EXHIBIT 4.6
SUBSIDIARY GUARANTEE AGREEMENT
SUBSIDIARY GUARANTEE AGREEMENT dated as of February 13, 1998 made
by Avre, Incorporated, a Nevada corporation, Binary Associates, Incorporated,
a Colorado corporation, SeraCare Acquisitions, Inc., a Nevada corporation,
BHM Labs, Inc., an Arkansas corporation, SeraCare Technology, Inc., a Nevada
corporation, Western States Groups, Inc., a California corporation (together
with each Person that becomes a Subsidiary of the Company and executes a
counterpart signature page hereto as a Guarantor, the "GUARANTORS"),
wholly-owned subsidiaries of SeraCare, Inc., a Delaware corporation (the
"COMPANY") in favor of the Guaranteed Parties (as hereinafter defined).
W I T N E S S E T H
WHEREAS, pursuant to that certain Securities Purchase Agreement,
dated as of February 13, 1998 (as amended, supplemented or otherwise modified
from time to time pursuant to the terms thereof, the "SECURITIES PURCHASE
AGREEMENT"), by and among the Company, the Guarantors and the investors
listed on the signature pages thereto (the "INVESTORS"), the Investors have
agreed to purchase (i) the Company's 12% Senior Subordinated Debentures due
February 13, 2005 in the aggregate principal amount of $16,000,000 (as
amended, supplemented or otherwise modified from time to time pursuant to the
terms thereof, the "SENIOR SUBORDINATED DEBENTURES") and (ii) warrants to
purchase, in the aggregate, 2,100,572 shares of Common Stock (the "WARRANTS",
and together with the Senior Subordinated Debentures the "SECURITIES");
WHEREAS, it is a condition precedent to the issuance of the
Securities under the Securities Purchase Agreement that the Company shall
have caused its Subsidiaries to execute and deliver this Guarantee Agreement
to the Guaranteed Parties;
WHEREAS, the Guarantors desire to execute and deliver this
Guarantee Agreement to satisfy the conditions described in the preceding
paragraph;
WHEREAS, the Guarantors are Subsidiaries of the Company;
WHEREAS, the Boards of Directors of the Guarantors have determined
that it is in the best interests of such Guarantors to execute this Guarantee
Agreement.
NOW, THEREFORE, in consideration of the benefits accruing to the
Guarantors, the receipt and sufficiency of which are hereby acknowledged, the
Guarantors hereby make the following representations and warranties and
hereby covenant and agree for the benefit of the Guaranteed Parties, as
follows:
ARTICLE I
GUARANTEE
SECTION 1.1. DEFINED TERMS. Unless otherwise defined herein,
terms defined in the Securities Purchase Agreement have such defined meanings
when used herein. For purposes of this Guarantee Agreement, the following
terms shall have the following meanings:
"GUARANTEE AGREEMENT" shall mean this Subsidiary Guarantee
Agreement, as amended, supplemented or otherwise modified from time to time
pursuant to the terms hereof.
"GUARANTEED PARTIES" shall mean, collectively, the holders of the
Senior Subordinated Debentures, including the Investors, and their respective
successors and assigns, in each case as a holder of Debentures, and
Guaranteed Party means any one of them.
"OBLIGATIONS" shall mean all obligations and liabilities (direct or
indirect, absolute or contingent, due or to become due or now existing or
hereafter incurred), whether for principal, interest, fees, indemnity, costs,
expenses or otherwise, of the Company and the Guarantors under the Senior
Subordinated Debentures, Warrants and any other Related Documents.
