EXHIBIT 10.30
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AMENDED AND RESTATED UNLIMITED GUARANTY AGREEMENT
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(XXXXXXXXX)
THIS AMENDED AND RESTATED UNLIMITED GUARANTY AGREEMENT ("Guaranty"), dated
October __, 2000, is made and entered into upon the terms hereinafter set forth,
by XXXX X. XXXXXXXXX ("Guarantor"), in favor of SOUTHTRUST BANK, an Alabama
banking corporation with offices in Nashville, Tennessee, formerly known as
SouthTrust Bank, National Association ("Creditor").
RECITALS:
A. Pursuant to that certain Loan Agreement dated October 28, 1999, by and
among European Micro Holdings, Inc., a Nevada corporation ("Debtor"), American
Micro Computer Center, Inc., a Florida corporation, Nor'easter Micro, Inc., a
Nevada corporation, and Creditor, as amended by that certain First Amendment to
Loan Agreement of even date herewith (as amended, the "Loan Agreement"),
Creditor has made a term loan to Debtor in the original principal amount not
exceeding $1,500,000 (the "Term Loan"). The Term Loan is evidenced by a Secured
Promissory Note of even date with the Term Loan Agreement, in the original
principal amount of $1,500,000, made and executed by Debtor, payable to the
order of Creditor (herein referred to, together with any extensions,
modifications, renewals and/or replacements thereof, as the "Note"; the Note and
the Loan Agreement, together with any and all other documents executed in
connection therewith, are hereinafter collectively referred to as the "Loan
Documents").
B. As a condition of Creditor's agreement to make the Term Loan to Debtor,
Guarantor executed and delivered to Creditor that certain Limited Guaranty
Agreement dated October 29, 1999 (the "Original Guaranty"). At the request of
Debtor and Guarantor, Creditor has agreed to waive certain defaults existing
under the Loan Documents and modify the Loan Documents in certain respects,
conditioned in part upon Guarantor's agreement to execute and deliver this
Guaranty, amending and restating the Original Guaranty.
C. Guarantor desires to execute and deliver this Guaranty to Creditor in
order to induce Creditor to waive such defaults and agree to such modifications
to the Loan Documents, which will be to the direct interest, advantage and
benefit of Guarantor.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable considerations, the receipt and sufficiency of which are hereby
acknowledged by Guarantor, and to induce Creditor to make loans and other
extensions of credit to Debtor pursuant to the Loan Agreement, Guarantor hereby
agrees as follows:
1. Guarantor hereby guarantees to Creditor the full and prompt payment of
the entire indebtedness evidenced by the Note, including principal and any and
all interest accrued or to accrue thereon (the aforesaid indebtednesses and
other obligations are sometimes herein collectively referred to as the
"Guaranteed Obligations"). Guarantor hereby agrees that if the Guaranteed
Obligations are not timely paid in accordance with the terms thereof, Guarantor
immediately will pay such Guaranteed Obligations. If for any reason any payment
or obligation in respect of the Guaranteed Obligations shall be determined at
any time to be a voidable preference or otherwise shall be set aside or required
to be returned or repaid, this Guaranty nevertheless shall remain in full force
and effect and shall be fully enforceable against Guarantor for the payment or
obligation set aside, returned or repaid, as well as any other Guaranteed
Obligations still outstanding, notwithstanding the fact that this Guaranty may
have been canceled, released and/or returned to Guarantor by Creditor.
2. In addition to the obligations of Guarantor to Creditor pursuant to
Paragraph 1 hereof, Guarantor further agrees to pay any and all expenses
(including without limitation attorney's fees) reasonably incurred by Creditor
in endeavoring to collect and/or enforce the obligations of Guarantor under this
Guaranty.
3. Guarantor hereby waives notice of any breach or default by Debtor, and
hereby further waives presentment, demand, notice of dishonor and protest with
respect to any instrument now or hereafter evidencing any of the Guaranteed
Obligations.
4. Any act of Creditor consisting of a waiver of any of the terms,
covenants or conditions of the Guaranteed Obligations, or the giving of any
consent to any matter or thing relating to the Guaranteed Obligations, or the
granting of any indulgences or extensions of time to Debtor, may be done without
notice to Guarantor and without releasing the obligations of Guarantor
hereunder.
