1
Exhibit 10.137
GUARANTEE
August 20, 1998
Congress Financial Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Ecogen Inc. ("Borrower")
Gentlemen:
Congress Financial Corporation ("Lender") and Borrower have entered
into certain financing arrangements pursuant to which Lender may make loans and
advances and provide other financial accommodations to Borrower as set forth in
the Loan and Security Agreement, dated August 20, 1998, by and between Borrower
and Lender (as the same now exists or may hereafter be amended, modified,
supplemented, extended, renewed, restated or replaced, the "Loan Agreement"),
and other agreements, documents and instruments referred to therein or at any
time executed and/or delivered in connection therewith or related thereto,
including, but not limited to, this Guarantee (all of the foregoing, together
with the Loan Agreement, as the same now exist or may hereafter be amended,
modified, supplemented, extended, renewed, restated or replaced, being
collectively referred to herein as the "Financing Agreements").
Due to the close business and financial relationships between Borrower
and each and all of the undersigned (individually and collectively,
"Guarantors"), in consideration of the benefits which will accrue to Guarantors
and as an inducement for and in consideration of Lender making loans and
advances and providing other financial accommodations to Borrower pursuant to
the Loan Agreement and the other Financing Agreements, each of Guarantors hereby
jointly and severally agrees in favor of Lender as follows:
1. Guarantee.
(a) Each of Guarantors absolutely and unconditionally, jointly
and severally, guarantees and agrees to be liable for the full and indefeasible
payment and performance when due of the following (all of which are collectively
referred to herein as the "Guaranteed Obligations"): (i) all obligations,
liabilities and indebtedness of any kind, nature and description of Borrower to
Lender and/or its affiliates, including principal, interest, charges, fees,
costs and expenses, however evidenced, whether as principal, surety, endorser,
guarantor or otherwise,
-1-
2
each as arising under the Loan Agreement or the other Financing Agreements,
whether now existing or hereafter arising, whether arising before, during or
after the initial or any renewal term of the Loan Agreement or after the
commencement of any case with respect to Borrower under the United States
Bankruptcy Code or any similar statute (including, without limitation, the
payment of interest and other amounts, which would accrue and become due but for
the commencement of such case, whether or not such amounts are allowed or
allowable in whole or in part in any such case and including loans, interest,
fees, charges and expenses related thereto and all other obligations of Borrower
or its successors to Lender arising after the commencement of such case),
whether direct or indirect, absolute or contingent, joint or several, due or not
due, primary or secondary, liquidated or unliquidated, secured or unsecured, and
however acquired by Lender, and further including, without duplication, all
expenses (including, without limitation, attorneys' fees and legal expenses)
incurred by Lender in connection with the preparation, execution, delivery,
recording, administration, collection, liquidation, enforcement and defense of
Borrower's obligations, liabilities and indebtedness as aforesaid to Lender, the
rights of Lender in any collateral or under all Financing Agreements or in any
way involving claims by or against Lender directly or indirectly arising out of
or related to the relationships between Borrower and Lender, whether such
expenses are incurred before, during or after the initial or any renewal term of
the Loan Agreement and the other Financing Agreements or after the commencement
of any case with respect to Borrower under the United States Bankruptcy Code or
any similar statute and (ii) all expenses (including, without, attorney's fees
and legal expenses) incurred by Lender in connection with the collection,
enforcement and defense of any Guarantor's obligations, liabilities and
indebtedness to Lender and the rights of Lender under this Guarantee or in any
way involving claims by or against Lender directly or indirectly arising out of
or related to the relationships between any of Guarantors and Lender, whether
such expenses are incurred before, during, or after the initial or any renewal
term of the Loan Agreement and the other Financing Agreements or after the
commencement of any case with respect to any of Guarantors under the United
States Bankruptcy Code or any similar statute.
(b) This Guarantee is a guaranty of payment and not of
collection. Each of Guarantors agrees that Lender need not attempt to collect
any Guaranteed Obligations from Borrower, any one of Guarantors or any other
Obligor or to realize upon any collateral, but may require any one of Guarantors
to make immediate payment of all of the Guaranteed Obligations to Lender when
due, whether by maturity, acceleration or otherwise, or at any time thereafter.