SECTION 1.2. GUARANTEE OF OBLIGATIONS. (a) The Guarantors hereby
irrevocably and unconditionally guarantee to the Guaranteed Parties all
Obligations, as and when the same shall become due and payable, without
regard to any defense, set-off or counterclaim that may at any time be
asserted by or available to the Company and notwithstanding any discharge of
the Company from the Obligations (other than on account of payment in
full of the Obligations, including in connection with a "cashless" exercise
of the Warrants); PROVIDED, HOWEVER, that the Guarantors shall be liable
under this Guarantee Agreement for the maximum amount of such liability that
can be hereby incurred without rendering this Guarantee Agreement, as it
relates to such Guarantors, voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer, and not for any greater amount.
(b) Any amount payable by the Guarantors hereunder which is not
paid when due shall bear interest, from the due date thereof until paid in
full, at a rate per annum equal to the default rate with respect to the
Senior Subordinated Debentures under the Securities Purchase Agreement.
SECTION 1.3. PAYMENTS BY THE GUARANTORS. In case the Company
shall fail to punctually pay the Obligations in full when due, the Guarantors
agree to make such payment punctually when and as the same shall become due
and payable. Each such payment shall be made to the Guaranteed Parties in
immediately available funds without set-off or counterclaim.
SECTION 1.4. OBLIGATIONS OF THE GUARANTORS UNCONDITIONAL. (a) The
obligations of the Guarantors under this Guarantee Agreement shall be
absolute and unconditional. This is a guaranty of payment and not merely of
collection. The Guarantors hereby agree that their liability hereunder shall
be irrevocable and unconditional, irrespective of (i) the validity, legality,
regularity or enforceability of the Obligations, the Securities Purchase
Agreement, the Senior Subordinated Debentures, Warrants, and other Related
Documents or any other guaranty of the Obligations, (ii) the absence of any
action to enforce the same, (iii) the failure by any Guaranteed Party to
perfect or enforce any Lien or the release by any Guaranteed Party of any or
all collateral security, (iv) the waiver or consent by any Guaranteed Party
with respect to any provision of any Related Document, (v) subject to Section
1.6 hereof, the recovery of any judgment against the Company or any action to
enforce the same or (vi) subject to Section 1.6 hereof, any other
circumstance which (with or without notice to or knowledge by the Company,
the Guarantors or any Guaranteed Party) might otherwise constitute a legal or
equitable discharge or defense of a guarantor. The Guarantors hereby waive
diligence, presentment, protest, demand of payment, notice of default to or
upon the Company or any of the Guarantors, filing of claims with a court
in the event of a bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to the
Obligations, and all demands whatsoever, and covenants that this Guarantee
Agreement will not be discharged except by complete payment and performance
of the Obligations.
(b) The Guarantors hereby agree that any Guaranteed Party may
at any time, or from time to time, in such Guaranteed Party's discretion,
subject in each instance to the applicable terms, if any, of the Related
Documents, (i) renew and/or extend or accelerate the time of payment, and/or
the manner, place or terms of payment of, all of the Obligations, or any part
or parts thereof or any renewal or renewals thereof of the obligations of any
other guarantor of the Obligations, (ii) renew, extend, amend or modify in
any manner whatsoever the Securities Purchase Agreement, the Senior
Subordinated Debentures, Warrants or any other Related Document, (iii)
release or surrender any other guaranty of the Obligations, (iv) exchange,
release, and/or surrender all or any of the collateral security, or any part
or parts thereof, which is now or may hereafter be held by, or on behalf of,
any Guaranteed Party in connection with this Guarantee Agreement or any or
all of the Obligations, (v) sell and/or purchase any or all such collateral
at public or private sale, or at any broker's board, and after deducting all
reasonable costs and expenses of every kind for collection, sale or delivery,
apply the proceeds of any such sale or sales upon any of the Obligations, and
(vi) subject to Section 1.8 hereof, settle or compromise any and all of the
Obligations with the Company and/or any other Person liable thereon, and/or
subordinate the payment of same or any part thereof to the payment of any
other debts or claims which may at any time be due or owing to the Guaranteed
Parties and/or any other Person; all in such manner and upon such terms as
the Guaranteed Parties may see fit, and without notice to or further assent
from the Guarantors, which hereby agree to be and remain bound upon this
Guarantee Agreement, irrespective of the existence, value or condition of any
collateral security, and notwithstanding any such change, exchange,
settlement, compromise, surrender, release, sale, application, renewal,
extension or any other action hereinbefore mentioned.
