SUBSIDIARY GUARANTY
July 14, 2005
FOR VALUE RECEIVED, and in consideration of note purchases from, loans
made or to be made or credit otherwise extended or to be extended by Laurus
Master Fund, Ltd. ("Laurus") to or for the account of On the Go Healthcare,
Inc., a Delaware corporation ("Debtor"), from time to time and at any time and
for other good and valuable consideration and to induce Xxxxxx, in its
discretion, to purchase such notes, make such loans or extensions of credit
and to make or grant such renewals, extensions, releases of collateral or
relinquishments of legal rights as Xxxxxx may deem advisable, each of the
undersigned (and each of them if more than one, the liability under this
Guaranty being joint and several) (jointly and severally referred to as
"Guarantors " or "the undersigned") irrevocably and unconditionally guarantees
to Laurus, its successors, endorsees and assigns the prompt payment when due
(whether by acceleration or otherwise) of all present and future obligations
and liabilities of any and all kinds of Debtor to Laurus and of all
instruments of any nature evidencing or relating to any such obligations
and liabilities upon which Debtor or one or more parties and Debtor is or may
become liable to Laurus, whether incurred by Debtor as maker, endorser, drawer,
acceptor, guarantors, accommodation party or otherwise, and whether due or to
become due, secured or unsecured, absolute or contingent, joint or several,
and however or whenever acquired by Laurus, whether arising under, out of, or
in connection with (i) that certain Security and Purchase Agreement dated as of
the date hereof by and between the Debtor and Laurus (the "Security and
Purchase Agreement") and (ii) each Ancillary Agreement referred to in the
Security and Purchase Agreement (the Security and Purchase Agreement and each
Ancillary Agreement, as each may be amended, modified, restated or supplemented
from time to time, are collectively referred to herein as the "Documents"),
or any documents, instruments or agreements relating to or executed in
connection with the Documents or any documents, instruments or agreements
referred to therein or otherwise, or any other indebtedness, obligations or
liabilities of the Debtor to Laurus, whether now existing or hereafter
arising, direct or indirect, liquidated or unliquidated, absolute or
contingent, due or not due and whether under, pursuant to or evidenced by a
note, agreement, guaranty, instrument or otherwise (all of which are herein
collectively referred to as the "Obligations"), and irrespective of the
genuineness, validity, regularity or enforceability of such Obligations, or
of any instrument evidencing any of the Obligations or of any collateral
therefor or of the existence or extent of such collateral, and irrespective
of the allowability, allowance or disallowance of any or all of the
Obligations in any case commenced by or against Debtor under Title 11,
United States Code, the Bankruptcy and Insolvency Act (Canada) (the "BIA")
and the Companies' Creditors Arrangement Act (the "CCAA") including, without
limitation, obligations or indebtedness of Debtor for post-petition interest,
fees, costs and charges that would have accrued or been added to the
Obligations but for the commencement of such case. Terms not otherwise defined
herein shall have the meaning assigned such terms in the Security and Purchase
Agreement. In furtherance of the foregoing, the undersigned xxxxxx agrees as
follows:
1
1. No Impairment. Laurus may at any time and from time to time, either
before or after the maturity thereof, without notice to or further
consent of the undersigned, extend the time of payment of, exchange
or surrender any collateral for, renew or extend any of the Obligations
or increase or decrease the interest rate thereon, or any other
agreement with Debtor or with any other party to or person liable on
any of the Obligations, or interested therein, for the extension,
renewal, payment, compromise, discharge or release thereof, in whole
or in part, or for any modification of the terms thereof or of any
agreement between Laurus and Debtor or any such other party or
person, or make any election of rights Laurus may deem desirable
under the United States Bankruptcy Code, as amended, the BIA, the
CCAA, or any other federal, provincial or state bankruptcy,
reorganization, moratorium or insolvency law relating to or affecting
the enforcement of creditors' rights generally (any of the foregoing,
an "Insolvency Law") without in any way impairing or affecting this
Guaranty. This instrument shall be effective regardless of the
subsequent incorporation, merger, amalgamation or consolidation of
Debtor or Guarantors, or any change in the composition, nature,
personnel or location of Debtor or Guarantors and shall extend to
any successor entity to Debtor or Guarantors, including a debtor in
possession or the like under any Insolvency Law.
