(10.75) Guaranty and Suretyship Agreement between Xxxxxxx X.
Xxxxxxx and Aero Services International, Inc. dated
May 10, 1996.
GUARANTY AND SURETYSHIP AGREEMENT
THIS GUARANTY AND SURETYSHIP AGREEMENT (this "Guaranty") is
made and entered into as of the 10th day of May, 1996, by and
between XXXXXXX X. XXXXXXX ("Xxxxxxx") and AERO SERVICES
INTERNATIONAL, INC., a Louisiana corporation ("Aero").
WHEREAS, as of even date herewith, Xxxxxxx, Aero, and Xxxxx
XX Aviation, Inc., a Louisiana corporation controlled by Xxxxxxx
("Xxxxx XX"), have entered into that certain Transfer Agreement
(the "Asset Purchase Agreement"), pursuant to which Aero has
agreed to sell, transfer and assign certain rights and assets,
as more particularly described in the Asset Purchase Agreement,
to Xxxxx XX; and
WHEREAS, as of even date herewith, in accordance with the
Asset Purchase Agreement, Xxxxx XX has executed and delivered to
Aero (i) that certain promissory note in the original principal
amount of One Hundred Thousand Dollars ($100,000) (the "A Note")
and (ii) that certain promissory note in the original principal
amount of Five Hundred Thousand Dollars ($500,000) (the "B
Note"); and
WHEREAS, the A Note and the B Note, each of which is more
particularly described in the Asset Purchase Agreement, may,
hereinafter, be referred to, collectively as the "Notes"; and
WHEREAS, the execution, delivery and performance under the
Asset Purchase Agreement will be to the economic benefit of
Xxxxxxx; and
WHEREAS, as a condition for entering into the Asset
Purchase Agreement and accepting the Notes in accordance
therewith, Aero has required that Xxxxxxx execute and deliver
this Guaranty, pursuant to which Xxxxxxx guarantees and becomes
surety for the full and prompt payment of all amounts due and
payable or that may become due and payable by Xxxxx XX to Aero
under the Notes and/or the indemnification provisions set forth
in Section 14.2 of the Asset Purchase Agreement; and
WHEREAS, as a further condition for entering into the Asset
Purchase Agreement and accepting the Notes in accordance
therewith, and as security for the full and complete performance
of his obligations under this Guaranty, Aero has required that
Xxxxxxx execute and deliver that certain pledge agreement of
even date herewith (the "Xxxxxxx Pledge Agreement"), pursuant to
which Xxxxxxx pledges all of the issued and outstanding stock in
Xxxxx XX to Aero;
NOW, THEREFORE, in consideration of these premises and for
other good and valuable consideration, the receipt and suffi-
ciency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
1. Recitals Incorporated. The parties hereto acknowledge
and agree that the foregoing recitals constitute a material part
of this Guaranty, and the same are expressly incorporated herein
by this reference.
2. Definitions. In addition to the terms defined
elsewhere in this Guaranty, unless otherwise stated in this
Guaranty, the following terms will have the meanings set forth
below. Capitalized terms not defined herein shall have the
meanings ascribed to such terms in the Asset Purchase Agreement.
3. Material Inducement. Xxxxxxx acknowledges and agrees
that Aero would not enter into the Asset Purchase Agreement or
accept the Notes thereunder without the execution of this
Guaranty Agreement by Xxxxxxx, and, further, that this Guaranty
constitutes a material inducement to Aero in respect of the
foregoing.
4. Guaranty and Suretyship.
(a) Xxxxxxx hereby agrees to absolutely,
unconditionally and irrevocably guaranty, and by these presents
does hereby absolutely, unconditionally and irrevocably
guarantee and become surety for (i) the full, prompt and
punctual payment (and not merely the collectibility) of the
Notes, and all amounts to come due under the Notes (and any note
or other instrument given in renewal, extension, modification,
increase or substitution of or for the Notes, or either of
them), whether at stated maturity, by extension, acceleration,
or otherwise, all according to the terms of the Notes and the
Asset Purchase Agreement, and (ii) the full, prompt and punctual
payment of Xxxxx IV's obligations under the indemnification
provisions set forth in Section 14.2 of the Asset Purchase
Agreement, which guaranty and suretyship, subject only to the
provisions of Section 7 hereof, is unlimited in amount, scope
and recourse.
(b) This Guaranty shall be fully enforceable,
notwithstanding any right or power of Xxxxx XX or anyone else,
to assert any claim or defense as to the validity or
enforceability of the Notes and/or the Asset Purchase Agreement,
or with respect to any amounts due, thereunder, and no such
claim or defense shall impair or affect the obligations of
Xxxxxxx hereunder. All sums payable by Xxxxxxx hereunder,
whether of principal, interest, fees, penalties, expenses or
other charges, shall be paid in full, without set off or
counterclaim or any deduction or withholding whatsoever.
