EXHIBIT10.5 EXHIBITD 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").

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):

“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.

(2)    Location.  The principal residence of the Guarantor is c/o BroadWebAsia, Inc., 9255 Sunset Boulevard, Suite 1010, West Hollywood, CA 90069.

 

(3)    No Contravention.  The execution, delivery and performance by Guarantor of this Guaranty do not and will not (a) violate any provision of any law, order, writ, judgment, injunction, decree, determination, or award presently in effect applicable to Guarantor, (b) result in a breach of or constitute a default under any indenture or loan or credit agreement or any other agreement, lease, or instrument to which Guarantor is a party or by which Guarantor or its properties may be bound or affected, or (c) result in, or require, the creation or imposition of any lien upon or with respect to any of the properties now owned or hereafter acquired by Guarantor.

 

(4)           Governmental Authority.  No authorization, approval or other action by, and no notice to or filing with, any governmental authority is required for the due execution, delivery and performance by Guarantor of this Guaranty.

 

(5)           Legally Enforceable Guaranty.  This Guaranty is the legal, valid and binding obligation of Guarantor, enforceable against Guarantor in accordance with its terms, except to the extent that such enforcement may be limited by (a) applicable bankruptcy, insolvency, and other similar laws affecting creditors' rights generally, or (b) general equitable principles, regardless of whether the issue of enforceability is considered in a proceeding in equity or at law.

 

All such notices and other communications shall, when mailed, be effective three (3) days after being placed in the mails, or when delivered to a messenger or overnight delivery service, be effective one (1) day after being delivered to the messenger or overnight delivery service, in each case, addressed as specified above.

 

Section 17.    Assignment and Transfer of Obligations. This Guaranty will bind the estate of Guarantor as to Guaranteed Obligations created or incurred both before and after the death or incapacity of Guarantor, whether or not Lender receives notice of such death or incapacity. This Guaranty shall inure to the benefit of Lender and its successors, transferees and assigns. Guarantor may not transfer or assign its obligations under this Guaranty. Lender may assign or otherwise transfer all or a portion of its rights or obligations with respect to the Guaranteed Obligations to any other party, and such other party shall then become vested with all the benefits in respect of such transferred Guaranteed Obligations granted to Lender in this Guaranty or otherwise. Guarantor agrees that Lender can provide information regarding Guarantor to any prospective or actual successor, transferee or assign.

 

Section 18.    Setoff. Guarantor agrees that, in addition to, and without limiting, any right of setoff, Lender’s lien or counterclaim Lender may otherwise have, Lender shall be entitled, at its option, to offset balances (general or special, time or demand, provisional or final) held by it for the account of Guarantor, at any of the offices of Lender, in Dollars or any other currency, against any amount payable by Guarantor to Lender under this Guaranty which is not paid when demanded (regardless of whether such balances are then due to Guarantor), in which case Lender shall promptly notify Guarantor, provided that Lender’s failure to give such notice shall not affect the validity of such offset.

 

Section 19.    Submission to Jurisdiction. Guarantor hereby irrevocably submits to the jurisdiction of any federal or state court sitting in New York County in the State of New York over any action or proceeding arising out of or related to this Guaranty and agrees with Lender that personal jurisdiction over Guarantor rests with such courts for purposes of any action on or related to this Guaranty. Guarantor hereby waives personal service by manual delivery and agrees that service of process may be made by prepaid certified mail directed to Guarantor at the address of Guarantor for notices under this Guaranty or at such other address as may be designated in writing by Guarantor to Lender, and that upon mailing of such process such service will be effective as if Guarantor was personally served. Guarantor agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any manner provided by law. Guarantor further waives any objection to venue in any such action or proceeding on the basis of inconvenient forum. Guarantor agrees that any action on or proceeding brought against Lender shall only be brought in such courts.

 

 

Section 20.    Governing Law.  This Guaranty shall be governed by and construed in accordance with the laws of the State of New York without regard to its principles of conflicts of law.

 

Section 21.    Subordination. Once a demand for payment is made on the Guarantor under this Guaranty Guarantor will not (1) make any demand for payment of, or take any action to accelerate, any obligation owed to Guarantor by Borrower, (2) seek to collect payment of, or enforce any right or remedies against Borrower, any of the obligations owed to Guarantor by Borrower or any guarantees, credit supports, collateral or other security related to or supporting any of such obligations, or (3) commence, or join with any other creditor in commencing, any bankruptcy or similar proceeding against Borrower. Guarantor also agrees that the payment of all obligations of Borrower to Guarantor shall be subordinate and junior in time and right of payment in accordance with the terms of this Section to the prior payment in full (in cash) of the Guaranteed Obligations. In furtherance of such subordination, (1) to the extent possible, Guarantor will not take or receive from Borrower any payments, in cash or any other property, by setoff or any other means, of any or all of the obligations owed to Guarantor by Borrower, or purchase, redeem, or otherwise acquire any of such obligations, or change the terms or provisions of any such obligations and (2) if for any reason and under any circumstance Guarantor receives a payment on such obligation, whether in a bankruptcy or similar proceeding or otherwise, all such payments or distributions upon or with respect to such obligations shall be received in trust for the benefit of Lender, shall be segregated from other funds and property held by Guarantor and shall be forthwith paid over to Lender in the same form as so received (with any necessary endorsement) to be applied (in the case of cash) to, or held as collateral (in the case of securities or other non-cash property) for, the payment or prepayment of the Guaranteed Obligations. Guarantor agrees that any subrogation rights Guarantor may acquire as a result of a payment under this Section may not be exercised until (1) the payment in full of the Guaranteed Obligations (after Lender no longer has any obligation or arrangement to provide credit to Borrower, including under or pursuant to a line of credit), and (2) the payment of all fees and expenses to be paid by Guarantor pursuant to this Guaranty.

 

Section 22.    Miscellaneous.  This Guaranty is in addition to and not in limitation of any other rights and remedies Lender may have by virtue of any other instrument or agreement previously, contemporaneously or hereafter executed by Guarantor or any other party or by law or otherwise. If any provision of this Guaranty is contrary to applicable law, such provision shall be deemed ineffective without invalidating the remaining provisions of this Guaranty. Titles in this Guaranty are for convenience of reference only and shall not affect the interpretation or construction of this Guaranty. This Guaranty constitutes the entire agreement between Guarantor and Lender with respect to the matters covered by this Guaranty and supercedes all written or oral agreements with respect to such matters.

 

Section 23.    WAIVER OF JURY TRIAL. GUARANTOR EXPRESSLY WAIVES ANY AND EVERY RIGHT TO A TRIAL BY JURY IN ANY ACTION ON OR RELATED TO THIS GUARANTY.

 

 

IN WITNESS WHEREOF, Guarantor has duly executed and delivered this Guaranty as of the date of this Guaranty.