GUARANTY
Exhibit
10.3
GUARANTY,
dated as of December 26, 2006 made by each of the undersigned (each a
"Guarantor",
and
collectively, the "Guarantors"),
in
favor of GOTTBETTER CAPITAL MASTER, LTD., a company organized under the laws
of
the Cayman Islands (the "Investor")
for
the "Buyers" (as defined below) party to the Securities Purchase Agreement,
dated as of even date herewith (as amended, restated or otherwise modified
from
time to time, the "Securities
Purchase Agreement").
WITNESSETH:
WHEREAS,
Pure Vanilla eXchange, Inc., a Nevada corporation (the "Parent"),
and
each party listed as a "Buyer" on the Schedule of Buyers attached thereto (each
a "Buyer",
and
collectively, the "Buyers")
are
parties to the Securities Purchase Agreement;
WHEREAS,
it is a condition precedent to the Buyers purchasing the Notes (as defined
below) that the Guarantors execute and deliver to the Investor a guaranty
guaranteeing all of the obligations of the Parent under the Securities Purchase
Agreement, the Notes and the Transaction Documents (as defined in the Securities
Purchase Agreement, the “Transaction
Documents”);
and
WHEREAS,
each Guarantor has determined that the execution, delivery and performance
of
this Guaranty directly benefits, and is in the best interest of, such
Guarantor;
NOW,
THEREFORE, in consideration of the premises and the agreements herein and in
order to induce the Buyers to perform under the Securities Purchase Agreement,
each Guarantor hereby agrees with each Buyer as follows:
SECTION
1. Definitions.
Reference is hereby made to the Securities Purchase Agreement and the "Notes"
(as defined therein) issued pursuant thereto (as such Notes may be amended,
restated, replaced or otherwise modified from time to time in accordance with
the terms thereof, collectively, the "Notes")
for a
statement of the terms thereof. All terms used in this Guaranty, which are
defined in the Securities Purchase Agreement or the Notes and not otherwise
defined herein, shall have the same meanings herein as set forth therein.
SECTION
2. Guaranty.
The
Guarantors, jointly and severally, hereby unconditionally and irrevocably,
guaranty the punctual payment, as and when due and payable, by stated maturity
or otherwise, of all Obligations (as defined in the Security Agreement) of
the
Parent from time to time owing by it in respect of the Securities Purchase
Agreement, the Notes and the other Transaction Documents, including, without
limitation, all interest that accrues after the commencement of any Insolvency
Proceeding (as defined in the Security Agreement) of the Parent or any
Guarantor, whether or not the payment of such interest is unenforceable or
is
not allowable due to the existence of such Insolvency Proceeding, and all fees,
commissions, expense reimbursements, indemnifications and all other amounts
due
or to become due under any of the Transaction Documents (such obligations,
to
the extent not paid by the Parent, being the "Guaranteed
Obligations"),
and
agrees to pay any and all expenses (including reasonable counsel fees and
expenses) reasonably incurred by the Investor in enforcing any rights under
this
Guaranty. Without limiting the generality of the foregoing, each Guarantor's
liability hereunder shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by the Parent to the Investor under
the
Securities Purchase Agreement and the Notes but for the fact that they are
unenforceable or not allowable due to the existence of an Insolvency Proceeding
involving any Guarantor or the Parent (each, a "Transaction
Party").
(a)
The
Guarantors, jointly and severally, guaranty that the Guaranteed Obligations
will
be paid strictly in accordance with the terms of the Transaction Documents,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Investor with
respect thereto. The obligations of each Guarantor under this Guaranty are
independent of the Guaranteed Obligations, and a separate action or actions
may
be brought and prosecuted against any Guarantor to enforce such obligations,
irrespective of whether any action is brought against any Transaction Party
or
whether any Transaction Party is joined in any such action or actions. The
liability of any Guarantor under this Guaranty shall be irrevocable, absolute
and unconditional irrespective of, and each Guarantor hereby irrevocably waives,
to the extent permitted by law, any defenses it may now or hereafter have in
any
way relating to, any or all of the following:
(i)
any
lack
of validity or enforceability of any Transaction Document or any agreement
or
instrument relating thereto;
(ii)
any
change in the time, manner or place of payment of, or in any other term of,
all
or any of the Guaranteed Obligations, or any other amendment or waiver of or
any
consent to departure from any Transaction Document, including, without
limitation, any increase in the Guaranteed Obligations resulting from the
extension of additional credit to any Transaction
Party
or
otherwise;
(iii)
any
taking, exchange, release or non-perfection of any Collateral (as defined in
the
Security Documents), or any taking, release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(iv)any
change, restructuring or termination of the corporate, limited liability company
or partnership structure or existence of any Transaction
Party;
or
(v)any
other
circumstance (including any statute of limitations) or any existence of or
reliance on any representation by the Investor that might otherwise constitute
a
defense available to, or a discharge of, any Transaction Party or any other
guarantor or surety.
