EXHIBIT 99.5
UNCONDITIONAL GUARANTEE OF PAYMENT AND PERFORMANCE
THIS UNCONDITIONAL GUARANTEE OF PAYMENT AND PERFORMANCE (this
"Guarantee") is made and entered into as of this 30th day of June, 2000, by
NetVoice Technologies Corporation, a Nevada corporation ("Parent"), in
favor of World Access Telecommunications Group, Inc., an Illinois
corporation ("WATG").
R E C I T A L S:
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WHEREAS, Parent is the sole shareholder of NetVoice LP, a Texas
limited partnership ("Netvoice");
WHEREAS, Parent, Netvoice and WATG are parties to that certain Asset
Purchase Agreement, dated as of even date herewith (the "Purchase
Agreement"; capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to such terms in the Purchase Agreement);
WHEREAS, Netvoice has made certain representations and warranties to,
and certain covenants and agreements with, WATG as set forth in the
Purchase Agreement, the Note, the Security Agreement and the Registration
Rights Agreement (the Purchase Agreement, the Note, the Security Agreement
and the Registration Rights Agreement being referred to as the "Operative
Documents");
WHEREAS, the transactions set forth in the Operative Documents will be
of direct and indirect interest and advantage to Parent; and
WHEREAS, pursuant to the terms of this Guarantee, Parent has agreed to
Guarantee Netvoice's payment and performance under the Operative Documents.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Parent does hereby make the
following guarantee to and agreements with WATG:
1. GUARANTEE BY PARENT OF GUARANTEED OBLIGATIONS. Parent hereby
absolutely and unconditionally guarantees the full and prompt payment and
performance by Netvoice of all of its duties and obligations, direct or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising under the Operative Documents (the "Guaranteed
Obligations"). Accordingly, Parent hereby agrees that if any Guaranteed
Obligation is not paid or performed by Netvoice as required by the
applicable Operative Document, Parent shall fully and promptly pay or
perform such Guaranteed Obligation as if Parent itself were a party to the
applicable Operative Document in accordance with the terms and conditions
of the applicable Operative Document. Further, WATG shall be entitled to
enforce the full payment or performance (as the case may be) of any
Guaranteed Obligation against Parent as if it were a party to the Operative
Document containing such Guaranteed Obligation.
Parent hereby acknowledges receipt of a correct and complete copy of
the Operative Documents and consents to all of the terms and provisions
thereof, hereby waives notice of every kind and description (including but
not limited to notice of acceptance of this Guarantee, and notice of
nonperformance or other default) with respect to the Operative
Documents which may be required to be given by any statute or rule of law.
No delay or omission on the part of WATG in exercising any right under the
Operative Documents or any other present or future agreement or instrument
directly or indirectly relating thereto shall operate as a waiver or
relinquishment of any of the rights of WATG hereunder or thereunder.
Parent hereby waives recourse to all suretyship and guarantorship
defenses generally and agrees that this Guarantee shall not be terminated,
modified, affected or impaired, for any reason, including, without
limitation, the following: (a) extensions of time, forebearances, waivers,
and any other indulgences that may be granted to Netvoice or Parent under
or related to the Guaranteed Obligations; (b) any modifications,
amendments, alterations, extensions, or cancellations to or of the
Operative Documents and any other documents and instruments executed and
delivered, now or hereafter, in connection therewith, which modifications,
amendments, alterations, extensions, or cancellations may be made without
notice to or consent of Parent and shall upon completion be included in the
Guaranteed Obligations; (c) any act or omission to act, by or on behalf of
WATG or other person or party, including without limitation, any act or
omission to act against Netvoice; (d) any waiver, release of collateral,
indulgence or extension of time which WATG may grant respecting the
Operative Documents or this Guarantee; (e) any enforcement of or failure to
enforce any of the terms, covenants or conditions of the Operative
Documents or this Guarantee; (f) the discharge of Netvoice in any
creditors', receivership, bankruptcy or other proceedings or the rejection
or disaffirmance of the Operative Documents in any such proceeding; (g) the
elimination, impairment, limitation or modification of the liability of
Netvoice or the estate of Netvoice in bankruptcy, or of any remedy for the
enforcement of Netvoice's liability under the Operative Documents,
resulting from the operation of any present or future provision of the U.S.
