EXHIBIT 10.49
SUBORDINATED GUARANTY
This Guaranty ("Guaranty") is made this _____ day of January, 2005,
BY GUPTA TECHNOLOGIES, LLC, a Delaware limited
liability company, having its principle offices at
000 Xxxxxx Xxxxx, Xxxxxxx Xxxxxx, Xxxxxxxxxx, 00000
("Guarantor");
OF THE
OBLIGATIONS OF WARP TECHNOLOGIES HOLDINGS, INC, a Nevada
corporation ("Borrower")
IN FAVOR OF The Noteholders (as defined below) and
CRESTVIEW CAPITAL MASTER, LLC, a Delaware limited
liability company ("Collateral Agent"), as
collateral agent for the Noteholders pursuant to
the Collateral Agency Agreement (as defined below),
et al..
WITNESSETH:
WHEREAS, contemporaneously with the execution and delivery of this
Guaranty, pursuant to a Subordinated Note and Warrant Purchase Agreement dated
as of the date hereof (as amended, modified, restated or otherwise supplemented
from time to time, the "Purchase Agreement") Borrower is issuing certain
Subordinated Secured Promissory Notes ("Notes") to the Purchasers identified in
the Purchase Agreement;
WHEREAS, it is a condition precedent to the purchasing of the Notes
that Guarantor shall have executed a guaranty for the benefit of those
Purchasers and their successors, heirs and assigns (collectively "Noteholders");
and
WHEREAS, simultaneously with the issuance of the Notes, Borrower is
issuing certain other notes ("Other Notes") that have payment terms and
collateral that are senior to the Notes; and
WHEREAS, simultaneously with the issuance of the Notes, Borrower is
issuing a guaranty ("Senior Guaranty") of the Other Notes; and
WHEREAS, it is also a condition precedent to the purchase of the
Notes that the Guarantor, the Noteholders, the Collateral Agent and the holders
of the Other Notes enter into an Intercreditor and Subordination Agreement (the
"Intercreditor Agreement") that, among other things, confirms that this Guaranty
is subordinated to the Senior Guaranty.
WHEREAS, it is also a condition precedent to the purchase of the
Notes that the Noteholders and the Collateral Agent enter into a Collateral
Agency Agreement (the "Collateral Agency Agreement") of this same date pursuant
to which the Noteholders and the holders of the Other Notes appoint Collateral
Agent as their agent with respect to the collateral for, and certain of their
rights and remedies relating to, the Notes, the Other Notes, this Guaranty and
other Transaction Documents (including this Guaranty); and
For good and valuable consideration, receipt of which is hereby acknowledged,
and to induce Noteholders to make certain financial accommodations to Borrower,
Guarantor hereby agrees to the following:
SECTION 1 - DEFINITIONS
1.1 Defined Terms. In addition to those terms defined above and
elsewhere in this Guaranty, the following capitalized terms in this Guaranty
shall have the following meanings:
"Event of Default" is defined in Section 6 of this Guaranty.
"Obligations" means all existing and future indebtedness,
obligations, liabilities and duties of all kinds including principal, interest
and collection expenses owing from Borrower to Noteholders or the Collateral
Agent, whether direct or indirect, contingent or non-contingent, liquidated or
unliquidated, matured or unmatured, or due or to become due, including those
arising under any Notes or any other Transaction Documents.
"Obligor" means Borrower, Guarantor and any other existing guarantor
as to any Obligations.
"Transaction Documents" means the Purchase Agreement, the Notes, the
Collateral Agency Agreement, the Intercreditor Agreement, this Guaranty and all
other Transaction Documents (as defined in the Purchase Agreement).
1.2 Interpretations. Unless otherwise specified, the following rules
of construction shall apply to this Guaranty:
(a) The term "any" means "any", "one or more"; "or" means "and/or";
and "either" means "either/or";
(b) The term "including" shall be construed as if followed by the
phrase "without limitation";
(c) Singular words include the plural and plural words include the
singular;
(d) Words suggesting any gender include the other gender;
(e) Reference to an agreement, note or other document of any kind
includes reference to its permitted supplements, amendments,
restatements and other modifications;
(f) Titles, headings and subheadings are for organizational purposes
only and neither add, nor limit, the meaning of any provision, and
(g) Reference to an individual, corporation, partnership, limited
liability company or other entity includes reference to any
successors or heirs and permitted assigns.
