Exhibit 10.07 - Guaranty Agreement between KidCARE Medical Television Network,
Inc. and Vicis Capital Master Fund
GUARANTY AGREEMENT
THIS GUARANTY is made as of August 11, 2006 by KidCARE Medical Television
Network, Inc., a Florida corporation ("Guarantor"), in favor of VICIS CAPITAL
MASTER FUND ("Vicis"), a trust formed under the laws of the Cayman Islands.
RECITALS
A. Guarantor is a wholly-owned subsidiary of MEDICAL MEDIA TELEVISION,
INC., a Florida corporation (the "Borrower").
B. Pursuant to a Note Purchase Agreement of even date herewith by and
between Vicis and Borrower (as amended or modified from time to time, the "Note
Purchase Agreement") and a 10% Secured Convertible Note due August 11, 2007
issued by Borrower to Vicis (as amended or modified from time to time, the
"Note"), Vicis has made a $1,302,000 loan (the "Loan") to Borrower. Guarantor,
Borrower and any other guarantor of the Loan are the intended beneficiaries of
the Loan and, as such, the Loan will directly and significantly benefit
Guarantor.
C. It is a condition precedent to Vicis making the Loan that Guarantor
execute and deliver to Vicis a guaranty in the form hereof. This is the Guaranty
Agreement referred to in the Note Purchase Agreement.
AGREEMENTS
In consideration of the recitals and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Guarantor hereby agrees with Vicis as follows:
ARTICLE I
DEFINITIONS
When used in this Guaranty, capitalized terms shall have the meanings
specified in the Note Purchase Agreement, the preamble, the recitals and as
follows:
Borrower. "Borrower" shall mean Medical Media Television, Inc., a Florida
corporation.
Event of Default. "Event of Default" shall have the meaning specified in
the Note Purchase Agreement.
Guaranty. "Guaranty" shall mean this Guaranty, as the same shall be
amended from time to time in accordance with the terms hereof.
Law. "Law" shall mean any federal, state, local or other law, rule,
regulation or governmental requirement of any kind, and the rules, regulations,
interpretations and orders promulgated thereunder.
Obligations. "Obligations" shall mean (a) the principal of, and interest
on, the Debenture, and any renewal, extension or refinancing thereof; (b) all
debts, liabilities, obligations, covenants and agreements of Borrower contained
in the Transaction Documents; and (c) any and all other debts, liabilities and
obligations of Borrower to Vicis.
Person. "Person" shall mean and include an individual, partnership,
corporation, trust, unincorporated association and any unit, department or
agency of government.
ARTICLE II
THE GUARANTY
2.1 The Guaranty. Guarantor, for itself, its successors and assigns,
hereby unconditionally and absolutely guarantees to Vicis the full and complete
payment and performance when due (whether at stated maturity, by acceleration or
otherwise) of each of the Obligations. This is a guaranty of payment and
performance and not of collection.
2.2 Waivers and Consents.
(a) Guarantor acknowledges that the obligations undertaken herein
involve the guaranty of obligations of a Person other than Guarantor and, in
full recognition of that fact, Guarantor consents and agrees that Vicis may, at
any time and from time to time, without notice or demand, and without affecting
the enforceability or continuing effectiveness hereof: (i) supplement, modify,
amend, extend, renew, accelerate or otherwise change the time for payment or the
other terms of the Obligations or any part thereof, including without limitation
any increase or decrease of the principal amount thereof or the rate(s) of
interest thereon; (ii) supplement, modify, amend or waive, or enter into or give
any agreement, approval or consent with respect to, the Obligations or any part
thereof, or any of the Transaction Documents or any additional security or
guaranties, or any condition, covenant, default, remedy, right, representation
or term thereof or thereunder; (iii) accept new or additional instruments,
documents or agreements in exchange for or relative to any of the Transaction
Documents or the Obligations or any part thereof; (iv) accept partial payments
on the Obligations; (v) receive and hold additional security or guaranties for
the Obligations or any part thereof; (vi) release, reconvey, terminate, waive,
abandon, fail to perfect, subordinate, exchange, substitute, transfer and/or
enforce any security or guaranties, and apply any security and direct the order
or manner of sale thereof as Vicis in its sole and absolute discretion may
determine; (vii) release any Person from any personal liability with respect to
the Obligations or any part thereof; (viii) settle, release on terms
satisfactory to Vicis or by operation of applicable Law or otherwise, liquidate
or enforce any Obligations and any security or guaranty in any manner, consent
to the transfer of any security and bid and purchase at any sale; and/or (ix)
consent to the merger, change or any other restructuring or termination of the
corporate existence of Borrower or any other Person, and correspondingly
restructure the Obligations, and any such merger, change, restructuring or
termination shall not affect the liability of Guarantor or the continuing
effectiveness hereof, or the enforceability hereof with respect to all or any
part of the Obligations.
(b) Upon the occurrence and during the continuance of any Event of
Default, Vicis may enforce this Guaranty independently of any other remedy,
guaranty or security Vicis at any time may have or hold in connection with the
Obligations, and it shall not be necessary for Vicis to marshal assets in favor
of Borrower, any other guarantor of the Obligations or any other Person or to
proceed upon or against and/or exhaust any security or remedy before proceeding
to enforce this Guaranty. Guarantor expressly waives any right to require Vicis
to marshal assets in favor of Borrower or any other Person or to proceed against
Borrower or any other guarantor of the Obligations or any collateral provided by
any Person, and agrees that Vicis may proceed against any obligor and/or the
collateral in such order as it shall determine in its sole and absolute
discretion. Vicis may file a separate action or actions against Guarantor,
whether action is brought or prosecuted with respect to any security or against
any other Person, or whether any other Person is joined in any such action or
actions. Guarantor agrees that Vicis and Borrower may deal with each other in
connection with the Obligations or otherwise, or alter any contracts or
agreements now or hereafter existing between them, in any manner whatsoever, all
without in any way altering or affecting the security of this Guaranty.
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(c) The rights of Vicis hereunder shall be reinstated and revived,
and the enforceability of this Guaranty shall continue, with respect to any
amount at any time paid on account of the Obligations which thereafter shall be
required to be restored or returned by Vicis upon the bankruptcy, insolvency or
reorganization of any Person, all as though such amount had not been paid. The
rights of Vicis created or granted herein and the enforceability of this
Guaranty shall remain effective at all times to guarantee the full amount of all
the Obligations even though the Obligations, including any part thereof or any
other security or guaranty therefor, may be or hereafter may become invalid or
otherwise unenforceable as against Borrower or any other guarantor of the
Obligations and whether or not Borrower or any other guarantor of the
Obligations shall have any personal liability with respect thereto.
(d) To the extent permitted by applicable law, Guarantor expressly
waives any and all defenses now or hereafter arising or asserted by reason of:
(i) any disability or other defense of Borrower or any other guarantor for the
Obligations with respect to the Obligations (other than full payment and
performance of all of the Obligations); (ii) the unenforceability or invalidity
of any security for or guaranty of the Obligations or the lack of perfection or
continuing perfection or failure of priority of any security for the
Obligations; (iii) the cessation for any cause whatsoever of the liability of
Borrower or any other guarantor of the Obligations (other than by reason of the
full payment and performance of all Obligations); (iv) any failure of Vicis to
marshal assets in favor of Borrower or any other Person; (v) any failure of
Vicis to give notice of sale or other disposition of collateral to Borrower or
any other Person or any defect in any notice that may be given in connection
with any sale or disposition of collateral; (vi) any failure of Vicis to comply
with applicable Laws in connection with the sale or other disposition of any
collateral or other security for any Obligation, including, without limitation,
any failure of Vicis to conduct a commercially reasonable sale or other
disposition of any collateral or other security for any Obligation; (vii) any
act or omission of Vicis or others that directly or indirectly results in or
aids the discharge or release of Borrower or any other guarantor of the
Obligations, or of any security or guaranty therefor by operation of Law or
otherwise; (viii) any Law which provides that the obligation of a surety or
guarantor must neither be larger in amount nor in other respects more burdensome
than that of the principal or which reduces a surety's or guarantor's obligation
in proportion to the principal obligation; (ix) any failure of Vicis to file or
enforce a claim in any bankruptcy or other proceeding with respect to any
Person; (x) the election by Vicis, in any bankruptcy proceeding of any Person,
of the application or non-application of Section 1111(b)(2) of the United States
Bankruptcy Code; (xi) any extension of credit or the grant of any lien under
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code; (xii) any use of collateral
under Section 363 of the United States Bankruptcy Code; (xiii) any agreement or
stipulation with respect to the provision of adequate protection in any
bankruptcy proceeding of any Person; (xiv) the avoidance of any lien or security
interest in favor of Vicis for any reason; (xv) any bankruptcy, insolvency,
reorganization, arrangement, readjustment of debt, liquidation or dissolution
proceeding commenced by or against any Person, including without limitation any
discharge of, or bar or stay against collecting, all or any of the Obligations
(or any interest thereon) in or as a result of any such proceeding; or (xvi) any
action taken by Vicis that is authorized by this Section or any other provision
of any Loan Document. Until all of the Obligations have been paid in full,
Guarantor expressly waives all presentments, demands for payment or performance,
notices of nonpayment or nonperformance, protests, notices of protest, notices
of dishonor and all other notices or demands of any kind or nature whatsoever
with respect to the Obligations, and all notices of acceptance of this Guaranty
or of the existence, creation or incurrence of new or additional Obligations.
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2.3 Condition of Borrower. Guarantor represents and warrants to Vicis that
it has established adequate means of obtaining from Borrower, on a continuing
basis, financial and other information pertaining to the business, operations
and condition (financial and otherwise) of Borrower and its assets and
properties. Guarantor hereby expressly waives and relinquishes any duty on the
part of Vicis (should any such duty exist) to disclose to Guarantor any matter,
fact or thing related to the business, operations or condition (financial or
otherwise) of Borrower or its assets or properties, whether now known or
hereafter known by Vicis during the life of this Guaranty. With respect to any
of the Obligations, Vicis need not inquire into the powers of Borrower or agents
acting or purporting to act on its behalf, and all Obligations made or created
in good faith reliance upon the professed exercise of such powers shall be
guaranteed hereby.
2.4 Continuing Guaranty. This is a continuing guaranty and shall remain in
full force and effect as to all of the Obligations until all amounts owing by
Borrower to Vicis on the Obligations shall have been paid in full.
2.5 Subrogation; Subordination. Guarantor expressly waives any claim for
reimbursement, contribution, indemnity or subrogation which Guarantor may have
against Borrower as a guarantor of the Obligations and any other legal or
equitable claim against Borrower arising out of the payment of the Obligations
by Guarantor or from the proceeds of any collateral for this Guaranty, until all
amounts owing to Vicis under the Obligations shall have been paid in full and
all commitments to lend have been terminated or expired. In furtherance, and not
in limitation, of the foregoing waiver, until all amounts owing to Vicis under
the Obligations shall have been paid in full, Guarantor hereby agrees that no
payment by Guarantor pursuant to this Guaranty shall constitute Guarantor a
creditor of Borrower. Until all amounts owing to Vicis under the Obligations
shall have been paid in full, Guarantor shall not seek any reimbursement from
Borrower in respect of payments made by Guarantor in connection with this
Guaranty, or in respect of amounts realized by Vicis in connection with any
collateral for the Obligations, and Guarantor expressly waives any right to
enforce any remedy that Vicis now has or hereafter may have against any other
Person and waives the benefit of, or any right to participate in, any collateral
now or hereafter held by Vicis. No claim which any Guarantor may have against
any other guarantor of any of the Obligations or against Borrower, to the extent
not waived pursuant to this Section, shall be enforced nor any payment accepted
until the Obligations are paid in full and all such payments are not subject to
any right of recovery.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF GUARANTOR
Guarantor hereby represents and warrants to Vicis as follows:
3.1 Authorization. Guarantor is a corporation duly and validly organized
and existing under the laws of the State of Florida, has the corporate power to
own its owned assets and properties and to carry on its business, and is duly
licensed or qualified to do business in all jurisdictions in which failure to do
so would have a material adverse effect on its business or financial condition.
The making, execution, delivery and performance of this Guaranty, and compliance
with its terms, have been duly authorized by all necessary corporate action of
Guarantor.
3.2 Enforceability. This Guaranty is the legal, valid and binding
obligation of Guarantor, enforceable against Guarantor in accordance with its
terms.
3.3 Absence of Conflicting Obligations. The making, execution, delivery
and performance of this Guaranty, and compliance with its terms, do not violate
any existing provision of Law; the articles of incorporation or bylaws of
Guarantor; or any agreement or instrument to which Guarantor is a party or by
which it or any of its assets is bound.
3.4 Consideration for Guaranty. Guarantor acknowledges and agrees with
Vicis that but for the execution and delivery of this Guaranty by Guarantor,
Vicis would not have made the Loan. Guarantor acknowledges and agrees that the
Loan Agreement will result in significant benefit to Guarantor who is the
wholly-owned subsidiary of Borrower and the intended beneficiary of the Loan.
ARTICLE IV
COVENANTS OF THE GUARANTOR
4.1 Actions by Guarantor. Guarantor shall not take or permit any act, or
omit to take any act, that would: (a) cause Borrower to breach any of the
Obligations; (b) impair the ability of Borrower to perform any of the
Obligations; or (c) cause an Event of Default under the Note Purchase Agreement.
4.2 Reporting Requirements. Guarantor shall furnish, or cause to be
furnished, to Vicis such information respecting the business, assets and
financial condition of Guarantor as Vicis may reasonably request.
ARTICLE V
MISCELLANEOUS
5.1 Expenses and Attorneys' Fees. Guarantor shall pay all reasonable fees
and expenses incurred by Vicis, including the reasonable fees of counsel, in
connection with the protection or enforcement of its rights under this Guaranty,
including without limitation the protection and enforcement of such rights in
any bankruptcy, reorganization or insolvency proceeding involving Borrower or
Guarantor, both before and after judgment.
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5.2 Revocation. This is a continuing guaranty and shall remain in full
force and effect until Vicis receives written notice of revocation signed by
Guarantor. Upon revocation by written notice, this Guaranty shall continue in
full force and effect as to all Obligations contracted for or incurred before
revocation, and as to them Vicis shall have the rights provided by this Guaranty
as if no revocation had occurred. Any renewal, extension, or increase in the
interest rate(s) of any such Obligation, whether made before or after
revocation, shall constitute an Obligation contracted for or incurred before
revocation. Obligations contracted for or incurred before revocation shall also
include credit extended after revocation pursuant to commitments made before
revocation.
5.3 Assignability; Successors. Guarantor's rights and liabilities under
this Guaranty are not assignable or delegable, in whole or in part, without the
prior written consent of Vicis. The provisions of this Guaranty shall be binding
upon Guarantor, its successors and permitted assigns and shall inure to the
benefit of Vicis, its successors and assigns.
5.4 Survival. All agreements, representations and warranties made herein
or in any document delivered pursuant to this Guaranty shall survive the
execution and delivery of this Guaranty and the delivery of any such document.
5.5 Governing Law. This Guaranty and the documents issued pursuant to this
Guaranty shall be governed by, and construed and interpreted in accordance with,
the Laws of the State of New York applicable to contracts made and wholly
performed within such state.
5.6 Counterparts; Headings. This Guaranty may be executed in several
counterparts, each of which shall be deemed an original, but such counterparts
shall together constitute but one and the same agreement. The article and
section headings in this Guaranty are inserted for convenience of reference only
and shall not constitute a part of this Guaranty.
5.7 Notices. All notices, requests and demands to or upon Vicis or
Guarantor (to be delivered care of Borrower) shall be delivered in the manner
set forth in Section 12.6 of the Note Purchase Agreement.
5.8 Amendment. No amendment of this Guaranty shall be effective unless in
writing and signed by Guarantor and Vicis.
5.9 Severability. Any provision of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Guaranty in such jurisdiction or affecting the
validity or enforceability of any provision in any other jurisdiction.
5.10 Taxes. If any transfer or documentary taxes, assessments or charges
levied by any governmental authority shall be payable by reason of the
execution, delivery or recording of this Guaranty, Guarantor shall pay all such
taxes, assessments and charges, including interest and penalties, and hereby
indemnifies Vicis against any liability therefor.
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5.11 WAIVER OF RIGHT TO JURY TRIAL. GUARANTOR ACKNOWLEDGES AND AGREES THAT
ANY CONTROVERSY WHICH MAY ARISE UNDER THIS GUARANTY WOULD BE BASED UPON
DIFFICULT AND COMPLEX ISSUES AND, THEREFORE, GUARANTOR AGREES THAT ANY LAWSUIT
ARISING OUT OF ANY SUCH CONTROVERSY SHALL BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.
5.12 SUBMISSION TO JURISDICTION; SERVICE OF PROCESS. AS A MATERIAL
INDUCEMENT TO VICIS TO ENTER INTO THIS TRANSACTION:
(a) THE GUARANTOR AGREES THAT ALL ACTIONS OR PROCEEDINGS IN ANY
MANNER RELATING TO OR ARISING OUT OF THIS GUARANTY OR THE OTHER DOCUMENTS
EXECUTED IN CONNECTION HEREWITH MAY BE BROUGHT ONLY IN COURTS OF THE STATE OF
NEW YORK LOCATED IN NEW YORK COUNTY OR THE FEDERAL COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND THE GUARANTOR CONSENTS TO THE JURISDICTION OF SUCH
COURTS. THE GUARANTOR WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH COURT AND ANY RIGHT IT MAY HAVE NOW OR HEREAFTER HAVE TO CLAIM
THAT ANY SUCH ACTION OR PROCEEDING IS IN AN INCONVENIENT COURT; AND
(b) Guarantor consents to the service of process in any such action
or proceeding by certified mail sent to the address specified in Section 5.7.
Nothing contained herein shall affect the right of Vicis to serve process
in any other manner permitted by law or to commence an action or proceeding in
any other jurisdiction.
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IN WITNESS WHEREOF the undersigned has executed this Guaranty as of the
day and year first above written.
KidCARE Medical Television Network, Inc.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
Chief Executive Officer
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ACCEPTANCE BY VICIS
This Guaranty Agreement is accepted by Vicis Capital Master Fund.
VICIS CAPITAL MASTER FUND
By: Vicis Capital LLC
By: /s/ Xxxx Xxxxxxxx
-------------------------------------
Xxxx Xxxxxxxx
Chief Operating Officer
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