Exhibit 10.4
GUARANTY
GUARANTY, dated as of April
27, 2023 (this “Guaranty”), 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 Arena Investors, LP, in its capacity as collateral
agent under the Purchase Agreement (defined below) (the “Collateral Agent”) for itself and the purchasers signatory
(the Collateral Agent together with such purchasers and their permitted assigns, the “Purchasers”) to that certain
Securities Purchase Agreement, dated as of the date hereof, between BitNile Metaverse, Inc., a Nevada corporation (the “Company”)
and the Purchasers (the “Purchase Agreement”).
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 Purchasers, and the Purchasers have agreed to purchase from the Company, the
Notes (as defined in the Purchase Agreement), subject to the terms and conditions set forth therein; and
WHEREAS, each Guarantor will
directly or indirectly benefit from the extension of credit to the Company represented by the issuance of the Notes;
NOW, THEREFORE, in consideration
of the premises and to induce the Purchasers to enter into the Purchase Agreement and to carry out the transactions contemplated thereby,
each Guarantor hereby agrees with the Purchasers as follows:
1. Definitions.
Unless otherwise defined herein, terms defined in the Purchase Agreement and used herein shall have the meanings given to them in the
Purchase Agreement. The words “hereof,” “herein,” “hereto” and “hereunder” and words of
similar import when used in this Guaranty shall refer to this Guaranty as a whole and not to any particular provision of this Guaranty,
and Section and Schedule references are to this Guaranty 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:
“Guaranty”
means this Guaranty, 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 Purchasers in enforcing any of such Obligations and/or this
Guaranty, 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 Purchasers, pursuant to
this Guaranty and the other Transaction Documents (including the Warrants and the Registration Rights Agreement until such time that the
Notes are indefeasibly paid in full), 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 Purchasers 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, and interest
on the Notes and the loans extended pursuant thereto; (ii) any and all other fees, indemnities, costs, obligations and liabilities of
the Company or any Guarantor from time to time under or in connection with this Guaranty and the other Transaction Documents (including
the Warrants and the Registration Rights Agreement until such time that the Notes are indefeasibly paid in full); and (iii) 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. Guaranty.
(a) Guaranty.
(i) The
Guarantors hereby, jointly and severally, unconditionally and irrevocably, guarantee to Collateral Agent, for the benefit of the Collateral
Agent and the Purchasers 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 guaranty contained in this Section 2 or affecting the rights and remedies of the Purchasers.
(iv) The
guaranty contained in this Section 2 shall remain in full force and effect until all the Obligations and the obligations of each Guarantor
under the guaranty contained in this Section 2 shall have been satisfied by indefeasible payment in full (other than inchoate indemnity
obligations or indemnification obligations for which no claim or demand for payment, whether oral or written has been made at such time).
Notwithstanding the foregoing and for the avoidance of doubt, upon payment in full (other than inchoate indemnity obligations or indemnification
obligations for which no claim or demand for payment, whether oral or written has been made at such time), this Guaranty shall automatically
terminate, and the Agent shall at the Guarantors’ sole cost and expense, execute and deliver to the Guarantors such documents as
the Guarantors shall reasonably request to evidence such termination, all without any representation, warranty or recourse whatsoever.
(v) No
payment made by the Company, any of the Guarantors, any other guarantor or any other Person or received or collected by the Collateral
Agent or the Purchasers 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 Guaranty, 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 Purchasers 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), as among the Guarantor, 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 joint and several obligations and liabilities of any Guarantor to the Purchasers, and each Guarantor shall remain liable to
the Purchasers for the full amount of the Obligations guaranteed 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 Purchasers, no Guarantor shall be entitled to be subrogated to any of the rights of the Purchasers against the Company or any other
Guarantor or any collateral security or guaranty or right of offset held by the Purchasers 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 Purchasers by the Company on account of the Obligations are indefeasibly
paid in full (other than inchoate indemnity obligations or indemnification obligations for which no claim or demand for payment, whether
oral or written has been made at such time). 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 Collateral
Agent, on behalf of itself and the Purchasers, segregated from other funds of such Guarantor, and shall, forthwith upon receipt by such
Guarantor, be turned over to the Collateral Agent, on behalf of itself and the Purchasers, in the exact form received by such Guarantor
(duly indorsed by such Guarantor to the Collateral Agent, on behalf of itself and the Purchasers, if required), to be applied against
the Obligations, whether matured or unmatured, in such order as the Purchasers may determine. If (a) any Guarantor shall make payment
to the Collateral Agent of all or any part of the Obligations, and (b) the Obligations shall have been paid in full (other than inchoate
indemnity obligations or indemnification obligations for which no claim or demand for payment, whether oral or written has been made at
such time), the Collateral Agent will, at such Guarantor’s request and expense, promptly execute and deliver to such Guarantor appropriate
documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor
of an interest in the Obligations resulting from such payment by such Guarantor.
(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 Collateral Agent, on behalf of itself and the Purchasers may be rescinded by the Collateral Agent, on behalf of itself and
the Purchasers 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 guaranty 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 Purchasers, and the Transaction
Documents may be amended, modified, supplemented or terminated, in whole or in part, as the Collateral Agent, on behalf of itself and
the Purchasers may deem advisable from time to time, and any collateral security, guaranty or right of offset at any time held by the
Collateral Agent, on behalf of itself and the Purchasers for the payment of the Obligations may be sold, exchanged, waived, surrendered
or released. The Purchasers 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 guaranty contained in this Section 2 or any property subject thereto.
(e) Guaranty
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 Purchasers upon the guaranty contained in this Section 2 or acceptance of the guaranty
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 guaranty contained in this Section 2; and all dealings between the Company
and any of the Guarantors, on the one hand, and the Collateral Agent, on behalf of itself and the Purchasers, on the other hand, likewise
shall be conclusively presumed to have been had or consummated in reliance upon the guaranty 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 guaranty contained
in this Section 2 shall be construed as a continuing, absolute and unconditional guarantee of payment and performance without regard to
(i) the validity or enforceability of the Purchase Agreement or any other Transaction Document, any of the Obligations or any other collateral
security therefor or guaranty or right of offset with respect thereto at any time or from time to time held by the Purchasers, (ii) any
defense, set-off or counterclaim (other than a defense of payment or performance or fraud by Purchasers) which may at any time be available
to or be asserted by the Company or any other Person against the Purchasers, or (iii) 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 guaranty 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
Collateral Agent, on behalf of itself and the Purchasers 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 guaranty for the Obligations or any right of offset with respect thereto, and any failure by the Collateral Agent, on behalf
of itself and the Purchasers 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 guaranty 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, guaranty 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 Purchasers against any Guarantor. For the purposes hereof, “demand” shall
include the commencement and continuance of any legal proceedings.
(f) Reinstatement.
The guaranty 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 Purchasers 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 Collateral Agent, on behalf of itself and the Purchasers
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 Purchasers as of the date hereof, as applicable:
(a) Organization
and Qualification. Each Guarantor is (A) an individual with full capacity, who has knowledge and a complete understanding of the terms
set forth in this Guaranty and each other Transaction Document to which Guarantor is a party; or (B)(1) a corporation, limited liability
company or limited partnership duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization
as set forth on the signature pages hereto, (2) has all requisite corporate, limited liability company or limited partnership power and
authority to conduct its business as now conducted and as presently contemplated and to execute, deliver and perform its obligations under
this Guaranty and each other Transaction Document to which such Guarantor is a party, and to consummate the transactions contemplated
hereby and thereby and (3) is duly qualified to do business and is in good standing in each jurisdiction in which the character of the
properties owned or leased by it or in which the transaction of its business makes such qualification necessary except where the failure
to be so qualified (individually or in the aggregate) would not result in a Material Adverse Effect.
(b) Authorization;
Enforcement. The Guarantor has the requisite 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 any Guarantor that
is an entity 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.
(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) in the case of a Guarantor that is an entity, conflict with or violate any provision
of its certificate or articles of incorporation, operating agreement, bylaws or other organizational documents, 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 any Guarantor that is an entity 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) [Reserved]
(f) Foreign
Law. 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. As applicable, such foreign counsel has 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 was provided with copies of this Guaranty and
the Transaction Documents prior to rendering its advice, as applicable.
4. Covenants.
(a) Each
Guarantor covenants and agrees with the Purchasers that, from and after the date of this Guaranty until the Obligations shall have been
indefeasibly paid in full (other than inchoate indemnity obligations or indemnification obligations for which no claim or demand for payment,
whether oral or written has been made at such time), 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 Event of Default (as defined
in the Notes) is caused by the failure to take such action or to refrain from taking such action by such Guarantor.
(b) [Reserved]
5. Miscellaneous.
(a) Amendments
in Writing. None of the terms or provisions of this Guaranty may be waived, amended, supplemented or otherwise modified except in
writing by the Collateral Agent on behalf of itself and the Purchasers.
(b)
Notices. All notices, requests and demands to or upon the Collateral Agent on behalf of itself and the Purchasers 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).
(c) No
Waiver by Course of Conduct; Cumulative Remedies. The Collateral Agent on behalf of the Purchasers 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, including any Event of Default (as defined in the Notes).
