Exhibit 10.6
GENERAL CONTINUING GUARANTY
This GENERAL CONTINUING GUARANTY (this "GUARANTY"), dated as of
February 3rd, 2006, is executed and delivered by the Persons listed on the
signature page(s) hereof under the caption "Guarantor" and any additional
entities acceding hereto (collectively, jointly and severally, the "Guarantors"
and each a "GUARANTOR"), in favor of the below defined Holders and Christiana
Corporate Services, Inc., a Delaware corporation, as Agent for the Holders (in
such capacity, together with its successors and assigns, if any, "AGENT"), in
light of the following:
WHEREAS, pursuant to the Securities Purchase Agreement (the
"PURCHASE AGREEMENT") dated October 31, 2005, among SendTec Acquisition Corp.
("STAC") and the other parties thereto, and the Senior Secured Convertible
Debentures (the "DEBENTURES") issued by STAC pursuant to the Purchase Agreement,
the Holders have severally agreed to extend the loans evidenced by the
Debentures (the "LOANS") to STAC;
WHEREAS, the Guarantors recognize that, as of the Consolidation
Date, the Loans will benefit STAC, RelationServe Media, Inc. ("RSM"), as well as
all the Subsidiaries of RSM; and
WHEREAS, in consideration of the Loans, and in consideration of any
other financial accommodations heretofore or hereafter extended by the Holders
to RSM, STAC or any of their respective Subsidiaries, whether pursuant to the
Purchase Agreement or the other Financing Documents, Guarantors have agreed to
jointly and severally guaranty the Guarantied Obligations.
NOW, THEREFORE, in consideration of the foregoing, each of the
Guarantors hereby agrees with Agent as follows:
1. Definitions and Construction.
(a) DEFINITIONS. Capitalized terms used herein and not otherwise
defined herein shall have the meanings ascribed to them in the STAC Security
Agreement. The following terms, as used in this Guaranty, shall have the
following meanings:
"GUARANTIED OBLIGATIONS" means (a) the due and punctual payment of
the principal of, and interest (including any interest that, but for the
commencement of an Insolvency Proceeding, would have accrued) on, any and all
premium on, the Obligations owed by STAC or any other Grantor to Agent or any
Holder pursuant to the terms of the Purchase Agreement, the Debentures, the STAC
Security Agreement or any other Financing Document and (b) the due and punctual
payment of all other present or future Obligations owing by Grantors to Agent or
any Holder.
"GUARANTOR SECURITY AGREEMENT" means the Guarantor Security
Agreement, dated as of the date hereof, among the Guarantors, the other grantors
party thereto and the Agent.
"STAC SECURITY AGREEMENT" means the STAC Security Agreement, dated
as of October 31, 2005, among STAC, the other grantors party thereto and the
Agent.
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"VOIDABLE TRANSFER" has the meaning set forth in SECTION 9.
(b) CONSTRUCTION. Unless the context of this Guaranty clearly
requires otherwise, references to the plural include the singular, references to
the singular include the plural, the terms "includes" and "including" are not
limiting, and the term "or" has, except where otherwise indicated, the inclusive
meaning represented by the phrase "and/or." The words "hereof," "herein,"
"hereby," "hereunder," and similar terms in this Guaranty refer to this Guaranty
as a whole and not to any particular provision of this Guaranty. Section,
subsection, clause, schedule, and exhibit references herein are to this Guaranty
unless otherwise specified. Any reference in this Guaranty to any agreement,
instrument, or document shall include all alterations, amendments, changes,
extensions, modifications, renewals, replacements, substitutions, joinders, and
supplements, thereto and thereof, as applicable (subject to any restrictions on
such alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements set forth herein). Any
reference herein to the satisfaction or payment in full of the Guarantied
Obligations shall mean the indefeasible payment in full in cash of all
Guarantied Obligations other than contingent indemnification Guarantied
Obligations. Any reference herein to any Person shall be construed to include
such Person's successors and assigns. Any requirement of a writing contained
herein shall be satisfied by the transmission of a Record and any Record
transmitted shall constitute a representation and warranty as to the accuracy
and completeness of the information contained therein.
