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Exhibit 99.5
GUARANTEE
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THIS GUARANTEE, dated as of August ___, 1999 is executed by the
undersigned ("GUARANTOR") in favor of WFC Holdings Corporation, a Delaware
corporation ("WFC").
RECITALS
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WHEREAS, XxxxxXxx.xxx, Inc., a Delaware corporation ("OBLIGOR"), is a
wholly owned subsidiary of Guarantor and has issued to WFC a $15,000,000 Term
Note dated as of the date hereof (the "TERM NOTE"); and the Term Note is
convertible into the Obligor's Series A Preferred Stock (the "SERIES A").
WHEREAS, the Term Note and the Series A are each subject to mandatory
prepayment or redemption under certain circumstances.
WHEREAS, WFC's willingness to enter into these transactions is subject
to receipt by it of this Guarantee duly executed by Guarantor.
AGREEMENT
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For good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, and intending to be legally bound, Guarantor hereby
agrees with WFC as follows:
(a) GUARANTEE. Guarantor unconditionally guarantees and promises (i) to
pay to WFC, or order, at WFC's office located at the address set forth in
Section 3(a) hereof, on demand after the default (after any applicable cure
period) by Obligor in the performance of its Obligations, in lawful money of the
United States, any and all Obligations (as hereinafter defined) consisting of
payments due to WFC, and, (ii) at WFC's option and not in substitution for
Guarantor's payment obligations hereunder, to perform on demand any and all
other Obligations in the place of Obligor. For purposes of this Guarantee the
term "OBLIGATIONS" shall mean and include all payments, liabilities and
obligations, howsoever arising, owed by Obligor to WFC of every kind and
description, direct or indirect, absolute or contingent, due or to become due,
now existing or hereafter arising pursuant to the terms of (i) the "Repayment
and Prepayment" section of the Term Note and (ii) if WFC converts all or a
portion of the Term Note into shares of Series A, Article IV Section 3 of
Obligor's Amended and Restated Certificate of Incorporation.
(b) This Guarantee is absolute, unconditional, continuing and
irrevocable and constitutes an independent guarantee of payment and not of
collectibility, and is in no way conditioned on or contingent upon any attempt
to enforce in whole or in part any of Obligor's Obligations to WFC, the
existence or continuance of Obligor as a legal entity, the consolidation or
merger of Obligor with or into any other entity, the sale, lease or disposition
by Obligor of all or substantially all of its assets to any other entity, or the
bankruptcy or insolvency of Obligor, the admission by Obligor of its inability
to pay its debts as they mature, or the making by Obligor of a general
assignment for the benefit of, or entering into a composition or arrangement
with, creditors. If Obligor shall fail to pay or perform any Obligations to WFC
which are subject to this Guarantee as and when they are due, Guarantor
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shall forthwith pay to WFC all such liabilities or obligations in immediately
available funds. Each failure by Obligor to pay or perform any such liabilities
or obligations shall give rise to a separate cause of action, and separate suits
may be brought hereunder as each cause of action arises.
(c) WFC, may at any time and from time to time, without the consent of
or notice to Guarantor, except such notice as may be required by applicable
statute which cannot be waived, without incurring responsibility to Guarantor,
and without impairing or releasing the obligations of Guarantor hereunder, (i)
change the manner, place and terms of payment or change or extend the time of
payment of, renew, or alter any Obligation hereby guaranteed, or in any manner
modify, amend or supplement the terms of the Contract or any documents,
instruments or agreements executed in connection therewith, (ii) exercise or
refrain from exercising any rights against Obligor or others (including
Guarantor) or otherwise act or refrain from acting, (iii) settle or compromise
any Obligations hereby guaranteed and/or any obligations and liabilities
(including any of those hereunder) incurred directly or indirectly in respect
thereof or hereof, and may subordinate the payment of all or any part thereof to
the payment of any obligations and liabilities which may be due to WFC or
others, (iv) sell, exchange, release, surrender, realize upon or otherwise deal
with in any manner or in any order any property pledged or mortgaged by anyone
to secure or in any manner securing the Obligations hereby guaranteed, (v) take
and hold security or additional security for any or all of the obligations or
liabilities covered by this Guarantee, and (vi) assign its rights and interests
under this Guarantee, in whole or in part.
(d) No invalidity, irregularity or unenforceability of the Obligations
hereby guaranteed shall affect, impair, or be a defense to this Guarantee.
Guarantor agrees that Guarantor shall be liable even if Obligor had no liability
at the time of Term Note or thereafter ceased or ceases to be liable and agrees
that by so doing Guarantor's liability may be larger in amount and more
burdensome than that of Obligor.
(e) This is a continuing Guarantee for which Guarantor receives
continuing consideration and all obligations to which it applies or may apply
under the terms hereof shall be conclusively presumed to have been created in
reliance hereon and this Guarantee is therefore irrevocable without the prior
written consent of WFC.
