Exhibit 10.8
EXECUTION VERSION
GUARANTEE
This GUARANTEE (this "Guarantee"), dated as of August 1, 2007, is by
GOAMERICA, INC., a Delaware corporation (the "Guarantor"), in favor of MCI
COMMUNICATIONS SERVICES, INC., a Delaware corporation ("MCI").
W I T N E S S E T H :
WHEREAS, Acquisition 1 Corp., a Delaware corporation (the "Subsidiary"),
has entered into an Asset Purchase Agreement with MCI of even date herewith (as
the same now exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced, the "Agreement"), whereby MCI has
agreed to sell to the Subsidiary, and the Subsidiary has agreed to purchase from
MCI, certain assets described in the Agreement, all subject to and in accordance
with the terms and conditions set forth in the Agreement, and the other
agreements, documents and instruments referred to therein or at any time
executed and/or delivered in connection therewith or related thereto, including,
but not limited to, the Assignment and Assumption Agreement, the Commercial
Services Agreement, the Facilities Use Agreement, the Transition Services
Agreement, the IP License Agreement, the Transitional Use Intellectual Property
License Agreement (all as defined in the Agreement), and this Guarantee (all of
the foregoing, together with the Agreement, as the same now exist or may
hereafter be amended, modified, supplemented, extended, renewed, restated or
replaced, being collectively referred to herein as the "Acquisition
Agreements"); and
WHEREAS, the Subsidiary is wholly owned by the Guarantor; and
WHEREAS, substantial benefits will accrue to the Guarantor as a result of
the consummation of the transactions contemplated by the Acquisition Agreements;
and
WHEREAS, it is a condition to the obligations of MCI under the Agreement
that Guarantor shall have executed and delivered this Guarantee to MCI;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor hereby agrees in favor of MCI as follows:
1. Guarantee.
(a) The Guarantor absolutely and unconditionally guarantees and
agrees to be liable for the full and indefeasible payment and performance when
due of all of the Obligations (as defined below) of the Subsidiary under the
Acquisition Agreements (all of which are collectively referred to herein as the
"Guaranteed Obligations"). As
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used herein, "Obligations" means all obligations and liabilities of the
Subsidiary to MCI, whether direct or indirect, absolute or contingent, due or to
become due, or now existing or hereafter incurred, which may arise under, out of
or in connection with, the Acquisition Agreements.
(b) This Guarantee is a guaranty of payment and not of collection.
The Guarantor agrees that MCI need not attempt to collect any Guaranteed
Obligations from the Subsidiary, but may require the Guarantor to make payment
of all of the Guaranteed Obligations when due or at any time thereafter. MCI
shall apply any amounts received in respect of the Guaranteed Obligations to any
of the Guaranteed Obligations, as if such payments were made by Subsidiary.
2. Waivers and Consents.
(a) Notice of acceptance of this Guarantee and of the presentment,
demand, protest, notice of protest, notice of nonpayment or default and all
other notices to which the Subsidiary or the Guarantor may be entitled are
hereby waived by the Guarantor. The Guarantor also waives notice of and hereby
consents to (i) any amendment, modification, supplement, extension, renewal or
restatement of the Agreement and any of the other Acquisition Agreements that is
signed by an authorized officer of the Subsidiary, and the guarantee made herein
shall apply to the Agreement and the other Acquisition Agreements and the
Guaranteed Obligations as so amended, modified, supplemented, renewed, restated
or extended, increased or decreased, (ii) the exercise of, or refraining from
the exercise of, any rights against the Subsidiary, and (iii) the settlement,
compromise or release of, or the waiver of any default with respect to, any of
the Guaranteed Obligations. The Guarantor agrees that the liability of the
Guarantor hereunder shall not be released or otherwise impaired or affected by
any of the foregoing.
(b) No invalidity, irregularity or unenforceability of all or any
part of the Guaranteed Obligations shall affect, impair or be a defense to this
Guarantee, nor shall any other circumstance that might otherwise constitute a
defense available to or legal or equitable discharge of the Subsidiary in
respect of any of the Guaranteed Obligations, affect, impair or be a defense to
this Guarantee. As to interest, fees and expenses, whether arising before or
after the commencement of any case with respect to the Subsidiary under the
United States Bankruptcy Code or any similar statute, the Guarantor shall be
liable therefor, even if the Subsidiary's liability for such amounts does not,
or ceases to, exist by operation of law. The Guarantor acknowledges that MCI has
not made any representations to the Guarantor with respect to the Subsidiary or
otherwise in connection with the execution and delivery by the Guarantor of this
Guarantee and the Guarantor is not in any respect relying upon MCI or any
statements by MCI in connection with this Guarantee.
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(c) Until the Guaranteed Obligations are paid and performed in full,
the Guarantor hereby irrevocably and unconditionally waives and relinquishes all
statutory, contractual, common law, equitable and all other claims against the
Subsidiary for subrogation, reimbursement, exoneration, contribution,
indemnification, setoff or other recourse in respect to sums paid or payable to
MCI by the Guarantor hereunder, and the Guarantor hereby further irrevocably and
unconditionally waives and relinquishes any and all other benefits that the
Guarantor might otherwise directly or indirectly receive or be entitled to
receive by reason of any amounts paid by or collected or due from the Guarantor
or the Subsidiary upon the Guaranteed Obligations or realized from their
property.
3. Subordination. All amounts now or hereafter owed to the Guarantor by
the Subsidiary are hereby subordinated in right of payment to the indefeasible
payment in full to MCI of the Guaranteed Obligations.
4. Termination. This Guarantee is continuing, unlimited, absolute and
unconditional. All Guaranteed Obligations shall be conclusively presumed to have
been created in reliance on this Guarantee. This Guarantee may not be terminated
and shall continue so long as any of the Acquisition Agreements shall be in
effect.
5. Reinstatement. If after receipt of any payment of any of the Guaranteed
Obligations, MCI is required to surrender or return such payment or proceeds to
any person for any reason, then the Guaranteed Obligations intended to be
satisfied by such payment or proceeds shall be reinstated and continue and this
Guarantee shall continue in full force and effect as if such payment or proceeds
had not been received by MCI. The Guarantor shall be liable to pay to MCI, and
does indemnify and hold MCI harmless for, the amount of any payments or proceeds
surrendered or returned. This Section 5 shall remain effective notwithstanding
any contrary action that may be taken by MCI in reliance upon such payment or
proceeds. This Section 5 shall survive the termination or revocation of this
Guarantee.
6. Amendments and Waivers. Neither this Guarantee nor any provision hereof
shall be amended, modified, waived or discharged orally or by course of conduct,
but only by a written agreement signed by an authorized officer of MCI and the
Guarantor. MCI shall not by any act, delay, omission or otherwise be deemed to
have expressly or impliedly waived any of its rights, powers and/or remedies
unless such waiver shall be in writing and signed by an authorized officer of
MCI. Any such waiver shall be enforceable only to the extent specifically set
forth therein. A waiver by MCI of any right, power and/or remedy on any one
occasion shall not be construed as a bar to or waiver of any such right, power
and/or remedy that MCI would otherwise have on any future occasion, whether
similar in kind or otherwise.
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7. Corporate Existence, Power and Authority. The Guarantor is a
corporation duly organized and in good standing under the laws of the State of
Delaware, and is duly qualified as a foreign corporation and in good standing in
all states where the nature and extent of the business transacted by it or the
ownership of assets makes such qualification necessary, except for those
jurisdictions in which the failure to so qualify would not have a material
adverse effect on the financial condition, results of operation or businesses of
the Guarantor or the rights of MCI hereunder or under any of the other
Acquisition Agreements. The execution, delivery and performance of this
Guarantee are within the corporate powers of the Guarantor, have been duly
authorized and are not in contravention of law or the terms of the certificate
of incorporation or by-laws of the Guarantor, or any indenture, agreement or
undertaking to which the Guarantor is a party or by which the Guarantor or its
property are bound. This Guarantee constitutes the legal, valid and binding
obligation of the Guarantor enforceable in accordance with its terms.
8. Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver.
(a) The validity, interpretation and enforcement of this Guarantee
and any dispute arising out of the relationship between the Guarantor and MCI,
whether in contract, tort, equity or otherwise, shall be governed by the
internal laws of the State of New York, but excluding any principles of
conflicts of law or other rule of law that would cause the application of the
law of any jurisdiction other that the laws of the State of New York.
(b) The Guarantor and MCI hereby voluntarily submit and consent to,
and waive any defense to, the jurisdiction of the federal or state courts
located in the State of New York as to all matters relating to or arising from
this Guarantee with respect to any action instituted therein arising under this
Guarantee or any of the other Acquisition Agreements or in any way connected
with or related or incidental to the dealings of the Guarantor and MCI in
respect of this Guarantee or any of the other Acquisition Agreements or the
transactions related hereto or thereto, in each case whether now existing or
hereafter arising, and agree that any dispute arising out of the relationship
between the Guarantor or the Subsidiary and MCI or the conduct of any such
persons in connection with this Guarantee, the other Acquisition Agreements or
otherwise shall be heard only in the courts described above.
(c) The Guarantor hereby waives personal service of any and all
process upon it and consents that all such service of process may be made by
certified mail (return receipt requested) directed to its address set forth on
the signature pages hereof and service so made shall be deemed to be completed
five (5) days after the same shall have been so deposited in the U.S. mails, or,
at MCI's option, by service upon the Guarantor in any other manner provided
under the rules of any such courts. Within thirty (30) days after such service,
the Guarantor shall appear in answer to such process, failing
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which the Guarantor shall be deemed in default and judgment may be entered by
MCI against the Guarantor for the amount of the claim and other relief
requested.
