Exhibit 99.4
CONTINUING GUARANTEE OF PAYMENT
TO: M&I MARSHALL & ILSLEY BANK, a banking corporation organized and existing
under the laws of the State of Wisconsin
1. FOR VALUABLE CONSIDERATION, the undersigned (hereinafter called
"Guarantor"), whose address is set forth after Guarantor's signature below,
jointly and severally, and unconditionally, guarantees and promises to pay to
M&I MARSHALL & ILSLEY BANK, a banking corporation organized and existing under
the laws of the State of Wisconsin (hereinafter called "Lender"), or order, upon
demand, in lawful money of the United States, all indebtedness of HAMILTON
AEROSPACE TECHNOLOGIES, INC., a Delaware corporation (hereinafter called
"Borrower") to Lender. If more than one Borrower is named herein, or if this
Guarantee is executed by more than one Guarantor, the word "Borrower" and the
word "Guarantor" respectively shall mean all and any one or more of them,
severally and collectively. The word "indebtedness" is used in its most
comprehensive sense and includes any and all advances, debts, obligations, and
liabilities of Borrower previously, now or hereafter made, incurred or created,
with or without notice to Guarantor, whether voluntary or involuntary, and
however arising, whether due or not due, absolute or contingent, liquidated or
unliquidated, determined or undetermined, whether Borrower is liable
individually or jointly with others, whether such indebtedness is reduced to
judgment, whether recovery upon such indebtedness may be or hereafter become
barred by any statute of limitations, and whether such indebtedness may be or
hereafter become otherwise unenforceable.
This is a continuing guarantee that shall remain in full force and effect
and includes all indebtedness arising under future transactions or under
successive transactions which either continue then existing indebtedness or from
time to time renew it after it has been satisfied, but shall not apply to any
indebtedness created after actual receipt by Lender of written notice of the
revocation of this Guarantee as to future transactions. Any such revocation of
this Guarantee at any time by any Guarantor as to future transactions shall not
affect the liability of any other guarantor for indebtedness of Borrower and
shall not affect the liability of that Guarantor or any other guarantor for
indebtedness incurred or credit committed by Lender to Borrower prior to the
effective time of that revocation; this Guarantee shall remain in full force and
effect as to all such indebtedness. The death of any Guarantor shall not operate
as a revocation of liability hereunder of the estate of that Guarantor for
indebtedness created or incurred or credit committed by Lender to Borrower
subsequent to such death until actual receipt by Lender of written notice of the
death of that Guarantor. Guarantor waives notice of revocation given by any
other guarantor. The indebtedness guaranteed hereby is hereinafter collectively
called the "Indebtedness".
2. The obligations of Guarantor hereunder are joint and several if
Guarantor is more than one person or entity, are separate and independent of the
obligations of Borrower and of any other guarantor, and a separate action or
actions may be brought and prosecuted against Guarantor whether action is
brought against Borrower or any other guarantor or whether Borrower or any other
guarantor is joined in any action or actions. The obligations of Guarantor
hereunder are also separate and independent of Guarantor's obligations in any
other capacity, including without limitation as a general partner if Borrower is
a partnership and Guarantor is a general partner in Borrower, and an action may
be brought and prosecuted against Guarantor under this Guarantee separately
from, or concurrently with, any action against Guarantor for Guarantor's
obligations in any other capacity. The obligations of Guarantor hereunder shall
survive and continue in full force and effect until payment in full of the
Indebtedness is actually received by Lender and the period of time has expired
during which any payment made to Lender of all or part of the Indebtedness may
be determined to be a "Preferential Payment" (defined below), notwithstanding
any release or termination of Borrower's or any other guarantor's liability by
express or implied agreement with Lender or by operation of law, and
notwithstanding that the Indebtedness or any part thereof is deemed to have been
paid or discharged by operation of law or by some act or agreement of Lender.
For purposes of this Guarantee, the Indebtedness shall be deemed to be paid only
to the extent that Lender actually receives immediately available funds, to the
extent of any credit bid by Lender at any foreclosure or trustee's sale of any
security for the Indebtedness, or to the extent agreed in writing by Lender.
3. Guarantor shall remain liable under this Guarantee for all Indebtedness
arising (including without limitation all accruing interest) after the filing of
a petition or the commencement of any proceeding by or against Borrower under
any bankruptcy or insolvency laws, or after the discharge or release of Borrower
under any bankruptcy or insolvency laws. If, as a result of any bankruptcy of
Borrower, or for any other reason, Lender is required to return or restore, or
pay to a trustee, receiver or any other person or entity, any payment previously
made to Lender of all or any part of the Indebtedness ("Preferential Payment"),
the liability of Guarantor hereunder shall continue, or shall be reinstated and
revived, with respect to that amount as though such amount had never been
received by Lender.
