EX-4
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exhibit_4-5.htm
SUBSIDIARY GUARANTEE AGREEMENT
Exhibit
4.5
SUBSIDIARY
GUARANTEE
This
SUBSIDIARY GUARANTEE, dated as of November [27], 2017 (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 purchasers signatory (together with their permitted assigns, the “Secured Parties”) to that
certain Securities Purchase Agreement (the “Purchase Agreement”), dated as of the date hereof, among Envoy
Group Corp., a Florida corporation(the “Company”) and the Secured Parties.
W
I T N E S S E T H:
WHEREAS,
pursuant to the Purchase Agreement, the Company has agreed to sell and issue to the Secured Parties, and the Secured Parties have
agreed to purchase from the Company the Securities (as defined in the Purchase Agreement (as defined below)), subject to the terms
and conditions set forth therein; and
WHEREAS,
each Guarantor will directly benefit from the funding given to the Company by the Secured Parties represented by the issuance
of the Securities (as defined in the Purchase Agreement (as defined below));
WHEREAS,
as a material inducement to the Secured Parties to enter into the Purchase Agreement and all the other agreements to be entered
into in connection therewith, the Secured Parties have requested the Guarantors and the Company enter into this Guarantee, and
NOW,
THEREFORE, in consideration of the premises, each Guarantor hereby agrees with the Secured Parties as follows:
1. Definitions.
Unless otherwise defined herein, terms defined in the Purchase Agreement or the other Transaction Documents (as defined in the
Purchase Agreement) and used herein shall have the meanings given to them in the Purchase Agreement and the other Transaction
Documents (as defined 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.
“Obligations”
means, in addition to all other costs and expenses of collection incurred by Secured Parties 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 Secured Parties, including, without limitation, all obligations under this Guarantee, the
Securities, that certain Intellectual Property Security Agreement (the “Intellectual Property Security
Agreement”), dated as of the date hereof, among the Company and the collateral agent for the Secured Parties, the
other Transaction Documents (as defined in the Purchase Agreement), 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 Secured Parties 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, interest, and any
other amounts owed on the Notes as set forth in the Notes; (ii) any and all obligations due under the Transaction Documents
(as defined in the Purchase Agreement), (iii) any and all other fees, indemnities, costs, obligations and liabilities of the
Debtors from time to time under or in connection with this Agreement, the Securities, this Guarantee, the other
Transaction Documents (as defined in the Purchase Agreement) and any other instruments, agreements or other documents
executed and/or delivered in connection herewith or therewith; and (iv) 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 Secured Parties and their respective successors, endorsees, 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 Secured Parties 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 Secured Parties 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 Secured Parties 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 Secured Parties and each Guarantor shall remain liable
to the Secured Parties 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 Secured Parties, no Guarantor shall be entitled to be subrogated to any of the rights of the Secured Parties against the
Company or any other Guarantor or any collateral security or guarantee or right of offset held by the Secured Parties 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 Secured Parties
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 Secured Parties, segregated from other funds of such Guarantor, and shall, forthwith upon receipt
by such Guarantor, be turned over to the Agent in the exact form received by such Guarantor (duly indorsed by such Guarantor to
the Agent, if required), applied against the Obligations, whether matured or unmatured, in such order as the Secured Parties 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 Secured Parties may be rescinded by the Secured Parties 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 Secured Parties, 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 Secured Parties may deem advisable from time to time, and any collateral security, guarantee or right
of offset at any time held by the Secured Parties for the payment of the Obligations may be sold, exchanged, waived, surrendered
or released. The Secured Parties 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 Secured Parties 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 Secured
Parties, 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 Secured
Parties, (b) any defense, set-off or counterclaim (other than a defense of payment or performance or fraud by Secured
Parties) which may at any time be available to or be asserted by the Company or any other Person against the Secured Parties,
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 Secured Parties 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 Secured Parties 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 Secured Parties 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 Secured
Parties 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 Secured Parties 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 Secured Parties 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”).
(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.
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(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.
(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 Secured Parties 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. If applicable, 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.
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4. Covenants.
