[DPI]
EXHIBIT 10.35
GENERAL GUARANTY
Garden City, New York February 25 ,2000
THIS GUARANTY, dated as of February 25, 2000 (this "Agreement"), is
executed and delivered by the undersigned Guarantor in favor of The Chase
Manhattan Bank (the "Agent"), in its capacity as the agent under the Loan
Agreement (as defined below) (together with its permitted successors,
transferees and assigns, the "Agent"), for the benefit of each of the lenders
which is a party to the Loan Agreement and each lender which may, after the date
of this Agreement, become a party to the Loan Agreement (together with their
permitted successors, transferees and assigns, the "Lenders").
WHEREAS, pursuant to the Amended and Restated Loan Agreement, dated as of
February 25, 2000 (as such may be amended, restated, modified or otherwise
supplemented from time to time, the "Loan Agreement"), entered into by Del
Laboratories, Inc., (the "Borrower"), Del Pharmaceuticals, Inc., Parfums
Schiaparelli, Inc., Royce & Xxxxx, Inc. and 565 Broad Hollow Realty Corp., as
guarantors, with the Lenders and the Agent, the Lenders are providing to the
Borrower certain credit facilities described therein.
NOW THEREFORE, in consideration of the premises and other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. DEFINED TERMS. As used in this Guaranty, the following terms shall have
the following meanings, unless the context otherwise requires. Any other
capitalized term used but not defined herein shall have the meaning given such
term in the Loan Agreement.
"Agent" means The Chase Manhattan Bank, as Agent under the Loan Agreement,
or any institution which succeeds to such position pursuant to the terms and
conditions of the Loan Agreement.
"Loan Agreement" shall have the meaning given such term in the preamble to
this Agreement.
"Obligations" shall mean any and all liabilities and obligations of the
Borrower to the Agent and the Lenders of every kind whether arising under this
Guaranty, the Loan Agreement, the
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Loan Documents or any of the agreements, instruments and documents executed in
connection herewith or therewith (including, without limitation, any and all
costs and reasonable attorneys' fees incurred by the Agent or any of the Lenders
in the collection, whether by suit or by any other means of any of such
Obligations hereunder or thereunder) and any amendment, modification, extension
or renewal of any of the foregoing. The Obligations shall include interest
accruing thereon before or after the commencement of any insolvency, bankruptcy
or reorganization proceeding in respect of the Borrower or the Guarantor whether
or not such interest is an allowable claim in any such proceeding and
irrespective of the discharge or release of the Borrower in such proceeding.
2. GUARANTY. For value received, and in consideration of the loans made or
to be made or credit otherwise extended or to be extended by Lenders to or for
the account of the Borrower from time to time and at any time and for other good
and valuable consideration and to induce the Lenders to make such loans or
extensions of credit and to make or grant such renewals, extensions, releases of
collateral or relinquishments of legal rights as to the Lenders may seem
advisable, the Guarantor absolutely and unconditionally guarantees to the Agent
and the Lenders, their successors, endorsees and assigns, the prompt and
complete payment when due of all Obligations, irrespective of the genuineness,
validity, regularity or enforceability of such Obligations, or of any instrument
evidencing any of the Obligations or of any collateral therefor or of the
existence or extent of such collateral.
3. MODIFICATIONS; EXTENSIONS, ETC. The Guarantor hereby assents that the
Agent and/or the Lenders may at any time and from time to time, either before or
after the maturity thereof, without notice to or reservation of rights against
or further consent of the Guarantor (i) extend the time of payment of, exchange,
release, substitute or surrender any collateral for, renew or extend any of the
Obligations or increase the interest rate thereon, and (ii) make any agreement
with the Borrower or with any other party to or person liable on any of the
Obligations, or interested therein, for the extension, renewal, payment,
compromise, discharge or release thereof, in whole or in part, or for any
modification of the terms thereof or of any agreement between the Agent and any
of the Lenders and the Borrower or any such other party or person. Any of the
foregoing shall not, in any way impair or affect this Guaranty or the obligation
of the Guarantor hereunder.
4. FINANCIAL ADVANTAGE. The Guarantor hereby acknowledges that it has
derived or expects to derive a financial or other advantage from each and every
Obligation incurred by the Borrower
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to the Agent and the Lenders reasonably equivalent to the obligation of the
Guarantor hereunder.
5. WAIVER OF NOTICE. The Guarantor waives notice of the acceptance of
this Guaranty and of the making of any loans or extensions of credit or the
incurrence of any Obligation, presentment to or demand of payment from anyone
whomsoever liable upon any of the Obligations, protest, notice of presentment,
non-payment or protest and notice of any default of any sort.
6. CONTINUING GUARANTY. This is a continuing Guaranty and shall remain
in full force and effect and be binding upon the Guarantor and its successors
and assigns, until all of the Obligations (other than unmatured contingent
obligations unrelated to reimbursements of letters of credit) have been
irrevocably paid in full and the Loan Agreement and the Commitments of the
Lenders thereunder have been terminated. If any of the present or future
Obligations are guaranteed by persons, partnerships or corporations in addition
to the Guarantor, the death, release or discharge in whole or in part, or the
bankruptcy, liquidation or dissolution of one or more of them, shall not
discharge or affect the liabilities of the Guarantor under this Guaranty.
7. REINSTATEMENT. This Guaranty shall continue to be effective, or be
reinstated, as the case may be, if at any time any payment, or any part thereof,
of any of the Obligations is rescinded or must otherwise be restored or returned
by the Agent or any Lender upon insolvency, bankruptcy, dissolution, liquidation
or reorganization of the Borrower or the Guarantor, or otherwise or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for the Borrower or the Guarantor or any substantial
part of their property, or otherwise, all as though such payments had not been
made.
8. GUARANTY OF PAYMENT. This Guaranty is a guaranty of payment and not of
collection, and neither the Agent or any Lender shall be under any obligation to
take any action against the Borrower or any other person liable with respect to
any of the Obligations or resort to any collateral security held by it to secure
any of the Obligations as a condition precedent to the Guarantor being obligated
to perform as agreed herein. The Guarantor hereby waives any rights to interpose
any defense, counterclaim (other than mandatory counterclaims) or offset of any
nature and description which it may have or which may exist between and among
the Agent, any Lender, the Borrower and/or the Guarantor. Neither the Agent nor
any Lender nor their successors, endorsees or assigns shall have any obligation
to protect, secure, perfect or insure any lien at any time held by it as
security for the
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Obligations or for this Guaranty or any property subject thereto or hereto,
but at the Agent's or such Lender's sole option and without prejudice may do
so or incompletely do so, and the Guarantor's obligations hereunder shall in
no way be affected by reason thereof.
9. WAIVER OF TRIAL BY JURY. THE GUARANTOR, THE AGENT AND EACH LENDER HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL BY JURY WHICH
THE GUARANTOR, THE AGENT AND EACH LENDER MAY HAVE IN ANY ACTION, PROCEEDING,
CLAIM OR COUNTERCLAIM, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS GUARANTY OR
THE TRANSACTIONS RELATED HERETO. THE GUARANTOR REPRESENTS AND WARRANTS THAT NO
REPRESENTATIVE OR AGENT OF THE AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT THE AGENT OR SUCH LENDER WILL NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THIS JURY TRIAL WAIVER. THE GUARANTOR ACKNOWLEDGES THAT THE
AGENT AND THE LENDERS HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY BY, AMONG
OTHER THINGS, THE PROVISIONS OF THIS SECTION.
10. SUBROGATION. The Guarantor hereby waives all rights to be subrogated to
the rights of the Agent and the Lenders with respect to the Obligations until
the full and complete payment of the Obligations. In addition, until the full
and complete payment of the Obligations, the Guarantor hereby waives any right
to proceed against the Borrower, now or hereafter, for contribution, indemnity,
reimbursement and all other suretyship rights and claims, whether direct or
indirect, liquidated or contingent, whether arising under express or implied
contract or by operation of law, which the Guarantor may now or hereafter have
against the Borrower with respect to the Obligations. The Guarantor also hereby
waives any rights to recourse to or with respect to any assets of the Borrower.
If any amount shall be paid to the Guarantor on account of such subrogation
rights at any time when all such Obligations shall not have been irrevocably
paid in full, such amount shall be held in trust for the benefit of the Agent
and the Lenders and shall forthwith be paid to the Agent to be credited and
applied upon the Obligations.
11. NO WAIVER. No failure on the part of the Agent to exercise, and no
delay in exercising, any right, remedy or power hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise by the Agent of any
right, remedy or power hereunder preclude any other or future exercise of any
other right, remedy or power.
12. CUMULATIVE RIGHTS. Each and every right, remedy and power hereby
granted to the Agent or allowed it by law or other
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agreement shall be cumulative and not exclusive of any other, and may be
exercised by the Agent at any time and from time to time.
13. ENTIRE AGREEMENT. This Guaranty embodies the entire agreement and
understanding between the Agent and the Guarantor and supersedes all prior
agreements and understandings relating to the subject matter hereof.
14. APPLICABLE LAW; JURISDICTION; VENUE. This Guaranty shall be construed
and interpreted in accordance with the laws of the State of New York. The
Guarantor agrees that any action or proceeding relating in any way to this
Guaranty shall be brought and enforced in the courts of the State of New York or
the United States District Court for the Southern or Eastern District of New
York, and irrevocably submits to the jurisdiction of each such court in any
action or proceeding arising out of or relating to this Guaranty, and the
Guarantor irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such New York State or Federal Court.
In furtherance of the foregoing, the Guarantor hereby irrevocably waives, to the
fullest extent permitted by law, any objection which it may now or hereafter
have to the laying of venue in any action or proceeding relating in any way to
this Guaranty brought in the Supreme Court of the State of New York within New
York City, Nassau, Suffolk and Westchester Counties or the United States
District Court for the Southern and Eastern Districts of New York and any claim
that such action or proceeding brought in any such court has been brought in an
inconvenient forum. Notwithstanding the foregoing, the Agent may bring any
action or proceeding against the Guarantor or its property in the courts of such
jurisdictions as are deemed necessary by the Agent in its sole and absolute
discretion.
15. PAYMENTS. No payment or payments made by any person or received or
collected by the Agent or any Lender from any person by virtue of any action or
proceeding or any setoff or appropriation or application, at any time or from
time to time, in reduction of or in payment of the Obligations shall be deemed
to modify, reduce, release or otherwise affect the liability of the Guarantor
hereunder which shall, notwithstanding any such payment or payments, remain in
place until there is cash payment of the Obligations in full.
16. REPRESENTATIONS. The Guarantor represents and warrants that all
necessary and proper corporate action has been taken to make this Guaranty and
all of the provisions hereof the valid and binding obligations of the Guarantor,
enforceable against the Guarantor in accordance with its terms.
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17. SEVERABILITY. Any provision(s) of this Guaranty which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to extent of such prohibition or enforceability without invalidating the
remaining provisions hereof, and any prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
18. REQUIRED LIMITATION. If any third party shall contest the validity or
enforceability of this Guaranty on the basis of any fraudulent conveyance claim,
preference claim or other grounds, including, without limitation, any grounds
based in federal or state bankruptcy or insolvency laws, this Guaranty shall be
enforced to the maximum amount to which it may be enforced without being subject
to any such contest on such claims or grounds.
19. AMENDMENT. None of the terms or provisions of this Guaranty may be
waived, amended, supplemented or otherwise modified except by a written
instrument executed by the Guarantor and the Agent; provided, however, that any
provision of this Guaranty may be waived by the Agent in a letter or agreement
executed by the Bank or by telex or facsimile transmission from the Agent.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed
by its authorized officers this 25th day of February, 2000.
DEL PHARMACEUTICALS, INC.
By: /s/ Enzo Viarldi
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Name: Xxxx Xxxxxxxx
Title: Executive Vice President
and Chief Financial
Officer
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