GUARANTY OF PAYMENT
THIS
GUARANTY OF PAYMENT (this "Guaranty") is made as of the 21st
day of
December, 2006, by IELEMENT,
INC.,
a
corporation organized and existing under the laws of the state of Nevada (he
"Guarantor"), in favor of ROCKLAND CREDIT FINANCE LLC, a Maryland limited
liability company (the "Factor").
RECITALS
A.
Upon
the terms and subject to the conditions of a Master Factoring Agreement of
even
date herewith (as the same may from time to time be amended, restated,
supplemented, or otherwise modified, the "Master Factoring Agreement") between
U.S.
Wireless Online, Inc.,
a
Nevada corporation, (the "Assignor") and the Factor, the Assignor and the Factor
have entered into a financing arrangement (the "Factoring Arrangement") pursuant
to which the Assignor desires to sell its accounts receivable to Factor from
time to time. As used in this Guaranty, the term "Factoring Document" means
the
Master Factoring Agreement, any invoice evidencing an Assigned Account (as
defined in the Master Factoring Agreement), any instrument of assignment
evidencing the sale of an Assigned Account to the Factor, and any other
instrument, agreement, report or information previously, simultaneously, or
hereafter executed and/or delivered by the Assignor, the Guarantor, or any
other
person as evidence of, security for, guaranty of, or in connection with, the
Factoring Arrangement.
B.
The
Factor has required this Guaranty as a condition to entering into the Master
Factoring Agreement and making advances to Assignor thereunder. The Guarantor
has a direct or indirect financial interest in Assignor and is willing to
provide this Guaranty upon the terms and conditions set forth
below.
NOW,
THEREFORE, in order to induce the Factor to enter into the Master Factoring
Agreement with the Assignor and to make advances to the Assignor thereunder,
the
Guarantor covenants and agrees as follows:
GUARANTY
(CORPORATE) REV. 8-1-05
1. Guaranty.
The
Guarantor hereby unconditionally and irrevocably guarantees to the Factor the
payment of any and all present and future obligations of the Assignor to the
Factor arising pursuant to and/or on account of the provisions of any of the
Factoring Documents including, without limitation, all of the Obligations as
defined in the Master Factoring Agreement (collectively, the "Guaranteed
Liabilities"). This Guaranty is a guaranty of payment and not of collectability
and is in no way conditioned upon or limited by: (a) any attempt to collect
from
the Assignor; (b) any attempt to collect from any other person who is or may
be
liable under any of the Factoring Documents (any "Secondary Obligor"); or (c)
any resort or recourse to or against any collateral pledged, assigned, or
granted to the Factor. If the Assignor fails to pay any of the Guaranteed
Liabilities, when and as the same shall become due and payable, the Guarantor
shall on demand pay the same to the Factor in immediately available funds,
in
lawful money of the United States of America.
2. Nature
of Obligations.
The
obligations and liabilities of the Guarantor under this Guaranty are primary,
continuing, absolute, unconditional, shall remain in full force and effect
until
all of the Guaranteed Liabilities are indefeasibly paid in full, shall not
be
subject to any counterclaim, recoupment, set-off, or defense based upon any
claim that the Guarantor may have against the Assignor, are independent of
any
other guaranty in effect with respect to all or any part of the Guaranteed
Liabilities, and may be enforced regardless of the existence of such other
guaranty. This Guaranty shall continue to be effective, or be reinstated, as
the
case may be, if at any time any payment, or any part thereof, of any of the
Guaranteed Liabilities is rescinded or must otherwise be restored or returned
by
the Factor upon the insolvency, bankruptcy, receivership, dissolution,
liquidation or reorganization of the Assignor or any Secondary Obligor, or
upon
or as a result of the appointment of a receiver, intervenor or conservator
of,
or trustee or similar officer for, the Assignor or any Secondary Obligor or
any
substantial part of the property of the Assignor or any Secondary Obligor,
or
otherwise, all as though such payment had not been made. The obligations of
the
Guarantor hereunder shall not be affected, impaired, lessened, modified, waived,
and/or released by the invalidity or unenforceability of any or all of the
Factoring Documents. The Guarantor hereby consents that at any time and from
time to time, the Factor may, without in any manner affecting, impairing, and/or
releasing any or all of the obligations of the Guarantor under this Guaranty,
do
any one or more of the following, all without notice to or further consent
of
the Guarantor: (a) renew, extend, and/or change the terms for payment of any
of
the Guaranteed Liabilities; (b) extend and/or change terms for performance
of
any other obligations, or agreements under the Factoring Documents of any party
to the Factoring Documents; (c) modify, amend, compromise, settle, substitute,
exchange, sell, assign, collect, release, terminate, waive, and/or otherwise
deal with in any manner satisfactory to the Factor (i) the provisions of any
or
all of the Factoring Documents, (ii) any or all of the Guaranteed Liabilities,
(iii) any or all of the Secondary Obligors, and (iv) any or all property now
or
hereafter serving as collateral for any or all of the Guaranteed Liabilities;
(d) receive additional property as collateral for any or all of the Guaranteed
Liabilities; (e) fail, omit, lack diligence, or delay to enforce, assert, or
exercise any right, power, privilege, or remedy conferred upon the Factor under
the provisions of any of the Factoring Documents or under applicable laws;
(f)
take action or omit to take action under, or in respect of, any or all of the
Factoring Documents; and (g) apply any payment received on account of the
Guaranteed Liabilities to the Guaranteed Liabilities in whatever order and
manner the Factor elects.
3. Waiver
by Guarantor.
To the
maximum extent permitted by law, the Guarantor unconditionally waives (a) notice
of the execution and delivery of the Factoring Documents; (b) notice of the
Factor's reliance on this Guaranty or the creation of any of the Guaranteed
Liabilities; (c) presentment, demand, dishonor, protest, notice of non-payment,
and notice of dishonor; (d) all notices required by statute, rule of law, or
otherwise to preserve any rights against the Guarantor, hereunder or under
any
of the Factoring Documents, including, without limitation, any demand, proof,
or
notice of non-payment of any of the Guaranteed Liabilities and notice of any
failure or default on the part of the Assignor or any of the Secondary Obligors
to perform or comply with any term of any of the Factoring Documents; or (e)
any
right or claim the Guarantor may now or hereafter have with respect to any
such
payment against the Assignor or any Secondary Obligor arising by way of
subrogation, reimbursement or indemnity. All
present and future debts and obligations of the Assignor to the Guarantor are
hereby waived and postponed in favor of and are hereby subordinated to the
full
payment of all Guaranteed Liabilities to the Factor.
4. Enforcement
Expenses.
The
Guarantor shall indemnify and hold harmless the Factor against any loss,
liability, or expense, including attorneys' fees and disbursements and any
other
fees and disbursements, that may result from any failure of the Assignor to
pay
any of the Guaranteed Liabilities when and as due and payable or that may be
incurred by or on behalf of the Factor in enforcing any obligation of the
Assignor or of any of the Secondary Obligors to pay any of the Guaranteed
Liabilities and any obligations and liabilities of the Guarantor hereunder.
5. Confession
of Judgment.
At any
time after an Event of Default under this Guaranty, the Guarantor hereby
authorizes and empowers any attorney or clerk of any court of record within
the
United States of America to appear for the Guarantor in any court (subject
to
Paragraph 11 hereof) in one or more proceedings or before any clerk thereof,
and
confess judgment against the Guarantor without prior notice or opportunity
for
prior hearing, in favor of the Factor for an amount equal to the then unpaid
balance of the Guaranteed Liabilities (whether then due or not), plus interest
due and payable by the Guarantor as set forth herein, all other amounts due
and
payable by the Guarantor hereunder, costs of suit, and attorneys' fees of ten
percent (10%) of such unpaid balance of the Guaranteed Liabilities. As used
herein, “Event of Default” means (a) the occurrence of any Event of Default
under and as defined in the Factoring Agreement and/or (b) the failure of the
Guarantor to pay to the Factor as and when due and payable any and all amounts
payable by the Guarantor to the Factor under the provisions of this Guaranty.
6. Delay
and Waiver by Factor.
No
delay in the exercise of, or failure to exercise, any right, remedy, or power
under this Guaranty shall impair any such right, remedy, or power or shall
be
construed to be a waiver thereof, but any such right, remedy, or power may
be
exercised from time to time and as often as may be deemed by the Factor
expedient. In order to entitle the Factor to exercise any right, remedy, or
power reserved to it in this Guaranty, it shall not be necessary to give any
notice to the Guarantor. If the Guarantor should default in the performance
of
any obligation under this Guaranty, and such default should thereafter be waived
by the Factor, such waiver shall be limited to the particular default so waived.
No waiver, amendment, release, or modification of this Guaranty shall be
established by conduct, custom, or course of dealing.
7. Notices
and Communications.
Notices
shall be deemed given hereunder when sent or dispatched by certified or
registered mail or private overnight express mail, postage or charges prepaid,
or by facsimile copy, (i) if to the Guarantor, to the address set forth below
under the Guarantor’s signature hereto and (ii) if to the Factor, to the
following address:
Rockland
Credit Finance LLC
Attn:
Xxxx Xxx
0
Xxxx
Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Fax
#:
000-000-0000
or
to
such other notice address as a party may designate by written notice to the
other party.
8. Assignment.
The
Factor may, without notice to, or consent of the Guarantor, sell, assign, or
transfer to any person or persons all or any part of the Guaranteed Liabilities,
and each such person or persons shall have the right to enforce this Guaranty
as
fully as the Factor, provided that the Factor shall continue to have the
unimpaired right to enforce this Guaranty as to so much of the Guaranteed
Liabilities that it has not sold, assigned, or transferred.
9. Successors
and Assigns.
All
covenants and agreements of the Guarantor set forth in this Guaranty shall
bind
the Guarantor and its heirs, personal representatives, successors, and assigns
and shall inure to the benefit of, and be enforceable by, the Factor and its
successors and assigns, including, without limitation, any holder of any or
all
of the Factoring Documents.
10. Entire
Agreement.
This
Guaranty constitutes the entire agreement of the Guarantor with respect to
the
subject matter hereof. The Guarantor acknowledges and confirms that the Factor
has made no warranty or representation to the Guarantor relating to this
Guaranty or its enforcement. The Factor’s rights hereunder shall not be
affected, modified or abrogated in any way by any prior agreement, understanding
or discussion between the parties relating to the subject matter hereof, all
of
which (if any) are hereby terminated and superseded by this
Guaranty.
11. Venue
and Jurisdiction.
Any
judicial proceeding to enforce this Guaranty may be brought by the Factor
against the Guarantor, in Baltimore, Maryland, or, at the Factor’s sole and
exclusive option, in any other jurisdiction permitted by law. For purposes
of
any such proceeding, the Guarantor hereby irrevocably consents, submits, and
waives any and all objections to the personal jurisdiction of the state and
federal courts of the State of Maryland over Guarantor.
12. Miscellaneous.
Neither
this Guaranty nor any term hereof may be terminated, amended, supplemented,
waived, released, or modified orally, but only by an instrument in writing
signed by the party against which the enforcement of the termination, amendment,
supplement, waiver, release, or modification is sought. Whenever used herein,
the singular number shall include the plural, the plural the singular, and
the
use of the masculine, feminine, or neuter gender shall include all genders.
Whenever used herein, the word "person" or "persons" shall mean and include
a
corporation, an association, a partnership, an organization, a business, an
individual, a government or political subdivision or agency thereof, or an
estate or trust. This Guaranty shall in all respects be deemed to be made in,
and governed by, construed and enforced in accordance with the laws of, the
State of Maryland. The Factor shall have the right to grant participations
in
the Guaranteed Liabilities to others at any time and from time to time, and
the
Factor may divulge to any such participant or potential participant all
information, reports, financial statements, and documents obtained in connection
with this Guaranty, any of the Factoring Documents, or otherwise. If any term
of
this Guaranty or any obligation thereunder shall be held to be invalid, illegal,
or unenforceable, the remainder of this Guaranty and any other application
of
such term shall not be affected thereby. The paragraph and Paragraph headings
of
this Guaranty have been inserted for convenience only and shall not modify,
define, limit, or expand the express provisions hereof. This Guaranty may be
executed in duplicate originals or in several counterparts, each of which shall
be deemed an original but all of which together shall constitute one instrument,
and it shall not be necessary in making proof hereof to produce or account
for
more than one such duplicate original or counterpart.
GUARANTY
(CORPORATE) REV. 8-1-05
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
13. WAIVER
OF RIGHT TO TRIAL BY JURY.
ANY SUIT, ACTION OR PROCEEDING TO ENFORCE OR OTHERWISE RELATING TO THIS GUARANTY
SHALL BE TRIED ONLY BY A COURT AND NOT BY A JURY. THE GUARANTOR HEREBY
KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY
IN
ANY SUCH SUIT, ACTION OR PROCEEDING.
IN
WITNESS WHEREOF, the Guarantor has signed, sealed, and delivered this Guaranty
as of the day and year first written above.
WITNESS:
_____________________________________________
|
IELEMENT,
INC.
By__________________________________________(SEAL)
Name:
Title:
Address:__________________________________________
__________________________________________________
__________________________________________________
Fax
#:____________________________________________
|
State
of
________________)
) TO WIT:
County
of
_______________)
I
HEREBY
CERTIFY, that on this
day of
December, 2006, before me, a Notary Public of said State, personally appeared
__________________
____,
as
_________________________ and on behalf of the within named Guarantor, known
to
me (or satisfactorily proven) to be the person whose name is subscribed to
the
foregoing instrument and acknowledged that he/she executed the same for the
purposes therein contained.
WITNESS
my hand and Notarial Seal.
Notary
Public
My
Commission Expires: