AMENDED AND RESTATED GUARANTY
AMENDED
AND RESTATED GUARANTY
February
13, 2006
WHEREAS
Cancable Inc., an Ontario corporation (“Cancable
Canada”)
Cancable Holding Corp., a Delaware corporation (“Cancable
Holding”)
and
Laurus Master Fund, Ltd. a Cayman Islands company (“Laurus”)
have
entered into a Securities Purchase Agreement dated December 31, 2005 (as
amended, modified or supplemented from time to time, the “2005
Securities Purchase Agreement”)
providing for the execution of the Related Agreements (as defined therein)(the
“2005
Related Agreements”);
WHEREAS
Creative Vistas, Inc., an Arizona corporation (the “Parent”),
A.C.
Technical Systems Ltd., an Ontario corporation (“A.C.
Ltd.”),
Creative Vistas Acquisition Corp., an Ontario corporation (“Creative
Vistas Acquisition”),
Cancable Holding, Iview Digital Video Solutions Inc., a federal Canadian
corporation (“Iview”)
and
Cancable, Inc., a Nevada corporation (“Cancable
US”)
have
given a guarantee dated December 31, 2005 in favour of Laurus (the “2005
Guarantee”);
WHEREAS
Iview, the Parent and Iview Holding Corp., a Delaware corporation (“Iview
Holding”)
have
entered into a Securities Purchase Agreement dated January 31, 2006 (as amended,
modified or supplemented from time to time, the “2006
Securities Purchase Agreement”)
providing for the execution of the Related Agreements (as defined therein)(
the
“2006
Related Agreements”);
WHEREAS
it is a condition of the 2006 Securities Purchase Agreement that the 2005
Guaranty is amended and restated to among other things include the obligations
pursuant to the 2006 Securities Purchase Agreement and the 2006 Related
Agreements;
NOW
THEREFORE FOR VALUE RECEIVED, and in consideration of note purchases from,
loans
made or to be made or credit otherwise extended or to be extended by Laurus
to
or for the account of Cancable Canada, Iview and/or the Parent (each a
“Debtor”
and
collectively the “Debtors”),
from
time to time and at any time and for other good and valuable consideration
and
to induce Laurus, in its discretion, to purchase such notes, make such loans
or
extensions of credit and to make or grant such renewals, extensions, releases
of
collateral or relinquishments of legal rights as Laurus may deem advisable,
each
of the undersigned (and each of them if more than one, the liability under
this
Amended and Restated Guaranty being joint and several) (jointly and severally
referred to as “Guarantors”
or
“the
undersigned”)
irrevocably and unconditionally guarantees to Laurus, its successors, endorsees
and assigns the prompt payment when due (whether by acceleration or otherwise)
of all present and future obligations and liabilities of any and all kinds
of
the Debtors to Laurus and of all instruments of any nature evidencing or
relating to any such obligations and liabilities upon which any Debtor or one
or
more parties and any Debtor are or may become liable to Laurus, whether incurred
by any Debtor as makers, endorsers, drawers, acceptors, guarantors,
accommodation parties or otherwise, and whether due or to become due, secured
or
unsecured, absolute or contingent, joint or several, and however or whenever
acquired by Laurus, whether arising under, out of, or in connection with
(i) the 2005 Securities Purchase Agreement, (ii) each 2005 Related
Agreement, (the 2005 Securities Purchase Agreement and the 2005 Related
Agreements, as each may be amended, modified, restated or supplemented from
time
to time, are collectively referred to herein as the “2005
Documents”),
(iii)
the 2006 Securities Purchase Agreement, (iv) each 2006 Related Agreement (the
2006 Securities Purchase Agreement and the Related Agreements, as each may
be
amended, modified, restated or supplemented from time to time are collectively
referred to herein as the “2006
Documents”)
or any
documents, instruments or agreements relating to or executed in connection
with
the 2005 Documents, 2006 Documents or any documents, instruments or agreements
referred to therein or otherwise, or any other indebtedness, obligations or
liabilities of the Debtors to Laurus, whether now existing or hereafter arising,
direct or indirect, liquidated or unliquidated, absolute or contingent, due
or
not due and whether under, pursuant to or evidenced by a note, agreement,
guaranty, instrument or otherwise (all of which are herein collectively referred
to as the “Obligations”),
and
irrespective of the genuineness, validity, regularity or enforceability of
such
Obligations, or of any instrument evidencing any of the Obligations or of any
collateral therefor or of the existence or extent of such collateral, and
irrespective of the allowability, allowance or disallowance of any or all of
the
Obligations in any case commenced by or against any Debtor under Xxxxx 00,
Xxxxxx Xxxxxx Code, the Bankruptcy
and Insolvency Act
(Canada)
(the “BIA”)
and
the Companies’
Creditors Arrangement Act
(the
“CCAA”)
including, without limitation, obligations or indebtedness of any or all of
the
Debtors for post-petition interest, fees, costs and charges that would have
accrued or been added to the Obligations but for the commencement of such case.
