Exhibit 99.4
GUARANTEE
For $10.00 and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned XXXXXX XXXXXXXX, a
Colorado resident (the "Guarantor"), hereby irrevocably, absolutely and
unconditionally guarantees to YDI WIRELESS, INC. (the "Creditor"), its
successors and assigns, the prompt payment and performance in full of all
payment and reimbursement obligations of RICOCHET INVESTMENTS, LLC, a Colorado
limited liability company (the "Debtor"), set forth in Section 5.1(b) of that
certain Stock Purchase Agreement, dated of even date herewith, between the
Debtor and the Creditor (collectively, the "Obligations").
This is an absolute, primary, unconditional, present, and continuing
guarantee of payment and performance and not of collection. This Guarantee shall
remain in full force and effect and be binding upon the Guarantor until all
Obligations and all additional obligations under this Guarantee shall have been
irrevocably paid and performed in full. The Creditor shall be under no
obligation to take any action against the Debtor or resort to any collateral
security held by it or to secure any of the Obligations as a condition precedent
to the Guarantor being obligated to perform as agreed herein; provided, however,
that Creditor agrees not to demand performance by Guarantor under this Guarantee
unless the Debtor fails to perform its obligations within five (5) business days
after demand is made to the Debtor for performance. The Guarantor hereby waives
any rights to interpose any defense, counterclaim or offset of any nature and
description which it may have or which may exist between or among the Debtor,
the Guarantor, and/or the Creditor.
The Guarantor hereby assents that the Creditor, at its discretion, may
from time to time, without notice to or further consent of the Guarantor, extend
the time of payment of, exchange, release, surrender or redeem any collateral
for, increase, renew or extend any of the Obligations, and may also make any
agreement with the Debtor or with any other party to or person liable on any of
the Obligations, for the extension, renewal, modification, payment, compromise,
discharge or release thereof, in whole or in part, without in any way impairing
or affecting this Guarantee.
The Guarantor waives notice of the acceptance of this Guarantee and of any
liability to which it applies or may apply, presentment, demand for payment from
anyone whomsoever liable upon any of the Obligations, protest, notice of
presentment, notice of dishonor, notice of protest, and, to the extent permitted
by applicable law, all other notices and demands. The Guarantor irrevocably
waives any and all rights to which it may be entitled, by operation of law or
otherwise, upon making any payment hereunder, to be subrogated to the rights of
the Creditor against the Debtor with respect to such payment or otherwise to be
reimbursed, indemnified or exonerated by the Debtor in respect thereof until the
Obligations have been irrevocably paid in full.
The Guarantor agrees to pay on demand any and all costs and expenses
(including reasonable expenses for legal services) relating to the enforcement
or protection of the rights of the Creditor hereunder.
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No failure of the Creditor to exercise, and no delay in exercising, any
right, remedy or power hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise by the Creditor of any right, remedy or power
hereunder preclude any future exercise of any right, remedy or power. Each and
every right, remedy and power hereby granted to the Creditor or allowed it by
law or other agreement shall be cumulative and not exclusive of any other, and
may be exercised by the Creditor at any time and from time to time.
This Guarantee may not be waived, modified or terminated except by a
writing executed by the Creditor and the Guarantor. This Guarantee shall bind
all successors and assigns of the Guarantor and shall inure to the benefit of
the Creditor's successors and assigns. The Guarantor shall not assign or
delegate its rights or obligations hereunder without the prior written consent
of the Creditor. The provisions of this Guarantee are severable. If any
provision of this Guarantee is finally held invalid or unenforceable, the
operation of such provision shall be limited to the extent valid and
enforceable. This Guarantee contains the entire understanding of the parties
hereto, and supersedes all prior written or oral agreements and understandings,
with respect to the subject matter hereof. This Guarantee shall be governed by
and construed in accordance with the internal laws of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has signed this Guarantee as of the
25th day of June, 2004.
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
STATE OF COLORADO
CITY AND COUNTY OF DENVER, SS. June 28, 2004
Then personally appeared the above named XXXXXX XXXXXXXX, and acknowledged
the foregoing instrument to be his free act and deed before me.
(Seal) /s/ Xxxxxx X. Xxxxxx
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Notary Public
Name: Xxxxxx X. Xxxxxx
My Commission Expires: September 4, 2006
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