(c) The Guarantors waive any and all notices of the creation,
renewal, extension or accrual of any of the Obligations and notice or proof
of reliance by the Guaranteed Parties upon this Guarantee Agreement or
acceptance of this
Guarantee Agreement. The Obligations shall conclusively be deemed to have
been created, contracted or incurred in reliance upon this Guarantee
Agreement, and all dealings between the Company or any of the Guarantors and
the Guaranteed Parties shall likewise be conclusively presumed to have been
had or consummated in reliance upon this Guarantee Agreement.
SECTION 1.5. OBLIGATIONS INDEPENDENT. The obligations of the
Guarantors hereunder are joint and several and are independent of the
obligations of any other guarantor or the Company. A separate action or
actions may be brought and prosecuted against each of the Guarantors whether
or not an action is brought against any other guarantor, Guarantor or the
Company and whether or not any other guarantor, Guarantor or the Company be
joined in any such action or actions. The Guarantors waive, to the fullest
extent permitted by law, the benefit of any statute of limitations affecting
their 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 the Guarantors.
SECTION 1.6. REINSTATEMENT OF LIABILITY. The liability of the
Guarantors under this Guarantee Agreement shall be reinstated with respect to
any amount paid to the Guaranteed Parties by the Company or the Guarantors
which is thereafter required to be returned to the Company or such Guarantors
or the Company's or such Guarantors' respective receivers or trustees, upon
the bankruptcy, insolvency or reorganization of the Company or such
Guarantors or for any other reason, all as though such amount had not been
paid by the Company or such Guarantors.
SECTION 1.7. SUBORDINATION OF OBLIGATIONS TO THE COMPANY. Subject
to Section 1.9 hereof, all indebtedness of the Company to the Guarantors
shall be subject and subordinate to the prior payment in full of the
Obligations. Subject to Section 1.9 hereof, upon the occurrence of an Event
of Default or a default under this Guarantee Agreement, the Guarantors shall
not accept any payment from the Company or out of its property on account of
the indebtedness of the Company to such Guarantors until the payment in full
of the Obligations, and any such payment received by such Guarantors from the
Company shall be held by it in trust for and shall be promptly paid over by
it to the Guaranteed Parties.
SECTION 1.8. CONTINUING GUARANTY; TERMINATION. This is a
continuing guaranty of the Obligations, and this Guarantee Agreement shall
remain in full force and effect and be binding upon the Guarantors and their
successors and assigns until payment in full to the Guaranteed Parties of any
and all amounts due under the Obligations (including, without limitation,
costs of collection) owed under the Securities Purchase Agreement, the Senior
Subordinated Debentures, Warrants or any other Related Document, whereupon
this Guarantee Agreement shall, subject to the provisions of Section 1.6
hereof, terminate and be of no further force and effect.
SECTION 1.9. GUARANTEE SUBORDINATE TO SENIOR DEBT. All Obligations
of the Guarantors hereunder (the "GUARANTY") shall be junior and subordinate
to all Senior Debt, pursuant to, and to the extent provided in Section 8 of
the Securities Purchase Agreement and each of the Guaranteed Parties by its
acceptance of this Guarantee Agreement, agrees to be bound by the provisions
of such Section 8. The Senior Debt shall continue to be Senior Debt and
entitled to the benefits of such subordination provisions irrespective of any
amendment, modification or waiver of any term of the Senior Debt or extension
or renewal of the Senior Debt. The Guaranty shall not be junior or
subordinate to any Indebtedness of the Company or the Guarantors other than
the Senior Debt except that the Guaranty shall be subordinate to Purchase
Money Debt the incurence of which is permitted under Section 7B(v) of the
Securities Purchase Agreement. For purpose hereof, Indebtedness evidenced by
the Senior Subordinated Debentures, including any refinancing, extension or
modification thereof, shall constitute "SUBORDINATED DEBT".
