Exhibit 10.28
THE INDEBTEDNESS UNDER THIS CONTINUING GUARANTEE AND SUBORDINATION AGREEMENT IS
SUBORDINATE TO CERTAIN OTHER INDEBTEDNESS OF GUARANTOR AS PROVIDED IN THAT
SUBORDINATION AGREEMENT DATED MAY 7, 1997, BY AND AMONG LASALLE BUSINESS CREDIT,
INC. AND LENDER
CONTINUING GUARANTEE AND SUBORDINATION AGREEMENT
(SEI)
TO: IMPERIAL BANK, A CALIFORNIA BANKING CORPORATION
1. For valuable consideration, the undersigned (hereinafter called
"Guarantor"), whose address is set forth after Guarantor's signature below,
jointly and severally, and unconditionally, guarantees and promises to pay to
IMPERIAL BANK, a California banking corporation (hereinafter called "Lender"),
or order, on demand, in lawful money of the United States, any and all
indebtedness of THE ANTIGUA GROUP, INC., a Nevada corporation (hereinafter
called "Borrower"), to Lender. If more than one Borrower is named herein, or if
this Guarantee is executed by more than one Guarantor, the word "Borrower" and
the word "Guarantor" respectively shall mean all and any one or more of them,
severally and collectively. The word "indebtedness" is used in its most
comprehensive sense and includes any and all advances, debts, obligations and
liabilities of Borrower heretofore, now or hereafter made, incurred or created,
with or without notice to Guarantor, whether voluntary or involuntary and
however arising, whether due or not due, absolute or contingent, liquidated or
unliquidated, determined or undetermined, and whether Borrower is liable
individually or jointly with others, or whether recovery upon such indebtedness
may be or hereafter become barred by any statute of limitations, or whether such
indebtedness may be or hereafter become otherwise unenforceable, exclusive,
however, of any indebtedness of Borrower to Lender presently covered by existing
guaranties executed by Guarantor, but without derogation to such existing
guaranties, if any, which are hereby ratified and reaffirmed.
2. The liability of Guarantor hereunder shall include all principal,
plus all interest thereon and all attorneys' fees and other costs and expenses
incurred by Lender in collecting, compromising or enforcing the indebtedness or
in protecting or preserving any security for the indebtedness. Lender may permit
the indebtedness of Borrower to exceed such maximum liability without impairing
the obligation of Guarantor hereunder. Any payment by Guarantor shall not reduce
Guarantor's maximum obligation hereunder, unless written notice to that effect
is actually received by Lender at or prior to the time of such payment. Any
payment by or recovery from Borrower, any other guarantor or any security shall
be credited first to that portion of the indebtedness which exceeds the maximum
obligation of Guarantor hereunder.
3. This is a continuing guarantee that shall remain in full force and
effect and includes all indebtedness arising under future transactions or under
successive transactions which either continue then existing indebtedness or from
time to time renew it after it has been satisfied, but shall not apply to any
indebtedness created after actual receipt by Lender of written notice of the
revocation of this Guarantee as to future transactions. Any such revocation of
this Guarantee at any time by any Guarantor as to future transactions shall not
affect the liability of any other guarantor for indebtedness of Borrower and
shall not affect the liability of that Guarantor or any other guarantor for
indebtedness incurred or credit committed by Lender to Borrower prior to the
effective time of that revocation; this Guarantee shall remain in full force and
effect as to all such indebtedness. The death of any Guarantor shall not operate
as a revocation of liability hereunder of the estate of that Guarantor for
indebtedness created or incurred or credit committed by Lender to Borrower
subsequent to such death until actual receipt by Lender of written notice of the
death of that Guarantor. Guarantor waives notice of revocation given by any
other guarantor.
4. Guarantor is providing this Guarantee at the instance and request of
Borrower to induce Lender to extend or continue financial accommodations to
Borrower. Guarantor hereby represents and warrants that Guarantor is and will
continue to be fully informed about all aspects of the financial condition and
business affairs of Borrower that Guarantor deems relevant to the obligations of
Guarantor hereunder and hereby waives and fully discharges Lender from any and
all obligations to communicate to Guarantor any information whatsoever regarding
Borrower or Borrower's financial condition or business affairs.
5. Guarantor authorizes Lender, without notice or demand and without
affecting Guarantor's liability hereunder, from time to time, to: (a) renew,
modify, compromise, extend, accelerate or otherwise change the time for payment
of, or otherwise change the terms of the indebtedness or any part thereof,
including increasing or decreasing the rate of interest thereon; (b) release,
substitute or add any one or more endorsers, Guarantor or other guarantors; (c)
take and hold security for the payment of this Guarantee or the indebtedness,
and enforce, exchange, substitute, subordinate, waive or release any such
security; (d) proceed against such security and direct the order or manner of
sale of such security as Lender in its discretion may determine; and (e) apply
any and all payments from Borrower, Guarantor or any other guarantor, or
recoveries from such security, in such order or manner as Lender in its
discretion may determine.
6. Guarantor waives and agrees not to assert: (a) any right to require
Lender to proceed against Borrower or any other guarantor, to proceed against or
exhaust any security for the indebtedness, to pursue any other remedy available
to Lender, or to
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pursue any remedy in any particular order or manner; (b) the benefit of any
statute of limitations affecting Guarantor's liability hereunder or the
enforcement thereof; (c) demand, diligence, presentment for payment, protest and
demand, and notice of extension, dishonor, protest, demand, nonpayment and
acceptance of this Guarantee; (d) notice of the existence, creation or incurring
of new or additional indebtedness of Borrower to Lender; (e) the benefits of any
statutory provision limiting the liability of a surety; (f) any defense arising
by reason of any disability or other defense of Borrower or by reason of the
cessation from any cause whatsoever (other than payment in full) of the
liability of Borrower for the indebtedness; and (g) the benefits of any
statutory provision limiting the right of Lender to recover a deficiency
judgment, or to otherwise proceed against any person or entity obligated for
payment of the indebtedness, after any foreclosure or trustee's sale of any
security for the indebtedness. Guarantor shall have no right of subrogation and
hereby waives any right to enforce any remedy which Lender now has, or may
hereafter have, against Borrower, and waives any benefit of, and any right to
participate in, any security now or hereafter held by Lender. Without limiting
the generality of the foregoing, Guarantor waives all right and defenses that
Guarantor may have because Borrower's debt is at any time secured by real
property. This means, among other things: (a) Lender may collect from Guarantor
without first foreclosing on any real or personal property collateral pledged by
Borrower; and (b) if Lender forecloses on any real property collateral pledged
by Borrower: (i) the amount of the debt may be reduced only by the price for
which that collateral is sold at the foreclosure sale, even if the collateral is
worth more than the sale price; and (ii) Lender may collect from Guarantor even
if Lender, by foreclosing on the real property collateral, has destroyed any
right Guarantor may have to collect from Borrower. This is an unconditional and
irrevocable waiver of any rights and defenses Guarantor may have because
Borrower's debt is secured by real property. These rights and defenses include,
but are not limited to, any rights or defenses based upon Section 580a, 580b,
580d, or 726 of the California Code of Civil Procedure ("CCP"). Furthermore,
Guarantor waives all rights and defenses arising out of an election of remedies
by Lender, even though that election of remedies, such as a nonjudicial
foreclosure with respect to security for a guaranteed obligation, has destroyed
Guarantor's rights of subrogation and reimbursement against the principal by the
operation of Section 580d of the CCP or otherwise.
7. All existing and future indebtedness of Borrower to Guarantor is
hereby subordinated to the indebtedness of Borrower to Lender and such
indebtedness of Borrower to Guarantor, if Lender so requests, shall be
collected, enforced and received by Guarantor as trustee for Lender and shall be
paid over to Lender on account of the indebtedness of Borrower to Lender, but
without reducing or affecting in any manner the liability of Guarantor under the
other provisions of this Guarantee.
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8. In addition to all liens upon, and rights of setoff against, the
monies, securities or other property of Guarantor given to Lender by law, Lender
shall have a lien and a right of setoff against, and Guarantor hereby grants to
Lender a security interest in, all monies, securities and other property of
Guarantor now and hereafter in the possession of or on deposit with Lender,
whether held in a general or special account or deposit, or for safekeeping or
otherwise; every such lien and right of setoff may be exercised without demand
upon or notice to Guarantor. No lien or right of setoff shall be deemed to have
been waived by any act or conduct on the part of Lender, by any neglect to
exercise such right of setoff or to enforce such lien, or by any delay in so
doing.
9. It is not necessary for Lender to inquire into the powers of
Borrower or the officers, directors, partners or agents acting or purporting to
act on its behalf, and any indebtedness made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder.
10. Guarantor agrees to pay all attorneys' fees and all other costs and
expenses which may be incurred by Lender in enforcing this Guarantee. In the
event of the commencement of a bankruptcy proceeding by or against Guarantor or
otherwise involving any collateral for this Guarantee, Lender shall, to the
extent not already provided for herein, be entitled to recover, and Guarantor
shall be obligated to pay, Lender's attorneys' fees and costs incurred in
connection with: (i) any determination of the applicability of the bankruptcy
laws to the terms of this Guarantee or Lender's rights thereunder; (ii) any
attempt by Lender to enforce or preserve its rights under the bankruptcy laws,
or to prevent Guarantor from seeking to deny Lender its rights thereunder; (iii)
any effort by Lender to protect, preserve or enforce its rights against any
collateral for this Guarantee, or seeking authority to modify the automatic stay
of 11 USC Section 362 or otherwise seeking to engage in such protection,
preservation or enforcement; or (iv) any proceeding(s) arising under the
bankruptcy laws, or arising in or related to a case under the bankruptcy laws.
11. The obligations of Guarantor hereunder are joint and several if
Guarantor is more than one person or entity, are separate and independent of the
obligations of Borrower and of any other guarantor, and a separate action or
actions may be brought and prosecuted against Guarantor whether action is
brought against Borrower or any other guarantor or whether Borrower or any other
guarantor is joined in any action or actions. The obligations of Guarantor
hereunder shall survive and continue in full force and effect until payment in
full of the indebtedness is actually received by Lender, notwithstanding any
release or termination of Borrower's liability by express or implied agreement
with Lender or by operation of law and notwithstanding that the indebtedness or
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any part thereof is deemed to have been paid or discharged by operation of law
or by some act or agreement of Lender. For purposes of this Guarantee, the
indebtedness shall be deemed to be paid only to the extent that Lender actually
receives immediately available funds and to the extent of any credit bid by
Lender at any foreclosure or trustee's sale of any security for the
indebtedness.
12. Guarantor shall deliver to Lender financial statements of Guarantor
and other information pertaining to Guarantor as required under the terms of the
Credit Agreement among Borrower, Guarantor, Southhampton Enterprises Corp. and
Lender dated as of even date herewith. Guarantor shall also promptly deliver to
Lender, in writing, such further information as Lender may reasonably request
relating to Guarantor.
13. Guarantor agrees that to the extent Borrower or Guarantor makes any
payment to Lender in connection with the indebtedness, and all or any part of
such payment is subsequently invalidated, declared to be fraudulent or
preferential, set aside or required to be repaid by Lender or paid over to a
trustee, receiver or any other entity, whether under any bankruptcy act or
otherwise (any such payment is hereinafter referred to as a "Preferential
Payment"), then this Guarantee shall continue to be effective or shall be
reinstated, as the case may be, and, to the extent of such payment or repayment
by Lender, the indebtedness or part thereof intended to be satisfied by such
Preferential Payment shall be revived and continued in full force and effect as
if said Preferential Payment had not been made.
14. This Guarantee sets forth the entire agreement of Guarantor and
Lender with respect to the subject matter hereof and supersedes all prior oral
and written agreements and representations by Lender to Guarantor with respect
to the subject matter hereof. No modification or waiver of any provision of this
Guarantee or any right of Lender hereunder and no release of Guarantor from any
obligation hereunder shall be effective unless in a writing executed by an
authorized officer of Lender.
15. This Guarantee shall inure to the benefit of Lender and its
successors and assigns and shall be binding upon Guarantor and its heirs,
personal representatives, successors and assigns. Lender may assign this
Guarantee in whole or in part without notice.
16. Reference Provision.
(a) Each controversy, dispute or claim ("Claim") between the
parties arising out of or relating to this Guarantee which is not
settled in writing within ten days after the "Claim Date" (defined as
the date on which a party gives written notice to all other parties
that a controversy, dispute or
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claim exists), will be settled by a reference proceeding in Los
Angeles, California, in accordance with the provisions of Section 638
et seq. of the CCP, or their successor sections, which shall constitute
the exclusive remedy for the settlement of any Claim, including whether
such Claim is subject to the reference proceeding and the parties waive
their rights to initiate any legal proceedings against each other in
any court or jurisdiction other than the Superior Court of Los Angeles
(the "Court"). The referee shall be a retired Judge selected by mutual
agreement of the parties, and if they cannot so agree with in thirty
days (30) after the Claim Date, the referee shall be selected by the
Presiding Judge of the Court. The referee shall be appointed to sit as
a temporary judge, as authorized by law. The referee shall (a) be
requested to set the matter for hearing within sixty (60) days after
the Claim Date and (b) try any and all issues of law or fact and report
a statement of decision upon them, if possible, within ninety (90) days
of the Claim Date. Any decision rendered by the referee will be final,
binding and conclusive and judgment shall be entered pursuant to CCP
644 in the Court. All discovery permitted by this Guarantee shall be
completed no later than fifteen (15) days before the first hearing date
established by the referee. The referee may extend such period in the
event of a party's refusal to provide requested discovery for any
reason whatsoever, including, without limitation, legal objections
raised to such discovery or unavailability of a witness due to absence
or illness. No party shall be entitled to "priority" in conducting
discovery. Depositions may be taken by either party upon seven (7) days
written notice, and, request for production of inspection of documents
shall be responded to within ten (10) days after service. All disputes
relating to discovery which cannot be resolved by the parties shall be
submitted to the referee whose decision shall be final and binding upon
the parties.
(b) The referee shall be required to determine all issues in
accordance with existing case law and the statutory laws of the State
of California. The rules of evidence applicable to proceedings at law
in the State of California will be applicable to the reference
proceeding. The referee shall be empowered to enter equitable as well
as legal relief, to provide all temporary and/or provisional remedies
and to enter equitable orders that will be binding upon the parties.
The referee shall issue a single judgment at the close of the reference
proceeding which shall dispose of all of the claims of the parties that
are the subject to the reference. The parties hereto expressly reserve
the right to contest or appeal from the final judgment or any
appealable order or appealable judgment entered by the referee. The
parties expressly reserve the right to findings of fact, conclusions of
law, a written statement of decision, and the right to move for a new
trial or a different judgment, which new trial, if
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granted, is also to be a reference proceeding under this provision.
17. This Guarantee shall be governed by and construed in accordance
with the substantive laws (other than conflict laws) of the State of California,
except to the extent Lender has greater rights or remedies under Federal law,
whether as a national bank or otherwise, in which case such choice of California
law shall not be deemed to deprive Lender of any such rights and remedies as may
be available under Federal law. Subject to the provisions of Section 16 hereof,
each party consents to the personal jurisdiction and venue of the state courts
located in Los Angeles, State of California in connection with any controversy
related to this Guarantee, waives any argument that venue in any such forum is
not convenient and agrees that any litigation initiated by any of them in
connection with this Guarantee shall be venued in the Superior Court of Los
Angeles County, California. The parties waive any right to trial by jury in any
action or proceeding based on or pertaining to this Guarantee.
18. Except for telephonic notices (if any) permitted herein, any
notices or other communications required or permitted to be given by this
Guarantee to Guarantor or Lender must be (i) given in writing and personally
delivered or mailed by prepaid certified or registered mail, or (ii) made by
telefacsimile delivered or transmitted (but confirmed on the date the
telefacsimile is transmitted by one of the other methods of giving of notice
provided in this Section) to the person to whom such notice or communication is
directed, to the address of such person as follows:
Guarantor: Southhampton Enterprises Inc.
0000 Xxxxxxxxx Xxx
Xxxxxx, Xxxxx 00000
Attn: L. Xxxxxx Xxxxxx
Telecopier: (000) 000-0000
Lender: Imperial Bank
0000 Xxxxx Xx Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telecopier: (000) 000-0000
With a copy (which shall not constitute notice) to:
Imperial Bank
Xxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Telecopier: (000) 000-0000
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Any notice to be personally delivered may be delivered to the principal offices
(determined as of the date of such delivery) of the person to whom such notice
is directed. Any such notice or other communication shall be deemed to have been
given (whether actually received or not) on the day it is personally delivered
as aforesaid; or, if mailed, on the third day after it is mailed as aforesaid;
or, if transmitted by telefacsimile, on the day that such notice is transmitted
and confirmed as aforesaid; provided that notice to Lender shall be deemed given
only if given to Lender at both notice addresses. Guarantor or Lender may change
its address for purposes of this Guarantee by giving notice of such change to
the other parties pursuant to this Section.
IN WITNESS WHEREOF, these presents are executed as of the 7th day of
May, 1997.
WITNESS: GUARANTOR:
SOUTHHAMPTON ENTERPRISES INC., a
/s/ Xxxxx X. Xxxxx Texas corporation
Type/Print Name:
Xxxxx X. Xxxxx
By: /s/ L. Xxxxxx Xxxxxx
Type/Print Name: L. Xxxxxx Xxxxxx
Title: Secretary
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