EXHIBIT 10.52



 


EXHIBIT 10.52


 


GUARANTY


 


This
GUARANTY, dated as of ____, 20__ (this “Guaranty”), is made by each of the undersigned (each a “Guarantor”,
and collectively, the “Guarantors”), in favor of Hudson Bay Master Fund Ltd, a company organized under the
laws of the Cayman Islands, in its capacity as collateral agent (in such capacity, the “Collateral Agent” as
hereinafter further defined) for the “Buyers” party to the Securities Purchase Agreement (each as defined below).


 


W
I T N E S S E T H :


 


WHEREAS,
Infinity Energy Resources, Inc., a Delaware corporation, with offices located at 11900 College Blvd., Suite 310, Overland Park
KS 66210 (the “Company”) and each party listed as a “Buyer” on the Schedule of Buyers attached
thereto (collectively, the “Buyers”) are parties to the Securities Purchase Agreement, dated as of May 7, 2015
(as amended, restated, replaced or otherwise modified from time to time, the “Securities Purchase Agreement”),
pursuant to which the Company shall be required to sell, and the Buyers shall purchase or have the right to purchase, the “Notes”
issued pursuant thereto (as such Notes may be amended, restated, replaced or otherwise modified from time to time in accordance
with the terms thereof, collectively, the “Notes”);


 


WHEREAS,
the Securities Purchase Agreement requires that the Guarantors execute and deliver to the Collateral Agent, (i) a guaranty guaranteeing
all of the obligations of the Company under the Securities Purchase Agreement, the Notes and the other Transaction Documents (as
defined below); and (ii) a Security and Pledge Agreement, dated as of the date hereof, granting the Collateral Agent a lien on
and security interest in in all of their assets and properties (the “Security Agreement”); and


 


WHEREAS,
each Guarantor has determined that the execution, delivery and performance of this Guaranty directly benefits, and is in the best
interest of, such Guarantor.


 


NOW,
THEREFORE, in consideration of the premises and the agreements herein and in order to induce the Buyers to perform under the Securities
Purchase Agreement, each Guarantor hereby agrees with each Buyer as follows:


 


Section
1. Definitions. Reference is hereby made to the Securities
Purchase Agreement and the Notes for a statement of the terms thereof. All terms used in this Guaranty and the recitals hereto
which are defined in the Securities Purchase Agreement or the Notes, and which are not otherwise defined herein shall have the
same meanings herein as set forth therein. In addition, the following terms when used in the Guaranty shall have the meanings
set forth below:


 


“Bankruptcy
Code” means Chapter 11 of Title 11 of the United States Code, 11 U.S.C §§ 101 et seq. (or other applicable
bankruptcy, insolvency or similar laws).


 


“Business
Day” means any day other than Saturday, Sunday or other day on which commercial banks in New York City are authorized
or required by law to remain closed.


 


“Buyer”
or “Buyers” shall have the meaning set forth in the recitals hereto.


 



    	 



    	 



    








  


“Capital
Stock” means (i) with respect to any Person that is a corporation, any and all shares, interests, participations or
other equivalents (however designated and whether or not voting) of corporate stock (including, without limitation, any warrants,
options, rights or other securities exercisable or convertible into equity interests or securities of such Person), and (ii) with
respect to any Person that is not a corporation, any and all partnership, membership or other equity interests of such Person.


 


“Collateral”
means all assets and properties of the Company and each Guarantor, wherever located and whether now or hereafter existing
and whether now owned or hereafter acquired, of every kind and description, tangible or intangible, including, without limitation,
the collateral described in Section 2 of the Security Agreement.


 


“Collateral
Agent” shall have the meaning set forth in the recitals hereto.


 


“Company”
shall have the meaning set forth in the recitals hereto.


 


“Governmental
Authority” means any nation or government, any Federal, state, city, town, municipality, county, local, foreign or other
political subdivision thereof or thereto and any department, commission, board, bureau, instrumentality, agency or other entity
exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.


 


“Guaranteed
Obligations” shall have the meaning set forth in Section 2 of this Guaranty.


