EXHIBIT 10.7.1
Execution Copy
GUARANTY
GUARANTY made as of the 10th day of April, 2006, by XXXXX XXXXXXX, with a
current address at (the "Guarantor"), in favor of AEGIS NY VENTURE
FUND, LP, a New York limited partnership having an office at 000 Xxxxxxx Xxxxxx
- 0xx Xxxxx, Xxx Xxxx, XX 00000 (the "Lender").
WITNESSETH:
WHEREAS, Lender has agreed to make a loan in the principal amount of FIVE
HUNDRED THOUSAND and 00/100 ($500,000.00) (the "Loan") to SLM Holdings, Inc. a
Delaware corporation (the "Borrower"), which is evidenced by Borrower's
promissory note, of like principal amount (the "Note"), dated the date hereof,
and secured by and/or entitled to the benefits of, among other things, (i) the
Loan and Security Agreement, dated as of the date hereof, by and among Borrower,
Sales Lead Management Inc. and Lender (the "Loan Agreement") and (ii) any other
document evidencing, securing or otherwise relating to the Loan now or hereafter
executed and delivered by any of Borrower or any guarantor, as the case may be,
to Lender and any amendments, modifications, renewals, extensions and
replacements thereof and substitutions therefor (collectively, the "Loan
Documents");
WHEREAS, Guarantor will receive substantial direct and indirect benefit by
reason of Lender making the Loan to Borrower;
WHEREAS, Guarantor has determined that his execution, delivery and
performance of this Guaranty directly benefit, and are in the best interests of,
Guarantor; and
WHEREAS, it is a condition precedent to the making of Loan by Lender that
Guarantor shall have executed and delivered to Lender a guaranty guaranteeing
the obligations of Borrower under the Loan Documents.
NOW, THEREFORE, in consideration of the premises and the agreements
herein, and in order to induce Lender to make and maintain the Loan, Guarantor,
intending to be legally bound, hereby agrees with Lender as follows:
1. DEFINITIONS. Reference is hereby made to the Loan Agreement and the
other Loan Documents for a statement of the terms thereof, and Guarantor
represents and warrants that he has read and reviewed each of the Loan
Documents. Unless otherwise defined herein, all terms used in this Guaranty and
not otherwise defined herein shall have the meanings ascribed thereto in the
Loan Agreement.
2. GUARANTY.
a. Guarantor hereby (i) irrevocably, absolutely and unconditionally
guarantees, as guarantor of payment and performance and not merely as a
guarantor of collection, to
Lender and its successors, endorsees, transferees and assigns, (A) the prompt
payment by Borrower, as and when due and payable (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise), of all amounts now or
hereafter owing in respect of the Note, the Loan Agreement and the other Loan
Documents, whether for principal, interest, fees, expenses or otherwise and (B)
the due performance and observance by Borrower of its other obligations now or
hereafter existing in respect of the Loan Documents (collectively, the
"Obligations"); and (ii) agrees to pay any and all expenses (including
reasonable counsel fees and expenses) incurred by Lender in enforcing its rights
under this Guaranty.
b. This Guaranty (i) is a continuing guaranty and shall remain in full
force and effect until satisfaction in full of the Obligations and the payment
of the other expenses to be paid by Guarantor pursuant hereto, and (ii) shall
continue to be effective or shall be reinstated, as the case may be, if at any
time any payment of any of the Obligations is rescinded or must otherwise be
returned by Lender upon the insolvency, bankruptcy or reorganization of Borrower
or otherwise, all as though such payment had not been made.
c. Notwithstanding anything to the contrary in this Guaranty, this
Guaranty shall terminate at such time as the following condition shall have been
satisfied: Guarantor shall deliver to Lender a Certificate certifying that (i)
no Default or Event of Default has occurred and is continuing under the Loan
documents, (ii) that Borrower has raised from and after the Closing Date an
aggregate amount of at least $300,000 from unrelated third parties in the form
of common equity or unsecured subordinated convertible debt with a maturity of
at least 2 years (or a combination thereof) with a purchase or conversion price
into common equity of at least $0.40 per share and (iii) that Borrower has
received payments and provided services for 3 full calendar months to at least
425 subscribers of the Borrower's TBeV service (at an average cost of at least
$300 per subscriber per month), along with evidence reasonably satisfactory to
the Lender with respect to the foregoing. When used in this Guaranty, reference
to the requirement for an average price per subscriber of $300 per month is
meant to scale (so that as long as the seat sales produce the same total revenue
that $300 per month times the stated number of seats for the applicable hurdle
would produce, the hurdle is satisfied (i.e., this hurdle is satisfied if the
borrower has $127,500 in monthly revenue even if the average sale per subscriber
turns out to be less than $300)). This Guaranty shall terminate upon the death
of the Guarantor.
