EXHIBIT 10.19
Dated October 24, 2001
(1) VERTICAL INVESTMENTS LIMITED
- and -
(2) INVU INC
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SECURED GUARANTEE
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Dated: October 24, 2001
Parties:
(1) VERTICAL INVESTMENTS LIMITED (Company number: 71185) a Company
registered in Jersey whose registered office is at Xxxxx Xxxxx, Xxx
Xxxx, Xx Xxxxxx, Xxxxxx, Xxxxxxx Xxxxxxx JEl ("Lender"); and
(2) INVU INC. (Company number: 3340939) a company organised and existing
under the laws of the State of Colorado (whose shares trade on the NASD
OTC Bulletin Board) whose principal place of business is at the Beren,
Xxxxxxxxx Xxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx,
Xxxxxxxxxxxxxxxx XX0 0XX ("Guarantor").
Operative Provisions:
I Interpretation
1.1 In this Guarantee, the following words and expressions shall have the
following meanings:
'Guarantee' means this Guarantee and Indemnity as
amended or supplemented from time to time;
'Guarantor's Debenture' means the debenture to be created by the
Guarantor in favour of the Lender in the
form set out in the Schedule;
'Indebtedness' means all the Principal's present or future
indebtedness to the Lender on any advance or
loan given to the Principal by the Lender
(including in particular but without
limitation the Loan) and all the Principal's
other liabilities whatsoever and wherever to
the Lender, including (without limitation)
promissory notes, guarantees and
indemnities, whether actual or contingent
and whether or not matured or accrued due
and whether incurred solely, severally or
jointly with any other person in whatever
currency, together with interest and any
other costs, charges and legal and other
expenses (on a full indemnity basis) charged
or incurred by the Lender including those
arising from the Lender in perfecting or
enforcing or attempting to enforce this
Guarantee or any other security (and its
rights thereunder) held by the Lender from
time to time as well after as before any
demand has been made or judgment obtained
hereunder;
'Loan' the advance of US$500,000 made by the Lender
to the Principal pursuant to a loan
agreement of even date between the Lender,
the Principal, the Guarantor, Invu plc and
others;
'principal' means Invu Services Limited (Company number.
3319922) whose registered office is at The
Beren, Blisworth Xxxx Xxxx, Xxxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxxxxx XX0
0XX;
1.2 Clause headings are for ease of reference only.
2 Guarantee
2.1 In consideration of the Lender making available the Loan or any other
accommodation whatever to the Principal, the Guarantor hereby unconditionally
and irrevocably guarantees payment to the Lender on demand of all Indebtedness
and, as primary obligor and not merely as a surety, agrees to indemnify the
Lender on demand from and against any loss it may incur as a result of or in
connection with its having now or hereafter advanced any monies to the Principal
or having now or hereafter incurred any obligation on behalf of or at the
request of the Principal together with interest thereon and all other sums due
under this Guarantee.
2.2 This Guarantee shall:
2.2.1 be additional to any other guarantee or security now or
hereafter held by the Lender in respect of all indebtedness;
2.2.2 be a continuing security;
2.2.3 apply to the ultimate balance of the Indebtedness (together
with all expenses whatever incurred by the Lender in the
negotiation, preparation, execution or enforcement of this
Guarantee) and shall not be discharged or otherwise affected
by any intermediate payment or satisfaction of any part of the
Guarantor's obligations;
2.2.4 not be discharged or affected by any failure of, or defect or
informality in, any security given by or on behalf of the
Principal in respect of any indebtedness or by any legal
limitation, disability, incapacity or lack of any borrowing
powers of the Principal or by fraud of the Principal or any
other person or by the non-existence of any matter which the
Guarantor considers (expressly or impliedly) or may he deemed
to consider a condition precedent to the giving of this
Guarantee (and, where any such matter is considered a
condition precedent, it is expressly waived by the Guarantor)
or lack of authority of any director or other person appearing
to be acting for the Principal in any matter in respect of any
Indebtedness or by any other fact or circumstances (whether
known or not to the Guarantor and the Lender) as a result of
which any Indebtedness incurred or purported to be incurred by
or on behalf of the Principal is or may he rendered invalid,
illegal, void or unenforceable by the Lender against the
Principal in whole or in part and so that:
(a) all such circumstances shall be disregarded as
between the Guarantor and the Lender, and any
Indebtedness which would otherwise have arisen shall
be treated as Indebtedness due and owing to the
Lender from the Principal for the purposes of this
Guarantee, whether the same is recoverable by the
Lender from the Principal or not; and
(b) if and so far as such monies shall not be so
recoverable, the Guarantor shall be liable to the
Lender as principal debtor and by way of indemnity
for the same amount as that for which the Guarantor
would have been liable by way of guarantee, if valid
and enforceable Indebtedness had been created between
the Lender and the Principal; and
2.2.5 remain the property of the Lender.
2.3 A certificate signed on behalf of the Lender of the amount for the time
being of any indebtedness and/or the amounts due to the Lender shall be
conclusive evidence for all purposes against the Guarantor, unless
manifestly incorrect.
Guarantor's security
As security for its obligations under this Guarantee, the Guarantor
undertakes to execute and deliver to the Lender the Guarantor's
Debenture and to maintain the Guarantor's Debenture in full force and
effect until all the Guarantor's actual and contingent liability to the
Lender under this Guarantee shall have been paid or discharged in full.
4 The Lender and the Principal
4.1 Before enforcing this Guarantee, the Lender shall not be obliged to
take any action or obtain any judgment, nor make or file any claim in
the bankruptcy, dissolution or winding -up of the principal, nor make
any demand of the Principal, nor enforce any other security held by it
for any Indebtedness. The Lender need not advise the Guarantor of its
dealings with the Principal or of any default by the Principal of which
the Lender may have knowledge.
4.2 Where more than one person is comprised in the term 'Principal',
reference to the Principal shall (where the context admits) take effect
as reference to any of such persons and, where the Principal is a firm,
shall include the person or persons from time to time constituting the
firm, whether or not under the same style or firm name. Where, by any
agreement with the Principal and the Lender, any person assumes all or
any part of the liability of the Principal to the Lender in
substitution for the Principal, the Guarantor's liability shall not be
discharged, reduced or affected, but this Guarantee shall take effect
as if the expression the 'Principal' included such person.
5 Payments
5.1 All payments by the Guarantor under this Guarantee shall he made
without set-off or counter-claim and without deduction for any taxes,
duties, charges, fees, deductions, withholdings, or restrictions
whatever. If the Guarantor is obliged by law to make any such
deduction, the amount due from the Guarantor shall he increased to the
extent necessary to ensure that, after the making of such deduction,
the Lender receives a net amount equal to the amount it would have
received had no such deduction been required to be made.
6. Variations, waivers etc
6.1 The Lender may without notice to or consent from the Guarantor and
without reducing or extinguishing the Guarantor's liability;
6.1.1 renew, vary, determine or increase any accommodation or credit
given to the Principal;
6.1.2 renew, modify, release or abstain from perfecting or enforcing
any security or guarantee now or hereafter held from the
Principal or any other person, including any signatory to this
Guarantee, in respect of the Indebtedness;
6.1.3 grant time or indulgence to or compound with the Principal or
any other person or guarantor; and
6.1.4 do or omit to do anything which, but for this provision, might
operate to exonerate or discharge the Guarantor from any of
its obligations and this Guarantee shall not be discharged nor
affected by anything which would not have discharged or
affected the Guarantor's liability if the Guarantor had been a
principal debtor to the Lender instead of a guarantor.
7 Security from principal
The Guarantor hereby warrants that it does not hold and will not take
or hold without the Lenders written consent in connection with this
Guarantee any security whatever from the Principal. Any security so
taken (whether with or without the consent of the Lender) shall be held
in trust for the Lender and as security for the Guarantor's liability
under this Guarantee. The Guarantor shall deposit such security and any
document relating thereto with the lender as soon as practicable.
8 Subrogation etc
Until all amounts due or to become due from the Guarantor under this
Guarantee have been paid and discharged in full, the Guarantor shall
not be entitled to share in any security held or money received or
receivable by the Lender on account of that balance or to stand in the
place of the Lender in respect of any security or money. Until such
balance has been discharged in full, the Guarantor shall not take any
step to enforce any right or claim whatever against the Principal in
respect of any monies paid by the Guarantor to the Lender under this
Guarantee or have or exercise any rights as surety in competition with
or in priority to any claim of the Lender. The Guarantor will, if
required by the Lender, prove in a winding-up or bankruptcy of the
principal, on the basis that the Guarantor holds the benefits of such
claims on trust for the Lender.
9 Conditional discharge and retention of security
9.1 Any settlement, discharge or release between the Guarantor and the
Lender shall be conditional on no security given or payment made to the
Lender by the Principal of any other person being avoided or reduced by
virtue of any enactment's relating to bankruptcy, administration or
liquidation (or any analogous proceeding) for the time being in force.
The Lender shall be entitled (subject to any limit in the total amount
recoverable under this Guarantee) to recover the value or amount of any
such security or payment from the Guarantor subsequently as if such
settlement, discharge or release had not occurred.
9.2 The Lender may retain any security held by it for the Guarantor's
liability under this Guarantee for the relevant period after repayment
of all sums due to the Lender from the Principal. If within the
relevant period after such repayment a petition shall be presented for
an order for the winding-up or administration of the Principal or the
Principal shall commence to be wound up or shall be the subject of an
administration order, the Lender may continue to retain such security
or any part of it for such further period as the Lender shall determine
in its discretion in this clause 9.2, the 'relevant period' means the
relevant statutory period, extended by one month, within which any
payment or security made to or held by the Lender may be avoided or
invalidated under any enactment relating to insolvency.
10 Joint and several obligations
10.1 Where this Guarantee is executed by or on behalf of two or more
parties, the Guarantor's obligations shall take effect as joint and
several obligations and all references to the Guarantor shall take
effect as references to any of such parties. This Guarantee shall not
be revoked or impaired as to any of such parties by the death,
incapacity or insolvency of any other.
10.2 The Lender may release or discharge any of such parties from their
obligations under this Guarantee or accept any composition from or make
any other arrangements with any of such parties without releasing or
discharging the other(s) or otherwise prejudicing or affecting the
Lender's rights and remedies against the other(s).
11 Application of proceeds, etc
Any monies received from the Guarantor may he placed and kept to the
credit of a suspense account for so long as the Lender thinks fit,
without any obligation to apply any part towards the discharge of any
Indebtedness. Notwithstanding any such payment, in any proceedings in
(or analogous to) bankruptcy, liquidation, composition or arrangement,
the Lender may prove for and agree to accept any dividend or
composition in respect of the whole or any part of any Indebtedness as
if this Guarantee had not been given.
12 Benefit of guarantee
This Guarantee shall be binding on the Guarantor and its successors and
permitted assigns and shall inure to the benefit of and be enforceable
by the Lender and its successors and assigns, but so that the guarantor
may not assign or otherwise transfer any of its rights or obligations
under this Guarantee.
13 Notices
13.1 Any demand or notice by the Lender may be delivered personally to the
Guarantor or sent to the Guarantor by post or facsimile at the
Guarantor's address set out above or such other address notified in
writing to the Lender. Any such notice or demand shall be deemed to
have been received by the Guarantor 24 hours after posting, (where sent
by first class prepaid post), immediately on delivery (where delivered
personally) and immediately upon sending, (where sent by facsimile)
whether or not it is actually received.
1.3.2 Any notice from the Guarantor to the Lender shall be served by first
class prepaid recorded delivery post to the Lender as its address set
out above or such other address notified by the Lender or by facsimile
sent to the Lender at such facsimile number as it may notify to the
Guarantor from time to time.
14 Counterparts
This Agreement may be executed in any number of counterparts (by
facsimile if necessary) and by each of the parties hereto on separate
counterparts each of which when executed and delivered (by facsimile if
necessary) shall be deemed to be an original, but all the counterparts
together shall constitute one and the same document.
15 Law and jurisdiction
This Guarantee shall he governed by and construed in accordance with
English law. The Guarantor hereby irrevocably submits to the
jurisdiction of the English courts.
Executed as a deed and delivered by the parties on the date first above written.
EXECUTED and DELIVERED as )
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a DEED by VERTICAL ) Director
INVESTMENTS LIMITED )
acting by two directors/director )
and secretary ------------------------------------
Director/Secretary
EXECUTED and DELIVERED as ) ------------------------------------
a DEED by INVU INC acting ) Director
by two directors/director )
and secretary )
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Director/Secretary