 


“Guarantor”
or “Guarantors” shall have the meaning set forth in the recitals hereto.


 


“Indemnified
Party” shall have the meaning set forth in Section 13(a) of this Guaranty


 


“Insolvency
Proceeding” means any proceeding commenced by or against any Person under any provision of the Bankruptcy Code or under
any other bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria, compositions,
or extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief.


 


“Notes”
shall have the meaning set forth in the recitals hereto.


 


“Obligations”
shall have the meaning set forth in Section 3 of the Security Agreement.





 


“Other
Taxes” shall have the meaning set forth in Section 12(a)(iv) of this Guaranty.


 


“Paid
in Full” or “Payment in Full” means the indefeasible payment in full in cash of all of the Guaranteed Obligations.


 


“Person”
means an individual, corporation, limited liability company, partnership, association, joint-stock company, trust, unincorporated
organization, joint venture or other enterprise or entity or Governmental Authority.


 


“Securities
Purchase Agreement” shall have the meaning set forth in the recitals hereto.


 







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“Security
Agreement” shall have the meaning set forth in the recitals hereto.


 


“Subsidiary”
means any Person in which a Guarantor directly or indirectly, (i) owns any of the outstanding Capital Stock or holds any equity
or similar interest of such Person or (ii) controls or operates all or any part of the business, operations or administration
of such Person, and all of the foregoing, collectively, “Subsidiaries”.


 


“Taxes”
shall have the meaning set forth in Section 12(a) of this Guaranty.


 


“Transaction
Party” means the Company and each Guarantor, collectively, “Transaction Parties”.


 


Section
2. Guaranty.


 


(a)
The Guarantors, jointly and severally, hereby unconditionally and irrevocably, guaranty to the Collateral Agent, for the benefit
of the Collateral Agent and the Buyers, the punctual payment, as and when due and payable, by stated maturity or otherwise, of
all Obligations, including, without limitation, all interest, make-whole and other amounts that accrue after the commencement
of any Insolvency Proceeding of the Company or any Guarantor, whether or not the payment of such interest, make-whole and/or other
amounts are enforceable or are allowable in such Insolvency Proceeding, and all fees, interest, premiums, penalties, causes of
actions, costs, commissions, expense reimbursements, indemnifications and all other amounts due or to become due under any of
the Transaction Documents (all of the foregoing collectively being the “Guaranteed Obligations”), and agrees
to pay any and all costs and expenses (including counsel fees and expenses) incurred by the Collateral Agent in enforcing any
rights under this Guaranty or any other Transaction Document. Without limiting the generality of the foregoing, each Guarantor’s
liability hereunder shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by the Company
to the Collateral Agent or any Buyer under the Securities Purchase Agreement and the Notes but for the fact that they are unenforceable
or not allowable due to the existence of an Insolvency Proceeding involving any Transaction Party.


 


(b)
Each Guarantor, and by its acceptance of this Guaranty, the Collateral Agent and each Buyer, hereby confirms that it is the intention
of all such Persons that this Guaranty and the Guaranteed Obligations of each Guarantor hereunder not constitute a fraudulent
transfer or conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer
Act or any similar foreign, federal, provincial, state, or other applicable law to the extent applicable to this Guaranty and
the Guaranteed Obligations of each Guarantor hereunder. To effectuate the foregoing intention, the Collateral Agent, the Buyers
and the Guarantors hereby irrevocably agree that the Guaranteed Obligations of each Guarantor under this Guaranty at any time
shall be limited to the maximum amount as will result in the Guaranteed Obligations of such Guarantor under this Guaranty not
constituting a fraudulent transfer or conveyance.


 


Section
3. Guaranty Absolute; Continuing Guaranty; Assignments. 


