EXHIBIT 10.4
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of October 12, 2005, by Uluru
Acquisition Corp. a Nevada corporation (the "Guarantor") in favor the
undersigned Buyers listed on Schedule I attached hereto (collectively, the
"Buyer").
WITNESSETH:
WHEREAS, the Guarantor is a wholly owned subsidiary of Oxford Ventures,
Inc., a Nevada corporation ("Oxford");
WHEREAS, Oxford, the Guarantor, and Uluru, Inc. (the "Company") have
agreed upon the terms and conditions of a merger and related trasnactions (the
"Merger"), as set forth in the Term Sheet attached hereto as Exhibit A;
WHEREAS, simultaneusly herewith Oxford and the Buyer have entered into a
Securities Purchase Agreement ("Securities Purchase Agreement") pursuant to
which Oxford shall issue and the Buyer shall purchase Convertible Debentures in
an amount up to $15,000,000 (the "Debentures");
WHEREAS, to induce the Buyer to purchase the Debentures the Guarantor will
guarantee the repayment of the Debentures to the Buyer; and
WHEREAS, to secure the Obligations of the Guarantor to the Buyer, the
parties hereto have entered into that certain Security Agreement, dated as of
the date hereof (the "Security Agreement") pursuant to which, among other
things, the Guarantor grants to the Buyer a security interest in and to the
Pledged Property (as defined in the Security Agreement).
NOW, THEREFORE, in consideration of the promises and the agreements herein
and in order to induce the Buyer to purchase the Debentures, the Guarantor
hereby agrees with the Buyer as follows:
Section 1. Definitions. All terms used in this Guaranty which are defined
in the Debentures and not otherwise defined herein shall have the same meanings
herein as set forth in the Debentures.
Section 2. Guaranty.
(a) The Guarantor does hereby irrevocably, absolutely and
unconditionally guaranty the prompt payment by Oxford, as and when due and
payable (whether maturity, Scheduled Payment, acceleration, demand or
otherwise), of all of the obligations (collectively, the "Obligations") from
time to time owing by Oxford to the Buyer under the Debentures, whether for
principal, interest (including, without limitation, all interest that accrues
after the commencement of any insolvency proceeding with respect to Oxford,
whether or not a claim for post-filing interest is allowed in such proceeding),
fees, commissions, expense reimbursements, indemnifications or otherwise, and
whether accruing before or subsequent to the commencement of any insolvency
proceeding with respect to Oxford (notwithstanding the operation of the
automatic stay under Section 362(a) of the U.S. Bankruptcy Code), and the due
performance and observance by Oxford of its other Obligations now or hereafter
existing in respect of the Debentures (the "Guaranteed Obligations"),
(b) The Guarantor does hereby agrees to pay any and all expenses
(including counsel fees and expenses) incurred by the Buyer in enforcing any
rights under this Guaranty. Without limiting the generality of the foregoing,
the Guarantor's liability shall extend to all amounts that constitute part of
the Guaranteed Obligations and would be owed by Oxford to the Buyer under the
Debentures but for the fact that they are unenforceable or not allowable due to
the existence of a bankruptcy, reorganization or similar proceeding involving
Oxford or any Guarantor.
Section 3. Guaranty Absolute; Continuing Guaranty; Assignments.
(a) The Guarantor hereby guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the
Debentures, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Buyer with respect thereto. The Guarantor agrees that its guarantee constitutes
a guaranty of payment of the Obligations and not of collection and waives any
right to require that any resort be made by the Buyer to any collateral. The
Obligation of the Guarantor under this Guaranty are independent of the
Obligation under the Debentures, and a separate action or actions may be brought
and prosecuted against the Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against Oxford or the Guarantor or whether Oxford
or the Guarantor is joined in any such action or actions. The liability of the
Guarantor under this Guaranty shall be irrevocable, absolute and unconditional
irrespective of, and the Guarantor hereby irrevocably waives any defenses it may
now or hereafter have in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of the Debentures
or any agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of,
or in any other term in respect of, all or any of the Guaranteed Obligation, or
any other amendment or waiver of or any consent to departure from the
Debentures, provided, however, the Guarantor shall not be liable under this
Guarantee as a result of any increase in the Guaranteed Obligations resulting
from the extension of additional credit to Oxford or the Guarantor or otherwise;
(iii) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed Obligations;
(iv) the existence of any claim, set-off, defense or other
right that the Guarantor may have against any Person, including, without
limitation, the Buyer;
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(v) any change, restructuring or termination of the
corporate, limited liability company or partnership structure or existence of
the Buyer; or
(vi) any other circumstance (including any statute of
limitations) or any existence of or reliance on any representation by the Buyer
that might otherwise constitute a defense available to, or a discharge of,
Oxford or the Guarantor or surety.
(b) This Guaranty shall continue to be effective or be reinstated,
as the case may be, if at any time any payment of any of the Guaranteed
Obligation is rescinded or must otherwise be returned by the Buyer or any other
Person upon the insolvency, bankruptcy or reorganization of Oxford or otherwise,
all as though such payment had not been made.
(c) This Guaranty is a continuing guaranty and shall (i) remain in
full force and effect until the payment in full, whether in cash or securities,
as the case may be, of the Guaranteed Obligation and all other amounts payable
under this Guaranty, shall (ii) be binding upon the Guarantor, its successors
and assigns and (iii) inure to the benefit of and be enforceable by the Buyer
and its successors, pledgees, transferees and assigns. Without limiting the
generality of the foregoing clause (iii), the Buyer may pledge, assign or
otherwise transfer all or any portion of its rights under the Debentures to any
other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such the Buyer herein or otherwise, in
each case as provided in the Debentures.
Section 4. Waivers. The Guarantor hereby waives, to the full extent
permitted by applicable law, (i) promptness and diligence; (ii) notice of
acceptance and notice of the incurrence of any Obligation by Oxford or the
Guarantor; (iii) notice of any actions taken by the Buyer under the Debentures
or any other agreement or instrument related thereto; (iv) all other notices,
demands and protests, and all other formalities of every kind in connection with
the enforcement of the Obligation or of the Obligation of the Guarantor
hereunder, the omission of or delay in which, but for the provisions of this
Section 4, might constitute grounds for relieving the Guarantor of its
Obligation hereunder; (v) any right to compel or direct the Buyer to seek
payment or recovery of any amounts owed under this Guaranty from any one
particular fund or source; (vi) any requirement that the Buyer protect, secure,
perfect or insure any security interest or security interest or any property
subject thereto or exhaust any right or take any action against Oxford, any
other Guarantor or any other Person or any collateral; and (vii) any other
defense available to the Guarantor. The Guarantor acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated herein and that the waiver set forth in this Section 4 is knowingly
made in contemplation of such benefits. The Guarantor hereby waives any right to
revoke this Guaranty, and acknowledges that this Guaranty is continuing in
nature and applies to all Guaranteed Obligations, whether existing now or in the
future.
Section 5. Subrogation.
(a) Until the final payment in cash and securities pursuant to the
terms of the Debentures and performance in full of all of the Obligations, the
Guarantor shall not exercise any rights against Oxford arising as a result of
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payment by Oxford by way of subrogation, reimbursement, restitution,
contribution or otherwise, and will not prove any claim in competition with the
Buyer in respect of any payment hereunder in any insolvency proceedings; the
Guarantor will not claim any set-off, recoupment or counterclaim against Oxford
in respect of any liability of the Guarantor to Oxford; and the Guarantor and
Oxford waive any benefit of and any right to participate in any collateral
security which may be held by the Buyer.
(b) The payment of any amounts due with respect to any
indebtedness of Oxford or the Guarantor for money borrowed or credit received
now or hereafter owed to the Guarantor is hereby subordinated to the prior
payment in full of all of the Obligations. The Guarantor agrees that, after the
occurrence of any default in the payment or performance of any of the
Obligations, the Guarantor will not demand, xxx for or otherwise attempt to
collect any such indebtedness of Oxford to the Guarantor until all of the
Obligations shall have been paid in full. If, notwithstanding the foregoing
sentence, the Guarantor shall collect, enforce or receive any amounts in respect
of such indebtedness while any Obligations are still outstanding, such amounts
shall be collected, enforced and received by the Guarantor as trustee for the
Buyer and be paid over to the Buyer, on account of the Obligations without
affecting in any manner the liability of the Guarantor under the other
provisions of this Guaranty.
Section 6. Representations, Warranties and Covenants. The Guarantor hereby
represents and warrants as follows:
(a) The Guarantor (i) is a corporation or other entity, duly
organized, validly existing and in good standing under the laws of the state or
other applicable jurisdiction of its organization as set forth on the first page
hereof, (ii) has all requisite power and authority to conduct its business as
now conducted and as presently contemplated and to execute and deliver this
Guaranty and each other related document to which the Guarantor is a party, and
to consummate the transactions contemplated hereby and thereby and (iii) is duly
qualified to do business and is in good standing in each jurisdiction in which
the character of the properties owned or leased by it or in which the
transaction of its business makes such qualification necessary and where the
failure to be so qualified could reasonably be expected to have a material
adverse effect.
(b) The execution, delivery and performance by the Guarantor of
this Guaranty and each other related document to which the Guarantor is a party
(i) have been duly authorized by all necessary action, (ii) do not and will not
contravene its charter or by-laws, or any applicable law or regulation or any
contractual restriction binding on or otherwise affecting the Guarantor or its
properties, (iii) do not and will not result in or require the creation of any
lien (other than pursuant to the Debentures) upon or with respect to any of its
properties, and (iv) do not and will not result in any default, noncompliance,
suspension, revocation, impairment, forfeiture or nonrenewal of any permit,
license, authorization or approval applicable to it or its operations or any of
its properties.
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(c) No authorization or approval or other action by, and no notice
to or filing with, any governmental agency is required in connection with the
due execution, delivery and performance by the Guarantor of this Guaranty or any
of the other related document to which the Guarantor is a party, except for the
filing of any UCC financing statement or such other registrations, filings or
recordings as may be necessary to perfect any lien purported to be created by
the Debentures or any related document to which the Guarantor is a party, and
any public filings with the Securities and Exchange Commission.
(d) Each of this Guaranty and the Debentures and related documents
to which the Guarantor is or will be a party, when delivered, will be, a legal,
valid and binding obligation of the Guarantor, enforceable against the Guarantor
in accordance with its terms, except as may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws.
(e) There are no pending or written notices threatening any
action, suit or proceeding affecting the Guarantor before any court or other
governmental agency or any arbitrator that (x) if adversely determined could
reasonably be expected to have a material adverse effect, except as disclosed in
public filings with the Securities and Exchange Commission, or (y) relates to
this Guaranty, the Debentures or any of the related documents to which the
Guarantor is a party or any transaction contemplated hereby or thereby and, as
of the date hereof, the Guarantor does not hold any commercial tort claims in
respect of which a claim has been filed in a court of law or a written notice by
an attorney has been given to a potential defendant.
(f) The Guarantor (i) has read and understands the terms and
conditions of the Debentures and the other related documents to which it is a
party, and (ii) now has and will continue to have independent means of obtaining
information concerning the affairs, financial condition and business of Oxford,
and has no need of, or right to obtain from the Buyer, any credit or other
information concerning the affairs, financial condition or business of Oxford
that may come under the control of the Buyer.
Section 7. Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default, the Buyer may, and is hereby authorized to,
at any time and from time to time, without notice to the Guarantor (any such
notice being expressly waived by the Guarantor) and to the fullest extent
permitted by law, set-off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held and other indebtedness at
any time owing by the Buyer to or for the credit or the account of the Guarantor
against any and all Obligations of the Guarantor now or hereafter existing under
this Guaranty or any other related document, irrespective of whether or not the
Buyer shall have made any demand under this Guaranty or any other related
document and although such Obligation may be contingent or unmatured. the Buyer
agrees to notify the Guarantor promptly after any such set-off and application
made by the Buyer, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of the Buyer
under this Section 7 are in addition to other rights and remedies (including,
without limitation, other rights of set-off) which the Buyer may have under this
Guaranty or any other related document in law or otherwise.
Section 8. Event of Default."Event of Default" shall mean: (a) any failure
by the Guarantor to pay any of the Guaranteed Obligations when due, (b) a
material breach by the Guarantor under this Agreement, (c) the Guarantor shall
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(1) fail to, be unable to or otherwise does not generally pay its debts as they
become due, (2) conceal, remove or transfer any of its assets and properties in
violation or evasion of any bankruptcy, fraudulent conveyance or similar
applicable law, (3) make an assignment for the benefit of its creditors, (4)
petition or apply for or consent to the appointment of a receiver, trustee,
assignee, custodian, sequestrator, liquidator or similar official for itself or
any of its assets and properties, (5) commence a voluntary case for relief as a
debtor under the United States Bankruptcy Code, (6) file with or otherwise
submit to any governmental authority any petition, answer or other document
seeking (A) reorganization, (B) an arrangement with creditors or (C) to take
advantage of any other present or future applicable law respecting bankruptcy,
reorganization, insolvency, readjustment of debts, relief of debtors,
dissolution or liquidation, (7) be adjudicated bankrupt or insolvent, or (8)
take any action for the purpose of effectuating, approving or consenting to any
of the other actions or events described in this subsection; (d) any case,
proceeding or other action shall be commenced against the Guarantor for the
purpose of effecting, or an order, judgment or decree shall be entered by any
court of competent jurisdiction approving (whether in whole or in part),
anything specified in subsection (d) of this Section, or any receiver, trustee,
assignee, custodian, sequestrator, liquidator or other official shall be
appointed with respect to the Guarantor or all or a substantial part of the
assets and properties of the Guarantor or any of its respective principals or
other affiliates; and (e) one or more final judgments for the payment of money
in excess of $100,000 shall be rendered against the Guarantor and the same shall
remain undischarged for a period of 30 days during which levy and execution
shall not be effectively stayed or contested in good faith.
Section 9. Notices, Etc. All notices and other communications provided for
hereunder shall be in writing and shall be mailed (by certified mail, postage
prepaid and return receipt requested), telecopied or delivered, if to the
Guarantor, to it at the address below its name on the signature page hereto, or
if to the Buyer, to it at its addresses set forth in the Debentures; or as to
either such Person at such other address as shall be designated by such Person
in a written notice to such other Person complying as to delivery with the terms
of this Section 8. All such notices and other communications shall be effective
(i) if mailed, when received or three days after deposited in the mail,
whichever occurs first, (ii) if telecopied, when transmitted and confirmation is
received, or (iii) if delivered, upon delivery.
Section 10. Secured Nature of Guaranty. This Guaranty is secured by the
Security Agreement between the Guaranty and the Buyer dated the date hereof.
Section 11. THIS GUARANTY SHALL BE DEEMED TO BE MADE UNDER AND SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO THE PRINCIPALS OF CONFLICT OF LAWS THEREOF. EACH OF THE PARTIES
CONSENTS TO THE JURISDICTION OF THE U.S. DISTRICT COURT SITTING IN THE SOUTHERN
DISTRICT OF THE STATE OF NEW YORK OR THE XXXXX XXXXXX XX XXX XXXXX XX XXX XXXX
SITTING IN NEW YORK COUNTY, NEW YORK IN CONNECTION WITH ANY DISPUTE ARISING
UNDER THIS DEBENTURE AND HEREBY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW,
ANY OBJECTION, INCLUDING ANY OBJECTION BASED ON FORUM NON CONVENIENS TO THE
BRINGING OF ANY SUCH PROCEEDING IN SUCH JURISDICTIONS.
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SECTION 12. WAIVER OF JURY TRIAL, ETC. THE GUARANTOR HEREBY WAIVES ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM CONCERNING
ANY RIGHTS UNDER THIS GUARANTY OR UNDER ANY AMENDMENT, WAIVER, CONSENT,
INSTRUMENT, DOCUMENT OR OTHER AGREEMENT DELIVERED OR WHICH IN THE FUTURE MAY BE
DELIVERED IN CONNECTION HEREWITH OR THEREWITH, OR ARISING FROM ANY FINANCING
RELATIONSHIP EXISTING IN CONNECTION WITH THIS GUARANTY, AND AGREES THAT ANY SUCH
ACTION, PROCEEDING OR COUNTERCLAIM SHALL BE TRIED BEFORE A COURT AND NOT BEFORE
A JURY. THE GUARANTOR CERTIFIES THAT NO OFFICER, REPRESENTATIVE, AGENT OR
ATTORNEY OF THE BUYER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THE BUYER
WOULD NOT, IN THE EVENT OF ANY ACTION, PROCEEDING OR COUNTERCLAIM, SEEK TO
ENFORCE THE FOREGOING WAIVERS. THE GUARANTOR HEREBY ACKNOWLEDGES THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE BUYER ENTERING INTO THIS AGREEMENT.
Section 13. Taxes.
(a) All payments made by the Guarantor hereunder will be made
without setoff, counterclaim or other defense. All such payments will be made
free and clear of, and without deduction or withholding for, any present or
future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature now or hereafter imposed by any jurisdiction or by any political
subdivision or taxing authority (collectively, "TAXES") thereof or therein with
respect to such payments (but excluding any Tax imposed on or measured by the
net income or net profits the Buyer imposed on it pursuant to the laws of the
jurisdiction in which it is organized or the jurisdiction in which the principal
office or applicable lending office of the Buyer is located). If the Guarantor
shall be required to deduct or to withhold any Taxes from or in respect of any
amount payable hereunder or under any related document,
(i) the Guarantor shall make such deduction or withholding,
(ii) the Guarantor shall pay the full amount deducted or
withheld to the relevant taxation authority in accordance with applicable law,
and
(iii) as promptly as possible thereafter, the Guarantor shall
send the Buyer an official receipt (or, if an official receipt is not available,
such other documentation as shall be satisfactory to the Buyer, as the case may
be) evidencing payment of the amount or amounts so deducted or withheld.
(b) In addition, the Guarantor agrees to pay any present or future
taxes, charges or similar levies which arise from any payment made hereunder or
from the execution, delivery, performance, recordation or filing of, or
otherwise with respect to, this Agreement or any related document.
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Section 14. Miscellaneous.
(a) The Guarantor will make each payment hereunder in lawful money
of the United States of America and in immediately available funds to the Buyer,
at such address specified by the Buyer from time to time by notice to the
Guarantor.
(b) No amendment of any provision of this Guaranty shall be
effective unless it is in writing and signed by the Guarantor and the Buyer, and
no waiver of any provision of this Guaranty, and no consent to any departure by
the Guarantor therefrom, shall in any event be effective unless the same shall
be in writing and signed by the Guarantor and the Buyer, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
(c) No failure on the part of the Buyer to exercise, and no delay
in exercising, any right hereunder, under the Debentures, or under any related
document shall operate as a waiver thereof, nor shall any single or partial
exercise of any right hereunder, under the Debentures, or under any other
related document preclude any other or further exercise thereof or the exercise
of any other right. The rights and remedies of the Buyer provided herein, in the
Debentures, and in the other related document are cumulative and are in addition
to, and not exclusive of, any rights or remedies provided by law. The rights of
the Buyer under the Debentures against any party thereto are not conditional or
contingent on any attempt by the Buyer to exercise any of their rights under the
Debentures or any other related document against such party or against any other
Person.
(d) Any provision of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining portions hereof or thereof or affecting the validity or enforceability
of such provision in any other jurisdiction.
(e) This Guaranty shall (i) be binding on the Guarantor and its
successors and assigns, and (ii) inure, together with all rights and remedies of
the Buyer hereunder, to the benefit of the Buyer and their respective
successors, transferees and assigns. Without limiting the generality of clause
(ii) of the immediately preceding sentence, the Buyer may assign or otherwise
transfer its rights under the Debentures to any other Person, and such other
Person shall thereupon become vested with all of the benefits in respect thereof
granted to the Buyer herein or otherwise. None of the rights or Obligations of
the Guarantor hereunder may be assigned or otherwise transferred without the
prior written consent of the Buyer.
(f) This Guaranty reflects the entire understanding of the
transactions contemplated hereby shall not be contradicted or qualified by any
other agreement, oral or written, before the date hereof.
(g) Section headings herein are included for convenience of
reference only and shall not constitute a part of this Agreement for any other
purpose.
[SIGNATURE PAGE TO FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Guaranty Agreement
to be executed by an officer thereunto duly authorized, as of the date first
above written.
OXFORD VENTURES, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------
Name:
Title:
SCHEDULE I
SCHEDULE OF BUYERS
ADDRESS/FACSIMILE
NAME SIGNATURE NUMBER OF INVESTORS
-------------------------- --------------------------------- -----------------------------
Highgate House Funds, Ltd. By: /s/ Xxxx X. Xxxxxxxxxx
------------------------------- 000 Xxxxxxx Xxxxxx
Name: Xxxx X. Xxxxxxxxxx New York, NY 10022
Its: Portfolio Manager Facsimile: (000) 000-0000
With a copy to: Xxxx Xxxxx, Esq. 000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Prenox, LLC By: /s/ Xxxxxxx Xxxxx
------------------------------- 000 Xxxxx Xxxxxx, 00xx Xxxxx
Name: Xxx Xxxx, XX 00000
Its: Telephone: (000) 000-0000
Facsimile: (000) 000-0000
EXHIBIT A
TERM SHEET
