GUARANTY
GUARANTY
GUARANTY,
dated as of November 30, 2007 made by each of the undersigned (each a
"Guarantor",
and
collectively, the "Guarantors"),
in
favor of PORTSIDE
GROWTH AND OPPORTUNITY FUND,
a
company organized under the laws of the Cayman Islands, in
its
capacity as collateral agent (in such capacity, the "Collateral
Agent")
for
the "Buyers" (as defined below) party to the Securities Purchase Agreement,
dated as of November 29, 2007 (as amended, restated or otherwise modified from
time to time, the "Securities
Purchase Agreement").
WITNESSETH
:
WHEREAS,
DigitalFX International, Inc., a Florida corporation (the "Company"),
and
each party listed as a "Buyer" on the Schedule of Buyers attached to the
Securities Purchase Agreement (each a "Buyer",
and
collectively, the "Buyers")
are
parties to the Securities Purchase Agreement;
WHEREAS,
the Securities Purchase Agreement requires that the Guarantors execute and
deliver to the Collateral Agent, (i) a guaranty guaranteeing all of the
obligations of the Company under the Securities Purchase Agreement, the Notes
(as defined below and the "Transaction Documents" (as defined in the Securities
Purchase Agreement, the "Transaction
Documents");
and
(ii) a Security Agreement dated the date hereof granting the Collateral Agent
a
lien in all of their personal property (the "Security
Agreement");
and
WHEREAS,
each Guarantor has determined that the execution, delivery and performance
of
this Guaranty directly benefits, and is in the best interest of, such
Guarantor;
NOW,
THEREFORE, in consideration of the premises and the agreements herein and in
order to induce the Buyers to perform under the Securities Purchase Agreement,
each Guarantor hereby agrees with each Buyer as follows:
SECTION
1. Definitions.
Reference is hereby made to the Securities Purchase Agreement and the "Notes"
(as defined) in and issued pursuant to the Securities Purchase Agreement and
(as
such Notes may be amended, restated, replaced or otherwise modified from time
to
time in accordance with the terms thereof, collectively, the "Notes")
for a
statement of the terms thereof. All terms used in this Guaranty, which are
defined in the Securities Purchase Agreement or the Notes and not otherwise
defined herein, shall have the same meanings herein as set forth therein.
SECTION
2. Guaranty.
The
Guarantors, jointly and severally, hereby unconditionally and irrevocably,
guaranty the punctual payment, as and when due and payable, by stated maturity
or otherwise, of all Obligations (as defined in the Security Agreement) of
the
Company from time to time owing by it in respect of the Securities Purchase
Agreement, the Notes and the other Transaction Documents, including, without
limitation, all interest that accrues after the commencement of any Insolvency
Proceeding (as defined in the Security Agreement) of the Company or any
Guarantor, whether or not the payment of such interest is unenforceable or
is
not allowable due to the existence of such Insolvency Proceeding, and all fees,
commissions, expense reimbursements, indemnifications and all other amounts
due
or to become due under any of the Transaction Documents (such obligations,
to
the extent not paid by the Company, being the "Guaranteed
Obligations"),
and
agrees to pay any and all expenses (including reasonable counsel fees and
expenses) reasonably incurred by the Collateral Agent in enforcing any rights
under this Guaranty. Without limiting the generality of the foregoing, each
Guarantor's liability hereunder shall extend to all amounts that constitute
part
of the Guaranteed Obligations and would be owed by the Company to the Collateral
Agent under the Securities Purchase Agreement and the Notes but for the fact
that they are unenforceable or not allowable due to the existence of an
Insolvency Proceeding involving any Guarantor or the Company (each, a
"Transaction
Party").
SECTION
3. Guaranty
Absolute; Continuing Guaranty; Assignments.
(a)
The
Guarantors, jointly and severally, guaranty that the Guaranteed Obligations
will
be paid strictly in accordance with the terms of the Transaction Documents,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Collateral Agent
with respect thereto. The obligations of each Guarantor under this Guaranty
are
independent of the Guaranteed Obligations, and a separate action or actions
may
be brought and prosecuted against any Guarantor to enforce such obligations,
irrespective of whether any action is brought against any Transaction Party
or
whether any Transaction Party is joined in any such action or actions. The
liability of any Guarantor under this Guaranty shall be irrevocable, absolute
and unconditional irrespective of, and each Guarantor hereby irrevocably waives,
to the extent permitted by law, any defenses it may now or hereafter have in
any
way relating to, any or all of the following:
(i) any
lack
of validity or enforceability of any Transaction Document or any agreement
or
instrument relating thereto;
(ii) any
change in the time, manner or place of payment of, or in any other term of,
all
or any of the Guaranteed Obligations, or any other amendment or waiver of or
any
consent to departure from any Transaction Document, including, without
limitation, any increase in the Guaranteed Obligations resulting from the
extension of additional credit to any Transaction
Party
or
otherwise;
(iii) any
taking, exchange, release or non-perfection of any Collateral (as defined in
the
Security Agreement), or any taking, release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(iv) any
change, restructuring or termination of the corporate, limited liability company
or partnership structure or existence of any Transaction
Party;
or
(v) any
other
circumstance (including any statute of limitations) or any existence of or
reliance on any representation by the Collateral Agent that might otherwise
constitute a defense available to, or a discharge of, any Transaction Party
or
any other guarantor or surety.
This
Guaranty shall continue to be effective or be reinstated, as the case may be,
if
at any time any payment of any of the Guaranteed Obligations is rescinded or
must otherwise be returned by the Collateral
Agent
or any
other Person upon the insolvency, bankruptcy or reorganization of any
Transaction Party or otherwise, all as though such payment had not been
made.
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(b)
This
Guaranty is a continuing guaranty and shall (i) remain in full force and effect
until the indefeasible cash payment in full of the Guaranteed Obligations (other
than inchoate indemnity obligations) and/or complete conversion of all of the
Company's obligations under the Notes to equity securities of the Company and
payment of all other amounts payable under this Guaranty (other than inchoate
indemnity obligations) and shall not terminate for any reason prior to the
Maturity Date of the Notes (other than payment in full of the Notes and/or
complete conversion of all of the Company's obligations under the Notes to
equity securities of the Company) and (ii) be binding upon each Guarantor and
its respective successors and assigns. This Guaranty shall inure to the benefit
of and be enforceable by the Collateral
Agent
and its
successors, and permitted pledgees, transferees and assigns. Without limiting
the generality of the foregoing sentence, the Collateral Agent or any Buyer
may
pledge, assign or otherwise transfer all or any portion of its rights and
obligations under and subject to the terms of any Transaction Document to any
other Person, and such other Person shall thereupon become vested with all
the
benefits in respect thereof granted to such Collateral Agent or Buyer herein
or
otherwise, in each case as provided in the Securities Purchase Agreement or
such
Transaction Document. Notwithstanding the foregoing and for the avoidance of
doubt, this Guaranty will expire and each Guarantor will be released from its
obligation hereunder upon the earlier of payment in full and/or complete
conversion of the Obligations to equity securities of the Company.
SECTION
4. Waivers.
To the
extent permitted by applicable law, each Guarantor hereby
waives promptness, diligence, notice of acceptance and any other notice with
respect to any of the Guaranteed Obligations and this Guaranty and any
requirement that the Collateral Agent exhaust any right or take any action
against any Transaction Party or any other Person or any Collateral. Each
Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated herein and that the waiver set forth
in
this Section 4
is knowingly made in contemplation of such benefits. The Guarantors hereby
waive
any right to revoke this Guaranty, and acknowledge that this Guaranty is
continuing in nature and applies to all Guaranteed Obligations, whether existing
now or in the future.
SECTION
5. Subrogation.
No
Guarantor may exercise any rights that it may now or hereafter acquire against
any Transaction Party or any other guarantor that arise from the existence,
payment, performance or enforcement of any Guarantor's obligations under this
Guaranty, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of the Collateral Agent against any
Transaction Party or any other guarantor or any Collateral, whether or not
such
claim, remedy or right arises in equity or under contract, statute or common
law, including, without limitation, the right to take or receive from any
Transaction Party or any other guarantor, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security solely
on account of such claim, remedy or right, unless and until all of the
Guaranteed Obligations (other than inchoate indemnity obligations) and all
other
amounts payable under this Guaranty (other than inchoate indemnity obligations)
shall have indefeasibly
been
paid in full in cash and/or completely converted to equity securities of the
Company. If any amount shall be paid to a Guarantor in violation of the
immediately preceding sentence at any time prior to the later of the payment
in
full in cash and/or complete conversion to equity securities of the Company
of
the Guaranteed Obligations and all other amounts payable under this Guaranty,
such amount shall be held in trust for the benefit of the Collateral Agent
and
shall forthwith be paid to the Collateral Agent to be credited and applied
to
the Guaranteed Obligations and all other amounts payable under this Guaranty,
whether matured or unmatured, in accordance with the terms of the Transaction
Document, or to be held as Collateral for any Guaranteed Obligations or other
amounts payable under this Guaranty thereafter arising. If (a) any
Guarantor shall make payment to the Collateral Agent of all or any part of
the
Guaranteed Obligations, and (b) all of the Guaranteed Obligations (other
than inchoate indemnity obligations) and all other amounts payable under this
Guaranty (other than inchoate indemnity obligations) shall indefeasibly
be
paid in full in cash and/or completely converted to equity securities of the
Company, the Collateral Agent will, at such Guarantor's request and expense,
execute and deliver to such Guarantor appropriate documents, without recourse
and without representation or warranty, necessary to evidence the transfer
by
subrogation to such Guarantor of an interest in the Guaranteed Obligations
resulting from such payment by such Guarantor.
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SECTION
6. Representations,
Warranties and Covenants.
(a)
Each
Guarantor hereby represents and warrants as of the date first written above
as
follows:
(i) The
Guarantor (A) is a corporation, limited liability company or limited partnership
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization as set forth on the signature pages hereto,
(B)
has all requisite corporate, limited liability company or limited partnership
power and authority to conduct its business as now conducted and as presently
contemplated and to execute and deliver this Guaranty and each other Transaction
Document to which the
Guarantor
is a
party, and to consummate the transactions contemplated hereby and thereby and
(C) is duly qualified to do business and is in good standing in each
jurisdiction in which the character of the properties owned or leased by it
or
in which the transaction of its business makes such qualification necessary
except where the failure to be so qualified would not result in a Material
Adverse Effect.
(ii) The
execution, delivery and performance by the
Guarantor
of this
Guaranty and each other Transaction Document to which the
Guarantor
is a
party (A) have been duly authorized by all necessary corporate, limited
liability company or limited partnership action, (B) do not and will not
contravene its charter or by-laws, its limited liability company or operating
agreement or its certificate of partnership or partnership agreement, as
applicable, or any applicable law or any contractual restriction binding on
the
Guarantor
or its
properties do not and will not result in or require the creation of any lien
(other than pursuant to any Transaction Document) upon or with respect to any
of
its properties, and (C) do not and will not result in any default,
noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal
of
any material permit, license, authorization or approval applicable to it or
its
operations or any of its properties.
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(iii) No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority is required in connection with the due execution,
delivery and performance by the
Guarantor
of this
Guaranty or any of the other Transaction Documents to which the
Guarantor
is a
party (other than expressly provided for in any of the Transaction
Documents).
(iv) Each
of
this Guaranty and the other Transaction Documents to which the
Guarantor
is or
will be a party, when delivered, will be, a legal, valid and binding obligation
of the
Guarantor,
enforceable against the
Guarantor
in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, suretyship or
other similar laws and equitable principles (regardless of whether enforcement
is sought in equity or at law).
(v) There
is
no pending or, to the best knowledge of the
Guarantor,
threatened action, suit or proceeding against the
Guarantor
or to
which any of the properties of the
Guarantor
is
subject, before any court or other governmental authority or any arbitrator
that
(A) if adversely determined, could reasonably be expected to have a
Material Adverse Effect or (B) relates to this Guaranty or any of the other
Transaction Documents to which the
Guarantor
is a
party or any transaction contemplated hereby or thereby.
(vi) The
Guarantor (A) has read and understands the terms and conditions of the
Securities Purchase Agreement and the other Transaction Documents, and
(B) now has and will continue to have independent means of obtaining
information concerning the affairs, financial condition and business of the
Company and the other Transaction Parties, and has no need of, or right to
obtain from any Buyer, any credit or other information concerning the affairs,
financial condition or business of the Company or the other Transaction Parties
that may come under the control of any Buyer.
(b)
The
Guarantor covenants and agrees that until indefeasible full and final payment
of
the Guaranteed Obligations and/or complete conversion of all of the Company's
obligations under the Notes to equity securities of the Company, it will comply
with each of the covenants (except to the extent applicable only to a public
company) which are set forth in Section 4
of the Securities Purchase Agreement as if the Guarantor were a party
thereto.
SECTION
7. Right
of Set-off.
Upon
the occurrence and during the continuance of any Event of Default, any
Buyer may, and is hereby authorized to, at any time and from time to time,
without notice to the Guarantors (any such notice being expressly waived by
each
Guarantor) and to the fullest extent permitted by law, set-off and apply any
and
all deposits (general or special, time or demand, provisional or final) at
any
time held and other indebtedness at any time owing by any Buyer to or for the
credit or the account of any Guarantor against any and all obligations of the
Guarantors now or hereafter existing under this Guaranty or any other
Transaction Document, irrespective of whether or not any Buyer shall have made
any demand under this Guaranty or any other Transaction Document and although
such obligations may be contingent or unmatured. Each Buyer agrees to notify
the
relevant Guarantor promptly after any such set-off and application made by
such
Buyer, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of any Buyer under this
Section 7
are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) which such Buyer may have under this Guaranty or any other
Transaction Document in law or otherwise.
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SECTION
8. Notices,
Etc.
All
notices and other communications provided for hereunder shall be in writing
and
shall be mailed, telecopied or delivered, if to any Guarantor that is a Foreign
Subsidiary (as defined in the Security Agreement), to the address of the Company
set forth on the signature page hereto, if to any Guarantor that is not a
Foreign Subsidiary, to it at its address set forth on the signature page hereto,
or if to the Collateral Agent or any Buyer, to it at its respective address
set
forth in the Securities Purchase Agreement; or as to any Person at such other
address as shall be designated by such Person in a written notice to such other
Person complying as to delivery with the terms of this Section 8.
All
such notices and other communications shall be effective (i) if mailed (by
certified mail, postage prepaid and return receipt requested), when received
or
three Business Days after deposited in the mails, whichever occurs first; (ii)
if telecopied, when transmitted and confirmation is received, provided same
is
on a Business Day and, if not, on the next Business Day; or (iii) if delivered
by hand, upon delivery, provided same is on a Business Day and, if not, on
the
next Business Day. For the avoidance of doubt, the Foreign Subsidiaries, as
Guarantors, hereby appoint the Company as its agent for receipt of service
of
process and all notices and other communications in the United States at the
address specified below.
SECTION
9. CONSENT
TO JURISDICTION; SERVICE OF PROCESS AND VENUE.
ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER
TRANSACTION DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXX XXXX
IN
THE COUNTY OF NEW YORK OR OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
GUARANTOR HEREBY IRREVOCABLY ACCEPTS IN RESPECT OF ITS PROPERTY, GENERALLY
AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS.
EACH
GUARANTOR HEREBY IRREVOCABLY APPOINTS THE SECRETARY OF STATE OF THE STATE OF
NEW
YORK AS ITS AGENT FOR SERVICE OF PROCESS IN RESPECT OF ANY SUCH ACTION OR
PROCEEDING AND FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF
ANY
OF THE AFOREMENTIONED COURTS AND IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING
OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, AT ITS
ADDRESS FOR NOTICES AS SET FORTH ON THE SIGNATURE PAGE HERETO AND TO THE
SECRETARY OF STATE OF THE STATE OF NEW YORK, SUCH SERVICE TO BECOME EFFECTIVE
TEN (10) DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
THE
COLLATERAL AGENT TO SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR
TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST EACH GUARANTOR IN
ANY
OTHER JURISDICTION. ANY GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES,
TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE JURISDICTION OR LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT
IN
ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS
BEEN
BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT ANY GUARANTOR HAS OR
HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY
LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT,
ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS
PROPERTY, EACH GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT
OF
ITS OBLIGATIONS UNDER THIS GUARANTY AND THE OTHER TRANSACTION
DOCUMENTS.
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SECTION
10. WAIVER
OF JURY TRIAL, ETC.
EACH
GUARANTOR HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING
OR COUNTERCLAIM CONCERNING ANY RIGHTS UNDER THIS GUARANTY OR THE OTHER
TRANSACTION DOCUMENTS, OR UNDER ANY AMENDMENT, WAIVER, CONSENT, INSTRUMENT,
DOCUMENT OR OTHER AGREEMENT DELIVERED OR WHICH IN THE FUTURE MAY BE DELIVERED
IN
CONNECTION HEREWITH OR THEREWITH, OR ARISING FROM ANY FINANCING RELATIONSHIP
EXISTING IN CONNECTION WITH THIS GUARANTY OR THE OTHER TRANSACTION DOCUMENTS,
AND AGREES THAT ANY SUCH ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY. EACH GUARANTOR CERTIFIES THAT NO OFFICER,
REPRESENTATIVE, AGENT OR ATTORNEY OF THE COLLATERAL AGENT OR ANY BUYER HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT ANY BUYER WOULD NOT, IN THE EVENT
OF
ANY ACTION, PROCEEDING OR COUNTERCLAIM, SEEK TO ENFORCE THE FOREGOING WAIVERS.
EACH GUARANTOR HEREBY ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT
FOR THE COLLATERAL
AGENT
ENTERING
INTO THIS AGREEMENT.
SECTION
11. Taxes.
(a)
All
payments made by any Guarantor hereunder or under any other Transaction Document
shall be made in accordance with the terms of the respective Transaction
Document and shall be made without set-off, counterclaim, deduction or other
defense. All such payments shall be made free and clear of and without deduction
for any present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding
taxes
imposed on the net income of any Buyer by the jurisdiction in which such Buyer
is organized or where it has its principal lending office (all such nonexcluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities,
collectively or individually, "Taxes").
If
any Guarantor shall be required to deduct or to withhold any Taxes from or
in
respect of any amount payable hereunder or under any other Transaction
Document:
(i) the
amount so payable shall be increased to the extent necessary so that after
making all required deductions and withholdings (including Taxes on amounts
payable to any Buyer pursuant to this sentence) each Buyer receives an amount
equal to the sum it would have received had no such deduction or withholding
been made,
(ii) such
Guarantor shall make such deduction or withholding,
(iii) such
Guarantor shall pay the full amount deducted or withheld to the relevant
taxation authority in accordance with applicable law, and
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(iv) as
promptly as possible thereafter, such Guarantor shall send the Buyers an
official receipt (or, if an official receipt is not available, such other
documentation as shall be satisfactory to the Collateral Agent, as the case
may
be) showing payment. In addition, each Guarantor agrees to pay any present
or future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies that arise from any payment made hereunder or from
the
execution, delivery, registration or enforcement of, or otherwise with respect
to, this Agreement or any other Transaction Document (collectively,
"Other
Taxes").
