EXHIBIT 5
GUARANTY
GUARANTY, dated as of December 27, 2002, by VANTAGEPOINT VENTURE PARTNERS
III (Q), L.P., a Delaware limited partnership (the "GUARANTOR"), in favor of
FLEET NATIONAL BANK, a national banking association (the "LENDER").
WHEREAS, XXX.XXX, INC., a Delaware corporation (the "COMPANY"), has entered
into a Revolving Credit and Term Loan Agreement dated as of December 13, 2002
(as amended and in effect from time to time, the "CREDIT AGREEMENT"), with the
Lender, pursuant to which the Lender, subject to the terms and conditions
contained therein, is to make loans or otherwise to extend to the Company;
WHEREAS, the Guarantor owns certain of the capital stock of the Company;
WHEREAS, the Guarantor expects to receive substantial direct and indirect
benefits from the extensions of credit to the Company by the Lender pursuant to
the Credit Agreement (which benefits are hereby acknowledged);
WHEREAS, it is a condition precedent to the Lender's making any loans or
otherwise extending credit to the Company under the Credit Agreement that the
Guarantor execute and deliver to the Lender a guaranty substantially in the form
hereof; and
WHEREAS, the Guarantor wishes to guaranty the Company's obligations to the
Lender under or in respect of the Credit Agreement as provided herein;
NOW, THEREFORE, the Guarantor hereby agrees with the Lender as follows:
1. DEFINITIONS. Unless otherwise defined herein, all capitalized terms used
herein without definition shall have the respective meanings provided therefor
in the Credit Agreement.
The term "Capital Call Obligation" means, as to the Guarantor, the
obligation of each Partner to pay his, her or its Unpaid Capital Commitment in
accordance with the terms and obligations of the Partnership Agreement of the
Guarantor.
The term "Capital Commitment" means, as to the Guarantor, the total amount
agreed to be paid to the Guarantor by each Partner of the Guarantor, all as set
forth in the Partnership Agreement of the Guarantor.
The term "Capital Contribution" means, as to the Guarantor, with respect to
any Partner of the Guarantor, that portion of such Partner's Capital Commitment
which has already been paid, funded or otherwise satisfied by such Partner as of
any date of determination.
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The term "Credit Agreement Guarantor" means a "Guarantor" as defined in the
Credit Agreement which has executed and delivered a Credit Agreement Guaranty.
The term "Credit Agreement Guaranty" means each "Guaranty" as defined in
the Credit Agreement, and which guaranty remains in full force and effect.
The term "Defaulted Capital Call Obligations" means, as to the Guarantor,
any and all Capital Call Obligations of all Defaulting Partners, to the extent
that the Capital Commitments of such Defaulting Partners have not otherwise been
purchased by or allocated to other Partners of the Guarantor which are not
Defaulting Partners pursuant to the terms of the Partnership Agreement of the
Guarantor within thirty (30) days after any such Partner becomes a Defaulting
Partner.
The term "Defaulting Partner" means, as to the Guarantor, any Partner who
or which (a) is considered a "Defaulting Limited Partner" under the terms of the
Partnership Agreement or (b) fails to pay any Capital Call Obligation on or
before the fifteenth (15th) Business Day following the date on which the General
Partner requires such payment pursuant to a written notice of a Capital Call to
such Partners, unless and until such failure to pay any such Capital Call
Obligation is subsequently cured or waived with the consent of, and to the
satisfaction of, the General Partner and the Lender.
The term "Eligible Capital Call Commitments" means, as to the Guarantor,
the aggregate Capital Call Obligations of the Guarantor's Partners (a) that are
not subject to any lien, security interest or other encumbrance; (b) that have
not been paid (and are not the subject of any capital call which has been made
by the Guarantor's general partner but not yet funded by the Partner and are not
otherwise committed by such general partner) or otherwise funded by the Partner
or Partners; and (c) that do not include amounts with respect to Defaulted
Capital Call Obligations or (without duplication) amounts with respect to any
other Capital Call Obligations payable by a Defaulting Partner.
The term "General Partner" means VantagePoint Venture Associates III,
L.L.C., a Delaware limited liability company, in its capacity as general partner
of the Guarantor, or any Person substituted for or who succeeds VantagePoint
Venture Associates III, L.L.C. pursuant to the terms of the Partnership
Agreement and with the consent of the Lender.
