LIMITED RECOURSE GUARANTEE
THIS RECOURSE GUARANTY ("Guaranty"), dated April 27, 2005, is made by
XXXXXXX XXXXXXXXX (the "Guarantor") in favor of BRITTANY CAPITAL MANAGEMENT
LIMITED (together with its permitted assigns and successors, the "Holder").
Reference is made to that $250,000 promissory note, dated of even date
herewith, (the "Note") issued by AMERCIAN PALLET LEASING, INC., a Delaware
corporation (the "Obligor") to the Holder. Reference is also made to the Stock
Pledge Agreement, dated of even date herewith (the "Agreement"), pursuant to
which the undersigned Guarantor has pledged to the Holder an aggregate of
600,000 shares of Common Stock of the Obligor owned of record and beneficially
by Guarantor (the "Guarantee Shares"), as collateral to secure payment and
performance of the "Secured Obligation," as defined in the Agreement.
Unless otherwise defined herein, all capitalized terms, when used herein
shall have the same meaning as is defined in the Note. In order to induce the
Holder to provide a $250,000 loan to the Obligor, as evidenced by the Note, the
undersigned Guarantor has agreed to execute and deliver this Limited Recourse
Guaranty to the Holder.
The Guarantor does, to the extent of the Guarantee Shares pledged as
collateral herein, hereby irrevocably and unconditionally guaranty to the Holder
of the Note, to the extent hereinafter set forth, the full and timely payment by
the Obligor of all principal and accrued interest payable under the Note, (the
obligation to pay all such amounts, when due, is hereafter referred to as the
"Secured Obligations"). Notwithstanding any other provision in this document or
any related document, Guarantor shall have no personal liability to Holder
whatsoever beyond the Guarantee Shares.
This is an absolute, irrevocable and unconditional guaranty of payment and
performance and not merely of collection and that Guarantor shall be jointly and
severally liable with the Obligor; provided, that the Holder shall first enforce
its rights and remedies against the Obligor under the Note prior to enforcing
this Guaranty against the Guarantee Shares.
1. Notwithstanding any payment(s) made by the Guarantor through the
Guarantee Shares hereunder, but without prejudice to the Guarantor's rights as a
creditor of the Obligor, the Guarantor shall in no event be entitled to be
subrogated to any of the rights of the Holder against the Obligor unless and
until all Secured Obligations shall have been paid in full; and the Guarantor
shall in no event seek any contribution or reimbursement from the Obligor in
respect of any payment(s) made by or received in respect of the Guarantor
hereunder, unless and until all of the Secured Obligations shall have been paid
in full.
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2. The Guarantor hereby acknowledges and agrees that the validity of this
Guaranty and the Guarantor's obligations hereunder shall in no way be
terminated, modified, affected, impaired or diminished by reason of any of (i)
any failure by the Holder to insist in any one or more instances upon strict
performance or observance by the Obligor of any of the terms, provisions or
conditions of the Note, (ii) any assertion or non-assertion by the Holder
against the Obligor of any of the rights or remedies reserved to the Holder in
the Note, (iii) any forbearance by the Holder from exercising any of its rights
or remedies as aforesaid, (iv) any bankruptcy, insolvency, receivership,
reorganization, liquidation or other similar proceeding relating to the Obligor,
(v) any relief of the Obligor and/or the Guarantor from any of its obligations
under the Note, by operation of law, in equity or otherwise, (vi) any amendment,
modification, extension, renewal, termination, compromise or waiver under or in
respect of the Note, or (vii) any transfer, assignment or negotiation of the
Note or this Guaranty. Except for any required demand in respect of payment
hereunder, the Guarantor hereby waives any and all notice, demand, presentment,
protest and other such privilege or formality, and all notice in respect of the
creation, renewal, extension or accrual of any Secured Obligations. The
Guarantor represents and warrants to the Holder that this Guaranty has been duly
executed and delivered by the Guarantor and constitutes the legal, valid and
binding obligation of the Guarantor and is enforceable against the Guarantor in
accordance with its terms; the Guarantor has full capacity and power to execute
and deliver this Guaranty; and the execution and delivery by the Guarantor of
this Guaranty and the performance by the Guarantor of his obligations hereunder,
do not violate, or conflict with, any agreement, instrument, note, judgment,
order or decree binding on the Guarantor or under any law, rule or regulation
applicable to the Guarantor, which violation or conflict would have a material
and adverse effect on the Guarantor's ability to perform his obligations under
this Guaranty.
3. Subject to applicable statutes of limitations, no delay on the part of
the Holder in exercising any rights hereunder, or any failure by the Holder to
exercise any such rights, shall operate as a waiver of any such rights for any
purposes, it being understood that, subject to applicable statutes of
limitations, the Holder may exercise any and all of his rights hereunder at any
time and from time to time pursuant to the terms hereof.
4. Except as otherwise provided herein, this Guaranty may not be
terminated, modified or amended except by a writing duly executed by the Holder
and the Guarantor.
5. This Guaranty shall be governed by and construed in accordance with the
laws of the State of New York. Each of the parties consents to the jurisdiction
of the federal courts whose districts encompass any part of the City of New York
or the state courts of the State of New York sitting in the City of New York in
connection with any dispute arising under this Agreement and hereby waives, to
the maximum extent permitted by law, any objection, including any objection
based on forum non coveniens, to the bringing of any such proceeding in such
jurisdictions. Each of the parties hereby waives all right to a trial by jury in
connection with any dispute arising under the Agreement.
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6. This Guaranty may be executed in any number of counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the undersigned Guarantor, intending to be
legally bound hereby, has executed this Guaranty as of the date set forth above.
XXXXXXX XXXXXXXXX
/s/ Xxxxxxx Xxxxxxxxx
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ACCEPTED AND AGREED TO:
BRITTANY CAPITAL MANAGEMENT LIMITED
By: /s/ Xxxxx X. Xxxxxx
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