GUARANTY AGREEMENT
THIS
GUARANTY AGREEMENT (this “
Guaranty ”)
is made as of September 28, 2007, by and between
MDWERKS GLOBAL HOLDINGS, INC. ,
a
Florida corporation (“
Debtor ”),
and VICIS CAPITAL MASTER FUND
(“
Vicis ”),
a
series of the Vicis Capital Master Trust, a trust formed under the
laws of the Cayman Islands .
RECITALS
A.
Debtor
is either a direct or an indirect wholly-owned subsidiary of
MD werks
,
Inc., a Delaware corporation (“
Issuer ”).
B.
Pursuant
to a Securities Purchase Agreement of even date herewith by
and between Vicis and Issuer (as amended or modified from time
to time, the “
Securities Purchase Agreement ”),
Issuer has issued to Vicis and Vicis has purchased from Issuer
$2,000,000 in shares of the Issuer’s Series B Convertible
Preferred Stock, par value $.001 per share (the “
Preferred Shares ”).
C.
It
is a condition precedent to Vicis’s acquisition of the
Preferred Shares that Guarantor execute and deliver to Vicis a
guaranty in the form hereof. This is the Guaranty Agreement
referred to in the Securities Purchase Agreement.
AGREEMENTS
In
consideration of the recitals and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Guarantor hereby agrees with Vicis as
follows:
ARTICLE I
DEFINITIONS
When
used in this Guaranty, capitalized terms shall have the
meanings specified in the Securities Purchase Agreement, the
preamble, the recitals and as follows:
Event of Default .
“Event of Default” shall have the meaning specified in
the Securities Purchase Agreement.
Guaranty .
“Guaranty” shall mean this Guaranty, as the same shall
be amended from time to time in accordance with the terms
hereof.
Law .
“Law”
shall mean any federal, state, local or other law, rule, regulation
or governmental requirement of any kind, and the rules,
regulations, interpretations and orders promulgated
thereunder.
Obligations .
“Obligations” shall mean (a) the redemption of, and
payment of dividends on, the Preferred Shares, and any renewal,
extension or refinancing thereof; and (b) all debts, liabilities,
obligations, covenants and agreements of Issuer and Debtor
contained in the Transaction Documents.
Person .
“Person”
shall mean and include an individual, partnership, corporation,
trust, unincorporated association and any unit, department or
agency of government.
ARTICLE II
THE GUARANTY
2.1
The Guaranty .
Guarantor, for itself, its successors and assigns, hereby
unconditionally and absolutely guarantees to Vicis the full and
complete payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of each of the Obligations.
This is a guaranty of payment and performance and not of
collection.
2.2
Waivers and Consents .
(a)
Guarantor acknowledges that the obligations undertaken herein
involve the guaranty of obligations of a Person other than
Guarantor and, in full recognition of that fact, Guarantor consents
and agrees that Vicis may, to the extent permitted under the
Transaction Documents, at any time and from time to time, without
notice or demand, and without affecting the enforceability or
continuing effectiveness hereof: (i) supplement, modify, amend,
extend, renew, accelerate or otherwise change the time for payment
or the other terms of the Obligations or any part thereof,
including without limitation any decrease of the principal amount
thereof or the rate(s) of interest thereon; (ii) supplement,
modify, amend or waive, or enter into or give any agreement,
approval or consent with respect to, the Obligations or any part
thereof, or any of the Transaction Documents or any additional
security or guaranties, or any condition, covenant, default,
remedy, right, representation or term thereof or thereunder; (iii)
accept new or additional instruments, documents or agreements in
exchange for or relative to any of the Transaction Documents or the
Obligations or any part thereof; (iv) accept partial payments on
the Obligations; (v) receive and hold additional security or
guaranties for the Obligations or any part thereof; (vi) release,
reconvey, terminate, waive, abandon, fail to perfect, subordinate,
exchange, substitute, transfer and/or enforce any security or
guaranties, and apply any security and direct the order or manner
of sale thereof as Vicis in its sole and absolute discretion may
determine; (vii) release any Person from any personal liability
with respect to the Obligations or any part thereof; (viii) settle,
release on terms satisfactory to Vicis or by operation of
applicable Law or otherwise, liquidate or enforce any Obligations
and any security or guaranty in any manner, consent to the transfer
of any security and bid and purchase at any sale; and/or (ix)
consent to the merger, change or any other restructuring or
termination of the corporate existence of Issuer or any other
Person, and correspondingly restructure the Obligations, and any
such merger, change, restructuring or termination shall not affect
the liability of Guarantor or the continuing effectiveness hereof,
or the enforceability hereof with respect to all or any part of the
Obligations.
