LEASE GUARANTY AGREEMENT
FOR AND IN CONSIDERATION of the agreement of Xxxxxxx Xxxxxxx Flourie,
Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxxxx Xxxxxx Xxxxxxx Xxxxxxx, Xxxxx Xxxxxxx
Xxxxxxx Flourie and Carlo Xxxxxxx Xxxxxxx Xxxxxx ("Lessor and CoastCast Tijuana,
S. de X. X. de C.V. ("Lessee"), dated January 5, 1998, and further, to induce
Lessor to enter into the Lease, and for other good and valuable consideration,
CoastCast Corporation, Inc. ("Guarantor"), a California corporation,
unconditionally and irrevocably guarantees to Lessor the prompt, full, and
complete performance of all of the terms, covenants, and provisions of, the
Lease, and the full and prompt, payment of all rentals, deposits, and other sums
now or hereafter becoming due and payable pursuant to the terms and provisions
of the Lease, and any and all renewals, extensions, amendments, or modifications
of the Lease (all of the foregoing are collectively the "Obligations").
In the event any sums owing on any of the Obligation shall become due,
Guarantor shall immediately pay all of such sums due to Lessor without demand or
notice whatsoever. In the event any of the terms, covenants or provisions of
the Lease are not performed promptly saw therein provided, Guarantor shall
immediately so perform such terms, covenants, or provisions without any demand
or notice whatsoever.
It shall not be necessary or required in order to enforce Guarantor's
obligations under this Lease Guaranty Agreement that Lessor shall have made
demand for payment or performance upon Lessee or any other person liable on
or for the Obligations for payment to Lessee or to any other person liable
thereon or have given notice to Lessee or any other person liable thereon of
non-payment or non-performance of said Obligations, or any other notice
whatsoever. It shall not be necessary or required, and Guarantor shall not
be entitled to require, that Lessor file suit or proceed to obtain or assert
a claim against Lessee for the Obligations, or any part thereof, or file suit
or proceed to obtain or assert a claim against any other person liable for
the Obligations, or any part thereof, or make any effort to collect or
enforce the performance of the Obligations, or any part thereof, from any
such other person liable for the Obligations, or any part thereof, before or
as a condition of enforcing the liability of Guarantor under this Lease
Guaranty Agreement. Guarantor waives any right to the benefit of or to
require or control application of any security or the proceeds of any
security now existing or hereafter obtained by Lessor as security for the
Obligations or any dispersements, payments, or other property at any time
received by, paid to, or in the possession of Lessor. Guarantor shall not
have any recourse or action against Lessor by reason of any action Lessor may
take or omit to take in connection with security or any other guaranty at any
time existing thereof.
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This is a guaranty of payment and performance and not merely of collection.
No renewal, extension, or rearrangement of any other indulgence with
respect to the Obligations, or any part thereof, no release of or substitution
for any security or other guaranty now or hereafter held by Lessor for
Obligations, or of any part thereof, no failure to perfect any lien or security
interest, no impairment of collateral, no release of Lessee or any other person
primarily or secondarily liable on or for any of the Obligations, or any part
thereof, no delay in enforcement of the payment or performance of the
Obligations, or any part thereof, and no delay or omission or power with respect
to the Obligations, or any part thereof, or any security therefor or guaranty
thereof or under this Lease Guaranty Agreement shall in any manner impair the
rights of Lessor or the obligations and liability of Guarantor Hereunder.
Guarantor further waives notice of the acceptance of this guaranty and
waives grace, demand, notice of default, notice of intent to accelerate
maturity, notice that Lessor will not accept late payments, notice of
acceleration maturity, presentment for acceleration, presentment for payment,
protest notice of pretest and of dishonor, and diligence on taking any action
with respect to this Lease Guaranty Agreement or said Obligations or any
property, rights, or interests which secure this Lease Guaranty Agreement or
said Obligations. Guarantor consents to and waives notice of any and all
renewals, extensions, and rearrangements of said Obligations and to the release
of all or any part of any property, rights, or interests which secure this Lease
Guaranty Agreement or said Obligations or any person liable for any of the
Obligations.
The obligations, covenants, agreements and duties of Guarantor under
this Lease Guaranty Agreement shall in no way be affected or impaired by (i)
the involuntary or involuntary bankruptcy, assignment for the benefit of
credits, reorganization or similar proceeding affecting Lessee or any of
LESSEE's assets, or (ii) the release of Lessee from the performance or
observance of any of the agreements, covenants, terms or conditions contained
in the documents evidencing the Obligations by LESSEE's bankruptcy,
receivership, or similar protective filing. This Lease Guaranty Agreement
shall continue to be effective or be reinstalled, as the case may be, if at
any time any payment or performance of any of the Obligations is rescinded or
must be otherwise returned by Lessor in connection with the insolvency,
bankruptcy or reorganization of Lessee or otherwise, all as though such
payment had not been made.
