FORM OF VALIDITY GUARANTY
EXHIBIT
10.6
VALIDITY
GUARANTY (this “Agreement”)
is
made as of the 21st
day of
December, 2007, by and among COMVEST CAPITAL, LLC, a Delaware limited liability
company having offices at Xxx Xxxxx Xxxxxxxx, Xxxxx 000, Xxxx Xxxx Xxxxx,
Xxxxxxx 00000 (the “Lender”),
AFTERSOFT GROUP, INC., a Delaware corporation having offices at Regus House,
Heronsway Xxxxxxx Xxxxxxxx Xxxx, Xxxxxxx, XX0 0XX Xxxxxx Xxxxxxx (the
“Borrower”),
and
_____________, an individual residing at _____________________________ (the
“Principal”);
W I T N E S S E T H
WHEREAS,
the Principal is a principal executive officer of the Borrower and its
Subsidiaries and has extensive familiarity with and primary responsibility
for
the management of the Borrower’s and its Subsidiaries’ businesses; and
WHEREAS,
the Borrower and the Lender are parties to a Revolving Credit and Term Loan
Agreement of even date herewith (as amended, modified, supplemented and/or
restated from time to time, the “Loan
Agreement”);
and
capitalized terms not otherwise defined in this Agreement shall have the
meanings set forth in the Loan Agreement; and
WHEREAS,
under the Loan Agreement, the Borrower will have the right to borrow certain
Advances and Loans and incur other Obligations, which will be secured by the
Collateral as set forth in various Security Documents; and
WHEREAS,
it is a condition precedent to the making of the Loans that the Principal and
the Borrower enter into this Agreement.
NOW,
THEREFORE, in consideration of the premises, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
and
intending to be legally bound, the Lender, the Principal and the Borrower hereby
agree as follows:
1. Recitals.
The
parties hereto hereby acknowledge and agree that, to the best of their
knowledge, the foregoing recitals are true and accurate in each and every
respect.
2. Assurances
By Principal.
(a) The
Principal hereby covenants and agrees for the benefit of the Lender that (i)
the
Principal will not intentionally or through conduct constituting gross
negligence, and (ii) the Borrower will not through intentional acts of the
Principal or through conduct constituting gross negligence by the Principal:
(A)
provide or cause to be provided to the Lender information material to the
Obligations and/or the Collateral that is inaccurate or misleading in any
material respect, (B) conceal or cause to be concealed from the Lender any
information material to the Obligations and/or the Collateral, or (C) make
any
representation or warranty in connection with the Loans or the Collateral that
is false or misleading when made (or, if applicable, when reaffirmed under
the
Loan Agreement) in any material respect, or (D) fail or refuse to turn over
any
Collateral or proceeds thereof to the Lender as and when required by any Loan
Document or otherwise take any action that constitutes fraud or conversion
in
respect of the Obligations and/or the Collateral.
(b) If
there
occurs a breach or violation of any of the obligations of the Principal in
Section 2(a) above, the Principal shall unconditionally, without set-off or
deduction, indemnify, defend and hold the Lender harmless from any and all
loss
or damage (including, without limitation, reasonable attorneys’ fees and other
reasonable expenses and costs) to the extent resulting from such breach or
violation; provided,
however,
that
the Principal’s aggregate liability hereunder shall not exceed the sum of
$1,000,000 plus any and all attorneys’ fees and expenses payable by the
Principal in accordance with Section 3(a) below. The Lender’s books and records
shall be prima facie
evidence
of the amount of any such loss or damage and any related expenses or
costs.
3. Default;
Waiver; Etc.
(a) The
Borrower agrees to pay all of the Lender’s reasonable attorneys’ fees and
expenses relating to a default by the Principal or the Borrower under this
Agreement. The Principal agrees to pay all of the Lender’s reasonable attorneys’
fees and expenses relating to a default by the Principal under this
Agreement.
(b) Neither
the Lender’s entering into this Agreement, nor any failure or delay on the part
of the Lender in exercising any right, power, or privilege under this Agreement
or any other Loan Document shall operate as a waiver thereof, nor shall a single
or partial exercise thereof preclude any other or further exercise of any other
right, power or privilege. The Lender’s acceptance of this Agreement shall in no
way be deemed to obligate the Lender to make any Loans. This Agreement is
intended solely for the benefit of the Lender, its successors and assigns,
to be
used in the exercise of its absolute discretion from time to time, and shall
not
be interpreted to place on it directly or indirectly any obligation or duty
whatsoever to enforce the obligations of the Principal or the Borrower
hereunder.
4. Termination.
This
Agreement shall terminate upon the payment in full of the Obligations and the
termination or expiration of the Revolving Credit Commitment.
5. Entire
Agreement.
The
Principal, the Borrower and the Lender acknowledge that this written agreement
and the other Loan Documents represent the final agreement between the parties
with respect to the specific subject matter hereof, and may not be contradicted
by evidence of prior, contemporaneous or subsequent oral agreements of the
parties. There are no unwritten oral agreements between the
parties.
6. Waivers.
No
waiver or amendment shall be deemed to be made by the Lender of any of its
rights hereunder, unless the same shall be in writing and signed by the Lender,
and each waiver, if any, shall be a waiver only with respect to the specific
instance involved and shall in no way impair the rights of the Lender or the
obligations of the Borrower or the Principal in any other respect at any other
time.
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7. Notices.
Any and
all notices hereunder shall be in writing and addressed to the party to be
notified at its address first set forth above, or such other address as such
party may designate for itself by notice. Notice shall be deemed to have been
duly given (a) when delivered personally or otherwise actually received, (b)
three (3) Business Days after being sent by overnight delivery service, with
all
charges prepaid or billed to the account of the sender, or (c) when sent by
facsimile with facsimile confirmation of receipt if receipt is during normal
business hours at the point of receipt (or otherwise on the next succeeding
Business Day).
8. CONSENT
TO JURISDICTION; WAIVERS.
EACH
PARTY HEREBY AGREES, IN RESPECT OF ANY ACTION OR PROCEEDING RELATING TO THIS
AGREEMENT, TO THE NON-EXCLUSIVE JURISDICTION OF ANY AND ALL LOCAL, STATE AND/OR
FEDERAL COURTS SITTING IN THE STATE OF NEW YORK, AND WAIVES ANY OBJECTION WHICH
SUCH PARTY MAY HAVE BASED ON IMPROPER VENUE OR FORUM NON CONVENIENS TO THE
CONDUCT OF ANY PROCEEDING IN ANY SUCH COURT. EACH PARTY HEREBY WAIVES, TO THE
EXTENT PERMITTED BY LAW, TRIAL BY JURY, AND WAIVES ANY BOND OR SURETY OR
SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF THE
LENDER.
9. Governing
Law.
This
Agreement shall (irrespective of the place where it is executed and delivered)
be governed, construed and controlled by and under the laws of the State of
New
York (without giving effect to principles of conflicts of laws).
10. Binding
Effect.
This
Agreement shall be binding upon, and shall inure to the benefit of, the parties
hereto and their respective heirs, executors, administrators, personal
representatives, successors and assigns; provided,
that
neither the Borrower nor the Principal may assign any of their respective
obligations hereunder without the Lender’s prior written consent.
11. Captions.
The
Section titles utilized in this Agreement are for convenience only, and shall
not affect the construction or interpretation of this Agreement or any of the
provisions hereof.
12. Counterparts.
This
Agreement may be executed in any number of counterparts and by fax signatures,
each of which shall be deemed to constitute an original, but all of which
together shall constitute one and the same binding agreement.
13. Severability.
In the
event and to the extent that any provision of this Agreement shall be held
invalid or unenforceable, such invalidity or unenforceability shall not affect
the validity or enforceability of any other provisions of this Agreement, all
of
which shall remain fully enforceable as set forth herein.
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IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date
first set forth above.
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COMVEST
CAPITAL, LLC
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By:
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Xxxx
X. Xxxxxxx
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Managing
Director
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AFTERSOFT
GROUP, INC.
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By:
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Name:
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Title:
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[Principal]
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