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EXHIBIT 10(f)
GUARANTY
September 1, 1998
1. Grant. To induce ALLIED CAPITAL CORPORATION, a Maryland corporation (with
successors and assigns, collectively, "Lender"), to make to ENTERPRISE SOFTWARE,
INC., a Delaware corporation formerly named INDENET, INC. (with successors and
assigns, collectively, "Debtor"), a loan in the principal amount of Six Million
Dollars ($6,000,000) in accordance with the terms and conditions of that certain
Investment and Loan Agreement, dated March 26, 1998 by and between the Lender
and the Debtor (the "Loan Agreement"),the undersigned (with successors and
assigns, "Guarantor"), hereby unconditionally guarantees to Lender, its
successors and assigns, the due and punctual payment when due, whether by
acceleration or otherwise, in accordance with the terms thereof, of the
principal and interest on and all other sums payable, or stated to be payable,
with respect to (a) the Subordinated Debenture dated March 26, 1998 made by the
Debtor to Lender in the principal amount of Nine Million Dollars ($9,000,000)
(with all amendments, renewals, extensions and replacements thereof and
therefor, the "Initial Debenture"), and (b) the Subordinated Debenture in the
principal amount of Six Million Dollars ($6,000,000) issued this date by the
Debtor to the Holder pursuant to the Loan Agreement (with all amendments,
renewals, extensions and replacements thereof and therefor, a "Subsequent
Debenture," and which together with the Initial Debenture are the "Debentures"),
each with interest as stated in such applicable Debenture.
2. Definitions. The Debentures, the interest thereon, any expenses of
collection, including reasonable attorneys' fees, and all other sums payable
with respect thereto are hereinafter collectively called "Liabilities". The term
"Guarantor" herein shall mean each signer of this Guaranty, collectively with
its successors and assigns. The term "collateral" herein shall mean any funds
guaranties, agreements or other property or rights or interests of any nature
whatsoever, or the proceeds thereof, which may have been, are, or hereafter may
be, mortgaged, pledged, assigned, transferred or delivered directly or
indirectly by or on behalf of the Debtor or Guarantor or any other party to
Lender or to any Debenture holder, or which may have been, are, or hereafter may
be held by any party as trustee or otherwise, as security, whether immediate or
underlying, for the performance of this Guaranty or the payment of the
Liabilities or any of them or any security therefor.
3. Representations. Guarantor represents that this Guaranty is executed at
the request of Debtor for reasons that Guarantor deems sufficient, that
Guarantor has established adequate means of obtaining from Debtor on a
continuing basis financial and other information pertaining to Debtor's
financial condition, and that Guarantor, as a subsidiary of the Debtor, derives
benefit from this Guaranty. Xxxxxx has made no representations to Guarantor as
to the creditworthiness of Debtor. Guarantor will keep adequately informed from
such means as it has of any facts, events or circumstances which might in any
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affect Guarantor's risks hereunder and agrees that Xxxxxx shall have no
obligation, either before or after closing on the transactions subject hereto,
to obtain for or disclose to Guarantor information or material acquired in the
course of Xxxxxx's relationship with Xxxxxx.
4. Covenants. Guarantor agrees:
(a) subject to (e) below, that this Guaranty is irrevocable and shall
continue without limit of time;
(b) that if the Debtor or it should become insolvent or make a general
assignment for the benefit of creditors, or if a petition in bankruptcy or any
insolvency or reorganization proceeding shall be filed or commenced by either of
them, or if a petition shall be filed against either of them under any
bankruptcy, reorganization, insolvency or similar law (and such petition is not
dismissed within sixty (60) days of filing), then, in any of such events, any
and all obligations of it shall, at the Lender's option, immediately become due
and payable without notice;
(c) that if any payment or transfer to the Lender which has been
credited against any of the Liabilities is voided or rescinded or required to be
returned by the Lender, whether or not in connection with any event or
proceeding, this Guaranty shall continue in effect or be reinstated as though
such payment, transfer or recovery had not been made;
(d) that each of the Lender's books and records showing the account
between the Lender and the Debtor shall be admissible in any action or
proceeding, shall be binding upon it for the purpose of establishing the items
therein set forth and shall constitute prima facie proof thereof;
(e) that this Guaranty may be terminated by it only as of the date on
which it has received written notice from the Lender stating that the Debtor has
fully paid and performed all of the Liabilities;
(f) that any termination of this Guaranty shall be applicable only to
transactions having their inception after the effective date of such termination
and shall not affect rights and obligations arising out of transactions having
their inception prior to such date;
(g) that nothing shall discharge or satisfy the liability of it
hereunder except the full payment and performance of all of the Liabilities;
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(h) that any and all present and future debts and obligations of the
Debtor to it are hereby waived and postponed in favor of and subordinated to the
full payment and performance of the Liabilities; and
(i) that all sums at any time held by the Lender for the account of it
and any of the property of it at any time in the Lender's possession may be held
by the Lender as security for any and all obligations of it to the Lender, no
matter how or when arising, whether absolute or contingent, whether due or to
become due and whether under this Guaranty or otherwise.