Bankruptcy Code or other similar state or federal statute, rule or
regulations, as amended, or from the decision of any court; or (h) any lack
of notice to which Parent might be entitled.
Parent hereby grants to WATG full power, in its uncontrolled
discretion and without notice to Parent, to deal in any manner with the
Guaranteed Obligations or to amend the Operative Documents with Netvoice.
The obligations of Parent hereunder are primary, and WATG shall not be
required to make any demand upon or pursue or exhaust any recourse or
remedies which it may have against Netvoice or against any other persons or
parties, but upon non-performance of or breach of any of the Guaranteed
Obligations, WATG may immediately enforce payment or performance, or both,
from Parent pursuant to this Guarantee.
Parent hereby waives any right to exoneration and waives contribution
from any cosurety and defers any right to reimbursement, indemnity,
subrogation or contribution, or the like, from Netvoice arising from any
payments made by Parent pursuant to the terms of this Guarantee, until all
of the Guaranteed Obligations are duly paid and performed in full.
Parent agrees to pay to WATG on demand all reasonable attorneys' fees
and all other costs and expenses incurred by WATG in connection with the
enforcement or collection of this Guarantee or a sum due hereunder.
2. NO MODIFICATION OF GUARANTEED OBLIGATIONS. In no event shall this
Guarantee be construed to expand, diminish, alter, amend or revise in any
respect or in any manner whatsoever (i) the Guaranteed Obligations, or (ii)
the terms and provisions of the Operative Documents.
3. TERM OF GUARANTEE. This Guarantee shall be effective upon the
execution hereof and shall continue in full force and effect, and be
irrevocable by Parent, until the earlier to occur of (i) such time as the
Guaranteed Obligations have been satisfied in full or expired in accordance
with the terms of the Operative Documents, where applicable, or (ii) such
time, if ever, as all of Netvoice's rights and obligations under the
Operative Documents are assigned to and assumed by Parent. Notwithstanding
the foregoing, no termination of this Guarantee shall relieve Parent of any
of its obligations or liabilities under this Guarantee arising prior to the
date of such termination.
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4. REPRESENTATIONS AND WARRANTIES OF CORPORATION. Parent makes the
following representations and warranties to WATG as of the date hereof:
(a) Parent is a corporation duly organized and validly existing
under the laws of the State of Nevada and is authorized to conduct its
business under those laws.
(b) Parent has the right, power, capacity and authority to enter
into and deliver this Guarantee and to perform its obligations under
this Guarantee. The execution, delivery and performance of this
Guarantee have been approved by all requisite corporate action on the
part of Parent, and, when executed and delivered pursuant hereto, this
Guarantee will constitute a valid and binding obligation of Parent
enforceable in accordance with its terms.
(c) The execution and delivery by Parent of this Guarantee and
its performance hereunder will not: (i) violate, conflict with,
result in a breach of or constitute (with or without notice or lapse
of time or both) a default under, any agreement, indenture, mortgage
or lease to which Parent is a party or by which it or its properties
are bound; (ii) constitute a violation by Parent of any law or
governmental regulation applicable to Parent; (iii) violate any
provision of the Articles of Incorporation or Bylaws of Parent; or
(iv) violate any order, judgment, injunction or decree of any court,
arbitrator or governmental body against or binding upon Parent.
(d) No action of, or filing with, any governmental or public
body is required by Parent to authorize, or is otherwise required in
connection with, the execution and delivery by Parent of this
Guarantee or, if required, the requisite filing has been accomplished
and all necessary approvals obtained. No filing, consent or approval
is required by virtue of the execution of this Guarantee by Parent or
the consummation of any of the transactions contemplated herein by
Parent to avoid the violation or breach of or default under any law,
regulation, order, decree or award of any court or governmental
agency, or any lease, agreement, contract, mortgage, note, license, or
any other instrument to which Parent is a party or is subject.
(e) No representations, warranties, assurances or statements by
Parent in this Guarantee contain any untrue statement of material
fact, or omit or will omit to state any fact necessary, in light of
the circumstances under which such statements were made, in order to
make the statements herein not misleading.
5. NOTICE. All notices, demands and other communications hereunder
shall be in writing and shall be delivered (i) in person, (ii) by United
States mail, certified or registered, with return receipt requested, or
(iii) by national overnight courier (e.g., FedEx) as follows:
If to WATG: World Access Telecommunications Group, Inc.
c/o World Access, Inc.
