GUARANTEE
EXHIBIT
10.5
This Guarantee, dated as of December
16, 2009 (this “Guarantee”), is by
and between Global Telecom & Technology, Inc., a Delaware corporation
(“Purchaser
Parent”); and Xxxxx Charter (the “Seller”).
R E C I T A L S:
A. Global
Telecom & Technology Americas, Inc., a Virginia corporation and wholly-owned
subsidiary of Purchaser Parent (the “Purchaser”), is a
party to the Purchase Agreement, dated as of November 2, 2009, by and among the
Purchaser; GTT-EMEA, Limited, a company organized under the laws of the United
Kingdom; WBS Connect, L.L.C., a Colorado limited liability company; TEK Channel
Consulting, LLC, a Colorado limited liability company; WBS Connect Europe Ltd.,
a company organized under the laws of Ireland; the Seller and Xxxxxxx
Xxxxxxxxx (the
“Purchase
Agreement”). Any capitalized terms used but not defined herein
have the respective meanings set forth in the Purchase Agreement.
B. The
Purchase Agreement provides for the issuance, on the terms and conditions set
forth therein, by the Purchaser to the Seller of a Promissory Note, dated as of
December 16, 2009, as part of the Notes U.S. Transaction Consideration (the
“Promissory
Note”).
C.
In consideration of the Seller entering into the Purchase Agreement and
consummating the transactions contemplated thereby, Purchaser Parent is willing
to provide a guarantee of the Purchaser’s obligations under the Promissory Note,
on the terms and conditions set forth herein.
A G R E E M E N T:
NOW,
THEREFORE, in consideration of the mutual agreements and covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as
follows:
1. Guarantee. Purchaser
Parent hereby irrevocably guarantees the performance in full by the Purchaser of
the Purchaser’s obligations under the Promissory Note (subject to the terms,
conditions and limitations set forth therein) as fully as if made by Purchaser
Parent. The Seller may enforce Purchaser Parent’s obligations
hereunder without first pursuing or asserting any claims or rights against the
Purchaser or any of its property or assets; provided, however, that the
Seller shall, with respect to any obligation of Purchaser Parent subject to this
Guarantee: (a) provide prompt written notice thereof to Purchaser Parent; and
(b) use commercially reasonable efforts for a period of at least forty-five (45)
days to obtain satisfaction of such obligation from the Purchaser before
pursuing or asserting any claims or rights against Purchaser Parent relating to
such obligation. Purchaser Parent’s obligations hereunder shall not
be affected by the bankruptcy, insolvency or inability to pay of the
Purchaser. Purchaser Parent, in its capacity as guarantor hereunder,
hereby expressly waives diligence, presentment, demand of payment, protest and
other legal formalities (but not notice in accordance with the terms and
conditions of the Purchase Agreement, the Promissory Note or this
Guarantee).
2. Representations and
Warranties. Purchaser Parent represents and warrants to the
Seller that: (a) it has all required corporate power and authority to execute,
deliver and perform its obligations hereunder and perform its obligations
hereunder; (b) this Guarantee has been duly and validly executed by Purchaser
Parent and constitutes the valid and binding obligation of Purchaser Parent
enforceable against it in accordance with its terms, subject to the Equitable
Exceptions; and (c) the performance by Purchaser Parent of its obligations
hereunder does not conflict with any Law, Order or Contract to which Purchaser
Parent is a party or by which any of its assets or properties are
subject.
3. Rights and Obligations under
Other Documents. Notwithstanding anything to contrary in this
Guarantee or otherwise, nothing in this Guarantee will amend, modify, change,
waive, discharge, limit or otherwise affect any of the respective rights or
obligations of the parties to the Purchase Agreement, the Promissory Note or any
other Transaction Document.
4. Miscellaneous
Provisions.
(a) Expenses. Except
as otherwise specifically provided for in this Guarantee, the parties shall each
bear all of their respective expenses, costs and fees (including attorneys’,
auditors’ and financing fees, if any) incurred in connection with the
transactions contemplated hereby.