(c) This Guaranty shall survive, and Xxxxxxx'x
obligations and liabilities hereunder shall remain unaffected
by, (i) the dissolution of Xxxxx XX, whether voluntary or
involuntary, and/or (ii) any changes in ownership of Xxxxx XX.
5. Continuing Guaranty and Suretyship. THIS IS A CONTINUING
GUARANTY AND SURETYSHIP UNDER WHICH XXXXXXX GUARANTEES PAYMENT (AND NOT
MERELY THE COLLECTIBILITY) OF XXXXX IV'S PRESENT AND FUTURE OBLIGATIONS AND
INDEBTEDNESS UNDER THE NOTES AND THE INDEMNIFICATION PROVISIONS SET FORTH
IN SECTION 14.2 OF THE ASSET PURCHASE AGREEMENT IN FAVOR OF AERO ON A
CONTINUING BASIS. Xxxxxxx'x obligations and liability under this
Guaranty shall be open and continuous in effect. Xxxxxxx
intends to, and does hereby guarantee, at all times the prompt
and punctual payment (and not merely the collectibility),
performance and satisfaction of the Notes and the Asset Purchase
Agreement (including the payment of all amounts to come due
thereunder) in favor of Aero. Notwithstanding any provisions to
the contrary contained in this Guaranty or elsewhere, this
Guaranty shall be of no further force or effect when all amounts
due under, or on account of, the Notes and the Asset Purchase
Agreement, have been fully paid.
6. Direct Guaranty and Suretyship. The liability of
Xxxxxxx under this Guaranty, shall be primary, direct and
immediate and not conditional or contingent on pursuit by Aero
of any remedies it may have against Xxxxx XX, its successors or
assigns, with respect to the Notes and/or the Asset Purchase
Agreement, whether pursuant to the terms thereof or by law.
Without limiting the generality of the foregoing, Aero shall not
be required to make any demand on Xxxxx XX, or otherwise pursue
or exhaust its remedies against Xxxxx XX, before, simultaneously
with, or after enforcing its rights and remedies hereunder
against Xxxxxxx. Any one or more successive and/or concurrent
actions may be brought hereon against Xxxxxxx either in the same
action, if any, brought against Xxxxx XX, or in a separate
action, as often as Aero may deem advisable.
7. Effect of Pledge Agreement. Until such time as Aero
shall have (i) a perfected first priority security interest in
the Pledged Shares (as defined in the Asset Purchase Agreement),
or (ii) a perfected security interest in the Pledged Shares
subordinate only to the interest of either the Senior Lender (as
defined in the Asset Purchase Agreement), or Gulf Coast Bank (as
defined in the Asset Purchase Agreement), this Guaranty,
Xxxxxxx'x obligations hereunder, and Aero's recourse and
remedies hereunder and with respect hereto, shall be unlimited
in scope and effect. At such time as Aero shall have (i) a
perfected first priority security interest in the Pledged
Shares, or (ii) a perfected security interest in the Pledged
Shares subordinate only to the interest of either the Senior
Lender or Gulf Coast Bank, Aero's remedies and recourse
hereunder shall be limited to Aero's recourse and remedies under
the Xxxxxxx Pledge Agreement. The foregoing provisions of this
Section 7 notwithstanding, the limitations set forth in this
Section 7 are not intended to limit, reduce, qualify, diminish
or otherwise affect (and shall not be construed or deemed to
limit, reduce, qualify, diminish or otherwise affect) Aero's
rights, remedies or recourse against Purchaser and/or Xxxxxxx
under the Asset Purchase Agreement, or any of the other
documents or instruments executed by Purchaser and/or Xxxxxxx,
as the case may be, in conjunction therewith.
8. Default. Should, for any reason whatsoever, any non-
payment, or other default or failure to perform by Xxxxx XX
under the Notes or the Asset Purchase Agreement occur or exist,
Xxxxxxx shall immediately pay or perform, or cause to be paid or
performed the each and all such obligations.