945 East Paces Ferry Road
Suite 2200
Atlanta, Georgia 30326
Attention: W. Tod Chmar
with copy to: Long Aldridge & Norman LLP
(which shall not 303 Peachtree Street
constitute notice) Suite 5300
Atlanta, Georgia 30308
Attention: H. Franklin Layson, Esq.
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If to Parent: Netvoice Technologies Corporation
13747 Mountfort Drive
Suite 250
Dallas, Texas 75240
Attention: Jeff Rothell
with copy to: Locke Liddell & Sapp LLP
(which shall not 2200 Ross Avenue
constitute notice) Suite 2200
Dallas, Texas 85201
Attention: Jack E. Jacobsen, Esq.
The persons or addresses to which mailings or deliveries shall be made
may be changed from time to time by notice given pursuant to the
provisions of this Section 4. Any notice, demand or other
communication given pursuant to the provisions of this Section 4 shall
be deemed to have been given on the earlier of the date actually
delivered or four (4) days following the date deposited in the United
States mail, properly addressed, postage prepaid, as the case may be.
6. ENTIRE AGREEMENT. This Guarantee and the Operative Documents
constitute the entire understanding of the parties with respect to the
subject matter hereof.
7. SUCCESSORS AND ASSIGNS. All terms and provisions of this
Guarantee shall be binding upon and shall inure to the benefit of the
parties hereto and their respective successors and permitted assigns. This
Guarantee and the rights, privileges, duties and obligations of the parties
hereto may not be assigned or delegated by any party without the prior
written consent of the other party, which may be withheld in the sole and
absolute discretion of such party. Notwithstanding the foregoing, the
prior written consent of the other party shall not be required (a) for the
assignment by any party of its rights and privileges hereunder to a person
or entity controlling, controlled by or under common control with such
party (it being understood that no such assignment shall relieve the
assigning party of its duties or obligations hereunder), or (b) for the
assignment and delegation by any party of its rights, privileges, duties
and obligations hereunder to any person into or with which the assigning
party shall merge or consolidate or to which the assigning party shall sell
all or substantially all of its assets, provided that the assignee formally
agrees in writing to assume all the rights and obligations of the assigning
party created hereby and the assignor shall remain fully responsible for
the obligations hereunder.
8. AMENDMENTS AND WAIVERS. This Guarantee and any of the provisions
hereof shall not be amended, modified or waived in any fashion except by an
instrument in writing signed by the parties hereto. The waiver by a party
of any breach of this Guarantee by another party shall not operate or be
construed as the waiver of the same or another breach on a subsequent
occasion, nor shall any delay in exercising any right, power or privilege
hereunder constitute a waiver thereof.
9. SEVERABILITY OF PROVISIONS. If any provision of this Guarantee,
or the application of any such provision to any person or circumstance, is
invalid or unenforceable, the remainder of this Guarantee, or the
application of such provision to persons or circumstances other than those
as to which it is invalid or unenforceable, shall not be affected by such
invalidity or unenforceability.
10. GOVERNING LAW. This Guarantee is made and entered into under the
laws of the State of Georgia, and the laws of that State applicable to
agreements made and to be performed entirely therein (without giving effect
to the principles of conflicts of laws thereof) shall govern the validity
and
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interpretation hereof and the performance by parties hereto of their
respective duties and obligations hereunder.
11. COUNTERPARTS; DELIVERY. This Guarantee may be executed in any
number of counterparts, all of which taken together shall constitute one
instrument. The parties acknowledge that delivery of executed counterparts
of this Guarantee may be effected by a facsimile transmission or other
comparable means, with an original document to be delivered promptly
thereafter via overnight courier.
(SIGNATURES ON FOLLOWING PAGE)
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IN WITNESS WHEREOF, the parties hereto have duly executed and
delivered this Guarantee, as of the date first above written.
"PARENT"
NETVOICE TECHNOLOGIES CORPORATION
By: /s/ JEFF ROTHELL
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Name: Jeff Rothell
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Title: President and Chief Executive Officer
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"WATG"
WORLD ACCESS TELECOMMUNICATIONS GROUP, INC.
By: /s/ MARK A. GERGEL
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Name: Mark A. Gergel
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Title: Vice President
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