SUBSIDIARY GUARANTY
Exhibit 10.9 | ||
SUBSIDIARY GUARANTY | ||
New York, New York | September 28, 2007 | |
FOR VALUE RECEIVED, and in consideration of note purchases from, loans made or to | ||
be made or credit otherwise extended or to be extended by the Purchasers (as defined below) to | ||
or for the account of eLEC Communications Corp., a New York corporation (the “Company”), | ||
from time to time and at any time and for other good and valuable consideration and to induce | ||
the Purchasers, in their discretion, to purchase such notes, make such loans or extensions of | ||
credit and to make or grant such renewals, extensions, releases of collateral or relinquishments of | ||
legal rights as the Creditor Parties (as defined below) may deem advisable, each of the | ||
undersigned (and each of them if more than one, the liability under this Guaranty being joint and | ||
several) (jointly and severally referred to as “Guarantors” or “the undersigned”) unconditionally | ||
guaranties to the Creditor Parties, their successors, endorsees and assigns the prompt payment | ||
when due (whether by acceleration or otherwise) of all present and future obligations and | ||
liabilities of any and all kinds of the Company to the Creditor Parties and of all instruments of | ||
any nature evidencing or relating to any such obligations and liabilities upon which the Company | ||
or one or more parties and the Company is or may become liable to the Creditor Parties, whether | ||
incurred by the Company as maker, endorser, drawer, acceptor, guarantors, accommodation | ||
party or otherwise, and whether due or to become due, secured or unsecured, absolute or | ||
contingent, joint or several, and however or whenever acquired by the Creditor Parties, whether | ||
arising under, out of, or in connection with (i) that certain Securities Purchase Agreement dated | ||
as of the date hereof (as amended, restated, modified and/or supplemented from time to time, the | ||
“Securities Purchase Agreement”) by and between the Company, the purchasers named therein | ||
or which thereafter become a party thereto (each a “Purchaser” and collectively, the | ||
“Purchasers”) and LV Administrative Services, Inc., as administrative and collateral agent for | ||
the Purchasers (in such capacity, the “Agent”) (the Purchasers and the Agent, each a “Creditor | ||
Party” and collectively, the “Creditor Parties”) and (ii) each Related Agreement referred to in the | ||
Securities Purchase Agreement (the Securities Purchase Agreement and each Related | ||
Agreement, as each may be amended, modified, restated or supplemented from time to time, are | ||
collectively referred to herein as the “Documents”), or any documents, instruments or | ||
agreements relating to or executed in connection with the Documents or any documents, | ||
instruments or agreements referred to therein or otherwise, or any other indebtedness, obligations | ||
or liabilities of the Company to the Creditor Parties, whether now existing or hereafter arising, | ||
direct or indirect, liquidated or unliquidated, absolute or contingent, due or not due and whether | ||
under, pursuant to or evidenced by a note, agreement, guaranty, instrument or otherwise (all of | ||
which are herein collectively referred to as the “Obligations”), and irrespective of the | ||
genuineness, validity, regularity or enforceability of such Obligations, or of any instrument | ||
evidencing any of the Obligations or of any collateral therefor or of the existence or extent of | ||
such collateral, and irrespective of the allowability, allowance or disallowance of any or all of | ||
the Obligations in any case commenced by or against the Company under Title 11, United States | ||
Code, including, without limitation, obligations or indebtedness of the Company for post-petition | ||
interest, fees, costs and charges that would have accrued or been added to the Obligations but for | ||
the commencement of such case. Terms not otherwise defined herein shall have the meaning |
assigned such terms in the Securities Purchase Agreement. In furtherance of the foregoing, the |
undersigned xxxxxx agrees as follows: |
1. No Impairment. The Creditor Parties may at any time and from time to time, |
either before or after the maturity thereof, without notice to or further consent of the |
undersigned, extend the time of payment of, exchange or surrender any collateral for, renew or |
extend any of the Obligations or increase or decrease the interest rate thereon, or any other |
agreement with the Company or with any other party to or person liable on any of the |
Obligations, or interested therein, for the extension, renewal, payment, compromise, discharge or |
release thereof, in whole or in part, or for any modification of the terms thereof or of any |
agreement between any Creditor Party and the Company or any such other party or person, or |
make any election of rights the Creditor Parties may deem desirable under the United States |
Bankruptcy Code, as amended, or any other federal or state bankruptcy, reorganization, |
moratorium or insolvency law relating to or affecting the enforcement of creditors’ rights |
generally (any of the foregoing, an “Insolvency Law”) without in any way impairing or affecting |
this Guaranty. This instrument shall be effective regardless of the subsequent incorporation, |
merger or consolidation of the Company, or any change in the composition, nature, personnel or |
location of the Company and shall extend to any successor entity to the Company, including a |
debtor in possession or the like under any Insolvency Law. |
2. Guaranty Absolute. Subject to Section 5(c) hereof, each of the undersigned |
jointly and severally guarantees that the Obligations will be paid strictly in accordance with the |
terms of the Documents and/or any other document, instrument or agreement creating or |
evidencing the Obligations, 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 Company with respect thereto. |
Guarantors hereby knowingly accept the full range of risk encompassed within a contract of |
“continuing guaranty” which risk includes the possibility that the Company will contract |
additional indebtedness, obligations and liabilities for which Guarantors may be liable hereunder |
after the Company’s financial condition or ability to pay its lawful debts when they fall due has |
deteriorated, whether or not the Company has properly authorized incurring such additional |
indebtedness, obligations and liabilities. The undersigned acknowledge that (i) no oral |
representations, including any representations to extend credit or provide other financial |
accommodations to the Company, have been made by any Creditor Party to induce the |
undersigned to enter into this Guaranty and (ii) any extension of credit to the Company shall be |
governed solely by the provisions of the Documents. The liability of each of the undersigned |
under this Guaranty shall be absolute and unconditional, in accordance with its terms, and shall |
remain in full force and effect without regard to, and shall not be released, suspended, |
discharged, terminated or otherwise affected by, any circumstance or occurrence whatsoever, |
including, without limitation: (a) any waiver, indulgence, renewal, extension, amendment or |
modification of or addition, consent or supplement to or deletion from or any other action or |
inaction under or in respect of the Documents or any other instruments or agreements relating to |
the Obligations or any assignment or transfer of any thereof, (b) any lack of validity or |
enforceability of any Document or other documents, instruments or agreements relating to the |
Obligations or any assignment or transfer of any thereof, (c) any furnishing of any additional |
security to the Creditor Parties or their assignees or any acceptance thereof or any release of any |
security by the Creditor Parties or their assignees, (d) any limitation on any party’s liability or |
obligation under the Documents or any other documents, instruments or agreements relating to |
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the Obligations or any assignment or transfer of any thereof or any invalidity or unenforceability, |
in whole or in part, of any such document, instrument or agreement or any term thereof, (e) any |
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or |
other like proceeding relating to the Company, or any action taken with respect to this Guaranty |
by any trustee or receiver, or by any court, in any such proceeding, whether or not the |
undersigned shall have notice or knowledge of any of the foregoing, (f) any exchange, release or |
nonperfection of any collateral, or any release, or amendment or waiver of or consent to |
departure from any guaranty or security, for all or any of the Obligations or (g) any other |
circumstance which might otherwise constitute a defense available to, or a discharge of, the |
undersigned. Any amounts due from the undersigned to the Creditor Parties shall bear interest |
until such amounts are paid in full at the highest rate then applicable to the Obligations. |
Obligations include post-petition interest whether or not allowed or allowable. |
3. Waivers. |
(a) This Guaranty is a guaranty of payment and not of collection. The |
Creditor Parties shall be under no obligation to institute suit, exercise rights or remedies |
or take any other action against the Company or any other person or entity liable with |
respect to any of the Obligations or resort to any collateral security held by it to secure |
any of the Obligations as a condition precedent to the undersigned being obligated to |
perform as agreed herein and each of the Guarantors hereby waives any and all rights |
which it may have by statute or otherwise which would require the Creditor Parties to do |
any of the foregoing. Each of the Guarantors further consents and agrees that the |
Creditor Parties shall be under no obligation to marshal any assets in favor of Guarantors, |
or against or in payment of any or all of the Obligations. The undersigned hereby waives |
all suretyship defenses and any rights to interpose any defense, counterclaim or offset of |
any nature and description which the undersigned may have or which may exist between |
and among any Creditor Party, the Company and/or the undersigned with respect to the |
undersigned’s obligations under this Guaranty, or which the Company may assert on the |
underlying debt, including but not limited to failure of consideration, breach of warranty, |
fraud, payment (other than cash payment in full of the Obligations), statute of frauds, |
bankruptcy, infancy, statute of limitations, accord and satisfaction, and usury. |
(b) Each of the undersigned further waives (i) notice of the acceptance of this |
Guaranty, of the making of any such loans or extensions of credit, and of all notices and |
demands of any kind to which the undersigned may be entitled, including, without |
limitation, notice of adverse change in the Company’s financial condition or of any other |
fact which might materially increase the risk of the undersigned and (ii) presentment to or |
demand of payment from anyone whomsoever liable upon any of the Obligations, protest, |
notices of presentment, non-payment or protest and notice of any sale of collateral |
security or any default of any sort. |
(c) Notwithstanding any payment or payments made by the undersigned |
hereunder, or any setoff or application of funds of the undersigned by any Creditor Party, |
the undersigned shall not be entitled to be subrogated to any of the rights of such Creditor |
Party against the Company or against any collateral or guarantee or right of offset held by |
such Creditor Party for the payment of the Obligations, nor shall the undersigned seek or |
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be entitled to seek any contribution or reimbursement from the Company in respect of |
payments made by the undersigned hereunder, until all amounts owing to the Creditor |
Parties by the Company on account of the Obligations are indefeasibly paid in full and |
the Purchasers’ obligation to extend credit pursuant to the Documents have been |
terminated. If, notwithstanding the foregoing, any amount shall be paid to the |
undersigned on account of such subrogation rights at any time when all of the Obligations |
shall not have been paid in full and the Purchasers’ obligation to extend credit pursuant to |
the Documents shall not have been terminated, such amount shall be held by the |
undersigned in trust for the Creditor Parties, segregated from other funds of the |
undersigned, and shall forthwith upon, and in any event within two (2) business days of, |
receipt by the undersigned, be turned over to the Agent in the exact form received by the |
undersigned (duly endorsed by the undersigned to the Agent, if required), to be applied |
against the Obligations, whether matured or unmatured, in such order as the Agent may |
determine, subject to the provisions of the Documents. Any and all present and future |
debts, obligations and liabilities of the Company to any of the undersigned are hereby |
waived and postponed in favor of, and subordinated to the full payment and performance |
of, all present and future debts and Obligations of the Company to the Creditor Parties. |
4. Security. All sums at any time to the credit of the undersigned and any property |
of the undersigned in any Creditor Party’s possession or in the possession of any bank, financial |
institution or other entity that directly or indirectly, through one or more intermediaries, controls |
or is controlled by, or is under common control with, such Creditor Party (each such entity, an |
“Affiliate”) shall be deemed held by such Creditor Party or such Affiliate, as the case may be, as |
security for any and all of the undersigned’s obligations and liabilities to the Creditor Parties and |
to any Affiliate of the Creditor Parties, no matter how or when arising and whether under this or |
any other instrument, agreement or otherwise. |
5. Representations and Warranties. Each of the undersigned respectively, hereby |
jointly and severally represents and warrants (all of which representations and warranties shall |
survive until all Obligations are indefeasibly satisfied in full and the Documents have been |
irrevocably terminated), that: |
(a) Corporate Status. It is a corporation, partnership or limited liability |
company, as the case may be, duly organized, validly existing and in good standing under |
the laws of its jurisdiction of organization indicated on the signature page hereof and has |
full power, authority and legal right to own its property and assets and to transact the |
business in which it is engaged. |
(b) Authority and Execution. It has full power, authority and legal right to |
execute and deliver, and to perform its obligations under, this Guaranty and has taken all |
necessary corporate, partnership or limited liability company, as the case may be, action |
to authorize the execution, delivery and performance of this Guaranty. |
(c) Legal, Xxxxx and Binding Character. This Guaranty constitutes its legal, |
valid and binding obligation enforceable in accordance with its terms, except as |
enforceability may be limited by applicable bankruptcy, insolvency, reorganization, |
moratorium or other laws of general application affecting the enforcement of creditor’s |
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rights and general principles of equity that restrict the availability of equitable or legal |
remedies. |
(d) Violations. The execution, delivery and performance of this Guaranty will |
not violate any requirement of law applicable to it or any contract, agreement or |
instrument to which it is a party or by which it or any of its property is bound or result in |
the creation or imposition of any mortgage, lien or other encumbrance other than in favor |
of the Agent, for the ratable benefit of the Creditor Parties, on any of its property or |
assets pursuant to the provisions of any of the foregoing, which, in any of the foregoing |
cases, could reasonably be expected to have, either individually or in the aggregate, a |
Material Adverse Effect. |
(e) Consents or Approvals. No consent of any other person or entity |
(including, without limitation, any creditor of the undersigned) and no consent, license, |
permit, approval or authorization of, exemption by, notice or report to, or registration, |
filing or declaration with, any governmental authority is required in connection with the |
execution, delivery, performance, validity or enforceability of this Guaranty by it, except |
to the extent that the failure to obtain any of the foregoing could not reasonably be |
expected to have, either individually or in the aggregate, a Material Adverse Effect. |
(f) Litigation. No litigation, arbitration, investigation or administrative |
proceeding of or before any court, arbitrator or governmental authority, bureau or agency |
is currently pending or, to the best of its knowledge, threatened (i) with respect to this |
Guaranty or any of the transactions contemplated by this Guaranty or (ii) against or |
affecting it, or any of its property or assets, which, in each of the foregoing cases, if |
adversely determined, could reasonably be expected to have a Material Adverse Effect. |
(g) Financial Benefit. It has derived or expects to derive a financial or other |
advantage from each and every loan, advance or extension of credit made under the |
Documents or other Obligation incurred by the Company to the Creditor Parties. |
6. Acceleration. |
(a) If any breach of any covenant or condition or other event of default shall |
occur and be continuing under any agreement made by the Company or any of the |
undersigned to any Creditor Party, or either the Company or any of the undersigned |
should at any time become insolvent, or make a general assignment, or if a proceeding in |
or under any Insolvency Law shall be filed or commenced by, or in respect of, any of the |
undersigned, or if a notice of any lien, levy, or assessment is filed of record with respect |
to any assets of any of the undersigned by the United States of America or any |
department, agency, or instrumentality thereof, or if any taxes or debts owing at any time |
or times hereafter to any one of them becomes a lien or encumbrance upon any assets of |
the undersigned in any Creditor Party’s possession, or otherwise, any and all Obligations |
shall for purposes hereof, at the Creditor Parties’ option, be deemed due and payable |
without notice notwithstanding that any such Obligation is not then due and payable by |
the Company. |
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(b) Each of the undersigned will promptly notify the Agent of any default by |
such undersigned in its respective performance or observance of any term or condition of |
any agreement to which the undersigned is a party if the effect of such default is to cause, |
or permit the holder of any obligation under such agreement to cause, such obligation to |
become due prior to its stated maturity and, if such an event occurs, the Creditor Parties |
shall have the right to accelerate such undersigned’s obligations hereunder. |
7. Payments from Guarantors. The Creditor Parties, in their sole and absolute |
discretion, with or without notice to the undersigned, may apply on account of the Obligations |
any payment from the undersigned or any other guarantors, or amounts realized from any |
security for the Obligations, or may deposit any and all such amounts realized in a non-interest |
bearing cash collateral deposit account to be maintained as security for the Obligations. |
8. Costs. The undersigned shall pay on demand, all costs, fees and expenses |
(including expenses for legal services of every kind) relating or incidental to the enforcement or |
protection of the rights of the Creditor Parties hereunder or under any of the Obligations. |
9. No Termination. This is a continuing irrevocable guaranty and shall remain in |
full force and effect and be binding upon the undersigned, and each of the undersigned’s |
successors and assigns, until all of the Obligations have been paid in full and the Purchasers’ |
obligation to extend credit pursuant to the Documents has been irrevocably terminated. If any of |
the present or future Obligations are guarantied by persons, partnerships, corporations or other |
entities in addition to the undersigned, the death, release or discharge in whole or in part or the |
bankruptcy, merger, consolidation, incorporation, liquidation or dissolution of one or more of |
them shall not discharge or affect the liabilities of any undersigned under this Guaranty. |
10. Recapture. Anything in this Guaranty to the contrary notwithstanding, if any |
Creditor Party receives any payment or payments on account of the liabilities guaranteed hereby, |
which payment or payments or any part thereof are subsequently invalidated, declared to be |
fraudulent or preferential, set aside and/or required to be repaid to a trustee, receiver, or any |
other party under any Insolvency Law, common law or equitable doctrine, then to the extent of |
any sum not finally retained by the Creditor Parties, the undersigned’s obligations to the Creditor |
Parties shall be reinstated and this Guaranty shall remain in full force and effect (or be reinstated) |
until payment shall have been made to the Creditor Parties, which payment shall be due on |
demand. |
11. Books and Records. The books and records of the Agent showing the account |
between the Creditor Parties and the Company shall be admissible in evidence in any action or |
proceeding, shall be binding upon the undersigned for the purpose of establishing the items |
therein set forth and shall constitute prima facie proof thereof. |
12. No Waiver. No failure on the part of any Creditor Party to exercise, and no delay |
in exercising, any right, remedy or power hereunder shall operate as a waiver thereof, nor shall |
any single or partial exercise by any Creditor Party of any right, remedy or power hereunder |
preclude any other or future exercise of any other legal right, remedy or power. Each and every |
right, remedy and power hereby granted to the Creditor Parties or allowed it by law or other |
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agreement shall be cumulative and not exclusive of any other, and may be exercised by the |
Creditor Parties at any time and from time to time. |
13. Waiver of Jury Trial. EACH OF THE UNDERSIGNED DOES HEREBY |
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL |
BY JURY IN ANY ACTION OR PROCEEDING BASED ON OR WITH RESPECT TO THIS |
GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR |
RELATING OR INCIDENTAL HERETO. THE UNDERSIGNED DOES HEREBY CERTIFY |
THAT NO REPRESENTATIVE OR AGENT OF XXXXXX HAS REPRESENTED, |
EXPRESSLY OR OTHERWISE, THAT XXXXXX WOULD NOT, IN THE EVENT OF |
LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL |
PROVISION. |
14. Governing Law; Jurisdiction; Amendments. THIS INSTRUMENT CANNOT BE |
CHANGED OR TERMINATED ORALLY, AND SHALL BE GOVERNED, CONSTRUED |
AND INTERPRETED AS TO VALIDITY, ENFORCEMENT AND IN ALL OTHER |
RESPECTS IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK |
WITHOUT HAVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS. EACH OF |
THE UNDERSIGNED EXPRESSLY CONSENTS TO THE JURISDICTION AND VENUE OF |
THE SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK, |
AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF |
NEW YORK FOR ALL PURPOSES IN CONNECTION HEREWITH. ANY JUDICIAL |
PROCEEDING BY THE UNDERSIGNED AGAINST LAURUS INVOLVING, DIRECTLY |
OR INDIRECTLY ANY MATTER OR CLAIM IN ANY WAY ARISING OUT OF, |
RELATED TO OR CONNECTED HEREWITH SHALL BE BROUGHT ONLY IN THE |
SUPREME COURT OF THE STATE OF NEW YORK, COUNTY OF NEW YORK OR THE |
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. |
THE UNDERSIGNED FURTHER CONSENTS THAT ANY SUMMONS, SUBPOENA OR |
OTHER PROCESS OR PAPERS (INCLUDING, WITHOUT LIMITATION, ANY NOTICE |
OR MOTION OR OTHER APPLICATION TO EITHER OF THE AFOREMENTIONED |
COURTS OR A JUDGE THEREOF) OR ANY NOTICE IN CONNECTION WITH ANY |
PROCEEDINGS HEREUNDER, MAY BE SERVED INSIDE OR OUTSIDE OF THE STATE |
OF NEW YORK OR THE SOUTHERN DISTRICT OF NEW YORK BY REGISTERED OR |
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY PERSONAL SERVICE |
PROVIDED A REASONABLE TIME FOR APPEARANCE IS PERMITTED, OR IN SUCH |
OTHER MANNER AS MAY BE PERMISSIBLE UNDER THE RULES OF SAID COURTS. |
EACH OF THE UNDERSIGNED WAIVES ANY OBJECTION TO JURISDICTION AND |
VENUE OF ANY ACTION INSTITUTED HEREON AND SHALL NOT ASSERT ANY |
DEFENSE BASED ON LACK OF JURISDICTION OR VENUE OR BASED UPON FORUM |
NON CONVENIENS. |
15. Severability. To the extent permitted by applicable law, any provision of this |
Guaranty 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. |
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16. Amendments, Waivers. No amendment or waiver of any provision of this |
Guaranty nor consent to any departure by the undersigned therefrom shall in any event be |
effective unless the same shall be in writing executed by each of the undersigned directly |
affected by such amendment and/or waiver and the Agent. |
17. Notice. All notices, requests and demands to or upon the undersigned, shall be in |
writing and shall be deemed to have been duly given or made (a) when delivered, if by hand, |
(b) three (3) days after being sent, postage prepaid, if by registered or certified mail, (c) when |
confirmed electronically, if by facsimile, or (d) when delivered, if by a recognized overnight |
delivery service in each event, to the numbers and/or address set forth beneath the signature of |
the undersigned. |
18. Successors. Each Creditor Party may, from time to time, without notice to the |
undersigned, sell, assign, transfer or otherwise dispose of all or any part of the Obligations and/or |
rights under this Guaranty. Without limiting the generality of the foregoing, each Creditor Party |
may assign, or grant participations to, one or more banks, financial institutions or other entities |
all or any part of any of the Obligations. In each such event, the Creditor Parties, their Affiliates |
and each and every immediate and successive purchaser, assignee, transferee or holder of all or |
any part of the Obligations shall have the right to enforce this Guaranty, by legal action or |
otherwise, for its own benefit as fully as if such purchaser, assignee, transferee or holder were |
herein by name specifically given such right. The Creditor Parties shall have an unimpaired right |
to enforce this Guaranty for its benefit with respect to that portion of the Obligations which the |
Creditor Parties have not disposed of, sold, assigned, or otherwise transferred. |
19. Additional Guarantors. It is understood and agreed that any person or entity that |
desires to become a Guarantor hereunder, or is required to execute a counterpart of this Guaranty |
after the date hereof pursuant to the requirements of any Document, shall become a Guarantor |
hereunder by (x) executing a joinder agreement in form and substance satisfactory to the Agent, |
(y) delivering supplements to such exhibits and annexes to such Documents as the Agent shall |
reasonably request and/or as may be required by such joinder agreement and (z) taking all |
actions as specified in this Guaranty as would have been taken by such Guarantor had it been an |
original party to this Guaranty, in each case with all documents required above to be delivered to |
the Agent and with all documents and actions required above to be taken to the reasonable |
satisfaction of the Agent. |
20. Release. Nothing except cash payment in full of the Obligations shall release any |
of the undersigned from liability under this Guaranty. |
21. Limitation of Obligations under this Guaranty. Each Guarantor and each Creditor |
Party (by its acceptance of the benefits of this Guaranty) hereby confirms that it is its intention |
that this Guaranty not constitute a fraudulent transfer or conveyance for purposes of the |
Bankruptcy Code, the Uniform Fraudulent Conveyance Act of any similar Federal or state law. |
To effectuate the foregoing intention, each Guarantor and each Creditor Party (by its acceptance |
of the benefits of this Guaranty) hereby irrevocably agrees that the Obligations guaranteed by |
such Guarantor shall be limited to such amount as will, after giving effect to such maximum |
amount and all other (contingent or otherwise) liabilities of such Guarantor that are relevant |
under such laws and after giving effect to any rights to contribution pursuant to any agreement |
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providing for an equitable contribution among such Guarantor and the other Guarantors |
(including this Guaranty), result in the Obligations of such Guarantor under this Guaranty in |
respect of such maximum amount not constituting a fraudulent transfer or conveyance. |
[REMAINDER OF THIS PAGE IS BLANK. |
SIGNATURE PAGE IMMEDIATELY FOLLOWS] |
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IN WITNESS WHEREOF, this Guaranty has been executed by the undersigned this 28th |
day of September, 2007. |
VOX COMMUNICATIONS CORP. |
By: /s/ Xxxx X. Xxxx |
Name: Xxxx X. Xxxx |
Title: Chief Executive Officer |
Address: 00 Xxxxx Xxxxxxxx, Xxxxx 000 |
White Plains, NY 10602 |
Facsimile: 000-000-0000 |
State of Incorporation: Delaware |
AVI HOLDING CORP. |
By: /s/ Xxxx X. Xxxx |
Name: Xxxx X. Xxxx |
Title: Chief Executive Officer |
Address: 00 Xxxxx Xxxxxxxx, Xxxxx 000 |
White Plains, NY 10602 |
Facsimile: 000-000-0000 |
State of Incorporation: Texas |
XXXXXXXXXXXXX.XXX CORP. |
By: /s/ Xxxx X. Xxxx |
Name: Xxxx X. Xxxx |
Title: Chief Executive Officer |
Address: 00 Xxxxx Xxxxxxxx, Xxxxx 000 |
White Plains, NY 10602 |
Facsimile: 000-000-0000 |
State of Incorporation: Delaware |
[Additional Signatures Appear on Following Page] |
SIGNATURE PAGE TO |
SUBSIDIARY GUARANTY |
LINE ONE, INC. |
By: /s/ Xxxx X. Xxxx |
Name: Xxxx X. Xxxx |
Title: Chief Executive Officer |
Address: 00 Xxxxx Xxxxxxxx, Xxxxx 000 |
White Plains, NY 10602 |
Facsimile: 000-000-0000 |
State of Incorporation: New York |
SIGNATURE PAGE TO |
SUBSIDIARY GUARANTY |