For greater certainty, the Indebtedness (as defined in the Debenture dated
as of
December 31, 2005 granted by A.C. Technical Systems Ltd. in favor of Laurus
registered as instrument No. DR463328) shall include the Obligations hereunder.
Terms not otherwise defined herein shall have the meaning assigned such terms
in
the 2006 Securities Purchase Agreement. In furtherance of the foregoing, the
undersigned hereby agree as follows:
1. |
No
Impairment.
Laurus may at any time and from time to time, either before or after
the
maturity thereof, without notice to or further consent of the undersigned,
extend the time of payment of, exchange or surrender any collateral
for,
renew or extend any of the Obligations or increase or decrease the
interest rate thereon, or any other agreement with any or all of
the
Debtors or with any other party to or person liable on any of the
Obligations, or interested therein, for the extension, renewal, payment,
compromise, discharge or release thereof, in whole or in part, or
for any
modification of the terms thereof or of any agreement between Laurus
and
any or all of the Debtors or any such other party or person, or make
any
election of rights Laurus may deem desirable under the United States
Bankruptcy Code, as amended, the BIA, the CCAA, or any other federal,
provincial or state bankruptcy, reorganization, moratorium or insolvency
law relating to or affecting the enforcement of creditors’ rights
generally (any of the foregoing, an “Insolvency
Law”)
without in any way impairing or affecting this Amended and Restated
Guaranty. This instrument shall be effective regardless of the subsequent
incorporation, merger, amalgamation or consolidation of any of the
Debtors
or Guarantors, or any change in the composition, nature, personnel
or
location of any of the Debtors or Guarantors and shall extend to
any
successor entity to any of the Debtors or Guarantors, including a
debtor
in possession or the like under any Insolvency
Law.
|
2
2. |
Guaranty
Absolute.
Each of the undersigned jointly and severally guarantees that the
Obligations will be paid strictly in accordance with the terms of
the 2005
Documents and 2006 Documents and/or any other document, instrument
or
agreement creating or evidencing the Obligations, 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 Debtors with respect
thereto. Guarantors hereby knowingly accept the full range of risk
encompassed within a contract of “continuing guaranty” which risk includes
the possibility that the Debtors will contract additional indebtedness
for
which Guarantors may be liable hereunder after the Debtors’ financial
condition or ability to pay their lawful debts when they fall due
has
deteriorated, whether or not the Debtors have properly authorized
incurring such additional indebtedness. The undersigned acknowledge
that
(i) no oral representations, including any representations to extend
credit or provide other financial accommodations to the Debtors,
have been
made by Laurus to induce the undersigned to enter into this Amended
and
Restated Guaranty and (ii) any extension of credit to the Debtors
shall be governed solely by the provisions of the 2005 Documents
and 2006
Documents. The liability of each of the undersigned under this Amended
and
Restated Guaranty shall be absolute and unconditional, in accordance
with
its terms, and shall remain in full force and effect without regard
to,
and shall not be released, suspended, discharged, terminated or otherwise
affected by, any circumstance or occurrence whatsoever, including,
without
limitation: (a) any waiver, indulgence, renewal, extension, amendment
or modification of or addition, consent or supplement to or deletion
from
or any other action or inaction under or in respect of the 2005 Documents
and 2006 Documents or any other instruments or agreements relating
to the
Obligations or any assignment or transfer of any thereof, (b) any
lack of validity or enforceability of any 2005 Document and/or 2006
Document or other documents, instruments or agreements relating to
the
Obligations or any assignment or transfer of any thereof, (c) any
furnishing of any additional security to Laurus or its assignees
or any
acceptance thereof or any release of any security by Laurus or its
assignees, (d) any limitation on any party’s liability or obligation
under the 2005 Documents and/or 2006 Documents or any other documents,
instruments or agreements relating to the Obligations or any assignment
or
transfer of any thereof or any invalidity or unenforceability, in
whole or
in part, of any such document, instrument or agreement or any term
thereof, (e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating
to
the Debtors, or any action taken with respect to this Amended and
Restated
Guaranty by any trustee, receiver, interim receiver, or receiver
and
manager, or by any court, in any such proceeding, whether or not
the
undersigned shall have notice or knowledge of any of the foregoing,
(f) any exchange, release or nonperfection of any collateral, or any
release, or amendment or waiver of or consent to departure from any
guaranty or security, for all or any of the Obligations or (g) any
other circumstance which might otherwise constitute a defense available
to, or a discharge of, the undersigned. Any amounts due from the
undersigned to Laurus shall bear interest until such amounts are
paid in
full at the highest rate then applicable to the Obligations. Obligations
include post-petition interest whether or not allowed or
allowable.
|
3. |
Waivers.
|
(a) This
Amended and Restated Guaranty is a guaranty of payment and not of collection.
