UNLIMITED GUARANTY
EXHIBIT 10.2.2
This Unlimited Guaranty, dated as of November 29, 2004 (this “Guaranty”), is executed
by DiscLive, Inc., a Delaware corporation (the “Guarantor”), in favor of each of Xxxx Xxxx
(“G Xxxx”), Xxxxxxx Xxxxx (“Xxxxx”), and Xxxxx Xxxx (“X Xxxx” who together
with G Xxxx and Xxxxx are referred to as the “Lenders”).
WHEREAS, contemporaneously with this Guaranty, Immediatek, Inc., a Nevada corporation
(“Borrower”) entered into those certain Secured Convertible Promissory Notes by and between
Borrower and each of the Lenders, individually (each, a “Note” and collectively, the
“Notes”); and
WHEREAS, Guarantor is a wholly-owned subsidiary of Borrower and will receive a direct benefit
from the provision of this Guaranty; and
WHEREAS, to induce Lenders to execute the Notes, Guarantor has agreed to execute and deliver
this Guaranty in favor of Lenders.
NOW, THEREFORE, in consideration of the premises contained herein and for other good and
valuable consideration, the receipt of which is hereby acknowledged, Guarantor hereby agrees as
follows:
1. GUARANTY. Guarantor acknowledges and agrees that this Guaranty is to guaranty
payment of the indebtedness of Borrower under the Notes.
2. GUARANTY OF PAYMENT. Guarantor hereby guarantees to Lenders the full and punctual
payment when due (whether at maturity, by acceleration or otherwise), of all financial obligations
of Borrower to Lenders under or in connection with the Notes, whether direct or indirect, absolute
or contingent, due or to become due, secured or unsecured, now existing or hereafter arising (the
“Obligations”). This Guaranty is an absolute, unconditional and continuing guaranty of the
full and punctual payment of the Obligations and not of their collectability only and is in no way
conditioned upon any requirement that Lenders first attempt to collect any of the Obligations from
Borrower or resort to any security or other means of obtaining their payment. Should Borrower
default in the payment or performance of any of the Obligations beyond any applicable grace period,
the obligations of Guarantor hereunder shall become immediately due and payable to Lenders, without
demand or notice of any nature, all of which are expressly waived by Guarantor. Payments by
Guarantor hereunder may be required by Lenders on any number of occasions.
3. GUARANTOR’S AGREEMENT TO PAY. Guarantor further agrees, as the principal obligor
and not as guarantor only, to pay to Lenders, on demand, all costs and expenses (including court
costs and legal expenses) incurred or expended by Lenders in connection with the Obligations, this
Guaranty and the enforcement thereof, together with interest on amounts recoverable under this
Guaranty from the time such amounts
become due until payment, at the default rate as set forth in the Notes; provided that if such
interest exceeds the maximum amount permitted to be paid under applicable law, then such interest
shall be reduced to such maximum permitted amount.
4. UNLIMITED GUARANTY. The liability of Guarantor hereunder shall be unlimited.
5. WAIVERS BY GUARANTOR; LENDERS’ FREEDOM TO ACT. Guarantor agrees that the
Obligations will be paid strictly in accordance with their respective terms regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or
the rights of Lenders with respect thereto. Guarantor waives presentment, demand, protest, notice
of acceptance, notice of presentment and all other notices of any kind, all defenses which may be
available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in
effect, any right to require marshalling of assets of Borrower, and all suretyship defenses
generally. Without limiting the generality of the foregoing, Guarantor agrees to the provisions of
any instrument evidencing, securing or otherwise executed in connection with any of the Obligations
and agrees that the obligations of Guarantor hereunder shall not be released or discharged, in
whole or in part, or otherwise affected by (i) the failure of Lenders to assert any claim or demand
or to enforce any right or remedy against Borrower; (ii) any extensions or renewals of any of the
Obligations; (iii) any rescissions, waivers, amendments or modification of any of the terms or
provisions of any agreement evidencing, securing or otherwise executed in connection with any of
the Obligations; (iv) the substitution or release of any entity primarily or secondarily liable for
any of the Obligations; (v) the adequacy of any rights Lenders may have against any collateral or
other means of obtaining repayment of the Obligations; (vi) the impairment of any collateral
securing the Obligations, including without limitation, the failure to perfect or preserve any
rights Lenders might have in such collateral or the substitution, exchange, surrender, release,
loss or destruction of any such collateral; or (vii) any other act or omission which might in any
manner or to any extent vary the risk of Guarantor or otherwise operate as a release or discharge
of Guarantor, all of which may be done without notice to or consent of Guarantor.
6. UNENFORCEABILITY OF OBLIGATIONS AGAINST BORROWER. If for any reason Borrower has
no legal existence or is under no legal obligation to discharge any of the Obligations, or if any
of the Obligations are invalid or unenforceable or have become irrecoverable from Borrower by
operation of law or for any other reason, this Guaranty shall nevertheless be binding on Guarantor
to the same extent as if Guarantor at all times had been the principal obligor on all such
Obligations. In the event that acceleration of the time for payment of the Obligations is stayed
upon the insolvency, bankruptcy or reorganization of Borrower, or for any other reason, all such
amounts otherwise subject to acceleration under the terms of any agreement evidencing, securing or
otherwise executed in connection with any of the Obligations shall be immediately due and payable
by Guarantor.
7. SUBROGATION; SUBORDINATION. Until the prior indefeasible payment in full of the
Obligations, Guarantor shall not exercise any rights against
Borrower arising as a result of payment by Guarantor hereunder, by way of subrogation or
otherwise, and will not prove any claim in competition with Lenders in respect of any payment
hereunder in bankruptcy or insolvency proceedings of any nature, Guarantor will not claim any
set-off or counterclaim against Borrower in respect of any liability of Guarantor to Borrower, and
Guarantor waives any benefit of and any right to participate in any collateral which may be held by
Lenders. The payment of any amounts due with respect to any indebtedness of Borrower now or
hereafter held by Guarantor is hereby subordinated to the prior payment in full of the Obligations.
Guarantor will not demand, xxx for or otherwise attempt to collect any such indebtedness of
Borrower to Guarantor until the Obligations shall have been indefeasibly paid in full. If,
notwithstanding the foregoing sentence, Guarantor shall collect, enforce or receive any amounts in
respect of such indebtedness, such amounts shall be collected, enforced and received by Guarantor
as trustee for Lenders and be paid over to Lenders on account of the Obligations without affecting
in any manner the liability of Guarantor under the other provisions of this Guaranty.
8. FURTHER ASSURANCES. Guarantor hereby covenants and agrees with Lenders that until
all Obligations guaranteed hereby have been completely repaid and this Guaranty has been terminated
in accordance with the provisions of Section 9 below, Guarantor (i) will comply with, and will
cause Borrower to comply with, all the terms and conditions of the Notes, and (ii) will not do
anything which would result in Borrower defaulting under the terms and conditions of the Notes.
Guarantor also agrees to do all the such things and execute all such documents, including financing
statements, as Lenders may deem necessary or desirable to give full effect to this Guaranty and to
perfect and preserve the rights and powers of Lenders hereunder.
9. TERMINATION; REINSTATEMENT. This Guaranty shall remain in full force and effect
until the earlier of (i) the irrevocable payment in full of all Obligations and the termination of
all commitments of Lenders to Borrower, or (ii) Lenders’ receipt of written notice of Guarantor’s
intention to discontinue this Guaranty, notwithstanding any intermediate or temporary payment or
settlement of the whole or any part of the Obligations. No such notice shall be effective unless
received and acknowledged by Lenders. No such notice shall affect any rights of Lenders hereunder
with respect to Obligations incurred prior to the receipt of such notice or Obligations incurred
pursuant to any contract or commitment in existence prior to such receipt; accordingly, all checks,
drafts, notes, instruments (negotiable or otherwise) and writings made by or for the account of
Borrower and drawn on Lenders purporting to be dated on or before the date of receipt of such
notice, although presented to and paid or accepted by Lenders after that date, shall form part of
the Obligations. This Guaranty shall continue to be effective or be reinstated, notwithstanding
any such notice, if at any time any payment made or value received with respect to an Obligation is
rescinded or must otherwise be returned by Lenders upon the insolvency, bankruptcy or
reorganization of Borrower, or otherwise, all as though such payment had not been made or value
received.
10. SUCCESSOR AND ASSIGNS. This Guaranty shall be binding upon Guarantor, its
successors and assigns, and shall inure to the benefit of and be enforceable by Lenders and their
successors, transferees and assigns. Without limiting the generality
of the foregoing sentence, Lenders may assign or otherwise transfer any agreement or any note
held by them evidencing, securing or otherwise executed in connection with the Obligations, or sell
participations in any interest therein, to any other person or entity, and such other person or
entity shall thereupon become vested, to the extent set forth in the agreement evidencing such
assignment, transfer or participation, with all the rights in respect thereof granted to Lenders
herein.
11. AMENDMENTS AND WAIVERS. No amendment or waiver of any provision of this Guaranty
nor consent to any departure by Guarantor from any provision of this Guaranty shall be effective
unless the same shall be in writing and signed by Lenders. No failure on the part of Lenders to
exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right hereunder preclude any other or further exercise
thereof of the exercise of any other right.
12. NOTICE. All notices and other communications made or required to be given
pursuant to this Guaranty shall be in writing and shall be delivered in hand, mailed by United
States registered or certified first class mail, postage prepaid, sent by overnight courier, or
sent by telecopy and confirmed by delivery via courier or postal service, addressed as follows:
| i. | if to Guarantor, at 00 Xxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: ___(Fax Number: ___), with a copy to 0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 0000, Xxxxxxxxxx, Xxxxx 00000, Attention: Xxxx Xxxx, Chief Executive Officer (Fax Number: (000) 000-0000), or at such other address for notice as Guarantor shall last have furnished in writing to Lenders; | ||
| ii. | if to G Xxxx, at 0000 Xxx Xxxx, Xxxxxx, Xxxxx 00000 (Fax number: (000) 000-0000), or such other address for notice as G Xxxx shall last have furnished in writing to Guarantor; | ||
| iii. | if to Xxxxx, at 0000 Xxxxxx Xxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000 (Fax number: (000) 000-0000), or such other address for notice as Xxxxx shall last have furnished in writing to Guarantor; and | ||
| iv. | if to X Xxxx, at 0000 Xxx Xxxx, Xxxxxx, Xxxxx 00000 (Fax number: (000) 000-0000), or such other address for notice as X Xxxx shall last have furnished in writing to Guarantor. |
Any such notice or demand shall be deemed to have been duly given or made and to have become
effective (i) if delivered by hand, overnight courier or facsimile to the party to which it is
directed, at the time of the receipt thereof by such party or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on the third business
day following the mailing thereof.
13. GOVERNING LAW; CONSENT TO JURISDICTION. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of Texas. Guarantor agrees that any suit for
the enforcement of this Guaranty may be brought in any court of competent jurisdiction in Dallas
County, Texas and consents to the non-exclusive jurisdiction of such courts and to service of
process in any such suit being made upon Guarantor by mail at the address specified in Section 12
hereof. Guarantor hereby waives any objection that it may now or hereafter have to the venue of
any such suit or any such court or that such suit was brought in an inconvenient court.
14. MISCELLANEOUS. This Guaranty constitutes the entire agreement of Guarantor with
respect to the matters set forth herein. The rights and remedies herein provided are cumulative
and not exclusive of any remedies provided by law or any other agreement. The invalidity or
unenforceability of any one or more sections of this Guaranty shall not affect the validity or
enforceability of its remaining provisions. Captions are for the ease of reference only and shall
not affect the meaning of the relevant provisions.
15. BENEFIT. Guarantor hereby acknowledges, represents, and warrants that it receives
financial and other benefits by virtue of its affiliation with Borrower and that it has and will
receive direct and indirect benefits from the financing arrangements contemplated by the Notes and
that such benefits, together with the rights of contribution and subrogation that may arise in
connection herewith are a reasonably equivalent exchange of value in return for providing this
Guaranty.
IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty, as of the date set
forth above.
| GUARANTOR: | ||||
| DiscLive, Inc. | ||||
By:
|
/s/ Xxxx Xxxx | |||
Name:
|
Xxxx Xxxx | |||
Title:
|
CEO | |||