This
Guaranty shall continue to be effective or be reinstated, as the case may be,
if
at any time any payment of any of the Guaranteed Obligations is rescinded or
must otherwise be returned by the Investor
or any
other Person upon the insolvency, bankruptcy or reorganization of any
Transaction Party or otherwise, all as though such payment had not been
made.
(b)
This
Guaranty is a continuing guaranty and shall (i) remain in full force and effect
until the indefeasible cash payment in full of the Guaranteed Obligations (other
than inchoate indemnity obligations) and/or complete conversion of all of the
Company's obligations under the Notes to equity securities of the Company and
payment of all other amounts payable under this Guaranty (other
than inchoate indemnity obligations) and
shall
not terminate for any reason prior to the respective Maturity Date of each
Note
(other than payment in full of the Notes and/or complete conversion of all
of
the Company's obligations under the Notes to equity securities of the Company)
and (ii) be binding upon each Guarantor and its respective successors and
assigns. This Guaranty shall inure to the benefit of and be enforceable by
the
Investor
and its
successors, and permitted pledgees, transferees and assigns. Without limiting
the generality of the foregoing sentence, the Investor or any Buyer may pledge,
assign or otherwise transfer all or any portion of its rights and obligations
under and subject to the terms of any Transaction Document to any other Person,
and such other Person shall thereupon become vested with all the benefits in
respect thereof granted to such Buyer herein or otherwise, in each case as
provided in the Securities Purchase Agreement or such Transaction
Document.
-2-
SECTION
4. Waivers.
To the
extent permitted by applicable law, each Guarantor hereby
waives promptness, diligence, notice of acceptance and any other notice with
respect to any of the Guaranteed Obligations and this Guaranty and any
requirement that the Investor exhaust any right or take any action against
any
Transaction Party or any other Person or any Collateral. The Guarantor
acknowledges that it will receive direct and indirect benefits from the
financing arrangements contemplated herein and that the waiver set forth in
this
Section 4 is knowingly made in contemplation of such benefits. The Guarantors
hereby waive any right to revoke this Guaranty, and acknowledges that this
Guaranty is continuing in nature and applies to all Guaranteed Obligations,
whether existing now or in the future.
SECTION
5. Subrogation.
No
Guarantor may exercise any rights that it may now or hereafter acquire against
any Transaction Party or any other guarantor that arise from the existence,
payment, performance or enforcement of any Guarantor's obligations under this
Guaranty, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Investor against any Transaction
Party
or any other guarantor or any Collateral, whether or not such claim, remedy
or
right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from any Transaction Party
or
any other guarantor, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security solely on account of such
claim, remedy or right, unless and until all of the Guaranteed Obligations
(other than inchoate indemnity obligations) and all other amounts payable under
this Guaranty (other than inchoate indemnity obligations) shall have
indefeasibly
been
paid
in full in cash. If any amount shall be paid to the Guarantor in violation
of
the immediately preceding sentence at any time prior to the later of the payment
in full in cash of the Guaranteed Obligations and all other amounts payable
under this Guaranty, such amount shall be held in trust for the benefit of
the
Investor and shall forthwith be paid to the Investor to be credited and applied
to the Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of the Transaction
Document, or to be held as Collateral for any Guaranteed Obligations or other
amounts payable under this Guaranty thereafter arising. If (a) any
Guarantor shall make payment to the Investor of all or any part of the
Guaranteed Obligations, and (b) all of the Guaranteed Obligations (other
than inchoate indemnity obligations) and all other amounts payable under this
Guaranty (other than inchoate indemnity obligations) shall indefeasibly
be
paid
in full in cash, the Investor will, at such Guarantor's request and expense,
execute and deliver to such Guarantor appropriate documents, without recourse
and without representation or warranty, necessary to evidence the transfer
by
subrogation to such Guarantor of an interest in the Guaranteed Obligations
resulting from such payment by such Guarantor.
