FORM OF PERSONAL GUARANT
Y
1.
Identification .
This
Guaranty (the "Guaranty"), dated as of September ___, 2007, is
entered into by _____________ (“Guarantor”), for
the benefit of the Collateral Agent identified below and the
parties identified on Schedule A hereto (each a
“Lender” and collectively, the
"Lenders").
2.
Recitals .
2.1
Guarantor
is the ___________ and a shareholder of Pay88, Inc., a Nevada
corporation (the “Company”). Lenders have made or
will make loans to the Company (the "Loan"). Guarantor will
obtain substantial benefit from the proceeds of the
Loan.
2.2
The
Loan is evidenced by certain secured promissory Notes
(“Notes”) issued by the Company on or about
September ___, 2007, pursuant to subscription agreements dated
as of September ___, 2007 (each a “Subscription
Agreement”).
2.3
In
consideration of the Loan made or to be made by Lenders to the
Company and for other good and valuable consideration, and as
security for the performance by the Company of its obligations
under the Notes and as security for the repayment of the Loan
and all other sums due from the Company to Lenders arising
under the Notes, Subscription Agreement and any other
agreement between or among them relating to the foregoing
(collectively, the "Obligations"), Guarantor, for good and
valuable consideration, receipt of which is acknowledged, has
agreed to enter into this Guaranty.
2.4
The
Lenders have appointed __________________________ as
Collateral Agent pursuant to that certain Collateral Agent
Agreement dated at or about the date of this Agreement
(“Collateral Agent Agreement”), among the Lenders
and Collateral Agent.
3.
Guaranty .
3.1
Guaranty .
Guarantor hereby unconditionally and irrevocably guarantees, the
punctual payment, performance and observance when due, whether at
stated maturity, by acceleration or otherwise, of all of the
Obligations now or hereafter existing, whether for principal,
interest (including, without limitation, all interest that accrues
after the commencement of any insolvency, bankruptcy or
reorganization of the Company, whether or not constituting an
allowed claim in such proceeding), fees, commissions, expense
reimbursements, liquidated damages, indemnifications or otherwise
(such obligations, to the extent not paid by the Company being
included in the “Obligations”), and agrees to pay any
and all reasonable costs, fees and expenses (including reasonable
counsel fees and expenses) incurred by the Lenders in enforcing any
rights under the guaranty set forth herein. Without limiting the
generality of the foregoing, Guarantor’s liability shall
extend to all amounts that constitute part of the Obligations and
would be owed by the Company to Lenders, but for the fact that they
are unenforceable or not allowable due to the existence of an
insolvency, bankruptcy or reorganization involving the
Company.
3.2
Guaranty Absolute .
Guarantor guarantees that the Obligations will be paid strictly in
accordance with the terms of the Note, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Lenders with
respect thereto. The obligations of Guarantor under this Guaranty
are independent of the Obligations, and a separate action or
actions may be brought and prosecuted against Guarantor to enforce
such Obligations, irrespective of whether any action is brought
against the Company or any other Guarantor or whether the Company
or any other Guarantor is joined in any such action or actions. The
liability of Guarantor under this Guaranty constitutes a primary
obligation, and not a contract of surety, and to the extent
permitted by law, shall be irrevocable, absolute and unconditional
irrespective of, and Guarantor hereby irrevocably waives any
defenses it may now or hereafter have in any way relating to, any
or all of the following:
(a)
any lack of validity or enforceability of the Notes or any
agreement or instrument relating thereto;
(b)
any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to departure from the Notes,
including, without limitation, any increase in the Obligations
resulting from the extension of additional credit to the Company or
otherwise;
(c)
any taking, exchange, release, subordination or non-perfection of
any Collateral, or any taking, release or amendment or waiver of or
consent to departure from any other guaranty, for all or any of the
Obligations;
(d)
any change, restructuring or termination of the corporate, limited
liability company or partnership structure or existence of the
Company; or
(e)
any other circumstance (including, without limitation, any statute
of limitations) or any existence of or reliance on any
representation by the Lenders that might otherwise constitute a
defense available to, or a discharge of, the Company or any other
guarantor or surety.
This
Guaranty shall continue to be effective or be reinstated, as
the case may be, if at any time any payment of any of the
Obligations is rescinded or must otherwise be returned by the
Lenders or any other entity upon the insolvency, bankruptcy or
reorganization of the Company or otherwise (and whether as a
result of any demand, settlement, litigation or otherwise),
all as though such payment had not been made.
3.3
Waiver .
Guarantor hereby waives promptness, diligence, notice of acceptance
and any other notice with respect to any of the Obligations and
this Guaranty and any requirement that the Lenders or exhaust any
right or take any action against the Company or any other person or
entity or any Collateral. Guarantor acknowledges that it will
receive direct and indirect benefits from the financing
arrangements contemplated herein and that the waiver set forth in
this
Section 3.3 is
knowingly made in contemplation of such benefits. Guarantor hereby
waives any right to revoke this Guaranty, and acknowledges that
this Guaranty is continuing in nature and applies to all
Obligations, whether existing now or in the future.
3.4
Continuing Guaranty; Assignments .
This Guaranty is a continuing guaranty and shall (a) remain in full
force and effect until the later of the indefeasible cash payment
in full of the Obligations and all other amounts payable under this
Guaranty, the Subscription Agreements and Note, (b) be binding upon
Guarantor, its successors and assigns and (c) inure to the benefit
of and be enforceable by the Lenders and its successors, pledgees,
transferees and assigns. Without limiting the generality of the
foregoing clause, (c) Lenders may pledge, assign or otherwise
transfer all or any portion of its rights and obligations under
this Guaranty (including, without limitation, all or any portion of
its Note owing to it) to any other Person, and such other Person
shall thereupon become vested with all the benefits in respect
thereof granted such Lenders herein or otherwis e.
3.5
Subrogation .
No Guarantor will exercise any rights that it
|
