SUBSIDIARY GUARANTY
Exhibit
10.4
SUBSIDIARY
GUARANTY
FOR
VALUE
RECEIVED, and in consideration of note purchases from, or credit otherwise
extended or to be extended by Laurus Master Fund, Ltd. (“Laurus”) to or for the
account of Impart Media Group, Inc., a Nevada corporation (the “Parent”) and
Impart, Inc., a Washington corporation (“Impart” and together with the Parent,
the “Companies” and each, a “Company”) 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 or make other 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”)
unconditionally guaranties 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 each Company
to
Laurus and of all instruments of any nature evidencing or relating to any such
obligations and liabilities upon which such Company or one or more parties
and
such Company is or may become liable to Laurus, whether incurred by such Company
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 Security
Agreement dated as of the date hereof by and among the Parent, the other
Companies named therein and Laurus (the “Security Agreement”) and (ii) each
Ancillary Agreement referred to in the Security Agreement] (the Security
Agreement and each Ancillary Agreement, as each may be amended, modified,
restated and/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 obligations or
liabilities of such Company 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 any Company under Title 11, United States Code, including, without
limitation, obligations or indebtedness of any Company 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 Security 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 any Company 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
any
Company 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, or
any
other federal 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 Guaranty shall be effective regardless of the subsequent
incorporation, merger or consolidation of any Company, or any change in the
composition, nature, personnel or location of any Company and shall extend
to
any successor entity to each Company, including a debtor in possession or the
like under any Insolvency Law.
2. Guaranty
Absolute.
Subject
to Section 5(c) hereof, 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 any Company 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 a Company will contract additional
obligations and liabilities for which Guarantors may be liable hereunder after
such Company’s financial condition or ability to pay its lawful debts when they
fall due has deteriorated, whether or not such Company has properly authorized
incurring such additional obligations and liabilities. The undersigned
acknowledge that (i) no oral representations, including any representations
to
extend credit or provide other financial accommodations to any Company, have
been made by Laurus to induce the undersigned to enter into this Guaranty and
(ii) any extension of credit to any Company 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 any Company, or any action taken with respect
to this Guaranty by any trustee or receiver, 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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3.
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Waivers.
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(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 any Company or any other person or entity 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. 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. Each
of 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,
any
Company and/or the undersigned with respect to the undersigned’s obligations
under this Guaranty, or which any Company 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 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 any Company’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 Laurus against any Company
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 or reimbursement from any Company in respect of payments
made by the undersigned hereunder, until all amounts owing to Laurus by each
Company on account of the Obligations are indefeasibly paid in full and Laurus’
obligation to extend credit pursuant to the Documents has been irrevocably
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 obligations and liabilities of
each Company to any of the undersigned are hereby waived and postponed in favor
of, and subordinated to the full payment and performance of, all Obligations
of
each Company to Laurus.
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4. 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 and liabilities 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.
5. Representations
and Warranties.
Each of
the undersigned 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:
(a) Corporate
Status.
It is a
corporation, partnership or limited liability company, as the case may be,
duly
formed, validly existing and in good standing under the laws of its jurisdiction
of formation 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.
(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
which 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
in favor of Xxxxxx 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.
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(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.
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 Companies to Laurus.
(h) Solvency.
As of
the date of this Guaranty, (a) the fair saleable value of its assets exceeds
its
liabilities and (b) it is meeting its current liabilities as they
mature.
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6.
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Acceleration.
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(a) If
any
breach of any covenant or condition or other event of default shall occur and
be
continuing under any agreement made by any Company or any of the undersigned
to
Laurus, or either any Company 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 any department, agency, or instrumentality thereof, 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 the Companies.
(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.
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7. 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.
8. Costs.
The
undersigned shall pay on demand, all costs, fees and expenses (including
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.
9. 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 indefeasibly 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
guarantied by persons, partnerships, corporations or other entities in addition
to the undersigned, the death, release or discharge in whole or in part or
the
bankruptcy, 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.
10. 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, 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.
11. Books
and Records.
The
books and records of Xxxxxx showing the account between Laurus and each Company
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.
12. 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.
13. Waiver
of Jury Trial.
EACH OF
THE UNDERSIGNED DESIRES THAT ITS DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH
APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS
OF
THE JUDICIAL SYSTEM AND OF ARBITRATION, EACH OF THE UNDERSIGNED HERETO WAIVES
ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO
RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE BETWEEN
LAURUS, AND/OR ANY OF THE UNDERSIGNED ARISING OUT OF, CONNECTED WITH, RELATED
OR
INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH
THIS
GUARANTY, ANY DOCUMENT OR THE TRANSACTIONS RELATED HERETO OR
THERETO.
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14. Governing
Law; Jurisdiction.
THIS
GUARANTY CANNOT BE CHANGED OR TERMINATED ORALLY, AND SHALL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS. EACH OF THE UNDERSIGNED HEREBY CONSENTS AND
AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK,
STATE
OF NEW YORK SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS
OR DISPUTES BETWEEN ANY OF THE UNDERSIGNED, ON THE ONE HAND, AND LAURUS, ON
THE
OTHER HAND, PERTAINING TO THIS GUARANTY OR ANY OF THE DOCUMENTS OR TO ANY MATTER
ARISING OUT OF OR RELATED TO THIS GUARANTY OR ANY OF THE DOCUMENTS; PROVIDED,
THAT
EACH OF THE UNDERSIGNED ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY
HAVE
TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE COUNTY OF NEW YORK, STATE OF
NEW
YORK; AND FURTHER PROVIDED,
THAT
NOTHING IN THIS GUARANTY SHALL BE DEEMED OR OPERATE TO PRECLUDE LAURUS FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO COLLECT
THE OBLIGATIONS, TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE
OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF LAURUS.
EACH OF THE UNDERSIGNED EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH
JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH
UNDERSIGNED HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF
PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM
NON CONVENIENS.
EACH OF
THE UNDERSIGNED HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND
OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF
SUCH
SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL
ADDRESSED TO SUCH UNDERSIGNED IN ACCORDANCE WITH SECTION 18 AND THAT SERVICE
SO
MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH UNDERSIGNED’S ACTUAL
RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER
POSTAGE PREPAID.
15. 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 any Company, 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.
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16. 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.
17. 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.
18. 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.
19. 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.
20. Joinder.
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
a Guarantor hereunder by (x) executing a joinder agreement in form and substance
satisfactory to Laurus, (y) delivering supplements to such exhibits and
annexes to such Documents as Laurus shall reasonably request and/or as may
be
required by such joinder agreement and (z) taking all actions as specified
in
this Guaranty as would have been taken by such 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.
21. Release.
Nothing
except indefeasible payment in full of the Obligations shall release any of
the
undersigned from liability under this Guaranty.
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22. 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.
23. 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 a fraudulent
transfer or conveyance for purposes of the Bankruptcy Code, the Uniform
Fraudulent Conveyance Act of any similar Federal or state law. To effectuate
the
foregoing intention, each Guarantor 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.
[REMAINDER
OF THIS PAGE IS BLANK.
SIGNATURE
PAGE IMMEDIATELY FOLLOWS]
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IN
WITNESS WHEREOF, this Guaranty has been executed by the undersigned as of the
date and year here above written.
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IMPART
MEDIA GROUP, INC.
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| By: |
/s/Xxxxxx
Xxxxxxxx
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| Name: Xxxxxx Xxxxxxxx | ||||
| Title: Chief Financial | ||||
| Address: 0000 Xxxxx Xxxxxxxxx Xxx | ||||
|
Seattle, Washington 98103
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| Telephone: (000) 000-0000 | ||||
| Facsimile: (000) 000-0000 | ||||
| State of Formation: Nevada | ||||
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IMPART,
INC.
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By:
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/s/Xxxxxx
Xxxxxxxx
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Name:
Xxxxxx Xxxxxxxx
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Title:
Chief Financial Officer
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Address:
0000 Xxxxx Xxxxxxxxx Xxx
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Seattle,
Washington 98103
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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State
of Formation: Washington
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