SECTION 2 - GUARANTY CLAUSE
Guarantor hereby unconditionally guarantees full and prompt payment
when due (and not just the collectibility) and the full, prompt and
unconditional performance, of each and
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every term and condition of all Obligations. This Guaranty is a primary
obligation of Guarantor and shall continue without limitation of amount or
duration until all Obligations have been paid in full. The absolute,
unconditional and continuing nature of this Guaranty shall be construed without
regard to the invalidity or unenforceability of any of the Transaction Documents
or any of the Obligations or the collateral for any obligation therefor or the
dissolution, or revocation of the charter of Guarantor. This Guaranty shall
continue to be effective or shall be deemed reinstated, as the case may be, if
at any time any payment of the Obligations is rescinded or must otherwise be
returned by Noteholders or Collateral Agent upon the insolvency, bankruptcy or
reorganization of Borrower or otherwise, as though such payment had not been
made. Without limiting the generality, scope or effect of the foregoing,
Guarantor expressly acknowledges and agrees that this Guaranty includes the
payment of interest, both before and after maturity and whether by acceleration
or otherwise, until all principal is paid in full. This Guaranty may not be
terminated except by a writing executed by Collateral Agent after all
Obligations have been indefeasibly paid in full.
SECTION 3 - NOTEHOLDERS' AND COLLATERAL AGENT'S RIGHTS
Without incurring responsibility to Guarantor and without impairing
or releasing this Guaranty, Noteholders or Collateral Agent may, from time to
time, without the consent of, or notice to, Guarantor, do any of the following:
(i) change the terms of any Obligation including the principal
amount, interest rate or the manner, place, time or terms of payment of any
Obligation;
(ii) extend, renew, recast, redocument or postpone any Obligation;
(iii) sell, release, or realize upon or otherwise deal with, in any
manner and in any order, any collateral for any Obligations;
(iv) exercise or refrain from exercising any rights or remedies
against Guarantor or any other Obligor or any collateral for any obligation;
(v) modify or terminate the terms of any intercreditor or
subordination agreement pursuant to which claims of other creditors of any
Obligor are subordinated to the claims of Noteholders;
(v) settle or compromise any Obligations; or
(vi) apply any proceeds of any collateral for any obligation
received from any Obligor to reduce any Obligations in any order.
SECTION 4 - WAIVER; RELEASE
Guarantor waives and releases every claim or defense relating to,
and this Guaranty shall be unaffected by:
(i) any Noteholder's or Collateral Agent's delay or
forbearance from exercising any right or remedy, including any delay or
forbearance from the liquidation of any collateral for any obligation;
(ii) the genuineness, validity, regularity, enforceability or
any future amendment of, or change in this Guaranty, any other Transaction
Document or any other agreement, document or instrument to which any
Obligors are or may become a party;
(iii) the existence, value or condition of, or failure to
perfect any lien against any collateral for the Obligations or any action,
or the absence of any action, by
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any Noteholders or Collateral Agent in respect thereof (including, without
limitation, the release of any such collateral)
(iii) notice of default, nonpayment, payment, presentment,
demand, protest or dishonor relating to this Guaranty or any other
Obligations;
(iv) any other action or circumstances which might otherwise
constitute a legal or equitable discharge or defense of a surety or
guarantor; or
(v) every claim or defense based on any representations made
by Noteholders as to any Obligor's financial condition or affairs or any
purported duty of any Noteholders to make any future disclosure to
Guarantor of any Obligor's financial condition and affairs.
SECTION 5 - SECURITY
The timely payment and performance of this Guaranty is secured pursuant to
various Transaction Documents including the Subordinated Security Agreement of
this date from Guarantor in favor of Collateral Agent for the benefit of the
Noteholders.
SECTION 6 - EVENTS OF DEFAULT
Any of the following events or conditions shall, at the option of
Noteholders, constitute an Event of Default under this Guaranty and the other
Transaction Documents:
6.1 Any failure to perform or observe when due any term or condition
in this Guaranty; or
6.2 Any other default under the Note, any other Transaction Document
or any other Obligation; or
6.3 The dissolution of Guarantor or Guarantor fails to remain in
good standing in its state of incorporation; or
6.4 Guarantor, or anyone on behalf of Guarantor, delivers to
Noteholders a notice of termination with respect to any liabilities under this
Guaranty or otherwise asserts that Guarantor is not liable for the payment of
all Obligations when due.
