exh_477394.htm



EXHIBIT 10.7




 


AMENDED AND RESTATED NOTE







THIS AMENDED AND RESTATED NOTE (“NOTE”) HAS NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN COMPLIANCE WITH APPLICABLE STATE SECURITIES OR BLUE SKY LAWS.












THIS INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBJECT TO THE TERMS AND CONDITIONS OF THE NOTE PURCHASE AGREEMENT (AS SUCH TERM IS DEFINED BELOW) AND ARE SUBORDINATE IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SECOND AMENDED AND RESTATED INTERCREDITOR AGREEMENT (THE “INTERCREDITOR AGREEMENT”) DATED AS OF APRIL 30, 2012 AMONG SILICON VALLEY BANK, AS SENIOR LENDER, THE SUBORDINATED CREDITORS PARTY THERETO, AND BIA DIGITAL PARTNERS SBIC II LP, AS AGENT FOR THE SUBORDINATED CREDITORS, AND ACKNOWLEDGED BY THE BORROWER (AS SUCH TERM IS DEFINED BELOW) AS THE SAME  MAY BE AMENDED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME AS PERMITTED UNDER THE INTERCREDITOR AGREEMENT; AND EACH HOLDER OF THIS INSTRUMENT, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY AGREES TO BE BOUND BY THE PROVISIONS OF THE INTERCREDITOR AGREEMENT.



















	
$8,500,000

	
April 30, 2012







 

 




FOR VALUE RECEIVED, intending to be legally bound hereby, GLOBAL TELECOM & TECHNOLOGY, INC., a Delaware corporation (“GTTI”), GLOBAL TELECOM & TECHNOLOGY AMERICAS, INC., a Virginia corporation (“GTTA”), WBS CONNECT, LLC, a Colorado limited liability company (“WBS”), PACKETEXCHANGE, INC., a Delaware corporation (“PEI”), PACKETEXCHANGE (USA), INC., a Delaware corporation (“PEIUSA”) and NLAYER COMMUNICATIONS, INC., an Illinois corporation (“nLayer” and together with GTTI, GTTA, WBS, PEI and PEIUSA, individually and collectively, jointly and severally, the “Borrower”), hereby promise to pay to the order of BIA DIGITAL PARTNERS SBIC II LP, a Delaware limited partnership or its registered assigns (the “Purchaser”) at the office of the Purchaser initially located at 15120 Enterprise Court, Chantilly, VA 20151 (or such other address as the Purchaser may specify in writing to Borrower), the principal sum of EIGHT MILLION FIVE HUNDRED THOUSAND DOLLARS ($8,500,000), or such lesser amount as shall equal the aggregate unpaid principal amount of this Note, on the dates specified in the Note Purchase Agreement and to pay interest on such principal amount on the dates and at the rates (including, if applicable, the Default Rate) specified in the Note Purchase Agreement.  All payments due to the Purchaser under this Note shall be made at the place, in the type of money and funds and in the manner specified in the Note Purchase Agreement.







As used in this Note, “Note Purchase Agreement” shall mean the Amended and Restated Note Purchase Agreement dated as of the date hereof, among Borrower, the other Note Parties signatory thereto, the financial institutions identified therein as Purchasers and BIA Digital Partners SBIC II LP, as agent for the Purchasers (in such capacity the “Agent”), as amended, supplemented and/or modified from







 









  





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time to time.  Capitalized terms that are used herein and not defined herein shall have the meaning given to such terms in the Note Purchase Agreement.







This Note may be voluntarily prepaid, and is subject to mandatory prepayment, in accordance with the provisions applicable to prepayments set forth in the Note Purchase Agreement.







This Note shall be construed and interpreted in accordance with the laws of the State of New York (excluding the laws applicable to conflicts or choice of law).  If any of the terms of this Note, or any agreement or instrument securing payment hereof, shall be declared invalid by any court of competent jurisdiction, such invalidity shall not affect any of the other terms hereof or such other instrument.







The holder of this Note is entitled to all of the benefits under the Note Purchase Agreement and the other Note Documents including certain security provided thereunder and, upon the occurrence of certain events or conditions, payment of the Default Rate of interest.  In addition, in case an Event of Default shall occur, the principal of, and accrued interest and fees, if any, on this Note shall become due and payable in the manner and with the effect provided in the Note Purchase Agreement.







Borrower hereby waives presentment for payment, demand, and, except for notices specifically required by the Note Purchase Agreement, notice of nonpayment, notice of protest, and protest of this Note, and all other notices or demands in connection with the delivery, acceptance, performance, default, dishonor, or enforcement of the payment of this Note.







This Note was issued with original issue discount (as defined in § 1273(a) of the Code and Regulation § 1-1273-1 promulgated thereunder). The Purchaser can obtain the information described in Regulation § 1. 1275-3 promulgated under the Code by writing to: Global Telecom and Technology, Inc., 8484 Westpark Drive, Suite 720, McLean, Virginia 22102, Attention:  Chief Financial Officer.







This Note is the Amended and Restated Note referred to in Section 2.1.5(a) of the Note Purchase Agreement. This Note amends and restates the indebtedness evidenced by (i) that certain Note, dated June 6, 2011, previously issued by Borrowers (other than nLayer) in favor of Purchaser (the “Initial Takedown Note”), and (ii) that certain Note, dated September 19, 2011, previously issued by Borrowers (other than nLayer) in favor of Purchaser (the “Subsequent Takedown Note,” together with the Initial Takedown Note, the “Prior Notes”).  This Note evidences a continuation of, and not a repayment and reborrowing, termination or novation of, the indebtedness heretofore outstanding under the Prior Notes.












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IN WITNESS WHEREOF, Borrower has caused this Note to be duly executed as of the date first above written.








	  

GLOBAL TELECOM & TECHNOLOGY, INC.


 


 


By: /s/ Richard D. Calder, Jr.


Name:  Richard D. Calder, Jr.


Title:  President and Chief Executive Officer

	 	  

GLOBAL TELECOM & TECHNOLOGY AMERICAS, INC.


 


 


By: /s/ Richard D. Calder, Jr.                                                               


Name:  Richard D. Calder, Jr.


Title:  President and Chief Executive Officer

	
 


	  

PACKETEXCHANGE, INC.


 


 


By: /s/ Richard D. Calder, Jr.                                            


Name:  Richard D. Calder, Jr.


Title:  President and Chief Executive Officer


 


 


PACKETEXCHANGE (USA), INC.


 


 


By:    /s/ Richard D. Calder, Jr. 


Name:  Richard D. Calder, Jr.


Title:  President and Chief Executive Officer

	
 

	  

WBS CONNECT, LLC


 


 


By: /s/ Richard D. Calder, Jr.                                                             


Name:  Richard D. Calder, Jr.


Title:  CEO and President of the Sole Managing Member


 


 



NLAYER COMMUNICATIONS, INC.


 


 


By: /s/ Richard D. Calder, Jr.                                                              


Name:  Richard D. Calder, Jr.


Title:  President and Chief Executive Officer



	
 


 


 


 
















Amended and Restated Note


(BIA Digital Partners SBIC II LP)