GUARANTY
Exhibit
10.4
This GUARANTY (the “Guaranty”),
dated as of August 17, 2010, is executed and delivered by ROSE HILL GARDENS LLC (the
“Guarantor”) in
favor of the Investors set forth on Schedule A affixed
hereto, each in its capacity as Investor under the Purchase Agreement (as
defined below) (in such capacity, and together with their respective successors,
transferees and assigns, the “Investors”).
WITNESSETH:
WHEREAS, the Guarantor is a
shareholder of First Blush Brands, Inc. (the “Borrower”);
and
WHEREAS, concurrently
herewith, the Borrower and the Investors are entering into a Securities Purchase
Agreement (the “Purchase Agreement”),
pursuant to which the Borrower will sell to the Investors, and the Investors
will purchase from the Borrower, (i) promissory notes in the aggregate
principal amount of $1,100,000, with an interest rate of 10% per annum (the
“Notes”) and
(ii) 1,000,000 shares of common stock of the Company (the “Shares”) (the “Private Placement”);
and
WHEREAS, in order to induce
the Investors to enter into the Transaction Documents and to purchase the Notes
and Shares, and in consideration thereof, the Guarantor has agreed to guaranty
the payment of the Guarantied Obligations (as defined below) and execute and
deliver this Guaranty; and
WHEREAS, the purchase of the
Notes and Shares will be beneficial to the Guarantor inasmuch as the proceeds of
the Private Placement to the Borrower will indirectly benefit the
Guarantor.
NOW, THEREFORE, in
consideration of the foregoing and for other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged by the Guarantor,
the Guarantor hereby agrees as follows:
1. Guaranty of Payment and
Performance. The Guarantor hereby irrevocably and
unconditionally guarantees to the Investors the full and punctual payment when
due (whether at maturity, by acceleration or otherwise and whether for
principal, interest, fees, expenses or otherwise), and the performance, of all
liabilities, agreements and other obligations of the Borrower to the Investors
under the Notes, in each case, whether direct or indirect, absolute or
contingent, due or to become due, secured or unsecured, now existing or
hereafter arising or acquired (whether by way of discount, letter of credit,
lease, loan, overdraft or otherwise), including without limitation all
liabilities and obligations of the Borrower due or become due, or that are now
or may be hereafter contracted or acquired or owing of the Borrower to the
Investors under the Notes (collectively, the “Guarantied
Obligations”). This Guaranty is an absolute, unconditional and
continuing guaranty of the full and punctual payment and performance of the
Guarantied Obligations and not of their collectibility only and is in no way
conditioned upon any requirement that the Investors first attempt to collect any
of the Guarantied Obligations from the Borrower or resort to any security or
other means of obtaining their payment. Should the Borrower default
in the payment or performance of any of the Guarantied Obligations, the
obligations of the Guarantor hereunder shall become immediately due and payable
to the Investor, without demand or notice of any nature, all of which are
expressly waived by the Guarantor. Payments by the Guarantor
hereunder may be required by the Investors on any number of
occasions.
2. Guarantor’s Agreement to
Pay. The
Guarantor further agrees, as the principal obligor and not as a guarantor only,
to pay to the Investor, on demand, all costs and expenses (including court costs
and reasonable legal expenses) incurred or expended by the Investor in
connection with enforcement of this Guaranty, together with interest on amounts
recoverable under this Guaranty from the time such amounts become due under this
Guaranty until payment, at the rate per annum equal to the default rate set
forth in the Note; provided that if such interest exceeds the maximum amount
permitted to be paid under applicable law, then such interest shall be reduced
to such maximum permitted amount.
3. Unlimited Guaranty;
Covenant. The liability of the
Guarantor hereunder shall be unlimited to the extent of the Guarantied
Obligations and the other obligations of the Guarantor hereunder (including,
without limitation, under Section 2 above).
4. Waivers by Guarantors;
Investors’ Freedom to Act. The Guarantor agrees
that the Guarantied Obligations will be paid and performed strictly in
accordance with their terms 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 Investor with respect thereto. The Guarantor waives
presentment, demand, protest, notice of acceptance, notice of Guarantied
Obligations incurred and all other notices of any kind, all defenses which may
be available to the Borrower by virtue of any valuation, stay, moratorium law or
other similar law now or hereafter in effect, any right to require the
marshalling of assets of the Borrower, and all suretyship defenses generally.
Without limiting the generality of the foregoing, the Guarantor agrees to the
provisions of any instrument evidencing, securing or otherwise executed in
connection with any Guarantied Obligation and agrees that the obligations of the
Guarantor hereunder shall not be released or discharged, in whole or in part, or
otherwise affected by (i) the failure of any Investor to assert any claim
or demand or to enforce any right or remedy against the Borrower; (ii) any
extensions, renewals, increases, restatements, replacements, settlements or
compromises of any Guarantied Obligation; (iii) any rescissions,
forbearances, waivers, amendments or modifications of any of the terms or
provisions of any agreement evidencing, securing or otherwise executed in
connection with any Guarantied Obligation; (iv) the substitution or release
of any entity primarily or secondarily liable for any Guarantied Obligation or
of any property or asset subject to a lien in favor of any Investor;
(v) the adequacy of any rights the Investors may have against any
collateral or other means of obtaining repayment of the Guarantied Obligations;
(vi) the impairment of any collateral securing the Guarantied Obligations,
including without limitation the failure to perfect or preserve any rights any
Investor might have in such collateral or the substitution, exchange, surrender,
release, loss or destruction of any such collateral; or (vii) any other act
or omission which might in any manner or to any extent vary the risk of the
Guarantor or otherwise operate as a release or discharge of Borrower or any
other guarantor, all of which may be done without notice to the
Guarantor.
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5. Unenforceability of
Obligations Against Borrower. If for any reason the Borrower
has no legal existence or is under no legal obligation to discharge any of the
Guarantied Obligations, or if any of the Guarantied Obligations have become
irrecoverable from the Borrower by operation of law or for any other reason,
this Guaranty shall nevertheless be binding on the Guarantor to the same extent
as if the Guarantor at all times had been the principal obligor on all such
Guarantied Obligations. In the event that acceleration of the time for payment
of the Guarantied Obligations is stayed upon the insolvency, bankruptcy or
reorganization of the Borrower, or for any other reason, all such amounts
otherwise subject to acceleration under the terms of any agreement evidencing,
securing or otherwise executed in connection with any Guarantied Obligation
shall be immediately due and payable by the Guarantor.
6. Subrogation;
Subordination. Until the payment and performance in full of
all Guarantied Obligations, the Guarantor shall not exercise any rights against
the Borrower arising as a result of payment by the Guarantor hereunder, by way
of subrogation or otherwise, (the Investor having no duty or obligation to take
any action at any time to protect or preserve any right of subrogation) and will
not prove any claim in competition with any Investor or its affiliates in
respect of any payment hereunder in bankruptcy or insolvency proceedings of any
nature; the Guarantor will not claim any set-off or counterclaim against the
Borrower in respect of any liability of the Guarantor to the Borrower; and the
Guarantor waives any benefit of and any right to participate in any collateral
which may be held by any Investor. The payment of any amounts due
with respect to any indebtedness of the Borrower now or hereafter held by the
Guarantor is hereby subordinated to the prior payment in full of the Guarantied
Obligations. The Guarantor agrees that after the occurrence of any
default in the payment or performance of the Guarantied Obligations, after the
expiration of any applicable grace period, if any, he will not demand, xxx for
or otherwise attempt to collect after such time any such indebtedness of the
Borrower to the Guarantor until the Guarantied Obligations shall have been paid
in full. If, notwithstanding the foregoing sentence, any Guarantor shall
collect, enforce or receive any amounts in respect of such indebtedness, such
amounts shall be collected, enforced and received by the Guarantor as trustee
for the Investors and be paid over to the Investors on account of the Guarantied
Obligations without affecting in any manner the liability of the Guarantor under
the other provisions of this Guaranty.