2. Guaranty Absolute. Each of the undersigned jointly and severally
guarantees that the Obligations will be paid strictly in accordance
with the terms of the Documents and/or any other document, instrument
or agreement creating or evidencing the Obligations, regardless of
any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of Debtor
with respect thereto. Guarantors hereby knowingly accept the full
range of risk encompassed within a contract of "continuing guaranty"
which risk includes the possibility that Debtor will contract
additional indebtedness for which Guarantors may be liable hereunder
after Xxxxxx's financial condition or ability to pay its lawful debts
when they fall due has deteriorated, whether or not Debtor has
properly authorized incurring such additional indebtedness. The
undersigned acknowledge that (i) no oral representations, including
any representations to extend credit or provide other financial
accommodations to Debtor, have been made by Xxxxxx to induce the
undersigned to enter into this Guaranty and (ii) any extension of
credit to the Debtor shall be governed solely by the provisions of
the Documents. The liability of each of the undersigned under this
Guaranty shall be absolute and unconditional, in accordance with its
terms, and shall remain in full force and effect without regard to,
and shall not be released, suspended, discharged, terminated or
otherwise affected by, any circumstance or occurrence whatsoever,
including, without limitation: (a) any waiver, indulgence, renewal,
extension, amendment or modification of or addition, consent or
supplement to or deletion from or any other action or inaction under
or in respect of the Documents or any other instruments or agreements
relating to the Obligations or any assignment or transfer of any
thereof, (b) any lack of validity or enforceability of any Document
or other documents, instruments or agreements relating to the
2
Obligations or any assignment or transfer of any thereof, (c) any
furnishing of any additional security to Laurus or its assignees or
any acceptance thereof or any release of any security by Laurus or
its assignees, (d) any limitation on any party's liability or
obligation under the Documents or any other documents, instruments
or agreements relating to the Obligations or any assignment or
transfer of any thereof or any invalidity or unenforceability, in
whole or in part, of any such document, instrument or agreement or
any term thereof, (e) any bankruptcy, insolvency, reorganization,
composition, adjustment, dissolution, liquidation or other like
proceeding relating to Debtor, or any action taken with respect to
this Guaranty by any trustee, receiver, interim receiver, or receiver
and manager, or by any court, in any such proceeding, whether or not
the undersigned shall have notice or knowledge of any of the foregoing,
(f) any exchange, release or nonperfection of any collateral, or any
release, or amendment or waiver of or consent to departure from any
guaranty or security, for all or any of the Obligations or (g) any
other circumstance which might otherwise constitute a defense
available to, or a discharge of, the undersigned. Any amounts due
from the undersigned to Laurus shall bear interest until such amounts
are paid in full at the highest rate then applicable to the
Obligations. Obligations include post-petition interest whether or
not allowed or allowable.
3. Waivers.
(a) This Guaranty is a guaranty of payment and not of collection.
Laurus shall be under no obligation to institute suit, exercise
rights or remedies or take any other action against Debtor or any
other person liable with respect to any of the Obligations or
resort to any collateral security held by it to secure any of the
Obligations as a condition precedent to the undersigned being
obligated to perform as agreed herein and each of the Guarantors
hereby waives any and all rights which it may have by statute or
otherwise which would require Laurus to do any of the foregoing.
The obligations of each Guarantor hereunder are independent of the
Obligations and a separate action or actions may be brought and
prosecuted against each Guarantor to enforce this Guaranty,
irrespective of whether any action is brought against Debtor or
whether Xxxxxx is joined in any such action or actions. Each of
the Guarantors further consents and agrees that Xxxxxx shall be
under no obligation to marshal any assets in favor of Guarantors,
or against or in payment of any or all of the Obligations. The
undersigned hereby waives all suretyship defenses and any rights to
interpose any defense, counterclaim or offset of any nature and
description which the undersigned may have or which may exist
between and among Laurus, Debtor and/or the undersigned with
respect to the undersigned's obligations under this Guaranty, or
which Debtor may assert on the underlying debt, including but not
limited to failure of consideration, breach of warranty, fraud,
payment (other than cash payment in full of the Obligations),
statute of frauds, bankruptcy, infancy, statute of limitations,
accord and satisfaction, and usury.
3
(b) Each of the undersigned further waives (i) notice of the acceptance
of this Guaranty, of the making of any such loans or extensions of
credit, and of all notices and demands of any kind to which the
undersigned may be entitled, including, without limitation, notice
of adverse change in Debtor's financial condition or of any other
fact which might materially increase the risk of the undersigned
and (ii) presentment to or demand of payment from anyone whomsoever
liable upon any of the Obligations, protest, notices of
presentment, non-payment or protest and notice of any sale of
collateral security or any default of any sort.
(c) Notwithstanding any payment or payments made by the undersigned
hereunder, or any setoff or application of funds of the undersigned
by Xxxxxx, the undersigned shall not be entitled to be subrogated
to any of the rights of Xxxxxx against Debtor or against any
collateral or guarantee or right of offset held by Xxxxxx for the
payment of the Obligations, nor shall the undersigned seek or be
entitled to seek any contribution, indemnification or reimbursement
from Debtor in respect of payments made by the undersigned
hereunder, until all amounts owing to Laurus by Xxxxxx on account
of the Obligations are paid in full and Laurus' obligation to
extend credit pursuant to the Documents have been terminated.
If, notwithstanding the foregoing, any amount shall be paid to the
undersigned on account of such subrogation rights at any time when
all of the Obligations shall not have been paid in full and Laurus'
obligation to extend credit pursuant to the Documents shall not have
been terminated, such amount shall be held by the undersigned in
trust for Laurus, segregated from other funds of the undersigned,
and shall forthwith upon, and in any event within two (2) business
days of, receipt by the undersigned, be turned over to Laurus in the
exact form received by the undersigned (duly endorsed by the
undersigned to Laurus, if required), to be applied against the
Obligations, whether matured or unmatured, in such order as Laurus
may determine, subject to the provisions of the Documents. Any
and all present and future debts and obligations of Debtor to any
of the undersigned are hereby waived and postponed in favor of, and
subordinated to the full payment and performance of, all present
and future debts and Obligations of Debtor to Xxxxxx.
4
4. Indemnity. As an original and independent obligation under this
Guaranty each Guarantor shall:
(a) indemnify Laurus and keep Xxxxxx indemnified against any cost,
loss, expense or liability of whatever kind resulting from the
failure by Debtor to make due and punctual payment of any of the
Obligations or resulting from any of the Obligations being or
becoming void, voidable, unenforceable or ineffective against
Debtor (including, but without limitation, all legal and other
costs, charges and expenses incurred by Laurus, in connection
with preserving or enforcing, or attempting to preserve or
enforce, its rights under this Guaranty); and
(b) pay on demand the amount of such cost, loss, expense or liability
whether or not Xxxxxx has attempted to enforce any rights against
any Debtor or any other person or otherwise.
5. Security. All sums at any time to the credit of the undersigned and
any property of the undersigned in Laurus' possession or in the
possession of any bank, financial institution or other entity that
directly or indirectly, through one or more intermediaries, controls
or is controlled by, or is under common control with, Laurus (each such
entity, an "Affiliate") shall be deemed held by Laurus or such
Affiliate, as the case may be, as security for any and all of the
undersigned's obligations to Laurus and to any Affiliate of Laurus,
no matter how or when arising and whether under this or any other
instrument, agreement or otherwise.
6. Representation as to Financial Benefit. Each of the undersigned
respectively, hereby jointly and severally represents and warrants
(which representation shall survive until all Obligations are
indefeasibly satisfied in full and the Documents have been irrevocably
terminated), that it has derived or expects to derive a financial or
other advantage from each and every loan, advance or extension of
credit made under the Documents or other Obligation incurred by the
Debtor to Laurus.
7. Acceleration.
(a) Upon the occurrence and continuation of an Event of Default,
if any breach of any covenant or condition or other event of
default shall occur and be continuing under any agreement made
by Debtor or any of the undersigned to Laurus, or either Debtor
or any of the undersigned should at any time become insolvent,
or make a general assignment, or if a proceeding in or under any
Insolvency Law shall be filed or commenced by, or in respect of,
any of the undersigned, or if a notice of any lien, levy, or
assessment is filed of record with respect to any assets of any
of the undersigned by the United States of America or Canada, or
any respective department, agency, or instrumentality of either
country, or if any taxes or debts owing at any time or times
hereafter to any one of them becomes a lien or encumbrance upon
any assets of the undersigned in Laurus' possession, or
otherwise, any and all Obligations shall for purposes hereof,
at Laurus' option, be deemed due and payable without notice
notwithstanding that any such Obligation is not then due and
payable by Debtor.
5
(b) Each of the undersigned will promptly notify Laurus of any default
by such undersigned in its respective performance or observance
of any term or condition of any agreement to which the undersigned
is a party if the effect of such default is to cause, or permit
the holder of any obligation under such agreement to cause, such
obligation to become due prior to its stated maturity and, if such
an event occurs, Xxxxxx shall have the right to accelerate such
undersigned's obligations hereunder.
