Exhibit 99.8
GUARANTY
GUARANTY, dated as of March 29, 2006 made by FP TECHNOLOGY HOLDINGS, INC.
(each a "Guarantor", and collectively, the "Guarantors"), in favor of THE BANK
OF NEW YORK, a New York banking corporation, in its capacity as collateral agent
for the "Holders" under the Indenture referred to below (in such capacity and
together with its successors in such capacity, the "Collateral Agent").
W I T N E S S E T H :
WHEREAS, AFG Enterprises USA, Inc., a Nevada corporation (the "Company")
and The Bank of New York, as trustee for the Holders (in such capacity and
together with its successors and assigns in such capacity, the "Trustee"), are
parties to an Indenture dated the date hereof (as amended, restated,
supplemented or otherwise modified from time to time, the "Indenture"),
providing, subject to the terms and conditions thereof, for the issuance by the
Company of the "Notes" (as defined in the Indenture) (as such Notes may be
amended, restated, replaced or otherwise modified from time to time in
accordance with the terms thereof, collectively, the "Notes");
WHEREAS, the Guarantor has executed and delivered a Security Agreement
dated as of even date herewith, in favor of the Collateral Agent (as amended,
restated or otherwise modified from time to time, the "Security Agreement");
WHEREAS, each of the "Holders" (as defined in the Indenture) (each a
"Holder," and collectively, the "Holders") has entered into a Securities
Purchase Agreement (as amended, restated or otherwise modified from time to
time, the "Securities Purchase Agreement") with the Company providing, subject
to the terms and conditions thereof, for the purchase of the Notes and
"Warrants" (as defined therein) from the Company;
WHEREAS, it is a condition precedent to the Trustee entering into the
Indenture and the Holders entering into the Securities Purchase Agreement that
the Guarantor execute and deliver to the Collateral Agent a guaranty
guaranteeing all of the obligations of the Company thereunder; and
WHEREAS, the Guarantors have determined that their execution, delivery and
performance of this Guaranty directly benefit, and are within the corporate
purposes and in the best interests of, the Guarantor;
NOW, THEREFORE, in consideration of the premises and the agreements herein
and in order to induce the Trustee to perform under the Indenture, the
Guarantors hereby agree with the Collateral Agent as follows:
SECTION 1. Definitions. Reference is hereby made to the Indenture and the
Notes for a statement of the terms thereof. All terms used in this Guaranty,
which are defined in the Indenture, the Securities Purchase Agreement or the
Notes and not otherwise defined herein, shall have the same meanings herein as
set forth therein.
SECTION 2. Guaranty. Each Guarantor hereby unconditionally and
irrevocably, jointly together with all other Guarantors and severally,
guarantees, as a primary obligor and not merely as a surety, the punctual
payment, as and when due and payable, by stated maturity or otherwise, of all
Obligations of the Company from time to time owing by it to the Collateral
Agent, the Holders or the Trustee in respect of the Indenture, the Securities
Purchase Agreement, the Notes and the other "Transaction Documents" (as defined
in the Securities Purchase Agreement) (the "Transaction Documents") including,
without limitation, all interest that accrues before or after the commencement
of any Insolvency Proceeding of the Company or any Guarantor, (whether or not
the payment of such interest is unenforceable or is not allowable due to the
existence of such Insolvency Proceeding) (as defined in the Security Agreement),
all fees, commissions, expense reimbursements, indemnifications and all other
amounts due or to become due under any of the Transaction Documents, the due and
punctual performance of all covenants, agreements obligations and liabilities of
the company under the Transaction Documents and any and all expenses (including
reasonable counsel fees and expenses) reasonably incurred by the Collateral
Agent, the Trustee or the Holders in enforcing any rights under this Guaranty
(such obligations being collectively referred to herein as the "Guaranteed
Obligations"). Without limiting the generality of the foregoing, the Guarantor's
liability hereunder shall extend to all amounts that constitute part of the
Guaranteed Obligations and would be owed by the Company to the Collateral Agent
, the Trustee or the Holders under the Indenture and the Notes but for the fact
that they are unenforceable or not allowable due to the existence of an
Insolvency Proceeding involving any Guarantor or the Company (each, a
"Transaction Party").
SECTION 3. Guaranty Absolute; Continuing Guaranty; Assignments.
(a) Each Guarantor, jointly together with all Guarantors, and severally,
guarantees that the Guaranteed Obligations will be paid strictly in accordance
with the terms of the Transaction Documents, regardless of any law, regulation
or order now or hereafter in effect in any jurisdiction affecting any of such
terms or the rights of the Collateral Agent, the Trustee or the Holders in
respect thereof. The obligations of each Guarantor under this Guaranty are
independent of the Guaranteed Obligations, and a separate action or actions may
be brought and prosecuted against any Guarantor to enforce such obligations,
irrespective of whether any action is brought against any Transaction Party or
whether any Transaction Party is joined in any such action or actions. The
liability of each Guarantor under this Guaranty shall be irrevocable, absolute
and unconditional irrespective of, and each Guarantor hereby irrevocably waives,
to the extent permitted by law, any defenses it may now or hereafter have in any
way relating to, any or all of the following:
(i) any lack of validity or enforceability of any Transaction
Document or any agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guaranteed Obligations, or any other
amendment or waiver of or any consent to departure from any Transaction
Document, including, without limitation, any increase in the Guaranteed
Obligations resulting from the extension of additional credit to any Transaction
Party or otherwise;
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(iii) any taking, exchange, release or non-perfection of any
Collateral, or any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed Obligations;
(iv) any change, restructuring or termination of the corporate,
limited liability company or partnership structure or existence of any
Transaction Party; or
(v) any other circumstance (including any statute of limitations) or
any existence of or reliance on any representation by the Collateral Agent, the
Trustee or the Holders that might otherwise constitute a defense available to,
or a discharge of, any Transaction Party or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Collateral Agent, the Trustee or the
Holders or any other Person upon the insolvency, bankruptcy or reorganization of
any Transaction Party or otherwise, all as though such payment had not been
made.
(b) This Guaranty is a continuing guaranty and shall (i) remain in full
force and effect until the indefeasible cash payment in full of the Guaranteed
Obligations (other than inchoate indemnity obligations) and all other amounts
payable under this Guaranty and shall not terminate for any reason prior to the
Maturity Date (as defined in the Indenture) (other than payment in full of the
Notes) and (ii) be binding upon each Guarantor and its respective successors and
assigns. This Guaranty shall inure to the benefit of and be enforceable by the
Collateral Agent, the Trustee and the Holders and their successors, and
permitted pledgees, transferees and assigns. Without limiting the generality of
the foregoing sentence, the Collateral Agent, Trustee or any Holder may pledge,
assign or otherwise transfer all or any portion of its rights and obligations
under and subject to the terms of any Transaction Document to any other Person,
and such other Person shall thereupon become vested with all the benefits in
respect thereof granted to the Collateral Agent, Trustee or Holders (as the case
may be) herein or otherwise, in each case as provided in the Indenture.
SECTION 4. Waivers. To the extent permitted by applicable law, each
Guarantor hereby waives promptness, diligence, notice of acceptance and any
other notice with respect to any of the Guaranteed Obligations and this Guaranty
and any requirement that the Collateral Agent, the Trustee or any Holder exhaust
any right or take any action against any Transaction Party or any other Person
or any Collateral. Each Guarantor acknowledges that it will receive direct and
indirect benefits from the financing arrangements contemplated herein and that
the waiver set forth in this Section 4 is knowingly made in contemplation of
such benefits. Each Guarantor hereby waives any right to revoke this Guaranty,
and acknowledges that this Guaranty is continuing in nature and applies to all
Guaranteed Obligations, whether existing now or in the future.
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SECTION 5. Subrogation. No Guarantor may exercise any rights that it may
now or hereafter acquire against any Transaction Party or any other Guarantor
that arise from the existence, payment, performance or enforcement of such
Guarantor's obligations under this Guaranty, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of the
Collateral Agent, Trustee and any Holder against any Transaction Party or any
other guarantor or any Collateral, whether or not such claim, remedy or right
arises in equity or under contract, statute or common law, including, without
limitation, the right to take or receive from any Transaction Party or any other
Guarantor, directly or indirectly, in cash or other property or by set-off or in
any other manner, payment or security solely on account of such claim, remedy or
right, unless and until all of the Guaranteed Obligations (other than inchoate
indemnity obligations) and all other amounts payable under this Guaranty shall
have indefeasibly been paid in full in cash. If any amount shall be paid to any
Guarantor in violation of the immediately preceding sentence at any time prior
to the later of the payment in full in cash of the Guaranteed Obligations and
all other amounts payable under this Guaranty, such amount shall be held in
trust for the benefit of the Collateral Agent, the Trustee and the Holders and
shall forthwith be paid to the Collateral Agent, the Trustee and the Holders to
be credited and applied to the Guaranteed Obligations and all other amounts
payable under this Guaranty, whether matured or unmatured, in accordance with
the terms of the Transaction Documents, or to be held as Collateral for any
Guaranteed Obligations or other amounts payable under this Guaranty thereafter
arising.
