Exhibit 10.3
THIS CONTINUING UNCONDITIONAL
GUARANTY IS SUBORDINATED IN ALL RESPECTS TO THE INDEBTEDNESS,
LIABILITIES AND OBLIGATIONS OWING BY THE GUARANTOR ARISING UNDER OR
IN CONNECTION WITH THAT CERTAIN FACILITY AGREEMENT DATED AS OF
AUGUST 26, 2004, AS AMENDED FROM TIME TO TIME (THE “FACILITY
AGREEMENT”), AND MAY BE COLLECTED AND ENFORCED ONLY IN
ACCORDANCE WITH THE TERMS OF THE SUBORDINATION AGREEMENT, DATED AS
OF FEBRUARY 21, 2007, BY AND AMONG THE LENDER, AS DEFINED BELOW,
AND THE AGENT UNDER THE FACILITY AGREEMENT (THE
“SUBORDINATION AGREEMENT”).
CONTINUING UNCONDITIONAL
GUARANTY
This Continuing Unconditional
Guaranty (“ Guaranty ”) is made on February 21,
2007 by MOSCOW CABLECOM CORP., a Delaware corporation (“
Guarantor ”), in favor of RME FINANCE LTD, a company
incorporated under the laws of Cyprus (the “ Lender
”).
PRELIMINARY
STATEMENTS
The Guarantor and ZAO COMCOR-TV, a
joint-stock corporation organized under the laws of the Russian
Federation (the “ Borrower ”), entered into a
Bridge Facility Agreement of even date herewith (the “
Loan Agreement ;” terms used in this Guaranty and not
otherwise defined shall have the meanings given to them in the Loan
Agreement) with the Lender. Pursuant to the Loan Agreement,
the Lender has made, and may in the future make, financial
accommodations to the Borrower in accordance with the terms of the
Loan Agreement. The Guarantor will continue to receive certain
benefits from such accommodations and is therefore willing to
guaranty the prompt payment and performance of the obligations of
the Borrower, on the terms set forth in this Guaranty. The
extension of credit by the Lender to the Borrower is necessary and
desirable to the conduct and operation of the business of the
Borrower and will inure to the financial benefit of the
Guarantor.
AGREEMENT
For value received and in
consideration of any loan, advance, or financial accommodation of
any kind whatsoever heretofore, now or hereafter made, given or
granted to the Borrower by the Lender (including, without
limitation, the loans evidenced by the Notes as made by the Lender
to the Borrower pursuant to the Loan Agreement) and other good and
valuable consideration (the sufficiency and receipt of which are
hereby acknowledged), the Guarantor hereby agrees as
follows:
ARTICLE 1
GUARANTY
1.1 GUARANTY
The Guarantor unconditionally
guarantees to the Lender (a) the full and prompt payment and
performance when due, whether at maturity or earlier, by reason of
acceleration or otherwise, and at all times thereafter, of all
liabilities of the Borrower to the Lender and (b) the prompt,
full and faithful discharge by the Borrower of each and every term,
condition, agreement, representation, warranty or covenant now or
hereafter made by the Obligors to the Lender, in each case, under
these clauses (a) and (b), pursuant to the Loan Agreement, the
Notes, the other Transaction Documents or any document or
instrument delivered by the Borrower to the Lender in connection
therewith or pursuant thereto (which, together with the liabilities
described in clause (a) of this Section 1.1, are
collectively referred to in this Guaranty as the “
Borrower’s Liabilities ”). The Guarantor
further agrees to pay all reasonable out-of-pocket costs and
expenses, including, without limitation, all court costs and
reasonable attorneys’ and paralegals’ fees paid or
incurred by the Lender, in endeavoring to collect all or any part
of the Borrower’s Liabilities from, or in prosecuting any
action against the Guarantor or any other guarantor of all or any
part of the Borrower’s Liabilities. Guarantor indemnifies the
Lender from and against and will pay, immediately upon demand, any
cost, loss or liability suffered by the Lender if any obligation
guarantied by it is or becomes unenforceable, invalid or
illegal.
1.2 [RESERVED]
1.3 GUARANTY
UNCONDITIONAL
The Guarantor hereby agrees that,
except as hereinafter provided, and to the extent permitted by
applicable law, its obligations under this Guaranty shall be
unconditional, irrespective of (a) the validity or
enforceability of the Borrower’s Liabilities or any part
thereof, or of any Note or other document evidencing all or any
part of the Borrower’s Liabilities, (b) the absence of
any attempt to collect the Borrower’s Liabilities from the
Borrower or any other guarantor or other action to enforce the same
or the release of such person from liability, (c) the waiver
or consent by the Lender with respect to any provision of any
instrument evidencing the Borrower’s Liabilities, or any part
thereof, or any other agreement heretofore, now or hereafter
executed by the Borrower and delivered to Lender, (d) the
failure by the Lender to take any steps to perfect and maintain its
security interest in, or to preserve its rights to, any security or
collateral for the Borrower’s Liabilities, (e) the
institution of any proceeding under Chapter 11 of Title 11 of the
United States Code (11 U.S.C. §101 et seq.), as amended (the
“ Bankruptcy Code ”), or any similar domestic or
foreign case or proceeding, by or against the Borrower, or the
Lender’s election in any such proceeding of the application
of Section 1111(b)(2) of the Bankruptcy Code, (f) any
borrowing or grant of a security interest by the Borrower as
debtor-in-possession, under Section 364 of the Bankruptcy
Code, (g) the disallowance, under Section 502 of the
Bankruptcy Code, of all or any portion of the Lender’s
claim(s) for repayment of the Borrower’s Liabilities, or
(h) any other circumstance which might otherwise constitute a
legal or equitable discharge or defense of a guarantor.
1.4 WAIVERS
(a) The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a
court in the event of receivership or bankruptcy of the Borrower,
protest or notice with respect to the Borrower’s Liabilities
and all demands whatsoever, and covenants that this Guaranty will
not be discharged, except by complete performance of the
obligations and liabilities contained herein. Upon the
occurrence and during the continuance of an Event of Default under
the Loan Agreement, the Lender may, at its sole election, proceed
directly and at once, without notice, against the Guarantor to
collect and recover the full amount or any portion of the
Borrower’s Liabilities, without first proceeding against any
other Person, or against any security or collateral for the
Borrower’s Liabilities.
(b) The Guarantor hereby waives
any and all claims (including, without limitation, any claim for
reimbursement, contribution or subrogation) of the Guarantor
against the Borrower, any endorser or any other guarantor of all or
any part of the Borrower’s Liabilities, or against any of the
Borrower’s properties, arising by reason of any payment by
the Guarantor to the Lender pursuant to the provisions
hereof.
(c) The Guarantor hereby waives the
benefit of any act or omission by Lender which directly or
indirectly results in or aids the discharge of Borrower from any
Obligations by operation of law or otherwise. The Guarantor waives
any defense arising by reason of any disability or other defense of
the Borrower or by reason of the cessation from any cause
whatsoever of the liability of the Borrower. The Guarantor waives
any setoff, defense or counterclaim that the Guarantor or the
Borrower may have against the Lender.
1.5 NO SUBROGATION
The Guarantor hereby unconditionally
and irrevocably agrees not to exercise any rights that it may now
have or hereafter acquire against the Borrower that arise from the
existence, payment, performance or enforcement of the
Borrower’s Liabilities under or in respect of this Guaranty,
the Loan Agreement, the Notes, the other Transaction Documents or
any document or instrument delivered by the Borrower to the Lender
in connection therewith or pursuant thereto, including, without
limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any
claim or remedy of the Lender against the Borrower or any
collateral, whether or not such claim, remedy or right arises in
equity or under contract, statute or common law, including, without
limitation, the right to take or receive from the Borrower,
directly or indirectly, in cash or other property or by set-off or
in any other manner, payment or security on account of such
claim,
