EXHIBIT 10.11
GUARANTY
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This GUARANTY is made as of January 26, 2005 (this
"Guaranty"), by and among Adsero Corp. ("Adsero"), YAC-Corp. ("YAC") and
Tecknolaser USA Inc. ("XXXX"), each a Delaware corporation (each, a "Guarantor"
and collectively, the "Guarantors"), each with its mailing address at the
location set forth opposite its respective signature block on the signature
pages hereto, and Barrington Bank International Limited, a Bahamian banking
company (hereinafter the "Lender").
W I T N E S S E T H:
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WHEREAS, Lender and Teckn-O-Laser Company, a Nova Scotia
unlimited liability company ("Borrower") have entered into a certain Loan
Agreement in the principal amount of Cdn.$2,000,000, dated as of the date hereof
(as the same may hereinafter be amended, restated, supplemented or otherwise
modified, the "Loan Agreement", all terms capitalized herein but not defined
herein having the respective meaning set forth in the Loan Agreement);
WHEREAS, (i) Lender made the loan directly to Borrower at the
instruction of Adsero, which will become the indirect owner of a majority
interest in Borrower upon the completion of the transactions contemplated in
that certain Funding and Payoff Agreement dated as of the date hereof by and
among, inter alia, the Guarantors and the Lender, and (ii) each of YAC and XXXX,
which are or will become "parent" or "sister" companies to Borrower, will
receive benefits from the Loan Agreement in the form of greater liquidity and
working capital available through its common parent , and such benefits are
commensurate with the risk undertaken by each of YAC and XXXX pursuant to this
Guaranty; and
WHEREAS, as a condition to Lender's agreement to enter into
the Loan Agreement, Lender has required that the Guarantors jointly and
severally guaranty (x) the payment by Borrower of its obligations and
liabilities under the Loan Agreement and (y) the performance by Borrower of all
of Borrower's covenants, agreements and obligations under the Loan Agreement and
the other Loan Documents (the obligations and liabilities described in clauses
(x) and (y) are collectively referred to herein as the "Guaranteed
Obligations").
NOW, THEREFORE, the Guarantors hereby agree with Lender as
follows:
Section 1. Guaranteed Obligations. The Guarantors hereby jointly and
severally, and unconditionally, (a) guarantee to Lender the full and faithful
performance of the Guaranteed Obligations and (b) covenant to Lender that if
Borrower shall at any time default or breach in performing Borrower's
obligations under the Loan Agreement and/or any other Loan Document, the
Guarantors shall perform the Guaranteed Obligations, and pay to Lender the
amounts outstanding under the Loan Agreement and any other amounts payable by
Borrower under the Loan Documents, and also all damages that may arise in
consequence of the non-performance of the Guaranteed Obligations, or any of
them. The Guarantors hereby jointly and severally agree to pay to Lender on
demand, all expenses (including, without limitation, reasonable attorneys' fees
and disbursements) of, or incidental to, or relating to the enforcement or
protection of Lender's rights hereunder or under the Loan Agreement.
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Section 2. Nature of Guaranty. Each Guarantor hereby reaffirms that
this Guaranty is not merely a guaranty of collection, is continuing in nature
and applies to all Guaranteed Obligations, whether existing now or in the
future, including Guaranteed Obligations arising or accruing before or after
bankruptcy of Borrower or any beneficial owner of Borrower (each, an "Obligor
Party"), and to all other obligations of Borrower or any other Obligor Party
under the Loan Agreement. Each Guarantor's guarantee of the Guaranteed
Obligations is irrevocable under any circumstances whatsoever. Lender may
enforce this Guaranty against any Guarantor for payment of any amounts due under
or performance of any of the Guaranteed Obligations as they become due and
without first making demand or instituting collection or other proceedings
against Borrower, any Guarantor or any other Person. Each Guarantor's liability
for the Guaranteed Obligations is hereby declared by mutual agreement to be
primary, and not secondary.
