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Exhibit 10.4 EXHIBIT F SUBSIDIARY
GUARANTEE SUBSIDIARY GUARANTEE,
dated as of December 30, 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 T3 Motion, Inc., a Delaware 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 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,
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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.
2. Guarantee .
(a)
Guarantee . (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
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Guarantor under the guarantee contained in this Section 2
shall have been satisfied by indefeasible payment in full.
(v) 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
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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
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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 as though such payments had not been made.
(g) Payments . Each Guarantor
hereby guarantees that payments hereunder will be paid to the
Purchasers without set-off or counterclaim in U.S. dollars at the
address set forth or referred to in the Signature Pages to the
Purchase Agreement. 3.
Representations and Warranties . Each Guarantor hereby makes
the following representations and warrant
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