Exhibit 10.28
AGREEMENT
This agreement ("Agreement") is made by and between G. Day Associates,
Inc. ("GDA"), and Outlook Sports Technology, Inc. ("Company"), as of the 1st
day of September, 1998 in the following circumstances:
WHEREAS, the directors and officers of GDA have the exclusive right to
control the professional golfers employed by GDA and to assign one or more of
said professional golfers to serve as a representative of Company;
WHEREAS, ▇▇▇▇ Day is a professional golfer employed by GDA and effective
as of September 1, 1998, the Board of Directors of GDA have assigned ▇▇▇▇ Day
(the "Professional"), as the professional golfer to represent Company until
December 31, 1998;
WHEREAS, Professional is a professional golfer who plays and intends to
play tournaments and exhibitions throughout the Territory (as hereinafter
defined);
WHEREAS, Professional's endorsement of products and services has
commercial value;
WHEREAS, Company is engaged in the business of golf club manufacturing
and distribution, and Company and Professional previously worked together in
the development, advertisement, promotion and sale of Company's golf products
and equipment pursuant to that certain Agreement (hereinafter the "Old
Agreement") by and between Professional and Company dated as of the 1st day of
January, 1998;
WHEREAS, Company was unable, and failed, to pay Professional certain sums
due under the Old Agreement and, as result thereof, Professional terminated
the Old Agreement on or about September 1, 1998;
WHEREAS, Company acknowledges that it is currently indebted to
Professional for such past due sums and that Company is obligated, pursuant
to the Old Agreement, to pay Professional certain additional sums;
WHEREAS, Company desires to engage Professional's services, through GDA,
for the balance of the 1998 calendar year pursuant to the terms and
conditions of this Agreement; and,
WHEREAS, GDA desires to provide Company with the services set forth
below, in accordance with the terms and conditions of this Agreement, and
Professional desires to forgive the sums owed by Company to Professional
under the Old Agreement in consideration of the Company retaining GDA
pursuant to this agreement;
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties do hereby AGREE as follows:
1. Recitals; Release: The foregoing recitals are true, correct and hereby
incorporated into this Agreement. Further, each of the parties to this
Agreement hereby waives any and all
defaults under the Old Agreement and hereby releases the other party
from any claims, demands, damages, actions, and/or causes of action arising
from and/or related to the Old Agreement.
2. Definitions. For purposes of this Agreement the following terms shall
have the following meanings:
2.1 "Endorsed Products(s)" shall mean the following Tegra golf
products: Tegra ▇▇▇▇▇ and Irons, headcovers, umbrella, headwear, towel
and golf apparel.
2.2 "Professional Endorsements(s)" shall mean the name, photograph,
message, voice, initials, likeness or signature of Professional, or any
words and/or sounds, and/or symbols, and/or graphic representations
which identify Professional and/or his name, identity, or likeness.
2.3 "Official Events" shall mean U.S. PGA TOUR officially sanctioned
events, plus the British Open (including practice rounds and pro-ams).
2.4 "Territory" shall mean the entire world.
2.5 "Trademark" shall mean the Company's Tegra, T design, Tegra T
design and other marks (whether registered or unregistered) forming a
part of the Tegra line of products and services offered by the Company.
3. Management Representation. GDA acknowledges and represents that it has
appointed International Golf Partners, Inc., as GDA's and Professional's
exclusive management representative for this Agreement. Company and GDA
agree that International Golf Partners, Inc., shall be deemed to be the
exclusive management representative of GDA and Professional for the purposes
of this Agreement and that all payments, notices, statements or other
documents required or permitted to be given hereunder shall be sent directly
to GDA and Professional in care of International Golf partners, Inc., as
specified in Section 15 below.
4. Term of Agreement. This Agreement shall commence as of the date first
written above and shall extend through December 31, 1998 ("Term").
