SUBSIDIARY GUARANTEE
Exhibit
10.5
THIS
SUBSIDIARY GUARANTEE (this “Guarantee”),
dated
as of February 6, 2007, made by each of the undersigned guarantors (together
with any other entity that may become an additional guarantor hereunder, the
“Guarantors”),
in
favor of the purchasers (the “Purchasers”)
of
Senior Secured Debentures, dated as of the date hereof (the “Debentures”),
issued by Digital Angel Corporation, a Delaware corporation (the “Company”),
and
Imperium Advisers, LLC, as the Collateral Agent (the “Collateral
Agent”).
Capitalized terms used herein and not otherwise defined shall have the
respective meanings specified in the Purchase Agreement (as defined below).
W
I T N E
S S E T H:
WHEREAS,
pursuant to that certain Securities Purchase Agreement, dated as of the date
hereof, by and between the Company and the Purchasers (the “Purchase
Agreement”),
the
Company has agreed to sell and issue to the Purchasers, and each of the
Purchasers has agreed to purchase from the Company the Debentures;
and
WHEREAS,
each Guarantor, as a subsidiary of the Company, will directly or indirectly
benefit from the extension of credit to the Company represented by the issuance
of the Debentures.
NOW,
THEREFORE, in consideration of the agreements herein contained and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto hereby agree as follows:
|
1.
|
GUARANTEE.
|
|
1.1
|
Guarantee
of Obligations.
|
(a) Each
Guarantor hereby, jointly and severally, unconditionally and irrevocably,
guarantees to each Purchaser and its lawful successors, endorsees, transferees
and assigns, the prompt and complete payment and performance by the Company
when
due (whether at the stated maturity, by acceleration or otherwise) of all
obligations and undertakings of the Company of whatever nature, monetary or
otherwise, under the Debentures, the Purchase Agreement, the Warrants, the
Registration Rights Agreement, the Security Agreement and the other Transaction
Documents, together with all reasonable attorneys’ fees, disbursements and all
other costs and expenses of collection incurred by Purchasers in enforcing
any
of such Obligations and/or this Guarantee (collectively, the “Obligations”).
This
Guarantee shall remain in full force and effect until all the Obligations and
the obligations of each Guarantor under this Guarantee shall have been satisfied
by payment and performance in full. Each Guarantor shall be regarded, and shall
be in the same position, as principal debtor with respect to the Obligations.
(b) Anything
herein or in any other Transaction Document to the contrary notwithstanding,
the
maximum liability of each Guarantor hereunder and under the other Transaction
Documents shall in no event exceed the amount which can be guaranteed by such
Guarantor under applicable federal and state laws, including laws relating
to
the insolvency of debtors, fraudulent conveyance or transfer or laws affecting
the rights of creditors generally (after giving effect to the right of
contribution established in Section
1.3
of this
Guarantee).
1.2 Guarantee
Absolute and Unconditional.
Each
Guarantor understands and agrees that this Guarantee shall be construed as
a
continuing, absolute and unconditional guarantee of payment and performance
without regard to (a) the validity or enforceability of the Purchase Agreement
or any other Transaction Document, any of the Obligations or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Purchasers, (b) any
defense, set-off or counterclaim (other than a defense of payment or performance
or fraud or misconduct by Purchasers) which may at any time be available to
or
be asserted by the Company or any other Person against the Purchasers, or (c)
any other circumstance whatsoever (with or without notice to or knowledge of
the
Company or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Company for the Obligations,
or of such Guarantor under this Guarantee, in bankruptcy or in any other
instance.
1.3 Right
of Contribution.
Each
Guarantor hereby agrees that to the extent that a Guarantor shall have paid
more
than its proportionate share of any payment made hereunder, such Guarantor
shall
be entitled to seek and receive contribution from and against any other
Guarantor hereunder which has not paid its proportionate share of such payment.
Each Guarantor’s right of contribution shall be subject to the terms and
conditions of Section
1.4
of this
Guarantee. The provisions of this Section
1.3
shall in
no respect limit the obligations and liabilities of any Guarantor to the
Purchasers, and each Guarantor shall remain liable to the Purchasers for the
full amount guaranteed by such Guarantor hereunder.
1.4 No
Subrogation.
Notwithstanding any payment made by any Guarantor hereunder or any set-off
or
application of funds of any Guarantor by the Purchasers, no Guarantor shall
be
entitled to be subrogated to any of the rights of the Purchasers against the
Company or any other Guarantor or any collateral security or guarantee or right
of offset held by the Purchasers for the payment of the Obligations, nor shall
any Guarantor seek or be entitled to seek any contribution or reimbursement
from
the Company or any other Guarantor in respect of payments made by such Guarantor
hereunder, until all amounts owing to the Purchasers by the Company on account
of the Obligations are paid in full. If any amount shall be paid to any
Guarantor on account of such subrogation rights at any time when all of the
Obligations shall not have been paid in full, such amount shall be held by
such
Guarantor in trust for the benefit of the Purchasers, segregated from other
funds of such Guarantor, and shall, forthwith upon receipt by such Guarantor,
be
turned over to the Purchasers in the exact form received by such Guarantor
(duly
indorsed by such Guarantor to the Purchasers, if required), to be applied
against the Obligations, whether matured or unmatured, in such order as the
Purchasers may determine.
1.5 Modification
of Guaranteed Obligations.
Each
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Obligations made
by the Purchasers may be rescinded by the Purchasers and any of the Obligations
continued, and the Obligations, or the liability of any other Person upon or
for
any part thereof, or any collateral security or guarantee therefor or right
of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Purchasers, and the Purchase Agreement and the
other Transaction Documents and any other documents executed and delivered
in
connection therewith may be amended, modified, supplemented or terminated,
in
whole or in part, as the Purchasers may deem advisable from time to time, and
any collateral security, guarantee or right of offset at any time held by the
Purchasers for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. The Purchasers shall have no obligation to protect,
secure, perfect or insure any Lien at any time held by them as security for
the
Obligations or for this Guarantee or any property subject thereto.
-2-
1.6 Waiver.
Each
Guarantor waives any and all notice of the creation, renewal, extension or
accrual of any of the Obligations and notice of or proof of reliance by the
Purchasers upon the guarantees contained in this Section
1
or
acceptance of the guarantees contained in this Section
1.
The
Obligations shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon the
guarantees contained in this Section
1.
All
dealings between the Company and any of the Guarantors, on the one hand, and
the
Purchasers, on the other hand, shall be conclusively presumed to have been
had
or consummated in reliance upon the guarantees contained in this Section
1.
Each
Guarantor waives to the extent permitted by law diligence, presentment, protest,
demand for payment and notice of default or nonpayment to or upon the Company
or
any of the Guarantors with respect to the Obligations.
1.7 Enforcement
of Guarantee.
(a) When
making any demand hereunder or otherwise pursuing its rights and remedies
hereunder against any Guarantor, the Collateral Agent, acting on behalf of
each
Purchaser, may, but shall be under no obligation to, make a similar demand
on or
otherwise pursue such rights and remedies as the Collateral Agent, acting on
behalf of the Purchasers, may have against the Company, any other Guarantor
or
any other Person or against any collateral security or guarantee for the
Obligations or any right of offset with respect thereto, and any failure by
the
Collateral Agent, acting on behalf of the Purchasers, to make any such demand,
to pursue such other rights or remedies or to collect any payments from the
Company, any other Guarantor or any other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or
any
release of the Company, any other Guarantor or any other Person or any such
collateral security, guarantee or right of offset, shall not relieve any
Guarantor of any obligation or liability hereunder, and shall not impair or
affect the rights and remedies, whether express, implied or available as a
matter of law, of the Purchasers against any Guarantor. For the purposes hereof,
“demand”
shall
include the commencement and continuance of any legal proceedings.
(b) Expenses;
Indemnification.
(i) Each
Guarantor agrees to pay, or reimburse the Collateral Agent, acting on behalf
of
the Purchasers, all of the Collateral Agent’s costs and expenses incurred in
collecting against such Guarantor under this Guarantee or otherwise enforcing
or
preserving any rights under this Guarantee and the other Transaction Documents
to which such Guarantor is a party, including, without limitation, the
reasonable fees and disbursements of counsel to the Collateral
Agent.
-3-
(ii) Each
Guarantor agrees to pay, and to save the Purchasers harmless from, any and
all
liabilities with respect to, or resulting from any delay in paying, any and
all
stamp, excise, sales or other taxes which may be payable or determined to be
payable in connection with any of the transactions contemplated by this
Guarantee.
(iii) Each
Guarantor agrees to pay, and to save the Purchasers harmless from, any and
all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of
this
Guarantee to the extent the Company would be required to do so pursuant to
the
Purchase Agreement.