Section 3. Statute of Limitations. Each Guarantor acknowledges that the
statute of limitations applicable to this Guaranty shall begin to run only upon
Lender's accrual of a cause of action against such Guarantor caused by such
Guarantor's failure to honor a demand for payment or performance hereunder made
by Lender in writing; provided, however, if, subsequent to the demand upon such
Guarantor, Lender reaches an agreement with Borrower or such Guarantor on any
terms causing Lender to forbear in the enforcement of its demand upon such
Guarantor, the statute of limitations shall be reinstated and shall run for its
full duration from such time that Lender subsequently makes demand upon such
Guarantor.
Section 4. Remedies. Lender shall not be required, as a condition
precedent to making a demand upon any Guarantor under this Guaranty, to make
demand upon Borrower, any other Guarantor, or any other Person, or to exhaust
its remedies against Borrower, any Guarantor or any other Person. The
obligations and duties of each Guarantor hereunder are independent of the
obligations and duties of Borrower under the Loan Agreement and a separate
action or actions may be brought and prosecuted against each Guarantor
hereunder, whether or not (x) an action is brought against Borrower under the
Loan Agreement or against any other Person, (y) Borrower, any Guarantor or any
other Person may be joined in any such action or actions, and (z) an action or
actions may be brought against any other Guarantor or any other Person. No
liability of any Guarantor hereunder shall be affected by or limited by (a) any
direction or application of payment by Borrower or by any other party, (b) any
other guaranty of any other party as to Borrower's obligations under the Loan
Agreement or (c) any payment to Lender of Borrower's Obligations that Lender
repays pursuant to the order or direction of a court of competent jurisdiction
in connection with any bankruptcy, reorganization, arrangement, moratorium or
other debtor relief proceeding, and each Guarantor hereby waives any right to
the deferral, modification or limitation of its respective obligations hereunder
by reason of any such proceeding. In furtherance of Section 8 hereof, no
Guarantor shall be released from its obligations hereunder by any act or
occurrence which might vary the risk or affect the rights or remedies of such
Guarantor with respect to its obligations hereunder.
Section 5. Representations, Warranties. The Guarantors hereby jointly
and severally represent and warrant to, and covenant and agree with, Lender
that:
(a) Each Guarantor is duly and validly organized and existing
under the laws of its jurisdiction of incorporation or organization and has all
requisite power and
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authority (including, without limitation, all governmental licenses, permits and
other approvals) to (i) carry on its business as now conducted and (as of the
date hereof) as proposed to be conducted and (ii) provide this Guaranty to
Lender.
(b) The execution, delivery and performance by each Guarantor
of this Guaranty, and the performance of each Guarantor's obligations hereunder,
are within each Guarantor's powers, have been duly authorized by all necessary
action, and do not (i) violate any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award, (ii) conflict with or (with the
passage of time, giving of notice or both) result in the breach of, or
constitute a default or event of default under, any contract, loan agreement,
indenture, mortgage, deed of trust, lease or other instrument binding on or
affecting any Guarantor, any of its direct or indirect subsidiaries or any of
their respective assets or property, or (iii) result in or require the creation
or imposition of any lien upon or with respect to any of the properties of any
Guarantor, except for liens permitted under the Loan Agreement. No Guarantor is
in violation of any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or in breach of any such contract,
loan agreement, indenture, mortgage, deed of trust, lease or other instrument.
(c) No authorization, consent or approval or other action by,
and no notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery or
performance by any Guarantor of this Guaranty.
(d) This Guaranty has been duly executed and delivered by each
Guarantor. This Guaranty is the legal, valid and binding obligation of each
Guarantor, enforceable against all Guarantors in accordance with its terms.
(e) There are no conditions precedent to the effectiveness of
this Guaranty that have not been either satisfied or waived.
(f) Each Guarantor has, independently and without reliance
upon the Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Guaranty.
(g) Each Guarantor is solvent: its assets exceed its
liabilities; it is able to pay its obligations as they become due and payable in
the ordinary course; and it does not have an unreasonably small capitalization
for the business and/or activities to be conducted by such Guarantor. No
Guarantor's execution of this Guaranty renders the preceding sentence
inaccurate.
(h) Such Guarantor is not (i) presently delinquent in the
payment of any taxes imposed by any governmental authority or in the filing of
any tax return, or (ii) involved in a dispute with any taxing authority over any
amounts due.
(i) No information, exhibit, document or report furnished by
such Guarantor in connection with this Guaranty or pursuant to the terms of the
Loan Agreement, nor any periodic report filed by Adsero with the U.S. Securities
and Exchange Commission, contains any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements made therein
not misleading at the time made. All representations and warranties in
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the Loan Agreement relating to each Guarantor are hereby incorporated herein by
reference.
(j) Adsero will timely file all periodic reports required
under the Securities Exchange Act of 1934, as amended, and, within the time
period set forth in the Loan Agreement, shall deliver to Lender true, correct
and complete (including exhibits) copies thereof.
(k) Except as disclosed in Adsero's periodic filings with the
Securities and Exchange Commission, there is no action, suit, investigation,
litigation or proceeding affecting such Guarantor pending or threatened before
any court, governmental agency or arbitrator.
(l) No Guarantor (i) has any obligation under any contract,
agreement, instrument or other document, and (ii) is subject to any charter or
corporate or other restriction, that could adversely affect the performance of
such Guarantor's obligation hereunder. All material contracts of Adsero and any
subsidiary of Adsero are set forth in the exhibits to its most recently filed
annual report on Form 10-KSB or the Forms 10-QSB filed thereafter.
(m) For years in which taxes were payable, each Guarantor has
filed, or has caused to be filed (or is included in the filings of), all tax
returns (Federal, state, local and foreign) required to be filed by it and has
paid all taxes shown thereon to be due, together with applicable interest and
penalties.
(n) No bankruptcy, reorganization or insolvency proceedings
are pending by or against any Guarantor or any holder of its Equity Securities.
Adsero has provided Lender with a true, correct and complete copy of the
bankruptcy court's confirmation of its plan of reorganization.
(o) Neither YAC nor any subsidiary of YAC (other than
Borrower) shall (i) engage at any time in any commercial enterprise or activity
or engage in any transactions other than owning (directly or indirectly, as
applicable) Borrower, or (ii) cause, suffer or permit any Liens on any of its
assets.
Section 6. Marshaling of Assets. Lender may proceed against any assets
of each and any Guarantor (or all Guarantors) and against parties liable
therefor in such order as it may elect, and no Guarantor shall be entitled to
require Lender to marshal assets. Each Guarantor hereby waives, to the maximum
extent permitted by law, the benefit of any rule of law or equity to the
contrary.
Section 7. Release of Liable Parties. Lender may, in its sole
discretion and with or without consideration or affecting any Guarantor not
named in the operative instruments or documents, release, compromise or settle
with any Person therefor including, without limitation, any Guarantor. The
defenses of impairment of collateral and impairment of recourse and any
requirements of diligence on Lender's part in collecting the Guaranteed
Obligations are hereby expressly waived by each Guarantor.
Section 8. No Limitation of Liability. Each Guarantor's liability
hereunder shall be absolute and unconditional, and shall in no way be limited or
impaired by, and each Guarantor hereby consents to and agrees to be bound by,
any amendment or modification of the provisions
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of the Loan Agreement, this Guaranty or any other instrument made to or with
Lender by Borrower or any Guarantor. In addition, no Guarantor's liability
hereunder shall in any way be limited or impaired by any or all of the
following:
(a) the failure of Lender to exercise or to exhaust any right
or remedy or take any action against Borrower;
(b) any change in the time, manner or place of payment or
performance, of all or any of the obligations of Borrower under the Loan
Agreement or any extensions of time for payment or performance, whether in whole
or in part, of the terms of the Loan Agreement on the part of Borrower to be
paid, performed or observed, as applicable;
(c) any failure or delay of Lender to exercise, or any lack of
diligence in exercising, any right or remedy with respect to the Loan Agreement
or this Guaranty;
(d) any dealings or transactions between Lender and Borrower,
whether or not the respective Guarantor shall be a party to or cognizant of the
same, other than the payment of the Guaranteed Obligations;
(e) any financial decline, bankruptcy, insolvency, assignment
for the benefit of creditors, receivership, trusteeship or dissolution of or
affecting Borrower;
(f) any other guaranty now or hereafter executed by such
Guarantor or any other Person, the release of any other Person from or failure
of any other Person to assume liability for the payment, performance or
observance of the Guaranteed Obligations or any of the terms of the Loan
Agreement, or any other agreement on the part of Borrower to be paid, performed
or observed whether by operation of law or otherwise;
(g) any rights, powers or privileges Lender may now or
hereafter have against any Person or collateral in respect of the Guaranteed
Obligations;
(h) the failure to give the relevant Guarantor any notices
whatsoever (the Guarantors hereby jointly and severally agreeing that upon
Borrower's failure to perform the Guaranteed Obligations, the Guarantors shall
perform such Guaranteed Obligations immediately upon request from Lender);
(i) any other circumstance which might in any manner or to any
extent constitute a defense available to Borrower, or vary the risk of any
Guarantor, or might otherwise constitute a legal or equitable discharge or
defense available to a surety or guarantor, whether similar or dissimilar to the
foregoing;
(j) any and all notice of the creation, renewal or extension
of the Guaranteed Obligations and notice of or proof of reliance by Lender upon
this Guaranty or acceptance of the Guaranty;
(k) any change, restructuring or termination of the structure
or existence of Borrower (provided that this clause (k) shall not be deemed a
consent to any such change, restructuring or termination of Borrower's
structure);
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(l) the release of Borrower or any other party from
performance or observance of any of the agreements, covenants, terms or
conditions contained in any of said instruments by operation of law, Lender's
voluntary act, or otherwise; or
(m) the invalidity, irregularity or unenforceability, in whole
or in part, of this Guaranty or the Loan Agreement, and, in any such case,
whether with or without notice to Guarantor and with or without consideration.
Section 9. Waivers. To the maximum extent permitted by law, each
Guarantor expressly waives the following:
(a) notice of acceptance of this Guaranty and of any change in
the financial condition of Borrower;
(b) any requirement of promptness, diligence, presentment,
protest, demand for payment, notice of dishonor, notice of default, and all
other actions or notices that may otherwise be required on Lender's part in
connection with the Guaranteed Obligations and/or this Guaranty other than any
notices expressly required pursuant to the Loan Agreement;
(c) the right to interpose all substantive and procedural
defenses of the law of guaranty, indemnification and suretyship;
(d) all rights and remedies accorded by applicable laws to
guarantors, or sureties, including, without being limited to, any extension of
time conferred by any laws now or hereafter in effect;
(e) the right to interpose any setoff or counterclaim of any
nature or description in any action or proceeding arising hereunder or with
respect to this Guaranty;
(f) any right or claim of right to cause a marshaling of the
assets of Borrower or to cause Lender to proceed against Borrower and/or any
Collateral held by Lender at any time or in any particular order;
(g) any defense based on the failure to make such Guarantor a
defendant in any action under the Loan Agreement;
(h) further to Section 3, the benefit of any statute of
limitations which may affect its liability hereunder or the enforcement hereof.
Any payment by Borrower or other circumstance that operates to toll any statute
of limitations as to Borrower shall not operate to toll the statute of
limitations as to any Guarantor; and
(i) any other defense or discharge of its obligations
hereunder otherwise available to such Guarantor at law or at equity.
Section 10. Bankruptcy. Notwithstanding anything to the contrary
contained herein, each Guarantor's liability shall extend to all amounts and the
performance of all Guaranteed Obligations that would be owed or be required to
be performed by Borrower under the Loan Agreement but for the fact that they are
unenforceable, disaffirmed, rejected or not allowable due
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to the existence of a bankruptcy, reorganization or similar proceeding involving
Borrower. Without limiting the foregoing, no Guarantor's obligation to perform
or to make payment in accordance with this Guaranty nor any remedy for the
enforcement thereof shall be impaired, modified, changed, stayed, released or
limited in any manner by any impairment, modification, change, release,
limitation or stay of the liability of Borrower or its estate in bankruptcy or
any remedy for the enforcement thereof, resulting from the operation of any
present or future provision of Title 11 of the United States Code (collectively
with the insolvency laws of any other applicable jurisdiction, the "Bankruptcy
Code") or other statute or from the decision of any court interpreting any of
the same. Each Guarantor shall, at the option of Lender, its successors and
assigns, take over and pay and perform each and every obligation of Borrower
pursuant to the Loan Agreement and, as applicable, the Loan Documents to which
Borrower is a party for the full term thereof, notwithstanding any statutory
right of termination given to bankrupts, insolvents or trustees thereto.
Section 11. Currency of Payments; Taxes. (a) Any and all amounts
required to be paid by the Guarantors hereunder shall be paid in lawful money of
the United States of America (provided that the amount received by lender when
converted into Canadian dollars results in payment to Lender of an amount at
least equal to the amount of the unpaid Guaranteed Obligations) or Canadian
dollars and in immediately available funds to Lender. Each Guarantor agrees that
whenever, at any time, or from time to time, it shall make any payment to Lender
on account of its liability hereunder, it will notify Lender in writing that
such payment is made under this Guaranty for that purpose.
(b) Each Guarantor agrees to make payment to Lender of all
amounts for which such Guarantor is liable hereunder forthwith after demand in
writing by Lender, free and clear and, except as otherwise required by law,
without deduction for any present or future taxes, charges or withholdings of
any kind, including without limitation, any taxes required by Section 1441 et
seq. of the Internal Revenue Code of 1986, as amended; provided, however, that
in the event such Guarantor is required by law to make any such deduction or
withholding, the amount paid to Lender pursuant to this Guaranty shall be
increased such that the net amount received by Lender is equal to the amount
Lender would have received if no such deduction or withholding were made.
Section 12. Further Assurances. Each Guarantor agrees to execute such
additional documents and instruments as Lender may reasonably require to
implement the provisions hereof.
Section 13. Certified Statement. Each Guarantor agrees that it will,
from time to time, within ten (10) days following receipt of a request from
Lender, execute and deliver to Lender a statement certifying that this Guaranty
is unmodified and in full force and effect (or if modified, that the same is in
full force and effect as modified and stating such modifications).
Section 14. Notices.
(a) Any notice, report, demand, approval or other instrument
authorized or required by this Guaranty to be given or furnished shall be in
writing and shall be deemed given or furnished when given or furnished as set
forth in the Loan Agreement. Each
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Guarantor's address and contact information is the same as that of Borrower
(subject to the modification of the recipient company's name).
(b) Any party may change the address to which any such notice,
report, demand or other instrument is to be delivered or mailed, by furnishing
written notice of such change to the other party, but no such notice of change
shall be effective unless and until received by such other party. Rejection or
refusal to accept, or inability to deliver because of changed address or because
no notice of changed address was given, shall be deemed to be receipt of any
such notice.