(b)
Upon the occurrence and during the continuance of any Event of
Default, Vicis may enforce this Guaranty independently of any other
remedy, guaranty or security Vicis at any time may have or hold in
connection with the Obligations, and it shall not be necessary for
Vicis to marshal assets in favor of Issuer, any other guarantor of
the Obligations or any other Person or to proceed upon or against
and/or exhaust any security or remedy before proceeding to enforce
this Guaranty. Guarantor expressly waives any right to require
Vicis, upon the occurrence and during the continuance of an Event
of Default, to marshal assets in favor of Issuer or any other
Person or to proceed against Issuer or any other guarantor of the
Obligations or any collateral provided by any Person, and agrees
that Vicis may proceed against any obligor and/or the collateral in
such order as it shall determine in its sole and absolute
discretion. Vicis may file a separate action or actions against
Guarantor, whether action is brought or prosecuted with respect to
any security or against any other Person, or whether any other
Person is joined in any such action or actions. Guarantor agrees
that Vicis and Issuer may deal with each other in connection with
the Obligations or otherwise, or alter any contracts or agreements
now or hereafter existing between them, in any manner whatsoever,
all without in any way altering or affecting the security of this
Guaranty.
(c)
The rights of Vicis hereunder shall be reinstated and revived, and
the enforceability of this Guaranty shall continue, with respect to
any amount at any time paid on account of the Obligations which
thereafter shall be required to be restored or returned by Vicis
upon the bankruptcy, insolvency or reorganization of any Person,
all as though such amount had not been paid. The rights of Vicis
created or granted herein and the enforceability of this Guaranty
shall remain effective at all times to guarantee the full amount of
all the Obligations even though the Obligations, including any part
thereof or any other security or guaranty therefor, may be or
hereafter may become invalid or otherwise unenforceable as against
Issuer or any other guarantor of the Obligations and whether or not
Issuer or any other guarantor of the Obligations shall have any
personal liability with respect thereto.
(d)
To the extent permitted by applicable law, Guarantor expressly
waives any and all defenses now or hereafter arising or asserted by
reason of: (i) any disability or other defense of Issuer or any
other guarantor for the Obligations with respect to the Obligations
(other than full payment and performance of all of the
Obligations); (ii) the unenforceability or invalidity of any
security for or guaranty of the Obligations or the lack of
perfection or continuing perfection or failure of priority of any
security for the Obligations; (iii) the cessation for any
cause whatsoever of the liability of Issuer or any other guarantor
of the Obligations (other than by reason of the full payment and
performance of all Obligations); (iv) any failure of Vicis to
marshal assets in favor of Issuer or any other Person; (v) any
failure of Vicis to give notice of sale or other disposition of
collateral to Issuer or any other Person liable for the Obligations
or any defect in any notice that may be given in connection with
any sale or disposition of collateral; (vi) any failure of Vicis to
comply with applicable Laws in connection with the sale or other
disposition of any collateral or other security for any Obligation,
including, without limitation, any failure of Vicis to conduct a
commercially reasonable sale or other disposition of any collateral
or other security for any Obligation; (vii) any act or omission of
Vicis or others that directly or indirectly results in
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