The term "Guarantor Credit Agreement" means that certain Revolving Credit
Agreement dated as of February 29, 2000 by and among the Guarantors, Fleet
National Bank and certain other lending institutions party thereto
(collectively, the "Credit Agreement Banks") and Fleet National Bank as agent
for such Credit Agreement Banks (the "Credit Agreement Agent"), as the same may
be amended, restated, supplemented and/or modified from time to time.
The term "Indebtedness" shall mean, as to any individual, corporation,
partnership, trust, unincorporated association, business or other legal entity
and any
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government or any governmental agency or political subdivision thereof
(collectively, a "Person") and whether recourse is secured by or is otherwise
available against all or only a portion of the assets of such Person and whether
or not contingent, but without duplication: (i) every obligation of such Person
for money borrowed, (ii) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including obligations incurred
in connection with the acquisition of property, assets or businesses, (iii)
every reimbursement obligation of such Person with respect to letters of credit,
bankers' acceptances or similar facilities issued for the account of such
Person, (iv) every obligation of such Person issued or assumed as the deferred
purchase price of property or services (including securities repurchase
agreements but excluding trade accounts payable or accrued liabilities arising
in the ordinary course of business which are not overdue or which are being
contested in good faith), (v) every obligation of such Person under any
capitalized lease, (vi) every obligation of such Person under any lease (a
"synthetic lease") treated as an operating lease under generally accepted
accounting principles and as a loan or financing for U.S. income tax purposes,
(vii) all sales by such Person of (A) accounts or general intangibles for money
due or to become due, (B) chattel paper, instruments or documents creating or
evidencing a right to payment of money or (C) other receivables (collectively
"receivables"), whether pursuant to a purchase facility or otherwise, other than
in connection with the disposition of the business operations of such Person
relating thereto or a disposition of defaulted receivables for collection and
not as a financing arrangement, and together with any obligation of such Person
to pay any discount, interest, fees, indemnities, penalties, recourse, expenses
or other amounts in connection therewith, (viii) every obligation of such Person
(an "equity related purchase obligation") to purchase, redeem, retire or
otherwise acquire for value any shares of capital stock of any class issued by
such Person, any warrants, options or other rights to acquire any such shares,
or any rights measured by the value of such shares, warrants, options or other
rights, (ix) every obligation of such Person under any forward contract, futures
contract, swap, option or other financing agreement or arrangement (including,
without limitation, caps, floors, collars and similar agreements), the value of
which is dependent upon interest rates, currency exchange rates, commodities or
other indices (a "derivative contract"), (x) every obligation in respect of
Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent that such Person is liable therefor as a
result of such Person's ownership interest in or other relationship with such
entity, except to the extent that the terms of such Indebtedness provide that
such Person is not liable therefor and such terms are enforceable under
applicable law, (xi) every obligation, contingent or otherwise, of such Person
guaranteeing, or having the economic effect of guarantying or otherwise acting
as surety for, any obligation of a type described in any of clauses (i) through
(x) (the "primary obligation") of another Person (the "primary obligor"), in any
manner, whether directly or indirectly, and including, without limitation, any
obligation of such Person (A) to purchase or pay (or advance or supply funds for
the purchase of) any security for the payment of such primary obligation, (B) to
purchase property, securities or services for the purpose of assuring the
payment of such primary obligation, or (C) to maintain working capital, equity
capital or other financial statement condition or liquidity of the primary
obligor so as to enable the primary obligor to pay such primary obligation.
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The term "Partner" means, as to the Guarantor, any Person who or which
holds a limited partnership interest in the Guarantor pursuant to the
Partnership Agreement of the Guarantor.
The term "Partnership Agreement" shall mean the Limited Partnership
Agreement of VantagePoint Venture Partners III (Q), L.P. dated as of May 24,
1999 by and among the General Partner and the Partners.
The term "Pro Rata Share" shall mean, as to each Credit Agreement
Guarantor, that portion of the principal amount of the Obligations which are
guaranteed by such Credit Agreement Guarantor pursuant to a Credit Agreement
Guaranty as compared to the principal amount of the Obligations which are
guaranteed by all Credit Agreement Guarantors pursuant to all Credit Agreement
Guarantees.
