Exhibit 10.37
GUARANTY
This Guaranty, dated as of May 7, 1997, is made by SOUTHHAMPTON ENTERPRISES
CORP., a British Columbia, Canada corporation (the "Guarantor"), in favor of the
Cruttenden Xxxx Bridge Fund, LLC, a California limited liability company (the
"Purchaser").
R E C I T A L S :
A. The Guarantor, Southhampton Enterprises, Inc., a Texas Corporation
("SEI"), The Antigua Group, Inc., a Nevada corporation (the "Borrower"), and the
Purchaser are parties to a Securities Purchase Agreement, dated as of the date
hereof (the "Purchase Agreement"), pursuant to which the Purchaser has agreed,
among other things, to purchase from the Borrower a 13.00% Senior Secured Note
due May 7, 1998 in the principal amount of $1,020,000 (the "Note"), upon the
terms and conditions set forth therein.
B. Guarantor will derive substantial direct and indirect economic benefit
from the Purchaser's making the loan and accepting the Note, and Purchaser is
willing to make such investment, but only upon the condition, among others, that
Guarantor shall have executed and delivered this Guaranty in favor of the
Purchaser.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the covenants
hereinafter contained and for other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, and to induce the Purchaser to
enter into the Purchase Agreement, it is agreed as follows:
1. Grant of Guaranty.
1.1 Guaranty. Guarantor hereby unconditionally and irrevocably
guarantees to the Purchaser and to its successors, endorsees and/or assigns, the
full and prompt payment by the Borrower, as and when due and payable, whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise, of
all (i) obligations set forth in the Note, the Purchase Agreement or any other
agreement or document now or hereafter securing the Note (collectively referred
to herein as the "Loan Documents"), and (ii) indebtedness, obligations and other
liabilities, direct or indirect, absolute or contingent, now existing or
hereafter arising of the Borrower to the Purchaser. Guarantor further agrees to
pay all costs and expenses, including without limitation, all court costs and
reasonable attorneys' fees paid or incurred by the Purchaser in endeavoring to
collect all or any part of the Borrower's obligations hereunder.
Guarantor accepts full responsibility or any obligation on the
part of Lenders to investigate and ascertain, and for keeping itself informed
of, the financial condition of Company.
1.2 No Release. Guarantor shall continue to be liable under this
Guaranty and the provisions hereof shall remain in full force and effect
notwithstanding (i) any modification, agreement or stipulation between the
Borrower and the Purchaser, or their respective successors and assigns, with
respect to the Loan Documents; (ii) Purchaser's waiver of or failure to enforce
any of the terms, covenants or conditions contained in the Loan Documents or any
modification thereof; or (iii) any release of any real or personal property or
other security then held by the Purchaser for the performance of the obligations
hereby guaranteed.
1.3 Guaranty of Payment. The liability of Guarantor upon this Guaranty
is a guaranty of payment and not of collectability, and is not conditional or
contingent upon the genuineness, validity, regularity or enforceability of the
Agreement or other instruments relating to the obligations hereby guaranteed or
the pursuit by the Purchaser of any remedies which it now has or may hereafter
have with respect thereto.
1.4 Waiver of Demand. Guarantor hereby waives: (i) diligence and
demand of payment; (ii) all notices to Guarantor, to Borrower or to any other
person, including, but not limited to, notices of the acceptance of this
Guaranty or the creation, renewal, extension, modification, or accrual of any
obligations contained in the Loan Documents, notice of nonpayment or default
under the Loan Documents or notice of any other matters relating thereto; (iii)
all demands whatsoever; (iv) any statute of limitations affecting its liability
hereunder or the enforcement thereof; and (v) all principles or provisions of
law, which conflict with the terms of this Guaranty. Moreover, Guarantor agrees
that its obligations shall not be affected by any circumstances which constitute
a legal or equitable discharge of a guarantor or surety.
1.5 No Prior Remedy Received. Guarantor agrees that the Purchaser or
its assigns or endorsees may enforce this Guaranty without the necessity of
resorting to or exhausting any security or collateral; and Guarantor hereby
waives the right to require the Purchaser or their assigns or endorsees to
proceed against Borrower, to foreclose any lien on any real or personal
property, to exercise any right or remedy under the Loan Documents, to pursue
any other remedy or to enforce any other right.
1.6 No Limitation of Rights. Guarantor further agrees that nothing
contained herein shall prevent the Purchaser from suing on the Note or from
exercising any rights available to it thereunder or under any of the Loan
Documents and that the exercise of any of the aforesaid rights shall not
constitute a legal or
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equitable discharge of Guarantor. Guarantor understands that the exercise by the
Purchaser of certain rights and remedies contained in the Loan Documents may
affect or eliminate Guarantor's right of subrogation against Borrower and that
Guarantor may therefore incur a partially or totally nonreimbursable liability
hereunder; nevertheless, Guarantor hereby authorizes and empowers the Purchaser
to exercise, in its sole discretion, any rights and remedies, or any combination
thereof, which may then be available, since it is the intent and purpose of
Guarantor that the obligations hereunder shall be absolute, independent and
unconditional under any and all circumstances as if the same were direct
obligations of the Guarantor. Without limiting the generality of the foregoing,
Guarantor hereby expressly waives any and all benefits under California Civil
Code Sections 2809, 2810, 2819, 2845, 2847, 2848, 2849 and 2850 and California
Code of Civil Procedure Sections 580a and 580d. Notwithstanding any foreclosure
of the lien of any deed of trust or security agreement with respect to any or
all of any real or personal property secured thereby, whether by the exercise of
the power of sale contained therein, by an action for judicial foreclosure or by
an acceptance of a deed in lieu of foreclosure, Guarantor shall remain bound
under this Guaranty.
2. Cumulation of Remedies. The remedies provided in this Guaranty in favor
of the Purchaser shall not be deemed exclusive but shall be cumulative and shall
be in addition to all of the remedies in favor of the Purchaser existing at law
or in equity. Nothing in this Guaranty shall require the Purchaser to pursue
their rights under Section 1 hereof before proceeding against Borrower or
executing against any other security or collateral securing performance of
Borrower's obligations to the Purchaser under the Loan Documents or Guarantor's
obligations to the Purchaser under this Guaranty.
3. Miscellaneous.
3.1 No Waiver. No delay on the part of the Purchaser in exercising any
of its powers or rights, or the partial or single exercise thereof, shall
constitute a waiver thereof.
3.2 Modifications. No provision of this Guaranty may be changed,
waived, modified or varied except by an instrument in writing signed by the
parties hereto.
3.3 Section Heading. The Section headings in this Guaranty are for
ease of reference only and shall not affect the meanings or construction of the
terms and provisions of this Guaranty.
3.4 Further Documents. Guarantor agrees to execute, acknowledge, and
deliver any documents or instruments which the
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Purchaser may request in order to better evidence or effectuate this Guaranty
and the transactions contemplated hereby.
3.5 Notices. Any and all notices or other communications required or
permitted by this Guaranty or by law to be given or delivered to any party
hereto by any other party to this Guaranty shall be in writing and may be
personally served or sent by United States registered or certified mail with
first-class postage prepaid, and properly addressed. Notice shall be deemed
given when delivered, if personally delivered, or if sent by mail, upon the
earlier of actual receipt or the third day after the date of mailing thereof.
For purposes hereof, mail will be deemed properly addressed if sent to the
addresses for the parties set forth in the Loan Documents. Any party may change
its address for this purpose by giving a written notice thereof as herein
provided.
3.6 Guaranty Agreement Binding Upon Successors, Etc. This Guaranty is
binding upon and shall inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, successors or assigns.
Notwithstanding the foregoing, Guarantor may not assign any of its rights or
delegate any of its duties hereunder without the prior written consent of the
Purchaser.
3.7 Costs of Enforcement. In the event a dispute or controversy arises
hereunder between the parties, or any action is brought by any party to enforce
its rights hereunder, the prevailing party in any such dispute, controversy or
action shall be entitled to recover its reasonable attorneys' fees, court costs
and other related expenses from the other party.
3.8 Gender and Number. As used in this Guaranty, the masculine,
feminine or neuter gender, and the singular or plural number, shall each be
deemed to include the others whenever the context so indicates.
3.9 Severability of Provisions. It is intended that each Section of
this Guaranty shall be viewed as separate and divisible, and in the event that
any Section, or any portion thereof, shall be held to be invalid, the remaining
Sections shall continue to be in full force and effect.
3.10 Applicable Law. This Guaranty has been executed in and shall be
construed and governed by the laws of the State of California. As part of the
consideration for the Purchaser's investment in the Note, Guarantor and the
Purchaser hereby agree that all actions or proceedings arising directly or
indirectly hereunder, whether instituted by the Purchaser or Guarantor, may, at
the option of the Purchaser, be litigated in courts having situs within the
State of California, County of Orange and Guarantor hereby expressly consents to
the jurisdiction of any local, state or federal court located within said state
and county, and consents
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that any service of process in such action or proceeding may be made by personal
service upon Guarantor wherever Guarantor may be located, or by certified or
registered mail directed to Guarantor at its last known address. Guarantor and
the Purchaser waive trial by jury, any objection based on forum non conveniens,
and any objection to venue of any action instituted hereunder.
IN WITNESS WHEREOF, the parties have executed and delivered this Guaranty
in ____________________, as of May 7, 1997.
GUARANTOR:
SOUTHHAMPTON ENTERPRISES, CORP.
By: /s/ Xxxxxx X. Xxxxxx, Xx.
Its: President
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