Exhibit 10.3G
GUARANTY AGREEMENT
This Guaranty Agreement (this"Agreement") dated May 24, 2001, by and
between Dr. Xxxxxxx Xxxxxxxx (the "Guarantor"), and the investors set forth on
Schedule I hereto (each an "Investor" collectively the "Investors").
WITNESSETH
WHEREAS, the Guarantor is the Chairman of the Board, President and
Chief Executive Officer of LCS Golf, a Delaware corporation ("LCS Golf"), and is
the owner of not less than 750,000 issued and outstanding shares of the common
stock, $.001 par value per share, of LCS Golf ("Common Stock");
WHEREAS, on May 24, 2001, LCS Golf and Investor executed and
delivered a Subscription Agreement (the "Subscription Agreement") pursuant to
which LCS Golf agreed to sell to Investor up to $200,000 of Convertible
Debentures ("Debentures"); and
WHEREAS, in order to induce the Investors to enter into the
Subscription Agreement, Guarantor has agreed to guarantee the obligations of LCS
Golf pursuant thereto.
NOW THEREFORE, in consideration of the premises and of the mutual
covenants and obligations set forth in this Agreement, the parties hereto agree
as follows:
Section 1. THE GUARANTY.
------------
1.01 THE GUARANTY. The Guarantor hereby guarantees to each Investor
and their successors and assigns the prompt payment in full of any amounts due
and payable by LCS Golf to each Investor, their successors and assigns pursuant
to the Debentures. The Guarantor hereby further agrees that if LCS Golf shall
fail to pay in full any Debentures, the Guarantor will promptly pay the same.
1.02 OBLIGATIONS UNCONDITIONAL. The obligation of the Guarantor
under Section 1.01 hereof is absolute and unconditional, irrespective of the
value, genuineness, validity, regularity or enforceability of the Debentures,
and, to the fullest extent permitted by applicable law, irrespective of any
other circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor, it being the intent of
this Section 1.02 that the obligations of the Guarantor hereunder shall be
absolute and unconditional under any and all circumstances. Without limiting the
generality of the foregoing, it is agreed that the occurrence of any one or more
of the following shall not alter or impair the liability of the Guarantor
hereunder which shall remain absolute and unconditional as described above: (a)
at any time or from time to time, without notice to the Guarantor, the time for
any performance of or compliance with the Debentures shall be extended, or such
performance or compliance shall be waived; or (b) unless the obligations of the
Guarantor would be materially increased, the Subscription Agreement shall be
amended in any respect, or any right of LCS Golf under the Subscription
Agreement or any other agreement or instrument referred to herein or therein
shall be waived or any other guaranty of the Debentures shall be released or
exchanged in whole or in part or otherwise dealt with; or the addition or
partial or entire release of any guarantor, maker, surety, endorser, indemnitor
or other party or parties primarily or secondarily liable for the payment and/or
performance of the Debentures; or (d) the assumption of any of the Debentures by
any other person, whether by assignment, sale, sublease, conveyance or
otherwise; or (e) the institution of any suit or the obtaining of any judgment
against the Guarantor or the maker, or any surety, endorser, indemnitor or other
party or parties primarily or secondarily liable for the payment and/or
performance of the Debentures; or (f) any other event, circumstance or condition
which might otherwise constitute a legal or equitable discharge of a surety or a
guarantor; it being expressly agreed that the obligations of the Guarantor shall
in no way be diminished, impaired, affected or released by the neglect or
failure of the Investor to do any of the above-described acts.
1.03 WAIVER OF NOTICE. This shall be a continuing guaranty and a
primary obligation of the Guarantor, and the Guarantors hereby waives notice of
acceptance of this Guaranty with regard to the Debentures that may now exist or
may hereafter come into existence. The Guarantor hereby waives presentment,
demand, diligence in the enforcement or collection of the Debentures, protest
and all notices of any kind whatsoever, including, but not limited to, notice of
default in the payment of the Debentures.
1.04 PRIMARY LIABILITY. The Guarantor agrees that it is not merely a
surety but is directly, irrevocably and primarily, jointly and severally, liable
to the Investor, that the obligations of the Guarantor hereunder are independent
of the obligations of LCS Golf, or of any other guarantor, and that a separate
action or actions may be brought and prosecuted against the Guarantor,
irrespective of whether action is brought against LCS Golf or any other
guarantor or whether LCS Golf or any other guarantor is joined in any such
action or actions. The Guarantor agrees that any releases which may be given by
the Investor to LCS Golf or any other guarantor or endorser shall not release
the Guarantor from this Guaranty. As a condition to payment or performance by
the Guarantor under this Guaranty, the Investor shall not be required to, and
the Guarantor hereby waives any and all rights to require the Investor, to
prosecute or seek to enforce any remedies against LCS Golf or any other person
or entity liable to the Investor on account of the Debentures.
1.05 REINSTATEMENT. The obligations of the Guarantor under this
Section 1 shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of LCS Golf in respect of the Debentures is
rescinded or must be otherwise restored by Investor, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise, and the Guarantor
agrees that it will indemnify Investor on demand for all reasonable costs and
expenses (including, without limitation, reasonable fees of counsel) incurred by
Investor in connection with such rescission or restoration, including any such
costs and expenses incurred in defending against any claim alleging that such
payment constituted a preference, fraudulent transfer or similar payment under
any bankruptcy, insolvency or similar law.
1.06 SUBROGATION. Until payment in full of the Debentures, the
Guarantor hereby waives all rights of subrogation or contribution, whether
arising by contract or operation of law (including, without limitation, any such
-2-
right arising under the Federal Bankruptcy Code) or otherwise by reason of any
payment by it pursuant to the provisions of this Section 1.
1.07 GENERAL LIMITATION ON GUARANTY OBLIGATIONS. If in any action or
proceeding involving any state corporate law, or any state or Federal
bankruptcy, insolvency, reorganization or other law affecting the rights of
creditors generally, the obligations of the Guarantor under Section 1.01 hereof
would be held or determined to be void, invalid or unenforceable, or
subordinated to the claims of any other creditors, on account of the amount of
its liability under said Section 1.01, then, notwithstanding any other provision
hereof to the contrary, the amount of such liability shall, without any further
action by the Guarantor, Investor or any other person, be automatically limited
and reduced to the highest amount that is valid and enforceable and not
subordinated to the claims of other creditors as determined in such action or
proceeding.
1.08 TAXES.
(a) All payments to be made hereunder by the Guarantor shall be made
without setoff, counterclaim or other defense and free and clear of and without
deduction for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
governmental authority (other than taxes imposed on Investor by the jurisdiction
in which it is organized or has its principal office or, in each case, any
political subdivision or taxing authority thereof or therein) (collectively,
"Taxes"). If any Taxes are imposed and required to be withheld from any amount
payable by the Guarantor hereunder, the Guarantor shall be obligated to pay such
additional amount as is necessary in order that the net payment to Investor
(after giving effect to the payment of such additional amount and to the
withholding of all Taxes) is equal to the amount due hereunder, and pay such
Taxes to the appropriate taxing authority for the account of Investor. As
promptly as possible thereafter, the Guarantor shall send Investor a copy of any
original official receipt showing payment thereof together with such additional
documentary evidence as Investor may from time to time reasonably require. If
the Guarantor fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to Investor the required receipts or other required
documentary evidence, the Guarantor shall be obligated to indemnify Investor for
any incremental taxes, interest or penalties that may become payable by Investor
as a result of such failure.
1.09 CONTINUING GUARANTY. This Guaranty shall continue in full force
and effect until the earlier to occur of (a) date upon which the registration
statement covering the Common Stock issuable upon the conversion of the
Debentures is declared effective (b) 10 days to after the date upon which the
Investor receive notice that it has not purchase Debentures in the principal
amount of $25,000 on or before May 30, 2001 and $50,000 on or before June 5,
2001, at which point this Agreement shall automatically terminate and Guarantor
shall have no further liability hereunder.
Section 2. REPRESENTATIONS AND WARRANTIES. The Guarantors represents
and warrants to Investor that the Guarantor has all necessary power and
authority to execute, deliver and perform his obligations under this Agreement
and this Agreement has been duly and validly executed and delivered by the
Guarantor and constitutes his legal, valid and binding obligation, enforceable
in accordance with its terms, except that such enforceability may be subject to
(i) applicable bankruptcy, insolvency, reorganization, fraudulent transfer,
-3-
conveyance or moratorium or other similar laws affecting or relating to the
enforcement of creditor's rights generally and (ii) general principles of equity
relating to enforceability (regardless of whether considered in a proceeding at
law or equity).
Section 3. MISCELLANEOUS.
3.01 EXPENSES. Except as otherwise expressly provided in this
Agreement, each party to this Agreement shall bear its respective expenses
incurred in connection with the preparation of this Agreement, including all
fees and expenses of agents, representatives, counsel, and accountants. In the
event of termination of this Agreement, the obligation of each party to pay its
own expenses will be subject to any rights of such party arising from a breach
of this Agreement by another party.
3.02 NOTICES. All notices, consents, waivers, and other
communications under this Agreement must be in writing and will be deemed to
have been duly given when (a) delivered by hand (with written confirmation of
receipt), (b) sent by telecopier (with written confirmation of receipt), or (c)
when received by the addressee, if sent by a nationally recognized overnight
delivery service (receipt requested), in each case to the appropriate addresses
and telecopier numbers set forth below (or to such other addresses and
telecopier numbers as a party may designate by notice to the other parties):
If to the Guarantor:
-------------------
Dr. Xxxxxxx Xxxxxxxx
c/o LCS Golf, Inc.
000 X. Xxxxx Xxxxxxx, Xxxxx 000
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
with a copy to:
--------------
Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxxxx, Esq.
Telecopy No.: (000) 000-0000
If to Investor:
--------------
Private Capital Group LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
-4-
with a copy to:
--------------
Xxxxx, Xxxxxxx & Xxxxxxx, L.L.C.
00 Xxxxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Attention Xxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000.
3.03 FURTHER ASSURANCES. The parties agree (a) to furnish upon
request to each other such further information, (b) to execute and deliver to
each other such other documents, and (c) to do such other acts and things, all
as the other party may reasonably request for the purpose of carrying out the
intent of this Agreement.
3.04 WAIVER. The rights and remedies of the parties to this
Agreement are cumulative and not alternative. Neither the failure nor any delay
by any party in exercising any right, power, or privilege under this Agreement
will operate as a waiver of such right, power, or privilege, and no single or
partial exercise of any such right, power, or privilege will preclude any other
or further exercise of such right, power, or privilege or the exercise of any
other right, power, or privilege. To the maximum extent permitted by applicable
law, (a) no claim or right arising out of this Agreement can be discharged by
one party, in whole or in part, by a waiver or renunciation of the claim or
right unless in writing signed by the other party; (b) no waiver that may be
given by a party will be applicable except in the specific instance for which it
is given; and (c) no notice to or demand on one party will be deemed to be a
waiver of any obligation of such party or of the right of the party giving such
notice or demand to take further action without notice or demand as provided in
this Agreement.
3.05 ENTIRE AGREEMENT AND MODIFICATION. This Agreement supersedes
all prior agreements between the parties with respect to its subject matter and
constitutes a complete and exclusive statement of the terms of the agreement
between the parties with respect to its subject matter. This Agreement may not
be amended except by a written agreement executed by the party to be charged
with the amendment.
3.06 SUCCESSORS AND NO THIRD PARTY RIGHTS. This Agreement will apply
to, be binding in all respects upon, and inure to the benefit of the successors
and permitted assigns of the parties. Nothing expressed or referred to in this
Agreement will be construed to give any person other than the parties to this
Agreement any legal or equitable right, remedy, or claim under or with respect
to this Agreement or any provision of this Agreement. This Agreement and all of
its provisions and conditions are for the sole and exclusive benefit of the
parties to this Agreement and their successors and assigns.
3.07 SEVERABILITY. If any provision of this Agreement is held
invalid or unenforceable by any arbitral panel or court of competent
jurisdiction, the other provisions of this Agreement will remain in full force
and effect. Any provision of this Agreement held invalid or unenforceable only
in part or degree will remain in full force and effect to the extent not held
invalid or unenforceable.
-5-
3.08 SECTION HEADINGS, CONSTRUCTION. The headings of Sections in
this Agreement are provided for convenience only and will not affect its
construction or interpretation. All references to "Section" or "Sections" refer
to the corresponding Section or Sections of this Agreement. All words used in
this Agreement will be construed to be of such gender or number as the
circumstances require. Unless otherwise expressly provided, the word "including"
does not limit the preceding words or terms.
3.09 GOVERNING LAW; JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK WITHOUT REFERENCE TO THE CHOICE OF LAWS PROVISIONS THEREOF. ANY ACTION,
SUIT OR PROCEEDING INITIATED BY ANY PARTY HERETO AGAINST ANY OTHER PARTY HERETO
UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE BROUGHT IN ANY STATE OR
FEDERAL COURT IN NEW YORK COUNTY IN THE STATE OF NEW YORK. EACH PARTY HERETO
SUBMITS ITSELF TO THE EXCLUSIVE JURISDICTION OF ANY SUCH COURT, WAIVES ANY
CLAIMS OF FORUM NON CONVENIENS AND AGREES THAT SERVICE OF PROCESS MAY BE
EFFECTED ON IT BY THE MEANS BY WHICH NOTICES ARE TO BE GIVEN PURSUANT TO THIS
GUARANTY.
3.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original copy of this
Agreement and all of which, when taken together, will be deemed to constitute
one and the same agreement.
3.11 SURVIVAL. Any provision of this Agreement which contemplates
the performance or existence of obligations after the date hereof, and any and
all representations and warranties set forth in this Agreement, shall not be
deemed to be merged into or waived by the execution and delivery of the
instruments contemplated hereby, but shall expressly survive and shall be
binding upon the party or parties obligated thereby in accordance with the terms
of this Agreement, subject to any limitations expressly set forth in this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Guaranty
Agreement to be duly executed and delivered as of the day and year first above
written.
GUARANTOR INVESTOR
PRIVATE EQUITY GROUP, LLC
---------------------
Dr. Xxxxxxx Xxxxxxxx: By: _________________________________
Name:
Title:
-6-
