EXHIBIT 10.2
CONTINUING GUARANTY
THIS CONTINUING GUARANTY (the "Guaranty") is entered into as of
October 24, 2008 (the "Effective Date") by IOM HOLDINGS, INC. a Nevada
Corporation ("Guarantor"), in favor of XXXXXXX FUNDING LLC ("Factor").
Guarantor, in order to induce Factor to continue its financing
relationship with I/OMAGIC CORPORATION , a Nevada corporation ("Client"), and
for the benefit of Factor, agrees as set forth below.
1. Recitals. This Guaranty is executed and delivered to Factor in
connection with the execution of a Sale of Accounts and Security Agreement,
dated on or about the date hereof (the "Factoring Agreement", and together with
all other agreements entered into in connection therewith, the "Factoring
Documents"). For example, the Factoring Documents may include promissory notes,
security agreements, subordination agreements, deeds of trust and other
guaranties.
2. Definitions. Any capitalized term not otherwise defined in this
Guaranty shall have the meaning given to the term in the Factoring Documents.
3. Guaranty. Guarantor unconditionally guaranties to Factor the timely
(whether as scheduled or upon acceleration) payment and performance by Client of
all of the following, whenever and however they may arise (the "Guarantied
Obligations"): (i) the debts, liabilities, obligations, covenants, interest,
commissions, fees, and other charges or amounts due under the Factoring
Documents; (ii) the other obligations set forth in or arising out of the
Factoring Documents; (iii) any liabilities, costs or expenses, including
attorneys' fees, incurred by Factor in connection with enforcing Factor's rights
under the Factoring Documents; (v) any of the foregoing arising out of, in
connection with or following any renewals (including renewals of obligations
which had been previously satisfied), extensions, modifications, alterations and
rearrangements of any of the Factoring Documents; (vi) any of the foregoing
arising after Client has commenced or becomes subject to any case under the
Bankruptcy Code, including any advances made to Client, any interest that
accrues after the filing of the bankruptcy petition (even if the interest cannot
be collected in the proceeding under the Bankruptcy Code), and attorneys' fees.
If Client fails to pay or perform any of the Guarantied Obligations, Guarantor
will immediately pay or perform such Guarantied Obligation. In connection with
the payment of the Guarantied Obligations, Guarantor hereby authorizes Factor to
deduct such payment or payments from any amounts due by Factor to Guarantor. Any
such deductions will be at Factor's sole discretion and without notice to
Guarantor.
4. Factor's Direct Rights.
4.1 Guaranty of Payment. This is a guaranty of payment and
performance and is not a guaranty of collection.
4.2 Direct Rights Against Guarantor. Upon the occurrence of an
Event of Default (as defined in the Factoring Agreement), Factor may enforce its
rights under this Guaranty without first seeking to obtain payment or
performance from or without resorting to: (i) Guarantor (the undersigned),
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meaning that Factor may delay, in Factor's sole and complete discretion, in the
exercise of rights against Guarantor; (ii) Client; (iii) any other guarantor; or
(iv) any collateral Factor may hold for the Guarantied Obligations; (iv) any
other remedy or right that Factor may have.
4.3 Client's Bankruptcy. Upon the occurrence of an Event of
Default (as defined in the Factoring Agreement), Factor may immediately pursue
its rights under this Guaranty, even though Factor may be stayed from
accelerating or collecting the Guarantied Obligations from Client.
4.4 Waiver of Priority of Collection. Guarantor waives any
rights Guarantor may have to require Factor to proceed against the Client or to
pursue any other remedy in Factor's power which Guarantor cannot pursue which
would lighten Guarantor's burden. In addition, Guarantor waives Guarantor's
right to benefit from every security which now or hereafter exists for the
performance of the Guarantied Obligations or for the performance of any other
guarantor's obligations owing to Factor. If Factor decides to proceed first to
exercise any other remedy or right, or to proceed against another person or any
collateral, Factor retains all of Factor's rights under this Guaranty.
5. Continuing Guaranty and Revocation. This Guaranty guaranties the
Guarantied Obligations, including Client's existing obligations under the
Factoring Documents, as well as all future advances made under the Factoring
Documents. This Guaranty also guaranties Client's future liability under
successive transactions which either continue the Guarantied Obligations or from
time to time renew some or all of them after having been satisfied and to that
extent is a continuing guaranty of the Guarantied Obligations. Guarantor may not
terminate or revoke this Guaranty. Guarantor irrevocably waives any right he has
to terminate or revoke the continuing nature of this Guaranty and its
application to any Guarantied Obligations arising after any attempt to terminate
this Guaranty.
