JOINDER AGREEMENT
Exhibit
10.28
THIS
JOINDER IN SUBSIDIARY GUARANTY AND SECURITY AGREEMENT (this “Joinder”)
is
executed as of February 9, 2006 by Impart Media Advertising, Inc., a Nevada
corporation (“Joining
Party”),
and
delivered to Laurus Master Fund, Ltd., a Cayman Islands company (the
“Purchaser”). Except as otherwise defined herein, terms used herein and defined
in the Security Agreement (as defined below) shall be used herein as therein
defined.
W I T N E S S E T H:
WHEREAS,
Impart Media Group, Inc, a Nevada corporation (the “Company”), certain
Subsidiaries of the Company and the Purchaser, have entered into a Security
Agreement, dated as of January 27, 2006 (as amended, modified or supplemented
from time to time, the “Security
Agreement”),
providing for the issuance of the Note and the Warrant and the execution
of the
Ancillary Agreements referred to in the Security Agreement; and
WHEREAS,
the Joining Party is a direct or indirect Subsidiary of the Company and desires,
or is required pursuant to the provisions of the Security Agreement, to become
a
Guarantor under the Subsidiary Guaranty and an Eligible Subsidiary under
the
Security Agreement;
NOW,
THEREFORE, in consideration of the foregoing and other benefits accru-ing
to the
Joining Party, the receipt and sufficiency of which are hereby acknowledged,
the
Joining Party hereby makes the following representations and warranties to
the
Purchaser and hereby covenants and agrees with the Purchaser as
follows:
NOW,
THEREFORE, the Joining Party agrees as follows:
1. By
this
Joinder, the Joining Party becomes (i) a Guarantor for all purposes under
the
Subsidiary Guaranty and (ii) an Eligible Subsidiary under the Security
Agreement.
2. The
Joining Party agrees that, upon its execution hereof, it will become a Guarantor
under the Subsidiary Guaranty with respect to all Obligations (as defined
in the
Subsidiary Guaranty), and will be bound by all terms, condi-tions and duties
applicable to a Guarantor under the Subsidiary Guaranty, the Security Agreement
and the other Ancillary Agreements. Without limitation of the foregoing,
and in
furtherance thereof, the Joining Party unconditionally and irrevocably,
guarantees the due and punctual payment and performance of all Obligations
(on
the same basis as the other Guarantors under the Subsidiary
Guaranty).
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2
3. The
Joining Party agrees that, upon its execution hereof, it will become an Eligible
Subsidiary under, and as defined in, the Security Agreement, and will be
bound
by all terms, conditions and duties applicable to an Eligible Subsidiary
under
the Security Agreement. Without limitation of the foregoing and in furtherance
thereof, as security for the due and punctual payment of the Obligations
(as
defined in the Security Agreement), the Joining Party hereby pledges,
hypothecates, assigns, transfers, sets over and delivers to the Purchaser
and
grants to the Purchaser a security interest in all Collateral (as defined
in the
Security Agreement), if any, now owned or, to the extent provided in the
Security Agreement, hereafter acquired by it.
4. In
connection with the grant by the Joining Party, pursuant to paragraph 3 above,
of a security interest in all of its right, title and interest in the Collateral
(as defined in the Security Agreement) in favor of the Purchaser, the Joining
Party (i) agrees to execute (if necessary) and deliver to the Purchaser such
financ-ing statements, in form acceptable to the Purchaser, as the Purchaser
may
request or as are necessary or desirable in the opinion of the Purchaser
to
establish and maintain a valid, enforceable, first priority perfected security
interest in the Collateral (as defined in the Security Agreement) owned by
the
Joining Party, (ii) authorizes the Purchaser to file any such financing
statements without the signature of the Joining Party where permitted by
law
(such authorization includes a description of the Collateral as “all assets and
all personal property, whether now owned and/or hereafter acquired” of the
Joining Party all assets and all personal property, whether now owned and/or
hereafter acquired” (or any substantially similar variation thereof)) and (iii)
agrees to execute and deliver to the Purchaser assignments of United States
trademarks, patents and copyrights (and the respective applications therefor)
to
the extent requested by the Purchaser.
5. Without
limiting the foregoing, the Joining Party hereby makes and under-takes, as
the
case may be, each covenant, representation and warranty made by, and as
(i) each Guarantor pursuant to the Subsidiary Guaranty and (ii) each
Eligible Subsidiary pursuant to the Security Agreement, in each case as of
the
date hereof (except to the extent any such representation or warranty relates
solely to an earlier date in which case such repre-sen-ta-tion and warranty
shall be true and correct as of such earlier date), and agrees to be bound
by
all covenants, agreements and obligations of a Guarantor and Eligible Subsidiary
pursuant to the Subsidiary Guaranty and the Security Agreement, respectively,
and all other Ancillary Agreements to which it is or becomes a
party.
6. Each
of
Schedules 7(c), 12(b), 12(c), 12(n) and 12(aa) of the Security Agreement
is
hereby amended by supplementing such Schedule with the information for the
Joining Party contained on Schedules 7(c), 12(b), 12(c) 12(n) and 12(aa)
attached hereto as Annex
I.
Schedule A to the Stock Pledge Agreement is hereby amended by supplementing
such
Schedule with the information for the Joining Party contained on Schedule
A
attached hereto as Annex
II.
7. This
Joinder shall be binding upon the parties hereto and their respective successors
and permitted assigns and shall inure to the benefit of and be enforce-able
by
each of the parties hereto and its successors and permitted assigns,
provided,
however,
the
Joining Party may not assign any of its rights, obligations or interest
hereunder or under the Security Agreement or any Ancillary Agreement without
the
prior written consent of the Purchaser or as otherwise permitted by the Security
Agreement or any Ancillary Agreement. THIS
JOINDER SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY
THE
LAW OF THE STATE OF NEW YORK.
This
Joinder may be executed in any number of counterparts, each of which shall
be an
original, but all of which shall constitute one instrument. In the event
that
any provision of this Joinder shall prove to be invalid or unenforceable,
such
provi-sion shall be deemed to be sever-able from the other provi-sions of
this
Joinder which shall remain binding on all parties hereto.
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3
8. From
and
after the execution and delivery hereof by the parties hereto, this Joinder
shall constitute an “Ancillary Agreement” for all purposes of the Security
Agreement and the Ancillary Agreements.
9. The
effective date of this Joinder is February 28, 2006.
*
*
*
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4
IN
WITNESS WHEREOF, the Joining Party has caused this Joinder to be duly executed
as of the date first above written.
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IMPART
MEDIA ADVERTISING, INC.
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By:
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/s/Xxxxxx
Xxxxxxxx
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Name:
Xxxxxx Xxxxxxxx
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Title:
Chief Financial Officer
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5
Accepted
and Acknowledged by:
LAURUS
MASTER FUND, LTD.
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By:
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/s/Xxxxx
Grin
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Name:
Xxxxx Grin
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Title:
Director
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Page 6
Solely
with respect to the second sentence in Section 6 hereof, the undersigned
hereby
acknowledges and agrees as of the date first above written.
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IMPART
MEDIA GROUP, INC.
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By:
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/s/Xxxxxx
Xxxxxxxx
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Name:
Xxxxxx Xxxxxxxx
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Title:
Chief Financial Officer
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