GUARANTY
EXHIBIT
10.4
December
31, 2005
FOR
VALUE
RECEIVED, and in consideration of note purchases from, loans made or to be
made
or credit otherwise extended or to be extended by Laurus Master Fund, Ltd.
(“Laurus”)
to or
for the account of Cancable Inc., an Ontario corporation (“Debtor”),
from
time to time and at any time and for other good and valuable consideration
and
to induce Xxxxxx, in its discretion, to purchase such notes, make such loans
or
extensions of credit and to make or grant such renewals, extensions, releases
of
collateral or relinquishments of legal rights as Xxxxxx may deem advisable,
each
of the undersigned (and each of them if more than one, the liability under
this
Guaranty being joint and several) (jointly and severally referred to as
“Guarantors”
or
“the
undersigned”)
irrevocably and unconditionally guarantees to Laurus, its successors, endorsees
and assigns the prompt payment when due (whether by acceleration or otherwise)
of all present and future obligations and liabilities of any and all kinds
of
Debtor to Laurus and of all instruments of any nature evidencing or relating
to
any such obligations and liabilities upon which Debtor or one or more parties
and Debtor is or may become liable to Laurus, whether incurred by Debtor as
maker, endorser, drawer, acceptor, guarantors, accommodation party or otherwise,
and whether due or to become due, secured or unsecured, absolute or contingent,
joint or several, and however or whenever acquired by Xxxxxx, whether arising
under, out of, or in connection with (i) that certain Securities Purchase
Agreement dated as of the date hereof by and between the Debtor, Cancable
Holding Corp. and Laurus (the “Securities
Purchase Agreement”),
(ii) each Related Agreement referred to in the Securities Purchase
Agreement, (the Securities Purchase Agreement and each Related Agreement, as
each may be amended, modified, restated or supplemented from time to time,
are
collectively referred to herein as the “Documents”),
or
any documents, instruments or agreements relating to or executed in connection
with the Documents or any documents, instruments or agreements referred to
therein or otherwise, or any other indebtedness, obligations or liabilities
of
the Debtor to Laurus, whether now existing or hereafter arising, direct or
indirect, liquidated or unliquidated, absolute or contingent, due or not due
and
whether under, pursuant to or evidenced by a note, agreement, guaranty,
instrument or otherwise (all of which are herein collectively referred to as
the
“Obligations”),
and
irrespective of the genuineness, validity, regularity or enforceability of
such
Obligations, or of any instrument evidencing any of the Obligations or of any
collateral therefor or of the existence or extent of such collateral, and
irrespective of the allowability, allowance or disallowance of any or all of
the
Obligations in any case commenced by or against Debtor under Title 11, United
States Code, the Bankruptcy
and Insolvency Act
(Canada)
(the “BIA”)
and
the Companies’
Creditors Arrangement Act
(the
“CCAA”)
including, without limitation, obligations or indebtedness of Debtor for
post-petition interest, fees, costs and charges that would have accrued or
been
added to the Obligations but for the commencement of such case. Terms not
otherwise defined herein shall have the meaning assigned such terms in the
Securities Purchase Agreement. In furtherance of the foregoing, the undersigned
xxxxxx agrees as follows:
| 1. |
No
Impairment.
Laurus may at any time and from time to time, either before or after
the
maturity thereof, without notice to or further consent of the undersigned,
extend the time of payment of, exchange or surrender any collateral
for,
renew or extend any of the Obligations or increase or decrease the
interest rate thereon, or any other agreement with Debtor or with
any
other party to or person liable on any of the Obligations, or interested
therein, for the extension, renewal, payment, compromise, discharge
or
release thereof, in whole or in part, or for any modification of
the terms
thereof or of any agreement between Laurus and Debtor or any such
other
party or person, or make any election of rights Laurus may deem desirable
under the United States Bankruptcy Code, as amended, the BIA, the
CCAA, or
any other federal, provincial or state bankruptcy, reorganization,
moratorium or insolvency law relating to or affecting the enforcement
of
creditors’ rights generally (any of the foregoing, an “Insolvency
Law”)
without in any way impairing or affecting this Guaranty. This instrument
shall be effective regardless of the subsequent incorporation, merger,
amalgamation or consolidation of Debtor or Guarantors, or any change
in
the composition, nature, personnel or location of Debtor or Guarantors
and
shall extend to any successor entity to Debtor or Guarantors, including
a
debtor in possession or the like under any Insolvency
Law.
