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EXHIBIT 10.10
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT (this "Guaranty") dated as of April 14, 1999 is
made by each of the undersigned (each a "Guarantor" and collectively the
"Guarantors") to and in favor of Silver Creek Investments, Ltd., a British
Virgin Islands company (the "Collateral Agent"), in its capacity as Collateral
Agent under that certain Collateral Agency Agreement dated as of the date hereof
by and among the Collateral Agent, Bomoseen Investments, Ltd., a British Virgin
Islands company ("Bomoseen"), Dandelion Investments, Ltd., a British Virgin
Islands company ("Dandelion"), and Elstree Holdings, Ltd., a British Virgin
Islands company ("Elstree" and together with the Collateral Agent, Bomoseen and
Dandelion, the "Purchasers"). All capitalized term used but not otherwise
defined herein shall have the meaning ascribed to such terms in the Purchase
Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, Senetek Plc, a corporation organized under the laws of England
(the "Company"), has entered into the Securities Purchase Agreement dated as of
the date hereof between the Company and the Purchasers (as from time to time
amended, revised, modified, supplemented or amended and restated, the "Purchase
Agreement"); and
WHEREAS, each Guarantor is, directly or indirectly, a wholly owned
Subsidiary of the Company; and
WHEREAS, as a condition to the Purchasers entering into the Purchase
Agreement and purchasing the Securities thereunder, each Guarantor is required
to guarantee to the Purchasers payment of all of the Company's obligations under
the Purchase Agreement and the other Transaction Documents in accordance with
the terms of this Guaranty; and
WHEREAS, each Guarantor will materially benefit from the purchase of the
Securities to be made under the Purchase Agreement, and each Guarantor is
willing to enter into this Guaranty to provide an inducement for the Purchasers
to purchase such Securities under the Purchase Agreement; and
WHEREAS, the Purchasers are unwilling to enter into the Purchase Agreement
and the other Transaction Documents unless the Guarantors enter into this
Guaranty;
NOW, THEREFORE, to induce each Purchaser to enter into the Purchase
Agreement and the other Transaction Documents to which it is a party, and to
induce the Purchasers to purchase the Securities, and in consideration of the
premises and mutual covenants contained herein and for other valuable
consideration the receipt of which is hereby acknowledged by each party
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hereto, each Guarantor hereby agrees as follows:
1. Guaranty. Each Guarantor hereby jointly and severally, unconditionally,
absolutely, continually and irrevocably guarantees to the Collateral Agent for
the benefit of the Purchasers, the payment and performance in full of the
Company's Liabilities (as defined below). For all purposes of this Guaranty,
"Company's Liabilities" means: (a) the Company's prompt payment in full, when
due or declared due and at all such times, of all Obligations and all other
amounts pursuant to the terms of the Purchase Agreement, the Securities, and all
other Transaction Documents executed in connection with the Purchase Agreement,
now or at any time or times hereafter owing, arising, due or payable from the
Company, including without limitation principal, interest, premium or fee
(including, but not limited to, attorneys' fees and expenses); and (b) the
Company's prompt, full and faithful performance, observance and discharge of
each and every agreement, undertaking, covenant and provision to be performed,
observed or discharged by the Company under the Purchase Agreement and all other
Transaction Documents executed in connection therewith. The Guarantors'
obligations to the Collateral Agent for the benefit of the Purchasers under this
Guaranty are hereinafter collectively referred to as the "Guarantors'
Obligations"; provided, however, that the liability of each Guarantor
individually with respect to the Guarantors' Obligations shall be limited to an
aggregate amount equal to the largest amount that would not render its
obligations hereunder subject to avoidance under Section 548 of the United
States Bankruptcy Code or any comparable provisions of any applicable state law.
Each Guarantor agrees that it is jointly and severally, directly and primarily
liable for the Company's Liabilities, and that the guaranties made hereunder are
guaranties of payment.
2. Payment. If the Company shall default in payment or performance of any
of the Company's Liabilities, whether principal, interest, premium, fees
(including, but not limited to, attorneys' fees and expenses), or otherwise,
when and as the same shall become due, whether according to the terms of the
Purchase Agreement or any other Transaction Documents, by acceleration, or
otherwise, or upon the occurrence of any Event of Default under the Purchase
Agreement that has not been cured or waived, then any or all of the Guarantors
will, upon demand thereof by the Collateral Agent for the benefit of the
Purchasers, or its successors or assigns AS OF THE DATE OF SUCH DEMAND, fully
pay to the Collateral Agent for the benefit of the Purchasers, subject to any
restriction set forth in Section 1 hereof, an amount equal to all Guarantors'
Obligations then due and owing.
