Exhibit 10-7
GUARANTY
THIS GUARANTY (the "Guaranty") is entered into on February 3, 2004 by
Wellspring Media, Inc. a Delaware corporation (hereinafter the "Guarantor"),
with offices at 000 Xxxx Xxx. Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 for the benefit of
Xx Xxxxxxxxxx, an individual residing at 00 Xxxxxx Xxxxxxx, Xxxxx Xxxxx, Xxx
Xxxx 00000, Xxx Xxxxxx, an individual residing at 000 Xxxxx Xxxx Xxxx,
Xxxxxxxxx, Xxxxxxxxxxx 00000, Xxxxx Xxxxxxx Xxxxxx, an individual residing at
000 Xxxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx 00000, Xxxx Xxxxxx Xxxxxxx, an
individual residing at 000 Xxxxxxxx Xxxxx, Xxxxxx Xxxxx, Xxx Xxxx 00000, and
Xxxxxxxxx & Company, Inc., a Delaware Corporation with offices at 000 Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (collectively the "Payees").
W I T N E S S E T H
WHEREAS, on the date hereof pursuant to the terms of a Stock Purchase
Agreement of even date herewith (the "Agreement") among American Vantage Media
Corporation ("American"), the Guarantor, and certain of the Payees, American has
purchased all of the shares of stock of the Guarantor (the "Shares") owned by
the certain of the Payees (the "Sale"); and
WHEREAS, pursuant to the terms and conditions of the Agreement and in
furtherance of such Sale on the date hereof, American has issued certain
promissory notes to the Payees (the "Notes"); and
WHEREAS, certain of the Payees have assigned $480,000 of the principal
amount of the Notes to Jefferies;
WHEREAS, in order to induce certain of the Payees to execute and
deliver the Agreement, the Guarantor has agreed to guarantee the obligations of
American pursuant to the Agreement, the Notes and the other documents executed
pursuant thereto and in conjunction with the Sale; and
WHEREAS, as a condition of the Sale, this Guaranty is secured by a
Security Agreement of even date herewith from the Guarantor to the Payees (the
"Security Agreement") and a pledge of the Shares pursuant to a Stock Pledge
Agreement of even date herewith from American to the Payees (the "Pledge
Agreement");.
NOW, THEREFORE, consideration of One ($1.00) Dollar and other valuable
consideration, the receipt and sufficiency of which hereby are acknowledged, the
parties hereto agree as follows:
1. Capitalized terms used but not defined herein shall have
the meanings set forth in the Agreement.
2. The Guarantor hereby unconditionally guarantees to the
Payees, their successors and assigns the prompt payment and performance of each
and every obligation and liability of American to the Payees according to the
terms of the Agreement, the Notes and the Pledge
Agreement (collectively the "Documents"). The Guarantor agrees that, with or
without notice or demand, the Guarantor will reimburse Payees for all costs and
expenses (including but not limited to reasonable counsel fees) incurred by
Payees in connection with the collection, compromise and/or enforcement of the
debts or obligations of American or Guarantor pursuant to the Documents.
3. The Guarantor represents and warrants that it has full
corporate power and authority to execute, deliver and perform this Guaranty.
4. This Guaranty is an absolute and unlimited guaranty of
payment, and not of collection, without regard to the regularity, validity or
enforceability of any liability or obligation of American; and the Payees may,
at their option, proceed directly and at once, without notice, against the
Guarantor to collect and recover the full amount of the liability hereunder or
any portion thereof, without proceeding against American or any other person, or
foreclosing upon, selling, or otherwise disposing of or collecting or applying
against any of the collateral under the Documents. The Guarantor hereby waives
presentment, demand, protest, and notice of any kind, including but not limited
to notice of acceptance, protest, non-payment, non-performance or
non-observance.
5. This Guaranty may not be changed or discharged orally, but
only by an agreement in writing signed by the party against whom enforcement of
any such change or discharge is sought.
6. In such manner, on such terms, and at such times as they
deem best, and with or without notice to the Guarantor, Payees may alter,
compromise, amend, or change the time or manner for the payment of any
indebtedness, increase or reduce the rate of interest thereon, release or add
any one or more guarantors or endorsers, accept additional or substituted
security, or release and subordinate any security. No exercise or non-exercise
by the Payees of any right hereby given it, no dealing by Payees with American
or any guarantor or endorser, no change, impairment, or suspension of any right
or remedy of Payees shall in any way affect any of the Guarantor's obligations
hereunder or give the Guarantor any recourse against the Payees.
7. Until all indebtedness hereby guaranteed has been paid in
full, the Guarantor shall not assert any right of subrogation unless expressly
authorized in writing by the Payees.
8. Guarantor's liability shall continue notwithstanding the
incapacity, death, or disability, liquidation, insolvency or bankruptcy of
American or any other guarantor. The failure by Payees to file or enforce a
claim against the estate (either an administration, bankruptcy, or other
proceeding) of Guarantor, any other guarantor, American, or of any other person
shall not affect Guarantor's liability hereunder, nor shall Guarantor be
released from liability if recovery from American, any other guarantor, or any
other person becomes barred by any statute of limitation or is otherwise
prevented. Guarantor waives and agrees not to assert or take advantage of the
defense of the statute of limitations in any action hereunder or for the
collection of any credit hereby granted.
9. In the event that any action or other proceedings shall be
brought to enforce this Guaranty or any provision hereof, the same may be
maintained by one action or joined with any action or other proceedings against
American and/or any other guarantor of American's obligations to the Payees.
Prior action or suit against American whether alone or jointly with other
guarantors, shall not be a prerequisite to Payees' right to proceed hereunder in
case of any default by American. The rights of Payees are cumulative and shall
not be exhausted by exercise
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of any rights hereunder or otherwise against Guarantor by any number of
successive actions until and unless all indebtedness hereby guaranteed has been
paid or performed, and Guarantor's obligations hereunder have been fully
satisfied.
10. Should any one or more provisions of this guaranty be
determined to be illegal or unenforceable, all other provisions nevertheless
shall remain effective.
11. The Guarantor further agrees that the validity of this
Guaranty and the obligations of the Guarantor hereunder shall in no way be
terminated, affected or impaired (a) by reason of the assertion by American of
any rights or remedies which it may have under or with respect to any of the
Documents, against any person obligated thereunder; or (b) by reason of any
failure to file or record any of such instruments or to take or perfect any
security intended to be provided thereby; or (c) by reason of the release or
exchange of any property covered by the Documents or other collateral; or (d) by
reason of Payees' failure to exercise, or delay in exercising, any such right or
remedy or any right or remedy Payees may have hereunder or in respect to this
Guaranty; or (e) by reason of the commencement of a case under the Bankruptcy
Code by or against American, the Guarantor or any person or entity obligated
under the Documents, or liquidation of the Guarantor; or (f) by reason of any
payment made on the obligations arising out of the Documents, whether made by
American or any Guarantor or any other person, which is required to be refunded
pursuant to any bankruptcy or insolvency law; it being understood that no
payment so refunded shall be considered as a payment of any portion of the
obligations under the Documents, nor shall it have the effect of reducing the
liability of the Guarantor hereunder. It is further understood, that if American
shall have taken advantage of, or be subject to the protection of any provision
in the Bankruptcy Code, the effect of which is to prevent or delay Payees from
taking any remedial action against American, including the exercise of any
option Payees have to declare the sums or obligations under the Documents due
and payable on the happening of any default or event by which under the terms of
the Documents, any such sums or obligations shall become due and payable, Payees
may, as against Guarantor, nevertheless, declare such sums or obligations due
and payable and enforce any or all of its rights and remedies against Guarantor
provided for herein.
12. The Guarantor further covenants that this Guaranty shall
remain and continue in full force and effect as to any modification, extension
or renewal of any of the Documents, that Payees shall not be under a duty to
protect, secure or insure any security or lien provided by the Documents, and
that other indulgences or forbearance may be granted under any or all of the
Documents, all of which may be made, done or suffered without notice to, or
further consent of, the Guarantor.
13. As a further inducement to the Payees to enter into the
Agreement and the Documents, and in consideration thereof, the Guarantor further
covenants and agrees: (a) that in any action or proceeding brought by Payees
against the Guarantor pursuant to this Guaranty, the Guarantor shall and does
hereby waive trial by jury; (b) the Guarantor will maintain a place of business
or an agent for service of process in New York and give prompt notice to Payees
of the address of such place of business and of the name and address of any
agent appointed by it, as appropriate; (c) the failure of the Guarantor's agent
for service of process to give it notice of any service of process will not
impair or affect the validity of such service or of any judgment based thereon;
(d) if, despite the foregoing, there is for any reason no agent for service of
process of the
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Guarantor available to be served, and if the Guarantor at that time has no place
of business in New York, then the Guarantor irrevocably consents to service of
process by registered or certified mail, postage prepaid, to it at its address
given in or pursuant to the first paragraph hereof, the Guarantor hereby waiving
personal service thereof; (e) that within thirty (30) days after such mailing,
the Guarantor so served shall appear or answer to any summons and complaint or
other process and should the Guarantor so served fail to appear or answer within
said thirty-day period, said Guarantor shall be deemed in default and judgment
may be entered by Payees against the said party for the amount as demanded in
any summons and complaint or other process so served; (f) with respect to any
claim or action arising hereunder, the Guarantor: (1) irrevocably submits to the
jurisdiction of the courts of the State of New York and the United States
District Court located in New York County; and (2) irrevocably waives any
objection which it may have at any time to the laying on venue of any suit,
action or proceeding arising out of or relating to the Documents brought in any
such court, irrevocably waives any claim that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient forum;
and (g) nothing in this Guaranty will be deemed to preclude Payees from bringing
an action or proceeding with respect hereto in any other jurisdiction.
14. This agreement shall inure to the benefit of the Payees,
their successors and/or assigns and shall bind Guarantor's and its successors
and assigns.
15. This Guaranty is and shall be deemed to be a contract
entered into, under, and pursuant to the laws of the State of New York and shall
be in all respects governed, construed, applied, and enforced in accordance with
the laws of the State of New York; and no defense given or allowed by the laws
of any other state or country shall be interposed in any action hereon unless
such defense is also given or allowed by the laws of the State of New York.
16. THIS AGREEMENT IS SUBJECT TO THE AGREEMENT OF
SUBORDINATION DATED AS OF FEBRUARY 3, 2004 AMONG ATLANTIC BANK OF NEW YORK (THE
"BANK"), EACH OF THE PAYEES AND WELLSPRING MEDIA, INC., WHICH AMONG OTHER THINGS
SUBORDINATES THE GUARANTOR'S OBLIGATIONS HEREUNDER TO THE PRIOR PAYMENT OF
CERTAIN OBLIGATIONS OWING TO THE BANK.
IN WITNESS WHEREOF, the Guarantor has hereunto signed this guaranty as
of the day and year first above written.
WELLSPRING MEDIA, INC.
By:
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Xxxxxxx X. Xxxxxx, President
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ACKNOWLEDGMENT IN XXX XXXX XXXXX
XXXXX XX XXX XXXX, XXXXXX OF ____________________ SS.:
On January 2004 before me, the undersigned, personally appeared
____________________________________ personally known to me or proved to me on
the basis of satisfactory evidence to be the individual(s) whose name(s) is
(are) subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their capacity(ies), and that by
his/her/their signature(s) on the instrument, the individual(s), or the person
upon behalf of which the individual(s) acted, executed the instrument.
-----------------------------------
(signature and office of individual
taking acknowledgment)
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