The term "Related Guarantees" shall mean each Credit Agreement Guaranty
issued to the Lender from any Credit Agreement Guarantor other than the
Guarantor.
The term "Total Guarantor Obligations" means, as to the Guarantor, the sum
of (a) the Obligations which are guaranteed by the Guarantor pursuant to this
Guaranty, PLUS (b) the sum of (i) outstanding Revolving Credit Loans (as such
term is defined in the Guarantor Credit Agreement) plus the Maximum Drawing
Amount (as such term is defined in the Guarantor Credit Agreement) of all issued
and outstanding Letters of Credit (as such term is defined in the Guarantor
Credit Agreement) plus all Unpaid Reimbursement Obligations (as such term is
defined in the Guarantor Credit Agreement) plus (ii) the aggregate amount of all
Indebtedness of the Guarantor consisting of the guarantees by the Guarantor of
the Indebtedness of any Portfolio Companies (as such term is defined under the
Partnership Agreement), PROVIDED, HOWEVER, to the extent the Guarantor Credit
Agreement has been terminated, then (b)(i) hereof shall be the aggregate amount
of any obligations, whether contingent or otherwise, of the Guarantor for
borrowed money as of such date of determination.
The term "Unpaid Capital Commitment" means, as to the Guarantor, with
respect to any Partner of the Guarantor, such Partner's Capital Commitment LESS
such Partner's Capital Contribution.
2. GUARANTY OF PAYMENT AND PERFORMANCE. The Guarantor hereby guarantees to
the Lender the full and punctual payment when due (whether at stated maturity,
by required pre-payment, by acceleration or otherwise), as well as the
performance, of all of the Obligations including all such which would become due
but for the operation of the automatic stay pursuant to Section 362(a) of the
Federal Bankruptcy Code and the operation of Sections 502(b) and 506(b) of the
Federal Bankruptcy Code. In addition, the Guarantor agrees that payments by the
Guarantor hereunder shall be made without recoupment, setoff or counterclaim and
free and clear of and without deduction for any taxes, levies, imposts, duties,
charges, fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any jurisdiction
or any political subdivision thereof or taxing or other authority therein unless
the Guarantor is compelled by law to make such deduction or withholding. If any
such obligation is
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imposed upon the Guarantor with respect to any amount payable by it hereunder or
under any of the other Loan Documents, the Guarantor will pay to the Lender, on
the date on which such amount is due and payable under any Loan Document, such
additional amount in United States dollars as shall be necessary to enable the
Lender to receive the same net amount which the Lender would have received on
such due date had no such obligation been imposed upon the Guarantor. This
Guaranty is an absolute, unconditional and continuing guaranty of the full and
punctual payment and performance of all of the Obligations and not of their
collectibility only and is in no way conditioned upon any requirement that the
Lender first attempt to collect any of the Obligations from the Company or
resort to any collateral security or other means of obtaining payment. Should
the Company default in the payment or performance of any of the Obligations, the
obligations of the Guarantor hereunder with respect to such Obligations in
default shall, upon demand by the Lender, become immediately due and payable to
the Lender, without demand or notice of any nature, all of which are expressly
waived by the Guarantor. Payments by the Guarantor hereunder may be required by
the Lender on any number of occasions.
3. GUARANTOR'S AGREEMENT TO PAY ENFORCEMENT COSTS, ETC. The Guarantor
further agrees, as the principal obligor and not as a guarantor only, to pay to
the Lender, on demand, all reasonable costs and expenses (including court costs
and legal expenses) incurred or expended by the Lender in connection with the
Obligations, this Guaranty and the enforcement thereof, together with interest
on amounts recoverable under this Section 3 from the time when such amounts
become due until payment, whether before or after judgment, at the rate of
interest for overdue principal set forth in the Note, PROVIDED that if such
interest exceeds the maximum amount permitted to be paid under applicable law,
then such interest shall be reduced to such maximum permitted amount.
4. LIMITED GUARANTY. Notwithstanding any other term or provision of this
Guaranty to the contrary, the Guarantor's liability hereunder shall be limited
to an amount equal to (a) $5,000,000 in principal amount, plus, without
limitation as to the amounts thereof, (b) the Guarantor's Pro Rata Share of all
interest, banking charges, commissions, costs and reasonable expenses chargeable
to the Company in respect of the Obligations (other than costs and expenses,
including attorneys fees, incurred in connection with the enforcement against
the Company of the Credit Agreement or other Loan Documents, unless the Lender
is required to incur just costs and/or expenses prior to being able to demand
payment hereunder), plus (c) the Guarantor's Pro Rata Share of all interest and
other costs and reasonable expenses payable by the Guarantor pursuant to Section
3 hereof (other than costs and expenses, including attorneys fees, incurred in
connection with the enforcement against the Company of the Credit Agreement or
other Loan Documents, unless the Lender is required to incur just costs and/or
expenses prior to being able to demand payment hereunder), PROVIDED, the
Guarantor shall pay all of the costs and expenses incurred or expended by the
Lender in connection with this Guaranty and the enforcement thereof. Each
payment made by the Guarantor hereunder which is applied against the Obligations
referred to in clause (a) above shall reduce the Guarantor's liability by such
amount. The Lender's dealings with the Company need not be limited to any
particular sum notwithstanding any limitation
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herein upon the liability of the Guarantor. The Lender hereby agrees that to the
extent it shall require any payments be made hereunder, the Lender will, to the
extent permissable, simultaneously make a claim for payment on all Credit
Agreement Guarantees such that any payment being required to be made hereunder
will not exceed the Guarantor's Pro Rata Share of the aggregate amount being
claimed by the Lender under all Credit Agreement Guarantees (and, to the extent
the Lender is not permitted or otherwise able to make a claim under any Credit
Agreement Guaranty, the Lender shall be deemed to have made such a claim under
such Credit Agreement Guaranty for purposes of this sentence).
5. WAIVERS BY GUARANTOR; LENDER'S FREEDOM TO ACT. The Guarantor agrees that
the Obligations will be paid and performed strictly in accordance with their
respective terms, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Lender with respect thereto. The Guarantor waives promptness, diligences,
presentment, demand, protest, notice of acceptance, notice of any Obligations
incurred and all other notices of any kind, all defenses which may be available
by virtue of any valuation, stay, moratorium law or other similar law now or
hereafter in effect, any right to require the marshalling of assets of the
Company or any other entity or other person primarily or secondarily liable with
respect to any of the Obligations, and all suretyship defenses generally.
Without limiting the generality of the foregoing, the Guarantor agrees to the
provisions of any instrument evidencing, securing or otherwise executed in
connection with any Obligation and agrees that the obligations of the Guarantor
hereunder shall not be released or discharged, in whole or in part, or otherwise
affected by (a) the failure of the Lender to assert any claim or demand or to
enforce any right or remedy against the Company or any other entity or other
person primarily or secondarily liable with respect to any of the Obligations;
(b) any extensions, compromise, refinancing, consolidation or renewals of any
Obligation; (c) any change in the time, place or manner of payment of any of the
Obligations or any rescissions, waivers, compromise, refinancing, consolidation,
amendments or modifications of any of the terms or provisions of the Credit
Agreement, the other Loan Documents or any other agreement evidencing, securing
or otherwise executed in connection with any of the Obligations; (d) the
addition, substitution or release of any entity or other person primarily or
secondarily liable for any Obligation, (e) the adequacy of any rights which the
Lender may have against any collateral security or other means of obtaining
repayment of any of the Obligations; (f) the impairment of any collateral
securing any of the Obligations, including without limitation the failure to
perfect or preserve any rights which the Lender might have in such collateral
security or the substitution, exchange, surrender, release, loss or destruction
of any such collateral security; or (g) any other act or omission which might in
any manner or to any extent vary the risk of the Guarantor or otherwise operate
as a release or discharge of the Guarantor, all of which may be done without
notice to the Guarantor. To the fullest extent permitted by law, the Guarantor
hereby expressly waives any and all rights or defenses arising by reason of (i)
any "one action" or "anti-deficiency" law which would otherwise prevent the
Lender from bringing any action, including any claim for a deficiency, or
exercising any other right or remedy (including any right of set-off), against
the Guarantor before or after the
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Lender's commencement or completion of any foreclosure action, whether
judicially, by exercise of power of sale or otherwise, or (ii) any other law
which in any other way would otherwise require any election of remedies by the
Lender.
