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EXHIBIT 10.7
SUBSIDIARY GUARANTEE
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.
W I T N E S S E T H:
WHEREAS,
pursuant to that certain Securities Purchase Agreement, dated
as of the date hereof, by and between the Company and the
Purchasers (the “ Purchase Agreement ”),
the Company has agreed to sell and issue to the Purchasers,
and the Purchasers have agreed to purchase from the Company
the Company’s Secured Convertible Debentures, due July
__, 2011 (the “ Debentures ”), subject
to the terms and conditions set forth therein;
and
WHEREAS,
each Guarantor will directly benefit from the extension of
credit to the Company represented by the issuance of the
Debentures; and
NOW,
THEREFORE, in consideration of the premises and to induce the
Purchasers to enter into the Purchase Agreement and to carry
out the transactions contemplated thereby, each Guarantor
hereby agrees with the Purchasers as follows:
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.
“
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.
(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.
(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.
(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.
(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 conserv
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