Lender may apply any amounts received in respect of the Guaranteed Obligations
to any of the Guaranteed Obligations, in whole or in part (including attorneys'
fees and legal expenses incurred by Lender with respect thereto or otherwise
chargeable to Borrower or Guarantors) and in such order as Lender may elect.
(c) Payment by Guarantors shall be made to Lender at the
office of Lender from time to time on demand as Guaranteed Obligations become
due. Guarantors shall make all payments to Lender on the Guaranteed Obligations
free and clear of, and without deduction or withholding for or on account of,
any setoff, counterclaim, defense, duties, taxes, levies, imposts, fees,
deductions, withholding, restrictions or conditions of any kind. One or more
successive or concurrent actions may be brought hereon against any of Guarantors
either in the same action in which Borrower or any of the other Guarantors or
any other Obligor is sued or in separate actions. In the event any claim or
action, or action on any judgment, based on this Guarantee is
3
brought against any of Guarantors, each of Guarantors agrees not to deduct,
set-off, or seek any counterclaim for or recoup any amounts which are or may be
owed by Lender to any of Guarantors.
2. Waivers and Consents.
(a) Notice of acceptance of this Guarantee, the making of
loans and advances and providing other financial accommodations to Borrower and
presentment, demand, protest, notice of protest, notice of nonpayment or default
and all other notices to which Borrower or any of Guarantors are entitled are
hereby waived by each of Guarantors. Each of Guarantors also waives notice of
and hereby consents to, (i) any amendment, modification, supplement, extension,
renewal, or restatement of the Loan Agreement and any of the other Financing
Agreements, including, without limitation, extensions of time of payment of or
increase or decrease in the amount of any of the Guaranteed Obligations, the
interest rate, fees, other charges, or any collateral, and the guarantee made
herein shall apply to the Loan Agreement and the other Financing Agreements and
the Guaranteed Obligations as so amended, modified, supplemented, renewed,
restated or extended, increased or decreased, (ii) the taking, exchange,
surrender and releasing of collateral or guarantees now or at any time held by
or available to Lender for the obligations of Borrower or any other party at any
time liable on or in respect of the Guaranteed Obligations or who is the owner
of any property which is security for the Guaranteed Obligations (individually,
an "Obligor" and collectively, the "Obligors"), including, without limitation,
the surrender or release by Lender of any one of Guarantors hereunder, (iii) the
exercise of, or refraining from the exercise of any rights against Borrower, any
of Guarantors or any other Obligor or any collateral, (iv) the settlement,
compromise or release of, or the waiver of any default with respect to, any of
the Guaranteed Obligations and (v) any financing by Lender of Borrower under
Section 364 of the United States Bankruptcy Code or consent to the use of cash
collateral by Lender under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code.
Each of Guarantors agrees that the amount of the Guaranteed Obligations shall
not be diminished and the liability of Guarantors hereunder shall not be
otherwise impaired or affected by any of the foregoing.
(b) No invalidity, irregularity or unenforceability of all or
any part of the Guaranteed Obligations shall affect, impair or be a defense to
this Guarantee, nor shall any other circumstance which might otherwise
constitute a defense available to or legal or equitable discharge of Borrower in
respect of any of the Guaranteed Obligations, or any one of Guarantors in
respect of this Guarantee, affect, impair or be a defense to this Guarantee.
Without limitation of the foregoing, the liability of Guarantors hereunder shall
not be discharged or impaired in any respect by reason of any failure by Lender
to perfect or continue perfection of any lien or security interest in any
collateral or any delay by Lender in perfecting any such lien or security
interest. As to interest, fees and expenses, whether arising before or after the
commencement of any case with respect to Borrower under the United States
Bankruptcy Code or any similar statute, Guarantors shall be liable therefor,
even if Borrower's liability for such amounts does not, or ceases to, exist by
operation of law. Each of Guarantors acknowledges that Lender has not made any
representations to any of Guarantors with respect to Borrower, any other Obligor
or otherwise in connection with the execution and delivery by Guarantors of this
Guarantee and
4
Guarantors are not in any respect relying upon Lender or any statements by
Lender in connection with this Guarantee.