-3-
SECTION
6. Representations,
Warranties and Covenants.
(a) Each
Guarantor hereby represents and warrants as of the date first written above
as
follows:
(i) The
Guarantor (A) is a corporation, limited liability company or limited partnership
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization as set forth on the signature pages hereto,
(B)
has all requisite corporate, limited liability company or limited partnership
power and authority to conduct its business as now conducted and as presently
contemplated and to execute and deliver this Guaranty and each other Transaction
Document to which the
Guarantor
is a
party, and to consummate the transactions contemplated hereby and thereby and
(C) is duly qualified to do business and is in good standing in each
jurisdiction in which the character of the properties owned or leased by it
or
in which the transaction of its business makes such qualification necessary
except where the failure to be so qualified would not result in a Material
Adverse Effect.
(ii) The
execution, delivery and performance by the
Guarantor
of this
Guaranty and each other Transaction Document to which the
Guarantor
is a
party (A) have been duly authorized by all necessary corporate, limited
liability company or limited partnership action, (B) do not and will not
contravene its charter or by-laws, its limited liability company or operating
agreement or its certificate of partnership or partnership agreement, as
applicable, or any applicable law or any contractual restriction binding on
the
Guarantor
or its
properties (except where the contravention of such contractual restriction
would
not result in a Material Adverse Effect), (C) do not and will not result in
or
require the creation of any lien (other than pursuant to any Transaction
Document) upon or with respect to any of its properties, and (D) do not and
will
not result in any default, noncompliance, suspension, revocation, impairment,
forfeiture or nonrenewal of any material permit, license, authorization or
approval applicable to it or its operations or any of its
properties.
(iii) No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority is required in connection with the due execution,
delivery and performance by the
Guarantor
of this
Guaranty or any of the other Transaction Documents to which the
Guarantor
is a
party (other than expressly provided for in any of the Transaction
Documents).
(iv) Each
of
this Guaranty and the other Transaction Documents to which the
Guarantor
is or
will be a party, when delivered, will be, a legal, valid and binding obligation
of the
Guarantor,
enforceable against the
Guarantor
in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, suretyship or
other similar laws and equitable principles (regardless of whether enforcement
is sought in equity or at law).
-4-
(v) There
is
no pending or, to the knowledge of the
Guarantor,
threatened action, suit or proceeding against the
Guarantor
or to
which any of the properties of the
Guarantor
is
subject, before any court or other governmental authority or any arbitrator
that
(A) if adversely determined, could reasonably be expected to have a Material
Adverse Effect or (B) relates to this Guaranty or any of the other Transaction
Documents to which the
Guarantor
is a
party or any transaction contemplated hereby or thereby.
(vi) The
Guarantor (A) has read and understands the terms and conditions of the
Securities Purchase Agreement and the other Transaction Documents, and (B)
now
has and will continue to have independent means of obtaining information
concerning the affairs, financial condition and business of the Parent and
the
other Transaction Parties, and has no need of, or right to obtain from any
Buyer, any credit or other information concerning the affairs, financial
condition or business of the Parent or the other Transaction Parties that may
come under the control of any Buyer.
(b) The
Guarantor
covenants and agrees that until indefeasible full and final payment of the
Guaranteed Obligations and/or complete conversion of all of the Company's
obligations under the Notes to equity securities of the Company, it will comply
with Sections 4[(j), (k), (l), (n) and (o)]of the Securities
Purchase Agreement
as if
the
Guarantor
were a
party thereto.
SECTION
7. Right
of Set-off.
Upon
the occurrence and during the continuance of any Event of Default, any
Buyer may, and is hereby authorized to, at any time and from time to time,
without notice to the Guarantors (any such notice being expressly waived by
each
Guarantor) and to the fullest extent permitted by law, set-off and apply any
and
all deposits (general or special, time or demand, provisional or final) at
any
time held and other indebtedness at any time owing by any Buyer to or for the
credit or the account of any Guarantor against any and all obligations of the
Guarantors now or hereafter existing under this Guaranty or any other
Transaction Document, irrespective of whether or not any Buyer shall have made
any demand under this Guaranty or any other Transaction Document and although
such obligations may be contingent or unmatured. Each Buyer agrees to notify
the
relevant Guarantor promptly after any such set-off and application made by
such
Buyer, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of any Buyer under this
Section 7 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which such Buyer may have under this
Guaranty or any other Transaction Document in law or otherwise.