2. WAIVERS. (a) Guarantor, to the extent permitted under applicable law,
hereby waives any right to require WFC to (i) proceed against Obligor or any
other guarantor of Obligor's Obligations, (ii) proceed against or exhaust any
security received from Obligor or any other guarantor of Obligor's Obligations,
or (iii) pursue any other right or remedy in the WFC's power whatsoever.
(b) Guarantor further waives, to the extent permitted by applicable
law, (i) any defense resulting from the absence, impairment or loss of any right
of reimbursement, subrogation, contribution or other right or remedy of
Guarantor against Obligor, any other guarantor of the Obligations or any
security; (ii) any setoff or counterclaim of Obligor or any defense which
results from any disability or other defense of Obligor or the cessation or stay
of enforcement from any cause whatsoever of the liability of Obligor (including,
without limitation, the lack of validity or enforceability of the Contract);
(iii) any right to exoneration of sureties which would otherwise be applicable;
(iv) any right of subrogation or reimbursement and, if there are any other
guarantors of the Obligations, any right of contribution, and right to enforce
any remedy which WFC now has or may hereafter have against Obligor, and any
benefit of, and any right to participate in, any security
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now or hereafter received by WFC; (v) all presentments, demands for performance,
notices of non-performance, notices delivered under the Contract, protests,
notice of dishonor, and notices of acceptance of this Guarantee and of the
existence, creation or incurring of new or additional Obligations and notices of
any public or private foreclosure sale; (vi) the benefit of any statute of
limitations; (vii) any appraisement, valuation, stay, extension, moratorium
redemption or similar law or similar rights for marshalling; and (viii) any
right to be informed by WFC of the financial condition of Obligor or any other
guarantor of the Obligations or any change therein or any other circumstances
bearing upon the risk of nonpayment or nonperformance of the Obligations.
Guarantor has the ability to and assumes the responsibility for keeping informed
of the financial condition of Obligor and any other guarantors of the
Obligations and of other circumstances affecting such nonpayment and
nonperformance risks.
3. MISCELLANEOUS.
(a) NOTICES. Except as otherwise provided herein, all notices or other
communications to or upon WFC or Guarantor under this Guarantee shall be by
telecopy or in writing and telecopied, mailed or delivered to each party at
telecopier number or its address set forth below with respect to WFC and at the
telecopier number or address set forth on the signature page hereof with respect
to Guarantor. All such notices and communications: when sent by Federal Express
or other overnight service, shall be effective on the business day following the
deposit with such service; when mailed, first class postage prepaid and
addressed as aforesaid in the mails, shall be effective upon receipt; when
delivered by hand, shall be effective upon delivery; and when telecopied, shall
be effective upon confirmation of receipt.
WFC: WFC Holdings Corporation
---- 000 Xxxxxx Xxxxxx,
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
Telephone: 000 000-0000
Telecopier: 000 000-0000
(b) NONWAIVER. No failure or delay on WFC's part in exercising any
right hereunder shall operate as a waiver thereof or of any other right nor
shall any single or partial exercise of any such right preclude any other
further exercise thereof or of any other right.
(c) AMENDMENTS AND WAIVERS. This Guarantee may not be amended or
modified, nor may any of its terms be waived, except by written instruments
signed by Guarantor and WFC. Each waiver or consent under any provision hereof
shall be effective only in the specific instances for the purpose for which
given.
(d) ASSIGNMENTS. This Guarantee shall be binding upon and inure to the
benefit of WFC and Guarantor and their respective successors and assigns;
PROVIDED, HOWEVER, that without the prior written consent of WFC (not to be
unreasonably withheld), Guarantor may not assign its rights and obligations
hereunder.
(e) CUMULATIVE RIGHTS, ETC. The rights, powers and remedies of WFC
under this Guarantee shall be in addition to all rights, powers and remedies
given to WFC by virtue of any
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applicable law, rule or regulation, the Term Note and the related Credit
Agreement or any other agreement, all of which rights, powers, and remedies
shall be cumulative and may be exercised successively or concurrently without
impairing WFC's rights hereunder.
(f) PARTIAL INVALIDITY. If at any time any provision of this Guarantee
is or becomes illegal, invalid or unenforceable in any respect under the law or
any jurisdiction, neither the legality, validity or enforceability of the
remaining provisions of this Guarantee nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
(g) GOVERNING LAW; JURISDICTION. This Guarantee shall be governed by
and construed in accordance with the laws of the State of Delaware without
reference to conflicts of law rules. Any such process or summons in connection
with any such action or proceeding may be served by mailing a copy thereof by
certified or registered mail, or any substantially similar form of mail,
addressed to Guarantor as provided for notices hereunder.
(h) JURY TRIAL. EACH OF GUARANTOR AND WFC, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY
JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS GUARANTEE.
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IN WITNESS WHEREOF, Guarantor has caused this Guarantee to be executed
as of the day and year first above written.
NAVIDEC, INC.
By:
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Name: J. Xxxxx Xxxxxx
Title: President
Address: 00 Xxxxxxxxx Xx, Xxxxx X-000
Xxxxxxxxx, Xxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Benesch, Friedlander, Xxxxxx & Aronoff LLP
0000 XX Xxxxx
000 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
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