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 10, 1999, FOR THE LEASED
PROPERTY LOCATED ON LOTS 3,4,5,9 AND A PORTION XXX 00 XX XXXXX 0 XX XXX
XXXXXXXX XXXXXXXXXX XXXX I.
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 IS 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 ASSIGNMENT, 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 10TH DAY OF
DECEMBER 1999.
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"GUARANTOR"
BY: /s/ Xxxx X. Xxxxxxx
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ITS: CHRMN. & CEO
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ATTEST:
BY: /s/ Xxxxxx Xxxxxxxx
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ITS: CFO
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