Laurus shall be under no obligation to institute suit, exercise rights or
remedies or take any other action against any of the Debtors or any other person
liable with respect to any of the Obligations or resort to any collateral
security held by it to secure any of the Obligations as a condition precedent
to
the undersigned being obligated to perform as agreed herein and each of the
Guarantors hereby waives any and all rights which it may have by statute or
otherwise which would require Laurus to do any of the foregoing. The obligations
of each Guarantor hereunder are independent of the Obligations and a separate
action or actions may be brought and prosecuted against each Guarantor to
enforce this Amended and Restated Guaranty, irrespective of whether any action
is brought against the Debtors or whether any of the Debtors are joined in
any
such action or actions. Each of the Guarantors further consents and agrees
that
Laurus shall be under no obligation to marshal any assets in favor of
Guarantors, or against or in payment of any or all of the Obligations. The
undersigned hereby waives all suretyship defenses and any rights to interpose
any defense, counterclaim or offset of any nature and description which the
undersigned may have or which may exist between and among Laurus, the Debtors
and/or the undersigned with respect to the undersigned’s obligations under this
Amended and Restated Guaranty, or which the Debtors may assert on the underlying
debt, including but not limited to failure of consideration, breach of warranty,
fraud, payment (other than cash payment in full of the Obligations), statute
of
frauds, bankruptcy, infancy, statute of limitations, accord and satisfaction,
and usury.
3
(b) Each
of
the undersigned further waives (i) notice of the acceptance of this Amended
and Restated Guaranty, of the making of any such loans or extensions of credit,
and of all notices and demands of any kind to which the undersigned may be
entitled, including, without limitation, notice of adverse change in any of
the
Debtor’s financial condition or of any other fact which might materially
increase the risk of the undersigned and (ii) presentment to or demand of
payment from anyone whomsoever liable upon any of the Obligations, protest,
notices of presentment, non-payment or protest and notice of any sale of
collateral security or any default of any sort.
(c) Notwithstanding
any payment or payments made by the undersigned hereunder, or any setoff or
application of funds of the undersigned by Laurus, the undersigned shall not
be
entitled to be subrogated to any of the rights of Laurus against any of the
Debtors or against any collateral or guarantee or right of offset held by Laurus
for the payment of the Obligations, nor shall the undersigned seek or be
entitled to seek any contribution, indemnification or reimbursement from any
of
the Debtors in respect of payments made by the undersigned hereunder, until
all
amounts owing to Laurus by the Debtors on account of the Obligations are paid
in
full and Laurus’ obligation to extend credit pursuant to the 2005 Documents and
2006 Documents have been terminated. If, notwithstanding the foregoing, any
amount shall be paid to the undersigned on account of such subrogation rights
at
any time when all of the Obligations shall not have been paid in full and
Laurus’ obligation to extend credit pursuant to the 2005 Documents and 2006
Documents shall not have been terminated, such amount shall be held by the
undersigned in trust for Laurus, segregated from other funds of the undersigned,
and shall forthwith upon, and in any event within two (2) business days of,
receipt by the undersigned, be turned over to Laurus in the exact form received
by the undersigned (duly endorsed by the undersigned to Laurus, if required),
to
be applied against the Obligations, whether matured or unmatured, in such order
as Laurus may determine, subject to the provisions of the 2005 Documents and
2006 Documents. Any and all present and future debts and obligations of the
Debtors to any of the undersigned are hereby waived and postponed in favor
of,
and subordinated to the full payment and performance of, all present and future
debts and Obligations of the Debtors to Laurus.
4. |
Indemnity.
As an original and independent obligation under this Amended and
Restated
Guaranty each Guarantor shall:
|
4
(a) indemnify
Laurus and keep Laurus indemnified against any cost, loss, expense or liability
of whatever kind resulting from the failure by any of the Debtors to make due
and punctual payment of any of the Obligations or resulting from any of the
Obligations being or becoming void, voidable, unenforceable or ineffective
against the Debtors (including, but without limitation, all legal and other
costs, charges and expenses incurred by Laurus, in connection with preserving
or
enforcing, or attempting to preserve or enforce, its rights under this Amended
and Restated Guaranty); and
(b) pay
on
demand the amount of such cost, loss, expense or liability whether or not Laurus
has attempted to enforce any rights against any of the Debtors or any other
person or otherwise.
5. |
Security.
All sums at any time to the credit of the undersigned and any property
of
the undersigned in Laurus’ possession or in the possession of any bank,
financial institution or other entity that directly or indirectly,
through
one or more intermediaries, controls or is controlled by, or is under
common control with, Laurus (each such entity, an “Affiliate”)
shall be deemed held by Laurus or such Affiliate, as the case may
be, as
security for any and all of the undersigned’s obligations to Laurus and to
any Affiliate of Laurus, no matter how or when arising and whether
under
this or any other instrument, agreement or otherwise.
|
6. |
Representations
and Warranties.
Each of the undersigned respectively, hereby jointly and severally
represents and warrants (all of which representations and warranties
shall
survive until all Obligations are indefeasibly satisfied in full
and the
2005 Documents and 2006 Documents have been irrevocably terminated),
that:
|
(a) Corporate
Status.
It is a
corporation, partnership or limited liability company, as the case may be,
duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization indicated on the signature page hereof and has
full
power, authority and legal right to own its property and assets and to transact
the business in which it is engaged.
(b) Authority
and Execution.
It has
full power, authority and legal right to execute and deliver, and to perform
its
obligations under, this Amended and Restated Guaranty and has taken all
necessary corporate, partnership or limited liability company, as the case
may
be, action to authorize the execution, delivery and performance of this Amended
and Restated Guaranty.
(c) Legal,
Valid and Binding Character.
This
Amended and Restated Guaranty constitutes its legal, valid and binding
obligation enforceable in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other laws of general application affecting the enforcement of creditor’s
rights and general principles of equity that restrict the availability of
equitable or legal remedies.
(d) Violations.
The
execution, delivery and performance of this Amended and Restated Guaranty will
not violate any requirement of law applicable to it or any contract, agreement
or instrument to it is a party or by which it or any of its property is bound
or
result in the creation or imposition of any mortgage, lien or other encumbrance
other than to Laurus on any of its property or assets pursuant to the provisions
of any of the foregoing, which, in any of the foregoing cases, could reasonably
be expected to have, either individually or in the aggregate, a Material Adverse
Effect.
5
(e) Consents
or Approvals.
No
consent of any other person or entity (including, without limitation, any
creditor of the undersigned) and no consent, license, permit, approval or
authorization of, exemption by, notice or report to, or registration, filing
or
declaration with, any governmental authority is required in connection with
the
execution, delivery, performance, validity or enforceability of this Amended
and
Restated Guaranty by it, except to the extent that the failure to obtain any
of
the foregoing could not reasonably be expected to have, either individually
or
in the aggregate, a Material Adverse Effect.
(f) Litigation.
Other
than as disclosed in Schedule 6(f)
hereto,
no litigation, arbitration, investigation or administrative proceeding of or
before any court, arbitrator or governmental authority, bureau or agency is
currently pending or, to the best of its knowledge, threatened (i) with
respect to this Amended and Restated Guaranty or any of the transactions
contemplated by this Amended and Restated Guaranty or (ii) against or
affecting it, or any of its property or assets, which, in each of the foregoing
cases, if adversely determined, could reasonably be expected to have a Material
Adverse Effect.
(g) Financial
Benefit.
It has
derived or expects to derive a financial or other advantage from each and every
loan, advance or extension of credit made under the 2005 Documents and 2006
Documents or other Obligation incurred by the Debtors to Laurus.
7. |
Acceleration.
|
(a) If
any
breach of any covenant or condition or other event of default shall occur and
be
continuing under any agreement made by any of the Debtors or any of the
undersigned to Laurus, or any of the Debtors or any of the undersigned should
at
any time become insolvent, or make a general assignment, or if a proceeding
in
or under any Insolvency Law shall be filed or commenced by, or in respect of,
any of the undersigned, or if a notice of any lien, levy, or assessment is
filed
of record with respect to any assets of any of the undersigned by the United
States of America or Canada, or any respective department, agency, or
instrumentality of either country, or if any taxes or debts owing at any time
or
times hereafter to any one of them becomes a lien or encumbrance upon any assets
of the undersigned in Laurus’ possession, or otherwise, any and all Obligations
shall for purposes hereof, at Laurus’ option, be deemed due and payable without
notice notwithstanding that any such Obligation is not then due and payable
by
the Debtors.
