EXHIBIT
10.5
EXHIBIT D
GUARANTY
GUARANTY dated as of February 9,
2009 ("Guaranty") made by Brad Greenspan, an individual residing
c/o BroadWebAsia, Inc. 9255 Sunset Boulevard, Suite 1010, West
Hollywood, CA 90069, (“Guarantor”) in favor of Able
Income Fund, LLC ("Lender").
W I T N E S
S E T H
WHEREAS, BroadWebAsia, Inc., a
Delaware corporation (the “Borrower”), and the Lender
are parties to a Note, dated as of February 9, 2009 (such
agreement, as amended, restated, supplemented or otherwise modified
from time to time, being hereinafter referred to as the
“Note”);
WHEREAS, pursuant to the Note, the
Guarantor is required to execute and deliver to the Lender a
guaranty guaranteeing the Note and all other obligations under the
Note and a Stock Pledge Agreement (the “ Loan
Documents”); and
WHEREAS, the Guarantor has
determined that (i) it will derive substantial benefit and
advantage from the Loan and other financial accommodations made
available to the Borrower under the Note and the other Loan
Documents and (ii) its execution, delivery and performance of this
Guaranty directly benefit, and are within the best interests of,
the Guarantor;
NOW, THEREFORE, in consideration of
$1,000 receipt of which is hereby acknowledged, the premises, the
agreements herein and in order to induce the Lender to make and
maintain the Loan pursuant to the Note, the Guarantor hereby agrees
with the Lender, as follows:
Section 1.
Definitions . Reference is hereby made to the Note for a
statement of the terms thereof. All terms used in this
Guaranty which are defined in the Note and not otherwise defined
herein shall have the same meanings herein as set forth
therein. As used in this Guaranty, the following terms
have the following meanings (terms defined in the singular to have
the same meaning when used in the plural and vice
versa):
“Borrower” has the meaning specified
in the preamble above.
“Guaranty” means this
Guaranty.
“Guaranty Documents”
means the Loan Documents and any document or agreement evidencing,
related to or delivered in connection with any or all of the
Guaranteed Obligations.
“Guaranteed Obligations”
means any and all present and future liabilities and obligations of
Borrower and Guarantor to Lender incurred by Borrower and Guarantor
under the Loan Documents, and whether due or to become due, secured
or unsecured, absolute or contingent, joint or several, direct or
indirect, acquired outright, conditionally or as collateral
security by Lender from another, liquidated or unliquidated,
arising by operation of law or otherwise, together with all fees
and expenses incurred in collecting any or all of the items
specified in this definition or enforcing any rights under any of
the Guaranty Documents, including all fees and expenses of
Lender’s counsel and of any experts and agents which may be
paid or incurred by Lender in collecting any such items or
enforcing any such rights.
Section 2. Rules of
Interpretation . When used in this Guaranty: (1)
“or” is not exclusive, (2) a reference to a law
includes any amendment or modification to such law, and (3) a
reference to an agreement, instrument or document includes any
amendment or modification of such agreement, instrument or
document.
Section 3.
Guaranty . Guarantor hereby guarantees to Lender and its
successors, endorsees, transferees and assigns the prompt and
complete payment, as and when due and payable (whether at stated
maturity or by required prepayment, acceleration, demand or
otherwise), of all of the Guaranteed Obligations now existing or
hereafter incurred will be paid strictly in accordance with their
terms.
Section 4.
Limitation of Liability . The obligation of
Guarantor under this Guaranty shall be limited to an aggregate
amount equal to the largest amount that would not render the
obligation of Guarantor under this Guaranty subject to avoidance
under Section 548 of the United States Bankruptcy Code or any
comparable provision of any applicable state law.
