SUBSIDIARY AND AFFILIATE
GUARANTEE
SUBSIDIARY
AND AFFILIATE GUARANTEE, dated as of January 13, 2009, made by and
between QMotions, Inc. a California corporation and Aptus Games, a
Delaware corporation, (together with any other entity that may
become a party hereto as provided herein, (the
“Guarantors”), in favor of Alma Bailante Real Estate
Inc. (the “Lender”) to that certain Conversion
Agreement, dated as of the date hereof, between Actiga Corporation,
a Nevada corporation with its principal business address at 871
Marlborough Avenue, Suite 100 Riverside, CA (the
“Company”) and the Lender.
WITNESSETH:
WHEREAS,
pursuant to that certain Conversion Agreement, dated as of the date
hereof, by and between the Company and the Lender (the
“Conversion Agreement”), the Company and the Lender
have agreed to convert that certain Unsecured Promissory Note of
the Company in favor of the Lender, in the principal amount of
$1,500,000, entered into on July 12, 2008 (the “Unsecured
Note”) into a 25% Secured Promissory Note of the Company (the
“New Note”) subject to the terms and conditions set
forth therein; and
WHEREAS,
each Guarantor will directly benefit from the conversion of the
Unsecured Note as contemplated in the Conversion Agreement;
and
NOW,
THEREFORE, in consideration of the premises and to induce the
Lender to enter into the Conversion Agreement and to carry out the
transactions contemplated thereby, each Guarantor hereby agrees
with the Lender as follows:
1.
Definitions . Unless otherwise defined herein, terms defined
in the Conversion Agreement and used herein shall have the meanings
given to them in the Conversion 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:
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“
Guarantee ” means this Subsidiary and Affiliate
Guarantee, as the same may be amended, supplemented or otherwise
modified from time to time.
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“
Obligations ” means the collective reference to all
obligations and undertakings of the Company of whatever nature,
monetary or otherwise, under the New Note, the Conversion
Agreement, the Security Agreement, the Warrant, or any other future
agreement or obligations undertaken by the Company to the Lender,
together with all reasonable attorneys’ fees, disbursements
and all other costs and expenses of collection incurred by Lender
in enforcing any of such Obligations and/or this
Guarantee.
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2. Guarantee .
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(a) Guarantee .
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(i)
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The Guarantors hereby, jointly
and severally, unconditionally and irrevocably, guarantee to the
Lender and its respective successors, indorsees, transferees and
assigns, the prompt and complete payment and
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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 Lender 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 Lender 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 Lender 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. 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 Lender, and
each Guarantor shall remain liable to the Lender for the full
amount guaranteed by such Guarantor hereunder.
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(c)
No Subrogation . Notwithstanding any payment made by any
Guarantor hereunder or any set-off or application of funds of any
Guarantor by the Lender, no Guarantor shall be entitled to be
subrogated to any of the rights of the Lender against the Company
or any other Guarantor or any collateral security or guarantee or
right of offset held by the Lender 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 Lender 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 Lender,
segregated from other funds of such Guarantor, and shall, forthwith
upon receipt by such Guarantor, be turned over to the Lender in the
exact form received by such Guarantor (duly indorsed by such
Guarantor to the Lender, if required), to be applied against the
Obligations, whether matured or unmatured, in such order as the
Lender 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 Lender may be
rescinded by the Lender 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
Lender, and the Conversion 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, upon the written consent of each
of the Lender, Guarantor and the party whose rights are affected by
any such amendment, modification, supplement or termination, from
time to time, and any collateral security, guarantee or right of
offset at any time held by the Lender for the payment of the
Obligations may be sold, exchanged, waived, surrendered or
released. The Lender 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.
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(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
Lender 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 Lender, 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 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 Lender, (b) any defense, set-off or counterclaim (other than
a defense of payment or performance or fraud or misconduct by
Lender) which may at any time be available to or be asserted by the
Company or any other Person against the Lender, or (c) any other
circumstance whatsoever (with or without notice to or
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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
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