EXHIBIT 10.5
GUARANTY
GUARANTY, dated as of January [__], 2014 made by each of the
undersigned (each a "Guarantor", and collectively, the "Guarantors"), in favor
of the "Buyers" (as defined below) party to the Securities Purchase Agreement
referenced below.
W I T N E S S E T H :
WHEREAS, Advanced Cannabis Solutions, Inc., a Colorado corporation
(the "Company"), and each party listed as a "Buyer" on the Schedule of Buyers
attached to the Securities Purchase Agreement (each a "Buyer", and collectively,
the "Buyers") are parties to that certain Securities Purchase Agreement, dated
as of January [__], 2014 (the "Securities Purchase Agreement") pursuant to
which, among other things, the Buyers shall purchase from the Company certain
senior secured convertible "Notes" (as defined in the Securities Purchase
Agreement) (collectively, the "Notes");
WHEREAS, the Buyers have requested, and the Guarantors have agreed,
that the Guarantors shall execute and deliver to the Buyers, a guaranty
guaranteeing all of the obligations of the Company under the Securities Purchase
Agreement, the Notes and the other "Transaction Documents" (as defined in the
Securities Purchase Agreement, the "Transaction Documents");
WHEREAS, pursuant to a Pledge and Security Agreement, dated as of
the date hereof (the "Security Agreement"), the Company and the Guarantors have
granted to Full Circle Capital Corporation, as collateral agent for the Buyers
(in such capacity, the "Collateral Agent"), a security interest in and lien on
their assets to secure their respective obligations under this Guaranty, the
Securities Purchase Agreement, the Notes and the other Transaction Documents;
and
WHEREAS, each Guarantor has determined that the execution, delivery
and performance of this Guaranty directly benefits, and is in the best interest
of, such Guarantor;
NOW, THEREFORE, in consideration of the premises and the agreements
herein and for other consideration, the sufficiency of which is hereby
acknowledged, each Guarantor hereby agrees with each Buyer as follows:
SECTION 1. Definitions. Reference is hereby made to the Securities Purchase
Agreement and the Notes for a statement of the terms thereof. All terms used in
this Guaranty, which are defined in 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. The Guarantors, jointly and severally, hereby
unconditionally and irrevocably, guaranty (a) the punctual payment, as and when
due and payable, by stated maturity or otherwise, of all obligations and any
other amounts now or hereafter owing by the Company in respect of the Securities
Purchase Agreement, the Notes and the other Transaction Documents, including,
without limitation, all interest that accrues after the commencement of any
proceeding commenced by or against any the Company or any Guarantor under any
provision of the Bankruptcy Code (Chapter 11 of Title 11 of the United States
Code) or under any other bankruptcy or insolvency law, assignments for the
benefit of creditors, formal or informal moratoria, compositions, or extensions
generally with creditors, or proceedings seeking reorganization, arrangement, or
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other similar relief (an "Insolvency Proceeding"), whether or not the payment of
such interest is unenforceable or is not allowable due to the existence of such
Insolvency Proceeding, and all fees, commissions, expense reimbursements,
indemnifications and all other amounts due or to become due under any of the
Transaction Documents, and any and all expenses (including reasonable counsel
fees and expenses) reasonably incurred by the Buyers or the Collateral Agent in
enforcing any rights under this Guaranty (such obligations, to the extent not
paid by the Company, being the "Guaranteed Obligations") and (b) the punctual
and faithful performance, keeping, observance and fulfillment by the Company of
all of the agreements, conditions, covenants and obligations of the Company
contained in the Securities Purchase Agreement, the Notes and the other
Transaction Documents. Without limiting the generality of the foregoing, each
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 Buyers
under the Securities Purchase Agreement 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) The Guarantors, jointly and severally, guaranty 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 Buyers with respect thereto. 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 any 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;
(iii) any taking, exchange, release or non-perfection of any collateral
with respect to the Guaranteed Obligations, 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; or
(iv) any change, restructuring or termination of the corporate, limited
liability company or partnership structure or existence of any Transaction
Party.
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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 any Buyer 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 complete conversion of all of the Company's
obligations under the Notes to equity securities of the Company and/or
indefeasible payment in full in cash of all obligations under the Notes
(together with any matured indemnification obligations as of the date of such
conversion and/or payment, but excluding any inchoate or unmatured contingent
indemnification obligations) and payment of all other amounts payable under this
Guaranty (excluding any inchoate or unmatured contingent indemnification
obligations) 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 Buyers and their respective successors, and permitted
pledgees, transferees and assigns. Without limiting the generality of the
foregoing sentence, any Buyer 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 such Buyer
herein or otherwise, in each case as provided in the Securities Purchase
Agreement or such Transaction Document. Notwithstanding the foregoing and for
the avoidance of doubt, this Guaranty will expire and each Guarantor will be
released from its obligation hereunder upon the complete conversion of all of
the Company's obligations under the Notes to equity securities of the Company
and/or indefeasible payment in full in cash of all obligations under the Notes
(together with any matured indemnification obligations as of the date of such
conversion and/or payment, but excluding any inchoate or unmatured contingent
indemnification obligations) and payment of all other amounts payable under this
Guaranty (excluding any inchoate or unmatured contingent indemnification
obligations).
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 Buyers or the Collateral Agent exhaust any right or
take any action against any Transaction Party or any other Person or any
Collateral (as defined in the Security Agreement). 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. The Guarantors hereby waive
any right to revoke this Guaranty, and acknowledge that this Guaranty is
continuing in nature and applies to all Guaranteed Obligations, whether existing
now or in the future.
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 any
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
Buyers or the Collateral Agent against any Transaction Party or any other
guarantor or any Collateral (as defined in the Security Agreement), whether or
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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 the complete
conversion of all of the Company's obligations under the Notes to equity
securities of the Company and/or indefeasible payment in full in cash of all
obligations under the Notes (together with any matured indemnification
obligations as of the date of such conversion and/or payment, but excluding any
inchoate or unmatured contingent indemnification obligations) and payment of all
other amounts payable under this Guaranty (excluding any inchoate or unmatured
contingent indemnification obligations). If any amount shall be paid to a
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 Buyers and shall forthwith be paid ratably to the
Buyers 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 Document, or to be held as collateral for any
Guaranteed Obligations or other amounts payable under this Guaranty thereafter
arising. If (a) any Guarantor shall make payment to the Buyers of all or any
part of the Guaranteed Obligations, and (b) the Buyers receive the complete
conversion of all of the Company's obligations under the Notes to equity
securities of the Company and/or indefeasible payment in full in cash of all
obligations under the Notes (together with any matured indemnification
obligations as of the date of such conversion and/or payment, but excluding any
inchoate or unmatured contingent indemnification obligations) and payment of all
other amounts payable under this Guaranty (excluding any inchoate or unmatured
contingent indemnification obligations), the Buyers will, at such Guarantor's
request and expense, 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
Guaranteed Obligations resulting from such payment by such Guarantor.
SECTION 6. Representations, Warranties and Covenants.
(a) Each Guarantor hereby represents and warrants as of the date first
written above as follows:
(i) Each Guarantor (A) is 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, (B) 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 and deliver this Guaranty and each
other Transaction Document to which the Guarantor is a party, and to consummate
the transactions contemplated hereby and thereby and (C) 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.
(ii) The execution, delivery and performance by each Guarantor of this
Guaranty and each other Transaction Document to which such Guarantor is a party
(A) have been duly authorized by all necessary corporate, limited liability
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company or limited partnership action, (B) 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 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 (C) 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.
(iii) 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 the Guarantor of this Guaranty or any of
the other Transaction Documents to which the Guarantor is a party (other than
expressly provided for in any of the Transaction Documents).
(iv) Each of this Guaranty and the other Transaction Documents to which the
Guarantor is or will be a party, when delivered, will be, a legal, valid and
binding obligation of the Guarantor, enforceable against the Guarantor in
accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance, suretyship or
other similar laws and equitable principles (regardless of whether enforcement
is sought in equity or at law).
(v) There is no pending or, to the best knowledge of the Guarantor,
threatened action, suit or proceeding against the Guarantor or to which any of
the properties of the Guarantor is subject, before any court or other
governmental authority or any arbitrator that (A) if adversely determined, could
reasonably be expected to have a Material Adverse Effect or (B) relates to this
Guaranty or any of the other Transaction Documents to which the Guarantor is a
party or any transaction contemplated hereby or thereby.
(vi) The Guarantor (A) has read and understands the terms and conditions of
the Securities Purchase Agreement, the Notes and the other Transaction
Documents, and (B) 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 or any Buyer, 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 or any Buyer.
(b) The Guarantor covenants and agrees that until the complete conversion
of all of the Company's obligations under the Notes to equity securities of the
Company and/or indefeasible payment in full in cash of all obligations under the
Notes (together with any matured indemnification obligations as of the date of
such conversion and/or payment, but excluding any inchoate or unmatured
contingent indemnification obligations) and payment of all other amounts payable
under this Guaranty (excluding any inchoate or unmatured contingent
indemnification 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 4 of the Securities Purchase Agreement as if the Guarantor were a party
thereto.
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SECTION 7. Right of Set-off. Upon the occurrence and during the continuance
of any Event of Default, the Collateral Agent and any Buyer may, and is hereby
authorized to, at any time and from time to time, without notice to the
Guarantors (any such notice being expressly waived by each Guarantor) 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 any Buyer to or for the credit or the account
of any Guarantor against any and all obligations of the Guarantors now or
hereafter existing under this Guaranty or any other Transaction Document,
irrespective of whether or not Collateral Agent or any Buyer shall have made any
demand under this Guaranty or any other Transaction Document and although such
obligations may be contingent or unmatured. Collateral Agent and each Buyer
agrees to notify the relevant Guarantor promptly after any such set-off and
application made by such Buyer, 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 or any Buyer under this Section 7 are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
which the Collateral Agent or such Buyer may have under this Guaranty or any
other Transaction Document in law or otherwise.
SECTION 8. Notices, Etc. All notices and other communications provided for
hereunder shall be in writing and shall be mailed (by overnight mail or by
certified mail, postage prepaid and return receipt requested), telecopied or
delivered, if to any Guarantor, to the address for such Guarantor set forth on
the signature page hereto, or if to any Buyer, to it at its respective address
set forth in the Securities Purchase Agreement; or as to any 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 or three
Business Days after deposited in the mails, whichever occurs first; (ii) if
telecopied, when transmitted and confirmation is received, provided same is on a
Business Day and, if not, on the next Business Day; or (iii) if delivered by
hand, upon delivery, provided same is on a Business Day and, if not, on the next
Business Day.
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 XXX XXXXXX XX XXX XXXXX XX XXX XXXX IN THE COUNTY OF
NEW YORK OR OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT 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. NOTHING HEREIN SHALL AFFECT THE RIGHT
OF THE BUYERS TO SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST EACH GUARANTOR IN ANY
OTHER JURISDICTION. ANY GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
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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, EACH 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.
EACH GUARANTOR CERTIFIES THAT NO OFFICER, REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY BUYER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT ANY BUYER WOULD NOT, IN
THE EVENT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM, SEEK TO ENFORCE THE
FOREGOING WAIVERS. EACH GUARANTOR HEREBY ACKNOWLEDGES THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE BUYERS ENTERING INTO THE OTHER TRANSACTION
DOCUMENTS.
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
respective Transaction Document 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 taxes imposed on the net income of any Buyer by the jurisdiction in
which such Buyer 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 any Buyer pursuant to this sentence) each Buyer receives an
amount equal to the sum it would have received had no such deduction or
withholding been made,
(ii) such Guarantor shall make such deduction or withholding,
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(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
Buyers an official receipt (or, if an official receipt is not available, such
other documentation as shall be satisfactory to the Buyers, as the case may be)
showing payment. In addition, each Guarantor agrees to pay 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, registration or enforcement of, or otherwise with respect to, this
Agreement or any other Transaction Document (collectively, "Other Taxes").
(b) Each Guarantor hereby indemnifies and agrees to hold the Collateral
Agent and each Buyer (each an "Indemnified Party") 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
any Indemnified Party as a result of any payment made hereunder or from the
execution, delivery, registration or enforcement of, or otherwise with respect
to, this Agreement or any other Transaction Document, and any liability
(including penalties, interest and expenses for nonpayment, late payment or
otherwise) arising therefrom or with respect thereto, 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 such Buyer makes written demand
therefor, which demand shall identify the nature and amount of such Taxes or
Other Taxes.
(c) If any Guarantor fails to perform any of its obligations under this
Section 11, such Guarantor shall indemnify the Collateral Agent and each Buyer
for any taxes, interest or penalties that may become payable as a result of any
such failure. The obligations of the Guarantors 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 each Buyer, at
such address specified by such Buyer from time to time by notice to the
Guarantors.
(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 each Guarantor and each Buyer,
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 or any Buyer 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 and the Buyers 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
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the Collateral Agent and the Buyers under any Transaction Document against any
party thereto are not conditional or contingent on any attempt by the Collateral
Agent or any Buyer to exercise any of their respective 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 affecting the validity or enforceability of such provision in any
other jurisdiction.
(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 and the Buyers hereunder, to the benefit of the Collateral
Agent and the Buyers and their respective successors, transferees and assigns.
Without limiting the generality of clause (ii) of the immediately preceding
sentence, the Collateral Agent and any Buyer may assign or otherwise transfer
its rights and obligations under the Securities Purchase Agreement or any other
Transaction Document to any other Person in accordance with the terms thereof,
and such other Person shall thereupon become vested with all of the benefits in
respect thereof granted to the Collateral Agent or such Buyer, as the case may
be, herein or otherwise. None of the rights or obligations of any Guarantor
hereunder may be assigned or otherwise transferred without the prior written
consent of each Buyer.
(f) This Guaranty reflects the entire understanding of the transaction
contemplated hereby and shall not be contradicted or qualified by any other
agreement, oral or written, entered into before the date hereof.
(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 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 its respective duly authorized officer, as of the date first above written.
[ACS ACQUISITION CO.], a [Colorado
corporation]
By:
---------------------------
Name:
Title:
Address for Notices:
-----------------------
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Facsimile:_______________
[ADDITIONAL SUBSIDIARIES], a [_________]
By:
---------------------------
Name:
Title:
Address for Notices:
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Facsimile:_______________
