GUARANTY AGREEMENT
Exhibit 10.2
This
GUARANTY AGREEMENT (this “Guaranty”)
is entered into as of March 21, 2008, by AMERICAN LEISURE GROUP, LTD., an entity
organized under the laws of the British Virgin Islands (“Guarantor”),
in order to induce TL ACQUISITION GROUP LLC, a Delaware limited liability
company (the “Buyer”),
to enter into that certain Asset Purchase Agreement (the “Purchase
Agreement”), dated on even date herewith, and in consideration of all of
the benefits which AMERICAN LEISURE EQUITIES CORPORATION D/B/A TRAVELEADERS,
INC., a Florida corporation (the “Seller”),
AMERICAN LEISURE HOLDINGS, INC., a Nevada corporation being the sole shareholder
of the Seller (the “Shareholder”)
and Guarantor, being the majority shareholder of the Shareholder, will receive
by the consummation of the transaction contemplated by the Purchase Agreement,
Guarantor hereby, unconditionally, directly, irrevocably, and absolutely
covenants and agrees with Buyer, its successors and assigns, as follows (all
terms used herein shall, to the extent not defined herein, have the meanings
ascribed thereto in the Purchase Agreement):
AGREEMENT
1. Representations. Guarantor
acknowledges and agrees that: (i) the execution and delivery and
compliance with the terms hereof will not contravene or constitute a default
under any indenture, commitment, agreement or other instrument to which
Guarantor is a party or by which he is bound or any existing law, rule,
regulation, judgment, order or decree to which it is subject; (ii) the
consummation of the transaction contemplated by the Purchase Agreement will be
of economic benefit to Guarantor; and (iii) the consummation of the transaction
shall constitute conclusive evidence of the reliance hereon by the
Buyer.
2. Guaranty. Guarantor
hereby unconditionally and irrevocably guarantees to the Buyer the performance
of each any every obligation of the Seller and the Shareholder arising out of,
or relating to, the Purchase Agreement, including, without limitation, under
Article
X thereof (collectively the “Obligations”);
provided, that
such Obligations shall not include (i) the performance of any obligation or the
payment of any amount under dispute under the terms of the Purchase Agreement or
other related document until such amount is finally determined pursuant to the
terms of such document and (ii) any amount fully satisfied by Buyer’s exercise
of its right of offset pursuant to Section 10.9 of the Purchase
Agreement. Notwithstanding anything contained in this Guaranty to the
contrary, in no event shall the liability of Guarantor under this Guaranty
exceed the lesser of (A) the amount that Guarantor would receive in a dividend
by Shareholder if the entire Purchase Price actually paid by Buyer were
distributed in a dividend to the Shareholder’s stockholders, and (B) the amount,
if any, that Guarantor receives from Shareholder in any dividend to the
Shareholder’s stockholders to the extent that such distribution occurs after the
date hereof.
3. Survival. The
Obligations of Guarantor under this Guaranty Agreement shall be absolute and
unconditional and shall remain in full force and effect until the Obligations
have been satisfied in full (including, but not limited to, all indemnification
obligations pursuant to Article
X of the Purchase Agreement).
4. Waiver.
(a) Guarantor
expressly waives notice of the acceptance of this Guaranty, the creation of any
present or future Obligation, default under any Obligation, all diligence of
collection and presentment, demand, notice and protest and any right to
disclosures from the Buyer regarding the Buyer’s financial condition or the
enforceability of the Obligations.
(b) No
delay or omission to exercise any right or power accruing upon any default,
omission or failure of performance hereunder shall impair any such right or
power or shall be construed to be a waiver thereof, but any such right or power
may be exercised from time to time and as often as may be deemed
expedient.
5. Consent. With
respect to any of the Obligations but subject to the last sentence of Section 2
above, the Buyer may, from time to time without prior notice to Guarantor and
without affecting the liability of Guarantor, proceed against Guarantor to
collect or enforce any Obligation. Guarantor expressly consents to
and waives notice of any and all of the above.
6. Default and
Remedies. The Buyer shall have the right, power and authority
to do all things deemed necessary or advisable to enforce the provisions of this
Guaranty and, in the event of default in the timely or complete performance or
payment of any Obligation, the Buyer may institute or appear in such appropriate
judicial proceedings as it deems most effectual to protect and enforce any of
its rights hereunder, whether for the specific enforcement of any covenant or
agreement in this Guaranty or in aid of the exercise of any power granted herein
or in the Purchase Agreement, or to enforce any other proper
remedy. Without limiting the generality of the foregoing, in the
event of a default in payment of any Obligation when due, the Buyer may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against Guarantor and collect the moneys adjudged or decreed to
be payable in the manner provided by law out of the property of Guarantor,
wherever situated. No remedy conferred upon or reserved to the Buyer
herein is intended to be exclusive of any other available remedy or remedies,
but each and every such remedy shall be cumulative and shall be in addition to
every other remedy given under this Guaranty or now or hereafter existing at law
or in equity.
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8. Costs of
Collection. Guarantor agrees to pay all costs, expenses and
fees, including all reasonable attorneys’ fees, which may be incurred by the
Buyer in enforcing or attempting to enforce this Guaranty or protecting the
rights of the Buyer hereunder following any default on the part of Guarantor
hereunder, whether the same shall be enforced by suit or otherwise and
unconditionally waive, in connection with any suit, action or proceeding brought
by the Buyer on this Guaranty, any and every right Guarantor may have to (i)
injunctive relief, (ii) a trial by jury, (iii) interpose any counterclaim
therein and (iv) have the same consolidated with any other or separate suit,
action or proceeding.
9. Successors. This
Guaranty is binding upon Guarantor and its heirs, legal representatives,
successors and assigns. This Guaranty benefits and is enforceable by
the Buyer or any subsequent holder or holders of any document evidencing the
Obligations or any portion thereof and their respective, heirs, legal
representatives, successors and assigns. Any holder of any document
evidencing the Obligations or any portion thereof may assign all of such
holder’s rights and interests hereunder without the consent of, or notice to,
Guarantor.
10. Notices. Any
and all notices, demands, and communications provided for herein or made
hereunder shall be given in the manner set forth in Section 11.6 of the Purchase
Agreement.
11. Amendment, Modification and
Waiver. This Agreement may not be modified, amended or
supplemented except by mutual written agreement of the parties
hereto. Any party may waive in writing any term or condition
contained in this Agreement and intended to be for its benefit; provided, however, that no
waiver by any party, whether by conduct or otherwise, in any one or more
instances, shall be deemed or construed as a further or continuing waiver of any
such term or condition. Each amendment, modification, supplement or
waiver shall be in writing signed by the party or the parties to be
charged.
12. Assignment. This
Guaranty may not be assigned by any party without the prior written consent of
the other party, whether by merger, operation of law or otherwise.
13. Other
Provisions. This Guaranty shall not be revoked by bankruptcy
or insolvency of Guarantor. To the extent that any provision in or
obligation under this Guaranty is invalid, illegal or unenforceable, in any
jurisdiction, that finding shall not affect the validity, legality and
enforceability of any other provision or obligation in this Guaranty in that
jurisdiction or the validity, legality and enforceability of the provisions in
or obligations under this Guaranty. This Guaranty shall be governed
by and construed in accordance with the internal laws of the State of Florida
(regardless of such State’s conflict of law principles), and without reference
to any rules of construction regarding the party responsible for the drafting
hereof.
[Signature
page follows]
IN
WITNESS WHEREOF, Guarantor has executed this Agreement as of the date first
written above.
AMERICAN LEISURE
GROUP, LTD.
By: /s/ Xxxxxxx X.
Xxxxxx
Name: Xxxxxxx X.
Xxxxxx
Title: Chief
Executive