8. Payments from Guarantors. Laurus, in its sole and absolute discretion,
with or without notice to the undersigned, may apply on account of the
Obligations any payment from the undersigned or any other guarantors,
or amounts realized from any security for the Obligations, or may
deposit any and all such amounts realized in a non-interest bearing
cash collateral deposit account to be maintained as security for the
Obligations.
9. Tax Gross Up. Any and all payments by each Guarantor hereunder, and
any amounts on account of interest or deemed interest, shall be made
free and clear of and without deduction for any and all present or
future taxes, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, excluding taxes imposed on net
income or franchise taxes of Laurus by the jurisdiction in which such
person is organized or has its principal office (all such non-excluded
taxes, levies, imposts, deductions, charges withholdings and
liabilities, collectively or individually, "Taxes"). If any
Guarantor shall be required to deduct any Taxes from or in respect
of any sum payable hereunder to Xxxxxx, (i) the sum payable shall be
increased by the amount (an "additional amount") necessary so that
after making all required deductions (including deductions applicable
to additional sums payable under this Section 9) Laurus shall receive
an amount equal to the sum it would have received had no such
deductions been made, (ii) such Guarantor shall make such deductions
and (iii) such Guarantor shall pay the full amount deducted to the
relevant governmental authority in accordance with applicable law.
In addition, each Guarantor agrees to pay to the relevant governmental
authority in accordance with applicable law 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 or registration of, or otherwise with
respect to, this Guaranty ("Other Taxes"). Each Guarantor shall
deliver to Laurus official receipts, if any, in respect of any Taxes
or Other Taxes payable hereunder promptly after payment of such Taxes
or Other Taxes or other evidence of payment reasonably acceptable to
Xxxxxx.
Each Guarantor hereby indemnifies and agrees to hold Xxxxxx harmless
from and against Taxes and Other Taxes (including, without limitation,
Taxes and Other Taxes imposed on any amounts payable under this
Section 9) paid by such person, whether or not such Taxes or Other
Taxes were correctly or legally asserted. Such indemnification shall
be paid within ten (10) days from the date on which any such person
makes written demand therefore specifying in reasonable detail the
nature and amount of such Taxes or Other Taxes.
10. Costs. The undersigned shall pay on demand, all costs, fees and
expenses (including, without limitation, expenses for legal services
of every kind) relating or incidental to the enforcement or protection
of the rights of Laurus hereunder or under any of the Obligations.
6
11. No Termination. This is a continuing irrevocable guaranty and shall
remain in full force and effect and be binding upon the undersigned,
and each of the undersigned's successors and assigns, until all of
the Obligations have been paid in full and Laurus' obligation to extend
credit pursuant to the Documents has been irrevocably terminated.
If any of the present or future Obligations are guaranteed by persons,
partnerships or corporations in addition to the undersigned, the
death, release or discharge in whole or in part or the bankruptcy,
amalgamation, merger, consolidation, incorporation, liquidation or
dissolution of one or more of them shall not discharge or affect the
liabilities of any undersigned under this Guaranty.
12. Recapture. Anything in this Guaranty to the contrary notwithstanding,
if Xxxxxx receives any payment or payments on account of the
liabilities guaranteed hereby, which payment or payments or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee,
receiver, interim receiver or receiver and manager or any other party
under any Insolvency Law, common law or equitable doctrine, then to
the extent of any sum not finally retained by Xxxxxx, the undersigned's
obligations to Xxxxxx shall be reinstated and this Guaranty shall
remain in full force and effect (or be reinstated) until payment shall
have been made to Laurus, which payment shall be due on demand.
13. Books and Records. The books and records of Xxxxxx showing the account
between Xxxxxx and Debtor shall be admissible in evidence in any action
or proceeding, shall be binding upon the undersigned for the purpose of
establishing the items therein set forth and shall constitute prima
facie proof thereof.
14. No Waiver. No failure on the part of Laurus to exercise, and no delay
in exercising, any right, remedy or power hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise by Xxxxxx
of any right, remedy or power hereunder preclude any other or future
exercise of any other legal right, remedy or power. Each and every
right, remedy and power hereby granted to Laurus or allowed it by law
or other agreement shall be cumulative and not exclusive of any other,
and may be exercised by Xxxxxx at any time and from time to time.
15. Waiver of Jury Trial. EACH OF THE UNDERSIGNED DOES HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING BASED ON OR WITH RESPECT TO THIS GUARANTY OR ANY
OF THE TRANSACTIONS CONTEMPLATED HEREBY OR RELATING OR INCIDENTAL
HERETO. THE UNDERSIGNED DOES HEREBY CERTIFY THAT NO REPRESENTATIVE
OR AGENT OF XXXXXX HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT
LAURUS WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THIS
WAIVER OF RIGHT TO JURY TRIAL PROVISION.
7
16. Governing Law; Jurisdiction; Amendments. THIS INSTRUMENT CANNOT BE
CHANGED OR TERMINATED ORALLY, AND SHALL BE GOVERNED, CONSTRUED AND
INTERPRETED AS TO VALIDITY, ENFORCEMENT AND IN ALL OTHER RESPECTS
IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF ONTARIO AND THE FEDERAL
LAWS OF CANADA. EACH OF THE UNDERSIGNED EXPRESSLY CONSENTS TO THE
JURISDICTION AND VENUE OF THE SUPREME COURT OF THE STATE OF NEW YORK,
COUNTY OF NEW YORK, AND OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK FOR ALL PURPOSES IN CONNECTION HEREWITH.
ANY JUDICIAL PROCEEDING BY THE UNDERSIGNED AGAINST LAURUS INVOLVING,
DIRECTLY OR INDIRECTLY ANY MATTER OR CLAIM IN ANY WAY ARISING OUT OF,
RELATED TO OR CONNECTED HEREWITH SHALL BE BROUGHT ONLY IN THE SUPREME
COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK OR THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. THE
UNDERSIGNED FURTHER CONSENTS THAT ANY SUMMONS, SUBPOENA OR OTHER
PROCESS OR PAPERS (INCLUDING, WITHOUT LIMITATION, ANY NOTICE OR MOTION
OR OTHER APPLICATION TO EITHER OF THE AFOREMENTIONED COURTS OR A JUDGE
THEREOF) OR ANY NOTICE IN CONNECTION WITH ANY PROCEEDINGS HEREUNDER,
MAY BE SERVED INSIDE OR OUTSIDE OF THE STATE OF NEW YORK OR THE
SOUTHERN DISTRICT OF NEW YORK BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, OR BY PERSONAL SERVICE PROVIDED A REASONABLE TIME
FOR APPEARANCE IS PERMITTED, OR IN SUCH OTHER MANNER AS MAY BE
PERMISSIBLE UNDER THE RULES OF SAID COURTS. EACH OF THE UNDERSIGNED
WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION
INSTITUTED HEREON AND SHALL NOT ASSERT ANY DEFENSE BASED ON LACK OF
JURISDICTION OR VENUE OR BASED UPON FORUM NON CONVENIENS.
17. Judgment Currency. If, for the purpose of obtaining or enforcing
judgment against any Guarantor in any court in any jurisdiction, it
becomes necessary to convert into any other currency (such other
currency being hereinafter in this section referred to as the "Judgment
Currency") an amount due under this Guaranty in any currency (the
"Obligation Currency") other than the Judgment Currency, the conversion
shall be made at the rate of exchange prevailing on the business day
immediately preceding (a) the date of actual payment of the amount due,
in the case of any proceeding in the courts of New York or in the
courts of any other jurisdiction that will give effect to such
conversion being made on such date, or (b) the date on which the
foreign court determines, in the case of any proceeding in the courts
of any other jurisdiction (the applicable date as of which such
conversion is made pursuant to this section being hereinafter in this
section referred to as the "Judgment Conversion Date").
If, in the case of any proceeding in the court of any jurisdiction
referred to in the preceding paragraph, there is a change in the rate
of exchange prevailing between the Judgment Conversion Date and the
date of actual receipt of the amount due in immediately available
funds, the Guarantor shall pay such adjusted amount as may be
necessary to ensure that the amount actually received in the Judgment
Currency, when converted at the rate of exchange prevailing on the
date of payment, will produce the amount of the Obligation Currency
which could have been purchased with the amount of the Judgment
Currency stipulated in the judgment or judicial order at the rate of
exchange prevailing on the Judgment Conversion Date. Any amount due
from any Guarantor under this section shall be due as a separate debt
and shall not be affected by judgment being obtained for any other
amounts due under or in respect of this Guaranty.
