EXHIBIT D GUARANTY
EXHIBIT
10.5
EXHIBIT
D
GUARANTY
dated as of February 9, 2009 ("Guaranty") made by Xxxx Xxxxxxxxx, an individual
residing c/o BroadWebAsia, Inc. 0000 Xxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxx
Xxxxxxxxx, XX 00000, (“Guarantor”) in favor of Able Income Fund, LLC
("Lender").
W I T N E S S E T H
WHEREAS,
BroadWebAsia, Inc., a Delaware corporation (the “Borrower”), and the Lender are
parties to a Note, dated as of February 9, 2009 (such agreement, as amended,
restated, supplemented or otherwise modified from time to time, being
hereinafter referred to as the “Note”);
WHEREAS,
pursuant to the Note, the Guarantor is required to execute and deliver to the
Lender a guaranty guaranteeing the Note and all other obligations under the Note
and a Stock Pledge Agreement (the “ Loan Documents”);
and
WHEREAS,
the Guarantor has determined that (i) it will derive substantial benefit and
advantage from the Loan and other financial accommodations made available to the
Borrower under the Note and the other Loan Documents and (ii) its execution,
delivery and performance of this Guaranty directly benefit, and are within the
best interests of, the Guarantor;
NOW,
THEREFORE, in consideration of $1,000 receipt of which is hereby acknowledged,
the premises, the agreements herein and in order to induce the Lender to make
and maintain the Loan pursuant to the Note, the Guarantor hereby agrees with the
Lender, as follows:
Section
1. Definitions.
Reference is hereby made to the Note for a statement of the terms
thereof. All terms used in this Guaranty which are defined in the
Note and not otherwise defined herein shall have the same meanings herein as set
forth therein. As used in this Guaranty, the following terms have the
following meanings (terms defined in the singular to have the same meaning when
used in the plural and vice versa):
“Borrower” has the meaning specified in
the preamble above.
“Guaranty
Documents” means the Loan Documents and any document or agreement evidencing,
related to or delivered in connection with any or all of the Guaranteed
Obligations.
“Guaranteed
Obligations” means any and all present and future liabilities and obligations of
Borrower and Guarantor to Lender incurred by Borrower and Guarantor under the
Loan Documents, and whether due or to become due, secured or unsecured, absolute
or contingent, joint or several, direct or indirect, acquired outright,
conditionally or as collateral security by Lender from another, liquidated or
unliquidated, arising by operation of law or otherwise, together with all fees
and expenses incurred in collecting any or all of the items specified in this
definition or enforcing any rights under any of the Guaranty Documents,
including all fees and expenses of Lender’s counsel and of any experts and
agents which may be paid or incurred by Lender in collecting any such items or
enforcing any such rights.
Section
2. Rules of
Interpretation. When used in this Guaranty: (1) “or” is not exclusive,
(2) a reference to a law includes any amendment or modification to such law, and
(3) a reference to an agreement, instrument or document includes any amendment
or modification of such agreement, instrument or document.
Section
3. Guaranty. Guarantor
hereby guarantees to Lender and its successors, endorsees, transferees and
assigns the prompt and complete payment, as and when due and payable (whether at
stated maturity or by required prepayment, acceleration, demand or otherwise),
of all of the Guaranteed Obligations now existing or hereafter incurred will be
paid strictly in accordance with their terms.
Section
4. Limitation of
Liability. The obligation of Guarantor under this Guaranty
shall be limited to an aggregate amount equal to the largest amount that would
not render the obligation of Guarantor under this Guaranty subject to avoidance
under Section 548 of the United States Bankruptcy Code or any comparable
provision of any applicable state law.
Section
5. Type of Guaranty.
This Guaranty is absolute and unconditional and as such is not subject to any
conditions and Guarantor is fully liable to perform all of its duties and
obligations under this Guaranty as of the date of execution of this Guaranty.
This Guaranty is a continuing guaranty and applies to all future Guaranteed
Obligations. In addition, this Guaranty shall remain in full force and effect
even if at any time there are no outstanding Guaranteed Obligations. This
Guaranty is a guaranty of payment and not of collection. The obligations and
liabilities of Guarantor under this Guaranty shall not be conditioned or
contingent upon the pursuit by Lender of any right or remedy against Borrower,
Grantor or any other person which may be or become liable in respect of all or
any part of the Guaranteed Obligations, or against any assets securing the
payment of the Guaranteed Obligations or guarantee for such Guaranteed
Obligations or right of setoff with respect to such Guaranteed Obligations. This
Guaranty is irrevocable and as such cannot be cancelled, terminated or revoked
by Guarantor.
Section
6. Reinstatement of
Guaranty. This Guaranty shall continue to be effective or shall be
reinstated, as the case may be, if at any time any payment, or any part thereof,
of any of the Guaranteed Obligations are rescinded or must otherwise be returned
by Lender upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of Borrower, Grantor or otherwise, all as though such payment had
not been made.
