FORM OF GUARANTY
Exhibit
10.57
FORM
OF GUARANTY
1. Identification.
This
Guaranty (the "Guaranty"), dated as of February 13, 2006, is entered into by
The
Solvis Group, Inc., a Nevada corporation, The Solvis Group, Inc., a Michigan
corporation, Sourceone Group, Inc., a Delaware corporation (each
a
“Guarantor”), for the benefit of the parties identified on Schedule A hereto
(each a “Lender” and collectively, the "Lenders").
2. Recitals.
2.1 Guarantor
is a direct or indirect subsidiary of Dalrada Financial Corp., a Delaware
corporation (“Parent”). The Lenders have made, are making and will be making
loans to Parent (the "Loans"). Guarantor will obtain substantial benefit from
the proceeds of the Loans.
2.2 The
Loans
are and will be evidenced by certain convertible promissory notes (each a
“Convertible Note” and collectively, the "Convertible Notes") issued by Parent
on, about or after the date of this Guaranty pursuant to subscription agreements
dated at or about the date hereof (“Subscription Agreements”). The Convertible
Notes are further identified on Schedule A hereto and were and will be executed
by Parent as “Borrower” or “Debtor” for the benefit of each Lender as the
“Holder” or “Lender” thereof.
2.3 In
consideration of the Loans made and to be made by Lenders to Parent and for
other good and valuable consideration, and as security for the performance
by
Parent of its obligations under the Convertible Notes and as security for the
repayment of the Loans and all other sums due from Debtor to Lenders arising
under the Convertible Notes, Subscription Agreements and any other agreement
between or among them relating to the foregoing (collectively, the
"Obligations"), Guarantor, for good and valuable consideration, receipt of
which
is acknowledged, has agreed to enter into this Guaranty. Obligations include
all
future advances by Lenders to Parent made by Lenders pursuant to the
Subscription Agreement.
2.4 The
Lenders have appointed Xxxxxxx X. Xxxxxxx as Collateral Agent pursuant to that
certain Collateral Agent Agreement dated at or about February 9, 2006
(“Collateral Agent Agreement”), among the Lenders and Collateral
Agent.
3. Guaranty.
3.1 Guaranty.
Guarantor hereby unconditionally and irrevocably guarantees, jointly and
severally with any other Guarantor, the punctual payment, performance and
observance when due, whether at stated maturity, by acceleration or otherwise,
of all of the Obligations now or hereafter existing, whether for principal,
interest (including, without limitation, all interest that accrues after the
commencement of any insolvency, bankruptcy or reorganization of Parent, whether
or not constituting an allowed claim in such proceeding), fees, commissions,
expense reimbursements, liquidated damages, indemnifications or otherwise (such
obligations, to the extent not paid by Parent being the “Guaranteed
Obligations”), and agrees to pay any and all costs, fees and expenses (including
reasonable counsel fees and expenses) incurred by Collateral Agent and the
Lenders in enforcing any rights under the guaranty set forth herein. Without
limiting the generality of the foregoing, Guarantor’s liability shall extend to
all amounts that constitute part of the Guaranteed Obligations and would be
owed
by Parent to Collateral Agent and the Lenders, but for the fact that they are
unenforceable or not allowable due to the existence of an insolvency, bankruptcy
or reorganization involving Parent.
1
3.2 Guaranty
Absolute.
