Exhibit 10.4
GUARANTY
THIS GUARANTY AGREEMENT (the "GUARANTY") is made and entered into this
16th day of April, 2004, by and among XXXXXX INVESTMENT LTD, a Hong Kong Limited
("XXXXXX"), AESP, INC., a Florida corporation ("BORROWER"), XXXX XXXXX ("XXXXX")
and XXXXX XXXXXXX ("XXXXXXX"). Xxxxx and Xxxxxxx are referred to, collectively,
as the "GUARANTORS" and each a "GUARANTOR".
WHEREAS, Borrower desires for Xxxxxx to extend to it a loan (the
"LOAN") in the amount of $631,000.00, pursuant to the terms and conditions of
that certain secured promissory note (the "XXXXXX PROMISSORY NOTE") and the Loan
Agreement of even date herewith.
WHEREAS, to induce Xxxxxx to enter into the Xxxxxx Promissory Note, the
Guarantors have agreed, jointly and severally, to provide a full and
unconditional guaranty of the payment and performance obligations of Borrower
under the Xxxxxx Promissory Note;
NOW, THEREFORE, in consideration of the Loan, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantors hereby unconditionally guarantee to Xxxxxx, and its
endorsees, transferees and assigns the punctual payment when due, whether by
acceleration or otherwise, and at all times thereafter, of all obligations of
Borrower to Xxxxxx pursuant to the Xxxxxx Promissory Note.
ARTICLE 1.
RECITALS
1.1. RECITALS. The above recitals are true and correct and are
incorporated herein, in their entirety, by this reference.
1.2. DEFINITIONS. All capitalized terms contained herein shall have the
meaning ascribed to them in the Loan Agreement entered into between, among
others, the Borrower and the Secured Party, dated as of April 16, 2004 (the
"LOAN AGREEMENT"), unless specifically provided otherwise in this Agreement.
ARTICLE 2.
GUARANTY
2.1. GUARANTY. The Guarantors, as direct obligors and not merely as
sureties, hereby unconditionally, absolutely, and irrevocably guarantee, jointly
and severally, to Xxxxxx (i) that the Borrower shall repay to Xxxxxx the
principal amount plus accrued interest within the period of time provided in the
Xxxxxx Promissory Note, and all other amounts due to Xxxxxx under the Xxxxxx
Promissory Note and other Transaction Documents, including, without limitation,
all reasonable fees and costs incurred by Xxxxxx in collecting or securing or
attempting to collect or secure the Xxxxxx Promissory Note, including reasonable
attorneys' fees and expenses, whether or not involving litigation and/or
appellate or bankruptcy proceedings (collectively, the "Obligations"), and (ii)
the full and prompt performance and payment of all of the Borrower's Obligations
under the Xxxxxx Promissory Note and the other Transaction Documents. If the
Borrower should default in the payment or performance of any of the Obligations,
the Guarantors, as direct obligors and not merely as sureties, shall forthwith
pay or perform such Obligations without notice or demand by Xxxxxx in the manner
and on the day required by this Guaranty.
2.2. CONTINUING GUARANTY. The Guarantors agree that their obligations
pursuant to this Section 2 are unconditional, absolute, and irrevocable and
shall not be released, discharged or affected in any way by any circumstances or
condition, including without limitation:
(a) any amendment or modification or other change to any of
the Transaction Documents;
(b) any failure, omission or delay on the part of the Borrower
to conform or comply with any term of any of the Transaction Documents;
(c) any release or discharge by operation of law of the
Borrower or any Guarantor from any obligation or agreement contained in any of
the Transaction Documents or this Guaranty; and
(d) any other occurrence, circumstance, happening or event,
whether similar or dissimilar to the foregoing and whether foreseen or
unforeseen, which otherwise might constitute a legal or equitable defense or
discharge of the liabilities of a guarantor or surety or which otherwise might
limit recourse against the Borrower or the Guarantors.
2.3. GUARANTY OF PAYMENT AND NOT OF COLLECTION. The liability of the
Guarantors shall be continuing, direct and immediate and not conditional or
contingent upon either the pursuit of any remedies against the Borrower or any
other person or foreclosure of any security interests or liens available to
Xxxxxx, its successors, endorsees or assigns. Xxxxxx may accept any payment(s),
plan for adjustment of debts, plan of reorganization or liquidation, or plan of
composition or extension proposed by, or on behalf of, the Borrower or any other
guarantor without in any way affecting or discharging the liability of the
Guarantors. If the Obligations are partially paid, the Guarantors shall remain
liable for any balance of such Obligations. This Guaranty shall be revived and
reinstated in the event any payment received by Xxxxxx on any Obligation is
required to be repaid or rescinded under present or future federal or state law
or regulation relating to bankruptcy, insolvency or other relief of debtors.
2.4. DISCHARGE. The Guarantors covenant and agree that this Guaranty
will not be discharged, except by complete performance of its obligations
contained herein. Upon the occurrence of no amounts of principal, interest or
other amounts whatsoever being due to Xxxxxx under the Xxxxxx Promissory Note
and the Transaction Documents or being made zero simultaneously with the
termination hereof, the Guarantors shall have the right to terminate this
Guaranty by providing written notice of such termination to Xxxxxx.
2.5. COSTS AND EXPENSES. Without limiting any obligation of the
Guarantors hereunder, the Guarantors agree to pay all reasonable fees and costs
incurred by Xxxxxx in collecting or securing or attempting to collect or secure
this Guaranty, the Xxxxxx Promissory Note or the Transaction Documents,
including, without limitation, reasonable attorneys' fees and expenses, whether
or not involving litigation and/or appellate or bankruptcy proceedings.
2
2.6. REPRESENTATIONS AND WARRANTIES. The Guarantors hereby, jointly and
severally, represent and warrant to Xxxxxx as follows: (a) the Guarantors have
full power, right and authority to enter into and perform their obligations
under this Guaranty, and this Guaranty has been duly executed and delivered by
the Guarantors and constitutes the valid and binding obligation of the
Guarantors and is enforceable against the Guarantors in accordance with its
terms. No permits, approvals or consents of or notifications to (a) any
governmental entities, or (b) any other persons or entities are necessary in
connection with the execution, delivery and performance by the Guarantors of
this Guaranty and the consummation by the Guarantors of the transactions
contemplated hereby. Neither the execution and delivery of this Guaranty by the
Guarantors nor the performance by them of the transactions contemplated hereby
will:
(a) violate or conflict with or result in a breach of any
provision of any law, statute, rule, regulation, order, permit, judgment,
ruling, injunction, decree or other decision (collectively, "Rules") of any
court or other tribunal or any governmental entity or agency binding on any of
the Guarantors or their properties, or conflict with or cause an event of
default under any contract or agreement of any of the Guarantors; or
(b) require any authorization, consent, approval, exemption or
other action by or notice to any court, administrative or governmental body,
person, entity or any other third party.
ARTICLE 3.
MISCELLANEOUS
3.1. NOTICES. All notices, requests, demands, instructions, consents or
other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if and (a) when
delivered personally, (b) five days after they are mailed by first class
certified mail, return receipt requested, postage prepaid, or (c) two days after
they are sent by a nationally recognized express courier service, postage or
delivery charges prepaid, to the parties at the following addresses or to such
other addresses as the parties may give notice in accordance herewith:
If to Xxxxxx: Bended Investment Ltd
0000 Xxxxxx'x Xxxxxxxx
00 Xxxxxx Xxxx
Xxxx Xxxx, XXX
Attention: Xx. Xxxxxxxx X. Xxxxxxxxxx
With a copy to: Xxxxxxxxxxx & Xxxxxxxx LLP
Miami Center, Suite 2000
000 Xxxxx Xxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
3
If to Guarantors: Xxxx Xxxxx
AESP, Inc.
0000 X. X. 000 Xxxxxx
Xxxxx Xxxxx, Xxxxxxx 00000
With a copy to: Akerman Senterfitt
Xxx Xxxxxxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx
3.2. WAIVER OF PRESENTMENT. To the fullest extent permitted by law and
except as otherwise provided herein, the Guarantors waive demand, presentment,
protest, notice of dishonor, suit against or joinder of any other person, and
all other requirements necessary to charge or hold the Guarantors liable with
respect to this Guaranty.
3.3. SEVERABILITY. If any provision of this Guaranty not affecting the
commercial purpose of this Guaranty, is, for any reason, invalid or
unenforceable, the remaining provisions of this Guaranty will nevertheless be
valid and enforceable and will remain in full force and effect. Any provision of
this Guaranty that is held invalid or unenforceable by a court of competent
jurisdiction will be deemed modified to the extent necessary to make it valid
and enforceable and as so modified will remain in full force and effect.
3.4. AMENDMENT AND WAIVER. This Guaranty may be amended, or any
provision of this Guaranty may be waived, provided that any such amendment or
waiver will be binding on a party hereto only if such amendment or waiver is set
forth in a writing executed by the parties hereto. The waiver by any such party
hereto of a breach of any provision of this Guaranty shall not operate or be
construed as a waiver of any other breach.
3.5. HEADINGS. The subject headings of Articles and Sections of this
Guaranty are included for purposes of convenience only and shall not affect the
construction or interpretation of any of its provisions.
3.6. ASSIGNMENT. Xxxxxx may not assign this Guaranty without the
written consent of the Guarantors. This Guaranty will be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns, but will not be assignable or delegable by the Guarantors.
Except as otherwise provided herein, this Guaranty shall bind and inure to the
benefit of and be enforceable by the parties and their permitted successors and
assigns.
3.7. FURTHER ASSURANCES. Each party will execute all documents and take
such other actions as the other parties may reasonably request in order to
consummate the transactions provided for herein and to accomplish the purposes
of this Guaranty.
3.8. THIRD PARTIES. Nothing herein expressed or implied is intended or
shall be construed to confer upon or give to any person or entity, other than
the stated beneficiaries of this Guaranty and their respective permitted
successors and assigns, any rights or remedies under or by reason of this
Guaranty.
4
3.9. NO STRICT CONSTRUCTION. The language used in this Guaranty will be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any party
hereto.
3.10. EVENT OF DEFAULT. For purposes of this Guaranty, an event of
default shall be deemed to have occurred hereunder:
(a) If the Borrower should default under the Xxxxxx Promissory
Note, in the payment or performance of any of the Obligations or under any of
the Transaction Documents, the Guarantor shall fail for any reason or for no
reason, to forthwith pay or perform such Obligations without notice or demand by
Xxxxxx in the manner and on the day required this Guaranty;
(b) if any of the Guarantors make an assignment for the
benefit of creditors or admits in writing its inability to pay its debts
generally as they become due; or an order, judgment or decree is entered
adjudicating any of the Guarantors bankrupt or insolvent; or any order for
relief with respect to any of the Guarantors is entered under any bankruptcy or
insolvency laws; or any of the Guarantors petitions or applies to any tribunal
for the appointment of a custodian, trustee, receiver or liquidator of such
Guarantor of any substantial part of the assets of the Guarantor, or commences
any proceeding relating to any of the Guarantors under any bankruptcy
reorganization, arrangement, insolvency, readjustment of debt, dissolution or
liquidation law of any jurisdiction; or any such petition or application is
filed, or any such proceeding is commenced, against any of the Guarantors; or
(c) if any of the Guarantors should default in any other
obligation set forth in this Guaranty or the Transaction Documents.
Upon an event of default, all of the obligations of the Guarantors
hereunder shall be immediately due and payable without any action on the part of
Xxxxxx, and Xxxxxx shall be entitled to seek and institute any and all remedies
available to it. No remedy conferred under this Guaranty upon Xxxxxx is intended
to be exclusive of any other remedy available to Xxxxxx, pursuant to the terms
of this Guaranty or otherwise. No single or partial exercise by Xxxxxx of any
right, power or remedy hereunder shall preclude any other or further exercise
thereof. The failure of Xxxxxx to exercise any right or remedy under this
Guaranty or otherwise, or delay in exercising such right or remedy, shall not
operate as a waiver thereof.
3.11. REMEDIES, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF.
Xxxxxx' remedies provided in this Guaranty shall be cumulative and in addition
to all other remedies available to the Xxxxxx under this Guaranty or otherwise,
at law or in equity (including a decree of specific performance and/or other
injunctive relief), no remedy of Xxxxxx contained herein shall be deemed a
waiver of compliance with the provisions giving rise to such remedy and nothing
herein shall limit Xxxxxx' right to pursue actual damages for any failure by any
of the Guarantors to comply with the terms of this Guaranty. Every right and
remedy of any of the Guarantors under any document executed in connection with
this transaction, including but not limited to this Guaranty and the Transaction
Documents or under applicable law may be exercised from time to time and as
often as may be deemed expedient by Xxxxxx. Each of the Guarantors acknowledges
that a breach by him of his obligations hereunder will cause irreparable harm to
5
Xxxxxx and that the remedy at law for any such breach may be inadequate. The
Guarantors therefore agree that, in the event of any such breach or threatened
breach, Xxxxxx shall be entitled, in addition to all other available remedies,
to an injunction restraining any breach, and specific performance without the
necessity of showing economic loss and without any bond or other security being
required.
3.12. GOVERNING LAW; JURISDICTION. This Guaranty and all transactions
contemplated by this Guaranty shall be governed by and construed and enforced in
accordance with the laws of the State of Florida, without regard to principles
of conflicts of law. The parties hereto hereby agree to the exclusive
jurisdiction of the state courts situated in Miami-Dade County and the parties
hereby waive any objection which they may have to the laying of venue of any
such proceeding in such court and waive any claim of inconvenient forum with
respect to such venue. The parties hereto further agree that service of process,
relating to an action arising hereunder, pursuant to the notice provision set
forth in this Guaranty shall be sufficient and hereby waive any claim for
insufficiency of process as a result of a party's use of such method of service.
3.13. WAIVER OF JURY TRIAL. AS A MATERIAL INDUCEMENT FOR XXXXXX TO LOAN
TO THE BORROWER THE MONIES UNDER THE PROMISSORY NOTE AND TO ACCEPT THIS
GUARANTY, THE GUARANTORS HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING RELATED IN ANY WAY TO THIS AGREEMENT AND/OR ANY AND ALL OF THE OTHER
DOCUMENTS ASSOCIATED WITH THIS TRANSACTION.
3.14. ENTIRE AGREEMENT. This Guaranty (including the recitals hereto)
sets forth the entire understanding of the parties with respect to the subject
matter hereof, and shall not be modified or affected by any offer, proposal,
statement or representation, oral or written, made by or for any party in
connection with the negotiation of the terms hereof, and may be modified only by
instruments signed by all of the parties hereto.
IN WITNESS WHEREOF, the Guarantors have caused this Guaranty to be
signed as of the date first written above.
/s/ Xxxx Xxxxx
-----------------------------------------
XXXX XXXXX
/s/ Xxxxx Xxxxxxx
-----------------------------------------
XXXXX XXXXXXX
6