(c) Until such time as all Guaranteed Obligations have been
indefeasibly paid in full, each of Guarantors hereby irrevocably and
unconditionally waives and relinquishes all statutory, contractual, common law,
equitable and all other claims against Borrower, any collateral for the
Guaranteed Obligations or other assets of Borrower or any other Obligor, for
subrogation, reimbursement, exoneration, contribution, indemnification, setoff
or other recourse in respect to sums paid or payable to Lender by each of
Guarantors hereunder and each of Guarantors hereby further irrevocably and
unconditionally waives and relinquishes any and all other benefits which
Guarantors might otherwise directly or indirectly receive or be entitled to
receive by reason of any amounts paid by or collected or due from Guarantors,
Borrower or any other Obligor upon the Guaranteed Obligations or realized from
their property.
3. Subordination. Payment of all amounts now or hereafter owed to
Guarantors by Borrower or any other Obligor is hereby subordinated in right of
payment to the indefeasible payment in full to Lender of the Guaranteed
Obligations and all such amounts and any security and guarantees therefor are
hereby assigned to Lender as security for the Guaranteed Obligations.
4. Acceleration. Notwithstanding anything to the contrary contained
herein or any of the terms of any of the other Financing Agreements, the
liability of Guarantors for the entire Guaranteed Obligations shall mature and
become immediately due and payable, even if the liability of Borrower or any
other Obligor therefor does not, upon the occurrence of any act, condition or
event which constitutes an Event of Default as such term is defined in the Loan
Agreement.
5. Account Stated. The books and records of Lender showing the account
between Lender and Borrower shall be admissible in evidence in any action or
proceeding against or involving Guarantors as prima facie proof of the items
therein set forth, and the monthly statements of Lender rendered to Borrower, to
the extent to which no written objection is made within thirty (30) days from
the date of sending thereof to Borrower, shall be deemed conclusively correct
and constitute an account stated between Lender and Borrower and be binding on
Guarantors.
6. Termination. This Guarantee is continuing, unlimited, absolute and
unconditional. All Guaranteed Obligations shall be conclusively presumed to have
been created in reliance on this Guarantee. Each of Guarantors shall continue to
be liable hereunder until one of Lender's officers actually receives a written
termination notice from a Guarantor sent to Lender at its address set forth
above by certified mail, return receipt requested and thereafter as set forth
below. Such notice received by Lender from any one of Guarantors shall not
constitute a revocation or termination of this Guarantee as to any of the other
Guarantors. Revocation or termination hereof by any of Guarantors shall not
affect, in any manner, the rights of Lender or any obligations or duties of any
of Guarantors (including the Guarantor which may have sent such notice) under
this Guarantee with respect to (a) Guaranteed Obligations which have been
created, contracted, assumed or incurred prior to the receipt by Lender of such
written notice of
5
revocation or termination as provided herein, including, without limitation, (i)
all amendments, extensions, renewals and modifications of such Guaranteed
Obligations (whether or not evidenced by new or additional agreements, documents
or instruments executed on or after such notice of revocation or termination),
(ii) all interest, fees and similar charges accruing or due on and after
revocation or termination, and (iii) all attorneys' fees and legal expenses,
costs and other expenses paid or incurred on or after such notice of revocation
or termination in attempting to collect or enforce any of the Guaranteed
Obligations against Borrower, Guarantors or any other Obligor (whether or not
suit be brought), or (b) Guaranteed Obligations which have been created,
contracted, assumed or incurred after the receipt by Lender of such written
notice of revocation or termination as provided herein pursuant to any contract
entered into by Lender prior to receipt of such notice. The sole effect of such
revocation or termination by any of Guarantors shall be to exclude from this
Guarantee the liability of such Guarantor for those Guaranteed Obligations
arising after the date of receipt by Lender of such written notice which are
unrelated to Guaranteed Obligations arising or transactions entered into prior
to such date. Without limiting the foregoing, this Guarantee may not be
terminated and shall continue so long as the Loan Agreement shall be in effect
(whether during its original term or any renewal, substitution or extension
thereof).
