SUBSIDIARY GUARANTEE
This
SUBSIDIARY GUARANTEE, dated as of November __, 2006 (this “Guarantee”),
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 persons signatory (the “Subscribers”)
to
that certain Subscription Agreement, dated as of the date hereof between
Oxford
Media, Inc., a Nevada corporation (the “Company”)
and
the Subscribers.
W
I T N E S S E T H:
WHEREAS,
pursuant to that certain Subscription Agreement, dated as of the date hereof,
by
and between the Company and the Subscribers (the “Purchase
Agreement”),
the
Company has agreed to sell and issue to the Subscribers, and the Subscribers
have agreed to purchase from the Company the Company’s promissory notes (the
“Notes”),
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 Notes; and
NOW,
THEREFORE, in consideration of the premises and to induce the Subscribers
to
enter into the Purchase Agreement and to carry out the transactions contemplated
thereby, each Guarantor hereby agrees with the Subscribers as
follows:
1. Definitions.
Unless
otherwise defined herein, terms defined in the Purchase Agreement and used
herein shall have the meanings given to them in the Purchase 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
in addition to all other costs and expenses of collection incurred by
Subscribers and Agent in enforcing any of such Obligations and/or this
Guarantee, all
of
the liabilities
and obligations (primary, secondary, direct, contingent, sole, joint or several)
due or to become due, or that are now or may be hereafter contracted or
acquired, or owing to, of any Debtor to the Secured Parties, including, without
limitation, all
obligations under this Agreement, the Notes, this Guarantee and any other
instruments, agreements or other documents executed and/or delivered in
connection herewith or therewith, in each case, whether now or hereafter
existing, voluntary or involuntary, direct or indirect, absolute or contingent,
liquidated or unliquidated, whether or not jointly owed with others, and
whether
or not from time to time decreased or extinguished and later increased, created
or incurred, and all or any portion of such obligations or liabilities that
are
paid, to the extent all or any part of such payment is avoided or recovered
directly or indirectly from any of the Secured Parties as a preference,
fraudulent transfer or otherwise as such obligations may be amended,
supplemented, converted, extended or modified from time to time. Without
limiting the generality of the foregoing, the term “Obligations” shall include,
without limitation: (i) principal of, and interest on the Notes and the loans
extended pursuant thereto; (ii) any and all other fees, indemnities, costs,
obligations and liabilities of the Debtors from time to time under or in
connection with this Agreement, the Notes, the Guarantee and any other
instruments, agreements or other documents executed and/or delivered in
connection herewith or therewith; and (iii) all amounts (including but not
limited to post-petition interest) in respect of the foregoing that would
be
payable but for the fact that the obligations to pay such amounts are
unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving any Debtor. Notwithstanding
the
preceding, any and all amounts owed to a Debtor which arises after Closing
and
is not part of the transactions envisioned hereunder shall become part of
the
Obligations only if all Holders had an opportunity to participate pro rata
in
the subject financing transaction.
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2.
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Guarantee.
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(a)
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Guarantee.
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(i)
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The
Guarantors hereby, jointly and severally, unconditionally and irrevocably,
guarantee to the Subscribers and their 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.
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(ii)
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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)).
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(iii)
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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 Subscribers
hereunder.
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(iv)
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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.
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(v)
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No
payment made by the Company, any of the Guarantors, any other guarantor
or
any other Person or received or collected by the Subscribers 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.
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(vi)
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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
Subscribers whole on a monetary basis for the Company's failure
to perform
such Obligations in accordance with the Transaction Documents.
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(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,
but only after the Obligations then due have been satisfied. 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 Subscribers, and each
Guarantor shall remain liable to the Subscribers 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 Subscribers, no Guarantor shall
be
entitled to be subrogated to any of the rights of the Subscribers against
the
Company or any other Guarantor or any collateral security or guarantee or
right
of offset held by the Subscribers 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 Subscribers 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 Subscribers, segregated from other funds of such
Guarantor, and shall, forthwith upon receipt by such Guarantor, be turned
over
to the Subscribers in the exact form received by such Guarantor (duly indorsed
by such Guarantor to the Subscribers, if required), to be applied against
the
Obligations, whether matured or unmatured, in such order as the Subscribers
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 Subscribers may be rescinded by the Subscribers 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 Subscribers, and the Purchase 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 Subscribers may deem advisable from time to time,
and
any collateral security, guarantee or right of offset at any time held by
the
Subscribers for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. The Subscribers 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
Subscribers 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 Subscribers, 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 Purchase 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 Subscribers, (b) any
defense, set-off or counterclaim (other than a defense of payment or performance
or fraud or misconduct by Subscribers) which may at any time be available
to or
be asserted by the Company or any other Person against the Subscribers, 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
Subscribers may, but shall be under no obligation to, make a similar demand
on
or otherwise pursue such rights and remedies as they 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 Subscribers 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
Subscribers 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 Subscribers 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
Subscribers without set-off or counterclaim in U.S. dollars at the address
set
forth or referred to in the Purchase Agreement.