 


(a)
The Guarantors, jointly and severally, guaranty that the Guaranteed Obligations will be paid strictly in accordance with the terms
of the Transaction Documents, 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 Collateral Agent or any Buyer with respect thereto. The obligations of each Guarantor under
this Guaranty are independent of the Guaranteed Obligations, and a separate action or actions may be brought and prosecuted against
any Guarantor to enforce such obligations, irrespective of whether any action is brought against any Transaction Party or whether
any Transaction Party is joined in any such action or actions. The liability of any Guarantor under this Guaranty shall be as
a primary obligor (and not merely as a surety) and shall be irrevocable, absolute and unconditional irrespective of, and each
Guarantor hereby irrevocably waives, to the extent permitted by law, any defenses it may now or hereafter have in any way relating
to, any or all of the following:


 




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(i)
any lack of validity or enforceability of any Transaction Document;


 


(ii)
any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations, or any
other amendment or waiver of or any consent to departure from any Transaction Document, including, without limitation, any increase
in the Guaranteed Obligations resulting from the extension of additional credit to any Transaction Party or extension of the maturity
of any Guaranteed Obligations or otherwise;


 


(iii)
any taking, exchange, release or non-perfection of any Collateral;


 


(iv)
any taking, release or amendment or waiver of or consent to departure from any other guaranty, for all or any of the Guaranteed
Obligations;


 


(v)
any change, restructuring or termination of the corporate, limited liability company or partnership structure or existence of
any Transaction Party; 


 


(vi)
any manner of application of Collateral or any other collateral, or proceeds thereof, to all or any of the Guaranteed Obligations,
or any manner of sale or other disposition of any Collateral or any other collateral for all or any of the Guaranteed Obligations
or any other Obligations of any Transaction Party under the Transaction Documents or any other assets of any Transaction Party
or any of its Subsidiaries;


 


(vii)
any failure of the Collateral Agent or any Buyer to disclose to any Transaction Party any information relating to the business,
condition (financial or otherwise), operations, performance, properties or prospects of any other Transaction Party now or hereafter
known to the Collateral Agent or any Buyer (each Guarantor waiving any duty on the part of the Collateral Agent or any Buyer to
disclose such information);


 


(viii)
taking any action in furtherance of the release of any Guarantor or any other Person that is liable for the Obligations from all
or any part of any liability arising under or in connection with any Transaction Document without the prior written consent of
the Collateral Agent; or


 


(ix)
any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation
by the Collateral Agent or any Buyer that might otherwise constitute a defense available to, or a discharge of, any Transaction
Party or any other guarantor or surety.


 







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(b)
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 Guaranteed
Obligations is rescinded or must otherwise be returned by the Collateral Agent, any Buyer, or any other Person upon the insolvency,
bankruptcy or reorganization of any Transaction Party or otherwise, all as though such payment had not been made.


 


(c)
This Guaranty is a continuing guaranty and shall (i) remain in full force and effect until Payment in Full of the Guaranteed Obligations
(other than inchoate indemnity obligations) and shall not terminate for any reason prior to the respective Maturity Date of each
Note (other than Payment in Full of the Guaranteed Obligations) and (ii) be binding upon each Guarantor and its respective successors
and assigns. This Guaranty shall inure to the benefit of and be enforceable by the Collateral Agent, the Buyers, and their respective
successors, and permitted pledgees, transferees and assigns. Without limiting the generality of the foregoing sentence, the Collateral
Agent or any Buyer may pledge, assign or otherwise transfer all or any portion of its rights and obligations under and subject
to the terms of any Transaction Document to any other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to the Collateral Agent or such Buyer (as applicable) herein or otherwise, in each case as
provided in the Securities Purchase Agreement or such Transaction Document.


 


Section
4. Waivers. To the extent permitted by applicable law, each
Guarantor hereby waives promptness, diligence, protest, notice of acceptance and any other notice or formality of any kind with
respect to any of the Guaranteed Obligations and this Guaranty and any requirement that the Collateral Agent exhaust any right
or take any action against any Transaction Party or any other Person or any Collateral. Each 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 4 is knowingly made in contemplation of such benefits. The Guarantors hereby waive any right to revoke this Guaranty,
and acknowledge that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether existing now or
in the future. Without limiting the foregoing, to the extent permitted by applicable law, each Guarantor hereby unconditionally
and irrevocably waives (a) any defense arising by reason of any claim or defense based upon an election of remedies by the
Collateral Agent or any Buyer that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement,
exoneration, contribution or indemnification rights of such Guarantor or other rights of such Guarantor to proceed against any
of the other Transaction Parties, any other guarantor or any other Person or any Collateral, and (b) any defense based on
any right of set-off or counterclaim against or in respect of the Guaranteed Obligations of such Guarantor hereunder. Each Guarantor
hereby unconditionally and irrevocably waives any duty on the part of the Collateral Agent or any Buyer to disclose to such Guarantor
any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or
prospects of any other Transaction Party or any of its Subsidiaries now or hereafter known by the Collateral Agent or a Buyer.


 


Section
5. Subrogation. No Guarantor may exercise any rights that
it may now or hereafter acquire against any Transaction Party or any other guarantor that arise from the existence, payment, performance
or enforcement of any Guarantor’s obligations under this Guaranty, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any right to participate in any claim or remedy of the Collateral
Agent or any Buyer against any Transaction Party or any other guarantor or any Collateral, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from
any Transaction Party or any other guarantor, directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security solely on account of such claim, remedy or right, unless and until there has been Payment in Full
of the Guaranteed Obligations. If any amount shall be paid to a Guarantor in violation of the immediately preceding sentence at
any time prior to Payment in Full of the Guaranteed Obligations and all other amounts payable under this Guaranty, such amount
shall be held in trust for the benefit of the Collateral Agent and shall forthwith be paid to the Collateral Agent to be credited
and applied to the Guaranteed Obligations and all other amounts payable under this Guaranty, whether matured or unmatured, in
accordance with the terms of the Transaction Document, or to be held as Collateral for any Guaranteed Obligations or other amounts
payable under this Guaranty thereafter arising. If (a) any Guarantor shall make payment to the Collateral Agent of all or
any part of the Guaranteed Obligations, and (b) there has been Payment in Full of the Guaranteed Obligations, the Collateral Agent
will, at such Guarantor’s request and expense, execute and deliver to such Guarantor appropriate documents, without recourse
and without representation or warranty, necessary to evidence the transfer by subrogation to such Guarantor of an interest in
the Guaranteed Obligations resulting from such payment by such Guarantor.


 




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Section
6. Representations, Warranties and Covenants.


 


(a)
Each Guarantor hereby represents and warrants as of the date first written above as follows:


 


(i)
such Guarantor (A) is a corporation, limited liability company or limited partnership duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization as set forth on the signature pages hereto, (B) has all requisite
corporate, limited liability company or limited partnership power and authority to conduct its business as now conducted and as
presently contemplated and to execute, deliver and perform its obligations under this Guaranty and each other Transaction Document
to which such Guarantor is a party, and to consummate the transactions contemplated hereby and thereby and (C) is duly qualified
to do business and is in good standing in each jurisdiction in which the character of the properties owned or leased by it or
in which the transaction of its business makes such qualification necessary except where the failure to be so qualified (individually
or in the aggregate) would not result in a Material Adverse Effect.


 


(ii)
The execution, delivery and performance by such Guarantor of this Guaranty and each other Transaction Document to which such Guarantor
is a party (A) have been duly authorized by all necessary corporate, limited liability company or limited partnership action,
(B) do not and will not contravene its charter, articles, certificate of formation or by-laws, its limited liability company or
operating agreement or its certificate of partnership or partnership agreement, as applicable, or any applicable law or any contractual
restriction binding on such Guarantor or its properties do not and will not result in or require the creation of any lien, security
interest or encumbrance (other than pursuant to any Transaction Document) upon or with respect to any of its properties, and (C)
do not and will not result in any default, noncompliance, suspension, revocation, impairment, forfeiture or nonrenewal of any
material permit, license, authorization or approval applicable to it or its operations or any of its properties.


 



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(iii)
No authorization or approval or other action by, and no notice to or filing with, any Governmental Authority or other Person is
required in connection with the due execution, delivery and performance by such Guarantor of this Guaranty or any of the other
Transaction Documents to which such Guarantor is a party (other than expressly provided for in any of the Transaction Documents).


 


(iv)
This Guaranty has been duly executed and delivered by each Guarantor and is, and each of the other Transaction Documents to which
such Guarantor is or will be a party, when executed and delivered, will be, a legal, valid and binding obligation of such Guarantor,
enforceable against such Guarantor in accordance with its terms, except as may be limited by the Bankruptcy Code or other applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, suretyship or similar laws and equitable principles
(regardless of whether enforcement is sought in equity or at law). 


 


(v)
There is no pending or, to the best knowledge of such Guarantor, threatened action, suit or proceeding against such Guarantor
or to which any of the properties of such Guarantor is subject, before any court or other Governmental Authority or any arbitrator
that (A) if adversely determined, could reasonably be expected to have a Material Adverse Effect or (B) relates to this
Guaranty or any of the other Transaction Documents to which such Guarantor is a party or any transaction contemplated hereby or
thereby. 


 


(vi)
Such Guarantor (A) has read and understands the terms and conditions of the Securities Purchase Agreement and the other Transaction
Documents, and (B) now has and will continue to have independent means of obtaining information concerning the affairs, financial
condition and business of the Company and the other Transaction Parties, and has no need of, or right to obtain from the Collateral
Agent or any Buyer, any credit or other information concerning the affairs, financial condition or business of the Company or
the other Transaction Parties.


 


(vii)
There are no conditions precedent to the effectiveness of this Guaranty that have not been satisfied or waived.


 


(b)
Each Guarantor covenants and agrees that until Payment in Full of the Guaranteed Obligations, it will comply with each of the
covenants (except to the extent applicable only to a public company) which are set forth in Section 4 of the Securities Purchase
Agreement as if such Guarantor were a party thereto.


 


Section
7. Right of Set-off. Upon the occurrence and during
the continuance of any Event of Default, the Collateral Agent and any Buyer may, and is hereby authorized to, at any time and
from time to time, without notice to the Guarantors (any such notice being expressly waived by each Guarantor) and to the fullest
extent permitted by law, set-off and apply any and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by the Collateral Agent or any Buyer to or for the credit or the account
of any Guarantor against any and all obligations of the Guarantors now or hereafter existing under this Guaranty or any other
Transaction Document, irrespective of whether or not the Collateral Agent or any Buyer shall have made any demand under this Guaranty
or any other Transaction Document and although such obligations may be contingent or unmatured. The Collateral Agent and each
Buyer agrees to notify the relevant Guarantor promptly after any such set-off and application made by the Collateral Agent or
such Buyer, provided that the failure to give such notice shall not affect the validity of such set-off and application. The rights
of the Collateral Agent or any Buyer under this Section 7 are in addition to other rights and remedies (including, without
limitation, other rights of set-off) which the Collateral Agent or such Buyer may have under this Guaranty or any other Transaction
Document in law or otherwise.


 



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Section
8. Limitation on Guaranteed Obligations.


 


(a)
Notwithstanding any provision herein contained to the contrary, each Guarantor’s liability hereunder shall be limited to
an amount not to exceed as of any date of determination the greater of:


 


(i)
the amount of all Guaranteed Obligations, plus interest thereon at the applicable Interest Rate as specified in the Note; and



 


(ii)
the amount which could be claimed by the Collateral Agent from any Guarantor under this Guaranty without rendering such claim
voidable or avoidable under the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law after taking into account, among other things, Guarantor’s right of contribution
and indemnification.


 


(b)
Each Guarantor agrees that the Guaranteed Obligations may at any time and from time to time exceed the amount of the liability
of such Guarantor hereunder without impairing the guaranty hereunder or affecting the rights and remedies of the Collateral Agent
or any Buyer hereunder or under applicable law.


 


(c)
No payment made by the Company, any Guarantor, any other guarantor or any other Person or received or collected by the Collateral
Agent or any other Buyer from the Company, any of the Guarantors, any other guarantor or any other Person by virtue of any action
or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of
the Guaranteed Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any Guarantor hereunder
which shall, notwithstanding any such payment (other than any payment made by such Guarantor in respect of the Guaranteed Obligations
or any payment received or collected from such Guarantor in respect of the Guaranteed Obligations), remain liable for the Guaranteed
Obligations up to the maximum liability of such Guarantor hereunder until after all of the Guaranteed Obligations and all other
amounts payable under this Guaranty shall have been Paid in Full. 


