Exhibit T3E.4
Form of Subordinated Guarantee Agreement
SUBORDINATED GUARANTEE AGREEMENT
This SUBORDINATED GUARANTEE (this "Agreement") dated as of _________,
1998, is made by certain Subsidiaries of Inamed Corporation, a Florida
corporation (the "Company") that are signatories hereto and who execute a
Joinder hereto in the form of Exhibit A hereto (collectively, the "Guarantors")
in favor of the holders of the Company's 11.00% Senior Subordinated Secured
Notes due March 31, 1999 or at the option of the Obligor exercised as provided
therein, September 1, 2000 (the "Exchange Notes") issued pursuant to the
Subordinated Indenture dated as of _______, 1998 between the Company and Santa
Xxxxxxx Bank & Trust, as trustee (the "Trustee").
RECITALS
The Indenture dated as of ___________, 1998 (the "Subordinated
Indenture") between the Company and the Trustee provides, subject to its terms
and conditions, for the issuance by the Company of its 11% Senior Subordinated
Secured Notes due March 31, 1999, or at the option of the Obligor as provided
therein, September 1, 2000 (the "Exchange Notes") as well as certain warrants to
purchase the Company's common stock, $.01 per share, (the "Warrants") to be
issued in exchange for the Company's 11% Secured Convertible Notes due 1999 (the
"Old Notes") to the holders thereof (the "Holders") pursuant to the Securities
Exchange Agreement dated as of October 7, 1998 (the "Exchange Agreement"). It is
a condition to the exchange of the Old Notes for the Notes and Warrants by the
Purchasers that the Guarantors shall have executed and delivered, and granted
the Liens provided for in, this Agreement.
To induce the Trustee to enter into the Subordinated
Indenture, and to induce the Purchasers to exchange the Old Notes, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantors have agreed to pledge and grant a security interest
in the Collateral as security for the Secured Obligations. Accordingly, the
Obligors agree with the Trustee as follows:
Article I. Definitions and Interpretation.
1.01 CERTAIN DEFINED TERMS. Unless otherwise defined, all capitalized
terms used in this Agreement that are defined in the Subordinated Indenture or
in the Exchange Agreement (including those terms incorporated therein by
reference) shall have the respective meanings assigned to them in the
Subordinated Indenture or the Exchange Agreement, as applicable. In addition,
the following terms shall have the following meanings under this Agreement:
"Collateral" shall have the meaning assigned to that term in the
Subordinated Indenture.
"Exchange Documents" shall mean the Securities Exchange Agreement dated
as of ___________, 1998 between the Company, the holders listed on Exhibit A
thereto and the Collateral Agent, the Exchange Notes, this Agreement, the
Subordinated Security Agreement, dated as of the date hereof, between the
Company and the Collateral Agent (the "Subordinated
Security Agreement"), the Subordinated Guarantee and Security Agreement, dated
as of the date hereof, by and between certain Subsidiaries of the Company and
the Collateral Agent (the "Subordinated Guarantee and Security Agreement"),the
Subordinated Indenture, the Exchange Offer Registration Rights Agreement, dated
as of the date hereof, by and between the Company and the Holders and the
Intercreditor Agreement, dated as of the date hereof, by and between the
Collateral Agent and the Trustee.
"Guaranteed Obligations" means any and all Obligations and any and all
obligations of the Company for the performance by it of its agreements,
covenants and undertakings under or in respect of the Exchange Documents.
"Intercreditor Agreement" means the Intercreditor Agreement dated as of
September 30, 1998 between the Trustee and Appaloosa Management, L.P. as
Collateral Agent (the "Collateral Agent") under the Note Purchase Agreement.
"Note Purchase Agreement" means the agreement dated as of September 30,
1998 between the Company, the parties listed on Exhibit A thereto and the
Collateral Agent.
"Obligations" shall mean the principal and interest due under the
Exchange Notes and all other obligations and liabilities of the Company to the
Holders of every nature whatsoever now existing or hereafter arising, including,
without limitation, all prepayment premiums, indemnities, reimbursement
obligations, fees, costs and expenses, arising under or in connection the
Exchange Documents (including, without limitation, any interest accruing
subsequent to (or that would accrue but for) the commencement of any proceeding
involving the bankruptcy, insolvency, reorganization, liquidation, receivership
or the like of the Company), and any and all expenses which may be incurred by
the Holders in collecting any or all of the obligations of such Guarantor under
this Agreement and/or enforcing any rights under this Agreement.
"Subordinated Indenture" means the indenture dated September __, 1998,
between the Company, as issuer of the Exchange Notes, and Santa Xxxxxxx Bank and
Trust, as Trustee.
1.02 INTERPRETATION. In this Agreement, unless otherwise indicated, the
singular includes the plural and plural the singular; words importing either
gender include the other gender; references to statutes or regulations are to be
construed as including all statutory or regulatory provisions consolidating,
amending or replacing the statute or regulation referred to; references to
"writing" include printing, typing, lithography and other means of reproducing
words in a tangible visible form; the words "including," "includes" and
"include" shall be deemed to be followed by the words "without limitation";
references to articles, sections (or subdivisions of sections), exhibits,
annexes or schedules are to this Agreement; references to agreements and other
contractual instruments shall be deemed to include all subsequent amendments,
extensions and other modifications to such instruments (without, however,
limiting any prohibition on any such amendments, extensions and other
modifications by the terms of any Exchange Document); and references to Persons
include their respective permitted successors and assigns and, in the case of
governmental Persons, Persons succeeding to their respective functions and
capacities.
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Article II. Guarantee.
2.01 GUARANTEE. (a) Subject to the limitation set forth in Section
2.08, each of the Guarantors, as a primary guarantor and not merely as a surety,
hereby jointly and severally guarantees to the Holders the prompt and complete
payment when due (whether at stated maturity, by acceleration or otherwise) and
performance of the Guaranteed Obligations in each case strictly in accordance
with their terms. The Guarantors hereby further jointly and severally agree that
if the Company shall fail to pay in full when due (whether at stated maturity,
by acceleration or otherwise) all or any part of the Guaranteed Obligations, the
Guarantors will immediately pay the same, without any demand or notice
whatsoever, and that in the case of any extension of time of payment or renewal
of all or any part of the Guaranteed Obligations, the same will be timely paid
in full when due (whether at extended maturity, by acceleration or otherwise) in
accordance with the terms of such extension or renewal. The obligations of the
Guarantors under this Article II are irrevocable and unconditional in nature and
are made with respect to any Guaranteed Obligations now existing or in the
future arising. The Guarantors' liability under this Agreement shall continue
until full satisfaction of all Guaranteed Obligations. The obligations of the
Guarantors constitute a guarantee of due and punctual payment and performance
and not merely a guarantee of collection, and each of the Guarantors
specifically agrees that it shall not be necessary or required that the Holders
exercise any right, assert any claim or demand or enforce any remedy whatsoever
against the Company (or any other Person) before or as a condition to the
obligations of such Guarantor hereunder.
(b) No payment or payments made by the Company or any other
Person or received or collected by the Holders from the Company or any other
Person by virtue of any action or proceeding or any set-off or appropriation or
application at any time or from time to time in reduction of or in payment of
the Guaranteed Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of the Guarantors hereunder which shall,
notwithstanding any such payment or payments, remain liable for the Guaranteed
Obligations until the date upon which the Guaranteed Obligations are fully
performed and paid in full.
2.02 ACKNOWLEDGMENTS, WAIVERS AND CONSENTS. Each Guarantor acknowledges
that the obligations undertaken by it under this Agreement involve the guarantee
of obligations of Persons other than such Guarantor and that such obligations of
such Guarantor are absolute, irrevocable and unconditional under any and all
circumstances. In full recognition and in furtherance of the foregoing, each
Guarantor agrees that:
(a) Without affecting the enforceability or effectiveness of
this Agreement in accordance with its terms and without affecting, limiting,
reducing, discharging or terminating the liability of such Guarantor, or the
rights, remedies, powers and privileges of the Holders under this Agreement, the
Trustee may, at any time and from time to time and without notice or demand of
any kind or nature whatsoever: (i) amend, supplement, modify, extend, renew,
waive, accelerate or otherwise change the time for payment or performance of, or
the terms of, all or any part of the Guaranteed Obligations (including any
increase or decrease in the rate or rates of interest on all or any part of the
Guaranteed Obligations); (ii) amend, supplement, modify, extend,
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renew, waive or otherwise change, or enter into or give, any Exchange Document
or any agreement, security document, guarantee, approval, consent or other
instrument with respect to all or any part of the Guaranteed Obligations, any
Exchange Document or any such other instrument or any term or provision of the
foregoing; (iii) accept or enter into new or additional agreements, security
documents, guarantees or other instruments in addition to, in exchange for or
relative to any Exchange Document, all or any part of the Guaranteed Obligations
or any collateral now or in the future serving as security for the Guaranteed
Obligations; (iv) accept or receive (including from any other Guarantor) partial
payments or performance on the Guaranteed Obligations (whether as a result of
the exercise of any right, remedy, power or privilege or otherwise); (v) accept,
receive and hold any additional collateral for all or any part of the Guaranteed
Obligations (including from any other Guarantor); (vi) release, reconvey,
terminate, waive, abandon, allow to lapse or expire, fail to perfect,
subordinate, exchange, substitute, transfer, foreclose upon or enforce any
collateral, security documents or guarantees (including the obligations of any
other Guarantor) for or relative to all or any part of the Guaranteed
Obligations; (vii) apply any collateral or the proceeds of any collateral or
guarantee (including the obligations of any other Guarantor) to all or any part
of the Guaranteed Obligations in such manner and extent as the Trustee may in
its discretion determine; (viii) release any Person (including any other
Guarantor) from any personal liability with respect to all or any part of the
Guaranteed Obligations; (ix) settle, compromise, release, liquidate or enforce
upon such terms and in such manner as the Trustee may determine or as applicable
law may dictate all or any part of the Guaranteed Obligations or any collateral
on or guarantee of all or any part of the Guaranteed Obligations (including with
any other Guarantor); (x) consent to the merger or consolidation of, the sale of
substantial assets by, or other restructuring or termination of the corporate
existence of the Company or any other Person (including any other Guarantor);
(xi) proceed against the Company, such or any other Guarantor or any other
guarantor of all or any part of the Guaranteed Obligations or any collateral
provided by any Person and exercise the rights, remedies, powers and privileges
of the Holders under the Exchange Documents or otherwise in such order and such
manner as the Trustee may, in its discretion, determine, without any necessity
to proceed upon or against or exhaust any collateral, right, remedy, power or
privilege before proceeding to call upon or otherwise enforce this Agreement as
to any Guarantor; (xii) foreclose upon any deed of trust, mortgage or other
instrument creating or granting liens on any interest in real property by
judicial or nonjudicial sale or by deed in lieu of foreclosure, bid any amount
or make no bid in any foreclosure sale or make any other election of remedies
with respect to such liens or exercise any right of set-off; (xiii) obtain the
appointment of a receiver with respect to any collateral for all or any part of
the Guaranteed Obligations and apply the proceeds of such receivership as the
Trustee may in its discretion determine (it being agreed that nothing in this
clause (xiii) shall be deemed to make the Trustee a party in possession in
contemplation of law, except at its option); (xiv) enter into such other
transactions or business dealings with any other Guarantor, the Company, any
Subsidiary or Affiliate of the Company or any other guarantor of all or any part
of the Guaranteed Obligations as the Trustee may desire; and (xv) do all or any
combination of the actions set forth in this Section 2.02(a).
(b) The enforceability and effectiveness of this Agreement and
the liability of the Guarantors, and the rights, remedies, powers and privileges
of the Holders and the Trustee, under
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this Agreement shall not be affected, limited, reduced, discharged or
terminated, and each Guarantor hereby expressly waives to the fullest extent
permitted by law any defense now or in the future arising, by reason of: (i) the
illegality, invalidity or unenforceability of all or any part of the Guaranteed
Obligations, any Exchange Document or any agreement, security document,
guarantee or other instrument relative to all or any part of the Guaranteed
Obligations; (ii) any disability or other defense with respect to all or any
part of the Guaranteed Obligations of the Company, any other Guarantor or any
other guarantor of all or any part of the Guaranteed Obligations, including the
effect of any statute of limitations that may bar the enforcement of all or any
part of the Guaranteed Obligations or the obligations of any such other
guarantor; (iii) the illegality, invalidity or unenforceability of any security
or guarantee for all or any part of the Guaranteed Obligations or the lack of
perfection or continuing perfection or failure of the priority of any lien on
any collateral for all or any part of the Guaranteed Obligations; (iv) the
cessation, for any cause whatsoever, of the liability of the Company, any other
Guarantor or any other guarantor of all or any part of the Guaranteed
Obligations (other than, subject to Section 2.05, by reason of the full payment
and performance of all Guaranteed Obligations); (v) any failure of the Holders
or the Trustee to marshal assets in favor of the Company or any other Person
(including any other Guarantor), to exhaust any collateral for all or any part
of the Guaranteed Obligations, to pursue or exhaust any right, remedy, power or
privilege it may have against any other Guarantor, the Company, any other
guarantor of all or any part of the Guaranteed Obligations or any other Person
or to take any action whatsoever to mitigate or reduce such or any other
Guarantor's liability under this Agreement, the Holders and the Trustee being
under no obligation to take any such action notwithstanding the fact that all or
any part of the Guaranteed Obligations may be due and payable and that the
Company may be in default of its obligations under any Exchange Document; (vi)
any failure of the Holders or the Trustee to give notice of sale or other
disposition of any Collateral (including any notice of any judicial or
nonjudicial foreclosure or sale of any interest in real property serving as
collateral for all or any part of the Guaranteed Obligations) for all or any
part of the Guaranteed Obligations to the Company, any Guarantor or any other
Person or any defect in, or any failure by any Guarantor or any other Person to
receive, any notice that may be given in connection with any sale or disposition
of any Collateral; (vii) any failure of the Holders or the Trustee to comply
with applicable laws in connection with the sale or other disposition of any
Collateral for all or any part of the Guaranteed Obligations; (viii) any
judicial or nonjudicial foreclosure or sale of, or other election of remedies
with respect to, any interest in real property or other Collateral serving as
security for all or any part of the Guaranteed Obligations, even though such
foreclosure, sale or election of remedies may impair the subrogation rights of
any Guarantor or may preclude any Guarantor from obtaining reimbursement,
contribution, indemnification or other recovery from any other Guarantor, the
Company, any other guarantor or any other Person and even though the Company may
not, as a result of such foreclosure, sale or election of remedies, be liable
for any deficiency; (ix) any benefits the Company, any Guarantor or any other
guarantor may otherwise derive from the laws of any jurisdiction of the nature
of a "one-form-of-action," "anti-deficiency" or "security-first" rule; (x) any
act or omission of the Holders, the Trustee or any other Person that directly or
indirectly results in or aids the discharge or release of the Company or any
other Guarantor of all or any part of the Guaranteed Obligations or any security
or guarantee for all or any part of the Guaranteed Obligations by operation of
law or otherwise; (xi) any law which
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provides that the obligation of a surety or guarantor must neither be larger in
amount nor in other respects more burdensome than that of the principal or which
reduces a surety's or guarantor's obligation in proportion to the principal
obligation; (xii) the possibility that the obligations of the Company to the
Holders or the Trustee may at any time and from time to time exceed the
aggregate liability of the Guarantors under this Agreement; (xiii) any
counterclaim, set-off or other claim which the Company or any other Guarantor
has or alleges to have with respect to all or any part of the Guaranteed
Obligations; (xiv) any failure of the Holders or the Trustee to file or enforce
a claim in any bankruptcy or other proceeding with respect to any Person; (xv)
the election by the Holders or the Trustee, in any bankruptcy proceeding of any
Person, of the application or nonapplication of Section 1111(b)(2) of the
Bankruptcy Code; (xvi) any extension of credit or the grant of any Lien under
Section 364 of the Bankruptcy Code; (xvii) any use of cash collateral under
Section 363 of the Bankruptcy Code; (xviii) any agreement or stipulation with
respect to the provision of adequate protection in any bankruptcy proceeding of
any Person; (xix) the avoidance of any Lien in favor of the Holders or the
Trustee for any reason; (xx) any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, liquidation or dissolution proceeding
commenced by or against any Person, including any discharge of, or bar or stay
against collecting, all or any part of the Guaranteed Obligations (or any
interest on all or any part of the Guaranteed Obligations) in or as a result of
any such proceeding; (xxi) any action taken by the Trustee that is authorized by
this Section 2.02 or otherwise in this Agreement or by any other provision of
any Exchange Document or any omission to take any such action; or (xxii) any
other circumstance whatsoever that might otherwise constitute a legal or
equitable discharge or defense of a surety or guarantor.
(c) Each Guarantor expressly waives, for the benefit of the
Trustee and the Holders, all set-offs and counterclaims and all presentments,
demands for payment or performance, notices of nonpayment or nonperformance,
protests, notices of protest, notices of dishonor and all other notices or
demands of any kind or nature whatsoever with respect to the Guaranteed
Obligations, and all notices of acceptance of this Agreement or of the
existence, creation, incurring or assumption of new or additional Guaranteed
Obligations. Each Guarantor further expressly waives the benefit of any and all
statutes of limitation and any and all laws providing for the exemption of
property from execution or for valuation and appraisal upon foreclosure, to the
maximum extent permitted by applicable law.
(d) Each Guarantor represents and warrants to the Holders that
it has established adequate means of obtaining financial and other information
pertaining to the business, operations and condition (financial and otherwise)
of the Company and its properties on a continuing basis and that such Guarantor
is now and will in the future remain fully familiar with the business,
operations and condition (financial and otherwise) of the Company and its
properties. Each Guarantor further represents and warrants that it has reviewed
and approved each of the Exchange Documents and is fully familiar with the
transactions contemplated by the Exchange Documents and that it will in the
future remain fully familiar with such transactions and with any new Exchange
Documents and the transactions contemplated by such Exchange Documents. Each
Guarantor hereby expressly waives and relinquishes any duty on the part of the
Holders (should any such duty exist) to disclose to such or any other Guarantor
any matter of fact or other
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information related to the business, operations or condition (financial or
otherwise) of the Company or its properties or to any Exchange Document or the
transactions undertaken pursuant to, or contemplated by, any such Exchange
Document, whether now or in the future known by the Holders.
(e) Each Guarantor intends that its rights and obligations
shall be those expressly set forth in this Agreement and that its obligations
shall not be affected, limited, reduced, discharged or terminated by reason of
any principles or provisions of law which conflict with the terms of this
Agreement.
2.03 UNDERSTANDING WITH RESPECT TO WAIVERS AND CONSENTS. Each Guarantor
warrants and agrees that each of the waivers and consents set forth in this
Agreement are made voluntarily and unconditionally after consultation with
outside legal counsel and with full knowledge of their significance and
consequences, with the understanding that events giving rise to any defense or
right waived may diminish, destroy or otherwise adversely affect rights which
such or any other Guarantor otherwise may have against the Company, the Holders,
the Trustee or any other Person or against any Collateral. If, notwithstanding
the intent of the parties that the terms of this Agreement shall control in any
and all circumstances, any such waivers or consents are determined to be
unenforceable under applicable law, such waivers and consents shall be effective
to the maximum extent permitted by law.
2.04 SUBROGATION. Notwithstanding any payment or payments made by the
Guarantors hereunder, or any set-off or application of funds of the Guarantors
by the Trustee, no Guarantors shall exercise any of the rights of the Trustee or
any Holder which any Guarantor may acquire by way of subrogation, by any payment
made hereunder, by reason of such set-off or application of funds or otherwise,
against the Company or against any collateral security or guarantee or right of
set-off held by the Trustee or any Holder for the payment of the Guaranteed
Obligations, and no Guarantor shall seek or be entitled to seek any contribution
or reimbursement from the Company in respect of payments made by the Guarantors
hereunder, until all amounts owing to the Trustee and the Holders by the Company
on account of the Guaranteed Obligations are paid in full. If any amount shall
be paid to any Guarantor on account of such subrogation rights at any time when
all of the Guaranteed Obligations shall not have been paid in full, such amount
shall be held by such Guarantor in trust for the Trustee and the Holders,
segregated from other funds of such Guarantor, and shall, forthwith upon receipt
by such Guarantor, be turned over to the Trustee in the exact form received by
such Guarantor (duly indorsed by such Guarantor to the Trustee, if required), to
be applied against the Guaranteed Obligations, whether matured or unmatured, in
such order as required by the applicable Exchange Documents.