6. UNENFORCEABILITY OF OBLIGATIONS AGAINST COMPANY. If for any reason the
Company has no legal existence or is under no legal obligation to discharge any
of the Obligations, or if any of the Obligations have become irrecoverable from
the Company by reason of the Company's insolvency, bankruptcy or reorganization
or by other operation of law or for any other reason, this Guaranty shall
nevertheless be binding on the Guarantor to the same extent as if the Guarantor
at all times had been the principal obligor on all such Obligations. In the
event that acceleration of the time for payment of any of the Obligations is
stayed upon the insolvency, bankruptcy or reorganization of the Company, or for
any other reason, all such amounts otherwise subject to acceleration under the
terms of the Credit Agreement, the other Loan Documents or any other agreement
evidencing, securing or otherwise executed in connection with any Obligation
shall be immediately due and payable by the Guarantor.
7. SUBROGATION; SUBORDINATION.
7.1. WAIVER OF RIGHTS AGAINST COMPANY. Until the final payment and
performance in full of all of the Obligations, the Guarantor shall not
exercise any rights against the Company arising as a result of payment by
the Guarantor hereunder, by way of subrogation, reimbursement, restitution,
contribution or otherwise, and will not prove any claim in competition with
the Lender in respect of any payment hereunder in any bankruptcy,
insolvency or reorganization case or proceedings of any nature; the
Guarantor will not claim any setoff, recoupment or counterclaim against the
Company in respect of any liability of the Guarantor to the Company; and
the Guarantor waives any benefit of and any right to participate in any
collateral security which may be held by the Lender.
7.2. SUBORDINATION. The payment of any amounts due with respect to any
indebtedness of the Company now or hereafter owed to the Guarantor is
hereby subordinated to the prior payment in full of all of the Obligations,
to the extent and in the manner set forth in the next sentence. The
Guarantor agrees that, after the occurrence and during the continuance of
any default in the payment or performance of any of the Obligations, the
Guarantor will not demand, xxx for or otherwise attempt to collect any such
indebtedness of the Company to the Guarantor until all of the Obligations
shall have been paid in full. If, notwithstanding the foregoing sentence,
the Guarantor shall collect, enforce or receive any amounts in respect of
such indebtedness, such amounts shall be collected, enforced and received
by the Guarantor as trustee for the Lender and be paid over to the Lender
on account of the Obligations without affecting in any manner the liability
of the Guarantor under the other provisions of this Guaranty.
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7.3. PROVISIONS SUPPLEMENTAL. The provisions of this Section 7 shall
be supplemental to and not in derogation of any rights and remedies of the
Lender under any separate subordination agreement which the Lender may at
any time and from time to time enter into with the Guarantor.
8. SECURITY; SETOFF. The Guarantor grants to the Lender, as security for
the full and punctual payment and performance of all of the Guarantor's
obligations hereunder, a continuing lien on and security interest in all
securities or other property belonging to the Guarantor now or hereafter held by
the Lender and in all deposits (general or special, time or demand, provisional
or final) and other sums credited by or due from the Lender to the Guarantor or
subject to withdrawal by the Guarantor. Regardless of the adequacy of any
collateral security or other means of obtaining payment of any of the
Obligations, the Lender is hereby authorized at any time and from time to time,
without notice to the Guarantor (any such notice being expressly waived by the
Guarantor) and to the fullest extent permitted by law, to set off and apply such
deposits and other sums against the obligations of the Guarantor under this
Guaranty, whether or not the Lender shall have made any demand under this
Guaranty and although such obligations may be contingent or unmatured.