(b) Each
of
the undersigned will promptly notify Laurus of any default by such undersigned
in its respective performance or observance of any term or condition of any
agreement to which the undersigned is a party if the effect of such default
is
to cause, or permit the holder of any obligation under such agreement to cause,
such obligation to become due prior to its stated maturity and, if such an
event
occurs, Laurus shall have the right to accelerate such undersigned’s obligations
hereunder.
8. |
Payments
from Guarantors.
Laurus, in its sole and absolute discretion, with or without notice
to the
undersigned, may apply on account of the Obligations any payment
from the
undersigned or any other guarantors, or amounts realized from any
security
for the Obligations, or may deposit any and all such amounts realized
in a
non-interest bearing cash collateral deposit account to be maintained
as
security for the Obligations.
|
6
9. |
Tax
Gross Up.
Any and all payments by each Guarantor hereunder, and any amounts
on
account of interest or deemed interest, shall be made free and clear
of
and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities
with
respect thereto, excluding taxes imposed on net income or franchise
taxes
of Laurus by the jurisdiction in which such person is organized or
has its
principal office (all such non-excluded taxes, levies, imposts,
deductions, charges withholdings and liabilities, collectively or
individually, “Taxes”).
If any Guarantor shall be required to deduct any Taxes from or in
respect
of any sum payable hereunder to Laurus, (i) the sum payable shall be
increased by the amount (an “additional
amount”)
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section
9)
Laurus shall receive an amount equal to the sum it would have received
had
no such deductions been made, (ii) such Guarantor shall make such
deductions and (iii) such Guarantor shall pay the full amount
deducted to the relevant governmental authority in accordance with
applicable law.
|
In
addition, each Guarantor agrees to pay to the relevant governmental authority
in
accordance with applicable law 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 or registration
of,
or otherwise with respect to, this Amended and Restated Guaranty (“Other
Taxes”).
Each
Guarantor shall deliver to Laurus official receipts, if any, in respect of
any
Taxes or Other Taxes payable hereunder promptly after payment of such Taxes
or
Other Taxes or other evidence of payment reasonably acceptable to
Laurus.
Each
Guarantor hereby indemnifies and agrees to hold Laurus harmless from and against
Taxes and Other Taxes (including, without limitation, Taxes and Other Taxes
imposed on any amounts payable under this Section 9) paid by such person,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Such indemnification shall be paid within ten (10) days from the date on which
any such person makes written demand therefore specifying in reasonable detail
the nature and amount of such Taxes or Other Taxes.
10. |
Costs.
The undersigned shall pay on demand, all costs, fees and expenses
(including, without limitation, expenses for legal services of every
kind)
relating or incidental to the enforcement or protection of the rights
of
Laurus hereunder or under any of the
Obligations.
|
11. |
No
Termination.
This is a continuing irrevocable guaranty and shall remain in full
force
and effect and be binding upon the undersigned, and each of the
undersigned’s successors and assigns, until all of the Obligations have
been paid in full and Laurus’ obligation to extend credit pursuant to the
2005 Documents and 2006 Documents has been irrevocably terminated.
If any
of the present or future Obligations are guaranteed by persons,
partnerships or corporations in addition to the undersigned, the
death,
release or discharge in whole or in part or the bankruptcy, amalgamation,
merger, consolidation, incorporation, liquidation or dissolution
of one or
more of them shall not discharge or affect the liabilities of any
undersigned under this Amended and Restated
Guaranty.
|
7
12. |
Recapture.
Anything in this Amended and Restated Guaranty to the contrary
notwithstanding, if Laurus receives any payment or payments on account
of
the liabilities guaranteed hereby, which payment or payments or any
part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee,
receiver, interim receiver or receiver and manager or any other party
under any Insolvency Law, common law or equitable doctrine, then
to the
extent of any sum not finally retained by Laurus, the undersigned’s
obligations to Laurus shall be reinstated and this Amended and Restated
Guaranty shall remain in full force and effect (or be reinstated)
until
payment shall have been made to Laurus, which payment shall be due
on
demand.
|
13. |
Books
and Records.
The books and records of Laurus showing the account between Laurus
and the
Debtors shall be admissible in evidence in any action or proceeding,
shall
be binding upon the undersigned for the purpose of establishing the
items
therein set forth and shall constitute prima facie proof
thereof.
|
14. |
No
Waiver.