Section 15. No Waiver; Failure to Perform. No failure on the part of
Lender to exercise, and no delay in exercising, any right, power or privilege
hereunder or under the Loan Agreement 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. Furthermore, no
failure by Lender to make any demand or to collect any payments hereunder shall
relieve any Guarantor of its respective obligations or liabilities hereunder,
nor shall it impair or affect the rights and remedies of Lender against any
Guarantor hereunder. All remedies afforded to Lender by reason of this Guaranty
or the Loan Agreement are separate and cumulative remedies and each one of such
remedies, whether exercised by Lender or not, shall not be deemed to be
exclusive of any of the other remedies available to Lender and shall not limit
or prejudice any other legal or equitable remedy which Lender may have under
this Guaranty or the Loan Agreement. If a Guarantor shall fail to perform the
Guaranteed Obligations in accordance with the terms hereof, Lender may, but
shall not be obligated to, in addition to any other rights or remedies available
to Lender, take such action personally or by its agents or attorneys, without
any notice, demand, presentment or protest (each and all of which are hereby
waived), as Lender deems necessary or advisable to protect and enforce Lender's
rights and remedies hereunder, including, without limitation, the following
actions, each of which may be pursued concurrently or otherwise, at such time
and in such order as Lender, in its sole discretion may determine, without
impairing or otherwise affecting its other rights or remedies hereunder, at law
or in equity:
(a) perform or cause the performance of any actions necessary
to obtain payment and performance of the Guaranteed Obligations;
(b) pay, remove, release, discharge, bond, settle or cause the
payment, removal, discharge, bonding or settlement of any lien, claim or demand,
the removal, release, discharge, bonding, settlement or payment of which is
guaranteed hereunder;
(c) cause compliance with all legal requirements which must be
complied with in connection with the payment and performance of the Guaranteed
Obligations; and
(d) obtain any permits or licenses required in connection with
payment and performance of the Guaranteed Obligations.
Subject to the provisions of Section 1 hereof, in the event that Lender
shall perform any of the acts described in this Section 15, the Guarantors upon
demand by Lender
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jointly and severally agree to reimburse Lender for the full amount of any sums
paid and costs and expenses incurred by Lender in connection therewith,
including, without limitation, reasonable attorney's fees and disbursements.
Each Guarantor acknowledges and agrees that it is and will in
the future be impossible to accurately measure the damages to Lender resulting
from a breach of the Guaranteed Obligations; that such a breach will cause
irreparable injury to Lender and that Lender has no adequate remedy at law in
respect of such a breach; and, as a consequence, agrees that the covenants
herein shall be specifically enforceable against each Guarantor; and each
Guarantor hereby waives and shall not assert any defense based on the denial of
any of the foregoing in any action for the specific performance of such
covenants.
Section 16. Continuing Guaranty. This Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time payment or any
part thereof of the Guaranteed Obligations is rescinded or must otherwise be
restored or returned by Lender upon the insolvency, bankruptcy, dissolution,
liquidation or the reorganization of Borrower, or upon or as a result of the
appointment of a receiver, intervenor, custodian or conservator of, or trustee
or similar officer for, Borrower or any substantial part of its property, or
otherwise, all as though such payments had not been made.
Section 17. Trial by Jury; Injunctive Relief; Counterclaim,
Consolidation. EACH GUARANTOR HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVES, IN
CONNECTION WITH ANY SUIT, ACTION OR PROCEEDING BROUGHT BY LENDER HEREON, ANY AND
EVERY RIGHT SUCH GUARANTOR MAY HAVE TO (I) INJUNCTIVE RELIEF, (II) THE RIGHT TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING OF ANY KIND ARISING ON, UNDER, OUT OF,
OR BY REASON OF OR RELATING TO, THE INTERPRETATION, BREACH OR ENFORCEMENT
HEREOF, (III) INTERPOSE ANY COUNTERCLAIM (OTHER THAN MANDATORY COUNTERCLAIMS)
THEREIN AND (IV) HAVE THE SAME CONSOLIDATED WITH ANY OTHER OR SEPARATE SUIT,
ACTION OR PROCEEDING.
Section 18. Governing Law. The terms and provisions hereof and the
rights and obligations of the parties hereunder shall in all respects be
governed by, and construed and enforced in accordance with, the laws of the
State of New York, without regard for conflict of laws principles (other than
Section 5-1401 of the New York General Obligations Law).
Section 19. Submission to Jurisdiction, Service of Process.
(a) All disputes arising out of or relating to this Guaranty
and all actions to enforce this Guaranty shall be adjudicated in the State
courts of New York or the federal courts sitting in the City of New York, or the
courts of the District of Montreal and Province of Quebec (and for purposes of
any action in Canada, Section 2(k) in Schedule I to the Loan Agreement is hereby
incorporated herein by reference) and each Guarantor and (by its acceptance
hereof) Lender each hereby irrevocably submits to the jurisdiction of such
courts in any suit, action or proceeding arising out of or relating to this
Guaranty or in any action to enforce this Guaranty. So far as is permitted under
applicable law, this consent to personal jurisdiction shall be self-operative
and no further instrument or action, other than service of process in one of the
manners specified in this Section 19, or as otherwise permitted by law, shall be
necessary in order to confer jurisdiction over a Guarantor and/or Lender in any
such court.
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(b) Provided that service of process is effected upon a
Guarantor or Lender in one of the manners hereafter specified or as otherwise
permitted by law, each Guarantor and (by its acceptance hereof) Lender
irrevocably waives, to the fullest extent permitted by law, and agrees not to
assert, by way of motion, as a defense or otherwise (i) any objection which it
may have or may hereafter have to the laying of the venue of any such suit,
action or proceeding brought in any court which is mentioned in this Section 19
or (ii) any claim that any such suit, action or proceeding brought in such a
court has been brought in an inconvenient forum. Provided that service of
process is effected upon the applicable Guarantor in one of the manners
specified in this Section 19 or as otherwise permitted by law, each Guarantor
agrees that any final judgment from which such Guarantor has not or may not
appeal or further appeal in any such suit, action or proceeding brought in such
a court shall be conclusive and binding upon such Guarantor and may, so far as
is permitted under the applicable law, be enforced in any domestic or foreign
courts to the jurisdiction of which the applicable Guarantor is subject.
(c) Each Guarantor and (by its acceptance hereof) Lender
hereby consents to process being served in any suit, action or proceeding
relating to this Guaranty either by (i) the mailing of a copy thereof by
registered or certified mail, postage prepaid, return receipt requested, to such
Guarantor and Lender, as applicable, at the address referenced in Section 14(a)
hereof or (ii) personal delivery of a copy thereof to the applicable Guarantor
and Lender, as applicable, on a Business Day at the address referenced in
Section 14(a) hereof.
(d) Nothing in this Section Section 19 shall affect the right
of Lender or a Guarantor to serve process in any manner permitted by law or
limit the right of Lender pursuant to applicable law to bring proceedings
against the other in the courts of any jurisdiction or jurisdictions.
Section 20. Savings Clause. It is the intent of each Guarantor and
Lender that each Guarantor's maximum obligations hereunder shall be equal to,
but not in excess of:
(a) in a case or proceeding commenced by or against such
Guarantor under the Bankruptcy Code, the maximum amount which would not
otherwise cause the Guaranteed Obligations (or any other obligations of the
Guarantor to Lender) to be avoidable or unenforceable against the Guarantor
under (A) Section 548 of the Bankruptcy Code or (B) any state fraudulent
transfer or fraudulent conveyance act or statute applied in such case or
proceeding by virtue of Section 544 of the Bankruptcy Code; or
(b) in a case or proceeding commenced by or against such
Guarantor under any law, statute or regulation other than the Bankruptcy Code
(including, without limitation, any other bankruptcy, reorganization,
arrangement, moratorium, readjustment of debt, dissolution, liquidation or
similar debtor relief laws, whether of a state or a foreign jurisdiction), the
maximum amount which would not otherwise cause the Obligations (or any other
obligations of such Guarantor to Lender) to be avoidable or unenforceable
against such Guarantor under such law, statute or regulation including without
limitation, any state fraudulent transfer or fraudulent conveyance act or
statute applied in any such case or proceeding. (The substantive laws under
which the possible avoidance or unenforceability of the Obligations (or any
other obligations of such Guarantor to Lender) shall be determined in any such
case or proceeding
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shall hereinafter be referred to as the "Avoidance Provisions").