5. Responsibility of GDA. GDA agrees to cause Professional to fulfill the
following responsibilities with respect to the development, advertisement
and promotion of the Endorsed Products during the Term (the "Endorsed
Services"):
5.1 Use of Endorsed Products. Company agrees to provide the
Professional from time to time, as reasonably needed by Professional
during the Term, a reasonable quantity of the Endorsed Products, at no
cost, for Professional's use hereunder. GDA and Professional
specifically agree that no endorsed Product supplied to Professional
shall be sold or traded to a third party. GDA agrees to cause
Professional to carry Company's golf staff bag, headcovers, towels,
and umbrella and wear the Company's headwear and apparel in all
Official Events and other golf related
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events. Company agrees that Professional shall be under no obligation
to use Company's ▇▇▇▇▇ or Irons in official events.
5.2 GDA agrees to ensure that Professional shall, in all circumstances,
wear and use the Endorsed Products whenever he is competing, practicing
or playing in golf related activities and at teaching and coaching
sessions. The Company acknowledges and agrees that if Professional
represents his country in a special team event where there are specific
products analogous to, or competitive with, the Endorsed Products
that are required to be worn and/or used which are not Endorsed
Products, the Professional may wear and/or use such products during
such event. In addition, GDA shall ensure that Professional shall, in
all appropriate circumstances, wear and/or use the Endorsed Products
during golf related press and/or television interviews. GDA agrees to
cause Professional to wear a golf hat or visor and golf shirt of the
Company (or ones that prominently display the Trademark) during
television interviews, press interviews and awards ceremonies other
than specified above.
6. Endorsement. GDA agrees to ensure that Professional shall endorse the
Endorsed Products during the Term and permit Company to use the Professional
Endorsements during the Term as follows:
6.1 Permitted Uses. Company shall have the exclusive right and license to
use, reproduce, and to distribute Professional Endorsements as they
relate to the Endorsed Products during the Term, throughout the
Territory and for purposes of advertising, promoting, marketing,
sales, and distribution of any of the Endorsed Products, including,
without limitation, use on label and packaging and in print, broadcast,
electronics, and any other media now known or hereafter created,
subject to the quality control provisions set forth below.
6.2 Exclusivity. The Professional Endorsement rights granted hereby shall
be exclusive with respect to the Endorsed Products only. The parties
acknowledge and agree that all proprietary rights in and to the
Professional Endorsements shall be and remain vested in Professional
except to the extent of the license expressly granted herein.
6.3 GDA expressly agrees that the right to use the Professional Endorsement
will not be granted to anyone other than the Company for use within
the Territory during the Term in connection with advertisement,
promotion, sale or distribution of a product or products analogous to
or competitive with Endorsed Products.
7. Quality Control. All uses by Company of the Professional Endorsement
shall be subject to the prior approval of GDA, which approval may be
withheld in GDA's sole and absolute discretion. Company agrees to submit
all proposed uses of the Professional Endorsement to GDA reasonably in
advance of the time intended for first use. GDA shall have a period of five
(5) business days from the date of receiving notice of any proposed use of
the Professional Endorsement to either approve or disapprove thereof. If
GDA fails to act within the five (5) business day period, it will be
deemed to have
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approved the proposed use. Company acknowledges and agrees that its
right to produce, promote and distribute materials incorporating the
Professional Endorsement shall cease upon expiration of this Agreement,
except those materials that have been distributed outside of Company
provided that in the event of early termination of this Agreement,
Company shall have ninety (90) days after termination of this Agreement
to exhaust advertising and other materials which may include the
Professional Endorsement. GDA agrees that Company is authorized to
advertise "Win Ads" without Professional's advance approval.
Additionally, GDA agrees that Company is authorized to use the
Professional Endorsement in connection with the Company's Registration
Statement and Prospectus. Failure by the Company to obtain the approvals
set forth herein shall constitute a material breach of this Agreement.
8. Official Events. Pursuant to the Old Agreement, Professional was obligated
to play in not less than twenty (20) official PGA Tour events ("Official
Events") during the 1998 PGA Tour year. Company acknowledges that
Professional has already played in excess of twenty (20) Official Events
during 1998 and Company hereby expressly agrees that Professional is
under no obligation to play in any additional Official Events during the
Term.
9 Fees. Subject to the terms of this Agreement, Company agrees to pay
Professional the following fees and bonuses during the Term:
9.1 Retainer Fee: Company agrees to pay to GDA a $33,333.34 retainer fee
(the "Retainer Fee") for GDA ensuring Professional provides the
services set forth in this Agreement.
9.2 Stock Shares: Company previously paid Professional, under the Old
Agreement, as additional compensation for the services and rights
provided by Professional pursuant thereto, taking into account a
three (3) for one (1) reverse split, 10,000 shares (the "Shares")
of the Company's common stock, valued at par value $0.01 per share.
Company agreed, under the Old Agreement, that in the event that the
Shares do not have a minimum value of $60,000 at the date of
initial public offering (IPO) of the Company's stock, that the
Company would pay the difference between the value of the Shares,
on such date, and $60,000 to Professional in cash compensation or
gifting additional shares of Company stock no later than thirty
(30) days following the date of the IPO. Company hereby agrees that
the Shares previously paid to Professional were fully earned.
Further, Company and Professional hereby agree that Company's
obligations relative to the contingency related to the Shares not
having a minimum value of $60,000 at the date of the IPO, is hereby
modified to require that Company pay to GDA the difference between
the valuation of the Shares on such date and $60,000 in cash no
later than thirty days following the date of the IPO, irrespective
of whether such IPO date is prior to, or after, the expiration or
early termination of this Agreement.
9.3 Tournament Bonuses: Company agreed, under the Old Agreement, to pay
Professional certain bonuses based on Professional's performance on
the PGA
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Tour, and Company hereby reaffirms its obligation to pay the bonuses set
forth below (Each of the bonuses set forth in this Section may be
referred to individually as a "Bonus" and/or collectively as the
"Bonuses"):
A. PGA Tour Victories: Company agrees to pay GDA $25,000 for each of
Professional's tournament victories.
B. Money List: Company agrees to pay GDA a cash bonus ("Money List
Bonus") in an amount determined by the Professional's year end
ranking on the Official PGA Tour Money List for the year 1998
as follows:
#1 $100,000
#2-10 $ 50,000
#11-20 $ 40,000
#21-30 $ 30,000
C. Professional of the Year: Company agrees to pay GDA $50,000 if
Professional should be named "PGA Tour Professional of the Year".
▇. ▇▇▇▇▇ Cup/Presidents Cup: Company agrees to pay GDA $25,000 if
Professional should be named to the Ryder Cup or Presidents Cup teams.
9.4 Payments:
A. Retainer Fee: The Retainer Fee shall be paid to GDA on the
earlier of: (i) five (5) days after the IPO of Company's stock,
or, (ii) December 1, 1998. The Retainer Fee shall be paid on such
date without demand notice and/or set off.
B. Bonuses: Company hereby represents that all Bonuses due under
Section 9.3 above were insured by Company through Lexington
Insurance Company (the "Insurer") under policy number 548-NA0080098
(the "Policy"). Company hereby agrees to forward to the Insurer
Exhibit "A" attached hereto and direct the Insurer to forward to
GDA any benefits due under the Policy by reason of any of the
occurrences described in Section 9.3 above upon delivery to the
Insurer of the documents necessary to establish a proof of loss as
set forth in the Policy. Further, to the extent that any such
documentation is required from Company, Company agrees to fully
cooperate and assist GDA in supplying Insurer with the documents
necessary to establish proof of loss under the Policy. Further,
Company agrees that in the event that any benefits due under the
Policy in payment of the Bonuses are paid to Company, the Company
shall immediately notify Professional of same and deliver such
proceeds to Professional without setoff and/or deduction.
9.5 Guarantees: Company hereby agrees to have ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇
execute, and deliver to Professional, the Guarantee of Agreement
attached hereto as Exhibit "B".
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10. Information and Promotion. During the Term of this Agreement, GDA agrees
to ensure that Professional uses reasonable efforts when possible to
promote and further the sale of the Endorsed Products. GDA also agrees
and promises to use reasonable efforts to keep Company informed as to
any information Professional acquires relating to the Company and
Company's products, including, without limitation, information on
performance and including information obtained from other professional
golfers.
11. No Waiver. Failure of either party to complain of any act or omission on
the part of the other party, no matter how long the same may continue,
shall not be deemed to be a waiver by either party of its rights under
this Agreement.
12. Binding Effect. Subject to the provisions of this Agreement governing
assignment, this Agreement shall be binding upon and to inure to the
benefit of the successors of the parties hereto.
13. Severance. If any term, covenant, condition or provision of this
Agreement or the application thereof to any person or circumstance shall
to any extent be invalid or unenforceable, the remainder of this
Agreement or application of such term of provision to any person or
circumstance other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term, covenant,
condition or provision of this Agreement shall be valid and shall be
enforced to the fullest extent provided by law.
14. Notice. Notice by any party is deemed given when mailed, postage paid,
certified or registered, return receipt requested (Federal Express, DHL,
Airborne, US Overnight Mail and UPS Overnight are also applicable),
addressed to the other parties at the address appearing below:
To Professional: G. Day Associates, Inc.
c/o International Golf Partners, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
To Company: Outlook Sports Technology, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇, President
Either party may, by written notice to the other, change the address to
which any such communications shall be sent. After notice of such change
has been received, any communications shall be sent directly to such
party at such changed address.
15. Authority. Each of the parties hereby represents and warrants to the
other that it has the right, power and legal authority to enter into and
fully perform this Agreement in accordance with its terms and that this
Agreement when executed and delivered by the parties will be a legal,
valid and binding obligation enforceable against the parties in
accordance with its teams.
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16. Modification. No modification or waiver of any provisions of this
Agreement shall be effective unless made in writing and signed by all
parties.
17. Indemnification. Company agrees to fully indemnify, save, defend and
hold GDA and Professional harmless from and against any and all claims,
demands, and/or damages including all reasonable attorney's fees
incurred by GDA and/or Professional in defense thereof) arising from,
based upon, or involving the Endorsed Services, Company's use of a
Professional Endorsement, and/or Professional's appearance or
participation in any promotion, advertisement, and/or marketing event,
of whatever nature, in, of, or for which Company requests and/or
requires Professional's participation. GDA and/or Professional shall have
the right to reasonably select any attorney to defend GDA and/or
Professional in any matter falling within Company's indemnification
obligation and Company shall have the right to receive, monitor and
audit any bills and shall be required to pay relating to such defense.
Company hereby agrees, in advance, that ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq., may
represent GDA and/or Professional in any action falling within this
indemnification provision.
GDA agrees to fully indemnify and hold harmless Company from and against
any and all damages arising out of or in anyway related to third party
claims or government fines or penalties based on the gross negligence or
intentional acts or willful omissions of GDA and/or Professional
in relation to the activities described in this Agreement, provided that
such actions were not at the direction of the Company and that such
damages do not arise from the gross negligence of Company.
18. Assignment. Neither GDA nor Company shall have the right to grant
sublicenses hereunder or to otherwise assign, alienate, transfer,
encumber or hypothecate any of its rights or obligations hereunder,
except as set forth herein: (1) GDA shall have the right to assign the
financial benefits hereof, and Company hereby consents to such
assignment upon receipt by Company of written notice thereof from GDA;
(2) Company shall have the right to grant sublicenses hereunder or to
otherwise assign, alienate, transfer, encumber or hypothecate any of its
rights or obligations hereunder, if prior written consent is obtained
from GDA, which consent will not be unreasonably withheld; (3) Company
may assign this Agreement and all rights and obligations hereunder to a
purchaser of substantially all of the assets of the Company's business
associated with the Trademarks or any successor entity in a corporate
reorganization or any entity under common ownership or control.
19. Termination.
19.1 Company may terminate this Agreement in the event GDA breaches any
of its obligations under this Agreement and such breach continues
uncured for more than fifteen (15) days after written notice
thereof is given to the GDA by the Company. Such right of
termination is in addition to any other remedy the Company may
have and shall not waive the Company's right to damages for any
breach.
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19.2 GDA agrees that Company shall have the right to immediately terminate
this Agreement upon written notice to GDA's representative:
A. In the event of Professional's death during the Term, or
B. In the event Professional is convicted of a felony, or
C. In the event Professional fails to use the Endorsed Products at
the PGA Tour Championship; or
D. If Professional has committed, or shall commit, any act, or has,
or in the future becomes involved in any situation or occurrence
including, but not limited to, the use of or other association
with drugs or excessive alcohol, or otherwise tending to bring
himself and/or the Company and/or the Endorsed Product into public
disrepute, contempt, scandal, or ridicule, or tending to shock,
insult, or offend the people of this nation or another nation, or
any class or group thereof, or reflecting unfavorably upon
Company's reputation or products, or is charged with the
commission or any act or thing which is an offense involving moral
turpitude under Federal, State or local law.
E. In the event that Company shall terminate this Agreement pursuant
to this Section, Company agrees that such termination shall not
effect GDA's entitlement to the Bonuses or fifty percent (50%) of
the Retainer Fee; however, with respect to the balance of the
remaining fifty percent (50%) of the Retainer Fee, GDA shall only
be paid a pro-rata share calculated against the Term.
19.3 GDA shall have the right to immediately terminate this Agreement
by giving written notice thereof to Company upon the occurrence of
any of the following contingencies:
A. If Company is adjudicated as insolvent, declares bankruptcy or
fails to continue its business of selling the Endorsed Products;
or
B. If Company fails to make payment to GDA of any sums due pursuant
to this Agreement within five (5) days of such payment being due.
Company expressly agrees, as a result of the Company's failure to
pay amounts due under the Old Agreement, GDA shall have absolutely
no obligation to notify Company of its failure to make any payment
prior to GDA's termination of this Agreement.
19.4 In the event GDA terminates this Agreement, the parties agree that
any and all sums due to GDA shall immediately become due and payable
without demand and/or further notice. Furthermore, Company agrees
that such termination shall not affect GDA's entitlement to any
Bonuses described in this Agreement and that Professional shall have
the right to collect such bonuses from Insurer, and/or the
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Company, as provided by this Agreement, as if this Agreement had
not been terminated.
20. Terms of Agreement Confidential. It is hereby agreed that the specific
terms and conditions of this Agreement, including but not limited to the
financial terms, and the duration are strictly confidential and shall
not be divulged to any third parties, other than those having a need for
disclosure in connection with the normal business affairs of the parties
without the prior written consent of both the Company and GDA, unless
otherwise required by law to be disclosed or unless in connection with
the prosecution of defense of an arbitration proceeding brought under
this Agreement.
21. Entire Agreement. This Agreement and the exhibits referred to herein,
which are incorporated herein by this reference, constitutes the entire
agreement between the parties with respect to this subject matter
covered by this Agreement. The Agreement may not be amended, changed or
modified except by a writing duly executed by both parties hereof. Each
party understands and hereby represents and acknowledges to the other
that no understanding, agreement, inducement, or promise has been made
other than as set forth in this Agreement and that this Agreement
supersedes any and all prior understandings, agreements,
representations, promises or inducements, whether oral or written, not
set forth in, referred to in, or reserved or preserved in this Agreement.
22. Applicable Law. This Agreement shall be construed and enforced in
accordance with the laws of the State of Florida without regard to its
principles of conflicts of laws. Any action on this Agreement or arising
out of its terms and conditions shall be instituted and litigated in the
courts of the State of Florida, County of Palm Beach. In accordance, the
parties submit to the jurisdiction and venue of the State of Florida and
agree and acknowledge that such a forum shall be a convenient forum for
resolution of their questions, disputes and other differences.
IN AGREEMENT, to the foregoing the parties set their hands below as of
the date first written above.
G. DAY ASSOCIATES, INC. OUTLOOK SPORTS TECHNOLOGY, INC.
By: By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
------------------------- -------------------------------
▇▇▇▇ Day, its President ▇▇▇ ▇▇▇▇▇▇▇, its President
Dated: Date: October 6, 1998
---------------------- ---------------------
By:
-------------------------
▇▇▇▇ Day, individually, as to the terms and conditions of Section 1 above.
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EXHIBIT A
OUTLOOK SPORTS TECHNOLOGY, INC.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
September 29, 1998
▇▇▇▇▇▇▇ Fenchurch Specialties Group Ltd.
▇▇▇▇▇▇▇ Colosso Fine Arts and Entertainment Division
Friary Court--Crutched
Friars
London EC 3N 2NT
Re: Lexington Insurance Company Policy No. 548-NA0080098
Insured: Outlook Sports Technology, Inc.
Period of Insurance: January 16, 1998 - December 31, 1998
Gentleman:
As you are aware, you recently issued to us the above-referenced
Lexington Insurance Company insurance policy (the "Policy"). The Policy is a
bonus indemnification insurance policy. Pursuant to Schedule B of the Policy,
certain benefits would be due to Outlook Sports Technology, Inc., in the event
that ▇▇▇▇ Day achieves certain standings on the U.S. PGA Tour Money List, wins
a PGA Tour event and/or is named to the President's Cup Team. Outlook Sports
Technology Inc. has recently assigned all of its right to receive the
aforesaid benefits under the Policy to G. Day Associates, Inc. The purpose of
this correspondence is to advise you that any and all of the aforesaid
benefits due Outlook Sports Technology, Inc. should be paid directly to
G. Day Associates, Inc., c/o International Golf Partners, Inc. ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, upon compliance with
Section 14 of the Policy.
Thank you in advance for your anticipated cooperation in this matter, and
should you have any questions or wish to discuss anything contained herein,
please feel free to call me.
Very truly yours,
OUTLOOK SPORTS TECHNOLOGY, INC.
By:
------------------------------
▇▇▇ ▇▇▇▇▇▇▇, President
cc: Mr. ▇▇▇▇ Day, President
G. Day Associates, Inc.
c/o International Golf Partners
Mr. ▇▇▇▇ ▇▇▇▇▇
ESIX Entertainment and Sports
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Exhibit B
GUARANTEE OF AGREEMENT
----------------------
THIS GUARANTEE OF AGREEMENT ("Guarantee of Agreement") is made and
delivered to G. Day Associates, Inc. ("GDA") as of the 1st day of September,
1998, in the following circumstance:
WHEREAS, GDA and OUTLOOK SPORTS TECHNOLOGY, INC. ("Company"), have
entered into a Agreement dated as of September 1, 1998 ("Agreement");
WHEREAS, the undersigned are principals of the Company;
WHEREAS, the GDA required as a condition to its execution of the
Agreement that the undersigned unconditionally becomes surety to GDA for
Company's full performance of certain aspects of the Agreement; and
WHEREAS, in order to induce GDA to execute the Agreement, the undersigned
has agreed to execute this Guarantee of Agreement.
NOW, THEREFORE, in consideration of the GDA's execution of the Agreement,
and in consideration of other good and valuable considerations, and intending
to be legally bound, the undersigned hereby unconditionally become surety to
GDA, his successors, endorsees or assigns for the full, faithful and punctual
performance of each and all of the terms, covenants, agreements and
conditions of Section 9.1 of the Agreement to be kept and performed by
Company, in accordance with and within the time prescribed by the Agreement,
whether at maturity, or by declaration, acceleration or otherwise, together
with costs and expenses of collection incurred by GDA, including, without
limitation, attorney's fees incurred by GDA in connection with any of the
foregoing (hereinafter referred to as the "Liabilities"). The undersigned
further agree as follows:
1. GDA shall have the right from time to time, and at any time in his
sole discretion without notice to or consent from the undersigned, or any of
the undersigned, or without affecting, impairing, or discharging in whole or
in part, the Liabilities of the undersigned hereunder, to modify, change,
extend, alter, amend, or supplement, in any respect, whatever any
indebtedness or evidence thereof, or any agreement or transaction between GDA
and Company or between GDA and any other party liable.
2. THE UNDERSIGNED WAIVE (a) ALL NOTICES, INCLUDING BUT NOT LIMITED TO
(i) NOTICE OF ACCEPTANCE OF THIS GUARANTEE OF AGREEMENT; (ii) NOTICE OF
PRESENTMENT, DEMAND FOR PAYMENT, OR PROTEST OF ANY OF THE LIABILITIES, OR THE
OBLIGATION OF ANY PERSON, FIRM OR CORPORATION HELD BY GDA AS COLLATERAL
SECURITY; (b) ALL DEFENSES, OFFSETS AND COUNTERCLAIMS WHICH UNDERSIGNED MAY
AT ANY TIME HAVE JOINTLY OR SEVERALLY TO ANY OF THE LIABILITIES; (c) TRIAL BY
JURY AND THE RIGHT THERETO AND ANY PROCEEDING OF ANY KIND, WHETHER ARISING ON
OR OUT OF, UNDER OR BY REASON OF THIS GUARANTEE, OR ANY OTHER AGREEMENT OR
TRANSACTION BETWEEN UNDERSIGNED, GDA AND/OR COMPANY; (d) ALL NOTICES OF A
FINANCIAL
CONDITION OR OF ANY ADVERSE OR OTHER CHANGE IN THE FINANCIAL CONDITION OF
COMPANY.
3. GDA may, without notice, assign this Guarantee in whole or in part,
and no assignment or transfer of GDA shall operate, extinguish or diminish
the liability of the undersigned hereunder.
4. The liability of the undersigned under this Guarantee shall be
primary under any right of action which shall accrue to GDA under the
Agreement and GDA may, at his option, proceeds against any of, or all of, the
undersigned without having to commence any action, or having obtained any
judgment, against the Company.
5. All of the Liabilities shall be immediately due and payable by
undersigned, anything contained herein to the contrary notwithstanding,
immediately upon the insolvency of the Company in the bankruptcy or equity
sense: the application for appointment or appointment of a trustee, receiver,
conservator, liquidator, sequester, custodian, or other similar judicial
representatives, for Company or any of the Company's assets; Company's making
any assignment for the benefit of creditors; the commencement of a case by or
against Company under any insolvency, bankruptcy, creditor adjustment or
debtor rehabilitation laws, state or federal, including but not limited to
arrangement, composition, liquidation or reorganization; the calling of a
meeting of creditors of Company; the commencement of levy, or execution or
attachment proceedings against Company or any of Company's assets whether or
not GDA has exercised any option which it may have to require payment in full
or acceleration of payment of the Liabilities, from any other person liable
for payment of the Liabilities.
6. The undersigned and each of them agree and consent to the exclusive
jurisdiction of the County or Circuit Courts of Palm Beach County, Florida,
whichever may be appropriate and/or of the United States District Court for
the Southern District of Florida in any and all actions and proceedings
whether arising hereunder or under any other Agreement or undertaking, and
irrevocably agree to service of process by certified mail, return receipt
requested, to its address set forth herein, or such address as may appear in
GDA's records.
WITNESSES:
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Address:
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Address:
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