6. No Notice Required. Guarantor will not be released or exonerated
from Guarantor's obligations under this Guaranty if Guarantor is not notified by
Factor of these events: (i) Client's failure to pay timely any amount owed under
any of the Factoring Documents or to pay or perform any of the other Guarantied
Obligations; (ii) Client's failure to perform any other obligation under any of
the Factoring Documents; (iii) any adverse change in Client's financial
condition of business; (iv) Factor's acceptance of this Guaranty; (v) all other
notices to which Guarantor might be entitled.
7. Guarantor's Additional Waivers. Guarantor waives any right Guarantor
may have to require any of the following acts: demand; presentment; diligence;
protest; notice of dishonor; and any other notice to which Guarantor may be
entitled.
8. No Release of Guarantor. Factor may do or suffer any of the
following, by action or inaction, without releasing or exonerating Guarantor
from any of Guarantor's obligations under this Guaranty and without notifying
Guarantor of any of the following: (i) renew, extend, rearrange, alter, impair,
suspend or otherwise modify any of the other Factoring Documents, any of the
Guarantied Obligations or any of the rights or remedies of Factor under the
Factoring Documents; (ii) release Client or any other guarantor from any of the
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Guarantied Obligations; (iii) sell, release, subordinate, impair, suspend, waive
or otherwise fail to obtain, perfect or realize upon (or continue the perfection
of) a security interest in any collateral for any of the Guarantied Obligations,
this Guaranty or any other guaranty of the Guarantied Obligations; (iv) exercise
Factor's rights in any collateral for any of the Guarantied Obligations, this
Guaranty or any other guaranty of the Guarantied Obligations in any order that
Factor may elect in its sole discretion; (v) advance additional funds to or for
the benefit of Client; (vi) foreclose on any collateral for the Guarantied
Obligations, or any portion thereof (including the collateral provided under a
deed of trust) or a guaranty of the Guarantied Obligations, or any portion
thereof in a manner that diminishes, impairs or precludes the right of Guarantor
to enjoy any rights of subrogation against Client or any other guarantor, or to
obtain reimbursement, performance, or indemnification for payment or performance
under this Guaranty (in this connection, Guarantor waives any rights and
defenses arising out of an election of remedies by Factor, even though that
election of remedies, such as nonjudicial foreclosure with respect to security
for a Guarantied Obligation or any other guaranty, has destroyed Guarantor's
rights of subrogation and reimbursement against Client or any other guarantor by
operation of law and, in addition, Guarantor waives any defenses arising under
Uniform Commercial Code Sections 1103 and 9601 et seq.); (vii) permit or suffer
the impairment of any of the Guarantied Obligations in a case under the
Bankruptcy Code by or against Client; (viii) make an election under Bankruptcy
Code Section 1111(b)(2) in a case by or against Client; (ix) permit or suffer
the creation of secured or unsecured credit or debt under Bankruptcy Code
Section 364 in a case by or against Client; (x) permit or suffer the
disallowance, avoidance or subordination of any of the Guarantied Obligations or
collateral for any of the Guarantied Obligations; (xi) fail to exercise any
right or remedy Factor may have with respect to the payment or performance of,
any of the Factoring Documents or any of the Guarantied Obligations; or (xii)
fail to obtain a guaranty, other assurance of payment, or credit enhancement
from any other person.
9. Waiver of Subrogation, Reimbursement, Performance and
Indemnification. Unless and until the Guarantied Obligations have been
indefeasibly repaid in full, Guarantor waives and shall not seek to exercise any
of the following rights that Guarantor may have against Client, any other
guarantor, or any collateral provided by Client or any other guarantor, for any
amounts paid by Guarantor, or acts performed by Guarantor under this Guaranty:
(i) all rights that Guarantor may have, upon satisfying the Guarantied
Obligations, or any portion thereof, to enforce any remedies which Factor then
has against Client and to require any other guarantor to contribute to the
amount paid by Guarantor in connection with this Guaranty (including, without
limitation, any right of subrogation, whether contractual, under Section 509 of
the Bankruptcy Code, other similar insolvency laws or arrangements, or
otherwise); (ii) all rights that Guarantor may have to the benefit of any
security for the performance of the Guarantied Obligations or the performance by
any other guarantor of the Guarantied Obligations; (iii) all rights of
reimbursement from Client for the amounts paid by Guarantor in connection with
the Guarantied Obligations (including costs and expenses); (iv) any right to
compel client to perform the Guarantied Obligations when due; or (v) all rights
of indemnification from Client, any other guarantor or any other third party.
