EXHIBIT 10.3
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SUBSIDIARY GUARANTY
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THIS GUARANTY (this "Guaranty"), dated as of March 30, 2005 (the "Effective
Date"), is made by TAG ENTERTAINMENT USA INC., a California corporation (the
"Guarantor"), in favor of SATELLITE STRATEGIC FINANCE ASSOCIATES, LLC, a
Delaware limited liability company ("Satellite"). This Guaranty is being given
by Guarantor in connection with that certain Securities Purchase Agreement,
dated as of March 30, 2005 (the "Purchase Agreement"), by and between TAG
Entertainment Corp., a Delaware corporation (the "Company"), and Satellite. Any
capitalized term used and not otherwise defined herein shall have the meaning
ascribed thereto in the Purchase Agreement.
WHEREAS, the Company, by its senior secured promissory note of even date
herewith given to Satellite is indebted to Satellite in the aggregate principal
sum of One Million One Hundred Fifty Thousand and 00/100 Dollars ($1,150,000) in
lawful money of the United States of America (such promissory note together with
all extensions, renewals, modifications, substitutions and amendments thereof
shall collectively be referred to as the "Note"), with interest from the date
thereof at the rate set forth in the Note, principal and interest to be payable
in accordance with the terms and conditions provided in the Note, and subject to
the terms and conditions of the Purchase Agreement;
WHEREAS, the Company owns, directly or indirectly, all of the issued and
outstanding capital stock of Guarantor;
WHEREAS, the Guarantor shall derive substantial direct and/or indirect
benefits from the transactions contemplated under the Purchase Agreement; and
WHEREAS, it is a condition precedent to the obligations of Satellite under
the Purchase Agreement that the Guarantor shall have executed and delivered this
Guaranty to Satellite.
NOW, THEREFORE, in order to induce Satellite to enter into the Purchase
Agreement, Guarantor hereby agrees as follows:
1. DEFINITIONS.
1.1 Certain Definitions. When used herein, the following terms shall
have the respective meanings indicated:
"Obligations" means all of the obligations and liabilities of the Company
to Satellite (including, without limitation, all of the interest that accrues on
the Note after the Note becomes due and payable and all interest that accrues on
the Note after the filing of any petition in bankruptcy, or the commencement of
any insolvency, reorganization or similar proceeding, relating to the Company
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding), whether direct or indirect, absolute or contingent, due or to
become due,
now existing or hereafter incurred, that may arise under, with respect to, or in
connection with the Purchase Agreement, any of the other Transaction Documents
or any other document, agreement or instrument made, delivered or given in
connection with the Purchase Agreement or any other Transaction Document,
whether on account of principal, interest, fees, indemnities, costs, expenses or
otherwise (including, without limitation, all fees and expenses of counsel to
Satellite that are required to be paid by the Company pursuant to the terms of
the Purchase Agreement, any of the other Transaction Documents or any other
document, agreement or instrument made, delivered or given in connection with
the Purchase Agreement or any other Transaction Document).
1.2 Other Definitional Provisions. Unless otherwise specified in this
Guaranty, the words "hereof," "herein" and "hereunder" and words of similar
import when used in this Guaranty shall refer to this Guaranty as a whole and
not to any particular provision of this Guaranty. The meanings given to terms
defined in this Guaranty shall be equally applicable to both the singular and
plural forms of such terms.
2. GUARANTY.
2.1 Unconditional Guaranty. Guarantor unconditionally and irrevocably
guaranties to Satellite the punctual and complete payment and performance by the
Company of each of the Obligations as and when such Obligation becomes due
(whether at stated maturity, by acceleration or otherwise).
2.2 Costs of Collection. The Guarantor agrees to pay all of the fees,
expenses and costs (including, without limitation, all reasonable fees and
expenses of counsel) that may be paid or incurred by Satellite in enforcing or
obtaining advice of counsel regarding any rights with respect to, or collecting,
any of the Obligations or enforcing any rights with respect to, or collecting
against, the Guarantor under this Guaranty.
3. SUBORDINATION.
Any indebtedness of the Company or any Affiliate of the Company or
Guarantor to Guarantor now or hereafter existing (including, without limitation,
any rights of subrogation Guarantor may have as a result of any payment by
Guarantor under this Guaranty), together with any interest thereon, shall be,
and such indebtedness is hereby, deferred, postponed and subordinated to the
prior payment in full of any Obligations. Until the Obligations have been fully
satisfied and performed, Guarantors agree not to accept any payment or
satisfaction of any kind of indebtedness of the Company or any Affiliate of the
Company or Guarantor to Guarantor and hereby assigns such indebtedness to
Satellite, including the right to file proof of claim and to vote thereon in
connection with any such proceeding under the Bankruptcy Code, including the
right to vote on any plan of reorganization. Further, if Guarantor shall now or
at any time in the future comprise more than one Person, firm or corporation,
Guarantor agrees that until payment and performance in full of any Obligations:
(a) it shall not accept payment from the others by way of contribution on
account of any payment made hereunder by such party to Satellite; (b) Guarantor
will not take any action to exercise or enforce any rights to such contribution;
and (c) if Guarantor should receive any payment, satisfaction or security for
any indebtedness of the
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Company or any Affiliate of the Company or Guarantor to Guarantor or for any
contribution by the others of Guarantor for payment made hereunder by the
recipient to Satellite, such payment, satisfaction or security shall be
delivered to Satellite in the form received, endorsed or assigned as may be
appropriate for application on account of, or as security for, the Obligations
and until so delivered shall be held in trust for Satellite as security for the
Obligations.
4. AMENDMENT OF TRANSACTION DOCUMENTS; RELEASE OF COLLATERAL.
4.1 Transaction Documents; Collateral. Satellite may (except as shall
be required by applicable law) at any time and from time to time without the
consent of, or notice to, the Guarantor, without incurring any liability or
responsibility to the Guarantor, and without impairing or releasing the
obligations of the Guarantor under this Guaranty:
(i) change the manner, place or terms of payment of, and/or
change or extend the time of payment of, renew, increase, accelerate or alter,
any of the Obligations, any security therefor, or any liability incurred
directly or indirectly in respect of the Obligations, and the guaranty made
pursuant to this Guaranty shall apply to the Obligations as so changed,
extended, renewed or altered;
(ii) sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order any property pledged or
mortgaged to secure the Obligations or any liabilities incurred directly or
indirectly in respect of the Obligations or this Guaranty;
(iii) exercise or refrain from exercising any rights or remedies
against the Company or any other Person (including the Guarantor) or otherwise
act or refrain from acting with respect to the Company or other Person
(including without limitation, the Guarantor);
(iv) settle or compromise any of the Obligations, any security
therefor or any liability (including any of those under this Guaranty) incurred
directly or indirectly in respect of the Obligations, or subordinate the payment
of all or any part of the Obligations to the payment of any other liability
(whether due or not) of the Company;
(v) apply any sums by whomsoever paid or howsoever realized to
any liability or liabilities of the Company to Satellite regardless of what
liabilities of the Company remain unpaid;
(vi) consent to or waive any breach of, or any act, omission or
default under, any of the Transaction Documents or any of the documents,
instruments or the agreements made, delivered or given in connection with the
Transaction Documents, or otherwise amend, modify, supplement, cancel or
terminate any of the Transaction Documents or any of the instruments, documents,
or the agreements made, delivered or given in connection with the Transaction
Documents;
(vii) act or fail to act in any manner referred to in this
Guaranty which may deprive the Guarantor of its right to subrogation against the
Company or any other Person to
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recover full indemnity for any payments made by the Guarantor pursuant to this
Guaranty; and/or
(viii) release or substitute the Company or any endorser,
guarantor or other obligor.
4.2 Satellite's Action. Satellite shall not have any obligation at any
time to take any action, or expend any funds, to (i) secure or perfect any Lien
that is required to be granted by the Company as collateral security for the
Obligations, or (ii) insure or otherwise protect any assets or property that is
subject to a Lien granted by the Company as collateral security for the
Obligations.
5. OBLIGATIONS OF GUARANTOR.
5.1 Guaranty Absolute and Unconditional. (a) The Guarantor hereby
waives any and all notice of the creation, renewal, extension or accrual of any
of the Obligations and notice or proof of reliance by Satellite upon this
Guaranty or acceptance of this Guaranty; each Obligation shall conclusively be
deemed to have been created, contracted or incurred, or renewed, extended,
amended or waived in reliance upon this Guaranty; and all dealings between the
Company and/or the Guarantor, on the one hand, and Satellite, on the other hand,
shall be conclusively presumed to have been consummated in reliance upon this
Guaranty. The Guarantor understands and agrees that this Guaranty shall be
construed as a continuing, absolute and unconditional Guaranty of payment and
performance without regard to (i) the validity or enforceability of (1) the
Purchase Agreement, the Note or any of the other Transaction Documents or any
document, instrument or agreement made, delivered or given in connection with
the Purchase Agreement, the Note or any other Transaction Document, (2) any Lien
securing the Obligations, (3) any of the collateral security for, or any
Guaranty of, the Obligations, or (4) any right of offset with respect to the
Obligations, (ii) any defense, set-off or counterclaim that may at any time be
available to, or be asserted by, the Company against Satellite, or (iii) any
other circumstance whatsoever (including, without limitation, insolvency or
bankruptcy of the Company or any other Person) that constitutes (or might be
construed to constitute) an equitable or legal discharge of the Obligations or
the obligations and liabilities of the Guarantor under this Guaranty, regardless
of whether the Guarantor has notice or knowledge of any such circumstance.
5.2 Obligations Not Affected. None of the obligations and liabilities
of the Guarantor under this Guaranty shall be relieved or reduced, and none of
the rights and remedies of Satellite against the Guarantor shall be impaired or
adversely affected, as a result of (i) any demand by Satellite for payment of
any of the Obligations being subsequently rescinded, (ii) any amendment,
modification, supplement or termination of the Purchase Agreement, the Note, any
other Transaction Document or any document, agreement or instrument made,
delivered or given in connection with the Purchase Agreement, the Note or any
other Transaction Document, or (iii) any or all of the collateral security for,
or any other Guaranty of, the Obligations or any right of offset with respect to
the Obligations being renewed, extended, amended, modified, accelerated,
compromised, waived, surrendered or released, in whole or in part, by Satellite
at any time.
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5.3 Waiver of Notice. The Guarantor hereby waives (to the fullest
extent permitted by applicable law) notice of (i) acceptance of this Guaranty
and notice of any liability to which it may apply, (ii) promptness, diligence,
presentment, demand of payment or performance, protest, notice of dishonor,
nonpayment or nonperformance of any of the Obligations, and (iii) any suit or
taking of other action by Satellite against, and any other notice to, any Person
liable on or with respect to the Obligations. When pursuing any of its rights
and remedies against the Guarantor, Satellite may, but shall be under no
obligation to, pursue any other rights and remedies that it may have against the
Company or any other Person or against any collateral security for, or any
Guaranty of, the Obligations or any right of offset that it may have with
respect to the Obligations; provided, however, that none of the obligations and
liabilities of the Guarantor under this Guaranty will be relieved or reduced,
and none of the rights of Satellite will be impaired or adversely affected, as a
result of any failure by Satellite to (i) pursue any rights or remedies that it
may have against the Company or any other Person, (ii) collect any amounts that
are due any payable with respect to the Obligations from the Company or any
other Person, or (iii) realize upon any collateral security or Guaranty or
exercise any right of offset. The Guarantor waives any right (to the fullest
extent permitted by applicable law) to require Satellite to: (i) proceed against
the Company or any other Person; (ii) proceed against or exhaust any security
held from the Company or any other Person; or (iii) pursue any other remedy
against the Company or any other Person. The Guarantor waives (to the fullest
extent permitted by applicable law) any defense based on or arising out of any
defense of the Company, or any other Person other than the full payment and
performance of the Obligations, including, without limitation, any defense based
on or arising out of the disability of the Company or any other Person, or the
unenforceability of the Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of the Company other than payment in
full of the Obligations. Satellite may, at its election, foreclose on any
security held by Satellite by one or more judicial or nonjudicial sales, or
exercise any other right or remedy Satellite may have against the Company or any
other Person, or any security, without affecting or impairing in any way the
liability of the Guarantor under this Guaranty except to the extent the
Obligations have been paid and performed in full. The Guarantor waives any
defense arising out of any such election by Satellite, even though such election
operates to impair or extinguish any right or reimbursement or subrogation or
other right or remedy of the Guarantor against the Company or any other Person
or any security (to the extent permitted by applicable law).
5.4 No Impairment. The liability of the Guarantor under this Guaranty
is exclusive and independent of any security for or other guaranty of the
Obligations, whether executed by the Guarantor or by any other Person, and the
liability of the Guarantor under this Guaranty shall not be affected or impaired
by (a) any direction as to application of payment by the Company or by any other
Person, (b) any other continuing or other guaranty, undertaking or maximum
liability of a guarantor of the Company or of any other Person as to the
Obligations, (c) any payment on or in reduction of any such other guaranty or
undertaking, (d) any dissolution, termination or increase, decrease or change in
personnel by the Company, (e) any payment made to Satellite which is repaid to
the Company pursuant to a court order in any bankruptcy, reorganization,
arrangement, moratorium or other debtor relief proceeding, and the Guarantor
waives any right to the deferral or modification to its obligations hereunder by
reason of any of such proceeding, (f) any action or inaction by Satellite, or
(g) any invalidity, irregularity or unenforceability of all or part of the
Obligations or of any security therefor.
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5.5 Severability of Obligations; Statute of Limitations. The
obligations of the Guarantor under this Guaranty are independent of the
obligations of the Company or any other Person, and a separate action or actions
may be brought and prosecuted against the Guarantor whether or not action is
brought against the Company or any other Person and whether or not the
Guarantor, the Company or any Person be joined in any such action or actions.
The Guarantor waives, to the fullest extent permitted by law, the benefit of any
statute of limitations affecting its liability under this Guaranty or the
enforcement of any such statute of limitations. Any payment by the Company or
other circumstance that operates to toll any statute of limitations as to the
Company shall operate to toll the statute of limitations as to the Guarantor.
5.6 Authority. It shall not be necessary for Satellite to inquire into
the authority, capacity or powers of the Company or any of its Subsidiaries or
the officers, directors, partners 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 guarantied under this Guaranty.
5.7 Reinstatement. Notwithstanding any other provision of this
Guaranty to the contrary, if any payment with respect to the Obligations is
rescinded or required to be restored or returned by Satellite for any reason
whatsoever (including, without limitation, as a result of the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Company or the
appointment of a receiver, intervenor or conservator of, or trustee or similar
officer for, the Company or any of its assets or properties), this Guaranty
shall continue to be effective, and shall be reinstated if previously
terminated, as though such payment had not been made.
5.8 Payments. The Guarantor hereby covenants and agrees that all
amounts due and payable by the Guarantor under this Guaranty shall be paid to
Satellite without set-off or counterclaim by wire transfer of immediately
available United States dollar funds to such account as Satellite may designate
in writing to the Guarantor from time to time.
6. REPRESENTATIONS AND WARRANTIES.
6.1 Representations and Warranties. The Guarantor hereby makes the
following representations and warranties to Satellite and agrees with Satellite
that, as of the date of this Guaranty and, if different, as of the Closing Date:
(a) the Guarantor (i) is a duly organized and validly existing
corporation in good standing under the laws of the jurisdiction of its
incorporation, (ii) has the corporate power and authority to own its property
and assets and to transact the business in which it is engaged and presently
proposes to engage, and (iii) is duly qualified and is authorized to do business
and is in good standing in each jurisdiction where the conduct of its business
requires such qualification except for failures to be qualified which,
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect;
(b) the Guarantor has (i) the corporate power and authority to
execute, deliver and perform the terms and provisions of this Guaranty and each
other Transaction Document to which it is a party and has taken all necessary
corporate action to authorize the execution,
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delivery and performance by it of this Guaranty and each Transaction Document to
which it is a party and (ii) has duly executed and delivered this Guaranty and
each other Transaction Document to which it is a party, and this Guaranty and
each such Transaction Document constitutes the legal, valid and binding
obligation of the Guarantor, enforceable against the Guarantor in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally the enforcement of creditors' rights and
remedies or by other equitable principles of general application;
(c) neither the execution, delivery or performance by the Guarantor of
this Guaranty or any other Transaction Document to which it is a party, nor the
compliance by it with the terms and provisions hereof and thereof, (i) will
contravene any provision of any applicable law, statute, rule or regulation, or
any applicable order, writ, injunction or decree of any court or governmental
instrumentality, (ii) will conflict with or result in any breach of any of the
terms, covenants, conditions or provisions of, or constitute a default under, or
result in the creation or imposition of (or the obligation to create or impose)
any Lien upon any of the property or assets of the Guarantor pursuant to the
terms of any indenture, mortgage, deed of trust, loan agreement, or any other
material agreement or other instrument to which the Guarantor is a party or by
which it or any of its property or assets are bound or to which it may be
subject or (iii) will violate any provision of the charter or bylaws of the
Guarantor;
(d) no order, consent, approval, license, authorization or validation
of, or filing, recording or registration with (except as have been obtained or
made), or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection
with, (i) the execution, delivery and performance of this Guaranty or any other
Transaction Document to which the Guarantor is a party, or (ii) the legality,
validity, binding effect or enforceability of this Guaranty or any other
Transaction Document to which the Guarantor is a party;
(e) there are no actions, suits or proceedings (private or
governmental) pending or threatened (i) with respect to this Guaranty or any
Transaction Documents to which the Guarantor is a party, or (ii) with respect to
the Guarantor that could reasonably be expected to have a Material Adverse
Effect; and
(f) all of the representations and warranties of the Company in the
Purchase Agreement that relate to the Guarantor will be true and correct in all
material respects on the Closing Date (except that any such representation and
warranty that is expressly stated as being made only as of a specified date
shall be true and correct in all material respects as of such specified date).
6.2 Survival of Representations and Warranties. All of the
representations and warranties made by the Guarantor in this Guaranty and the
other Transaction Documents and all of the documents, agreements, and
instruments made, delivered or given in connection with this Guaranty and the
other Transaction Documents shall survive the execution, delivery and
performance of this Guaranty and the other Transaction Documents.
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7. MISCELLANEOUS.
7.1 Notices. Any notice, demand or request required or permitted to be
given by the Company, the Guarantor or Satellite pursuant to the terms of this
Guaranty shall be in writing and shall be given in the manner set forth in the
Purchase Agreement. Any notice to the Guarantor shall be deemed to have been
properly given if addressed in care of the Company under the Purchase Agreement.
7.2 Severability. 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 provisions of this Guaranty, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
7.3 Integration. This Guaranty, the other Transaction Documents to
which the Guarantor is a party and the other documents, agreements and
instruments made, delivered or given by the Guarantor in connection with this
Guaranty or any other Transaction Document represents the entire agreement of
the Guarantor and Satellite with respect to the subject matter expressed in this
Guaranty, the other Transaction Documents and such other documents, agreements
and instruments. Any previous agreement between the Guarantor and Satellite with
respect to the subject matter of this Guaranty, the other Transaction Documents
to which the Guarantor is a party and the other documents, agreements and
instruments made, delivered or given by the Guarantor in connection with this
Guaranty or any other Transaction Document is superseded by this Guaranty, the
other Transaction Documents and such other documents, agreements and
instruments.
7.4 Amendments, Waivers, Etc. in Writing. None of the terms or
provisions of this Guaranty may be waived, amended, supplemented or otherwise
modified except pursuant to a written instrument executed by the Guarantor and
Satellite.
7.5 No Waiver. Satellite shall not by any act (except as provided in
Section 7.4 above), any failure to act or any delay in acting be deemed to have
(i) waived any right or remedy under this Guaranty, any other Transaction
Document or any document, agreement or instrument made, delivered or given in
connection with this Guaranty or the other Transaction Documents, or (ii)
acquiesced in any event of default or in any breach of any of the terms and
conditions of this Guaranty, any other Transaction Document or any document,
agreement or instrument made, delivered or given in connection with this
Guaranty or the other Transaction Documents. No failure to exercise, nor any
delay in exercising, any right, power or privilege of Satellite under this
Guaranty, any other Transaction Document or any document, agreement or
instrument made, delivered or given in connection with this Guaranty or the
other Transaction Documents shall operate as a waiver of any such right, power
or privilege. No single or partial exercise of any right, power or privilege
under this Guaranty, any other Transaction Document or any document, agreement
or instrument made, delivered or given in connection with this Guaranty or the
other Transaction Documents shall preclude any other or further exercise of any
other right, power or privilege. A waiver by Satellite of any right or remedy
under this Guaranty, any other Transaction Document or any other document or
instrument made, delivered or given
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in connection with this Guaranty or the other Transaction Documents on any one
occasion shall not be construed as a bar to any right or remedy that Satellite
would otherwise have on any future occasion.
7.6 Cumulative Remedies. The rights and remedies provided in this
Guaranty are cumulative, may be exercised singly or concurrently, and are not
exclusive of any other rights or remedies provided by law.
7.7 Section Headings. The section headings used in this Guaranty are
for convenience of reference only and are not to affect the construction of this
Guaranty or be taken into consideration in the interpretation of this Guaranty.
7.8 Indemnification. The Guarantor agrees to indemnify and hold
harmless Satellite and each of its directors, managers, members, shareholders,
officers, employees, advisors and agents (each, an "Indemnified Person") from
and against, and shall pay each Indemnified Person as and when incurred, all
claims, damages, losses, liabilities, costs and expenses of any kind whatsoever,
including reasonable fees and expenses of attorneys and paralegals, that such
Indemnified Person may incur as a result of third party claims (or that may be
claimed against such Indemnified Person by any Person), together with all costs
and expenses resulting from the compromise or defense of any claims or
liabilities, by reason of or in connection with (i) the preparation, execution,
delivery, validity, enforceability or performance of this Guaranty, the other
Transaction Documents to which the Guarantor is a party and the other documents,
agreements and instruments made, delivered or given by the Guarantor in
connection with this Guaranty or any of the other Transaction Documents, (ii)
any action taken by any Indemnified Person pursuant to, or in connection with,
this Guaranty, any of the other Transaction Documents to which the Guarantor is
a party or any other document, agreement or instrument made, delivered or given
by the Guarantor in connection with this Guaranty or any of the other
Transaction Documents, (iii) any breach by the Guarantor of any warranty,
covenant, term or condition in, or the occurrence of any default under, this
Guaranty, any of the other Transaction Documents to which the Guarantor is a
party or any other document, agreement or instrument made, delivered or given by
the Guarantor in connection with this Guaranty or any of the other Transaction
Documents, and (iv) any inquiry, investigation, litigation, proceeding or other
action related to or arising out of this Guaranty, any of the other Transaction
Documents to which the Guarantor is a party or any other document, agreement or
instrument made, delivered or given by the Guarantor in connection with this
Guaranty or any of the other Transaction Documents (whether or not such
Indemnified Party is a party to such investigation, litigation, proceeding or
other action and whether any such investigation, litigation or proceeding or
other action is brought by the Company, the Guarantor, any shareholder or
creditor of the Company or the Guarantor or any other Person). In case any
action or proceeding is brought against an Indemnified Person in respect of
which indemnity may be sought under this Guaranty, such Indemnified Person shall
promptly give notice of any such action or proceeding to the Guarantor and may
require the Guarantor, upon such notice, to assume the defense of the action or
proceeding, provided that the failure of an Indemnified Person to give such
notice shall not relieve the Guarantor of its obligations under this Section
7.8. Upon receipt of notice from an Indemnified Person requesting that the
Guarantor assume the defense of any action or proceeding, the Guarantor shall
resist and defend such action or proceeding at its sole cost and
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expense. The obligations of the Guarantor under this Section 7.8 shall survive
the termination of this Guaranty.
7.9 Successors and Assigns. This Guaranty shall be binding upon the
Guarantor and its successors and assigns and this Guaranty shall inure to the
benefit of Satellite and its successors, endorsees, transferees and assigns. No
Guarantor may assign any of its rights under, or delegate any of its duties or
obligations under, this Guaranty without the prior written consent of Satellite.
7.10 Setoff and Adjustments. In addition to any right now or hereafter
granted under applicable law, upon the occurrence and during the continuance of
an event of default under the Note or any of the other Transaction Documents,
Satellite is hereby authorized at any time or from time to time, without notice
to the Guarantor or to any other Person (any such notice being expressly waived
by the Guarantor) to setoff and to appropriate and apply any and all deposits
(general or special) and any other indebtedness at any time held or owing by
Satellite to or for the credit or the account of the Guarantor, against and on
account of the obligations and liabilities of the Guarantor to Satellite under
this Guaranty, irrespective of whether or not (i) Satellite shall have made any
demand under this Guaranty, or (ii) such obligations and liabilities are
contingent or unmatured.
7.11 Governing Law. This Guaranty shall be governed by and construed
under the laws of the State of New York applicable to contracts made and to be
performed entirely within the State of New York.
7.12 Submission To Jurisdiction; Waivers. The Guarantor hereby
irrevocably and unconditionally:
(a) submits itself and its property to any legal action or
proceeding relating to this Guaranty, any of the other Transaction Documents or
any document, agreement or instrument made, delivered or given in connection
with this Guaranty or the other Transaction Documents, or for recognition and
enforcement of any judgment in respect of this Guaranty, any of the other
Transaction Documents or any such other document, agreement or instrument, to
the non-exclusive general jurisdiction of the courts of the State of New York,
the courts of the United States of America for the Southern District of New
York, and the appellate courts for such state and federal courts;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or
proceeding may be effected by registered or certified mail (or any substantially
similar form of mail), postage prepaid to the Guarantor at its address set below
its signature to this Guaranty or at such other address as the Guarantor shall
have notified Satellite pursuant to the terms of this Guaranty;
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(d) agrees that nothing in this Guaranty shall affect the right
of Satellite to effect service of process in any other manner permitted by law
or shall limit the right of Satellite to xxx in any other jurisdiction; and
(e) waives, to the fullest extent permitted by law, any right the
Guarantor may have to claim or recover any special exemplary, punitive or
consequential damages in any legal action or proceeding that relates to, or that
arises from, this Guaranty, any of the other Transaction Documents or any other
document, agreement or instrument made, delivered or given in connection with
this Guaranty or any of the other Transaction Documents.
7.13 Waivers of Jury Trial. The Guarantor hereby irrevocably and
unconditionally waives trial by jury in any legal action or proceeding relating
to this Guaranty or any other Transaction Document to which it is a party and
for any counterclaim therein.
7.14 Compliance with the Transaction Documents. The Guarantor
covenants and agrees that on and after the date hereof and until all Obligations
have been paid and performed in full, the Guarantor shall take, or will refrain
from taking, all actions that are necessary to be taken or not taken so that no
violation of any covenant or agreement of the Company contained in the Purchase
Agreement, the Note or any other Transaction Document is caused by the actions
(or non-actions) of the Guarantor or any of its Affiliates. The Guarantor hereby
agrees to pay all reasonable out-of-pocket costs and expenses of Satellite in
connection with the enforcement of this Guaranty and any amendment, waiver or
consent relating hereto (including, without limitation, reasonable legal fees
and disbursements).
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned has caused this Guaranty to be duly
executed and delivered by its duly authorized officer as of the Effective Date.
TAG ENTERTAINMENT USA, INC., a California
corporation
By:
-------------------------------------
Name:
Title:
State of New York )
) ss.:
County of )
On the _________________ day of ______________ in the year _____, before me, the
undersigned, a Notary Public in and for said State, personally appeared
____________________, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed
to the within instrument and acknowledged to me that he/she/they executed the
same in his/her/their capacity(ies), and that by his/her/their signature(s) on
the instrument, the individual(s) or the person upon behalf of which the
individual(s) acted, executed the instrument.
-----------------------------------------
Notary Public