 


Section
9. Notices, Etc. Any notices, consents, waivers or other
communications required or permitted to be given under the terms of this Guaranty must be in writing and will be deemed to have
been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by facsimile (provided confirmation
of transmission is mechanically or electronically generated and kept on file by the sending party); or (iii) one (1) Business
Day after deposit with an nationally recognized overnight courier service with next day delivery specified, in each case, properly
addressed to the party to receive the same. All notices and other communications provided for hereunder shall be sent, if to any
Guarantor, to the Company’s address and/or facsimile number, or if to the Collateral Agent or any Buyer, to it at its respective
address and/or facsimile number, each as set forth in Section 9(f) of the Securities Purchase Agreement.


 




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Section
10.  Governing Law; Jurisdiction. All questions concerning
the construction, validity, enforcement and interpretation of this Guaranty shall be governed by the internal laws of the State
of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York
or any other jurisdictions) that would cause the application of the laws of any jurisdiction other than the State of New York.
Each Guarantor hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in The City of
New York, Borough of Manhattan, for the adjudication of any dispute hereunder or in connection herewith or under any of the other
Transaction Documents or with any transaction contemplated hereby or thereby, and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim, obligation or defense that it is not personally subject to the jurisdiction
of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action
or proceeding is improper. 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 to such party at the address for such notices to it under Section
9(f) of the Securities Purchase 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 manner permitted
by law. Nothing contained herein shall be deemed or operate to preclude the Collateral Agent or the Buyers from bringing suit
or taking other legal action against any Guarantor in any other jurisdiction to collect on a Guarantor’s obligations or
to enforce a judgment or other court ruling in favor of the Collateral Agent or a Buyer.


 


Section
11. WAIVER OF JURY TRIAL, ETC. EACH GUARANTOR HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR UNDER
ANY OTHER TRANSACTION DOCUMENT OR IN CONNECTION WITH OR ARISING OUT OF THIS GUARANTY, ANY OTHER TRANSACTION DOCUMENT OR ANY TRANSACTION
CONTEMPLATED HEREBY OR THEREBY.


 


Section
12. Taxes.


(a)
All payments made by any Guarantor hereunder or under any other Transaction Document shall be made in accordance with the terms
of the respective Transaction Document and shall be made without set-off, counterclaim, withholding, deduction or other defense.
Without limiting the foregoing, all such payments shall be made free and clear of and without deduction or withholding for any
present or future taxes, levies, imposts, deductions, charges or withholdings, and all liabilities with respect thereto, excluding
taxes imposed on the net income of the Collateral Agent or any Buyer by the jurisdiction in which the Collateral Agent or
such Buyer is organized or where it has its principal lending office (all such nonexcluded taxes, levies, imposts, deductions,
charges, withholdings and liabilities, collectively or individually, “Taxes”). If any Guarantor shall be required
to deduct or to withhold any Taxes from or in respect of any amount payable hereunder or under any other Transaction Document:



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(i)
the amount so payable shall be increased to the extent necessary so that after making all required deductions and withholdings
(including Taxes on amounts payable to the Collateral Agent or any Buyer pursuant to this sentence) the Collateral Agent or each
Buyer receives an amount equal to the sum it would have received had no such deduction or withholding been made,


 


(ii)
such Guarantor shall make such deduction or withholding,


 


(iii)
such Guarantor shall pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable
law, and


 


(iv)
as promptly as possible thereafter, such Guarantor shall send the Collateral Agent or each Buyer an official receipt (or, if an
official receipt is not available, such other documentation as shall be satisfactory to the Collateral Agent, as the case may
be) showing payment. In addition, each Guarantor agrees to pay any present or future stamp or documentary taxes or any other excise
or property taxes, charges or similar levies that arise from any payment made hereunder or from the execution, delivery, registration
or enforcement of, or otherwise with respect to, this Guaranty or any other Transaction Document (collectively, “Other
Taxes”).


 


(b)
Each Guarantor hereby indemnifies and agrees to hold each Indemnified Party harmless from and against Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 12)
paid by any Indemnified Party as a result of any payment made hereunder or from the execution, delivery, registration or enforcement
of, or otherwise with respect to, this Guaranty or any other Transaction Document, and any liability (including penalties, interest
and expenses for nonpayment, late payment or otherwise) arising therefrom or with respect thereto, whether or not such Taxes or
Other Taxes were correctly or legally asserted. This indemnification shall be paid within thirty (30) days from the date on which
the Collateral Agent or such Buyer makes written demand therefor, which demand shall identify the nature and amount of such Taxes
or Other Taxes.


 


(c)
If any Guarantor fails to perform any of its obligations under this Section 12, such Guarantor shall indemnify the
Collateral Agent and each Buyer for any taxes, interest or penalties that may become payable as a result of any such failure.
The obligations of the Guarantors under this Section 12 shall survive the termination of this Guaranty and the payment
of the Obligations and all other amounts payable hereunder.


 


Section
13.  Indemnification.


 





(a)
Without limitation of any other obligations of any Guarantor or remedies of the Collateral Agent or the Buyers under this Guaranty
or applicable law, except to the extent resulting from such Indemnified Party’s gross negligence or willful misconduct,
as determined by a final judgment of a court of competent jurisdiction no longer subject to appeal, each Guarantor shall, to the
fullest extent permitted by law, indemnify, defend and save and hold harmless the Collateral Agent and each Buyer and each of
their affiliates and their respective officers, directors, employees, agents and advisors (each, an “Indemnified Party”)
from and against, and shall pay on demand, any and all claims, damages, losses, liabilities and expenses (including, without limitation,
reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded against any Indemnified Party in connection
with or as a result of any failure of any Guaranteed Obligations to be the legal, valid and binding obligations of any Transaction
Party enforceable against such Transaction Party in accordance with their terms.




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(b)
Each Guarantor hereby also agrees that none of the Indemnified Parties shall have any liability (whether direct or indirect, in
contract, tort or otherwise) or any fiduciary duty or obligation to any of the Guarantors or any of their respective affiliates
or any of their respective officers, directors, employees, agents and advisors, and each Guarantor hereby agrees not to assert
any claim against any Indemnified Party on any theory of liability, for special, indirect, consequential, incidental or punitive
damages arising out of or otherwise relating to the facilities, the actual or proposed use of the proceeds of the advances, the
Transaction Documents or any of the transactions contemplated by the Transaction Documents.


 


Section
14. Miscellaneous.


 


(a)
Each Guarantor will make each payment hereunder in lawful money of the United States of America and in immediately available funds
to the Collateral Agent or each Buyer, at such address specified by the Collateral Agent or such Buyer from time to time by notice
to the Guarantors.


 


(b)
No amendment or waiver of any provision of this Guaranty and no consent to any departure by any Guarantor therefrom shall in any
event be effective unless the same shall be in writing and signed by each Guarantor, the Collateral Agent and each Buyer, and
then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.


 


(c)
No failure on the part of the Collateral Agent or any Buyer to exercise, and no delay in exercising, any right or remedy hereunder
or under any other Transaction Document shall operate as a waiver thereof, nor shall any single or partial exercise of any right
hereunder or under any Transaction Document preclude any other or further exercise thereof or the exercise of any other right
or remedy. The rights and remedies of the Collateral Agent and the Buyers provided herein and in the other Transaction Documents
are cumulative and are in addition to, and not exclusive of, any rights or remedies provided by law. The rights and remedies of
the Collateral Agent and the Buyers under any Transaction Document against any party thereto are not conditional or contingent
on any attempt by the Collateral Agent or any Buyer to exercise any of their respective rights or remedies under any other Transaction
Document against such party or against any other Person.


 


(d)
Any provision of this Guaranty that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the remaining portions hereof or affecting the validity
or enforceability of such provision in any other jurisdiction.


 


(e)
This Guaranty is a continuing guaranty and shall (i) remain in full force and effect until Payment in Full of the Guaranteed Obligations
(other than inchoate indemnity obligations) and shall not terminate for any reason prior to the respective Maturity Date of each
Note (other than Payment in Full of the Guaranteed Obligations) and (ii) be binding upon each Guarantor and its respective successors
and assigns. This Guaranty shall inure, together with all rights and remedies of the Collateral Agent hereunder, to the benefit
of and be enforceable by the Collateral Agent, the Buyers, and their respective successors, and permitted pledgees, transferees
and assigns. Without limiting the generality of the foregoing sentence, the Collateral Agent or any Buyer may pledge, assign or
otherwise transfer all or any portion of its rights and obligations under and subject to the terms of the Securities Purchase
Agreement or any other Transaction Document to any other Person in accordance with the terms thereof, and such other Person shall
thereupon become vested with all the benefits in respect thereof granted to the Collateral Agent or such Buyer (as applicable)
herein or otherwise, in each case as provided in the Securities Purchase Agreement or such Transaction Document. None of the rights
or obligations of any Guarantor hereunder may be assigned or otherwise transferred without the prior written consent of each Buyer.


 




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(f)
This Guaranty and the other Transaction Documents reflect the entire understanding of the transaction contemplated hereby and
shall not be contradicted or qualified by any other agreement, oral or written, entered into before the date hereof.


 


(g)
Section headings herein are included for convenience of reference only and shall not constitute a part of this Guaranty for any
other purpose.


 


Section
15. Currency Indemnity.


 


If,
for the purpose of obtaining or enforcing judgment against Guarantor in any court in any jurisdiction, it becomes necessary to
convert into any other currency (such other currency being hereinafter in this Section 15 referred to as the “Judgment
Currency”) an amount due under this Guaranty in any currency (the “Obligation Currency”) other than
the Judgment Currency, the conversion shall be made at the rate of exchange prevailing on the Business Day immediately preceding
(a) the date of actual payment of the amount due, in the case of any proceeding in the courts of courts of the jurisdiction that
will give effect to such conversion being made on such date, or (b) the date on which the judgment is given, in the case of any
proceeding in the courts of any other jurisdiction (the applicable date as of which such conversion is made pursuant to this Section
15 being hereinafter in this Section 15 referred to as the “Judgment Conversion Date”).


 


If,
in the case of any proceeding in the court of any jurisdiction referred to in the preceding paragraph, there is a change in the
rate of exchange prevailing between the Judgment Conversion Date and the date of actual receipt of the amount due in immediately
available funds, the Guarantors shall pay such additional amount (if any, but in any event not a lesser amount) as may be necessary
to ensure that the amount actually received in the Judgment Currency, when converted at the rate of exchange prevailing on the
date of payment, will produce the amount of the Obligation Currency which could have been purchased with the amount of’
the Judgment Currency stipulated in the judgment or judicial order at the rate of exchange prevailing on the Judgment Conversion
Date. Any amount due from the Guarantors under this Section 15 shall be due as a separate debt and shall not be affected
by judgment being obtained for any other amounts due under or in respect of this Guaranty.


 


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IN
WITNESS WHEREOF, each Guarantor has caused this Guaranty to be executed by its respective duly authorized officer, as of the date
first above written.


 





	 	GUARANTORS:
    
	 	 
	 	[U.S. SUBSIDIARY], a
    [SUBJURISDICTION] corporation 
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	[U.S. SUBSIDIARY], a
    [SUBJURISDICTION] corporation 
	 	 	 
	 	By:	
	 	Name:	 
	 	Title:	 
	 	[U.S. SUBSIDIARY], a
    [SUBJURISDICTION] corporation
	 	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	[U.S. SUBSIDIARY], a
    [SUBJURISDICTION] corporation
	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 
	 	[U.S. SUBSIDIARY], a
    [SUBJURISDICTION] corporation
	 	 
	 	By:	 
	 	Name:	 
	 	Title:	 







 


[Signatures
continue on following page]


 




    	 



    	 



    


 


	ACCEPTED
    BY:	 
	 	 	 
	HUDSON
BAY MASTER FUND LTD, as Collateral Agent


	 
	 	 
	By:	 	 
	Name:	 	 
	Title: