Restructuring Agreement - Wired Ventures Inc., Wired UK, WIred New York, Wired World LLC, Guardian Media Group plc, Karadean Ltd., Guardian Magazines Ltd. and Guardian newspapers Ltd.
AGREEMENT
THIS AGREEMENT is made the 28th day of June 1996 between WIRED VENTURES,
Inc., a Delaware corporation whose principal place of business is at 520 Third
Street, San Francisco, California 94107-1427, USA ("WVI"); and WIRED UK, an
unincorporated company registered in England and Wales (registered number
2972399) whose registered office is at 200 Aldersgate Street, London EC1A 4JJ
(the "Company"); and WIRED NEW YORK, a California corporation whose registered
office is at 520 Third Street, San Francisco, California 94107, USA, ("Wired New
York"); and WIRED WORLD L.L.C., a Delaware limited liability company whose
principal place of business is at 520 Third Street, San Francisco, California
94107, USA, ("Wired Investments"); and GUARDIAN MEDIA GROUP PLC, a company
registered in England and Wales (registered number 00094531) whose registered
office is at 164 Deansgate, Manchester M60 2RR, England (the "Guardian"); and
KARADEAN LIMITED, a company registered in England and Wales (registered number
2922019) whose registered office is at 164 Deansgate, Manchester M60 2RR,
England ("Guardian Investments"); and GUARDIAN MAGAZINES LIMITED, a company
registered in England and Wales (registered number 02830739 whose registered
office is at 164 Deansgate, Manchester M60 2RR, England ("GML"); and GUARDIAN
NEWSPAPERS LIMITED, a company registered in England and Wales (registered number
00908396) whose registered office is at 164 Deansgate, Manchester M60 2RR,
England ("GNL").
WHEREAS:
A. The Guardian, Guardian Investments, GML, GNL, Wired Ventures, Ltd.,
Wired World L.L.C., the Company and Wired New York entered into a Letter of
Agreement dated 22 July 1995 (the "Original Agreement"), a copy of which is
attached hereto marked "A."
B. WVI executed a Substitution Agreement dated 28 May 1996 (the
"Substitution Agreement"), a copy of which is attached hereto marked "B," under
which it agreed to assume the obligations of Wired Ventures, Ltd., under, inter
alia, the Original Agreement.
C. This Agreement is intended to reflect and effect the assumption of
obligations as are referred to in Recital B above. This Agreement takes effect
in addition to, inter alia, the Original Agreement.
IT IS AGREED:
1. In consideration of the Guardian consenting to the transactions in
May/June 1996 to restructure the ownership of the Wired Businesses (the
"Restructuring") without accelerating payment under the terms of the Original
Loan Note dated 22 July 1995 and consenting to the related dissolution of Wired
Ventures, Ltd., the parties to this Agreement have agreed to enter into this
Agreement in addition to the Original Agreement.
2. Wired UK, Wired New York, Wired World L.L.C., the Guardian, Guardian
Investments, GML and GNL accept the liability of WVI upon the Original Agreement
in place
1.
<PAGE> 2
of the liability of Wired Ventures, Ltd. and agree to be bound by the terms of
the Original Agreement as if WVI were named in the Original Agreement as a party
in place of Wired Ventures, Ltd.
3. WVI agrees to be bound by and to perform the terms of the Original
Agreement in every way as if it were an original party to the Original Agreement
in place of Wired Ventures, Ltd.
4. In particular, the parties agree that WVI is bound by and agrees to
perform and to assume all liabilities for all of the obligations of Wired
Ventures, Ltd., a California limited partnership, as set forth in the Original
Agreement. Without limiting the generality of the foregoing, the parties
specifically agrees as follows:
4.1 The Company and WVI will deliver to the Guardian a copy of the
Substitution Loan Note duly executed on behalf of both the Company and WVI and a
copy of the Substitution Guaranty duly executed on behalf of WVI.
4.2. The Guardian will deliver to WVI a copy of the Substitution Loan
Note and of the Substitution Guaranty duly executed on behalf of the Guardian.
4.3 The Guardian Debts defined in clause 4.1 of the Original Agreement
will in future be owed on the terms of the Substitution Loan Note.
4.4 WVI agrees to be bound by, to perform and to assume all liabilities
for all of the obligations of Wired Ventures, Ltd under the Shareholders
Agreement dated 5 October 1994 referred to in clause 6.1(b) of the Original
Agreement, as if WVI were named in the Original Agreement as a party in place of
Wired Ventures, Ltd. and as if WVI had itself been a party to that Shareholders
Agreement in place of Wired Ventures, Ltd. insofar as those obligations are
still existing and have not been canceled or otherwise terminated pursuant to
clause 6.1(a) of the Original Agreement.
4.5 WVI and the WVI Group will not (and will procure that their
employees and officers will not) misrepresent their association with the
Guardian Group and will be bound by the confidentiality provisions in Clause 15
of the Original Agreement.
4.6 This Agreement, the Original Agreement, the Substitution Agreement,
the Substitution Loan Note, and the Substitution Guaranty and any documents
referred to therein constitute the entire agreement and supersede any previous
agreements between the parties relating to the subject matter of this Agreement.
For the avoidance of doubt, each of the Original Loan Note and the Original
Guaranty is hereby terminated and cancelled upon the execution and effectiveness
of each of this Agreement and both the Substitution Loan Note and the
Substitution Guaranty of even date herewith. No party hereto has relied upon any
representation, warranty or covenant in entering into this Agreement save as
expressly set out herein and in the other documents referred to in this clause
and in the Certificates.
2.
<PAGE> 3
4.7 (a) WVI covenants to the Guardian that the description of the
Restructuring of the Wired Businesses as given by WVI and its advisers to the
Guardian (and a copy of which is attached hereto marked "C") is true and
accurate and fairly reflect the relevant group structure under the Restructuring
of the Wired Businesses.
(b) WVI represents and warrants to the Guardian that both Jane
Metcalfe and Louis Rossetto are directors of WVI and that one or both of Jane
Metcalfe and Louise Rossetto hold in aggregate between them in excess of 25 per
cent, of the outstanding common stock (assuming full conversion of the preferred
stock) of WVI.
4.8 It is the intention of WVI and/or the WVI Group to create other
editions of Wired Magazine in Continental Europe and to raise capital to do so,
and to encourage the participation of the Guardian in such business ventures.
(a) In the event that WVI and/or the WVI Group establishes (an
"Establishment") a material publishing interest in Continental Europe with local
parties of the relevant country in Wired Magazine through any entity other than
an entity incorporated or resident in the United States of America ("Wired
Europe"), then WVI will promptly notify the Guardian, and WVI will seek an
investment from the Guardian in Wired Europe on terms and in an amount
acceptable to WVI. Wired Europe shall not offer an investment opportunity to a
UK newspaper publisher without offering the Guardian the opportunity to invest
on the same terms. If any investment of the type described in this clause 4.8(a)
is made, the aggregate amount of all such investment will not exceed
Pound Sterling 1,000,000 (unless the Guardian and WVI agree otherwise).
(b) In the event that WVI makes an Offer, the Guardian may accept
the offer in full within 30 days of receipt thereof, failing which the Offer
will be deemed rejected.
(c) The provisions of this clause 4.8 shall have effect from
Completion, as defined in the Original Agreement, and shall terminate upon the
earlier of 22 July 1998 and retirement of the Substitution Loan Note.
4.9 WVI agrees to indemnify Guardian Investments against any costs or
liabilities (including by way of taxation, wherever arising) Guardian
Investments or any other member of the Guardian Group may incur as a result of
it being the Company, rather than Wired World L.L.C., which acquires the Company
Share from Guardian Investments (the "Company Share" being the one Share
acquired by the Company from Guardian Investments under the Original Agreement).
4.10 The Company and WVI and the WVI Group agree that, should any
member of the Guardian Group be able and wish in the future to submit a claim
for group relief in respect of Guardian Investments' 50% investment in the
Company (a "Claim"), the Company and WVI and the WVI Group will give all
necessary co-operation to such member by way of
3.
<PAGE> 4
provision of relevant information and signing of any requisite consent in
respect of any such Claim in respect of the 50% investment provided that:
(a) the Guardian will procure that the relevant member of the
Guardian withdraws any claim to the extent that it has not been unconditionally
agreed by the Inland Revenue by 31 December 1996 and that the members of the
Guardian Group will not make any Claims after that date;
(b) The Guardian will promptly pay in case to the Company 80% of the
amount of any successful Claim net of reasonable third party expenses (whether
the benefit of the Claim is provided to the Guardian in cash or by tax credit or
otherwise).
4.11 WVI will pay promptly upon demand the reasonable legal and
accounting fees incurred by the Guardian Group, as defined in the Original
Agreement, relating to the negotiation, preparation and execution by the
Guardian Group of this Agreement, the Conditional Consent, the Substitution
Agreement, the Substitution Loan Note, and the Substitution Guaranty, and
otherwise to ensure the substitution of WVI and/or WVI Group (as appropriate in
the context of this Agreement) in the agreements referred to herein in place of
Wired Ventures, Ltd. In connection with submitting a request for payment of such
legal and accounting fees, the Guardian will provide WVI and detailed statements
of such fees and WVI will promptly pay such fees upon the execution of this
Agreement and the Substitution Loan Note and Substitution Guaranty.
5. DEFINITIONS.
Various definitions used in this Agreement but not defined herein shall
have the meanings given to them in the Original Agreement but incorporating all
necessary changes to reflect the substitution in the Original Agreement of WVI
or WVI Group (as appropriate in the context of this Agreement) in place of Wired
Ventures, Ltd.
In addition, in this Agreement the following words shall have the
following meanings (unless the context requires otherwise):
"Certificates" means both the certificate issued by Wired Ventures,
Ltd. and WVI dated 28 May 1996, a copy of which is attached hereto marked "D,"
and the certificate issued by WVI of even date herewith relating to the
financial worth of WVI;
"Conditional Consent" means the consent to the Restructuring of the
Wired Businesses upon the conditions set out in the document signed by the
Guardian dated 28 May 1996, a copy of which is attached hereto marked "E";
"Original Loan Note" means the Pound Sterling 1,000,000 loan note
issued by the Company in favour of the Guardian dated 22 July 1995, which loan
note is hereby terminated and cancelled upon the execution and effectiveness of
each of this Agreement, the Substitution Loan Note and the Substitution
Guaranty, a copy of which Original Loan Note is attached hereto marked "F";
4.
<PAGE> 5
"Original Guaranty" means the guaranty given by Wired Ventures, Ltd. in
favour of the Guardian dated 22 July 1995, which guaranty is hereby terminated
and cancelled upon the execution and effectiveness of each of this Agreement,
the Substitution Guaranty and the Substitution Loan Note, a copy of which
Original Guaranty is attached hereto marked "G";
the "Restructuring" means the transaction to restructure the ownership
of the Wired Businesses as set out in the document attached hereto and marked
"C";
"Substitution Guaranty" means the guaranty of even date herewith by WVI
in favour of the Guardian;
"Substitution Loan Note" means the Pound Sterling 1,000,000 loan note
of even date herewith from the Company in favour of the Guardian;
"Wired Businesses" means all businesses, companies, partnerships and
other entities through which any of the business of the WVI Group (and formerly
of Wired Ventures, Ltd.) is conducted;
"WVI Group" means WVI and all its subsidiaries, subsidiary
undertakings and associated and affiliated companies and partnerships together
with any holding company of WVI from time to time.
6. NOTICES.
6.1 A notice under or in connection with this Agreement or the Original
Agreement shall be in writing and shall be delivered personally or sent by fax
or courier service to the party due to receive the notice, at its address set
out in this Agreement or another address specified by that party by written
notice to the others.
6.2 In the absence of evidence of earlier receipt, a notice or other
communication is deemed given:
(a) if delivered personally, when left at the address referred to below;
(b) if sent by courier service, two days after dispatch;
(c) if sent by fax at 9.30 a.m. (local time of the recipient) on the next
business day (in the location of the recipient) following completion of its
transmission.
7. GOVERNING LAW, JURISDICTION
7.1 This Agreement is governed by, and shall be construed in accordance
with, English law.
5.
<PAGE> 6
7.2 The parties irrevocably submit to the non-exclusive jurisdiction of
the courts of England to hear and decide any suit, action or proceedings, and to
settle any disputes, which may arise out of or in connection with this Agreement
(respectively, "Proceedings" and "Disputes").
7.3 Process by which any Proceedings are begun in England may be served on
WVI or any other member of the WVI Group and/or Wired New York and/or Wired
World L.L.C. by being delivered to the Company at the registered office of the
Company from time to time in each case marked for the attention of the chief
executive in accordance with clause 6.2. Nothing contained in this clause 7.3
affects the right to serve process in another manner permitted by law.
8. COUNTERPARTS
8.1 This Agreement may be executed in any number of counterparts each of
which when executed and delivered is an original, but all the counterparts
together constitute the same document.
6.
<PAGE> 7
Executed as a deed and delivered by :
Signed: /s/ N. Canetty-Clarke/ Signed: /s/ Jane Metcalfe
---------------------- --------------------
/s/ A. V. Townsend Name: Jane Metcalfe
---------------------- -----------------------
Name: N. Canetty-Clarke/ Position: President
------------------------ -------------------
A. V. Townsend
------------------------
Position: Finance Director/
--------------------
Company Secretary
GUARDIAN MEDIA GROUP PLC WIRED VENTURES, INC.
(registered no. 00094531) ("WVI")
("THE GUARDIAN") a Delaware corporation
164 Deansgate 520 Third Street
Manchester San Francisco
M60 2RR California 94107-1427
England USA
fax: 0161 832 0155 fax: 415 222 6229
Signed: /s/ J.C. Markwick/ Signed: /s/ Jane Metcalfe
--------------------- --------------------
/s/ P.J. Naismith Name: Jane Metcalfe
--------------------- ----------------------
Name: J.C. Markwick/ Position: Manager
----------------------- ------------------
P.J. Naismith
-----------------------
Position: CEO/Director
-------------------
KARADEAN LIMITED WIRED WORLD L.L.C.
(registered no. 2922019) ("WIRED INVESTMENTS")
("GUARDIAN INVESTMENTS") a Delaware limited liability company
164 Deansgate 520 Third Street
Manchester San Francisco
M60 2RR California 94107
England USA
fax: 0161 832 0155 fax: 415 222 6229
7.
<PAGE> 8
Signed: /s/ C. Marland/ Signed: /s/ Jane Metcalfe/
------------------------ ---------------------------
/s/ P.J. Naismith /s/ Todd Sotkiewicz
------------------------ ---------------------------
Name: C. Marland/P.J. Naismith Name: Jane Metcalfe/Todd Sotkiewicz
-------------------------- -----------------------------
Position: Managing Director/ Position: Director/Secretary
---------------------- -------------------------
Director and Secretary
----------------------
GUARDIAN MAGAZINES LIMITED EXECUTED AS A DEED BY WIRED UK
(registered no. 02830739) (registered no. 2972399)
("GML") ("THE COMPANY")
164 Deansgate 520 Third Street
Manchester San Francisco
M60 2RR California 94107 USA
England
fax: 0161 837 0651 fax: 415 222 6229
Signed: /s/ J.C. Markwick/ Signed: /s/ Jane Metcalfe
------------------------ --------------------------
/s/ P.J. Naismith Name: Jane Metcalfe
------------------------ ----------------------------
Name: J.C. Markwick/P.J. Naismith Position: President
-------------------------- ------------------------
Position: Director/Director
----------------------
GUARDIAN NEWSPAPERS LIMITED WIRED NEW YORK
(registered no. 00908396) ("WIRED NEW YORK")
("GNL") a California corporation
164 Deansgate 520 Third Street
Manchester San Francisco
M60 2RR California 94107
England USA
fax: 0171 837 0651 fax: 415 222 6229
8.
<PAGE> 9
SUBSTITUTION LOAN NOTE
WIRED UK
(INCORPORATED IN ENGLAND WITH UNLIMITED LIABILITY
REGISTERED NUMBER 2972399)
<TABLE>
<S> <C>
Issue Date: 22 July 1995 Issue Price: Tranche A: Pound Sterling 350,000
Repayment Date: 22 July 1998 Tranche B: Pound Sterling 650,000
------------------------
Total: Pound Sterling 1,000,000
</TABLE>
WHEREAS:
A. Wired Ventures Ltd., a California limited partnership, entered into
a Loan Note dated 22 July 1995 (the "Original Loan Note"), a copy of
which is attached hereto marked "A".
B. Wired Ventures, Inc., a Delaware corporation, ("WVI"), executed a
Substitution Agreement dated 28 May 1996 under which it agreed to
assume the obligations of Wired Ventures, Ltd. under, inter alia,
the Original Loan Note.
C. This Substitution Loan Note is intended to reflect and effect the
assumption of obligations as are referred to in Recital B above.
D. This Substitution Loan Note is entered into in consideration of
Guardian Media Group plc (registered number 0094531) (the
"Noteholder") consenting to the transactions in May/June 1996 to
restructure the ownership of the Wired Businesses (the
"Restructuring") without accelerating payment under the Original
Loan Note and consenting to the related dissolution of Wired
Ventures, Ltd.
IT IS AGREED:
1. For value received, Wired UK ("the Company") promises to pay the
Noteholder the sum of one million pounds sterling (Pound Sterling
1,000,000) in accordance with this Substitution Loan Note. This
Substitution Loan Note is issued in two tranches - Tranche A in the sum of
Pound Sterling 350,000 and Tranche B in the sum of Pound Sterling 650,000,
totalling Pound Sterling 1,000,000. Both Tranche A and Tranche B rank pari
passu in all respects and all rights or obligations in respect of this
Substitution Loan Note will apply pro rata to the two tranches.
2.1 If any Principal Sum is outstanding on the Repayment Date, the
Company shall repay the Principal Sum on the Repayment Date, but no
interest shall be payable.
1.
<PAGE> 10
2.2. [This clause has been deliberately left blank.]
2.3 The Company shall promptly repay the Principal Sum (without
interest) in the event that Jane Metcalfe and/or Louis Rossetto:
(a) does not at any point, or ceases to, serve on the Board of
Directors of WVI; or
(b) Jane Metcalfe and Louis Rossetto do not at any point, or cease
to, hold in aggregate between them in excess of 25 per cent,
of the outstanding common stock (assuming full conversion of
the preferred stock) of WVI.
2.4 In the event that, prior to the Repayment Date, the Noteholder
purchases securities of Wired Europe (as defined in clause 4.8 of
the Agreement), the Company shall simultaneously repay (without
interest) the Principal Sum or such lesser amount as may equal the
amount of such investment. The parties acknowledge that the Company
will not be a party to or a participant in the negotiations
regarding any such transaction.
2.5 In the event that, prior to the Repayment Date, WVI makes a Pari
Passu Offer (as defined in the Original Agreement) which is
rejected, the Company shall promptly repay the Principal Sum or such
lesser amount as may equal the amount of investment offered pursuant
to such Pari Passu Offer, together with interest payable in
accordance with clause 2.7 hereof. The parties acknowledge that any
decision whether to make a Pari Passu Offer will be made by WVI in
its sole discretion, and the Company will not participate in any way
in any such decision.
2.6 In the event that, prior to the Repayment Date, Wired Ventures makes
a Non Pari Passu Offer (as defined in the Original Agreement) which
is rejected, the Company shall promptly repay the Principal Sum or
such lesser amount as may equal the amount of investment offered
pursuant to such Non Pari Passu Offer, together with interest
payable in accordance with clause 2.7 hereof unless the Noteholder
elects not to accept prepayment by notice in writing within 30 days
of receipt of the Non Pari Passu Offer. The parties acknowledge that
any decision whether to make a Non Pari Passu Offer will be made by
WVI in its sole discretion, and the Company will not participate in
any way in any such decision.
2.7 Interest payable under clauses 2.5 or 2.6 hereof shall accrue from
(and including) the Issue Date to (and excluding) the date of
repayment at the rate of 5% per annum (compounded with annual rests
on each anniversary of the Issue Date) and shall be payable after
deduction of tax (if applicable).
2.8 The "PRINCIPAL SUM" means the principal amount (if any) owing from
time to time under this Substitution Loan Note.
2.
<PAGE> 11
3.1 In consideration of the Noteholder agreeing to the Restructuring of
the Wired Businesses in May/June 1996 without accelerating payment
under the Original Loan Note and consenting to the related
dissolution of Wired Ventures, Ltd.; WVI irrevocably and
unconditionally guarantees to the Noteholder the due and punctual
payment by the Company of all principal and interest payable in
respect of this Substitution Loan Note. If at any time the Company
has failed to pay any sum due to the Noteholder in respect of the
Substitution Loan Note, WVI shall pay such sum due to the Noteholder
on demand. WVI's obligations under this clause 3.1 are primary
obligations and not those of a surety. If an obligation of the
Company is void, voidable or unenforceable for any reason, WVI's
obligations under this clause 3.1 are unaffected and WVI shall
perform the obligations of the Company as if it were primarily
liable for such performance.
3.2 WVI's obligations under clause 3.1 hereof are continuing obligations
and are not satisfied, discharged or affected by an intermediate
partial payment or settlement of account by or a change in the
constitution or control of, or the insolvency of, or bankruptcy,
winding up or analogous proceedings relating to, the Company.
3.3 The liability of WVI under clause 3.1 hereof is not affected by an
arrangement which the Noteholder may make with the Company or with
another person which (but for this clause 3.3) might operate to
diminish or discharge the liability of or otherwise provide a
defence to a surety.
3.4 The Noteholder may at any time as it thinks fit without reference to
WVI grant a later time for payment or grant another indulgence or
agree to an amendment, variation, waiver or release in respect of an
obligation of the Company under this Substitution Loan Note but
nothing in this clause 3.4 affects the liability of WVI under clause
3.1 hereof which shall still pay in full.
3.5 So long as the Company remains under an actual or contingent
obligation to pay any principal or interest in respect of the
Substitution Loan Note, WVI shall not exercise a right which it may
at any time have by reason of the performance of its obligations
under clause 3.1 to be indemnified by the Company, or to take the
benefit (in whole or in part and by way of subrogation or otherwise)
of any of the Noteholder's rights under this Substitution Loan Note
or in respect of the Substitution Loan Note.
3.6 The liability of WVI under clause 3.1 is not affected by the
avoidance of any assurance or payment or any release, settlement or
discharge which is given or made on the faith of any assurance or
payment, in either case under an enactment relating to bankruptcy or
insolvency of the Company or WVI.
3.7 The guarantee in this clause 3 operates in addition to the guaranty
being given on today's date by WVI to the Noteholder in a document
governed by the laws of the State of California Provided Always that
the Noteholder may not recover twice
3.
<PAGE> 12
in respect of the same liability nor shall WVI be obliged to pay in
total more than the amount of all principal and interest payable in
respect of this Substitution Loan Note.
4. The provisions of clauses 16, 18, 20, 21 and 22 of the Original
Agreement between the Company, Wired Ventures, Ltd. ("Wired
Ventures"), the Noteholder, Wired World L.L.C. ("Wired
Investments"), Wired New York, Karadean Limited, Guardian Magazines
Limited and Guardian Newspapers Limited as incorporated into and/or
amended by the Agreement of today's date referred to in clause 9
hereof apply to this Substitution Loan Note mutatis mutandis.
5. "WVI" means Wired Ventures, Inc., a Delaware corporation.
6. Neither the Company nor WVI shall have any right to set off any
liability or debt owed or alleged to be owed to either of them by
the Noteholder against any liability to the Noteholder under this
Substitution Loan Note.
7. If the Company defaults in the payment of any sum due and payable
under this Substitution Loan Note on the due date, the Company shall
pay default interest on such sum (or, as the case may be, the amount
thereof for the time being due and unpaid) to the Noteholder from
the due date to (and including) the date of actual payment
calculated at the rate per amount being the aggregate of 10% per
annum and the base rate of National Westminster Bank plc from time
to time. Such default interest will be paid after deduction of tax
(if applicable).
8.1 The benefit of this Substitution Loan Note may be assigned from time
to time to any member of the Guardian Group Provided That if a
Noteholder ceases to be a member of the Guardian Group it shall
promptly assign the benefit of this Substitution Loan Note to an
entity which is a member of the Guardian Group pending which the
rights of the Noteholder hereunder (other than this right of
assignment) shall be suspended. For the avoidance of doubt, the
"Noteholder" is deemed to mean the lawful holder of this
Substitution Loan Note from time to time.
8.2 Subject as provided in clause 8.1 hereof, a party may not assign or
transfer or purport to assign or transfer a right or obligation
under this Substitution Loan Note without first having obtained the
consent of the other parties hereto, such consent not to be
unreasonably withheld or delayed.
9. Capitalised terms used herein have the same meanings as are given to
them in the Agreement of even date herewith (the "Agreement")
between Wired Ventures, Inc., Wired UK, Guardian Media Group plc and
others.
4.
<PAGE> 13
Executed as a deed and delivered by the Company, WVI and the Noteholder on
28 June 1996.
EXECUTED AS A DEED BY
WIRED UK /s/ Jane Metcalfe
_______________________________________
Signature of director
Jane Metcalfe
_______________________________________
Name of director
/s/ Todd Sotkiewicz
_______________________________________
Signature of director/secretary
Todd Sotkiewicz
_______________________________________
Name of director/secretary
EXECUTED AS A DEED BY
WIRED VENTURES, INC.
/s/ Jane Metcalfe
_______________________________________
Signature:
Jane Metcalfe
_______________________________________
Name:
President
_______________________________________
Title:
SIGNED FOR AND ON BEHALF OF
GUARDIAN MEDIA GROUP PLC
/s/ Neil A. Canetty-Clarke
_______________________________________
Signature of Director
Neil A. Canetty-Clarke
_______________________________________
Name of director
5.
<PAGE> 14
SUBSTITUTION GUARANTY
THIS CONTINUING GUARANTY ("GUARANTY") is entered into as of June 28,
1996, by WIRED VENTURES, INC., a Delaware Corporation ("GUARANTOR"), in favour
of GUARDIAN MEDIA GROUP PLC, an English company ("NOTE HOLDER").
RECITALS
A. Wired Ventures, Ltd., a Californian limited partnership, entered
into a Guaranty in favour of Note Holder dated July 22, 1995 (the "ORIGINAL
GUARANTY") a copy of which is attached hereto marked "A."
B. Guarantor executed a Substitution Agreement dated 28 May 1996 under
which it agreed to assume the obligations of Wired Ventures, Ltd. under, inter
alia, the Original Guaranty.
C. This Substitution Guaranty is intended to reflect and effect the
assumption of obligations as are referred to in Recital B, above.
D. Concurrently herewith, Note Holder, Guarantor and Wired UK,
incorporated under the laws of England with unlimited liability ("BORROWER"),
are entering into that certain Loan Note of even date herewith (the
"SUBSTITUTION LOAN NOTE"), pursuant to which Note Holder has agreed to extend
certain financial accommodations to Borrower, subject to the terms and
conditions set forth therein and that certain Agreement of even date herewith by
and among Guarantor, Note Holder, Borrower, Guardian Magazines Limited, Karadean
Limited, Guardian Newspapers Limited, Wired World L.L.C. and Wired New York (the
"AGREEMENT").
E. In consideration of Note Holder consenting to the transactions in
May/June 1996 to restructure the ownership of the Wired Businesses (the
"RESTRUCTURING") without accelerating payment under the Original Loan Note and
consenting to the related dissolution of Wired Ventures, Ltd., Guarantor is
willing to guarantee the full payment and performance by Borrower of all of its
obligations under the Substitution Loan Note, all as set forth herein.
F. Guarantor is or will be, whether directly or through one or more
intermediary companies, the parent company of Borrower.
G. Guarantor will obtain substantial direct and indirect benefit from
the Substitution Loan Note.
AGREEMENT
NOW, THEREFORE, in order to induce Note Holder to execute the
Substitution Loan Note, and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, and intending to be
legally bound, Guarantor hereby represents, warrants, covenants and agrees as
follows:
1.
<PAGE> 15
SECTION 1. DEFINITIONS. All capitalised terms used but not defined
herein shall have the meanings given to them in the Substitution Loan Note and
the Agreement of even date herewith.
SECTION 2. GUARANTY.
2.1 UNCONDITIONAL GUARANTEE OF PAYMENT. In consideration of
the foregoing, Guarantor hereby irrevocably, absolutely and unconditionally
guarantees to Note Holder the prompt and complete payment when due (whether at
stated maturity, by acceleration or otherwise) of all indebtedness of Borrower
to Note Holder created under the Substitution Loan Note (all such indebtedness
being the "Liabilities"), together with the prompt payment of all expenses,
including, without limitation, reasonable attorneys' fees, and costs incurred by
Note Holder incidental to the collection of the Liabilities. The term
"indebtedness" is used herein in its most comprehensive sense and includes any
and all advances, debts, obligations and liabilities heretofore, now or
hereafter made, incurred or created, whether voluntary or involuntary and
whether due or not due, absolute or contingent, liquidated or unliquidated,
determined or undetermined, and whether recovery upon such indebtedness may be
or hereafter become unenforceable. (The Liabilities and all other obligations
and covenants to be performed by Guarantor under this Substitution Guaranty
shall hereinafter be collectively referred to as the "GUARANTY OBLIGATIONS.")
2.2 EXPENSES. Guarantor agrees to pay all expenses, including,
without limitation, reasonable attorneys' fees, and costs incurred by Note
Holder in connection with the enforcement of Note Holder's rights under this
Substitution Guaranty.
2.3 JOINT AND SEVERAL LIABILITY. If any other person in
addition to Guarantor shall guarantee the payment of all or any part of the
Liabilities, all guarantors and their respective successors and assigns shall be
jointly and severally bound by the terms of this Substitution Guaranty and any
other guaranty of the Liabilities, notwithstanding any relationship or contract
of co-obligation by or among such guarantors. Note Holder's enforcement of the
Guaranty Obligations is not conditioned upon Note Holder's obtaining from any
other person a guaranty of all or any part of the Liabilities.
SECTION 3. PAYMENTS. All payments to be made by Guarantor to Note
Holder hereunder shall be made in lawful money of England, in immediately
available funds, addressed to Note Holder at 164 Deansgate, Manchester, M60 2RR
England (or such other address as Note Holder may hereafter specify to the
Guarantor), on the date due, and shall be accompanied by a notice from Guarantor
stating that such payments are made under this Substitution Guaranty.
SECTION 4. REPRESENTATIONS AND WARRANTIES.
Guarantor hereby represents and warrants to Note Holder that:
(a) Guarantor (i) is a Delaware corporation, validly existing
and in good standing under the laws of the State of Delaware; (ii) is duly
qualified to do business and is in
2.
<PAGE> 16
good standing in every jurisdiction where the nature of its business requires it
to be so qualified (except where the failure to so qualify would not have a
material adverse effect on the Guarantor's condition, financial or otherwise, or
on Guarantor's ability to pay or perform the Guaranty Obligations); and (ii) has
all requisite power and authority to execute and deliver this Substitution
Guaranty and each other document executed and delivered by Guarantor pursuant to
the Substitution Loan Note or this Substitution Guaranty and to perform its
obligations thereunder and hereunder.
(b) The execution, delivery and performance by Guarantor of
this Substitution Guaranty (i) are within Guarantor's powers and have been duly
authorised by all necessary action; (ii) do not contravene Guarantor's
certificate of incorporation and by-laws or any law or any contractual
restriction binding on or effecting Guarantor or by which Guarantor's property
may be effected; (iii) do not require any authorisation or approval or other
action by, or any notice to or filing with, any governmental authority or any
other person under any indenture, mortgage, deed of trust, lease, agreement or
other instrument to which Guarantor is a party or by which Guarantor or any of
its property is bound except such as have been obtained or made; and (iv) do
not, except as contemplated by the Substitution Loan Note or this Substitution
Guaranty, result in the imposition or creation of any lien upon the property of
Guarantor.
(c) This Substitution Guaranty constitutes the legal, valid
and binding obligation of Guarantor, enforceable against Guarantor in accordance
with its terms, except as the enforceability thereof may be subject to or
limited by bankruptcy, insolvency, reorganization, arrangement, moratorium or
other similar laws relating to or affecting the rights of creditors generally.
(d) There is no action, suit or proceeding affecting Guarantor
pending or threatened before any court, arbitrator, or governmental authority,
domestic or foreign, which may have a material adverse effect on the ability of
Guarantor to perform its obligations under this Substitution Guaranty.
(e) The Guaranty Obligations are not subject to any offset or
defense against Note Holder or Borrower of any kind.
(f) The incurrence of the Guarantor's obligations under this
Substitution Guaranty will not cause the Guarantor to (i) become insolvent; (ii)
be left with unreasonably small capital for any business or transaction in which
Guarantor is presently engaged or plans to be engaged; or (iii) be unable to pay
its debts as such debts mature.
(g) Guarantor covenants, warrants, and represents to Note
Holder that all representations and warranties contained in this Substitution
Guaranty shall be true at the time of Guarantor's execution of this Substitution
Guaranty, and shall continue to be true until the Guaranty Obligations have been
paid and performed in full. Guarantor expressly agrees that any
misrepresentation or breach of any warranty whatsoever contained in this
Substitution Guaranty shall be deemed material.
3.
<PAGE> 17
SECTION 5. ABSOLUTE GUARANTY. Guarantor agrees that the liability
hereunder shall be the immediate, direct, and primary obligation of Guarantor
and shall not be contingent upon Note Holder's exercise or enforcement of any
remedy it may have against Borrower or any other person or against any security
for the Guaranty Obligations. Without limiting the generality of the foregoing,
the Guaranty Obligations shall remain in full force and effect without regard to
and shall not be impaired or affected by, nor shall Guarantor be exonerated or
discharged by, any of the following events:
(a) insolvency, bankruptcy, reorganisation, arrangement,
adjustment, composition, assignment for the benefit of creditors, death,
liquidation, winding up or dissolution of Borrower, Guarantor or any other
guarantor of the Liabilities;
(b) any limitation, discharge, or cessation of the liability
of Borrower, Guarantor or any other guarantor for the Liabilities due to any
statute, regulation or rule of law, or any invalidity or unenforceability in
whole or in part of the documents evidencing the Liabilities or any other
guaranty of the Liabilities;
(c) any merger, acquisition, consolidation or change in
structure of Borrower, Guarantor or any other guarantor of the Liabilities or
any sale, lease, transfer, or other disposition of any or all of the assets or
shares of Borrower, Guarantor or any other guarantor of the Liabilities;
(d) any assignment or other transfer, in whole or in part, of
Note Holder's interests in and rights under this Substitution Guaranty or the
Substitution Loan Note, including, without limitation, Note Holder's right to
receive payment of the Liabilities or the Guaranty Obligations, as the case may
be;
(e) any claim, defense, counterclaim or set-off, other than
that of prior performance, that Borrower, Guarantor or any other guarantor of
the Liabilities may have or assert, including, but not limited to, any defense
of incapacity or lack of corporate or other authority to execute any documents
relating to the Liabilities, the Guaranty Obligations or any collateral securing
the Guaranty Obligations;
(f) Note Holder's amendment, modification, renewal, extension,
cancellation or surrender of any agreement, document or instrument relating to
the Substitution Loan Note, the Liabilities or the Guaranty Obligations;
(g) Note Holder's exercise or non-exercise of any power, right
or remedy with respect to the Liabilities, the Guaranty Obligations, including,
but not limited to, Note Holder's compromise, release, settlement or waiver with
or of Borrower, Guarantor or any other person;
(h) Note Holder's vote, claim, distribution, election,
acceptance, action or inaction in any bankruptcy case related to the Liabilities
or the Guaranty Obligations; and
4.
<PAGE> 18
(i) any impairment or invalidity of any collateral or any
collateral securing the Guaranty Obligations or any failure to perfect any of
Note Holder's Liens thereon or therein.
SECTION 6. DUE DILIGENCE. Guarantor acknowledges that it has,
independently or and without reliance on Note Holder, made its own credit
analysis of Borrower, performed its own legal review of this Substitution
Guaranty, the Substitution Loan Note and all related documents and is not
relying on Note Holder with respect to any of the aforesaid items. Guarantor has
established adequate means of obtaining from Borrower on a continuing basis
financial and other information pertaining to Borrower's financial condition.
Guarantor agrees to keep adequately informed from such means of any facts,
events or circumstances which might in any way affect Guarantor's risks
hereunder, and Guarantor further agrees that Note Holder shall have no
obligation to disclose to Guarantor information or material with respect to
Borrower acquired in the course of Note Holder's relationship with Borrower.
SECTION 7. TOLLING OF STATUTE OF LIMITATIONS. Guarantor agrees that any
payment or performance of any of the Liabilities or other acts which tolls any
statute of limitations applicable to the Liabilities shall also toll the statute
of limitations applicable to Guarantor's liability under this Substitution
Guaranty.
SECTION 8. WAIVERS.
8.1 GENERAL WAIVERS. Guarantor hereby expressly waives (a)
diligence, presentment, demand for payment, protest, benefit of any statute of
limitations affecting Borrower's liability under the Substitution Loan Note or
the enforcement of this Substitution Guaranty; (b) discharge due to any
disability of Borrower; (c) any defenses of Borrower to obligations under the
Substitution Loan Note not arising under the express terms of the Substitution
Loan Note or from a material breach thereof by Note Holder which under
applicable law has the effect of discharging borrower from the Liabilities as to
which this Substitution Guaranty is sought to be enforced; (d) the benefit of
any act or omission by Note Holder which directly or indirectly results in or
aids the discharge of Borrower from any of the Liabilities by operation of law
or otherwise; (e) all notices whatsoever, including, without limitation, notice
of acceptance of this Substitution Guaranty and the incurring of the
Liabilities; and (f) any requirement that Note Holder exhaust any right, power
or remedy or proceed against Borrower or any other security for, or any other
guarantor of, or any other party liable for, any of the Liabilities, or any
portion thereof. Guarantor specifically agrees that it shall not be necessary or
required, and Guarantor shall not be entitled to require, that Note Holder (i)
file suit or proceed to assert or obtain a claim for personal judgment against
Borrower, for all or any part of the Liabilities; (ii) make any effort at
collection or enforcement of all or any part of the Liabilities from Borrower;
(iii) foreclose against or seek to realise upon any security now or hereafter
existing for all or any part of the Liabilities; (iv) file suit or proceed to
obtain or assert a claim for personal judgment against Guarantor or any other
guarantor or other party liable for all or any part of the Liabilities; (v)
exercise or assert any other right or remedy to which Note Holder is or may be
entitled in connection with the Liabilities or any security or guaranty relating
thereto to assert; or (vi) file any claim against assets of Borrower before or
as a condition of enforcing the liability of Guarantor under this Substitution
Guaranty. Without
5.
<PAGE> 19
limiting the generality of the foregoing, Guarantor expressly waives the benefit
of California Civil Code Sections 2809, 2810, 2819, 2839, 2845, 2848, 2849,
2850, 2899 and 1432.
SECTION 9. CONTINUING GUARANTY. This Substitution Guaranty shall be a
continuing guaranty and shall remain in effect until the Liabilities have been
paid in full. Any other guarantors of all or any part of the Liabilities may be
released without affecting the liability of Guarantor hereunder.
SECTION 10. REINSTATEMENT. Notwithstanding any provision of the
Substitution Loan Note to the contrary, the liability of Guarantor hereunder
shall be reinstated and revived and the rights of Note Holder shall continue if
and to the extent that for any reason any payment by or on behalf of Borrower is
rescinded or must be otherwise restored by Note Holder, whether as a result of
any proceedings in bankruptcy or reorganization or otherwise, all as though such
amount had not been paid. The determination as to whether any such payment must
be rescinded or restored shall be made by Note Holder in its sole discretion:
provided, however, that if Note Holder chooses to contest any such matter at the
request of Guarantor, Guarantor agrees to indemnify and hold harmless Note
Holder form all costs and expenses (including, without limitation, reasonable
attorneys' fees) of such litigation. To the extent any payment is rescinded or
restored, the Liabilities shall be revived in full force and effect without
reduction or discharge for that payment.
SECTION 11. EVENTS OF DEFAULT.
11.1 EVENT OF DEFAULT. The occurrence of any one or more of
the following events shall constitute an "Event of Default":
(a) the occurrence of a default under or as defined
in the Substitution Loan Note; or
(b) any representation or warranty made by Guarantor
to Note Holder in this Substitution Guaranty, or in any statement, report,
financial statement or certificate delivered by Guarantor to Note Holder is not
true and correct or is misleading, in any material respect, when made or
delivered; or
(c) the commencement by Guarantor of a voluntary case
under the federal bankruptcy laws, as now constituted or hereafter amended, or
any other applicable federal or state bankruptcy, insolvency or similar law; or
the consent by Guarantor to the appointment of a receiver, liquidator, assignee,
trustee, custodian, sequestrator, agent or other similar official for Guarantor
for any substantial part of its property; or the making by Guarantor of any
assignment for the benefit of creditors; or any case or proceeding is commenced
by Guarantor for its dissolution, liquidation or termination; or the taking of
any action by or on behalf of Guarantor in furtherance of any of the foregoing;
or
(d) the filing of a petition with a court having
jurisdiction over Guarantor to commence an involuntary case for Guarantor under
the federal bankruptcy laws,
6.
<PAGE> 20
as now constituted or hereafter amended, or any other applicable federal or
state bankruptcy, insolvency or similar law; or the appointment of a receiver,
liquidator, assignee, custodian, trustee, agent, sequestrator or other similar
official for Guarantor or for any substantial part of its property; or any
substantial part of Guarantor's property is subject to any levy, execution,
attachment, garnishment or temporary protective order; or the ordering of the
dissolution, liquidation or winding up of Guarantor's affairs and the failure to
obtain the dismissal of such petition or appointment or the continuance of such
decree or order unstayed and in effect for or within a period of sixty (60) days
from the date of such filing, appointment, or entry of such order or decree.
11.2 ACCELERATION OF THE LIABILITIES. Upon and after an Event
of Default hereunder, then all or any part of the Liabilities may, at the option
of Note Holder and without demand, notice, or legal process of any kind, be
declared, and immediately shall become, due and payable.
SECTION 12. NO WAIVER; AMENDMENTS. No failure on the part of Note
Holder to exercise, no delay in exercising and no course of dealing with respect
to, any right hereunder shall operate as a waiver thereof; nor shall any single
or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law. This
Substitution Guaranty may not be amended or modified except by written agreement
between Guarantor and Note Holder, and no consent or waiver hereunder shall be
valid unless in writing and signed by Note Holder.
SECTION 13. COMPROMISE AND SETTLEMENT. No compromise, settlement,
release, renewal, extension, indulgence, change in, waiver or modification of
any of the Liabilities or the release of Guarantor or discharge of Borrower or
Guarantor from the performance of any of the Liabilities shall release or
discharge Guarantor from this Substitution Guaranty.
SECTION 14. NOTICE. Note Holder shall provide Guarantor with a copy of
any notice of default to Borrower as provided under the Loan Note; provided,
however, that the failure of Note Holder to provide such notice to Guarantor
will not exonerate Guarantor of any obligations under this Substitution
Guaranty. Except as otherwise provided herein, any notice or other communication
herein required or permitted to be given shall be in writing and may be
delivered in person, with receipt acknowledged, or sent by telex, telecopy,
computer transmission or by United States mail, registered or certified, return
receipt requested, postage prepaid and addressed as follows:
7.
<PAGE> 21
IF TO GUARANTOR: Wired Ventures, Inc.
520 Third Street
San Francisco, CA 94107-1427
USA
Attention: Jane Metcalfe
Telephone: + 1 415 222 6200
Facsimile: + 1 415 222 6229
WITH COPIES TO: Cooley Godward Castro
Huddleson & Tatum
One Maritime Plaza, 20th Floor
San Francisco, California 94111
USA
Attention: Kenneth L. Guernsey
Telephone: + 1 415 693 2000
Facsimile: + 1 415 951 3699
IF TO NOTE HOLDER: Guardian Media Group plc
164 Deansgate
Manchester
M60 2RR
England
Telephone: + 44 161 832 7200
Facsimile: + 44 161 832 0155
or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration or other communication hereunder shall be deemed
to have been duly given or served on the date on which personally delivered,
with receipt acknowledged, or three (3) business days after the same shall have
been deposited in the United States mail.
