SUBSIDIARY GUARANTEE
THIS
SUBSIDIARY GUARANTEE, dated as of [__________ __, 2007 (this “Guarantee”), is
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 the
purchasers (the "Purchasers") of the 8% Secured Convertible Debentures of
TechnoConcepts, Inc., a Colorado corporation (the “Company”).
WITNESSETH:
WHEREAS,
pursuant to that subscription agreement, by and between the Company and each
of
the Purchasers (the “Subscription 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 8% Secured Convertible Debentures, due [__________ ___,
200__ (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
WHEREAS,
the Purchasers have required that the Guarantors execute this Guarantee as
a
condition precedent to their purchase of the Debentures; and
NOW,
THEREFORE, in consideration of the premises and to induce the Purchasers to
enter into the Subscription Agreement and to carry out the transactions
contemplated thereby, and for good and valuable consideration the sufficiency
of
which is hereby acknowledged each Guarantor hereby agrees with the Purchasers
as
follows:
1.
Definitions. Unless otherwise defined herein, terms defined in the
Subscription Agreement and used herein shall have the meanings given to them
in
the Subscription 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
Subscription Agreement, the Security Agreement, the Warrants, or any other
future agreement or obligations undertaken by the Company to the Purchasers
in
connection therewith, 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.
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2.
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Guarantee.
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(a)
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Guarantee.
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| (i) |
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) |
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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1
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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) |
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) |
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) |
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.
2
(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 Subscription 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 Subscription
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.
(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.
3
(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 Subscription 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 Subscription
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 (each, 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 and insofar as indemnification
and contribution provisions may be limited by applicable law.
(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 material 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 would 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.
(e)
Subscription Agreement. The representations and warranties of the Company
set forth in the Subscription 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
Subscription 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.
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(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 in amount greater than $150,000;
ii.
except with the prior written consent of the Agent, 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 in amount greater than $150,000;
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.
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
Subscription Agreement; provided that any such notice, request or demand to
or
upon any Guarantor shall be addressed to such Guarantor at its notice address
set forth on Schedule 5(b).
(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.
5
(d)
Enforcement
Expenses; Indemnification.
| (i) |
Each
Guarantor agrees to pay, or reimburse the Purchasers for, all its
reasonable 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) |
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 Subscription 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 Subscription 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
Subscription 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:
| (i) |
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 nonexclusive 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) |
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) |
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 Subscription Agreement or at such
other
address of which the Purchasers shall have been notified pursuant
thereto;
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| (iv) |
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) |
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:
| (i) |
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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7
| (ii) |
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) |
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 Subscription Agreement, the Debentures and the other
Transaction Documents.
(p)
Seniority. As of the Closing Date, no Indebtedness or other claim against
the Company or Guarantor is senior to the Debentures in right of payment,
whether with respect to interest or upon liquidation or dissolution, or
otherwise, other than indebtedness secured by purchase money security interests
(which is senior only as to underlying assets covered thereby) and capital
lease
obligations (which is senior only as to the property covered thereby).
(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.
8
IN
WITNESS WHEREOF, each of the undersigned has caused this Guarantee to be duly
executed and delivered as of the date first above written.
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ASANTE
NETWORKS, INC.
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| By: | |||
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Name:
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|||
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Title:
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TECHNOCONCEPTS,
INC. (NEVADA)
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| By: | |||
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Name:
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|||
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Title:
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9
SCHEDULE
1
GUARANTORS
The
following are the names, notice addresses and jurisdiction of organization
of
each Guarantor.
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JURISDICTION
OF INCORPORATION
|
COMPANY
OWNED BY PERCENTAGE
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|||
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Asante
Networks, Inc.
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Delaware
|
85%
|
||
|
TechnoConcepts,
Inc. (Nevada)
|
Nevada
|
100%
|
10
Annex
1 to
ASSUMPTION
AGREEMENT, dated as of ____ __, ______ made by ______________________________,
a
______________ corporation (the "Additional Guarantor"), in favor of the
Purchasers pursuant to the Subscription Agreement referred to below. All
capitalized terms not defined herein shall have the meaning ascribed to them
in
such Subscription Agreement.
WITNESSETH
:
WHEREAS,
TechnoConcepts, Inc., a Colorado corporation (the "Company"), and the
Purchasers have each entered into a Subscription Agreement with respect to
the
purchase by the Purchasers of the Company’s 8% Secured Convertible Debentures
(as amended, supplemented or otherwise modified from time to time, the
"Subscription Agreement");
WHEREAS,
in connection with each Subscription 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 Subscription 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(n) 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.
IN
WITNESS WHEREOF, the undersigned has caused this Assumption Agreement to be
duly
executed and delivered as of the date first above written.
|
[ADDITIONALGUARANTOR]
|
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By:
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Name:
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|
Title:
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11
