SUBSIDIARY GUARANTEE
EXHIBIT
10.7
SUBSIDIARY
GUARANTEE, dated as of July __, 2007 (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 purchasers
signatory (the “Purchasers”) to that certain Securities Purchase
Agreement, dated as of the date hereof, between Oxford Media, Inc., a Nevada
corporation (the “Company”) and the Purchasers.
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.
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“Obligations”
means, in addition to all other costs and expenses of collection incurred by
Purchasers 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
Debentures, 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 Debentures 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 Debentures,
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.
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2.
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(a)
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(i) The
Guarantors hereby, jointly and severally, unconditionally and irrevocably,
guarantee to the Purchasers 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.
(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 Purchasers hereunder.
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(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 Purchasers 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 Purchasers 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 Purchasers, and each Guarantor shall remain liable to
the
Purchasers 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
Purchasers, no Guarantor shall be entitled to be subrogated to any of the rights
of the Purchasers against the Company or any other Guarantor or any collateral
security or guarantee or right of offset held by the Purchasers 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
Purchasers 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 Purchasers, segregated
from other funds of such Guarantor, and shall, forthwith upon receipt by such
Guarantor, be turned over to the Purchasers in the exact form received by such
Guarantor (duly indorsed by such Guarantor to the Purchasers, if required),
to
be applied against the Obligations, whether matured or unmatured, in such order
as the Purchasers may determine.
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(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 Purchasers may be rescinded
by
the Purchasers 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 Purchasers,
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 Purchasers
may
deem advisable from time to time, and any collateral security, guarantee or
right of offset at any time held by the Purchasers for the payment of the
Obligations may be sold, exchanged, waived, surrendered or released. The
Purchasers 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 Purchasers 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 Purchasers, 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 Purchasers, (b) any
defense, set-off or counterclaim (other than a defense of payment or performance
or fraud or misconduct by Purchasers) which may at any time be available to
or
be asserted by the Company or any other Person against the Purchasers, 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
Purchasers 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 Purchasers 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
Purchasers against any Guarantor. For the purposes hereof, “demand” shall
include the commencement and continuance of any legal proceedings.
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(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 Purchasers 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
Purchasers 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 Purchasers 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”).
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(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.
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(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 Purchasers 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 had
the opportunity to consult with appropriate foreign legal counsel with respect
to any of the above representations for which non-U.S. law is
applicable. Each Guarantor knows of no reason why any of the above
representations would not be true and accurate.
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4.
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(a) Each
Guarantor covenants and agrees with the Purchasers 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, unless Purchasers holding at
least 67% of the aggregate principal amount of the then outstanding Debentures
shall otherwise consent in writing, each Guarantor will not directly or
indirectly on or after the date of this Guarantee:
i. Other
than Permitted Indebtedness (as defined in the Debenture), 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;
ii. Other
than Permitted Liens (as defined in the Debenture), 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;
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iii. amend
its certificate of incorporation, bylaws or other charter documents so as to
adversely affect any rights of the Purchasers hereunder;
iv. repay,
repurchase or offer to repay, repurchase or otherwise acquire more than a de
minimis number of shares of its securities or debt obligations;
v. pay
cash dividends on any equity securities of the Company;
vi. enter
into any transaction with any Affiliate of the Guarantor which would be required
to be disclosed in any public filing of the Company with the Commission, unless
such transaction is made on an arm’s-length basis and expressly approved by a
majority of the disinterested directors of the Company (even if less than a
quorum otherwise required for board approval); or
vii. enter
into any agreement with respect to any of the foregoing.
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5.
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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
Purchasers.
(b) Notices.
All notices, requests and demands to or upon the Purchasers 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 Purchasers 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 Purchasers, 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 Purchasers of any right
or remedy hereunder on any one occasion shall not be construed as a bar to
any
right or remedy which the Purchasers 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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(i) Each
Guarantor agrees to pay, or reimburse the Purchasers 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 Purchasers.
(ii) Each
Guarantor agrees to pay, and to save the Purchasers 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 Purchasers 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.
(iv) 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.
(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 Purchasers 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 Purchasers.
(f) Set-Off.
Each Guarantor hereby irrevocably authorizes the Purchasers 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 Purchasers
to
or for the credit or the account of such Guarantor, or any part thereof in
such
amounts as the Purchasers may elect, against and on account of the obligations
and liabilities of such Guarantor to the Purchasers hereunder and claims of
every nature and description of the Purchasers against such Guarantor, in any
currency, whether arising hereunder, under the Purchase Agreement, any other
Transaction Document or otherwise, as the Purchasers may elect, whether or
not
the Purchasers have made any demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. The Purchasers shall
notify such Guarantor promptly of any such set-off and the application made
by
the Purchasers 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 Purchasers under this Section are in addition to other rights and
remedies(including, without limitation, other rights of set-off) which the
Purchasers may have.
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(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 Purchasers with respect to the subject matter hereof
and
thereof, and there are no promises, undertakings, representations or warranties
by the Purchasers 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) 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 Purchase Agreement or at such other address of which the
Purchasers 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.
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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;
(ii) the
Purchasers 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
Purchasers, 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 Purchasers.
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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 Debentures 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.
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to
be
duly executed and delivered as of the date first above written.
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OXFORDSVI,
INC.
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By:_________________________________
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Name:
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Title:
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SCHEDULE
1
GUARANTORS
The
following are the names, notice addresses and jurisdiction of organization
of
each Guarantor.
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COMPANY
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JURISDICTION
OF
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OWNED
BY
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INCORPORATION
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PERCENTAGE
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OxfordSVI,
Inc.
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Illinois
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100%
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SCHEDULE
5(b)
ADDRESS
0000
X.
Xxxxxxx Xxxxx
Xxxxxx,
Xxxxxxxx 00000
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Annex
1
to
ASSUMPTION
AGREEMENT, dated as of ____ __, ______ made by ______________________________,
a
______________ corporation (the “Additional Guarantor”), in favor of the
Purchasers 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.
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 [______________ ____, 2007 (as amended, supplemented
or
otherwise modified from time to time, the “Guarantee”) in favor of the
Purchasers;
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.
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IN
WITNESS WHEREOF, the undersigned has caused this Assumption Agreement
to be duly executed and delivered as of the date first above
written.
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[ADDITIONALGUARANTOR]
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By:
____________________________
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Name:
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Title:
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