xxxxxxxxx, Xxxxxx; and (iv) a Letter of support
(Patronatserklarung) relating to a lease contract concluded on October 5, 2000,
between advantag-e Deutschland GmbH (now known as Hostmark GmbH) and Graphigrund
Grundstucksverwaltung GmbH.
C. In connection with the consummation of the Transaction, Worldport
and Purchaser have agreed to use their reasonable efforts to obtain the release
of the Guaranties.
D. Worldport and Purchaser have agreed to indemnify the Guarantors from
amounts due under the Guaranties at any time such releases are not in effect, in
accordance with the terms of this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. INDEMNIFICATION. Worldport and Purchaser, jointly and severally (the
"Indemnifying Parties"), hereby agree to indemnify, each of the Guarantors
(herein individually called an "Indemnified Party," and collectively called
"Indemnified Parties") from and against, and reimburse and pay the Indemnified
Parties for any amounts paid by an Indemnified Party as
required to be paid by a Guarantor under the Guaranties (whether paid pursuant
to a judgment or settlement).
2. NOTIFICATION OF CLAIMS. In the event that any claim, action or
proceeding ("Claim") is made or commenced under any Guaranty, the Indemnified
Party shall so notify the Indemnifying Parties in writing of such claim in
writing within ten days, provided the failure to give such notice within such
period shall not relieve the liability of the Indemnifying Parties hereunder
except to the extent the Indemnifying Parties are materially prejudiced thereby.
3. DEFENSE OF CLAIMS. In those instances in which a third party Claim
is asserted against an Indemnified Party, or an Indemnified Party is made a
party defendant in any third party Claim, under one of the Guaranties, if the
Indemnifying Parties agree in writing to be bound by and pay the full amount of
any final judgment from which no further appeal may be taken relating to such
Claim, then the Indemnifying Parties shall have the right to assume the defense
of said Claim at the Indemnifying Parties' cost and expense. If the Indemnifying
Party does not notify the Indemnified Party that it is assuming the defense of a
Claim, within 20 days of receiving notice of such Claim from the Indemnified
Party, then if the Indemnifying Party subsequently assumes the defense of such
Claim the Indemnifying Party shall also indemnify the Indemnified Party for the
reasonable out-of-pocket professional fees and expenses and court costs incurred
by the Indemnified Party prior to the date the Indemnifying Party assumed such
defense. The Indemnified Party shall be entitled to participate in the defense
of any Claim, the defense of which is assumed by the Indemnifying Party, with
its own counsel and at its own expense. The Indemnified Parties shall not settle
or compromise any Claim without the prior written approval of the Indemnifying
Parties, not to be unreasonably withheld or delayed. The Parties shall cooperate
in the defense of any Claim and the relevant records of each party shall be made
available on a timely basis. In the event that the Indemnifying Parties do not
assume the defense of a Claim, the Indemnified Parties may defend such Claim and
the Indemnifying Parties shall reimburse and pay the Indemnified parties for all
reasonable expenses of such defense, including, without limitation, professional
fees and expenses and court costs.
4. PAYMENT OF INDEMNITIES. All amounts payable by the Indemnifying
Parties shall be payable promptly and directly to each relevant Indemnified
Party in immediately available funds.
5. TERM. This Agreement shall terminate on the earliest date when all
of the Guaranties have been released or terminated or the underlying obligations
covered by the Guaranties have been extinguished or released by the parties to
which the Guaranties have been granted.
6. NOTICES. Any request, communication, or other notice required or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if sent by facsimile (with a confirming copy sent by postage prepaid
certified or registered mail) or delivered by recognized overnight or
international courier service or personal delivery (as the situation may
require) at the respective address or facsimile number of the party receiving
notice as set forth below. Any party hereto may by notice so given change its
address or facsimile number for future notice hereunder. All such notices and
other communications hereunder shall be deemed
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given (i) upon confirmation of delivery, if sent by facsimile and (ii) upon
delivery, if sent by recognized overnight or international courier service or
personal delivery.
(a) if to Worldport or Purchaser, to:
Worldport Communications, Inc.
000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to
XxXxxxxxx, Will & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, P.C.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) if to Hostmark, to:
Hostmark World Holdings LLC
c/o Sturm Group, Inc.
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to
Holme Xxxxxxx & Xxxx LLP
0000 Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Xx.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(c) If to SGI or Xxxxx, to:
Xxxxx Group, Inc.
0000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
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Attn: Xxxxxx X. Xxxxx and Xxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to
Holme Xxxxxxx & Xxxx LLP
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Xx.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
7. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
8. ENTIRE AGREEMENT; ASSIGNMENT. This Agreement: (a) constitutes the
entire agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof; (b) is not intended to
confer upon any other person any rights or remedies hereunder; and (c) shall not
be assigned by any party without the prior written consent of the other parties
thereto specifically provided.
9. SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the respective heirs, legal representatives, successors and
assigns of the parties hereto.
10. SEVERABILITY. In the event that any provision of this Agreement or
the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of such void or unenforceable provision.
11. OTHER REMEDIES. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby, or by law or equity upon
such party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy.
12. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
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13. RULES OF CONSTRUCTION. Worldport, Purchaser, Seller, and the
Guarantors agree that they have been represented by counsel during the
negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction providing
that ambiguities in an agreement or other document will be construed against the
party drafting such agreement or document.
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IN WITNESS WHEREOF, Worldport, Purchaser, Seller and the Guarantors
have caused this Indemnification Agreement to be duly executed as of the date
first written above.
WORLDPORT COMMUNICATIONS, INC.
By: /S/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
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Title: Assistant Secretary
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WORLDPORT HOLDINGS, INC.
By: /S/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
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Title: Assistant Secretary
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HOSTMARK WORLD HOLDINGS, LLC
By: /S/ Bruno d/Avanzo
--------------------------------
Name: Xxxxx x'Xxxxxx
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Title: Chief Executive Officer
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XXXXX GROUP, INC.
By: /S/ Xxxxxxx Xxxxxx
--------------------------------
Name: Xxxxxxx Xxxxxx
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Title: General Counsel
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/S/ Xxxxxx X. Xxxxx
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XXXXXX X. XXXXX
HOSTMARK WORLD, LP
By: /S/ Xxxxx x'Xxxxxx
--------------------------------
Name: Xxxxx x'Xxxxxx
------------------------------
Title: Chief Executive Officer
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