EX-10.40
ANNEX IX
SUBSIDIARY GUARANTEE
SUBSIDIARY GUARANTEE, dated as of September 28, 2006, 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 the Lender signatory
(the "Lender") to that certain Bridge Loan Agreement, dated as of the date
hereof, between Sonoma College, Inc., a California corporation with its
principal business address at 0000 Xxxxx Xxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxx 00000 (the "Company") and the Lender.
W I T N E S S E T H:
Whereas, pursuant to that certain Bridge Loan Agreement, dated as of the
date hereof, by and between the Company and the Lender (the "Bridge Loan
Agreement"), the Company has agreed to sell and issue to the Lender, and the
Lender has agreed to purchase from the Company the Company's 10% Secured
Promissory Note, due March 28, 2007 (the "Note"), subject to the terms and
conditions set forth therein; and
Whereas, each Guarantor will directly benefit from the extension of
credit to the Company represented by the issuance of the Note; and
NOW, THEREFORE, in consideration of the premises and to induce the Lender
to enter into the Bridge Loan Agreement and to carry out the transactions
contemplated thereby, each Guarantor hereby agrees with the Lender as follows:
1. DEFINITIONS. Unless otherwise defined herein, terms defined in the
Bridge Loan Agreement and used herein shall have the meanings given to them in
the Bridge Loan Agreement. The words "hereof," "herein," "hereto" and
"hereunder" and words of similar import when used in this Guarantee shall refer
to this Guarantee as a whole and not to any particular provision of this
Guarantee, and Section and Schedule references are to this Guarantee 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:
"GUARANTEE" means this Subsidiary Guarantee, as the same may be
amended, supplemented or otherwise modified from time to time.
"OBLIGATIONS" means the collective reference to all obligations
and undertakings of the Company of whatever nature, monetary or
otherwise, under the Note, the Bridge Loan Agreement, the Warrant, or any
other future agreement or obligations undertaken by the Company to the
Lender, together with all reasonable attorneys' fees, disbursements and
all other costs and expenses of collection incurred by Lender in
enforcing any of such Obligations and/or this Guarantee.
2. GUARANTEE.
(a) GUARANTEE.
(i) The Guarantors hereby, jointly and severally,
unconditionally and irrevocably, guarantee to the
Lender and its respective successors, indorsees,
transferees and assigns, the prompt and
complete payment and performance by the Company 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 guarantee contained in this Section 2
or affecting the rights and remedies of the Lender
hereunder.
(iv) The guarantee contained in this Section 2 shall
remain in full force and effect until all the
Obligations and the obligations of each Guarantor
under the guarantee contained in this Section 2
shall have been satisfied by payment in full.
(v) No payment made by the Company, any of the
Guarantors, any other guarantor or any other Person
or received or collected by the Lender 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 paid in full.
(vi) Notwithstanding anything to the contrary in this
Agreement, 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
Lender whole on a monetary basis for the Company's
failure to perform such Obligations in accordance
with the Transaction Documents.
(b) RIGHT OF CONTRIBUTION. 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
obligations and liabilities of any Guarantor to the Lender, and each
Guarantor shall remain liable to the Lender for the full amount
guaranteed by such Guarantor 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 Lender, no Guarantor shall be entitled to be subrogated
to any of the rights of the Lender against the Company or any other
Guarantor or any collateral security or guarantee or right of offset held
by the Lender 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 Lender by the Company
on account of the Obligations are paid in full. 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 Lender, segregated from
other funds of such Guarantor, and shall, forthwith upon receipt by such
Guarantor, be turned over to the Lender in the exact form received by
such Guarantor (duly indorsed by such Guarantor to the Lender, if
required), to be applied against the Obligations, whether matured or
unmatured, in such order as the Lender may determine.
(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 Lender may be rescinded by the Lender 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
guarantee 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 Lender, and the Bridge Loan Agreement and the other Transaction
Documents and any other documents executed and delivered in connection
therewith may be amended, modified, supplemented or terminated, in whole
or in part, as the Lender may deem advisable from time to time, and any
collateral security, guarantee or right of offset at any time held by the
Lender for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. The Lender 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 guarantee contained in this Section 2 or
any property subject thereto.
