EXHIBIT 99.6
GUARANTY
New York, New York dated as of August 31, 2006
FOR VALUE RECEIVED, and in consideration of note purchases from, or credit
otherwise extended or to be extended by Laurus Master Fund, Ltd. ("Laurus") to
or for the account of Icoria, Inc., a Delaware corporation (the "Company"), from
time to time and at any time and for other good and valuable consideration and
to induce Xxxxxx, in its discretion, to purchase such notes or make other
extensions of credit and to make or grant such renewals, extensions, releases of
collateral or relinquishments of legal rights as Laurus may deem advisable, each
of the undersigned (and each of them if more than one, the liability under this
Guaranty being joint and several) (jointly and severally referred to as
"Guarantors " or "the undersigned") unconditionally guaranties to Laurus, its
successors, endorsees and assigns the prompt payment when due (whether by
acceleration or otherwise) of all present and future obligations and liabilities
of any and all kinds of the Company to Laurus and of all instruments of any
nature evidencing or relating to any such obligations and liabilities upon which
the Company or one or more parties and the Company is or may become liable to
Laurus, whether incurred by the Company as maker, endorser, drawer, acceptor,
guarantors, accommodation party or otherwise, and whether due or to become due,
secured or unsecured, absolute or contingent, joint or several, and however or
whenever acquired by Xxxxxx, whether arising under, out of, or in connection
with (i) that certain Securities Purchase Agreement dated as of the date hereof
by and between the Company and Laurus (the "Securities Purchase Agreement") and
(ii) each Related Agreement referred to in the Securities Purchase Agreement
(the Securities Purchase Agreement and each Related Agreement, as each may be
amended, modified, restated and/or supplemented from time to time, are
collectively referred to herein as the "Documents"), or any documents,
instruments or agreements relating to or executed in connection with the
Documents or any documents, instruments or agreements referred to therein or
otherwise, or any other obligations or liabilities of the Company to Laurus,
whether now existing or hereafter arising, direct or indirect, liquidated or
unliquidated, absolute or contingent, due or not due and whether under, pursuant
to or evidenced by a note, agreement, guaranty, instrument or otherwise (all of
which are herein collectively referred to as the "Obligations"), and
irrespective of the genuineness, validity, regularity or enforceability of such
Obligations, or of any instrument evidencing any of the Obligations or of any
collateral therefor or of the existence or extent of such collateral, and
irrespective of the allowability, allowance or disallowance of any or all of the
Obligations in any case commenced by or against the Company under Title 11,
United States Code, including, without limitation, obligations or indebtedness
of the Company for post-petition interest, fees, costs and charges that would
have accrued or been added to the Obligations but for the commencement of such
case; provided that, the maximum amount of the Guarantors' aggregate liability
to Laurus hereunder shall be no greater than $760,000. Terms not otherwise
defined herein shall have the meaning assigned such terms in the Securities
Purchase Agreement. Notwithstanding anything herein to the contrary, Xxxxxx
agrees that for a period of not less than sixty (60) days following the
occurrence of an Event of Default (as defined in the Securities Purchase
Agreement and the Related Agreements), Laurus shall not demand payment by the
Guarantors under this Guaranty. In furtherance of the foregoing, the undersigned
xxxxxx agrees as follows:
Guaranty
1. No Impairment. Laurus may at any time and from time to time, either
before or after the maturity thereof, without notice to or further consent of
the undersigned, extend the time of payment of, exchange or surrender any
collateral for, renew or extend any of the Obligations or increase or decrease
the interest rate thereon, or any other agreement with the Company or with any
other party to or person liable on any of the Obligations, or interested
therein, for the extension, renewal, payment, compromise, discharge or release
thereof, in whole or in part, or for any modification of the terms thereof or of
any agreement between Laurus and the Company or any such other party or person,
or make any election of rights Laurus may deem desirable under the United States
Bankruptcy Code, as amended, or any other federal or state bankruptcy,
reorganization, moratorium or insolvency law relating to or affecting the
enforcement of creditors' rights generally (any of the foregoing, an "Insolvency
Law") without in any way impairing or affecting this Guaranty. This Guaranty
shall be effective regardless of the subsequent incorporation, merger or
consolidation of the Company, or any change in the composition, nature,
personnel or location of the Company and shall extend to any successor entity to
the Company, including a debtor in possession or the like under any Insolvency
Law.
2. Guaranty Absolute. Subject to Section 5(c) hereof, each of the
undersigned jointly and severally guarantees that the Obligations will be paid
strictly in accordance with the terms of the Documents and/or any other
document, instrument or agreement creating or evidencing the Obligations,
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 Company with
respect thereto. Guarantors hereby knowingly accept the full range of risk
encompassed within a contract of "continuing guaranty" which risk includes the
possibility that the Company will contract additional obligations and
liabilities for which Guarantors may be liable hereunder after the Company's
financial condition or ability to pay its lawful debts when they fall due has
deteriorated, whether or not the Company has properly authorized incurring such
additional obligations and liabilities. The undersigned acknowledge that (i) no
oral representations, including any representations to extend credit or provide
other financial accommodations to the Company, have been made by Laurus to
induce the undersigned to enter into this Guaranty and (ii) any extension of
credit to the Company shall be governed solely by the provisions of the
Documents. The liability of each of the undersigned under this Guaranty shall be
absolute and unconditional, in accordance with its terms, and shall remain in
full force and effect without regard to, and shall not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance or occurrence
whatsoever, including, without limitation: (a) any waiver, indulgence, renewal,
extension, amendment or modification of or addition, consent or supplement to or
deletion from or any other action or inaction under or in respect of the
Documents or any other instruments or agreements relating to the Obligations or
any assignment or transfer of any thereof, (b) any lack of validity or
enforceability of any Document or other documents, instruments or agreements
relating to the Obligations or any assignment or transfer of any thereof, (c)
any furnishing of any additional security to Laurus or its assignees or any
acceptance thereof or any release of any security by Laurus or its assignees,
(d) any limitation on any party's liability or obligation under the Documents or
any other documents, instruments or agreements relating to the Obligations or
any assignment or transfer of any thereof or any invalidity or unenforceability,
in whole or in part, of any such document, instrument or agreement or any term
thereof, (e) any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other like proceeding relating to the
Company, or any
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action taken with respect to this Guaranty by any trustee or receiver, or by any
court, in any such proceeding, whether or not the undersigned shall have notice
or knowledge of any of the foregoing, (f) any exchange, release or nonperfection
of any collateral, or any release, or amendment or waiver of or consent to
departure from any guaranty or security, for all or any of the Obligations or
(g) any other circumstance which might otherwise constitute a defense available
to, or a discharge of, the undersigned. Any amounts due from the undersigned to
Laurus shall bear interest until such amounts are paid in full at the highest
rate then applicable to the Obligations. Obligations include post-petition
interest whether or not allowed or allowable.
3. Waivers.
(a) This Guaranty is a guaranty of payment and not of collection.
Laurus shall be under no obligation to institute suit, exercise rights or
remedies or take any other action against the Company or any other person
or entity liable with respect to any of the Obligations or resort to any
collateral security held by it to secure any of the Obligations as a
condition precedent to the undersigned being obligated to perform as agreed
herein and each of the Guarantors hereby waives any and all rights which it
may have by statute or otherwise which would require Laurus to do any of
the foregoing. Each of the Guarantors further consents and agrees that
Xxxxxx shall be under no obligation to marshal any assets in favor of
Guarantors, or against or in payment of any or all of the Obligations. The
undersigned hereby waives all suretyship defenses and any rights to
interpose any defense, counterclaim or offset of any nature and description
which the undersigned may have or which may exist between and among Laurus,
the Company and/or the undersigned with respect to the undersigned's
obligations under this Guaranty, or which the Company may assert on the
underlying debt, including but not limited to failure of consideration,
breach of warranty, fraud, payment (other than cash payment in full of the
Obligations), statute of frauds, bankruptcy, infancy, statute of
limitations, accord and satisfaction, and usury.
(b) Each of the undersigned further waives (i) notice of the
acceptance of this Guaranty, of the extensions of credit, and of all
notices and demands of any kind to which the undersigned may be entitled,
including, without limitation, notice of adverse change in the Company's
financial condition or of any other fact which might materially increase
the risk of the undersigned and (ii) presentment to or demand of payment
from anyone whomsoever liable upon any of the Obligations, protest, notices
of presentment, non-payment or protest and notice of any sale of collateral
security or any default of any sort.
(c) Notwithstanding any payment or payments made by the undersigned
hereunder, or any setoff or application of funds of the undersigned by
Xxxxxx, the undersigned shall not be entitled to be subrogated to any of
the rights of Laurus against the Company or against any collateral or
guarantee or right of offset held by Xxxxxx for the payment of the
Obligations, nor shall the undersigned seek or be entitled to seek any
contribution or reimbursement from the Company in respect of payments made
by the undersigned hereunder, until all amounts owing to Laurus by the
Company on account of the Obligations are indefeasibly paid in full and
Laurus' obligation to extend credit pursuant to the Documents has been
irrevocably terminated. If, notwithstanding the foregoing, any amount shall
be paid to the undersigned on account of such subrogation
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rights at any time when all of the Obligations shall not have been paid in
full and Laurus' obligation to extend credit pursuant to the Documents
shall not have been terminated, such amount shall be held by the
undersigned in trust for Laurus, segregated from other funds of the
undersigned, and shall forthwith upon, and in any event within two (2)
business days of, receipt by the undersigned, be turned over to Laurus in
the exact form received by the undersigned (duly endorsed by the
undersigned to Laurus, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as Laurus may determine,
subject to the provisions of the Documents. Any and all present and future
obligations and liabilities of the Company to any of the undersigned are
hereby waived and postponed in favor of, and subordinated to the full
payment and performance of, all Obligations of the Company to Laurus.
4. Security. All sums at any time to the credit of the undersigned and any
property of the undersigned in Laurus' possession or in the possession of any
bank, financial institution or other entity that directly or indirectly, through
one or more intermediaries, controls or is controlled by, or is under common
control with, Laurus (each such entity, an "Affiliate") shall be deemed held by
Laurus or such Affiliate, as the case may be, as security for any and all of the
undersigned's obligations and liabilities to Laurus and to any Affiliate of
Laurus, no matter how or when arising and whether under this or any other
instrument, agreement or otherwise.
5. Representations and Warranties. Each of the undersigned hereby jointly
and severally represents and warrants (all of which representations and
warranties shall survive until all Obligations are indefeasibly satisfied in
full and the Documents have been irrevocably terminated), that:
(a) Corporate Status. It is a corporation, partnership or limited
liability company, as the case may be, duly formed, validly existing and in
good standing under the laws of its jurisdiction of formation indicated on
the signature page hereof and has full power, authority and legal right to
own its property and assets and to transact the business in which it is
engaged.
(b) Authority and Execution. It has full power, authority and legal
right to execute and deliver, and to perform its obligations under, this
Guaranty and has taken all necessary corporate, partnership or limited
liability company, as the case may be, action to authorize the execution,
delivery and performance of this Guaranty.
(c) Legal, Xxxxx and Binding Character. This Guaranty constitutes its
legal, valid and binding obligation enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
affecting the enforcement of creditor's rights and general principles of
equity that restrict the availability of equitable or legal remedies.
(d) Violations. The execution, delivery and performance of this
Guaranty will not violate any requirement of law applicable to it or any
contract, agreement or instrument to which it is a party or by which it or
any of its property is bound or result in the creation or imposition of any
mortgage, lien or other encumbrance other than in favor
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of Laurus on any of its property or assets pursuant to the provisions of
any of the foregoing, which, in any of the foregoing cases, could
reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect.
(e) Consents or Approvals. No consent of any other person or entity
(including, without limitation, any creditor of the undersigned) and no
consent, license, permit, approval or authorization of, exemption by,
notice or report to, or registration, filing or declaration with, any
governmental authority is required in connection with the execution,
delivery, performance, validity or enforceability of this Guaranty by it,
except to the extent that the failure to obtain any of the foregoing could
not reasonably be expected to have, either individually or in the
aggregate, a Material Adverse Effect.
(f) Litigation. No litigation, arbitration, investigation or
administrative proceeding of or before any court, arbitrator or
governmental authority, bureau or agency is currently pending or, to the
best of its knowledge, threatened (i) with respect to this Guaranty or any
of the transactions contemplated by this Guaranty or (ii) against or
affecting it, or any of its property or assets, which, in each of the
foregoing cases, if adversely determined, could reasonably be expected to
have a Material Adverse Effect.
(g) Financial Benefit. It has derived or expects to derive a financial
or other advantage from each and every loan, advance or extension of credit
made under the Documents or other Obligation incurred by the Company to
Laurus.
(h) Solvency. As of the date of this Guaranty, (a) the fair saleable
value of its assets exceeds its liabilities and (b) it is meeting its
current liabilities as they mature.
6. Acceleration.
(a) If any breach of any covenant or condition or other event of
default shall occur and be continuing under any agreement made by the
Company or any of the undersigned to Laurus, or either the Company or any
of the undersigned should at any time become insolvent, or make a general
assignment, or if a proceeding in or under any Insolvency Law shall be
filed or commenced by, or in respect of, any of the undersigned, or if a
notice of any lien, levy, or assessment is filed of record with respect to
any assets of any of the undersigned by the United States of America or any
department, agency, or instrumentality thereof, or if any taxes or debts
owing at any time or times hereafter to any one of them becomes a lien or
encumbrance upon any assets of the undersigned in Laurus' possession, or
otherwise, any and all Obligations shall for purposes hereof, at Laurus'
option, be deemed due and payable without notice notwithstanding that any
such Obligation is not then due and payable by the Company.
(b) Each of the undersigned will promptly notify Laurus of any default
by such undersigned in its respective performance or observance of any term
or condition of any agreement to which the undersigned is a party if the
effect of such default is to cause, or permit the holder of any obligation
under such agreement to cause, such obligation to become due prior to its
stated maturity and, if such an event occurs, Xxxxxx shall have the right
to accelerate such undersigned's obligations hereunder.
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7. Payments from Guarantors. Laurus, in its sole and absolute discretion,
with or without notice to the undersigned, may apply on account of the
Obligations any payment from the undersigned or any other guarantors, or amounts
realized from any security for the Obligations, or may deposit any and all such
amounts realized in a non-interest bearing cash collateral deposit account to be
maintained as security for the Obligations.
8. Costs. The undersigned shall pay on demand, all costs, fees and expenses
(including reasonable expenses for legal services) relating or incidental to the
enforcement or protection of the rights of Laurus hereunder or under any of the
Obligations.
9. No Termination. This is a continuing irrevocable guaranty and shall
remain in full force and effect and be binding upon the undersigned, and each of
the undersigned's successors and assigns, until all of the Obligations have been
indefeasibly paid in full and Laurus' obligation to extend credit pursuant to
the Documents has been irrevocably terminated. If any of the present or future
Obligations are guarantied by persons, partnerships, corporations or other
entities in addition to the undersigned, the death, release or discharge in
whole or in part or the bankruptcy, merger, consolidation, incorporation,
liquidation or dissolution of one or more of them shall not discharge or affect
the liabilities of any undersigned under this Guaranty.
10. Recapture. Anything in this Guaranty to the contrary notwithstanding,
if Xxxxxx receives any payment or payments on account of the liabilities
guaranteed hereby, which payment or payments or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver, or any other party under
any Insolvency Law, common law or equitable doctrine, then to the extent of any
sum not finally retained by Xxxxxx, the undersigned's obligations to Xxxxxx
shall be reinstated and this Guaranty shall remain in full force and effect (or
be reinstated) until payment shall have been made to Laurus, which payment shall
be due on demand.
11. Books and Records. The books and records of Xxxxxx showing the account
between Laurus and the Company shall be admissible in evidence in any action or
proceeding, shall be binding upon the undersigned for the purpose of
establishing the items therein set forth and shall constitute prima facie proof
thereof.
12. No Waiver. No failure on the part of Laurus to exercise, and no delay
in exercising, any right, remedy or power hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise by Xxxxxx of any right, remedy
or power hereunder preclude any other or future exercise of any other legal
right, remedy or power. Each and every right, remedy and power hereby granted to
Laurus or allowed it by law or other agreement shall be cumulative and not
exclusive of any other, and may be exercised by Xxxxxx at any time and from time
to time.
13. Waiver of Jury Trial. EACH OF THE UNDERSIGNED DESIRES THAT ITS DISPUTES
BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, EACH
OF THE UNDERSIGNED HERETO WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER ARISING IN CONTRACT,
TORT, OR OTHERWISE BETWEEN LAURUS, AND/OR ANY OF THE UNDERSIGNED ARISING
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OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH THIS GUARANTY, ANY DOCUMENT OR THE TRANSACTIONS
RELATED HERETO OR THERETO.
14. Governing Law; Jurisdiction. THIS GUARANTY CANNOT BE CHANGED OR
TERMINATED ORALLY, AND SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN SUCH STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
EACH OF THE UNDERSIGNED HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL
COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN ANY OF THE
UNDERSIGNED, ON THE ONE HAND, AND LAURUS, ON THE OTHER HAND, PERTAINING TO THIS
GUARANTY OR ANY OF THE DOCUMENTS OR TO ANY MATTER ARISING OUT OF OR RELATED TO
THIS GUARANTY OR ANY OF THE DOCUMENTS; PROVIDED, THAT EACH OF THE UNDERSIGNED
ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT
LOCATED OUTSIDE OF THE COUNTY OF NEW YORK, STATE OF NEW YORK; AND FURTHER
PROVIDED, THAT NOTHING IN THIS GUARANTY SHALL BE DEEMED OR OPERATE TO PRECLUDE
LAURUS FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION
TO COLLECT THE OBLIGATIONS, TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY
FOR THE OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF
LAURUS. EACH OF THE UNDERSIGNED EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO
SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH
UNDERSIGNED HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF
PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS. EACH OF THE
UNDERSIGNED HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER
PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH
SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL
ADDRESSED TO SUCH UNDERSIGNED IN ACCORDANCE WITH SECTION 18 AND THAT SERVICE SO
MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH UNDERSIGNED'S ACTUAL
RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER
POSTAGE PREPAID.
15. Understanding With Respect to Waivers and Consents. Each Guarantor
warrants and agrees that each of the waivers and consents set forth in this
Guaranty is made voluntarily and unconditionally after consultation with outside
legal counsel and with full knowledge of its significance and consequences, with
the understanding that events giving rise to any defense or right waived may
diminish, destroy or otherwise adversely affect rights which such Guarantor
otherwise may have against the Company, Laurus or any other person or entity or
against any collateral. If, notwithstanding the intent of the parties that the
terms of this Guaranty shall control in any and all circumstances, any such
waivers or consents are determined to be
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unenforceable under applicable law, such waivers and consents shall be effective
to the maximum extent permitted by law.
16. Severability. To the extent permitted by applicable law, any provision
of this Guaranty which is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
17. Amendments, Waivers. No amendment or waiver of any provision of this
Guaranty nor consent to any departure by the undersigned therefrom shall in any
event be effective unless the same shall be in writing executed by each of the
undersigned directly affected by such amendment and/or waiver and Xxxxxx.
18. Notice. All notices, requests and demands to or upon the undersigned,
shall be in writing and shall be deemed to have been duly given or made (a) when
delivered, if by hand, (b) three (3) days after being sent, postage prepaid, if
by registered or certified mail, (c) when confirmed electronically, if by
facsimile, or (d) when delivered, if by a recognized overnight delivery service
in each event, to the numbers and/or address set forth beneath the signature of
the undersigned.
19. Successors. Laurus may, from time to time, without notice to the
undersigned, sell, assign, transfer or otherwise dispose of all or any part of
the Obligations and/or rights under this Guaranty. Without limiting the
generality of the foregoing, Laurus may assign, or grant participations to, one
or more banks, financial institutions or other entities all or any part of any
of the Obligations. In each such event, Laurus, its Affiliates and each and
every immediate and successive purchaser, assignee, transferee or holder of all
or any part of the Obligations shall have the right to enforce this Guaranty, by
legal action or otherwise, for its own benefit as fully as if such purchaser,
assignee, transferee or holder were herein by name specifically given such
right. Laurus shall have an unimpaired right to enforce this Guaranty for its
benefit with respect to that portion of the Obligations which Xxxxxx has not
disposed of, sold, assigned, or otherwise transferred.
20. Joinder. It is understood and agreed that any person or entity that
desires to become a Guarantor hereunder, or is required to execute a counterpart
of this Guaranty after the date hereof pursuant to the requirements of any
Document, shall become a Guarantor hereunder by (x) executing a joinder
agreement in form and substance satisfactory to Laurus, (y) delivering
supplements to such exhibits and annexes to such Documents as Laurus shall
reasonably request and/or as may be required by such joinder agreement and (z)
taking all actions as specified in this Guaranty as would have been taken by
such such Guarantor had it been an original party to this Guaranty, in each case
with all documents required above to be delivered to Laurus and with all
documents and actions required above to be taken to the reasonable satisfaction
of Xxxxxx.
21. Release. Nothing except indefeasible payment in full of the Obligations
shall release any of the undersigned from liability under this Guaranty.
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22. Remedies Not Exclusive. The remedies conferred upon Xxxxxx in this
Guaranty are intended to be in addition to, and not in limitation of any other
remedy or remedies available to Laurus under applicable law or otherwise.
23. Limitation of Obligations under this Guaranty. Each Guarantor and
Laurus (by its acceptance of the benefits of this Guaranty) hereby confirms that
it is its intention that this Guaranty not constitute a fraudulent transfer or
conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent
Conveyance Act of any similar Federal or state law. To effectuate the foregoing
intention, each Guarantor and Laurus (by its acceptance of the benefits of this
Guaranty) hereby irrevocably agrees that the Obligations guaranteed by such
Guarantor shall be limited to such amount as will, after giving effect to such
maximum amount and all other (contingent or otherwise) liabilities of such
Guarantor that are relevant under such laws and after giving effect to any
rights to contribution pursuant to any agreement providing for an equitable
contribution among such Guarantor and the other Guarantors (including this
Guaranty), result in the Obligations of such Guarantor under this Guaranty in
respect of such maximum amount not constituting a fraudulent transfer or
conveyance.
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SIGNATURE PAGE IMMEDIATELY FOLLOWS]
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IN WITNESS WHEREOF, this Guaranty has been executed by the undersigned as
of the date and year here above written.
CLINICAL DATA, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Legal Officer
Address: One Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Telephone: 000-000-0000
Facsimile: 000-000-0000
State of Formation:Delaware
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