Guarantor
hereby consents that, without the necessity of any reservation of rights against
Guarantor and without notice to or further assent by Guarantor, any demand for
payment of any of the Guaranteed Obligations made by Lender may be rescinded by
Lender and any of such Guaranteed Obligations continued after such
rescission.
Section
7. Security Interest. To
secure the payment of the obligations of Guarantor under this Guaranty,
Guarantor has executed a Pledge Agreement in favor of, and grants Lender a
pledge and security interest in the Pledged Shares listed in Schedule 1 to the
Pledge Agreement.
Section
8. Waiver of Notices.
Guarantor hereby waives any and all notices including (1) notice of or proof of
reliance by Lender upon this Guaranty or acceptance of this Guaranty, (2) notice
of the incurrence of any Guaranteed Obligations or the renewal, extension or
accrual of any such Guaranteed Obligations, (3) notice of any actions taken by
Lender, Borrower, Grantor or any other person under any Guaranty Document, and
(4) notices of nonpayment or nonperformance, protest, notices of protest and
notices of dishonor.
Section
9. Waiver of Defenses.
Guarantor hereby waives any and all defenses to the performance by Guarantor of
its duties and obligations under this Guaranty, including any defense based on
any of the following:
(1) any failure
of Lender to disclose to Guarantor any information relating to the business,
condition (financial or otherwise), operations, performance, properties or
prospects of any party obligated to make payment on any and all Guaranteed
Obligations, whether as principal or guarantor, now or hereafter known to
Lender,
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(2) any defense
to the payment of any or all the Guaranteed Obligations, including lack of
validity or enforceability of any of the Guaranteed Obligations or any Guaranty
Documents,
(3) any change in
the time, manner or place of payment of, or in any other term in respect of, all
or any of the Guaranteed Obligations, or any other amendment or waiver of or
consent to any departure from any Guaranty Document,
(4) any exchange
or release of, or non-perfection of any security interest on or in any assets
securing the payment of the Guaranteed Obligations,
(5) any failure
to execute any other guaranty for all or any part of the Guaranteed Obligations,
or any release or amendment or waiver of, or consent to any departure from, any
other guaranty for any or all of the Guaranteed Obligations,
(6) any
subordination of any or all of the Guaranteed Obligations,
(7)
any act or omission of Lender in connection with the enforcement of, or the
exercise of rights and remedies, including any election of, or the order of
exercising any, remedies, with respect to (a) the Guaranteed Obligations, (b)
any other guarantor of the Guaranteed Obligations, or (c) any assets securing
the payment of the Guaranteed Obligations,
(8) any manner of
application of any funds received by Lender to Guaranteed Obligations or any
other obligations owed to Lender, whether from the sale or disposition of any
assets securing the Guaranteed Obligations, from another guarantor of the
Guaranteed Obligations or otherwise, and
(9) any failure
to give or provide any notices, demands or protests, including those specified
under Section 8 herein, entitled “Waiver of Notices”.
Section
10. Subrogation.
Guarantor may not exercise any rights which Guarantor may acquire by way of
subrogation or contribution, whether acquired by any payment made under this
Guaranty, by any setoff or application of funds of Borrower, by Lender or
otherwise, until (1) the payment in full of the Guaranteed Obligations (after
Lender no longer has any obligation or arrangement to provide credit to
Borrower, including under or pursuant to a line of credit), and (2) the payment
of all fees and expenses to be paid by Guarantor pursuant to this
Guaranty. If any amount shall be paid to Guarantor on account of such
subrogation or contribution rights at any time when all of the Guaranteed
Obligations and all such other expenses shall not have been paid in full (after
Lender no longer has any obligation or arrangement to provide credit to
Borrower, including under or pursuant to a line of credit), such amount shall be
held in trust for the benefit of Lender, shall be segregated from the other
funds of Guarantor and shall forthwith be paid over to Lender to be credited and
applied in whole or in part by Lender against the Guaranteed Obligations,
whether matured or unmatured, and all such other fees and expenses in accordance
with the terms of the Guaranty Documents.
Section
11. Representations. At
the time of execution of this Guaranty and each time Lender provides credit as
noted above, Guarantor represents and warrants to Lender as
follows:
(1) Name. The
exact legal name of the Guarantor is the name specified in the preamble to this
Guaranty. The Guarantor has not been known by any other name during
the five (5) years prior to the date of the Guaranty.
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(2) Location. The
principal residence of the Guarantor is c/o BroadWebAsia, Inc., 0000 Xxxxxx
Xxxxxxxxx, Xxxxx 0000, Xxxx Xxxxxxxxx, XX 00000.
(3) No
Contravention. The execution, delivery and performance by
Guarantor of this Guaranty do not and will not (a) violate any provision of any
law, order, writ, judgment, injunction, decree, determination, or award
presently in effect applicable to Guarantor, (b) result in a breach of or
constitute a default under any indenture or loan or credit agreement or any
other agreement, lease, or instrument to which Guarantor is a party or by which
Guarantor or its properties may be bound or affected, or (c) result in, or
require, the creation or imposition of any lien upon or with respect to any of
the properties now owned or hereafter acquired by Guarantor.
(4) Governmental
Authority. No authorization, approval or other action by, and
no notice to or filing with, any governmental authority is required for the due
execution, delivery and performance by Guarantor of this Guaranty.
(5) Legally Enforceable
Guaranty. This Guaranty is the legal, valid and binding
obligation of Guarantor, enforceable against Guarantor in accordance with its
terms, except to the extent that such enforcement may be limited by (a)
applicable bankruptcy, insolvency, and other similar laws affecting creditors'
rights generally, or (b) general equitable principles, regardless of whether the
issue of enforceability is considered in a proceeding in equity or at
law.
Section
12. Remedies. Lender
shall not, by any act, delay, omission or otherwise, be deemed to have waived
any of its rights or remedies under this Guaranty or otherwise. A waiver by
Lender of any right or remedy hereunder on any one occasion, shall not be
construed as a ban or waiver of any such right or remedy which Lender would have
had on any future occasion, nor shall Lender be liable for exercising or failing
to exercise any such right or remedy. The rights and remedies of Lender under
this Guaranty are cumulative and, as such, are in addition to any other rights
and remedies available to Lender under law or any other agreements.
Section
13. Appointment as
Attorney-in-Fact. Guarantor hereby appoints Lender as the
attorney-in-fact for Guarantor, with full authority in the place and stead of
Guarantor and in the name of Guarantor or otherwise, to exercise all rights and
remedies granted to Lender under this Guaranty and to take any action and to
execute any instrument which Lender may deem necessary or advisable to
accomplish the purposes of this Guaranty.
Section
14. Indemnity and
Expenses. Guarantor hereby indemnifies Lender from and against any and
all claims, losses, damages and liabilities growing out of or resulting from
this Guaranty (including, without limitation, enforcement of this Guaranty),
except claims, losses, damages or liabilities resulting from Lender's gross
negligence and willful misconduct.
Guarantor
will upon demand pay to Lender the amount of any and all expenses, including the
fees and expenses of its counsel and of any experts and agents, which Lender may
incur in connection with (1) any amendment to this Guaranty, (2) the
administration of this Guaranty, (3) the exercise or enforcement of any of the
rights of Lender under this Guaranty, or (4) the failure by Guarantor to perform
or observe any of the provisions of this Guaranty.
Section
15. Amendments. No
amendment or waiver of any provision of this Guaranty, nor consent to any
departure by Guarantor from this Guaranty, shall in any event be effective
unless the same shall be in writing and signed by Guarantor and Lender, and then
such amendment or waiver shall be effective only in the specific instance and
for the specific purpose for which given.
Section
16. Addresses for
Notices. All notices and other communications provided for under this
Guaranty shall be in writing and, mailed or delivered by messenger or overnight
delivery service, addressed, in the case of Guarantor at its address specified
below its signature, and in the case of Lender at the address specified below,
or as to any such party at such other address as shall be designated by such
party in a written notice to the other party complying as to delivery with the
terms of this Section.
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If to Lender:
Able Income Fund, LLC
000 Xxxx
Xxxxx Xxx
Xxxxxxx
XX, 00000
000-000-0000
Phone
000-000-0000
Fax
If to Guarantor:
Xxxx Xxxxxxxxx
0000 Xxxxxx Xxxxxxxxx, Xxxxx
0000
Xxxx Xxxxxxxxx, XX 00000
All such
notices and other communications shall, when mailed, be effective three (3) days
after being placed in the mails, or when delivered to a messenger or overnight
delivery service, be effective one (1) day after being delivered to the
messenger or overnight delivery service, in each case, addressed as specified
above.
Section
17. Assignment and Transfer of
Obligations. This Guaranty will bind the estate of Guarantor as to
Guaranteed Obligations created or incurred both before and after the death or
incapacity of Guarantor, whether or not Lender receives notice of such death or
incapacity. This Guaranty shall inure to the benefit of Lender and its
successors, transferees and assigns. Guarantor may not transfer or assign its
obligations under this Guaranty. Lender may assign or otherwise transfer all or
a portion of its rights or obligations with respect to the Guaranteed
Obligations to any other party, and such other party shall then become vested
with all the benefits in respect of such transferred Guaranteed Obligations
granted to Lender in this Guaranty or otherwise. Guarantor agrees that Lender
can provide information regarding Guarantor to any prospective or actual
successor, transferee or assign.
Section
18. Setoff. Guarantor
agrees that, in addition to, and without limiting, any right of setoff, Lender’s
lien or counterclaim Lender may otherwise have, Lender shall be entitled, at its
option, to offset balances (general or special, time or demand, provisional or
final) held by it for the account of Guarantor, at any of the offices of Lender,
in Dollars or any other currency, against any amount payable by Guarantor to
Lender under this Guaranty which is not paid when demanded (regardless of
whether such balances are then due to Guarantor), in which case Lender shall
promptly notify Guarantor, provided that Lender’s failure to give such notice
shall not affect the validity of such offset.
Section
19. Submission to
Jurisdiction. Guarantor hereby irrevocably submits to the jurisdiction of
any federal or state court sitting in New York County in the State of New York
over any action or proceeding arising out of or related to this Guaranty and
agrees with Lender that personal jurisdiction over Guarantor rests with such
courts for purposes of any action on or related to this Guaranty. Guarantor
hereby waives personal service by manual delivery and agrees that service of
process may be made by prepaid certified mail directed to Guarantor at the
address of Guarantor for notices under this Guaranty or at such other address as
may be designated in writing by Guarantor to Lender, and that upon mailing of
such process such service will be effective as if Guarantor was personally
served. Guarantor agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any manner provided by law. Guarantor further waives any
objection to venue in any such action or proceeding on the basis of inconvenient
forum. Guarantor agrees that any action on or proceeding brought against Lender
shall only be brought in such courts.
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Section
20. Governing
Law. This Guaranty shall be governed by and construed in
accordance with the laws of the State of New York without regard to its
principles of conflicts of law.
Section
21. Subordination. Once a
demand for payment is made on the Guarantor under this Guaranty Guarantor will
not (1) make any demand for payment of, or take any action to accelerate, any
obligation owed to Guarantor by Borrower, (2) seek to collect payment of, or
enforce any right or remedies against Borrower, any of the obligations owed to
Guarantor by Borrower or any guarantees, credit supports, collateral or other
security related to or supporting any of such obligations, or (3) commence, or
join with any other creditor in commencing, any bankruptcy or similar proceeding
against Borrower. Guarantor also agrees that the payment of all obligations of
Borrower to Guarantor shall be subordinate and junior in time and right of
payment in accordance with the terms of this Section to the prior payment in
full (in cash) of the Guaranteed Obligations. In furtherance of such
subordination, (1) to the extent possible, Guarantor will not take or receive
from Borrower any payments, in cash or any other property, by setoff or any
other means, of any or all of the obligations owed to Guarantor by Borrower, or
purchase, redeem, or otherwise acquire any of such obligations, or change the
terms or provisions of any such obligations and (2) if for any reason and under
any circumstance Guarantor receives a payment on such obligation, whether in a
bankruptcy or similar proceeding or otherwise, all such payments or
distributions upon or with respect to such obligations shall be received in
trust for the benefit of Lender, shall be segregated from other funds and
property held by Guarantor and shall be forthwith paid over to Lender in the
same form as so received (with any necessary endorsement) to be applied (in the
case of cash) to, or held as collateral (in the case of securities or other
non-cash property) for, the payment or prepayment of the Guaranteed Obligations.
Guarantor agrees that any subrogation rights Guarantor may acquire as a result
of a payment under this Section may not be exercised until (1) the payment in
full of the Guaranteed Obligations (after Lender no longer has any obligation or
arrangement to provide credit to Borrower, including under or pursuant to a line
of credit), and (2) the payment of all fees and expenses to be paid by Guarantor
pursuant to this Guaranty.
Section
22. Miscellaneous. This
Guaranty is in addition to and not in limitation of any other rights and
remedies Lender may have by virtue of any other instrument or agreement
previously, contemporaneously or hereafter executed by Guarantor or any other
party or by law or otherwise. If any provision of this Guaranty is contrary to
applicable law, such provision shall be deemed ineffective without invalidating
the remaining provisions of this Guaranty. Titles in this Guaranty are for
convenience of reference only and shall not affect the interpretation or
construction of this Guaranty. This Guaranty constitutes the entire agreement
between Guarantor and Lender with respect to the matters covered by this
Guaranty and supercedes all written or oral agreements with respect to such
matters.
Section
23. WAIVER OF JURY TRIAL.
GUARANTOR EXPRESSLY WAIVES ANY AND EVERY RIGHT TO A TRIAL BY JURY IN ANY ACTION
ON OR RELATED TO THIS GUARANTY.
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IN
WITNESS WHEREOF, Guarantor has duly executed and delivered this Guaranty as of
the date of this Guaranty.
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/s/
Xxxx
Xxxxxxxxx
Xxxx Xxxxxxxxx
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