3. Unconditional Obligations. This is a guaranty of payment and not of
collection. The Guarantors' Obligations under this Guaranty shall be joint and
several, absolute and unconditional irrespective of the validity, legality or
enforceability of the Purchase Agreement, the Securities or any other
Transaction Document or any other guaranty of the Company's Liabilities, and
shall not be affected by any action taken under the Purchase Agreement, the
Securities or any other Transaction Document, any other guaranty of the
Company's Liabilities, or any other agreement between the Company and any other
Person, in the exercise of any right or power therein conferred, or the order in
which rights hereunder are exercised against one or any number of the
Guarantors, or by any failure or omission to enforce any right conferred
thereby, or by any waiver of any covenant or condition therein provided, or by
any acceleration
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of the maturity of any of the Company's Liabilities, or by the release or other
disposal of any security for any of the Company's Liabilities, or by the
dissolution of the Company or the combination or consolidation of the Company
into or with another entity or any transfer or disposition of any assets of the
Company or by any extension or renewal of the Purchase Agreement, any of the
Securities or any other Transaction Document, in whole or in part, or by any
modification, alteration, amendment or addition of or to the Purchase Agreement,
any of the Securities or any other Transaction Document, any other guaranty of
the Company's Liabilities, or any other agreement between the Company or any
other Person, or by any other circumstance whatsoever (with or without notice to
or knowledge of any Guarantor) which may or might in any manner or to any extent
vary the risks of such Guarantor, or might otherwise constitute a legal or
equitable discharge of a surety or a guarantor; it being the purpose and intent
of the parties hereto that this Guaranty and the Guarantors' Obligations
hereunder shall be absolute and unconditional under any and all circumstances
and shall not be discharged except by payment as herein provided.
4. Currency and Funds of Payment. Each Guarantor hereby guarantees that
the Guarantors' Obligations will be paid in lawful currency of the United States
of America and in immediately available funds, regardless of any law, regulation
or decree now or hereafter in effect that might in any manner affect the
Company's Liabilities, or the rights of the Collateral Agent for the benefit of
the Purchasers with respect thereto as against the Company, or cause or permit
to be invoked any alteration in the time, amount or manner of payment by the
Company of any or all of the Company's Liabilities.
5. Suits. Each Guarantor from time to time shall pay to the Collateral
Agent for the benefit of the Purchasers, on demand, at the Collateral Agent's
place of business set forth in the Purchase Agreement or such other address as
the Collateral Agent shall give notice of to such Guarantor, the Guarantors'
Obligations as they become or are declared due, and in the event such payment is
not made forthwith, the Collateral Agent for the benefit of the Purchasers may
bring an action against any one or more or all of the Guarantors in compliance
with Section 24 hereof. At the election the Collateral Agent for the benefit of
the Purchasers, one or more and successive or concurrent actions may be brought
hereon by the Collateral Agent for the benefit of the Purchasers against any one
or more or all of the Guarantors, whether or not an action has been commenced
against the Company, any other guarantor of the Company's Liabilities, or any
other Person and whether or not the Collateral Agent for the benefit of the
Purchasers has taken or failed to take any other action to collect all or any
portion of the Company's Liabilities or have taken or failed to take any actions
against any collateral securing payment or performance of all or any portion of
the Company's Liabilities.
6. Set-Off and Waiver. Each Guarantor irrevocably waives any right to
assert against the Purchasers as a defense, counterclaim, set-off or cross
claim, any defense (legal or equitable) or other claim which such Guarantor may
now or at any time hereafter have against the Company without waiving any
additional defenses, set-offs, counterclaims or other claims otherwise available
to such Guarantor. If at any time hereafter the Collateral Agent for the benefit
of the Purchasers employs counsel for advice or other representation to enforce
the Guarantors' Obligations that arise out of an Event of Default, or with
respect to the
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administration or amendment of this Guaranty, the Purchase Agreement or any of
the Transaction Documents, then, in any of the foregoing events, all of the
reasonable attorneys' fees arising from such services and all expenses, costs
and charges in any way or respect arising in connection therewith or relating
thereto shall be paid by such Guarantor to the Collateral Agent for the benefit
of the Purchasers, on demand.
7. Waiver; Subrogation.
(a) Each Guarantor hereby waives notice of the following events or
occurrences:
(i) the acceptance of this Guaranty by the Collateral Agent for
the benefit of the Purchasers;
(ii) the Purchasers' purchase of the Securities, whether pursuant
to the Purchase Agreement or otherwise;
(iii) the Purchasers or the Company heretofore, now or at any time
hereafter, obtaining, amending, substituting for, releasing,
waiving or modifying the Purchase Agreement, the Securities or
any other Transaction Documents;
(iv) presentment, demand, default, non-payment, partial payment and
protest;
(v) the Purchasers heretofore, now or at any time hereafter
granting to the Company (or any other party liable to the
Purchasers on account of the Company's Liabilities) or to any
certain Guarantor any indulgence or extensions of time of
payment of the Company's Liabilities or Guarantors'
Obligations, respectively; and
(vi) the Purchasers heretofore, now or at any time hereafter
accepting from the Company, any Guarantor, any other guarantor
of the Company's Liabilities or any other Person, any partial
payment or payments on account of the Company's Liabilities or
any collateral securing the payment thereof or the Purchasers
settling, subordinating, compromising, discharging or
releasing the same. Each Guarantor agrees that the Collateral
Agent for the benefit of the Purchasers may heretofore, now or
at any time hereafter do any or all of the foregoing in such
manner, upon such terms and at such times as the Collateral
Agent for the benefit of the Purchasers, in its sole and
absolute discretion, deems advisable, without in any way or
respect impairing, affecting, reducing or releasing such
Guarantor from the Guarantors' Obligations, and each Guarantor
hereby consents to each and all of the foregoing events or
occurrences.
(b) Each Guarantor hereby agrees that payment or performance by such
Guarantor of the Guarantors' Obligations under this Guaranty may be enforced by
the Collateral Agent for the benefit of the Purchasers upon demand by the
Collateral Agent for the benefit of the Purchasers
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to such Guarantor without the Collateral Agent for the benefit of the Purchasers
being required, such Guarantor expressly waiving any right it may have to
require the Collateral Agent for the benefit of the Purchasers, to (i) prosecute
collection or seek to enforce or resort to any remedies against the Company or
any other Guarantor or any other guarantor of the Company's Liabilities, or (ii)
seek to enforce or resort to any remedies with respect to any security
interests, Liens or encumbrances granted to the Collateral Agent for the benefit
of the Purchasers by the Company, any other Guarantor or any other Person on
account of the Company's Liabilities or any guaranty thereof; IT BEING EXPRESSLY
UNDERSTOOD, ACKNOWLEDGED AND AGREED TO BY SUCH GUARANTOR THAT DEMAND UNDER THIS
GUARANTY MAY BE MADE BY THE COLLATERAL AGENT FOR THE BENEFIT OF THE PURCHASERS,
AND THE PROVISIONS HEREOF ENFORCED BY THE COLLATERAL AGENT FOR THE BENEFIT OF
THE PURCHASERS, EFFECTIVE AS OF THE FIRST DATE ANY EVENT OF DEFAULT OCCURS AND
IS CONTINUING UNDER THE PURCHASE AGREEMENT. The Collateral Agent for the benefit
of the Purchasers shall not have any obligation to protect, secure or insure any
of the foregoing security interests, Liens or encumbrances on the properties or
interests in properties subject thereto. The Guarantors' Obligations shall in no
way be impaired, affected, reduced, or released by reason of the failure of the
Collateral Agent for the benefit of the Purchasers or delay to do or take any of
the acts, actions or things described in this Guaranty including, without
limiting the generality of the foregoing, those acts, actions and things
described in this Section 7.
(c) Each Guarantor further agrees with respect to this Guaranty that
such Guarantor shall have no right of subrogation, reimbursement or indemnity,
nor any right of recourse to security for the Company's Liabilities until the
satisfaction and indefeasible payment in full of all of the Obligations under
the Purchase Agreement and the other Transaction Documents.
8. Effectiveness; Enforceability. This Guaranty shall be effective as of
the date of the execution and delivery of the Purchase Agreement and shall
continue in full force and effect until the satisfaction and payment in full of
all of the Notes. This Guaranty shall be binding upon and inure to the benefit
of each party hereto and their respective successors and assigns, including
without limitation all assigns of any or all of the Purchasers' rights under the
Purchase Agreement. Notwithstanding the foregoing, no Guarantor may, without the
prior written consent of the Collateral Agent for the benefit of the Purchasers,
assign any rights, powers, duties or obligations hereunder. Any claim or claims
that the Collateral Agent for the benefit of the Purchasers may at any time
hereafter have against a Guarantor under this Guaranty shall be asserted by the
Collateral Agent for the benefit of the Purchasers by written notice directed to
such Guarantor.
9. Representations and Warranties; Covenant. Each Guarantor warrants and
represents to the Collateral Agent for the benefit of the Purchasers that it is
duly authorized to execute, deliver and perform this Guaranty, that this
Guaranty is legal, valid, binding and enforceable against such Guarantor in
accordance with its terms except as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles, that such
Guarantor's execution, delivery and performance of this Guaranty do not violate
or constitute a
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breach of its certificate of incorporation or other documents of corporate
governance or any agreement to which such Guarantor is a party, or any
applicable laws, orders, regulations, decrees or awards of any applicable
governmental authority or arbitral body, and that immediately after giving
effect to the financing transactions contemplated hereby, each Guarantor is
solvent. Each Guarantor hereby covenants that it shall remain solvent. For
purposes of this Section 9, the term "solvent" shall mean that, at the time of
said determination, (i) the fair value of such Guarantor's assets exceeds the
aggregate sum of its liabilities (including, without limitation, contingent
liabilities), (ii) such Guarantor is able to pay its debts as they mature, (iii)
the property owned by such Guarantor has a value in excess of the total
aggregate sum required to pay its debts, and (iv) such Guarantor has capital
sufficient to carry on its business.
10. Expenses. Each Guarantor agrees to be liable for the payment of all
reasonable fees, expenses, costs and charges, including attorney's fees (the
"Specified Fees and Expenses"), incurred by the Collateral Agent for the benefit
of the Purchasers in connection with or arising out of the enforcement,
administration or amendment of this Guaranty, the Purchase Agreement or any
other Transaction Document which Specified Fees and Expenses shall be paid by
such Guarantor to the Collateral Agent for the benefit of the Purchasers on
demand, provided, however, that such specified Fees and Expenses shall not
include Excluded Expenses (as such term is defined in Section 1(d) of the Pledge
Agreement). Upon the Guarantor's reasonable request, the Collateral Agent for
the benefit of the Purchasers shall provide evidence of such Specified Fees and
Expenses in form and substance reasonable satisfactory to the Guarantors,
provided, however, that the right of the Collateral Agent for the benefit of the
Purchasers to demand such amounts shall remain unrestricted and unconditional.
11. Reinstatement. Each Guarantor agrees that, subject to Section 8
hereof, this Guaranty shall continue to be effective or be reinstated, as the
case may be, at any time payment received by the Collateral Agent for the
benefit of the Purchasers under the Purchase Agreement or this Guaranty is
rescinded or disgorged, or must be restored for any reason.
12. Attorney-in-Fact. Each Guarantor hereby appoints the Collateral Agent
as such Guarantor's attorney-in-fact for the purposes of carrying out the
provisions of this Guaranty and taking any action and executing any instrument
which the Collateral Agent for the benefit of the Purchasers may deem necessary
or advisable to accomplish the purposes hereof; which appointment is coupled
with an interest and is irrevocable; provided, that the Collateral Agent shall
have and may exercise rights under this power of attorney only upon the
occurrence and during the continuance of an Event of Default.
13. Absolute Rights and Obligations. All rights of the Collateral Agent
for the benefit of the Purchasers, and all obligations of each Guarantor
hereunder, shall be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of the Purchase
Agreement, any other Transaction Document or any other agreement or
instrument relating to any of the Guarantors' Obligations or the Company's
Liabilities;
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(ii) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Guarantors' Obligations, or any other
amendment or waiver of or any consent to any departure from the Purchase
Agreement, any other Transaction Document or any other agreement or
instrument relating to any of the Guarantors' Obligations;
(iii) any exchange, release or non-perfection of any other
collateral, or any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Guarantors'
Obligations; or
(iv) any other circumstances which might otherwise constitute a
defense available to, or a discharge of, each Guarantor in respect of the
Guarantors' Obligations or of this Guaranty.
