G U A R A N T Y
WHEREAS, PARQUE INDUSTRIAL MEXICALI, S.A. DE C.V., a Mexican Corporation
(hereinafter referred to as PIMSA) is the owner of certain real property in the
Industrial Park of Mexicali; and
WHEREAS, this Guaranty is given by COASTCAST CORPORATION (hereinafter referred
to as the GUARANTOR) to induce PIMSA to enter into a Lease Agreement, with
COASTCAST CORPORATION, S.A., a Mexican Corporation (hereinafter referred to as
COMPANY), dated December 16, 1998, for the Leased Property located on Xxxx 0, 0,
0, 0, 0, 0, 0 and 8 and a portion of Xxx 0 xx Xxxxx 0 xx xxx Xxxxxxxx
Xxxxxxxxxx Xxxx X.
NOW, THEREFORE, in consideration of the foregoing, it is agreed:
1. OBLIGATION OF THE GUARANTOR. The GUARANTOR unconditionally guarantees to
PIMSA, its successors and assigns, the prompt, full and complete payment and
performance to PIMSA of all of the conditions, covenants, obligations,
liabilities and agreements of COMPANY as set forth in the Lease Agreement,
attached hereto as EXHIBIT "A" or any extension thereof between PIMSA and
COMPANY. This Guaranty extends to and includes any and all interest due or to
become due, together with all attorneys' fees, costs and expenses of collection
incurred by PIMSA in connection with any matter covered by this Guaranty.
2. TERM OF GUARANTY. The liability of the GUARANTOR shall continue until
payment is made and performance given pursuant to every obligation of the
COMPANY now due or hereafter to become due in accordance with the terms of the
Lease Agreement or any extension thereof, between PIMSA and COMPANY, and until
payment is made of any loss or damage incurred by PIMSA with respect to any
matter covered by this Guaranty. This Guaranty shall be irrevocable. Nothing
contained herein shall impose upon GUARANTOR any greater or different liability
that is or may be imposed on said COMPANY under the Lease Agreement except
GUARANTOR's liability to pay PIMSA attorneys' fees, costs and expenses of
collection incurred in proceeding against GUARANTOR hereunder.
3. CONSENT TO PIMSA'S ACTS. The GUARANTOR consents, without affecting the
GUARANTOR'S liability to PIMSA hereunder, that PIMSA may, without notice to or
consent of the GUARANTOR, upon such terms as it may deem advisable:
a) Extend, in whole or in part, by renewal or otherwise anytime of
payment or performance on the part of COMPANY, provided for in the Lease
Agreement;
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b) Release, surrender, exchange, modify, impair or extend any period or
duration, or any time for performance, or payment on the part of COMPANY,
required by the Lease Agreement; and
c) Settle or compromise any claim of PIMSA against COMPANY or against any
other person, firm or corporation whose obligation is held by PIMSA as security
for COMPANY's obligation to PIMSA under the Lease Agreement.
The GUARANTOR hereby ratifies and affirms any such extension renewal,
release, surrender, exchange, modification, impairment, settlement or compromise
and all such acts shall be binding upon GUARANTOR who hereby waives all
defenses, counterclaims or offsets which GUARANTOR might have solely by reason
thereof.
4. WAIVER OF GUARANTOR. GUARANTOR waives:
a) Notice of acceptance of this Guaranty by PIMSA.
b) Notice of presentment, notice of nonperformance, notices of dishonor
and notices of the existence, creation or incurring of new or additional
indebtedness or obligations, demands for payment or performance or protest of
any obligations of COMPANY to PIMSA under the Lease Agreement;
c) Notice of the failure of any person, firm or corporation to pay to
PIMSA any indebtedness held by PIMSA as collateral security for any obligation
of COMPANY to PIMSA under the Lease Agreement;
d) Any right to require PIMSA to (I) proceed against COMPANY; (II)
proceed against or exhaust any security or other lien or right of or held by
PIMSA from COMPANY; or (III) pursue any other remedy in the power of PIMSA
whatsoever;
e) Any defenses, offsets or claims whatsoever which COMPANY may have
against PIMSA;
f) Any defenses, offsets or claims arising from any governmental action
or intervention which wholly or partially frustrates the performance of the
Lease Agreement by the COMPANY or frustrates any or all of the purposes for
which the Lease Agreement was entered into;
g) Any defects in perfection of the assignment and pledge of the rents by
failure to record the Lease Agreement or any instrument of assignment and pledge
in the Public Registry under Mexican Law.
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5. REPRESENTATIONS BY GUARANTOR. GUARANTOR represents and warrants that at
the time of execution and delivery of this Guaranty, nothing exists to impair
the effectiveness of the liability of GUARANTOR to PIMSA hereunder, or the
immediate taking effect of this GUARANTY as the sole agreement between the
GUARANTOR and PIMSA with respect to guaranteeing all of COMPANY's obligations to
PIMSA under the Lease Agreement. GUARANTOR further represents and warrants that
GUARANTOR is authorized to execute and deliver this Guaranty and that the person
executing this Guaranty is authorized to execute the same for and on behalf of
GUARANTOR.
6. REMEDY OF PIMSA. In the event of any default on the part of COMPANY as
defined in the Lease Agreement, PIMSA may at its option proceed in the first
instance against GUARANTOR, jointly and severally, to collect any obligation
covered by this Guaranty, without first proceeding against COMPANY or any other
person, firm or corporation and without first resorting to any property at any
time held by PIMSA as collateral security.
7. MODIFICATION OF AGREEMENT. The whole of this Guaranty is herein set
forth and there is no verbal or other written agreement and no understanding
or custom affecting the terms hereof. This Guaranty can be modified only by
a written instrument signed by the party to be charged therewith.
8. NON-WAIVER BY PIMSA. The liability of GUARANTOR under this Guaranty
shall not be affected by the insolvency of COMPANY or PIMSA, at any time or by
the acceptance by PIMSA of security, notes, acceptance, drafts or checks or by
assignment, foreclosure or other dispositions thereof by PIMSA, at any time, or
by PIMSA presenting or proving for allowance any secured or unsecured claim or
demand or by PIMSA's acceptance of any composition, plan of reorganization,
settlement, compromise, dividend, payment or distributions; and GUARANTOR shall
not be entitled to claim any right in or benefit by reason of, any such
composition, plan of reorganization, settlement, compromise, dividend, payment
or distribution, or in or by reason of any security held by PIMSA, or the
proceeds or other disposition thereof; unless and until all of said obligations,
liabilities and indebtedness, together with interest, attorneys' fees and costs
due to PIMSA under this Guaranty or under the Lease Agreement, shall have been
paid in full. Nothing contained in this Agreement shall alter any of the rights
or remedies of PIMSA against COMPANY. GUARANTOR authorizes PIMSA, without
notice or demand and without affecting the liability of GUARANTOR hereunder,
from time to time to:
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a) Renew, compromise, extend, accelerate, or otherwise change the time
for payment of, or otherwise change the terms of the indebtedness or any part
thereof under the Lease Agreement, including increase or decrease of any amounts
due thereunder or any rate of interest specified therein;
b) Take and hold security for the payment of this Guaranty or the
indebtedness guaranteed, and exchange, enforce, waive, release, any such
security;
c) Apply such security and direct the order or manner of sale thereof, as
PIMSA in its discretion may determine; and
d) Release or substitute any one or more of COMPANY or GUARANTOR. PIMSA
may assign this Guaranty in whole or in part. GUARANTOR may assign this
Guaranty in whole or in part, provided that GUARANTOR shall remain liable for
its obligations hereunder unless released therefrom by PIMSA or its successors
and provided further that GUARANTOR shall first give PIMSA sixty (60) days prior
written notice.
9. APPLICABLE LAW. This Guaranty is entered into in the County of Imperial,
State of California, and the rights and obligations of the parties hereunder
shall be construed and enforced in accordance with the laws of the State of
California. The parties further agree that in the event a dispute should arise
as to the obligations of either party hereto, the parties expressly waive the
right to bring or remove any action in or to the otherwise appropriate Federal
District Court. Such judicial actions shall be pursued exclusively in the
appropriate State forum.
10. MISCELLANEOUS PROVISIONS. GUARANTOR agrees to pay to PIMSA a reasonable
attorneys' fee and all other costs and expenses which may be incurred by PIMSA
in the collection or efforts to collect the indebtedness owed by COMPANY to
PIMSA pursuant to the Lease Agreement or in the collection or efforts to collect
or enforcement of the sums due under this Guaranty, provided that if GUARANTOR
is the prevailing party in any action or proceeding to enforce this Guaranty or
collect any amounts allegedly due hereunder, PIMSA shall pay GUARANTOR a
reasonable attorneys' fee and other costs and expenses which may be incurred by
GUARANTOR. The paragraph headings of this Guaranty are not part of this
Guaranty and shall have no effect upon the construction and interpretation of
any part hereof and are inserted herein for convenience only. In the event that
any provision hereof or any portion of any provision hereof shall be deemed to
be invalid or unenforceable, such invalidity or unenforceability shall not
affect any other portion of said provision or any other
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provision herein. All remedies herein conferred upon PIMSA shall be cumulative
and no one exclusive of any other remedy conferred herein or by law or equity.
Time is of the essence in the performance of each and every obligation herein
imposed. GUARANTOR represents and warrants that it has all requisite power and
authority to enter into this Guaranty agreement and to carry out the provisions
and conditions of this Guaranty agreement and that neither the execution or
delivery of this agreement or the consummation hereof nor the performance of the
terms hereof will conflict with or result in a breach of the terms, conditions
or provisions of or constitute a default under or result in the creation of any
lien pursuant to any other agreement or instrument under which GUARANTOR is
obligated.
11. ACKNOWLEDGEMENT OF ASSIGNMENT. In the event this Guaranty is assigned to a
bank or other lending institution, the GUARANTOR shall furnish to such entity a
letter stating that the GUARANTOR acknowledges receipt of notice of an
assignment by PIMSA of said Guaranty; that said Guaranty is in full force and
effect; that no changes to the Guaranty as originally executed have been made;
that the GUARANTOR will not enter into any modification of this Guaranty without
first obtaining prior written approval thereof from said lender; that said
lender may rely solely upon the Guaranty with respect to the lender's right to
receive the rents in accordance with the terms of the Lease Agreement; and that
all payments made thereafter shall be made to the lender or its assigns at such
times not in conflict with those permissible under the Lease Agreement, at such
places and/or in United States Dollars as directed by the lender or its assigns.
12. NOTICE OF DEFAULT. Notwithstanding any provision to the contrary herein
expressed or implied, no claim of default on the part of COMPANY or on the part
of GUARANTOR shall be made hereunder unless and until notice of such defaults
has been given to COMPANY as provided in the Lease Agreement and a copy thereof
mailed to GUARANTOR by first class certified or registered mail, postage prepaid
at: 0000 Xxxx Xxxxxxxx Xxxxxx, Xxxxxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention
President.
13. SUCCESSORS BOUND. This Guaranty is binding jointly and severally upon
GUARANTOR and its legal representatives and successors and shall inure to the
benefit of PIMSA, its legal representatives, successors and assigns.
IN WITNESS WHEREOF, GUARANTOR has signed this Agreement as of the 26th day of
January, 1999.
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"GUARANTOR"
By: /s/ Xxxx X. Xxxxxxx
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Its: CEO
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Attest:
By: /s/ Xxxxxx X. Xxxxxxx
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Its: CFO
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