EXHIBIT 10.13
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GUARANTY OF OBLIGATIONS
OF TENANT PURSUANT TO EQUIPMENT LEASE
In consideration of the execution by 1607 COMMERCE LIMITED
PARTNERSHIP, as landlord ("Landlord"), of that certain Equipment Lease dated
September 8th, 2003, (the "Lease") between Landlord, as landlord, and PLASTIC
PALLET PRODUCTION, INC, a corporation, as tenant ("Tenant"), and as an
inducement to Landlord to execute the Lease, the undersigned hereby jointly and
severally guarantee to Landlord and to its successors and assigns, the payment
by Tenant when due of the rent and all other sums provided for in the Lease and
the due performance by Tenant of all of the provisions of the Lease and any and
all modifications or extensions thereof. In the event of Tenant's failure, or
the failure of its successors or assigns, if any, to pay said sums or the render
any other performance required of Tenant, when due, the undersigned will
forthwith pay all amounts that may be due and will forthwith perform all of the
provisions of said Lease to be performed by Xxxxxx and pay all damages that may
result from the non-performance thereof by Xxxxxx. The undersigned hereby
consents to and waives notice of any extension of time for performance which
Landlord may grant to Tenant and to any modifications or amendments of said
Lease or extensions or renewals of the term thereof to which Landlord and
Tenant, or their successors and assigns, may agree.
The undersigned waives notice of acceptance of this Guaranty and of
any default in the payment of rent, additional rent or any other amounts
contained or reserved in said Lease, and notice of any breach or non-performance
of any of the covenants, conditions or agreements contained in said Lease.
The undersigned further agrees that the liability under this
Guaranty of the undersigned shall be primary, and that in any right of action
which may accrue to the Landlord, their successors or assigns, under said Lease
or this Guaranty, Landlord and their successors or assigns, at their option may
proceed against the undersigned without having taken or commenced any action or
obtained any judgment against Tenant and without applying any security deposit
or other property of Tenant or any other person held as collateral security for
the performance of the obligations of Tenant under the Lease or otherwise to the
discharge of the obligations of the Tenant under the Lease. The undersigned
waives any right to require Landlord to pursue any remedy in Landlord's power
against Xxxxxx and waives as defenses to the obligations hereunder the pleadings
or defense of any statute of limitations. Any partial payment, performance or
other circumstance which operates to toll any statute of limitations as to
Tenant shall operate to toll the statute of limitations as to the undersigned
under this Guaranty.
The undersigned agrees that, in the event Tenant shall become
insolvent or shall be adjudicated a bankrupt, or shall file a petition for
reorganization, arrangement or similar relief under any present or future
provision of the Federal Bankruptcy Code, or any other act for the relief of
debtors or any similar acts or law, or if such a petition filed by creditors of
Tenant shall be approved by a Court, or if Tenant shall seek a judicial
readjustment of the rights of its creditors under any present or future federal
or state law or if a receiver of all or part of Tenant's property and assets is
appointed by any state or federal court, and in any such proceeding the Lease
shall be terminated or rejected, or the obligations of Tenant thereunder shall
be modified, the undersigned will immediately (a) pay to Landlord, or their
successors or assigns, an amount equal to all unpaid rent and other amounts
accrued under the Lease to the date of such termination, rejection or
modification, plus (b), at the option of Landlord, their successors and assigns,
either (i) pay to Landlord, or their successors or assigns, an amount equal to
the then present cash value of the rent and additional rent which would have
been payable under the Lease for the unexpired portion of the term of the Lease
if it had not been terminated, rejected or modified, less the then cash rental
value of the premises which are the subject of the Lease for such unexpired
portion of the term of the Lease, taking into consideration the Lease as
modified, if such is the case, or (ii) if the Lease is terminated or rejected,
execute and deliver to Landlord, or their successors or assigns, a new lease
with the undersigned as tenant for the balance of the term and upon the same
terms and conditions as the terminated or rejected Lease, and will pay Landlord
interest on the amounts which become payable and are designated in (a) and
(b)(i) above at 18% per annum from the date of such termination, rejection or
modification to the date of payment, including any period of time after any
breach of default hereunder.
Neither the obligation of the undersigned to make payment in
accordance with the terms of the Guaranty nor any remedy for the enforcement
thereof shall be impaired, modified, changed, released or limited in any manner
whatsoever by any impairment, modification, change, release or limitation of the
liability to the Tenant, or its estate in bankruptcy, or otherwise, or of any
remedy for the enforcement thereof, resulting from the operation of any present
of future provision of the Federal Bankruptcy Code, or of any other statute, or
from the decision of any Court.
Landlord may, without notice to or demand upon the undersigned and
without affecting the obligation of the undersigned hereunder, take and hold
security for the obligations under this Guaranty and the Lease, add to, exchange
or release any such security, apply or realize upon such security as Landlord
determines and release, add or substitute any one or more guarantors should more
than one person or entity be or become liable on this Guaranty. Landlord may
exercise any right or remedy it may have against Tenant or any security held by
Landlord without impairing the obligations of the undersigned on this Guaranty,
and the undersigned waives any defense arising out of the absence, impairment or
loss of any right of reimbursement, subrogation or other remedy of the
undersigned against Tenant or any such security, whether resulting from any
election by Landlord or otherwise.
The undersigned assumes the responsibility to keep informed of the
financial condition of Tenant under the Lease and all other circumstances
bearing upon the risk of non-payment or non-performance by Xxxxxx under the
Lease, and agrees that, absent a request for such information by the
undersigned, Landlord shall have no duty to advise the undersigned of
information known to Landlord regarding such condition or circumstances. This
Guaranty shall bind the undersigned and his successors and assigns.
Should any action at law or in equity be filed or instituted to
construe the terms, for the breach of, to enforce the terms of, or to interpret
or declare the rights of the parties under this
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Guaranty, the successful party in such action shall, in addition to all other
relief afforded to the successful party, recover its costs and expenses (whether
or not taxable) and reasonable attorneys' fees incurred in such action.
Landlord may, with or without notice to the undersigned, assign this
Guaranty in whole or in part.
This Guaranty is secured by a Security Agreement and Stock Pledge
Agreement of even date herewith.
All notices required or permitted hereunder or at law shall be in
writing and delivered by personal delivery or certified or registered mail,
return receipt requested. Notices to Landlord shall be to the address specified
in the Lease and notices to the undersigned shall be to the undersigned's
address set forth below. Any notice personally delivered shall be effective upon
delivery. Any notice sent by registered or certified mail, postage prepaid and
properly addressed shall be effective on the date of mailing. Landlord or the
undersigned may change their address for notices by notice to the other in the
manner specified in this paragraph.
EXECUTED this 8th day of September, 2003.
PALWEB CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, President
Notice Address:
0000 X. 00xx Xx.
Xxxxx, XX 00000
GREYSTONE MANUFACTURING, L.L.C.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx, President
Notice Address:
0000 X. 00xx Xx.
Xxxxx, XX 00000
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