SECTION
8. Notices,
Etc.
All
notices and other communications provided for hereunder shall be in writing
and
shall be mailed, telecopied or delivered, if to any Guarantor, to it at its
address set forth on the signature page hereto, or if to the Investor or any
Buyer, to it at its respective address set forth in the Securities Purchase
Agreement; or as to either such Person at such other address as shall be
designated by such Person in a written notice to such other Person complying
as
to delivery with the terms of this Section 8. All such notices and other
communications shall be effective (i) if mailed (by certified mail, postage
prepaid and return receipt requested), when received or three Business Days
after deposited in the mails, whichever occurs first; (ii) if telecopied, when
transmitted and confirmation is received, provided same is on a Business Day
and, if not, on the next Business Day; or (iii) if delivered by hand, upon
delivery, provided same is on a Business Day and, if not, on the next Business
Day.
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SECTION
9. CONSENT
TO JURISDICTION; SERVICE OF PROCESS AND VENUE.
ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER
TRANSACTION DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX
IN
THE COUNTY OF NEW YORK OR OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
GUARANTOR HEREBY IRREVOCABLY ACCEPTS IN RESPECT OF ITS PROPERTY, GENERALLY
AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS.
EACH
GUARANTOR HEREBY IRREVOCABLY APPOINTS THE SECRETARY OF STATE OF THE STATE OF
NEW
YORK AS ITS AGENT FOR SERVICE OF PROCESS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING AND FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF
ANY
OF THE AFOREMENTIONED COURTS AND IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, AT ITS
ADDRESS FOR NOTICES AS SET FORTH ON THE SIGNATURE PAGE HERETO AND TO THE
SECRETARY OF STATE OF THE STATE OF NEW YORK, SUCH SERVICE TO BECOME EFFECTIVE
TEN (10) DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
THE
INVESTOR TO SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST EACH GUARANTOR IN ANY
OTHER JURISDICTION. ANY GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES,
TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE JURISDICTION OR LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT
IN
ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS
BEEN
BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY GUARANTOR HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY, EACH GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT
OF
ITS OBLIGATIONS UNDER THIS GUARANTY AND THE OTHER TRANSACTION
DOCUMENTS.
SECTION
10. WAIVER
OF JURY TRIAL, ETC.
EACH
GUARANTOR HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS GUARANTY OR THE OTHER
TRANSACTION DOCUMENTS, OR UNDER ANY AMENDMENT, WAIVER, CONSENT, INSTRUMENT,
DOCUMENT OR OTHER AGREEMENT DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED
IN
CONNECTION HEREWITH OR THEREWITH, OR ARISING FROM ANY FINANCING RELATIONSHIP
EXISTING IN CONNECTION WITH THIS GUARANTY OR THE OTHER TRANSACTION DOCUMENTS,
AND AGREES THAT ANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY. EACH GUARANTOR CERTIFIES THAT NO OFFICER,
REPRESENTATIVE, AGENT OR ATTORNEY OF THE INVESTOR OR ANY BUYER HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT ANY BUYER WOULD NOT, IN THE EVENT OF ANY ACTION,
PROCEEDING OR COUNTERCLAIM, SEEK TO ENFORCE THE FOREGOING WAIVERS. EACH
GUARANTOR HEREBY ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT
FOR
THE INVESTOR
ENTERING
INTO THIS AGREEMENT.
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SECTION
11. Taxes.
(a)
All
payments made by any Guarantor hereunder or under any other Transaction Document
shall be made in accordance with the terms of the respective Transaction
Document and shall be made without set-off, counterclaim, deduction or other
defense. All such payments shall be made free and clear of and without deduction
for any present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding
taxes
imposed on the net income of any Buyer by the jurisdiction in which such Buyer
is organized or where it has its principal lending office (all such nonexcluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities,
collectively or individually, "Taxes").
If any
Guarantor shall be required to deduct or to withhold any Taxes from or in
respect of any amount payable hereunder or under any other Transaction
Document;
(i) the
amount so payable shall be increased to the extent necessary so that after
making all required deductions and withholdings (including Taxes on amounts
payable to any Buyer pursuant to this sentence) each Buyer receives an amount
equal to the sum it would have received had no such deduction or withholding
been made,
(ii) such
Guarantor shall make such deduction or withholding,
(iii) such
Guarantor shall pay the full amount deducted or withheld to the relevant
taxation authority in accordance with applicable law, and
(iv) as
promptly as possible thereafter, such Guarantor shall send the Buyers an
official receipt (or, if an official receipt is not available, such other
documentation as shall be satisfactory to the Investor, as the case may be)
showing payment. In addition, each Guarantor agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or from the
execution, delivery, registration or enforcement of, or otherwise with respect
to, this Agreement or any other Transaction Document (collectively,
"Other
Taxes").
