Exhibit 4.8
SUBSIDIARY GUARANTEE
SUBSIDIARY
GUARANTEE, dated as of December __, 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 uVuMobile, Inc., a Delaware
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 December __, 2009 (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.
2.
Guarantee
.
(a)
Guarantee
.
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(i)
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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.
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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 Purchasers
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
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.
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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 Purchasers 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 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 conservator of, or tr
