SUBSIDIARY GUARANTEE
EXHIBIT
F
SUBSIDIARY
GUARANTEE, dated as of July 8, 2008 (this “Guarantee”),
made
by each of the signatories hereto (together with any other entity that may
become a party hereto as provided herein, the “Guarantors”),
in
favor of the purchaser signatories (together with their permitted assigns,
the
“Purchasers”)
to
that certain Securities Purchase Agreement, dated as of the date hereof, between
QPC Lasers, Inc., a Nevada corporation (the “Company”)
and
the Purchasers.
W
I T N E S S E T H:
WHEREAS,
pursuant to that certain Securities Purchase Agreement, dated as of the date
hereof, by and among the Company and the Purchasers (the “Purchase
Agreement”),
the
Company has agreed to sell and issue to the Purchasers, and the Purchasers
have
agreed to purchase from the Company the Debentures, subject to the terms and
conditions set forth therein; and
WHEREAS,
each Guarantor will directly benefit from the extension of credit to the Company
represented by the issuance of the Debentures; and
NOW,
THEREFORE, in consideration of the premises and to induce the Purchasers to
enter into the Purchase Agreement and to carry out the transactions contemplated
thereby, each Guarantor hereby agrees with the Purchasers as
follows:
1. Definitions.
Unless
otherwise defined herein, terms defined in the Purchase Agreement and used
herein shall have the meanings given to them in the Purchase Agreement. The
words “hereof,” “herein,” “hereto” and “hereunder” and words of similar import
when used in this Guarantee shall refer to this Guarantee as a whole and not
to
any particular provision of this Guarantee, and Section and Schedule references
are to this Guarantee unless otherwise specified. The meanings given to terms
defined herein shall be equally applicable to both the singular and plural
forms
of such terms. The following terms shall have the following
meanings:
“Guarantee”
means
this Subsidiary Guarantee, as the same may be amended, supplemented or otherwise
modified from time to time.
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“Obligations”
means,
in addition to all other costs and expenses of collection incurred by Purchasers
in enforcing any of such Obligations and/or this Guarantee, all of the
liabilities and obligations (primary, secondary, direct, contingent, sole,
joint
or several) due or to become due, or that are now or may be hereafter contracted
or acquired, or owing to, of the Company or any Guarantor to the Purchasers,
including, without limitation, all obligations under this Guarantee, the
Debentures and any other instruments, agreements or other documents executed
and/or delivered in connection herewith or therewith, in each case, whether
now
or hereafter existing, voluntary or involuntary, direct or indirect, absolute
or
contingent, liquidated or unliquidated, whether or not jointly owed with others,
and whether or not from time to time decreased or extinguished and later
increased, created or incurred, and all or any portion of such obligations
or
liabilities that are paid, to the extent all or any part of such payment is
avoided or recovered directly or indirectly from any of the Purchasers as a
preference, fraudulent transfer or otherwise as such obligations may be amended,
supplemented, converted, extended or modified from time to time. Without
limiting the generality of the foregoing, the term “Obligations” shall include,
without limitation: (i) principal of, and interest on the Debentures and the
loans extended pursuant thereto; (ii) any and all other fees, indemnities,
costs, obligations and liabilities of the Company or any Guarantor from time
to
time under or in connection with this Guarantee, the Debentures and any other
instruments, agreements or other documents executed and/or delivered in
connection herewith or therewith; and (iii) all amounts (including but not
limited to post-petition interest) in respect of the foregoing that would be
payable but for the fact that the obligations to pay such amounts are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving the Company or any Guarantor.
2. Guarantee.
(a) Guarantee.
(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 when
due (whether at the stated maturity, by acceleration or otherwise) of the
Obligations.
(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)).
(iii) 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.
(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 indefeasible
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 indefeasibly paid in full.
(vi) Notwithstanding
anything to the contrary in this Guarantee, 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.
(b) Right
of Contribution.
Subject
to Section 2(c), 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 indefeasibly 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.
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(d) Amendments,
Etc. With Respect to the Obligations.
