SUBSIDIARY GUARANTEE
SUBSIDIARY
GUARANTEE, dated as of July 2, 2009 (this “Guarantee”), made by
each of the signatories hereto (together with any other entity that may become a
party hereto as provided herein, (the “Guarantors”), in
favor of OmniReliant Holdings, Inc. (the "Purchaser") to that
certain Securities Purchase Agreement, dated as of the date hereof, between
Beyond Commerce, Inc., a Nevada corporation (the “Company”) and the
Purchaser.
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I T N E S S E T H:
WHEREAS,
pursuant to that certain Amended and Restated Securities Purchase Agreement,
dated as of the date hereof, by and between the Company and the Purchasers (the
“Purchase
Agreement”), the Company has agreed to sell and issue to the Purchasers,
and the Purchasers have agreed to purchase from the Company the Company’s
Secured Original Issue Discount Convertible Debentures, due 12 months from the
date of their respective issuances (the “Debentures”), subject
to the terms and conditions set forth therein; and
WHEREAS, each Guarantor will directly
benefit from the extension of credit to the Company represented by the issuance
of the Debentures; and
NOW, THEREFORE, in consideration of the
premises and to induce the Purchasers to enter into the Purchase Agreement and
to carry out the transactions contemplated thereby, each Guarantor hereby agrees
with the Purchasers as follows:
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1. Definitions. Unless
otherwise defined herein, terms defined in the Purchase Agreement and used
herein shall have the meanings given to them in the Purchase Agreement. The
words “hereof,” “herein,” “hereto” and “hereunder” and words of similar import
when used in this Guarantee shall refer to this Guarantee as a whole and not to
any particular provision of this Guarantee, and Section and Schedule references
are to this Guarantee unless otherwise specified. The meanings given to terms
defined herein shall be equally applicable to both the singular and plural forms
of such terms. The following terms shall have the following
meanings:
“Guarantee” means this
Subsidiary Guarantee, as the same may be amended, supplemented or otherwise
modified from time to time.
“Obligations” means
the collective reference to all obligations and undertakings of the Company of
whatever nature, monetary or otherwise, under the Debentures, the Purchase
Agreement, the Security Agreement, the Warrants, the Security and Pledge
Agreement or any other future agreement or obligations undertaken by the Company
to the Purchasers, together with all reasonable attorneys’ fees, disbursements
and all other costs and expenses of collection incurred by Purchasers in
enforcing any of such Obligations and/or this Guarantee.
2. Guarantee.
(a) Guarantee.
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(i)
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The
Guarantors hereby, jointly and severally, unconditionally and irrevocably,
guarantee to the Purchasers and their respective successors, indorsees,
transferees and assigns, the prompt and complete payment and performance
by the Company when due (whether at the stated maturity, by acceleration
or otherwise) of the Obligations.
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(ii)
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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 2(b)).
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(iii)
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Each
Guarantor agrees that the Obligations may at any time and from time to
time exceed the amount of the liability of such Guarantor hereunder
without impairing the guarantee contained in this Section 2 or affecting
the rights and remedies of the Purchasers
hereunder.
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(iv)
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The
guarantee contained in this Section 2 shall remain in full force and
effect until all the Obligations and the obligations of each Guarantor
under the guarantee contained in this Section 2 shall have been satisfied
by payment in full.
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(v)
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No
payment made by the Company, any of the Guarantors, any other guarantor or
any other Person or received or collected by the Purchasers from the
Company, any of the Guarantors, any other guarantor or any other Person by
virtue of any action or proceeding or any set-off or appropriation or
application at any time or from time to time in reduction of or in payment
of the Obligations shall be deemed to modify, reduce, release or otherwise
affect the liability of any Guarantor hereunder which shall,
notwithstanding any such payment (other than any payment made by such
Guarantor in respect of the Obligations or any payment received or
collected from such Guarantor in respect of the Obligations), remain
liable for the Obligations up to the maximum liability of such Guarantor
hereunder until the Obligations are paid in
full.
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(vi)
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Notwithstanding
anything to the contrary in this Agreement, with respect to any defaulted
non-monetary Obligations the specific performance of which by the
Guarantors is not reasonably possible (e.g. the issuance of the Company's
Common Stock), the Guarantors shall only be liable for making the
Purchasers whole on a monetary basis for the Company's failure to perform
such Obligations in accordance with the Transaction
Documents.
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(b) 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 2(c). The provisions of
this Section 2(b) shall in no respect limit the obligations and liabilities of
any Guarantor to the Purchasers, and each Guarantor shall remain liable to the
Purchasers for the full amount guaranteed by such Guarantor
hereunder.
(c) No
Subrogation. Notwithstanding any payment made by any Guarantor
hereunder or any set-off or application of funds of any Guarantor by the
Purchasers, no Guarantor shall be entitled to be subrogated to any of the rights
of the Purchasers against the Company or any other Guarantor or any collateral
security or guarantee or right of offset held by the Purchasers for the payment
of the Obligations, nor shall any Guarantor seek or be entitled to seek any
contribution or reimbursement from the Company or any other Guarantor in respect
of payments made by such Guarantor hereunder, until all amounts owing to the
Purchasers by the Company on account of the Obligations are paid in full. If any
amount shall be paid to any Guarantor on account of such subrogation rights at
any time when all of the Obligations shall not have been paid in full, such
amount shall be held by such Guarantor in trust for the Purchasers, segregated
from other funds of such Guarantor, and shall, forthwith upon receipt by such
Guarantor, be turned over to the Purchasers in the exact form received by such
Guarantor (duly indorsed by such Guarantor to the Purchasers, if required), to
be applied against the Obligations, whether matured or unmatured, in such order
as the Purchasers may determine.
(d) Amendments, Etc. With
Respect to the Obligations. Each Guarantor shall remain obligated
hereunder notwithstanding that, without any reservation of rights against any
Guarantor and without notice to or further assent by any Guarantor, any demand
for payment of any of the Obligations made by the Purchasers may be rescinded by
the Purchasers and any of the Obligations continued, and the Obligations, or the
liability of any other Person upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may,
from time to time, in whole or in part, be renewed, extended, amended, modified,
accelerated, compromised, waived, surrendered or released by the Purchasers, and
the Purchase Agreement and the other Transaction Documents and any other
documents executed and delivered in connection therewith may be amended,
modified, supplemented or terminated, in whole or in part, as the Purchasers may
deem advisable from time to time, and any collateral security, guarantee or
right of offset at any time held by the Purchasers for the payment of the
Obligations may be sold, exchanged, waived, surrendered or released. The
Purchasers shall have no obligation to protect, secure, perfect or insure any
Lien at any time held by them as security for the Obligations or for the
guarantee contained in this Section 2 or any property subject
thereto.
(e) Guarantee Absolute and
Unconditional. Each Guarantor waives any and all notice of the creation,
renewal, extension or accrual of any of the Obligations and notice of or proof
of reliance by the Purchasers upon the guarantee contained in this Section 2 or
acceptance of the guarantee contained in this Section 2; the Obligations, and
any of them, shall conclusively be deemed to have been created, contracted or
incurred, or renewed, extended, amended or waived, in reliance upon the
guarantee contained in this Section 2; and all dealings between the Company and
any of the Guarantors, on the one hand, and the Purchasers, on the other hand,
likewise shall be conclusively presumed to have been had or consummated in
reliance upon the guarantee contained in this Section 2. 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. Each Guarantor
understands and agrees that the guarantee contained in this Section 2 shall be
construed as a continuing, absolute and unconditional guarantee of payment
without regard to (a) the validity or enforceability of the Purchase Agreement
or any other Transaction Document, any of the Obligations or any other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Purchasers, (b) any
defense, set-off or counterclaim (other than a defense of payment or performance
or fraud or misconduct by Purchasers) which may at any time be available to or
be asserted by the Company or any other Person against the Purchasers, or (c)
any other circumstance whatsoever (with or without notice to or knowledge of the
Company or such Guarantor) which constitutes, or might be construed to
constitute, an equitable or legal discharge of the Company for the Obligations,
or of such Guarantor under the guarantee contained in this Section 2, in
bankruptcy or in any other instance. When making any demand hereunder or
otherwise pursuing its rights and remedies hereunder against any Guarantor, the
Purchasers may, but shall be under no obligation to, make a similar demand on or
otherwise pursue such rights and remedies as they 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 Purchasers to make any such demand, to pursue such other
rights or remedies or to collect any payments from the Company, any other
Guarantor or any other Person or to realize upon any such collateral security or
guarantee or to exercise any such right of offset, or any release of the
Company, any other Guarantor or any other Person or any such collateral
security, guarantee or right of offset, shall not relieve any Guarantor of any
obligation or liability hereunder, and shall not impair or affect the rights and
remedies, whether express, implied or available as a matter of law, of the
Purchasers against any Guarantor. For the purposes hereof, "demand" shall
include the commencement and continuance of any legal proceedings.
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(f) Reinstatement. The
guarantee contained in this Section 2 shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations is rescinded or must otherwise be restored or returned by
the Purchasers 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.
(g) Payments. Each
Guarantor hereby guarantees that payments hereunder will be paid to the
Purchasers without set-off or counterclaim in U.S. dollars at the address set
forth or referred to in the Purchase Agreement.
3. Representations and
Warranties. Each Guarantor hereby makes the following representations and
warranties to Purchasers as of the date hereof:
(a) Organization and
Qualification. The Guarantor is a corporation, duly incorporated, validly
existing and in good standing under the laws of the applicable jurisdiction set
forth on Schedule 1, with the requisite corporate power and authority to own and
use its properties and assets and to carry on its business as currently
conducted. The Guarantor has no subsidiaries other than those identified as such
on the Disclosure Schedules to the Purchase Agreement. The Guarantor is duly
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction in which the nature of the business conducted or property
owned by it makes such qualification necessary, except where the failure to be
so qualified or in good standing, as the case may be, could not, individually or
in the aggregate, (x) adversely affect the legality, validity or enforceability
of any of this Guaranty 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 Guaranty
(a "Material Adverse
Effect").
(b) Authorization;
Enforcement. The Guarantor has the requisite corporate power
and authority to enter into and to consummate the transactions contemplated by
this Guaranty, and otherwise to carry out its obligations hereunder. The
execution and delivery of this Guaranty by the 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. This Guaranty has been
duly executed and delivered by the Guarantor and constitutes the valid and
binding obligation of the Guarantor enforceable against the 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.
(c) No Conflicts. The
execution, delivery and performance of this Guaranty by the Guarantor and the
consummation by the Guarantor of the transactions contemplated thereby do not
and will not (i) conflict with or violate any provision of its Certificate of
Incorporation or By-laws or (ii) conflict with, constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Guarantor
is a party, or (iii) result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental
authority to which the Guarantor is subject (including Federal and state
securities laws and regulations), or by which any material property or asset of
the Guarantor is bound or affected, except in the case of each of clauses (ii)
and (iii), such conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations as could not, individually or in the aggregate,
have or result in a Material Adverse Effect. The business of the Guarantor is
not being conducted in violation of any law, ordinance or regulation of any
governmental authority, except for violations which, individually or in the
aggregate, do not have a Material Adverse Effect.
(d) Consents and
Approvals. The Guarantor is not required to obtain any consent, waiver,
authorization or order of, or make any filing or registration with, any court or
other federal, state, local, foreign or other governmental authority or other
person in connection with the execution, delivery and performance by the
Guarantor of this Guaranty.
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(e) Purchase Agreement.
The representations and warranties of the Company set forth in the Purchase
Agreement as they relate to such Guarantor, each of which is hereby incorporated
herein by reference, are true and correct as of each time such representations
are deemed to be made pursuant to such Purchase Agreement, and the Purchasers
shall be entitled to rely on each of them as if they were fully set forth
herein, provided, that each reference in each such representation and warranty
to the Company's knowledge shall, for the purposes of this Section 3, be deemed
to be a reference to such Guarantor's knowledge.
(f) Foreign
Law. Each Guarantor has consulted with appropriate foreign
legal counsel with respect to any of the above representations for which
non-U.S. law is applicable. Such foreign counsel have advised each applicable
Guarantor that such counsel knows of no reason why any of the above
representations would not be true and accurate. Such foreign counsel were
provided with copies of this Subsidiary Guarantee and the Transaction Documents
prior to rendering their advice.
4. Covenants.
(a) Each
Guarantor covenants and agrees with the Purchasers that, from and after the date
of this Guarantee until the Obligations shall have been paid in full, such
Guarantor shall take, and/or shall refrain from taking, as the case may be, each
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.
(b) So long
as any of the Obligations are outstanding, each Guarantor will not directly or
indirectly on or after the date of this Guarantee:
i. except with the
prior written consent of the Agent (as defined in the Security
Agreement), enter into, create, incur,
assume or suffer to exist any indebtedness
for borrowed money of any kind, including but not limited to, a guarantee, on or
with respect to any of its property or assets now owned or hereafter acquired or
any interest therein or any income or profits therefrom that is senior to, or pari passu with, in any respect,
such Guarantor’s obligations hereunder;
ii. enter into, create, incur, assume or suffer to exist any
liens of any kind, on or with respect to any of its property or assets now owned
or hereafter acquired or any interest therein or any income or profits
therefrom that is senior to, in any respect, such Guarantor’s obligations
hereunder;
iii. amend its certificate of incorporation, bylaws or other
charter documents so as to adversely affect any rights of the Holder hereunder;
iv. repay,
repurchase or offer to repay, repurchase or otherwise acquire more than a de
minimis number of shares of its Common Stock or Common Stock
Equivalents;
v. enter
into any agreement with respect to any of the foregoing; or
vi. pay cash
dividends on any equity securities of the Company.
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5. Miscellaneous.
(a) Amendments in
Writing. None of the terms or provisions of this Guarantee may be waived,
amended, supplemented or otherwise modified except in writing by the
Purchasers.
(b) Notices. All notices,
requests and demands to or upon the Purchasers or any Guarantor hereunder shall
be effected in the manner provided for in the Purchase Agreement; provided that any
such notice, request or demand to or upon any Guarantor shall be addressed to
such Guarantor at its notice address at: 0000 Xxxxx Xxxxx, Xxxxx 0000,
Xxxxxxxxx, XX 00000.
(c) No Waiver By Course Of
Conduct; Cumulative Remedies. The Purchasers shall not by any act (except
by a written instrument pursuant to Section 5(a)), delay, indulgence, omission
or otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any default under the Transaction Documents or Event of Default.
No failure to exercise, nor any delay in exercising, on the part of the
Purchasers, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by the Purchasers of any right
or remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Purchasers would otherwise have on any future
occasion. The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
(d) Enforcement Expenses;
Indemnification.
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(i)
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Each
Guarantor agrees to pay, or reimburse the Purchasers for, all its costs
and expenses incurred in collecting against such Guarantor under the
guarantee contained in Section 2 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
Purchasers.
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(ii)
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Each
Guarantor agrees to pay, and to save the Purchasers harmless from, any and
all liabilities with respect to, or resulting from any delay in paying,
any and all stamp, excise, sales or other taxes which may be payable or
determined to be payable in connection with any of the transactions
contemplated by this Guarantee.
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(iii)
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Each
Guarantor agrees to pay, and to save the Purchasers harmless from, any and
all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Guarantee to the extent the Company
would be required to do so pursuant to the Purchase
Agreement.
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(iv)
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The
agreements in this Section shall survive repayment of the Obligations and
all other amounts payable under the Purchase Agreement and the other
Transaction Documents.
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(e) Successor and
Assigns. This Guarantee shall be binding upon the successors and assigns
of each Guarantor and shall inure to the benefit of the Purchasers and their
respective successors and assigns; provided that no Guarantor may assign,
transfer or delegate any of its rights or obligations under this Guarantee
without the prior written consent of the Purchasers.
(f) Set-Off. Each
Guarantor hereby irrevocably authorizes the Purchasers 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 the Purchasers to
or for the credit or the account of such Guarantor, or any part thereof in such
amounts as the Purchasers may elect, against and on account of the obligations
and liabilities of such Guarantor to the Purchasers hereunder and claims of
every nature and description of the Purchasers against such Guarantor, in any
currency, whether arising hereunder, under the Purchase Agreement, any other
Transaction Document or otherwise, as the Purchasers may elect, whether or not
the Purchasers have made any demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. The Purchasers shall
notify such Guarantor promptly of any such set-off and the application made by
the Purchasers 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 the Purchasers under this Section are in addition to other rights and
remedies(including, without limitation, other rights of set-off) which the
Purchasers may have.
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(g) Counterparts. This
Guarantee may be executed by one or more of the parties to this Guarantee on any
number of separate counterparts (including by telecopy), and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
(h) Severability. Any
provision of this Guarantee 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.
(i) Section Headings. The
Section headings used in this Guarantee are for convenience of reference only
and are not to affect the construction hereof or be taken into consideration in
the interpretation hereof.
(j) Integration. This
Guarantee and the other Transaction Documents represent the agreement of the
Guarantors and the Purchasers with respect to the subject matter hereof and
thereof, and there are no promises, undertakings, representations or warranties
by the Purchasers relative to subject matter hereof and thereof not expressly
set forth or referred to herein or in the other Transaction
Documents.
(k) Governing Law. THIS
GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY PRINCIPLES OF
CONFLICTS OF LAWS.
(l) Submission to
Jurisdictional; Waiver. Each Guarantor hereby
irrevocably
and unconditionally:
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(i)
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submits
for itself and its property in any legal action or proceeding relating to
this Guarantee and the other Transaction Documents to which it is a party,
or for recognition and enforcement of any judgment in respect thereof, to
the non-exclusive general jurisdiction of the Courts of the State of New
York, located in New York County, New York, the courts of the United
States of America for the Southern District of New York, and appellate
courts from any thereof;
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(ii)
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consents
that any such action or proceeding may be brought in such courts and
waives any objection that it may now or hereafter have to the venue of any
such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or
claim the same;
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(iii)
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agrees
that service of process in any such action or proceeding may be effected
by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Guarantor at
its address referred to in the Purchase Agreement or at such other address
of which the Purchasers shall have been notified pursuant
thereto;
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(iv)
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agrees
that nothing herein shall affect the right to effect service of process in
any other manner permitted by law or shall limit the right to xxx in any
other jurisdiction; and
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(v)
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waives,
to the maximum extent not prohibited by law, any right it may have to
claim or recover in any legal action or proceeding referred to in this
Section any special, exemplary, punitive or consequential
damages.
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(m) Acknowledgements. Each
Guarantor hereby acknowledges that:
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(i)
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it
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;
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(ii)
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the
Purchasers have no fiduciary relationship with or duty to any Guarantor
arising out of or in connection with this Guarantee or any of the other
Transaction Documents, and the relationship between the Guarantors, on the
one hand, and the Purchasers, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor;
and
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(iii)
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no
joint venture is created hereby or by the other Transaction Documents or
otherwise exists by virtue of the transactions contemplated hereby among
the Guarantors and the Purchasers.
