AMENDED AND RESTATED
GUARANTY AGREEMENT
THIS AMENDED AND RESTATED GUARANTY ("Guaranty"), given as of the 14th
day of January, 2000, by Taimex Industries, S.A. de C.V. ("Guarantor"), to
Robert E. Schmidt, Jr., his successors and assigns and any successor holder
of the Notes ("Creditor").
WHEREAS, Guarantor is a subsidiary of Aarica Holdings, Inc., a Texas
corporation ("Borrower"); and
WHEREAS, Guarantor had borrowed Two Hundred Forty Thousand Dollars
($240,000.00) from Creditor; and
WHEREAS, Guarantor and Aarica Sport, S.A. de C.V. ("Aarica") have
borrowed on even date herewith Seven Hundred Fifty Thousand Dollars
($750,000.00) from Creditor; and
WHEREAS, as a result of the restructuring of Guarantor's, Borrower's,
and its other subsidiaries' debt and additional borrowings, Borrower and its
subsidiaries 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 and its
subsidiaries' Promissory Notes in favor of Creditor as follows: (i) that certain
Promissory Note dated March 8, 1999, in the principal amount of Two Hundred
Fifty Thousand Dollars ($250,000.00), of which $137,500.00 has been repaid, (ii)
that certain Replacement Promissory Note dated March 8, 1999, in the principal
amount of Two Hundred Forty Thousand Dollars ($240,000.00), (iii) that certain
Subsidiary Note made by Guarantor and Aarica dated January 14, 2000, in the
principal amount of Seven Hundred Fifty Thousand Dollars ($750,000.00), and (iv)
that certain Third Promissory Note dated January 14, 2000, in the principal
amount of One Million One Hundred Thirty-Seven Thousand Five Hundred Dollars
($1,137,500.00) (collectively the "Notes"); and
WHEREAS, repayment of the indebtedness evidenced by the Notes is
secured by an Amended and Restated Stock Pledge Agreement dated January 14,
2000, between Carol Kolozs ("Kolozs") and Creditor; and
WHEREAS, repayment of the indebtedness evidenced by the Notes is also
secured by an Amended and Restated Security Agreement of even date herewith
between Guarantor, Aarica Sport, S.A. de C.V., and Creditor; and
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WHEREAS, to induce Creditor to continue 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, the
Amended and Restated Security Agreement, and all other security documents
("Security Documents") are guaranteed by Guarantor; and
WHEREAS, Guarantor is a subsidiary of Borrower, and as a result of
Borrower's relationship with Guarantor, 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:
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; and 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 Paragraph 1, Guarantor does
hereby further unconditionally guarantee the amount of:
a. Loss or damage caused by the removal or disposal of any portion of
the Collateral (as defined in the Amended and Restated Security Agreement);
b. 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;
c. Loss or damage suffered by Creditor as a result of the
misapplication of: (i) any proceeds, as such term is 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:
a. Waive compliance with, or any defaults under, or grant any other
indulgences with respect to, the Notes or any of the other Security
Documents;
b. Agree with Borrower to modify, amend or change any provision of the
Notes or any of the other Security Documents;
c. 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;
d. Agree with Borrower to the substitution, exchange, release or other
disposition of all or any part of the Collateral encumbered by the Security
Documents;
e. 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;
f. Assign or otherwise transfer the Notes or any of the other Security
Documents or this Guaranty or any interest therein or herein;
g. Add additional guarantors and release or make settlement with any
person or entity comprising Guarantor; and
h. 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:
a. Notice of acceptance of this Guaranty to Creditor;
b. Notice of the amount of Indebtedness now existing or which
hereafter may exist under the Notes;
c. Notice of demand for payment, notice of default or nonpayment,
presentment, protest and notice of protest, as to the Notes;
d. All other notices to which Guarantor might otherwise be entitled in
connection with this Guaranty, the Notes or other Security Documents;
e. 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;
f. 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:
a. 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;
b. 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
c. 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: Robert E. Schmidt, Jr.
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4340 W. Hillsborough Ave., #212
Tampa, FL 33614
With a copy to: James G. Willard, Esquire
20 North Orange Avenue
Suite 1000
Orlando, FL 32801-4626
If to Guarantor: Taimex Industries, S.A. de C.V.
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1080 Howell Branch Rd.
Winter Park, FL 32789
With a copy to: Jim Schnorf, Esq..
Continental Capital
195 Wekiva Springs Rd., Suite 200
Longwood, FL 32779
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 effective as
of the date and year first above written.
Signed, sealed and delivered in the presence of:
GUARANTOR:
TAIMEX INDUSTRIES, S.A. de C.V.
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By: /s/ Carol Kolozs_______
Carol Kolozs, President
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STATE OF FLORIDA
COUNTY OF ORANGE
The foregoing instrument was acknowledged before me this 14th day of
January, 2000, by Carol Kolozs, as President of Taimex Industries, S.A. de C.V.,
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