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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
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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
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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 amen
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