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| 2. |
Guaranty
Absolute.
Each of the undersigned jointly and severally guarantees that the
Obligations will be paid strictly in accordance with the terms of
the
Documents and/or any other document, instrument or agreement creating
or
evidencing the Obligations, regardless of any law, regulation or
order now
or hereafter in effect in any jurisdiction affecting any of such
terms or
the rights of Debtor with respect thereto. Guarantors hereby knowingly
accept the full range of risk encompassed within a contract of “continuing
guaranty” which risk includes the possibility that Debtor will contract
additional indebtedness for which Guarantors may be liable hereunder
after
Xxxxxx’s financial condition or ability to pay its lawful debts when they
fall due has deteriorated, whether or not Debtor has properly authorized
incurring such additional indebtedness. The undersigned acknowledge
that
(i) no oral representations, including any representations to extend
credit or provide other financial accommodations to Debtor, have
been made
by Xxxxxx to induce the undersigned to enter into this Guaranty and
(ii) any extension of credit to the Debtor shall be governed solely
by the provisions of the Documents. The liability of each of the
undersigned under this Guaranty shall be absolute and unconditional,
in
accordance with its terms, and shall remain in full force and effect
without regard to, and shall not be released, suspended, discharged,
terminated or otherwise affected by, any circumstance or occurrence
whatsoever, including, without limitation: (a) any waiver,
indulgence, renewal, extension, amendment or modification of or addition,
consent or supplement to or deletion from or any other action or
inaction
under or in respect of the Documents or any other instruments or
agreements relating to the Obligations or any assignment or transfer
of
any thereof, (b) any lack of validity or enforceability of any
Document or other documents, instruments or agreements relating to
the
Obligations or any assignment or transfer of any thereof, (c) any
furnishing of any additional security to Laurus or its assignees
or any
acceptance thereof or any release of any security by Laurus or its
assignees, (d) any limitation on any party’s liability or obligation
under the Documents or any other documents, instruments or agreements
relating to the Obligations or any assignment or transfer of any
thereof
or any invalidity or unenforceability, in whole or in part, of any
such
document, instrument or agreement or any term thereof, (e) any
bankruptcy, insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to Debtor,
or
any action taken with respect to this Guaranty by any trustee, receiver,
interim receiver, or receiver and manager, or by any court, in any
such
proceeding, whether or not the undersigned shall have notice or knowledge
of any of the foregoing, (f) any exchange, release or nonperfection
of any collateral, or any release, or amendment or waiver of or consent
to
departure from any guaranty or security, for all or any of the Obligations
or (g) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the undersigned. Any amounts
due
from the undersigned to Laurus shall bear interest until such amounts
are
paid in full at the highest rate then applicable to the Obligations.
Obligations include post-petition interest whether or not allowed
or
allowable.
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-2-
| 3. |
Waivers.