3. GUARANTOR'S OBLIGATIONS UNCONDITIONAL. Guarantor hereby guarantees that
the Obligations will be paid and performed strictly in accordance with the terms
of the Loan 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 Lender with respect thereto. The liability of Guarantor under this
Guaranty shall be absolute and unconditional irrespective of: (i) any lack of
validity or enforceability of any Loan 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 in respect of, all or any of the Obligations, or any other
amendment or waiver of or consent to any departure from any Loan Document; (iii)
any change, amendment or modification of any Loan Document; (iv) any exchange or
release of, or
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non-perfection of any lien on or security interest in, any collateral, or any
release or amendment or waiver of or consent to any departure from any other
guaranty, for all or any of the Obligations or obligations of Borrower under any
Loan Document; or (v) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, Borrower or any Guarantor or any other
guarantor in respect of the Obligations or the obligations of Borrower under the
Loan Documents.
4. WAIVERS. Guarantor hereby waives (i) promptness and diligence; (ii)
notice of acceptance and notice of the incurrence of any Obligation by Borrower
or any obligations of Borrower under the Loan Documents; (iii) notice of any
actions taken by Lender or Borrower or any other party under any Loan Document
or any other agreement or instrument relating thereto; (iv) all other notices,
demands and protests, and all other formalities of every kind in connection with
the enforcement of the Obligations or of the obligations of Borrower or any
other party under any Loan Document or of the obligations of Guarantor
hereunder, the omission of or delay in which, but for the provisions of this
Section 4, might constitute grounds for relieving Guarantor of his obligations
hereunder; and (v) any requirement that Lender protect, secure, perfect or
insure any security interest or lien or any property subject thereto or exhaust
any right or take any action against Borrower or any other person or any
collateral.
5. SUBROGATION. In consideration of the benefits accruing to Guarantor
from Borrower and Lender, Guarantor hereby expressly waives all rights of
subrogation, contribution, indemnification or other similar legal or equitable
rights which Guarantor may now or hereafter otherwise be entitled to assert
against Borrower, whether arising by contract, by operation of law (including,
without limitation, any such right arising under any bankruptcy, insolvency or
similar law) or otherwise with respect to or by reason of any payment by
Guarantor under this Guaranty or on account of the Loan in connection herewith.
If any amount shall be paid to Guarantor on account of such subrogation rights
at any time when all of the Obligations and all other obligations and other
expenses to be paid by Guarantor pursuant hereto shall not have been paid in
full, such amount shall be held in trust for the benefit of Lender, shall be
segregated from the other funds of Guarantor and shall forthwith be paid over to
Lender to be applied in whole or in part by Lender against the Obligations.
Guarantor hereby agrees that this Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time payment of any amount due under
this Agreement or otherwise with respect to the Loan is rescinded or must
otherwise be restored or returned by Lender upon the insolvency, bankruptcy,
receivership, dissolution, liquidation, or reorganization of Borrower, or upon
or as a result of the appointment of a receiver or conservator of, a trustee or
similar officer for the Borrower, or otherwise, all as though such payment had
not been made and irrespective of whether such payment is returned to the party
who originally made it or some other party.
6. REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants as
follows:
a. Guarantor has full power, legal right and capacity to execute and
deliver and to perform Guarantor's obligations under this Guaranty.