2. GUARANTIED OBLIGATIONS. Each Guarantor hereby irrevocably and
unconditionally, jointly and severally, guaranties to Agent and Holders, as and
for its own debt, until final payment in full thereof has been made, (a) the
prompt payment of the Guarantied Obligations, when and as the same shall become
due and payable, whether at maturity, pursuant to a mandatory prepayment
requirement, by acceleration, or otherwise; it being the intent of each
Guarantor that the guaranty set forth herein shall be a guaranty of payment and
not a guaranty of collection; and (b) the punctual and faithful performance,
keeping, observance, and fulfillment by Grantors of all of the agreements,
conditions, covenants, and obligations of Grantors contained in the Purchase
Agreement, the Debentures, the STAC Security Agreement and each of the other
Financing Documents.
3. CONTINUING GUARANTY. This Guaranty includes Guarantied Obligations
arising under successive transactions continuing, compromising, extending,
increasing, modifying, releasing, or renewing the Guarantied Obligations,
changing the interest rate, payment terms, or other terms and conditions
thereof, or creating new or additional Guarantied Obligations after prior
Guarantied Obligations have been satisfied in whole or in part. To the maximum
extent permitted by law, each Guarantor hereby waives any right to revoke this
Guaranty as to future Guarantied Obligations. If such a revocation is effective
notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees
that (a) no such revocation shall be effective until written notice thereof has
been received by Agent, (b) no such revocation shall apply to any Guarantied
Obligations in existence on such date (including any subsequent continuation,
extension, or renewal thereof, or change in the interest rate, payment terms, or
other terms and conditions thereof), (c) no such revocation shall apply to any
Guarantied Obligations made or created after such date to the extent made or
created pursuant to a legally binding commitment of Agent in existence on the
date of such revocation, (d) no payment by any Guarantor, any Grantor, or from
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any other source, prior to the date of such revocation shall reduce the maximum
obligation of such Guarantor hereunder, and (e) any payment by Grantors or from
any source other than the Guarantors subsequent to the date of such revocation
shall first be applied to that portion of the Guarantied Obligations as to which
the revocation is effective and which are not, therefore, guarantied hereunder,
and to the extent so applied shall not reduce the maximum obligation of the
Guarantors hereunder.
4. PERFORMANCE UNDER THIS GUARANTY. In the event that Grantors fail to
make any payment of any Guarantied Obligations, on or prior to the due date
thereof, or if any Grantor shall fail to perform, keep, observe, or fulfill any
other obligation referred to in CLAUSE (B) of SECTION 2 of this Guaranty in the
manner provided in the Purchase Agreement or any other Financing Document, each
of the Guarantors immediately shall cause, as applicable, such payment to be
made or such obligation to be performed, kept, observed, or fulfilled.
5. PRIMARY OBLIGATIONS. This Guaranty is a primary and original obligation
of each Guarantor, is not merely the creation of a surety relationship, and is
an absolute, unconditional, and continuing guaranty of payment and performance
which shall remain in full force and effect without respect to future changes in
conditions. Each Guarantor hereby agrees that it is directly, jointly and
severally with each other Guarantor, and any other guarantor of the Guarantied
Obligations, liable to Agent and the Holders, that the obligations of each
Guarantor hereunder are independent of the obligations of any Grantor, any other
Guarantor, or any other guarantor, and that a separate action may be brought
against each Guarantor, whether such action is brought against any Grantor, any
other Guarantor, or any other guarantor or whether any Grantor, any other
Guarantor, or any other guarantor is joined in such action. Each Guarantor
hereby agrees that its liability hereunder shall be immediate and shall not be
contingent upon the exercise or enforcement by Agent or any Holder of whatever
remedies they may have against STAC, any other Grantor, any Guarantor, or any
other guarantor, or the enforcement of any lien or realization upon any security
by Agent or any Holder. Each Guarantor consents and agrees that neither Agent
nor any Holder shall be under any obligation to marshal any property or assets
of STAC, any other Grantor, any Guarantor, or any other guarantor in favor of
such Guarantor, or against or in payment of any or all of the Guarantied
Obligations.
