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EXHIBIT 99.5
NATIONSCREDIT COMMERCIAL FUNDING
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CORPORATE GUARANTY
BORROWER: XXXXX CORPORATION, a
Delaware corporation
GUARANTOR XXXXX MICROCOMPUTER PRODUCTS
INC., a Georgia corporation
Each Borrower has requested that NATIONSCREDIT COMMERCIAL
CORPORATION, THROUGH ITS NATIONSCREDIT COMMERCIAL FUNDING DIVISION ("LENDER")
provide certain financial accommodations to such Borrower pursuant to the terms
of a Loan and Security Agreement between such Borrower and Lender dated of even
date herewith (as amended from time to time, collectively the "LOAN AGREEMENT").
As one of the conditions to providing financing, Lender has required that
Guarantor guaranty all obligations of each Borrower to Lender (Borrowers are
referred to herein collectively as "BORROWER").
For value received and in consideration of any loan, advance
or financial accommodation of any kind whatsoever heretofore, now or hereafter
made, given or granted to Borrower by Lender pursuant to the Loan Agreement,
Guarantor unconditionally guaranties the full and prompt payment when due,
whether at maturity or earlier, by reason of acceleration or otherwise, and at
all times thereafter, of the indebtedness, liabilities and obligations of every
kind and nature of Borrower to Lender (including, without limitation, all
interest accruing after the filing of a proceeding under the Bankruptcy Code (as
defined in the Loan Agreement) whether or not allowed by the court in such
proceeding, and all other indebtedness, liabilities and obligations arising
after the filing of any proceeding under the Bankruptcy Code), howsoever
created, arising or evidenced, whether direct or indirect, absolute or
contingent, joint or several, now or hereafter existing, or due or to become
due, in each case arising under the Loan Agreement or the other Loan Documents
(as defined in the Loan Agreement), plus all costs and expenses (including,
without limitation, all court costs and reasonable attorneys' and paralegals'
fees and expenses) paid or incurred by Lender in endeavoring to collect all or
any part of such indebtedness, liabilities and obligations from, or in
prosecuting any action against, Guarantor or any other guarantor of all or any
part of such indebtedness, liabilities and obligations (all such indebtedness,
liabilities, obligations, costs and expenses being hereinafter referred to as
"BORROWER'S OBLIGATIONS"). All sums becoming due under this Guaranty shall bear
interest from the due date thereof until paid at the highest rate charged with
respect to any of Borrower's Obligations under the Loan Agreement.
Guarantor agrees that its obligations under this Guaranty are
unconditional, irrespective of (i) the validity or enforceability of Borrower's
Obligations or any note or other instrument evidencing Borrower's Obligations,
(ii) the absence of any attempt by Lender to collect Xxxxxxxx's Obligations from
Borrower or any other guarantor, (iii) Lender's waiver or consent with respect
to any provision of the Loan Documents, (iv) Lender's failure to perfect or
maintain its
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security interests in, or to preserve its rights with respect to,
any of the Collateral (as defined in the Loan Agreement), (v) Lender's election,
in any proceeding under Chapter 11 of the Bankruptcy Code, of the application of
Section 1111(b)(2) of the Bankruptcy Code, (vi) any borrowing or grant of a
security interest by Borrower as debtor-in-possession under Section 364 of the
Bankruptcy Code, (vii) the disallowance, under Section 502 of the Bankruptcy
Code, of all or any of Xxxxxx's claims for repayment of Borrower's Obligations
or (viii) any other circumstance which might constitute a legal or equitable
discharge or defense of Borrower or a guarantor.
No payment made by or for the account or benefit of Guarantor
(including, without limitation, (i) a payment made by Borrower in respect of
Borrower's Obligations, (ii) a payment made by any person under any other
guaranty of Borrower's Obligations or (iii) a payment made by means of set off
or other application of funds by Lender) shall entitle Guarantor, by subrogation
or otherwise, to any payment by Borrower or from or out of any property of
Xxxxxxxx, and Guarantor shall not exercise any rights or remedies against
Borrower or any property of Borrower including, without limitation, any right of
contribution, indemnity or reimbursement by reason of any performance by
Guarantor under this Guaranty, all of such rights of subrogation, contribution,
indemnity and reimbursement being hereby waived by Guarantor. The provisions of
this paragraph shall survive the termination of this Guaranty or the release or
discharge of Guarantor from liability hereunder. Borrower is a third party
beneficiary of the provisions of this paragraph.
Guarantor hereby waives diligence, presentment, demand for
payment, filing of claims with a court in the event of receivership or
bankruptcy of Borrower, protest or notice with respect to Xxxxxxxx's Obligations
and all demands whatsoever, and covenants that this Guaranty will not be
discharged, except by complete and irrevocable payment and performance of the
obligations and liabilities contained herein. No notice to any party, including
Guarantor, shall be required for Lender to make demand hereunder. Such demand
shall constitute a mature and liquidated claim against Guarantor. At any time
after maturity of Xxxxxxxx's Obligations, whether by acceleration or otherwise,
Lender may, at its sole election, proceed directly and at once, without notice,
against Guarantor to collect and recover the full amount or any portion of
Borrower's Obligations, without first proceeding against Borrower or any other
person or against any of the Collateral. Lender shall have the exclusive right
to determine the application of payments and credits, if any, from Guarantor,
Borrower or any other person, on account of Borrower's Obligations.
