AMENDED AND RESTATED
GUARANTY AGREEMENT
THIS AMENDED AND RESTATED GUARANTY ("Guaranty") given this 14th day of
January, 2000, by Xxxxx Xxxxxx ("Guarantor"), to Xxxxxx X. Xxxxxxx, Xx., his
successors and assigns and any successor holder of the Notes ("Creditor").
WHEREAS, Aarica Holdings, Inc., a Texas corporation, and its subsidiaries
("Borrower") are indebted to Creditor in the aggregate principal amount of Two
Million Three Hundred Seventy-Seven Thousand Five Hundred Dollars
($2,377,500.00) ("Loan") which indebtedness is evidenced by Borrower's
Promissory Note dated March 8, 1999, in the principal amount of $250,000.00, of
which $137,500.00 has been repaid, Replacement Promissory Note dated March 8,
1999, in the principal amount of $240,000.00, Subsidiary Note of Aarica Sport,
S.A. de C.V. and Taimex Industries, S.A. de C.V. dated January 14, 2000, in the
principal amount of $750,000.00, and Third Promissory Note dated January 14,
2000, in the principal amount of $1,137,500.00 (collectively the "Notes"); and
WHEREAS, repayment of the indebtedness evidenced by the Notes is being
secured by an Amended and Restated Stock Pledge Agreement between Guarantor and
Creditor of even date herewith; and
WHEREAS, to induce Creditor to make the Loan and to grant such other
accommodations to Borrower, including Letters of Credit, as Creditor may deem
proper, and with full knowledge that the Loan, and any such other accommodations
would not be made unless payment of all amounts due under the Notes and the
performance and/or observance by Borrower of all of the terms, covenants,
conditions and agreements on its part to be observed or performed pursuant to
the Notes, the Amended and Restated Stock Pledge Agreement, and all other
security documents ("Security Documents") are guaranteed by Guarantor; and
WHEREAS, Guarantor is the sole shareholder of Borrower, and as a result
of Guarantor's ownership interest in Borrower, Guarantor will receive a direct
benefit from the Loan.
NOW THEREFORE, for and in consideration of the making of the Loan and
other good and valuable consideration, receipt of which is hereby acknowledged,
it is agreed as follows:
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1. Guarantor does hereby unconditionally guaranty the due and punctual
payment to Creditor of the amount of the Indebtedness as herein defined.
"Indebtedness", for the purposes of this Guaranty, means the primary obligations
of Borrower for payment of
the sums due under the Notes, including but not limited to, all sums of
principal, accrued interest, collection costs, advances, attorneys' fees and
costs, and all monies extended by Creditor which are prescribed, allowed,
evidenced or secured by the Notes and all security documents; all Letters of
Credit issued or to be issued by Creditor to Borrower; and for payment of any
and all liabilities, whether fixed or contingent, whether now due or hereafter
due and whether secured or unsecured, of the Borrower to Creditor arising or
accruing by virtue of the Security Documents. The term "Indebtedness" shall
include all renewals, modifications and extensions thereof.
2. In addition to the guaranty provided in Xxxxxxxxx 0, Xxxxxxxxx does
hereby further unconditionally guarantee the amount of:
(1) Loss or damage caused by the removal or disposal of any portion of the
Collateral (as defined in the Amended and Restated Stock Pledge Agreement);
(2) Loss or damage suffered by Creditor as a result of or
attributable to any fraud or misrepresentations by Borrower
contained in the Notes, Security Documents, or any documents
entered into in connection with the acquisition, issuance or
financing of the Collateral;
(3) Loss or damage suffered by Creditor as a result of the
misapplication of: (i) any products or proceeds, as such terms
are defined in Article 9 of the Uniform Commercial Code as
adopted by the State of Florida, from the Collateral following
any notice of default to Borrower, (ii) any and all costs
(including, but not limited to attorneys' fees, whether suit
is instituted or not) incurred by Creditor in the enforcement
of the Notes or the Security Documents following a default by
Borrower.
For purposes of this Paragraph, "misapplication" means Borrower's
failure to apply funds to the payment of principal, interest and other
amounts due under the Notes.
3. The liability of Guarantor shall continue until this Guaranty is marked
"Canceled" by the Creditor and returned to the Guarantor upon the
payment in full of the entire Indebtedness.
4. The obligations of Guarantor hereunder are unconditional, irrespective
of the genuineness, validity, negotiability or enforceability of the
Notes or any of the Security Documents and are independent of the
obligations of the Borrower. Creditor may prosecute a separate action
or actions hereon against Guarantor, whether action is brought against
Borrower, any other guarantor or the Collateral and whether Borrower is
joined in any such action or actions.
5. Guarantor authorizes Creditor, without notice of demand, and without
affecting the liability of Guarantor hereunder, from time to time to:
(1) Waive compliance with, or any defaults under, or grant any other
indulgences with respect to, the Notes or any of the other Security Documents;
(2) Agree with Borrower to modify, amend or change any provision of the
Notes or any of the other Security Documents;
(3) Grant to Borrower extensions or renewals of the Notes or any
other of the Security Documents, and/or effect any release,
compromise or settlement in connection with the Notes or any
of the Security Documents;
(4) Agree with Borrower to the substitution, exchange, release or other
disposition of all or any part of the Collateral encumbered by the Security
Documents;
(5) Make advances for the purpose of performing any term or
covenant contained in the Notes or any of the other Security
Documents with respect to which Borrower or the then owner of
the Collateral shall be in default;
(6) Assign or otherwise transfer the Notes or any of the other Security
Documents or this Guaranty or any interest therein or herein;
(7) Add additional guarantors and release or make settlement with any
person or entity comprising Guarantor; and
(8) Deal in all respects with Borrower as if this Guaranty were not in
effect.
6. Guarantor hereby expressly waives each and all of the following:
(1) Notice of acceptance of this Guaranty to Creditor;
(2) Notice of the amount of Indebtedness now existing or which hereafter
may exist under the Notes;
(3) Notice of demand for payment, notice of default or nonpayment,
presentment, protest and notice of protest, as to the Notes;
(4) All other notices to which Guarantor might otherwise be entitled in
connection with this Guaranty, the Notes or other Security Documents;
(5) Any right to require Creditor, as a condition precedent to the
enforcement of this Guaranty, to exhaust any security for payment of said Notes
by foreclosure proceedings or otherwise, or to pursue any other rights or
remedies which Creditor has or hereafter may have against the Borrower or any
subsequent endorser of the Notes, whether such rights exist by statute or
otherwise, it being agreed by Guarantor that its guaranty hereunder is an
absolute guarantee of payment and not of collection, that the failure of
Creditor to exercise any rights or remedies it has or may have against Borrower
shall in no way impair the obligation of said guaranty and that the liability of
Guarantor hereunder is and shall be direct and unconditional; and;
(6) All defenses, offsets and counterclaims which Guarantor may at any time
have to any claim of Creditor against Borrower.
7. Guarantor further agrees to each and all of the following:
(1) No change of ownership or legal title to all or a part of the
Collateral, whether effected with or without consent of
Creditor, shall affect, change or discharge the obligations of
Guarantor except as provided for the release of the Collateral
in the Security Documents;
(2) This Guaranty shall not be discharged or affected by the
dissolution, liquidation, merger, termination, or any other
type of corporate reorganization or restructure of Guarantor
or Borrower; and
(3) In the event action is commenced to enforce this Guaranty, Guarantor
agrees to pay Creditor's costs of suit and its reasonable attorneys' fees in a
sum to be fixed by the Court.
8. All indebtedness of Borrower now or hereafter held by Guarantor is
hereby subordinated to the Indebtedness of Borrower to Creditor, and
such indebtedness of Borrower to Guarantor, if Creditor so requires,
shall be collected, enforced and received by Guarantor as Trustee for
Creditor, and shall be paid to Creditor on account of Indebtedness of
Borrower to Creditor but without reducing or affecting the liability of
Guarantor under the other provisions of this Guaranty (except to the
extent of the actual payment thereof to Creditor).
9. Creditor, without notice to or consent of Guarantor, may assign this
Guaranty in whole or in part and may disclose to any assignee any
information or other data or material in Creditor's possession relating
to Guarantor. This Guaranty shall inure to the benefit of and may be
relied upon and enforced by Creditor's successors and assigns and shall
be binding upon Guarantor and the legal representatives and assigns of
Guarantor, except that Guarantor may not assign its liabilities under
this Guaranty without the prior written consent of Creditor, which
consent Creditor, in its sole discretion may withhold.
10. Except for any notice required by law to be given in another manner,
all notices, waivers, demands, requests or other communications
required or permitted by this Guaranty (collectively, "Notices"), to be
effective, shall be in writing, properly addressed, and shall be given
(i) by personal delivery, (ii) by established overnight commercial
courier with delivery charges prepaid or duly charged, (iii) by
registered or certified mail, return receipt requested, first class
postage prepaid, or (iv) by facsimile transmission, as follows:
If to Creditor: Xxxxxx X. Xxxxxxx, Xx.
--------------
0000 X. Xxxxxxxxxxxx Xxx., #000
Xxxxx, XX 00000
With a copy to: Xxxxx X. Xxxxxxx, Esquire
00 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
If to Guarantor: Xxxxx Xxxxxx
---------------
0000 Xxxxxx Xxxxxx Xx.
Xxxxxx Xxxx, XX 00000
With a copy to: Xxx Xxxxxxx, Esq..
Continental Capital
000 Xxxxxx Xxxxxxx Xx., Xxxxx 000
Xxxxxxxx, XX 00000
or to any other address or addressee as any party entitled to receive
notice under this Agreement shall designate, from time to time, to
others in the manner provided in this Paragraph 10 for the service of
Notices.
Notices delivered by personal delivery shall be deemed to have been
given upon tender to a natural person at the address shown. Notices
delivered by overnight courier shall be deemed to have been given the
next business day after delivery to such overnight commercial courier.
Notices delivered by mail shall be deemed to have been given on the
second (2nd) day after deposit into the United State Postal System.
Notices delivered by facsimile shall be deemed to have been given upon
confirmation of transmission to the correct facsimile phone number of
the intended recipient. All copies of Notices sent to the parties
listed above as receiving copies are sent as an accommodation only and
the lack of any such notice shall not effect the validity or
effectiveness of the notice to Creditor or Guarantor.
11. If, at any time, payment of any of the Indebtedness or any part
thereof, is rescinded or otherwise must be restored or returned to
Creditor upon the insolvency, bankruptcy or reorganization of Borrower
or under any other circumstances whatsoever, this Guaranty shall
continue effective or shall (if previously deemed terminated) be
reinstated, as the case may be, as if such payment had not been made or
performance completed.
12. Guarantor shall be liable for payment to Creditor of post-petition
interest accruing under the Security Documents and all costs incurred
or expended by Creditor, including, but not limited to, attorneys' fees
even if Borrower's obligation to Creditor ceases to exist by operation
of law.
13. If any provision of this Guaranty is held to be invalid or
unenforceable in any respect, the validity of the remaining covenants,
agreements, terms or provisions contained herein in no way shall be
affected, prejudiced or disbursed thereby.
14. No provision of this Guaranty shall be modified, waived, altered,
terminated, or discharged except by a written instrument or instruments
executed by the party against which enforcement of said action is
asserted. Any alleged modification, waiver, alteration or amendment
which is not so documented shall not be effective as to any party.
15. If this Guaranty is signed by more than one person, firm or
corporation, then all obligations of any such person, firm or
corporation shall be joint and several.
16. As used herein, the singular number includes the plural, and the
masculine gender includes the feminine and neuter.
17. Until all the Indebtedness has been paid in full, Guarantor shall not
have any right of subrogation unless expressly granted in writing by Creditor.
18. Consent to Jurisdiction. GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF THE SUPREME COURT OF THE STATE OF FLORIDA, COUNTY OF ORANGE, AND
THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY AGREEMENT OR
ANY OF THE DOCUMENTS EXECUTED IN CONNECTION HEREWITH, AND GUARANTOR HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN SUCH FLORIDA STATE OR FEDERAL COURT. GUARANTOR HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE
OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING.
GUARANTOR ALSO IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY
SUCH ACTION OF PROCEEDING BY THE MAILING OF A COPY OF SUCH PROCESS TO GUARANTOR
BY REGISTERED OR EXPRESS MAIL, RETURN RECEIPT REQUESTED, AT HIS ADDRESS
SPECIFIED HEREIN. SUCH SERVICE WILL BECOME EFFECTIVE THREE (3) BUSINESS DAYS
AFTER SUCH MAILING AND WILL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE ON
GUARANTOR IN SUCH ACTION OR PROCEEDING. GUARANTOR AGREES THAT A FINAL JUDGMENT
IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN
OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY MANNER PROVIDED BY LAW.
NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF CREDITOR TO SERVE
LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT
OF CREDITOR TO BRING ANY ACTION OR PROCEEDING AGAINST GUARANTOR OR ITS
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
EACH OF GUARANTOR AND CREDITOR, BY ITS ACCEPTANCE HEREOF, HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT
OR ANY AGREEMENT EXECUTED IN CONNECTION HEREWITH OR IN CONNECTION WITH
ANY DEFENSE, COUNTERCLAIM OR CROSS CLAIM ASSERTED BY GUARANTOR IN ANY
SUCH LITIGATION.
19. Waiver of Jury Trial. THE UNDERSIGNED HEREBY KNOWINGLY AND VOLUNTARILY
WAIVES THE RIGHT TO TRIAL BY JURY in any action or proceeding for the
interpretation, declaration, reformation, pursuit, assertion, enforcement or
resolution of any claim or defense that has been asserted or may ever be
asserted or ascertainable by or against it under this Guaranty, or under any law
or theory governing any relationship between the Borrower and the Guarantor.
This waiver by jury trial shall extend to all matters between the parties and
shall be unconditional and absolute in all respects. In the event that any
collateral matter is judicially determined to be outside the scope of this
waiver of jury trial, or if this waiver of jury trial is determined to be
unenforceable to any degree, then this waiver of jury trial shall be
automatically modified to encompass all such matters so that no matter involving
the Borrower and the Guarantor shall be susceptible to jury trial to any degree
or at any time. The Borrower and the Guarantor hereby expressly waive all rights
to pursue mediation or arbitration or diversion of any claims asserted or
assertable in connection with this Guaranty.
IN WITNESS WHEREOF, the Guarantor has signed this Guaranty this 14th
day of January, 2000.
Signed, sealed and delivered in the presence of:
GUARANTOR:
_/s/ Xxxxx Kolozs________
-----------------
Xxxxx Xxxxxx
-------------------------------
STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 14th day of
January, 2000, by Xxxxx Xxxxxx, who is personally known to me or who has
produced _________________________ as identification and who did (did not) take
an oath.
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Signature
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Printed Name
ORLDOCS 10006792.1 LMW