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b. The execution, delivery and performance by Guarantor of this Guaranty
(i) does not and will not violate any provision of any applicable law or
regulation or of any order, writ, judgment, injunction or decree of the United
States, the State of New York or any political subdivision thereof, or any
agency, department, commission, board, bureau or instrumentality which exercises
or claims to have jurisdiction over Guarantor or any of Guarantor's properties,
and (ii) does not and will not violate any provision of, or constitute a breach
of or default under, or result in the creation or imposition of any Lien on any
asset of Guarantor pursuant to the provisions of, any mortgage, deed of trust,
indenture, contract, agreement or other undertaking to which Guarantor is a
party or which is binding upon Guarantor or upon any of Guarantor's assets or
properties.
c. No consent, authorization, approval or authority of, or filing,
registration or qualification with, or other action by, or notice to, any
governmental authority or other regulatory body, and no consent of any other
person (from whom such consent has not been obtained and a copy thereof provided
to Lender), is required for the due execution, delivery and performance by
Guarantor of this Guaranty.
d. This Guaranty has been duly executed and delivered by Guarantor and is
a legal, valid and binding obligation of Guarantor, enforceable against
Guarantor in accordance its terms.
e. There are not, in any court or before any arbitrator of any kind or
before or by any governmental or non-governmental body, any actions, suits or
proceedings, pending or, threatened (nor, to the knowledge of Guarantor, is
there any basis therefor) against or in any other way relating to or affecting
(i) this Guaranty, or (ii) Guarantor or the business or any property of
Guarantor, except actions, suits or proceedings that, if adversely determined,
would not, singly or in the aggregate, have a material adverse effect on
Guarantor or adversely affect the ability of Guarantor to perform Guarantor's
obligations hereunder.
f. The personal financial statements of Guarantor as of and for the year
ended December 31, 2005 and the tax returns of Guarantor for the years ended
December 31, 2004 and December 31, 2003, copies of which have been furnished to
Lender, fairly and correctly present the financial condition of Guarantor as at
such date and the income of Guarantor for the year ended on such date, all in
accordance with generally accepted accounting principles consistently applied,
and since December 31, 2005, there has been no material adverse change in such
financial condition or income or prospects of Guarantor.
g. Guarantor owns, of record and beneficially, all of his equity interests
in Borrower and its constituent entities, free and clear of any charges, Liens,
security interests or encumbrances. There are no options or any other rights to
purchase any equity interests in Borrower owned by the Guarantor.
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7. COVENANTS. So long as the Obligations shall remain unpaid, unless
Lender shall otherwise consent in writing:
a. Guarantor shall comply in all material respects with all applicable
laws, rules, regulations and orders, such compliance to include, without
limitation, paying before the same become delinquent all taxes, assessments and
governmental charges imposed upon Guarantor or upon his properties.
b. Guarantor will not take any action that may have a material adverse
effect upon Guarantor's financial condition, or guaranty, endorse (other than
for deposit or collection in the ordinary course of business), discount, or
become or be or remain liable with respect to, directly or indirectly, any
indebtedness, obligation or liability of any other person, except as approved in
advance in writing by Lender in its sole discretion.
c. Guarantor shall furnish to Lender (i) within fifteen (15) days after
Lender's request therefor, copies of all of Guarantor's most recent federal and
state income tax returns, (ii) within sixty (60) days after the end of each
calendar year annual financial statements and (iii) as promptly as possible,
such interim and/or other information with respect to Guarantor as Lender may
reasonably request. All financial statements (and all certifications with
respect thereto) which are required to be delivered to Lender pursuant hereto
shall be acceptable to Lender if prepared in accordance with generally accepted
accounting principles, consistently applied by an accountant acceptable to
Lender.
d. Guarantor shall not, directly or indirectly, sell, assign, transfer,
dispose of, hypothecate, pledge, or otherwise encumber Guarantor's interests,
direct or indirect, in Borrower.
8. RIGHT OF SET-OFF. Upon the occurrence and during the continuance of any
Event of Default, Lender may, and is hereby authorized to, at any time and from
time to time, without notice to Guarantor (any such notice being expressly
waived by 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 Lender to or
for the credit or the account of Guarantor against any and all obligations of
Guarantor now or hereafter existing under this Guaranty, irrespective of whether
or not Lender shall have made any demand under this Guaranty. Lender agrees
promptly to notify Guarantor after any such set-off and application made by
Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of Lender under this
Section 8 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which Lender may have.