SECTION 6. Representations, Warranties and Covenants. The Guarantors
hereby represent and warrant as follows:
(a) Each Guarantor (i) is a corporation, limited partnership or limited
liability company, duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization as set forth on the first page
hereof, (ii) has all requisite power and authority to conduct its business as
now conducted and as presently contemplated and to execute and deliver this
Guaranty and each other Transaction Document to which such Guarantor is a party,
and to consummate the transactions contemplated hereby and thereby and (iii) 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 would not result in a Material Adverse Effect.
(b) The execution, delivery and performance by each Guarantor of this
Guaranty and each other Transaction Document to which such Guarantor is a party
(i) have been duly authorized by all necessary action, (ii) do not and will not
contravene its charter or by-laws, its limited liability company or operating
agreement or its certificate of partnership or partnership agreement, as
applicable, or any applicable law or any contractual restriction binding on the
Guarantor or its properties, (iii) do not and will not result in or require the
creation of any lien (other than pursuant to any Transaction Document) upon or
with respect to any of its properties, and (iv) do not and will not result in
any default, noncompliance, suspension, revocation, impairment, forfeiture or
nonrenewal of any material permit, license, authorization or approval applicable
to it or its operations or any of its properties.
(c) No authorization or approval or other action by, and no notice to or
filing with, any governmental authority is required in connection with the due
execution, delivery and performance by each Guarantor of this Guaranty or any of
the other Transaction Documents to which each Guarantor is a party.
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(d) Each of this Guaranty and the other Transaction Documents to which any
Guarantor is or will be a party, when delivered, will be, a legal, valid and
binding obligation of the Guarantors, enforceable against the Guarantors in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, suretyship or other similar laws and
equitable principles (regardless of whether enforcement is sought in equity or
at law).
(e) There is no pending or, to the best knowledge of any Guarantor,
threatened action, suit or proceeding against the Guarantors or to which any of
the properties of any Guarantor is subject, before any court or other
governmental authority or any arbitrator that (i) if adversely determined, could
reasonably be expected to have a Material Adverse Effect or (ii) relates to this
Guaranty or any of the other Transaction Documents to which any Guarantor is a
party or any transaction contemplated hereby or thereby.
(f) Each Guarantor (i) has read and understands the terms and conditions
of the Indenture and the other Transaction Documents, and (ii) now has and will
continue to have independent means of obtaining information concerning the
affairs, financial condition and business of the Company and the other
Transaction Parties, and has no need of, or right to obtain from the Collateral
Agent, the Trustee or any Holder, any credit or other information concerning the
affairs, financial condition or business of the Company or the other Transaction
Parties that may come under the control of the Collateral Agent, the Trustee or
any Holder.
(g) Each Guarantor covenants and agrees that until indefeasible full and
final payment of the Guaranteed Obligations, it will comply with each of the
covenants (except to the extent applicable only to a public company) which are
set forth in Section 10 of the Indenture to the extent that such covenants
relate to the Subsidiaries of the Company, as if such Guarantor were a party
thereto.
SECTION 7. Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default, the Collateral Agent, the Trustee or any
Holder may, and is hereby authorized to, at any time and from time to time,
without notice to any Guarantor (any such notice being expressly waived by the
Guarantors) and to the fullest extent permitted by law, set-off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by the Collateral Agent,
the Trustee or any Holder to or for the credit or the account of any Guarantor
against any and all obligations of any Guarantor now or hereafter existing under
this Guaranty or any other Transaction Document, irrespective of whether or not
the Collateral Agent, Trustee or Holder shall have made any demand under this
Guaranty or any other Transaction Document and although such obligations may be
contingent or unmatured. The Collateral Agent, Trustee and such Holder (as the
case may be) agrees to notify the relevant Guarantor promptly after any such
set-off and application made by such party, 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, the Trustee and the Holders under this Section 7
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) which the Collateral Agent, the Trustee and the Holders
may have under this Guaranty or any other Transaction Document in law or
otherwise.
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SECTION 8. Notices, Etc. All notices and other communications provided for
hereunder shall be in writing and shall be mailed, telecopied or delivered, if
to any Guarantor, to it at its address set forth on the signature page hereto,
or if to the Collateral Agent or Trustee, to it at its address set forth in the
Indenture; or as to either such Person at such other address as shall be
designated by such Person in a written notice to such other Person complying as
to delivery with the terms of this Section 8. All such notices and other
communications shall be effective (i) if mailed (by certified mail, postage
prepaid and return receipt requested), when received.
SECTION 9. CONSENT TO JURISDICTION; SERVICE OF PROCESS AND
VENUE. ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER
TRANSACTION DOCUMENT MAY BE BROUGHT IN THE STATE AND FEDERAL COURTS SITTING IN
THE STATE OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
GUARANTOR HEREBY IRREVOCABLY ACCEPTS IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. EACH GUARANTOR HEREBY
IRREVOCABLY APPOINTS THE SECRETARY OF STATE OF THE STATE OF NEW YORK AS ITS
IAGENT FOR SERVICE OF PROCESS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING AND
FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE
AFOREMENTIONED COURTS AND IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, AT ITS ADDRESS
FOR NOTICES AS SET FORTH ON THE SIGNATURE PAGE HERETO AND TO THE SECRETARY OF
STATE OF THE STATE OF NEW YORK, SUCH SERVICE TO BECOME EFFECTIVE TEN (10) DAYS
AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE COLLATERAL
AGENT, TRUSTEE AND THE HOLDERS TO SERVICE OF PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
ANY GUARANTOR IN ANY OTHER JURISDICTION. EACH GUARANTOR HEREBY EXPRESSLY AND
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
IT MAY NOW OR HEREAFTER HAVE TO THE JURISDICTION OR LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT
ANY GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT
PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO
ITSELF OR ITS PROPERTY, SUCH GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY
IN RESPECT OF ITS OBLIGATIONS UNDER THIS GUARANTY AND THE OTHER TRANSACTION
DOCUMENTS.
SECTION 10. WAIVER OF JURY TRIAL, ETC. EACH GUARANTOR HEREBY WAIVES ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING
ANY RIGHTS UNDER THIS GUARANTY OR THE OTHER TRANSACTION DOCUMENTS, OR UNDER ANY
AMENDMENT, WAIVER, CONSENT, INSTRUMENT, DOCUMENT OR OTHER AGREEMENT DELIVERED OR
WHICH IN THE FUTURE MAY BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR
ARISING FROM ANY FINANCING RELATIONSHIP EXISTING IN CONNECTION WITH THIS
GUARANTY OR THE OTHER TRANSACTION DOCUMENTS, AND AGREES THAT ANY SUCH ACTION,
PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
THE GUARANTOR CERTIFIES THAT NO OFFICER, REPRESENTATIVE, AGENT OR ATTORNEY OF
THE COLLATERAL AGENT, TRUSTEE OR ANY HOLDER HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE COLLATERAL AGENT, TRUSTEE OR ANY HOLDER WOULD NOT, IN THE
EVENT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM, SEEK TO ENFORCE THE FOREGOING
WAIVERS.
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SECTION 11. Taxes.
(a) All payments made by any Guarantor hereunder or under any other
Transaction Document shall be made in accordance with the terms of the Indenture
and shall be made without set-off, counterclaim, deduction or other defense. All
such payments shall be made free and clear of and without deduction for any
present or future taxes, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, excluding franchise taxes and taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, imposed on the net income of the Holders by the jurisdiction in
which such Holder is organized or where it has its principal lending office (all
such nonexcluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities, collectively or individually, "Taxes"). If any Guarantor shall be
required to deduct or to withhold any Taxes from or in respect of any amount
payable hereunder or under any other Transaction Document;
(i) the amount so payable shall be increased to the extent necessary
so that after making all required deductions and withholdings (including
Taxes on amounts payable to the Collateral Agent, Trustee or the Holders
pursuant to this sentence) the Collateral Agent, the Trustee and the
Holders receive an amount equal to the sum they would have received had no
such deduction or withholding been made,
(ii) such Guarantor shall make such deduction or withholding,
(iii) such Guarantor shall pay the full amount deducted or withheld
to the relevant taxation authority in accordance with applicable law, and
(iv) as promptly as possible thereafter, such Guarantor shall send
the Collateral Agent and the Trustee an official receipt (or, if an
official receipt is not available, such other documentation as shall be
satisfactory to the Collateral Agent or the Trustee, as the case may be)
showing payment. In addition but excluding taxes, charges, levies,
imposts, deductions and withholdings excluded from the definition of
Taxes, each Guarantor agrees to pay any present or future taxes, charges
or similar levies which arise from any payment made hereunder or from the
execution, delivery, performance, recordation or filing of, or otherwise
with respect to, this Agreement or any other Transaction Document other
than 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 Agreement or any other Transaction
Document (collectively, "Other Taxes").