No failure on the part of Laurus to exercise, and no delay in exercising,
any right, remedy or power hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise by Laurus of any right,
remedy or
power hereunder preclude any other or future exercise of any other
legal
right, remedy or power. Each and every right, remedy and power hereby
granted to Laurus or allowed it by law or other agreement shall be
cumulative and not exclusive of any other, and may be exercised by
Laurus
at any time and from time to time.
|
15. |
Waiver
of Jury Trial.
EACH OF THE UNDERSIGNED DOES HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
BASED ON OR WITH RESPECT TO THIS AMENDED AND RESTATED GUARANTY OR
ANY OF
THE TRANSACTIONS CONTEMPLATED HEREBY OR RELATING OR INCIDENTAL HERETO.
THE
UNDERSIGNED DOES HEREBY CERTIFY THAT NO REPRESENTATIVE OR AGENT OF
LAURUS
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT LAURUS WOULD NOT, IN
THE
EVENT OF LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY
TRIAL
PROVISION.
|
16. |
Governing
Law; Jurisdiction; Amendments.
THIS INSTRUMENT CANNOT BE CHANGED OR TERMINATED ORALLY, AND SHALL
BE
GOVERNED, CONSTRUED AND INTERPRETED AS TO VALIDITY, ENFORCEMENT AND
IN ALL
OTHER RESPECTS IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF ONTARIO
AND
THE FEDERAL LAWS OF CANADA. EACH OF THE UNDERSIGNED EXPRESSLY CONSENTS
TO
THE JURISDICTION AND VENUE OF THE SUPREME COURT OF THE STATE OF NEW
YORK,
COUNTY OF NEW YORK, AND OF THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK FOR ALL PURPOSES IN CONNECTION HEREWITH.
ANY
JUDICIAL PROCEEDING BY THE UNDERSIGNED AGAINST LAURUS INVOLVING,
DIRECTLY
OR INDIRECTLY ANY MATTER OR CLAIM IN ANY WAY ARISING OUT OF, RELATED
TO OR
CONNECTED HEREWITH SHALL BE BROUGHT ONLY IN THE SUPREME COURT OF
THE STATE
OF NEW YORK, COUNTY OF NEW YORK OR THE UNITED STATES DISTRICT COURT
FOR
THE SOUTHERN DISTRICT OF NEW YORK. THE UNDERSIGNED FURTHER CONSENTS
THAT
ANY SUMMONS, SUBPOENA OR OTHER PROCESS OR PAPERS (INCLUDING, WITHOUT
LIMITATION, ANY NOTICE OR MOTION OR OTHER APPLICATION TO EITHER OF
THE
AFOREMENTIONED COURTS OR A JUDGE THEREOF) OR ANY NOTICE IN CONNECTION
WITH
ANY PROCEEDINGS HEREUNDER, MAY BE SERVED INSIDE OR OUTSIDE OF THE
STATE OF
NEW YORK OR THE SOUTHERN DISTRICT OF NEW YORK BY REGISTERED OR CERTIFIED
MAIL, RETURN RECEIPT REQUESTED, OR BY PERSONAL SERVICE PROVIDED A
REASONABLE TIME FOR APPEARANCE IS PERMITTED, OR IN SUCH OTHER MANNER
AS
MAY BE PERMISSIBLE UNDER THE RULES OF SAID COURTS. EACH OF THE UNDERSIGNED
WAIVES ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED
HEREON AND SHALL NOT ASSERT ANY DEFENSE BASED ON LACK OF JURISDICTION
OR
VENUE OR BASED UPON FORUM NON
CONVENIENS.
|
8
17. |
Judgment
Currency.
If, for the purpose of obtaining or enforcing judgment against any
Guarantor in any court in any jurisdiction, it becomes necessary
to
convert into any other currency (such other currency being hereinafter
in
this section referred to as the “Judgment
Currency”)
an amount due under this Amended and Restated Guaranty in any currency
(the “Obligation
Currency”)
other than the Judgment Currency, the conversion shall be made at
the rate
of exchange prevailing on the business day immediately preceding
(a) the date of actual payment of the amount due, in the case of any
proceeding in the courts of New York or in the courts of any other
jurisdiction that will give effect to such conversion being made
on such
date, or (b) the date on which the foreign court determines, in the
case of any proceeding in the courts of any other jurisdiction (the
applicable date as of which such conversion is made pursuant to this
section being hereinafter in this section referred to as the “Judgment
Conversion Date”).
|
If,
in
the case of any proceeding in the court of any jurisdiction referred to in
the
preceding paragraph, there is a change in the rate of exchange prevailing
between the Judgment Conversion Date and the date of actual receipt of the
amount due in immediately available funds, the Guarantor shall pay such
additional amount (if any, but in any event not a lesser amount) as may be
necessary to ensure that the amount actually received in the Judgment Currency,
when converted at the rate of exchange prevailing on the date of payment, will
produce the amount of the Obligation Currency which could have been purchased
with the amount of the Judgment Currency stipulated in the judgment or judicial
order at the rate of exchange prevailing on the Judgment Conversion Date. Any
amount due from any Guarantor under this section shall be due as a separate
debt
and shall not be affected by judgment being obtained for any other amounts
due
under or in respect of this Amended and Restated Guaranty.