Guarantor irrevocably waives and releases Client from all "claims" (as defined
in Section 101(4) of the Bankruptcy Code) to which Guarantor is or would be
entitled by virtue of this Guaranty of the Guarantied Obligations or the payment
of all or a portion of the Guarantied Obligations by Guarantor pursuant to this
Guaranty.
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The provisions of this Paragraph 9 shall remain in full force and
effect and Guarantor shall not exercise any of the rights set forth in this
Paragraph 9 until all of the Factoring Documents have been terminated or expired
by their terms and all Guarantied Obligations have been paid in full.
10. Default. Upon the happening of any of the following events: the
occurrence of an Event of Default under the Factoring Agreement which is not
timely cured during any applicable cure period, any revocation, breach or
termination by Guarantor of this Guaranty, or suspension of business of
Guarantor, or the issuance of any writ of attachment against any of the property
of Guarantor where such writ is not dismissed or discharged within fifteen (15)
days from the date that it was first issued, or the making by Guarantor of any
assignment for the benefit of creditors, or a trustee or receiver being
appointed for Guarantor or for any property of Guarantor, or any proceeding
being commenced by or against Guarantor under any bankruptcy, reorganization,
adjustment of debt, insolvency, receivership, liquidation or dissolution law or
statute and, in the case of such a proceeding being commenced against Guarantor,
such proceeding is not dismissed within forty-five (45) days following the
commencement date thereof, then and in any such event and at any time
thereafter, Factor may, without notice to Client or Guarantor, declare any or
all of the Guarantied Obligations, whether or not then due, immediately due and
payable by Guarantor under this Guaranty, and Factor shall be entitled to
enforce the obligations of Guarantor hereunder.
11. Miscellaneous.
11.1 Revival of Debt. Notwithstanding any revocation of this
Guaranty, Guarantor's obligations under this Guaranty shall include and shall be
increased by the amount returned by Factor which was previously paid by Client
or any other guarantor of any of the Guarantied Obligations prior to the
effectiveness of such revocation because of the application of the Bankruptcy
Code, any fraudulent transfer law, or any law respecting preferences.
11.2 Effect of Compliance. Guarantor's compliance with any of
the provisions of this Guaranty will not reduce or affect in any manner the
liability of Guarantor under the any of the other provisions of this Guaranty.
11.3 No Marshaling. Factor has no obligation to marshal any
assets in favor of Guarantor, or against or in payment of: (i) any of the
Guarantied Obligations, or (ii) any other obligation owed to Factor by
Guarantor, Client, or any other person.
11.4 Fees and Costs. In the event of any dispute between
Guarantor and Factor under this Guaranty, the prevailing party shall be entitled
to recover all of its fees and costs incurred in enforcing this Guaranty,
including its reasonable attorneys' fees (including without limitation any
attorneys fees' incurred in connection with any probate claim, bankruptcy claim,
and complaint for relief from any stay under the U.S. Bankruptcy Code or
otherwise).
11.5 Assignment. Guarantor may not assign Guarantor's
obligations or liabilities under this Guaranty. Subject to the preceding
sentence, this Guaranty shall be binding upon the parties hereto and their
respective heirs, executors, successors, representatives and assigns and shall
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inure to the benefit of the parties hereto and their respective successors and
assigns. Factor may assign its rights under this Guaranty.
11.6 Applicable Law. The laws of the State of Arizona will
apply to the interpretation and enforcement of this Guaranty, without regard to
Arizona's internal laws regarding conflicts of law. The parties agree that all
actions or proceedings arising in connection with this Guaranty shall be tried
and litigated only in the state and federal courts located in the County of
Maricopa, State of Arizona. Guarantor waives any right it may have to assert the
doctrine of forum non conveniens or to object to such venue and hereby consents
to any court ordered relief.
11.7 Integration. This Guaranty is the entire agreement of
Guarantor with respect to the subject matter of this Guaranty.
11.8 Rights Cumulative. All of Factor's rights under this
Guaranty are cumulative. The exercise of any one right does not exclude the
exercise of any other right given in this Guaranty or any other right of Factor
not set forth in this Guaranty.
11.9 Rules of Construction. The following rules shall apply in
interpreting the meaning of this Guaranty: (i) "Includes" and "including" are
not limiting; (ii) "Or" is not exclusive; and (iii) "All" includes "any" and
"any" includes "all."
11.10 Severability. If any provision of this Guaranty is
unenforceable, or otherwise invalid, the remaining provisions of this Guaranty
shall be enforced to the fullest possible extent.
