Guaranty Agreement made by Dent-x International Inc., QR Imaging USA Inc., and Visiplex Instruments Corporation in favor of ComVest Capital , LLC, dated April 13, 2007
Exhibit
10.3
Guaranty
Agreement made by Dent-x International Inc., QR Imaging USA Inc., and Visiplex
Instruments Corporation in favor of ComVest Capital , LLC, dated April 13,
2007
GUARANTY
AGREEMENT (as amended, restated, supplemented or otherwise modified, this
“Guaranty”
or
this
“Agreement”),
dated
as of April 13, 2007, is made by DENT-X INTERNATIONAL INC., a New York
corporation (“Dent-X”),
QR
IMAGING USA, INC., a New York corporation (“QR-USA”),
and
VISIPLEX INSTRUMENTS CORPORATION, a New York corporation (“Visiplex”)
(each a
“Guarantor”
and
collectively the “Guarantors”),
in
favor of COMVEST CAPITAL, LLC, a Delaware limited liability company (the
“Lender”).
STATEMENT
OF PURPOSE
Pursuant
to the terms of the Revolving Credit and Term Loan Agreement of even date
herewith by and between (the “Borrower”)
and the
Lender (as same may be amended, modified, supplemented and/or restated from
time
to time, the “Loan
Agreement”),
the
Lender has agreed to make Loans to the Borrower in the principal amount of
up to
$8,000,000 at any time outstanding, upon the terms and subject to the conditions
set forth therein.
Each
of
the Guarantors is a direct wholly-owned Subsidiary of the Borrower.
The
Borrower and the Guarantors, though separate legal entities, comprise one
integrated financial enterprise, and the Loans will inure, directly or
indirectly, to the benefit of each of the Guarantors.
It
is a
condition precedent to the obligation of the Lender to make the Loans under
the
Loan Agreement that the Guarantors shall have executed and delivered this
Guaranty to the Lender.
NOW,
THEREFORE, for good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged by the parties hereto, and to induce the Lender
to
enter into the Loan Agreement and to make the Loans thereunder, the Guarantors
hereby agree with the Lender as follows:
ARTICLE
I
DEFINED
TERMS
SECTION
1.1 Definitions.
The
following terms when used in this Guaranty shall have the meanings assigned
to
them below:
“Additional
Guarantor”
means
each direct or indirect Domestic Subsidiary of the Borrower which hereafter
becomes a Guarantor pursuant to Section
4.17
hereof
and Section
5.11
of the
Loan Agreement.
“Applicable
Insolvency Laws”
means
all Applicable Laws governing bankruptcy, reorganization, arrangement,
adjustment of debts, relief of debtors, dissolution, insolvency, fraudulent
transfers or conveyances or other similar laws (including, without limitation,
11 U.S.C. Sections 544, 547, 548 and 550 and other “avoidance” provisions
of Title 11 of the United States Code, as amended or supplemented).
“Guaranteed
Obligations”
has
the
meaning set forth in Section
2.1.
“Guaranty”
means
this Guaranty Agreement, as amended, modified, supplemented and/or restated
from
time to time.
1
SECTION
1.2 Other
Definitional Provisions.
Capitalized terms used and not otherwise defined in this Guaranty, including
the
preambles and recitals hereof, shall have the meanings ascribed to them in
the
Loan Agreement. In the event of a conflict between capitalized terms defined
herein and in the Loan Agreement, the Loan Agreement shall control. The words
“hereof,” “herein”, “hereto” and “hereunder” and words of similar import when
used in this Guaranty shall refer to this Guaranty as a whole and not to any
particular provision of this Guaranty, and Section references are to this
Guaranty unless otherwise specified. The meanings given to terms defined herein
shall be equally applicable to both the singular and plural forms of such terms.
Where the context requires, terms relating to the Collateral or any part
thereof, when used in relation to a Guarantor, shall refer to such Guarantor’s
Collateral or the relevant part thereof. The word “including” and words of
similar import when used in this Agreement shall mean “including, without
limitation,” unless otherwise specified.
