NON-RECOURSE GUARANTY
Exhibit
10.4
This
NON-RECOURSE GUARANTY is made as of the 12th day of
February, 2010, by each of the persons set forth on Schedule A attached
hereto (each a “Guarantor”) for the
benefit of the purchasers set forth on Schedule B attached
hereto (the “Purchasers”).
WITNESSETH:
WHEREAS,
on February 12, 2010, each of the Purchasers entered into a Note Purchase
Agreement (the “Note
Purchase Agreement”) with Perpetual Technologies Inc. (the “Company”), pursuant
to which the Purchasers are purchasing from the Company certain convertible
promissory notes (the “Notes”) and certain
warrants (“Warrants”);
WHEREAS,
the Company has entered into a reverse merger agreement (the “Reverse Merger
Agreement”) pursuant to which the Company acquired control of a British
Virgin Islands company (the “BVI Company”), the
owner of all of the outstanding capital stock of Technic
International, Inc., a Hong Kong company (“Technic”), and the
owner of all of the outstanding equity interests of Foshan SLP Special Materials
Company (“Foshan”), a limited
liability company organized under the laws of the People’s Republic of China
(“PRC”) (the
“Reverse Merger
Transaction”) and therefore Technic and Foshan became wholly-owned
subsidiaries of the Company;
WHEREAS,
each Guarantor is a stockholder of the Company, and will derive direct and
indirect economic benefits from the transactions contemplated under the Note
Purchase Agreement;
WHEREAS,
in order to induce the Purchasers to enter into the Note Purchase Agreement and
purchase the Notes from the Company, and as a condition thereto and in
consideration of the benefits which will accrue to the Guarantors as a result
thereof, each Guarantor desires to guarantee the Company’s obligations under the
Notes;
WHEREAS,
concurrently herewith, the Guarantors are entering into a stock pledge agreement
pursuant to which the Guarantors are pledging their shares of Company capital
stock (“Guarantor Shares”) as security for their obligations hereunder (the
“Stock Pledge
Agreement”); and
WHEREAS,
unless otherwise defined herein, defined terms shall have the respective
meanings set forth in the Note Purchase Agreement;
NOW,
THEREFORE, the Guarantors, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, hereby agree as follows:
1.
Each Guarantor, jointly and severally, hereby unconditionally and irrevocably
guarantees to each of the Purchasers pari passu the due and
punctual payment and performance in full of all obligations and liabilities of
the Company to each Purchaser under the Notes (collectively, the “Obligations”).
2.
This Guaranty is irrevocable, continuing, indivisible and unconditional and
shall remain in full force and effect regardless of, and shall not discharged,
terminated, impaired, affected or modified in any manner by reason of (a) any
subordination, amendment, modification, extension, renewal, assignment or
transfer of the Notes or any other Transaction Document; (b) the assertion or
exercise by any Purchaser, or the failure of any Purchaser to assert or
exercise, any right, remedy, power or privilege under or in respect of this
Guaranty, the Note Purchase Agreement, the Notes, any other Transaction
Document, or the Obligations, or any waiver of any such right, remedy, power or
privilege; (c) the existence or continuance, or discontinuance, of the Company
as a legal entity; (d) the bankruptcy, insolvency, receivership, reorganization,
arrangement, readjustment, composition, liquidation or the like, of a Guarantor,
a Purchaser, or the Company, or the making by the Company, a Purchaser or a
Guarantor of an assignment for the benefit of creditors; (e) the acceptance,
alteration, release or substitution by Purchaser of any security for the
Obligations, whether provided by the Company, Guarantor or any other person, (f)
any waiver, consent, extension, indulgence or other action or inaction in
respect of this Guaranty, any other Transaction Document, or the Obligations;
(g) any lack of validity or enforceability of the Notes or any other Transaction
Document or any other agreement or instrument governing or evidencing any
Obligations; (h) the death or incompetency of a Guarantor, or the termination or
modification of a Guarantor’s relationship with the Company; or (i) any other
action or circumstances which might otherwise constitute a legal or equitable
discharge or defense of a surety, accommodation co-obligor, or guarantor,
whether or not such Guarantor shall have notice or knowledge of each or any of
the foregoing. This Guaranty is and shall be a direct and primary
obligation of each Guarantor, and may be enforced by any Purchaser without prior
resort to the Company or the exhaustion of any rights or remedies that any
Purchaser may have against the Company.
3.
Notwithstanding anything to the contrary herein, each Guarantor’s obligations
under this Guaranty are non-recourse to each Guarantor and are limited only to
the collateral pledged by such Guarantor under the Stock Pledge Agreement and
any payments or amounts realized, recovered or otherwise received by in respect
of the recovery of or realization on any such collateral.
4.
Guarantor hereby expressly waives the following: (a) acceptance and notice of
acceptance of this Guaranty by any Purchaser; (b) notice of extension of time of
the payment, performance and compliance with, or the renewal or alteration of
the terms and conditions of, any Obligations; (c) notice of any demand for
payment, notice of default or nonpayment as to any Obligations; (d) all other
notices to which the Guarantor might otherwise be entitled in connection with
this Guaranty or the Obligations; (e) trial by jury and the right thereto in any
action or proceeding of any kind or nature, arising on, under or by reason of,
or relating in any way to, this Guaranty or the Obligations; and (f) any and all
defenses, claims, setoffs and discharges of the Company, or any other obligor,
pertaining to the Obligations, except the defense of discharge by payment in
full.
5.
Guarantor has not and will not set up or claim any counterclaim, set-off or
other objection of any kind to any suit, action or proceeding at law, in equity,
or otherwise, that may be instituted or made under and by virtue of this
Guaranty. All remedies of the Purchasers by reason of or under this
Guaranty are separate and cumulative remedies, and it is agreed that no one of
such remedies shall be deemed in exclusion of any other remedies available to
the Purchasers.
6.
Guarantor represents and warrants that the Guarantor has full power and
authority to execute, deliver and perform this Guaranty, and that neither the
execution, delivery nor performance of this Guaranty will violate any law or
regulation, or any order or decree of any court or governmental authority, or
will conflict with, or result in the breach of, or constitute a default under,
any agreement or other instrument to which Guarantor is a party or by which
Guarantor may be bound, or will result in the creation or imposition of any
lien, claim or encumbrance upon any property of Guarantor.
7.
This Guaranty may not be changed or terminated orally. No
modification or waiver of any provision of this Guaranty shall be effective
unless such modification or waiver shall be in writing and signed by the
Purchasers, and the same shall then be effective only for the period and on the
conditions and for the specific instances and purposes specified in such
writing. No course of dealing between Guarantor and any Purchaser in
exercising any rights or remedies hereunder shall operate as a waiver or
preclude the exercise of any other rights or remedies hereunder.
8.
This Guaranty shall be construed in accordance with, and governed by, the laws
of the State of New York, without giving effect to such jurisdiction’s
principles of conflict of laws, except to the extent that the validity or the
perfection of the security interest hereunder, or remedies hereunder, in respect
of any particular collateral are governed by the laws of a jurisdiction other
than the State of New York.
9.
This Guaranty shall be binding upon Guarantors and their respective heirs,
executors, administrators, legal representatives, successors and assigns, and
shall insure to the benefit of the Purchasers and their respective heirs,
executors, administrators, legal representatives, successors and
assigns.
10.
Each Guarantor hereby waives all rights that such Guarantor may now have or
hereafter acquire, whether by subrogation, contribution, reimbursement,
recourse, exoneration, contract or otherwise, to recover from the Company or
from any property of the Company any sums paid under this Guaranty or the Stock
Pledge Agreement.
11.
Each Guarantor will pay or reimburse the Purchasers for all costs, expenses and
reasonable attorneys’ fees paid or incurred by the Purchasers in endeavoring to
collect and enforce the Obligations and in enforcing this Guaranty.
12.
If any payment applied by the Purchasers to the Obligations is thereafter set
aside, recovered, rescinded or required to be returned for any reason
(including, without limitation, the bankruptcy, insolvency or reorganization of
the Company or any other obligor), the Obligations to which such payment was
applied shall for the purpose of this Guaranty be deemed to have continued in
existence, notwithstanding such application, and this Guaranty shall be
enforceable as to such Obligations as fully as if such application had never
been made.
13.
This Guaranty shall be effective upon delivery to the Purchasers, without
further act, condition or acceptance by the Purchasers. Any
invalidity or unenforceability of any provision or application of this Guaranty
shall not affect other lawful provisions and application thereof, and to this
end the provisions of this Guaranty are declared to be
severable. This Guaranty may not be waived, modified, amended,
terminated, released or otherwise changed except by a writing signed by the
Guarantors and the Purchasers. This Guaranty shall be governed by and
construed in accordance with the substantive laws (other than conflict laws) of
the State of New York. Each Guarantor hereby (i) consents to the
personal jurisdiction of the state and federal courts located in the State of
New York in connection with any controversy related to this Guaranty;
(ii) waives any argument that venue in any such forum is not convenient,
(iii) agrees that any litigation in connection with this Guaranty may be
venued in the state or federal courts located in the State of New York; and
(iv) agrees that a final judgment in any such suit, action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
14.
This Guaranty may be executed in any number of counterparts, each of which shall
be deemed to be an original, and all of which together shall constitute one and
the same document. This Guaranty may be executed and delivered by
facsimile copies showing the signatures of the Guarantors, and those signatures
need not be affixed to the same copy. In the event that any signature
is delivered by facsimile transmission, such signature shall create a valid
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
were the original thereof.
[signatures
follow on next page]
IN
WITNESS WHEREOF, each Guarantor has executed this Non-Recourse Guaranty as of
the 12th day of
February, 2010.
| Bestyield Group Limited | |
| By: |
/s/ Xxx Xx
|
| Name: Xxx Xx | |
| Title: Director | |
| Proudlead Limited | |
| By: |
/s/ Wawai
Law
|
| Name: Wawai Law | |
| Title: Director | |