Each
Guarantor shall remain obligated hereunder notwithstanding that, without any
reservation of rights against any Guarantor and without notice to or further
assent by any Guarantor, any demand for payment of any of the Obligations made
by the Purchasers may be rescinded by the Purchasers and any of the Obligations
continued, and the Obligations, or the liability of any other Person upon or
for
any part thereof, or any collateral security or guarantee therefor or right
of
offset with respect thereto, may, from time to time, in whole or in part, be
renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Purchasers, and the Purchase Agreement and the
other Transaction Documents and any other documents executed and delivered
in
connection therewith may be amended, modified, supplemented or terminated,
in
whole or in part, as the Purchasers may deem advisable from time to time, and
any collateral security, guarantee or right of offset at any time held by the
Purchasers for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. The Purchasers shall have no obligation to protect,
secure, perfect or insure any Lien at any time held by them as security for
the
Obligations or for the guarantee contained in this Section 2 or any property
subject thereto.
(e) Guarantee
Absolute and Unconditional.
Each
Guarantor waives any and all notice of the creation, renewal, extension or
accrual of any of the Obligations and notice of or proof of reliance by the
Purchasers upon the guarantee contained in this Section 2 or acceptance of
the
guarantee contained in this Section 2; the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon the guarantee contained in this
Section 2; and all dealings between the Company and any of the Guarantors,
on
the one hand, and the Purchasers, on the other hand, likewise shall be
conclusively presumed to have been had or consummated in reliance upon the
guarantee contained in this Section 2. Each Guarantor waives to the extent
permitted by law diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon
the
Company or any of the Guarantors with respect to the Obligations. Each Guarantor
understands and agrees that the guarantee contained in this Section 2 shall
be
construed as a continuing, absolute and unconditional guarantee of payment
and
performance without regard to (a) the validity or enforceability of the Purchase
Agreement or any other Transaction Document, any of the Obligations or any
other
collateral security therefor or guarantee or right of offset with respect
thereto at any time or from time to time held by the Purchasers, (b) any
defense, set-off or counterclaim (other than a defense of payment or performance
or fraud by Purchasers) which may at any time be available to or be asserted
by
the Company or any other Person against the Purchasers, or (c) any other
circumstance whatsoever (with or without notice to or knowledge of the Company
or such Guarantor) which constitutes, or might be construed to constitute,
an
equitable or legal discharge of the Company for the Obligations, or of such
Guarantor under the guarantee contained in this Section 2, in bankruptcy or
in
any other instance. When making any demand hereunder or otherwise pursuing
its
rights and remedies hereunder against any Guarantor, the Purchasers may, but
shall be under no obligation to, make a similar demand on or otherwise pursue
such rights and remedies as they may have against the Company, any other
Guarantor or any other Person or against any collateral security or guarantee
for the Obligations or any right of offset with respect thereto, and any failure
by the Purchasers to make any such demand, to pursue such other rights or
remedies or to collect any payments from the Company, any other Guarantor or
any
other Person or to realize upon any such collateral security or guarantee or
to
exercise any such right of offset, or any release of the Company, any other
Guarantor or any other Person or any such collateral security, guarantee or
right of offset, shall not relieve any Guarantor of any obligation or liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Purchasers against
any
Guarantor. For the purposes hereof, “demand” shall include the commencement and
continuance of any legal proceedings.
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(f) Reinstatement.
The
guarantee contained in this Section 2 shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof,
of
any of the Obligations is rescinded or must otherwise be restored or returned
by
the Purchasers upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of the Company or any Guarantor, or upon or as a result of the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Company or any Guarantor or any substantial part of its
property, or otherwise, all as though such payments had not been
made.
(g) Payments.
Each
Guarantor hereby guarantees that payments hereunder will be paid to the
Purchasers without set-off or counterclaim in U.S. dollars at the address set
forth or referred to in the Signature Pages to the Purchase
Agreement.
3. Representations
and Warranties.
Each
Guarantor hereby makes the following representations and warranties to
Purchasers as of the date hereof:
(a) Organization
and Qualification.
The
Guarantor is a corporation, duly incorporated, validly existing and in good
standing under the laws of the applicable jurisdiction set forth on Schedule
1,
with the requisite corporate power and authority to own and use its properties
and assets and to carry on its business as currently conducted. The Guarantor
has no subsidiaries other than those identified as such on the Disclosure
Schedules to the Purchase Agreement. The Guarantor is duly qualified to do
business and is in good standing as a foreign corporation in each jurisdiction
in which the nature of the business conducted or property owned by it makes
such
qualification necessary, except where the failure to be so qualified or in
good
standing, as the case may be, could not, individually or in the aggregate,
(x)
adversely affect the legality, validity or enforceability of any of this
Guaranty in any material respect, (y) have a material adverse effect on the
results of operations, assets, prospects, or financial condition of the
Guarantor or (z) adversely impair in any material respect the Guarantor's
ability to perform fully on a timely basis its obligations under this Guaranty
(a “Material
Adverse Effect”).
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(b) Authorization;
Enforcement.
The
Guarantor has the requisite corporate power and authority to enter into and
to
consummate the transactions contemplated by this Guaranty, and otherwise to
carry out its obligations hereunder. The execution and delivery of this Guaranty
by the Guarantor and the consummation by it of the transactions contemplated
hereby have been duly authorized by all requisite corporate action on the part
of the Guarantor. This Guaranty has been duly executed and delivered by the
Guarantor and constitutes the valid and binding obligation of the Guarantor
enforceable against the Guarantor in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application.
(c) No
Conflicts.
The
execution, delivery and performance of this Guaranty by the Guarantor and the
consummation by the Guarantor of the transactions contemplated thereby do not
and will not (i) conflict with or violate any provision of its Certificate
of
Incorporation or By-laws or (ii) conflict with, constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
or give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Guarantor
is a party, or (iii) result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental
authority to which the Guarantor is subject (including Federal and State
securities laws and regulations), or by which any material property or asset
of
the Guarantor is bound or affected, except in the case of each of clauses (ii)
and (iii), such conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations as could not, individually or in the aggregate,
have or result in a Material Adverse Effect. The business of the Guarantor
is
not being conducted in violation of any law, ordinance or regulation of any
governmental authority, except for violations which, individually or in the
aggregate, do not have a Material Adverse Effect.
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(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) Purchase
Agreement.
The
representations and warranties of the Company set forth in the Purchase
Agreement as they relate to such Guarantor, each of which is hereby incorporated
herein by reference, are true and correct as of each time such representations
are deemed to be made pursuant to such Purchase Agreement, and the Purchasers
shall be entitled to rely on each of them as if they were fully set forth
herein, provided that each reference in each such representation and warranty
to
the Company's knowledge shall, for the purposes of this Section 3, be deemed
to
be a reference to such Guarantor's knowledge.
(f) Foreign
Law.
Each
Guarantor has consulted with appropriate foreign legal counsel with respect
to
any of the above representations for which non-U.S. law is applicable. Such
foreign counsel have advised each applicable Guarantor that such counsel knows
of no reason why any of the above representations would not be true and
accurate. Such foreign counsel were provided with copies of this Subsidiary
Guarantee and the Transaction Documents prior to rendering their advice.
4. Covenants.
(a) Each
Guarantor covenants and agrees with the Purchasers that, from and after the
date
of this Guarantee until the Obligations shall have been indefeasibly 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 (as defined in the
Debentures) 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, without the consent of the Purchasers
holding at least 67% of the Principal Amount of the Debentures then outstanding,
each Guarantor will not directly or indirectly on or after the date of this
Guarantee:
i. 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, other than (A) Permitted
Indebtedness, (B) indebtedness to trade creditors consisting
of capitalized lease obligations and purchase money indebtedness incurred in
the
ordinary course of business in connection with the acquisition of capital assets
and obligations under sale-leaseback arrangements with respect to newly acquired
or leased assets (including, but not limited to equipment financing
transactions) and (C) indebtedness secured by Permitted Liens;
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ii. enter
into, create, incur, assume or suffer to exist any liens of any kind, on or
with
respect to any of its property or assets now owned or hereafter acquired or
any
interest therein or any income or profits therefrom, other than Permitted
Liens;
iii. amend
its
certificate of incorporation, bylaws or other charter documents so as to
adversely affect any rights of any Purchaser;
iv. repay,
repurchase or offer to repay, repurchase or otherwise acquire more than a de
minimis number of shares of its securities or debt obligations, other than
any
regularly scheduled repayment of Permitted Indebtedness;
v. pay
cash
dividends on any equity securities of the Company;
vi. enter
into any transaction with any Affiliate of the Guarantor which would be required
to be disclosed in any public filing of the Company with the Commission, unless
such transaction is made on an arm’s-length basis and expressly approved by a
majority of the disinterested directors of the Company (even if less than a
quorum otherwise required for board approval), other than inter-company
transactions between or among two or more Guarantors or between the Company
and
any Guarantor; provided, that, no such inter-company transaction shall result
in
the disposition of any material assets of a Guarantor to any Affiliate other
than to the Company or another Guarantor; or
vii. 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 Guarantors and the Purchasers
holding at least 67% of the principal amount of the Debentures then
outstanding.
(b) Notices.
All
notices, requests and demands to or upon the Purchasers or any Guarantor
hereunder shall be effected in the manner provided for in the Purchase
Agreement, provided that any such notice, request or demand to or upon any
Guarantor shall be addressed to such Guarantor at its notice address set forth
on Schedule
5(b).
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(c) No
Waiver By Course Of Conduct; Cumulative Remedies.
The
Purchasers shall not by any act (except by a written instrument pursuant to
Section 5(a)), delay, indulgence, omission or otherwise be deemed to have waived
any right or remedy hereunder or to have acquiesced in any default under the
Transaction Documents or Event of Default. No failure to exercise, nor any
delay
in exercising, on the part of the Purchasers, any right, power or privilege
hereunder shall operate as a waiver thereof. No single or partial exercise
of
any right, power or privilege hereunder shall preclude any other or further
exercise thereof or the exercise of any other right, power or privilege. A
waiver by the Purchasers of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the Purchasers
would otherwise have on any future occasion. The rights and remedies herein
provided are cumulative, may be exercised singly or concurrently and are not
exclusive of any other rights or remedies provided by law.
(d) Enforcement
Expenses; Indemnification.
(i) Each
Guarantor agrees to pay, or reimburse the Purchasers for, all its costs and
expenses incurred in collecting against such Guarantor under the guarantee
contained in Section 2 or otherwise enforcing or preserving any rights under
this Guarantee and the other Transaction Documents to which such Guarantor
is a
party, including, without limitation, the reasonable fees and disbursements
of
counsel to the Purchasers.
(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.
(iii) Each
Guarantor agrees to pay, and to save the Purchasers harmless from, any and
all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever with respect
to the execution, delivery, enforcement, performance and administration of
this
Guarantee to the extent the Company would be required to do so pursuant to
the
Purchase Agreement.
(iv) The
agreements in this Section shall survive repayment of the Obligations and all
other amounts payable under the Purchase Agreement and the other Transaction
Documents.
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(e) Successor
and Assigns.
This
Guarantee shall be binding upon the successors and assigns of each Guarantor
and
shall inure to the benefit of the Purchasers and their respective successors
and
assigns; provided that no Guarantor may assign, transfer or delegate any of
its
rights or obligations under this Guarantee without the prior written consent
of
the Purchasers holding at least 67% of the principal amount of the Debentures
then outstanding.
(f) Set-Off.
Each
Guarantor hereby irrevocably authorizes the Purchasers at any time and from
time
to time while an Event of Default under any of the Transaction Documents shall
have occurred and be continuing, without notice to such Guarantor or any other
Guarantor, any such notice being expressly waived by each Guarantor, to set-off
and appropriate and apply any and all deposits, credits, indebtedness or claims,
in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by the Purchasers
to
or for the credit or the account of such Guarantor, or any part thereof in
such
amounts as the Purchasers may elect, against and on account of the obligations
and liabilities of such Guarantor to the Purchasers hereunder and claims of
every nature and description of the Purchasers against such Guarantor, in any
currency, whether arising hereunder, under the Purchase Agreement, any other
Transaction Document or otherwise, as the Purchasers may elect, whether or
not
the Purchasers have made any demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. The Purchasers shall
notify such Guarantor promptly of any such set-off and the application made
by
the Purchasers of the proceeds thereof, provided that the failure to give such
notice shall not affect the validity of such set-off and application. The rights
of the Purchasers under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off) which the
Purchasers may have.
(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.
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(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
Laws.
All
questions concerning the construction, validity, enforcement and interpretation
of this Guarantee shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof. Each of the Company and the Guarantors
agree that all proceedings concerning the interpretations, enforcement and
defense of the transactions contemplated by this Guarantee (whether brought
against a party hereto or its respective affiliates, directors, officers,
shareholders, partners, members, employees or agents) shall be commenced
exclusively in the state and federal courts sitting in the City of New York,
Borough of Manhattan. Each of the Company and the Guarantors hereby irrevocably
submits to the exclusive jurisdiction of the state and federal courts sitting
in
the City of New York, Borough of Manhattan for the adjudication of any dispute
hereunder or in connection herewith or with any transaction contemplated hereby
or discussed herein, and hereby irrevocably waives, and agrees not to assert
in
any proceeding, any claim that it is not personally subject to the jurisdiction
of any such court, that such proceeding is improper. Each party hereto hereby
irrevocably waives personal service of process and consents to process being
served in any such proceeding by mailing a copy thereof via registered or
certified mail or overnight delivery (with evidence of delivery) to such party
at the address in effect for notices to it under this Guarantee and agrees
that
such service shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any way any right
to serve process in any manner permitted by law. Each party hereto hereby
irrevocably waives, to the fullest extent permitted by applicable law, any
and
all right to trial by jury in any legal proceeding arising out of or relating
to
this Guarantee or the transactions contemplated hereby.
(l) 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;
(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.
(m) 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.
(n) Release
of Guarantors.
Each
Guarantor will be released from all liability hereunder concurrently with the
indefeasible repayment in full of all amounts owed under the Purchase Agreement,
the Debentures and the other Transaction Documents.
(o) Seniority.
The
Obligations of each of the Guarantors hereunder rank senior in priority to
any
other Indebtedness of such Guarantor other than Permitted
Indebtedness.
(p) 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.
*********************
(Signature
Pages Follow)
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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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[SUBSIDIARY]
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By:
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Name:
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Title:
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SCHEDULE
1
GUARANTORS
The
following are the names, notice addresses and jurisdiction of organization
of
each Guarantor.
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JURISDICTION OF
INCORPORATION
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COMPANY
OWNED BY
PERCENTAGE
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Annex
1
to
ASSUMPTION
AGREEMENT, dated as of ____ __, ______ made by ______________________________,
a
______________ corporation (the “Additional
Guarantor”),
in
favor of the Purchasers pursuant to the Purchase Agreement referred to below.
All capitalized terms not defined herein shall have the meaning ascribed to
them
in such Purchase Agreement.
W
I T N E S S E T H :
WHEREAS,
QPC Lasers, Inc., a Nevada corporation (the “Company”)
and
the Purchasers have entered into a Securities Purchase Agreement, dated as
of
July 8, 2008 (as amended, supplemented or otherwise modified from time to time,
the “Purchase
Agreement”);
WHEREAS,
in connection with the Purchase Agreement, the Subsidiaries of the Company
(other than the Additional Guarantor) have entered into the Subsidiary
Guarantee, dated as of July 8, 2008 (as amended, supplemented or otherwise
modified from time to time, the “Guarantee”)
in
favor of the Purchasers;
WHEREAS,
the Purchase Agreement requires the Additional Guarantor to become a party
to
the Guarantee; and
WHEREAS,
the Additional Guarantor has agreed to execute and deliver
this Assumption Agreement in order to become a party to the
Guarantee;
NOW,
THEREFORE, IT IS AGREED:
1. Guarantee.
By
executing and delivering this Assumption Agreement, the Additional Guarantor,
as
provided in Section 5(m) 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 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.
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IN
WITNESS WHEREOF, the undersigned has caused this Assumption Agreement
to be duly executed and delivered as of the date first above
written.
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By:
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Name:
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16