6. WAIVERS.
(a) To the fullest extent permitted by applicable law, each
Guarantor hereby waives: (i) notice of acceptance hereof; (ii) notice of any
loans or other financial accommodations made or extended under the Purchase
Agreement and the Debentures, or the creation or existence of any Guarantied
Obligations; (iii) notice of the amount of the Guarantied Obligations, subject,
however, to such Guarantors' rights to make inquiry of Agent to ascertain the
amount of the Guarantied Obligations at any reasonable time; (iv) notice of any
adverse change in the financial condition of STAC or any other Grantor or of any
other fact that might increase such Guarantors' risk hereunder; (v) notice of
presentment for payment, demand, protest, and notice thereof as to any
instrument among the Financing Documents; (vi) notice of any "Event of Default"
under the Purchase Agreement or the STAC Security Agreement; and (vii) all other
notices (except if such notice is specifically required to be given to any
Guarantor under this Guaranty or any other Financing Documents to which any
Guarantor is a party) and demands to which any Guarantor might otherwise be
entitled.
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(b) To the fullest extent permitted by applicable law, each
Guarantor hereby waives the right by statute or otherwise to require Agent or
any Holder, to institute suit against STAC or any other Grantor or to exhaust
any rights and remedies which Agent or any Holder has or may have against STAC
or any other Grantor. In this regard, each Guarantor agrees that it is bound to
the payment of each and all Guarantied Obligations, whether now existing or
hereafter arising, as fully as if the Guarantied Obligations were directly owing
to Agent or any Holder, as applicable, by each Guarantor. Each Guarantor further
waives any defense arising by reason of any disability or other defense (other
than the defense that the Guarantied Obligations shall have been performed and
paid in the manner provided for by the applicable Financing Documents, to the
extent of any such payment) of any Grantor or by reason of the cessation from
any cause whatsoever of the liability of such Grantor in respect thereof.
(c) To the fullest extent permitted by applicable law, each
Guarantor hereby waives: (i) any right to assert against Agent or any Holder,
any defense (legal or equitable), set-off, counterclaim, or claim which such
Guarantor may now or at any time hereafter have against any Grantor or any other
party liable to Agent or any Holder; (ii) any defense, set-off, counterclaim, or
claim, of any kind or nature, arising directly or indirectly from the present or
future lack of perfection, sufficiency, validity, or enforceability of the
Guarantied Obligations or any security therefor; (iii) any right or defense
arising by reason of any claim or defense based upon an election of remedies by
Agent or any Holder; (iv) the benefit of any statute of limitations affecting
such Guarantors' liability hereunder or the enforcement thereof, and any act
which shall defer or delay the operation of any statute of limitations
applicable to the Guarantied Obligations shall similarly operate to defer or
delay the operation of such statute of limitations applicable to any Guarantor's
liability hereunder.
(d) Until such time as all of the Guarantied Obligations have been
finally paid in full: (i) each Guarantor hereby waives and postpones any right
of subrogation such Guarantor has or may have as against any Grantor with
respect to the Guarantied Obligations; (ii) each Guarantor hereby waives and
postpones any right to proceed against such Grantor or any other Person, now or
hereafter, for contribution, indemnity, reimbursement, or any other suretyship
rights and claims (irrespective of whether direct or indirect, liquidated or
contingent), with respect to the Guarantied Obligations; and (iii) each
Guarantor also hereby waives and postpones any right to proceed or to seek
recourse against or with respect to any property or asset of such Grantor.
