FORM OF GUARANTY
FORM
OF
GUARANTY
This
Guaranty is made this [____] day of December 2009, by the guarantors listed on
the signature pages hereof (collectively, jointly and severally, “Guarantors,” and each,
individually, a “Guarantor”), in favor of
[___________________] (together with its successors and assigns, “Buyer”).
RECITALS
WHEREAS, pursuant to that
certain Securities Purchase Agreement dated as of December 21, 2009 (as amended,
restated, supplemented, or otherwise modified from time to time, including all
schedules thereto, the “Purchase Agreement”) by and
among MAGNUM D’OR RESOURCES, INC., a Nevada corporation (“Parent”), Buyer, and each of
the other investors listed on the Schedule of Buyers attached thereto (together
with Buyer, “Buyers”),
Parent has agreed to sell, and Buyers have agreed to purchase, severally and not
jointly, certain Notes and Warrants; and
WHEREAS, each Guarantor is a
direct or indirect wholly-owned Subsidiary of Parent and will receive direct and
substantial benefits from the purchase by Buyers of the Notes and Warrants;
and
WHEREAS, in order to induce
Buyers to purchase, severally and not jointly, the Notes and Warrants as
provided for in the Purchase Agreement, Guarantors have agreed to jointly and
severally guaranty all of Parent’s obligations under and with respect to the
Notes and the Purchase Agreement; and
WHEREAS, in connection
herewith, Guarantors, Parent and Buyers have entered into that certain Security
Agreement dated of even date herewith (as amended, restated, supplemented, or
otherwise modified from time to time, including all schedules thereto, the
“Security Agreement”),
pursuant to which Guarantors and Parent (Guarantors and Parent, collectively,
“Obligors” and each,
individually, an “Obligor”) have granted each of
the Buyers continuing security interests in all assets of each Obligor, as more
fully set forth in the Security Agreement.
AGREEMENTS
NOW, THEREFORE, for and in
consideration of the recitals made above and other good and valuable
consideration, the receipt, sufficiency and adequacy of which are hereby
acknowledged, each Guarantor hereby agrees as follows:
1. Definitions. All
capitalized terms used herein that are not otherwise defined herein shall have
the meanings given them in the Security Agreement.
2. Guaranteed
Obligations. Guarantors jointly and severally hereby
irrevocably and unconditionally guaranty to Buyer the due and punctual payment
in full of all of the present and future payment and performance obligations of
each Obligor arising under the Purchase Agreement, any and all Notes payable to
Buyer, the Security Agreement, and the other Transaction Documents (other than
the Warrants), including, without duplication, reasonable attorneys’ fees and
reasonable expenses and any interest, fees, or expenses that accrue after the
filing of an Insolvency Proceeding, regardless of whether allowed or allowable
in whole or in part as a claim in any Insolvency Proceeding (collectively, the
“Guaranteed
Obligations”).
3. Guarantors’ Representations
and Warranties. Each Guarantor represents and warrants to
Buyer that such Guarantor expects to derive substantial benefits from the
purchase by Buyers of the Notes and Warrants and the other transactions
contemplated hereby. Buyer may rely conclusively on a continuing
warranty, hereby made, that such Guarantor continues to be benefited by this
Guaranty and Buyer shall have no duty to inquire into or confirm the receipt of
any such benefits, and this Guaranty shall be effective and enforceable by Buyer
without regard to the receipt, nature or value of any such
benefits.
4. Unconditional
Nature. No act or thing need occur to establish any
Guarantor’s liability hereunder, and no act or thing, except full payment and
discharge of all of the Guaranteed Obligations, shall in any way exonerate any
Guarantor hereunder or modify, reduce, limit or release any Guarantor’s
liability hereunder. This is an absolute, unconditional and
continuing guaranty of payment of the Guaranteed Obligations and shall continue
to be in force and be binding upon each Guarantor until all of the Guaranteed
Obligations are indefeasibly paid in full and discharged.
