|
GUARANTY
This
GUARANTY (as
amended, restated, supplemented, or otherwise modified and in
effect from time to time, this “
Guaranty ”)
is made as of this ____ day of ____, 2008 , by Options
Acquisition Sub,, Inc., a Delaware corporation (“
the
“
Guarantor ”)
in favor of
CUSTOMER ACQUISITION NETWORK HOLDINGS, INC.
,
a Delaware corporation.(the “
Secured Party ”).
W I T N E S S E T H:
WHEREAS,
as of the date hereof, the Secured Party has made a loan and
certain other financial accommodations (collectively, the
“
Loan ”)
to
OPTIONS MEDIA GROUP HOLDINGS, INC., a
Nevada corporation (the “
Company ”),
as evidenced by those certain secured senior note in an original
aggregate principal amount of $_____________
(such
note, together with any promissory notes or other securities issued
in exchange or substitution therefor or replacement thereof, and as
any of the same may be amended, supplemented, restated or modified
and in effect from time to time, the “
Note ”);
WHEREAS,
pursuant to a Pledge Agreement of even date herewith (as the
same may be amended, restated, supplemented or otherwise
modified and in effect from time to time, the “
Pledge Agreement ”)
by the Company in favor of the Secured Party, the Company has
created a lien on and security interest in all of the capital stock
and other equity interests of the Guarantor to the Secured Party,
and pledged such capital stock and equity interests to the Secured
Party, for its benefit;
WHEREAS,
pursuant to a Security Agreement of even date herewith (as the
same may be amended, restated, supplemented or otherwise
modified and in effect from time to time, the “
Security Agreement ”)
by the “Debtors” (as defined therein) in favor of the
Secured Party, such Debtors have granted the Secured Party , for
its benefit, a first priority security interest in, and lien upon
and pledge of each of their rights in the Collateral (as defined in
the Security Agreement); and
WHEREAS,
the Guarantor is a direct subsidiary of the Company and, as
such, will derive substantial benefit and advantage from the
Loans and other financial accommodations available to the
Company set forth in the Note, and it will be to each
Guarantor’s direct interest and economic benefit to
assist the Company in procuring said Loans and other financial
accommodations from the Secured Party.
NOW, THEREFORE ,
for and in consideration of the premises and in order to induce the
Secured Party to make the Loans, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor hereby agrees as follows:
1.
Definitions .
As
used herein:
“
Bankruptcy Code ”
shall mean the
Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101,
et seq. ),
as amended and in effect from time to time thereunder.
“
Event of Default ”
shall have the meaning ascribed to such term in the
Note.
“
Obligations ”
shall
mean (i) all obligations, liabilities and indebtedness of every
nature of the Company from time to time owed or owing to the
Secured Party, including, without limitation, all obligations,
liabilities and indebtedness of every nature of the Company under
the Loan, the Note, the Security Agreement and the other
transaction documents, including, without limitation, the principal
amount of all debts, claims and indebtedness, accrued and unpaid
interest and all fees, taxes, indemnities, costs and expenses,
whether primary, secondary, direct, contingent, fixed or otherwise,
heretofore, now and/or from time to time hereafter owing, due or
payable whether before or after the filing of a bankruptcy,
insolvency or similar proceeding under applicable federal, state,
foreign or other law and whether or not an allowed claim in any
such proceeding, and (ii) all obligations, liabilities and
indebtedness of every nature of the Guarantor from time to time
owed or owing to the Secured Party, including, without limitation,
all obligations, liabilities and indebtedness of every nature of
the Guarantor under or in respect of this Guaranty, the Loan, the
Note, the Pledge Agreement, the Security Agreement, and the other
documents executed in relation to the Loan (the “
Transaction Documents ”),
as the case may be, including, without limitation, the principal
amount of all debts, claims and indebtedness, accrued and unpaid
interest and all fees, taxes, indemnities, costs and expenses,
whether primary, secondary, direct, contingent, fixed or otherwise,
heretofore, now and/or from time to time hereafter owing, due or
payable whether before or after the filing of a bankruptcy,
insolvency or similar proceeding under applicable federal, state,
foreign or other law and whether or not an allowed claim in any
such proceeding.
2.
Guaranty of Payment .
(a)
The
Guarantor hereby unconditionally and irrevocably guaranties
the full and prompt payment and performance to the Secured
Party when due, upon demand, at maturity or by reason of
acceleration or otherwise and at all times thereafter, of any
and all of the Obligations.
(b)
The
Guarantor acknowledges that valuable consideration supports
this Guaranty, including, without limitation, the
consideration set forth in the recitals above, as well as any
commitment to lend, extension of credit or other financial
accommodation, whether heretofore or hereafter made by the
Secured Party to the Company; any extension, renewal or
replacement of any of the Obligations; any forbearance with
respect to any of the Obligations or otherwise; any
cancellation of an existing guaranty; any purchase of any of
the Company’s assets by the Secured Party; or any other
valuable consideration.
(c)
The
Guarantor agrees that all payments under this Guaranty shall
be made in United States currency and in the same manner as
provided for the Obligations.
(d)
Notwithstanding
any provision of this Guaranty to the contrary, it is intended
that this Guaranty, and any interests, liens and security
interests granted by the Guarantor as security for this
Guaranty, not constitute a “Fraudulent Conveyance”
(as defined below) in the event that this Guaranty or such
interest is subject to the Bankruptcy Code or any applicable
fraudulent conveyance or fraudulent transfer law or similar
law of any state. Consequently, the Guarantor and the Secured
Party agree that if this Guaranty, or any such interests,
liens or security interests securing this Guaranty, would, but
for the application of this sentence, constitute a Fraudulent
Conveyance, this Guaranty and each such lien and security
interest shall be valid and enforceable only to the maximum
extent that would not cause this Guaranty or such interest,
lien or security interest to constitute a Fraudulent
Conveyance, and this Guaranty shall automatically be deemed to
have been amended accordingly at all relevant times. For
purposes hereof, “
Fraudulent Conveyance ”
means a fraudulent conveyance under Section 548 of the Bankruptcy
Code or a fraudulent conveyance or fraudulent transfer under the
provisions of any applicable fraudulent conveyance or fraudulent
transfer law or similar law of any state, as in effect from time to
time.
3.
Costs and Expenses .
The
Guarantor agrees to pay on demand, all costs and expenses of every
kind incurred bythe Secured Party: (a) in enforcing this Guaranty,
(b) in collecting any of the Obligations from the Company or the
Guarantor, (c) in realizing upon or protecting or preserving any
collateral for this Guaranty or for payment of any of the
Obligations, and (d) in connection with any amendment of,
modification to, waiver or forbearance granted under, or
enforcement or administration of any transaction document or for
any other purpose in connection with any transaction document.
“
Costs and expenses ”
as used in the preceding sentence shall include, without
limitation, reasonable attorneys’ fees incurred by the
Secured Party in retaining counsel for advice, suit, appeal, any
insolvency or other proceedings under the Bankruptcy Code or
otherwise, or for any other purpose specified in the preceding
sentence.
4.
Nature of Guaranty: Continuing, Absolute and
Unconditional .
(a)
This
Guaranty is and is intended to be a continuing guaranty of
payment of the Obligations, and not of collection, and is
intended to be independent of and in addition to any other
guaranty, indorsement, collateral or other agreement held by
the Secured Party therefor or with respect thereto, whether or
not furnished by the Guarantor. The Secured Party shall not be
required to prosecute collection, enforcement or other
remedies against Company, the Guarantor or guarantor of the
Obligations or any other person or entity, or to enforce or
resort to any of the Collateral or other rights or remedies
pertaining thereto, before calling on the Guarantor for
payment. The obligations of the Guarantor to repay the
Obligations hereunder shall be unconditional. The Guarantor
shall have no right of subrogation with respect to any
payments made by the Guarantor hereunder until the termination
of this Guaranty in accordance with
Section 8 below,
and hereby waives any benefit of, and any right to participate in,
any security or collateral given to the Secured Party to secure
payment of the Obligations, and the Guarantor agrees that it will
not take any action to enforce any obligations of the Company to
the Guarantor prior to the Obligations being finally and
irrevocably paid in full in cash,
provided that,
in the event of the bankruptcy or insolvency of the Company, the
Secured Party shall be entitled notwithstanding the foregoing, to
file in the name of the Guarantor or in its own name a claim for
any and all indebtedness owing to the Guarantor by the Company
(exclusive of this Guaranty), vote such claim and to apply the
proceeds of any such claim to the Obligations.
(b)
For
the further security of the Secured Party and without in any
way diminishing the liability of the Guarantor, following the
occurrence of an Event of Default, all debts and liabilities,
present or future of the Company to the Guarantor and all
monies received from the Company or for its account by the
Guarantor in respect thereof shall be received in trust for
the Secured Party and forthwith upon receipt shall be paid
over to the Secured Party, for its benefit, until all of the
Obligations have been finally and irrevocably paid in full in
cash. This assignment and postponement is independent of and
severable from this Guaranty and shall remain in full effect
whether or not the Guarantor is liable for any amount under
this Guaranty.
(c)
This
Guaranty is absolute and unconditional and shall not be
changed or affected by any representation, oral agreement, act
or thing whatsoever, except as herein provided. This Guaranty
is intended by the Guarantor to be the final, complete and
exclusive expression of the guaranty agreement between the
Guarantor and the Secured Party. No modification or amendment
of any provision of this Guaranty shall be effective against
any party hereto unless in writing and signed by a duly
authorized officer of such party.
(d)
The
Guarantor hereby releases the Company from all, and agrees not
to assert or enforce (whether by or in a legal or equitable
proceeding or otherwise) any “claims” (as defined
in Section 101(5) of the Bankruptcy Code), whether arising
under any law, ordinance, rule, regulation, order, policy or
other requirement of any domestic or foreign government or any
instrumentality or agency thereof, having jurisdiction over
the conduct of its business or assets or otherwise, to which
the Guarantor is or would at any time be entitled by virtue of
its obligations hereunder, any payment made pursuant hereto or
the exercise by the Secured Party of its rights with respect
to the Collateral, including any such claims to which the
Guarantor may be entitled as a result of any right of
subrogation, exoneration or reimbursement.
5.
Certain Rights and Obligations .
(a)
The
Guarantor acknowledges and agrees that the Secured Party may,
without notice, demand or any reservation of rights against
the Guarantor and without affecting the Guarantor’s
obligations hereunder, from time to time:
(i)
renew,
extend, increase, accelerate or otherwise change the time for
payment of, the terms of or the interest on the Obligations or
any part thereof or grant other indulgences to the Company or
others;
(ii)
accept
from any person or entity and hold collateral for the payment
of the Obligations or any part thereof, and modify, exchange,
enforce or refrain from enforcing, or release, compromise,
settle, waive, subordinate or surrender, with or without
consideration, such collateral or any part
thereof;
(iii)
accept
and hold any indorsement or guaranty of payment of the
Obligations or any part thereof, and discharge, release or
substitute any such obligation of any such indorser or
guarantor, or discharge, release or compromise the Guarantor,
or any other person or entity who has given any security
interest in any collateral as security for the payment of the
Obligations or any part thereof, or any other person or entity
in any way obligated to pay the Obligations or any part
thereof, and enforce or refrain from enforcing, or compromise
or modify, the terms of any obligation of any such indorser,
guarantor, or person or entity;
(iv)
dispose
of any and all collateral securing the Obligations in any
manner as the Collateral Agent, in its sole discretion, may
deem appropriate, and direct the order or manner of such
disposition and the enforcement of any and all endorsements
and guaranties relating to the Obligations or any part thereof
as the Secured Party t in its sole discretion may
determine;
(v)
determine
the manner, amount and time of application of payments and
credits, if any, to be made on all or any part of any
component or components of the Obligations (whether principal,
interest, fees, costs, and expenses, or otherwise), including,
without limitation, the application of payments received from
any source to the payment of indebtedness other than the
Obligations even though the Secured Party might lawfully have
elected to apply such payments to the Obligations to amounts
which are not covered by this Guaranty; and
(vi)
take
advantage or refrain from taking advantage of any security or
accept or make or refrain from accepting or making any
compositions or arrangements when and in such manner as the
Secured Party, in its sole discretion, may deem
appropriate;
and
generally do or refrain from doing any act or thing which
might otherwise, at law or in equity, release the liability of
the Guarantor as a guarantor or surety in whole or in part,
and in no case shall the Secured Party be responsible or shall
the Guarantor be released either in whole or in part
for
|