9. Xxxxxxx'x Waivers. Xxxxxxx hereby unconditionally and
irrevocably waives each and all of the following:
(a) Notice of Aero's acceptance of this Guaranty;
(b) Notice of the existence or creation of the Notes
and the Asset Purchase Agreement;
(c) Notice of default, nonpayment or partial payment
under the Notes and/or the Asset Purchase
Agreement;
(d) Presentment and demand for payment of the Notes,
or with respect to any amounts due under Notes
and/or the Asset Purchase Agreement, notice of
dishonor, and all other notices whatsoever,
including notice of nonpayment, notice of
intention to accelerate, notice of acceleration,
protest and notice of protest, notice of
collection or institution of any suit or other
action by Aero in collection of the Notes, or
any amounts due under the Notes and/or the Asset
Purchase Agreement, including any notice of
default in payment of the Notes, or any amounts
due under the Notes and/or the Asset Purchase
Agreement, or other notice to, or demand for
payment thereof;
(e) Any right to require Aero to notify Xxxxxxx of
any nonpayment relating to any collateral
directly or indirectly securing the Notes, or
any amounts due under the Notes and/or the
indemnification provisions set forth in Section
14.2 of the Asset Purchase Agreement, or notice
of any action or non-action on the part of Xxxxx
XX, Aero or any other person, or other amounts
due under the Notes and/or the indemnification
provisions set forth in Section 14.2 of the
Asset Purchase Agreement, or notice of the
creation of any new or additional amounts
thereto subject to this Guaranty;
(f) Any rights to demand or require collateral
security from Xxxxx XX or any other person as
provided under applicable law or otherwise;
(g) All diligence in collection or protection of or
realization on the Notes, or with respect to any
amounts due under the Notes and/or the Asset
Purchase Agreement, or any collateral or
enforcing any remedy available to Aero;
(h) Any present or future "one action" or
"antideficiency" law or any other law which may
prevent Aero from bringing any action, including
a claim for deficiency against Xxxxxxx, before
or after Aero's commencement or completion of
any foreclosure action or any action in lieu of
foreclosure;
(i) Any right of Xxxxxxx to discharge on Xxxxxxx'x
giving notice to Aero to proceed against Xxxxx
XX for collection on the failure of Xxxxx XX to
make any required payment, and the failure or
refusal of Aero to thereupon commence an action
or foreclose on any collateral within any
specified time period or at any time;
(j) Any disability or other defense of Xxxxx XX or
any other person;
(k) All procedural errors and defects in any
proceeding instituted or maintained by Aero in
connection with the Notes and/or the Asset
Purchase Agreement;
(l) Any and all present and future moratorium laws
and any and all present and future laws which
(i) exempt all or any part of the collateral
pledged or assigned to Aero pursuant to any
document executed in connection with the Notes
or the Asset Purchase Agreement, or other
amounts due under the Notes and/or the Asset
Purchase Agreement, from attachment, levy,
foreclosure or sale under execution; or (ii)
provide for any stay of execution, marshalling
of assets, exemption from civil process,
redemption, extension of time for payment, or
valuation or appraisement of any part of the
collateral referred to in the Notes, the Asset
Purchase Agreement or the other documents or
instruments referenced therein.
Xxxxxxx warrants and agrees that each of the waivers set
forth above is made with Xxxxxxx'x full knowledge of its
significance and consequences and that, under the circumstances,
such waivers are reasonable and not contrary to public policy or
law. If any such waiver is determined to be contrary to any
applicable law or public policy, such waiver shall be effective
only to the extent permitted by law.
10. Xxxxxxx'x Waiver of Certain Rights. Xxxxxxx hereby
waives any claim, remedy or other right Xxxxxxx may now possess
or hereafter acquire against Xxxxx XX or any other person
arising from, or in any way related to, the existence or perfor-
xxxxx under this Guaranty, including, without limitation, any
right of subrogation, reimbursement, exoneration, contribution,
or indemnification against Xxxxx XX or any other person, or any
right to participate in any collateral securing Xxxxx IV's
indebtedness or other obligations to Aero, regardless of whether
such claim, remedy, or right arises in equity, under contract,
statute, common law or otherwise.
11. Xxxxxxx'x Receipt of Payments. If Xxxxxxx should for
any reason whatsoever receive any payments from Xxxxx XX that
Xxxxx XX may owe to Xxxxxxx, Xxxxxxx agrees to accept such
payments in trust for and on behalf of Aero, advising Xxxxx XX
of such fact. Xxxxxxx further unconditionally agrees to
immediately deliver any such funds so received to Aero, with
such funds being held by Xxxxxxx, over any interim period, in
trust for Aero. In the event that Xxxxxxx should for any reason
whatsoever receive any such funds from Xxxxx XX, and Xxxxxxx
should deposit such funds in one or more of Xxxxxxx'x deposit
accounts, no matter where located, Aero shall have the right to
attach the amount of funds so received, in Xxxxxxx'x deposit
accounts in which such funds were deposited, whether or not such
funds were commingled with other monies of Xxxxxxx, and whether
or not such funds then remain on deposit in such an account or
accounts.
12. Rights of Modification. Xxxxxxx expressly agrees,
consents to, and acknowledges that Aero may, at its sole option
and in its sole and absolute discretion, at any time, and from
time to time, without the consent of or notice to Xxxxxxx, or to
any other party, and without incurring any responsibility to
Xxxxxxx or to any other party, and without impairing or
releasing any of Xxxxxxx'x obligations or liabilities under this
Guaranty:
(a) Waive compliance with, or any defaults under, or
grant any indulgences with respect to, the
Notes, the Asset Purchase Agreement or any
documents or instruments executed in connection
therewith;
(b) Sell, exchange, release (with or without
substitution), surrender, realize on, or
otherwise deal with, in any reasonable manner
and in any order, any collateral directly or
indirectly securing payment of the Notes, or any
amounts due under the Notes and/or the Asset
Purchase Agreement;
(c) Alter, renew, extend, accelerate, modify, amend
or otherwise change the manner, place, time
and/or other terms of payment or other terms of
the Notes, the Asset Purchase Agreement, or any
part thereof, including any increase or decrease
in the rate or rates of interest under the
Notes, or with respect to any amounts due under
the Notes and/or the Asset Purchase Agreement;
(d) Accept partial payments on account of the Notes,
or any amounts due under the Notes and/or the
Asset Purchase Agreement;
(e) Settle or compromise with respect to the Notes,
or any amounts due under the Notes and/or the
Asset Purchase Agreement;
(f) Demand, take or accept any other collateral
security or guaranty for the Notes, or any
amounts due under the Notes and/or the Asset
Purchase Agreement from any party;
(g) Enter into, deliver, modify, amend, or waive
compliance with (or any defaults under), the
Notes, or any instrument or arrangement
evidencing, securing or otherwise affecting all
or any part of the Notes, or any amounts due
under the Notes and/or the Asset Purchase
Agreement;
(h) Agree that additional makers, endorsers,
guarantors or sureties may become parties to the
Notes;
(i) Proceed directly against Xxxxxxx to collect all
amounts due under this Guaranty without
proceeding against or joining Xxxxx XX or any
other person or entity, or proceeding first,
simultaneously or thereafter against any
collateral or marshalling assets with respect
thereto in collection of the Notes, or any
amounts due under the Notes and/or the Asset
Purchase Agreement;
(j) Assign or otherwise transfer the Notes, or this
Guaranty or any interest therein or herein;
and/or
(k) Deal in all respects with Xxxxx XX as if this
Guaranty were not in effect.
13. No Impairment of Xxxxxxx'x Obligations. No course of
dealing between Aero and Xxxxx XX, nor any failure or delay on
the part of Aero to exercise any of Aero's rights and remedies
under the Notes, the Asset Purchase Agreement or the Security
Agreement, shall have the effect of impairing or releasing
Xxxxxxx'x obligations and liabilities to Aero, or of waiving any
of Aero's rights and remedies under this Suretyship Agreement or
otherwise. Any partial exercise of any rights and remedies
granted to Aero shall, furthermore, not constitute a waiver of
any of Aero's other rights and remedies; it being Xxxxxxx'x
intent and agreement that Aero's rights and remedies shall be
cumulative in nature. A waiver or forbearance on the part of
Aero as to one event of default shall not constitute a waiver or
forbearance as to any other default.
14. No Release of Xxxxxxx. Xxxxxxx'x obligations and
liabilities under this Guaranty shall not be released, impaired,
reduced, or otherwise affected by, and shall continue in full
force and effect notwithstanding the occurrence of any event,
including, without limitation, any one or more of the following
events:
(a) The death, insolvency, bankruptcy, arrangement,
adjustment, composition, liquidation,
disability, dissolution, or lack of authority of
Xxxxx XX (or any person acting on Xxxxx IV's
behalf), of Xxxxxxx, or of any other party, as
the case may be;
(b) Any payment by Xxxxx XX or any other party, to
Aero, that is held to constitute a preferential
transfer or a fraudulent conveyance under any
applicable law, or any such amounts or payment
which, for any reason, Aero is required to
refund or repay to Xxxxx XX or to any other
person;
(c) Any sale, lease or transfer of all or any part
of the assets of Xxxxx XX;
(d) The failure of Aero to properly obtain, perfect
or preserve any security interest in, or lien
on, any collateral securing the Notes;
(e) The failure of Aero to exercise diligence,
commercial reasonableness or reasonable care in
the preservation, enforcement or sale of any
collateral securing the Notes, or any amounts
due under the Notes and/or the Asset Purchase
Agreement;
(f) Any other act or omission of Aero or Xxxxx XX
which would otherwise constitute or create a
legal or equitable defense in favor of Xxxxxxx.
The obligations of Xxxxxxx under this Guaranty shall be
absolute and unconditional, irrespective of the genuineness,
validity, regularity or enforceability of the Notes, or any
security given therefor or in connection therewith or any other
circumstances which might otherwise constitute a legal or
equitable discharge of a surety or guarantor.