(e) If any of the Guarantied Obligations or the obligations of any
Guarantor under this Guaranty at any time are secured by a mortgage or deed of
trust upon real property, Agent or any Holder may elect, in its sole discretion,
upon a default with respect to the Guarantied Obligations or the obligations of
the Guarantors under this Guaranty, to foreclose such mortgage or deed of trust
judicially or nonjudicially in any manner permitted by law, before or after
enforcing this Guaranty, without diminishing or affecting the liability of such
Guarantor hereunder. Each Guarantor understands that (a) by virtue of the
operation of antideficiency law applicable to nonjudicial foreclosures, an
election by Agent or any Holder to nonjudicially foreclose on such a mortgage or
deed of trust probably would have the effect of impairing or destroying rights
of subrogation, reimbursement, contribution, or indemnity of the Guarantors
against Grantors or other guarantors or sureties, and (b) absent the waiver
given by such Guarantor herein, such an election would estop Agent and Holders
from enforcing this Guaranty against such Guarantor. Understanding the
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foregoing, and understanding that each Guarantor hereby is relinquishing a
defense to the enforceability of this Guaranty, each Guarantor hereby waives any
right to assert against Agent or any Holder any defense to the enforcement of
this Guaranty, whether denominated "estoppel" or otherwise, based on or arising
from an election by Agent or any Holder to nonjudicially foreclose on any such
mortgage or deed of trust. Each Guarantor understands that the effect of the
foregoing waiver may be that such Guarantor may have liability hereunder for
amounts with respect to which such Guarantor may be left without rights of
subrogation, reimbursement, contribution, or indemnity against Grantors, the
other Guarantors, or other guarantors or sureties.
(f) Without limiting the generality of any other waiver or other
provision set forth in this Guaranty, each Guarantor waives all rights and
defenses that such Guarantor may have if all or part of the Guarantied
Obligations are secured by real property. This means, among other things:
(i) Agent or any Holder may collect from such Guarantor
without first foreclosing on any real or personal property collateral that may
be pledged by such Guarantor, Grantors, the other Guarantors, or any other
guarantor.
(ii) If Agent or any Holder forecloses on any real property
collateral that may be pledged by such Guarantor, Grantors, the other
Guarantors, or any other guarantor:
(A) The amount of the Guarantied Obligations or any
obligations of such Guarantor in respect thereof may be reduced only by the
price for which that collateral is sold at the foreclosure sale, even if the
collateral is worth more than the sale price.
(B) Agent may collect from such Guarantor even if Agent
or any Holder, by foreclosing on the real property collateral, has destroyed any
right such Guarantor may have to collect from Grantors, the other Guarantors, or
any other guarantor.
This is an unconditional and irrevocable waiver of any rights and
defenses each Guarantor may have if all or part of the Guarantied Obligations
are secured by real property.
(g) WITHOUT LIMITING THE GENERALITY OF ANY OTHER WAIVER OR OTHER
PROVISION SET FORTH IN THIS GUARANTY, EACH GUARANTOR WAIVES ALL RIGHTS AND
DEFENSES ARISING OUT OF AN ELECTION OF REMEDIES BY AGENT OR ANY HOLDER, EVEN
THOUGH SUCH ELECTION OF REMEDIES, SUCH AS A NONJUDICIAL FORECLOSURE WITH RESPECT
TO SECURITY FOR THE GUARANTIED OBLIGATIONS, HAS DESTROYED SUCH GUARANTOR'S
RIGHTS OF SUBROGATION AND REIMBURSEMENT AGAINST GRANTORS BY THE OPERATION OF
APPLICABLE LAW.
(h) Without limiting the generality of any other waiver or other
provision set forth in this Guaranty, each Guarantor hereby agrees as follows:
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(i) Agent's and each Holder's right to enforce this Guaranty
is absolute and is not contingent upon the genuineness, validity or
enforceability of any of the Financing Documents. Each Guarantor agrees that
Agent's and each Holder's rights under this Guaranty shall be enforceable even
if Grantors had no liability at the time of execution of the Financing Documents
or later cease to be liable.