6.5 Guarantor shall have applied for or consented to the appointment
of a custodian, receiver, trustee or liquidator, or other court-appointed
fiduciary of all or a substantial part of its properties; or a custodian,
receiver, trustee or liquidator or other court appointed fiduciary shall have
been appointed with or without the consent of Guarantor; or Guarantor is
generally not paying its debts as they become due by means of available assets,
or has made a general assignment for the benefit of creditors; or Guarantor
files a voluntary petition in bankruptcy, or a petition or an answer seeking
reorganization or an arrangement with creditors or seeking to take advantage of
any insolvency law, or an answer admitting the material allegations of a
petition in any bankruptcy, reorganization or insolvency proceeding or has taken
action for the purpose of effecting any of the foregoing; or if, within sixty
(60) days after the commencement of any proceeding against Guarantor seeking any
reorganization, rehabilitation, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under the Federal bankruptcy code or
similar order under future similar legislation, the appointment of any trustee,
receiver, custodian, liquidator, or other court-appointed fiduciary of Guarantor
or of all or any substantial part of its properties, such order or appointment
shall not have been vacated or
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stayed on appeal or otherwise or if, within sixty (60) days after the expiration
of any such stay, such order or appointment shall not have been vacated.
SECTION 7 - REMEDIES
Upon the occurrence of an Event of Default, Collateral Agent may, on
behalf of the Noteholders as provided in the Agency Collection Agreement, but
subject to the terms and conditions of the Intercreditor Agreement, and without
notice to Guarantor, do any of the following in any order, at any time and in
any combination:
7.1 Declare any Obligations to be immediately due and payable as to
any Guarantor.
7.2 Institute a collection action directly against Guarantor or any
other Obligor.
7.3 Exercise any right or remedy available under the Note or any
other Transaction Document including, without limitation, the collection of
post-default interest at the highest rate in effect under any Obligation.
7.4 Execute on any collateral for any Obligation.
7.5 Hold, apply, freeze or set-off on account of this Guaranty and
any other Obligation, funds of Guarantor on deposit with any Noteholders in any
account, fund or certificate, any indebtedness that any Noteholders may owe to
Guarantor or any other tangible or intangible property owned by Guarantor that
may be in the possession or under the control of any Noteholders or Collateral
Agent.
7.6 Collect from Guarantor all Collateral Agent's reasonable
collection expenses (whether or not suit is actually instituted) including
reasonable attorneys fees and disbursements and all other expenses and fees
relating to collection that are permitted under the Transaction Documents. All
those collection fees and expenses shall be due and payable upon demand, shall
bear interest at the highest default rate in effect under any obligations and
shall become Obligations that are secured by, all security for any Obligations
including all collateral for any obligation.
7.7 Exercise any other rights and remedies available under this
Guaranty or any other document or agreement of any kind or at law or in equity.
SECTION 8 - SETTLEMENT; RELEASE
The settlement or release of any claims by Collateral Agent or
Noteholders in favor of any other Obligor shall not reduce the amount due from
Guarantor under the terms of this Guaranty. In addition, if a claim is made upon
any Noteholders or Collateral Agent for repayment or recovery of any funds or
property received by any Noteholders or Collateral Agent in payment, or on
account of, any Obligation for any reason including any claim that such funds or
property constituted a preferential or fraudulent transfer, and any Noteholders
or Collateral Agent repays or returns all or part of those funds or that
property by reason of any court order or settlement of any such claim, then
Guarantor agrees that any such order or settlement shall be binding upon him,
notwithstanding any revocation, cancellation, release or apparent satisfaction
of any Obligation or this Guaranty, and Guarantor shall be and remain liable to
any Noteholders or Collateral Agent for the funds or property returned as if the
funds or property had never been received by Noteholders.
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SECTION 9 - SUBROGATION
Guarantor hereby irrevocably waives all rights that Guarantor may
have at law or in equity (including any law subrogating the rights of Guarantor
to the rights of any other person to allege, assert as a defense or seek
contribution, indemnification or any other form of reimbursement from Borrower,
or any other person now or hereafter primarily or secondarily liable for any
Obligation, for any disbursement made by Guarantor under or in connection with
this Guaranty or any other Transaction Document or otherwise.
SECTION 10 - SUBORDINATION
Guarantor hereby agrees that all indebtedness owing from Borrower to
Guarantor, whether now existing or in the future created, shall be subordinate
and inferior in priority to the Obligations and agrees further that, no such
indebtedness owing from Borrower to Guarantor shall be paid so long as an Event
of Default has occurred and is continuing, and no security therefore received,
until all Obligations have been paid in full. Any instrument evidencing any such
indebtedness shall be delivered to, and held by, Noteholders and shall not be
transferred or pledged to anyone other than Noteholders. Any payment, security
or other property received by Guarantor in violation of this provision, shall be
held in trust for the benefit of Noteholders and shall be delivered immediately
upon receipt by Guarantor to Noteholders to reduce the Obligations.
SECTION 11 - ACCESS TO TRANSACTION DOCUMENTS; NO RELIANCE
Guarantor hereby expressly represents and acknowledges that
Guarantor has been given ample opportunity to examine and consult with counsel,
and has have examined and consulted with counsel concerning all Transaction
Documents and that Guarantor has carefully examined the terms and conditions of
all Transaction Documents. Guarantor acknowledges receipt of a true copy of each
of the Transaction Documents including this Guaranty. Guarantor also
acknowledges that Guarantor is not relying on any representations of, or
information provided by, or to be provided by, any Noteholders or Collateral
Agent as to any Obligor's financial affairs.
SECTION 12 - FURTHER ASSURANCES
Guarantor shall, within five days of Collateral Agent's request,
execute any documents, provide any lien or other searches and do anything that
Noteholders determines to be reasonably necessary to confirm, establish,
perfect, assure or maintain the existence and priority of, this Guaranty and
Noteholders's liens against any collateral for any Obligations, the reasonable
cost of so doing to be paid by Guarantor.
SECTION 13 - NOTICES
All notices, demands, requests, consents and other communications
shall be in writing and served by hand delivery, by certified mail with return
receipt requested, or by a recognized overnight delivery service, to the
addresses for the other parties set forth on the
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caption of this Guaranty or in the Purchase Agreement or Collateral Agency
Agreement, as the case may be, unless proper written notice has been given to
all of the parties of any change in address. Notices and other written
communications shall be deemed to have been properly served upon delivery to the
designated address; provided, however, that any notice or other communication
properly sent by certified mail, return receipt requested, shall be deemed to
have been properly served on the third business day after mailing, regardless of
when or whether it is actually received.
SECTION 14 - PARTIAL INVALIDITY
If any term or provision of this Guaranty is at any time held to be
invalid by any court of competent jurisdiction, that invalidity shall not affect
the remaining terms and provisions of this Guaranty, which shall continue to be
in full force and effect.
SECTION 15 - NEW YORK LAW AND JURISDICTION
This Guaranty shall be governed by, and construed in accordance
with, the internal laws of the State of New York without regard to the choice of
law principles thereof. Each of the parties hereto irrevocably submits to the
exclusive jurisdiction of the courts of the State of New York located in New
York County and the United States District Court for the Southern District of
New York for the purpose of any suit, action, proceeding or judgment relating to
or arising out of this Guaranty and the transactions contemplated hereby.
Service of process in connection with any such suit, action or proceeding may be
served on each party hereto anywhere in the world by the same methods as are
specified for the giving of notices under this Agreement. Each of the parties
hereto irrevocably consents to the jurisdiction of any such court in any such
suit, action or proceeding and to the laying of venue in such court. Each party
hereto irrevocably waives any objection to the laying of venue of any such suit,
action or proceeding brought in such courts and irrevocably waives any claim
that any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum.
SECTION 16 - NO JURY TRIAL
GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY
RIGHT TO REQUEST A TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS GUARANTY, ANY OTHER TRANSACTION DOCUMENT OR ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OF
NOTEHOLDERS, COLLATERAL AGENT OR ANY OBLIGOR. GUARANTOR REPRESENTS THAT
GUARANTOR HAS CONSULTED WITH COUNSEL SPECIFICALLY AS TO THIS WAIVER. BY
ACCEPTING THIS GUARANTY, NOTEHOLDERS ALSO WAIVES ITS RIGHT TO REQUEST A TRIAL BY
JURY.
SECTION 18 - BIND AND INURE
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This Guaranty shall be binding upon Guarantor and his heirs and
assigns and shall inure to the benefit of Noteholders and Collateral Agent and
their respective successors and assigns.
SECTION 19 - SUBORDINATED GUARANTY
NOTWITHSTANDING ANY PROVISION IN THIS GUARANTY THAT MAY BE
INTERPRETED TO THE CONTRARY, THE RIGHTS AND REMEDIES OF COLLATERAL AGENT UNDER
THIS GUARANTY ARE SUBJECT TO THE INTERCREDITOR AGREEMENT AND ARE, WITHOUT
LIMITATION, SUBORDINATE TO THE RIGHTS AND REMEDIES OF THE COLLATERAL AGENT UNDER
THE SENIOR GUARANTY.
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Guarantor has executed this Guaranty as of the date first written above.
GUPTA TECHNOLOGIES, LLC
----------------------------
Name:
Title:
[Signature Page To Subordinated Guaranty]