5. Subrogation. No
Guarantor will exercise or enforce any right of contribution, reimbursement,
recourse or subrogation available to such Guarantor as to any of the Guaranteed
Obligations, or against any Person liable therefor, or as to any collateral
security therefor, unless and until all of the Guaranteed Obligations shall have
been indefeasibly paid in full and discharged.
6. Enforcement
Expenses. Each Guarantor shall pay or reimburse Buyer for all
costs, expenses and reasonable attorneys’ fees actually paid or incurred by
Buyer in endeavoring to collect and enforce the Guaranteed Obligations and in
enforcing this Guaranty.
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7. Obligations Absolute.
Each Guarantor agrees that its obligations hereunder are irrevocable, absolute,
independent and unconditional and shall not be affected by any circumstance
which constitutes a legal or equitable discharge of a guarantor or surety other
than the indefeasible payment in full and discharge of the Guaranteed
Obligations. In furtherance of the foregoing and without limiting the generality
thereof, each Guarantor agrees that none of its obligations hereunder shall be
affected or impaired by any of the following acts or things (which Buyer is
expressly authorized to do, omit or suffer from time to time, without consent or
approval by or notice to any Guarantor): (a) any acceptance of collateral
security, guarantors, accommodation parties or sureties for any or all of the
Guaranteed Obligations; (b) one or more extensions or renewals of the
Guaranteed Obligations (whether or not for longer than the original period) or
any modification of the interest rates, maturities, if any, or other contractual
terms applicable to any of the Guaranteed Obligations or any amendment or
modification of any of the terms or provisions of any of the Transaction
Documents; (c) any waiver or indulgence granted to Parent or any other
Obligor, any delay or lack of diligence in the enforcement of the Guaranteed
Obligations, or any failure to institute proceedings, file a claim, give any
required notices or otherwise protect any of the Guaranteed Obligations;
(d) any release of, compromise or settlement with, or agreement not to xxx,
Parent, any other Obligor or any other Person liable in respect of any of the
Guaranteed Obligations except for the portion fully released or settled;
(e) any release, surrender, cancellation or other discharge of any evidence
of the Guaranteed Obligations or the acceptance of any instrument in renewal or
substitution therefor; (f) any failure to obtain collateral security
(including rights of setoff) for the Guaranteed Obligations, or to see to the
proper or sufficient creation and perfection thereof, or to establish the
priority thereof, or to preserve, protect, insure, care for, exercise or enforce
any collateral security; or any modification, alteration, substitution,
exchange, surrender, cancellation, termination, release or other change,
impairment, limitation, loss or discharge of any collateral security;
(g) any collection, sale, lease or disposition of, or any other foreclosure
or enforcement of or realization on, any collateral security, except to the
extent same reduces the amount of the Guaranteed Obligations; (h) any
assignment, pledge or other transfer of any of the Guaranteed Obligations or any
evidence thereof; or (i) any manner, order or method of application of any
payments or credits upon the Guaranteed Obligations. Each Guarantor
waives any and all defenses and discharges available to a surety, guarantor or
accommodation co-obligor.
8. Waivers by
Guarantors. Each Guarantor waives any and all defenses,
claims, setoffs and discharges of Parent, or any other Obligor or Person,
pertaining to the Guaranteed Obligations, except the defense of discharge by
indefeasible satisfaction and discharge in full. Without limiting the generality
of the foregoing, no Guarantor will assert, plead or enforce against any Buyer
any defense of waiver, release, discharge or disallowance in any Insolvency
Proceeding, statute of limitations, res judicata, statute of frauds,
anti-deficiency statute, fraud, incapacity, minority, usury, illegality or
unenforceability which may be available to Parent or any other Obligor or Person
liable in respect of any of the Guaranteed Obligations, or any setoff available
to any Buyer against Parent or any other such Obligor or Person, whether or not
on account of a related transaction. Each Guarantor expressly agrees
that such Guarantor shall be and remain liable for any deficiency remaining
after foreclosure of any mortgage or security interest securing the Guaranteed
Obligations, whether or not the liability of Parent or any other Obligor or
Person for such deficiency is discharged pursuant to statute or judicial
decision. The liability of each Guarantor shall not be affected or
impaired by any voluntary or involuntary liquidation, dissolution, sale or other
disposition of all or substantially all of the assets, marshalling of assets and
liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of
creditors, reorganization, arrangement, composition or readjustment of, or other
similar event or proceeding affecting, Parent or any of its
assets. No Guarantor will assert, plead or enforce against any Buyer
any claim, defense or setoff available to such Guarantor against
Parent. Each Guarantor waives presentment, demand for payment, notice
of dishonor or nonpayment and protest of any instrument evidencing the
Guaranteed Obligations. Buyer shall not be required first to resort
for payment of the Guaranteed Obligations to Parent or any other Person, or
their properties, or first to enforce, realize upon or exhaust any collateral
security for the Guaranteed Obligations, before enforcing this
Guaranty.
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9. If Payments Set Aside,
etc. If any payment applied by Buyer to the Guaranteed
Obligations is thereafter set aside, recovered, rescinded or required to be
returned for any reason (including, without limitation, the bankruptcy,
insolvency or reorganization of Parent or any other Obligor or Person), the
Guaranteed Obligations to which such payment was applied shall for the purpose
of this Guaranty be deemed to have continued in existence, notwithstanding such
application, and this Guaranty shall be enforceable as to such Guaranteed
Obligations as fully as if such application had never been made.
10. Additional Obligation of
Guarantors. Each Guarantor’s liability under this Guaranty is
in addition to and shall be cumulative with all other liabilities of such
Guarantor to Buyer as guarantor, surety, endorser, accommodation co-obligor or
otherwise of any of the Guaranteed Obligations, without any limitation as to
amount.
11. No Duties Owed by
Buyer. Each Guarantor acknowledges and agrees that Buyer
(a) has not made any representations or warranties with respect to,
(b) does not assume any responsibility to such Guarantor for, and
(c) has no duty to provide information to such Guarantor regarding, the
enforceability of any of the Guaranteed Obligations or the financial condition
of Parent or any other Obligor or Person. Each Guarantor has
independently determined the creditworthiness of Parent and the enforceability
of the Guaranteed Obligations and until the Guaranteed Obligations are paid in
full will independently and without reliance on Buyer continue to make such
determinations.
12. Miscellaneous.
(a) This
Guaranty may be executed in two or more identical counterparts, all of which
shall be considered one and the same agreement and shall become effective when
counterparts have been signed by each party and delivered to the other party. In
the event that any signature is delivered by facsimile transmission or by an
e-mail which contains a portable document format (.pdf) file of an executed
signature page, such signature page 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 signature page were an original thereof. Any
party delivering an executed counterpart of this Guaranty by telefacsimile or
other electronic method of transmission also shall deliver an original executed
counterpart of this Guaranty but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Guaranty.
(b) Any
provision of this Guaranty which is prohibited or unenforceable shall be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof in that jurisdiction or affecting
the validity or enforceability of such provision in any other
jurisdiction.
(c) Headings
used in this Guaranty are for convenience only and shall not be used in
connection with the interpretation of any provision hereof.
(d) The
pronouns used herein shall include, when appropriate, either gender and both
singular and plural, and the grammatical construction of sentences shall conform
thereto.
