SUBSIDIARY GUARANTY
THIS SUBSIDIARY GUARANTY (this
“Subsidiary
Guaranty”), dated as of June 25, 2009, among Map VI Acquisition, Inc., a
Delaware corporation (the “Company”), the each
of the entities set forth on the signature page hereof (individually, a “Subsidiary Guarantor”
and collectively the “Subsidiary
Guarantor”), for the benefit of RM Enterprises International Ltd. and its
endorsees, transferees and assigns (the “Secured
Party”).
WITNESSETH:
WHEREAS,
pursuant to a Loan and Security Agreement, dated the date hereof, between
Company and the Secured Party (the “Agreement”), the
Secured Party has agreed to lend to the Company the principal sum of $6,000,000
(the “Loan”),
due two years from the date of issue under the terms of a secured convertible
promissory note (the “Note”), which is
convertible into shares of Company’s Common Stock, par value $.0001 per share
(the “Common
Stock”). In connection therewith, Company shall issue the
Secured Party Common Stock purchase warrants (the “Warrants”);
and
WHEREAS,
the Company and the Subsidiary Guarantors have been, and are now, engaged in the
business of operating radio broadcast stations; and
WHEREAS,
the Subsidiary Guarantors constitute all of the subsidiaries of the Company and
it is in the best interest of the Subsidiary Guarantors as subsidiaries of the
Company and the indirect beneficiaries of the Purchase and Note, that the
Secured Party enter into the Agreement and make the Loan to the Company;
and
WHEREAS,
as a material inducement to the Secured Party to enter into the Agreement and
make the Loan, the Secured Party has required and the Subsidiary Guarantors have
agreed to unconditionally guarantee the timely and full satisfaction of all
obligations of the Company, whether matured or unmatured, now or hereafter
existing or created and becoming due and payable (the “Obligations”) to the
Secured Party, its successors, endorsees, transferees or assigns under the Loan
Documents (as defined in the Agreement); and
WHEREAS,
in light of the foregoing, each Subsidiary Guarantor expects to derive
substantial benefit from the Agreement and issuance of the Notes and the
transactions contemplated thereby and, in furtherance thereof, has agreed to
execute and deliver this Subsidiary Guaranty.
NOW,
THEREFORE, in consideration of the foregoing recitals, and the mutual covenants
contained herein, the parties hereby agree as follows:
1. Guaranty. The
Subsidiary Guarantors, jointly and severally, hereby absolutely, unconditionally
and irrevocably guarantee to the Secured Party, its successors, endorsees,
transferees and assigns the due and punctual performance and payment of the
Obligations owing to the Secured Party, its successors, endorsees, transferees
or assigns when due, all at the time and place and in the amount and manner
prescribed in, and otherwise in accordance with, the Loan Documents, regardless
of any defense or set-off counterclaim which the Company or any other person may
have or assert, and regardless of whether or not the Secured Party or anyone on
behalf of the Secured Party shall have instituted any suit, action or proceeding
or exhausted its remedies or taken any steps to enforce any rights against the
Company or any other person to compel any such performance or observance or to
collect all or part of any such amount, either pursuant to the provisions of the
Loan Documents or at law or in equity, and regardless of any other condition or
contingency.
2. Waiver of
Demand. The Subsidiary Guarantors hereby
unconditionally: (i) waives any requirement that the Secured Party,
in the event of a breach in any material respect by the Company of any of its
representations or warranties in the Loan Documents , first make demand upon, or
seek to enforce remedies against, the Company or any other person before
demanding payment of enforcement hereunder; (ii) covenants that this Subsidiary
Guaranty will not be discharged except by complete performance of all the
Obligations; (iii) agrees that this Subsidiary Guaranty shall remain in full
force and effect without regard to, and shall not be affected or impaired,
without limitation, by, any invalidity, irregularity or unenforceability in
whole or in part of the Loan Documents or any limitation on the
liability of the Company thereunder, or any limitation on the method or terms of
payment thereunder which may now or hereafter be caused or imposed in any manner
whatsoever; and (iv) waives diligence, presentment and protest with respect to,
and notice of default in the performance or payment of any Obligation by the
Company under or in connection with the Loan Documents .
3. Absolute
Obligation. Each Subsidiary Guarantor acknowledges and agrees
that (i) no Secured Party has made any representation or warranty to such
Subsidiary Guarantor with respect to the Company, any of its subsidiaries, any
Loan Documents or any agreement, instrument or document executed or
delivered in connection therewith, or any other matter whatsoever, and (ii) such
Subsidiary Guarantor shall be liable hereunder, and such liability shall not be
affected or impaired, irrespective of (A) the validity or enforceability of any
Loan Documents , or any agreement, instrument or document executed or delivered
in connection therewith, or the collectability of any of the Obligations, (B)
the preference or priority ranking with respect to any of the Obligations, (C)
the existence, validity, enforceability or perfection of any security interest
or collateral security under any Loan Documents , or the release, exchange,
substitution or loss or impairment of any such security interest or collateral
security, (D) any failure, delay, neglect or omission by any Secured Party to
realize upon or protect any direct or indirect collateral security,
indebtedness, liability or obligation, any Loan Documents , or any agreement,
instrument or document executed or delivered in connection therewith, or any of
the Obligations, (E) the existence or exercise of any right of set-off by any
Secured Party, (F) the existence, validity or enforceability of any other
guaranty with respect to any of the Obligations, the liability of any other
person in respect of any of the Obligations, or the release of any such person
or any other guarantor of any of the Obligations, (G) any act or omission of any
Secured Party in connection with the administration of any Loan
Documents or any of the Obligations, (H) the bankruptcy, insolvency,
reorganization or receivership of, or any other proceeding for the relief of
debtors commenced by or against, any person, (I) the disaffirmance or rejection,
or the purported disaffirmance or purported rejection, of any of the
Obligations, any Loan Documents , or any agreement, instrument or document
executed or delivered in connection therewith, in any bankruptcy, insolvency,
reorganization or receivership, or any other proceeding for the relief of
debtor, relating to any person, (J) any law, regulation or decree now or
hereafter in effect which might in any manner affect any of the terms or
provisions of any Loan Documents , or any agreement, instrument or document
executed or delivered in connection therewith or any of the Obligations, or
which might cause or permit to be invoked any alteration in the time, amount,
manner or payment or performance of any of the Company's obligations and
liabilities (including the Obligations), (K) the merger or consolidation of the
Company into or with any person, (L) the sale by the Company of all or any part
of its assets, (M) the fact that at any time and from time to time none of the
Obligations may be outstanding or owing to any Secured Party, (N) any amendment
or modification of, or supplement to, any Loan Documents , or (O) any other
reason or circumstance which might otherwise constitute a defense available to
or a discharge of the Company in respect of its obligations or liabilities
(including the Obligations) or of such Subsidiary Guarantor in respect of any of
the Obligations (other than by the performance in full
thereof).
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4. Release. The
obligations, covenants, agreements and duties of the Subsidiary Guarantors
hereunder shall not be released, affected or impaired by any assignment or
transfer, in whole or in part, of the Loan Documents or any
Obligation, although made without notice to or the consent of the Subsidiary
Guarantors, or any waiver by the Secured Party, or by any other person, of the
performance or observance by the Company or the Subsidiary Guarantors of any of
the agreements, covenants, terms or conditions contained in the Loan Documents ,
or any indulgence in or the extension of the time or renewal thereof, or the
modification or amendment (whether material or otherwise), or the voluntary or
involuntary liquidation, sale or other disposition of all or any portion of the
stock or assets of the Company or the Subsidiary Guarantors, or any
receivership, insolvency, bankruptcy, reorganization, or other similar
proceedings, affecting the Company or the Subsidiary Guarantors or any assets of
the Company or the Subsidiary Guarantors, or the release of any proper from any
security for any Obligation, or the impairment of any such property or security,
or the release or discharge of the Company or the Subsidiary Guarantors from the
performance or observance of any agreement, covenant, term or condition
contained in or arising out of the Loan Documents by operation of
law, or the merger or consolidation of the Company, or any other cause, whether
similar or dissimilar to the foregoing.
5. Subrogation.
(a) Unless
and until complete performance of all the Obligations, the Subsidiary Guarantors
shall not be entitled to exercise any right of subrogation to any of the rights
of the Secured Party against the Company or any collateral security or guaranty
held by the Secured Party for the payment or performance of the Obligations, nor
shall the Subsidiary Guarantors seek any reimbursement from the Company in
respect of payments made by the Subsidiary Guarantors
hereunder.
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(b) In
the extent that the Subsidiary Guarantors shall become obligated to perform or
pay any sums hereunder, or in the event that for any reason the Company is now
or shall hereafter become indebted to the Subsidiary Guarantors, the amount of
such sum shall at all times be subordinate as to lien, time of payment and in
all other respects, to the amounts owing to the Secured Party under the Loan
Documents and the Subsidiary Guarantors shall not enforce or receive
payment thereof until all Obligations due to the Secured Party under the
Transaction have been performed or paid. Nothing herein contained is
intended or shall be construed to give to the Subsidiary Guarantors any right of
subrogation in or under the Loan Documents , or any right to participate in any
way therein, or in any right, title or interest in the assets of the Secured
Party.
6. Application of Proceeds;
Release. The proceeds of any sale or enforcement of or against
all or any part of the cash or collateral at the time held by the Secured Party
hereunder, shall be applied by the Secured Party first to the payment of the
reasonable costs of any such sale or enforcement, then to the payment of the
principal amount or stated valued (as applicable) of, and interest or dividends
(as applicable) and any other payments due in respect of, the
Obligations. The remainder, if any, shall be paid to the Subsidiary
Guarantors. As used in this Subsidiary Guaranty, “proceeds” shall mean
cash, securities and other property realized in respect of the sale of any
collateral.
7. Representations and
Warranties.
(a) The
Subsidiary Guarantors hereby represent and warrant to the Secured Party
that:
(i) this
Subsidiary Guaranty constitutes a legal, valid and binding obligation of the
Subsidiary Guarantors, enforceable in accordance with its terms.
(ii) the
execution, delivery and performance of this Subsidiary Guaranty and other
instruments contemplated herein will not violate any provision of any order or
decree of any court or governmental instrumentality or of any mortgage,
indenture, contract or other agreement to which the Subsidiary Guarantors are a
party or by which the Subsidiary Guarantors may be bound, and will not result in
the creation or imposition of any lien, charge or encumbrance on, or security
interest in, any of the Subsidiary Guarantors’ properties pursuant to the
provisions of such mortgage, indenture, contract or other
agreement.
(iii) all
representations and warranties relating to it contained in the Purchase
Agreement are true and correct.
(b) The
Company represents and warrants to the Secured Party that it has no knowledge
that any of the representations or warranties of the Subsidiary Guarantors
herein are incorrect or false in any material respect.
8. No Waiver; No Election of
Remedies. No failure on the part of the Secured Party to
exercise, and no delay in exercising, any right, power or remedy hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise by the
Secured Party of any right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or
remedy. The remedies herein provided are cumulative and are not
exclusive of any remedies provided by law. In addition, the exercise
of any right or remedy of the Secured Party at law or equity or under this
Subsidiary Guaranty or any of the documents shall not be deemed to be an
election of Pledgee’s rights or remedies under such documents or at law or
equity.
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9. Termination. This
Subsidiary Guaranty shall terminate on the date on which all Obligations have
been performed, satisfied, paid or discharged in full.
10. Further
Assurances. The parties hereto agree that, from time to time
upon the written request of any party hereto, they will execute and deliver such
further documents and do such other acts and things as such party may reasonably
request in order fully to effect the purposes of this Subsidiary
Guaranty.
11. Miscellaneous.
(a) Payment of
Fees. The Subsidiary Guarantors and the Company jointly and
severally agree to pay all costs including all reasonable attorneys’ fees and
disbursements incurred by the Secured Party in enforcing this Subsidiary
Guaranty in accordance with its terms.
(b) Modification. This
Subsidiary Guaranty contains the entire understanding between the parties with
respect to the subject matter hereof and specifically incorporates all prior
oral and written agreements relating to the subject matter hereof. No
portion or provision of this Subsidiary Guaranty may be changed, modified,
amended, waived, supplemented, discharged, canceled or terminated orally or by
any course of dealing, or in any manner other than by an agreement in writing,
signed by the party to be charged.
(c) Notice. Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (i) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile telephone number
specified in this Section prior to 6:30 p.m. (New York City time) on a Business
Day (as defined in the Purchase Agreement), (ii) the Business Day after the date
of transmission, if such notice or communication is delivered via facsimile at
the facsimile telephone number specified in this Subsidiary Guaranty later than
6:30 p.m. (New York City time) on any date and earlier than 11:59 p.m. (New York
City time) on such date, (iii) the Business Day following the date of mailing,
if sent by nationally recognized overnight courier services, or (iv) upon actual
receipt by the party to whom such notice is required to be given. The
address for such notices and communications shall be as follows:
If to the
Company and the Subsidiary Guarantors:
000
Xxxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
Attention:
Facsimile:
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With a
copy to:
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx
Xxx Xxxx,
XX 00000
Attention:
Xxxxxxx Xxxxxxxx, Esq.
Facsimile:
If to
Secured Party:
RM
Enterprises International Ltd
000 Xxxxx
Xxxxxx, Xxxxx 0000
Xxx Xxxx,
XX 00000
Attention:
Xxxxxx Xxxxxxxxx
Facsimile:
With a
copy to:
Xxxxx X.
Xxxxxxxxx, Esq.
000
Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx,
XX 00000
Facsimile:
212-943-2300
(d) Invalidity. If
any part of this Subsidiary Guaranty is contrary to, prohibited by, or deemed
invalid under applicable laws or regulations, such provision shall be
inapplicable and deemed omitted to the extent so contrary, prohibited or
invalid, but the remainder hereof shall not be invalidated thereby and shall be
given effect so far as possible.
(e) Benefit of
Agreement. This Subsidiary Guaranty shall be binding upon and
inure to the parties hereto and their respective successors and
assigns.
(f) Mutual
Agreement. This Subsidiary Guaranty embodies the arm’s length
negotiation and mutual agreement between the parties hereto and shall not be
construed against either party as having been drafted by it.
(g) New York Law to
Govern. This Subsidiary Guaranty shall be governed by and
construed and enforced in accordance with the internal laws of the State of New
York without regard to the principals of conflicts of law
thereof. Each party 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 with any transaction contemplated hereby or discussed
herein, and hereby irrevocably waives, and agrees not to assert in any suit,
action or proceeding, any claim that it is not personally subject to the
jurisdiction of any such court or that 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 in effect for
notices to it under this agreement and agrees that such service shall constitute
good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process
in any manner permitted by law.
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IN
WITNESS WHEREOF, the parties hereto have caused this Guaranty and Pledge
Agreement to be duly executed by their respective authorized persons as of the
date first indicated above.
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COMPANY
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By:
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SUBSIDIARY
GUARANTORS:
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LIFESTYLE
TALKRADIO NETWORK, INC.
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By:
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Xxxxxxx
Xxxxxx
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GREENWICH
BROADCASTING
CORPORATION
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By:
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Xxxxxxx
Xxxxxx
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BTR
WEST II, INC.
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By:
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Xxxxxxx
Xxxxxx
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WURP
EAST, INC.
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By:
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Xxxxxxx
Xxxxxx
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BTR
COMMUNICATIONS BOSTON II, INC.
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By:
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Xxxxxxx
Xxxxxx
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SECURED
PARTY:
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RM
ENTERPRISES INTERNATIONAL LTD.
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By:
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