|
(a) This
Guaranty is a guaranty of payment and not of collection. Laurus shall be under
no obligation to institute suit, exercise rights or remedies or take any other
action against Debtor or any other person liable with respect to any of the
Obligations or resort to any collateral security held by it to secure any of
the
Obligations as a condition precedent to the undersigned being obligated to
perform as agreed herein and each of the Guarantors hereby waives any and all
rights which it may have by statute or otherwise which would require Laurus
to
do any of the foregoing. The obligations of each Guarantor hereunder are
independent of the Obligations and a separate action or actions may be brought
and prosecuted against each Guarantor to enforce this Guaranty, irrespective
of
whether any action is brought against Debtor or whether Xxxxxx is joined in
any
such action or actions. Each of the Guarantors further consents and agrees
that
Xxxxxx shall be under no obligation to marshal any assets in favor of
Guarantors, or against or in payment of any or all of the Obligations. The
undersigned hereby waives all suretyship defenses and any rights to interpose
any defense, counterclaim or offset of any nature and description which the
undersigned may have or which may exist between and among Laurus, Debtor and/or
the undersigned with respect to the undersigned’s obligations under this
Guaranty, or which Debtor may assert on the underlying debt, including but
not
limited to failure of consideration, breach of warranty, fraud, payment (other
than cash payment in full of the Obligations), statute of frauds, bankruptcy,
infancy, statute of limitations, accord and satisfaction, and
usury.
(b) Each
of
the undersigned further waives (i) notice of the acceptance of this
Guaranty, of the making of any such loans or extensions of credit, and of all
notices and demands of any kind to which the undersigned may be entitled,
including, without limitation, notice of adverse change in Debtor’s financial
condition or of any other fact which might materially increase the risk of
the
undersigned and (ii) presentment to or demand of payment from anyone
whomsoever liable upon any of the Obligations, protest, notices of presentment,
non-payment or protest and notice of any sale of collateral security or any
default of any sort.
(c) Notwithstanding
any payment or payments made by the undersigned hereunder, or any setoff or
application of funds of the undersigned by Xxxxxx, the undersigned shall not
be
entitled to be subrogated to any of the rights of Xxxxxx against Debtor or
against any collateral or guarantee or right of offset held by Xxxxxx for the
payment of the Obligations, nor shall the undersigned seek or be entitled to
seek any contribution, indemnification or reimbursement from Debtor in respect
of payments made by the undersigned hereunder, until all amounts owing to Laurus
by Xxxxxx on account of the Obligations are paid in full and Laurus’ obligation
to extend credit pursuant to the Documents have been terminated. If,
notwithstanding the foregoing, any amount shall be paid to the undersigned
on
account of such subrogation rights at any time when all of the Obligations
shall
not have been paid in full and Laurus’ obligation to extend credit pursuant to
the Documents shall not have been terminated, such amount shall be held by
the
undersigned in trust for Laurus, segregated from other funds of the undersigned,
and shall forthwith upon, and in any event within two (2) business days of,
receipt by the undersigned, be turned over to Laurus in the exact form received
by the undersigned (duly endorsed by the undersigned to Laurus, if required),
to
be applied against the Obligations, whether matured or unmatured, in such order
as Laurus may determine, subject to the provisions of the Documents. Any and
all
present and future debts and obligations of Debtor to any of the undersigned
are
hereby waived and postponed in favor of, and subordinated to the full payment
and performance of, all present and future debts and Obligations of Debtor
to
Xxxxxx.
-3-
| 4. |
Indemnity.
As an original and independent obligation under this Guaranty each
Guarantor shall:
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(a) indemnify
Laurus and keep Xxxxxx indemnified against any cost, loss, expense or liability
of whatever kind resulting from the failure by Debtor to make due and punctual
payment of any of the Obligations or resulting from any of the Obligations
being
or becoming void, voidable, unenforceable or ineffective against Debtor
(including, but without limitation, all legal and other costs, charges and
expenses incurred by Laurus, in connection with preserving or enforcing, or
attempting to preserve or enforce, its rights under this Guaranty); and
(b) pay
on
demand the amount of such cost, loss, expense or liability whether or not Xxxxxx
has attempted to enforce any rights against any Debtor or any other person
or
otherwise.
| 5. |
Security.
All sums at any time to the credit of the undersigned and any property
of
the undersigned in Laurus’ possession or in the possession of any bank,
financial institution or other entity that directly or indirectly,
through
one or more intermediaries, controls or is controlled by, or is under
common control with, Laurus (each such entity, an “Affiliate”)
shall be deemed held by Laurus or such Affiliate, as the case may
be, as
security for any and all of the undersigned’s obligations to Laurus and to
any Affiliate of Laurus, no matter how or when arising and whether
under
this or any other instrument, agreement or otherwise.