To the end set forth in this Section 20, but only to the
extent that the Obligations would otherwise be subject to avoidance under the
Avoidance Provisions if (y) a Guarantor is not deemed to have received valuable
consideration, fair value or reasonably equivalent value for the Obligations, or
(z) the Obligations would cause such Guarantor to fail to be Solvent (as of the
time any of the Obligations is deemed to have been incurred under the Avoidance
Provisions), the maximum Obligations for which such Guarantor shall be liable
hereunder shall be reduced to that amount which, after giving effect thereto,
would not cause the Obligations (or any other obligations of such Guarantor to
the Lender), as so reduced, to be subject to avoidance under the Avoidance
Provisions. This Section 20 is intended solely to preserve the rights of the
Lender hereunder to the maximum extent that would not cause the Obligations of a
Guarantor to be subject to avoidance under the Avoidance Provisions, and no
Guarantor nor any other Person shall have any right or claim under this Section
20 as against the Lender that would not otherwise be available to such Person
under the Avoidance Provisions.
Section 21. Severability. Any provision in this Guaranty that is held
to be inoperative, unenforceable or invalid as to any party or in any
jurisdiction shall, as to that party or jurisdiction, be inoperative,
unenforceable or invalid without affecting the remaining provisions or the
operation, enforceability or validity of that provision as to any other party or
in any other jurisdiction, and to this end the provisions of this Guaranty are
declared to be severable.
Section 22. Recitals; Integration; Security. The recitals to this
Guaranty are incorporated by reference herein as though set forth at length
herein and are acknowledged by each Guarantor to be true and correct. The
obligations of each Guarantor are secured pursuant to a pledge and/or security
agreement, and this Guaranty, together with such pledge and security agreements
and the Loan Agreement and the other Loan Documents, comprise the complete and
integrated agreement of the parties on the subject matter hereof and supersedes
all prior agreements, written or oral, on the subject matter hereof and may not
be terminated, amended or modified, in any manner unless by a writing signed by
Lender or its successors or assigns.
Section 23. Time of Essence. Time is of the essence with respect to
each Guarantor's obligations under this Guaranty.
Section 24. Successors and Assigns. This Guaranty shall inure to the
benefit of and be enforceable by Lender and its successors, transferees and
assigns or by any Person to whom Lender's interest in the Loan Agreement may be
assigned. Wherever in this Guaranty reference is made to Lender or Borrower, the
same shall be deemed to refer also to the then successor or assign of Lender or
Borrower.
Section 25. Modification. No amendment or waiver of any provision of
this Guaranty nor consent to any departure by any Guarantor therefrom shall in
any event be effective unless the same shall be in writing and signed by Lender,
and shall be effective only in the specific instance and for the specific
purpose for which given.
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Section 26. Headings. The headings used in this Guaranty are for
convenience only and are not to be considered in connection with the
interpretation or construction of this Guaranty.
[Signature Page is next]
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to
be duly executed and delivered as of the date first above written.
ADSERO CORP.
By : /s/ Xxxxxxx Xxxxx
-----------------
Name: Xxxxxxx Xxxxx
Title:
TECKNOLASER USA INC.
By : /s/ Xxxx Xxxxxxxx
-----------------
Name: Xxxx Xxxxxxxx
Title:
YAC CORP.
By : /s/ Xxxxxxx Xxxxx
-----------------
Name: Xxxxxxx Xxxxx
Title:
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