LOAN AND SECURITY AGREEMENT
THIS LOAN
AND SECURITY AGREEMENT (this “Agreement”) dated as
of June 25, 2009 (the “Effective Date”),
entered into by and among Map VI Acquisition, Inc., a Delaware corporation
(“Borrower”),
each of Borrower’s subsidiaries signatory to this agreement (each, a “Subsidiary” and
collectively, the “Subsidiaries”), and
RM Enterprises International Ltd. (“Lender”), sets forth
the agreement pursuant to which Borrower is borrowing funds from Lender, and
Lender and each of the Subsidiaries are pledging their respective interests in,
and granting a security interest and general Lien (as defined in Section 14.2
below) in and upon, the Collateral (as defined in Section 14.2 below) as
security for satisfaction of any and all obligations of Borrower arising out of
or related to that certain Secured Convertible Promissory Note made by Borrower
in favor of Lender and dated as of the date hereof or arising out of or related
to this Agreement or any of the Loan Documents (the “Obligations”).
WHEREAS,
Borrower seeks to borrow the principal sum of $6,000,000 (Six Million Dollars)
(the “Principal
Sum”) from Lender to be used as set forth in Section 1.1
below,
WHEREAS,
Lender is willing to lend to Borrower the Principal Sum subject to the terms and
conditions herein upon execution of this Agreement and a Secured Convertible
Promissory Note, a copy of which is attached hereto as Exhibit “A” and made a
part hereof (the “Note”),
and
WHEREAS,
it is in the best interest of the Subsidiaries as subsidiaries of Borrower and
the indirect beneficiaries of this Agreement and the Note, that Lender enter
into this Agreement and purchase the Note from Borrower;
NOW
THEREFORE, in consideration of the premises and mutual covenants contained
herein and for other good, valuable, and binding consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound hereby, agree as follows:
1. Loan.
1.1 Subject
to the terms and conditions of this Agreement, the Note and the Subsidiary
Guaranty executed by each of Borrower’s subsidiaries in connection with the Loan
(collectively, and together with any and all financing statements and any other
agreements or instruments executed by Borrower at Lender’s request the “Loan Documents”), and
subject to there being no Event of Default (as defined herein) under any of the
Loan Documents, (or event which would, with the giving of notice or the passage
of time, mature into an Event of Default), Lender agrees to lend to Borrower an
amount not to exceed the Principal Sum on the terms set forth in the Note and in
this Agreement (the “Loan”).
1.2 The
proceeds from the Loan shall be used solely for the payment of funds to BC Media
Funding Company II, LLC and Media Funding Company, LLC as lender parties under
that certain Agreement of Settlement and General Release dated as of June 1,
2009 (the “Settlement
Agreement”).
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1.3 As
additional consideration for making the Loan, on the date hereof, Borrower is
issuing to Lender warrants to purchase 15,000,000 shares of Borrower’s common
stock, par value $0.0001 per share (the “Common
Stock”).
2. Grant of Liens;
Guaranty.
2.1 As
security for the due and punctual payment and performance in full of all
obligations under this Agreement or the Note (whether at the stated maturity, by
acceleration, or otherwise), Borrower and each Subsidiary hereby pledges, and
grants to the Lender a continuing security interest in and a general Lien (as
hereinafter defined) upon the Collateral and all additions, accessions,
replacements, proceeds and any permitted substitutions thereto,
whether heretofore, now or hereafter received by or delivered or transferred to
the Lender hereunder, and all proceeds of the
foregoing.
2.2 Borrower
hereby agrees to obtain for the benefit of Lender the unconditional guaranty by
each of its subsidiaries of Lender’s timely and full satisfaction of all
Obligations.
3. Continuing Security
Interest.
3.1 This
Agreement creates an assignment, pledge, charge, continuing security interest
in, and general Lien upon, the Collateral and shall (a) remain in full force and
effect until all Obligations under the Note have been indefeasibly paid in full,
(b) be binding upon Borrower and each Subsidiary, and their respective
successors, transferees, and assigns, and (c) inure, together with the rights
and remedies of Lender hereunder, to the benefit of the Lender and its
successors, transferees, and assigns.
3.2 Upon
the indefeasible satisfaction in full of all Obligations due under the Loan
Documents, the pledge, Lien, and security interest granted hereunder shall
terminate and, all rights to the Collateral shall revert to Borrower and to each
Subsidiary, respectively. Upon such termination, the Lender will
execute and deliver to Borrower and each Subsidiary such documents as Borrower
and each Subsidiary shall reasonably request to evidence such termination and
the Lender shall deliver and transfer such Collateral to Borrower and each
Subsidiary, respectively.
4. Delivery and Perfection;
Further Action. Borrower and each Subsidiary hereby
irrevocably authorizes Lender to file one or more financing or continuation
statements, and amendments thereto, relating to all or any part of the
Collateral, and agrees itself to take all such other actions and to execute for
its account and as an agent of Borrower and of each Subsidiary, respectively,
and deliver and file or cause to be filed such other instruments, agreements or
documents, as Lender may reasonably require in order to establish and maintain a
perfected, valid, and continuing first priority security interest and Lien in
the Collateral in accordance with this Agreement and the UCC and other
applicable law including, without limitation, any intellectual property
including trademarks and patents.
5. Proceeds of
Sale. Nothing contained in this Agreement shall limit or
restrict in any way Lender’s right to receive Proceeds (as defined in Section
14.2 below) of the Collateral in any form in accordance with the provisions of
this Agreement.
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6. Representations and
Warranties. To induce Lender to enter into the Loan Documents
and to agree to make the Loan described herein, Borrower represents and
warrants, and seeks to have Lender rely on the statements as set forth herein,
that as of the date hereof (except as otherwise described or set forth in any of
the Borrower’s filings with the Securities and Exchange Commission pursuant to
the Exchange Act of 1934, as amended) (the “SEC
Filings”):
6.1 Power
and Authority. Borrower has the requisite corporate power and
authority to enter into this Agreement and otherwise to carry out its
obligations thereunder. The execution, delivery and performance by
Borrower of this Agreement and the filings contemplated therein have been duly
authorized by all necessary action on the part of Borrower and no further action
is required by Borrower. This Agreement constitutes a legal, valid
and binding obligation of Borrower enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditor’s rights generally.
6.2 Collateral. Borrower
and each Subsidiary is the sole owner of its respective Collateral (except for
non-exclusive licenses granted by Borrower and each Subsidiary in the ordinary
course of business), free and clear of any liens, security interests,
encumbrances, rights or claims, and is fully authorized to grant the Security
Interest in and to pledge the Collateral. There is not on file in any
governmental or regulatory authority, agency or recording office an effective
financing statement, security agreement, license or transfer or any notice of
any of the foregoing (other than those that have been filed in favor of the
Secured Party pursuant to this Agreement) covering or affecting any of
the Collateral. So long as this Agreement shall be in
effect, Borrower shall not execute and shall not knowingly permit to be on file
in any such office or agency any such financing statement or other document or
instrument (except to the extent filed or recorded in favor of the Secured Party
pursuant to the terms of this Agreement)
6.2 No
Violation. The execution, delivery or performance of the obligations
by Borrower and compliance by Borrower with the terms and provisions hereof and
thereof, (a) do not contravene any provision of any law, statute, rule or
regulation or any order, writ, injunction or decree of any court or governmental
instrumentality applicable to Borrower, (b) do not 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 (other than as contemplated by
the Loan Documents) upon any of the property or assets of Borrower pursuant to
the terms of any material indenture, mortgage, deed of trust, credit agreement,
loan agreement or other agreement, contract or instrument to which Borrower is a
party or by which Borrower or any of its properties or assets are bound or to
which any Borrower may be subject and (c) do no violate any provision of
Borrower’s organizational documents or other agreements or understandings,
including but not limited to, the provisions of the Borrower’s articles of
incorporation, by-laws, or any amendments thereto.
6.3 Governmental
Approvals. Except for (1) any filings with the Secretary of State or
county clerk’s office or office of any Agency or Department of the Federal
Government in connection with the security interests covering any of
the Collateral, and (2) any state or federal securities filings required by this
transaction, no order, consent, approval, license, authorization or
validation of, or filing, recording or registration with, or exemption by, or
other act by (except as have been obtained or made), any governmental or public
body or authority, or any subdivision thereof, is required to authorize, or is
required in connection with, (a) the execution, delivery and performance by
Borrower of the Loan Documents or (b) the legality, validity, binding effect or
enforceability against Borrower of the Loan Documents.
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6.4 Tax
Returns and Payments. Borrower has filed all tax returns required to
be filed by it and has paid all income and franchise taxes payable by it which
have become due pursuant to such tax returns and all other taxes and assessments
payable by it which have become due, other than those not yet delinquent and
except for those contested in good faith and by appropriate
proceedings. The amounts shown on those tax returns fairly present
the tax position of the Borrower does not expect any material adjustments or any
amounts shown on such tax returns. Borrower has paid, or has provided
adequate reserves for the payment of, all foreign, federal and state income and
franchise taxes, all employer and employee withholding taxes and all appropriate
withholding required under state or federal law, applicable for all prior fiscal
years and for the current fiscal year to the date hereof. As of the
date hereof, no tax lien has been filed, and, to the knowledge of Borrower, no
claim is being asserted, with respect to any tax, fee or other
charge.
6.5 Compliance
with Laws, etc. Borrower is in compliance with all applicable
statutes, laws, regulations and orders of, and all applicable restrictions
imposed by, all governmental bodies, domestic or foreign, in respect of the
conduct of its business and the ownership of its properties, except such
noncompliance as would not, in the aggregate, reasonably be expected to have a
material adverse effect on the condition (financial or otherwise), prospects,
assets or properties of Borrower.
6.6 Name;
Location of Offices and Records. Borrower has never conducted
business under any names other than Map VI Acquisition, Inc. The
chief executive offices and the chief place of business for Borrower and the
office where Borrower keeps its books and records, are located at the addresses
set forth in Section 14.3 hereof.
6.7 Borrower’s
Organization. Borrower is a corporation duly formed under the laws of
the State of Delaware. Borrower and each of its subsidiaries are in
good standing under the laws of their respective states of
organization.
6.8 Subsidiaries. Other
than the Subsidiaries, Borrower has no subsidiary and does not own any shares of
capital stock or other securities of or equity interest in any other
Person. The legal name and the address of each subsidiary is set
forth on Schedule 6.8.
6.9 Security
Interest. This Agreement creates in favor of Lender a valid security
interest in the Collateral securing the payment and performance of the
Obligations and, upon making the filings described in the immediately following
sentence, a perfected first priority security interest in such
Collateral. Except for the filing of financing statements on Form-1
under the UCC with the jurisdictions indicated on Schedule 6.9,
attached hereto, no authorization or approval of or filing with or notice to any
governmental authority or regulatory body is required either for the grant
by Borrower of, or the effectiveness of, the Security Interest granted hereby or
for the execution, delivery and performance of this Agreement by Borrower or
for the perfection of or exercise by Lender of its rights and remedies
hereunder.
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6.10 Capitalization. As
of the date hereof, the authorized capital stock of the Company consists of (i)
75,000,000 shares of Common Stock, of which as of the date hereof, 72,311,304
are issued and outstanding, none of which are reserved for issuance pursuant to
the Company's stock option and purchase plans and no other shares are reserved
for issuance pursuant to securities (other than the shares issuable upon
conversion of the Note) exercisable or exchangeable for, or convertible into,
shares of Common Stock. All of such outstanding shares have been, or
upon issuance will be, validly issued and are fully paid and
nonassessable. Except as disclosed in Schedule 6(10): (i)
none of the Company's capital stock is subject to preemptive rights or any other
similar rights or any liens or encumbrances suffered or permitted by the
Company; (ii) there are no outstanding options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, or exercisable or exchangeable for, any
capital stock of the Company or any of its Subsidiaries, or contracts,
commitments, understandings or arrangements by which the Company or any of its
Subsidiaries is or may become bound to issue additional capital stock of the
Company or any of its Subsidiaries or options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, or exercisable or exchangeable for, any
capital stock of the Company or any of its Subsidiaries; (iii) there are no
outstanding debt securities, notes, credit agreements, credit facilities or
other agreements, documents or instruments evidencing Indebtedness of the
Company or any of its Subsidiaries or by which the Company or any of its
Subsidiaries is or may become bound; (iv) there are no financing statements
securing obligations in any material amounts, either singly or in the aggregate,
filed in connection with the Company or any of its Subsidiaries; (v) there are
no agreements or arrangements under which the Company or any of its Subsidiaries
is obligated to register the sale of any of their securities under the
Securities Act of 1933, as amended (the “Securities Act”);
(vi) there are no outstanding securities or instruments of the Company or any of
its Subsidiaries which contain any redemption or similar provisions, and there
are no contracts, commitments, understandings or arrangements by which the
Company or any of its Subsidiaries is or may become bound to redeem a security
of the Company or any of its Subsidiaries; (vii) there are no securities or
instruments containing anti-dilution or similar provisions that will be
triggered by the issuance of the Securities; (viii) the Company does not have
any stock appreciation rights or "phantom stock" plans or agreements or any
similar plan or agreement; and (ix) the Company and its Subsidiaries have no
liabilities or obligations required to be disclosed in the SEC Filings but not
so disclosed in the SEC Filings, other than those incurred in the ordinary
course of the Company's or its Subsidiaries' respective businesses and which,
individually or in the aggregate, do not or would not have a material adverse
effect. Borrower has furnished to Lender true, correct and complete
copies of its Certificate of Incorporation, as amended and as in effect on the
date hereof and its Bylaws, as amended and as in effect on the date hereof, and
the terms of all securities convertible into, or exercisable or exchangeable
for, shares of Common Stock and the material rights of the holders thereof in
respect thereto.
6.11 Indebtedness. All
financial statements of the Borrower and all related financial data set forth in
the Borrower’s Current Report on Form 8-K/A filed February 6, 2009 (the “Form 8-K”) were
true and correct in all material respects as of their respective dates and for
the periods covered, and no material adverse change has occurred in the
financial condition presented therein since the respective dates
thereof. Since the date of the latest balance sheet set forth in the
Form 8-K, except as set forth on Schedule 6.11,
Borrower has incurred no indebtedness other than in the ordinary course of
business.
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7. Covenants. In
consideration of the Loan described herein, Borrower covenants and agrees that,
from the date of this Agreement until the indebtedness represented by the Note
and all other amounts owed under the Loan Documents are paid in full in cash,
Borrower shall comply with the following provisions:
7.1 No
Disposition. Borrower will not sell, assign, transfer, exchange, or
otherwise dispose of, or grant any option with respect to, any of the
Collateral, nor will it create, incur, or permit to exist any Lien on or with
respect to any of the Collateral, any interest therein, or any Proceeds thereof,
other than in the ordinary course of business or any Permitted
Lien. Borrower covenants and agrees that it will
take all action necessary to remove any claims to, interest in, or Lien upon the
Collateral and the security interest granted hereby, and shall defend the right,
title and interest of Lender in and to the Collateral against claims and demands
of all persons and entities at any time claiming the same or any interest
therein.
7.2 Use
of Proceeds. All proceeds of the Loan will be used by Borrower
exclusively as provided in Section 1.2.
7.3 SEC
Filings. Borrower shall, within ninety (90) days of the Effective
Date, file with the Securities and Exchange Commission all periodic and other
reports it is required to file under the Securities Exchange Act of 1934, as
amended (the “Exchange
Act”) or which it was required to file and which it has not filed to
date. Until the earliest of the time that Lender no longer owns
Securities, Borrower covenants to maintain the registration of the Common Stock
under Section 12(b) or 12(g) of the Exchange Act and to timely file (or obtain
extensions in respect thereof and file within the applicable grace period) all
reports required to be filed by Borrower after the date hereof pursuant to the
Exchange Act. As long as Lender owns Securities, if Borrower is not required to
file reports pursuant to the Exchange Act, it will prepare and furnish to Lender
and make publicly available in accordance with Rule 144(c) promulgated under the
Securities Act, such information as is required for lender to sell the
Securities under Rule 144. Borrower further covenants that it will take such
further action as Lender may reasonably request, to the extent required from
time to time to enable Lender to sell such Securities without registration under
the Securities Act within the requirements of the exemption provided by Rule
144.
7.4 Taxes,
Assessments and Liabilities. Borrower shall pay all taxes,
assessments, and other liabilities when due, except for those which are
contested in good faith.
7.5 Good
Standing. Borrower shall remain in good standing under the laws of
each jurisdiction where Borrower is duly qualified to conduct business and shall
cause each Subsidiary to remain in good standing under the laws of each
jurisdiction where each such Subsidiary is duly qualified to conduct
business.
7.6 Further
Assurances. Borrower shall provide Lender with such additional
information or documentation as Lender may reasonably request from time to
time.
7.7 Records
and Information. Borrower agrees to keep records concerning the
Collateral. Borrower agrees to promptly furnish to the Lender such
information concerning Borrower, the Collateral, and any Account Debtor as the
Lender may reasonably request
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7.8 Incurrence
of Indebtedness. Borrower shall not, incur or guarantee or assume any
indebtedness, other than the indebtedness evidenced by the Note and Permitted
Indebtedness without the prior written consent of the Lender.
7.9 Restricted
Payments. Borrower shall not directly or indirectly, redeem, defease,
repurchase, repay or make any payments in respect of, by the payment of cash or
cash equivalents (in whole or in part, whether by way of open market purchases,
tender offers, private transactions or otherwise), all or any portion of any
Permitted Indebtedness, whether by way of payment in respect of principal of (or
premium, if any) or interest on such indebtedness, if at the time such payment
is due or is otherwise made or after giving effect to such payment, an event
constituting, or that with the passage of time and without being cured would
constitute, an Event of Default has occurred and is continuing.
7.10 Restriction
on Redemption and Cash Dividends. Borrower shall not, directly or
indirectly, redeem, repurchase or declare or pay any cash dividend or
distribution on its capital stock without the prior express written consent of
the Lender.
7.11 Additional
Collateral Covenants.
(i) Borrower and each Subsidiary will maintain and keep
the Collateral in good condition, repair and working order, ordinary wear and
tear excepted, and will not commit or permit any waste or unreasonable
depreciation. Borrower and each of the Subsidiaries will not alter,
remove, or demolish any Collateral without the Lender's prior written consent,
except as may be required by law or in the ordinary course of business or with
respect to Collateral which is worn out, obsolete or of inconsequential
value.
(ii) Borrower and each Subsidiary will comply in all
material respects with all applicable laws and requirements of governmental
authorities affecting the Collateral.
(iii) The Lender may enter Borrower's and each Subsidiary’s
chief executive office (and any other place where any of the Collateral is or
may be located) at all reasonable times and upon reasonable notice to attend to
the Lender's interests and to inspect the Collateral.
(iv) Borrower and each Subsidiary will, at its own expense,
procure and maintain policies of fire, extended coverage, providing coverage of
the Collateral as is commercially reasonable for businesses such as that
operated by Borrower and each Subsidiary.
(v) If Borrower fails to make any payment, perform any
obligation, or do any act set forth in or secured by the Note, the Lender, at
its option, without releasing Borrower from the duty to make such payments,
perform such obligations, or do such acts, then or in the future, may make such
payment, perform such obligation or do such act in such manner and to such
extent as the Lender may deem necessary to protect its interest in the
Collateral.
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(vi) At least ten (10) days prior to the occurrence of any of
the following events, Borrower shall deliver to Lender, at the address set forth
in Section 14.3 hereof, notice of the following impending events: (i) a change
in Borrower’s principal place of business or chief executive office; and (ii) a
change in Borrower’s’ name, identity or corporate structure.
8. Events of
Default. The occurrence of any of the following events or
conditions shall constitute an event of default (each an “Event of Default”)
under this Agreement:
8.1 Borrower's
failure to pay to the Lender any amount of principal, interest or other amounts
when and as due under the Note.
8.2 Borrower’s default
under the Note or any of Borrower’s material contracts (as such term is
construed in Item 601 of Regulation S-K under the Securities Act), unless such
default of a material contract would not have a material adverse effect on the
Borrower or the Borrower’s ability to fulfill its obligations under the Loan
Documents.
8.3 Borrower’s
use of the Loan proceeds for any purpose except as expressly authorized
under the Loan Documents.
8.4 Any
representation or warranty made by Borrower herein or in any Loan Document or
any statement or representation made in any certificate, report or opinion
delivered in connection therewith shall prove to have been incorrect or
misleading in any material respect when made or repeated and such failure
continues unremedied for five (5) business days after notice of such failure is
given to Borrower.
8.5 The
Lender shall fail to have a valid and enforceable perfected Lien in any
Collateral other than solely by reason of any action on the part of the
Lender.
8.6 Any
settlement, compromise, abandonment, or disposition by Borrower of the
Collateral (other than in the ordinary course of business) without the prior
written consent of Lender, provided such written consent is not unreasonably
withheld by Lender.
8.7 Without
the prior written consent of Lender, any act or omission of Borrower that in any
way impairs or reduces the value of the Collateral or any action of Borrower
with respect to the Collateral which interferes with Lender’s ability to realize
on the Collateral or makes such realization more costly for Lender.
8.8 The
failure or refusal by Borrower to perform, or the breach or violation of any of
the terms, obligations, covenants, or warranties of this Agreement or the Note
and that failure or refusal continues unremedied for five (5) business days
after written notice of such failure or refusal is given to Borrower by
Lender.
8.9 Borrower,
pursuant to or within the meaning of Title 11, U.S. Code, or any similar
Federal, foreign or state law for the relief of debtors (collectively, “Bankruptcy Law”) (A)
consents to the appointment of a receiver, trustee, assignee, liquidator or
similar official (a “Custodian”) or (B)
makes a general assignment for the benefit of its creditors.
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8.10 A
court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that (A) is for relief against Borrower in an involuntary case, (B) appoints
a Custodian of Borrower or (C) orders the liquidation of Borrower.
8.11 A
final judgment or judgments for the payment of money aggregating in excess of
$250,000 are rendered against Borrower and which judgments are not, within sixty
(60) days after the entry thereof, bonded, discharged or stayed pending appeal,
or are not discharged within sixty (60) days after the expiration of such stay;
provided, however, that any judgment which is covered by insurance or an
indemnity from a credit worthy party shall not be included in calculating the
$250,000 amount, provided that the creditworthiness of any such party shall be
determined by Lender in its reasonable judgment.
8.12 Any
person or group other than Secured Party or any of its affiliates acquires
beneficial ownership of 15% or more of the outstanding common stock of Borrower,
as defined in Rule 13d of the Securities and Exchange Commission or any change
in control in the management of the Company, including appointment of any
Custodian.
8.13 The
imposition of any Lien senior to any Liens held by Secured Party other than
Permitted Liens.
8.14 Borrower’s
failure to meet its obligations under Section 7.3 hereof.
9. Remedies upon an Event of
Default. Upon the occurrence of, and during the continuance
of, any Event of Default hereunder, Lender shall be entitled, at its option and
without notice, in its discretion, to:
9.1 declare
the Note immediately due and payable and add expenses, and fees (including, but
not limited to reasonable attorneys’ fees) to unpaid principal and interest
whereupon the unpaid principal and interest under the Note, together with fees
thereon and other liabilities and obligations of Borrower accrued hereunder,
shall become immediately due and payable, without presentment, demand, protest,
notice of dishonor, or any other notice of any kind, all of which are expressly
waived by Borrower, anything contained herein notwithstanding;
9.2 enforce
collection of any of the Collateral by suit or any other lawful means available
to the Lender, or demand, collect, or receive any money or property at any time
payable or receivable on account of or in exchange for any of the
Collateral;
9.3 surrender,
release, or exchange or otherwise modify the terms of all or any part of the
Collateral, or compromise or extend or renew for any period any indebtedness
thereunder or evidenced thereby;
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9.4 assert
all other rights and remedies of a Lender under the UCC and any similar statute
or regulation (whether or not in effect in any applicable jurisdiction) and all
other applicable law, including, without limitation, the right to take
possession of, hold, collect, sell, lease, deliver, grant options to purchase,
or otherwise retain, liquidate, or dispose of all or any portion of the
Collateral. The Proceeds of any collection, liquidation, or other
disposition of the Collateral shall be applied by the Lender first to the
payment of all expenses (including, without limitation, all fees, taxes,
reasonable attorneys’ fees and legal expenses) incurred by the Lender in
connection with retaking, holding, collecting, or liquidating the
Collateral. The balance of such Proceeds, if any, shall, to the
extent permitted by law, be applied to the payment of the Obligations in such
order of application as determined by the Lender in its sole discretion to the
extent such order of application is not inconsistent with applicable
law. If notice prior to disposition of the Collateral or any portion
thereof is necessary under applicable law, written notice mailed to Borrower at
its notice address ten (10) days prior to the date of such disposition shall
constitute reasonable notice. Without precluding any other methods of
sale or other disposition, the sale or other disposition of the Collateral or
any portion thereof shall have been made in a commercially reasonable manner if
conducted in conformity with reasonable commercial practices of creditors
disposing of similar property.
10. Rights
Cumulative. All rights, powers and remedies may be exercised
at any time by Lender after the occurrence of any such Event of Default while
said Event of Default continues. The rights, powers, and remedies of
the Lender under this Agreement shall be in addition to all rights, powers, and
remedies given to the Lender by virtue of any statute or rule of law or any
agreement, all of which rights, powers and remedies shall be cumulative and may
be exercised successively or concurrently without impairing the Lender’s
security interest, Lien, and assignment in the Collateral.
11. No
Waiver. No failure or delay on the part of the Lender in
exercising any right, power or privilege hereunder or under the UCC or any other
applicable law shall operate as a waiver hereof or thereof; nor shall any single
or partial exercise of any right, power, or privilege hereunder or under the UCC
or any other applicable law preclude any other or further exercise thereof or
the exercise of any other right, power or privilege hereunder or
thereunder. No notice to or demand on the Lender in any case shall
entitle Borrower to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of the Lender to any other or
further action in any circumstances without notice or demand.
12. Waivers. To
the extent necessary to allow Lender to exercise any and all of its rights and
remedies under the Loan Documents, Borrower hereby waives each of the following
to the fullest extent allowed by law:
12.1 All
statutes of limitations as a defense to any cause of action brought by Lender
against Borrower hereunder.
12.2 Any
defense to payment or performance by Borrower hereunder based upon the
enforceability or invalidity of all or any part of the Obligations.
12.3 Any
defense that arises from the modification, adjustment, renegotiation or
forbearance of any of the Obligations of Borrower to Lender, even if Borrower’s
exposure as a surety is materially affected thereby.
12.4 Any
defense arising from any release of Borrower from any of its Obligations to
Lender.
12.5 Any
right (whether now or hereafter existing) to require Lender, as a condition to
the enforcement of the obligations hereunder, to:
10
(i) accelerate
the Obligations; or
(ii) proceed
against Borrower or compel performance by Borrower, or any other person or
entity, in any manner, sequence, or fashion;
(iii) Proceed
against or exhaust any security held from Borrower or any other person or
entity; or
(iv) pursue
any other remedy in Lender’s power whatsoever.
12.6 Presentment,
demand, protest and notice of any kind, including without limitation notices of
default and notice of presentment, demand, protest or acceptance, except for any
notice expressly required in this Agreement;
12.7 Any
defense based upon genuineness, validity, regularity or enforceability of the
Loan Documents.
13. Conditions to
Close. The obligation of Lender to make the Loan under this
Agreement is subject to the satisfaction of each of the following
conditions:
13.1 Loan
Documents. The Lender shall have received executed counterparts of
all of the Loan Documents from Borrower, and no default which if any of the Loan
Documents were executed and enforceable, would constitute an Event of Default
hereunder shall exist.
13.2 Organizational
Documents. Borrower shall have provided to Lender a copy of
Borrower’s by-laws and each amendment, if any, thereto.
13.3 Good
Standing Certificates. Borrower shall have provided certificates of
good standing for Borrower from the Secretaries of State for each state where
Borrower is organized and where Borrower conducts its principal operations,
certifying that they are in good standing in such states (as of a date
reasonably near the date of execution hereof).
13.4 Governmental
Action. No governmental action shall have been taken and no legal or
arbitration actions shall have been filed which seeks to enjoin or restrain the
extension of credit to Borrower hereunder or compliance by any of Borrower with
the terms and conditions of the Loan Documents.
13.5 Information
Statement. Borrower shall have filed with the Securities and Exchange
Commission a preliminary information statement under Section 14 of the Exchange
Act in connection with an increase in its authorized capital to 250,000,000
shares of common stock (the “Capital
Increase”).
13.6 Release
of Prior Liens. All existing liens (other than Permitted Liens),
including without limitation liens under the Settlement Agreement, shall have
been released and properly completed and executed UCC Termination shall have
been submitted for filing (or deposited into escrow with counsel for Lender for
filing) with the relevant government authority.
11
13.7 Approval
by Borrower’s Board of Directors and Stockholders. The Loan Documents
shall have been (i) approved by the unanimous consent of the Board of Directors,
and (ii) ratified by Borrower’s stockholders.
13.8 Subsidiary
Guaranty. Each of Borrower’s subsidiaries shall have executed and
delivered to Lender the Subsidiary Guaranty.
14. Miscellaneous.
14.1 Amendment. This
Agreement may not be amended or modified except by a writing signed by all of
the parties hereto.
14.2 Definitions. Capitalized
terms used herein and not otherwise defined herein shall have the meanings
provided in the Note. To the extent that any terms or concepts
defined or used herein are defined or used in the UCC (as defined below), such
terms or concepts shall be interpreted for purposes hereof in a manner that is
consistent with such definition or use in the UCC. The following
terms shall have the meanings set forth below:
(i) “Account Debtor” has the
meaning given such term in Section 9102(a)(3) of the UCC.
(ii) “Accounts” has the meaning
given such term in Section 9102(a)(2) of the UCC and includes accounts
receivables of the Borrower and each Subsidiary.
(ii) “Collateral” shall mean all
right, title, and interest of Borrower and each Subsidiary, as the case may be,
in and to all property of Borrower and each Subsidiary, respectively, together
with all accessions, replacements substitutions and proceeds thereof, whether
now owned or hereafter acquired and whether now existing or hereafter coming
into existence, including without limitation:
(a) All
Goods of the Borrower and each Subsidiary, respectively, including, without
limitations, all machinery, equipment, computers, motor vehicles, trucks, tanks,
boats, ships, appliances, furniture, special and general tools, fixtures, test
and quality control devices and other equipment of every kind and nature and
wherever situated, together with all documents of title and documents
representing the same, all additions and accessions thereto, replacements
therefor, all parts therefor, and all substitutes for any of the foregoing and
all other items used and useful in connection with Borrower’s or each
Subsidiary’s businesses and all improvements thereto (collectively, the “Equipment”);
and
(b) All
Inventory of Borrower and each Subsidiary, respectively; and
(c)
All of Borrower’s and each Subsidiary’s contract rights and general intangibles,
including, without limitation, all partnership interests, stock or other
securities, licenses, distribution and other agreements, computer software
development rights, leases, franchises, customer lists, quality control
procedures, grants and rights, goodwill, trademarks, service marks, trade
styles, trade names, patents, patent applications, copyrights, deposit accounts,
and income tax refunds (collectively, the “General
Intangibles”); and
12
(d)
All Receivables of Borrower and each Subsidiary, including all
insurance proceeds, and rights to refunds or indemnification whatsoever owing,
together with all instruments, all documents of title representing any of the
foregoing, all rights in any merchandising, goods, equipment, motor vehicles and
trucks which any of the same may represent, and all right, title, security and
guaranties with respect to each Receivable, including any right of stoppage in
transit; and
(e)
All of Borrower’s and each Subsidiary’s documents, instruments and chattel
paper, files, records, books of account, business papers, computer programs and
the products and proceeds of all of the foregoing Collateral set forth in
clauses (i)-(iv) above.
(iv) “Event of Default” shall have
the meaning specified in Section 8 of this Agreement.
(v) “GAAP” means United States
generally accepted accounting principles, consistently applied.
(vi) “General
Intangibles” shall mean and include all of the Borrower’s and each
Subsidiary’s general intangibles (as such term is defined in the UCC) and all
other general intangibles of the Borrower and each Subsidiary, whether now owned
or hereafter acquired including, without limitation, all payment intangibles,
choses in action, causes of action, corporate or other business records,
inventions, designs, patents, patent applications, equipment formulations,
manufacturing procedures, quality control procedures, trademarks, service marks,
trade secrets, goodwill, copyrights, design rights, software, computer
information, source codes, codes, records and dates, registrations, licenses,
franchises, customer lists, tax refunds, tax refund claims, computer programs,
all claims under guaranties, security interests or other security held by or
granted to the Borrower and each Subsidiary, all rights of indemnification and
all other intangible property of every kind and nature.
(vii) "Governmental Body" means any
nation, state, county, city, town, borough, village, district or other
jurisdiction; federal, state, local, municipal, foreign or other government;
governmental or quasi-governmental authority of any nature (including any
agency, branch, department, board, commission, court, tribunal or other entity
exercising governmental or quasi-governmental powers); multinational
organization or body; body exercising, or entitled or purporting to exercise,
any administrative, executive, judicial, legislative, police, regulatory or
taxing authority or power; or official of any of the foregoing.
(viii) “Inventory” means all inventory
of the Borrower and each of each Subsidiary carried on the Borrower’s /or each
Subsidiary’s financial statements, to the extent the same qualify as “goods”
under the UCC.
(ix) “Lien” shall mean a pledge,
assignment, lien, charge, mortgage, encumbrance, or other security interest
obtained under this Agreement or under any other agreement or instrument with
respect to any present or future assets, property, contract rights, or revenues
in order to secure the payment of indebtedness of the party referred to in the
context in which the term is used.
(x) "Person" means an individual,
partnership, corporation, business trust, limited liability company, limited
liability partnership, joint stock company, trust, unincorporated association,
joint venture or other entity or a Governmental Body.
13
(xi) “Permitted Indebtedness” means
(A) indebtedness incurred by the Borrower that is made expressly subordinate in
right of payment to the indebtedness evidenced by this Note, as reflected in a
written agreement acceptable to the Lender and approved by the Lender in
writing, and which indebtedness does not provide at any time for (1) the
payment, prepayment, repayment, repurchase or defeasance, directly or
indirectly, of any principal or premium, if any, thereon until ninety-one (91)
days after the maturity date or later and (2) total interest and fees at a rate
in excess of three percent (3%) over the greater of the interest rate and the
rate for U.S. treasury notes with comparable maturity per annum; (B)
indebtedness existing as of the date hereof ; (C) indebtedness issued in
exchange for, or the net proceeds of which are used to extend, refund, renew,
refinance, defease or replace Permitted Indebtedness; (D) indebtedness incurred
in the ordinary course of business by the Borrower or its subsidiaries
including, without limitation, trade payables, revolving credit card accounts
and similar credit arrangements; (E) indebtedness of the Borrower or any
subsidiary to financial institutions or similar entities in connection with
commercial credit arrangements, equipment financings, commercial property lease
transactions or similar transactions; and (F) indebtedness represented by this
Note.
(xii) “Permitted Liens”
means:
(a)
any Lien for taxes, assessments or
governmental charges or claims not yet due or delinquent or being contested in
good faith by appropriate proceedings for which adequate reserves have been
established in accordance with GAAP;
(b)
any statutory Lien arising in the ordinary course of
business by operation of law with respect to a liability that is not yet due or
delinquent;
(c)
any Lien imposed by law or created by operation of law, including, without
limitation, materialmen's mechanics', landlords’, carriers’, warehousemen’s,
suppliers’ and vendors’ Liens, Liens for master’s and crew’s wages and other
similar Liens, arising in the ordinary course of business with respect to a
liability that is not yet due or delinquent or that are being contested in good
faith by appropriate proceedings;
(d)
Liens securing Borrower’s obligations under the Note.
(xiii) “Proceeds” has the meaning
given such term in Section 9102(a)(64) of the UCC.
(xiv)
“Rule 144” means Rule
144 promulgated under the Securities Act.
(xv) “Securities”, collectively,
means the Note, the Warrants and the shares of Common Stock issuable upon
conversion of the Note and exercise of the Warrants.
(xvi) “Subsidiary” means
any Person of which (i) a majority of the outstanding share capital, voting
securities or other equity interests are owned, directly or indirectly, by
another Person or (ii) such other Person is entitled, directly or indirectly, to
appoint a majority of the board of directors or managers or comparable
supervisory body of the Person.
14
(xvii) “Subsidiary Guaranty” means the
guaranty dated of even date herewith executed by each of Borrower’s subsidiaries
for the benefit of Lender guarantying Borrower’s obligations under the Loan
Documents.
(xviii) “Warrants” means warrants to
acquire 15,000,000 shares of common Stock at $0.01 per share for a period of
five years in the form of Exhibit B.
14.3 Notices. All
notices, requests and other communications provided for or permitted to be given
under this Agreement must be in writing and shall be given by personal delivery,
by certified or registered United States mail (postage prepaid, return receipt
requested), by a nationally recognized overnight delivery service for next day
delivery, or by facsimile transmission, as follows (or to such other address as
any party may give in a notice given in accordance with the provisions
hereof):
If to
Borrower:
000
Xxxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
Attention:
Facsimile:
With a
copy to:
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx
Xxx Xxxx,
XX 00000
Attention:
Xxxxxxx Xxxxxxxx, Esq.
Facsimile:
If to
Lender:
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 Xxxx
Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
XX 00000
Facsimile:
000-000-0000
15
All
notices, requests or other communications will be effective and deemed given
only as follows: (i) if given by personal delivery, upon such
personal delivery, (ii) if sent by certified or registered mail, on the fifth
business day after being deposited in the United States mail, (iii) if sent for
next day delivery by overnight delivery service, on the date of delivery as
confirmed by written confirmation of delivery, (iv) if sent by facsimile, upon
the transmitter’s confirmation of receipt of such facsimile transmission, except
that if such confirmation is received after 5:00 p.m. (in the recipient’s time
zone) on a business day, or is received on a day that is not a business day,
then such notice, request or communication will not be deemed effective or given
until the next succeeding business day. Notices, requests and other
communications sent in any other manner, including by electronic mail, will not
be effective.
14.4 Agents
and Attorneys-in-Fact. Lender may employ agents and attorneys-in-fact
in connection herewith and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected in good
faith.
14.5 Severability
of Provisions. If any provision or any part of any provision of this
Agreement shall for any reason be held to be invalid, unenforceable, or contrary
to public policy or any law, then the remainder of the Agreement shall not be
affected thereby and shall remain in full force and effect.
14.6 Assignment;
Binding Effect. Borrower may not assign either this Agreement or any
of its rights, interests or obligations hereunder without the prior written
approval of Lender, and any such assignment by a party without prior written
approval of Lender will be deemed invalid and not binding on
Lender. All of the terms, agreements, covenants, representations,
warranties and conditions of this Agreement are binding upon, and inure to the
benefit of and are enforceable by, the parties and their respective successors
and permitted assigns.
14.7 Integration
Clause. This Agreement and the Note contain the entire agreement
between the parties pertaining to the subject matter contained herein and
supersede any and all prior and/or contemporaneous oral or written negotiations,
agreements, representations, and understandings with regard to the substance of
this Agreement and the Note. The parties, and each of them,
understand that this Agreement and the Note are made without reliance upon any
inducement, statement, promise, or representation other than those contained
therein.
14.8 Governing
Law. This Agreement will be governed by and construed in accordance
with the laws of the State of New York, without giving effect to any choice of
law principles.
14.9 Advice
of Counsel. Each of the parties acknowledges that they have either
sought and received the advice of legal counsel or have been afforded an
opportunity to seek the advice of counsel regarding this Agreement and the Note
prior to their execution. Neither this Agreement nor the Note, nor
any provision hereof, shall be deemed prepared or drafted by one party or
another, or its attorneys, and shall not be construed more strongly against any
party.
14.10 Voluntary
Execution of Agreement. This Agreement and the
Note are executed voluntarily and without any duress or undue influence on the
part or behalf of the parties hereto. Each party acknowledges that
it: (i) has read this Agreement and the Note; (ii) has
been represented in the preparation, negotiation, and execution of this
Agreement and the Note by legal counsel of its own choice or that it has
voluntarily declined to seek such counsel; (iii) understands the
terms and consequences of this Agreement and the Note; and (iv) is fully aware
of the legal and binding effect of this Agreement and the Note.
16
14.11 Headings. The
section headings contained in this Agreement are inserted for convenience only
and will not affect in any way the meaning or interpretation of this
Agreement.
14.12 Costs;
Expenses. Borrower agrees to pay all of Lender’s costs, attorneys’
fees and expenses, and other fees incurred in connection with this Agreement,
including, without limitation all UCC-search and filing fees. To the
extent that any such costs, fees and expenses are advanced by Lender, upon
Lender’s request, Borrower shall reimburse Lender forthwith for all such costs,
fees and expenses
14.13 Counterparts. This
Agreement may be executed in one or more counterparts and may include multiple
signature pages, all of which will be deemed to be one
instrument. Photocopies and facsimiles of original signature pages
may be deemed as originals.
14.14 Construction. Unless
otherwise defined herein, capitalized terms used herein shall have the meaning
set forth in the Note of even date herewith. Unless the context
clearly indicates otherwise, the singular shall include the plural and the
plural shall include the singular. The masculine, feminine and neuter
gender shall each include the other.
[Signature
Page Follows]
17
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered as of the day and year first written above.
|
BORROWER:
|
||||
|
By:
|
|
|||
|
LENDER:
|
||||
|
RM
ENTERPRISES LTD.
|
||||
|
By:
|
|
|||
|
SUBSIDIARIES:
|
||||
|
LIFESTYLE
TALKRADIO NETWORK, INC.
|
||||
|
By:
|
|
|||
|
Xxxxxxx
Xxxxxx
|
||||
|
GREENWICH
BROADCASTING
CORPORATION
|
||||
|
By:
|
|
|||
|
Xxxxxxx
Xxxxxx
|
||||
|
BTR
WEST II, INC.
|
||||
|
By:
|
|
|||
|
Xxxxxxx
Xxxxxx
|
||||
|
WURP
EAST, INC.
|
||||
|
By:
|
|
|||
|
Xxxxxxx
Xxxxxx
|
||||
|
BTR
COMMUNICATIONS BOSTON II, INC.
|
||||
|
By:
|
|
|||
|
Xxxxxxx
Xxxxxx
|
||||
18
Exhibit
A
SECURED
CONVERTIBLE PROMISSORY NOTE
|
Date: June
25, 2009
|
$6,000,000
|
FOR VALUE RECEIVED, in cash
and other consideration, Map VI Acquisition,
Inc., a Delaware corporation (“Borrower”), hereby
promises to pay to RM Enterprises International Ltd., or its assigns (“Holder”), the sum of
Six Million ($6,000,000) (the “Loan”). This
Note is being issued pursuant to the terms of the Loan and Security Agreement of
even date herewith between the Borrower and Holder (the “Agreement”). Capitalized
term not otherwise defined herein shall have the meaning ascribed thereto in the
Agreement.
(1) PAYMENTS
OF PRINCIPAL. On the Maturity Date, unless an Event of Default shall
have sooner occurred, Borrower shall pay to Lender, in cash, the entire
principal amount under this Secured Promissory Note (this “Note”) plus all
accrued and unpaid interest. The “Maturity Date” shall be
June 25, 2011. Borrower may prepay all or any portion of the
amounts owing under this Note at any time without fee, charge or
premium.
(2) INTEREST. This
Note shall bear interest at the rate of 8% per annum payable, in cash, quarterly
in arrears commencing June 30, 2009.
(3) SECURITY
AND GUARANTY. Borrower’s performance of the obligations and covenants
of this Note, including but not limited to repayment, shall be secured by the
lien and security interest in the Collateral, as set forth in the Agreement,
describing all of the assets of Borrower, wherever located, subject only to
existing perfected liens and encumbrances. Borrower’s performance of
its obligations is guaranteed by each of its subsidiaries pursuant to the terms
of a Subsidiary Guaranty executed by each of Borrower’s subsidiaries
concurrently herewith..
19
(4) CONVERSION.
(a) The
Holder shall have the right from time to time, and at any time on or prior to
the Maturity Date to convert all or any part of the outstanding and unpaid
principal amount of this Note into fully paid and non-assessable shares of
Common Stock, as such Common Stock exists on the Issue Date, or any shares of
capital stock or other securities of the Borrower into which such Common Stock
shall hereafter be changed or reclassified determined as provided herein (a
“Conversion”);
provided, however, that in no
event shall the Holder be entitled to convert any portion of this Note in excess
of that portion of this Note upon conversion of which the sum of (1) the number
of shares of Common Stock beneficially owned by the Holder and its affiliates
and (2) the number of shares of Common Stock issuable upon the conversion of the
portion of this Note with respect to which the determination of this proviso is
being made, would result in beneficial ownership by the Holder and its
affiliates of more than 4.9% of the outstanding shares of Common
Stock. For purposes of the proviso to the immediately preceding
sentence, beneficial ownership shall be determined in accordance with Section
13(d) of the Securities Exchange Act of 1934, as amended, and Regulations 13D-G
thereunder, except as otherwise provided in clause (1) of such
proviso. The number of shares of Common Stock to be issued upon each
conversion of this Note shall be determined based on the Conversion Amount on
the date specified in the notice of conversion, in the form attached hereto as
Exhibit A (the “Notice
of Conversion”), delivered to the Borrower by the Holder in accordance
with Section 10 below; provided that the Notice of Conversion is submitted by
facsimile (or by other means resulting in, or reasonably expected to result in,
notice) to the Borrower before 6:00 p.m., New York, New York time on such
conversion date (the “Conversion
Date”). The term “Conversion Amount”
means, with respect to any conversion of this Note, the sum of (1) the principal
amount of this Note to be converted in such conversion plus (2) accrued and
unpaid interest, if any, on such principal amount at the interest rates provided
in this Note.
(b) The
number of shares to be issued upon conversion shall be equal to two thirds of
the number of shares issued and outstanding shares of Common Stock following the
conversion on a fully diluted basis, determined according to the following
formula (the “Conversion
Ratio”):
C x
(2 x S)
P
For
purposes of the foregoing formula:
C = the
Conversion Amount
P = the
Principal Sum
S = the
total number of issued and outstanding shares of Common Stock on the Conversion
Date, plus all
shares issuable upon the conversion or exercise, respectively, of all
instruments representing rights to acquire Common Stock outstanding at the time
of conversion , including without limitation all options, warrants, shares of
preferred stock and convertible debt instruments
(c) Subject
to the Capital Increase (as defined in Section 13.5 of the Agreement), Borrower
covenants that during the period the conversion right exists, Borrower will
reserve from its authorized and unissued Common Stock a sufficient number of
shares, free from preemptive rights, to provide for the issuance of Common Stock
upon the full conversion of this Note. Borrower is required at all
times to have authorized and reserved two times the number of shares that is
actually issuable upon full conversion of this Note (based on the Conversion
Ratio of the Note or the Exercise Price of the Warrants in effect from time to
time) (the “Reserved
Amount”). The Reserved Amount shall be increased from time to
time to ensure the availability of the Reserved Amount. Borrower
represents that upon issuance, such shares will be duly and validly issued,
fully paid and non-assessable. In addition, if Borrower shall issue
any securities or make any change to its capital structure which would change
the number of shares of Common Stock into which this Note shall be convertible
at the then current Conversion Ratio, Borrower shall at the same time make
proper provision so that thereafter there shall be a sufficient number of shares
of Common Stock authorized and reserved, free from preemptive rights, for
conversion of this Note. Borrower agrees that its issuance of this
Note shall constitute full authority to its officers and agents who are charged
with the duty of executing stock certificates to execute and issue the necessary
certificates for shares of Common Stock in accordance with the terms and
conditions of this Note.
20
(d) This
Note may be converted by Holder in whole or in part at any time from time to
time after the date hereof, by (A) submitting to Borrower a Notice of
Conversion (by facsimile or other reasonable means of communication dispatched
on the Conversion Date prior to 6:00 p.m., New York, New York time) and
(B) surrendering this Note at the principal office of
Borrower.
(e) At
the option of Holder, the sale, conveyance or disposition of all or
substantially all of the assets of Borrower, the effectuation by Borrower of a
transaction or series of related transactions in which more than 50% of the
voting power of Borrower is disposed of, or the consolidation, merger or other
business combination of Borrower with or into any other Person (as defined
below) or Persons when the Borrower is not the survivor shall
either: (i) be deemed to be an Event of Default (as defined in
Article III) pursuant to which the Borrower shall be required to pay to the
Holder upon the consummation of and as a condition to such transaction an amount
equal to the Default Amount (as defined in Article III) or (ii) be treated
pursuant to Section 4(f) hereof. “Person” shall mean
any individual, corporation, limited liability company, partnership,
association, trust or other entity or organization.
(f) If, at any time when
this Note is outstanding, there shall be any merger, consolidation, exchange of
shares, recapitalization, reorganization, or other similar event, as a result of
which shares of Common Stock of Borrower shall be changed into the same or a
different number of shares of another class or classes of stock or securities of
Borrower or another entity, or in case of any sale or conveyance of all or
substantially all of the assets of Borrower other than in connection with a plan
of complete liquidation of Borrower, then Holder shall thereafter have the right
to receive upon conversion of this Note, upon the basis and upon the terms and
conditions specified herein and in lieu of the shares of Common Stock
immediately theretofore issuable upon conversion, such stock, securities or
assets which the Holder would have been entitled to receive in such transaction
had this Note been converted in full immediately prior to such transaction
(without regard to any limitations on conversion set forth herein), and in any
such case appropriate provisions shall be made with respect to the rights and
interests of Holder to the end that the provisions hereof (including, without
limitation, provisions for adjustment of the number of shares issuable upon
conversion of the Note) shall thereafter be applicable, as nearly as may be
practicable in relation to any securities or assets thereafter deliverable upon
the conversion hereof. Borrower shall not effect any transaction
described in this Section 4(f) unless (a) it first gives, to the extent
practicable, thirty (30) days prior written notice (but in any event at least
fifteen (15) days prior written notice) of the record date of the special
meeting of shareholders to approve, or if there is no such record date, the
consummation of, such merger, consolidation, exchange of shares,
recapitalization, reorganization or other similar event or sale of assets
(during which time Holder shall be entitled to convert this Note) and (b) the
resulting successor or acquiring entity (if not Borrower) assumes by written
instrument the obligations of this Section 4(f). The above provisions
shall similarly apply to successive consolidations, mergers, sales, transfers or
share exchanges.
21
(g) If
Borrower shall declare or make any distribution of its assets (or rights to
acquire its assets) to holders of Common Stock as a dividend, stock repurchase,
by way of return of capital or otherwise (including any dividend or distribution
to Borrower’s stockholders in cash or shares (or rights to acquire shares) of
capital stock of a subsidiary (i.e., a spin-off)) (a “Distribution”), then
Holder shall be entitled, upon any conversion of this Note after the date of
record for determining shareholders entitled to such Distribution, to receive
the amount of such assets which would have been payable to Holder with respect
to the shares of Common Stock issuable upon such conversion had such Holder been
the holder of such shares of Common Stock on the record date for the
determination of shareholders entitled to such Note.
(h) If,
at any time when this Note is outstanding, Borrower issues any convertible
securities or rights to purchase stock, warrants, securities or other property
(the “Purchase
Rights”) pro rata to the record holders of any class of Common Stock,
then Holder will be entitled to acquire, upon the terms applicable to such
Purchase Rights, the aggregate Purchase Rights which Holder could have acquired
if Holder had held the number of shares of Common Stock acquirable upon complete
conversion of this Note (without regard to any limitations on conversion
contained herein) immediately before the date on which a record is taken for the
grant, issuance or sale of such Purchase Rights or, if no such record is taken,
the date as of which the record holders of Common Stock are to be determined for
the grant, issue or sale of such Purchase Rights.
(4) EVENT
OF DEFAULT.
(a) Event
of Default. Each of the following events shall constitute an “Event of Default”
hereunder:
(i) Borrower's
failure to pay to the Lender any amount when and as due under this Note;
or
(ii) any
Event of Default (as defined in the Loan and Security Agreement) under the Loan
and Security Agreement including but not limited to the filing of any case or
proceeding under any bankruptcy law or similar provision of state law, or any
effort by Borrower to impose a lien senior to that of Lender in any Collateral
held by Lender.
(b) Acceleration. Upon
the occurrence of an Event of Default under this Note, Lender shall have, at its
option, the right, without further notice or demand, which Borrower hereby
expressly waives, to declare the unpaid principal and interest immediately due
and payable and to exercise any other rights and remedies that Lender may
have. Lender’s failure to accelerate the payment of this Note upon
the occurrence of one or more events of default shall not constitute a waiver of
Lender’s right to exercise such options at any subsequent time with respect to
the same or any other event of default. Lender’s acceptance of any
payment under this Note which is less than payment in full of all amounts then
due and payable shall not constitute a waiver by Lender of any right to declare
a default hereunder or to pursue any remedy available under this Note, at law or
in equity, or under any other agreement, instrument or document entered into by
and between Borrower and Lender.
(5) LOST,
STOLEN OR MUTILATED NOTE. Upon receipt by Borrower of evidence
reasonably satisfactory to Borrower of the loss, theft, destruction or
mutilation of this Note, and, in the case of loss, theft or destruction, of any
indemnification undertaking by the Lender to Borrower in customary form and, in
the case of mutilation, upon surrender and cancellation of this Note, Borrower
shall execute and deliver to the Lender a new Note representing the outstanding
principal.
22
(6) CUMULATIVE
RIGHTS AND INJUNCTIVE RELIEF. The remedies provided in this Note
shall be cumulative and in addition to all other remedies available under this
Note, or any other agreement between Lender and Borrower, at law or in equity
(including a decree of specific performance and/or other injunctive relief) and
nothing herein shall limit the Lender's right to pursue actual and consequential
damages for any failure by Borrower to comply with the terms of this
Note. Borrower acknowledges that a breach by it of its obligations
hereunder will cause irreparable harm to the Lender and that the remedy at law
for any such breach may be inadequate. Borrower therefore agrees
that, in the event of any such breach or threatened breach, the Lender shall be
entitled, upon posting a bond and demonstrating economic loss, in addition to
all other available remedies, to an injunction restraining any
breach.
(7) PAYMENT
OF COLLECTION, ENFORCEMENT AND OTHER COSTS. If (a) this Note is
placed in the hands of an attorney for collection or enforcement or is collected
or enforced through any legal proceeding or the Lender otherwise takes action to
collect amounts due under this Note or to enforce the provisions of this Note or
(b) there occurs any bankruptcy, reorganization, receivership of Borrower or
other proceedings affecting Borrower’s creditors' rights and involving a claim
under this Note, then Borrower shall pay the costs incurred by the Lender for
such collection, enforcement or action or in connection with such bankruptcy,
reorganization, receivership or other proceeding, including, but not limited to,
financial advisory fees and attorneys' fees and disbursements.
(8) CONSTRUCTION;
HEADINGS. This Note shall be deemed to be jointly drafted by Borrower
and the Lender and shall not be construed against any person as the drafter
hereof. The headings of this Note are for convenience of reference
and shall not form part of, or affect the interpretation of, this
Note.
(9) FAILURE
OR INDULGENCE NOT WAIVER. No failure or delay on the part of the
Lender in the exercise of any power, right or privilege hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise of any such power,
right or privilege preclude other or further exercise thereof or of any other
right, power or privilege.
(10) NOTICES;
PAYMENTS.
(a) Notices. 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 (a) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number set forth on
the signature pages attached hereto prior to 5:30 p.m. (Pacific time) on a
Business Day, (b) the next Business Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number set
forth on the signature pages attached hereto on a day that is not a Business Day
or later than 5:30 p.m. (Pacific time) on any Business Day, (c) the
2nd Business Day following the date of mailing, if sent by U.S.
nationally recognized overnight courier service, or (d) 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 set forth below:
23
If to
Borrower:
000
Xxxxxxx Xxxxxx
Xxxxxxxx,
XX 00000
Attention:
Facsimile:
With a
copy to:
Sichenzia
Xxxx Xxxxxxxx Xxxxxxx LLP
00
Xxxxxxxx
Xxx Xxxx,
XX 00000
Attention:
Xxxxxxx Xxxxxxxx, Esq.
Facsimile:
If to
Lender:
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 Xxxx
Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
XX 00000
Facsimile:
212-943-2300
(b) Payments. Whenever
any payment of cash is to be made by Borrower to any Person pursuant to this
Note, such payment shall be made in lawful money of the United States of America
by a check drawn on the account of Borrower and sent via overnight courier
service to such Person at the address provided for notice pursuant to Section
10(a) above, or as subsequently provided to the other party in writing; provided
that the Lender may elect to receive a payment of cash via wire transfer of
immediately available funds by providing Borrower with prior written notice
setting out such request and the Lender's wire transfer
instructions. Whenever any amount expressed to be due by the terms of
this Note is due on any day which is not a Business Day, the same shall instead
be due on the next succeeding day which is a Business Day.
(11) CANCELLATION. After
all principal, interest and other
amounts at any time owed on this Note have been indefeasibly paid in full, this
Note shall automatically be deemed canceled, shall be surrendered to Borrower
for cancellation and shall not be reissued, and the security interest granted in
the Collateral shall terminate. The Lender agrees to promptly
execute, file and/or deliver any and all documents reasonably required or
requested to further evidence such termination, including a UCC termination
statement.
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(12) WAIVERS
BY BORROWER. Borrower (a) waives diligence, grace, demand, presentment for
payment, exhibition of this Note, protest, notice of protest, notice of
dishonor, notice of demand, notice of nonpayment, and any or all other notices
whatsoever, and any and all exemption rights against the indebtedness evidenced
by this Note; (b) agrees to any and all extensions or renewals from time to time
without notice and to any partial payments of this Note; (c) consents to offsets
of any sums owed to Borrower by Lender at any time and to any release of all or
any part of the security for this Note, or to any release of any party liable
for payment of this Note; and (d) agrees that any such waiver, extension,
renewal, release, consent, or partial payment may be made without notice to
Borrower or any other party and shall not release or discharge any one or all of
them from the obligation of payment of this Note or any installment of this Note
or any other liability under this Note. Any security given for the
obligations of Borrower may be waived, exchanged, surrendered or otherwise dealt
with by Lender without affecting the liability of Borrower or any other party
who might subsequently become liable hereon.
(13) GOVERNING
LAW; JURISDICTION; SEVERABILITY; JURY TRIAL. This Note shall be
construed and enforced in accordance with, and all questions concerning the
construction, validity, interpretation and performance of this Note 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 jurisdictions other than the State of New York. Borrower
hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts sitting in New York County 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, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Nothing contained herein shall be deemed to
limit in any way any right to serve process in any manner permitted by
law. In the event that any provision of this Note is invalid or
unenforceable under any applicable statute or rule of law, then such provision
shall be deemed inoperative to the extent that it may conflict therewith and
shall be deemed modified to conform with such statute or rule of
law. Any such provision which may prove invalid or unenforceable
under any law shall not affect the validity or enforceability of any other
provision of this Note. Nothing contained herein shall be deemed or
operate to preclude the Lender from bringing suit or taking other legal action
against Borrower in any other jurisdiction to collect on Borrower's obligations
to the Lender, to realize on any collateral or any other security for such
obligations, or to enforce a judgment or other court ruling in favor of the
Lender. BORROWER
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A
JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH
OR ARISING OUT OF THIS NOTE OR ANY TRANSACTION CONTEMPLATED
HEREBY.
(14) RECORDS
OF PAYMENT. The records of Lender shall be prima facie evidence of
the amount owing on this Note.
25
(15) USURY
SAVINGS. Borrower and Lender intend to contract in compliance with
all state and federal usury laws governing the loan evidenced by this
Note. Lender and Borrower agree that none of the terms of this Note
shall be construed to require payment of interest at a rate in excess of the
maximum interest rate allowed by any applicable state or federal usury
laws. If Lender receives sums which constitute interest that would
otherwise increase the effective interest rate on this Note to a rate in excess
of that permitted by any applicable law, then all such sums constituting
interest in excess of the maximum lawful rate shall at Lender’s option either be
credited to the payment of principal or returned to Borrower. The
provisions of this Section 16 control the other provisions of this Note and any
other agreement between Borrower and Lender.
(16) SEVERABILITY. All
provisions hereof are severable. If any provision hereof is declared
invalid for any reason, that invalidity shall not affect any other provision of
this Note, all of which shall remain in full force and effect
(17) NO
IMPAIRMENT. No provision of this Note or of the other Loan Documents
shall alter or impair the obligation of Borrower, which is absolute and
unconditional, to pay the principal amounts and the interest payable thereon at
the place, time and in the currency prescribed in this Note. Borrower
agrees that to the extent Borrower makes or has previously made any payment to
Lender in connection with the indebtedness evidenced by the Note, and all or any
part of such payment is subsequently invalidated, declared-to be fraudulent or
preferential, set aside or required to be repaid by Lender or paid over to a
trustee, receiver or any other entity, whether under any bankruptcy act or
otherwise (any such payment is hereinafter referred to as a “Voidable Payment ”), then
the indebtedness of Borrower under the Note shall continue, be increased or
shall be reinstated, as the case may be, and, to the extent of such payment or
repayment by Borrower, the indebtedness evidenced by the Note or part thereof
intended to be satisfied by such Preferential Payment shall be revived and
continued in full force and effect as if said Voidable Payment had not been
made.
(18) [Reserved]
(19) DISCLOSURE.
Upon receipt or delivery by Borrower of any notice in accordance with the terms
of this Note, unless Borrower has in good faith determined that the matters
relating to such notice do not constitute material, nonpublic information
relating to Borrower or its Subsidiaries, Borrower shall comply with the
disclosure requirements under the U.S. federal securities laws.
[Signature
Page Follows]
26
IN
WITNESS WHEREOF, Borrower has caused this Note to be duly executed as of the set
forth above.
|
Borrower:
|
||
|
By:
|
|
|
27
EXHIBIT
A
NOTICE
OF CONVERSION
(To be
Executed by the Registered Holder
in order
to Convert the Note)
The
undersigned hereby irrevocably elects to convert $__________ principal amount of
the Note (defined below) into shares of common stock, par value $.0001 per share
(“Common
Stock”), of Map VI Acquisition, Inc., a Delaware corporation (the “Borrower”) according
to the conditions of the convertible note of Borrower dated as of __________,
2009 (the “Note”), as of the
date written below. If securities are to be issued in the name of a
person other than the undersigned, the undersigned will pay all transfer taxes
payable with respect thereto and is delivering herewith such
certificates. No fee will be charged to Holder for any conversion,
except for transfer taxes, if any. A copy of the Note is attached
hereto (or evidence of loss, theft or destruction thereof).
Borrower
shall electronically transmit the Common Stock issuable pursuant to this Notice
of Conversion to the account of the undersigned or its nominee with DTC through
its Deposit Withdrawal Agent Commission system (“DWAC
Transfer”).
Name of
DTC Prime Broker:
Account
Number:
In lieu
of receiving shares of Common Stock issuable pursuant to this Notice of
Conversion by way of a DWAC Transfer, the undersigned hereby requests that the
Borrower issue a certificate or certificates for the number of shares of Common
Stock set forth below (which numbers are based on the Holder’s calculation
attached hereto) in the name(s) specified immediately below or, if additional
space is necessary, on an attachment hereto:
Name:
Address:
The
undersigned represents and warrants that all offers and sales by the undersigned
of the securities issuable to the undersigned upon conversion of the Note shall
be made pursuant to registration of the securities under the Securities Act of
1933, as amended (the “Act”), or pursuant to
an exemption from registration under the Act.
Date of
Conversion:___________________________
Number of
Shares of Common Stock to be Issued Pursuant to
Conversion
of the Note:______________
Signature:___________________________________
Name:______________________________________
Address:____________________________________
Borrower
shall issue and deliver shares of Common Stock to an overnight courier not later
than three business days following receipt of the original Note to be converted,
and shall make payments pursuant to the Note for the number of business days
such issuance and delivery is late.
28