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| 6. |
Representations
and Warranties.
Each of the undersigned respectively, hereby jointly and severally
represents and warrants (all of which representations and warranties
shall
survive until all Obligations are indefeasibly satisfied in full
and the
Documents have been irrevocably terminated),
that:
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(a) Corporate
Status.
It is a
corporation, partnership or limited liability company, as the case may be,
duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization indicated on the signature page hereof and has
full
power, authority and legal right to own its property and assets and to transact
the business in which it is engaged.
-4-
(b) Authority
and Execution.
It has
full power, authority and legal right to execute and deliver, and to perform
its
obligations under, this Guaranty and has taken all necessary corporate,
partnership or limited liability company, as the case may be, action to
authorize the execution, delivery and performance of this Guaranty.
(c) Legal,
Xxxxx and Binding Character.
This
Guaranty constitutes its legal, valid and binding obligation enforceable in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws of general
application affecting the enforcement of creditor’s rights and general
principles of equity that restrict the availability of equitable or legal
remedies.
(d) Violations.
The
execution, delivery and performance of this Guaranty will not violate any
requirement of law applicable to it or any contract, agreement or instrument
to
it is a party or by which it or any of its property is bound or result in the
creation or imposition of any mortgage, lien or other encumbrance other than
to
Laurus on any of its property or assets pursuant to the provisions of any of
the
foregoing, which, in any of the foregoing cases, could reasonably be expected
to
have, either individually or in the aggregate, a Material Adverse
Effect.
(e) Consents
or Approvals.
No
consent of any other person or entity (including, without limitation, any
creditor of the undersigned) and no consent, license, permit, approval or
authorization of, exemption by, notice or report to, or registration, filing
or
declaration with, any governmental authority is required in connection with
the
execution, delivery, performance, validity or enforceability of this Guaranty
by
it, except to the extent that the failure to obtain any of the foregoing could
not reasonably be expected to have, either individually or in the aggregate,
a
Material Adverse Effect.
(f) Litigation.
Other
than as set out in Schedule 6(f)
hereto
in relation to A.C. Technical Systems Ltd., no litigation, arbitration,
investigation or administrative proceeding of or before any court, arbitrator
or
governmental authority, bureau or agency is currently pending or, to the best
of
its knowledge, threatened (i) with respect to this Guaranty or any of the
transactions contemplated by this Guaranty or (ii) against or affecting it,
or any of its property or assets, which, in each of the foregoing cases, if
adversely determined, could reasonably be expected to have a Material Adverse
Effect.
(g) Financial
Benefit.
It has
derived or expects to derive a financial or other advantage from each and every
loan, advance or extension of credit made under the Documents or other
Obligation incurred by the Debtor to Laurus.
| 7. |
Acceleration.
|
(a) If
any
breach of any covenant or condition or other event of default shall occur and
be
continuing under any agreement made by Debtor or any of the undersigned to
Laurus, or either Debtor or any of the undersigned should at any time become
insolvent, or make a general assignment, or if a proceeding in or under any
Insolvency Law shall be filed or commenced by, or in respect of, any of the
undersigned, or if a notice of any lien, levy, or assessment is filed of record
with respect to any assets of any of the undersigned by the United States of
America or Canada, or any respective department, agency, or instrumentality
of
either country, or if any taxes or debts owing at any time or times hereafter
to
any one of them becomes a lien or encumbrance upon any assets of the undersigned
in Laurus’ possession, or otherwise, any and all Obligations shall for purposes
hereof, at Laurus’ option, be deemed due and payable without notice
notwithstanding that any such Obligation is not then due and payable by
Debtor.
-5-
(b) Each
of
the undersigned will promptly notify Laurus of any default by such undersigned
in its respective performance or observance of any term or condition of any
agreement to which the undersigned is a party if the effect of such default
is
to cause, or permit the holder of any obligation under such agreement to cause,
such obligation to become due prior to its stated maturity and, if such an
event
occurs, Xxxxxx shall have the right to accelerate such undersigned’s obligations
hereunder.
| 8. |
Payments
from Guarantors.
Laurus, in its sole and absolute discretion, with or without notice
to the
undersigned, may apply on account of the Obligations any payment
from the
undersigned or any other guarantors, or amounts realized from any
security
for the Obligations, or may deposit any and all such amounts realized
in a
non-interest bearing cash collateral deposit account to be maintained
as
security for the Obligations.
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| 9. |
Tax
Gross Up.
Any and all payments by each Guarantor hereunder, and any amounts
on
account of interest or deemed interest, shall be made free and clear
of
and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities
with
respect thereto, excluding taxes imposed on net income or franchise
taxes
of Laurus by the jurisdiction in which such person is organized or
has its
principal office (all such non-excluded taxes, levies, imposts,
deductions, charges withholdings and liabilities, collectively or
individually, “Taxes”).
If any Guarantor shall be required to deduct any Taxes from or in
respect
of any sum payable hereunder to Xxxxxx, (i) the sum payable shall be
increased by the amount (an “additional
amount”)
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section
9)
Laurus shall receive an amount equal to the sum it would have received
had
no such deductions been made, (ii) such Guarantor shall make such
deductions and (iii) such Guarantor shall pay the full amount
deducted to the relevant governmental authority in accordance with
applicable law.
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In
addition, each Guarantor agrees to pay to the relevant governmental authority
in
accordance with applicable law any present or future stamp or documentary taxes
or any other excise or property taxes, charges or similar levies that arise
from
any payment made hereunder or from the execution, delivery or registration
of,
or otherwise with respect to, this Guaranty (“Other
Taxes”).
Each
Guarantor shall deliver to Laurus official receipts, if any, in respect of
any
Taxes or Other Taxes payable hereunder promptly after payment of such Taxes
or
Other Taxes or other evidence of payment reasonably acceptable to
Xxxxxx.
Each
Guarantor hereby indemnifies and agrees to hold Xxxxxx harmless from and against
Taxes and Other Taxes (including, without limitation, Taxes and Other Taxes
imposed on any amounts payable under this Section 9) paid by such person,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Such indemnification shall be paid within ten (10) days from the date on which
any such person makes written demand therefore specifying in reasonable detail
the nature and amount of such Taxes or Other Taxes.
-6-
| 10. |
Costs.
The undersigned shall pay on demand, all costs, fees and expenses
(including, without limitation, expenses for legal services of every
kind)
relating or incidental to the enforcement or protection of the rights
of
Laurus hereunder or under any of the
Obligations.
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| 11. |
No
Termination.
This is a continuing irrevocable guaranty and shall remain in full
force
and effect and be binding upon the undersigned, and each of the
undersigned’s successors and assigns, until all of the Obligations have
been paid in full and Laurus’ obligation to extend credit pursuant to the
Documents has been irrevocably terminated. If any of the present
or future
Obligations are guaranteed by persons, partnerships or corporations
in
addition to the undersigned, the death, release or discharge in whole
or
in part or the bankruptcy, amalgamation, merger, consolidation,
incorporation, liquidation or dissolution of one or more of them
shall not
discharge or affect the liabilities of any undersigned under this
Guaranty.
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| 12. |
Recapture.
Anything in this Guaranty to the contrary notwithstanding, if Xxxxxx
receives any payment or payments on account of the liabilities guaranteed
hereby, which payment or payments or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside
and/or
required to be repaid to a trustee, receiver, interim receiver or
receiver
and manager or any other party under any Insolvency Law, common law
or
equitable doctrine, then to the extent of any sum not finally retained
by
Xxxxxx, the undersigned’s obligations to Xxxxxx shall be reinstated and
this Guaranty shall remain in full force and effect (or be reinstated)
until payment shall have been made to Laurus, which payment shall
be due
on demand.
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| 13. |
Books
and Records.