Lender is hereby authorized, without notice or demand to
Guarantor and without affecting or impairing the liability of Guarantor
hereunder, to from time to time (i) renew, extend, accelerate or otherwise
change the time for payment of, or other terms relating to, Borrower's
Obligations or otherwise modify, amend or change the terms of any promissory
note or other agreement, document or instrument now or hereafter executed by
Xxxxxxxx and delivered to Lender; (ii) accept partial payments on Borrower's
Obligations; (iii) take and hold Collateral for the payment of Borrower's
Obligations, or for the payment of this Guaranty, or for the payment of any
other guaranties of Borrower's Obligations or other liabilities of Borrower, and
exchange, enforce, waive and release any Collateral; (iv) apply Collateral and
direct the order or manner of sale
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thereof as it may determine in its sole discretion; and (v) settle, release,
compromise, collect or otherwise liquidate Borrower's Obligations and any
Collateral in any manner.
At any time after maturity of Xxxxxxxx's Obligations, Lender
may, in its sole discretion, without notice to Guarantor and regardless of the
acceptance of any Collateral for the payment hereof, appropriate and apply
toward payments of Borrower's Obligations, (i) any indebtedness due or to become
due from Lender to Guarantor and (ii) any moneys, credits or other property
belonging to Guarantor at any time held by or coming into the possession of
Lender or any affiliates of Lender, whether for deposit or otherwise.
Guarantor assumes responsibility for keeping itself informed
of the financial condition of Xxxxxxxx and all other guarantors of all or any of
Borrower's Obligations, and of all other circumstances bearing upon the risk of
nonpayment of Xxxxxxxx's Obligations or any part thereof that diligent inquiry
might reveal, and Xxxxxxxxx agrees that Xxxxxx shall have no duty to advise
Guarantor of information known to Lender regarding any of the foregoing.
Guarantor acknowledges familiarity with Xxxxxxxx's financial condition and
represents that it has not relied on any statements made, or information
furnished, by Lender or its agents in obtaining such familiarity. If Lender
provides any such information to Guarantor, Lender shall be under no obligation
to (i) undertake any investigation not a part of its regular business routine,
(ii) disclose any information which, pursuant to accepted or reasonable
commercial finance practices, Lender wishes to maintain confidential or (iii)
make any other or future disclosures of any information to Guarantor.
Notwithstanding any contrary provision of this Guaranty, it is
intended that neither this Guaranty nor any liens or security interests securing
this Guaranty constitute a "Fraudulent Conveyance" (as defined below).
Consequently, Xxxxxxxxx agrees that if this Guaranty or any liens or security
interests securing this Guaranty would, but for the application of this
sentence, constitute a Fraudulent Conveyance, this Guaranty and each such lien
and security interest shall be valid and enforceable only to the maximum extent
that would not cause this Guaranty or such lien or security interest to
constitute a Fraudulent Conveyance, and this Guaranty shall automatically be
deemed to have been amended accordingly at all relevant times. For purposes
hereof, a "FRAUDULENT CONVEYANCE" means a fraudulent conveyance under Section
548 of the Bankruptcy Code or a fraudulent conveyance or fraudulent transfer
under any applicable fraudulent conveyance or fraudulent transfer law or similar
law of any state or other governmental unit as in effect from time to time.
Guarantor waives the right to assert the doctrine of
marshaling with respect to any of the Collateral securing Borrower's
Obligations. Guarantor further agrees that, to the extent Borrower makes one or
more payments to Lender, or Lender receives any proceeds of Collateral, which
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required to be repaid to Borrower, its estate, trustee, receiver or any
other party under the Bankruptcy Code or other law, that portion of Borrower's
Obligations which has been paid, reduced or satisfied by such payment or
proceeds shall be reinstated and continued in full force and effect as of the
date
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such initial payment, reduction or satisfaction occurred and this Guaranty
shall continue to be in existence and in full force and effect, irrespective of
whether any evidence of indebtedness or this Guaranty has been surrendered or
canceled.
Xxxxxxxxx agrees that all payments hereunder shall be made
without setoff or counterclaims and Guarantor waives all presentments, demands
for performance, notices of nonperformance, protests, notices of protest,
notices of dishonor and notices of acceptance of this Guaranty. Guarantor
further waives all notices of the existence, creation or incurring of new or
additional indebtedness, arising either from additional loans extended to
Borrower or otherwise, and also waives all notices that the principal amount, or
any portion thereof, or any interest on any instrument or document evidencing
all or any part of Borrower's Obligations is due, notices of any and all
proceedings to collect from the maker, any endorser or any other guarantor of
all or any part of Borrower's Obligations, or from anyone else, and, to the
extent permitted by law, notices of exchange, sale, foreclosure, surrender or
other handling of any Collateral securing Borrower's Obligations.