7. Further
Assurances. The Guarantor agrees to do all such things and
execute all such documents, as the Investors may consider reasonably necessary
or desirable to give full effect to this Guaranty and to perfect and preserve
the rights and powers of the Investors hereunder.
8. Termination;
Reinstatement. This Guaranty shall remain in full force and
effect until the Guarantied Obligations are paid in full and not subject to any
recapture or preference in bankruptcy or similar proceedings. This
Guaranty shall continue to be effective or be reinstated if at any time any
payment made or value received with respect to a Guarantied Obligation is
rescinded or must otherwise be returned by the Investors upon the insolvency,
bankruptcy or reorganization of the Borrower, or otherwise, all as though such
payment had not been made or value received.
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9. Successors and
Assigns. This Guaranty shall be jointly and severally binding
upon the Guarantor and his respective heirs and assigns, and shall inure to the
benefit of and be enforceable by the Investors and their successors, transferees
and assigns. An Investor may assign or otherwise transfer any
agreement or any note held by it evidencing, securing or otherwise executed in
connection with the Guarantied Obligations, or sell participations in any
interest therein, to any other person or entity, and such other person or entity
shall thereupon become vested, to the extent set forth in the agreement
evidencing such assignment, transfer or participation, with all the rights in
respect thereof granted to such Investor herein.
10. Amendments and
Waivers. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by any Guarantor therefrom shall be
effective unless the same shall be in writing and signed by each
Investor. No failure on the part of an Investor to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of any other right.
11. Notices. All
notices and other communications called for hereunder shall be made in writing
and, unless otherwise specifically provided herein, shall be deemed to have been
duly made or given when delivered by hand or mailed first class mail postage
prepaid or, in the case of telegraphic or telexed notice, when transmitted,
answer back received, addressed as follows: if to the Guarantor, at the address
set forth in the Purchase Agreement for the Borrower, and if to an Investor, at
the address set forth in the Purchase Agreement.
12. Governing Law; Consent to
Jurisdiction. This Guaranty shall be governed by, and
construed in accordance with, the laws of the State of Delaware without
reference to its conflicts of laws provisions. Any dispute arising
out of this Guaranty shall be resolved pursuant to the terms of Section 9 of the
Purchase Agreement.
13. Certain
References. All pronouns and any variations thereof shall be
deemed to refer to the masculine, feminine, neuter, singular or plural, as the
identity of the person, persons, entity or entities may require. The
terms “herein”, “hereof” or “hereunder” or similar terms used in this Guaranty
refer to this entire Guaranty and not only to the particular provision in which
the term is used. Capitalized Terms used but not defined herein shall
have the meaning ascribed to such terms in the Purchase Agreement.
14. Miscellaneous. This
Guaranty constitutes the entire agreement of the Guarantor with respect to the
matters set forth herein. The rights and remedies herein provided are
cumulative and not exclusive of any remedies provided by law or any other
agreement, and this Guaranty shall be in addition to any other guaranty of the
Guarantied Obligations. The invalidity or unenforceability of any one
or more sections of this Guaranty shall not affect the validity or
enforceability of its remaining provisions. Captions are for the ease of
reference only and shall not affect the meaning of the relevant
provisions. The meanings of all defined terms used in this Guaranty
shall be equally applicable to the singular and plural, masculine, feminine and
generic forms of the terms defined.
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IN WITNESS WHEREOF, the
Guarantor has caused this Guaranty to be executed and delivered as of the date
appearing in the introductory paragraph of this Guaranty.
Rose
Hill Gardens LLC
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By:
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/s/ Xxxxxxxx
Xxxxxx
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Name:
Xxxxxxxx Xxxxxx
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Title:
Member
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