EXHIBIT 10.29
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AMENDED AND RESTATED UNLIMITED GUARANTY AGREEMENT
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(XXXXXXX)
THIS AMENDED AND RESTATED UNLIMITED GUARANTY AGREEMENT ("Guaranty"),
dated October__, 2000, is made and entered into upon the terms hereinafter set
forth, by XXXXX X. XXXXXXX ("Guarantor"), in favor of SOUTHTRUST BANK, an
Alabama banking corporation with offices in Nashville, Tennessee, formerly known
as SouthTrust Bank, National Association ("Creditor").
RECITALS:
A. Pursuant to that certain Loan Agreement dated October 28,
1999, by and among European Micro Holdings, Inc., a Nevada corporation
("Debtor"), American Micro Computer Center, Inc., a Florida corporation,
Nor'easter Micro, Inc., a Nevada corporation, and Creditor, as amended by that
certain First Amendment to Loan Agreement of even date herewith (as amended, the
"Loan Agreement"), Creditor has made a term loan to Debtor in the original
principal amount not exceeding $1,500,000 (the "Term Loan"). The Term Loan is
evidenced by a Secured Promissory Note of even date with the Term Loan
Agreement, in the original principal amount of $1,500,000, made and executed by
Debtor, payable to the order of Creditor (herein referred to, together with any
extensions, modifications, renewals and/or replacements thereof, as the "Note";
the Note and the Loan Agreement, together with any and all other documents
executed in connection therewith, are hereinafter collectively referred to as
the "Loan Documents").
B. As a condition of Creditor's agreement to make the Term Loan
to Debtor, Guarantor executed and delivered to Creditor that certain Limited
Guaranty Agreement dated October 29, 1999 (the "Original Guaranty"). At the
request of Debtor and Guarantor, Creditor has agreed to waive certain defaults
existing under the Loan Documents and modify the Loan Documents in certain
respects, conditioned in part upon Guarantor's agreement to execute and deliver
this Guaranty, amending and restating the Original Guaranty.
C. Guarantor desires to execute and deliver this Guaranty to
Creditor in order to induce Creditor to waive such defaults and agree to such
modifications to the Loan Documents, which will be to the direct interest,
advantage and benefit of Guarantor.
AGREEMENTS:
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable considerations, the receipt and sufficiency of which are hereby
acknowledged by Guarantor, and to induce Creditor to make loans and other
extensions of credit to Debtor pursuant to the Loan Agreement, Guarantor hereby
agrees as follows:
1. Guarantor hereby guarantees to Creditor the full and prompt
payment of the entire indebtedness evidenced by the Note, including principal
and any and all interest accrued or to accrue thereon (the aforesaid
indebtednesses and other obligations are sometimes herein collectively referred
to as the "Guaranteed Obligations"). Guarantor hereby agrees that if the
Guaranteed Obligations are not timely paid in accordance with the terms thereof,
Guarantor immediately will pay such Guaranteed Obligations. If for any reason
any payment or obligation in respect of the Guaranteed Obligations shall be
determined at any time to be a voidable preference or otherwise shall be set
aside or required to be returned or repaid, this Guaranty nevertheless shall
remain in full force and effect and shall be fully enforceable against Guarantor
for the payment or obligation set aside, returned or repaid, as well as any
other Guaranteed Obligations still outstanding, notwithstanding the fact that
this Guaranty may have been canceled, released and/or returned to Guarantor by
Creditor.
2. In addition to the obligations of Guarantor to Creditor
pursuant to PARAGRAPH 1 hereof, Guarantor further agrees to pay any and all
expenses (including without limitation attorney's fees) reasonably incurred by
Creditor in endeavoring to collect and/or enforce the obligations of Guarantor
under this Guaranty.
3. Guarantor hereby waives notice of any breach or default by
Debtor, and hereby further waives presentment, demand, notice of dishonor and
protest with respect to any instrument now or hereafter evidencing any of the
Guaranteed Obligations.
4. Any act of Creditor consisting of a waiver of any of the
terms, covenants or conditions of the Guaranteed Obligations, or the giving of
any consent to any matter or thing relating to the Guaranteed Obligations, or
the granting of any indulgences or extensions of time to Debtor, may be done
without notice to Guarantor and without releasing the obligations of Guarantor
hereunder.
5. The obligations of Guarantor hereunder shall not be released
by Creditor's receipt, application or release of any security given for the
payment, performance and observance of any of the Guaranteed Obligations.
Similarly, the obligations of Guarantor hereunder shall not be released by any
modification of any of the terms of the Guaranteed Obligations made by Creditor
and Debtor, but in the case of any such modification, the liability of Guarantor
shall be deemed modified in accordance with the terms of any such modification.
6. The liability of Guarantor hereunder shall in no way be
affected by (a) the release or discharge of Debtor in any creditors',
receivership, bankruptcy or other proceedings, (b) the impairment, limitation or
modification of the liability of Debtor or the estate of Debtor in bankruptcy,
or of any remedy for the enforcement of any of the Guaranteed Obligations
resulting from the operation of any present or future provision of the Federal
bankruptcy law or any other statute or the decision of any court, (c) the
rejection or disaffirmance of any instrument, document or agreement evidencing
any of the Guaranteed Obligations in any such proceedings, (d) the assignment or
transfer of any of the Guaranteed Obligations by Creditor, (e) any other defense
of Debtor, or (f) the cessation from any cause whatsoever of the liability of
Debtor with respect to the Guaranteed Obligations.
7. Until all of the Guaranteed Obligations have been fully paid,
any liability or indebtednesses of Debtor now or hereafter held by Guarantor are
and shall be subject and subordinate to the obligations of Debtor to Creditor
under the Guaranteed Obligations.
8. Guarantor hereby waives any claim, right or remedy that
Guarantor may now have or hereafter acquire against Debtor that arises hereunder
and/or from performance by Guarantor hereunder, including but not limited to any
claim, right or remedy of subrogation, reimbursement, exoneration, contribution,
indemnification or participation in any claim, right or remedy of Creditor
against Debtor or any collateral now or hereafter securing the Guaranteed
Obligations, regardless of whether such claim, right or remedy arises under
contract, by statute, under common law, in equity or otherwise.
9. This is a guaranty of payment and not of collection. The
liability of Guarantor hereunder shall be direct and immediate and not
conditional or contingent upon the pursuit of any remedies against Debtor or any
other person, nor against any collateral available to Creditor. Guarantor hereby
waives any right to require that an action be brought against Debtor or any
other person or to require that resort be had to any collateral in favor of
Creditor prior to discharging its obligations hereunder. Guarantor further
waives any right of Guarantor to require that an action be brought against
Debtor under the provisions of Title 47, Chapter 12, Tennessee Code Annotated,
as the same may be amended from time to time.
10. Guarantor hereby consents and agrees that all payments and
credits received from Debtor or Guarantor or realized from any collateral may be
applied by Creditor to the Guaranteed Obligations in such priority as Creditor
in its sole judgment shall see fit.
11. In the event that Guarantor consists of more than one person
or entity, the obligations of Guarantor hereunder shall be joint and several,
and all references herein to "Guarantor" shall refer to each of said persons or
entities jointly and severally. This Guaranty is assignable by Creditor, and any
assignment of the Guaranteed Obligations or any portion thereof by Creditor
shall operate to vest in the assignee the rights and powers of Creditor
hereunder to the extent of such assignment. This Guaranty shall be binding upon
Guarantor and Guarantor's heirs, representatives, successors,
successors-in-title and assigns, and shall inure to the benefit of Creditor, its
heirs, representatives, successors, successors-in-title and assigns.
12. This Guaranty shall be construed in accordance with and
governed by the laws of the State of Tennessee applicable to contracts to be
performed within said state.
13. No amendment or modification hereof shall be effective unless
evidenced by a writing signed by Guarantor and Creditor. When used herein, the
singular shall include the plural, and vice versa, and the use of any gender
shall include all other genders, as appropriate.
14. Guarantor hereby waives notice of acceptance of this Guaranty
by Creditor.
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IN WITNESS WHEREOF, the undersigned Guarantor has executed this
Guaranty, or has caused this Guaranty to be executed by its duly authorized
representative, as of the date first above written.
/s/ Xxxxx X. Xxxxxxx
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XXXXX X. XXXXXXX
ACCEPTED this _____ day of October, 2000.
SOUTHTRUST BANK
By:
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(Title)
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