Guarantor hereby irrevocable waives any and all claims or other rights
which it may now have or hereafter acquire against Lessee or any other
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guarantor of the Obligations that arise from the existence, payment, performance
or enforcement of Guarantor's liabilities or Obligations under this Lease
Guaranty Agreement, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification, and any right to
participate in any claim or remedy of Lessor against Lessee or any other
guarantor of the Obligations or any collateral which Lessor now has or hereafter
acquires, whether or not such right, claim or remedy arises in equity or under
contract, statute or common law including without limitation, the right to take
in receipt from Lessee, directly or indirectly, in cash or other property or by
setoff or in any other manner, payment or security on account of such right,
claim or remedy. Without limiting the generality of and in addition to the
foregoing, Guarantor hereby irrevocably waives any and all claims or other
rights it may now have or hereafter acquire against Lessor, Lessee or any other
person under the laws of the State of California. If any amount shall be paid
to Guarantors in violation of this paragraph and the Obligations shall not have
been paid in full, such amount shall be deemed to have been paid to Guarantor
for the benefit, and held in trust for the benefit of Lessor and shall
forthwith be paid to Lessor to be credited and applied upon the Obligations.
This Lease Guaranty Agreement is intended for and shall inure to the
benefit of Lessor and each and every other person who shall from time to time be
or become the owner, assignee or holder of the Lease or any of the Obligations
hereby guaranteed, and each and every reference herein to "Lessor" shall also
include and refer to each and every successor or assignee of Lessor at any time
holding or owing any part of or interest in any part of the Lease or the
Obligations hereby Guaranteed. This Lease Guaranty Agreement shall be
transferable and negotiable, in whole or in part, by Lessor and its assigns,
with the same force and effect and to the same extent that the Lease or the
Obligations are transferable. Guarantor expressly waives notice of transfer or
assignment of the Lease or the Obligations, or any part thereof, or of the
rights of Lessor Hereunder.
Any proceeding under this Lease Guaranty Agreement may be brought by Lessor
as to some, but less than all, Obligations, at LESSOR's sole discretion, and any
such proceeding brought by Lessor with respect to some, but less than all,
Obligations shall not in any manner whatsoever affect, waive, diminish, or
impair the rights of Lessor to thereafter institute proceeding as to any or all
Obligations not therefore the subject of any proceeding under this Lease
Guaranty Agreement, either simultaneously or serially, until all Obligations
have been fully and finally paid and discharged. The exercise of any right or
remedy granted to or conferred upon Lessor in this Lease Guaranty Agreement or
in any
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instrument, document, or other writing now or hereafter evidencing, securing, or
otherwise pertaining to said Obligations or this Lease Guaranty Agreement shall
be wholly discretionary with Lessor, and such right or remedy shall not in any
manner affect, impair, or diminish the obligations and liabilities of Guarantor
or any person liable on said Obligations, or constitute or be deemed a waiver of
any such right or remedy or any other past, present, or future right or remedy
of Lessor.
This Lease Guaranty Agreement and the obligations of Guarantor hereunder,
and all of the terms, provisions, covenants, warranties, waivers, and agreements
contained herein or in any writing evidencing, securing, or otherwise pertaining
to the Obligations shall be binding upon Guarantor and its successors, legal
representatives and assigns.
Any notice or demand to Guarantor or in connection herewith may be given
and shall conclusively be deemed and considered to have been given and received
upon the deposit thereof in writing in the U.S. Mails, duly stamped and address
to such Guarantor at the address of Guarantor shown below or at Guarantor's most
recent address as then shown by the records of Lessor, but actual notice,
however, given or received, shall always be effective. The last preceding
sentence shall not be construed in anywise to affect or impair any waiver of
notice or demand herein provided or to require giving of notice of any kind
whatsoever to or upon Guarantor in any situation or for any reason.
Guarantor shall pay to Lessor its collection and enforcement costs,
including reasonable attorney's fees, if the Obligations are not paid or
performed by Guarantor when due as required herein or if this Lease Guaranty
Agreement is enforced through any judicial proceedings whatsoever. In addition,
Guarantor shall pay collection and enforcement costs, including reasonable
attorney's fees, that Lessor has incurred in collecting or enforcing or
attempting to collect or enforce the Obligations from Lessee.
THIS LEASE GUARANTY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED, AND
INTERPRETED UNDER THE LAWS OF THE STATE OF CALIFORNIA, UNITED STATES OF AMERICA.
EXECUTED EFFECTIVE AS OF THE 14 DAY OF AUGUST, 1998.
By: /s/ Xxxxxxx X. Xxxx
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PRINTED NAME: Xxxxxxx X. Xxxx
TITLE: Chief Executive Officer