(a) Each
Guarantor covenants and agrees with the Secured Parties 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
Triggering Event or Event of Default (as defined in the Security Agreement) 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, unless Secured Parties holding at
least sixty-seven (67%) of the then issued and outstanding Shares shall otherwise consent in writing, 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;
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 except for permitted
Liens;
iii.
Amend its certificate of incorporation, bylaws or other charter documents so as to adversely affect any rights of any Secured
Party;
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;
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);
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 Secured Parties.
(b) Notices.
All notices, requests and demands to or upon the Secured Parties 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 Secured Parties 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 Secured Parties, 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 Secured Parties of any right or
remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy which the Secured Parties 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 Secured Parties 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 Secured Parties.
(ii)
Each Guarantor agrees to pay, and to save the Secured Parties 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 Secured Parties 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.
(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 Secured Parties 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 Secured Parties.
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(f) Set-Off.
Each Guarantor hereby irrevocably authorizes the Secured Parties 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 setoff 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 Secured Parties to or for the credit or the account of such Guarantor,
or any part thereof in such amounts as the Secured Parties may elect, against and on account of the obligations and
liabilities of such Guarantor to the Secured Parties hereunder and claims of every nature and description of the Secured
Parties against such Guarantor, in any currency, whether arising hereunder, under the Purchase Agreement, any other
Transaction Document or otherwise, as the Secured Parties may elect, whether or not the Secured Parties have made any demand
for payment and although such obligations, liabilities and claims may be contingent or unmatured. The Secured Parties shall
notify such Guarantor promptly of any such set-off and the application made by the Secured Parties 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 Secured Parties under this Section are in addition to other rights and remedies (including, without limitation, other
rights of set-off) which the Secured Parties may have.
(g)
Counterparts. This Guarantee may be executed in two or more counterparts, all
of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have
been signed by each party and delivered to each other party, it being understood that the parties need not sign the same counterpart.
In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file,
such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed)
with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
(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 Secured Parties with respect to the subject matter hereof and thereof, and there are no promises,
undertakings, representations or warranties by the Secured Parties relative to subject matter hereof and thereof not expressly
set forth or referred to herein or in the other Transaction Documents.
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(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.
(1) 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 (as defined in the Purchase Agreement) to which it is a party;
(ii)
The Secured Parties 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 Secured Parties, on the other hand, in connection herewith or therewith is solely that of debtor and
creditor; and
(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 Secured Parties.
(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 Securities, and the
other Transaction Documents.
(o)
Seniority. The Obligations of each of the Guarantors hereunder rank senior in
priority to any other Indebtedness (as defined in the Purchase Agreement) of such Guarantor.
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(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.
[SUBSIDIARY
NO. 1]
[ANY
OTHER SUBSIDIARIES]
Consented
and agreed to:
ENVOY
GROUP CORP.
| By: | /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Sangha | |
| | Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Sangha | |
| | Title: Chairman/CFO | |
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SCHEDULE
1
GUARANTORS
The
following are the names, notice addresses and jurisdiction of organization of each Guarantor.
| NAME/ADDRESS | JURISDICTION
OF | COMPANY
PERCENTAGE |
| | INCORPORATION | OWNERSHIP |
| | | |
| [Subsidiary No. 1] | [________] | [___]% |
[INCLUDE
ANY OTHER SUBSIDIARIES]
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DISCLOSURE
SCHEDULES
(Subsidiary
Guarantee)
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ANNEX
1 TO
SUBSIDIARY
GUARANTEE
Assumption
Agreement, dated as of _______________ _, ___________ made by ____________, a _______________ corporation (the
“Additional Guarantor”), in favor of the Secured Parties 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,
Envoy Group Corp., a Florida corporation (the “Company”) and the Secured Parties have entered into a Securities
Purchase Agreement, dated as of November [__], 2017 (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 November [__], 2017 (as amended, supplemented or otherwise modified from time to time,
the “Guarantee”) in favor of the Secured Parties;
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.
| | [ADDITIONAL
GUARANTOR] |
| | | |
| | By: | |
| | Name:
|
| | Title: |
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