No delay on the part of Lender in the exercise of any right or
remedy shall operate as a waiver thereof, and no single or partial exercise by
Lender of any right or remedy shall preclude any further exercise thereof except
as expressly set forth in a writing duly signed and delivered on Xxxxxx's behalf
by an authorized officer or agent of Lender; nor shall any modification or
waiver of any of the provisions of this Guaranty be binding upon Lender, except
as expressly set forth in a writing duly signed and delivered on Xxxxxx's behalf
by an authorized officer or agent of Xxxxxx. Xxxxxx's failure at any time or
times hereafter to require strict performance by Borrower or Guarantor of any of
the provisions, warranties, terms and conditions contained in any promissory
note, security agreement, agreement, guaranty, instrument or document now or at
any time or times hereafter executed by Borrower or Guarantor and delivered to
Lender, shall not waive, affect or diminish any right of Lender at any time or
times hereafter to demand strict performance thereof and such right shall not be
deemed to have been waived by any act or knowledge of Lender, or its respective
agents, officers or employees, unless such waiver is contained in an instrument
in writing signed by an officer or agent of Xxxxxx, and directed to Borrower or
Guarantor, as applicable, specifying such waiver. No waiver by Lender of any
default shall operate as a waiver of any other default or the same default on a
future occasion, and no action by Xxxxxx permitted hereunder shall in any way
affect or impair Xxxxxx's rights or the obligations of Guarantor under this
Guaranty. Any determination by a court of competent jurisdiction of the amount
of any principal or interest owing by Borrower to Lender shall be conclusive and
binding on Guarantor irrespective of whether Guarantor was a party to the suit
or action in which such determination was made.
Guarantor hereby represents and warrants that (i) it is in
Guarantor's direct interest to assist Borrower in procuring credit, because
Borrower is an affiliate of Guarantor, furnishes goods or services to Guarantor,
purchases or acquires goods or services from Guarantor, and/or otherwise has a
direct or indirect corporate or business relationship with Guarantor, (ii) this
Guaranty has been duly and validly authorized, executed and delivered and
constitutes the valid
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and binding obligation of Guarantor, enforceable in accordance with its terms,
and (iii) the execution and delivery of this Guaranty does not violate or
constitute a default under (with or without the giving of notice, the passage of
time, or both) any order, judgment, decree, instrument or agreement to which
Guarantor is a party or by which it or its assets are affected or bound.
This Guaranty shall be binding upon Guarantor and upon the
successors and permitted assigns of Guarantor and shall inure to the benefit of
Lender and its successors and assigns. All references herein to Borrower shall
be deemed to include its successors and permitted assigns and all references
herein to Lender shall be deemed to include its successors and assigns.
Xxxxxxxx's and Guarantor's successors and permitted assigns shall include a
receiver, trustee, custodian of or for Borrower or Guarantor or any of their
respective assets and Borrower or Guarantor as debtor-in-possession. All
references to the singular shall be deemed to include the plural where the
context so requires.
GUARANTOR HEREBY CONSENTS AND AGREES THAT THE STATE AND
FEDERAL COURTS IN NEW YORK SHALL HAVE NONEXCLUSIVE JURISDICTION TO HEAR AND
DETERMINE ANY CLAIMS OR DISPUTES WITH RESPECT TO THIS GUARANTY AND WAIVES ANY
OBJECTION WHICH IT MAY HAVE BASED ON IMPROPER VENUE OR FORUM NON CONVENIENS TO
THE CONDUCT OF ANY PROCEEDING IN ANY SUCH COURT AND CONSENTS THAT ALL SERVICE OF
PROCESS UPON GUARANTOR BE MADE BY REGISTERED MAIL OR MESSENGER DIRECTED TO
GUARANTOR AT THE ADDRESS SET FORTH BELOW GUARANTOR'S SIGNATURE AND THAT SERVICE
SO MADE SHALL BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT THEREOF. XXXXXXXXX
XXXXXX AGREES THAT ANY CLAIM OR DISPUTE BROUGHT BY GUARANTOR AGAINST XXXXXX OR
ANY MATTER ARISING OUT OF THIS GUARANTY SHALL BE BROUGHT EXCLUSIVELY IN THE
STATE AND FEDERAL COURTS IN NEW YORK. XXXXXXXXX XXXXXX XXXXXX, TO THE EXTENT
PERMITTED BY LAW, TRIAL BY JURY. NOTHING CONTAINED HEREIN SHALL AFFECT THE RIGHT
OF LENDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT
THE RIGHT OF LENDER TO BRING ANY ACTION OR PROCEEDING AGAINST GUARANTOR OR ITS
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
THIS GUARANTY SHALL BE GOVERNED IN ALL RESPECTS BY THE
INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAWS.
Wherever possible each provision of this Guaranty shall be
interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Guaranty shall be prohibited by or invalid under
such law, such provision shall be ineffective to the extent of such prohibition
or invalidity without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
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IN WITNESS WHEREOF, this Guaranty has been duly executed by
Guarantor this 20th day of February, 1998.
XXXXX MICROCOMPUTER PRODUCTS, INC.
By /s/ Xxxxxx X. Xxxxx
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Its Chairman
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0000 Xxxxxxxxx Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx 00000
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