Guarantor guarantees that the Guaranteed Obligations will be paid strictly
in
accordance with the terms of the Convertible Notes, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting
any
of such terms or the rights of Collateral Agent or the Lenders with respect
thereto. The obligations of Guarantor under this Guaranty are independent of
the
Guaranteed Obligations, and a separate action or actions may be brought and
prosecuted against Guarantor to enforce such obligations, irrespective of
whether any action is brought against Parent or any other Guarantor or whether
Parent or any other Guarantor is joined in any such action or actions. The
liability of Guarantor under this Guaranty constitutes a primary obligation,
and
not a contract of surety, and to the extent permitted by law, shall be
irrevocable, absolute and unconditional irrespective of, and Guarantor hereby
irrevocably waives any defenses it may now or hereafter have in any way relating
to, any or all of the following:
(a)
any
lack
of validity or enforceability of the Convertible Notes or any agreement or
instrument relating thereto;
(b)
any
change in the time, manner or place of payment of, or in any other term of,
all
or any of the Guaranteed Obligations, or any other amendment or waiver of or
any
consent to departure from the Convertible Notes, including, without limitation,
any increase in the Guaranteed Obligations resulting from the extension of
additional credit to Parent or otherwise;
(c)
any
taking, exchange, release, subordination or non-perfection of any Collateral,
or
any taking, release or amendment or waiver of or consent to departure from
any
other guaranty, for all or any of the Guaranteed Obligations;
(d)
any
change, restructuring or termination of the corporate, limited liability company
or partnership structure or existence of Parent; or
(e)
any
other
circumstance (including, without limitation, any statute of limitations) or
any
existence of or reliance on any representation by Collateral Agent or the
Lenders that might otherwise constitute a defense available to, or a discharge
of, Parent or any other guarantor or surety.
This
Guaranty shall continue to be effective or be reinstated, as the case may be,
if
at any time any payment of any of the Guaranteed Obligations is rescinded or
must otherwise be returned by Collateral Agent, the Lenders or any other entity
upon the insolvency, bankruptcy or reorganization of the Parent or otherwise
(and whether as a result of any demand, settlement, litigation or otherwise),
all as though such payment had not been made.
3.3 Waiver.
Guarantor hereby waives promptness, diligence, notice of acceptance and any
other notice with respect to any of the Guaranteed Obligations and this Guaranty
and any requirement that Collateral Agent or the Lenders or exhaust any right
or
take any action against any Borrower or any other person or entity or any
Collateral. Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated herein and that the waiver
set forth in this Section 3.3
is
knowingly made in contemplation of such benefits. Guarantor hereby waives any
right to revoke this Guaranty, and acknowledges that this Guaranty is continuing
in nature and applies to all Guaranteed Obligations, whether existing now or
in
the future.
3.4
Continuing
Guaranty; Assignments.
This
Guaranty is a continuing guaranty and shall (a) remain in full force and effect
until the later of the indefeasible cash payment in full of the Guaranteed
Obligations and all other amounts payable under this Guaranty, the Subscription
Agreements and Convertible Notes, (b) be binding upon Guarantor, its successors
and assigns and (c) inure to the benefit of and be enforceable by the Lenders
and their successors, pledgees, transferees and assigns. Without limiting the
generality of the foregoing clause (c), any Lender may pledge, assign or
otherwise transfer all or any portion of its rights and obligations under this
Guaranty (including, without limitation, all or any portion of its Convertible
Notes owing to it) to any other Person, and such other Person shall thereupon
become vested with all the benefits in respect thereof granted such Collateral
Agent or Lender herein or otherwise.
2
3.5
Subrogation.
No
Guarantor will exercise any rights that it may now or hereafter acquire against
the Collateral Agent or any Lender or other Guarantor (if any) that arise from
the existence, payment, performance or enforcement of such Guarantor’s
obligations under this Guaranty, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution or indemnification,
whether or not such claim, remedy or right arises in equity or under contract,
statute or common law, including, without limitation, the right to take or
receive from the Collateral Agent or any Lender or other Guarantor (if any),
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security solely on account of such claim, remedy or right,
unless and until all of the Guaranteed Obligations and all other amounts payable
under this Guaranty shall have been indefeasibly paid in full in cash.
3.6
Maximum
Obligations.
Notwithstanding any provision herein contained to the contrary, Guarantor’s
liability with respect to the Obligations shall be limited to an amount not
to
exceed, as of any date of determination, the amount that could be claimed by
Lenders from Guarantor without rendering such claim voidable or avoidable under
Section 548 of the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute
or
common law.
4. Miscellaneous.
4.1 Expenses.
Guarantor shall pay to the Lenders, on demand, the amount of any and all
reasonable expenses, including, without limitation, attorneys' fees, legal
expenses and brokers' fees, which the Lenders may incur in connection with
exercise or enforcement of any the rights, remedies or powers of the Lenders
hereunder or with respect to any or all of the Obligations.
4.2 Waivers,
Amendment and Remedies.
No
course of dealing by the Lenders and no failure by the Lenders to exercise,
or
delay by the Lender in exercising, any right, remedy or power hereunder shall
operate as a waiver thereof, and no single or partial exercise thereof shall
preclude any other or further exercise thereof or the exercise of any other
right, remedy or power of the Lenders. No amendment, modification or waiver
of
any provision of this Guaranty and no consent to any departure by Guarantor
therefrom, shall, in any event, be effective unless contained in a writing
signed by the Majority in Interest (as such term is defined in the Collateral
Agent Agreement) or the Lender or Lenders against whom such amendment,
modification or waiver is sought, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. The rights, remedies and powers of the Lenders, not only hereunder,
but
also under any instruments and agreements evidencing or securing the Obligations
and under applicable law are cumulative, and may be exercised by the Lenders
from time to time in such order as the Lenders may elect.
4.3 Notices.
All
notices or other communications given or made hereunder shall be in writing
and
shall be personally delivered or deemed delivered the first business day after
being faxed (provided that a copy is delivered by first class mail) to the
party
to receive the same at its address set forth below or to such other address
as
either party shall hereafter give to the other by notice duly made under this
Section:
To
Parent
and
Guarantor,
to: Dalrada
Financial Corp.
0000
Xxxxxx Xxxxxx, Xxxxx 000
Xxx
Xxxxx, XX 00000
Attn:
Xxxxx Xxxxx, CEO
Fax:
(000)
000-0000
3
With
a
copy by telecopier only to:
Xxxx
X.
Xxxxxxxxx, Esq.
Xxxxxxxxx
& Associates
00000
Xxx
Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx,
XX 00000
Fax:
(000) 000-0000
To
Lenders: To
the
addresses and telecopier numbers set
forth
on
Schedule A
To
the
Collateral Agent: Xxxxxxx
X. Xxxxxxx, Esq.
Grushko
& Xxxxxxx, P.C.
000
Xxxxx
Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
XX 00000
Fax:
(000) 000-0000
With
a
copy to: Grushko
& Xxxxxxx, P.C.
000
Xxxxx
Xxxxxx, Xxxxx 0000
Xxx
Xxxx,
Xxx Xxxx 00000
Fax:
(000) 000-0000
Any
party
may change its address by written notice in accordance with this
paragraph.
4.4 Term;
Binding Effect.
This
Guaranty shall (a) remain in full force and effect until payment and
satisfaction in full of all of the Obligations; (b) be binding upon Guarantor
and its successors and permitted assigns; and (c) inure to the benefit of the
Lenders and their respective successors and assigns. All
the
rights and benefits granted by Guarantor to the Collateral Agent and Lenders
hereunder and other agreements and documents delivered in connection therewith
are deemed granted to both the Collateral Agent and Lenders. Upon the payment
in
full of the Obligations, (i) this Guaranty shall terminate and (ii) the Lenders
will, upon Guarantor's request and at Guarantor's expense, execute and deliver
to Guarantor such documents as Guarantor shall reasonably request to evidence
such termination, all without any representation, warranty or recourse
whatsoever.
4.5 Captions.
The
captions of Paragraphs, Articles and Sections in this Guaranty have been
included for convenience of reference only, and shall not define or limit the
provisions hereof and have no legal or other significance
whatsoever.
4.6 Governing
Law; Venue; Severability.
This
Guaranty shall be governed by and construed in accordance with the laws of
the
State of New York without regard to principles of conflicts or choice of law.
Any legal action or proceeding against Guarantor with respect to this Guaranty
may be brought in the courts of the State of New York or of the United States
for the Southern District of New York, and, by execution and delivery of this
Guaranty, Guarantor hereby irrevocably accepts for itself and in respect of
its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Guarantor hereby irrevocably waives any objection which they may now
or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Guaranty brought in the
aforesaid courts and hereby further irrevocably waives and agrees not to plead
or claim in any such court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum. If any provision of this
Guaranty, or the application thereof to any person or circumstance, is held
invalid, such invalidity shall not affect any other provisions which can be
given effect without the invalid provision or application, and to this end
the
provisions hereof shall be severable and the remaining, valid provisions shall
remain of full force and effect.