(b) Notices. All
notices, requests, demands, waivers and other communications required or
permitted to be given under this Guarantee shall be in writing and shall be
deemed to have been duly given if: (i) delivered personally; (ii) mailed using
certified or registered mail with postage prepaid; or (iii) sent by
next-day or overnight mail or delivery using a nationally recognized overnight
courier service, as follows:
If to
Purchaser Parent:
Global
Telecom & Technology, Inc.
0000
Xxxxxxxx Xxxxx, Xxxxx 000
XxXxxx,
XX 00000
Attention:
Xxxxxxxxxxx XxXxx, General Counsel
with a copy (which shall not
constitute notice) to:
Xxxxxx
Xxxx & Xxxxxx LLP
0000 X
Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx,
X.X. 00000
Attention: Xxxx
X. Xxxxxxxxxxxxx, Esq.
If to the
Seller:
Xxxxx
Charter
0000 Xxxx
Xxxxxx Xxxxx
Xxxxxxxx,
XX 00000
with a copy (which shall not
constitute notice) to:
Xxxxx
Figa & Will, P.C.
0000 X.
Xxxxxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx
X. Xxxxxxxxx, Esq.
A party
may designate a new address to which communications shall thereafter be
transmitted by providing written notice to that effect to the other
party. Each communication transmitted in the manner described in this
Section 4(b)
shall be deemed to have been provided, received and become effective for all
purposes at the time it shall have been: (x) delivered to the addressee as
indicated by the return receipt (if transmitted by mail) or the affidavit or
receipt of the messenger (if transmitted by personal delivery or courier
service); or (y) presented for delivery to the addressee as so addressed during
normal business hours, if such delivery shall have been rejected, denied or
refused for any reason or, in each case, at such other address as may be
specified in writing to the other party hereto.
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(c) Assignment;
Successors. This Guarantee and all of the provisions hereof
shall be binding upon and inure to the benefit of the parties and their
respective successors and permitted assigns. The Seller may not sell,
assign or otherwise transfer this Guarantee or any right or interest herein
without the prior written consent of Purchaser Parent, except that, subject to
compliance with applicable federal and state securities laws, this Guarantee may
be transferred by the Seller to any Affiliate of the Seller in connection with
assignment by the Seller to such Affiliate of the Promissory Note in accordance
with its terms, provided that the Seller delivers to Purchaser Parent an
instrument reasonably satisfactory to Purchaser Parent in which the transferee
agrees to be subject to all of the terms and conditions
hereof. Neither this Guarantee nor any of the rights, interests or
obligations hereunder may be assigned or delegated by Purchaser Parent without
the prior written consent of the Seller, except that Purchaser Parent shall have
the right, without the consent of the Seller but with prior notice to the
Seller, to: (i) assign its rights and obligations hereunder to any successor of
all or substantially all of its business or assets that assumes this Guarantee;
and (ii) collaterally assign its rights hereunder to any lender. Any
purported sale, assignment, transfer or delegation in violation of this Section 4(c) will be
null and void. For purposes of this Guarantee, the term “Affiliate” means a
person’s ancestors, descendants or spouse or trusts, family limited partnerships
or family limited liability companies established and maintained for the benefit
of the first person or any of such other persons.
(d) Amendment;
Waiver. No purported amendment or modification to any
provision of this Guarantee shall be binding upon the parties to this Guarantee
unless Purchaser Parent and the Seller have each duly executed and delivered to
the other party a written instrument which states that it constitutes an
amendment or modification (as applicable) to this Guarantee and specifies the
provision(s) that are being amended or modified (as applicable). No
purported waiver of any provision of this Guarantee shall be binding upon any
party to this Guarantee unless the party providing the waiver has duly executed
and delivered to the other party a written instrument which states that it
constitutes a waiver of one or more provisions of this Guarantee and specifies
the provision(s) that are being waived. Any such waiver shall be
effective only to the extent specifically set forth in such written
instrument. Neither the exercise (from time to time and at any time)
by a party of, nor the delay or failure (at any time or for any period of time)
to exercise, any right, power or remedy shall constitute a waiver of the right
to exercise, or impair, limit or restrict the exercise of, such right, power or
remedy or any other right, power or remedy at any time and from time to time
thereafter. No waiver of any right, power or remedy of a party shall
be deemed to be a waiver of any other right, power or remedy of such party or
shall, except to the extent so waived, impair, limit or restrict the exercise of
such right, power or remedy.
