Exhibit 10.8
SUBSIDIARY GUARANTY
New York, New York January 20, 2006
FOR VALUE RECEIVED, and in consideration of note purchases from, loans
made or to be made or credit otherwise extended or to be extended by Laurus
Master Fund, Ltd. ("Laurus") to or for the account of DataLogic International,
Inc., a Delaware corporation ("Debtor"), from time to time and at any time and
for other good and valuable consideration and to induce Xxxxxx, in its
discretion, to purchase such notes, make such loans or extensions of credit
and to make or grant such renewals, extensions, releases of collateral or
relinquishments of legal rights as Xxxxxx may deem advisable, each of the
undersigned (and each of them if more than one, the liability under this
Guaranty being joint and several) (jointly and severally referred to as
"Guarantors " or "the undersigned") 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 Debtor to Laurus and of all instruments of
any nature evidencing or relating to any such obligations and liabilities upon
which Debtor or one or more parties and Debtor is or may become liable to
Laurus, whether incurred by Debtor as maker, endorser, drawer, acceptor,
guarantors , accommodation party or otherwise, and whether due or to become
due, secured or unsecured, absolute or contingent, joint or several, and
however or whenever acquired by Laurus, whether arising under, out of, or in
connection with (i) that certain Securities Purchase Agreement dated as of the
date hereof by and between the Debtor and Laurus (the "Securities Purchase
Agreement") and (ii) each Related Agreement referred to in the Securities
Purchase Agreement, as each may be amended, modified, restated or supplemented
from time to time, are collectively referred to herein as the "Documents"), or
any documents, instruments or agreements relating to or executed in connection
with the Documents or any documents, instruments or agreements referred to
therein or otherwise, or any other indebtedness, obligations or liabilities of
the Debtor to Laurus, whether now existing or hereafter arising, direct or
indirect, liquidated or unliquidated, absolute or contingent, due or not due
and whether under, pursuant to or evidenced by a note, agreement, guaranty,
instrument or otherwise (all of which are herein collectively referred to as
the "Obligations"), and irrespective of the genuineness, validity, regularity
or enforceability of such Obligations, or of any instrument evidencing any of
the Obligations or of any collateral therefor or of the existence or extent of
such collateral, and irrespective of the allowability, allowance or
disallowance of any or all of the Obligations in any case commenced by or
against Debtor under Title 11, United States Code, including, without
limitation, obligations or indebtedness of Debtor for post-petition interest,
fees, costs and charges that would have accrued or been added to the
Obligations but for the commencement of such case. Terms not otherwise
defined herein shall have the meaning assigned such terms in the Securities
Purchase Agreement. In furtherance of the foregoing, the undersigned xxxxxx
agrees as follows:
1. No Impairment. Laurus may at any time and from time to time,
either before or after the maturity thereof, without notice to or further
consent of the undersigned, extend the time of payment of, exchange or
surrender any collateral for, renew or extend any of the Obligations or
increase or decrease the interest rate thereon, or any other agreement with
Debtor or with any other party to or person liable on any of the Obligations,
or interested therein, for the extension, renewal, payment, compromise,
discharge or release thereof, in whole or in part, or for any modification of
the terms thereof or of any agreement between Laurus and Debtor or any such
other party or person, or make any election of rights Laurus may deem
desirable under the United States Bankruptcy Code, as amended, 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 instrument shall be effective regardless of the
subsequent incorporation, merger or consolidation of Debtor, or any change in
the composition, nature, personnel or location of Debtor and shall extend to
any successor entity to Debtor, including a debtor in possession or the like
under any Insolvency Law.
2. Guaranty Absolute. Subject to Section 5(c), each of the
undersigned jointly and severally guarantees that the Obligations will be paid
strictly in accordance with the terms of the Documents and/or any other
document, instrument or agreement creating or evidencing the Obligations,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of Debtor with respect
thereto. Guarantors hereby knowingly accept the full range of risk
encompassed within a contract of "continuing guaranty" which risk includes the
possibility that Debtor will contract additional indebtedness for which
Guarantors may be liable hereunder after Xxxxxx's financial condition or
ability to pay its lawful debts when they fall due has deteriorated, whether
or not Debtor has properly authorized incurring such additional indebtedness.
The undersigned acknowledge that (i) no oral representations, including any
representations to extend credit or provide other financial accommodations to
Debtor, have been made by Xxxxxx to induce the undersigned to enter into this
Guaranty and (ii) any extension of credit to the Debtor shall be governed
solely by the provisions of the Documents. The liability of each of the
undersigned under this Guaranty shall be absolute and unconditional, in
accordance with its terms, and shall remain in full force and effect without
regard to, and shall not be released, suspended, discharged, terminated or
otherwise affected by, any circumstance or occurrence whatsoever, including,
without limitation: (a) any waiver, indulgence, renewal, extension, amendment
or modification of or addition, consent or supplement to or deletion from or
any other action or inaction under or in respect of the Documents or any other
instruments or agreements relating to the Obligations or any assignment or
transfer of any thereof, (b) any lack of validity or enforceability of any
Document or other documents, instruments or agreements relating to the
Obligations or any assignment or transfer of any thereof, (c) any furnishing
of any additional security to Laurus or its assignees or any acceptance
thereof or any release of any security by Laurus or its assignees, (d) any
limitation on any party's liability or obligation under the Documents or any
other documents, instruments or agreements relating to the Obligations or any
assignment or transfer of any thereof or any invalidity or unenforceability,
in whole or in part, of any such document, instrument or agreement or any term
thereof, (e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to
Debtor, or any action taken with respect to this Guaranty by any trustee 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.
3. Waivers.
(a) This Guaranty is a guaranty of payment and not of
collection. Laurus shall be under no obligation to institute suit,
exercise rights or remedies or take any other action against Debtor or
any other person liable with respect to any of the Obligations or resort
to any collateral security held by it to secure any of the Obligations
as a condition precedent to the undersigned being obligated to perform
as agreed herein and each of the Guarantors hereby waives any and all
rights which it may have by statute or otherwise which would require
Laurus to do any of the foregoing. Each of the Guarantors further
consents and agrees that Xxxxxx shall be under no obligation to marshal
any assets in favor of Guarantors, or against or in payment of any or
all of the Obligations. The undersigned hereby waives all suretyship
defenses and any rights to interpose any defense, counterclaim or offset
of any nature and description which the undersigned may have or which
may exist between and among Laurus, Debtor and/or the undersigned with
respect to the undersigned's obligations under this Guaranty, or which
Debtor may assert on the underlying debt, including but not limited to
failure of consideration, breach of warranty, fraud, payment (other than
cash payment in full of the Obligations), statute of frauds, bankruptcy,
infancy, statute of limitations, accord and satisfaction, and usury.
(b) Each of the undersigned further waives (i) notice of the
acceptance of this Guaranty, of the making of any such loans or
extensions of credit, and of all notices and demands of any kind to
which the undersigned may be entitled, including, without limitation,
notice of adverse change in Debtor's financial condition or of any other
fact which might materially increase the risk of the undersigned and
(ii) presentment to or demand of payment from anyone whomsoever liable
upon any of the Obligations, protest, notices of presentment, non-
payment or protest and notice of any sale of collateral security or any
default of any sort.
(c) Notwithstanding any payment or payments made by the
undersigned hereunder, or any setoff or application of funds of the
undersigned by Xxxxxx, the undersigned shall not be entitled to be
subrogated to any of the rights of Xxxxxx against Debtor or against any
collateral or guarantee or right of offset held by Xxxxxx for the
payment of the Obligations, nor shall the undersigned seek or be
entitled to seek any contribution or reimbursement from Debtor in
respect of payments made by the undersigned hereunder, until all amounts
owing to Laurus by Debtor on account of the Obligations are paid in full
and Laurus' obligation to extend credit pursuant to the Documents have
been terminated. If, notwithstanding the foregoing, any amount shall be
paid to the undersigned on account of such subrogation rights at any
time when all of the Obligations shall not have been paid in full and
Laurus' obligation to extend credit pursuant to the Documents shall not
have been terminated, such amount shall be held by the undersigned in
trust for Laurus, segregated from other funds of the undersigned, and
shall forthwith upon, and in any event within two (2) business days of,
receipt by the undersigned, be turned over to Laurus in the exact form
received by the undersigned (duly endorsed by the undersigned to Laurus,
if required), to be applied against the Obligations, whether matured or
unmatured, in such order as Laurus may determine, subject to the
provisions of the Documents. Any and all present and future debts and
obligations of Debtor to any of the undersigned are hereby waived and
postponed in favor of, and subordinated to the full payment and
performance of, all present and future debts and Obligations of Debtor
to Xxxxxx.
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 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
respectively, hereby jointly and severally represents and warrants (all of
which representations and warranties shall survive until all Obligations are
indefeasibly satisfied in full and the Documents have been irrevocably
terminated), that:
(a) Corporate Status. It is a corporation, partnership or
limited liability company, as the case may be, duly organized, validly
existing and in good standing under the laws of its jurisdiction of
organization indicated on the signature page hereof and has full power,
authority and legal right to own its property and assets and to transact
the business in which it is engaged.
(b) Authority and Execution. It has full power, authority and
legal right to execute and deliver, and to perform its obligations
under, this Guaranty and has taken all necessary corporate, partnership
or limited liability company, as the case may be, action to authorize
the execution, delivery and performance of this Guaranty.
(c) Legal, Xxxxx and Binding Character. This Guaranty
constitutes its legal, valid and binding obligation enforceable in
accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
laws of general application affecting the enforcement of creditor's
rights and general principles of equity that restrict the availability
of equitable or legal remedies.
(d) Violations. The execution, delivery and performance of this
Guaranty will not violate any requirement of law applicable to it or any
contract, agreement or instrument to it is a party or by which it or any
of its property is bound or result in the creation or imposition of any
mortgage, lien or other encumbrance other than to Laurus on any of its
property or assets pursuant to the provisions of any of the foregoing,
which, in any of the foregoing cases, could reasonably be expected to
have, either individually or in the aggregate, a Material Adverse
Effect.
(e) Consents or Approvals. No consent of any other person or
entity (including, without limitation, any creditor of the undersigned)
and no consent, license, permit, approval or authorization of, exemption
by, notice or report to, or registration, filing or declaration with,
any governmental authority is required in connection with the execution,
delivery, performance, validity or enforceability of this Guaranty by
it, except to the extent that the failure to obtain any of the foregoing
could not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect.
(f) Litigation. No litigation, arbitration, investigation or
administrative proceeding of or before any court, arbitrator or
governmental authority, bureau or agency is currently pending or, to the
best of its knowledge, threatened (i) with respect to this Guaranty or
any of the transactions contemplated by this Guaranty or (ii) against or
affecting it, or any of its property or assets, which, in each of the
foregoing cases, if adversely determined, could reasonably be expected
to have a Material Adverse Effect.
(g) Financial Benefit. It has derived or expects to derive a
financial or other advantage from each and every loan, advance or
extension of credit made under the Documents or other Obligation
incurred by the Debtor to Laurus.
6. Acceleration.
(a) If any breach of any covenant or condition or other event of
default shall occur and be continuing under any agreement made by Debtor
or any of the undersigned to Laurus, or either Debtor or any of the
undersigned should at any time become insolvent, or make a general
assignment, or if a proceeding in or under any Insolvency Law shall be
filed or commenced by, or in respect of, any of the undersigned, or if
a notice of any lien, levy, or assessment is filed of record with
respect to any assets of any of the undersigned by the United States of
America or 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 Debtor.
(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.
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 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 or corporations 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 Xxxxxx and Debtor shall be admissible in evidence in any
action or proceeding, shall be binding upon the undersigned for the purpose of
establishing the items therein set forth and shall constitute prima facie
proof thereof.
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 DOES HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN
ANY ACTION OR PROCEEDING BASED ON OR WITH RESPECT TO THIS GUARANTY OR ANY OF
THE TRANSACTIONS CONTEMPLATED HEREBY OR RELATING OR INCIDENTAL HERETO. THE
UNDERSIGNED DOES HEREBY CERTIFY THAT NO REPRESENTATIVE OR AGENT OF XXXXXX HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LAURUS WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION.
14. Governing Law; Jurisdiction; Amendments. THIS INSTRUMENT CANNOT
BE CHANGED OR TERMINATED ORALLY, AND SHALL BE GOVERNED, CONSTRUED AND
INTERPRETED AS TO VALIDITY, ENFORCEMENT AND IN ALL OTHER RESPECTS IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT HAVING EFFECT TO
PRINCIPLES OF CONFLICTS OF LAWS. EACH OF THE UNDERSIGNED EXPRESSLY CONSENTS
TO THE JURISDICTION AND VENUE OF THE SUPREME COURT OF THE STATE OF NEW YORK,
COUNTY OF NEW YORK, AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR ALL PURPOSES IN CONNECTION HEREWITH. ANY JUDICIAL
PROCEEDING BY THE UNDERSIGNED AGAINST LAURUS INVOLVING, DIRECTLY OR INDIRECTLY
ANY MATTER OR CLAIM IN ANY WAY ARISING OUT OF, RELATED TO OR CONNECTED
HEREWITH SHALL BE BROUGHT ONLY IN THE SUPREME COURT OF THE STATE OF NEW YORK,
COUNTY OF NEW YORK OR THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK. THE UNDERSIGNED FURTHER CONSENTS THAT ANY SUMMONS,
SUBPOENA OR OTHER PROCESS OR PAPERS (INCLUDING, WITHOUT LIMITATION, ANY NOTICE
OR MOTION OR OTHER APPLICATION TO EITHER OF THE AFOREMENTIONED COURTS OR A
JUDGE THEREOF) OR ANY NOTICE IN CONNECTION WITH ANY PROCEEDINGS HEREUNDER, MAY
BE SERVED INSIDE OR OUTSIDE OF THE STATE OF NEW YORK OR THE SOUTHERN DISTRICT
OF NEW YORK BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY
PERSONAL SERVICE PROVIDED A REASONABLE TIME FOR APPEARANCE IS PERMITTED, OR IN
SUCH OTHER MANNER AS MAY BE PERMISSIBLE UNDER THE RULES OF SAID COURTS. EACH
OF THE UNDERSIGNED WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY
ACTION INSTITUTED HEREON AND SHALL NOT ASSERT ANY DEFENSE BASED ON LACK OF
JURISDICTION OR VENUE OR BASED UPON FORUM NON CONVENIENS.
15. 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.
16. 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.
17. 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.
18. 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.
19. Release. Nothing except cash payment in full of the Obligations
shall release any of the undersigned from liability under this Guaranty.
[REMAINDER OF THIS PAGE IS BLANK.
SIGNATURE PAGE IMMEDIATELY FOLLOWS]
IN WITNESS WHEREOF, this Guaranty has been executed by the undersigned
this 20th day of January, 2006.
DATALOGIC CONSULTING, INC.
By:/s/Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: President
Address: 00000 Xxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
State of Incorporation: Texas
IPN COMMUNICATIONS, INC.
By:/s/Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: President
Address: 00000 Xxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
State of Incorporation: California
DATALOGIC CONSULTING INTERNATIONAL, INC.
By:/s/Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: President
Address: 00000 Xxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
State of Incorporation: Delaware
DATALOGIC NEW MEXICO, INC.
By:/s/Xxxxx Xxxxx
Name: Xxxxx Xxxxx
Title: President
Address: c/o DataLogic International,
Inc.
00000 Xxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
State of Incorporation: New Mexico