5. Waivers. Guarantor waives any notice of the incurring by the Debtor at any
time of any of the Liabilities, and waives any and all presentment, demand,
protest or notice of dishonor, nonpayment, or other default with respect to any
of the Liabilities and to any obligation of any party at any time comprised in
the collateral. Guarantor waives any claim or defense it may have against the
Lender under the Uniform Commercial Code or any other applicable law or
regulation arising from any action taken or any action not taken by the Lender
in relation to the collateral. Guarantor further waives any defenses arising
under any homestead exemption or statute of limitation, or pursuant to any
rights to any valuation, stay or moratorium.
6. Xxxxxx's Discretion. Guarantor hereby grants to Lender full power, in its
absolute discretion and without notice to or consent from it, but subject to the
provisions of any agreement between the Debtor or any other party and Lender at
the time in force, to deal in any), manner with the Liabilities and the
collateral, including, but without limiting the generality of the foregoing, the
following powers: (a) to modify or otherwise change any terms of all or any part
of the Liabilities or the rate of interest thereon, to grant any extension or
renewal thereof and any other indulgence with respect thereto, and to effect any
release, compromise or settlement with respect thereto; (b) to enter into any
agreement of forbearance with respect to all or any part of the Liabilities, or
with respect to all or any part of the collateral, and to change the terms of
any such agreement; (c) to forbear from calling for additional collateral to
secure any of the Liabilities or to secure any obligation comprised in the
collateral; (d) to consent to substitution, exchange, or release of all or any
part of the collateral, whether or not the collateral, if any, received by
Lender upon any such substitution, exchange, or release shall be of the same or
of a different character or value than the collateral surrendered by Xxxxxx; and
(e) in the event of the nonpayment when due, whether by acceleration or
otherwise, of any of the Liabilities, or in the event of default in the
performance of any obligation comprised in the collateral, to realize on the
collateral or any part thereof, as a whole or in such parcels or subdivided
interest as Lender may elect, at any public or private sale or sales, for cash
or on credit or for future delivery, without demand, advertisement or notice of
the time or place of sale or any adjournment thereof (Guarantor hereby waiving
any such demand, advertisement and notice to the extent permitted by law), or by
foreclosure or otherwise, or to forbear from realizing thereon, all as Lender in
its absolute discretion may deem proper, and to purchase all or
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any part of the collateral for its own account at any such sale or foreclosure,
such powers to be exercised only to the extent permitted by law. The obligations
of Guarantor hereunder shall not be released, discharged or in any way
affected, nor shall Guarantor have any rights, defenses or recourse against
Lender by reason of any action Lender may take or omit to take under the
foregoing powers.
7. No Duty to Exhaust Collateral or Other Remedies. In case the Debtor shall
fail to pay all or any part of the Liabilities when due, whether by acceleration
or otherwise, after the expiration of applicable notice and cure periods, if any
according to the terms thereof, Guarantor, immediately upon the written demand
of Lender, shall pay to Lender the amount due and unpaid by the Debtor as
aforesaid, plus any expenses of collection including reasonable attorneys' fees,
in like manner as if such amount constituted the direct and primary obligation
of Guarantor. Lender shall not be required, prior to any such demand on, or
payment by, Guarantor, to make any demand upon or pursue or exhaust any of
Lender's rights or remedies against the Debtor or other obligors under the
Liabilities, or to pursue or exhaust any of Lender's rights or remedies with
respect to any part of the collateral.
8. Subrogation, etc. Guarantor shall have no right of subrogation whatsoever
with respect to the Liabilities or the collateral unless and until Lender shall
have received full and indefeasible payment of all the Liabilities. Guarantor
hereby waives any claim, right or remedy which such guarantors may now have or
hereafter acquire against the Debtor that arises hereunder and/or from the
performance by any guarantor including, without limitation, any claim, remedy or
right of subrogation, reimbursement, exoneration, contribution, indemnification,
or participation in any claim, right or remedy of Lender against the Debtor or
any security which Lender now has or hereafter acquires, whether or not such
claim, right or remedy arises in equity, under contract, by statute, under
common law, or otherwise. Guarantor waives and releases Lender from any damages
which it may incur as a result of any intentional or unintentional or negligent
action or inaction of Lender impairing, diminishing or destroying any rights of
subrogation which Guarantor may have upon payment of any of the Debtor's
obligations.
9. No Release. The obligations of Guarantor, and the rights of Lender in the
collateral, shall not be released, discharged or in any way affected, nor shall
Guarantor have any rights against Lender: by reason of the fact that any of the
collateral provided to the Lender may be subject to default remedies at the time
of acceptance thereof by Lender or later; nor by reason of the fact that a valid
lien in any of the collateral may not be conveyed to, or created in favor of,
Lender; nor by reason of the fact that any of the collateral may be subject to
equities or defenses or claims in favor of others or may be invalid or defective
in any way; nor by reason of the fact that any of the Liabilities may be invalid
for any reason whatsoever, or may be avoided or discharged in bankruptcy, in any
insolvency or similar proceeding, or otherwise; nor by reason of the fact that
the value of any of the collateral, or the financial condition of the Debtor or
of any obligor under or guarantor of any of the
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collateral, may not have been correctly estimated or may have changed or may
hereafter change; nor by reason of any deterioration, waste, or loss by fire,
theft, or otherwise of any of the collateral.
10. Investment and Loan Agreement. Xxxxxxxxx agrees to the terms and
conditions expressed in the Loan Agreement, and will comply with all provisions
in such instrument calling for Guarantor's performance thereunder. In the event
of any inconsistency between the terms of this Guaranty and the terms of the
said Agreement, the terms of this Guaranty shall prevail.
11. Liability; Captions. All liability hereunder shall continue
notwithstanding the incapacity, lack of authority, death or disability of
Guarantor. Failure by Lender or its assigns to file or enforce a claim against
the estate of Guarantor shall not operate to release any other guarantor of the
Liabilities. The failure of any other person to sign this Guaranty shall not
release or affect the liability of any signer hereof. The captions in this
Guaranty shall not be construed as part of the text hereof.
12. Attorneys' Fees. If Lender employs the services of one or more attorneys
to enforce its rights herein, Guarantor shall pay or reimburse the reasonable
fees and expenses incurred by Xxxxxx thereby.
13. Choice of Law. Venue and Jurisdiction. Service of Process. This Guaranty
shall be interpreted, and the rights and liabilities of the parties hereto
determined, in accordance with the laws of the District of Columbia, without
regard to its principles of conflicts of law. Venue for any adjudication hereof
shall be only in the courts of the District of Columbia or the Federal courts in
the District of Columbia, to the jurisdiction of which courts all parties hereby
submit, as the agreement of such parties, as not inconvenient and as not subject
to review by any court other than such courts in the District. Guarantor intends
and agrees that the courts of the jurisdictions in which Guarantor is resident
shall afford full faith and credit to any judgment rendered by a court of the
District of Columbia against Guarantor hereunder, and that such District and
federal courts shall have in personam jurisdiction to enter a valid judgment
against Guarantor. Service of any summons and/or complaint hereunder and any
other process which may be served on Guarantor in any action in respect hereto,
may be made by mailing via registered mail or delivering a copy of such process,
to the address last provided by Guarantor to Lender. Xxxxxxxxx agrees that this
submission to jurisdiction and consent to service of process are reasonable and
made for the express benefit of Lender.
14. WAIVER OF JURY TRIAL. GUARANTOR WAIVES ALL RIGHT TO TRIAL BY JURY OF ALL
CLAIMS, DEFENSES, COUNTERCLAIMS AND SUITS OF ANY KIND DIRECTLY OR INDIRECTLY
ARISING FROM OR RELATING TO THIS GUARANTY OR THE DEALINGS OF THE PARTIES IN
RESPECT HERETO.