7. Reinstatement. If after receipt of any payment of, or proceeds of
collateral applied to the payment of, any of the Guaranteed Obligations, Lender
is required to surrender or return such payment or proceeds to any Person for
any reason, then the Guaranteed Obligations intended to be satisfied by such
payment or proceeds shall be reinstated and continue and this Guarantee shall
continue in full force and effect as if such payment or proceeds had not been
received by Lender. Each of Guarantors shall be liable to pay to Lender, and
does indemnify and hold Lender harmless for the amount of any payments or
proceeds surrendered or returned. This Section 7 shall remain effective
notwithstanding any contrary action which may be taken by Lender in reliance
upon such payment or proceeds. This Section 7 shall survive the termination or
revocation of this Guarantee.
8. Amendments and Waivers. Neither this Guarantee nor any provision
hereof shall be amended, modified, waived or discharged orally or by course of
conduct, but only by a written agreement signed by an authorized officer of
Lender. Lender shall not by any act, delay, omission or otherwise be deemed to
have expressly or impliedly waived any of its rights, powers and/or remedies
unless such waiver shall be in writing and signed by an authorized officer of
Lender and each Guarantor. Any such waiver shall be enforceable only to the
extent specifically set forth therein. A waiver by Lender of any right, power
and/or remedy on any one occasion shall not be construed as a bar to or waiver
of any such right, power and/or remedy which Lender would otherwise have on any
future occasion, whether similar in kind or otherwise.
9. Corporate Existence, Power and Authority. Each of Guarantors is a
corporation duly organized and in good standing under the laws of its state or
other jurisdiction of incorporation and is duly qualified as a foreign
corporation and in good standing in all states or other jurisdictions where the
nature and extent of the business transacted by it or the ownership of assets
makes such qualification necessary, except for those jurisdictions in which the
failure to so qualify would not have a material adverse effect on the financial
condition, results of operation or businesses of any of Guarantors or the rights
of Lender hereunder or under any of the other
6
Financing Agreements. The execution, delivery and performance of this Guarantee
is within the corporate powers of each of Guarantors, have been duly authorized
and are not in contravention of law or the terms of the certificates of
incorporation, by-laws, or other organizational documentation of each of
Guarantors, or any indenture, agreement or undertaking to which any of
Guarantors is a party or by which any of Guarantors or its property are bound.
This Guarantee constitutes the legal, valid and binding obligation of each of
Guarantors enforceable in accordance with its terms. Any one of Guarantors
signing this Guarantee shall be bound hereby whether or not any of the other
Guarantors or any other person signs this Guarantee at any time.
10. Governing Law; Choice of Forum; Service of Process; Jury Trial
Waiver.
(a) The validity, interpretation and enforcement of this
Guarantee and any dispute arising out of the relationship between any of
Guarantors and Lender, whether in contract, tort, equity or otherwise, shall be
governed by the internal laws of the State of New York (without giving effect to
principles of conflicts of law).
(b) Each of Guarantors hereby irrevocably consents and submits
to the non-exclusive jurisdiction of the Supreme Court of the State of New York
for New York County and the United States District Court for the Southern
District of New York and waives any objection based on venue or forum non
conveniens with respect to any action instituted therein arising under this
Guarantee or any of the other Financing Agreements or in any way connected with
or related or incidental to the dealings of any of Guarantors and Lender in
respect of this Guarantee or any of the other Financing Agreements or the
transactions related hereto or thereto, in each case whether now existing or
hereafter arising and whether in contract, tort, equity or otherwise, and agrees
that any dispute arising out of the relationship between any of Guarantors or
Borrower and Lender or the conduct of any such persons in connection with this
Guarantee, the other Financing Agreements or otherwise shall be heard only in
the courts described above (except that Lender shall have the right to bring any
action or proceeding against any of Guarantors or its property in the courts of
any other jurisdiction which Lender deems necessary or appropriate in order to
realize on collateral at any time granted by Borrower or any of Guarantors to
Lender or to otherwise enforce its rights against any of Guarantors or its
property).
