EXHIBIT 10.3(F)
LIMITED GUARANTY
April 1, 1999
The CIT Group/Credit
Finance, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: PHARMACEUTICAL FORMULATIONS, INC., SUCCESSOR BY MERGER TO
PRIVATE FORMULATIONS, INC. (THE "BORROWER")
Gentlemen:
Reference is made to the financing arrangements between The CIT
Group/Credit Finance, Inc. ("Lender") and Borrower, pursuant to which Lender may
extend loans, advances and other financial accommodations to Borrower as set
forth in the Loan and Security Agreement dated August 4, 1989 (the "Loan
Agreement") between Borrower and Lender and various other agreements, documents
and instruments now or at any time executed and/or delivered in connection
therewith or otherwise related thereto, including, but not limited to, this
Guaranty (all of the foregoing, 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 the undersigned ("Guarantor"), in consideration of the benefits which will
accrue to Guarantor, and as an inducement for and in consideration of Lender
providing the overadvance (the "Overadvance") to Borrower pursuant to an
amendment to the Loan Agreement dated of even date herewith Guarantor hereby,
irrevocably and unconditionally (a) guarantees and agrees to be liable for the
prompt indefeasible and full payment of the amount of the Overadvance
outstanding at any given point in time as determined by Lender in its sole
discretion (subject to the limitations specified in the last paragraph of page 4
below) owing by Borrower to Lender and/or its affiliates, and (b) agrees to pay
to Lender on demand the amount of all expenses (including, without limitation,
reasonable attorneys' fees and legal expenses) incurred by Lender in connection
with the administration, collection, liquidation, enforcement and defense of the
aforesaid liabilities and indebtedness and Lender's rights under this Guaranty,
whether such expenses are incurred before, during or after the present or any
renewal term of the Financing Agreements or after the commencement of any case
with respect to Borrower, Guarantor or any other Obligor under the United States
Bankruptcy Code or any similar statute (all of which being collectively referred
to herein as the "Guaranteed Obligations").
Notice of acceptance of this Guaranty, the making of loans, advances
and extensions of credit or other financial accommodations to, and the incurring
of any expenses by or in respect of, Borrower, and presentment, demand, protest,
notice of protest, notice of nonpayment or default and all other notices to
which Borrower or Guarantor are or may be entitled are hereby waived. Guarantor
also waives notice of, and hereby consents to, (i) any amendment, modification,
supplement, renewal, restatement or extensions of time of payment of or increase
or decrease in the amount of any of the Guaranteed Obligations or to the
Financing Agreements and any collateral, and the guarantee made herein shall
apply to 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 for or in respect of the Guaranteed Obligations
(individually and collectively, the "Obligors"), (iii) the exercise of, or
refraining from the exercise of any rights against Borrower, Guarantor or any
other Obligor or any collateral, and (iv) the settlement, compromise or release
of, or the waiver of any default with respect to, any Guaranteed Obligations.
Guarantor agrees that the amount of the Guaranteed Obligations shall not be
diminished and the liability of Guarantor hereunder shall not be otherwise
impaired or affected by any of the foregoing.
This Guaranty is a guaranty of payment and not of collection.
Guarantor agrees that Lender need not attempt to collect any Guaranteed
Obligations from Borrower or any other Obligor or to realize upon any
collateral, but may require Guarantor to make immediate payment of the
Guaranteed Obligations to Lender when due 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 reasonable attorneys'
fees and legal expenses incurred by Lender with respect thereto or otherwise
chargeable to Borrower or Guarantor) and in such order as Lender may elect,
whether or not then due. Notwithstanding the foregoing, Lender shall give
Guarantor three (3) business days written notice of Borrower's Event of Default
under, and as defined in, the Loan Agreement before Guarantor shall be liable
under this Guaranty.
No invalidity, irregularity or unenforceability of all or any part of
the Guaranteed Obligations shall affect, impair or be a defense to this
Guaranty, 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 Guarantor in respect of this Guaranty,
affect, impair or be a defense to this Guaranty. Without limitation of the
foregoing, the liability of Guarantor 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 for the
Guaranteed Obligations 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, Guarantor shall be liable
therefor, even if Borrower's liability for such amounts does not, or ceases to,
exist by operation of law.
This Guaranty is absolute, unconditional and continuing. Payment by
Guarantor shall be made to Lender at its office from time to time on demand as
Guaranteed Obligations become due. One or more successive or concurrent actions
may be brought hereon against Guarantor either in the same action in which
Borrower or any other Obligors are sued or in separate actions.
Payment of all amounts now or hereafter owed to Guarantor 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 is
hereby assigned to Lender as security therefor. Guarantor 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 of sums paid or payable to Lender by Guarantor
hereunder and Guarantor hereby further irrevocably and unconditionally waives
and relinquishes any and all other benefits which Guarantor might otherwise
directly or indirectly receive or be entitled to receive by reason of any
amounts paid by or collected or due from Guarantor, Borrower or any other
Obligor upon the Guaranteed Obligations or realized from their property.
All sums at any time owed by Lender to Guarantor or to the credit of
Guarantor and any property of Guarantor on which Lender at any time has a lien
or security interest or of which Lender at any time has possession, shall secure
payment and performance of all Guaranteed Obligations and all other obligations
of Guarantor to Lender however arising.
In case proceedings be instituted by or against Borrower or Guarantor
or any other Obligor, in bankruptcy or insolvency, or for reorganization,
arrangement, receivership, or the like, or if Borrower or Guarantor or any other
Obligor calls a meeting of creditors or makes any assignment for the benefit of
creditors, or upon the occurrence of any event which constitutes a default or
event of default under the Financing Agreements, the liability of Guarantor for
the entire Guaranteed Obligations shall mature, even if the liability of
Borrower or any other Obligor therefor does not.
Guarantor shall continue to be liable hereunder until the earlier of
(i) the date on which the Overadvance is repaid in full and (ii) when one of
Lender's officers actually receives a written termination notice by certified
mail; but the termination shall not relieve Guarantor from liability for any
Guaranteed Obligations incurred before termination or for post-termination
collection expenses and interest pertaining to any Guaranteed Obligations
arising before termination.
Guarantor agrees that this Guaranty shall remain in full force and
effect or be reinstated, as the case may be, if at any time payment of any of
the Guaranteed Obligations is rescinded or otherwise restored by Lender to
Borrower or to any other person who made such payment, or to the creditors or
creditors' representative of Borrower or such other person.
Lender's books and records showing the account between Lender and
Borrower shall be admissible in evidence in any action or proceeding as prima
facie proof of the items therein set forth, and any written statements rendered
by Lender to Borrower, to the extent to which no written objection is made
within sixty (60) days after the date thereof, shall be considered correct and
be binding on Guarantor as an account stated for purposes of this Guaranty.
No delay on Lender's part in exercising any rights hereunder or
failure to exercise the same shall constitute a waiver of such rights. No notice
to, or demand on, Guarantor shall be deemed to be a waiver of the obligation of
Guarantor to take further action without notice or demand as provided herein. No
waiver of any of Lender's rights hereunder, and no modification or amendment of
this Guaranty, shall be deemed to be made by Lender unless the same shall be in
writing, duly signed on Lender's behalf, and each such waiver, if any, shall
apply only with respect to the specific instance involved and shall in no way
impair Lender's rights or the obligations of Guarantor to Lender in any other
respect at any other time.
This Guaranty is binding upon Guarantor, its successors and assigns
and shall benefit Lender and its successors, endorses, transferees and assigns.
If the undersigned are more than one, this Guaranty shall be binding jointly and
severally upon them and their respective successors and assigns and the term
"Guarantor" wherever used herein shall mean all the undersigned and any one or
more of them and their successors and assigns. If there are more then one
Borrower, the term "Borrower" whenever used herein shall mean all or any one of
them and each of their respective successors and assigns. All references to
Lender herein shall include its successors and assigns. This instrument shall be
governed by, and construed and interpreted in accordance with, the laws of the
State in which the office of Lender set forth above is located.
Guarantor and Lender waive all rights to trial by jury in any action
or proceeding instituted by either of them against the other which pertains
directly or indirectly to this Guaranty, any alleged tortious conduct by
Guarantor or Lender, or, in any way, directly or indirectly, arising out of or
related to the relationship between Guarantor and Lender or Borrower and Lender.
In no event will Lender be liable for lost profits or other special or
consequential damages.
Guarantor waives all rights to interpose any claims, deductions,
setoffs or counterclaims of any kind, nature or description in any action or
proceeding instituted by Lender with respect to this Guaranty or any matter
arising herefrom or relating hereto, except compulsory counterclaims;
notwithstanding the foregoing, Guarantor shall have the right to bring a
separate action against Lender in a court referred to in the immediately
following paragraph.
Guarantor hereby irrevocably submits and consents to the non-exclusive
jurisdiction of the State and Federal Courts located in the State of New York
with respect to any action or proceeding arising out of this Guaranty or any
matter arising herefrom or relating hereto. Any such action or proceeding
commenced by Guarantor against Lender will be litigated only in a Federal Court
located in the Southern District of New York, or a State Court in the State and
County of New York and Guarantor waives any objection based on forum non
conveniens and any objection to venue in connection therewith.
In any such action or proceeding, Guarantor waives personal service of
the summons and complaint or other process and papers therein and agrees that
any process or notice of motion or other application to any of said Courts or a
judge thereof, or any notice in connection with any proceedings hereunder may be
served (1) inside or outside such State by registered or certified mail, return
receipt requested, addressed to Guarantor at the address set forth below or
which Guarantor has previously advised Lender in writing and as indicated in the
records of Lender and service or notice so served shall be deemed complete five
(5) days after the same shall have been posted or (ii) in such other manner as
may be permissible under the rules of said Courts.
Notwithstanding anything to the contrary contained herein, the
liability of Guarantor for the Guaranteed Obligations shall not exceed the
principal amount of $1,500,000, plus interest thereon at the then applicable
rate provided for in the Financing Agreements, plus any and all costs and
expenses of collection hereunder, including, without limitation, reasonable
attorneys' fees and legal expenses.
IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty
as of the day and year first above written.
ICC INDUSTRIES INC.
By: /S/ XXXX X. XXXX
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Title: PRESIDENT
STATE OF NEW JERSEY )
) ss.:
COUNTY OF MIDDLESEX )
On this 1st day of April, 19__ before me personally came Xxxx Xxxx,
who being by me duly sworn, did depose and say that he is the President of ICC
Industries, the corporation described in and which executed the foregoing
instrument; and that he signed his name thereto by order of the Board of
Directors of said corporation.
/S/ XXXXX STAB
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Notary Public
