Exhibit 10.4
GUARANTY AGREEMENT
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Dated as of December 30, 2005
THIS GUARANTY AGREEMENT ("this Guaranty") is made by XXXXXXX X. XXXXXX,
with an address at 0000 Xxxx Xxxx Xxxx, Xxxxxxx, Xxxxxxx 00000 (the
"Guarantor"), in favor of HARBORAGE LEASING CORPORATION, a New Hampshire
corporation ("Seller").
RECITALS
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A. American Leisure Holdings, Inc., a Nevada corporation ("AMLH"), and
Seller have entered into a certain Stock Purchase Agreement dated as of December
30, 2005 (the "Purchase Agreement"), pursuant to which AMLH has (i) issued to
Seller a promissory note in the principal amount of $1,411,705 (the "Note"),
(ii) agreed to repurchase up to 197,000 shares of the common stock of AMLH
issued to Seller pursuant to the terms of a put option more fully described in
the Purchase Agreement (the "Put Option"), and (iii) agreed to transfer to
Seller title to two (2) three-bedroom condominium units, free and clear of liens
and encumbrances, on or before December 31, 2007 or, in lieu thereof, to pay
Seller $500,000.00, as more fully described in the Purchase Agreement.
B. The Guarantor is a principal shareholder of AMLH.
C. Seller's agreement to enter into the Purchase Agreement is contingent
upon the Guarantor's execution and delivery of this Guaranty.
AGREEMENTS
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NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration (the receipt and adequacy of which are hereby
acknowledged), the Guarantor agrees as follows:
Section 1. Guaranty. The Guarantor hereby irrevocably, absolutely and
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unconditionally guarantees to Seller: (i) the punctual payment when due, whether
at stated maturity, by acceleration or otherwise, of all obligations of AMLH to
Seller now or hereafter existing or arising under or evidenced by the Note, (ii)
the prompt, punctual and faithful performance when due, of all obligations of
AMLH under the Put Option; and (iii) the prompt, punctual and faithful
performance when due, of all obligations of AMLH under Section 1.2(b) of the
Purchase Agreement related to the transfer of the above referenced condominium
units to Seller, or cash payment in lieu thereof (all such obligations and
liabilities referred to in this Section 1 being "the Obligations" or
"Obligations"). In addition, the Guarantor agrees to pay any and all expenses
(including reasonable counsel fees and expenses at whatever level) incurred by
Seller in enforcing any rights under this Guaranty.
Section 2. Guaranty Absolute. The Guarantor guarantees that the Obligations
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will be paid and performed strictly in accordance with the terms of the Note and
Purchase Agreement regardless of any law, regulation or order now or hereafter
in effect in any jurisdiction affecting any of such terms or the rights of
Seller with respect thereto. The liability of the Guarantor under this Guaranty
shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of any payment provisions
of the Note or the Purchase Agreement;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations;
(c) the voluntary or involuntary bankruptcy of AMLH, or any assignment
for the benefit of creditors, reorganization, receivership, liquidation or
other similar proceedings affecting AMLH or any of its assets;
(d) any present or future action of any governmental authority
amending, varying, reducing or otherwise affecting, or purporting to amend,
vary, reduce or otherwise affect, any of the Obligations, the Note or the
Purchase Agreement or this Guaranty;
(e) any other event or circumstance which might otherwise constitute a
defense available to, or a discharge of, AMLH or a guarantor.
Nothing herein to the contrary withstanding, 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 Obligations is rescinded or must otherwise
be returned by Seller upon the insolvency, bankruptcy or reorganization of
AMLH otherwise, all as though such payments had not been made.
Section 3. Waiver. The Guarantor hereby unconditionally waives:
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(a) any requirement that Seller protect, secure, perfect or insure any
security interest or lien on any property subject thereto or exhaust any
right or take any action against AMLH or any other person or entity or any
collateral;
(b) any defense based on any event or circumstances described in
Section 2 of this Agreement;
(c) any duty of Seller to advise the Guarantor of any information
known to Seller regarding the financial condition of AMLH or any other
circumstance affecting AMLH's ability to perform its obligations to Seller,
it being agreed that the Guarantor assumes responsibility for being and
keeping informed regarding such condition or any such circumstance; and
(d) until Seller shall have been paid in full, any right the Guarantor
might otherwise have to subrogation or the marshaling of AMLH's assets
Section 4. Subrogation. The Guarantor shall not exercise any rights which
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it may acquire by way of subrogation under this Guaranty, by any payment made
hereunder or otherwise, until all the Obligations shall have been paid in full.
If any amount shall be paid to the Guarantor on account of such subrogation
rights at any time when all the Obligations shall not have been paid in full,
such amount shall be held in trust for the benefit of Seller and shall forthwith
be paid to Seller to be credited and applied upon the Obligations, whether
matured or unmatured, in accordance with the terms of the Note.
Section 5. Amendments, Etc. No amendment or waiver of any provision of this
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Guaranty nor consent to any departure by the Guarantor therefrom shall in any
event be effective unless the same shall be in writing and signed by Seller and
the Guarantor, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
Section 6. Notices. All notices, requests, approvals, consents or other
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communications provided for under this Agreement shall be in writing and mailed
or hand-delivered to the applicable party at the addresses indicated below:
HARBORAGE LEASING CORPORATION
X/X 000 XXXXXXX XXXXXX
XXXX 000
IF TO SELLER: XXXXXX XXXX, XX 00000
THE ADDRESS SET FORTH AT THE
HEAD OF THIS GUARANTY (OR, IF NO ADDRESS
IS SET FORTH THERE, THE ADDRESS OF THE
GUARANTOR IN SELLER'S RECORDS)
IF TO THE GUARANTOR:
All such communication shall, when hand-delivered, be in effective when received
and, when mailed, be effective three (3) business days after being deposited in
the mails, addressed as aforesaid except that mailed notices to Seller shall not
be effective unless and until received by Seller.
Section 7. No Waiver; Remedies. No failure on the part of Seller to
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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. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section 8. Continuing Guaranty. This Guaranty is a continuing guaranty and
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shall (i) remain in full force and effect until payment in full of the
Obligations and all other amounts payable under this Guaranty and satisfaction
of the Note; (ii) be binding upon the Guarantor and his heirs, successors and
assigns, and (iii) inure to the benefit of and be enforceable by Seller and its
successors, transferees and assigns. In the event that Seller assigns the Note
and this Guarantee, the Seller will promptly notify the Guarantor of such
assignment.
Section 9. Default. Upon the occurrence of an Event of Default (as defined
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in the Note), all the Guarantor's obligations hereunder shall immediately be due
and payable in full.
Section 10. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED
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IN ACCORDANCE WITH THE LAW OF THE STATE OF FLORIDA, WITHOUT REGARD TO ANY
CONFLICT-OF-LAW RULE OR PRINCIPLE THAT WOULD GIVE EFFECT TO THE LAW OF ANOTHER
JURISDICTION.
Section 11. Terminology. As used herein, "hereof," "hereunder," "hereby"
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and "herein" refer to this Guaranty as a whole and not merely the paragraph in
which they appear. As used herein, masculine pronouns shall be read as neuter
pronouns if and as appropriate.
Section 12. Severability. If any provision of this Guaranty shall be held
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invalid under any applicable law, such invalidity shall not affect any other
provision of this Guaranty that can be given effect without the invalid
provision, and, to that end, the provision hereof are severable.
Section 13. Submission to Jurisdiction. The Guarantor hereby irrevocably
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(a) submits, in any legal proceeding relating to this Guaranty, to the
non-exclusive in personam jurisdiction of any state or United States court of
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competent jurisdiction sitting in the State of Florida and agrees to suit being
brought in any such court; (b) waives any objection that it may now or hereafter
have to the venue of such proceeding in any such court located in Orange County,
Florida, or that such proceeding was brought in an inconvenient court; (c)
agrees to service of process in any such legal proceeding by mailing of copies
thereof (by registered or certified mail, if practicable) postage prepaid, to
the Guarantor's address specified at the head of this Guaranty or such other
address of which Seller shall have been notified in writing; (d) agrees that
nothing herein shall affect the right of Seller to effect service of process in
any other manner permitted by law; and (e) agrees that Seller shall have the
right to bring any legal proceedings (including a proceeding for enforcement of
a judgment entered by any of the aforementioned courts) against the Guarantor in
any other court having jurisdiction over the Guarantor under applicable law.
Section 14. Waiver of Jury Trial. GUARANTOR AND (BY ACCEPTANCE HEREOF)
SELLER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT EITHER OF
THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING ANY
COUNTERCLAIM) BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
GUARANTY, THE NOTE, OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE
OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF SELLER OR THE
GUARANTOR. THIS PROVISION IS A MATERIAL INDUCEMENT FOR SELLER TO ACCEPT THE NOTE
AND ENTER INTO THE TRANSACTION WITH AMLH.
IN WITNESS WHEREOF, the Guarantor has duly executed and delivered this
Guaranty as of the date first above written.
/s/ Xxxxxxx X. Xxxxxx
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XXXXXXX X. XXXXXX, INDIVIDUALLY
