SECURED CONTINUING UNCONDITIONAL GUARANTY
This
SECURED CONTINUING UNCONDITIONAL GUARANTY (this “Guaranty”),
is made this 2nd day of December, 2009, by FUTURE
NOW, INC., a Delaware corporation, having a mailing address at ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ (“FNI”),
INTELLECTUAL
PROPERTY LICENSING GROUP, INC., a Delaware corporation, having a mailing
address at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ ("IPLG"),
ELEMENTAL
BUSINESS, INC., a Utah corporation, having a mailing address at ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇ (“EBI”),
FUTURE
NOW CONSULTING, INC., a Delaware corporation (“FNC”
and together with FNI, IPLG and EBI, individually and collectively, jointly and
severally, the “Guarantor”)
in favor of and for the benefit and security of PROFESSIONAL
OFFSHORE OPPORTUNITY FUND, LTD., having a mailing address at ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the “Secured
Party”).
WHEREAS, pursuant to the
note dated of even date herewith from Future
Now Group, Inc., a Nevada corporation
(the “Company”)
in favor of the Secured Party (as amended or otherwise modified from time to
time, collectively, the “Note”),
the Secured Party has agreed to make certain loans and other financial
accommodations to the Company.
WHEREAS,
each Guarantor is desirous of having the Secured Party extend and/or continue
the extension of credit to the Company, and the Secured Party has required that
each Guarantor execute and deliver this Guaranty to the Secured Party, as a
condition to the extension and continuation of credit by the Secured Party;
and
WHEREAS,
the extension and/or continued extension of credit, as aforesaid, by the Secured
Party is necessary and desirable to the conduct and operation of the business of
the Company, and each Guarantor will derive substantial benefits from the credit
made available to the Company pursuant to the Debenture;
NOW,
THEREFORE, for value received and in consideration of any loan, advance, or
financial accommodation of any kind whatsoever heretofore, now or hereafter
made, given or granted to the Company by the Secured Party, each Guarantor
agrees as follows:
1. Each
Guarantor unconditionally guaranties (i) the full and prompt payment when due,
whether at maturity or earlier, by reason of acceleration or otherwise, and at
all times thereafter, of all of the indebtedness, liabilities and obligations of
every kind and nature of the Company to the Secured Party or any parent,
affiliate or subsidiary of the Secured Party (the terms “Secured Party” as used
hereafter shall include such parents, affiliates and subsidiaries), howsoever
created, arising or evidenced, whether direct or indirect, absolute or
contingent, joint or several, now or hereafter existing, or due or to become
due, and howsoever owned, held or acquired by the Secured Party, whether through
discount, overdraft, purchase, direct loan or as collateral or otherwise,
including, without limitation, all obligations and liabilities of the Company to
the Secured Party under the (A) Note and (B) Secured Convertible Debenture in
the original principal amount of $1,666,667 dated October 30, 2007 (the “Debenture”),
and (ii) the prompt, full and faithful discharge by the Company of each and
every term, condition, agreement, representation and warranty now or hereafter
made by the Company to Secured Party (all such indebtedness, liabilities and
obligations being hereinafter collectively referred to as the “Liabilities”). Guarantor
further agrees to pay all costs and expenses, including, without limitation, all
court costs and reasonable attorneys’ and paralegals’ fees paid or incurred by
Secured Party in endeavoring to collect all or any part of the Liabilities from,
or in prosecuting any action against, Guarantor. All amounts payable
by Guarantor under this Guaranty shall be payable by Guarantor upon demand by
Secured Party.
2. Notwithstanding
any provision of this Guaranty to the contrary, it is intended that this
Guaranty, and any liens and security interests granted by Guarantor to secure
this Guaranty, not constitute a “Fraudulent Conveyance” (as defined
below). Consequently, Guarantor agrees that if this Guaranty, or any
liens or security interests securing this Guaranty, would, but for the
application of this sentence, constitute a Fraudulent Conveyance, this Guaranty
and each such lien and security interest shall be valid and enforceable only to
the maximum extent that would not cause this Guaranty or such lien or security
interest to constitute a Fraudulent Conveyance, and this Guaranty shall
automatically be deemed to have been amended accordingly at all relevant
times. For purposes hereof, “Fraudulent Conveyance” means a
fraudulent conveyance under Section 548 of the “Bankruptcy Code” (as hereinafter
defined) or a fraudulent conveyance or fraudulent transfer under the provisions
of any applicable fraudulent conveyance or fraudulent transfer law or similar
law of any state, nation or other governmental unit, as in effect from time to
time.
3. Each
Guarantor hereby agrees that this Guaranty is a guaranty of payment and
performance and not of collection, and that, except as hereinafter provided, its
obligations under this Guaranty shall be unconditional, irrespective of (i) the
validity or enforceability of the Liabilities or any part thereof, or of any
promissory note or other document evidencing all or any part of the Liabilities,
(ii) the absence of any attempt to collect Liabilities from the Company or any
other guarantor or other action to enforce the same, (iii) the waiver or consent
by Secured Party with respect to any provision of any instrument evidencing
Liabilities, or any part thereof, or any other agreement heretofore, now or
hereafter executed by Company and delivered to Secured Party, (iv) failure by
Secured Party to take any steps to perfect and maintain its security interest
in, or to preserve its rights to, any security or collateral for Liabilities,
(v) the institution of any proceeding under Chapter 11 of Title 11 of the United
States Code (11 U.S.C. §101 et seq.), as amended (the “Bankruptcy Code”) or any
similar or analogous statutory or nonstatutory proceedings under any other law,
whether state, provincial or federal, now existing or hereafter existing for
relief of the debtors, by or against Company, (vi) Secured Party’s election in
any such proceeding of the application of Section 1111(b)(2) of the Bankruptcy
Code, (vii) any borrowing or grant of a security interest by Company as
debtor-in-possession, under Section 364 of the Bankruptcy Code, (viii) the
disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of
Secured Party’s claim(s) for repayment of Liabilities, or (ix) any other
circumstance which might otherwise constitute a legal or equitable discharge or
defense of a guarantor.
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4. Each
Guarantor hereby waives diligence, presentment, demand of payment, filing of
claims with a court in the event of receivership, insolvency or bankruptcy of
the Company, protest or notice with respect to Liabilities and all demands
whatsoever, and covenants that this Guaranty will not be discharged, except by
complete performance of the obligations and liabilities contained
herein. Upon any default by the Company as provided in any instrument
or document evidencing all or any part of Liabilities, including, without
limitation, the Note or the Debenture, Secured Party may, at its sole election,
proceed directly and at once, without notice, against any Guarantor to collect
and recover the full amount or any portion of Liabilities, without first
proceeding against the Company, or any other person, firm, or corporation, or
against any security or collateral for Liabilities.
5. Secured
Party is hereby authorized, without notice or demand and without affecting the
liability of any Guarantor, to at any time and from time to time (i) renew,
extend, accelerate or otherwise change the time for payment of, or other terms
relating to, Liabilities or otherwise modify, amend or change the terms of any
promissory note or other agreement, document or instrument now or hereafter
executed by the Company and delivered to Secured Party; (ii) accept partial
payments on Liabilities; (iii) take and hold security or collateral for the
payment of Liabilities guaranteed hereby, or for the payment of this Guaranty,
or for the payment of any other guaranties of Liabilities or other liabilities
of the Company, and exchange, enforce, waive and release any such security or
collateral; (iv) apply such security or collateral and direct the order or
manner of sale thereof as in its sole discretion it may determine; and (v)
settle, release, compromise, collect or otherwise liquidate Liabilities and any
security or collateral therefor in any manner, without affecting or impairing
the obligations of any Guarantor hereunder. Secured Party shall have
the exclusive right to determine the time and manner of application of any
payments or credits, whether received from the Company or any other source, and
such determination shall be binding on each Guarantor. All such
payments and credits may be applied, reversed and reapplied, in whole or in
part, to any of the Liabilities as Secured Party shall determine in its sole
discretion without affecting the validity or enforceability of this
Guaranty.
6. To
secure the payment and performance of the Liabilities, including the obligations
and liabilities contained herein, each Guarantor has granted to Secured Party a
security interest pursuant to a Security Agreement dated as of even date
herewith among the Company, each Guarantor and Secured Party (the “Security Agreement”) in all
property of Guarantor. Guarantor agrees that Secured Party shall have
the rights and remedies of a secured party under the UCC (as defined in the
Security Agreement), as now existing or hereafter amended, with respect to all
of the aforesaid property, including without limitation thereof, the right to
sell or otherwise dispose of any or all of such property and apply the proceeds
of such sale to the payment of Liabilities. In addition, Secured
Party may, in its sole discretion, without notice to Guarantor and regardless of
the acceptance of any security or collateral for the payment hereof, appropriate
and apply toward the payment of Liabilities (i) any indebtedness due or to
become due from Secured Party to Guarantor, and (ii) any moneys, credits or
other property belonging to Guarantor, at any time held by or coming into the
possession of Secured Party, whether for deposit or otherwise.
7. Each
Guarantor hereby assumes responsibility for keeping itself informed of the
financial condition of the Company, and any and all endorsers and/or other
guarantors of any instrument or document evidencing all or any part of
Liabilities and of all other circumstances bearing upon the risk of nonpayment
of Liabilities or any part thereof that diligent inquiry would reveal, and each
Guarantor hereby agrees that Secured Party shall not have any duty to advise
Guarantor of information known to Secured Party regarding such condition or any
such circumstances or to undertake any investigation not a part of its regular
business routine. If Secured Party, in its sole discretion,
undertakes at any time or from time to time to provide any such information to
any Guarantor, Secured Party shall be under no obligation to update any such
information or to provide any such information to Guarantor on any subsequent
occasion.
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8. Each
Guarantor consents and agrees that Secured Party shall be under no obligation to
marshal any assets in favor of Guarantor or against or in payment of any or all
of Liabilities. Each Guarantor further agrees that, to the extent
that the Company make a payment or payments to Secured Party, or Secured Party
receives any proceeds of collateral, which payment or payments or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside and/or required to be repaid to the Company, its estate, trustee,
receiver or any other party, including, without limitation, Guarantor, under any
bankruptcy law, state, provincial or federal law, common law or equitable
theory, then to the extent of such payment or repayment, Liabilities or the part
thereof which has been paid, reduced or satisfied by such amount, and
Guarantor’s obligations hereunder with respect to such portion of Liabilities,
shall be reinstated and continued in full force and effect as of the date such
initial payment, reduction or satisfaction occurred.
9. Each
Guarantor agrees that any and all claims of any Guarantor against the Company,
any endorser or any other guarantor of all or any part of Liabilities, or
against Company’s properties, whether arising by reason of any payment by any
Guarantor to Secured Party pursuant to the provisions hereof, or otherwise,
shall be subordinate and subject in right of payment to the prior payment, in
full, of all of Liabilities.
10. Secured
Party may, without notice to anyone, sell or assign Liabilities or any part
thereof, or grant participations therein, and in any such event each and every
immediate or remote assignee or holder of, or participant in, all or any of
Liabilities shall have the right to enforce this Guaranty, by suit or otherwise
for the benefit of such assignee, holder, or participant, as fully as if herein
by name specifically given such right, but Secured Party shall have an
unimpaired right, prior and superior to that of any such assignee, holder or
participant, to enforce this Guaranty for the benefit of Secured Party, as to
any part of Liabilities retained by Secured Party.
11. This
Guaranty shall be binding upon Guarantor and upon the successors (including
without limitation, any receiver, trustee or debtor in possession of or for
Guarantor) of Guarantor and shall inure to the benefit of Secured Party and its
respective successors and assigns. Guarantor hereby represents and
warrants that it has all necessary corporate authority to execute and deliver
this Guaranty and to perform its obligations hereunder.
12. This
Guaranty shall continue in full force and effect, and Secured Party shall be
entitled to make loans and advances and extend financial accommodations to the
Company on the faith hereof until such time as Secured Party has, in writing,
notified Guarantor that all of Liabilities have been paid in full and discharged
or until Secured Party has actually received written notice from Guarantor of
the discontinuance of this Guaranty, or written notice of the dissolution of
Guarantor. In case of any discontinuance by, or dissolution of,
Guarantor (collectively, a “Termination Event”), this
Guaranty and the obligations of Guarantor and its successors or assigns, as the
case may be, shall remain in full force and effect with respect to all of
Liabilities incurred prior to the receipt by Secured Party of written notice of
the Termination Event.
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13. Wherever
possible each provision of this Guaranty shall be interpreted in such manner as
to be effective and valid under applicable law, but if any provision of this
Guaranty shall be prohibited by or invalid under such law, such provision shall
be ineffective to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of this
Guaranty.
14. THIS GUARANTY SHALL BE GOVERNED AND
CONTROLLED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK, without regard to its
conflicts of law principles.
15. Each
Guarantor irrevocably agrees that, subject to Secured Party’s sole and absolute
election, all disputes arising under this Guaranty will be submitted to
arbitration in New York, New York before a single arbitrator of the American
Arbitration Association (“AAA”). The arbitrator shall be selected by
application of the rules of the AAA, or by mutual agreement of the parties,
except that such arbitrator shall be an attorney admitted to practice law in the
State of New York. No party to this agreement will challenge the
jurisdiction or venue provisions as provided in this section. Nothing in this section shall limit the
Secured Party’s right to obtain an injunction for a breach of this Guaranty from
a court of law.
[Signature
Page Follows]
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IN
WITNESS WHEREOF, this Guaranty has been duly executed by the undersigned as of
this 2nd day of
December, 2009.
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GUARANTOR:
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FUTURE
NOW, INC.
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By:
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Print
Name:
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Title:
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INTELLECTUAL
PROPERTY LICENSING
GROUP,
INC.
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By:
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Print Name:
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Title:
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ELEMENTAL
BUSINESS, INC.
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By:
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Print
Name:
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Title:
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FUTURE
NOW CONSULTING, INC.
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By:
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Print
Name:
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Title:
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ACKNOWLEDGMENT
OF SIGNATURES
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STATE OF
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} SS
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COUNTY OF
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I,
___________________________, a Notary Public in and for the state and county
aforesaid, so hereby certify that before me this day personally appeared
_______________________, known to me to be the same person whose name is
subscribed to the foregoing Secured Continuing Unconditional Guaranty and known
to me to be the _____________________________ of the corporation that executed
the foregoing Secured Continuing Unconditional Guaranty, and acknowledged to me
that he executed and delivered the foregoing consent as his free and voluntary
act, for the uses set forth therein.
IN
WITNESS WHEREOF, I have hereunto set my hand and official seal this ______ day
of December, 2009.
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Notary
Public
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My Commission Expires:
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ACKNOWLEDGMENT
OF SIGNATURES
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STATE OF
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} SS
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COUNTY OF
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}
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I,
___________________________, a Notary Public in and for the state and county
aforesaid, so hereby certify that before me this day personally appeared
_______________________, known to me to be the same person whose name is
subscribed to the foregoing Secured Continuing Unconditional Guaranty and known
to me to be the _____________________________ of the corporation that executed
the foregoing Secured Continuing Unconditional Guaranty, and acknowledged to me
that he executed and delivered the foregoing consent as his free and voluntary
act, for the uses set forth therein.
IN
WITNESS WHEREOF, I have hereunto set my hand and official seal this ______ day
of December, 2009.
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Notary
Public
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My Commission Expires:
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ACKNOWLEDGMENT
OF SIGNATURES
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STATE OF
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} SS
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COUNTY OF
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}
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I,
___________________________, a Notary Public in and for the state and county
aforesaid, so hereby certify that before me this day personally appeared
_______________________, known to me to be the same person whose name is
subscribed to the foregoing Secured Continuing Unconditional Guaranty and known
to me to be the _____________________________ of the corporation that executed
the foregoing Secured Continuing Unconditional Guaranty, and acknowledged to me
that he executed and delivered the foregoing consent as his free and voluntary
act, for the uses set forth therein.
IN
WITNESS WHEREOF, I have hereunto set my hand and official seal this ______ day
of December, 2009.
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Notary
Public
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My Commission Expires:
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ACKNOWLEDGMENT
OF SIGNATURES
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STATE OF
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}
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} SS
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COUNTY OF
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}
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I,
___________________________, a Notary Public in and for the state and county
aforesaid, so hereby certify that before me this day personally appeared
_______________________, known to me to be the same person whose name is
subscribed to the foregoing Secured Continuing Unconditional Guaranty and known
to me to be the _____________________________ of the corporation that executed
the foregoing Secured Continuing Unconditional Guaranty, and acknowledged to me
that he executed and delivered the foregoing consent as his free and voluntary
act, for the uses set forth therein.
IN
WITNESS WHEREOF, I have hereunto set my hand and official seal this ______ day
of December, 2009.
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Notary
Public
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My Commission Expires:
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