Exhibit 10.2
LIMITED GUARANTY
This Limited Guaranty ("Guaranty") is made by the following individuals with
residence and mailing address as set forth below (referred to herein as the
"Guarantors")
Xxxx Xxxxx Xxxxx Xxxxxxx
319 Poiniciana Dr.. 00000 Xxxxxxx Xxx. Xxx. 000
X. Xxxxx, Xxxxxxx 00000 Xxxxx, Xxxxxxx 00000
to and for the benefit of KBK FINANCIAL, INC. ("KBK"), a Delaware corporation
authorized to transact business in Texas.
A. KBK has contemporaneously herewith entered into that certain Account
Transfer and Purchase Agreement of even date herewith (such agreement,
and all amendments and modifications thereof, collectively, the
"Purchase Agreement"), to which reference is made for all purposes,
with AESP, Inc. (referred to herein as the "Seller"), pursuant to which
KBK has purchased or will purchase all right, title and interest in
certain accounts receivable of the Seller (the "Accounts"), on those
terms and conditions set forth in the Purchase Agreement.
B. KBK is willing to enter into the Purchase Agreement only if the
Guarantors execute and deliver this Guaranty to KBK.
NOW, THEREFORE, in consideration of the aforesaid premises and other good and
valuable consideration, and for the purpose of inducing KBK to enter into the
Purchase Agreement and to purchase accounts receivable from the Seller pursuant
to the terms thereof, the sufficiency of which is hereby acknowledged, the
Guarantors hereby covenant and agree as follows:
1. The Guarantors hereby unconditionally and irrevocably guarantee the
payment in full of any losses incurred by KBK under the Purchase
Agreement (collectively the "Obligations") to the extent that such
losses are related to or attributable to any of the following limited
circumstances only:
(a) In the event any of the representations and warranties set
forth in the first sentence of Section 9 of the Purchase
Agreement was not true when made or ceases to be true for any
reason.
(b) In the event that the Seller, the Guarantors, or any other
person, without receiving prior written consent from KBK,
shall cash, deposit, or retain, any checks, drafts, monies or
proceeds of the Accounts purchased by KBK, and the Seller
shall fail to immediately tender the entire amount of the same
to KBK.
Notwithstanding any provision to the contrary contained herein, the
Guarantors shall have no liability hereunder with respect to any
account which is not paid as a result of the financial inability of the
subject account debtor to pay such account.
2. KBK shall not be required, as a condition precedent to making a demand
upon the Guarantors or to bringing an action against the Guarantors
under this Guaranty, to make demand upon, or to institute any action or
proceeding, at law or in equity against the Seller or anyone else, or
to exhaust its remedies against the Seller, or anyone else, or against
any collateral security. All remedies afforded to KBK by reason of this
Guaranty are separate and cumulative remedies and it is agreed that not
one of such remedies, whether exercised by KBK or not, shall be deemed
to be exclusive of any of the other remedies available to KBK and shall
not limit or prejudice any other remedy which KBK may have against any
party, including the Guarantors.
3. The Guarantors shall remain liable on this Guaranty notwithstanding any
change or changes in the terms, covenants or conditions of the Purchase
Agreement, or any amendment thereto, hereafter made or granted, or any
delay on the part of KBK in exercising its rights hereunder or
thereunder, it being the intention hereof that the Guarantors shall
remain liable as principal until the full amount of the Obligations
guaranteed hereby, with interest and any sums which may be due thereon,
shall have been fully paid, notwithstanding any act or omission which
might otherwise operate as a legal or equitable discharge of the
Guarantors.
4. The Guarantors hereby waive (a) notice of acceptance of this Guaranty;
(b) presentment and demand for payment of the Obligations or any
portion thereof; (c) protest and notice of dishonor or default to the
Guarantors or to any other person or party with respect to the
Obligations or any portion thereof; (d) all other notices to which the
Guarantors might otherwise be entitled; (e) any demand for payment or
performance of this Guaranty; and (f) all Guaranty and suretyship
defenses or other defenses in the nature thereof (including, without
limitation, all rights Guarantors has under, or the requirements
imposed by, Chapter 34 of the Texas Business and Commerce Code, as may
be amended from time to time).
5. Guarantors shall promptly furnish to KBK at any time and from time to
time such financial statements and other financial information of
Guarantors as KBK may require, in form and detail satisfactory to KBK
(including, without limitation, annual financial statements within 45
days after the end of each calendar year).
6. This Guaranty shall inure to the benefit of, and may be enforced by
KBK, and its respective successors and assigns, and shall be binding
upon and enforceable against the Guarantors and his respective heirs,
executors, legal representatives, administrators, or successors and
assigns thereof. All obligations of the Guarantors hereunder shall be
joint and several.
7. The Guarantors agree that in the event this Guaranty is placed in the
hands of an attorney for enforcement, the Guarantors will reimburse KBK
for all expenses incurred, including reasonable attorneys' fees.
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8. This Guaranty cannot be modified or amended except in a writing, duly
executed by the Guarantors and KBK.
9. The Guarantors have received, and will receive, direct and/or indirect
benefits by and from the making of this Guaranty and the execution of
the Purchase Agreement by KBK.
10. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO THE PRINCIPLES OF
CONFLICTS OF LAWS THEREOF. THIS GUARANTY IS PERFORMABLE IN TARRANT
COUNTY, TEXAS. GUARANTORS AGREES THAT TARRANT COUNTY, TEXAS SHALL BE
THE EXCLUSIVE VENUE FOR LITIGATION OF ANY DISPUTE OR CLAIM ARISING
UNDER OR RELATING TO THIS GUARANTY, AND THAT SUCH COUNTY IS A
CONVENIENT FORUM IN WHICH TO DECIDE ANY SUCH DISPUTE OR CLAIM.
GUARANTORS CONSENT TO THE PERSONAL JURISDICTION OF THE STATE AND
FEDERAL COURTS LOCATED IN TARRANT COUNTY, TEXAS FOR THE LITIGATION OF
ANY SUCH DISPUTE OR CLAIM. GUARANTORS IRREVOCABLY WAIVE, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH
A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
11. GUARANTORS HEREBY IRREVOCABLY WAIVE, TO THE MAXIMUM EXTENT PERMITTED BY
LAW, ANY RIGHT GUARANTORS MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY
LITIGATION DIRECTLY OR INDIRECTLY AT ANY TIME ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS GUARANTY OR ANY TRANSACTION CONTEMPLATED HEREBY
OR ASSOCIATED HEREWITH.
12. THIS GUARANTY REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES HERETO
WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED HEREIN AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.
13. THIS GUARANTY MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS, ALL OF
WHICH TAKEN TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
DELIVERY OF AN EXECUTED COUNTERPART OF THIS GUARANTY BY TELECOPY SHALL
BE EQUALLY AS EFFECTIVE AS DELIVERY OF A MANUALLY EXECUTED COUNTERPART
OF THIS GUARANTY. ANY PARTY DELIVERING AN EXECUTED COUNTERPART OF THIS
GUARANTY BY TELECOPY ALSO SHALL DELIVER A MANUALLY EXECUTED COUNTERPART
OF THIS GUARANTY BUT THE FAILURE TO DELIVER A MANUALLY EXECUTED
COUNTERPART SHALL NOT AFFECT THE VALIDITY, ENFORCEABILITY, AND BINDING
EFFECT OF THIS GUARANTY.
IN WITNESS WHEREOF, the undersigned has executed this Guaranty this 18th day of
September, 2003.
GUARANTORS:
/s/ XXXX XXXXX
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XXXX XXXXX
SSN: ###-##-####
/s/ XXXXX XXXXXXX
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XXXXX XXXXXXX
SSN: ###-##-####
STATE OF
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SS
COUNTY OF SS
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The foregoing instrument was acknowledged before me this _________ day
of __________________, 20___, by _______________________.
Witness my hand and official seal.
My Commission expires:
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(Notary Public)
STATE OF
----------------------------------- SS
SS
COUNTY OF SS
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The foregoing instrument was acknowledged before me this _________ day
of __________________, 20___, by _________________.
Witness my hand and official seal.
My Commission expires:
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(Notary Public)
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