11.11 Notices. Any notice given in connection with this
Guaranty shall be in writing addressed to the respective party at its address
set forth below its signature on the last page of this Guaranty and may be
personally served, telecopied or sent by overnight courier service or United
States certified mail, postage prepaid; provided, however, that any notice of
revocation of this Guaranty may only be sent by United States certified mail,
postage prepaid. Notices shall be deemed to have been given: (a) if delivered in
person, when delivered; (b) if delivered by telecopy, on the date of
transmission if confirmed and if transmitted on a business day before 4:00 p.m.
or, if not, on the next succeeding business day; (c) if delivered by overnight
courier, two days after delivery to such courier properly addressed; or (d) if
by United States certified mail, five business days after depositing in the
United States mail, with postage prepaid and properly addressed. The address for
notices may be changes by delivering written notice of such change in accordance
with this Paragraph.
11.12 Joint and Several Liability. The obligations hereunder
of the persons or entities constituting Guarantor under this Guaranty are joint
and several.
11.13 Headings; Number; Gender. Paragraph headings used in
this Guaranty are for convenience only. They are not a part of this Guaranty and
shall not be used in construing this Guaranty. Wherever appropriate in this
Guaranty, the singular shall be deemed to also refer to the plural, and the
plural to the singular.
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11.14 Review of Documents. Guarantor acknowledges reviewing
copies of, and is fully familiar with, each and every Loan Document.
11.15 Counterparts. This Guaranty may be executed in
counterparts, each of which shall be deemed an original, but all of which, when
taken together, shall be deemed one and the same agreement.
12. Acknowledgment of Waivers and Loss of Defenses.
12.1 Guarantor acknowledges that certain provisions of this
Guaranty operate as waivers of rights that Guarantor would otherwise have under
applicable law. Other provisions permit Factor to take actions that Factor would
otherwise not have a right to take, to fail to take actions that Factor would
otherwise have an obligation to take, or to take actions that may prejudice
Guarantor's rights and obligations under this Guaranty and against the Client.
In the absence of these provisions Guarantor might have defenses against
Guarantor's obligations under this Guaranty. These defenses might permit
Guarantor to avoid some or all of Guarantor's obligations under this Guaranty.
12.2 Guarantor intends by the waivers and other provisions of
this Guaranty, including the acknowledgement set forth in this section, to be
liable to the greatest extent permitted by law for all of Client's obligations
to Factor. Guarantor intends to have this liability even if the terms of the
Factoring Documents change or if Guarantor does not have any rights against
Client.
12.3 Guarantor acknowledges that (i) Guarantor understands the
seriousness of the provisions of this Guaranty; (ii) Guarantor has had a full
opportunity to consult with counsel of Guarantor's choice; and (iii) Guarantor
has consulted with counsel of Guarantor's choice or has decided not to consult
with counsel.
13. WAIVER OF JURY TRIAL. GUARANTOR AND FACTOR EACH WAIVE ANY RIGHT TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING RELATING TO THIS GUARANTY, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE.
THE PARTIES RECOGNIZE AND AGREE THAT ALL DISPUTES RESOLVED
UNDER THIS REFERENCE PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY.
AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF
THEIR OWN CHOICE, EACH PARTY KNOWINGLY AND VOLUNTARILY AND FOR THEIR MUTUAL
BENEFIT AGREES THAT THIS REFERENCE PROVISION WILL APPLY TO ANY DISPUTE BETWEEN
THEM WHICH ARISES OUT OF OR IS RELATED TO THIS AGREEMENT.
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IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the date
first above written.
IOM HOLDINGS, INC.
A Nevada Corporation
By. /s/ Xxxx Xxxxxxx
------------------------
Name: Xxxx Xxxxxxx
Title: President IOM Holdings
Address: 4 Marcuhi
Xxxxxx, XX 00000
Fax No. (000-000-0000
XXXXXXX FUNDING LLC, hereby accepts this Guaranty.
XXXXXXX FUNDING LLC
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Address: 0000 Xxxxxxxxx Xxxxxx, Xxx. 0000
Xx Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx, President
Fax No.: (000) 000-0000
S-1
Continuing Guaranty
STATE OF CALIFORNIA
COUNTY OF ORANGE ) ss.
On Oct. 27, 2008, before me, the undersigned, a Notary Public in and for said
State, personally appeared Xxxx Xxxxxxx (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument. I certify under
Penalty of Perjury under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
/s/ Xxxxxxx Xxxx Xxxxxx (SEAL) XXXXXXX XXX XXXXXX III
------------------------------------------ COMM...1698908
Notary Public NOTARY PUBLIC-CALFORNIA -
ORANGE COUNTY
My Term Ex. November 6, 2010
NOTARY