ARTICLE
II
GUARANTY
SECTION
2.1 Guaranty.
Each
Guarantor hereby, jointly and severally with the other Guarantors,
unconditionally guarantees to the Lender and its successors, endorsees,
transferees and assigns, the prompt payment and performance of all Obligations
of the Borrower, whether primary or secondary (whether by way of endorsement
or
otherwise), whether now existing or hereafter arising, whether or not from
time
to time reduced or extinguished (except by payment thereof) or hereafter
increased or incurred, whether enforceable or unenforceable as against the
Borrower, whether or not discharged, stayed or otherwise affected by any
Applicable Insolvency Law or proceeding thereunder, whether matured or
unmatured, whether joint or several, as and when the same become due and payable
(whether at maturity or earlier, by reason of acceleration, mandatory repayment
or otherwise), in accordance with the terms of the agreements and instruments
evidencing such Obligations, including all renewals, extensions or modifications
thereof (all such Obligations of the Borrower being hereafter collectively
referred to as the “Guaranteed
Obligations”).
SECTION
2.2 Bankruptcy
Limitations on Guarantors.
Notwithstanding anything to the contrary contained in Section
2.1,
it is
the intention of each Guarantor and the Lender that, in any proceeding involving
the bankruptcy, reorganization, arrangement, adjustment of debts, relief of
debtors, dissolution or insolvency or any similar proceeding with respect to
any
Guarantor or its assets, the amount of such Guarantor’s obligations with respect
to the Guaranteed Obligations shall be equal to, but not in excess of, the
maximum amount thereof not subject to avoidance or recovery by operation of
Applicable Insolvency Laws after giving effect to Section
2.3.
To that
end, but only in the event and to the extent that after giving effect to
Section
2.3
such
Guarantor’s obligations with respect to the Guaranteed Obligations or any
payment made pursuant to such Guaranteed Obligations would, but for the
operation of the first sentence of this Section
2.2,
be
subject to avoidance or recovery in any such proceeding under Applicable
Insolvency Laws after giving effect to Section
2.3,
the
amount of such Guarantor’s obligations with respect to the Guaranteed
Obligations shall be limited to the largest amount which, after giving effect
thereto, would not, under Applicable Insolvency Laws, render such Guarantor’s
obligations with respect to the Guaranteed Obligations unenforceable or
avoidable or otherwise subject to recovery under Applicable Insolvency Laws.
To
the extent any payment actually made pursuant to the Guaranteed Obligations
exceeds the limitation of the first sentence of this Section
2.2
and is
otherwise subject to avoidance and recovery in any such proceeding under
Applicable Insolvency Laws, the amount subject to avoidance shall in all events
be limited to the amount by which such actual payment exceeds such limitation
and the Guaranteed Obligations as limited by the first sentence of this
Section
2.2
shall in
all events remain in full force and effect and be fully enforceable against
such
Guarantor. The first sentence of this Section 2.2 is intended solely to preserve
the rights of the Lender hereunder against such Guarantor in such proceeding
to
the maximum extent permitted by Applicable Insolvency Laws and neither such
Guarantor, the Borrower, any other Guarantor nor any other Person shall have
any
right or claim under such sentence that would not otherwise be available under
Applicable Insolvency Laws in such proceeding.
2
SECTION
2.3 Agreements
for Contribution.(a) To
the
extent that any Guarantor is required, by reason of its obligations hereunder,
to pay to the Lender an amount greater than the amount of value (as determined
in accordance with Applicable Insolvency Laws) actually made available to or
for
the benefit of such Guarantor on account of the Loan Agreement, this Guaranty
or
any other Loan Document, such Guarantor shall have an enforceable right of
contribution against the remaining Guarantors, and the remaining Guarantors
shall be jointly and severally liable for repayment of the full amount of such
excess payment. Subject only to the subordination provided in Section
2.3(d),
such
Guarantor further shall be subrogated to any and all rights of the Lender
against the Borrower and the remaining Guarantors to the extent of such excess
payment.
(b) To
the
extent that any Guarantor would, but for the operation of this Section 2.3
and by
reason of its obligations hereunder or its obligations to other Guarantors
under
this Section
2.3,
be
rendered insolvent for any purpose under Applicable Insolvency Laws, each of
the
Guarantors hereby agrees to indemnify such Guarantor and commits to make a
contribution to such Guarantor’s capital in an amount at least equal to the
amount necessary to prevent such Guarantor from having been rendered insolvent
by reason of the incurrence of any such obligations.
(c) To
the
extent that any Guarantor would, but for the operation of this Section 2.3,
be
rendered insolvent under any Applicable Insolvency Law by reason of its
incurring of obligations to any other Guarantor under the foregoing Sections
2.3(a)
and
(b),
such
Guarantor shall, in turn, have rights of contribution to the full extent
provided in the foregoing Sections
2.3(a)
and
(b)
against
the remaining Guarantors, such that all obligations of all of the Guarantors
hereunder and under this Section 2.3
shall be
allocated in a manner such that no Guarantor shall be rendered insolvent for
any
purpose under Applicable Insolvency Law by reason of its incurrence of such
obligations.
(d) Notwithstanding
any payment or payments by any of the Guarantors hereunder, or any set-off
or
application of funds of any of the Guarantors by the Lender, or the receipt
of
any amounts by the Lender with respect to any of the Guaranteed Obligations,
none of the Guarantors shall be entitled to be subrogated to any of the rights
of the Lender against the Borrower or the other Guarantors or against any
collateral security held by the Lender for the payment of the Guaranteed
Obligations, nor shall any of the Guarantors seek any reimbursement from the
Borrower or any of the other Guarantors in respect of payments made by such
Guarantor in connection with the Guaranteed Obligations, until all amounts
owing
to the Lender on account of the Guaranteed Obligations are paid in full and
the
Revolving Credit Commitment has been terminated. If any amount shall be paid
to
any Guarantor on account of such subrogation rights at any time when all of
the
Guaranteed Obligations shall not have been paid in full or the Revolving Credit
Commitment has not terminated, such amount shall be held by such Guarantor
in
trust for the benefit of the Lender, segregated from other funds of such
Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned over
to the Lender in the exact form received by such Guarantor (duly endorsed by
such Guarantor to the Lender, if required) to be applied against the Guaranteed
Obligations, whether matured or unmatured, in the order set forth in the Loan
Agreement.
3
SECTION
2.4 Nature
of Guaranty.(a) Each
Guarantor agrees that this Guaranty is a continuing, unconditional guaranty
of
payment and performance and not of collection, and that its obligations under
this Guaranty shall be primary, absolute and unconditional, irrespective of,
and
unaffected by:
(i) the
genuineness, validity, regularity, enforceability or any future amendment of,
or
change in, the Loan Agreement or any other Loan Document or any other agreement,
document or instrument to which the Borrower or any Subsidiary is or may become
a party;
(ii) the
absence of any action to enforce this Guaranty, the Loan Agreement or any other
Loan Document or the waiver or consent by the Lender with respect to any of
the
provisions of this Guaranty, the Loan Agreement or any other Loan
Document;
(iii) the
existence, value or condition of, or failure to perfect any Lien against, any
security for or other guaranty of the Guaranteed Obligations or any action,
or
the absence of any action, by the Lender in respect of such security or guaranty
(including, without limitation, the release of any such security or guaranty);
or
(iv) any
other
action or circumstances which might otherwise constitute a legal or equitable
discharge or defense of a surety or guarantor;
it
being
agreed by each Guarantor that, subject to the first sentence of Section
2.2,
its
obligations under this Guaranty shall not be discharged until the final
indefeasible payment and performance, in full, of the Guaranteed
Obligations.
(b) Each
Guarantor represents, warrants and agrees that its obligations under this
Guaranty are not and shall not be subject to any counterclaims, offsets or
defenses of any kind against the Lender or the Borrower, whether now existing
or
which may arise in the future.
(c) Each
Guarantor hereby agrees and acknowledges that the
Guaranteed Obligations, and any of them, shall conclusively be deemed to have
been created, contracted or incurred, or renewed, extended, amended or waived,
in reliance upon this Guaranty, and all dealings between the Borrower and any
of
the Guarantors, on the one hand, and the Lender, on the other hand, likewise
shall be conclusively presumed to have been had or consummated in reliance
upon
this Guaranty.
SECTION
2.5 Waivers.
To the
extent permitted by law, each Guarantor expressly waives all of the following
rights and defenses (and agrees not to take advantage of or assert any such
right or defense):
(a) any
rights
it may now or in the future have under any statute, or at law or in equity,
or
otherwise, to compel the Lender to proceed in respect of the Obligations against
the Borrower or any other Person or against any security for or other guaranty
of the payment and performance of the Guaranteed Obligations before proceeding
against, or as a condition to proceeding against, such Guarantor;
(b) any
defense based upon the failure of the Lender to commence an action in respect
of
the Guaranteed Obligations against the Borrower, such Guarantor, any other
guarantor or any other Person or any security for the payment and performance
of
the Guaranteed Obligations;
4
(c) any
right
to insist upon, plead or in any manner whatever claim or take the benefit or
advantage of, any appraisal, valuation, stay, extension, marshalling of assets
or redemption laws, or exemption, whether now or at any time hereafter in force,
which may delay, prevent or otherwise affect the performance by such Guarantor
of its obligations under, or the enforcement by the Lender of this
Guaranty;
(d) any
right
of diligence, presentment, demand, protest and notice (except as specifically
required herein) of whatever kind or nature with respect to any of the
Guaranteed Obligations and waives, to the extent permitted by Applicable Law,
the benefit of all provisions of law which are or might be in conflict with
the
terms of this Guaranty; and
(e) any
and
all right to notice of the creation, renewal, extension or accrual of any of
the
Obligations and notice of or proof of reliance by the Lender upon, or acceptance
of, this Guaranty.
Each
Guarantor agrees that any notice or directive given at any time to the Lender
which is inconsistent with any of the foregoing waivers shall be null and void
and may be ignored by the Lender, and, in addition, may not be pleaded or
introduced as evidence in any litigation relating to this Guaranty for the
reason that such pleading or introduction would be at variance with the written
terms of this Guaranty, unless the Lender has specifically agreed otherwise
in
writing. The foregoing waivers are of the essence of the transaction
contemplated by the Loan Agreement and the other Loan Documents and, but for
this Guaranty and such waivers, the Lender would decline to enter into the
Loan
Agreement and the other Loan Documents.
SECTION
2.6 Modification
of Loan Documents, etc.
The
Lender shall not incur any liability to any Guarantor as a result of any of
the
following, and none of the following shall impair, limit or release this
Guaranty or any of the obligations of any Guarantor under this
Guaranty:
(a) any
change
or extension of the manner, place or terms of payment of, or renewal or
alteration of all or any portion of, the Guaranteed Obligations;
(b) any
action
under or in respect of the Loan Agreement or the other Loan Documents in the
exercise of any remedy, power or privilege contained therein or available to
any
of them at law, in equity or otherwise, or waiver or refrain from exercising
any
such remedies, powers or privileges;
(c) any
amendment or modification, in any manner whatsoever, of the Loan
Documents;
(d) any
extension or waiver of the time for performance by any Guarantor, any other
guarantor, the Borrower or any other Person, or compliance with, any term,
covenant or agreement on its part to be performed or observed under a Loan
Document, or waiver of such performance or compliance or consent to a failure
of, or departure from, such performance or compliance;
(e) the
taking
and holding security or Collateral for the payment of the Obligations or the
sale, exchange, release, disposal of, or other dealing with, any property
pledged, mortgaged or conveyed, or in which the Lender has been granted a Lien,
to secure any indebtedness of any Guarantor, any other guarantor or the Borrower
to the Lender;
(f) the
release of anyone who may be liable in any manner for the payment of any amounts
owed by any Guarantor, any other guarantor or the Borrower to the Lender;
or
5
(g) any
modification or termination of any intercreditor or subordination agreement
pursuant to which claims of other creditors of any Guarantor, any other
guarantor or the Borrower are subordinated to the claims of the
Lender.
SECTION
2.7 Demand
by the Lender.
In
addition to the terms set forth in this Article II and in no manner imposing
any
limitation on such terms, if all or any portion of the then outstanding
Guaranteed Obligations are declared to be immediately due and payable, then
the
Guarantors shall, upon demand in writing therefor by the Lender to the
Guarantors, pay all or such portion of the outstanding Guaranteed Obligations
then due and payable or declared due and payable.
SECTION
2.8 Remedies.
Upon the
occurrence and during the continuance of any Event of Default, the Lender may
enforce against the Guarantors their respective obligations and liabilities
hereunder and exercise such other rights and remedies as may be available to
the
Lender hereunder, under the Loan Agreement or the other Loan Documents or
otherwise.
SECTION
2.9 Benefits
of Guaranty.
The
provisions of this Guaranty are for the benefit of the Lender and its
successors, transferees, endorsees and assigns, and nothing herein contained
shall impair, as between the Borrower and the Lender, the obligations of the
Borrower under the Loan Documents. In the event that all or any part of the
Obligations are transferred, endorsed or assigned by the Lender to any Person
or
Persons as permitted under the Loan Agreement, any reference to a “Lender”
herein shall be deemed to refer similarly and ratably to such Person or
Persons.
SECTION
2.10 Termination;
Reinstatement.(a) Subject
to
Section
2.10(c)
below,
this Guaranty shall remain in full force and effect until all the Guaranteed
Obligations shall have been indefeasibly paid in full.
(b) No
payment
made by the Borrower, any Guarantor, or any other Person received or collected
by the Lender from the Borrower, any Guarantor, or any other Person by virtue
of
any action or proceeding or any set-off or appropriation or application at
any
time or from time to time in reduction of or in payment of the Guaranteed
Obligations shall be deemed to modify, reduce, release or otherwise affect
the
liability of any Guarantor hereunder which shall, notwithstanding any such
payment (other than any payment made by such Guarantor in respect of the
obligations of the Guarantors or any payment received or collected from such
Guarantor in respect of the obligations of the Guarantors), remain liable for
the obligations of the Guarantors up
to the
maximum liability of such Guarantor hereunder until the Guaranteed Obligations
shall have been indefeasibly paid in full.
(c) Each
Guarantor agrees that, if any payment made by the Borrower or any other Person
applied to the Obligations is at any time annulled, set aside, rescinded,
invalidated, declared to be fraudulent or preferential or otherwise required
to
be refunded or repaid, or the proceeds of any Collateral are required to be
refunded by the Lender to the Borrower, its estate, trustee, receiver or any
other Person, including, without limitation, any Guarantor,
under any Applicable Law or equitable cause, then, to the extent of such payment
or repayment, each Guarantor’s liability hereunder (and any Lien or Collateral
securing such liability) shall be and remain in full force and effect, as fully
as if such payment had never been made, and, if prior thereto, this Guaranty
shall have been canceled or surrendered (and if any Lien or Collateral securing
such Guarantor’s liability hereunder shall have been released or terminated by
virtue of such cancellation or surrender), this Guaranty (and such Lien or
Collateral) shall be reinstated in full force and effect, and such prior
cancellation or surrender shall not diminish, release, discharge, impair or
otherwise affect the obligations of such Guarantor in respect of the amount
of
such payment (or any Lien or Collateral securing such obligation).
SECTION
2.11 Payments.
Payments
by the Guarantors shall be made to the Lender, to be credited and applied to
the
Guaranteed Obligations in accordance with the Loan Agreement, in immediately
available Dollars to the account designated by the Lender.
6
ARTICLE
III
REPRESENTATIONS
AND WARRANTIES
To
induce
the Lender to make the Loans, each Guarantor hereby represents and warrants
that:
SECTION
3.1 Existence.
Such
Guarantor is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or formation, has the requisite
power and authority to own, lease and operate its properties and to carry on
its
business as now being and hereafter proposed to be conducted and is duly
qualified and authorized to do business in each jurisdiction in which the
character of its properties or the nature of its business requires such
qualification and authorization and the failure to be so qualified would have
a
Material Adverse Effect.
SECTION
3.2 Authorization
of Agreement; Enforceability.
Such
Guarantor has the right, power and authority to execute, deliver and perform
this Guaranty and has taken all necessary corporate or other organizational
action to authorize its execution, delivery and performance of this Guaranty.
This Guaranty has been duly executed and delivered by the duly authorized
officers of such Guarantor and this Guaranty constitutes the legal, valid and
binding obligation of such Guarantor enforceable against such Guarantor in
accordance with its terms, except as such enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar state or federal
debtor relief laws from time to time in effect which affect the enforcement
of
creditors’ rights in general and the availability of equitable
remedies.
SECTION
3.3 No
Conflict; Consents.
The
execution, delivery and performance by such Guarantor of this Guaranty will
not,
by the passage of time, the giving of notice or otherwise, violate any material
provision of any Applicable Law or contractual obligation of such Guarantor
and
will not result in the creation or imposition of any Lien upon or with respect
to any property or revenues of such Guarantor. No consent or
authorization of, filing with, or other act by or in respect of, any arbitrator
or governmental authority and no consent of any other Person (including, without
limitation, any stockholder or creditor of such Guarantor), is required in
connection with the execution, delivery, performance, validity or enforceability
of this Guaranty.
SECTION
3.4 Litigation.
No
actions, suits or proceedings before any arbitrator or governmental authority
are pending or, to the knowledge of such Guarantor, threatened by or against
such Guarantor or against any of its properties with respect to this Guaranty
or
any of the transactions contemplated hereby.
SECTION
3.5 Title
to Assets.
Such
Guarantor has a valid leasehold interest in any and all real property leased
by
it, and has good title to all of its personal property sufficient to carry
on
its business free of any and all Liens of any type whatsoever, except Permitted
Liens.
SECTION
3.6 Solvency.
As of
the Closing Date (or such later date upon which such Guarantor became a party
hereto), such Guarantor (i) has capital sufficient to carry on its business
and
transactions and all business and transactions in which it engages and is able
to pay its debts as they mature, (ii) owns property having a value, both at
fair
valuation on a going concern basis, and at present fair saleable value on a
going concern basis, greater than the amount required to pay its probable
liabilities (including contingencies), and (iii) does not believe that it will
incur debts or liabilities beyond its ability to pay such debts or liabilities
as they mature, subject in each case to the first sentence of Section
2.2.
7
ARTICLE
IV
MISCELLANEOUS
SECTION
4.1 Amendments
in Writing.
None of
the terms or provisions of this Guaranty may be waived, amended, supplemented
or
otherwise modified except in accordance with Section
9.04
of the
Loan Agreement.
SECTION
4.2 Notices.
All
notices and communications hereunder shall be given to the addresses and
otherwise made in accordance with Section
9.06
of the
Loan Agreement; provided that notices and communications to the Guarantors
shall
be directed to the Guarantors at the address of the Borrower set forth in
Section
9.06 of
the
Loan Agreement.
SECTION
4.3 Enforcement
Expenses, Indemnification.
(a) Each
Guarantor agrees to pay or reimburse the Lender for all its reasonable costs
and
expenses incurred in connection with enforcing or preserving any rights under
this Guaranty and the other Loan Documents to which such Guarantor is a party,
including, without limitation, the reasonable fees and disbursements of counsel
(including the allocated fees and expenses of in-house counsel) to the
Lender.
(b) Each
Guarantor agrees to pay, and to save the Lender harmless from, any and all
liabilities with respect to, or resulting from any delay in paying, any and
all
stamp, excise, sales or other taxes which may be payable or determined to be
payable with respect to any of the Collateral or in connection with any of
the
transactions contemplated by this Guaranty.
(c) Each
Guarantor agrees to pay, and to save the Lender harmless from, any and all
liabilities, obligations, losses, damages, penalties, costs and expenses in
connection with actions, judgments, suits, costs, expenses or disbursements
of
any kind or nature whatsoever with respect to the execution, delivery,
enforcement, performance and administration of this Guaranty to the extent
the
Borrower would be required to do so pursuant to the Loan Agreement and/or the
Collateral Agreement.
(d) The
agreements in this Section
4.3
shall
survive repayment of the Obligations and all other amounts payable under the
Loan Agreement and the other Loan Documents.
SECTION
4.4 Governing
Law.
This
Guaranty shall be governed by, and construed and interpreted in accordance
with,
the laws of the State of New York, without giving effect to principles of
conflicts of laws.
SECTION
4.5 Consent
to Jurisdiction and Venue.
(a) Each
Guarantor hereby irrevocably consents to the personal jurisdiction of all state
and federal courts located in New York, New York (and any courts from which
an
appeal from any of such courts must or may be taken) in any action, claim or
other proceeding arising out of any dispute in connection with this Agreement
and the other Loan Documents, any rights or obligations hereunder or thereunder,
or the performance of such rights and obligations. Each Guarantor hereby
irrevocably consents to the service of a summons and complaint and other process
in any action, claim or proceeding brought by the Lender in connection with
this
Agreement or the other Loan Documents, any rights or obligations hereunder
or
thereunder, or the performance of such rights and obligations, on behalf of
itself or its property, by registered or certified mail, return receipt
requested, in the manner specified in Section
9.06
of the
Loan Agreement. Nothing in this Section
4.5
shall
affect the right of the Lender to serve legal process in any other manner
permitted by Applicable Law or affect the right of the Lender to bring any
action or proceeding against any Guarantor or its properties in the courts
of
any other jurisdictions.
8
(b) The
Guarantors hereby irrevocably waive any objection each may have now or in the
future to the laying of venue in the aforesaid jurisdiction in any action,
claim
or other proceeding arising out of or in connection with this Guaranty, any
other Loan Document or the rights and obligations of the parties hereunder
or
thereunder. The Guarantors irrevocably waive, in connection with such action,
claim or proceeding, any plea or claim that the action, claim or proceeding
has
been brought in an inconvenient forum.
SECTION
4.6 Preservation
of Remedies, Damages.
(a) Preservation
of Certain Remedies.
The
parties hereto and the other Loan Documents preserve, without diminution,
certain remedies that such Persons may employ or exercise freely, either alone,
in conjunction with or during a dispute. Each such Person shall have and hereby
reserves the right to proceed in any court of proper jurisdiction or by
self-help to exercise or prosecute the following remedies, as applicable: (i)
all rights to foreclose against any real or personal property or other security
by exercising a power of sale granted in the Loan Documents or under Applicable
Law or by judicial foreclosure and sale, including a proceeding to confirm
the
sale, (ii) all rights of self-help including peaceful occupation of property
and
collection of rents, set-off, and peaceful possession of property, (iii)
obtaining provisional or ancillary remedies including injunctive relief,
sequestration, garnishment, attachment, appointment of receiver and in filing
an
involuntary bankruptcy proceeding, and (iv) when applicable, a judgment by
confession of judgment. Preservation of these remedies does not limit the power
of an arbitrator to grant similar remedies that may be requested by a party
in a
dispute.
(b) No
Punitive/Exemplary Damages.
The
Lender and each Guarantor hereby agree that no such Person shall have a remedy
of punitive or exemplary damages against any other party to a Loan Document
and
each such Person hereby waives any right or claim to punitive or exemplary
damages that it may now have or may arise in the future in connection with
any
dispute hereunder or under any other Loan Document, whether such dispute is
resolved through arbitration or judicially.
SECTION
4.7 Waiver
of Jury Trial.
TO
THE EXTENT PERMITTED BY APPLICABLE LAW, THE LENDER AND EACH GUARANTOR HEREBY
IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY
ACTION, CLAIM OR OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION
WITH
THIS GUARANTY, THE NOTE OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS
HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND
OBLIGATIONS.
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SECTION
4.8 No
Waiver by Course of Conduct, Cumulative Remedies.
The
Lender shall not by any act (except by a written instrument pursuant to
Section 4.1),
delay,
indulgence, omission or otherwise be deemed to have waived any right or remedy
hereunder or to have acquiesced in any Default or Event of Default. No failure
to exercise, nor any delay in exercising on the part of the Lender, any right,
power or privilege hereunder shall operate as a waiver thereof. No single or
partial exercise of any right, power or privilege hereunder shall preclude
any
other or further exercise thereof or the exercise of any other right, power
or
privilege. A waiver by the Lender of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the Lender
would otherwise have on any future occasion. The rights and remedies herein
provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any other rights or remedies provided by law.
SECTION
4.9 Successors
and Assigns.
This
Guaranty shall be binding upon and shall inure to the benefit of each Guarantor
(and shall bind all Persons who become bound as a Guarantor under this
Guaranty), the Lender and their successors and assigns; provided
that no
Guarantor may assign, transfer or delegate any of its rights or obligations
under this Guaranty without the prior written consent of all holders of
Obligations.
SECTION
4.10 Severability.
If any
provision hereof is held by a court of competent jurisdiction to be invalid
or
unenforceable in any jurisdiction, then, to the fullest extent permitted by
law,
(a)
the
other provisions hereof shall remain in full force and effect in such
jurisdiction and shall be liberally construed in favor of the Lender in order
to
carry out the intentions of the parties hereto as nearly as may be possible;
and
(b) the invalidity or unenforceability of any provisions hereof in any
jurisdiction shall not affect the validity or enforceability of such provision
in any other jurisdiction.
SECTION
4.11 Headings.
The
various section headings used in this Guaranty are for convenience of reference
only and shall not affect the meaning or interpretation of this Guaranty or
any
provisions hereof.
SECTION
4.12 Counterparts.
This
Guaranty may be executed by the parties hereto in several counterparts, each
of
which shall be deemed to be an original and all of which shall constitute
together but one and the same agreement.
SECTION
4.13 Set-Off.
Each
Guarantor hereby irrevocably authorizes the Lender, at any time and from time
to
time during the continuance of an Event of Default, without notice to such
Guarantor or any other Guarantor, any such notice being expressly waived by
each
Guarantor, to set off and appropriate and apply any and all deposits (general
or
special, time or demand, provisional or final), in any currency, and any other
credits, indebtedness or claims, in any currency, in each case whether direct
or
indirect, absolute or contingent, matured or unmatured, at any time held or
owing by the Lender (or any agent of the Lender) to or for the credit or the
account of such Guarantor, or any part thereof, in such amounts as the Lender
may elect, against and on account of the obligations and liabilities of such
Guarantor to the Lender hereunder, as the Lender may elect, whether or not
the
Lender has made any demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. The Lender shall notify
such Guarantor promptly of any such set-off and the application made by the
Lender of the proceeds thereof; provided
that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of the Lender under this Section 4.13 are in addition
to
other rights and remedies (including, without limitation, other rights of
set-off) which the Lender may have.
SECTION
4.14 Integration.
This
Guaranty and the other Loan Documents represent the agreement of the Guarantors
and the Lender with respect to the subject matter hereof and thereof, and there
are no promises, undertakings, representations or warranties by the Lender
relative to subject matter hereof and thereof not expressly set forth or
referred to herein or in the other Loan Documents.
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SECTION
4.15 Acknowledgements.
Each
Guarantor hereby acknowledges that:
(a) it
has
been advised by counsel in the negotiation, execution and delivery of this
Guaranty and the other Loan Documents to which it is a party;
(b) the
Lender
as such has no fiduciary relationship with or duty to any Guarantor arising
out
of or in connection with this Guaranty or any of the other Loan Documents,
and
the relationship between the Guarantors, on the one hand, and the Lender as
such, on the other hand, in connection herewith or therewith is solely that
of
debtor and creditor; and
(c) no
joint
venture is created hereby or by the other Loan Documents or otherwise exists
by
virtue of the transactions contemplated hereby among the Lender or among the
Guarantors and the Lender.
SECTION
4.16 Releases.
At such
time as the Guaranteed Obligations shall have been indefeasibly paid in full,
this Guaranty and all obligations (other than those expressly stated to survive
such termination) of the Guarantors hereunder shall terminate, all without
delivery of any instrument or performance of any act by any party.
SECTION
4.17 Additional
Guarantors.
Each
direct or indirect Domestic Subsidiary of the Borrower that is required to
become a party to this Guaranty pursuant to Section 5.11 of the Loan Agreement
shall become a Guarantor for all purposes of this Guaranty upon execution and
delivery by such Domestic Subsidiary of a joinder or supplement in form and
substance satisfactory to the Lender.
[Signature
Page to Follow]
11
IN
WITNESS
WHEREOF, each of the Guarantors has executed and delivered this Guaranty by
its
duly authorized officer, all as of the date first set forth above.
|
DENT-X
INTERNATIONAL INC.
By: /s/
Xxxxx Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Chairman of the Board
|
|
|
QR
IMAGING USA, INC.
By:
/s/ Xxxxx Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Chairman of the Board
|
|
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VISIPLEX
INSTRUMENTS CORPORATION
By:
/s/ Xxxxx Xxxxxx
Name:
Xxxxx Xxxxxx
Title:
Chairman of the Board
|
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