18. |
Severability.
To the extent permitted by applicable law, any provision of this
Amended
and Restated 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
provisions hereof, and any such prohibition or unenforceability in
any
jurisdiction shall not invalidate or render unenforceable such provision
in any other jurisdiction.
|
9
19. |
Amendments,
Waivers.
No amendment or waiver of any provision of this Amended and Restated
Guaranty nor consent to any departure by the undersigned therefrom
shall
in any event be effective unless the same shall be in writing executed
by
each of the undersigned directly affected by such amendment and/or
waiver
and Laurus.
|
20. |
Notice.
All notices, requests and demands to or upon the undersigned, shall
be in
writing and shall be deemed to have been duly given or made (a) when
delivered, if by hand, (b) three (3) days after being sent, postage
prepaid, if by registered or certified mail, (c) when confirmed
electronically, if by facsimile, or (d) when delivered, if by a
recognized overnight delivery service in each event, to the numbers
and/or
address set forth beneath the signature of the
undersigned.
|
21. |
This
Amended and Restated Guaranty may be executed in any number of
counterparts which shall, collectively and separately constitute
one
agreement. Any signature delivered by a party by facsimile transmission
or
by sending a scanned copy by electronic mail shall be deemed an original
signature hereto.
|
22. |
Successors.
Laurus may, from time to time, without notice to the undersigned,
sell,
assign, transfer or otherwise dispose of all or any part of the
Obligations and/or rights under this Amended and Restated Guaranty.
Without limiting the generality of the foregoing, Laurus may assign,
or
grant participations to, one or more banks, financial institutions
or
other entities all or any part of any of the Obligations. In each
such
event, Laurus, its Affiliates and each and every immediate and successive
purchaser, assignee, transferee or holder of all or any part of the
Obligations shall have the right to enforce this Amended and Restated
Guaranty, by legal action or otherwise, for its own benefit as fully
as if
such purchaser, assignee, transferee or holder were herein by name
specifically given such right. Laurus shall have an unimpaired right
to
enforce this Amended and Restated Guaranty for its benefit with respect
to
that portion of the Obligations which Laurus has not disposed of,
sold,
assigned, or otherwise transferred.
|
23. |
It
is understood and agreed that any person or entity that desires to
become
a Guarantor hereunder, or is required to execute a counterpart of
this
Amended and Restated Guaranty after the date hereof pursuant to the
requirements of any of the 2005 Documents or 2006 Documents, shall
become
Guarantor hereunder by (x) executing a joinder agreement in form and
substance satisfactory to Laurus, (y) delivering supplements to such
exhibits and annexes to such 2005 Documents or 2006 Documents as
Laurus
shall reasonably request and (z) taking all actions as specified in
this Amended and Restated Guaranty as would have been taken by such
Guarantor had it been an original party to this Amended and Restated
Guaranty, in each case with all documents required above to be delivered
to Laurus and with all documents and actions required above to be
taken to
the reasonable satisfaction of
Laurus.
|
24. |
Release.
Nothing except cash payment in full of the Obligations shall release
any
of the undersigned from liability under this Amended and Restated
Guaranty.
|
10
25. |
Limitation
of Obligations under this Amended and Restated Guaranty.
Each Guarantor and Laurus (by its acceptance of the benefits of this
Amended and Restated Guaranty) hereby confirms that it is its intention
that this Amended and Restated Guaranty not constitute (i) a
fraudulent transfer or conveyance for purposes of the Bankruptcy
Code,
the Uniform
Fraudulent Conveyance Act
or
any similar federal, provincial or state law; or (ii) a preference or
a preferential transfer for purposes of the BIA or under any other
applicable bankruptcy, insolvency or similar law now or hereafter
in
effect in any bankruptcy, insolvency or similar proceeding with respect
to
the Debtors. To effectuate the foregoing intention, each Guarantor
which
is subject to the Bankruptcy
Code,
the Uniform
Fraudulent Conveyance Act
or
any similar US federal or state law and Laurus (by its acceptance
of the
benefits of this Amended and Restated Guaranty) hereby irrevocably
agrees
that the Obligations guaranteed by such Guarantor shall be limited
to such
amount as will, after giving effect to such maximum amount and all
other
(contingent or otherwise) liabilities of such Guarantor that are
relevant
under such laws and after giving effect to any rights to contribution
pursuant to any agreement providing for an equitable contribution
among
such Guarantor and the other Guarantors (including this Amended and
Restated Guaranty), result in the Obligations of such Guarantor under
this
Amended and Restated Guaranty in respect of such maximum amount not
constituting a fraudulent transfer or conveyance, preference or
preferential transfer.
|
26. |
Understanding
With Respect to Waivers and Consents.
