GUARANTY OF OBLIGATIONS OF MEDITE CANCER DIAGNOSTICS, INC.
Exhibit 10.10
GUARANTY OF OBLIGATIONS OF MEDITE CANCER DIAGNOSTICS,
INC.
This GUARANTY, dated as of September 26, 2017
(this “Guaranty”), is made by each of the undersigned (each
a “Guarantor”, and collectively, the
“Guarantors”), in favor of GPB Debt Holdings II, LLC, a Delaware limited
liability company, in its capacity as collateral agent (in such
capacity, the “Collateral
Agent” as hereinafter
further defined) for the “Purchaser” party to the Purchase Agreement (each as
defined below).
W I T N E S S E T H:
WHEREAS, Medite Cancer Diagnostics, Inc., a
Delaware corporation with its executive offices located at 0000 XX
00xx
Xxxxxx, Xxxxxxx, Xxxxxxx 00000 (the
“Company”), and GPB Debt Holdings II, LLC, in its
capacity as an investor (the “Purchaser”), are parties to the Securities Purchase
Agreement, dated as of September 25, 2017 (as amended, restated,
extended, replaced or otherwise modified from time to time and
together with all amendments, supplements and exhibits thereto,
collectively, the “Securities Purchase
Agreement”), pursuant to
which, among other actions set forth therein, the Company shall
sell a senior secured note in an aggregate principal amount of
$5,356,400 (as such may be amended, restated, extended, replaced or
otherwise modified from time to time in accordance with the terms
thereof, the “Note”) to the Purchaser and the Purchaser shall
have the right to purchase the Note;
WHEREAS, the Securities Purchase Agreement
requires that the Guarantors execute and deliver to the Collateral
Agent simultaneously with the execution of the Securities Purchase
Agreement (i) a guaranty guaranteeing all of the obligations of the
Company under the Securities Purchase Agreement, and the other
Transaction Documents (as defined below) and (ii) a Security and
Pledge Agreement, dated as of the date hereof, granting the
Collateral Agent for the benefit of the Noteholders a lien on and
security interest in all of their assets and properties (as such
may be amended, restated, supplemented or otherwise modified from
time to time in accordance with the terms thereof, the
“Security
Agreement”);
and
WHEREAS,
each Guarantor has determined that the execution, delivery and
performance of this Guaranty directly or indirectly benefits, and
is in the best interest of, such Guarantor.
NOW,
THEREFORE, in consideration of the premises and the agreements
herein and in order to induce the Purchaser to perform under the
Securities Purchase Agreement, each Guarantor hereby agrees with
the Purchaser as follows:
SECTION 1. Definitions.
All terms used in this Guaranty and the recitals hereto which are
defined in the Securities Purchase Agreement or the Note, and which
are not otherwise defined herein shall have the same meanings
herein as set forth therein. In addition, the following terms when
used in the Guaranty shall have the meanings set forth
below:
“Bankruptcy
Code” means Chapter 11 of
Title 11 of the United States Code, 11 U.S.C §§ 101 et
seq. (or other applicable bankruptcy, insolvency or similar
laws).
“Capital
Stock” means (i) with
respect to any Person that is a corporation, any and all shares,
interests, participations or other equivalents (however designated
and whether or not voting) of corporate stock (including, without
limitation, any warrants, options, rights or other securities
exercisable or convertible into equity interests or securities of
such Person), and (ii) with respect to any Person that is not a
corporation, any and all partnership, membership or other equity
interests of such Person.
“Collateral”
means all assets and properties of the
Parent and each other Guarantor, wherever located and whether now
or hereafter existing and whether now owned or hereafter acquired,
of every kind and description, tangible or intangible, including,
without limitation, the collateral described in Section 3 of the
Security Agreement.
“Collateral
Agent” shall have the
meaning set forth in the recitals hereto.
“Governmental
Authority” means any
nation or government, any federal, state, city, town, municipality,
county, local, foreign or other political subdivision thereof or
thereto and any department, commission, board, bureau,
instrumentality, agency or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers
or functions of or pertaining to government.
“Guaranteed
Obligations” shall have
the meaning set forth in Section 2
of this Guaranty.
“Guarantor” or “Guarantors” shall have the meaning set forth in the
first paragraph of this Guaranty.
“Indemnified
Party” shall have the
meaning set forth in Section 13(a)
of this Guaranty
“Insolvency
Proceeding” means any
proceeding commenced by or against any Person under any provision
of the Bankruptcy Code or under any other bankruptcy or insolvency
law, assignments for the benefit of creditors, formal or informal
moratoria, compositions, or extensions generally with creditors, or
proceedings seeking reorganization, arrangement, or other similar
relief.