(ii) Each Guarantor agrees that Agent's and each Holder's
rights under the Financing Documents will remain enforceable even if the amount
secured by the Financing Documents is larger in amount and more burdensome than
that for which Grantors are responsible. The enforceability of this Guaranty
against each Guarantor shall continue until all sums due under the Financing
Documents have been paid in full and shall not be limited or affected in any way
by any impairment or any diminution or loss of value of any security or
collateral for Grantors' obligations under the Financing Documents, from
whatever cause, the failure of any security interest in any such security or
collateral or any disability or other defense of any Grantor, any Guarantor, or
any other guarantor of Grantors' obligations under any other Financing Document,
any pledgor of collateral for any person's obligations to Agent or any other
person in connection with the Financing Documents.
(iii) Each Guarantor waives the right to require Agent or any
Holder to (A) proceed against Grantors, any Guarantor, or any other guarantor of
Grantors' obligations under any Financing Document, any other pledgor of
collateral for any person's obligations to Agent or any other person in
connection with the Guarantied Obligations, (B) proceed against or exhaust any
other security or collateral Agent or any Holder may hold, or (C) pursue any
other right or remedy for such Guarantor's benefit, and agrees that Agent may
exercise its right under this Guaranty without taking any action against
Grantors, any Guarantor, or any other guarantor of Grantors' obligations under
the Financing Documents, any pledgor of collateral for any person's obligations
to Agent or any other person in connection with the Guarantied Obligations, and
without proceeding against or exhausting any security or collateral Agent or any
Holder holds.
7. RELEASES. Each Guarantor consents and agrees that, without notice to or
by any Guarantor and without affecting or impairing the obligations of any
Guarantor hereunder, Agent or any Holder may, by action or inaction, compromise
or settle, extend the period of duration or the time for the payment, or
discharge the performance of, or may refuse to, or otherwise not enforce, or
may, by action or inaction, release all or any one or more parties to, any one
or more of the terms and provisions of the Purchase Agreement or any other
Financing Document or may grant other indulgences to Grantors in respect
thereof, or may amend or modify in any manner and at any time (or from time to
time) any one or more of the Purchase Agreement or any other Financing Document,
or may, by action or inaction, release or substitute any Guarantor or any other
guarantor, if any, of the Guarantied Obligations, or may enforce, exchange,
release, or waive, by action or inaction, any security for the Guarantied
Obligations or any other guaranty of the Guarantied Obligations, or any portion
thereof.
8. NO ELECTION. Agent and Holders shall have the right to seek recourse
against each Guarantor to the fullest extent provided for herein and no election
by Agent or any Holder to proceed in one form of action or proceeding, or
against any party, or on any obligation, shall constitute a waiver of Agent's or
any Holder's right to proceed in any other form of action or proceeding or
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against other parties unless Agent, on behalf of the Holders, has expressly
waived such right in writing. Specifically, but without limiting the generality
of the foregoing, no action or proceeding by Agent or any Holder under any
document or instrument evidencing the Guarantied Obligations shall serve to
diminish the liability of any Guarantor under this Guaranty except to the extent
that Agent and Holders finally and unconditionally shall have realized payment
in full of the Guarantied Obligations by such action or proceeding.
