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GUARANTY AGREEMENT (as amended,
restated, amended and restated, supplemented or otherwise modified
from time to time, this “ Guaranty ”), dated as
of December 4, 2007, by AirGATE Technologies, Inc., a Texas
corporation (“ Guarantor ”), in favor of Samson
Investment Company, as collateral agent (the “ Agent
”) for the holders of the Notes (as defined in the Purchase
Agreement referred to below) (all such holders, the “
Holders ”).
INTRODUCTION
This
Guaranty is given in connection with the transactions described in
that certain Securities Purchase Agreement dated as of
December 4, 2007 by and among The X-Change Corporation, a
Nevada corporation (the “ Company ”), Guarantor,
Samson Investment Company, a Nevada corporation, Ironman PI Fund
(QP), L.P., a Texas limited partnership, and John Thomas Bridge and
Opportunity Fund, LP, a Delaware limited partnership (the “
Purchase Agreement ”). Capitalized terms used but not
defined herein shall have the meanings specified in the Purchase
Agreement.
Guarantor
is a wholly-owned subsidiary of the Company, and as such, will
benefit from the transactions contemplated by the Purchase
Agreement.
To induce
each of the Purchasers to enter into the Purchase Agreement and the
Related Agreements, and to purchase from the Company the Notes and
the Warrants (each of the foregoing, as amended, restated, amended
and restated, supplemented or otherwise modified from time to time,
collectively the “ Transaction Documents ” and
each, individually, a “ Transaction Document ”),
Guarantor hereby agrees as follows:
2374896.1/SP/16392/0103/121007
Section 1 .
Guaranty . Guarantor absolutely, unconditionally and
irrevocably guarantees to the Agent, for the ratable benefit of the
Holders, as primary obligor and not merely as surety, the full and
punctual payment and performance when due, whether at stated
maturity or earlier, by reason of acceleration, mandatory
prepayment or otherwise in accordance with the Transaction
Documents, of all obligations and duties of every type and
description owing by the Company to each Holder arising out of or
in connection with any Transaction Document, whether direct or
indirect, absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired, including,
without limitation, all interest (whether or not accruing after the
filing of any petition in bankruptcy, or the commencement of any
insolvency, reorganization or similar proceeding) and all other
fees, expenses, costs, indemnities and other sums chargeable to the
Company under any Transaction Document (the “ Guaranteed
Obligations ”). The guaranty by Guarantor hereunder
constitutes a guaranty of payment and not of collection. All
payments made under this Guaranty shall be in immediately available
United States funds without deduction, set-off or
counterclaim.
Section 2 . Guaranty Absolute .
2.1.
Guarantor agrees that its obligations under this Guaranty shall be
irrevocable, primary, absolute, continuing and unconditional,
irrespective of and unaffected by any of the following actions or
circumstances (which may not be pleaded and evidence of which may
not be introduced in any proceeding with respect to this Guaranty
in each case except as otherwise agreed in writing by the relevant
Holder): (a) the invalidity or unenforceability of any
obligation of the Company or any other guarantor under any
Transaction Document or any other agreement or instrument relating
thereto (including any amendment, consent or waiver thereto), or
any security for, or other guaranty of the Guaranteed Obligations
or any part of them, or the lack of perfection or continuing
perfection or failure of priority of any security for the
Guaranteed Obligations or any part of them; (b) the absence of
(i) any attempt to collect any Guaranteed Obligation or any
part thereof from the Company or any other guarantor or other
action to enforce any of the same or (ii) any action to
enforce any Transaction Document or any lien or encumbrance
thereunder; (c) any workout, insolvency, bankruptcy
proceeding, reorganization, arrangement, liquidation or dissolution
by or against the Company, or any other guarantor or any procedure,
agreement, order, stipulation, election, action or omission
thereunder, including any discharge or disallowance of, or bar or
stay against collecting, any Guaranteed Obligation (or interest
thereon) in or as a result of any such proceeding; (d) any
foreclosure, whether or not through judicial sale, and any other
sale, transfer, lease or other disposition of Collateral or any
election by the Agent or any Holder, following the occurrence of
any event of default or other event which, with the giving of
notice or the passage of time would constitute an event of default
under any Transaction Document (an “ Event of Default
”), to proceed separately against any Collateral in
accordance with any Agent’s or Holder’s rights under
any applicable law; or (e) any other defense, setoff,
counterclaim or any other circumstance that might otherwise
constitute a legal or equitable discharge of the Company,
Guarantor, and any other guarantor, in each case other than the
payment in full in cash of the Guaranteed Obligations.
2.2.
Guarantor hereby unconditionally and irrevocably waives and agrees
not to assert any claim, defense, setoff or counterclaim based on
diligence, promptness, presentment, acceptance, demand, protest,
requirements for any demand or notice hereunder or other
requirements of any kind with respect to any Guaranteed Obligation
(including any accrued but unpaid interest thereon) becoming
immediately due and payable and any other notice in respect of the
Guaranteed Obligations or any part of them, and any defense arising
by reason of any disability or other defense of the Company,
Guarantor or any other guarantor.
2.3.
Guarantor unconditionally and irrevocably agrees not to enforce or
otherwise exercise any right of subrogation or any right of
reimbursement or contribution or similar right against the Company
or any other guarantor by reason of any Transaction Document or any
payment made thereunder or to assert any claim, defense, setoff or
counterclaim it may have against any other obligor for any of the
Guaranteed Obligations or setoff any of its obligations to such
other obligor against obligations of such obligor to Guarantor
unless and until all of the Guaranteed Obligations are indefeasibly
paid in full in cash. No obligation of Guarantor hereunder shall be
discharged other than by complete performance.
2.4. The
obligations of Guarantor hereunder are independent of and separate
from the Guaranteed Obligations. If any Guaranteed Obligation is
not paid when due, or upon any Event of Default, each Holder and/or
the Agent (at the direction of the Required Secured Parties (as
defined in the Security Agreement)) may, at its sole election,
proceed directly and at once, without notice, against Guarantor to
collect and recover the full amount or any portion of any
Guaranteed Obligation then due, without first proceeding against
any
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