Exhibit
10.15
EXHIBIT
F
SUBSIDIARY
GUARANTEE
SUBSIDIARY GUARANTEE, dated as of November __,
2008 (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 (together with their permitted
assigns, the “Purchasers”) to that certain Securities
Purchase Agreement, dated as of the date hereof, between Capital
Growth Systems, Inc., a Florida corporation (the
“Company”) and the Purchasers.
WITNESSETH:
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 Original Issue Discount Secured Convertible Debentures, due seven years
following their issuance (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 the Company or any Guarantor to the
Purchasers, including, without limitation, all obligations under
this Guarantee, the Debentures 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 Purchasers 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 Company or
any Guarantor from time to time under or in connection with this
Guarantee, the Debentures 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 the
Company or any Guarantor.
(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 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 indefeasible 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 indefeasibly paid in full.
(vi) Notwithstanding anything to the
contrary in this Guarantee, 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
. Subject to Section
2(c) , 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
indefeasibly 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 and performance 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 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 trustee
or similar officer for, the Company or any Guarantor or any
substantial part of its property, or otherwise, all
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