(d) THE GUARANTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS GUARANTEE OR ANY
OF THE OTHER ACQUISITION AGREEMENTS OR (ii) IN ANY WAY CONNECTED WITH OR RELATED
OR INCIDENTAL TO THE DEALINGS OF THE GUARANTOR AND MCI IN RESPECT OF THIS
GUARANTEE OR ANY OF THE OTHER ACQUISITION AGREEMENTS OR THE TRANSACTIONS RELATED
HERETO OR THERETO IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND
WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. THE GUARANTOR HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED
BY COURT TRIAL WITHOUT A JURY AND THAT ANY THE GUARANTOR OR MCI MAY FILE AN
ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE GUARANTOR AND MCI TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
9. Notices. Unless otherwise provided herein, any notice, request,
instruction or other document to be given hereunder shall be in writing and
shall be deemed to have been given (a) upon personal delivery, if delivered by
hand, (b) eight (8) business days after the date of deposit in the mails,
postage prepaid, if mailed by certified or registered mail, or (c) the next
business day if sent by a prepaid overnight courier service, and in each case at
the respective addresses set forth below or such other address as such party may
have fixed by notice:
If to MCI, addressed to:
MCI Communications Services, Inc.
22001 Loudoun County Parkway
Ashburn, Virginia 20147
Facsimile: (703) 886-0895
Attention: Stephen R. Mooney
with a copy (which shall not constitute notice) to:
Verizon Communications Inc.
140 West Street, 29th Floor
New York, New York 10007
Facsimile: (908) 766-3813
Attention: Marianne Drost, Esq.
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If to Guarantor, addressed to:
GoAmerica, Inc.
433 Hackensack Avenue, 3rd Floor
Hackensack, New Jersey 07601
Facsimile: (201) 527-1084
Attention: Daniel R. Luis, CEO
with a copy (which shall not constitute notice) to:
Chadbourne & Parke LLP
1200 New Hampshire Avenue, N.W.
Suite 300
Washington, DC 20036
Facsimile: (202) 974-5602
Attention: Dana Frix, Esq.
10. Partial Invalidity. If any provision of this Guarantee is held to be
invalid or unenforceable, such invalidity or unenforceability shall not
invalidate this Guarantee as a whole, but this Guarantee shall be construed as
though it did not contain the particular provision held to be invalid or
unenforceable and the rights and obligations of the parties shall be construed
and enforced only to such extent as shall be permitted by applicable law.
11. Entire Agreement. This Guarantee represents the entire agreement and
understanding of the parties concerning the subject matter hereof, and
supersedes all other prior agreements, understandings, negotiations and
discussions, representations, warranties, commitments, proposals, offers and
contracts concerning the subject matter hereof, whether oral or written.
12. Successors and Assigns. This Guarantee shall be binding upon the
Guarantor and its successors and assigns and shall inure to the benefit of MCI
and its successors, endorsees, transferees and assigns.
13. Construction. All references to the term "Guarantor" wherever used
herein shall mean the Guarantor and its successors and assigns, individually and
collectively, jointly and severally (including, without limitation, any
receiver, trustee or custodian for any the Guarantor or any of its respective
assets or the Guarantor in its capacity as debtor or debtor-in-possession under
the United States Bankruptcy Code); all references to the term "Subsidiary"
wherever used herein shall mean the Subsidiary and its successors and assigns,
individually and collectively, jointly and severally (including, without
limitation, any receiver, trustee or custodian for the Subsidiary or any of its
assets
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or the Subsidiary in its capacity as debtor or debtor-in-possession under the
United States Bankruptcy Code); and all references to the term "MCI" wherever
used herein shall mean MCI and its respective successors and assigns and shall
include each affiliate of MCI that is a party to any Acquisition Agreement. All
references to the term "person" wherever used herein shall mean any individual,
sole proprietorship, partnership, corporation (including, without limitation,
any corporation which elects subchapter S status under the Internal Revenue Code
of 1986, as amended), limited liability company, limited liability partnership,
business trust, unincorporated association, joint stock corporation, trust,
joint venture or other entity or any government or any agency or instrumentality
of political subdivision thereof. All references to the plural shall also mean
the singular and to the singular shall also mean the plural.
14. Counterparts. This Guarantee may be executed in any number of
counterparts, each of which shall be an original, but all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of this Guarantee by facsimile shall have the same force and effect
as the delivery of an original executed counterpart of this Guarantee. Any party
delivering an executed counterpart of this Guarantee by facsimile shall also
deliver an original executed counterpart, but the failure to do so shall not
affect the validity, enforceability or binding effect of this Guarantee.
[Signatures on following page]
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[Signature page of Guarantee]
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be executed
and delivered by its duly authorized representative as of the day and year first
above written.
GOAMERICA, INC.
By: /s/ Daniel R. Luis
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Title: Chief Executive Officer