(b)
Each
Guarantor hereby indemnifies and agrees to hold the Collateral Agent and each
Buyer (each an "Indemnified
Party")
harmless from and against Taxes or Other Taxes (including, without limitation,
any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under
this Section 11)
paid by
any Indemnified Party as a result of any payment made hereunder or from
the execution, delivery, registration or enforcement of, or otherwise with
respect to, this Agreement or any other Transaction Document, and any liability
(including penalties, interest and expenses for nonpayment, late payment or
otherwise) arising therefrom or with respect thereto, whether or not such Taxes
or Other Taxes were correctly or legally asserted. This indemnification
shall be paid within 30 days from the date on which the Collateral Agent or
such
Buyer makes written demand therefor, which demand shall identify the nature
and
amount of such Taxes or Other Taxes.
(c)
If
any
Guarantor fails to perform any of its obligations under this Section 11,
such
Guarantor shall indemnify the Collateral Agent and each Buyer for any taxes,
interest or penalties that may become payable as a result of any such failure.
The obligations of the Guarantors under this Section 11
shall
survive the termination of this Guaranty and the payment of the Obligations
and
all other amounts payable hereunder.
SECTION
12. Miscellaneous.
(a)
Each
Guarantor will make each payment hereunder in lawful money of the United States
of America and in immediately available funds to each Buyer, at such address
specified by such Buyer from time to time by notice to the
Guarantors.
(b)
No
amendment or waiver of any provision of this Guaranty and no consent to any
departure by any Guarantor therefrom shall in any event be effective unless
the
same shall be in writing and signed by each Guarantor and each Buyer, and then
such waiver or consent shall be effective only in the specific instance and
for
the specific purpose for which given.
(c)
No
failure on the part of any Buyer to exercise, and no delay in exercising, any
right hereunder or under any other Transaction Document shall operate as a
waiver thereof, nor shall any single or partial exercise of any right hereunder
or under any Transaction Document preclude any other or further exercise thereof
or the exercise of any other right. The rights and remedies of the Collateral
Agent and the Buyers provided herein and in the other Transaction Documents
are
cumulative and are in addition to, and not exclusive of, any rights or remedies
provided by law. The rights of the Collateral Agent and the Buyers under any
Transaction Document against any party thereto are not conditional or contingent
on any attempt by the Collateral Agent or any Buyer to exercise any of their
respective rights under any other Transaction Document against such party or
against any other Person.
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(d)
Any
provision of this Guaranty that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining portions
hereof or affecting the validity or enforceability of such provision in any
other jurisdiction.
(e)
This
Guaranty shall (i) be binding on each Guarantor and its respective successors
and assigns, and (ii) inure, together with all rights and remedies of the
Collateral Agent hereunder, to the benefit of the Collateral Agent, the Buyers
and their respective successors, transferees and assigns. Without limiting
the
generality of clause (ii) of the immediately preceding sentence, the Collateral
Agent and any Buyer may assign or otherwise transfer its rights and obligations
under the Securities Purchase Agreement or any other Transaction Document to
any
other Person in accordance with the terms thereof, and such other Person shall
thereupon become vested with all of the benefits in respect thereof granted
to
the Collateral Agent or such Buyer, as the case may be, herein or otherwise.
None of the rights or obligations of any Guarantor hereunder may be assigned
or
otherwise transferred without the prior written consent of each
Buyer.
(f)
This
Guaranty reflects the entire understanding of the transaction contemplated
hereby and shall not be contradicted or qualified by any other agreement, oral
or written, entered into before the date hereof.
(g)
Section
headings herein are included for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.
(h)
THIS
GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED THEREIN
WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
[REMAINDER
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IN
WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed by
its
respective duly authorized officer, as of the date first above
written.
| DIGITALFX NETWORKS, LLC | ||
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| By: | ||
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Title:
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| DIGITALFX SOLUTIONS, LLC | ||
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| By: | ||
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Name: |
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Title:
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| VMDIRECT L.L.C. | ||
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| By: | ||
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Name: |
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Title:
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Guaranty
