SUBSIDIARY GUARANTEE
Exhibit 10.4
THIS SUBSIDIARY GUARANTEE, dated as of March 24, 2008, (this “Guarantee”), is by and among
each of the undersigned subsidiaries (together with any other entity that may become an additional
guarantor hereunder, the “Guarantors”) of Echo Therapeutics, Inc., a Minnesota corporation (the
"Company”), for the benefit of Imperium Advisers, LLC, as collateral agent (in such capacity, the
"Collateral Agent”), and the holders (the “Holders”) of the Original Issue Discount Senior Secured
Notes (the “Notes”) issued as of the date hereof, pursuant to the Securities Purchase and Loan
Agreement, dated as of the date hereof (as amended, restated, supplemented or otherwise modified
from time to time, the “Securities Purchase Agreement”), by and between the Company and Imperium
Master Fund, Ltd. (“Imperium”). Capitalized terms used herein and not otherwise defined shall have
the respective meanings specified in the Securities Purchase Agreement. The Holders and the
Collateral Agent are sometimes collectively referred to herein as the “Secured Parties”.
W I T N E S S E T H:
WHEREAS, it is a condition to the obligation of Imperium to enter into the transactions
contemplated by the Securities Purchase Agreement that the Guarantors execute and deliver to the
Collateral Agent for the benefit of the Holders this Guarantee; 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 Notes and the other
transactions contemplated by the Transaction Documents.
NOW, THEREFORE, in consideration of the agreements herein contained and for other good and
valuable consideration, the receipt and sufficiency of which are 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 Secured Party and its lawful successors, endorsees, transferees and assigns, the prompt and
complete payment and performance by the Company and each other Guarantor when due (whether at the
stated maturity, by acceleration or otherwise) of all obligations and undertakings of the Company
and the Guarantors of whatever nature, monetary or otherwise, under the Notes, the Securities
Purchase Agreement, the Warrant, 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 Holders or the Collateral Agent 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 any of the Transaction
Documents, 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 Secured Parties, (b)
any defense, set-off or counterclaim (other than a defense of payment or performance or fraud or
misconduct by the Secured Parties) which may at any time be available to or be asserted by the
Company or any other Person against the Secured Parties, 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 Secured Parties, and each Guarantor shall remain liable to the Secured Parties 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 Secured Parties, no Guarantor shall be
entitled to be subrogated to any of the rights of the Secured Parties against the Company or any
other Guarantor or any collateral security or guarantee or right of offset held by the Secured
Parties 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 Secured Parties by the Company and the
Guarantors 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
Secured Parties, segregated from other funds of such Guarantor, and shall, forthwith upon receipt
by such Guarantor, be turned over to the Collateral Agent in the exact form received by such
Guarantor (duly indorsed by such Guarantor to the Collateral Agent, if required), to be applied
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against the Obligations, whether matured or unmatured, in such order as the Secured Parties
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 Secured Parties may be rescinded by the Secured Parties 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 Secured Parties, and the Transaction Documents
may be amended, modified, supplemented or terminated, in whole or in part, as the Secured Parties
may deem advisable from time to time, and any collateral security, guarantee or right of offset at
any time held by the Secured Parties for the payment of the Obligations may be sold, exchanged,
waived, surrendered or released. The Secured Parties 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.
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 Secured
Parties 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 Secured Parties, 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 Holder, 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 Holders, 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 Holders, 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 Secured Parties against any Guarantor. For the purposes hereof, “demand”
shall include the commencement and continuance of any legal proceedings.
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(b) Expenses; Indemnification.
(i) Each Guarantor agrees to pay, or reimburse the Collateral Agent, acting on behalf of the
Holders, 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.
(ii) Each Guarantor agrees to pay, and to save the Secured Parties 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 enforcement, performance and
administration of this Guarantee, except any such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements which result from the gross
negligence or willful misconduct of a Secured Party as determined by a final nonappealable decision
of a court of competent jurisdiction.
(iii) 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 Secured Parties 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 Holders, at any time and from time to time while an Event of Default
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 Secured Party 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 Secured Parties hereunder in
any currency arising hereunder or under the Security Agreement as the Collateral Agent may elect,
whether or not a Secured Party 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 Secured Party 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 Holders, may have.
1.9 Payments. In addition to the terms of the guaranty set forth in Section 1.1, 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
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behalf of the Holders, the entire amount of such Obligations as has been declared due and
payable to the Secured Parties. 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.
1.10 Release. Subject to Section 2, each Guarantor will be released from all liability
hereunder concurrently with the repayment and performance in full of the Obligations. No payment
made by the Company, any of the Guarantors, any other guarantor or any other Person or received or
collected by the Holders 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
(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), shall be deemed to
modify, reduce, release or otherwise affect the liability of any Guarantor hereunder which shall,
notwithstanding any such payment, 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 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 Holders 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 Secured Parties as of the date hereof 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 or
limited liability company 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”).
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3.2 Authorization; Enforcement. Each Guarantor has the requisite corporate or other
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 (or Persons performing similar
functions), shareholders or members, 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 Securities Purchase Agreement. The representations and warranties of the Company
set forth in the Securities Purchase Agreement as they relate to each Guarantor, each of which is
hereby incorporated herein by reference, are true and correct as of the date hereof, and the
Secured Parties 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 3.3, be deemed to be a reference to such Guarantor’s
knowledge.
3.4 Independence of Parties. The Secured Parties 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 Secured
Parties, 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 Secured
Parties.
3.5 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. COVENANTS.
4.1 Further Assurances. Each Guarantor covenants and agrees with the Collateral
Agent, on behalf of each Holder, 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 that is necessary to be taken or
not taken, as the case may be, so that no Event of Default 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.
4.2 Additional Guarantors. If the Company or a Guarantor creates or acquires any new
Subsidiary, then the Company or such Guarantor shall cause such new Subsidiary to become party
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to this Guarantee for all purposes of this Guarantee by executing and delivering an Assumption
Agreement in the form of Annex A hereto.
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 benefits 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 Holder may assign its rights hereunder in connection with any valid private sale
or transfer of the Notes in accordance with the terms thereof and of the other Transaction
Documents, as long as, as a condition precedent to such transfer, the transferee executes an
acknowledgement agreeing to be bound by the applicable provisions of this Guarantee, in which case
the term “Holder” shall be deemed to refer to such transferee as though such transferee were an
original party hereto. No Guarantor may assign its rights or obligations under this Guarantee.
5.3 Injunctive Relief. Each Guarantor acknowledges and agrees that a material breach
by it of its obligations hereunder will cause irreparable harm to each Secured Party and that the
remedy or remedies at law for any such breach will be inadequate and agrees, in the event of any
such material breach, in addition to all other available remedies, the Collateral Agent, acting on
behalf of the Holders, shall be entitled to an injunction restraining such 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.
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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. Any executed signature page delivered by facsimile or e-mail transmission shall be
binding to the same extent as an original executed signature page, with regard to any agreement
subject to the terms hereof or any amendment thereto.
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 Holder pursuant to the terms of this Guarantee shall be in
writing and shall be deemed delivered (i) when delivered personally 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 an 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:
c/o Echo Therapeutics, Inc.
00 Xxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attn: Chief Financial Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
00 Xxxxx Xxxxxxx
Xxxxxxxx, XX 00000
Attn: Chief Financial Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy (which shall not constitute notice) to:
Drinker Xxxxxx & Xxxxx LLP
One Xxxxx Square
00xx & Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
One Xxxxx Square
00xx & Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
If to the Collateral Agent:
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
000 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
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and if to any Holder, to such address for such party as shall appear on the signature page of the
Securities 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.
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 Guarantee or (ii) waiver of any agreement or other
obligation of the Guarantors under this Guarantee may be made or given except pursuant to a written
instrument executed by the Guarantors, the Collateral Agent and the Holders holding a majority of
the outstanding principal of the Notes. Any waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be duly executed and
delivered as of the date first above written.
| ECHO THERAPEUTICS, INC. (DE), AS GUARANTOR |
||||
| By: | Xxxxxxx X. Xxxxxx, M.D. | |||
| Xxxxxxx X. Xxxxxx, M.D. | ||||
| Chief Executive Officer | ||||
| SONTRA MEDICAL, INC., AS GUARANTOR |
||||
| By: | Xxxxxxx X. Xxxxxx, M.D. | |||
| Xxxxxxx X. Xxxxxx, M.D. | ||||
| Chief Executive Officer | ||||
| IMPERIUM ADVISERS, LLC, AS COLLATERAL AGENT |
||||
| By: | Xxxxxxx Xxxxxxx, Esq. | |||
| Xxxxxxx Xxxxxxx, Esq. | ||||
| General Counsel | ||||
| IMPERIUM MASTER FUND, LTD., AS HOLDER |
||||
| By: | Xxxxxxx Xxxxxxx, Esq. | |||
| Xxxxxxx Xxxxxxx, Esq. | ||||
| General Counsel | ||||
ANNEX A
THIS ASSUMPTION AGREEMENT, dated as of , 20
, is made by
, a
, in connection with the Subsidiary Guarantee, dated as of March 24, 2008 (as
amended, the “Guarantee”), entered into by Echo Therapeutics, Inc., a Minnesota corporation, and
its subsidiaries for the benefit of the collateral agent and the note holders party to the
Guarantee.
W I T N E S S E T H :
WHEREAS, the Guarantee requires the undersigned to become a party to the Guarantee; and
WHEREAS, the undersigned has agreed to execute and deliver this Assumption Agreement in order
to become a party to the Guarantee;
NOW, THEREFORE, IT IS AGREED:
1. Assumption. By executing and delivering this Assumption Agreement, the undersigned
hereby becomes a party to the Guarantee as a Guarantor (as defined in the Guarantee) thereunder
with the same force and effect as if originally named therein as a Guarantor and, without limiting
the generality of the foregoing, hereby expressly assumes all obligations and liabilities of a
Guarantor thereunder. The undersigned hereby represents and warrants that each of the
representations and warranties contained in Section 3 of the Guarantee is true and correct on and
as the date hereof as to the undersigned (after giving effect to this Assumption Agreement) as if
made on and as of such date.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND
TO BE PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be duly executed
and delivered as of the date first above written.
| [ADDITIONAL GUARANTOR] |
||||
| By: | ||||
| Title: | ||||