3. Representations
and Warranties.
Each
Guarantor hereby makes the following representations and warranties to
Subscribers as of the date hereof:
(a) Organization
and Qualification.
The
Guarantor is a corporation, 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
Schedules to the Purchase 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) Purchase
Agreement.
The
representations and warranties of the Company set forth in the Purchase
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 Purchase Agreement, and the Subscribers
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 that was formed in, or conducting business in, a foreign jurisdiction,
has consulted with appropriate foreign legal counsel with respect to any
of the
above representations for which non-U.S. law is applicable. As 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. As applicable, such foreign counsel were provided with copies of
this
Subsidiary Guarantee and the Transaction Documents prior to rendering their
advice.
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4.
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Covenants.
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(a) Each
Guarantor covenants and agrees with the Subscribers 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.
(b) So
long
as any of the Obligations are outstanding, each Guarantor will not directly
or
indirectly on or after the date of this Guarantee:
i.
except
with the prior written consent of the Agent (as defined in the Security
Agreement), other
than Permitted Indebtedness (as defined in the Purchase Agreement) enter
into,
create, incur, assume or suffer to exist any indebtedness for borrowed money
of
any kind, including but not limited to, a guarantee, on or with respect to
any
of its property or assets now owned or hereafter acquired or any interest
therein or any income or profits therefrom that is
senior
to, or pari passu with, in any respect, such Guarantor’s obligations
hereunder;
ii.
other
than Permitted Liens (as defined in the Notes) enter
into, create, incur, assume or suffer to exist any liens of any kind, on
or with
respect to any of its property or assets now owned or hereafter acquired
or any
interest therein or any income or profits therefrom that is senior to, in
any
respect, such Guarantor’s obligations hereunder;
iii.
amend
its
certificate of incorporation, bylaws or other charter documents so as to
adversely affect any rights of the Holder hereunder;
iv. repay,
repurchase or offer to repay, repurchase or otherwise acquire more than a
de
minimis number of shares of its Common Stock or Common Stock Equivalents;
v. enter
into any agreement with respect to any of the foregoing;
or
vi. pay
cash
dividends on any equity securities of the Company.
(c) None
of
the officers or directors of any Guarantor, to the knowledge of each respective
Guarantor, none of the employees of each Guarantor is presently a party to
any
transaction with the Company or any other Guarantor (other than for services
as
employees, officers and directors, and other than with regard to money loaned
to
Company and which has been disclosed to Subscribers), including any contract,
agreement, or other arrangement providing for the furnishing of services
to or
by, providing for rental of real or personal property to or from, or otherwise
requiring payments to or from any officer, director or such employee or,
to the
knowledge of the Company, any entity in which any officer, director, or any
such
employee has a substantial interest or is an officer, director, trustee or
partner, in each case in excess of $10,000 other than (i) for payment of
salary
or consulting fees for services rendered, (ii) reimbursement for expenses
incurred on behalf of the Company and (iii) for other employee benefits,
including stock option agreements under any stock option plan of the
Company.
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5.
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Miscellaneous.
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(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 Subscribers or the
Agent.
(b) Notices.
All
notices, requests, and demands to or upon the Subscribers or any Guarantor
hereunder shall be effected in the manner provided for in the Purchase
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
on Schedule
5(b).
(c) No
Waiver By Course Of Conduct; Cumulative Remedies.
The
Subscribers 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 Subscribers, 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 Subscribers of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which the Subscribers
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.
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(d)
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Enforcement
Expenses; Indemnification.
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(i)
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Each
Guarantor agrees to pay, or reimburse the Subscribers 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
Subscribers.
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(ii)
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Each
Guarantor agrees to pay, and to save the Subscribers 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.
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(iii)
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Each
Guarantor agrees to pay, and to save the Subscribers 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 Purchase
Agreement.
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(iv)
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The
agreements in this Section shall survive repayment of the Obligations
and
all other amounts payable under the Purchase Agreement and the
other
Transaction Documents.
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(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 Subscribers 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 Subscribers.
(f) Set-Off.
Each
Guarantor hereby irrevocably authorizes the Subscribers 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 Subscribers
to or for the credit or the account of such Guarantor, or any part thereof
in
such amounts as the Subscribers may elect, against and on account of the
obligations and liabilities of such Guarantor to the Subscribers hereunder
and
claims of every nature and description of the Subscribers against such
Guarantor, in any currency, whether arising hereunder, under the Purchase
Agreement, any other Transaction Document or otherwise, as the Subscribers
may
elect, whether or not the Subscribers have made any demand for payment and
although such obligations, liabilities and claims may be contingent or
unmatured. The Subscribers shall notify such Guarantor promptly of any such
set-off and the application made by the Subscribers 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 Subscribers under this Section
are in addition to other rights and remedies(including, without limitation,
other rights of set-off) which the Subscribers 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 Subscribers with respect to the subject matter hereof
and
thereof, and there are no promises, undertakings, representations or warranties
by the Subscribers 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:
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(i)
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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;
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(ii)
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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;
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(iii)
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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 Purchase Agreement or at such other
address
of which the Subscribers shall have been notified pursuant
thereto;
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(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
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(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.
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(m)
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Acknowledgements.
Each Guarantor hereby acknowledges
that:
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(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;
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(ii)
|
the
Subscribers 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 Subscribers, on the other hand, in connection
herewith
or therewith is solely that of debtor and creditor; and
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(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 Subscribers.
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(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 2.6, each Guarantor will be released from all liability hereunder
concurrently with the repayment in full of all amounts owed under the Purchase
Agreement, the Notes and the other Transaction Documents.
(p) Seniority.
The
Obligations of each of the Guarantors hereunder rank senior in priority to
any
other Indebtedness (as defined in the Purchase Agreement) of such Guarantor.
(q) Waiver
of Jury Trial.
EACH
GUARANTOR AND, BY ACCEPTANCE OF THE BENEFITS HEREOF, THE PURCHASERS, HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS GUARANTEE AND FOR ANY COUNTERCLAIM
THEREIN.
(r) The
parties expressly agree that the “Agent”, as defined and identified under Annex
B to the Security Agreement, is a third party beneficiary to this Agreement
with
rights of enforcement.
IN
WITNESS WHEREOF, each of the undersigned has caused this Guarantee
to
be
duly executed and delivered as of the date first above written.
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OXFORDSVI,
INC.
|
|
By:__________________________________________
Name:
Title:
CREATIVE
BUSINESS CONCEPTS, INC.
By:__________________________________________
Name:
Title:
|
SCHEDULE
1
GUARANTORS
The
following are the names, notice addresses and jurisdiction of organization
of
each Guarantor.
|
JURISDICTION
OF
INCORPORATION
|
COMPANY
OWNED
BY
PERCENTAGE
|
|
|
OxfordSVI,
Inc.
|
Delaware
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100%
|
|
Creative
Business Concepts, Inc.
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California
|
100%
|
Annex
1
to
ASSUMPTION
AGREEMENT, dated as of ____ __, ______ made by ______________________________,
a
______________ corporation (the “Additional
Guarantor”),
in
favor of the Subscribers pursuant to the Purchase Agreement referred to below.
All capitalized terms not defined herein shall have the meaning ascribed
to them
in such Purchase Agreement.
W
I T N E S S E T H :
WHEREAS,
Oxford Media, Inc., a Nevada corporation (the “Company”)
and
the Subscribers have entered into a Securities Purchase Agreement, dated
as of
September 1st,
2006
(as amended, supplemented or otherwise modified from time to time, the
“Purchase
Agreement”);
WHEREAS,
in connection with the Purchase Agreement, the Company and its Subsidiaries
(other than the Additional Guarantor) have entered into the Subsidiary
Guarantee, dated as of September 1st,
2006
(as amended, supplemented or otherwise modified from time to time, the
“Guarantee”)
in
favor of the Subscribers;
WHEREAS,
the Purchase 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:
|