SECTION 15. ENTIRE AGREEMENT. This Substitution Guaranty, the
Substitution Loan Note, the Agreement if even date hereof, the Original
Agreement and the Substitution Agreement and any documents referred to therein
constitute and contain the entire agreement of the parties and supersede any and
all prior and contemporaneous agreements, negotiations, correspondence,
understandings and communications between Guarantor and Note Holder, whether
written or oral, respecting the subject matter thereof. For the avoidance of
doubt, each of the Original Loan Note and the Original Guaranty is hereby
terminated and canceled upon the execution and effectiveness of each of this
Substitution Guaranty and both the Agreement and the Substitution Loan Note of
even date herewith.
SECTION 16. SEVERABILITY. If any provision of this Substitution
Guaranty is held to be unenforceable under applicable law for any reason, it
shall be adjusted, if possible, rather than voided in order to achieve the
intent of Guarantor and Note Holder to the extent possible.
8.
<PAGE> 22
In any event, all other provisions of this Substitution Guaranty shall be deemed
valid and enforceable to the full extent possible under applicable law.
SECTION 17. SUBORDINATION OF INDEBTEDNESS. Any indebtedness or other
obligation of Borrower now or hereafter held by or owing to Guarantor is hereby
subordinated in time and right of payment to all obligations of Borrower to Note
Holder, except as such indebtedness or other obligation is permitted to be paid
under the Substitution Loan Note; and such indebtedness of Borrower to Guarantor
is assigned to Note Holder as security for this Substitution Guaranty, and if
Note Holder so requests shall be collected, enforced and received by Guarantor
in trust for Note Holder and to be paid over to Note Holder on account of the
Liabilities of Borrower to Note Holder, but without reducing or affecting in any
manner the liability of Guarantor under the other provisions of this
Substitution Guaranty. Any notes now or hereafter evidencing such indebtedness
of Borrower to Guarantor shall be marked with a legend that the same are subject
to this Substitution Guaranty and shall be delivered to Note Holder. Guarantor
shall, and Note Holder is hereby authorized to, in the name of Guarantor from
time to time, execute and file financing statements and continuation statements
and execute such other documents and take such other action as Note Holder deems
necessary or appropriate to perfect, preserve and enforce its rights hereunder.
SECTION 18. RIGHT OF SET-OFF. Upon the occurrence and during the
continuance of any Event of Default, Note Holder is hereby authorised at any
time and from time to time, without notice to Guarantor (any such notice being
expressly waived by Guarantor), to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other obligations at any time owing by Note Holder or any of its affiliates to
or for the credit of the account of Guarantor against the Guaranty Obligations
of Guarantor to Note Holder now or hereafter existing irrespective of whether or
not Note Holder shall have made any demand under this Substitution guaranty or
the Substitution Loan Note and although such obligations may be unmatured. The
rights of Note Holder under this Section 18 are in addition to all other rights
and remedies (including, without limitation, other rights of set-off) which Note
Holder may have. guarantor grants to Note Holder a security interest in any and
all such deposits as security for satisfaction of the foregoing obligations.
SECTION 19. INDEMNITY. In addition to and without limiting or impairing
in any manner whatsoever Guarantor's other obligations under this Substitution
Guaranty, Guarantor agrees to indemnify the Note Holder from and against any and
all claims, losses and liabilities growing out of or resulting from this
Substitution Guaranty (including, without limitation, enforcement of this
Substitution Guaranty), except claims, losses or liabilities resulting from such
person's gross negligence or wilful misconduct.
SECTION 20. GOVERNING LAW. This Guaranty shall be binding upon and
inure to the benefit of Guarantor and Note Holder and their respective
successors and assigns, except that Guarantor shall not have the right to assign
its rights hereunder or any interest herein without the prior written consent of
Note Holder. This Guaranty shall be governed by, and construed in accordance
with, the laws of the State of California.
9.
<PAGE> 23
SECTION 21. WAIVER OF SPECIFIC RIGHTS. GUARANTOR HEREBY
IRREVOCABLY WAIVES AND RELEASES:
(a) ANY AND ALL RIGHTS IT MAY HAVE AT ANY TIME (WHETHER
ARISING DIRECTLY OR INDIRECTLY, BY OPERATION OF LAW, CONTRACT OR OTHERWISE) TO
REQUIRE THE MARSHALLING OF ANY ASSETS OF BORROWER, WHICH RIGHT OF MARSHALLING
MIGHT OTHERWISE ARISE FROM ANY SUCH PAYMENTS MADE OR OBLIGATIONS PERFORMED;
(b) ANY AND ALL RIGHTS THAT WOULD RESULT IN GUARANTOR
BEING DEEMED A "CREDITOR" UNDER THE UNITED STATES BANKRUPTCY CODE
OF BORROWER OR ANY OTHER PERSON, ON ACCOUNT OF PAYMENTS MADE OR
OBLIGATIONS PERFORMED BY GUARANTOR; AND
(c) ANY CLAIM, RIGHT OR REMEDY WHICH GUARANTOR MAY NOW HAVE OR
HEREAFTER ACQUIRE AGAINST BORROWER THAT ARISES HEREUNDER AND/OR FROM THE
PERFORMANCE BY GUARANTOR HEREUNDER INCLUDING, WITHOUT LIMITATION, ANY CLAIM,
REMEDY OR RIGHT OF SUBROGATION. REIMBURSEMENT, EXONERATION, CONTRIBUTION,
INDEMNIFICATION, OR PARTICIPATION IN ANY CLAIM, RIGHT OR REMEDY OF NOTE HOLDER
AGAINST BORROWER OR ANY COLLATERAL SECURITY WHICH NOTE HOLDER MAY NOW HAVE OR
MAY HEREAFTER ACQUIRE, WHETHER OR NOT SUCH CLAIM, RIGHT OR REMEDY ARISES IN
EQUITY, UNDER CONTRACT, BY STATUTE, UNDER COMMON LAW OR OTHERWISE.
IN WITNESS WHEREOF, Guarantor has executed and delivered this
Substitution Guaranty as of the date first written above.
GUARANTOR: Executed as a deed by
WIRED VENTURES, INC.,
a Delaware corporation
By: /s/ Jane Metcalfe
------------------------------
Printed Name: Jane Metcalfe
--------------------
Title: President
---------------------------
Accepted and Acknowledged by:
GUARDIAN MEDIA GROUP PLC
By: /s/ N.A. Canetty-Clarke
-----------------------------
Printed Name: N.A. Canetty-Clarke
-------------------
Title: Finance Director
--------------------------
10.