4. Guarantor is providing this Guarantee at the instance and request of
Borrower to induce Lender to extend or continue financial accommodations to
Borrower. Guarantor hereby represents and warrants that Guarantor is and will
continue to be fully informed about all aspects of the financial condition and
business affairs of Borrower that Guarantor deems relevant to the obligations of
Guarantor hereunder and hereby waives and fully discharges Lender from any and
all obligations to communicate to Guarantor any information whatsoever regarding
Borrower or Borrower's financial condition or business affairs.
5. Guarantor authorizes Lender, without notice or demand and without
affecting Guarantor's liability hereunder, from time to time, to: (a) renew,
modify, compromise, extend, accelerate or otherwise change the time for payment
of, or otherwise change the terms of the Indebtedness or any part thereof,
including increasing or decreasing the rate of interest thereon; (b) release,
substitute or add any one or more endorsers, Guarantor or other guarantors; (c)
take and hold security for the payment of this Guarantee or the Indebtedness,
and enforce, exchange, substitute, subordinate, waive or release any such
security; (d) proceed against such security and direct the order or manner of
sale of such security as Lender in its discretion may determine; and (e) apply
any and all payments from Borrower, Guarantor or any other guarantor, or
recoveries from such security, in such order or manner as Lender in its
discretion may determine.
6. Guarantor waives and agrees not to assert: (a) any right to require
Lender to proceed against Borrower or any other guarantor, to proceed against or
exhaust any security for the Indebtedness, to pursue any other remedy available
to Lender, or to pursue any remedy in any particular order or manner; (b)
demand, diligence, presentment for payment, protest and demand, and notice of
-2-
extension, dishonor, protest, demand, nonpayment and acceptance of this
Guarantee; (c) notice of the existence, creation or incurring of new or
additional indebtedness of Borrower to Lender; (d) the benefits of any statutory
or other provision limiting the liability of a surety, including without
limitation, the provisions of A.R.S. ss.12-1641, et seq. and Rule 17(f) of the
Arizona Rules of Civil Procedure; (e) any defense arising by reason of any
impairment of any security for the Indebtedness, or any impairment of
Guarantor's subrogation rights or other rights against Borrower or any other
guarantor; and (f) any defense arising by reason of any disability or other
defense of Borrower or by reason of the cessation from any cause whatsoever
(other than payment in full) of the liability of Borrower for the Indebtedness.
Until payment in full of the Indebtedness, Guarantor shall have no right of
subrogation and hereby waives any right to enforce any remedy which Lender now
has, or may hereafter have, against Borrower, and waives any benefit of, and any
right to participate in, any security now or hereafter held by Lender.
7. All existing and future indebtedness of Borrower to Guarantor (the
"Junior Debt") is hereby subordinated to the Indebtedness and is hereby assigned
to Lender as security for this Guarantee. After the occurrence and during the
continuation of an Event of Default, upon the request of Lender, the Junior Debt
shall be collected, enforced and received by Guarantor as trustee for Lender and
shall be paid over to Lender on account of the Indebtedness, but without
reducing or affecting in any manner the liability of Guarantor under the other
provisions of this Guarantee. Any promissory note now or hereafter evidencing
the Junior Debt shall be marked with a legend indicating that it is subordinate
to the Indebtedness and subject to this Guarantee and, if Lender requests, shall
be delivered to Lender. Guarantor from time to time will execute such other
documents and take such other actions as Lender may consider necessary or
appropriate to perfect, preserve and enforce its rights with respect to the
Junior Debt.
8. In addition to all liens upon, and rights of setoff against, the monies,
securities or other property of Guarantor given to Lender by law, Lender shall
have a lien and a right of setoff against, and Guarantor hereby grants to Lender
a security interest in, all monies, securities and other property of Guarantor
now and hereafter in the possession of or on deposit with Lender, whether held
in a general or special account or deposit, or for safekeeping or otherwise;
every such lien and right of setoff may be exercised upon the occurrence of an
Event of Default without demand upon or notice to Guarantor. No lien or right of
setoff shall be deemed to have been waived by any act or conduct on the part of
Lender, by any neglect to exercise such right of setoff or to enforce such lien,
or by any delay in so doing.
9. If Borrower is other than a natural person, it is not necessary for
Lender to inquire into the powers of Borrower or the officers, directors,
partners, managers, trustees, or agents acting or purporting to act on its
behalf, and any of the Indebtedness made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder.
10. Guarantor hereby represents and warrants to Lender, as to itself only
and not as to any other Guarantor, as follows:
(a) No actions, suits or proceedings are pending or, to the knowledge
of Guarantor, threatened against Guarantor that might materially and adversely
affect the performance by Guarantor of its obligations under this Guarantee or
the financial condition, business or operations of Guarantor.
-3-
(b) All financial statements, profit and loss statements, statements
as to ownership and other statements or reports previously or hereafter given to
Lender by or on behalf of Guarantor are and shall be true, complete and correct
in all material respects as of the date thereof.
(c) There has been no material adverse change in the financial
condition of Guarantor since the latest financial statements of Guarantor given
to Lender.
(d) Guarantor has filed all federal, state and local tax returns and
has paid all of its current obligations before delinquent, including all
federal, state and local taxes and all other payments required under federal,
state or local law.
11. Guarantor, if other than a natural person, shall maintain a standard,
modern system of accounting that reflects the application of generally accepted
accounting principles, consistently applied, and shall furnish to Lender, within
ninety (90) days after the close of each fiscal year and within forty-five (45)
days after the close of each interim quarterly accounting period, financial
statements of Guarantor, including a balance sheet, statement of income and
expenses, and statement of cash flows, all in reasonable detail and prepared
according to generally accepted accounting principles, consistently applied. All
such statements shall contain such certifications as Lender may require.
Guarantor, if an individual, shall furnish to Lender, on or before the
anniversary of any financial statement previously provided to Lender, a personal
financial statement on Lender's standard form, or other form satisfactory to
Lender. In addition, Guarantor shall furnish to Lender annually, when filed, a
complete copy, including all Schedules, of Guarantor's Federal Income Tax
Return, and when requested by Lender, shall furnish such further information as
Lender may reasonably request relating to any such financial statements and tax
returns.
12. Lender may bring any action or proceeding to enforce or arising out of
this Guarantee in any court of competent jurisdiction. If Lender commences such
an action in a court located in the County of Maricopa, State of Arizona, or the
United States District Court for the District of Arizona, Guarantor hereby
agrees that it will submit and does hereby irrevocably submit to the personal
jurisdiction of such courts and will not attempt to have such action dismissed,
abated, or transferred on the ground of forum non convenience or similar
grounds; provided, however, that nothing contained herein shall prohibit
Guarantor from seeking, by appropriate motion, to remove any action brought in a
Arizona state court to the United States District Court for the District of
Arizona. If such action is so removed, however, Guarantor shall not seek to
transfer such action to any other district, nor shall Guarantor seek to transfer
to any other district any action which Lender originally commences in such
federal court. Any action or proceeding brought by Guarantor arising out of this
Guarantee shall be brought solely in a court of competent jurisdiction located
in the County of Maricopa, State of Arizona, or in the United States District
Court for the District of Arizona. Guarantor waives any objection which it may
now or hereafter have to venue of any such action or proceeding and waives any
right to seek removal of any action or proceeding commenced in accordance
herewith.
13. Guarantor agrees to pay all reasonable attorneys' fees and all other
reasonable costs and expenses which may be incurred by Lender in enforcing this
Guarantee. In the event of any court proceedings, court costs and attorneys'
fees shall be set by the court and not by jury and shall be included in any
judgment obtained by Lender.
-4-
14. This Guarantee sets forth the entire agreement of Guarantor and Lender
with respect to the subject matter hereof and supersedes all prior oral and
written agreements and representations by Lender to Guarantor. There are no
conditions, oral or otherwise, to the effectiveness of this Guarantee. No
modification or waiver of any provision of this Guarantee or any right of Lender
hereunder, and no release of Guarantor from any obligation hereunder, shall be
effective unless in a writing executed by an authorized officer of Lender.
15. This Guarantee shall inure to the benefit of Lender and its successors
and assigns and shall be binding upon Guarantor and its heirs, personal
representatives, successors and assigns. Lender may assign this Guarantee in
whole or in part without notice.
16. This Guarantee shall be governed by and construed according to the laws
of the State of Arizona.
17. GUARANTOR, AND LENDER BY THE ACCEPTANCE OF THIS GUARANTEE, EACH HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THAT IT MAY HAVE TO
TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER OR
IN CONNECTION WITH THIS GUARANTEE OR THE DEALINGS OF THE PARTIES WITH RESPECT
THE TRANSACTION THAT IS THE SUBJECT OF THIS GUARANTEE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE. THIS
WAIVER HAS BEEN NEGOTIATED BY THE PARTIES AND IS AN ESSENTIAL PART OF THEIR
BARGAIN. EITHER PARTY MAY FILE A COPY OF THIS PROVISION WITH ANY COURT AS
WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES TO THE WAIVER OF ANY RIGHT THEY
MIGHT OTHERWISE HAVE TO TRIAL BY JURY.
18. This Guarantee may be executed in any number of counterparts and each
counterpart executed by any of the undersigned, together with all other
counterparts so executed, shall constitute a single instrument and agreement of
the undersigned.
IN WITNESS WHEREOF these presents are executed as of the 16th day of
December, 2004.
GUARANTOR:
RENEGADE VENTURE CORPORATION, a(n)
----------------------------------
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
-5-