(e) GUARANTEE 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 Lender upon
the guarantee contained in this Section 2 or acceptance of the guarantee
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 guarantee
contained in this Section 2; and all dealings between the Company and any
of the Guarantors, on the one hand, and the Lender, on the other hand,
likewise shall be conclusively presumed to have been had or consummated
in reliance upon the guarantee 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 guarantee contained in this
Section 2 shall be construed as a continuing, absolute and unconditional
guarantee of payment without regard to (a) the validity or enforceability
of the Bridge Loan Agreement or any other Transaction Document, any of
the Obligations or any other collateral security therefor or guarantee or
right of offset with respect thereto at any time or from time to time
held by the Lender, (b) any defense, set-off or counterclaim (other than
a defense of payment or performance or fraud or misconduct by Lender)
which may at any time be available to or be asserted by the Company or
any other Person against the Lender, or (c) 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 guarantee 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 Lender may, but shall be under no obligation to, make a
similar demand on or otherwise pursue such rights and remedies as it may
have against the Company, any other Guarantor or any other Person or
against any collateral security or guarantee for the Obligations or any
right of offset with respect thereto, and any failure by the Lender 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 guarantee 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,
guarantee 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 Lender against any Guarantor. For the purposes hereof,
"demand" shall include the commencement and continuance of any legal
proceedings.
(f) REINSTATEMENT. The guarantee 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 Lender 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 Lender without set-off or counterclaim in
U.S. dollars at the address set forth or referred to in the Bridge Loan
Agreement.
3. REPRESENTATIONS AND WARRANTIES. Each Guarantor hereby makes the
following representations and warranties to Lender as of the date hereof:
(a) ORGANIZATION AND QUALIFICATION. The Guarantor is a
corporation or limited liability company, duly incorporated, validly
existing and in good standing under the laws of the applicable
jurisdiction set forth on Schedule 1, with the requisite corporate power
and authority to own and use its properties and assets and to carry on
its business as currently conducted. The Guarantor has no subsidiaries
other than those identified as such on the Disclosure Annex to the Bridge
Loan Agreement. The Guarantor is duly
qualified to do business and is in good standing as a foreign corporation
in each jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except where the
failure to be so qualified or in good standing, as the case may be, could
not, individually or in the aggregate, (x) adversely affect the legality,
validity or enforceability of any of this Guaranty in any material
respect, (y) have a material adverse effect on the results of operations,
assets, prospects, or financial condition of the Guarantor or (z)
adversely impair in any material respect the Guarantor's ability to
perform fully on a timely basis its obligations under this Guaranty (a
"MATERIAL ADVERSE EFFECT").
(b) AUTHORIZATION; ENFORCEMENT. The Guarantor has the requisite
corporate 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
the Guarantor 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) conflict
with or violate any provision of its Certificate of Incorporation or
By-laws 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
the Guarantor 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) BRIDGE LOAN AGREEMENT. The representations and warranties
of the Company set forth in the Bridge Loan Agreement as they relate to
such Guarantor, each of which is hereby incorporated herein by reference,
are true and correct as of each time such representations are deemed to
be made pursuant to such Bridge Loan Agreement, and the Lender shall be
entitled to rely on each of them as if they were fully set forth herein,
provided, that each reference in each such representation and warranty to
the
Company's knowledge shall, for the purposes of this Section 3, be deemed
to be a reference to such Guarantor's knowledge.
(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. Such foreign counsel have 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 Subsidiary Guarantee and the
Transaction Documents prior to rendering their advice.
4. COVENANTS. Each Guarantor covenants and agrees with the Lender
that, from and after the date of this Guarantee until the Obligations shall have
been paid in full, 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 is caused by
the failure to take such action or to refrain from taking such action by such
Guarantor.
5. MISCELLANEOUS.
(a) AMENDMENTS IN WRITING. None of the terms or
provisions of this Guarantee may be waived, amended, supplemented
or otherwise modified except in writing by the majority in
interest (based on the then-outstanding principal amount of the
Note at the time of such determination) of the Lender.