15. Automatic Reinstatement. This Guaranty and Xxxxxxx'x
obligations and liabilities hereunder shall continue to be
effective, and/or shall automatically and retroactively be
reinstated, if a release or discharge has occurred, or if at any
time, any payment or part thereof to Aero with respect to the
Notes or the Asset Purchase Agreement is rescinded or must
otherwise be restored by Aero pursuant to any insolvency,
bankruptcy, reorganization, receivership, or any other debt
relief granted to Xxxxx XX. In the event that Aero must rescind
or restore any payment received in total or partial satisfaction
of the Notes, or with respect to any amounts due under the Notes
and/or the Asset Purchase Agreement, any prior release or dis-
charge from the terms of this Guaranty given to Xxxxxxx shall be
without effect, and this Guaranty and Xxxxxxx'x obligations and
liabilities hereunder shall automatically and retroactively be
renewed and/or reinstated and shall remain in full force and
effect to the same degree and extent as if such a release or
discharge had never been granted. It is the intention of Aero
and Xxxxxxx that Xxxxxxx'x obligations and liabilities hereunder
shall not be discharged except by Xxxxxxx'x full and complete
performance and satisfaction of such obligations and
liabilities, and then only to the extent of such performance.
16. Representations and Warranties by Xxxxxxx. Xxxxxxx
represents and warrants to Aero, with the understanding that
Aero is relying thereon, that at the time of execution hereof,
and during the effectiveness of this Guaranty, and until Xxxxxxx
has received written notice of the cancellation of this Guaranty
from Aero:
(a) Xxxxxxx has a financial interest in Xxxxx XX,
and in Xxxxx IV's purchase of the Purchased
Assets (as defined in the Asset Purchase
Agreement);
(b) Xxxxxxx has examined the Asset Purchase
Agreement, the Notes and all other documents and
instruments executed in connection, and approves
the same;
(c) Xxxxxxx has full power, authority and legal
right to execute and deliver this Guaranty;
(d) This Guaranty and Xxxxxxx'x execution, delivery
and performance hereunder are not in violation
of any laws and will not result in a default
under any contract, agreement, or instrument to
which Xxxxxxx is a party, or by which Xxxxxxx or
Xxxxxxx'x property may be bound;
(e) Xxxxxxx has agreed and consented to execute this
Guaranty and to guarantee payment (and not
merely the collectibility) of the Notes, at the
request of Xxxxx XX, and not at the request of
Aero;
(f) All financial accommodations by Aero to Xxxxx
XX, including but not limited to the Notes, or
any amounts due under the Notes and/or the Asset
Purchase Agreement, will be to the financial
interest and advantage of Xxxxxxx;
(g) This Guaranty, when executed and delivered to
Aero, will constitute a valid, legal and binding
obligation of Xxxxxxx, enforceable in accordance
with its terms;
(h) Xxxxxxx has established adequate means of ob-
taining information from Xxxxx XX on a continu-
ing basis regarding Xxxxx IV's financial
condition;
(i) Aero has made no representations to Xxxxxxx as
to the credit worthiness of Xxxxx XX.
17. Additional Obligations of Xxxxxxx. So long as this
Guaranty remains in effect, and until such time as Aero shall
have a first priority security interest in the Pledged Shares
subordinate to the interest of no other party, or (i) a Senior
Lender is in place, (ii) Purchaser's indebtedness to Gulf Coast
Bank has been satisfied and retired, and (iii) pursuant to the
Xxxxxxx Pledge Agreement, Aero shall have a security interest in
the Pledged Shares second in priority only to the security
interest therein of the Senior Lender (if such Senior Lender
requires a pledge of the Pledged Shares), Xxxxxxx has not, and
will not, without Aero's prior written consent, sell, lease,
assign, pledge, hypothecate, encumber, transfer or otherwise
dispose of all or substantially all of Xxxxxxx'x assets, which
consent shall not be unreasonably withheld. Xxxxxxx agrees to
keep adequately informed of any facts, events or circumstances
which might in any way affect Xxxxxxx'x risks under this
Guaranty.
18. Additional Documents; Financial Statements. On the
reasonable request of Aero, Xxxxxxx will, at any time, and from
time to time, execute and deliver to Aero any and all such
financial instruments and documents, and shall supply such
additional information, as may be necessary or advisable in the
opinion of Aero to obtain the full benefits of this Guaranty.
Xxxxxxx further agrees to provide Aero with such financial
statements and other related information, including, without
limitation, personal financial statements and personal income
tax returns, at such frequencies and in such detail as Aero may
reasonably request.
19. Assignment of the Notes. This Guaranty is for the
benefit of Aero and for such other person or persons as may from
time to time become or be the holder(s) of the Notes. This
Guaranty shall be transferable and negotiable with the same
force and effect and to the same extent as the Notes, it being
understood, acknowledged and agreed to by Xxxxxxx that, on any
transfer or assignment of the Notes, the holder thereof shall
have all of the rights and remedies granted to Aero under this
Guaranty. Xxxxxxx further agrees that on any transfer of the
Notes, Aero may transfer and deliver any and all collateral
securing repayment thereof (including, but not limited to, any
collateral provided by Xxxxxxx) to the transferee, and such
collateral shall secure the Notes and any amounts due under the
Mortgage in favor of such a transferee. Xxxxxxx additionally
agrees that, after any such transfer or assignment has taken
place, Aero shall be fully discharged from any and all liability
and responsibility to Xxxxx XX and Xxxxxxx with respect to such
collateral, and the transferee thereafter shall be vested with
all the powers, rights and responsibilities with respect to such
collateral.
20. Notices. All notices, requests, demands, directions
and other communications required or permitted under the provi-
sions of this Pledge Agreement, or otherwise with respect
hereto, shall be in writing and shall be: (i) mailed by first
class registered or certified mail, return receipt requested,
postage prepaid; or (ii) sent by next day business courier (such
as Federal Express or the like); or (iii) personally delivered;
or (iv) transmitted by fax, telegram or telex (with a hard copy
to follow within twenty-four (24) hours by first class
registered or certified mail, return receipt requested, postage
prepaid, or by next day business courier [such as Federal
Express or the like], or by personal delivery), as follows:
if to Aero, to:
Aero Services International, Inc.
000 Xxxxxx-Xxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxx & Xxxxxxx
One South Market Square Building
213 Market Street, P. O. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxxxxxx X. Xxxxxxx, Esquire
Facsimile: (000) 000-0000
if to Xxxxxxx, to:
Xxxxxxx X. Xxxxxxx
00 Xxxxxxxxx Xxxx
Xxxxx Xxxxxx Xxxxx, Xxx Xxxxxx 00000
Facsimile:
with a copy to:
Simon, Peragine, Xxxxx & Xxxxxxxx, L.L.P.
30th Floor Energy Centre
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address(es) or to the attention of such other
person(s) and officer(s) as the addressee of any such notice
shall have previously furnished to the sender in writing. Each
notice or communication which shall be transmitted in the manner
described above, or which shall be delivered to a telegraph
company, shall be deemed sufficiently given, served, sent, or
received for all purposes at such time as it is sent to the
addressee (with return receipt, delivery receipt [or with
respect to a telex the answer back, or a fax the activity
report] being deemed conclusive evidence of such mailing,
transmission or delivery), or at such time as delivery is
refused by the addressee on presentation.
21. Additional Guaranty or Surety. In the event Xxxxxxx
may, in the future, grant one or more additional guaranties of
the Notes, or with respect to any amounts due under the Notes
and/or the Asset Purchase Agreement, the execution of any
additional guaranties on the part of Xxxxxxx will not be
construed as a cancellation of this Guaranty; it being Xxxxxxx'x
full intent and agreement that this Guaranty shall remain in
full force and effect and shall be cumulative in nature and
effect.
22. Waiver of Trial by Jury. Xxxxxxx hereby waives trial
by jury in any action or proceeding to enforce this Guaranty.
It is agreed and understood that this wavier constitutes a
waiver of trial by jury of all claims against all parties to
such actions or proceedings, including claims against parties
who are not parties to this Guaranty. This waiver is knowingly,
willingly and voluntarily made by Xxxxxxx, and Xxxxxxx hereby
acknowledges that no representations of fact or opinion have
been made by any individual to induce this waiver of trial by
jury or to in any way modify or nullify its effect.
23. Confession of Judgment. IF ANY DEFAULT UNDER THE
NOTES OR UNDER THE INDEMNIFICATION PROVISIONS SET FORTH IN
SECTION 14.2 OF THE ASSET PURCHASE AGREEMENT SHALL OCCUR, THEN
XXXXXXX WILL KEEP AND OBSERVE THE SAME WITHIN THE TIME AND ON
THE TERMS THAT XXXXX XX AGREED TO KEEP AND PERFORM SUCH TERMS OR
COVENANTS, AND ON XXXXXXX'X FAILURE TO SO KEEP AND PERFORM SUCH
TERMS OR COVENANTS, IN ADDITION TO ALL OTHER REMEDIES PROVIDED
HEREUNDER, UNDER THE NOTES, OR THE ASSET PURCHASE AGREEMENT, OR
ANY OTHER DOCUMENTS EVIDENCING OR SECURING INDEBTEDNESS OF XXXXX
XX TO AERO, OR, AT LAW OR EQUITY, AND WITHOUT PRIOR NOTICE,
XXXXXXX AUTHORIZES AND EMPOWERS THE PROTHONOTARY, CLERK OR ANY
ATTORNEY OF ANY COURT OF RECORD WITHIN THE COMMONWEALTH OF
PENNSYLVANIA, THE UNITED STATES OR ELSEWHERE TO APPEAR FOR AND
CONFESS JUDGMENT AGAINST HIM IN FAVOR OF AERO, ITS SUCCESSORS OR
ASSIGNS, FOR SUCH SUMS AS SHALL HAVE BECOME DUE UNDER THIS
GUARANTY, TOGETHER WITH ATTORNEYS' COMMISSION OF FIVE PERCENT
(5%) FOR COLLECTION, BUT IN ANY EVENT NOT LESS THAN FIVE
THOUSAND DOLLARS ($5,000.00), WITH OR WITHOUT DECLARATION FILED,
WITH INTEREST AND COSTS OF SUIT, RELEASE OF ERROR, WITHOUT STAY
OF EXECUTION ON WHICH REAL OR PERSONAL PROPERTY MAY BE SOLD
WITHOUT DELAY AS PROVIDED BY LAW OF THE RULES OF CIVIL PROCEDURE
GOVERNING THE ENFORCEMENT OF JUDGMENTS, AND XXXXXXX WAIVES THE
RIGHT OF INQUISITION OF ANY REAL ESTATE THAT MAY BE LEVIED ON TO
COLLECT THE AMOUNT DUE UNDER A JUDGMENT OBTAINED BY VIRTUE
HEREOF, AND DOES HEREBY VOLUNTARILY CONDEMN THE SAME, AND
AUTHORIZES THE PROTHONOTARY OR CLERK TO ENTER THE WRIT OF
EXECUTION OF SAID VOLUNTARY CONDEMNATION, AND AGREES THAT SAID
REAL ESTATE MAY BE SOLD ON A WRIT OF EXECUTION; AND ALSO WAIVES
AND RELEASES ALL RELIEF FROM ANY AND ALL APPRAISEMENT, STAY,
EXEMPTION OR HOMESTEAD LAWS OF ANY STATE, NOW IN FORCE OR
ENACTED IN THE FUTURE. IF A TRUE COPY OF THIS GUARANTY SHALL BE
FILED IN ANY SUCH ACTION, VERIFIED BY AFFIDAVIT OF THE HOLDER OF
THIS GUARANTY, OR SOMEONE ACTING ON THE HOLDER'S BEHALF, IT WILL
NOT BE NECESSARY TO FILE THE ORIGINAL GUARANTY AS A WARRANT OF
ATTORNEY, ANY RULE OF COURT TO THE CONTRARY NOTWITHSTANDING. NO
SINGLE EXERCISE OF THE FOREGOING WARRANT AND POWER TO CONFESS
JUDGMENT SHALL BE DEEMED TO EXHAUST THE POWER, BUT IT SHALL
CONTINUE UNDIMINISHED AND MAY BE EXERCISED FROM TIME TO TIME AS
OFTEN AS AERO SHALL ELECT, UNTIL ALL SUMS PAYABLE BY XXXXXXX
HAVE BEEN PAID IN FULL.
THE PRECEDING PARAGRAPH SETS FORTH A WARRANT OF AUTHORITY
FOR AN ATTORNEY, PROTHONOTARY OR CLERK TO CONFESS JUDGMENT
AGAINST XXXXXXX. IN GRANTING THIS WARRANT OF ATTORNEY TO
CONFESS JUDGMENT, XXXXXXX HEREBY KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY, AND, AFTER CONSULTATION WITH LEGAL COUNSEL OF HIS
OWN CHOOSING, UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS HE HAS
OR MAY HAVE TO PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER
THE CONSTITUTIONS AND LAWS OF THE UNITED STATES OF AMERICA, THE
STATE OF LOUISIANA, AND ALL OTHER APPLICABLE JURISDICTIONS.
XXXXXXX UNDERSTANDS THE MEANING AND EFFECT OF THE WARRANT
OF ATTORNEY TO CONFESS JUDGMENT CONTAINED IN THE FOREGOING
PARAGRAPHS. SPECIFICALLY, XXXXXXX UNDERSTANDS, AMONG OTHER
THINGS, THAT (i) XXXXXXX IS RELINQUISHING THE RIGHT TO HAVE
NOTICE EXCEPT AS EXPRESSLY PROVIDED HEREIN, AN OPPORTUNITY TO BE
HEARD, AND THE RIGHT TO HAVE THE BURDEN OF PROOF OF DEFAULT REST
ON AERO PRIOR TO THE ENTRY OF JUDGMENT, (ii) THE ENTRY OF
JUDGMENT MAY RESULT IN A LIEN ON XXXXXXX'X PROPERTY, (iii)
XXXXXXX'X PROPERTY MAY BE TAKEN TO PAY THE PRINCIPAL AMOUNT,
INTEREST, LATE CHARGES, COSTS AND ATTORNEYS' FEES AS PROVIDED
ABOVE.
TO THE EXTENT PERMITTED BY LAW, ACTING UNDER REPRESENTATION
OF COUNSEL, XXXXXXX HEREBY IRREVOCABLY WAIVES ANY DUE PROCESS
RIGHTS TO PREJUDGMENT NOTICE AND HEARING AND/OR POST-SEIZURE
RELIEF ARISING IN CONNECTION WITH, OR IN ANY WAY RELATED TO,
AERO'S RIGHT TO CONFESS JUDGMENT AGAINST XXXXXXX AS HEREIN
PROVIDED, AND XXXXXXX ACKNOWLEDGES AND UNDERSTANDS THAT BY
WAIVING THESE RIGHTS, XXXXXXX HAS CONSENTED TO ALLOW AERO TO
ENTER A COURT JUDGMENT AGAINST XXXXXXX AND TO SEIZE XXXXXXX'X
PROPERTY WITHOUT PRIOR NOTICE OR HEARING IN ORDER TO SATISFY THE
OBLIGATIONS OWED BY XXXXXXX TO AERO.
