GUARANTY AGREEMENT
BORROWER: LENDER:
Casino Resource Corporation of Tunisia, S.A. SeaMar Ventures, L.L.C.
x/x Xxxxxx Xxxxxxxxx Xxxxxxxxxxx 000 Xxxxxxx Xxxxx
000 Xxxxxxxxx Xxxxxxxxx Xxxxxx, Xxxxxxx 00000
Xxxxx Xxxxxxx, Xxxxxxxxxxx 00000
GUARANTOR:
Casino Resource Corporation
000 Xxxxxxxxx Xxxxxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxxx 00000
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THIS GUARANTY AGREEMENT (this "Agreement"), dated as of August 29, 1997,
is made by CASINO RESOURCE CORPORATION (the "Guarantor"), in favor of SEAMAR
VENTURES, L.L.C. (the "Lender"), guaranteeing the Indebtedness (as
hereinafter defined) of Casino Resource Corporation of Tunisia, S.A. (the
"Borrower") pursuant to that certain Loan Agreement dated August 29, 1997
among the Guarantor, the Lender and the Borrower (as amended, supplemented or
restated from time to time, the "Loan Agreement").
Section 1. GUARANTY OF THE BORROWER'S INDEBTEDNESS. The Guarantor
absolutely and unconditionally does hereby guarantee the prompt and punctual
payment of all present and future indebtedness, amounts and liabilities of
the Borrower to the Lender incurred pursuant to the Loan Agreement,
liquidated or unliquidated, now existing or hereafter arising, in principal,
interest, deferral and delinquency charges, costs and attorney's fees
(collectively, the "Indebtedness"). The maximum amount of Indebtedness
guaranteed hereby is three million dollars (the `9Amount Guaranteed"). It is
acknowledged by the undersigned that the undersigned will benefit from the
Loan to the Borrower, and in order to induce the Lender to make the Loan to
the Borrower, has agreed to execute and deliver this guaranty with the
understanding that doing so is a condition precedent to the Lender making the
Loan to the Borrower.
Section 2. JOINT AND SEVERAL LIABILITY. The Guarantor further agrees
that its obligations and liabilities for the prompt and punctual payment,
performance and satisfaction or purchase of all of the Borrower's
Indebtedness shall be on a "joint and several" basis with the Borrower to the
same degree and extent as if the Guarantor had been and/or will be a
co-borrower, co-principal obligor and/or co-maker of all of the Borrower 5
Indebtedness, but limited to the amount of the Borrower's Indebtedness
guaranteed hereunder.
Section 3. DURATION. This Agreement and the Guarantor's obligations
and liabilities hereunder shall remain in full force and effect until such
time as all of the Borrower's Indebtedness shall be paid, performed and/or
satisfied in toll, in principal, interest, costs and attorney's fees, or the
Guarantor has paid the Amount Guaranteed, whichever event occurs first.
Section 4. DEFAULT BY THE BORROWER. Should an Event of Default (as
defined in the Loan Agreement) occur, the Guarantor unconditionally and
absolutely agrees to pay the unpaid amount of the Borrower's Indebtedness
guaranteed hereunder. Such payment or payments shall be made immediately
following written demand by the Lender at the Lender's address stated above.
The Guarantor hereby waives notice of acceptance of this Agreement and of any
Indebtedness to which it applies or may apply.
The Guarantor further waives presentment and demand for payment of Borrower's
Indebtedness, notice of dishonor and of nonpayment, notice of intention to
accelerate, notice of acceleration, protest and notice of protest, collection
or institution of any suit or other action by the Lender in collection
thereof, including any notice of default in payment thereof or other notice
to or demand for payment thereof on any party.
Section 5. THE GUARANTOR'S SUBORDINATION OF RIGHTS. If the Guarantor
should for any reason advance or lend monies to the Borrower (whether or not
such funds are used by the Borrower to make payment(s) under the Borrower's
Indebtedness), make any payment(s) to the Lender or others for and on behalf of
the Borrower under the Borrower's Indebtedness, and/or make any payment to the
Lender in total or partial satisfaction of the Guarantor's obligations and
liabilities under this. Agreement, the Guarantor hereby agrees that any and all
rights that the Guarantor may have or acquire to collect from or to be
reimbursed by the Borrower, whether the Guarantor's rights of collection or
reimbursement arise by way of subrogation to the rights of the Lender or
otherwise, shall in all respects, whether or not the Borrower is presently or
subsequently becomes insolvent, be subordinate, inferior and junior to the
rights of the Lender to collect and enforce payment, performance and
satisfaction of the Borrower's then remaining indebtedness until such time as
the Borrower's Indebtedness is fully paid and satisfied. In the event of the
Borrower's insolvency or consequent liquidation of the Borrower's assets,
through bankruptcy, by an assignment for the benefit of creditors, by voluntary
liquidation or otherwise, the assets of the Borrower applicable to the payment
of claims of both the Lender and the Guarantor shall be paid to the Lender and
shall be first applied by the Lender to the Borrower's then remaining
indebtedness. The Guarantor hereby assigns to the Lender all claims, which it
may have or acquire against the Lender for full payment of the Borrower's
Indebtedness guaranteed under this Agreement.
Section 6. COVENANTS RELATING TO THE INDEBTEDNESS. The Guarantor
farther agrees that the Lender may, at its sole option, at any time, and from
time to time, without the consent of or notice to the Guarantor, or to any
other party, and without incurring any responsibility to the Guarantor or to
any other party, and without impairing or releasing the obligations of the
Guarantor under this Agreement:
A. Discharge or release any party (including, but not limited to, the
Borrower) who is or may be liable to the Lender for any of the
Borrower's Indebtedness;
B. Change the manner, place or terms of payment, or change or extend the
time of payment of or renew, as often and for such periods as the
Lender may determine, or alter, any of the Borrower's Indebtedness;
X. Xxxxxx or compromise any of the Borrower's Indebtedness;
D. Apply any sums paid to any of the Borrower's Indebtedness, with such
payments being applied in such priority or with such preferences as
the Lender may determine in its sole discretion, regardless of what
Indebtedness of the Borrower remain unpaid; provided that the Lender
shall apply sums paid by the Guarantor under this Guaranty to the
Amount Guaranteed;
E. Take or accept any other security or guaranty for any or all of the
Borrower's Indebtedness; and/or
F. Enter into, deliver, modify, amend or waive compliance with, any
instrument or arrangement evidencing, securing or otherwise affecting,
all or any part of the Borrower's Indebtedness.
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In addition, no course of dealing between the Lender and the Borrower, nor
any failure or delay on the part of the Lender to exercise any of the lender's
rights and remedies, or any other agreement or agreements by and between the
Lender and the Borrower shall have the affect of impairing or releasing the
Guarantor's obligations and liabilities to the Lender or of waiving any of the
Lender's rights and remedies. Any partial exercise of any rights and remedies
granted to the Lender shall furthermore not constitute a waiver of any of the
Lender's other rights and remedies, it being the Guarantor's intent and
agreement that the Lender's rights and remedies shall be cumulative in nature.
The Guarantor further agrees that, should the Borrower default under any of the
Borrower's Indebtedness, any waiver or forbearance on the part of the Lender to
pursue the rights and remedies available to the Lender shall be binding upon
the Lender only to the extent that the Lender specifically agrees to such
waiver or forbearance in writing. A waiver or forbearance on the part of the
Lender as to one default shall not constitute a waiver or forbearance as to any
other default.
Section 7. NO RELEASE OF THE GUARANTOR. The Guarantor's obligations
and liabilities under this Agreement shall not be released, impaired, reduced
(except to the extent that the Borrower's indebtedness is reduced or the Amount
Guaranteed hereby is reduced) or otherwise affected by, and shall continue in
full force and effect, notwithstanding the occurrence of any event, including,
without limitation, any one or more of the following events:
A. Insolvency, bankruptcy, arrangement, adjustment, composition,
liquidation, dissolution or lack of authority (whether corporate,
partnership or trust) of the Borrower (or any person acting on the
Borrower's behalf);
B. Partial payment or payments of any amount due and/or outstanding
under any of the Borrower's Indebtedness other than payments by the
Guarantor to the Lender of the Amount Guaranteed hereunder;
C. Any payment by the Borrower or any other party to the Lender is held
to constitute a preferential transfer or a fraudulent conveyance under
any applicable law, or for any reason the Lender is required to refund
such payment or pay such amount to the Borrower or to any other
person; or
D. Any dissolution of the Borrower or any sale, lease or transfer of all
or any part of the Borrower's assets.
This Agreement and the Guarantor's obligations and liabilities hereunder
shall continue to be effective, and/or shall automatically and retroactively
be reinstated if a release or discharge has occurred, as the case may be, if
at any time any payment or part thereof to the Lender with respect to any of
the Borrower's Indebtedness is rescinded or must otherwise be restored by the
Lender pursuant to any insolvency, bankruptcy, reorganization, receivership
or any other debt relief granted to the Borrower or to any other party. If
the Lender must rescind or restore any payment received by the Lender in
satisfaction of the Borrower's Indebtedness, any prior release or discharge
from the terms of this Agreement given to the Guarantor shall be without
effect, and this Agreement and the Guarantor's obligations and liabilities
hereunder shall automatically be renewed or reinstated and shall remain in
full force and effect to the same degree and extent as if such a release or
discharge was never granted. It is the intention of the Lender and the
Guarantor that the Guarantor's obligations and liabilities hereunder shall
not be discharged except by the Borrower's and the Guarantor's full and
complete performance of such obligations and liabilities and then only to the
extent of such performance.
Section 8. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby
represents and warrants that the representations and warranties made by the
Borrower and the Guarantor in the Loan Agreement are true and correct.
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Section 9. COVENANTS CONTAINED IN LOAN AGREEMENT. The Guarantor will
cause the Borrower at all times to comply with the affirmative and negative
covenants imposed on the Borrower pursuant to the Loan Agreement.
Section 10. ENFORCEMENT OF THE GUARANTOR'S INDEBTEDNESS AND
LIABILITIES. The Guarantor agrees that following the occurrence of an Event
of Default, should the Lender deem it necessary to file an appropriate
collection action to enforce the Guarantor's obligations and liabilities
under this Agreement, the Lender may commence such a civil action against the
Guarantor without the necessity of first (i) attempting to collect the
Borrower's Indebtedness from the Borrower or from any other guarantor, surety
or endorser, whether through filing of suit or otherwise, or (ii) including
the Borrower as an additional party defendant in such a collection action
against the Guarantor. If the Lender should ever deem it necessary to refer
this Agreement to an attorney-at-law for the purpose of enforcing the
Guarantor's obligations and liabilities hereunder, or of protecting or
preserving the Lender's rights hereunder, the Guarantor agrees to reimburse
the Lender for the reasonable fees of such an attorney. The Guarantor
additionally agrees that the Lender shall not be liable for failure to use
diligence in the collection of any of the Borrower's Indebtedness or in
creating, perfecting or preserving any security for any such Indebtedness.
Section 11. ADDITIONAL DOCUMENTS. Upon the reasonable request of the
Lender, the Guarantor will, at any time and from time to time, duly execute and
deliver to the Lender any and all such further instruments and documents and
supply such additional information as may be necessary or advisable in the
opinion of the Lender to further evidence or perfect this Agreement.
Section 12. CONSTRUCTION. The provisions of this Agreement shall be in
addition to and cumulative of, and not in substitution, novation or discharge
of any and all prior or contemporaneous guaranty or other agreements by the
Guarantor in favor of the Lender or assigned to the Lender by others, all of
which shall be construed as complementing each other. Nothing herein shall
constitute a waiver of any notice requirement in the Borrower's favor, or any
curative right provided in the Loan Agreement.
Section 13. AMENDMENT. No amendment, modification, consent or waiver of
any provision of this Agreement, and no consent to any departure by the
Guarantor therefrom, shall be effective unless the same shall be in writing
signed by a duly authorized officer of the Lender, and then shall be effective
only to the specific instance and for the specific purpose for which given.
Section 14. SUCCESSORS AND ASSIGNS BOUND. The Guarantor's obligations
and liabilities under this Agreement shall be binding upon the Guarantor's
successors and assigns. The rights and remedies granted to the Lender under
this Agreement shall also inure to the benefit of the Lender's successors and
assigns, as well as to any and all subsequent holder or holders of any of the
Borrower's Indebtedness subject to this Agreement.
Section 15. CAPTION HEADINGS. Caption headings of the sections of this
Agreement are for convenience purposes only and are not to be used to interpret
or to define their provisions. In this Agreement, whenever the context so
requires, the singular includes the plural and the plural also includes the
singular.
Section 16. GOVERNING LAW. This Agreement shall be governed and
construed in accordance with the substantive laws of the State of Mississippi.
Section 17. SEVERABILITY. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under present or future laws effective
during the term hereof, such provision shall be fully severable, this Agreement
shall be construed and enforceable as if the illegal, invalid or unenforceable
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provision had never comprised a part of it, and the remaining provisions of
this Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance
herefrom.
Section 18. NOTICES. Any notice or demand which, by provision of this
Agreement, is required or permitted to be given or served by the Lender to or
on the Guarantor shall be deemed to have been sufficiently given and served for
all purposes (if mailed) three calendar days after being deposited, postage
prepaid, in the United States Mail, registered or certified mail, or (if
delivered by express courier) one business day after being delivered to such
courier, or (if delivered in person) the same day as delivery, in each case
addressed (until another address is given in writing by the Guarantor to the
Lender), at the address set forth above.
Any notice or demand which, by provision of this Agreement, is required or
permitted to be given or served by the Guarantor to or on the Lender shall be
deemed to have been sufficiently given and served for all purposes (if mailed)
three calendar days after being deposited, postage prepaid, in the United
States Mail, registered or certified mail, or (if delivered by express courier)
one business day after being delivered to such courier, or (if delivered in
person) the same day as delivery, in each case addressed (until another address
is given in writing by the Lender to the Guarantor) to the address set forth
above.
Section 19. WAIVER OF JURY TRIAL. THE GUARANTOR AND THE LENDER HEREBY
WAIVE THE RIGHTS TO ANY JURY TRIAL IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY EITHER AGAINST THE OTHER.
Section 20. ACCEPTANCE. No formal acceptance by the Lender is
necessary to make this Agreement effective.
IN WITNESS WHEREOF, the Guarantor has executed this Agreement in favor of
the Lender on the day, month and year first written above.
GUARANTOR: CASINO RESOURCE CORPORATION
By: /s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
President
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