“Note” shall have the meaning set forth in the
recitals hereto.
“Noteholders” means the Purchaser and any other holder
of all or any portion of the Note.
“Obligations” shall have the meaning set forth in
Section 3 of the Security Agreement.
“Other Taxes” shall have the meaning set forth in
Section
12(a)(iv) of this
Guaranty.
“Paid in Full” or
“Payment in Full”
means the indefeasible payment in full in cash (and/or through the
issuance of Company Common Stock but solely to the extent, in
accordance with and pursuant to the terms of the Note) of all of
the Guaranteed Obligations (other than contingent obligations not
yet due and owing).
“Person” means an individual, corporation, limited
liability company, partnership, association, joint-stock company,
trust, unincorporated organization, joint venture or other
enterprise or entity or Governmental Authority.
“Purchaser” shall have the meaning set forth in the
recitals hereto.
“Securities Purchase
Agreement” shall have the
meaning set forth in the recitals hereto.
“Security
Agreement” shall have the
meaning set forth in the recitals hereto.
“Subsidiary”
means any Person in which a Guarantor
directly or indirectly (i) owns a majority of the outstanding
Capital Stock, voting stock or holds any equity or similar interest
of such Person, or (ii) controls or operates a substantial portion
of the business, operations or administration of such Person
including and all of the foregoing, collectively,
“Subsidiaries”.
“Taxes” shall have the meaning set forth in
Section
12(a) of this
Guaranty.
“Transaction
Party” means the Company
and each other Guarantor, collectively, “Transaction
Parties”.
SECTION 2. Guaranty.
(a) The
Guarantors, jointly and severally, hereby unconditionally and
irrevocably, guaranty to the Collateral Agent, for the benefit of
the Purchaser and any other Noteholder, the punctual payment, as
and when due and payable, by stated maturity, acceleration or
otherwise, of all Obligations, including, without limitation, all
interest, make-whole, redemption and other amounts that accrue
after the commencement of any Insolvency Proceeding of the Company
or any Guarantor, whether or not the payment of such principal,
interest, make-whole, redemption and/or other amounts are
enforceable or are allowable in such Insolvency Proceeding, and all
fees, late fees (as defined in the Note), interest, premiums,
penalties, causes of actions, costs, commissions, expense
reimbursements, indemnifications and all other amounts due or to
become due under the Note and the other Transaction Documents and
(all of the foregoing collectively being the
“Guaranteed
Obligations”), and agree
to pay any and all costs and expenses (including reasonable and
documented counsel fees and expenses) incurred by the Collateral
Agent in enforcing any rights under this Guaranty or any other
Transaction Document. Without limiting the generality of the
foregoing, each Guarantor’s liability hereunder shall extend
to all amounts that constitute part of the Guaranteed Obligations
and would be owed by the Company to the Collateral Agent or the
Purchaser under the Securities Purchase Agreement, the Note and any
other Transaction Document but for the fact that they are
unenforceable or not allowable due to the existence of an
Insolvency Proceeding involving any Transaction
Party.
(b) Each
Guarantor, and by its acceptance of this Guaranty, the Collateral
Agent and the Purchaser, hereby confirms that it is the intention
of all such Persons that this Guaranty and the Guaranteed
Obligations of each Guarantor hereunder not constitute a fraudulent
transfer or conveyance for purposes of the Bankruptcy Code, the
Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer
Act or any similar foreign, federal, provincial, state, or other
applicable law to the extent applicable to this Guaranty and the
Guaranteed Obligations of each Guarantor hereunder. To effectuate
the foregoing intention, the Collateral Agent, the Purchaser and
the Guarantors hereby irrevocably agree that the Guaranteed
Obligations of each Guarantor under this Guaranty at any time shall
be limited to the maximum amount as will result in the Guaranteed
Obligations of such Guarantor under this Guaranty not constituting
a fraudulent transfer or conveyance.
SECTION 3. Guaranty Absolute;
Continuing Guaranty; Assignments.
(a) The
Guarantors, jointly and severally, guaranty that the Guaranteed
Obligations will be paid strictly in accordance with the terms of
the Note and the other Transaction Documents, regardless of any
law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the
Collateral Agent, the Purchaser and/or any other Noteholder with
respect thereto. The obligations of each Guarantor under this
Guaranty are independent of the Guaranteed Obligations, and a
separate action or actions may be brought and prosecuted against
any Guarantor to enforce such obligations, irrespective of whether
any action is brought against any Transaction Party or whether any
Transaction Party is joined in any such action or actions. The
liability of any Guarantor under this Guaranty shall be as a
primary obligor (and not merely as a surety) and shall be
irrevocable, absolute and unconditional irrespective of, and each
Guarantor hereby irrevocably waives, to the maximum extent
permitted by law, any defenses it may now or hereafter have in any
way relating to, any or all of the following:
(i) any
lack of validity or enforceability of the Note and/or any other
Transaction Document;
(ii) any
change in the time, manner or place of payment of, or in any other
term of, all or any of the Guaranteed Obligations, or any other
amendment or waiver of or any consent to departure from any
Transaction Document, including, without limitation, any increase
in the Guaranteed Obligations resulting from the extension of
additional credit to any Transaction Party or extension of the
maturity of any Guaranteed Obligations or otherwise;
(iii) any
taking, exchange, release or non-perfection of any
Collateral;
(iv) any
taking, release or amendment or waiver of or consent to departure
from any other guaranty, for all or any of the Guaranteed
Obligations;
(v) any
change, restructuring or termination of the corporate, limited
liability company or partnership structure or existence of any
Transaction Party;
(vi) any
manner of application of Collateral or any other collateral, or
proceeds thereof, to all or any of the Guaranteed Obligations, or
any manner of sale or other disposition of any Collateral or any
other collateral for all or any of the Guaranteed Obligations or
any other Obligations of any Transaction Party under the
Transaction Documents or any other assets of any Transaction Party
or any of its Subsidiaries;
(vii) any
failure of the Collateral Agent, the Purchaser and/or any other
Noteholder to disclose to any Transaction Party any information
relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other
Transaction Party now or hereafter known to the Collateral Agent,
the Purchaser and/or any other Noteholder (each Guarantor waiving
any duty on the part of the Collateral Agent, the Purchaser and/or
any other Noteholder to disclose such information);
(viii) taking
any action in furtherance of the release of any Guarantor or any
other Person that is liable for the Obligations from all or any
part of any liability arising under or in connection with any
Transaction Document without the prior written consent of the
Collateral Agent; or
(ix) any
other circumstance (including, without limitation, any statute of
limitations) or any existence of or reliance on any representation
by the Collateral Agent, the Purchaser and/or any other Noteholder
that might otherwise constitute a defense (other than defense of
payment) available to, or a discharge of, any Transaction Party or
any other guarantor or surety.
(b) This
Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any of the Guaranteed
Obligations is rescinded or must otherwise be returned by the
Collateral Agent, the Purchaser, any other Noteholder and/or any
other Person upon the insolvency, bankruptcy or reorganization of
any Transaction Party or otherwise, all as though such payment had
not been made.
(c) This
Guaranty is a continuing guaranty and shall (i) remain in full
force and effect until Payment in Full of the Guaranteed
Obligations (other than inchoate indemnity obligations) and shall
not terminate for any reason prior to the Maturity Date of the Note
(other than Payment in Full of the Guaranteed Obligations), and
(ii) be binding upon each Guarantor and its respective successors
and assigns. This Guaranty shall inure to the benefit of and be
enforceable by the Collateral Agent, the Purchaser and/or any other
Noteholder and their respective successors, and permitted pledgees,
transferees and assigns. Without limiting the generality of the
foregoing sentence, the Collateral Agent, the Purchaser and/or any
other Noteholder may pledge, assign or otherwise transfer all or
any portion of its rights, remedies and obligations under and
subject to the terms of any Transaction Document to any other
Person and such other Person shall thereupon become vested with all
the benefits in respect thereof granted to the Collateral Agent,
the Purchaser and/or any other Noteholder (as applicable) herein or
otherwise, in each case as provided in the Securities Purchase
Agreement or such other Transaction Document. None of the rights or
obligations of any Guarantor hereunder may be assigned or otherwise
transferred without the prior written consent of the
Purchaser.
SECTION 4. Waivers.
To the extent permitted by applicable law, each Guarantor hereby
waives promptness, diligence, protest, notice of acceptance and any
other notice or formality of any kind with respect to any of the
Guaranteed Obligations and this Guaranty and any requirement that
the Collateral Agent exhaust any right or take any action against
any Transaction Party or any other Person or any Collateral. Each
Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated herein and
that the waiver set forth in this Section 4
is knowingly made in contemplation of
such benefits. The Guarantors hereby waive to the extent permitted
by applicable law any right to revoke this Guaranty, and
acknowledge that this Guaranty is continuing in nature and applies
to all Guaranteed Obligations, whether existing now or in the
future. Without limiting the foregoing, to the extent permitted by
applicable law, each Guarantor hereby unconditionally and
irrevocably waives to the extent permitted by applicable law (a)
any defense arising by reason of any claim or defense based upon an
election of remedies by the Collateral Agent or the Purchaser that
in any manner impairs, reduces, releases or otherwise adversely
affects the subrogation, reimbursement, exoneration, contribution
or indemnification rights of such Guarantor or other rights of such
Guarantor to proceed against any of the other Transaction Parties,
any other guarantor or any other Person or any Collateral, and (b)
any defense based on any right of set-off or counterclaim against
or in respect of the Guaranteed Obligations of such Guarantor
hereunder. Each Guarantor hereby unconditionally and irrevocably
waives to the extent permitted by applicable law any duty on the
part of the Collateral Agent, the Purchaser and/or any other
Noteholder to disclose to such Guarantor any matter, fact or thing
relating to the business, condition (financial or otherwise),
operations, performance, properties or prospects of any other
Transaction Party or any of its Subsidiaries now or hereafter known
by the Collateral Agent, the Purchaser and/or any other
Noteholder.
SECTION 5. Subrogation.
No Guarantor may exercise any rights that it may now or hereafter
acquire against any Transaction Party or any other Guarantor and/or
guarantor that arise from the existence, payment, performance or
enforcement of any Guarantor’s obligations under this
Guaranty, including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution or indemnification and any
right to participate in any claim or remedy of the Collateral
Agent, the Purchaser and/or any other Noteholder against any
Transaction Party or any other guarantor or any Collateral, whether
or not such claim, remedy or right arises in equity or under
contract, statute or common law, including, without limitation, the
right to take or receive from any Transaction Party or any other
guarantor, directly or indirectly, in cash or other property or by
set-off or in any other manner, payment or security solely on
account of such claim, remedy or right, unless and until there has
been Payment in Full of the Guaranteed Obligations. If any amount
shall be paid to a Guarantor in violation of the immediately
preceding sentence at any time prior to Payment in Full of the
Guaranteed Obligations and all other amounts payable under this
Guaranty, such amount shall be held in trust for the benefit of the
Collateral Agent and shall forthwith be paid to the Collateral
Agent to be credited and applied to the Guaranteed Obligations and
all other amounts payable under this Guaranty, whether matured or
un-matured, in accordance with the terms of the Transaction
Document, or to be held as Collateral for any Guaranteed
Obligations or other amounts payable under this Guaranty thereafter
arising. If (a) any Guarantor shall make payment to the Collateral
Agent of all or any part of the Guaranteed Obligations, and (b)
there has been Payment in Full of the Guaranteed Obligations, the
Collateral Agent will, at such Guarantor’s request and
expense, execute and deliver to such Guarantor appropriate
documents to evidence payment in Full of the Guaranteed Obligations
without recourse and without representation or warranty, necessary
to evidence the transfer by subrogation to such Guarantor of an
interest in the Guaranteed Obligations resulting from such payment
by such Guarantor.
SECTION 6. Representations,
Warranties and Covenants.
(a) Each
Guarantor hereby represents and warrants as of the date first
written above as follows:
(i) such
Guarantor (A) is a corporation, limited liability company or
limited partnership duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization as
set forth on the signature pages hereto, (B) has all requisite
corporate, limited liability company or limited partnership power
and authority to conduct its business as now conducted and as
presently contemplated and to execute, deliver and perform its
obligations under this Guaranty and each other Transaction Document
to which such Guarantor is a party, and to consummate the
transactions contemplated hereby and thereby and (C) is duly
qualified to do business and is in good standing, in each case if
such concept is applicable, in each jurisdiction in which the
character of the properties owned or leased by it or in which the
transaction of its business makes such qualification necessary
except where the failure to be so qualified (individually or in the
aggregate) would not result in a Material Adverse
Effect.
(ii) The
execution, delivery and performance by such Guarantor of this
Guaranty and each other Transaction Document to which such
Guarantor is a party (A) have been duly authorized by all necessary
corporate, limited liability company or limited partnership action,
(B) do not and will not contravene its charter, articles,
certificate of formation or by-laws, its limited liability company
or operating agreement or its certificate of partnership or
partnership agreement, as applicable, or any applicable law or any
contractual restriction binding on such Guarantor or its properties
do not and will not result in or require the creation of any lien,
security interest or encumbrance (other than pursuant to any
Transaction Document) upon or with respect to any of its
properties, and (C) do not and will not result in any default,
noncompliance, suspension, revocation, impairment, forfeiture or
nonrenewal of any material permit, license, authorization or
approval applicable to it or its operations or any of its
properties.
(iii) No
authorization or approval or other action by, and no notice to or
filing with, any Governmental Authority or other Person is required
in connection with the due execution, delivery and performance by
such Guarantor of this Guaranty or any of the other Transaction
Documents to which such Guarantor is a party (other than expressly
provided for in any of the Transaction Documents).
(iv) This
Guaranty has been duly executed and delivered by each Guarantor and
is, and each of the other Transaction Documents to which such
Guarantor is or will be a party, when executed and delivered, will
be, a legal, valid and binding obligation of such Guarantor,
enforceable against such Guarantor in accordance with its terms,
except as may be limited by the Bankruptcy Code or other applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, suretyship or similar laws and equitable principles
(regardless of whether enforcement is sought in equity or at
law).
(v) There
is no pending or, to the knowledge of such Guarantor, threatened
action, suit or proceeding against such Guarantor or to which any
of the properties of such Guarantor is subject, before any court or
other Governmental Authority or any arbitrator that (A) if
adversely determined, could reasonably be expected to have a
Material Adverse Effect or (B) relates to this Guaranty or any of
the other Transaction Documents to which such Guarantor is a party
or any transaction contemplated hereby or thereby.
(vi) Such
Guarantor (A) has read and understands the terms and conditions of
the Securities Purchase Agreement and the other Transaction
Documents, and (B) now has and will continue to have independent
means of obtaining information concerning the affairs, financial
condition and business of the Parent and the other Transaction
Parties, and has no need of, or right to obtain from the Collateral
Agent or the Purchaser, any credit or other information concerning
the affairs, financial condition or business of the Company or the
other Transaction Parties.
(vii) There
are no conditions precedent to the effectiveness of this Guaranty
that have not been satisfied or waived.
(b) Each
Guarantor covenants and agrees that until Payment in Full of the
Guaranteed Obligations, it will comply with each of the covenants
which are set forth in Section 4 of the Securities Purchase
Agreement as if such Guarantor were a party thereto.
SECTION 7. Right of
Set-off. Upon the occurrence
and during the continuance of any Event of Default, the Collateral
Agent, the Purchaser and/or any other Noteholder may, and is hereby
authorized to, at any time and from time to time, without notice to
the Guarantors (any such notice being expressly waived by each
Guarantor) and to the fullest extent permitted by law, set-off and
apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at
any time owing by the Collateral Agent, the Purchaser and/or any
other Noteholder to or for the credit or the account of any
Guarantor against any and all obligations of the Guarantors now or
hereafter existing under this Guaranty or any other Transaction
Document, irrespective of whether or not the Collateral Agent, the
Purchaser and/or any other Noteholder shall have made any demand
under this Guaranty or any other Transaction Document and although
such obligations may be contingent or unmatured. The Collateral
Agent, the Purchaser and/or any other Noteholder agrees to notify
the relevant Guarantor promptly after any such set-off and
application made by the Collateral Agent or the Purchaser, provided
that the failure to give such notice shall not affect the validity
of such set-off and application. The rights of the Collateral
Agent, the Purchaser and/or any other Noteholder under this
Section
7 are in addition to other
rights and remedies (including, without limitation, other rights of
set-off) which the Collateral Agent, the Purchaser and/or any other
Noteholder may have under this Guaranty or any other Transaction
Document in law or otherwise.
SECTION 8. Limitation on
Guaranteed Obligations.
(a) Notwithstanding
any provision herein contained to the contrary, each
Guarantor’s liability hereunder shall be limited to an amount
not to exceed as of any date of determination the greater
of:
(i) the
amount of all Guaranteed Obligations; and
(ii) the
amount which could be claimed by the Collateral Agent from any
Guarantor under this Guaranty without rendering such claim voidable
or avoidable under the Bankruptcy Code or under any applicable
state Uniform Fraudulent Transfer Act, Uniform Fraudulent
Conveyance Act or similar statute or common law after taking into
account, among other things, Guarantor’s right of
contribution and indemnification.
(b) Each
Guarantor agrees that the Guaranteed Obligations may at any time
and from time to time exceed the amount of the liability of such
Guarantor hereunder without impairing the guaranty hereunder or
affecting the rights and remedies of the Collateral Agent, the
Purchaser and/or any other Noteholder hereunder or under applicable
law.
(c) No
payment made by the Company to any Guarantor, any other guarantor
or any other Person or received or collected by the Collateral
Agent, the Purchaser and/or any other Noteholder from the Company,
any of the Guarantors, any other guarantor 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 any Guarantor
hereunder which shall, notwithstanding any such payment (other than
any payment made by such Guarantor in respect of the Guaranteed
Obligations or any payment received or collected from such
Guarantor in respect of the Guaranteed Obligations), remain liable
for the Guaranteed Obligations up to the maximum liability of such
Guarantor hereunder until after all of the Guaranteed Obligations
and all other amounts payable under this Guaranty shall have been
Paid in Full.
SECTION 9. Notices,
Etc. Any notices, consents,
waivers or other communications required or permitted to be given
under the terms of this Guaranty must be in writing and will be
deemed to have been given and effective on the earliest of:
(a) the date of transmission, if such notice or communication is
delivered via facsimile or email attachment at the facsimile number
or email address as set forth on the signature pages attached
hereto at or prior to 5:30 p.m. (New York City time) on a Business
Day, (b) the next Business Day after the date of transmission, if
such notice or communication is delivered via facsimile or email
attachment at the facsimile number or email address as set forth on
the signature pages attached hereto on a day that is not a Business
Day or later than 5:30 p.m. (New York City time) on any Business
Day, (c) the second (2nd) Business Day
following the date of mailing, if sent by U.S. nationally
recognized overnight courier service or (d) upon actual receipt by
the party to whom such notice is required to be given. The address
for such notices and communications shall be as set forth on the
signature pages attached hereto.
SECTION 10. Governing Law;
Jurisdiction. All questions
concerning the construction, validity, enforcement and
interpretation of this Guaranty shall be governed by the internal
laws of the State of New York, without giving effect to any choice
of law or conflict of law provision or rule (whether of the State
of New York or any other jurisdictions) that would cause the
application of the laws of any jurisdictions other than the State
of New York. Each Guarantor hereby irrevocably submits to the
exclusive jurisdiction of the state and federal courts sitting in
The City of New York, Borough of Manhattan, for the adjudication of
any dispute hereunder or in connection herewith or under any of the
other Transaction Documents or with any transaction contemplated
hereby or thereby, and hereby irrevocably waives, and agrees not to
assert in any suit, action or proceeding, any claim, obligation or
defense that it is not personally subject to the jurisdiction of
any such court, that such suit, action or proceeding is brought in
an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives
personal service of process and consents to process being served in
any such suit, action or proceeding by mailing a copy thereof to
such party at the address for such notices to it under Section 9(f)
of the Securities Purchase Agreement and agrees that such service
shall constitute good and sufficient service of process and notice
thereof. Nothing contained herein shall be deemed to limit in any
way any right to serve process in any manner permitted by law.
Nothing contained herein shall be deemed or operate to preclude the
Collateral Agent or the Purchaser from bringing suit or taking
other legal action against any Guarantor in any other jurisdiction
to collect on a Guarantor’s obligations or to enforce a
judgment or other court ruling in favor of the Collateral Agent or
the Purchaser.
SECTION 11. WAIVER OF JURY TRIAL,
ETC. EACH GUARANTOR HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO
REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER
OR UNDER ANY OTHER TRANSACTION DOCUMENT OR IN CONNECTION WITH OR
ARISING OUT OF THIS GUARANTY, ANY OTHER TRANSACTION DOCUMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY OR THEREBY.
SECTION 12. Taxes.1
(a) All
payments made by any Guarantor hereunder or under any other
Transaction Document shall be made in accordance with the terms of
the respective Transaction Document and shall be made without
set-off, counterclaim, withholding, deduction or other defense.
Without limiting the foregoing, all such payments shall be made
free and clear of and without deduction or withholding for any
present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto,
excluding
taxes imposed on the net income of the
Collateral Agent, the Purchaser and/or any other Noteholder by the
jurisdiction in which the Collateral Agent, the Purchaser and/or
any other Noteholder is organized or where it has its principal
lending office (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities, collectively or
individually, “Taxes”). If any Guarantor shall be required to
deduct or to withhold any Taxes from or in respect of any amount
payable hereunder or under any other Transaction
Document:
(i) the
amount so payable shall be increased to the extent necessary so
that after making all required deductions and withholdings
(including Taxes on amounts payable to the Collateral Agent or the
Purchaser pursuant to this sentence) the Collateral Agent or the
Purchaser receives an amount equal to the sum it would have
received had no such deduction or withholding been
made,
(ii) such
Guarantor shall make such deduction or withholding,
(iii) such
Guarantor shall pay the full amount deducted or withheld to the
relevant Governmental Authority in accordance with applicable law,
and
(iv) as
promptly as possible thereafter, such Guarantor shall send the
Collateral Agent or the Purchaser an official receipt (or, if an
official receipt is not available, such other documentation as
shall be satisfactory to the Collateral Agent, as the case may be)
showing payment. In addition, each Guarantor agrees to pay any
present or future stamp or documentary taxes or any other excise or
property taxes, charges or similar levies that arise from any
payment made hereunder or from the execution, delivery,
registration or enforcement of, or otherwise with respect to, this
Guaranty or any other Transaction Document (collectively,
“Other
Taxes”).
(b) Each
Guarantor hereby indemnifies and agrees to hold each Indemnified
Party harmless from and against Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any
jurisdiction on amounts payable under this Section
12) paid by any Indemnified
Party as a result of any payment made hereunder or from the
execution, delivery, registration or enforcement of, or otherwise
with respect to, this Guaranty or any other Transaction Document,
and any liability (including penalties, interest and expenses for
nonpayment, late payment or otherwise) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted so long as each Guarantor was
provided with the right set forth above. This indemnification shall
be paid within thirty (30) days from the date on which the
Collateral Agent or the Purchaser makes written demand therefor,
which demand shall identify the nature and amount of such Taxes or
Other Taxes.
(c) If
any Guarantor fails to perform any of its obligations under
this Section
12, such Guarantor shall
indemnify the Collateral Agent and the Purchaser for any taxes,
interest or penalties that may become payable as a result of any
such failure. The obligations of the Guarantors under this
Section
12 shall survive the
termination of this Guaranty and the payment of the Obligations and
all other amounts payable hereunder.
SECTION 13. Indemnification.
(a) Without
limitation of any other obligations of any Guarantor or remedies of
the Collateral Agent or the Purchaser under this Guaranty or
applicable law, except to the extent resulting solely from such
Indemnified Party’s gross negligence, bad faith or willful
misconduct, as determined by a final judgment of a court of
competent jurisdiction no longer subject to appeal, each Guarantor
shall, to the fullest extent permitted by law, indemnify, reimburse
and hold harmless the Collateral Agent and the Purchaser and each
of their affiliates and their respective officers, directors,
members, managers, employees, agents and advisors (each, an
“Indemnified
Party”) from and against,
and shall pay on demand, any and all claims, damages, losses,
liabilities and expenses (including, without limitation, reasonable
fees and expenses of counsel) that may be incurred by or asserted
or awarded against any Indemnified Party in connection with or as a
result of any failure of any Guaranteed Obligations to be the
legal, valid and binding obligations of any Transaction Party
enforceable against such Transaction Party in accordance with their
terms.
(b) Each
Guarantor hereby also agrees that none of the Indemnified Parties
shall have any liability (whether direct or indirect, in contract,
tort or otherwise) or any fiduciary duty or obligation to any of
the Guarantors or any of their respective affiliates or any of
their respective officers, directors, employees, agents and
advisors, and each Guarantor hereby agrees not to assert any claim
against any Indemnified Party on any theory of liability, for
special, indirect, consequential, incidental or punitive damages
arising out of or otherwise relating to the facilities, the actual
or proposed use of the proceeds of the advances, the Transaction
Documents or any of the transactions contemplated by the
Transaction Documents.
SECTION 14. Miscellaneous.
(a) Each
Guarantor will make each payment hereunder in lawful money of the
United States of America and in immediately available funds to the
Collateral Agent or the Purchaser, at such address specified by the
Collateral Agent or the Purchaser from time to time by notice to
the Guarantors.
(b) No
amendment or waiver of any provision of this Guaranty and no
consent to any departure by any Guarantor therefrom shall in any
event be effective unless the same shall be in writing and signed
by each Guarantor, the Collateral Agent and the Purchaser, and then
such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
(c) No
failure on the part of the Collateral Agent or the Purchaser to
exercise, and no delay in exercising, any right or remedy hereunder
or under any other Transaction Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any right
hereunder or under any Transaction Document preclude any other or
further exercise thereof or the exercise of any other right or
remedy. The rights and remedies of the Collateral Agent and the
Purchaser provided herein and in the other Transaction Documents
are cumulative and are in addition to, and not exclusive of, any
rights or remedies provided by law. The rights and remedies of the
Collateral Agent and the Purchaser under any Transaction Document
against any party thereto are not conditional or contingent on any
attempt by the Collateral Agent or the Purchaser to exercise any of
their respective rights or remedies under any other Transaction
Document against such party or against any other
Person.
(d) If
any provision of this Guaranty or any Transaction Document is
prohibited by law or otherwise determined to be invalid or
unenforceable by a court of competent jurisdiction, the provision
that would otherwise be prohibited, invalid or unenforceable shall
be deemed amended to apply to the broadest extent that it would be
valid and enforceable, and the invalidity or unenforceability of
such provision shall not affect the validity of the remaining
provisions of this Guaranty so long as this Guaranty as so modified
continues to express, without material change, the original
intentions of the parties as to the subject matter hereof and the
prohibited nature, invalidity or unenforceability of the
provision(s) in question does not substantially impair the
respective expectations or reciprocal obligations of the parties or
the practical realization of the benefits that would otherwise be
conferred upon the parties. The parties will endeavor in good
faith negotiations to replace the prohibited, invalid or
unenforceable provision(s) with a valid provision(s), the effect of
which comes as close as possible to that of the prohibited, invalid
or unenforceable provision(s).
(e) This
Guaranty and the other Transaction Documents reflect the entire
understanding of the transaction contemplated hereby and shall not
be contradicted or qualified by any other agreement, oral or
written, entered into before the date hereof.
(f) The
headings of this Guaranty are for convenience of reference and
shall not form part of, or affect the interpretation of, this
Guaranty. Unless the context clearly indicates otherwise,
each pronoun herein shall be deemed to include the masculine,
feminine, neuter, singular and plural forms thereof. The
terms “including,” “includes,”
“include” and words of like import shall be construed
broadly as if followed by the words “without
limitation.” The terms “herein,”
“hereunder,” “hereof” and words of like
import refer to this entire Agreement instead of just the provision
in which they are found.
SECTION 15. Currency
Indemnity.
If, for the purpose of obtaining or enforcing
judgment against Guarantor in any court in any jurisdiction, it
becomes necessary to convert into any other currency (such other
currency being hereinafter in this Section 15
referred to as the
“Judgment
Currency”) an amount due
under this Guaranty in any currency (the “Obligation
Currency”) other than the
Judgment Currency, the conversion shall be made at the rate of
exchange prevailing on the Business Day immediately preceding (a)
the date of actual payment of the amount due, in the case of any
proceeding in the courts of courts of the jurisdiction that will
give effect to such conversion being made on such date, or (b) the
date on which the judgment is given, in the case of any proceeding
in the courts of any other jurisdiction (the applicable date as of
which such conversion is made pursuant to this Section 15
being hereinafter in this
Section
15 referred to as the
“Judgment Conversion
Date”).
If, in the case of any proceeding in the court of
any jurisdiction referred to in the preceding paragraph, there is a
change in the rate of exchange prevailing between the Judgment
Conversion Date and the date of actual receipt of the amount due in
immediately available funds, the Guarantors shall pay such
additional amount (if any, but in any event not a lesser amount) as
may be necessary to ensure that the amount actually received in the
Judgment Currency, when converted at the rate of exchange
prevailing on the date of payment, will produce the amount of the
Obligation Currency which could have been purchased with the amount
of’ the Judgment Currency stipulated in the judgment or
judicial order at the rate of exchange prevailing on the Judgment
Conversion Date. Any amount due from the Guarantors under
this Section 15
shall be due as a separate debt and
shall not be affected by judgment being obtained for any other
amounts due under or in respect of this
Guaranty.
IN
WITNESS WHEREOF, each Guarantor has caused this Guaranty to be
executed by its respective duly authorized officer, as of the date
first above written.
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GUARANTORS:
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MEDITECH ENTERPRISES INC.,
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a
Delaware corporation
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By:
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/s/ Xxxxx X.
Xxxxxxxxx
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Name:
Xxxxx X. Xxxxxxxxx
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Title:
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Address:
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MEDITE GMBH a German corporation
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By:
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/s/
Xxxxx X. Xxxxxxxxx
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Name:
Xxxxx
X. Xxxxxxxxx
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Title:
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Address:
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MEDITE GMBH,
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an
Austrian corporation
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By:
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/s/ Xxxxxxx
Xxx Xxxx
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Name:
Xxxxxxx Xxx
Xxxx
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Title:
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Address:
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MEDITE LAB SOLUTIONS, INC.,
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a
Florida corporation
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By:
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/s/ Xxxxxxx Xxx Xxxx |
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Name:
Xxxxxxx Xxx Xxxx
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Title:
Address:
MEDITE SPZ.O.O. ZILON-GORA
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CYTOGLOBE GMBH, a German
corporation
By: /s/ Xxxx
Xxxxxxxx-Xxxxx
Name: Xxxx
Xxxxxxxx-Xxxxx
Title:
Address:
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ACCEPTED
BY:
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GPB DEBT HOLDINGS II, LLC,
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as
Collateral Agent
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By:
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/s/ Xxxxx Xxxxxx |
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Name:
Xxxxx Xxxxxx
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Title:
Manager
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Address:
0000
Xxxxxxxx Xxxxxx
XX Xxx
000
Xxxxxx
Xxxx, XX 00000