(c) Each of Guarantors hereby waives personal service of any
and all process upon it and consents that all such service of process may be
made by certified mail (return receipt requested) directed to its address set
forth on the signature pages hereof and service so made shall be deemed to be
completed five (5) days after the same shall have been so deposited in the U.S.
mails, or, at Lender's option, by service upon any of Guarantors in any other
manner provided under the rules of any such courts.
(d) EACH OF GUARANTORS HEREBY WAIVES ANY RIGHT TO TRIAL BY
JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS
GUARANTEE OR ANY OF THE OTHER FINANCING AGREEMENTS OR (ii) IN ANY WAY CONNECTED
WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF ANY OF GUARANTORS AND LENDER IN
RESPECT OF THIS GUARANTEE OR ANY OF THE OTHER FINANCING AGREEMENTS OR THE
TRANSACTIONS RELATED HERETO OR THERETO IN EACH CASE WHETHER NOW
7
EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR
OTHERWISE. EACH OF GUARANTORS HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY
AND THAT ANY OF GUARANTORS OR LENDER MAY FILE AN ORIGINAL COUNTERPART OF A COPY
OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF
GUARANTORS AND LENDER TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
(e) Lender shall not have any liability to Guarantors (whether
in tort, contract, equity or otherwise) for losses suffered by Guarantors in
connection with, arising out of, or in any way related to the transactions or
relationships contemplated by this Guarantee, or any act, omission or event
occurring in connection herewith, unless it is determined by a final and
non-appealable judgment or court order binding on Lender that the losses were
the result of acts or omissions constituting gross negligence or willful
misconduct.
11. Notices. All notices, requests and demands hereunder shall be in
writing and (a) made to Lender at its address set forth above and to each of
Guarantors at its chief executive office set forth below, or to such other
address as either party may designate by written notice to the other in
accordance with this provision, and (b) deemed to have been given or made: if
delivered in person, immediately upon delivery; if by telex, telegram or
facsimile transmission, immediately upon sending and upon confirmation of
receipt; if by nationally recognized overnight courier service with instructions
to deliver the next business day, one (1) business day after sending; and if by
certified mail, return receipt requested, five (5) days after mailing.
12. Partial Invalidity. If any provision of this Guarantee is held to
be invalid or unenforceable, such invalidity or unenforceability shall not
invalidate this Guarantee as a whole, but this Guarantee shall be construed as
though it did not contain the particular provision held to be invalid or
unenforceable and the rights and obligations of the parties shall be construed
and enforced only to such extent as shall be permitted by applicable law.
13. Entire Agreement. This Guarantee represents the entire agreement
and understanding of this parties concerning the subject matter hereof, and
supersedes all other prior agreements, understandings, negotiations and
discussions, representations, warranties, commitments, proposals, offers and
contracts concerning the subject matter hereof, whether oral or written.
14. Successors and Assigns. This Guarantee shall be binding upon
Guarantors and their respective successors and assigns and shall inure to the
benefit of Lender and its successors, endorsees, transferees and assigns. The
liquidation, dissolution or termination of any of Guarantors shall not terminate
this Guarantee as to such entity or as to any of the other Guarantors.
