EXHIBIT 8
[EXECUTION COPY]
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GUARANTY
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THIS GUARANTY is made and entered into as of this 13th day of May, 1997, by
SGI Holding Corporation Limited, a Bermuda exempted company ("SGIH")
("Guarantor"), in favor of Xxxxxx'x Interactive Investment Company, a Nevada
corporation ("Lender").
THIS GUARANTY IS ENTERED INTO WITH RESPECT TO THE FOLLOWING FACTS AND
CIRCUMSTANCES:
A. Pursuant to the Financing Agreements, as defined in that certain
Funding Agreement dated as of the date hereof among Interactive Entertainment
Limited, a Bermuda exempted company ("IEL" or "Borrower") and Sky Games
International Ltd., a Bermuda exempted company ("SGI"), and Lender, as lender
(the "Funding Agreement"), Lender has agreed to loan to IEL funds required by
IEL to fund its day-to-day business activities up to the amounts set forth in
the Funding Agreement. The loan is evidenced by a Convertible Promissory Note
dated the date hereof (the "Note").
B. Lender has required, as a condition to its entering into the Financing
Agreements with IEL, that Guarantor guarantee, in accordance with the terms and
conditions hereinafter set forth, the obligations of IEL under the Financing
Agreements, including without limitation the repayment of all amounts due to
Lender.
C. The Funding Agreement is dated as of the date hereof and is being
executed simultaneously with this Guaranty.
IN CONSIDERATION OF SUCH FACTS AND CIRCUMSTANCES; TO INDUCE LENDER TO ENTER
INTO THE FINANCING AGREEMENTS; AND FOR OTHER GOOD AND VALUABLE CONSIDERATION,
GUARANTOR HEREBY AGREES FOR THE BENEFIT OF LENDER AS FOLLOWS:
1. Guaranty. Guarantor hereby unconditionally guarantees to Lender, and
Lender's successors and assigns, the payment of all amounts that may become
payable by Borrower pursuant to the Funding Agreement and the Note and the full
and punctual performance and observance of all the terms, covenants, obligations
and conditions contained in the Financing Agreements to be kept, performed or
observed by Borrower, for which Guarantor shall be jointly and severally liable
with Borrower.
2. Actions of Lender. Any act of Lender, or Lender's successors and
assigns, consisting of a waiver of any of the terms and conditions of the
Financing Agreements or the giving of any consent to any matter or thing
relating to the Financing Agreements or the granting of any indulgence or
extensions of time to Borrower under the Financing Agreements may be done
without notice to Guarantor and without releasing the obligations of Guarantor.
3. Modifications of Borrower's Obligations. The obligations of Guarantor
shall not be released by the receipt, application or release by Lender of any
security given for the performance and observance of the terms, covenants and
conditions of the Funding Agreement or the Note, nor by any amendment or
modification of the Funding Agreement. If the Funding Agreement or the Note is
amended or modified, by Borrower and Lender, the liability of Guarantor shall be
deemed to be modified in accordance with the terms of any such amendment or
modification of the Funding Agreement or the Note and this Guaranty, as so
modified, shall remain in full force and effect.
4. Defenses Waived. The liability of Guarantor shall not be affected,
reduced or set-off in any manner by the following events or circumstances: (a)
the release, discharge or the impairment, limitation or modification of the
liability of Borrower in any creditors' receivership, bankruptcy or other
proceedings; (b) the rejection or disaffirmance of the Funding Agreement or the
Note in any proceeding; (c) any disability or other defense or counter-claim or
right of set-off, which might be available at law or equity to Borrower or
Guarantor; (d) the cessation from any cause whatsoever of the duties,
obligations and liabilities of Borrower; (e) any statute of limitations
affecting Guarantor's liability or the enforcement thereof; (f) any invalidity,
irregularity or enforceability of or defect in the Funding Agreement or the
Note; or (g) the winding up, dissolution or reorganization of Borrower; or (h)
any other circumstance permitting a defense.
5. Waiver of Subrogation. Until all the covenants and conditions in the
Funding Agreement to be performed and observed by Borrower are fully kept,
performed and observed, the Guarantor: (a) shall have no right of subrogation
against Borrower by reason of any payments or acts of performance by the
Guarantor, in compliance with the obligations of the Guarantor hereunder; (b)
shall waive any right to enforce any remedy which the Guarantor now or hereafter
shall have against Borrower by reason of any one or more payments or acts of
performance in compliance with the obligation of the Guarantor.
6. Term of Guaranty. This Guaranty is absolute and unconditional, shall
continue in force for the entire period that Borrower and SGI may incur any
liability pursuant to the Financing Agreements and shall not be impaired by any
change in the Guarantor's relationship, or the complete termination of the
Guarantor's relationship, with Borrower or by any other occurrence except a
release in writing from the Lender; provided, however, that, any implication
contained herein to the contrary notwithstanding, this Guaranty shall terminate
upon the amalgamation of IEL with and into SGIH and the conversion of the
obligations under the Note into the common stock, Cdn. $.01 par value, of SGI.
7. Modification. This instrument may not be changed, modified, discharged
or terminated orally or in any manner other than by an agreement in writing
executed by Lender and Guarantor.
8. Release. Lender may, without releasing, reducing, extinguishing or
otherwise affecting Guarantor's liability for the full performance of all
obligations under this Guaranty and full payment of all sums under this Guaranty
at any time, without notice to or consent by Guarantor, release any other
guarantor or party liable therefor from its obligations under the Funding
Agreement or the Note.
9. Actions Against Guarantor. The agreements, obligations, warranties and
representations of the Guarantor are independent of the obligations of Borrower
and, in the event of any default, a separate action or actions may be brought
and prosecuted against Guarantor regardless of whether Borrower is joined
therein or a separate action or actions is brought before, after or
simultaneously against Borrower. Lender may maintain successive actions for
defaults. Lender's rights shall not be exhausted by the exercise of any of its
rights or remedies or by any such action or by any number of successive actions
until and unless all obligations hereby guaranteed have been fully paid and
performed. If Lender is compelled at any time to take any action or proceeding
in court or otherwise to enforce or compel compliance with the terms of this
Guaranty, Guarantor shall, in addition to any other rights and remedies to which
Lender may be entitled hereunder or as a matter of law or in equity, be
obligated to pay all costs, including without limitation reasonable attorneys'
fees, incurred or expended by Lender in connection with such enforcement
proceedings. Lender may resort to Guarantor for payment of any of the
obligations under the Financing Agreements, whether or not Lender (i) shall have
resorted to any property securing any of the obligations under the Financing
Agreements or (ii) shall have proceeded against any other obligor primarily or
secondarily obligated with respect to any of the
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obligations under the Financing Agreements (all of the actions referred to in
preceding clauses (i) and (ii) being hereby expressly waived by the Guarantor).
10. Applicable Law and Forum. This Guaranty shall be governed by and
construed in accordance with the laws of the State of Tennessee. Guarantor
further agrees that the determination of any action relating to the Guaranty
pursuant to the terms thereof shall be either in an appropriate court of the
state of Tennessee or the Unites States District Court for the Western District
of Tennessee.
11. Unenforceable Provision. Should any one or more provisions of this
Guaranty be determined to be illegal or unenforceable, all other provisions
shall to the maximum extent possible remain effective.
12. Entire Agreement. This Guaranty shall constitute the entire agreement
of Guarantor with Lender with respect to the subject matter hereof.
13. Successors and Assigns. This Guaranty shall inure to the benefit of
Lender, Lender's successors and assigns. This Guaranty may not be assigned by
Guarantor without the consent of Lender.
14. Notices. All notices and other communications to be delivered or made
hereunder shall be in writing and shall be (i) delivered personally, (ii) sent
by postage prepaid certified mail, return receipt requested, (iii) sent by
express courier service or (iv) sent by facsimile at the following addresses or
at such other addresses as shall be described in written notice as provided
herein:
Guarantor: SGI Holding Corporation Limited
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxx Xxxxxxxx X0X 0X0
Attn: Xxxxxxx X. Xxxxx
Facsimile No.: 604-687-8678
With a copy to: Altheimer & Xxxx
00 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. XxXxxx, Esq.
Facsimile No.: 000-000-0000
Lender: Xxxxxx'x Interactive Investment Corporation
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxx X. Xxxxxx
Facsimile No.: 000-000-0000
With a copy to: Xxxxxx'x Entertainment, Inc.
0000 Xxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxx X. XxXxxxxx, Esq.
Facsimile No.: 000-000-0000
All such notices and communications shall be effective, if mailed, upon
expiration of the fifth (5th) day following the date of mailing (except that any
notice of change of address shall be effective only upon receipt
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by the party to whom such notice is addressed), and if delivered personally or
delivered by courier, upon receipt or refusal of delivery, and if by facsimile,
upon the first business day following confirmed transmission; provided such
notice or communication is also mailed in accordance with the foregoing
requirements within two (2) days of delivery by facsimile.
IN WITNESS WHEREOF, Guarantor, intending to be legally bound, has caused
this Guaranty to be executed as of the date first above written.
Guarantor:
SGI HOLDING CORPORATION LIMITED
By:/s/ Xxxxxxx X. Xxxxx
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Its:President
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