9. REVIVAL AND REINSTATEMENT; MAXIMUM AMOUNT. If the incurrence or payment
of the Guarantied Obligations or the obligations of any Guarantor under this
Guaranty by such Guarantor or the transfer by such Guarantor to Agent or any
Holder of any property of such Guarantor should for any reason subsequently be
declared to be void or voidable under any state or federal law relating to
creditors' rights, including provisions of the Bankruptcy Code relating to
fraudulent conveyances, preferences, or other voidable or recoverable payments
of money or transfers of property (collectively, a "VOIDABLE TRANSFER"), and if
Agent or any Holder is required to repay or restore, in whole or in part, any
such Voidable Transfer, or elects to do so upon the reasonable advice of its
counsel, then, as to any such Voidable Transfer, or the amount thereof that
Agent or any Holder is required or elects to repay or restore, and as to all
reasonable costs, expenses, and attorneys fees of Agent or any Holder related
thereto, the liability of each Guarantor automatically shall be revived,
reinstated, and restored and shall exist as though such Voidable Transfer had
never been made. Notwithstanding anything to the contrary contained herein, each
Guarantor shall be jointly and severally liable under this Guaranty for the
maximum amount of such liability that can be hereby incurred without rendering
this Guaranty voidable under applicable law (including, without limitation,
under Section 548 of the Bankruptcy Code or any similar provision under
applicable law), and not for any greater amount.
10. FINANCIAL CONDITION OF GRANTORS. Each Guarantor represents and
warrants to Agent and Holders that it is currently informed of the financial
condition of Grantors and of all other circumstances which a diligent inquiry
would reveal and which bear upon the risk of nonpayment of the Guarantied
Obligations. Each Guarantor further represents and warrants to Agent and Holders
that it has read and understands the terms and conditions of the Purchase
Agreement and each other Financing Document. Each Guarantor hereby covenants
that it will continue to keep itself informed of Grantors' financial condition,
the financial condition of other guarantors, if any, and of all other
circumstances which bear upon the risk of nonpayment or nonperformance of the
Guarantied Obligations.
11. PAYMENTS; APPLICATION. All payments to be made hereunder by any
Guarantor shall be made in Dollars, in immediately available funds, and without
deduction (whether for taxes or otherwise) or offset.
12. ATTORNEYS FEES AND COSTS. Each Guarantor jointly and severally agrees
to pay, on demand, all reasonable attorneys fees and all other costs and
expenses which may be incurred by Agent or any Holder in connection with,
arising out of, or consequential to, the protection, assertion, or enforcement
of this Guaranty or the Guarantied Obligations (or any security therefor),
irrespective of whether suit is brought.
13. NOTICES. All notices and other communications hereunder to Agent or
any Holder shall be in writing and shall be mailed, sent, or delivered in care
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of the Agent in accordance with SECTION 21 of the Guarantor Security Agreement.
All notices and other communications hereunder to the Guarantors shall be in
writing and shall be mailed, sent, or delivered in accordance with SECTION 21 of
the Guarantor Security Agreement.
14. CUMULATIVE REMEDIES. No remedy under this Guaranty, under the Purchase
Agreement, or any other Financing Document is intended to be exclusive of any
other remedy, but each and every remedy shall be cumulative and in addition to
any and every other remedy given under this Guaranty, under the Purchase
Agreement, or any other Financing Document, and those provided by law. No
failure on the part of Agent or any Holder to exercise, and no delay in
exercising, any right under this Guaranty shall operate as a waiver thereof; nor
shall any single or partial exercise of any right under this Guaranty preclude
any other or further exercise thereof or the exercise of any other right.
15. SEVERABILITY OF PROVISIONS. If any provision of this Guaranty is held
to be illegal, invalid or unenforceable under present or future laws, the
legality, validity and enforceability of the remaining provisions of this
Guaranty shall not be affected thereby.
16. ENTIRE AGREEMENT; AMENDMENTS. This Guaranty constitutes the entire
agreement among the Guarantors, the Agent and the Holders pertaining to the
subject matter contained herein. This Guaranty may not be altered, amended, or
modified, nor may any provision hereof be waived or noncompliance therewith
consented to, except by means of a writing executed by each Guarantor and Agent
(acting upon instructions from the Required Holders). Any such alteration,
amendment, modification, waiver, or consent shall be effective only to the
extent specified therein and for the specific purpose for which given. No course
of dealing and no delay or waiver of any right or default under this Guaranty
shall be deemed a waiver of any other, similar or dissimilar, right or default
or otherwise prejudice the rights and remedies hereunder.
17. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon each
Guarantor and its successors and assigns and shall inure to the benefit of the
successors and assigns of Agent and the Holders; PROVIDED, HOWEVER, no Guarantor
may assign this Guaranty or delegate any of its duties hereunder without Agent's
prior written consent and any unconsented to assignment shall be absolutely
void. In the event of any assignment or other transfer of rights by Agent or any
Holder, the rights and benefits herein conferred upon the Agent and the Holders,
respectively, shall automatically extend to and be vested in such permitted
assignee or other permitted transferee.
18. NO THIRD PARTY BENEFICIARY. This Guaranty is solely for the benefit of
Agent and each Holder, and each of their successors and assigns and may not be
relied on by any other Person.
19. GOVERNING LAW. All questions concerning the construction, validity,
enforcement and interpretation of the Transaction Documents shall be governed by
and construed and enforced in accordance with the internal laws of the State of
New York, without regard to the principles of conflicts of law thereof. Each
party agrees that all legal proceedings concerning the interpretations,
enforcement and defense of the transactions contemplated by this Agreement and
any other Transaction Documents (whether brought against a party hereto or its
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respective affiliates, directors, officers, shareholders, employees or agents)
shall be commenced exclusively in the state and federal courts sitting in the
City of New York. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in the City of New York,
borough of Manhattan for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed
herein (including with respect to the enforcement of any of the Transaction
Documents), 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 improper
or inconvenient venue for such proceeding. 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 via registered or certified
mail or overnight delivery (with evidence of delivery) to such party at the
address in effect for notices to it under this Agreement 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. The parties hereby waive all
rights to a trial by jury. If either party shall commence an action or
proceeding to enforce any provisions of the Transaction Documents, then the
prevailing party in such action or proceeding shall be reimbursed by the other
party for its attorneys' fees and other costs and expenses incurred with the
investigation, preparation and prosecution of such action or proceeding.
20. COUNTERPARTS; TELEFACSIMILE EXECUTION. This Guaranty may be executed
in any number of counterparts and by different parties on separate counterparts,
each of which, when executed and delivered, shall be deemed to be an original,
and all of which, when taken together, shall constitute but one and the same
Guaranty. Delivery of an executed counterpart of this Guaranty by telefacsimile
shall be equally as effective as delivery of an original executed counterpart of
this Guaranty. Any party delivering an executed counterpart of this Guaranty by
telefacsimile also shall deliver an original executed counterpart of this
Guaranty but the failure to deliver an original executed counterpart shall not
affect the validity, enforceability, and binding effect of this Guaranty.
21. GUARANTORS' REPRESENTATIONS AND WARRANTIES. By its execution and
delivery of this Guaranty, each Guarantor hereby makes to Agent and the Holders
each of the representations and warranties set forth in the Guarantor Security
Agreement applicable to such Guarantor fully as though such Guarantor were a
party thereto, and such representations and warranties are incorporated herein
by this reference, MUTATIS MUTANDIS.
[Signature page to follow]
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IN WITNESS WHEREOF, the undersigned has executed and delivered this
Guaranty as of the date first written above.
GURANTOR: RELATIONSERVE MEDIA, INC.,
a Delaware corporation
By: /s/
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Name:
Title:
RELATIONSERVE ACCESS, INC.,
a Delaware corporation
By: /s/
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Name:
Title:
FRIENDSAND, INC.,
a Delaware corporation
By: /s/
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Name:
Title:
[SIGNATURE PAGE TO GUARANTY]
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ACCEPTED THIS 3RD DAY OF FEBRUARY, 2006
CHRISTIANA CORPORATE SERVICES, INC.,
a Delaware corporation, as Agent and on behalf
of the Holders
By: /s/
--------------------------------------
Name:_________________________________
Title:________________________________
[SIGNATURE PAGE TO GUARANTY]
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