4
4.7 Satisfaction
of Obligations.
For all
purposes of this Guaranty, the payment in full of the Obligations shall be
conclusively deemed to have occurred when either the Obligations have been
indefeasibly paid in cash or all outstanding Convertible Notes have been
converted to common stock pursuant to the terms of the Convertible Notes and
the
Subscription Agreements.
4.8 Counterparts/Execution.
This
Agreement may be executed in any number of counterparts and by the different
signatories hereto on separate counterparts, each of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute but
one
and the same instrument. This Agreement may be executed by facsimile signature
and delivered by facsimile transmission.
5
(Guaranty
Agreement)
IN
WITNESS WHEREOF, the
undersigned have executed and delivered this Guaranty, as of the date first
written above.
“GUARANTOR” “GUARANTOR”
THE
SOLVIS GROUP, INC. THE
SOLVIS GROUP, INC.
a
Nevada
corporation a
Michigan corporation
/s/
Xxxxx
Xxxxx /s/
Xxxxx
Xxxxx
By:
_____________________________________ By:______________________________________
Its:
_____________________________________ Its:
______________________________________
“GUARANTOR”
SOURCEONE
GROUP, INC.
a
Delaware corporation
/s/
Xxxxx
Xxxxx
By:
_____________________________________
Its:
_____________________________________
APPROVED
BY “LENDERS”:
/s/
P.
Benz /s/
P.
Benz
______________________________________ ______________________________________
LONGVIEW
FUND, L.P. LONGVIEW
EQUITY FUND, L.P.
/s/
P.
Benz /s/
X.
Xxxxxxxx
______________________________________ _______________________________________
LONGVIEW
INTERNATIONAL EQUITY ALPHA
CAPITAL AKTIENGESELLSCHAFT
FUND,
L.P.
/s/
F.
Morax X.
Xxxxxxx
______________________________________ _______________________________________
BALMORE,
S.A. XXXXXX
XXXXXXX
This
Guaranty Agreement may be signed by facsimile signature
and
delivered
by confirmed facsimile transmission.
6
(Guaranty
Agreement)
SCHEDULE
A TO GUARANTY
LENDER
|
PURCHASE
PRICE
|
CASH
PORTION OF PURCHASE PRICE
|
WARRANTS
|
LONGVIEW
FUND, LP
000
Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxxxxxxx, XX 00000
Fax:
(000) 000-0000
|
$3,871,707.00
|
$2,884,800.00
|
693,768,501
|
LONGVIEW
EQUITY FUND, LP
000
Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxxxxxxx, XX 00000
Fax:
(000) 000-0000
|
$1,005,000.00
|
$1,005,000.00
|
180,085,255
|
LONGVIEW
INTERNATIONAL EQUITY FUND, LP
000
Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxxxxxxx, XX 00000
Fax:
(000) 000-0000
|
$495,000.00
|
$495,000.00
|
88,698,708
|
ALPHA
CAPITAL AKTIENGESELLSCHAFT
Xxxxxxxxx
0
0000
Xxxxxxxxxxx
Xxxxx,
Xxxxxxxxxxxx
Fax:
000-00-00000000
|
$492,426.00
|
-0-
|
88,237,475
|
BALMORE,
S.A.
X.X.
Xxx 000, Xxxx Xxxx
Xxxxxxx,
BVI
Fax:
|
$1,380,960.00
|
-0-
|
247,453,268
|
XXXXXX
XXXXXXX
x/x
X. Xxxxxx Associates Inc.
000
Xxxx 00xx
Xxxxxx
Xxx
Xxxx, XX 00000
Fax:
(000) 000-0000
|
$300,000.00
|
-0-
|
53,756,793
|
TOTAL
|
$7,545,093.00
|
1,352,000,000
|
7