(iv) [Reserved]
(v) Notwithstanding
anything to the contrary in this Agreement, with respect to any defaulted
non-monetary Obligations the specific performance of which by the Guarantors
is
not reasonably possible (e.g., the issuance of the Company’s Common Stock), the
Guarantors shall only be liable for making the Purchasers whole on a monetary
basis for the Company’s failure to perform such Obligations in accordance with
the Transaction Documents.
1.8 Right
to Set-Off.
Each
Guarantor hereby irrevocably authorizes the Collateral Agent, acting on behalf
of the Purchasers, at any time and from time to time while an Event of Default
(as defined in the Debentures) under any of the Transaction Documents shall
have
occurred and be continuing, without notice to such Guarantor or any other
Guarantor, any such notice being expressly waived by each Guarantor, to set-off
and appropriate and apply any and all deposits, credits, indebtedness or claims,
in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by a Purchaser
to or
for the credit or the account of such Guarantor, or any part thereof in such
amounts as the Collateral Agent may elect, against and on account of the
obligations and liabilities of such Guarantor to the Purchasers hereunder in
any
currency arising hereunder or under the Security Agreement as the Collateral
Agent may elect, whether or not a Purchaser has made any demand for payment
and
although such obligations, liabilities and claims may be contingent or
unmatured. The Collateral Agent shall notify such Guarantor promptly of any
such
set-off and the application made by the Collateral Agent of the proceeds
thereof, provided
that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Purchaser under this Section
1.8
are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which the Collateral Agent, acting on behalf of the
Purchasers, may have.
1.9 Payments.
In
addition to the terms of the Guaranty set forth in Section
1.1
of this
Guarantee, and in no manner imposing any limitation on such terms, it is
expressly understood and agreed that, if, at any time, any of the Obligations
are declared to be immediately due and payable by a Guarantor, then the
Guarantors shall, upon ten (10) Business Days’ notice, pay to the Collateral
Agent, acting on behalf of the Purchasers, the entire amount of such Obligations
as has been declared due and payable to the Purchasers. Payment by the
Guarantors shall be made to the Collateral Agent in immediately available
Federal funds to an account designated by the Collateral Agent or at the address
set forth herein for the giving of notice to the Collateral Agent or at any
other address that may be specified in writing from time to time by the
Collateral Agent, and shall be credited and applied to the
Obligations.
-4-
1.10
Release.
Subject
to Section
2
of this
Guarantee, each Guarantor will be released from all liability hereunder
concurrently with the repayment and performance in full of all amounts owed
under the Purchase Agreement, the Debentures and the other Transaction
Documents, and all other Obligations. No payment made by the Company, any of
the
Guarantors, any other guarantor or any other Person or received or collected
by
the Purchasers or the Collateral Agent from the Company, any of the Guarantors,
any other guarantor or any other Person by virtue of any action or proceeding
or
any set-off or appropriation or application at any time or from time to time
in
reduction of or in payment of the Obligations shall be deemed to modify, reduce,
release or otherwise affect the liability of any Guarantor hereunder which
shall, notwithstanding any such payment (other than any payment made by such
Guarantor in respect of the Obligations or any payment received or collected
from such Guarantor in respect of the Obligations), remain liable for the
Obligations up to the maximum liability of such Guarantor hereunder until the
Obligations are paid and performed in full.
|
2.
|
REINSTATEMENT.
|
The
guarantees contained in Section
1
of this
Guarantee shall continue to be effective, or be reinstated, as the case may
be,
if at any time payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the Purchasers or the
Collateral Agent upon the insolvency, bankruptcy, dissolution, liquidation
or
reorganization of the Company or any Guarantor, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Company or any Guarantor or any substantial part of its
property, or otherwise, all as though such payments had not been
made.
|
3.
|
REPRESENTATIONS
AND WARRANTIES.
|
Each
Guarantor hereby represents and warrants to the Collateral
Agent and Purchasers
as
follows:
3.1
Organization
and Qualification.
Each
Guarantor is duly organized, validly existing and in good standing under the
laws of its formation, with the requisite power and authority to own and use
its
properties and assets and to carry on its business as currently conducted.
Each
Guarantor is duly qualified to do business and is in good standing as a foreign
corporation in each jurisdiction in which the nature of the business conducted
or property owned by it makes such qualification necessary, except where the
failure to be so qualified or in good standing, as the case may be, could not,
individually or in the aggregate, (x) adversely affect the legality, validity
or
enforceability of any of this Guarantee in any material respect, (y) have a
material adverse effect on the results of operations, assets, prospects, or
financial condition of the Guarantor or (z) adversely impair in any material
respect the Guarantor’s ability to perform fully on a timely basis its
obligations under this Guarantee (a “Material
Adverse Effect”).
-5-
3.2 Authorization;
Enforcement.
Each
Guarantor has the requisite corporate power and authority to enter into and
to
consummate the transactions contemplated by this Guarantee, and otherwise to
carry out its obligations hereunder. The execution and delivery of this
Guarantee by each Guarantor and the consummation by it of the transactions
contemplated hereby have been duly authorized by all requisite corporate action
on the part of the Guarantor, and no further consent or authorization of the
Guarantor, its board of directors, shareholders, or to its knowledge, any
governmental authority or organization, or any other person or entity is
required in connection therewith. This Guarantee has been duly executed and
delivered by each Guarantor and constitutes the valid and binding obligation
of
such Guarantor enforceable against such Guarantor in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws relating
to,
or affecting generally the enforcement of, creditors’ rights and remedies or by
other equitable principles of general application.
3.3 No
Conflicts.
The
execution, delivery and performance of this Guarantee by each Guarantor and
the
consummation by each Guarantor of the transactions contemplated thereby do
not
and will not (i) conflict with or violate any provision of its certificate
of
incorporation, by-laws or any other governing document or (ii) conflict with,
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which such Guarantor is a party or by which it or any of its
asset
or properties are bound or affected, or (iii) result in a violation of any
law,
rule, regulation, order, judgment, injunction, decree or other restriction
of
any court or governmental authority to which such Guarantor is subject
(including Federal and state securities laws and regulations), or by which
any
of its properties or assets are bound or affected. The business of each
Guarantor is not being conducted in violation of any law, ordinance or
regulation of any governmental authority, except for violations which,
individually or in the aggregate, do not have a Material Adverse
Effect.
3.4 Purchase
Agreement.
The
representations and warranties of the Company set forth in the Purchase
Agreement as they relate to each Guarantor, each of which is hereby incorporated
herein by reference, are true and correct as of each time such representations
are deemed to be made pursuant to such Purchase Agreement, and the Purchasers
shall be entitled to rely on each of them as if they were fully set forth
herein, provided,
that
each reference in each such representation and warranty to the Company’s
knowledge shall, for the purposes of this Section
3.4,
be
deemed to be a reference to such Guarantor’s knowledge.
3.5 Independence
of Parties.
The
Purchasers have no fiduciary relationship with or duty to any Guarantor arising
out of or in connection with this Guarantee or any of the other Transaction
Documents; the relationship between the Guarantors, on the one hand, and the
Purchasers, on the other hand, in connection herewith or therewith is solely
that of debtor and creditor; and no joint venture is created hereby or by the
other Transaction Documents or otherwise exists by virtue of the transactions
contemplated hereby among the Guarantors and the Purchasers.
-6-
3.6 Counsel.
Each
Guarantor has been advised by counsel in the negotiation, execution and delivery
of this Guarantee and the other Transaction Documents to which it is a
party.
|
4.
|
FURTHER
ASSURANCES.
|
Each
Guarantor covenants and agrees with the Collateral Agent, on behalf of each
Purchaser, that, from and after the date of this Guarantee until the Obligations
shall have been paid in full, such Guarantor shall (i) take, and/or shall
refrain from taking, as the case may be, such commercially reasonable action
(including complying with all of the obligations in Section 2 of the Debentures,
which obligations are incorporated by reference herein and shall be binding
on
each Guarantor) that is necessary to be taken or not taken, as the case may
be,
so that no Event of Default (as defined in the Debentures) is caused by the
failure to take such action or to refrain from taking such action by such
Guarantor and (ii) execute and deliver to the Collateral Agent, from time to
time, any additional instruments or documents which are reasonably necessary
to
cause this Guarantee to be, become or remain valid and effective in accordance
with its terms.
|
5.
|
MISCELLANEOUS.
|
5.1 Severability.
In the
event that any provision of this Guarantee becomes or is declared by a court
of
competent jurisdiction to be illegal, unenforceable or void, this Guarantee
shall continue in full force and effect without said provision; provided
that in
such case the parties shall negotiate in good faith to replace such provision
with a new provision which is not illegal, unenforceable or void, as long as
such new provision does not materially change the economic or other benefits
or
burdens of this Guarantee to the parties.
5.2 Successors
and Assigns.
The
terms and conditions of this Guarantee
shall
inure to the benefit of and be binding upon the respective successors and
permitted assigns of the parties. Nothing in this Guarantee,
express
or implied, is intended to confer upon any party other than the parties hereto
or their respective successors and permitted assigns any rights, remedies,
obligations or liabilities under or by reason of this Guarantee, except as
expressly provided in this Guarantee.
A
Purchaser may assign its rights hereunder in connection with any valid private
sale or transfer of its Debentures as permitted under the Purchase Agreement
and/or the Debentures, in which case the term “Purchaser” shall be deemed to
refer to such transferee as though such transferee were an original signatory
hereto. No Guarantor may assign its rights or obligations under this
Guarantee.
5.3 Injunctive
Relief.
Each
Guarantor acknowledges and agrees that a breach by it of its obligations
hereunder will cause irreparable harm to each Purchaser and that the remedy
or
remedies at law for any such breach will be inadequate and agrees, in the event
of any such breach, in addition to all other available remedies, the Collateral
Agent, acting on behalf of the Purchasers, shall be entitled to an injunction
restraining any breach and requiring immediate and specific performance of
such
obligations without the necessity of showing economic loss or the posting of
any
bond.
5.4 Governing
Law; Jurisdiction.
This
Guarantee
shall
be
governed by and construed under the laws of the State of New York applicable
to
contracts made and to be performed entirely within the State of New York. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state
and
federal courts sitting in the City and County of New York for the adjudication
of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby and hereby irrevocably waives, and agrees not to assert
in
any suit, action or proceeding, any claim that it is not personally subject
to
the jurisdiction of any such court, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service
of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party at the address in effect
for
notices to it under this Guarantee
and
agrees that such service shall constitute good and sufficient service of process
and notice thereof. Nothing contained herein shall be deemed to limit in any
way
any right to serve process in any manner permitted by law.
-7-
5.5 Counterparts.
This
Guarantee
may
be
executed in any number of counterparts, each of which shall be deemed an
original, and all of which together shall constitute one and the same
instrument. This Guarantee
may
be
executed and delivered by facsimile transmission.
5.6 Headings.
The
headings used in this Guarantee
are
used
for convenience only and are not to be considered in construing or interpreting
this Guarantee.
5.7 Notices.
Any
notice, demand or request required or permitted to be given by a Guarantor,
the
Collateral Agent or a Purchaser pursuant to the terms of this Guarantee shall
be
in writing and shall be deemed delivered (i) when delivered personally, against
written receipt therefor, or by verifiable facsimile transmission, unless such
delivery is made on a day that is not a Business Day, in which case such
delivery will be deemed to be made on the next succeeding Business Day, (ii)
on
the next Business Day after timely delivery to a nationally recognized overnight
courier and (iii) on the Business Day actually received if deposited in the
U.S.
mail (certified or registered mail, return receipt requested, postage prepaid),
addressed as follows:
|
If
to a Guarantor:
|
|
x/x
Xxxxxxx Xxxxx Xxxxxxxxxxx
|
|
Xxxxx
000
|
|
1690
South Congress
|
|
Xxxxxx
Xxxxx, Xxxxxxx 00000
|
|
Attn:
|
Xxxxx
XxXxxxx
|
|
Tel:
|
(000) 000-0000
|
|
Fax:
|
(000)
000-0000
|
|
with
a copy (which
shall not constitute notice) to:
|
|
Winthrop
& Weinstine, P.A.
|
|
Suite
3500
|
|
000
Xxxxx 0xx
Xxxxxx
|
|
Xxxxxxxxxxx,
Xxxxxxxxx 00000
|
|
Attn:
|
Xxxxxx
X. Xxxxxx
|
|
Tel:
|
(000)
000-0000
|
|
Fax:
|
(000)
000-0000
|
|
If
to the Collateral
Agent:
|
-8-
|
Imperium
Advisers, LLC
|
|
000
Xxxx 00xx Xxxxxx
|
|
00xx
Xxxxx
|
|
Xxx
Xxxx, XX 00000
|
|
Attn:
|
Xxxxxxx
Xxxxxxx, Esq.
|
|
Tel:
|
(000)
000-0000
|
|
Fax:
|
(000)
000-0000
|
and
if to
any Purchaser, to such address for such party as shall appear on the signature
page of the Purchase Agreement executed by such party, or as shall be designated
by such party in writing to the other parties hereto in accordance with this
Section
5.7.
Written
confirmation of receipt generated by the sender’s facsimile machine containing
the time, date, recipient facsimile number and an image of the first page of
such transmission shall be rebuttable evidence of receipt by facsimile in
accordance with clause
(i)
above.
5.8 Entire
Agreement; Amendments.
This
Guarantee
and
the
other Transaction Documents constitute the entire agreement between the parties
with regard to the subject matter hereof and thereof, superseding all prior
agreements or understandings, whether written or oral, between or among the
parties. No (i) amendment to this Agreement or (ii) waiver of any agreement
or
other obligation of the Company under this Agreement may be made or given except
pursuant to a written instrument executed by the Company and (i) prior to the
Termination Date, by the holders of a majority of the aggregate principal of
the
Debentures then outstanding and the holders of a majority of the aggregate
number of the Warrant Shares into which the Warrants then outstanding are
exercisable (without
regard to any limitation on the exercise of the Warrants),
and
(ii) on and after the Termination Date, by the holders of a majority of the
aggregate number of the Warrant Shares into which the Warrants then outstanding
are exercisable (without
regard to any limitation on the exercise of the Warrants). No waiver of any
provision of this Agreement applicable to any Purchaser may be made
except
pursuant to a written instrument executed by such Purchaser and the Company.
Any
waiver given pursuant hereto shall be effective only in the specific instance
and for the specific purpose for which given.
5.9 Additional
Guarantors.
During
the period beginning on the Execution Date and ending on the Termination Date,
if a Guarantor creates or acquires any new Subsidiary that owns, at the time
of
creation or acquisition or any time thereafter, assets having a fair market
value in excess of $50,000, then such Guarantor shall cause such new Subsidiary
to become party to (i) this Guarantee for all purposes of this Guarantee by
executing and delivering an Assumption Agreement in the form of Annex 1 hereto
and (ii) the Security Agreement for all purposes of such agreement.
[SIGNATURE
PAGE FOLLOWS]
-9-
IN
WITNESS WHEREOF, the undersigned has caused this Guarantee to be duly executed
and delivered as of the date first above written.
|
DIGITAL
ANGEL TECHNOLOGY CORPORATION, AS GUARANTOR
|
|||
|
By:
|
/s/
Xxxxxxxx Xxxxxxxx
|
||
|
Name:
Xxxxxxxx Xxxxxxxx
|
|||
|
Title:
Assistant Secretary
|
|||
|
OUTERLINK
CORPORATION, AS GUARANTOR
|
|||
|
By:
|
/s/
Xxxxxxxx Xxxxxxxx
|
||
|
Name:
Xxxxxxxx Xxxxxxxx
|
|||
|
Title:
Assistant Secretary
|
|||
|
DSD
HOLDING A/S, AS GUARANTOR
|
|||
|
By:
|
/s/
Xxxxxxxx Xxxxxxxx
|
||
|
Name:
Xxxxxxxx Xxxxxxxx
|
|||
|
Title:
Assistant Secretary
|
|||
|
SIGNATURE
INDUSTRIES LIMITED, AS GUARANTOR
|
|||
|
By:
|
/s/
Xxxxxxxx Xxxxxxxx
|
||
|
Name:
Xxxxxxxx Xxxxxxxx
|
|||
|
Title:
Assistant Secretary
|
|||
-10-
IN
WITNESS WHEREOF, the undersigned has caused this Guarantee to be duly executed
and delivered as of the date first above written.
|
|
DIGITAL
ANGEL INTERNATIONAL, INC., AS GUARANTOR
|
||
|
By:
|
/s/
Xxxxxxxx Xxxxxxxx
|
||
|
Name:
Xxxxxxxx Xxxxxxxx
|
|||
|
Title:
Assistant Secretary
|
|||
|
DIGITAL
ANGEL HOLDINGS, LLC, AS GUARANTOR
|
|||
|
By:
|
/s/
Xxxxxxxx Xxxxxxxx
|
||
|
Name:
Xxxxxxxx Xxxxxxxx
|
|||
|
Title:
Assistant Secretary
|
|||
-11-
IN
WITNESS WHEREOF, the undersigned has caused this Guarantee to be duly executed
and delivered as of the date first above written.
|
IMPERIUM
ADVISERS, LLC, AS COLLATERAL AGENT
|
|||
|
By:
|
/s/
Xxxxxxx Xxxxxxx
|
||
|
Name:
Xxxxxxx Xxxxxxx
|
|||
|
Title:
Counsel
|
|||
-12-