No failure to exercise, nor any delay in exercising, on the part of the Collateral Agent on behalf of itself and the Purchasers, 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 Collateral
Agent on behalf of itself and the Purchasers of any right or remedy hereunder on any one occasion shall not be construed as a bar to any
right or remedy which the Collateral Agent on behalf of itself and the Purchasers 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 Purchasers for, all its documented, reasonable costs and expenses incurred in collecting against
such Guarantor under the guaranty contained in Section 2 or otherwise enforcing or preserving any rights under this Guaranty and the other
Transaction Documents to which such Guarantor is a party, including, without limitation, the reasonable fees and disbursements of counsel
to the Purchasers.
(ii) Each
Guarantor agrees to pay, and to save the Purchasers 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 Guaranty.
(iii) Each
Guarantor agrees to pay, and to save the Purchasers 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 Guaranty to the extent the Company would be required to do so pursuant to the Notes, except to
the extent resulting from the Purchasers gross negligence or willful misconduct as determined by a final judgment of a court of competent
jurisdiction no longer subject to appeal.
(iv) The
agreements in this Section 5(d) shall survive repayment of the Obligations.
(e) Successor
and Assigns. This Guaranty shall be binding upon the successors and assigns of each Guarantor and shall inure to the benefit of the
Purchasers and their respective successors and assigns; provided that no Guarantor may assign, transfer or delegate any of its rights
or obligations under this Guaranty without the prior written consent of the Purchasers.
(f) Set-Off.
Each Guarantor hereby irrevocably authorizes the Collateral Agent, on behalf of itself and the Purchasers at any time and from time to
time while an Event of Default (as defined in the Notes) or other 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 set
off 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 Purchasers to or for the credit or the account of such
Guarantor, or any part thereof in such amounts as the Collateral Agent, on behalf of itself and the Purchasers may elect, against and
on account of the obligations and liabilities of such Guarantor to the Purchasers hereunder and claims of every nature and description
of the Purchasers against such Guarantor, in any currency, whether arising hereunder, under the Purchase Agreement, any other Transaction
Document or otherwise, as the Collateral Agent, on behalf of itself and the Purchasers may elect, whether or not the Collateral Agent,
on behalf of itself and the Purchasers have made any demand for payment and although such obligations, liabilities and claims may be contingent
or unmatured. The Collateral Agent, on behalf of itself and the Purchasers shall notify such Guarantor promptly of any such set-off and
the application made by the Collateral Agent, on behalf of itself and the Purchasers 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 Collateral Agent, on behalf of itself
and the Purchasers under this Section 5(f) are in addition to other rights and remedies (including, without limitation, other rights of
set-off) which the Purchasers may have.
(g) Counterparts.
This Guaranty may be executed by two or more of the parties to this Guaranty on any number of separate counterparts (including by telecopy),
and all of said counterparts taken together shall be deemed to constitute one and the same instrument.
(h) Severability.
Any provision of this Guaranty which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining 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 Guaranty 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 Guaranty represent the agreement of the Guarantors and the Collateral Agent, on behalf of itself and the Purchasers with respect
to the subject matter hereof and thereof, and there are no promises, undertakings, representations or warranties by the Purchasers relative
to the subject matter hereof and thereof not expressly set forth or referred to herein or in the other Transaction Documents.
(k) Governing
Laws. All questions concerning the construction, validity, enforcement and interpretation of this Guaranty shall be governed by and
construed and enforced in accordance with the internal laws of the State of Nevada, without regard to the principles of conflicts of law
thereof. Each of the Collateral Agent, on behalf of itself and the Purchasers and the Guarantors agree that all proceedings concerning
the interpretations, enforcement and defense of the transactions contemplated by this Guaranty (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 Collateral Agent, on behalf of itself
and the Purchasers and 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 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
Guaranty 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 Guaranty or the transactions contemplated hereby.
(l) Acknowledgements.
Each Guarantor hereby acknowledges that:
(i) it
has been advised by counsel in the negotiation, execution and delivery of this Guaranty and the other Transaction Documents to which it
is a party;
(ii) the
Purchasers have no fiduciary relationship with or duty to any Guarantor arising out of or in connection with this Guaranty or any of the
other Transaction Documents, and the relationship between the Guarantors, on the one hand, and the Purchasers, 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 Purchasers.
(m) [Reserved]
(n)
Release of Guarantors. Each Guarantor will be released from all liability hereunder concurrently with the indefeasible repayment
in full of the Obligations (other than inchoate indemnity obligations or indemnification obligations for which no claim or demand for
payment, whether oral or written has been made at such time).
(o)
[Reserved]
(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 GUARANTY AND FOR ANY COUNTERCLAIM THEREIN.
*********************
(Signature Pages Follow)
IN WITNESS WHEREOF, each of
the undersigned has caused this Guaranty to be duly executed and delivered as of the date first above written.
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Title: |
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Xxxxxx X. Xxxx, III |
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Xxxxxxxx X. Xxxx |
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Accepted by:
Arena Investors, LP,
as Collateral Agent
10