INDIVIDUAL GUARANTEE
EXHIBIT
G
August
22, 2008
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To:
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The
Purchasers Identified on the Signature Pages of the Securities Purchase
Agreement Referred to Below
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In
consideration of the terms and conditions contained in this Agreement, and
other
good and consideration, the receipt and sufficiency of which is hereby
acknowledged, the undersigned, intending to be legally bound, agrees as
follows:
1. The
Guarantee.
For
valuable consideration, the undersigned (the “Guarantor”) hereby unconditionally
guarantees and promises to pay promptly to the purchasers identified on the
signature pages to the Securities Purchase Agreement, dated as of August 22,
2008 (the “Securities Purchase Agreement”), among Adrenalina, a Nevada
corporation (the “Borrower”) and each such purchaser (each, including its
successors and assigns, a “Purchaser” and collectively, the “Purchasers”), in
lawful money of the United States, any and all Indebtedness (as defined below)
of Borrower to each Purchaser when due, whether at stated maturity, upon
acceleration or otherwise, and at all times thereafter. The liability of
Guarantor is continuing and relates to any Indebtedness, including that arising
under successive transactions which shall either continue the Indebtedness
or
from time to time renew it after it has been satisfied. All payments made by
Guarantor to or for the account of any Purchaser hereunder shall be made by
wire
transfer of immediately available funds to the account set forth on Schedule
1
to this Guarantee, or in such other manner as Purchasers shall hereafter advise
Guarantor.
2. Definitions.
(a) “Indebtedness”
shall mean the collective reference to all obligations and undertakings of
the
Borrower of whatever nature, monetary or otherwise, under the Debentures, the
Securities Purchase Agreement, the Security Agreement, the Warrants, the
Registration Rights Agreements or any other Transaction Document, together
with
all reasonable attorneys’ fees, disbursements and all other costs and expenses
of collection incurred by the Purchasers in enforcing any of such obligations
or
this Guarantee. For clarity, this Guarantee shall not extend to the November
Debentures or the February Debentures of the Borrower.
(b) Capitalized
terms used in this Guarantee without definition have the meanings ascribed
to
them in the Securities Purchase Agreement.
3. Obligations
Independent.
The
obligations hereunder are independent of the obligations of Borrower or any
other guarantor, and a separate action or actions may be brought and prosecuted
against Guarantor whether action is brought against Borrower or any other
guarantor or whether Borrower or any other guarantor be joined in any such
action or actions.
4. Rights
of Purchasers.
Guarantor authorizes Purchasers, without notice or demand and without affecting
its liability hereunder, from time to time to:
(a) subject
to the terms of the Transaction Documents, renew, compromise, extend,
accelerate, or otherwise change the time for payment, or otherwise change the
terms, of the Indebtedness or any part thereof, including increase or decrease
of the rate of interest thereon, or otherwise change the terms of any
Transaction Document;
(b) subject
to the terms of the Transaction Documents, receive and hold security for the
payment of this Guarantee or any Indebtedness and exchange, enforce, waive,
release, fail to perfect, sell, or otherwise dispose of any such
security;
(c) subject
to the terms of the Security Agreements, apply such security and direct the
order or manner of sale thereof as Purchasers in their discretion may determine;
and
(d) release
or substitute the Guarantor or any one or more of any endorsers or other
guarantors of any of the Indebtedness.
All
actions, notices, requests or demands that Purchasers or any Purchaser may
take
or make pursuant to the provisions of this Guarantee, shall be taken or made
by
and through Enable Capital Management, LLC.
5. Guarantee
to be Absolute.
Guarantor agrees that until all the Indebtedness has been indefeasibly paid
in
full and any commitments of any Purchaser or facilities provided by any
Purchaser with respect to the Indebtedness have been terminated, Guarantor
shall
not be released by or because of the taking, or failure to take, any action
that
might in any manner or to any extent vary the risks of Guarantor under this
Guarantee or that, but for this paragraph, might discharge or otherwise reduce,
limit, or modify Guarantor’s obligations under this Guarantee. Guarantor waives
and surrenders any defense to any liability under this Guarantee based upon
any
such action, including but not limited to any action of Purchasers described
in
the immediately preceding paragraph of this Guarantee. It is the express intent
of Guarantor that Guarantor’s obligations under this Guarantee are and shall be
absolute and unconditional.
6. Guarantor’s
Waivers of Certain Rights and Certain Defenses.
Guarantor waives:
(a) any
right
to require Purchasers to proceed against Borrower, proceed against or exhaust
any security for the Indebtedness, or pursue any other remedy in Purchaser’s
power whatsoever;
(b) any
defense arising by reason of any disability or other defense of Borrower, or
the
cessation from any cause whatsoever of the liability of Borrower;
and
(c) any
defense based on any claim that Guarantor’s obligations exceed or are more
burdensome than those of Borrower.
No
provision or waiver in this Guarantee shall be construed as limiting the
generality of any other waiver contained in this Guarantee.
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7. Subordination
and Subordination of Subrogation.
The
Guarantor hereby agrees and affirms that his Subordination Agreement dated
February 28, 2008 in favor of the Purchasers thereunder, shall apply equally
to
the Obligations guaranteed under this Guarantee. Until all the Indebtedness
has
been indefeasibly paid in full and any commitments of any Purchaser or
facilities provided by any Purchaser with respect to the Indebtedness have
been
terminated, even though the Indebtedness may be in excess of Guarantor’s
liability hereunder, ▇▇▇▇▇▇▇▇▇ agrees to subordinate to the rights of the
Purchasers any right of subrogation, reimbursement, indemnification, and
contribution (contractual, statutory, or otherwise) including, without
limitation, any claim or right of subrogation under the Bankruptcy Code (Title
11, United States Code) or any successor statute, arising from the existence
or
performance of this Guarantee, and until such time, Guarantor agrees to
subordinate to the rights of the Purchasers any right to enforce any remedy
that
any Purchaser now has or may hereafter have against Borrower, and agrees to
subordinate to the rights of the Purchasers any benefit of, and any right to
participate in, any security now or hereafter held by any Purchaser. Such
subordination of subrogation rights shall end at such time as all Indebtedness
has been indefeasibly paid in full.
8. Waiver
of Notices.
Except
as otherwise provided herein, Guarantor waives all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices
of
dishonor, notices of intent to accelerate, notices of acceleration, notices
of
any suit or any other action against Borrower or any other person, any other
notices to any party liable on any Transaction Document (including Guarantor),
notices of acceptance of this Guarantee, notices of the existence, creation,
or
incurring of new or additional Indebtedness to which this Guarantee applies
or
any other Indebtedness of Borrower to any Purchaser, and notices of any fact
that might increase Guarantor’s risk.
9. Subordination.
Any
obligations of Borrower to Guarantor, now or hereafter existing, including
but
not limited to any obligations to Guarantor as subrogee of the Purchasers or
resulting from Guarantor’s performance under this Guarantee, are hereby
subordinated to the Indebtedness. Guarantor agrees that, if Purchasers so
request, Guarantor shall not demand, take, or receive from Borrower, by setoff
or in any other manner, payment of any other obligations of Borrower to
Guarantor until all the Indebtedness has been indefeasibly paid in full and
any
commitments of any Purchaser or facilities provided by any Purchaser with
respect to the Indebtedness have been terminated. If any payments are received
by Guarantor in violation of such waiver or agreement, such payments shall
be
received by Guarantor as trustee for Purchasers and shall be paid over to
Purchasers on account of the Indebtedness, but without reducing or affecting
in
any manner the liability of Guarantor under the other provisions of this
Guarantee. Any security interest, lien, or other encumbrance that Guarantor
may
now or hereafter have on any property of Borrower is hereby subordinated to
any
security interest, lien, or other encumbrance that Purchasers may have on any
such property.
10. Revocation
of Guarantee.
(a) This
Guarantee may be revoked at any time by Guarantor in respect to future
transactions, unless there is a continuing consideration as to such transactions
that Guarantor does not renounce. Such revocation shall be effective upon actual
receipt by Purchasers, at the address shown below or at such other address
as
may have been provided to Guarantor by Purchasers, of written notice of
revocation. Revocation shall not affect any of Guarantor’s obligations or
Purchaser’s rights with respect to transactions committed or entered into prior
to Purchaser’s receipt of such notice, regardless of whether or not the
Indebtedness related to such transactions, before or after revocation, has
been
incurred, renewed, compromised, extended, accelerated, or otherwise changed
as
to any of its terms, including time for payment or increase or decrease of
the
rate of interest thereon, and regardless of any other act or omission of
Purchasers authorized hereunder.
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(b) In
the
event of the death of Guarantor, the liability of the estate of the deceased
Guarantor shall continue in full force and effect the Indebtedness existing
at
the date of death, and any renewals or extensions thereof.
(c) Guarantor
acknowledges and agrees that this Guarantee may be revoked only in accordance
with the foregoing provisions of this paragraph and shall not be revoked simply
as a result of any change in name, location, or composition or structure of
Borrower, the dissolution of Borrower, or the termination, increase, decrease,
or other change of any personnel or owners of Borrower.
11. Reinstatement
of Guarantee.
If this
Guarantee is revoked, returned, or canceled, and subsequently any payment or
transfer of any interest in property by Borrower to any Purchaser is rescinded
or must be returned by any Purchaser to Borrower, this Guarantee shall be
reinstated with respect to any such payment or transfer, regardless of any
such
prior revocation, return, or cancellation.
12. Stay
of Acceleration.
In the
event that acceleration of the time for payment of any of the Indebtedness
is
stayed upon the insolvency, bankruptcy, or reorganization of Borrower or
otherwise, all such Indebtedness guaranteed by Guarantor shall nonetheless
be
payable by Guarantor immediately if requested by Purchasers.
13. Information
Relating to Borrower.
Guarantor acknowledges and agrees that it shall have the sole responsibility
for, and has adequate means of, obtaining from Borrower such information
concerning Borrower’s financial condition or business operations as Guarantor
may require, and that Purchasers have no duty, and Guarantor is not relying
on
Purchasers, at any time to disclose to Guarantor any information relating to
the
business operations or financial condition of Borrower.
14. Borrower’s
Authorization.
It is
not necessary for Purchasers to inquire into the powers of Borrower or of the
officers, directors or agents acting or purporting to act on its behalf, and
any
Indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder.
15. Additional
Collateral.
Within
60 calendar days of the date hereof, the Guarantor shall provide Purchasers
with
evidence that they have a first priority security interest in that certain
real
property owned by Guarantor in the name of
publicaciones io azu. s.a.,
located
at Pochotal, Puntarenas, Costa Rica, together with an opinion of legal counsel
in Costa Rica, addressed to the Purchasers, to the effect that Guarantor is
the
fee owner of such property, and that instruments are on file in the appropriate
governmental office on Costa Rica to grant the Purchasers an enforceable first
priority lien on such property.
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16. Remedies.
If
Guarantor fails to fulfill its duty to pay all Indebtedness guaranteed
hereunder, Purchasers shall have all of the remedies of a creditor under all
applicable law. Without limiting the foregoing, Purchasers may, at their option
and without notice or demand:
(a) declare
any Indebtedness due and payable at once;
(b) take
possession of any collateral pledged by Borrower pursuant to the Security
Agreements, wherever located, and sell, resell, assign, transfer, and deliver
all or any part of the collateral in accordance with the provisions of the
Transaction Documents; and
(c) set
off
against any or all liabilities of Guarantor all money owed by any Purchaser
or
any of its agents or affiliates in any capacity to Guarantor, whether or not
due, and also set off against all other liabilities of Guarantor to any
Purchaser all money owed by such Purchaser in any capacity to Guarantor. If
exercised by any Purchaser, such Purchaser shall be deemed to have exercised
such right of setoff and to have made a charge against any such money
immediately upon the occurrence of such default although made or entered on
the
books subsequent thereto.
17. Representations
and Warranties.
Guarantor represents and warrants to the Purchasers that: (a) Guarantor has
full
power and capacity to execute and deliver this Guarantee and each other
Transaction Document to which he is a party and to incur and perform the
obligations and undertakings provided herein and therein; (b) no consent or
approval of any Governmental Authority or any third party is or will be required
as a condition to the enforceability of this Guarantee and each other
Transaction Document to which he is a party; (c) this Guarantee and each other
Transaction Document to which he is a party has been duly executed and delivered
by the Guarantor and is enforceable against the Guarantor in accordance with
the
terms hereof and thereof; (d) there is no litigation or proceeding involving
the
Guarantor pending or, to the knowledge of the Guarantor, threatened before
any
court, tribunal or governmental authority, which may in any way materially
adversely affect the financial condition or property of the Guarantor, except
as
previously disclosed to Purchasers; (e) there is no law, rule, regulation or
order pertaining to the Guarantor and no provision of any agreement, mortgage
or
contract binding on the Guarantor or affecting his property, which could
conflict with, be breached by, be in default or in any way prevent, the
execution, delivery or carrying out of the terms of this Guarantee and each
other Transaction Document to which he is a party; and (f) Guarantor has a
substantial financial interest in the Borrower and is receiving immediate,
substantial and direct benefit from the transactions contemplated by the
Transaction Documents.
18. Notices.
All
notices required under this Guarantee shall be personally delivered or sent
by
first class mail, postage prepaid, or by overnight courier, to the addresses
on
the signature page of this Guarantee, or sent by facsimile to the fax numbers
listed on the signature page, or to such other addresses as Purchasers and
Guarantor may specify from time to time in writing. Notices sent by (a) first
class mail shall be deemed delivered on the earlier of actual receipt or on
the
fourth business day after deposit in the U.S. mail, postage prepaid, (b)
overnight courier shall be deemed delivered on the next business day, and (c)
telecopy shall be deemed delivered when transmitted.
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19. Entire
Agreement.
This
Guarantee, together with the other Transaction Documents and the exhibits and
schedules thereto, contain the entire understanding of the parties with respect
to the subject matter hereof and supersede all prior agreements and
understandings, oral or written, with respect to such matters, which the parties
acknowledge have been merged into such documents, exhibits and schedules.
20. Amendments;
Waivers.
No
provision of this Guarantee may be waived or amended except in a written
instrument signed, in the case of an amendment, by the Guarantor and each
Purchaser or, in the case of a waiver, by the party against whom enforcement
of
any such waiver is sought. No waiver of any default with respect to any
provision, condition or requirement of this Guarantee shall be deemed to be
a
continuing waiver in the future or a waiver of any subsequent default or a
waiver of any other provision, condition or requirement hereof, nor shall any
delay or omission of Purchasers to exercise any right hereunder in any manner
impair the exercise of any such right.
21. Headings.
The
headings herein are for convenience only, do not constitute a part of this
Guarantee and shall not be deemed to limit or affect any of the provisions
hereof. The language used in this Guarantee will be deemed to be the language
chosen by the parties to express their mutual intent, and no rules of strict
construction will be applied against any party.
22. Successors
and Assigns.
This
Guarantee shall be binding upon Guarantor and his heirs, representatives, estate
and permitted assigns and shall inure to the benefit of the Purchasers and
their
respective successors and permitted assigns. The Guarantor may not assign this
Guarantee or any rights or obligations hereunder without the prior written
consent of each Purchaser. Any Purchaser may assign any or all of its rights
under this Guarantee to any Person to whom such Purchaser assigns or transfers
any Securities, provided such transferee agrees in writing to be bound, with
respect to the transferred Securities, by the provisions of the Purchase
Agreements that apply to the ‘Purchasers”.
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(a) Governing
Law.
All
questions concerning the construction, validity, enforcement and interpretation
of this Guarantee shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the
principles of conflicts of law thereof that would defer to the substantive
laws
of another jurisdiction. Each party agrees that all legal proceedings concerning
the interpretations, enforcement and defense of the transactions contemplated
by
this Agreement and any other Transaction Documents (whether brought against
a
party hereto or its respective affiliates, directors, officers, shareholders,
employees or agents), as well as any dispute between the parties relating to
the
Transaction Documents, shall be resolved
by binding arbitration in San Francisco, California before an arbitrator with
experience in commercial disputes relating to securities. The arbitration shall
be administered by JAMS pursuant to its Comprehensive Arbitration Rules and
Procedures, or, if for any reason JAMS refuses to administer such arbitration
or
JAMS is no longer in business, by the American Arbitration Association (“AAA”)
in accordance with its rules and procedures. Unless the arbitrator determines
that there is exceptional need for additional discovery, discovery in the
arbitration shall be limited as follows: (1) the parties
shall exchange non-privileged relevant documents including, without
limitation, all documents that the parties intend to use as evidence in the
arbitration; and (2) each party shall be entitled to take one
deposition of seven hours duration of either an opposing party or a
non-party. If one party fails to respond within 20 days after the other party
mails a written list of proposed arbitrators to that party by either agreeing
to
one of the proposed arbitrators or suggesting 3 or more alternate arbitrators,
the proposing party may select the arbitrator from among its initial list of
proposed arbitrators and JAMS (or AAA if it is administering the arbitration)
shall then appoint that arbitrator to preside over the arbitration. If the
parties are unable to agree on an arbitrator, the parties shall select an
arbitrator pursuant to the rules of JAMS (or AAA if it is administering the
arbitration). Where reasonable, the arbitrator shall schedule the
arbitration hearing within four (4) months after being appointed. The arbitrator
must render a decision in writing, explaining the legal and factual basis for
decision as to each of the principal controverted issues. The arbitrator’s
decision will be final and binding upon the parties. A judgment upon any
award may be entered in any court of competent jurisdiction. This clause shall
not preclude the parties from seeking provisional remedies in aid of
arbitration, such as injunctive relief, from any court of competent
jurisdiction. Each
party shall be responsible for advancing one-half of the costs of arbitration,
including all JAMS (or AAA) fees; provided that, in the award, the prevailing
party shall be entitled to recover all of its costs and expenses, including
reasonable attorneys’ fees and costs, arbitrator fees, JAMS (or AAA) fees and
costs, and any attorneys’ fees and costs incurred in compelling arbitration.
The parties are not waiving, and expressly reserve, any rights they may
have under federal securities laws, rules, and regulations, and any such rights
shall be determined in the arbitration provided for herein. Each
party hereby irrevocably agrees and submits to the jurisdiction of the federal
and state courts located in the City of San Francisco, California, for any
suit,
action or proceeding enforcing this arbitration provision or entering judgment
upon any arbitral award made pursuant to this arbitration provision, and
each
party
hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction
of
such courts, or that such suit, action or proceeding is an inconvenient venue.
Each party hereby irrevocably waives personal service of process and consents
to
process being served in any such suit, action or proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery (with evidence
of
delivery) to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof. Nothing contained herein shall be deemed
to limit in any way any right to serve process in any other manner permitted
by
law. This
provision will be interpreted, construed and governed according to the Federal
Arbitration Act (9 U.S.C. Sections 1 et seq.).
23. Execution.
In the
event that Guarantor’s signature is delivered by facsimile transmission, such
signature shall create a valid and binding obligation of the Guarantor with
the
same force and effect as if such facsimile signature page were an original
thereof.
24. Severability.
If any
provision of this Guarantee is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Guarantee shall not in any way be affected or impaired thereby and
the
parties will attempt to agree upon a valid and enforceable provision that is
a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Guarantee.
25. Construction.
The
parties agree that each of them and/or their respective counsel has reviewed
and
had an opportunity to revise this Guarantee and, therefore, the normal rule
of
construction to the effect that any ambiguities are to be resolved against
the
drafting party shall not be employed in the interpretation of this Guarantee
or
any amendments hereto.
(Signature
Page Follows)
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IN
WITNESS WHEREOF, the Guarantor has duly executed this Guarantee as of the date
first indicated above.
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Address
for notices to Purchasers:
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Address
for notices to Guarantor:
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c/o
Enable Capital Management, LLC
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One
Ferry Building, Suite 255
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San
Francisco, CA 94111
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Facsimile:
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Facsimile:
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Address
of primary residence (if different than notice
address):
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