Each Guarantor warrants and agrees that each of the waivers and consents
set forth in this Amended and Restated Guaranty is made voluntarily
and
unconditionally after consultation with outside legal counsel and
with
full knowledge of its significance and consequences, with the
understanding that events giving rise to any defense or right waived
may
diminish, destroy or otherwise adversely affect rights which such
Guarantor otherwise may have against the Debtors, Laurus or any other
person or entity or against any collateral. If, notwithstanding the
intent
of the parties that the terms of this Amended and Restated Guaranty
shall
control in any and all circumstances, any such waivers or consents
are
determined to be unenforceable under applicable law, such waivers
and
consents shall be effective to the maximum extent permitted by
law.
|
27. |
Remedies
Not Exclusive.
The remedies conferred upon Laurus in this Amended and Restated Guaranty
are intended to be in addition to, and not in limitation of any other
remedy or remedies available to Laurus under applicable law or
otherwise.
|
[Remainder
of this page has been intentionally left blank.]
11
IN
WITNESS WHEREOF, this Amended and Restated Guaranty has been executed by the
undersigned this 13th day of February, 2006.
CREATIVE
VISTAS, INC. (Arizona)
|
||||
By:
|
/s/
XXXXXXX XXXXX
|
|||
Name:
Xxxxxxx Xxxxx
Title:
President
Address:
0000 Xxxxxx Xxxxxx, Xxxxx 0-00, Xxxxxx, Xxxxxxx X0X 0X0
|
||||
CANCABLE
HOLDING CORP. (Delaware)
|
||||
By:
|
/s/
XXXXXXX XXXXX
|
|||
Name:
Xxxxxxx Xxxxx
Title:
President
Address:
0000 Xxxxxx Xxxxxx, Xxxxx 0-00, Xxxxxx, Xxxxxxx X0X 0X0
|
||||
CANCABLE,
INC. (Nevada)
|
||||
By:
|
/s/
XXXX XXXXXX
|
|||
Name:
Xxxx Xxxxxx
Title:
President and Secretary
Address:
0000 Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxx X0X
0X0
|
||||
CREATIVE
VISTAS ACQUISITION CORP. (Ontario)
|
||||
By:
|
/s/
XXXXX XXXXXXXXXX
|
|||
Name:
Xxxxx Xxxxxxxxxx
Title:
President and Secretary
Address:
0000 Xxxxxx Xxxxxx, Xxxxx 0-00, Xxxxxx, Xxxxxxx X0X 0X0
|
||||
A.C.
TECHNICAL SYSTEMS LTD. (Ontario)
|
||||
By:
|
/s/
XXXXXXX XXXXX
|
|||
Name:
Xxxxxxx Xxxxx
Title:
President
Address:
0000 Xxxxxx Xxxxxx, Xxxxx 0-00, Xxxxxx, Xxxxxxx X0X
0X0
|
12
CANCABLE
INC. (Ontario)
|
||||
By:
|
/s/
HEUNG XXXX XXX
|
|||
Name:
Heung Xxxx Xxx
Title:
Secretary
Address:
0000 Xxxxxx Xxxxxx, Xxxxx 0-00, Xxxxxx, Xxxxxxx X0X 0X0
|
||||
IVIEW
HOLDING CORP. (Delaware)
|
||||
By:
|
/s/
XXXXXXX XXXXX
|
|||
Name:
Xxxxxxx Xxxxx
Title:
President
Address:
0000 Xxxxxx Xxxxxx, Xxxxx 0-00, Xxxxxx, Xxxxxxx X0X 0X0
|
||||
IVIEW
DIGITAL VIDEO SOLUTIONS INC.
|
||||
By:
|
/s/
XXXXX XXXXXXXXXX
|
|||
Name:
Xxxxx Xxxxxxxxxx
Title:
President
Address:
0000 Xxxxxx Xxxxxx, Xxxxx 0-00, Xxxxxx, Xxxxxxx X0X
0X0
|
13