8
18. Severability. To the extent permitted by applicable law, any provision
of this Guaranty which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
19. Amendments, Waivers. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by the undersigned therefrom
shall in any event be effective unless the same shall be in writing
executed by each of the undersigned directly affected by such
amendment and/or waiver and Xxxxxx.
20. Notice. All notices, requests and demands to or upon the undersigned,
shall be in writing and shall be deemed to have been duly given or
made (a) when delivered, if by hand, (b) three (3) days after being
sent, postage prepaid, if by registered or certified mail, (c) when
confirmed electronically, if by facsimile, or (d) when delivered, if
by a recognized overnight delivery service in each event, to the
numbers and/or address set forth beneath the signature of the
undersigned.
21. Counterparts. This Guaranty may be executed in any number of
counterparts which shall, collectively and separately constitute
one agreement. Any signature delivered by a party by facsimile
transmission or by sending a scanned copy by electronic mail shall
be deemed an original signature hereto.
22. Successors. Upon the occurrence and continuation of an Event of
Default, Laurus may, from time to time, without notice to the
undersigned, sell, assign, transfer or otherwise dispose of all or
any part of the Obligations and/or rights under this Guaranty.
Without limiting the generality of the foregoing, Laurus may assign,
or grant participations to, one or more banks, financial institutions
or other entities all or any part of any of the Obligations. In each
such event, Laurus, its Affiliates and each and every immediate and
successive purchaser, assignee, transferee or holder of all or any
part of the Obligations shall have the right to enforce this Guaranty,
by legal action or otherwise, for its own benefit as fully as if such
purchaser, assignee, transferee or holder were herein by name
specifically given such right. Laurus shall have an unimpaired right
to enforce this Guaranty for its benefit with respect to that portion
of the Obligations which Xxxxxx has not disposed of, sold, assigned,
or otherwise transferred.
23. It is understood and agreed that any person or entity that desires to
become a Guarantor hereunder, or is required to execute a counterpart
of this Guaranty after the date hereof pursuant to the requirements of
any Document, shall become Guarantor hereunder by (x) executing a
joinder agreement in form and substance satisfactory to Xxxxxx,
(y) delivering supplements to such exhibits and annexes to such
Documents as Laurus shall reasonably request and (z) taking all actions
as specified in this Guaranty as would have been taken by such
Guarantor had it been an original party to this Guaranty, in each
case with all documents required above to be delivered to Laurus and
with all documents and actions required above to be taken to the
reasonable satisfaction of Xxxxxx.
9
24. Release. Nothing except cash payment in full of the Obligations shall
release any of the undersigned from liability under this Guaranty.
25. Limitation of Obligations under this Guaranty. Each Guarantor and
Laurus (by its acceptance of the benefits of this Guaranty) hereby
confirms that it is its intention that this Guaranty not constitute
(i) a fraudulent transfer or conveyance for purposes of the
Bankruptcy Code, the Uniform Fraudulent Conveyance Act or any similar
federal, provincial or state law; or (ii) a preference or a
preferential transfer for purposes of the BIA or under any other
applicable bankruptcy, insolvency or similar law now or hereafter
in effect in any bankruptcy, insolvency or similar proceeding with
respect to Debtor. To effectuate the foregoing intention, each
Guarantor which is subject to the Bankruptcy Code, the Uniform
Fraudulent Conveyance Act or any similar US federal or state law
and Laurus (by its acceptance of the benefits of this Guaranty)
hereby irrevocably agrees that the Obligations guaranteed by such
Guarantor shall be limited to such amount as will, after giving
effect to such maximum amount and all other (contingent or
otherwise) liabilities of such Guarantor that are relevant under
such laws and after giving effect to any rights to contribution
pursuant to any agreement providing for an equitable contribution
among such Guarantor and the other Guarantors (including this
Guaranty), result in the Obligations of such Guarantor under this
Guaranty in respect of such maximum amount not constituting a
fraudulent transfer or conveyance, preference or preferential
transfer.
[REMAINDER OF THIS PAGE IS BLANK. SIGNATURE PAGE IMMEDIATELY FOLLOWS]
10
IN WITNESS WHEREOF, this Guaranty has been executed by the undersigned this
14th day of July, 2005.
THE INTERNATIONAL MOUNT COMPANY, LTD.
By:/s/Xxxxxx Xxxx
-----------------------
Name: Xxxxxx Xxxx
Title: CEO
Address 00 Xxxxxxxx Xxx
Xxxx #0
Xxxxxxx, Xxxxxxx
X0X 0X0
11
