GUARANTEE
Exhibit
10.26
THIS GUARANTEE (the “Guarantee”) is
entered into as of ___________________, 2009 by XXX XXXXXXXXX, an individual
(the “Guarantor”), in favor of XXXX XXXXXX FINANCIAL, INC., a New York
corporation (“JTF”), in its capacity as representative of the Investors, as
hereinafter defined.
RECITALS
A. Guarantor
is the Chief Executive Officer and a principal stockholder of Amber Ready, Inc.,
a Nevada corporation (the “Company”).
B. The
Company is desirous of concluding a private offering of its secured three year
convertible promissory notes (the “Convertible Notes”) to a number of
“accredited investors” (the “Investors”), as such term is defined in Rule 501 of
Regulation D under the Securities Act of 1933, as amended.
C. To induce
the Investors to purchase the Convertible Notes, the Guarantor has agreed to
grant a security interest in the Collateral, as hereinafter defined, pursuant to
a Pledge and Security Agreement of even date herewith (the “Pledge Agreement”)
between the Guarantor and JTF, as representative of the Investors.
D. The
Guarantor wishes to grant JTF assurance in order to guarantee the Company’s
attainment of a certain Target, as defined in the Pledge Agreement.
Accordingly, the Guarantor
individually hereby agrees as follows:
1. Guarantee. The
Guarantor unconditionally and irrevocably guarantees to JTF, as representative
of the Investors, the full and punctual attainment of the Target (the
“Obligations”).
2. Limited Recourse.
Notwithstanding anything contained in this Guarantee to the contrary, the only
recourse that JTF shall have under this Guarantee shall be against the
13,814,000 shares (the “Collateral”) of common stock, $0.0001 par value per
share, of the Company owned by the Guarantor and pledged by the Guarantor as
collateral pursuant to the Pledge Agreement. JTF shall have no
recourse against any of the other property and assets of the Guarantor to
satisfy the obligations of the Guarantor under this Guarantee and under the
Pledge Agreement.
3. Guarantee Continuing,
Absolute Unlimited. The liability of the Guarantor hereunder
shall be absolute and unconditional and shall not be affected by:
a. any lack
of validity or enforceability of any agreements between the Company and the
Investors and/or the Company and JTF;
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b. any
change in the time, manner or place of payment of or in any other term of such
agreements or the failure on the part of the Company to carry out any of its
obligations under such agreements;
c. any
impossibility, impracticability, frustration of purpose, illegality, force majeure or act of
government;
d. the
bankruptcy, winding-up, liquidation, dissolution or insolvency of the Company,
JTF or the Investors or any party to any agreement to which JTF is, and/or the
Investors are, party;
e. any lack
or limitation of power, incapacity or disability on the part of the Company or
of the directors, partners or agents thereof or any other irregularity, defect
or informality on the part of the Company in its obligations to the Investors
and/or JTF; or
f. any other
law, regulation or other circumstance which might otherwise constitute a defence
available to, or a discharge of, the Company in respect of any or all of the
Obligations.
4. No Release or
Discharge. The liability of the Guarantor hereunder shall not be
released, discharged, limited or in any way affected by anything done, suffered
or permitted by the Investors and/or JTF in connection with any duties or
liabilities of the Guarantor to the Investors and/or JTF or any security
therefor including any loss of or in respect of any security received by JTF
from the Guarantor or others. JTF, on behalf of the Investors,
without releasing, discharging, limiting or otherwise affecting in whole or in
part the Guarantor’s liability hereunder, may:
x. xxxxx
time, renewals, extensions, indulgences, releases and discharges to the
Guarantor;
b. take or
abstain from taking securities or collateral from the Guarantor;
c. accept
compromises from the Guarantor; or
d. otherwise
deal with the Guarantor and all other persons and security interests as JTF may
see fit.
5. Termination. This
Guarantee shall automatically terminate without any action by the Guarantor or
JTF if the Minimum Offering (as defined in the Placement Agent Agreement dated
as of ____________, 2009 by and between the Company and JTF) is not attained by
April 30, 2009.
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6. Return of
Collateral. Upon the attainment of the Target or if the
Minimum Amount is not attained by April 30, 2009, the Collateral shall be
returned to Guarantor and JTF’s security interest and rights in and to the
Collateral shall terminate.
7. No Exhaustion of
Remedies. JTF shall not be bound or obligated to exhaust its recourse
against the Company or other persons or any securities or collateral it may hold
or take any other action before being entitled to demand payment from the
Guarantor hereunder.
8. No Set-off. The
Guarantor shall not claim any set-off or counterclaim against the Company in
respect of any liability of the Company to the Guarantor.
9. Continuing Guarantee.
This Guarantee shall be a continuing guarantee and shall be binding as a
continuing obligation of the Guarantor.
10. Demand for
Payment. JTF shall be entitled to make demand upon the
Guarantor at any time upon an Event of Default, as defined in the Pledge
Agreement, and upon such Event of Default JTF may declare that all Obligations
have not been attained and may forthwith collect from the Guarantor the
Collateral.
11. Subrogation. If (i)
the Guarantor delivers the Collateral to JTF under this Guarantee, JTF will, at
the Guarantor’s request, execute and deliver to the Guarantor appropriate
documents, without recourse and without representation and warranty, necessary
to evidence the transfer by subrogation to the Guarantor of an interest in the
Obligations and any security held therefor resulting from such performance by
the Guarantor.
12. Waiver of Notice of
Acceptance. The Guarantor hereby waives notice of acceptance of this
instrument.
13. Entire Agreement.
This Guarantee, together with the Escrow Agreement, as defined in the Pledge
Agreement, and the Pledge Agreement, constitute the entire agreement among JTF,
as agent of the Investors, the Company and the Guarantor with respect to the
subject matter hereof and cancels and supersedes any prior understandings and
agreements between such parties with respect thereto. There are no
representations, warranties, terms, conditions, undertakings or collateral
agreements, expressed, implied or statutory, among such parties other than as
expressly set forth in this Guarantee, the Escrow Agreement and the Pledge
Agreement.
14. No Waiver, Remedies.
No failure on the part of JTF to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any right hereunder preclude the other or further exercise thereof
or the exercise of any other right. The remedies herein provided are cumulative
and not exclusive of any remedies provided by law.
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15. Severability. If any
provision of this Guarantee is determined to be invalid or unenforceable in
whole or in part, such invalidity or unenforceability shall attach only to such
provision or part thereof and the remaining part of such provision and all other
provisions hereof shall continue in full force and effect.
16. Governing
Law. THIS
GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF
LAW.
17. Notice. Any
demand, notice or other communication (a “Communication”) to be given in
connection with this Guarantee shall be given in the manner and to the
respective addresses set forth in the Pledge Agreement.
18. Assignment. The
rights of JTF under this Guarantee may be assigned by JTF without the prior
consent of the Company or the Guarantor. The Guarantor may not assign its
obligations under this Guarantee.
19. Interpretation. Guarantor
and JTF have participated jointly in the negotiating and drafting of this
Guarantee. If an ambiguity or a question of intent or interpretation
arises, this Guarantee shall be construed as if drafted jointly by Guarantor and
JTF, and no presumption or burden of proof shall arise favoring or disfavoring
Guarantor or JTF, as the case may be, by virtue of the authorship of any
provisions of this Guarantee.
20. Miscellaneous.
a. Any term
of this Guarantee may be amended, waived, discharged or terminated only by an
instrument in writing signed by the Guarantor and JTF.
b. The
headings in this Guarantee are for purposes of reference only and shall not
limit or define the meaning hereof.
c. If it
ever becomes necessary to employ counsel to collect this obligation, the
Guarantor shall pay all expenses and costs, including reasonable attorney's fees
and out-of-pocket expenses of said attorney for the services of such counsel,
whether or not suit be brought and including those incurred in post-judgment
collection efforts and in any bankruptcy proceeding (including any action for
relief from the automatic stay of any bankruptcy proceeding).
d. This
Guarantee may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all of which together shall constitute one and the
same instrument.
[signature page
follows]
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IN WITNESS WHEREOF, the undersigned has
caused this Guarantee to be executed and delivered as of the day and year first
above written.
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| XXX XXXXXXXXX | |||
| WITNESS: | |||
| [insert] | |||
| State of New Jersey | ) | ||
| )s.s: | |||
| County of [insert] | ) |
On the _____ day of
___________________, 2009, before me, the undersigned, a Notary Public in and
for said State, personally appeared XXX XXXXXXXXX, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose
name is subscribed to the within instrument and acknowledged to me that he
executed the same in his capacity, and that by his signature on the instrument,
the individual executed the instrument.
__________________________
Notary
Public
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