14. Reliance. Each Guarantor represents and warrants to the Collateral
Agent for the benefit of the Purchasers that: (a) such Guarantor has adequate
means to obtain from the Company, on a continuing basis, information concerning
the Company and the Company's financial condition and affairs and has full and
complete access to the Company's books and records; (b) such Guarantor is not
relying on the Collateral Agent for the benefit of the Purchasers, its or their
employees, agents or other representatives, to provide such information, now or
in the future; (c) such Guarantor is executing this Guaranty freely and
deliberately, and understands the obligations and financial risk undertaken by
providing this Guaranty; (d) such Guarantor has relied solely on the Guarantor's
own independent investigation, appraisal and analysis of the Company and the
Company's financial condition and affairs in deciding to provide this Guaranty
and is fully aware of the same; and (e) such Guarantor has not depended or
relied on the Collateral Agent for the benefit of the Purchasers, its or their
employees, agents or representatives, for any information whatsoever concerning
the Company or the Company's financial condition and affairs or other matters
material to such Guarantor's decision to execute, deliver and perform this
Guaranty or for any counseling, guidance, or special consideration or any
promise therefor with respect to such decision. Each Guarantor agrees that the
Collateral Agent on behalf of the Purchasers have no duty or responsibility
whatsoever, now or in the future, to provide to such Guarantor any information
concerning the Company or the Company's financial condition and affairs, other
than as expressly provided herein, and that, if such Guarantor receives any such
information from the Collateral Agent for the benefit of the Purchasers or its
or their employees, agents or other representatives, such Guarantor will
independently verify the information and will not rely on the Collateral Agent
for the benefit of the Purchasers its or their employees, agents or other
representatives, with respect to such information.
15. Entire Agreement. This Guaranty, together with the Purchase Agreement
and other Transaction Documents, constitutes and expresses the entire
understanding between the parties hereto with respect to the subject matter
hereof; and supersedes all prior agreements and understandings, inducements,
commitments or conditions, express or implied, oral or written, except as herein
contained. The express terms hereof control and supersede any course of
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performance or usage of the trade inconsistent with any of the terms hereof.
Neither this Guaranty nor any portion or provision hereof may be changed,
altered, modified, supplemented, discharged, canceled, terminated, or amended
orally or in any manner other than by an agreement, in writing signed by the
parties hereto.
16. Binding Agreement; Assignment. This Guaranty, and the terms, covenants
and conditions hereof, shall be binding upon and inure to the benefit of the
parties hereto, and to their respective successors and assigns, except that no
Guarantor shall be permitted to assign this Guaranty or any interest herein
without the prior written consent of the Collateral Agent on behalf of the
Purchasers. All references herein to the "Collateral Agent for the benefit of
the Purchasers" shall include any successor thereof and any other obligees from
time to time of the Guarantors' Obligations.
17. Severability. In case any Lien, security interest or other right of
the Collateral Agent for the benefit of the Purchasers or any provision hereof
shall be held to be invalid, illegal or unenforceable, such invalidity,
illegality or unenforceability shall not affect any other Lien, security
interest or other right granted hereby or provision hereof, or pursuant to the
Purchase Agreement or any other Transaction Document.
18. Counterparts. This Guaranty may be executed in any number of
counterparts and all the counterparts taken together shall be deemed to
constitute one and the same instrument.
19. Indemnification. Without limitation of any indemnification provision
in the Purchase Agreement or any Transaction Document, each Guarantor hereby
covenants and agrees to pay, indemnify, and hold the Collateral Agent for the
benefit of the Purchasers and each Purchaser harmless from and against any and
all other losses, liabilities, costs, expenses or disbursements of any kind or
nature (including without limitation reasonable attorneys fees and expenses)
whatsoever arising in connection with any claim or litigation by any Person
resulting from the execution, delivery, enforcement, performance and
administration of this Guaranty, the Purchase Agreement or the Transaction
Documents, or the transactions contemplated hereby or thereby, or in any respect
relating to the Collateral or any transaction pursuant to which such Guarantor
has incurred any Guarantors' Obligations (other than Excluded Expenses (as such
term is defined in Section 1(d) of the Pledge Agreement)) (all the foregoing,
collectively, the "indemnified liabilities"); provided, however, that such
Guarantor shall have no obligation hereunder with respect to indemnified
liabilities directly or primarily arising from the willful misconduct or gross
negligence of the Collateral Agent for the benefit of the Purchasers or any
Purchaser. The agreements in this subsection shall survive repayment of all
Secured Obligations and termination or expiration of this Guaranty.