9. REPRESENTATIONS; COVENANTS AND FURTHER ASSURANCES.
9.1. REPRESENTATIONS. Each of the Guarantor and the General Partner,
in its capacity as sole general partner of the Guarantor hereby represents
and warrants to the Lender that (a) each of the Guarantor and General
Partner is duly organized, validly existing, and in good standing under the
laws of its jurisdiction of formation, and the execution, delivery and
performance by the Guarantor and the General Partner of this Guaranty and
the other Loan Documents to which it is a party (i) are within its
partnership or limited liability company (as the case may be) authority,
(ii) have been duly authorized by all appropriate action, (iii) do not
conflict with or contravene its Partnership Agreement, operating agreement,
or any law, rule, order or regulation; (b) upon the execution and delivery
thereof, the Guaranty and each other Loan Document shall constitute the
legal, valid and binding obligation of the Guarantor party thereto,
enforceable in accordance with its terms; (c) the financial statements
provided to the Lender as at September 30, 2002 are complete and correct
and fairly present the position of the Guarantor as at such date and for
such period in accordance with generally accepted accounting principles
consistently applied; and (d) the execution, delivery, performance of its
obligations, and exercise of its rights under the Guaranty and the other
Loan Documents by the Guarantor (i) do not require any consents or
approvals; and (ii) are not and will not be in conflict with or prohibited
or prevented by (A) any law, rule, order or regulation, or (B) its
Partnership Agreement or any partnership action.
9.2. COVENANTS. The Guarantor agrees that at all times the ratio of
(a) Eligible Capital Call Commitments of the Guarantor to (b) Total
Guarantor Obligations of the Guarantor shall not be less than 1.33:1.00.
Not later than forty-five (45) days after the end of each fiscal quarter,
the Guarantor shall
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provide to the Lender evidence demonstrating compliance with this covenant
contained in Section 9.2 To the extent the ratio of (a) Eligible Capital
Call Commitments of a Guarantor to (b) Total Guarantor Obligations for the
Guarantor is less than 1.33:1.00, upon demand by the Lender, the Guarantor
shall deposit with the Lender cash collateral in an amount sufficient so
that when added to the Eligible Capital Call Commitment portion of such
ratio, the Guarantor complies with the covenant set forth in this Section
9.2. In addition, the Guarantor agrees that so long as any Obligation is
outstanding, the Guarantor will not (1) create, incur, assume, guarantee or
be or remain liable, contingently or otherwise, with respect to any
Indebtedness other than Indebtedness permitted by Section 7.1 of the
Guarantor Credit Agreement; (2) create or incur or suffer to be created or
incurred or permit to exist any lien, encumbrance, mortgage, pledge,
charge, restriction or other security interest of any kind upon any Capital
Call Obligation or the Guarantor's rights to receive such payments, or (3)
or enter into any agreement prohibiting the creation or assumption of any
lien upon its properties, revenues or assets, whether now owned or
hereafter acquired, unless otherwise permitted by the Guarantor Credit
Agreement.
9.3. FURTHER ASSURANCES. The Guarantor agrees that it will from time
to time, at the request of the Lender, provide to the Lender the
Guarantor's most recent audited and unaudited balance sheets and related
statements of income and changes in financial condition and such other
information relating to the business and affairs of the Guarantor as the
Lender may reasonably request. The Guarantor also agrees to do all such
things and execute all such documents as the Lender may consider reasonably
necessary or desirable to give full effect to this Guaranty and to perfect
and preserve the rights and powers of the Lender hereunder. The Guarantor
acknowledges and confirms that the Guarantor itself has established its own
adequate means of obtaining from the Company on a continuing basis all
information desired by the Guarantor concerning the financial condition of
the Company and that the Guarantor will look to the Company and not to the
Lender in order for the Guarantor to keep adequately informed of changes in
the Company's financial condition.
10. TERMINATION; REINSTATEMENT. This Guaranty shall remain in full force
and effect until the Lender is given written notice of the Guarantor's intention
to discontinue this Guaranty, notwithstanding any intermediate or temporary
payment or settlement of the whole or any part of the Obligations. No such
notice shall be effective unless received and acknowledged by an officer of the
Lender at the address of the Lender for notices set forth in the Credit
Agreement. No such notice shall affect any rights of the Lender hereunder,
including without limitation the rights set forth in Sections 5 and 7, with
respect to any Obligations incurred or accrued prior to the receipt of such
notice or any Obligations incurred or accrued pursuant to any contract or
commitment in existence prior to such receipt, and all checks, drafts, notes,
instruments (negotiable or otherwise) and writings made by or for the account of
the Company and drawn on the Lender or any of its agents purporting to be dated
on or before the date of receipt of such notice, although presented to and paid
or accepted by the Lender after that date, shall form part
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of the Obligations. This Guaranty shall continue to be effective or be
reinstated, notwithstanding any such notice, if at any time any payment made or
value received with respect to any Obligation is rescinded or must otherwise be
returned by the Lender upon the insolvency, bankruptcy or reorganization of the
Company, or otherwise, all as though such payment had not been made or value
received. In addition, promptly after the Obligations have been indefeasibly
repaid in full in cash and all Commitments have been terminated, the Lender will
return to the Guarantor the Guaranty marked "terminated" and/or "cancelled".
11. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon the
Guarantor, its successors and assigns, and shall inure to the benefit of and be
enforceable by the Lender and its successors, transferees and assigns. Without
limiting the generality of the foregoing sentence, the Lender may assign or
otherwise transfer the Credit Agreement, the other Loan Documents or any other
agreement or note held by it evidencing, securing or otherwise executed in
connection with the Obligations, or sell participations in any interest therein,
to any other entity or other person, and such other entity or other person shall
thereupon become vested, to the extent set forth in the agreement evidencing
such assignment, transfer or participation, with all the rights in respect
thereof granted to the Lender herein. The Guarantor may not assign any of its
obligations hereunder.
12. AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by the Guarantor therefrom shall be
effective unless the same shall be in writing and signed by the Guarantor and
the Lender. No failure on the part of the Lender to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right.
13. NOTICES. All notices and other communications called for hereunder
shall be made in writing and, unless otherwise specifically provided herein,
shall be deemed to have been duly made or given when delivered by hand or mailed
first class, postage prepaid, or, in the case of telegraphic or telexed notice,
when transmitted, answer back received, addressed as follows: if to the
Guarantor, at the address set forth beneath its signature hereto, and if to the
Lender, at the address for notices to the Lender set forth in the Credit
Agreement, or at such address as either party may designate in writing to the
other.
14. GOVERNING LAW; CONSENT TO JURISDICTION. THIS GUARANTY IS INTENDED TO
TAKE EFFECT AS A SEALED INSTRUMENT AND SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS. The Guarantor
agrees that any suit for the enforcement of this Guaranty may be brought in the
courts of the Commonwealth of Massachusetts or any federal court sitting therein
and consents to the nonexclusive jurisdiction of such court and to service of
process in any such suit being made upon the Guarantor by mail at the address
specified by reference in Section 13. The
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Guarantor hereby waives any objection that it may now or hereafter have to the
venue of any such suit or any such court or that such suit was brought in an
inconvenient court.
15. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY WAIVES ITS RIGHT TO A JURY
TRIAL WITH RESPECT TO ANY ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN
CONNECTION WITH THIS GUARANTY, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR THE
PERFORMANCE OF ANY OF SUCH RIGHTS OR OBLIGATIONS. Except as prohibited by law,
the Guarantor hereby waives any right which it may have to claim or recover in
any litigation referred to in the preceding sentence any special, exemplary,
punitive or consequential damages or any damages other than, or in addition to,
actual damages. The Guarantor (a) certifies that neither the Lender nor any
representative, agent or attorney of the Lender has represented, expressly or
otherwise, that the Lender would not, in the event of litigation, seek to
enforce the foregoing waivers and (b) acknowledges that, in entering into the
Credit Agreement and the other Loan Documents to which the Lender is a party,
the Lender is relying upon, among other things, the waivers and certifications
contained in this Section 15.
16. MISCELLANEOUS. This Guaranty constitutes the entire agreement of the
Guarantor and the Lender with respect to the matters set forth herein. The
rights and remedies herein provided are cumulative and not exclusive of any
remedies provided by law or any other agreement, and this Guaranty shall be in
addition to any other guaranty of or collateral security for any of the
Obligations. The invalidity or unenforceability of any one or more sections of
this Guaranty shall not affect the validity or enforceability of its remaining
provisions. Captions are for the ease of reference only and shall not affect the
meaning of the relevant provisions. The meanings of all defined terms used in
this Guaranty shall be equally applicable to the singular and plural forms of
the terms defined.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
and delivered as of the date first above written.
VANTAGEPOINT VENTURE PARTNERS III (Q), L.P.
By: VantagePoint Venture Associates III,
LLC, its General Partner
By: /s/ Xxxx Xxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Member
Address:
