Exhibit 10.7
SUBSIDIARY GUARANTY
New York, New York January 30, 2004
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 __________
("__________") to or for the account of Dyntek, Inc. ("Debtor") from time to
time and at any time and for other good and valuable consideration and to induce
__________, 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 __________ 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 __________,
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 __________ 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 __________,
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 __________, whether arising under, out of, or in connection with
that certain Securities Purchase Agreement dated as of the date hereof by and
between Debtor and __________ (the "Securities Purchase Agreement"); that
certain Secured Convertible Note dated as of the date hereof made by Debtor in
favor of __________ (the "Note") the Warrant dated as of the date hereof made by
Debtor in favor of __________ (the "Warrant")or that certain Registration Rights
Agreement dated as of the date hereof by and between Debtor and __________ (the
"Registration Rights Agreement") (the Securities Purchase Agreement, the Note,
the Warrant and the Registration Rights 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 (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. In furtherance
of the foregoing, the undersigned ▇▇▇▇▇▇ agrees as follows:
1. No Impairment. __________ 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, and may also make any 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 __________ and Debtor or any such other party or person,
or make any election of rights __________ 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. 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 ▇▇▇▇▇▇'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 __________ 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 Loan
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 __________ or its assignees or any acceptance thereof
or any release of any security by __________ 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 __________ 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.
__________ shall be under no obligation to institute suit, exercise rights
or remedies or
2
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 __________ to do any of the
foregoing. Each of the Guarantors further consents and agrees that
__________ 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 __________, 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
__________, the undersigned shall not be entitled to be subrogated to any
of the rights of __________ against Debtor or against any collateral or
guarantee or right of offset held by __________ 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 __________ by Debtor
on account of the Obligations are paid in full and 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 the Documents
shall not have been terminated, such amount shall be held by the
undersigned in trust for __________, 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 __________
in the exact form received by the undersigned (duly endorsed by the
undersigned to __________, if required), to be applied against the
Obligations, whether matured or unmatured, in such order as __________ 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 __________.
4. Security. All sums at any time to the credit of the undersigned and any
property of the undersigned in __________' possession or in the possession of
any bank, financial institution or other entity that directly or indirectly,
through one or more intermediaries, controls
3
or is controlled by, or is under common control with, __________ (each such
entity, an "Affiliate") shall be deemed held by __________ or such Affiliate, as
the case may be, as security for any and all of the undersigned's obligations to
__________ and to any Affiliate of __________, no matter how or when arising and
whether under this or any other instrument, agreement or otherwise.
Notwithstanding anything to the contrary contained herein, the security interest
granted to __________ shall be limited to goods (including but not limited to
equipment and expressly excluding inventory) of the undersigned.
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, except as disclosed in any of the Documents or in any of the
Exchange Act Filings (as defined in the Securities Purchase Agreement):
(a) Corporate Status. The undersigned is a corporation duly
organized, validly existing and in good standing under the laws of the
state of incorporation 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. The undersigned 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 and
legal action to authorize the execution, delivery and performance of this
Guaranty.
(c) Legal, ▇▇▇▇▇ and Binding Character. This Guaranty constitutes
the legal, valid and binding obligation of the undersigned 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 the
undersigned or any material contract, agreement or instrument to which the
undersigned is a party or by which the undersigned or any property of the
undersigned is bound or result in the creation or imposition of any
mortgage, lien or other encumbrance other than to __________ on any of the
property or assets of the undersigned pursuant to the provisions of any of
the foregoing.
(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.
(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 knowledge of the undersigned, threatened (i) with respect to this
Guaranty or any of the transactions contemplated by this Guaranty or (ii)
against or affecting the undersigned, or any of property or assets of the
undersigned,
4
which, if adversely determined, would have a material adverse effect on
the business, operations, assets or condition, financial or otherwise, of
the undersigned.
(g) Financial Benefit. Each of the undersigned 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 Debtor to __________.
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 __________, 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 __________'
possession, or otherwise, any and all Obligations shall for purposes
hereof, at __________' 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 __________ 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, __________
shall have the right to accelerate such undersigned's obligations
hereunder.
7. Payments from Guarantors. __________, 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 reasonable expenses for legal services of every kind)
relating or incidental to the enforcement or protection of the rights of
__________ 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 the Documents have 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.
5
10. Recapture. Anything in this Guaranty to the contrary notwithstanding,
if __________ 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 __________, the undersigned's obligations to
__________ shall be reinstated and this Guaranty shall remain in full force and
effect (or be reinstated) until payment shall have been made to __________,
which payment shall be due on demand.
11. Books and Records. The books and records of __________ showing the
account between __________ 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 __________ 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 __________ 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 __________ or allowed it by law or other agreement shall be
cumulative and not exclusive of any other, and may be exercised by __________ 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 __________ HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT __________ 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. 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 __________ 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
6
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 and ----------.
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. __________ 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, __________ 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, __________, 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. __________ shall have an unimpaired right to enforce this Guaranty
for its benefit with respect to that portion of the Obligations which __________
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]
7
IN WITNESS WHEREOF, this Guaranty has been executed by the undersigned
this 30th day of January, 2004.
DYNTEK SERVICES, INC.
By: _____________________________________
Name: ___________________________________
Title: __________________________________
Address:
Telephone:
Facsimile:
State of Incorporation:
8