(b) Each
Guarantor hereby indemnifies and agrees to hold the Investor and each Buyer
(each an
"Indemnified Party")
harmless from and against Taxes or Other Taxes (including, without limitation,
any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under
this Section 11) paid by any Indemnified Party as a result of any payment
made hereunder or from the execution, delivery, registration or enforcement
of,
or otherwise with respect to, this Agreement or any other Transaction Document,
and any liability (including penalties, interest and expenses for nonpayment,
late payment or otherwise) arising therefrom or with respect thereto, whether
or
not such Taxes or Other Taxes were correctly or legally asserted. This
indemnification shall be paid within 30 days from the date on which the Investor
or such Buyer makes written demand therefor, which demand shall identify the
nature and amount of such Taxes or Other Taxes.
-7-
(c) If
any
Guarantor fails to perform any of its obligations under this Section 11,
such Guarantor shall indemnify the Investor and each Buyer for any taxes,
interest or penalties that may become payable as a result of any such failure.
The obligations of the Guarantors under this Section 11 shall survive the
termination of this Guaranty and the payment of the Obligations and all other
amounts payable hereunder.
SECTION
12. Miscellaneous.
(a)
Each
Guarantor will make each payment hereunder in lawful money of the United States
of America and in immediately available funds to each Buyer, at such address
specified by such Buyer from time to time by notice to the
Guarantors.
(b)
No
amendment or waiver of any provision of this Guaranty and no consent to any
departure by any Guarantor therefrom shall in any event be effective unless
the
same shall be in writing and signed by each Guarantor and each Buyer, and then
such waiver or consent shall be effective only in the specific instance and
for
the specific purpose for which given.
(c)
No
failure on the part of any Buyer to exercise, and no delay in exercising, any
right hereunder or under any other Transaction Document shall operate as a
waiver thereof, nor shall any single or partial exercise of any right hereunder
or under any Transaction Document preclude any other or further exercise thereof
or the exercise of any other right. The rights and remedies of the Investor
and
the Buyers provided herein and in the other Transaction Documents are cumulative
and are in addition to, and not exclusive of, any rights or remedies provided
by
law. The rights of the Investor and the Buyers under any Transaction Document
against any party thereto are not conditional or contingent on any attempt
by
the Investor or any Buyer to exercise any of their respective rights under
any
other Transaction Document against such party or against any other
Person.
(d)
Any
provision of this Guaranty that 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 portions
hereof or affecting the validity or enforceability of such provision in any
other jurisdiction.
(e)
This
Guaranty shall (i) be binding on each Guarantor and its respective successors
and assigns, and (ii) inure, together with all rights and remedies of the
Investor hereunder, to the benefit of the Investor, the Buyers and their
respective successors, transferees and assigns. Without limiting the generality
of clause (ii) of the immediately preceding sentence, the Investor and any
Buyer
may assign or otherwise transfer its rights and obligations under the Securities
Purchase Agreement or any other Transaction Document to any other Person in
accordance with the terms thereof, and such other Person shall thereupon become
vested with all of the benefits in respect thereof granted to the Investor
or
Buyer, as the case may be, herein or otherwise. None of the rights or
obligations of any Guarantor hereunder may be assigned or otherwise transferred
without the prior written consent of each Buyer.
-8-
(f)
This
Guaranty reflects the entire understanding of the transaction contemplated
hereby and shall not be contradicted or qualified by any other agreement, oral
or written, entered into before the date hereof.
(g)
Section
headings herein are included for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
(h)
THIS
GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED THEREIN
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
[REMAINDER
OF THIS PAGE INTENTIONALLY LEFT BLANK]
-9-
IN
WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed by
its
respective duly authorized officer, as of the date first above
written.
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PVNX
ACQUISITION CORP.
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| By: | /s/ Xxxxxx Xxxxxx | |
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Name:
Xxxxxx Xxxxxx
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| Title: President and Director | ||
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Address:
000 Xxxxx Xxxxxx
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Xxx
Xxxx, XX 00000
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Jurisdiction:
Delaware
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