2.05 REINSTATEMENT. The obligations of each Guarantor under this
Article II shall be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of the Company, any other Guarantor or any
other Person or any other application of funds (including the proceeds of any
collateral for all or any part of the Guaranteed Obligations) in respect of all
or any part of the Guaranteed Obligations is rescinded or must be otherwise
restored by any holder of such Guaranteed Obligations, whether as a result of
any proceedings in
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bankruptcy, reorganization or otherwise and the Guarantors jointly and severally
agree that it will indemnify the Holders and the Trustee on demand for all
reasonable costs and expenses (including fees and expenses of counsel) incurred
by the Holders in connection with such rescission or restoration.
2.06 REMEDIES. The Guarantors hereby jointly and severally agree that,
between each of them and the Trustee (for the benefit of the Holders) the
obligations of the Company under the Exchange Documents may be declared to be
forthwith (or may become automatically) due and payable as provided in Section
4.2 of the Subordinated Indenture for purposes of Section 2.01 notwithstanding
any stay, injunction or other prohibition preventing such declaration (or such
obligations becoming due and payable as against the Company) and that, in the
event of such declaration (or such obligation being deemed due and payable),
such obligations (whether or not due and payable by the Company) shall forthwith
become due and payable for purposes of Section 2.01.
2.07 SUBORDINATION OF INDEBTEDNESS OF THE COMPANY; SECURITY INTEREST.
(a) Each Guarantor agrees that any indebtedness of the Company now or in the
future owed to such Guarantor is hereby subordinated to the Guaranteed
Obligations. If the Trustee so requests, any such indebtedness shall be
collected, enforced and received by such Guarantor as trustee for the Trustee
and shall be paid over to the Trustee (for the benefit of the Holders) in kind
on account of the Guaranteed Obligations. If, after the Trustee's request, such
Guarantor fails to collect or enforce any such indebtedness or to pay the
proceeds of such indebtedness to the Trustee, the Trustee as such Guarantor's
attorney-in-fact may do such acts and sign such documents in such Guarantor's
name and on such Guarantor's behalf as the Trustee considers necessary or
desirable to effect such collection, enforcement or payment, the Trustee being
hereby appointed such Guarantor's attorney-in-fact for such purpose.
(b) Each Guarantor hereby grants to the Trustee (for the
benefit of the Holders) a security interest in any indebtedness referred to in
Section 2.07(a) and in any personal property of the Company in which such
Guarantor now has or in the future acquires any right, title or interest. Each
Guarantor agrees that such security interest shall be additional security for
the Guaranteed Obligations and shall be superior to any right of such Guarantor
in such property until the Guaranteed Obligations have been fully satisfied and
performed.
2.08 LIMITATION ON GUARANTEE. In any proceeding involving any state
corporate law or any state or federal bankruptcy, insolvency, reorganization or
other law affecting the rights of creditors generally, if the obligations of the
Guarantors under Section 2.01 would otherwise be held or determined to be void,
invalid or unenforceable or if the claims of the Holders in respect of such
obligations would be subordinated to the claims of any other creditors on
account of the Guarantors' liability under Section 2.01, then, notwithstanding
any other provision of this Agreement to the contrary, the amount of such
liability shall, without any further action by the Guarantors, the Holders or
any other Person, be automatically limited and reduced to the highest amount
which is valid and enforceable and not subordinated to the claims of other
creditors as determined in such action or proceeding.
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Article III. Covenants.
3.01 BOOKS AND RECORDS. Each Guarantor shall: (a) keep full and
accurate books and records relating to its business; and (b) permit
representatives of the Trustee, upon reasonable notice, at any time during
normal business hours to inspect and make abstracts from its books and records
pertaining to financial matters, in such manner as the Trustee may request.
Article IV. Miscellaneous.
4.01 WAIVER. No failure on the part of the Trustee or any Holder to
exercise and no delay in exercising, and no course of dealing with respect to,
any right, remedy, power or privilege under this Agreement shall operate as a
waiver of such right, remedy, power or privilege, nor shall any single or
partial exercise of any right, remedy, power or privilege under this Agreement
preclude any other or further exercise of any such right, remedy, power or
privilege or the exercise of any other right, remedy, power or privilege. The
rights, remedies, powers and privileges provided in this Agreement are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
4.02 NOTICES. All notices and communications to be given under this
Agreement shall be deemed given, if in writing and delivered personally, by
telecopy or sent by registered mail, postage prepaid to:
if to the Guarantors:
Inamed Corporation
0000 Xxxxxx Xxxxxx Xxxxxxx, #000
Xxx Xxxxx, Xxxxxx
Attention: Xxxx Xxxxx
if to the Trustee
Santa Xxxxxxx Bank & Trust
0000 Xxxxxxx Xxxxxx
Xxxxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Corporate Trust Administrator
4.03 EXPENSES, ETC. The Guarantors jointly and severally agree to pay
or to reimburse the Trustee for all costs and expenses (including reasonable
attorney's fees and expenses) that may be incurred by the Trustee in any effort
to enforce any of the provisions of Article II, or any of the obligations of the
Guarantors in respect of the Collateral or in connection with (a) the
preservation of the Lien of, or the rights of the Trustee under this Agreement
or (b) any actual
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or attempted sale, lease, disposition, exchange, collection, compromise,
settlement or other realization in respect of, or care of, the Collateral,
including all such costs and expenses (and reasonable attorney's fees and
expenses) incurred in any bankruptcy, reorganization, workout or other similar
proceeding.
4.04 AMENDMENTS. This Agreement may be amended as to the Trustee and
its respective successors and assigns, and the Guarantors may take any action
herein prohibited, or omit to perform any act required to be performed by it, if
the Guarantors shall obtain the written consent of the Trustee. This Agreement
may not be waived, changed, modified, or discharged orally, but only by an
agreement in writing signed by the party or parties against whom enforcement of
any waiver, change, modification or discharge is sought or by parties with the
right to consent to such waiver, change, modification or discharge on behalf of
such party.
4.05 SUCCESSORS AND ASSIGNS. All covenants and agreements contained
herein shall bind and inure to the benefit of the parties hereto and their
respective successors and assigns.
4.06 SURVIVAL. All covenants, agreements, representations and
warranties contained herein and in any certificates delivered pursuant hereto in
connection with the transactions contemplated hereby shall survive the Closing
and the delivery of the Exchange Documents, regardless of any investigation made
by or on behalf of any party.
4.07 AGREEMENTS SUPERSEDED. Except with respect to express references
to other Exchange Documents, this Agreement supersedes all prior agreements and
understandings, written or oral, among the parties with respect to the subject
matter of this Agreement.
4.08 SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement or any exhibit hereto is held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement and such exhibits shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such which may be hereafter declared
invalid, void or unenforceable
4.09 CAPTIONS. The table of contents and captions and section headings
appearing in this Agreement are included solely for convenience of reference and
are not intended to affect the interpretation of any provision of this
Agreement.
4.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each party and delivered to the other parties, it being understood that all
parties need not sign the same counterpart.
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4.11 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF
THE STATE OF NEW YORK EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH
STATE THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER
THAN SUCH STATE.
4.12 SUBMISSION TO JURISDICTION. If any action, proceeding or
litigation shall be brought by the Trustee in order to enforce any right or
remedy under this Agreement, each Guarantor hereby consents and will submit, and
will cause each of its Subsidiaries to submit, to the jurisdiction of any state
or federal court of competent jurisdiction sitting within the area comprising
the Southern District of New York on the date of this Agreement. Each Guarantor
hereby irrevocably waives any objection, including, but not limited to, any
objection to the laying of venue or based on the grounds of FORUM NON
CONVENIENS, which it may now or hereafter have to the bringing of any such
action, proceeding or litigation in such jurisdiction.
4.13. SERVICE OF PROCESS. Nothing herein shall affect the right of the
Trustee to serve process in any other manner permitted by law or to commence
legal proceedings or otherwise proceed against any Guarantor in any other
jurisdiction.
4.14. WAIVER OF JURY TRIAL. EACH GUARANTOR HEREBY WAIVES ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS
AGREEMENT.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
------------------------,
a ____________corporation
By:____________________
Name:
Title:
------------------------,
a ____________corporation
By:____________________
Name:
Title:
------------------------,
a ____________corporation
By:____________________
Name:
Title:
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