(b) NOTICES. All notices, requests and demands to or
upon the Lender or any Guarantor hereunder shall be affected in
the manner provided for in the Bridge Loan 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 herein.
(c) NO WAIVER BY COURSE OF CONDUCT; CUMULATIVE REMEDIES.
The Lender 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 or Event of Default. No failure to exercise, nor any
delay in exercising, on the part of the Lender, 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 Lender of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the
Lender 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 Lender for, all its costs and expenses
incurred in collecting against such Guarantor
under the guarantee contained in Section 2 or
otherwise enforcing or preserving any rights
under this Guarantee and the other
Transaction Documents to which such Guarantor
is a party, including, without limitation,
the reasonable fees and disbursements of
counsel to the Lender.
(ii) Each Guarantor agrees to pay, and to save the
Lender 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
Guarantee.
(iii) Each Guarantor agrees to pay, and to save the
Lender 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 Guarantee to the
extent the Company would be required to do so
pursuant to the Bridge Loan Agreement.
(iv) The agreements in this Section shall survive
repayment of the Obligations and all other
amounts payable under the Bridge Loan
Agreement and the other Transaction
Documents.
(e) SUCCESSOR AND ASSIGNS. This Guarantee shall be
binding upon the successors and assigns of each Guarantor and
shall inure to the benefit of the Lender and their respective
successors and assigns; provided that no Guarantor may assign,
transfer or delegate any of its rights or obligations under this
Guarantee without the prior written consent of the Lender.
(f) SET-OFF. Each Guarantor hereby irrevocably
authorizes the Lender at any time and from time to time while an
Event of 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 Lender to
or for the credit or the account of such Guarantor, or any part
thereof in such amounts as the Lender may elect, against and on
account of the obligations and liabilities of such Guarantor to
the Lender hereunder and claims of every nature and description of
the Lender against such Guarantor, in any currency, whether
arising hereunder, under the Bridge Loan Agreement, any other
Transaction Document or otherwise, as the Lender may elect,
whether or not the Lender have made any demand for payment and
although such obligations, liabilities and claims may be
contingent or unmatured. The Lender shall notify such Guarantor
promptly of any such set-off and
the application made by the Lender 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 Lender
under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the
Lender may have.
(g) COUNTERPARTS. This Guarantee may be executed by one
or more of the parties to this Guarantee 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 Guarantee 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
Guarantee 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 Guarantee and the other
Transaction Documents represent the agreement of the Guarantors
and the Lender with respect to the subject matter hereof and
thereof, and there are no promises, undertakings, representations
or warranties by the Lender relative to subject matter hereof and
thereof not expressly set forth or referred to herein or in the
other Transaction Documents.
(k) GOVERNING LAW. THIS GUARANTEE SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK WITHOUT REGARD TO ANY PRINCIPLES OF CONFLICTS OF
LAWS.
(l) SUBMISSION TO JURISDICTIONAL; WAIVER. Each Guarantor
hereby irrevocably and unconditionally:
(i) submits for itself and its property in any
legal action or proceeding relating to this
Guarantee and the other Transaction Documents
to which it is a party, or for recognition
and enforcement of any judgment in respect
thereof, to the non-exclusive general
jurisdiction of the Courts of the State of
New York, located in New York County, New
York, the courts of the United States of
America for the Southern District of New
York, and appellate courts from any thereof;
(ii) consents that any such action or proceeding
may be brought in such courts and waives any
objection that it may now or hereafter have
to the venue of any such action or proceeding
in any such court or that such action or
proceeding was brought in an inconvenient
court and agrees not to plead or claim the
same;
(iii) agrees that service of process in any such
action or proceeding may be effected by
mailing a copy thereof by registered or
certified mail (or any substantially similar
form of mail), postage
prepaid, to such Guarantor at its address
referred to in the Bridge Loan Agreement or
at such other address of which the Lender
shall have been notified pursuant thereto;
(iv) agrees that nothing herein shall affect the
right to effect service of process in any
other manner permitted by law or shall limit
the right to xxx in any other jurisdiction;
and
(v) waives, to the maximum extent not prohibited
by law, any right it may have to claim or
recover in any legal action or proceeding
referred to in this Section any special,
exemplary, punitive or consequential damages.
(m) ACKNOWLEDGEMENTS. Each Guarantor hereby acknowledges
that:
(i) it has been advised by counsel in the
negotiation, execution and delivery of this
Guarantee and the other Transaction Documents
to which it is a party;
(ii) the Lender have no fiduciary relationship
with or duty to any Guarantor arising out of
or in connection with this Guarantee or any
of the other Transaction Documents, and the
relationship between the Guarantors, on the
one hand, and the Lender, 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 Lender.
(n) ADDITIONAL GUARANTORS. The Company shall cause each
of its subsidiaries formed or acquired on or subsequent to the
date hereof to become a Guarantor for all purposes of this
Guarantee by executing and delivering an Assumption Agreement in
the form of Annex 1 hereto.
(o) RELEASE OF GUARANTORS. Subject to Section 2(f), each
Guarantor will be released from all liability hereunder
concurrently with the repayment in full of all amounts owed under
the Bridge Loan Agreement, the Note and the other Transaction
Documents.
(p) SENIORITY. The Obligations of each of the Guarantors
hereunder rank senior in priority to any other debt of such
Guarantor.
(q) WAIVER OF JURY TRIAL. EACH GUARANTOR AND, BY
ACCEPTANCE OF THE BENEFITS HEREOF, THE LENDER, HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS GUARANTEE AND FOR ANY COUNTERCLAIM
THEREIN.
IN WITNESS WHEREOF, each of the undersigned has caused this Guarantee to
be duly executed and delivered as of the date first above written.
Subsidiary: Subsidiary:
Per: Per:
----------------------------------- -----------------------------------
Name: Name:
Title: Title:
SCHEDULE 1
GUARANTORS
The following are the names, notice addresses and jurisdiction of
organization of each Guarantor.
JURISDICTION OF COMPANY OWNED
NAME ADDRESS INCORPORATION BY PERCENTAGE
---- ------- --------------- -------------
Annex 1 to
SUBSIDIARY GUARANTEE
ASSUMPTION AGREEMENT, dated as of ____ __, ______ made by corporation (the
"Additional Guarantor"), in favor of the Lender pursuant to the Bridge Loan
Agreement referred to below. All capitalized terms not defined herein shall have
the meaning ascribed to them in such Bridge Loan Agreement.
W I T N E S S E T H :
WHEREAS, Sonoma College, Inc., a California corporation (the "Company")
and the Lender have entered into a Bridge Loan Agreement, dated as of September
28, 2006 (as amended, supplemented or otherwise modified from time to time, the
"Bridge Loan Agreement");
WHEREAS, in connection with the Bridge Loan Agreement, the Company and
its Subsidiaries (other than the Additional Guarantor) have entered into the
Subsidiary Guarantee, dated as of September 28, 2006 (as amended, supplemented
or otherwise modified from time to time, the "Guarantee") in favor of the
Lender;
WHEREAS, the Bridge Loan Agreement requires the Additional Guarantor to
become a party to the Guarantee; and
WHEREAS, the Additional Guarantor has agreed to execute and deliver this
Assumption Agreement in order to become a party to the Guarantee;
NOW, THEREFORE, IT IS AGREED:
1. GUARANTEE. By executing and delivering this Assumption Agreement,
the Additional Guarantor, as provided in Section 5(n) of the Guarantee, hereby
becomes a party to the Guarantee as a Guarantor thereunder with the same force
and effect as if originally named therein as a Guarantor and, without limiting
the generality of the foregoing, hereby expressly assumes all obligations and
liabilities of a Guarantor thereunder. The information set forth in Annex 1-A
hereto is hereby added to the information set forth in Schedule 1 to the
Guarantee. The Additional Guarantor hereby represents and warrants that each of
the representations and warranties contained in Section 3 of the Guarantee is
true and correct on and as the date hereof as to such Additional Guarantor
(after giving effect to this Assumption Agreement) as if made on and as of such
date.
2. GOVERNING LAW. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Assumption Agreement
to be duly executed and delivered as of the date first above written.
[ADDITIONALGUARANTOR]
By:
------------------------------------
Name:
Title: