EXHIBIT 10.4
GUARANTY
DATE: July 25, 2006
DEBTOR: OLDHAM GROUP, INC.
CREDITOR: X. X. XXXXX
GUARANTOR: XXXXX X. XXXXXX, III
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RECITALS:
A. The Guarantor is a primary shareholder of the Debtor.
B. The Creditor and the Debtor have entered into a Stock Purchase Agreement
dated July 25, 2006 (Sale Agreement) under which the Creditor has agreed to sell
386,800,000 shares of the common stock of E'Prime Aerospace Corporation to the
Debtor. In connection with that sale, the Debtor is to give the Creditor a
promissory note of the Debtor in the principal amount of Two Million and No/100
Dollars ($2,000,000.00) (Promissory Note). It is a condition of the closing of
that sale that the Guarantor guaranty payment of the Promissory Note and other
obligations of the Debtor to the Creditor.
C. The purchase by the Debtor from the Creditor will benefit the Guarantor
as a primary shareholder of the Debtor, and the Guarantor is willing to guaranty
the Promissory Note and other obligations of Debtor as provided in this
Guaranty.
AGREEMENTS:
SECTION 1. GUARANTY
The Guarantor absolutely and unconditionally guarantees to the Creditor the
full and prompt payment by the Debtor of the Promissory Note, together with
interest thereon, as well as each and every obligation under the terms of the
Sale Agreement and documents executed by the Debtor in connection with the Sale
Agreement, in the same manner and with like effect as if the Guarantor were a
principal party to such Promissory Note and Sale Agreement, including but not
limited to, all costs and expenses, including attorney's fees, incurred by the
Creditor in connection with the collection of the Promissory Note or other
obligation of the Debtor or with the collection or sale of any collateral.
SECTION 2. NATURE OF UNDERTAKING
The liability of the Guarantor under this Guaranty shall be absolute,
continuing, irrevocable, and unconditional. The Guarantor intends to guaranty,
at all times, the payment or performance of all of the obligations due to the
Creditor under the Promissory Note and the Sale Agreement. No payments made upon
the obligations due to the Creditor shall be held to discharge or diminish the
liability of the Guarantor for any and all remaining or succeeding obligations
due to the Creditor. All obligations which the Guarantor undertakes to pay
hereunder shall be paid in lawful money of the United States of America.
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SECTION 3. DURATION OF UNDERTAKING
This Guaranty shall take effect upon receipt by the Creditor without the
necessity of any acceptance by the Creditor, and shall continue in full force
and effect until payment in full to the Creditor of the amounts, including both
principal and interest, due to the Creditor under the Promissory Note shall have
been made and payment or performance in full or all obligations due to the
Creditor by the Debtor under the terms of the Sale Agreement shall have been
made and payment or performance in full of all obligations due to the Creditor
by the Guarantor under the terms of this Guaranty shall have been made.
SECTION 4. DEALINGS WITH DEBTOR
The Guarantor authorizes the Creditor to deal with the Debtor and the
Debtor's sureties, endorsers, and other guarantors, in any manner in which the
Creditor sees fit in connection with any obligations or indebtedness of the
Debtor to the Creditor, without any further consent or authorization from the
Guarantor being necessary. Specifically, but without limiting the power of the
Creditor, the Creditor may extend the time for payment of any indebtedness of
the Debtor; the Creditor may release or agree not to xxx the Debtor's sureties,
endorsers, or other guarantors on any terms the Creditor chooses; the Creditor
may xxx or fail to xxx the Debtor upon any overdue indebtedness or may realize
or neglect to realize upon any collateral held in connection therewith; all of
the foregoing without the necessity of any consent from the Guarantor and
without affecting the Guarantor's liability under this Guaranty.
SECTION 5. RIGHTS AGAINST GUARANTOR
Except to the extent that the Creditor is required to give notice of
default to the Guarantor pursuant to the Sale Agreement, the Guarantor hereby
expressly waives presentment, protest, demand, or notice of any kind, including
notice of nonpayment of any of the Debtor's indebtedness or of any collateral
thereto and notice of any action or non-action on the part of the Debtor, the
Guarantor, or any surety, endorser, or other guarantor. Upon the occurrence of
any default under the terms of the Promissory Note or the Sale Agreement and a
failure by the Debtor or the Guarantor to cure the same within any applicable
notice period, the Creditor shall then and there be entitled to immediate
payment by the Guarantor of the full amount of the indebtedness and obligations
due to the Creditor under the Promissory Note and Sale Agreement, and the
Creditor shall, in the Creditor's sole discretion, have the right to proceed
first and directly against the Guarantor to collect such amount under this
Guaranty without first proceeding against the Debtor, or any surety, endorser,
or other guarantor and without foreclosing upon or selling or otherwise
disposing of any collateral the Creditor may have as security for any of the
Debtor's indebtedness. Failure of the Creditor to assert the Creditor's rights
immediately to payment or so to proceed shall not relieve the Guarantor of the
Guarantor's obligations under this Guaranty or in any sense constitute a waiver.
The Creditor shall have the right to demand and collect from the Guarantor all
or any portion of the Debtor's indebtedness and obligations guaranteed hereunder
and failure of the Creditor at any time to demand from the Guarantor or to
proceed to collect from the Guarantor the full amount of such indebtedness from
the Guarantor shall not preclude the Creditor from later demanding or proceeding
to collect from the Guarantor any remaining indebtedness covered by this
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Guaranty. In any action or suit against the Guarantor to enforce this Guaranty,
the Creditor shall be entitled to recover from the Guarantor, in addition to
costs and disbursements allowed by law, a reasonable amount for the Creditor's
attorney's fees in such action or suit.
SECTION 6. ELECTION OF REMEDIES
Upon the occurrence of a default under the terms of the Promissory Note or
Sale Agreement and a failure by the Debtor or the Guarantor to cure the same
within any applicable notice period, the Creditor may elect to enforce this
Guaranty, proceed against any collateral held or pursue any other available
remedy in any order or manner as the Creditor may, in the Creditor's sole
discretion, elect. If the Creditor elects to sell or otherwise dispose of any
collateral and if the amount realized by the Creditor upon such sale or
disposition is insufficient to fully satisfy the obligations and indebtedness
guaranteed in this Guaranty, the Creditor shall be entitled to recover the
deficiency from the Guarantor even if the Creditor could not recover such
deficiency from the Debtor.
SECTION 7. SUBORDINATION OF GUARANTOR'S RIGHTS AGAINST DEBTOR
The Guarantor agrees that the indebtedness and obligations of the Debtor to
the Creditor guaranteed under this Guaranty shall be, and the same hereby are,
declared to be prior to any claim that the Guarantor may now have or hereafter
acquire against the Debtor, whether or not the Debtor becomes insolvent, and the
Guarantor shall and does expressly subordinate any such claim the Guarantor may
have against the Debtor, upon any account whatsoever, to any claim that the
Creditor may now or hereafter have against the Debtor as a result of the
indebtedness and obligations guaranteed in this Guaranty. In the event of
insolvency and consequent liquidation of the assets of the Debtor, the assets of
the Debtor applicable to the payment of the claims of both the Creditor and the
Guarantor shall be paid to the Creditor and shall be first applied by the
Creditor to the indebtedness and obligations guaranteed under this Guaranty. The
Guarantor hereby assigns to the Creditor all claims that the Guarantor may have
or acquire against the Debtor or any assignee or trustee in bankruptcy of the
Debtor; provided, that such assignment shall be effective only for the purpose
of assuring to the Creditor full payment of all indebtedness and obligations
guaranteed under this Guaranty.
SECTION 8. SUBSTITUTE PERFORMANCE
The Creditor hereby agrees to accept performance by the Guarantor of any
obligation of the Debtor pursuant to the Promissory Note and Sale Agreement, and
prior to any default, prior to the lapse of any period for the cure of default,
or subsequent to default (but not otherwise than as required by reason of such
default) as if such performance were tendered by the Debtor.
SECTION 9. MISCELLANEOUS PROVISIONS
9.1 Binding Effect. The provisions of this Guaranty shall be binding upon
and inure to the benefit of the heirs, personal representatives, successors, and
assigns of the parties.
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9.2 Litigation Expense. In the event of a default under this Guaranty, the
Guarantor shall reimburse the Creditor for all costs and expenses reasonably
incurred by the Creditor in connection with the default, including without
limitation attorney's fees.
9.3 Waiver. No waiver of any provision of this Guaranty shall be deemed, or
shall constitute, a waiver of any other provision, whether or not similar, nor
shall any waiver constitute a continuing waiver. No waiver shall be binding
unless executed in writing by the party making the waiver.
9.4 Applicable Law. This Guaranty shall be governed by and shall be
construed in accordance with the laws of the state of Florida.
9.5 Partial Invalidity. If any term, provision, stipulation, sentence,
clause or word in this Guaranty shall be held unenforceable or invalid, such
unenforceability or invalidity shall not affect the enforceability or validity
of any other portion of this Guaranty.
Dated effective the 25th day of July, 2006.
/s/ Xxxxx X. Xxxxxx, III
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XXXXX X. XXXXXX, III, personally
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