EXHIBIT 10.10
GUARANTY AGREEMENT
WHEREAS, Xxxxxxxxxx.Xxx, Inc., a Texas corporation, whose address is
00000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000, (the "Seller") has
entered into a Promissory Note dated December 13, 2001, (the "Note") with Pro
Squared, Inc. with offices at 0000 Xxxxx Xxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxx
00000 (hereinafter " PRO "), pursuant to which Seller has incurred and is
expected in the future to incur certain obligations to PRO;
WHEREAS, the undersigned (hereinafter whether one or more,
"Guarantor") is a shareholder of the Seller or a "subsidiary," "parent" or
"affiliated corporation or other entity" (each of such terms as defined in
Article 1302-2.06C of the Texas Miscellaneous Corporation Laws Act) of the
Seller in that the undersigned owns or controls a majority of the capital stock
of Xxxxxxxxxx.Xxx, Inc., and/or this guaranty reasonably may be expected to
benefit, directly or indirectly, the Guarantor; and
WHEREAS, in consideration of and to induce PRO to continue to
sub-contract the work of Seller pursuant to the Note and to make other financial
accommodations to Seller, whether pursuant to the Note or otherwise, Guarantor
has and does hereby guarantee the payment of all obligations of Seller to PRO
to the extent herein and hereafter stated;
NOW, THEREFORE, KNOW ALL PERSONS BY THESE PRESENTS: That in
consideration of the premises:
1. Guarantor unconditionally guarantees the prompt payment to PRO
, its successors and assigns, of all amounts up to not more than $50,000.00
owing by Seller to PRO with respect to the Note together with any and all
amendments or modifications thereof and all amounts owing by Seller to PRO
outside of the Note, whether with or without notice to Guarantor, together with
such interest as may accrue pursuant to the Note on amounts outstanding under
the Note or any other interest that may accrue, according to its tenor and
effect, and reasonable attorney's fees and other expenses if such claim, demand
or indebtedness be placed with an attorney for collection, or if collected
through the probate or bankruptcy court, receivership proceedings or any
proceeding in federal court, and reorganization in any federal court proceeding,
or suit, or suits. The obligations described in this paragraph 1 are herein
referred to as the "Obligations".
2. This guaranty is an absolute, complete and continuing one, and
no notice of the Obligations need be given to the Guarantor. Seller and PRO
may rearrange, amend, and/or modify the Obligations without notice to the
Guarantor and in such event Guarantor will remain fully bound hereunder on such
Obligations. The Guarantor hereby expressly waives presentment, demand, protest
and notice of protest and dishonor on any and all forms of such indebtedness,
and also notice of acceptance of this guaranty, acceptance on the part of PRO
being conclusively presumed by its request for this guaranty and delivery of the
same to it.
3. Guarantor authorizes PRO , without notice or demand and without
affecting its liability hereunder, to take and hold security for the payment of
this guaranty and/or the Obligations guaranteed, and exchange, enforce, waive
and release any such security; and to apply such security and direct the order
or manner of sale thereof as PRO in its discretion may determine; and to obtain
a guaranty of the Obligations from any one or more other persons, corporations
or entities whomsoever and at any time or times to enforce, waive, rearrange,
modify, limit or release such other persons, corporations or entities from their
obligations under such guaranties.
4. Guarantor waives any right to require PRO to (a) proceed
against the Seller, (b) proceed against or exhaust any security held from the
Seller, or (c) pursue any other remedy in PRO 's power whatsoever. Guarantor
waives any defense arising by reason of any disability, lack of corporate
authority or power, or other defense of the Seller or any other guarantor of the
Obligations, and shall remain liable hereon regardless of whether Seller or any
other guarantor be found not liable thereon for any reason. Until all the
Obligations shall have been paid in full, Guarantor shall have no right of
subrogation, and waives any right to enforce any remedy which PRO now has or
may hereafter have against Seller, and waives any benefit of and any right to
participate in any security now or hereafter held by PRO . Guarantor expressly
waives all rights, if any, which Guarantor may have under Texas Business and
Commerce Code Section 34.02.
5. Guarantor will within five (5) days from date of notice from
PRO of Seller's failure to pay any of the Obligations when due, pay to PRO the
amount due and unpaid by said Seller. The failure of PRO to give notice shall
not in any way release Guarantor hereunder. Said notice will not be delivered,
nor demand made before one year from the date of the Promissory Note executed by
Seller (December 13, 2001).
6. It is expressly agreed that the liability of Guarantor for the
payment of the Obligations secured hereby shall be primary and not secondary.
7. In all instances herein, the singular shall be construed to
include the plural and the masculine to include the feminine.
8. This guaranty is and shall be in every particular available to
the successors and assigns of PRO and is and shall always be fully binding upon
the heirs, administrators, successors and assigns of Guarantor.
9. Performance of this guaranty shall be solely within Xxxxxx
County, Texas. As such, venue is proper in Xxxxxx County, Texas under the
provisions of the Texas Civil Practices & Remedies Code.
10. To the maximum extent permitted by applicable law, all issues
relating to this guaranty shall be construed according to the laws of the State
of Texas. For purposes of any suit relating to this guaranty, Guarantor and PRO
submit themselves to the jurisdiction of any court sitting in the State of Texas
and further agree that venue in any suit arising out of this guaranty shall be
fixed in Xxxxxx County, Texas. Final judgment in any suit shall be conclusive
and may be enforced in any jurisdiction within or without the United States of
America, by suit on the judgment, a certified or exemplified copy of which shall
be conclusive evidence of such liability.
11. PRO agrees to use commercial best efforts to liquidate all
Xxxxxxxxxx.xxx, Inc. collateral prior to making demand under this Guaranty.
Further, PRO agrees in consideration of this Guaranty to make no demand on
Guarantor before December 13, 2002.
12. This guaranty represents the entire agreement between the
parties with respect to the subject matter contained herein, and may not be
amended or modified except by written instrument executed by Guarantor and PRO .
This guaranty supersedes and replaces any prior agreement among the parties,
oral or written with respect to the subject matter hereof. No representations,
whether oral or written, are being relied upon which are not expressly set forth
in this guaranty or in the Note. The parties recognize that any oral
representations and prior written representations are "merged" into this
guaranty and the Note, and no reliance can be placed thereon.
13 Should a court of competent jurisdiction rule that any
consideration paid hereunder is in fact or in law to be treated as interest, in
no event shall Guarantor be obligated to pay that interest at a rate in excess
of the maximum amount permitted by law, and all agreements, conditions, or
stipulations contained herein, if any, which may in any event or contingency
whatsoever operate to bind, obligate, or compel Guarantor to pay a rate of
interest exceeding the maximum rate of interest permitted by law shall be
without binding force or effect at law or in equity to the extent only of the
excess of interest over such maximum rate of interest permitted by law. Also in
such event, PRO may "spread" all charges characterized as interest over the
entire term of all transactions with Guarantor or Seller and will refund to
Seller or Guarantor the excess of any payments made over the highest lawful
rate. It is the intention of the parties hereto that in the construction and
interpretation of this guaranty, the foregoing sentence shall be given
precedence over any other agreement, condition, or stipulation herein contained
which is in conflict with same.
WITNESS THE EXECUTION HEREOF, this the 13 day of December, 2002.
Address:
Name: /s/ Xxxxxxx X. Xxxxxxx
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