5. The obligations of Guarantor hereunder shall not be released by
Creditor's receipt, application or release of any security given for the
payment, performance and observance of any of the Guaranteed Obligations.
Similarly, the obligations of Guarantor hereunder shall not be released by any
modification of any of the terms of the Guaranteed Obligations made by Creditor
and Debtor, but in the case of any such modification, the liability of Guarantor
shall be deemed modified in accordance with the terms of any such modification.
6. The liability of Guarantor hereunder shall in no way be affected by (a)
the release or discharge of Debtor in any creditors', receivership, bankruptcy
or other proceedings, (b) the impairment, limitation or modification of the
liability of Debtor or the estate of Debtor in bankruptcy, or of any remedy for
the enforcement of any of the Guaranteed Obligations resulting from the
operation of any present or future provision of the Federal bankruptcy law or
any other statute or the decision of any court, (c) the rejection or
disaffirmance of any instrument, document or agreement evidencing any of the
Guaranteed Obligations in any such proceedings, (d) the assignment or transfer
of any of the Guaranteed Obligations by Creditor, (e) any other defense of
Debtor, or (f) the cessation from any cause whatsoever of the liability of
Debtor with respect to the Guaranteed Obligations.
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7. Until all of the Guaranteed Obligations have been fully paid, any
liability or indebtednesses of Debtor now or hereafter held by Guarantor are and
shall be subject and subordinate to the obligations of Debtor to Creditor under
the Guaranteed Obligations.
8. Guarantor hereby waives any claim, right or remedy that Guarantor may
now have or hereafter acquire against Debtor that arises hereunder and/or from
performance by Guarantor hereunder, including but not limited to any claim,
right or remedy of subrogation, reimbursement, exoneration, contribution,
indemnification or participation in any claim, right or remedy of Creditor
against Debtor or any collateral now or hereafter securing the Guaranteed
Obligations, regardless of whether such claim, right or remedy arises under
contract, by statute, under common law, in equity or otherwise.
9. This is a guaranty of payment and not of collection. The liability of
Guarantor hereunder shall be direct and immediate and not conditional or
contingent upon the pursuit of any remedies against Debtor or any other person,
nor against any collateral available to Creditor. Guarantor hereby waives any
right to require that an action be brought against Debtor or any other person or
to require that resort be had to any collateral in favor of Creditor prior to
discharging its obligations hereunder. Guarantor further waives any right of
Guarantor to require that an action be brought against Debtor under the
provisions of Title 47, Chapter 12, Tennessee Code Annotated, as the same may be
amended from time to time.
10. Guarantor hereby consents and agrees that all payments and credits
received from Debtor or Guarantor or realized from any collateral may be applied
by Creditor to the Guaranteed Obligations in such priority as Creditor in its
sole judgment shall see fit.
11. In the event that Guarantor consists of more than one person or
entity, the obligations of Guarantor hereunder shall be joint and several, and
all references herein to "Guarantor" shall refer to each of said persons or
entities jointly and severally. This Guaranty is assignable by Creditor, and any
assignment of the Guaranteed Obligations or any portion thereof by Creditor
shall operate to vest in the assignee the rights and powers of Creditor
hereunder to the extent of such assignment. This Guaranty shall be binding upon
Guarantor and Guarantor's heirs, representatives, successors,
successors-in-title and assigns, and shall inure to the benefit of Creditor, its
heirs, representatives, successors, successors-in-title and assigns.
12. This Guaranty shall be construed in accordance with and governed by
the laws of the State of Tennessee applicable to contracts to be performed
within said state.
13. No amendment or modification hereof shall be effective unless
evidenced by a writing signed by Guarantor and Creditor. When used herein, the
singular shall include the plural, and vice versa, and the use of any gender
shall include all other genders, as appropriate.
14. Guarantor hereby waives notice of acceptance of this Guaranty by
Creditor.
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IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty,
or has caused this Guaranty to be executed by its duly authorized
representative, as of the date first above written.
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XXXX X. XXXXXXXXX
ACCEPTED this _____ day of October, 2000.
SOUTHTRUST BANK
By:________________________________
(Title)