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(e) Unless
the context of this Guaranty or any other Transaction Document clearly requires
otherwise, references to the plural include the singular, references to the
singular include the plural, the terms “includes” and “including” are
not limiting, and the term “or” has, except where otherwise indicated, the
inclusive meaning represented by the phrase “and/or.” The words
“hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Guaranty or
any other Transaction Document refer to this Guaranty or such other Transaction
Document, as the case may be, as a whole and not to any particular provision of
this Guaranty or such other Transaction Document, as the case may
be. Section, subsection, clause, schedule, and exhibit references
herein are to this Guaranty unless otherwise specified. Any reference
in this Guaranty or in any other Transaction Document to any agreement,
instrument, or document shall include all alterations, amendments, changes,
extensions, modifications, renewals, replacements, substitutions, joinders, and
supplements, thereto and thereof, as applicable (subject to any restrictions on
such alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements set forth herein). Any
reference herein or in any other Transaction Document to the satisfaction in
full of the Guaranteed Obligations shall mean the indefeasible (i) payment in
full in cash and discharge or (ii) other satisfaction in accordance with the
terms of the Transaction Documents and discharge, in each case, of all
Guaranteed Obligations in full. Any reference herein or in any other Transaction
Document to the satisfaction in full of the Secured Obligations shall mean the
indefeasible (i) payment in full in cash and discharge or (ii) other
satisfaction in accordance with the terms of the Transaction Documents and
discharge, in each case, of all Secured Obligations in full. Any reference
herein to any Person shall be construed to include such Person’s successors and
assigns.
(f) This
Guaranty shall be effective upon delivery to Buyer, without further act,
condition or acceptance by Buyer, shall be binding upon each Guarantor and the
successors and assigns of each Guarantor, and shall inure to the benefit of
Buyer and its participants, successors and assigns. This Guaranty may not be
waived, modified, amended, terminated, released or otherwise changed except by a
writing signed by each Guarantor and Buyer.
(g) The
language used in this Guaranty will be deemed to be the language chosen by the
parties to express their mutual intent, and no rules of strict construction will
be applied against any party. For clarification purposes, the
Recitals are part of this Guaranty.
(h) This
Guaranty shall automatically terminate upon the indefeasible satisfaction and
discharge of all of the Guaranteed Obligations in full and all of the Secured
Obligations in full.
(i) All
dollar amounts referred to in this Guaranty and the other Transaction Documents
(as defined in the Securities Purchase Agreement) are in United States Dollars
(“US Dollars”), and all
amounts owing under this Guaranty and all other Transaction Documents shall be
paid in US Dollars. All amounts denominated in other currencies shall be
converted in the US Dollar equivalent amount in accordance with the Exchange
Rate on the date of calculation. “Exchange Rate” means, in relation to
any amount of currency to be converted into US Dollars pursuant to this
Guaranty, the US Dollar exchange rate as published in the Wall Street Journal on
the relevant date of calculation.
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13. Notices. All
notices and other communications provided for hereunder shall be given in the
form and manner, and delivered to such addresses, as specified in the Security
Agreement.
14. Governing Law; Jurisdiction;
Service of Process; Jury Trial. All questions concerning the
construction, validity, enforcement and interpretation of this Guaranty shall be
governed by the internal laws of the State of New York, without giving effect to
any choice of law or conflict of law provision or rule (whether of the State of
New York or any other jurisdictions) (other than Sections 5-1401 and 5-1402 of
the New York General Obligations Law) that would cause the application of the
laws of any jurisdictions other than the State of New York. Each Guarantor
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 suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is brought in an inconvenient forum or that the
venue of such suit, action or proceeding is improper; provided, however, any
suit seeking enforcement of this Guaranty may be brought, at Buyer’s option, in
the courts of any jurisdiction where Buyer elects to bring such
action. Each Guarantor hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or
proceeding by mailing a copy thereof to such party at the address for such
notices to it under this Guaranty and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Without limitation of
the foregoing, each Guarantor hereby irrevocably appoints Parent as such
Guarantor’s agent for purposes of receiving and accepting any service of process
hereunder. Nothing contained herein shall be deemed to limit in any
way any right to serve process in any manner permitted by law. EACH GUARANTOR HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE
ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF
THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.
[signature page
follows]
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IN
WITNESS WHEREOF, this Guaranty has been duly executed by each Guarantor as of
the date set forth above.
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MAGNUM
RECYCLING CANADA, INC., a
corporation
existing pursuant to the Canada Business
Corporations
Act
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By:
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Name:
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Title:
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MAGNUM
RECYCLING USA, INC., a Nevada
corporation
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By:
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Name:
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Title:
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MAGNUM
ENGINEERING INTERNATIONAL,
INC.,
a Delaware corporation
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By:
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Name:
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Title:
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