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(b) Each Guarantor hereby, jointly and severally, indemnifies and agrees
to hold the Collateral Agent, the Trustee and the Holders harmless from and
against Taxes or Other Taxes (including, without limitation, any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this Section 11) paid
by the Collateral Agent, the Trustee or any Holder and any liability (including
penalties, interest and expenses for nonpayment, late payment or otherwise)
arising therefrom or in respect thereof, whether or not such Taxes or Other
Taxes were correctly or legally asserted. This indemnification shall be paid
within 30 days from the date on which the Collateral Agent, Trustee or any
Holder makes written demand therefor, which demand shall identify the nature and
amount of Taxes or Other Taxes.
(c) If any Guarantor fails to perform any of its obligations under this
Section 11, each Guarantor shall, jointly together with all other Guarantors and
severally, indemnify the Collateral Agent, the Trustee and the Holders for any
taxes, interest or penalties that may become payable as a result of any such
failure. The obligations of each Guarantor under this Section 11 shall survive
the termination of this Guaranty and the payment of the Obligations and all
other amounts payable hereunder.
SECTION 12. Miscellaneous.
(a) Each Guarantor will make each payment hereunder in lawful money of the
United States of America and in immediately available funds to the Collateral
Agent, for the benefit of the Trustee and the Holders, at such address specified
by the Collateral Agent from time to time by notice to the Guarantor.
(b) No amendment or waiver of any provision of this Guaranty and no
consent to any departure by any Guarantor therefrom shall in any event be
effective unless the same shall be in writing and signed by the Guarantor and
the Collateral Agent, and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given.
(c) No failure on the part of the Collateral Agent, the Trustee or any
Holder to exercise, and no delay in exercising, any right hereunder or under any
other Transaction Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any right hereunder or under any Transaction
Document preclude any other or further exercise thereof or the exercise of any
other right. The rights and remedies of the Collateral Agent, the Trustee and
the Holders provided herein and in the other Transaction Documents are
cumulative and are in addition to, and not exclusive of, any rights or remedies
provided by law. The rights of the Collateral Agent, the Trustee and the Holders
under any Transaction Document against any party thereto are not conditional or
contingent on any attempt by the Collateral Agent, the Trustee and the Holders
to exercise any of their rights under any other Transaction Document against
such party or against any other Person.
(d) Any provision of this Guaranty that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining portions
hereof or thereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
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(e) This Guaranty shall (i) be binding on each Guarantor and its
respective successors and assigns, and (ii) inure, together with all rights and
remedies of the Collateral Agent, the Trustee and the Holders hereunder, to the
benefit of the Collateral Agent, the Trustee and the Holders and their
respective successors, transferees and assigns. Without limiting the generality
of clause (ii) of the immediately preceding sentence subject to the terms of the
Indenture and the other Transaction Documents, any Holder may assign or
otherwise transfer its rights and obligations under the Indenture or any other
Transaction Document to any other Person, and such other Person shall thereupon
become vested with all of the benefits in respect thereof granted to the Holder
herein or otherwise. Each Guarantor agrees that each participant shall be
entitled to the benefits of Section 11 with respect to its participation in any
portion of the Notes as if it was a Holder. None of the rights or obligations of
any Guarantor hereunder may be assigned or otherwise transferred without the
prior written consent of the Collateral Agent.
(f) This Guaranty and the other Transaction Documents represent the entire
agreement of the Guarantors and the Collateral Agent with respect to the subject
matter hereof, and there are no promises, undertakings, representations or
warranties by the Collateral Agent relative to the subject matter thereof not
expressly set forth or referred to herein or in the other Transaction Documents.
(g) Section headings herein are included for convenience of reference only
and shall not constitute a part of this Agreement for any other purpose.
(h) THIS GUARANTY AND THE OTHER TRANSACTION DOCUMENTS (UNLESS EXPRESSLY
PROVIDED TO THE CONTRARY IN ANOTHER TRANSACTION DOCUMENT) SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED THEREIN WITHOUT REGARD TO CONFLICT OF LAW
PRINCIPLES.
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IN WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed
by an officer thereunto duly authorized, as of the date first above written.
FP TECHNOLOGY HOLDINGS, INC.
By:/s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
Title: Chief Executive Officer
Address: 000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxxxxx 00000
