Exhibit 10.5
GUARANTY
This Guaranty ("Guaranty") dated as of April 13, 2007, is made by
XXXXXXX XXXXXXXXX (the "Guarantor") in favor of CALIBRE ENERGY, INC., a Nevada
corporation, and its successors and assigns (the "Beneficiary").
RECITALS
A. Pursuant to an Investment Agreement dated as of the date hereof (the
"Investment Agreement"), between BlueWater Capital Group, LLC (the "Borrower"),
the Guarantor, and the Beneficiary, the Beneficiary has issued shares of its
Series A Convertible Preferred Stock to Borrower in exchange for a cash payment
and the delivery by Borrower of a promissory note in the original principal
amount of $4,000,000 (the "Note").
B. As a condition precedent to the effectiveness of the issuance of
stock by Beneficiary pursuant to the Investment Agreement, Guarantor is required
to guarantee, among other things, the payment of the Note.
C. Guarantor may reasonably be expected to benefit, directly or
indirectly, from the transactions contemplated in the Investment Agreement.
NOW, THEREFORE, in consideration of the premises and as a material
inducement to the Beneficiary to enter into the Investment Agreement, Guarantor
hereby agrees as follows:
ARTICLE I
GUARANTY
1.1 Guaranty. Guarantor hereby guarantees the punctual payment (whether
at stated maturity, upon acceleration or otherwise) of all obligations and
indebtedness of Borrower evidenced or provided for in the Note or otherwise
provided for in the Investment Agreement (the "Obligations") (including any
interest fees, and other amounts that would accrue but for the filing of a
petition under Title 11 of the United States Code). Upon failure by the Borrower
to pay punctually any such amount, Guarantor shall forthwith on demand pay the
amount not so paid at the place and in the manner specified in this Guaranty.
Guarantor agrees that, as between the Guarantor and the Beneficiary, the
Obligations may be declared to be due and payable for the purposes of this
Guaranty notwithstanding any stay, injunction or other prohibition that may
prevent, delay or vitiate any declaration as regards the Borrower and that in
the event of a declaration or attempted declaration, the Obligations shall
immediately become due and payable by Guarantor for the purposes of this
Guaranty.
1.2 Guaranty Unconditional. This Guaranty is a guaranty of payment and
not of collection, and the Beneficiary shall not be required to exhaust any
right or remedy or take any action against the Borrower or any other person or
any collateral. The obligations of Guarantor hereunder shall be continuing,
absolute and unconditional and, without limiting the generality of the
foregoing, shall not be released, discharged or otherwise affected by:
(a) any release, impairment, non-perfection or invalidity of
any direct or indirect security for any Obligation;
(b) any change in the corporate existence, structure or
ownership of the Borrower, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the Borrower, or
its assets or any resulting release or discharge of any Obligation; or
(c) the existence of any defense, set-off or other rights
(other than a defense of payment) that Guarantor may have at any time
against the Borrower, whether in connection herewith or any unrelated
transactions, provided that nothing herein shall prevent the assertion
of any such claim by separate suit or compulsory counterclaim;
1.3 Termination and Reinstatement. Guarantor's obligations hereunder
shall remain in full force and effect until the Obligations are paid in full. If
at any time any payment with respect to the Obligations is rescinded or must be
otherwise restored or returned as a result of any fraudulent conveyance or the
insolvency, bankruptcy or reorganization of any party or otherwise, Guarantor's
obligations hereunder with respect to such payment shall be reinstated at such
time as though such payment had been due but not made at such time.
1.4 Waivers. Guarantor irrevocably waives notice of acceptance hereof,
diligence, promptness, presentment, demand, protest, demand for payment, notice
of default, notice of intent to accelerate, notice of acceleration and any other
notice not provided for in this Article, as well as any requirement that at any
time any action be taken by any person against the Borrower or any other person.
1.5 Subrogation. Guarantor shall be subrogated to all rights of the
Beneficiary against the Borrower in respect of any amounts paid by Guarantor
pursuant to the provisions of this Guaranty; provided, however, that Guarantor
shall not be entitled to enforce or to receive any payments arising out of or
based upon such right of subrogation until the Obligations are paid in full. If
any amount is paid to a Guarantor on account of subrogation rights under this
Guaranty prior to the payment of the Obligations in full, such amount shall be
held in trust for the benefit of the Beneficiary and shall be promptly paid to
the Beneficiary to be credited and applied to the Obligations, whether matured
or unmatured or absolute or contingent, in accordance with the terms of the Loan
Documents.
1.6 Stay of Acceleration. If acceleration of the time for payment of
any amount payable by any Obligation is stayed upon insolvency, bankruptcy or
reorganization of the Borrower, all such amounts otherwise subject to
acceleration under the terms of this Guaranty shall nonetheless be payable by
Guarantor hereunder forthwith on demand by the Beneficiary.
1.7 Limit of Liability. The obligations of Guarantor hereunder shall be
limited to an aggregate amount equal to the largest amount that would not render
its obligations hereunder subject to avoidance under Section 548 of the United
States Bankruptcy Code or any other applicable federal or state law relating to
the insolvency of debtors.
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ARTICLE II
OTHER PROVISIONS
2.1 Notices. All notices, consents, demands or other communications
required or permitted to be given pursuant to this Agreement shall be deemed
sufficiently given when delivered personally during business days to the
appropriate location described below or three (3) business days after the
posting thereof by United States first class, registered or certified mail,
return receipt requested, with postage fee prepaid and addressed:
If to Guarantor: X.X. Xxx 00000
Xxxxxxx, XX 00000-0000
If to Beneficiary: 0000 X Xxxxxx, XX, Xxxxx 0000
Xxxxxxxxxx, XX 00000
2.2 Assignment. Guarantor may not assign any of its rights or delegate
any performance under this Guaranty (whether voluntarily or involuntarily, by
merger, consolidation, dissolution, operation of law or any other manner) except
with the prior written consent of the Beneficiary, which consent may be withheld
in the Beneficiary's sole discretion. Any purported assignment without such
consent is void.
2.3 Successors and Assigns. This Agreement binds the Guarantor and his
respective successors and assigns and inures to the benefit of the Beneficiary
and its successors and assigns.
2.4 Amendment and Waiver. No amendment or waiver of any provision of
this Guaranty, nor consent to any departure by Guarantor therefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Borrower, the Guarantor and the Beneficiary. Any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given.
2.5 No Implied Waiver. No failure or delay in exercising any right,
power or privilege or requiring the satisfaction of any condition hereunder, and
no course of dealing between the Guarantor and the Beneficiary operates as a
waiver or estoppel of any right, remedy or condition. No single or partial
exercise of any right or remedy under this Guaranty precludes any simultaneous
or subsequent exercise of any other right, power or privilege. The rights and
remedies set forth in this Guaranty are not exclusive of, but are cumulative to,
any rights or remedies now or subsequently existing at law, in equity or by
statute.
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2.6 Severability. In case one or more provisions of this Guaranty shall
be invalid, illegal or unenforceable in any respect under any applicable law,
the validity, legality, and enforceability of the remaining provisions contained
herein or therein shall not be affected or impaired thereby.
2.7 Entire Agreement. This Agreement, the Investment Agreement, the
Note and the related documents contain the entire agreement between the parties
relating to the subject matter hereof and supersede all prior or contemporaneous
oral or written negotiations and agreements relating to the subject matter
hereof. The provisions of this Guaranty may not be explained, supplemented or
qualified through evidence of trade usage or a prior course of dealing. In
entering into this Guaranty, the Guarantor has not relied upon any statement,
representation, warranty or agreement of the Beneficiary except as set forth in
the Investment Agreement. There are no conditions precedent to the effectiveness
of this Guaranty. In the event of any conflict between the terms of this
Guaranty and the terms of any other loan document, the terms of the Investment
Agreement shall control.
2.8 Execution in Counterparts. This Guaranty may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
2.9 Governing Law. The laws of the State of Nevada (without giving
effect to its conflicts of law principles) govern all matters arising out of or
relating to this Guaranty and all of the transactions it contemplates, including
without limitation its validity, interpretation, construction, performance
(including the details of performance) and enforcement.
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be duly
executed and delivered as of the date first above written.
/s/ Xxxxxxx X. Xxxxxxxxx, Xx.
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Xxxxxxx X. Xxxxxxxxx, Xx.
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