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(n) Additional
Guarantors. The Company shall cause each of its subsidiaries
formed or acquired on or subsequent to the date hereof to become a Guarantor for
all purposes of this Guarantee by executing and delivering an
Assumption
Agreement in the form of Annex 1 hereto.
(o) Release of
Guarantors. Subject to Section 2.6, each Guarantor will be released from
all liability hereunder concurrently with the repayment in full of all amounts
owed under the Purchase Agreement, the Debentures and the other Transaction
Documents.
(p) Seniority. The
Obligations of each of the Guarantors hereunder rank senior in priority to any
other unsecured Debt (as defined in the Debentures) of such
Guarantor.
(q) Waiver of Jury Trial.
EACH GUARANTOR AND, BY ACCEPTANCE OF THE BENEFITS HEREOF, THE PURCHASERS, HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS GUARANTEE AND FOR ANY COUNTERCLAIM
THEREIN.
IN
WITNESS WHEREOF, each of the undersigned has caused this Guarantee
to be
duly executed and delivered as of the date first above written.
XXXXX.XXX,
INC.
By:
/s/ Xxxxxx J,
XxXxxxx
Name:
Xxxxxx J, XxXxxxx
Title: Chief
Executive Officer
LOCAL
AD LINK, INC.
By: /s/ Xxxxxx J, XxXxxxx
Name:
Xxxxxx J, XxXxxxx
Title: Chief
Executive Officer
OMNIRELIANT
HOLDINGS, INC.
By: /s/
Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Chief Executive
Officer
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SCHEDULE
1
GUARANTORS
The
following are the names, notice addresses and jurisdiction of organization of
each Guarantor.
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COMPANY
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JURISDICTION OF INCORPORATION | OWNED BY PERCENTAGE | |
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Xxxxx.xxx,
Inc.
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Nevada | 100% | |
| Local Ad Link, Inc. | Nevada | 100% | |
The
address for the two subsidiaries is: 0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000,
Xxxxxxxxx, XX 00000.
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Annex 1
to
ASSUMPTION
AGREEMENT, dated as of ____ __, ______ made by ______________________________, a
______________ corporation (the "Additional
Guarantor"), in favor of the Purchasers pursuant to the Purchase
Agreement referred to below. All capitalized terms not defined herein shall have
the meaning ascribed to them in such Purchase Agreement.
W
I T N E S S E T H :
WHEREAS,
[COMPANY], a Delaware corporation (the "Company") and the
Purchasers have entered into a Securities Purchase Agreement, dated as of
February ___, 2005 (as amended, supplemented or otherwise modified from time to
time, the "Purchase
Agreement");
WHEREAS,
in connection with the Purchase Agreement, the Company and its Subsidiaries
(other than the Additional Guarantor) have entered into the Subsidiary
Guarantee, dated as of [______________ ____, 200__ (as amended, supplemented or
otherwise modified from time to time, the "Guarantee") in favor
of the Purchasers;
WHEREAS,
the Purchase Agreement requires the Additional Guarantor to become a party to
the Guarantee; and
WHEREAS,
the Additional Guarantor has agreed to execute and
deliver
this Assumption Agreement in order to become a party to the
Guarantee;
NOW, THEREFORE, IT IS
AGREED:
1. Guarantee. By
executing and delivering this Assumption Agreement, the Additional Guarantor, as
provided in Section 5.14 of the Guarantee, hereby becomes a party to the
Guarantee as a Guarantor 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 information set forth in Annex 1-A hereto is hereby
added to the information set forth in Schedule 1 to the Guarantee. The
Additional Guarantor 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 such Additional Guarantor (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.
10
IN
WITNESS WHEREOF, the undersigned has caused this Assumption Agreement
to be duly executed and delivered as of the date first above
written.
[ADDITIONALGUARANTOR]
By:
Name:
Title:
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