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XXXXXXXXX ACKNOWLEDGES AND AGREES THAT THIS PROVISION IS A MATERIAL TERM OF THIS
GUARANTY AND THAT LENDER WOULD NOT EXTEND ANY FUNDS TO THE DEBTOR IF THIS WAIVER
OF JURY TRIAL WERE NOT A PART HEREOF. GUARANTOR ACKNOWLEDGES THAT THIS IS A
WAIVER OF A LEGAL RIGHT AND THAT IT MAKES THIS WAIVER VOLUNTARILY AND KNOWINGLY
AFTER CONSULTATION WITH, OR THE OPPORTUNITY TO CONSULT WITH, COUNSEL OF ITS
CHOICE. EACH GUARANTOR AGREES THAT ALL SUCH CLAIMS, DEFENSES, COUNTERCLAIMS AND
SUITS SHALL BE TRIED BEFORE A JUDGE OF A COURT OF COMPETENT JURISDICTION,
WITHOUT A JURY.
15. Severability. In the event that any provision of this Guaranty shall be
unenforceable provision shall instead be legally enforceable to the extent
permitted by applicable law, and any court of competent jurisdiction shall
enforce such provision or modify it to make it enforceable.
16. Entirety. This Guaranty embodies the final, entire Agreement of Guarantor
and Lender with respect to Guarantor's guaranty of the liabilities and
supersedes any and all prior commitments, agreements, representations, and
understandings, whether written or oral, relating to the subject matter hereof.
This Guaranty is intended by Guarantor and Lender as a final and complete
expression of the terms of the Guaranty, and no course of dealing between
Guarantor and Lender, no course of performance, no trade practices, and no
evidence of prior, contemporaneous or subsequent oral agreements or discussions
or other extrinsic evidence of any nature shall be used to contradict, vary,
supplement or modify any term of this Guaranty Agreement. There are no oral
agreements between Guarantor and Lender.
17. Interest Rate Limit. The provisions of this Guaranty and of all
agreements between Debtor and Lender, whether now existing or hereafter arising
and whether written or oral, are hereby expressly limited so that in no
contingency or event whatsoever, whether by reason of demand or acceleration of
the maturity of the Debentures or otherwise, shall the amount paid or agreed to
be paid ("Interest") to Lender for the use, forbearance or retention of the
money to be loaned thereunder exceed the maximum amount permissible under
applicable law. If, from any circumstance whatsoever, performance or fulfillment
of any provision hereof or of any agreement between Debtor and Lender shall, at
the time of performance of fulfillment of such provision shall be due, exceed
the limit for Interest prescribed by applicable law, then ipso facto the
obligation to be performed or fulfilled shall be reduced to such limit and if,
from any circumstance whatsoever, Lender should ever receive as Interest an
amount which would exceed the highest lawful rate, the amount which would be
excessive Interest shall be applied to the reduction of the principal balance
owing hereunder in the inverse order of its maturity (whether or not then due),
or at the option of Lender be paid over to Debtor, and not applied to the
payment of Interest. In determining whether or not the Interest paid or payable
under any specific contingency
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exceeds the maximum amount payable under applicable law, Debtor, Lender and each
Guarantor shall, to the maximum extent permitted under applicable law, (i) treat
all loans by Lender to Debtor as but a single extension of credit, (ii)
characterize any nonprincipal payment as an expense, fee or premium rather than
as interest, (iii) exclude voluntary prepayments and the effects thereof and
(iv) "spread" the total amount of Interest throughout the entire period the
Liabilities were outstanding (including the period of any renewal or extension
hereof) so that the Interest hereon for such full period will not exceed the
maximum amount permitted by applicable law. This paragraph will control all
agreements between Guarantor, Debtor and Lender.
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IN WITNESS WHEREOF, Xxxxxxxxx has executed this Guaranty as of the date
first above written.
Software Acquisition Corp.
Xxxxxx X. Xxxx
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By: Xxxxxx X. Xxxx
Title: President
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STATE OF Michigan )
) TO WIT:
COUNTY OF Xxxxx )
On the 28th day of August, 1998, before me personally came Xxxxxx X.
Xxxx, known to me (or satisfactorily proven) to be the person whose name is
subscribed to the within instrument as the President of Software Acquisition
Corporation and who executed the above document on behalf of such corporation
for the purposes contained therein, such instrument having been executed in my
presence.
[Seal]
/s/ Xxxxx X. Xxxxxxx
-----------------------
Notary Public
My commission expires.
XXXXX X. XXXXXXX
Notary Public, Xxxxx Co., MI
My Comm. Expires Nov. 30, 2001
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