20. Termination. This Guaranty and all Guarantors' Obligations hereunder
shall terminate only upon the payment in full of the Notes and all of
Guarantors' Obligations hereunder.
21. Remedies Cumulative. All remedies hereunder are cumulative and are not
exclusive of any other rights and remedies of the Collateral Agent or the
Purchasers provided by
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law or under the Purchase Agreement, the other Transaction Documents, or other
applicable agreements or instruments. The purchase of the Securities pursuant to
the Purchase Agreement shall be conclusively presumed to have been made or
extended in reliance upon the Guarantor's guaranty of the Guarantors'
Obligations pursuant to the terms hereof.
22. Notices. Any notice required or permitted hereunder shall be given,
(a) with respect to each Guarantor, at the address of the Company indicated in
Section 12.9 of the Purchase Agreement and (b) with respect to the Collateral
Agent for the benefit of the Purchasers, at the Collateral Agent's address
indicated in Section 12.9 of the Purchase Agreement. All such notices shall be
given in writing and shall be effective as provided in Section 12.9 of the
Purchase Agreement.
23. Governing Law; Service of Process.
(a) THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO
BE FULLY PERFORMED, IN SUCH STATE NOTWITHSTANDING ITS EXECUTION AND DELIVERY
OUTSIDE SUCH STATE.
(b) ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY TO THIS
GUARANTY WITH RESPECT TO THIS GUARANTY OR ANY OTHER TRANSACTION DOCUMENT MAY BE
BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF
NEW YORK AND, BY ITS EXECUTION AND DELIVERY OF THIS GUARANTY, EACH PARTY TO THIS
GUARANTY ACCEPTS, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY
AND UNCONDITIONALLY, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND
IRREVOCABLY AGREES TO BE BOUND BY ANY FINAL JUDGMENT RENDERED THEREBY IN
CONNECTION WITH THIS GUARANTY OR ANY OTHER TRANSACTION DOCUMENT FROM WHICH NO
APPEAL HAS BEEN TAKEN OR IS AVAILABLE. EACH PARTY TO THIS GUARANTY IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY
SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO ITS NOTICE ADDRESS SPECIFIED IN SECTION 22
HEREOF, SUCH SERVICE TO BECOME EFFECTIVE FIVE (5) DAYS AFTER SUCH MAILING. EACH
PARTY TO THIS GUARANTY HEREBY KNOWINGLY, INTENTIONALLY AND IRREVOCABLY WAIVE (A)
TRIAL BY JURY IN ANY ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY
OTHER TRANSACTION DOCUMENT, AND (B) ANY OBJECTION (INCLUDING, WITHOUT
LIMITATION, 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 OR PROCEEDING WITH RESPECT TO THIS GUARANTY OR ANY OTHER TRANSACTION
DOCUMENT IN ANY JURISDICTION SET FORTH ABOVE. NOTHING HEREIN SHALL AFFECT THE
RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
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(c) EACH PARTY TO THIS GUARANTY AGREES THAT SERVICE OF PROCESS MAY
BE MADE BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER
LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY ANY OTHER METHOD OF
SERVICE PROVIDED FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW
YORK.
[Signature Page Follows.]
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IN WITNESS WHEREOF, the parties have duly executed this Guaranty on the
day and year first written above.
GUARANTORS:
SENETEK DRUG DELIVERY TECHNOLOGIES, INC.
CARME' COSMECEUTICAL SCIENCES, INC.
By:
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Name:
Title:
SECURED PARTY:
SILVER CREEK INVESTMENTS, LTD.,
as Collateral Agent for the Purchasers
By:
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Name:
Title:
[Signature page to Guaranty]
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