Exhibit 10.9
GUARANTEE
This GUARANTEE (this "Guarantee"), dated as of August 1, 2007, is by
GoAmerica, Inc., a Delaware corporation (the "Guarantor"), in favor of Stellar
Nordia Services LLC, a Delaware corporation ("Stellar").
W I T N E S S E T H :
WHEREAS, Acquisition 1 Corp., a Delaware corporation (the "Subsidiary"),
has entered into a Managed Services Agreement with Stellar of even date herewith
(as the same now exists or may hereafter be amended, modified, supplemented,
extended, renewed, restated or replaced, the "MSA"), whereby Stellar has agreed
to provide certain services to the Subsidiary, and the Subsidiary has agreed to
pay for such services pursuant to the terms and conditions set forth in the MSA;
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 MSA; and
WHEREAS, it is a condition to the obligations of Stellar under the MSA
that Guarantor shall have executed and delivered this Guarantee to Stellar;
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 Stellar 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 MSA
(which are collectively referred to herein as the "Guaranteed Obligations"). As
used herein, "Obligations" means all obligations and liabilities of the
Subsidiary to Stellar, 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 MSA, including interest which, but for the
filing of a petition in bankruptcy with respect to the Subsidiary, would have
accrued on any Guaranteed Obligations, whether or not a claim is allowed against
the Subsidiary for such interest in the related bankruptcy proceeding.
(b) This Guarantee is a guaranty of payment and not of collection.
The Guarantor agrees that Stellar 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. Stellar shall apply
any amounts received by Stellar from the Guarantor in respect of the Guaranteed
Obligations (i) first, to the payment of the costs and expenses of any
collection or other realization under this Guarantee including all of the
reasonable costs, fees and expenses of Stellar, its agents and counsel and (ii)
second, to the extent of any excess, to the Guaranteed Obligations.
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 MSA that is signed by an authorized officer of the
Subsidiary, and the guarantee made herein shall apply to the MSA 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 Stellar
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 Stellar or
any statements by Stellar in connection with this Guarantee.
(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
Stellar by the Guarantor hereunder, and the Guarantor hereby further irrevocably
and unconditionally waives and relinquishes
2
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 Stellar 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 the MSA shall be in effect.
5. Reinstatement. If after receipt of any payment of any of the Guaranteed
Obligations, Stellar 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 Stellar. The Guarantor shall be liable to pay to
Stellar, and does indemnify and hold Stellar 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 Stellar 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 Stellar and
the Guarantor. Stellar 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 Stellar. Any such waiver shall be enforceable only to the extent
specifically set forth therein. A waiver by Stellar 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 Stellar would otherwise have on any future
occasion, whether similar in kind or otherwise.
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
3
or businesses of the Guarantor or the rights of Stellar hereunder or under the
MSA. 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 against the Guarantor in accordance with its terms.
8. Set Off. In addition to any other rights Stellar may have under law or
in equity, if any amount shall at any time be due and owing by the Guarantor to
Stellar under this Guarantee, Stellar is authorized at any time or from time to
time, without notice (any such notice being hereby expressly waived), to set off
and to appropriate and to apply any and all indebtedness of Stellar owing to the
Guarantor and any other property of the Guarantor held by Stellar to or for the
credit or the account of the Guarantor against and on account of the Guaranteed
Obligations and liabilities of the Guarantor to Stellar under this Guarantee.
9. Expenses. The Guarantor agrees to pay, or cause to be paid, on demand,
and to save Stellar harmless against liability for, any and all reasonable costs
and expenses (including reasonable fees and disbursements of counsel) incurred
or expended by Stellar in connection with the reasonable enforcement of or
preservation of any rights under this Guarantee.
10. Governing Law; Choice of Forum; Service of Process; Jury Trial
Waiver.
(a) This Guarantee, and the rights and obligations of the Guarantor
and Stellar hereunder shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York.
(b) The Guarantor and Stellar hereby voluntarily submit and consent
to, and waive any defense to, the exclusive jurisdiction of the federal or state
courts located in the State of New York, County 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 the MSA in any way connected with or
related or incidental to the dealings of the Guarantor and Stellar in respect of
this Guarantee, and agree that any dispute arising out of the relationship
between the Guarantor or the Subsidiary and Stellar or the conduct of any such
persons in connection with this Guarantee or the MSA may be heard 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
4
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 Stellar'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 which the Guarantor
shall be deemed in default and judgment may be entered by Stellar 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 RELATED AGREEMENTS OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE GUARANTOR AND STELLAR IN RESPECT OF THIS
GUARANTEE OR THE MSA, 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 STELLAR MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE GUARANTOR AND
STELLAR TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11. 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 Stellar, addressed to:
Stellar Nordia Services LLC
Attn: Bernard Durocher, President
3100 Cote Vertu Boulevard
Suite 510
St-Laurent, Quebec
Canada H4R2J8
and with a copy (which shall constitute notice) to:
Cindy Pagel and/or Anne Rousseau
5
c/o 130 East John Carpenter Freeway
Irving, TX 75062
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.
12. 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.
13. 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.
14. Successors and Assigns. This Guarantee shall be binding upon the
Guarantor and its successors and assigns and shall inure to the benefit of
Stellar and its successors, endorsees, transferees and assigns. The Guarantor
shall not assign this Guarantee or any of the rights or obligations of the
Guarantor hereunder without the prior written consent of Stellar which shall not
be unreasonably withheld. Stellar may, without notice or consent, assign its
interest in this Guarantee in whole or in part. The terms and provisions of this
Guarantee shall inure to the benefit of any transferee or assignee of Stellar's
rights and obligations under the MSA, and in the event of such transfer
6
or assignment the rights and privileges herein conferred upon Stellar shall
automatically extend to and be vested in such transferee or assignee.
15. 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 or the Subsidiary in its capacity as debtor or debtor-in-possession under
the United States Bankruptcy Code); and all references to the term "Stellar"
wherever used herein shall mean Stellar and its respective successors and
assigns. 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.
16. 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.
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
------------------
Title: Chief Executive Officer