XXXXXXX HEREBY KNOWINGLY AND IRREVOCABLY WAIVES TRIAL BY
JURY IN ANY ACTION OR PROCEEDING TO ENFORCE, OR OTHERWISE
INVOLVING, THIS GUARANTY. XXXXXXX FURTHER IRREVOCABLY CONSENTS
TO THE JURISDICTION AND VENUE OF ANY STATE OR FEDERAL COURT
SITTING IN OR FOR BUCKS COUNTY, PENNSYLVANIA.
24. Consent to Jurisdiction. Xxxxxxx hereby irrevocably
submits to the jurisdiction of the federal and state courts
sitting in or for Bucks County, Pennsylvania.
25. Xxxxxxx Represented by Counsel. Xxxxxxx has been
represented in the signing of this Guaranty, and in the making
of all waivers, consents, agreements and covenants herein
contained, by independent legal counsel, selected by Xxxxxxx.
Xxxxxxx has had the opportunity to discuss this Guaranty, and
all waivers, consents, agreements and covenants herein
contained, with such counsel, and Xxxxxxx understands the
significance and the consequences thereof, and acknowledges the
reasonableness of the same.
26. Cumulative Rights and Remedies. All rights and
remedies afforded to Aero by reason of this Guaranty, the Notes
and the Asset Purchase Agreement, or by law are separate and
cumulative and the exercise of one shall not in any way limit or
prejudice the exercise of any other such rights or remedies. No
delay or omission by Aero in exercising any such right or remedy
shall operate as a waiver thereof. No waiver of any rights and
remedies hereunder, and no modification or amendment hereof,
shall be deemed made by Aero unless in writing and duly signed
by an authorized officer of Aero. Any such written waiver shall
apply only to the particular instance specified therein and
shall not impair the further exercise of such right or remedy or
of any other right or remedy of Aero and no single or partial
exercise of any right or remedy hereunder shall preclude other
or further exercise thereof or any other right or remedy.
27. Miscellaneous Provisions. The following miscellaneous
provisions are a part of this Guaranty:
(a) Amendment. No amendment, modification, consent
or waiver of any provision of this Guaranty, and no consent to
any departure by Xxxxxxx therefrom, shall be effective unless
the same shall be in writing signed by Xxxxxxx and a duly autho-
rized officer of Aero, and then shall be effective only as to
the specific instance and for the specific purpose for which
given.
(b) Caption Headings. Caption headings of the sec-
tions of this Guaranty are for convenience purposes only and are
not to be used to interpret or to define the provisions hereof.
(c) Gender and Form. In this Guaranty, whenever the
context so requires, the reference to any gender applies to all
genders, and the singular includes the plural and the plural
includes the singular.
(d) Governing Law. This Guaranty shall be governed
and construed in accordance with the substantive law of the
Commonwealth of Pennsylvania, including its statutes of
limitation but without regard to its rules concerning conflict
of laws.
(e) Severability. If any provision of this Guaranty
is held to be illegal, invalid or unenforceable under present or
future laws during the effectiveness of this Guaranty, such
provision shall be fully severable; and, this Guaranty shall be
construed and enforceable as if the illegal, invalid or
unenforceable provision had never comprised a part of it, and
the remaining provisions of this Guaranty shall remain in full
force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom.
Further, in lieu of such illegal, invalid or unenforceable
provision, there shall be added automatically as a part of this
Guaranty, a provision as similar in terms to such illegal,
invalid or unenforceable provision as may be possible and legal,
valid and enforceable.
(f) Successors and Assigns. This Guaranty shall
inure to the benefit of, and be enforceable by, Aero and its
successors and assigns, and shall be binding on, and enforceable
against, Xxxxxxx and Xxxxxxx'x successors and assigns.
XXXXXXX ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS
GUARANTY AND AGREES TO ITS TERMS AND TO HAVING BEEN REPRESENTED
BY COUNSEL IN THE REVIEW OF ITS TERMS. IN ADDITION, XXXXXXX
UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE ON XXXXXXX'X
EXECUTION AND DELIVERY OF THIS GUARANTY TO AERO AND THAT THIS
GUARANTY WILL CONTINUE UNTIL TERMINATED. NO FORMAL ACCEPTANCE
BY AERO IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE.
IN WITNESS WHEREOF, the undersigned Xxxxxxx, intending to
be legally bound hereby, has executed this Guaranty as of the
date first above written.
Xxxxx Xxxx Xxxxxxx X. Xxxxxxx
Witness Xxxxxxx X. Xxxxxxx
