Exhibit 99.4
CONTINUING GUARANTY
THIS CONTINUING GUARANTY (the "Guaranty") is made and dated as of
the 10th day of April, 2001, by AVRE, INC., a Nevada corporation, BINARY
ASSOCIATES, INC., a Colorado corporation, AMERICAN PLASMA, INC., a Texas
corporation, BHM LABS, INC., an Arkansas corporation, SERACARE ACQUISITIONS,
INC., a Nevada corporation, SERACARE LIFE SCIENCES, INC., a Delaware
corporation, SERACARE TECHNOLOGY, INC., a Nevada corporation, and THE WESTERN
STATES GROUP, INC., a California corporation (collectively, the "Guarantors" and
each a "Guarantor") for the benefit of SANWA BANK CALIFORNIA, as administrative
agent (in such capacity, the "Agent") for the Collateral Agent, the Issuing Bank
and the Lenders under the Credit Agreement referred to below.
RECITALS
A. Pursuant to that certain Credit Agreement dated as of April __,
2001 (as the same may be amended, extended or replaced from time to time, the
"Credit Agreement," and with capitalized terms not otherwise defined herein used
with the meanings given such terms in the Credit Agreement) by and among
SeraCare Inc., a Delaware corporation (the "Company"), the Agent, the Collateral
Agent, the Issuing Bank and the Lenders from time to time party thereto, the
Lenders and the Issuing Bank have agreed to extend credit to the Company on the
terms and subject to the conditions set forth in the Credit Agreement.
B. Pursuant to the Credit Agreement and as a condition precedent to
the obligation of the Lenders to extend credit thereunder, each Guarantor is
required to execute and deliver this Guaranty to the Agent for the benefit of
the Collateral Agent, the Issuing Bank and the Lenders (collectively, the
"Secured Parties") .
NOW, THEREFORE, in consideration of the above Recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, each Guarantor hereby agrees as follows:
AGREEMENT
1. Each Guarantor, jointly and severally, hereby irrevocably and
unconditionally guarantees the payment when due, upon maturity, acceleration or
otherwise, of the Obligations (as defined in the Credit Agreement), whether
heretofore, now, or hereafter made, incurred or created, whether voluntary or
involuntary and however arising, absolute or contingent, liquidated or
unliquidated, determined or undetermined, whether or not such Obligations are
from time to time reduced, or extinguished and thereafter increased or incurred,
whether the Company may be liable individually or jointly with others, whether
or not recovery upon such Obligations may be or hereafter become barred by any
statute of limitations, and whether or not such Obligations may be or hereafter
become otherwise invalid or unenforceable; provided, however, that each
Guarantor shall be liable under this Guaranty for the maximum amount of such
liability that can be hereby incurred without rendering this Guaranty, as it
relates
to such Guarantor, voidable under applicable law relating to fraudulent
obligations, fraudulent conveyance, or fraudulent transfer, and not for any
greater amount. This is a continuing guaranty relating to any and all
Obligations including those arising under successive transactions which shall
either continue the Obligations or from time to time renew the same after such
have been satisfied.
2. This Guaranty shall be enforceable against each Guarantor whether
or not due or payable by the Company upon: (a) the dissolution, insolvency or
business failure of, or any assignment for benefit of creditors by, or
commencement of any bankruptcy, reorganization, arrangement, moratorium or other
debtor relief proceedings by or against, the Company or any Guarantor, or (b)
the appointment of a receiver for, or the attachment, restraint of or making or
levying of any order of court or legal process affecting, the property of the
Company or any Guarantor, and unconditionally promises to pay such Obligations
to the Agent for the benefit of the Secured Parties, or order, on demand, in
lawful money of the United States.
3. The liability of each Guarantor hereunder is exclusive and
independent of any security for or other guaranty of the Obligations, whether
executed by any Guarantor or by any other party, and the liability of each
Guarantor hereunder is not affected or impaired by (a) any direction of
application of payment by the Company or by any other party, or (b) any other
guaranty, undertaking or maximum liability of any Guarantor or of any other
party as to the Obligations, or (c) any payment on or in reduction of any such
other guaranty or undertaking, or (d) any revocation or release of any
obligations of any other guarantor of the Obligations, or (e) any dissolution,
termination or increase, decrease or change in personnel of any Guarantor, or
(f) any payment made to the Secured Parties or the Agent on the Obligations
which any of such Persons repay to the Company pursuant to court order in any
bankruptcy, reorganization, arrangement, moratorium or other debtor relief
proceeding, and each Guarantor waives any right to the deferral or modification
of such Guarantor's obligations hereunder by reason of any such proceeding.
4. (a) The obligations of each Guarantor hereunder are independent
of the Obligations of the Company, and a separate action or actions may be
brought and prosecuted against any Guarantor whether or not action is brought
against the Company and whether or not the Company be joined in any such action
or actions. Each Guarantor waives, to the fullest extent permitted by law, the
benefit of any statute of limitations affecting its liability hereunder or the
enforcement thereof. Any payment by the Company or other circumstance which
operates to toll any statute of limitations as to the Company shall operate to
toll the statute of limitations as to each Guarantor.
(b) All payments made by any Guarantor under this Guaranty
shall be made without set-off or counterclaim and free and clear of and without
deductions for any present or future taxes, fees, withholdings or conditions of
any nature ("Taxes") to the same extent as required of the Company in connection
with the payment of such obligations pursuant to Section 2(f) of the Credit
Agreement. Each Guarantor shall pay any such Taxes, including Taxes on any
amounts so paid, and will promptly furnish each Lender with copies of any tax
receipts or such other evidence of payment as the Secured Parties or the Agent
may require. Each Guarantor shall not be liable for such taxes (including income
taxes or franchise taxes) as are imposed on or measured by each Lender's net
income by the jurisdiction (or any political
subdivision thereof) under the laws of which such Lender is organized or
maintains a lending office.
5. Each Guarantor authorizes the Secured Parties and the Agent
(whether or not after termination of this Guaranty), without notice or demand
(except as shall be required by applicable statute and cannot be waived), and
without affecting or impairing its liability hereunder, from time to time to (a)
renew, compromise, extend, increase, accelerate or otherwise change the time for
payment of, or otherwise change the terms of, the Obligations or any part
thereof, including increase or decrease of the rate of interest thereon; (b)
take and hold security for the payment of this Guaranty or the Obligations and
exchange, enforce, waive and release any such security; (c) apply such security
and direct the order or manner of sale thereof as the Secured Parties and the
Agent in their discretion may determine; and (d) release or substitute any one
or more endorsers, guarantors, the Company or other obligors. The Secured
Parties and the Agent may without notice to or the further consent of the
Company or any Guarantor assign this Guaranty in whole or in part to any person
acquiring an interest in the Obligations to the extent permitted under the
Credit Agreement.
6. It is not necessary for the Secured Parties or the Agent to
inquire into the capacity or power of the Company or the officers acting or
purporting to act on its behalf, and Obligations made or created in reliance
upon the professed exercise of such powers shall be guaranteed hereunder.
7. Each Guarantor waives any right to require the Secured Parties or
the Agent to: (a) proceed against the Company or any other party; (b) proceed
against or exhaust any security held from the Company; or (c) pursue any other
remedy in the Secured Parties' power whatsoever. Each Guarantor waives any
personal defense based on or arising out of any personal defense of the Company
other than payment in full of the Obligations, including, without limitation,
any defense based on or arising out of the disability of the Company, or the
invalidity or unenforceability of the Obligations or any part thereof from any
cause, or the cessation from any cause of the liability of the Company other
than payment in full of the Obligations. The Secured Parties and the Agent may,
at their election, foreclose on any security held for the Obligations by one or
more judicial or nonjudicial sales, or exercise any other right or remedy the
Secured Parties and the Agent may have against the Company, or any security,
without affecting or impairing in any way the liability of any Guarantor
hereunder except to the extent the Obligations have been paid. Each Guarantor
waives any defense arising out of any such election, even though such election
operates to impair or extinguish any right of reimbursement or subrogation or
other right or remedy of such Guarantor against the Company or any security. So
long as the Obligations have not been indefeasibly paid in full, each Guarantor
hereby waives any claim or other rights which such Guarantor may now have or may
hereafter acquire against the Company or any other guarantor of all or any of
the Obligations that arise from the existence or performance of such Guarantor's
obligations under this Guaranty or any other of the Loan Documents (as such
claims and rights being referred to as the "Guarantor's Conditional Rights"),
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, or indemnification, or any right to participate in
any claim or remedy which the Secured Parties or the Agent have against the
Company or any collateral which the Secured Parties and the Agent now have or
hereafter acquire for the Obligations, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, by any
payment made hereunder or otherwise, including, without limitation, the right to
take or receive from the Company, directly or indirectly, in cash or other
property or setoff or in any other manner, payment or security on account of
such claim or other rights. If, notwithstanding the foregoing provisions, any
amount shall be paid to any Guarantor on account of Guarantor's Conditional
Rights and either (a) such amount is paid to such Guarantor at any time when the
Obligations shall not have been paid or performed in full, or (b) regardless of
when such amount is paid to such Guarantor any payment made by the Company to
the Secured Parties or the Agent is at any time determined to be a preferential
payment, then such amount paid to such Guarantor shall be deemed to be held in
trust for the benefit of the Secured Parties or the Agent and shall forthwith be
paid to the Secured Parties or the Agent to be credited and applied upon the
Obligations, whether matured or unmatured, in such order and manner as the
Secured Parties or the Agent shall determine. To the extent that any of the
provisions of this Paragraph shall not be enforceable, each Guarantor agrees
that until such time as the Obligations have been paid and performed in full and
the period of time has expired during which any payment made by the Company or
such Guarantor to the Secured Parties or the Agent may be determined to be a
preferential payment, Guarantor's Conditional Rights to the extent not validly
waived shall be subordinate to the Secured Parties' or the Agent's right to full
payment and performance of the Obligations and Guarantor shall not seek to
enforce Guarantor's Conditional Rights during such period. Each Guarantor waives
all presentments, demands for performance, protests and notices, including,
without limitation, notices of nonperformance, notices of protest, notices of
dishonor, notices of acceptance of this Guaranty, and notices of the existence,
creation or incurring of new or additional Obligations. Each Guarantor assumes
all responsibility for being and keeping itself informed of the Company's
financial condition and assets, and of all other circumstances bearing upon the
risk of nonpayment of the Obligations and the nature, scope and extent of the
risks which such Guarantor assumes and incurs hereunder, and agrees that neither
the Secured Parties nor the Agent shall have any duty to advise such Guarantor
of information known to any of them regarding such circumstances or risks. The
Agent hereby agrees to use reasonable efforts to give a copy to each Guarantor
of any formal written notice to the Company of the occurrence of an Event of
Default under the Credit Agreement; provided, however, that the failure of the
Agent to provide any such notice shall not in any manner or to any extent affect
the obligations of any Guarantor hereunder.
8. In addition to the Obligations, each Guarantor agrees to pay
reasonable attorneys' fees (including the allocated costs of internal counsel)
and all other costs and expenses incurred by the Secured Parties and the Agent
in enforcing this Guaranty in any action or proceeding arising out of, or
relating to, this Guaranty. This Guaranty and the liability and obligations of
each Guarantor hereunder are binding upon such Guarantor and its successors and
assigns, and this Guaranty inures to the benefit of and is enforceable by the
Secured Parties and the Agent and their successors, transferees, and assigns.
9. Each Guarantor hereby represents and warrants to the Agent and
the Secured Parties as follows:
(a) Such Guarantor: (1) is duly organized, validly existing
and in good standing as a corporation or limited liability company under the
laws of the State of its incorporation or formation and is qualified to do
business in each jurisdiction where its ownership of property or conduct of
business requires such qualification and where failure to
qualify would have a material adverse effect on such Guarantor or its property
and/or business or on the ability of such Guarantor to pay or perform the
Obligations, (2) has the corporate or other power and authority and the legal
right to own and operate its property and to conduct business in all material
respects n the manner in which it does and proposes so to do, and (3) is in
compliance with all Requirements of Law and Contractual Obligations, the failure
to comply with which could have a material adverse effect on the business,
operations, assets or financial or other condition of such Guarantor or such
Guarantor and its consolidated Subsidiaries taken as a whole.
(b) Such Guarantor has the corporate or other power and
authority and the legal right to execute, deliver and perform this Guaranty and
has taken all necessary corporate action to authorize the execution, delivery
and performance of this Guaranty. This Guaranty has been duly executed and
delivered on behalf of such Guarantor and constitutes the legal, valid and
binding obligation of such Guarantor enforceable against such Guarantor in
accordance with its terms, subject to the effect of applicable bankruptcy and
other similar laws affecting the rights of creditors generally and the effect of
equitable principles whether applied in an action at law or a suit in equity.
(c) The execution, delivery and performance of this Guaranty
will not violate any Requirement of Law or any Contractual Obligation of such
Guarantor or create or result in the creation of any Lien on any assets of such
Guarantor other than in favor of the Collateral Agent.
(d) No consent, approval, authorization of, or registration,
declaration or filing with any Person is required on the part of such Guarantor
in connection with the execution and delivery of this Guaranty or the
performance of or compliance with the terms, provisions and conditions hereof.
10. No right or power of the Secured Parties or the Agent hereunder
shall be deemed to have been waived by any act or conduct on the part of such
Persons, or by any neglect to exercise such right or power, or by any delay in
so doing; and every right or power shall continue in full force and effect until
specifically waived or released by an instrument in writing executed by the
Secured Parties and the Agent.
11. Each Guarantor agrees to execute any and all further documents,
instruments and agreements as the Agent from time to time reasonably requests to
evidence such Guarantor's obligations hereunder.
12. This Guaranty shall be deemed to be made under and shall be
governed by the laws of the State of California.
13. If any of the provisions of this Guaranty shall contravene or be
held invalid under the laws of any jurisdiction, this Guaranty shall be
construed as if not containing those provisions and the rights and obligations
of the parties hereto shall be construed and enforced accordingly.
14. Neither this Guaranty nor any provision hereof may be amended,
modified, waived, discharged, or terminated except by an instrument in writing
duly signed by or on behalf of the Secured Parties.
15. The rights, powers and remedies of the Secured Parties or the
Agent hereunder are cumulative and not exclusive of any other right, power, or
remedy which Lender or the Agent would otherwise have.
16. All notices, requests, demands, directions, and other
communications provided for hereunder must be in writing and must be personally
delivered, sent by overnight courier or mailed to each Guarantor at the address
set forth on the signature page of this Guaranty or at any other address as may
be designated by such Guarantor in a written notice sent to the Agent in
accordance with the Credit Agreement. Any notice, request, demand, direction, or
other communication given by mail will be deemed effective on the third calendar
day after deposited in the United States mails with first class postage prepaid,
on the next business day after deposited with a reputable overnight courier, or
when delivered if given by personal delivery.
EXECUTED as of the day and year first above written.
AVRE, INC., a Nevada corporation
By: _______________________________
Name: _____________________________
Title: ____________________________
By: _______________________________
Name: _____________________________
Title: ____________________________
BINARY ASSOCIATES, INC., a Colorado
corporation
By: _______________________________
Name: _____________________________
Title: ____________________________
AMERICAN PLASMA, INC., a Texas
corporation
By: _______________________________
Name: _____________________________
Title: ____________________________
BHM LABS, INC., an Arkansas
corporation
By: _______________________________
Name: _____________________________
Title: ____________________________
SERACARE ACQUISITIONS, INC., a
Nevada corporation
By: _______________________________
Name: _____________________________
Title: ____________________________
THE WESTERN STATES GROUP, INC., a
California corporation
By: _______________________________
Name: _____________________________
Title: ____________________________
SERACARE TECHNOLOGY, INC., a Nevada
corporation
By: _______________________________
Name: _____________________________
Title: ____________________________
SERACARE LIFE SCIENCES, INC., a
Delaware corporation
By: _______________________________
Name: _____________________________
Title: ____________________________
