EXHIBIT 10.27
GUARANTY AGREEMENT
------------------
1. Identification.
---------------
This Guaranty Agreement (the "Guaranty"), dated as of August 5, 2005, is
entered into by and between Helongjiang Savoy Minerals Co., Ltd., formed under
the Sino-Foreign Contractual Joint Ventures Law of the People's Republic of
China, "Guarantor" herein, and Xxxxxxx Xxxxxxx, as collateral agent acting in
the manner and to the extent described in the Collateral Agent Agreement defined
below (the "Collateral Agent"), for the benefit of the parties identified on
Schedule A hereto (each a "Lender" and, collectively, the "Lenders").
2. Recitals.
--------
2.1 Guarantor is a direct or indirect subsidiary of Savoy Resources Corp.,
a Colorado corporation ("Savoy Resources"). The Lenders have made loans to Savoy
Resources (the "Loans"). Guarantor will obtain substantial benefit from the
proceeds of the Loans.
2.2 The Loans are evidenced by certain convertible promissory notes (each a
"Convertible Note" and, collectively, the "Convertible Notes") issued by Savoy
Resources on the date of this Agreement pursuant to a subscription agreement
dated at the date hereof ("Subscription Agreements"). The Convertible Notes are
further identified on Schedule A hereto and were executed by Savoy Resources as
"Borrower" or "Debtor" for the benefit of each Lender as the "Holder" or
"Lender" thereof.
2.3 In consideration of the Loans made by Lenders to Savoy Resources and
for other good and valuable consideration, and as security for the performance
by Savoy Resources of its obligations under the Convertible Notes and as
security for the repayment of the Loans and all other sums due from Debtor to
Lenders arising under the Convertible Notes, Subscription Agreement, Collateral
Agent Agreement and any other agreement between or among them relating to the
foregoing (collectively, the "Obligations"), Guarantor, for good and valuable
consideration, receipt of which is acknowledged, has agreed to enter into this
Agreement with the Collateral Agent, for the benefit of the Lenders. Obligations
include all future advances by Lenders to Savoy Resources made by Lenders
pursuant to the Subscription Agreement.
2.4 The Lenders have appointed Xxxxxxx Xxxxxxx as Collateral Agent pursuant
to that certain Collateral Agent Agreement dated at or about August ___, 2005
("Collateral Agent Agreement"), among the Lenders and Collateral Agent.
3. Guaranty.
---------
3.1 Guaranty. Guarantor hereby unconditionally and irrevocably
guarantees the punctual payment, performance and observance when due, whether at
stated maturity, by acceleration or otherwise, of all of the Obligations now or
hereafter existing, whether for principal, interest (including, without
limitation, all interest that accrues after the commencement of any insolvency,
bankruptcy or reorganization of Savoy Resources, whether or not constituting an
allowed claim in such proceeding), fees, commissions, expense reimbursements,
liquidated damages, Liquidated Damages, indemnifications or otherwise (such
obligations, to the extent not paid by Savoy Resources being the "Guaranteed
Obligations"), and agrees to pay any and all costs, fees and expenses (including
reasonable counsel fees and expenses) incurred by Collateral Agent and the
Lenders in enforcing any rights under the guaranty set forth herein. Without
limiting the generality of the foregoing, Guarantor's liability shall extend to
all amounts that constitute part of the Guaranteed Obligations and would be owed
by Savoy Resources to Collateral Agent and the Lenders, but for the fact that
they are unenforceable or not allowable due to the existence of an insolvency,
bankruptcy or reorganization involving Savoy Resources.
3.2 Guaranty Absolute. Guarantor guarantees that the Guaranteed Obligations
will be paid strictly in accordance with the terms of the Convertible Notes,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of Collateral Agent or
the Lenders with respect thereto. The obligations of Guarantor under this
Agreement are independent of the Guaranteed Obligations, and a separate action
or actions may be brought and prosecuted against Guarantor to enforce such
obligations, irrespective of whether any action is brought against Savoy
Resources or whether Savoy Resources is joined in any such action or actions.
The liability of Guarantor under this Agreement constitutes a primary
obligation, and not a contract of surety, and shall be irrevocable, absolute and
unconditional irrespective of, and Guarantor hereby irrevocably waives any
defenses it may now or hereafter have in any way relating to, any or all of the
following:
(a) any lack of validity or enforceability of the Convertible Notes or any
agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other
term of, all or any of the Guaranteed Obligations, or any other amendment or
waiver of or any consent to departure from the Convertible Notes, including,
without limitation, any increase in the Guaranteed Obligations resulting from
the extension of additional credit to Savoy Resources or otherwise;
(c) any taking, exchange, release, subordination or non-perfection of any
Collateral, or any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed Obligations;
(d) any change, restructuring or termination of the corporate, limited
liability company or partnership structure or existence of Savoy Resources; or
(e) any other circumstance (including, without limitation, any statute of
limitations) or any existence of or reliance on any representation by Collateral
Agent or the Lenders that might otherwise constitute a defense available to, or
a discharge of, Savoy Resources or any other guarantor or surety.
2
This Agreement shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by Collateral Agent, the Lenders or any other
entity upon the insolvency, bankruptcy or reorganization of Savoy Resources or
otherwise (and whether as a result of any demand, settlement, litigation or
otherwise), all as though such payment had not been made.
3.3 Waiver. Guarantor hereby waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Guaranteed
Obligations and this Agreement and any requirement that Collateral Agent or the
Lenders exhaust any right or take any action against Savoy Resources or any
other person or entity or any Collateral. Guarantor acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated herein and that the waiver set forth in this Section 3.3 is
knowingly made in contemplation of such benefits. Guarantor hereby waives any
right to revoke this Agreement, and acknowledges that this Agreement is
continuing in nature and applies to all Guaranteed Obligations, whether existing
now or in the future.
3.4 Continuing Guaranty; Assignments. This Agreement is a continuing
guaranty and shall (a) remain in full force and effect until the earlier of the
indefeasible cash payment in full of the Guaranteed Obligations and all other
amounts payable under this Agreement, the Subscription Agreement and Convertible
Notes or the conversion of the Guaranteed Obligations and all other amounts
payable under this Agreement, the Subscription Agreement and Convertible Notes
into shares of common stock, $.001 par value per share (the "Common Stock"), of
Savoy Resources, (b) be binding upon Guarantor, its successors and assigns, and
(c) inure to the benefit of and be enforceable by Collateral Agent and the
Lenders and their successors, pledgees, transferees and assigns. Without
limiting the generality of the foregoing clause (c), the Collateral Agent and
any Lender may pledge, assign or otherwise transfer all or any portion of its
rights and obligations under this Agreement (including, without limitation, all
or any portion of its Convertible Notes owing to it) to any other person, and
such other person shall thereupon become vested with all the benefits in respect
thereof granted such Collateral Agent or Lender herein or otherwise.
3.5 Subrogation. Guarantor will not exercise any rights that it may now or
hereafter acquire against the Collateral Agent or any Lender that arise from the
existence, payment, performance or enforcement of such Guarantor's obligations
under this Agreement, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification, 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
Collateral Agent or any Lender, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security solely on
account of such claim, remedy or right, unless and until all of the Guaranteed
Obligations and all other amounts payable under this Agreement shall have been
indefeasibly paid in full in cash or converted to Common Stock of Savoy
Resources. If Guarantor shall make payment to Collateral Agent or the Lenders of
all or any part of the Guaranteed Obligations or other amounts payable under
this Agreement, such payment(s) shall be paid in full in cash.
3
3.6 Maximum Obligations. Notwithstanding any provision herein contained to
the contrary, Guarantor's liability with respect to the Obligations shall be
limited to an amount not to exceed, as of any date of determination, the amount
that could be claimed by Lenders from Guarantor without rendering such claim
voidable or avoidable under Section 548 of the Bankruptcy Code or under any
applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance
Act or similar statute or common law.
4. Miscellaneous.
--------------
4.1 Expenses. Guarantor shall pay to the Collateral Agent, on demand, the
amount of any and all reasonable expenses, including, without limitation,
attorneys"- fees, legal expenses and broker's fees, which the Collateral Agent
may incur in connection with (a) exercise or enforcement of any the rights,
remedies or powers of the Collateral Agent hereunder or with respect to any or
all of the Obligations; or (b) failure by Guarantor to perform and observe any
agreements of Guarantor contained herein that are performed by the Collateral
Agent.
4.2 Waivers, Amendment and Remedies. No course of dealing by the Collateral
Agent and no failure by the Collateral Agent to exercise, or delay by the
Collateral Agent in exercising, any right, remedy or power hereunder shall
operate as a waiver thereof, and no single or partial exercise thereof shall
preclude any other or further exercise thereof or the exercise of any other
right, remedy or power of the Collateral Agent. No amendment, modification or
waiver of any provision of this Agreement and no consent to any departure by
Guarantor therefrom, shall, in any event, be effective unless contained in a
writing signed by the Collateral Agent, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. The rights, remedies and powers of the Collateral Agent, not only
hereunder, but also under any instruments and agreements evidencing or securing
the Obligations and under applicable law are cumulative, and may be exercised by
the Collateral Agent from time to time in such order as the Collateral Agent may
elect.
4.3 Notices. All notices or other communications given or made hereunder
shall be in writing and shall be personally delivered or deemed delivered the
first business day after being faxed (provided that a copy is delivered by first
class mail) to the party to receive the same at its address set forth below or
to such other address as either party shall hereafter give to the other by
notice duly made under this Section:
To Savoy Resources and
Guarantor, to: Savoy Resources Corp.
00000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 000000
Attn: Xxxxxx Xxxxxxx, President and CEO
Fax: (000) 000-0000
4
With an additional copy by
telecopier only to: Xxxxxxxx Xxxx, Esq.
Xxxx & Associates
00000 Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
To Lenders: To the addresses and telecopier
numbers set forth on Schedule A
To the Collateral Agent: Xxxxxxx X. Xxxxxxx
Grushko & Xxxxxxx, P.C.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Fax: (000) 000-0000
Any party may change its address by written notice in accordance with this
paragraph.
4.4 Term; Binding Effect. This Agreement shall (a) remain in full force and
effect until payment and satisfaction in full of all of the Obligations or
conversion of all of the Obligations into Common Stock of Savoy Resources; (b)
be binding upon Guarantor and its successors and permitted assigns; and (c)
inure to the benefit of the Collateral Agent, for the benefit of the Lenders and
their respective successors and assigns. All the rights and benefits granted by
Guarantor to the Collateral Agent and Lenders hereunder and other agreements and
documents delivered in connection therewith are deemed granted to both the
Collateral Agent and Lenders. Upon the payment in full of the Obligations or
conversion of the Obligations into Common Stock of Savoy Resources, (i) this
Agreement shall terminate and (ii) Collateral Agent will, upon Guarantor's
request and at Guarantor's expense, execute and deliver to Guarantor such
documents as Guarantor shall reasonably request to evidence such termination,
all without any representation, warranty or recourse whatsoever.
4.5 Captions. The captions of Paragraphs, Articles and Sections in this
Agreement have been included for convenience of reference only, and shall not
define or limit the provisions hereof and have no legal or other significance
whatsoever.
4.6 Governing Law; Venue; Severability. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York without
regard to principles of conflicts or choice of law, except to the extent that
the perfection of the security interest granted hereby in respect of any item of
Collateral may be governed by the law of another jurisdiction. Any legal action
or proceeding against Guarantor with respect to this Agreement may be brought in
the courts of the State of New York or of the United States for the Southern
District of New York, and, by execution and delivery of this Agreement,
Guarantor hereby irrevocably accepts for itself and in respect of its property,
generally and unconditionally, the jurisdiction of the aforesaid courts.
Guarantor hereby irrevocably waives any objection that they may now or hereafter
have to the laying of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Agreement brought in the aforesaid
courts and hereby further irrevocably waives and agrees not to plead or claim in
any such court that any such action or proceeding brought in any such court has
been brought in an inconvenient forum. If any provision of this Agreement, or
the application thereof to any person or circumstance, is held invalid, such
invalidity shall not affect any other provisions that can be given effect
without the invalid provision or application, and to this end the provisions
hereof shall be severable and the remaining, valid provisions shall remain of
full force and effect.
5
4.7 Satisfaction of Obligations. For all purposes of this Agreement, the
payment in full of the Obligations shall be conclusively deemed to have occurred
when either the Obligations have been indefeasibly paid in cash or all
outstanding Convertible Notes have been converted to Common Stock pursuant to
the terms of the Convertible Notes and the Subscription Agreement.
4.8 Counterparts/Execution. This Agreement may be executed in any number of
counterparts and by the different signatories hereto on separate counterparts,
each of which, when so executed, shall be deemed an original, but all such
counterparts shall constitute but one and the same instrument. This Agreement
may be executed by facsimile signature and delivered by facsimile transmission.
6
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Guaranty Agreement, as of the date first written above.
"GUARANTOR"
Helongjiang Savoy Minerals Co., Ltd
By: /s/ Xxxxxx Xxxxxxx
-----------------------
Its: Director
"THE COLLATERAL AGENT"
XXXXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
----------------------
APPROVED BY "LENDERS":
/s/ Xxxxxx Xxxxxxxx /s/ Xxxx Xxxxxxxxxxx
------------------- --------------------
ALPHA CAPITAL AKTIENGESELLSCHAFT WHALEHAVEN CAPITAL FUND LIMITED
/s/ Xxxxxxxx Lijahm /s/ X. Xxxxxx
------------------- --------------
CMS CAPITAL OSHER CAPITAL INC.
This Guaranty Agreement may be signed by facsimile signature and
delivered by confirmed facsimile transmission.
7
SCHEDULE A TO GUARANTY
------------------------------------------- ---------------
LENDER NOTE PRINCIPAL
------------------------------------------- ---------------
ALPHA CAPITAL AKTIENGESELLSCHAFT $425,000.00
Xxxxxxxxx 0
0000 Xxxxxxxxxxx
Xxxxx, Xxxxxxxxxxxx
Fax: 000-00-00000000
------------------------------------------- ---------------
WHALEHAVEN CAPITAL FUND LIMITED $200,000.00
0xx Xxxxx, 00 Xxx-Xxxxxxx Xxxx
Xxxxxxxx, Xxxxxxx XX00
Fax: (000) 000-0000
------------------------------------------- ---------------
CMS CAPITAL $100,000.00
0000 Xxxxxxx Xxxx., Xxxxx 000
Xxxxxxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxx
Fax: (000) 000-0000
------------------------------------------- ---------------
OSHER CAPITAL INC. $50,000.00
0 Xxxxxxxxx Xxxx
Xxxxxx Xxxxxx, XX 00000
Fax:
------------------------------------------- ---------------
TOTAL $775,000.00
------------------------------------------- ---------------
8