Section 5. Type of
Guaranty . This Guaranty is absolute and unconditional and as
such is not subject to any conditions and Guarantor is fully liable
to perform all of its duties and obligations under this Guaranty as
of the date of execution of this Guaranty. This Guaranty is a
continuing guaranty and applies to all future Guaranteed
Obligations. In addition, this Guaranty shall remain in full force
and effect even if at any time there are no outstanding Guaranteed
Obligations. This Guaranty is a guaranty of payment and not of
collection. The obligations and liabilities of Guarantor under this
Guaranty shall not be conditioned or contingent upon the pursuit by
Lender of any right or remedy against Borrower, Grantor or any
other person which may be or become liable in respect of all or any
part of the Guaranteed Obligations, or against any assets securing
the payment of the Guaranteed Obligations or guarantee for such
Guaranteed Obligations or right of setoff with respect to such
Guaranteed Obligations. This Guaranty is irrevocable and as such
cannot be cancelled, terminated or revoked by Guarantor.
Section 6.
Reinstatement of Guaranty . This Guaranty shall continue to
be effective or shall be reinstated, as the case may be, if at any
time any payment, or any part thereof, of any of the Guaranteed
Obligations are rescinded or must otherwise be returned by Lender
upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of Borrower, Grantor or otherwise, all as though
such payment had not been made.
Guarantor hereby consents that, without the
necessity of any reservation of rights against Guarantor and
without notice to or further assent by Guarantor, any demand for
payment of any of the Guaranteed Obligations made by Lender may be
rescinded by Lender and any of such Guaranteed Obligations
continued after such rescission.
Section 7. Security
Interest . To secure the payment of the obligations of
Guarantor under this Guaranty, Guarantor has executed a Pledge
Agreement in favor of, and grants Lender a pledge and security
interest in the Pledged Shares listed in Schedule 1 to the Pledge
Agreement.
Section 8. Waiver
of Notices . Guarantor hereby waives any and all notices
including (1) notice of or proof of reliance by Lender upon this
Guaranty or acceptance of this Guaranty, (2) notice of the
incurrence of any Guaranteed Obligations or the renewal, extension
or accrual of any such Guaranteed Obligations, (3) notice of any
actions taken by Lender, Borrower, Grantor or any other person
under any Guaranty Document, and (4) notices of nonpayment or
nonperformance, protest, notices of protest and notices of
dishonor.
Section 9. Waiver
of Defenses . Guarantor hereby waives any and all defenses to
the performance by Guarantor of its duties and obligations under
this Guaranty, including any defense based on any of the
following:
(1) any failure
of Lender to disclose to Guarantor any information relating to the
business, condition (financial or otherwise), operations,
performance, properties or prospects of any party obligated to make
payment on any and all Guaranteed Obligations, whether as principal
or guarantor, now or hereafter known to Lender,
(2) any defense
to the payment of any or all the Guaranteed Obligations, including
lack of validity or enforceability of any of the Guaranteed
Obligations or any Guaranty Documents,
(3) any change
in the time, manner or place of payment of, or in any other term in
respect of, all or any of the Guaranteed Obligations, or any other
amendment or waiver of or consent to any departure from any
Guaranty Document,
(4) any exchange
or release of, or non-perfection of any security interest on or in
any assets securing the payment of the Guaranteed
Obligations,
(5) any failure
to execute any other guaranty for all or any part of the Guaranteed
Obligations, or any release or amendment or waiver of, or consent
to any departure from, any other guaranty for any or all of the
Guaranteed Obligations,
(6) any
subordination of any or all of the Guaranteed
Obligations,
(7)
any act or omission of Lender in connection with the enforcement
of, or the exercise of rights and remedies, including any election
of, or the order of exercising any, remedies, with respect to (a)
the Guaranteed Obligations, (b) any other guarantor of the
Guaranteed Obligations, or (c) any assets securing the payment of
the Guaranteed Obligations,
(8) any manner
of application of any funds received by Lender to Guaranteed
Obligations or any other obligations owed to Lender, whether from
the sale or disposition of any assets securing the Guaranteed
Obligations, from another guarantor of the Guaranteed
Obligat