The books and records of Xxxxxx showing the account between Xxxxxx
and
Debtor shall be admissible in evidence in any action or proceeding,
shall
be binding upon the undersigned for the purpose of establishing the
items
therein set forth and shall constitute prima facie proof
thereof.
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| 14. |
No
Waiver.
No failure on the part of Laurus to exercise, and no delay in exercising,
any right, remedy or power hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise by Xxxxxx of any right,
remedy or
power hereunder preclude any other or future exercise of any other
legal
right, remedy or power. Each and every right, remedy and power hereby
granted to Laurus or allowed it by law or other agreement shall be
cumulative and not exclusive of any other, and may be exercised by
Xxxxxx
at any time and from time to time.
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| 15. |
Waiver
of Jury Trial.
EACH OF THE UNDERSIGNED DOES HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
BASED ON OR WITH RESPECT TO THIS GUARANTY OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR RELATING OR INCIDENTAL HERETO. THE UNDERSIGNED
DOES
HEREBY CERTIFY THAT NO REPRESENTATIVE OR AGENT OF XXXXXX HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT LAURUS WOULD NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.
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-7-
| 16. |
Governing
Law; Jurisdiction; Amendments.
THIS INSTRUMENT CANNOT BE CHANGED OR TERMINATED ORALLY, AND SHALL
BE
GOVERNED, CONSTRUED AND INTERPRETED AS TO VALIDITY, ENFORCEMENT AND
IN ALL
OTHER RESPECTS IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF ONTARIO
AND
THE FEDERAL LAWS OF CANADA. EACH OF THE UNDERSIGNED EXPRESSLY CONSENTS
TO
THE JURISDICTION AND VENUE OF THE SUPREME COURT OF THE STATE OF NEW
YORK,
COUNTY OF NEW YORK, AND OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK FOR ALL PURPOSES IN CONNECTION HEREWITH.
ANY
JUDICIAL PROCEEDING BY THE UNDERSIGNED AGAINST LAURUS INVOLVING,
DIRECTLY
OR INDIRECTLY ANY MATTER OR CLAIM IN ANY WAY ARISING OUT OF, RELATED
TO OR
CONNECTED HEREWITH SHALL BE BROUGHT ONLY IN THE SUPREME COURT OF
THE STATE
OF NEW YORK, COUNTY OF NEW YORK OR THE UNITED STATES DISTRICT COURT
FOR
THE SOUTHERN DISTRICT OF NEW YORK. THE UNDERSIGNED FURTHER CONSENTS
THAT
ANY SUMMONS, SUBPOENA OR OTHER PROCESS OR PAPERS (INCLUDING, WITHOUT
LIMITATION, ANY NOTICE OR MOTION OR OTHER APPLICATION TO EITHER OF
THE
AFOREMENTIONED COURTS OR A JUDGE THEREOF) OR ANY NOTICE IN CONNECTION
WITH
ANY PROCEEDINGS HEREUNDER, MAY BE SERVED INSIDE OR OUTSIDE OF THE
STATE OF
NEW YORK OR THE SOUTHERN DISTRICT OF NEW YORK BY REGISTERED OR CERTIFIED
MAIL, RETURN RECEIPT REQUESTED, OR BY PERSONAL SERVICE PROVIDED A
REASONABLE TIME FOR APPEARANCE IS PERMITTED, OR IN SUCH OTHER MANNER
AS
MAY BE PERMISSIBLE UNDER THE RULES OF SAID COURTS. EACH OF THE UNDERSIGNED
WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED
HEREON AND SHALL NOT ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION
OR
VENUE OR BASED UPON FORUM NON
CONVENIENS.
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| 17. |
Judgment
Currency.
If, for the purpose of obtaining or enforcing judgment against any
Guarantor in any court in any jurisdiction, it becomes necessary
to
convert into any other currency (such other currency being hereinafter
in
this section referred to as the “Judgment
Currency”)
an amount due under this Guaranty in any currency (the “Obligation
Currency”)
other than the Judgment Currency, the conversion shall be made at
the rate
of exchange prevailing on the business day immediately preceding
(a) the date of actual payment of the amount due, in the case of any
proceeding in the courts of New York or in the courts of any other
jurisdiction that will give effect to such conversion being made
on such
date, or (b) the date on which the foreign court determines, in the
case of any proceeding in the courts of any other jurisdiction (the
applicable date as of which such conversion is made pursuant to this
section being hereinafter in this section referred to as the “Judgment
Conversion Date”).
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-8-
If,
in
the case of any proceeding in the court of any jurisdiction referred to in
the
preceding paragraph, there is a change in the rate of exchange prevailing
between the Judgment Conversion Date and the date of actual receipt of the
amount due in immediately available funds, the Guarantor shall pay such
additional amount (if any, but in any event not a lesser amount) as may be
necessary to ensure that the amount actually received in the Judgment Currency,
when converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of the Judgment Currency stipulated in the judgment or judicial
order at the rate of exchange prevailing on the Judgment Conversion Date. Any
amount due from any Guarantor under this section shall be due as a separate
debt
and shall not be affected by judgment being obtained for any other amounts
due
under or in respect of this Guaranty.
| 18. |
Severability.
To the extent permitted by applicable law, any provision of this
Guaranty
which is prohibited or unenforceable in any jurisdiction shall, as
to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof,
and
any such prohibition or unenforceability in any jurisdiction shall
not
invalidate or render unenforceable such provision in any other
jurisdiction.
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| 19. |
Amendments,
Waivers.
No amendment or waiver of any provision of this Guaranty nor consent
to
any departure by the undersigned therefrom shall in any event be
effective
unless the same shall be in writing executed by each of the undersigned
directly affected by such amendment and/or waiver and
Xxxxxx.
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| 20. |
Notice.
All notices, requests and demands to or upon the undersigned, shall
be in
writing and shall be deemed to have been duly given or made (a) when
delivered, if by hand, (b) three (3) days after being sent, postage
prepaid, if by registered or certified mail, (c) when confirmed
electronically, if by facsimile, or (d) when delivered, if by a
recognized overnight delivery service in each event, to the numbers
and/or
address set forth beneath the signature of the
undersigned.
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| 21. |
This
Guaranty may be executed in any number of counterparts which shall,
collectively and separately constitute one agreement. Any signature
delivered by a party by facsimile transmission or by sending a scanned
copy by electronic mail shall be deemed an original signature
hereto.
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| 22. |
Successors.
Laurus may, from time to time, without notice to the undersigned,
sell,
assign, transfer or otherwise dispose of all or any part of the
Obligations and/or rights under this Guaranty. Without limiting the
generality of the foregoing, Laurus may assign, or grant participations
to, one or more banks, financial institutions or other entities all
or any
part of any of the Obligations. In each such event, Laurus, its Affiliates
and each and every immediate and successive purchaser, assignee,
transferee or holder of all or any part of the Obligations shall
have the
right to enforce this Guaranty, by legal action or otherwise, for
its own
benefit as fully as if such purchaser, assignee, transferee or holder
were
herein by name specifically given such right. Laurus shall have an
unimpaired right to enforce this Guaranty for its benefit with respect
to
that portion of the Obligations which Xxxxxx has not disposed of,
sold,
assigned, or otherwise transferred.
|
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| 23. |
It
is understood and agreed that any person or entity that desires to
become
a Guarantor hereunder, or is required to execute a counterpart of
this
Guaranty after the date hereof pursuant to the requirements of any
Document, shall become Guarantor hereunder by (x) executing a joinder
agreement in form and substance satisfactory to Xxxxxx,
(y) delivering supplements to such exhibits and annexes to such
Documents as Laurus shall reasonably request and (z) taking all
actions as specified in this Guaranty as would have been taken by
such
Guarantor had it been an original party to this Guaranty, in each
case
with all documents required above to be delivered to Laurus and with
all
documents and actions required above to be taken to the reasonable
satisfaction of Xxxxxx.
|
| 24. |
Release.
Nothing except cash payment in full of the Obligations shall release
any
of the undersigned from liability under this
Guaranty.
|
| 25. |
Limitation
of Obligations under this Guaranty.
Each Guarantor and Laurus (by its acceptance of the benefits of this
Guaranty) hereby confirms that it is its intention that this Guaranty
not
constitute (i) a fraudulent transfer or conveyance for purposes of
the Bankruptcy
Code,
the Uniform
Fraudulent Conveyance Act
or
any similar federal, provincial or state law; or (ii) a preference or
a preferential transfer for purposes of the BIA or under any other
applicable bankruptcy, insolvency or similar law now or hereafter
in
effect in any bankruptcy, insolvency or similar proceeding with respect
to
Debtor. To effectuate the foregoing intention, each Guarantor which
is
subject to the Bankruptcy
Code,
the Uniform
Fraudulent Conveyance Act
or
any similar US federal or state law and Laurus (by its acceptance
of the
benefits of this Guaranty) hereby irrevocably agrees that the Obligations
guaranteed by such Guarantor shall be limited to such amount as will,
after giving effect to such maximum amount and all other (contingent
or
otherwise) liabilities of such Guarantor that are relevant under
such laws
and after giving effect to any rights to contribution pursuant to
any
agreement providing for an equitable contribution among such Guarantor
and
the other Guarantors (including this Guaranty), result in the Obligations
of such Guarantor under this Guaranty in respect of such maximum
amount
not constituting a fraudulent transfer or conveyance, preference
or
preferential transfer.
|
| 26. |
Understanding
With Respect to Waivers and Consents.
Each Guarantor warrants and agrees that each of the waivers and consents
set forth in this Guaranty is made voluntarily and unconditionally
after
consultation with outside legal counsel and with full knowledge of
its
significance and consequences, with the understanding that events
giving
rise to any defense or right waived may diminish, destroy or otherwise
adversely affect rights which such Guarantor otherwise may have against
the Debtor, Laurus or any other person or entity or against any
collateral. If, notwithstanding the intent of the parties that the
terms
of this Guaranty shall control in any and all circumstances, any
such
waivers or consents are determined to be unenforceable under applicable
law, such waivers and consents shall be effective to the maximum
extent
permitted by law.
|
| 27. |
Remedies
Not Exclusive.
The remedies conferred upon Xxxxxx in this Guaranty are intended
to be in
addition to, and not in limitation of any other remedy or remedies
available to Laurus under applicable law or
otherwise.
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-10-
IN
WITNESS WHEREOF, this Guaranty has been executed by the undersigned this 31st
day of December, 2005.
CREATIVE
VISTAS, INC. (Arizona)
By:
/s/
Xxxxxxx Xxxxx
Name:
Xxxxxxx Xxxxx
Title:
President
Address:
CANCABLE
HOLDING CORP. (Delaware)
By:
/s/
Xxxxx
Xxxxxxxxxx
Name:
Xxxxx
Xxxxxxxxxx
Title:
Chairman and CEO
Address:
CANCABLE,
INC. (Nevada)
By:
/s/
Xxxx
Xxxxxx
Name:
Xxxx Xxxxxx
Title:
President
Address:
CREATIVE
VISTAS ACQUISITION CORP. (Ontario)
By:
/s/
Xxxxx
Xxxxxxxxxx
Name:
Xxxxx
Xxxxxxxxxx
Title:
President and Secretary
Address:
A.C.
TECHNICAL SYSTEMS LTD. (Ontario)
By: /s/
Xxxxxxx Xxxxx
Name:
Xxxxxxx Xxxxx
Title:
President and Secretary
Address:
IVIEW
DIGITAL VIDEO SOLUTIONS INC. (Canada)
By:
/s/
Xxxxx
Xxxxxxxxxx
Name:
Xxxxx
Xxxxxxxxxx
Title:
President
Address:
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