15. Construction. All references to the term "Guarantors" wherever used
herein shall mean each and all of Guarantors and their respective successors and
assigns, individually and collectively, jointly and severally (including,
without limitation, any receiver, trustee or custodian for any of Guarantors or
any of their respective assets or any of Guarantors in its
8
capacity as debtor or debtor-in-possession under the United States Bankruptcy
Code). All references to the term "Lender" wherever used herein shall mean
Lender and its successors and assigns and all references to the term "Borrower"
wherever used herein shall mean Borrower and its successors and assigns
(including, without limitation, any receiver, trustee or custodian for Borrower
or any of its assets or Borrower in its capacity as debtor or
debtor-in-possession under the United States Bankruptcy Code). All references to
the term "Person" or "person" wherever used herein shall mean any individual,
sole proprietorship, partnership, corporation (including, without limitation,
any corporation which elects subchapter S status under the Internal Revenue Code
of 1986, as amended), limited liability company, limited liability partnership,
business trust, unincorporated association, joint stock corporation, trust,
joint venture or other entity or any government or any agency or instrumentality
of political subdivision thereof. All references to the plural shall also mean
the singular and to the singular shall also mean the plural.
(Signatures Follow)
9
IN WITNESS WHEREOF, each of Guarantors has executed and delivered this
Guarantee as of the day and year first above written.
ATTEST: ECOGEN INVESTMENTS INC.
/s/ Xxxxxxx X. Xxxx By: /s/ Xxxx X. Xxxxxxxx
---------------------- ------------------------------
Title: Vice President
[CORPORATE SEAL]
Chief Executive Xxxxxx
000 Xxxxxxxx Xxx., Xxxxxxxxxx, XX 00000
ATTEST: ECOGEN TECHNOLOGIES I
INCORPORATED
/s/ Xxxxxxx X. Xxxx By: /s/ Xxxx X. Xxxxxxxx
---------------------- ------------------------------
Title: Vice President and Chief Financial
Officer
[CORPORATE SEAL]
Chief Executive Xxxxxx
0000 Xxxxx Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
ATTEST:
ECOGEN-BIO INC.
/s/ Xxxxxxx X. Xxxx By: /s/ Xxxx X. Xxxxxxxx
---------------------- ------------------------------
Title: Vice President
[CORPORATE SEAL]
Chief Executive Xxxxxx
000 Xxxxxxxx Xxx., Xxxxxxxxxx, XX 00000
[GUARANTEE 1/3]
10
ATTEST:
ECORESEARCH MILDEW I INC.
/s/ Xxxxxxx X. Xxxx By: /s/ Xxxx X. Xxxxxxxx
----------------------- ------------------------------
Title: Vice President and Chief
Financial Officer
[CORPORATE SEAL]
Chief Executive Xxxxxx
0000 Xxxxx Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
ATTEST:
ECORESEARCH HARVEST ROT II INC.
/s/ Xxxxxxx X. Xxxx By: /s/ Xxxx X. Xxxxxxxx
----------------------- ------------------------------
Title: Vice President and Chief
Financial Officer
[CORPORATE SEAL]
Chief Executive Xxxxxx
0000 Xxxxx Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
ATTEST:
ECORESEARCH CORN BORER III INC.
/s/ Xxxxxxx X. Xxxx By: /s/ Xxxx X. Xxxxxxxx
----------------------- ------------------------------
Title: Vice President and Chief
Financial Officer
[CORPORATE SEAL]
Chief Executive Xxxxxx
0000 Xxxxx Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
[GUARANTEE 2/3]
11
ATTEST:
ECORESEARCH NEMATODES IV INC.
/s/ Xxxxxxx X. Xxxx By: /s/ Xxxx X. Xxxxxxxx
----------------------- ----------------------
Title: Vice President and Chief Financial
Officer
[CORPORATE SEAL]
Chief Executive Xxxxxx
0000 Xxxxx Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
ATTEST:
ECORESEARCH ROOTWORM V INC.
/s/ Xxxxxxx X. Xxxx By: /s/ Xxxx X. Xxxxxxxx
----------------------- ----------------------
Title: Vice President and Chief Financial
Officer
[CORPORATE SEAL]
Chief Executive Xxxxxx
0000 Xxxxx Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
ATTEST:
ECORESEARCH TURF VI INC.
/s/ Xxxxxxx X. Xxxx By: /s/ Xxxx X. Xxxxxxxx
----------------------- ----------------------
Title: Vice President and Chief Financial
Officer
[CORPORATE SEAL]
Chief Executive Xxxxxx
0000 Xxxxx Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
[GUARANTEE 3/3]