(e) Entire
Agreement. This Guarantee, the Purchase Agreement and the
Promissory Note constitute the entire agreement, and supersede all of the
previous or contemporaneous contracts, representations, warranties and
understandings (whether oral or written) by or between the parties, with respect
to the subject matter hereof, including any letter of intent, exclusivity
agreement, term sheet or memorandum of terms entered into or exchanged by the
parties.
(f) Severability. If
any provision of this Guarantee shall hereafter be held to be invalid,
unenforceable or illegal, in whole or in part, in any jurisdiction under any
circumstances for any reason: (i) such provision shall be reformed to the
minimum extent necessary to cause such provision to be valid, enforceable and
legal while preserving the intent of the parties as expressed in, and the
benefits to such parties provided by, such provision; or (ii) if such provision
cannot be so reformed, such provision shall be severed from this Guarantee and
an equitable adjustment shall be made to this Guarantee (including addition of
necessary further provisions to this Guarantee) so as to give effect to the
intent as so expressed and the benefits so provided. Such holding
shall not affect or impair the validity, enforceability or legality of such
provision in any other jurisdiction or under any other
circumstances. Neither such holding nor such reformation or severance
shall affect or impair the legality, validity or enforceability of any other
provision of this Guarantee.
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(g) Governing
Law. THIS GUARANTEE SHALL BE CONSTRUED, PERFORMED AND ENFORCED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO
ANY CHOICE OR CONFLICT OF LAW PROVISION (WHETHER OF THE STATE OF DELAWARE OR ANY
OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY
JURISDICTION OTHER THAN THE STATE OF DELAWARE.
(h) Consent to
Jurisdiction. EACH PARTY AGREES THAT ANY AND ALL PROCEEDINGS
ARISING OUT OF OR RELATING TO THIS GUARANTEE OR THE TRANSACTIONS CONTEMPLATED
HEREBY SHALL BE COMMENCED AND PROSECUTED EXCLUSIVELY IN ANY STATE OR FEDERAL
COURT LOCATED IN THE COMMONWEALTH OF VIRGINIA AND ANY APPELLATE COURTS THEREFROM
(COLLECTIVELY, “VIRGINIA COURTS”) AND
EACH PARTY IRREVOCABLY WAIVES ANY RIGHT TO OBJECT TO SUCH VENUE. EACH
PARTY CONSENTS AND SUBMITS TO THE NON-EXCLUSIVE PERSONAL JURISDICTION OF ANY OF
THE VIRGINIA COURTS IN RESPECT OF ANY SUCH PROCEEDING. EACH PARTY
CONSENTS TO SERVICE OF PROCESS UPON IT WITH RESPECT TO ANY SUCH PROCEEDING BY
REGISTERED MAIL, RETURN RECEIPT REQUESTED, AND BY ANY OTHER MEANS PERMITTED BY
APPLICABLE LAWS.
(i) Waiver of Punitive and Other
Damages and Jury Trial.
