EX-10.35
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 COMPANY
OF OWNED BY
NAME ADDRESS INCORPORATION 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:
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Name:
Title:
