|
Exhibit 10.4
GUARANTY AND PLEDGE AGREEMENT
GUARANTY AND PLEDGE AGREEMENT (this " Agreement "), dated
as of November 20, 2006, among Greens Worldwide Inc., a Nevada
corporation (the " Company "), Thomas Kidd (the "
Pledgor "), and the pledgees signatory hereto and their
respective endorsees, transferees and assigns (collectively, the "
Pledgees ").
W I T N E
S S E T H :
WHEREAS, pursuant to a Letter Agreement, dated the date hereof,
between Company and the Pledgees (the " Letter Agreement "),
Company has agreed to issue to the Pledgees and the Pledgees have
agreed to purchase from Company certain of Company’s
promissory notes due ninety (90) days from the date of issue
(the " Notes "); and
WHEREAS, as a material inducement to the Pledgees to enter into
the Letter Agreement, the Pledgees have required and the Pledgor
has agreed (i) to unconditionally guarantee the timely and
full satisfaction of all obligations of the Company, whether
matured or unmatured, now or hereafter existing or created and
becoming due and payable (the " Obligations ") to the
Pledgees, their successors, endorsees, transferees or assigns under
the Letter Agreement or the Notes to the extent of the Collateral
(as defined in Section 5 hereof), and (ii) to grant to
the Pledgees, their successors, endorsees, transferees or assigns a
security interest in the number of shares of Common Stock currently
owned by the Pledgor as set forth below the Pledgor’s
signature on the signature page hereto (collectively, the "
Shares "), as collateral security for the Obligations. Terms
used and not defined herein shall have the meaning ascribed to them
in the Letter Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals, and
the mutual covenants contained herein, the parties hereby agree as
follows:
1. Guaranty . To the extent of the Collateral, the
Pledgor hereby absolutely, unconditionally and irrevocably
guarantees to the Pledgees, their successors, endorsees,
transferees and assigns the due and punctual performance and
payment of the Obligations owing to the Pledgees, their successors,
endorsees, transferees or assigns when due, all at the time and
place and in the amount and manner prescribed in, and otherwise in
accordance with, the Letter Agreement and the Notes, regardless of
any defense or set-off counterclaim which the Company or any other
person may have or assert, and regardless of whether or not the
Pledgees or anyone on behalf of the Pledgees shall have instituted
any suit, action or proceeding or exhausted its remedies or taken
any steps to enforce any rights against the Company or any other
person to compel any such performance or observance or to collect
all or part of any such amount, either pursuant to the provisions
of the Letter Agreement and the Notes or at law or in equity, and
regardless of any other condition or contingency. The Pledgor shall
have no obligation whatsoever to the Pledgees beyond the Collateral
pledged for the Obligations set forth herein.
2. Waiver of Demand . The Pledgor hereby unconditionally:
(i) waives any requirement that the Pledgees, in the event of
a breach in any material respect by the Company of any of its
representations or warranties made in or incorporated by reference
into the Letter Agreement, first make demand upon, or seek to
enforce remedies against, the Company or any other person
before
demanding payment of enforcement hereunder;
(ii) covenants that this Agreement will not be discharged
except by complete performance of all the Obligations to the extent
of the Collateral; (iii) agrees that this Agreement shall
remain in full force and effect without regard to, and shall not be
affected or impaired, without limitation, by, any invalidity,
irregularity or unenforceability in whole or in part of the Letter
Agreement or any limitation on the liability of the Company
thereunder, or any limitation on the method or terms of payment
thereunder which may now or hereafter be caused or imposed in any
manner whatsoever; and (iv) waives diligence, presentment and
protest with respect to, and notice of default in the performance
or payment of any Obligation by the Company under or in connection
with the Letter Agreement or the Notes.
3. Release . The obligations, covenants, agreements and
duties of the Pledgor hereunder shall not be released, affected or
impaired by any assignment or transfer, in whole or in part, of the
Letter Agreement or any Obligation, although made without notice to
or the consent of the Pledgor, or any waiver by the Pledgees, or by
any other person, of the performance or observance by the Company
or the Pledgor of any of the agreements, covenants, terms or
conditions contained in the Letter Agreement, or any indulgence in
or the extension of the time or renewal thereof, or the
modification or amendment (whether material or otherwise), or the
voluntary or involuntary liquidation, sale or other disposition of
all or any portion of the stock or assets of the Company or the
Pledgor, or any receivership, insolvency, bankruptcy,
reorganization, or other similar proceedings, affecting the Company
or the Pledgor or any assets of the Company or the Pledgor, or the
release of any property from any security for any Obligation, or
the impairment of any such property or security, or the release or
discharge of the Company or the Pledgor from the performance or
observance of any agreement, covenant, term or condition contained
in or arising out of the Letter Agreement by operation of law, or
the merger or consolidation of the Company, or any other cause,
whether similar or dissimilar to the foregoing.
4. Subrogation .
(a) Unless and until complete performance of all the Obligations
to the extent of the Collateral, the Pledgor shall not be entitled
to exercise any right of subrogation to any of the rights of the
Pledgees against the Company or any collateral security or guaranty
held by the Pledgees for the payment or performance of the
Obligations, nor shall the Pledgor seek any reimbursement from the
Company in respect of payments made by the Pledgor hereunder.
(b) In the event that the Pledgor shall become obligated to
perform or pay any sums hereunder, or in the event that for any
reason the Company is now or shall hereafter become indebted to the
Pledgor, the amount of such sum shall at all times be subordinate
as to lien, time of payment and in all other respects, to the
amounts owing to the Pledgees under the Letter Agreement or the
Notes, and the Pledgor shall not enforce or receive payment thereof
until all Obligations due to the Pledgees under the Letter
Agreement or the Notes have been performed or paid. Nothing herein
contained is intended or shall be construed to give to the Pledgor
any right of subrogation in or under the Letter Agreement, or any
right to participate in any way therein, or in any right, title or
interest in the assets of the Pledgees.
2
5. Security . As collateral security for
the punctual payment and performance, when due, by the Company of
all the Obligations, the Pledgor hereby pledges with, hypothecates,
transfers and assigns to the Pledgees all of the Shares and all
proceeds, shares and other securities received, receivable or
otherwise distributed in respect of or in exchange for the Shares,
including, without limitation, any shares and other securities into
which such Shares may be convertible or exchangeable (collectively,
the " Additional Collateral " and together with the Shares,
the " Collateral "). Within five (5) days from the date
of this Agreement, the Pledgor shall deliver to the Pledgees the
certificate(s) representing the Shares, stamped with a bank
medallion guarantee, along with a stock transfer power duly
executed in blank by the Pledgor, to be held by the Pledgees as
security. Any Collateral received by the Pledgor on or after the
date hereof shall be immediately delivered to the Pledgees together
with any executed stock powers or other transfer documents
requested by the Pledgees, which request may be made at any time
prior to the date when the Obligations shall have been paid and
otherwise satisfied in full.
6. Voting Power, Dividends, Etc. and other Agreements
.
(a) Unless and until an Event of Default (as set forth in
Section 7 hereof) has occurred, the Pledgor shall be entitled
to:
-
-
-
(i) Exercise all voting and/or consensual powers pertaining to
the Collateral, or any part thereof, for all purposes;
(ii) Receive and retain dividends paid with respect to the
Collateral and all proceeds, shares and other securities received,
receivable or otherwise distributed in respect of or in exchange
for Shares, including, without limitation, any shares and other
securities into which such Shares may be convertible or
exchangeable; and
(iii) Receive the benefits of any income tax deductions
available to the Pledgor as a shareholder of the Company.
(b) The Pledgor agrees that it will not sell, assign, transfer,
pledge, hypothecate, encumber or otherwise dispose of the
Collateral unless and until it is released by the Pledgees pursuant
hereto.
(c) The Pledgor and the Company jointly and severally agree to
pay all costs including all reasonable attorneys’ fees and
disburseme
|