(i) THE
PARTIES EXPRESSLY WAIVE AND FOREGO ANY RIGHT TO RECOVER PUNITIVE, EXEMPLARY,
LOST PROFITS, CONSEQUENTIAL OR SIMILAR DAMAGES IN ANY PROCEEDING ARISING OUT OF
OR RESULTING TO THIS GUARANTEE OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
(ii) EACH
PARTY ACKNOWLEDGES AND AGREES THAT ANY PROCEEDING ARISING UNDER OR RELATING TO
THIS GUARANTEE AND THE TRANSACTIONS CONTEMPLATED HEREBY IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTEE OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
(iii) EACH
PARTY CERTIFIES AND ACKNOWLEDGES THAT: (A) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF ANY PROCEEDING ARISING UNDER OR RELATING
TO THIS GUARANTEE, SEEK TO ENFORCE EITHER OF THE FOREGOING WAIVERS; (B) IT
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS; (C) IT
MAKES SUCH WAIVERS VOLUNTARILY, AND (D) IT HAS BEEN INDUCED TO ENTER INTO
THIS GUARANTEE BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION
4(i).
(j) Remedies. Each
of the parties shall have and retain all rights and remedies, at law or in
equity, including rights to specific performance and injunctive or other
equitable relief, arising out of or relating to a breach or threatened breach of
this Guarantee. Without limiting the generality of the foregoing,
each of the parties acknowledges that money damages would not be a sufficient
remedy for any breach or threatened breach of this Guarantee and that
irreparable harm would result if this Guarantee were not specifically
enforced. Therefore, the rights and obligations of the parties shall
be enforceable by a decree of specific performance issued by any court of
competent jurisdiction, and appropriate injunctive relief may be applied for and
shall be granted in connection therewith, without the necessity of posting a
bond or other security or proving actual damages and without regard to the
adequacy of any remedy at law. A party’s right
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to
specific performance or injunctive relief shall be in addition to all other
legal or equitable remedies available to such party.
(k) Third Party
Beneficiaries. No Person other than Purchaser Parent and the
Seller is, is intended to be, or shall be a beneficiary of this Guarantee, other
than any permitted successors and assigns of the parties under Section 4(c).
(l) Interpretation. The
headings contained in this Guarantee are for purposes of convenience only and
shall not affect the meaning or interpretation of this Guarantee. The
language used in this Guarantee shall be deemed to be the language chosen by the
parties to express their mutual intent and no rule of strict construction shall
be applied against any party. Unless otherwise expressly specified in
this Guarantee: (i) the words “hereof”, “hereby” and “hereunder,” and
correlative words, refer to this Guarantee as a whole and not any particular
provision; (ii) the words “include”, “includes” and “including”, and
correlative words, are deemed to be followed by the phrase “without limitation”;
(iii) the word “or” is not exclusive
and is deemed to have the meaning “and/or”; (iv)
references in this Guarantee to a “party” means
Purchaser Parent or the Seller and to the “parties” means
Purchaser Parent and the Seller; (v) the masculine, feminine or neuter form of a
word includes the other forms of such word and the singular form of a word
includes the plural form of such word; (vi) references to a Person shall include
the successors and assigns thereof; (vii) references made in this Guarantee to a
Section mean a Section of this Guarantee; and (viii) references to any Contract
are to that Contract as amended, modified or supplemented from time to time in
accordance with the terms thereof.
(m) Counterparts. This
Guarantee may be signed in any number of counterparts, each of which (when
executed and delivered) shall constitute an original instrument, but all of
which together shall constitute one and the same instrument,
respectively. This Guarantee shall become effective and be deemed to
have been executed and delivered by each of the parties at such time as
counterparts hereto shall have been executed and delivered by all of parties,
regardless of whether all of the parties have executed the same
counterpart. Counterparts may be delivered via facsimile or other
electronic transmission and any counterpart so delivered shall be deemed to have
been duly and validly delivered and be valid and effective for all
purposes.
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IN
WITNESS WHEREOF, the parties hereto have executed this Guarantee as of the date
first written above.
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PURCHASER
PARENT:
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GLOBAL
TELECOM & TECHNOLOGY, INC.
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By:
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/s/ Xxxxx XxXxx | |
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Name:
Xxxxx XxXxx
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Title: Secretary
and General Counsel
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AGREED AND
ACCEPTED:
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THE
SELLER:
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| /s/ Xxxxx Charter | |
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Xxxxx
Charter
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