9. NOTICES. All notices, requests, consents or other communications
provided for in or to be given under this Guaranty shall be in writing, may be
delivered in person, by facsimile transmission (fax), by overnight air courier
or by certified or registered mail, and shall be deemed to have been duly given
and to have become effective (a) upon receipt if delivered in person or by fax
(and followed by the same or next business day of mailing of such faxed notice
by one of the other methods of delivery permitted
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hereunder), (b) one day after having been delivered to an overnight air courier
or (c) three days after having been deposited in the mails as certified or
registered mail, all fees prepaid, directed to the parties at the following
addresses (or at such other address as shall be given in writing by a party
hereto):
If intended for Lender:
Aegis NY Venture Fund, LP
c/o Aegis NY Venture Fund GP, LLC
000 Xxxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Nimkoff Xxxxxxxxx & Xxxxxxxxx, LLP
Xxx Xxxx Xxxxx, Xxxxx 0000,
Xxx Xxxx XX 00000
Attention: Xxxxxx X. Xxxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
If intended for Guarantor:
With a copy to:
10. CONSENT TO JURISDICTION AND SERVICE OF PROCESS; WAIVER OF RIGHT TO
JURY TRIAL.
a. Guarantor hereby irrevocably submits to the exclusive jurisdiction of
any state or federal court in the State of New York, County of New York in any
action, suit or proceeding brought against such Guarantor under or in connection
with this Guaranty, and hereby irrevocably waives, to the fullest extent it may
effectively do so, the defense of forum non-convenience.
b. GUARANTOR HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS GUARANTY.
11. MISCELLANEOUS.
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a. Guarantor will make each payment hereunder without set-off or
counterclaims in lawful money of the United States of America and in immediately
available funds to Lender at its address specified in Section 9 hereof.
b. No amendment of any provision of this Guaranty shall be effective
unless it is in writing and signed by Guarantor and Lender, and no waiver of any
provision of this Guaranty, and no consent to any departure by Guarantor
therefrom, shall be effective unless it is in writing and signed by Lender, 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 Lender to exercise, and no delay in
exercising, any right hereunder or under any other Loan Document shall operate
as a waiver thereof, nor shall any single or partial exercise of any right
preclude any other or further exercise thereof or the exercise of any other
right. The rights and remedies of Lender provided herein and in the other Loan
Documents are cumulative and are in addition to, and not exclusive of, any
rights or remedies provided by law. The rights of Lender under any Loan Document
against any party thereto are not conditional or contingent on any attempt by
Lender to exercise any of its rights under any other Loan Document against such
party or against any other person.
d. Any provision of this Guaranty which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining portions
hereof or thereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
e. For purposes of this Guaranty, whenever the circumstances or the
context of this Guaranty so requires, the singular shall be construed as the
plural, the masculine shall be construed as the feminine and/or the neuter and
vice versa.
f. This Guaranty shall be binding on Guarantor, but not his heirs, and
shall inure, together with all rights and remedies of Lender hereunder, to the
benefit of Lender and its successors, endorsees, transferees and assigns.
Without limiting the generality of the forgoing, Lender may assign or otherwise
transfer the Note, and its rights under any other Loan Document, to any other
person, and such other person shall thereupon become vested with all of the
benefits in respect thereof granted to Lender herein or otherwise. None of the
rights or obligations of Guarantor hereunder may be assigned or otherwise
transferred without the prior written consent of Lender.
g. This Guaranty shall be governed by and construed in accordance with the
internal laws of the State of New York without regard to the principles of
conflicts of laws.
h. This Guaranty may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
were upon the same instrument. Facsimile signatures shall for all purposes
hereof be deemed to be original signatures of the parties hereto.
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i. From time to time Guarantor shall execute and deliver to Lender such
other instruments, certificates, agreements and documents and will take such
other action and do all other things as may be reasonably requested by Lender in
order to implement or effectuate the terms and provisions of this Guaranty and
the other Loan Documents to which Guarantor is a party.
IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty as
of the date first above written.
/s/ Xxxxx Xxxxxxx
-----------------
XXXXX XXXXXXX
0
XXXXX XX XXX XXXX )
)SS.:
COUNTY OF NEW YORK )
On the 10th day of APRIL, 2006, before me, the undersigned, a notary public in
and for said State, personally appeared XXXXX XXXXXXX, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he
executed the same in his capacity, and that by his signature on the instrument,
the individual, or the person upon behalf of which the individual acted,
executed the instrument.
XXXXXXX X. XXXXXXXX
Notary Public, State of New York
No.02AN5069819 /s/ Xxxxxxx X. Xxxxxxxx
Qualified in New York County -----------------------
Commission Expires 12/02/06 Notary Public
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