Exhibit 2
GUARANTEE
Guarantee dated September 13, 1999 (this "Guarantee") from PICKSat,
Inc., a Delaware corporation with offices at 0000 XX 00xx Xxxxxxx, Xxxxx 000,
Xxxxx, XX 00000 (the "Guarantor"), to Atlantic Tele-Network, Inc. with offices
at 00 Xxxxxx Xxxxxx/Xxxxxxxxxx, Xx. Xxxxxx, X.X. Xxxxxx Xxxxxxx 00000 ("ATN").
WITNESSETH
WHEREAS, ATN has heretofore made certain loans to the Guarantor which
are payable on demand and has entered into a Discretionary Credit Agreement
dated as of the date of this Guarantee (as from time to time in effect, the
"Credit Agreement") with PICKNet, Inc. ("PICKNet"), and PICKNet UK PLC,
("PICKNet UK" and, together with PICKNet, Inc., the "Companies"), affiliates of
the Guarantor, pursuant to which ATN in its discretion may lend up to $5,000,000
to the Companies'.
WHEREAS, said loans to the Companies provide various tangible and
intangible benefits to the Guarantor,
WHEREAS, the Guarantor desires that ATN continue to extend credit to
the Guarantor; and
WHEREAS, pursuant to the requirements of the Credit Agreement,
Guarantor has entered into this Guarantee in order to induce ATN to lend sums to
the Companies pursuant to the Credit Agreement and to continue to extend credit
to the Guarantor. The Guarantor acknowledges that ATN will make such loans in
reliance on this Guarantee being a continuing irrevocable agreement, and the
Guarantor agrees that this Guarantee may not be revoked in whole or in part. The
Guarantor acknowledges that ATN has advised it that ATN is unwilling to extend
credit to the Companies or to continue to extend credit to the Guarantor unless
this Guarantee is given on the terms provided herein. Capital terms defined in
the Credit Agreement and not otherwise defined herein are used herein with the
meaning so defined.
NOW THEREFORE, in consideration of the foregoing and the terms and
conditions appearing in this Guarantee, the parties hereto agree as follows.
1. Guarantee.
The Guarantor unconditionally and irrevocably guarantees as primary
obligor and not merely as surety the punctual payment when due, whether at
stated maturity, by acceleration or otherwise, of all Credit Obligations of the
Companies, including all extensions, modifications, substitutions, amendments
and renewals thereof, whether for principal, interest (including without
limitation interest on any overdue principal, premium and interest at the rate
specified in the Note), fees, expenses or otherwise. The Guarantor also agrees
to pay, in addition to the amount stated above, all reasonable expenses
(including reasonable counsel fees and expenses) incurred by ATN in enforcing
any rights under this Guarantee or in connection with any amendment of this
Agreement.
Notwithstanding the foregoing, this Guarantee shall terminate and be null and
void at such time as the closing under the Stock Purchase Agreement, dated the
date of this Guarantee, between Pick Communications Corp. and Xxxxx Investments
Ltd. shall have occurred 'in accordance with the terms and conditions of the
Stock Purchase Agreement and the Letter Agreement dated the date of this
Guarantee between Pick Communications Corp. and ATN with respect to the
Companies and without the waiver of any of the terms or conditions of the Stock
Purchase Agreement except for any waivers made with the written consent of ATN.
2. Method of Payment.
All payments to be paid by Guarantor to ATN pursuant to this Guarantee
shall be paid by wire transfer in immediately available funds to ATN in
accordance with instructions delivered to Guarantor by ATN.
3. Default.
Each of the following shall constitute an event of Default:
(a) The Guarantor shall fall to pay any portion of the amounts
described under the Note.
(b) If either of the Companies pursuant to or under or within
the meaning of any Bankruptcy law of any U.S. or foreign jurisdiction:
(i) admits in writing its inability to pay its
debts generally as they become due;
(ii) commences a voluntary case or proceeding-,
(iii) consents to the entry of an order for relief
against it in an involuntary case or
proceeding;
(iv) consents or acquiesces in the institution of
a bankruptcy or insolvency proceeding
against it;
(v) consents to the appointment of a custodian
of it or for all or substantially all of its
property;
(vi) makes a general assignment for the benefit
of its creditors, or any of them takes any
action to authorize or effect any of the
foregoing, or takes any other similar action
under foreign laws relating to insolvency;
or
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(vii) is placed into involuntary Bankruptcy
proceedings by a creditor or creditors.
(c) A court of competent jurisdiction enters an order or
decree under any Bankruptcy law that:
(i) is for relief against either of the
Companies in an involuntary case or
proceeding;
(ii) appoints a custodian of either of the
Companies for all or substantially all of
their properties taken as a whole; or
(iii) orders the liquidation of either of the
Companies or any similar release is granted
under foreign laws relating to insolvency,
and in each case, the order or decree
remains unstayed and in effect for 60 days.
If any Event of Default shall occur, ATN may declare all amounts due
hereunder to be due and payable by notice in writing to Guarantor specifying the
Event of Default and the same shall become immediately due and payable.
4. Facsimiles.
This Agreement shall be deemed effective upon receipt of signatures by
facsimile transmission.
5. Governing Law.
This Guarantee shall be deemed to have been made under and shall be
governed by the laws of the State of New York in all respects and including
matters of construction, validity and performance, but otherwise excluding the
laws of New York regarding conflicts of law.
6. Venue, Waiver of Jury Trial.
THE PARTIES HERETO HEREBY WAIVE TRAIL BY JURY, CONSENT TO THE CHOICE OF
VENUE OF THE SUPREME COURT OF THE STATE OF NEW YORK LOCATED IN NEW YORK COUNTY
OR THE FEDERAL DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK TO HEAR ANY
DISPUTE IN CONNECTION WITH THIS GUARANTEE, AND CONSENTS TO SERVICE OF PROCESS IN
AND SUCH PROCEEDING BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED,
AT ITS ADDRESS SPECIFIED IN OR PURSUANT TO SECTION 7 HEREOF.
THE PARTIES HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
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LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
GUARANTEE OR ANY OTHER DOCUMENT OR INSTRUMENT EXECUTED AND DELIVERED IN
CONNECTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN, OR ACTIONS OF THE PARTIES. THIS PROVISION IS A
MATERIAL INDUCEMENT FOR ATN'S ACCEPTANCE OF THIS GUARANTEE.
7. Notices.
All notices to Guarantor or to ATN shall be given in writing by first
class registered United States mail, or by a recognized overnight carrier
service, postage prepaid, and sent to their respective addresses set forth
above, or to such other address as either may specify to the other by due
notice.
8. Entire Agreement.
This instrument contains the entire agreement and understanding between
the parties and supersedes all prior agreements. It may be amended, modified or
waived only by an agreement, in writing, signed by the party against whom
enforcement of any waiver, change, modification, amendment or discharge is
sought, and not orally. The invalidity or unenforceability of any provision
hereof shall not affect the validity or enforceability of any other provision.
9. Headings.
The headings are for organization, convenience and clarity and shall
have no force or effect upon the construction or interpretation hereof.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Guarantee on the date first above written.
PICK COMMUNICATIONS CORP.
Agreed to and Accepted:
By: /s/ Xxxxxx X.Xxxxxxx
------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Agent
ATLANTIC TELENETWORK, INC.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
Title: Chief Financial Officer
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