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Each Guarantor hereby represents and warrants to the Guaranteed
Parties that:
SECTION 2.1. ORGANIZATION, CORPORATE POWERS, ETC. It is a
corporation duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization, has full corporate power to own its
properties and to carry on its business as now being conducted, except as
shown on Schedule 10A to the Securities Purchase Agreement, is in good
standing in each jurisdiction in which the character of its properties or the
nature of its business makes such qualification necessary, except where the
failure to so qualify would not have a Material Adverse Effect, and has all
requisite corporate power and authority to execute, deliver and perform this
Guarantee Agreement.
SECTION 2.2. AUTHORIZATION, ABSENCE OF CONFLICTS. The execution,
delivery and performance by it of this Guarantee Agreement (a) has been duly
authorized by all requisite corporate action, (b) does not require the
approval of its stockholders, (c) will not (i) violate any law or regulations
or its Certificate of Incorporation or By-laws, (ii) violate or constitute
(with due notice or lapse of time or both) a default under any indenture,
agreement, license or other instrument to which it is a party or by which it
or any of its properties may be bound or affected, (iii) violate any order of
any court, tribunal or governmental agency binding upon it or its properties
or (iv) result in the creation or imposition of any Lien of any nature
whatsoever upon any of its properties or assets and (d) does not require any
license, consent or approval of any governmental agency or regulatory
authority.
SECTION 2.3. BINDING OBLIGATIONS. This Guarantee Agreement
constitutes its legal, valid and binding obligation, enforceable against it
in accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting enforceability of creditors' rights generally or equitable
principles at the time in effect.
ARTICLE III
DEFAULT AND REMEDIES
SECTION 3.1. EXERCISE OF RIGHTS. If an Event of Default shall
occur and be continuing, a majority (by principal amount of the Senior
Subordinated Debentures then outstanding) of the Guaranteed Parties shall
have the right, power and authority to do all things they deem necessary or
advisable to enforce the provisions of this Guarantee Agreement. A majority
(by principal amount of the Senior Subordinated Debentures then outstanding)
of the Guaranteed Parties shall have the right in their sole collective
discretion to determine which rights, guarantees, liens, security interests
or remedies they shall retain, pursue, release, subordinate, modify or take
any other action with respect thereto, without in any way modifying or
affecting any other of them or any of their rights hereunder.
SECTION 3.2. EXPENSES. The Guarantors hereby jointly and severally
agree to pay on demand all reasonable costs and expenses of the Guaranteed
Parties (including without limitation all reasonable fees and disbursements
of one counsel to the Guaranteed Parties), incurred by the Guaranteed Parties
in connection with the enforcement of the Guaranteed Parties' rights
hereunder and the collection of amounts payable hereunder. This agreement to
pay costs is cumulative of, and shall not limit, the Guaranteed Parties
rights to indemnification against all liability, loss or damages pursuant to
paragraph 10B of the Securities Purchase Agreement.
SECTION 3.3. CUMULATIVE REMEDIES. This Guarantee Agreement and the
obligations of the Guarantors hereunder are in addition to and not in
substitution for any other obligations or security interests now or hereafter
held by the Guaranteed Parties. The remedies herein provided are cumulative
and are not exclusive of any remedy provided by law.
SECTION 3.4. WAIVERS AND AMENDMENTS. No failure on the part of the
Guaranteed Parties to exercise, and no delay in exercising, and no course of
dealing with respect to, any right, power or remedy hereunder shall operate
as a waiver thereof or of any default, nor shall any single or partial
exercise by the Guaranteed Parties of any right, power or remedy hereunder
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy of the Guaranteed Parties. No
modification or waiver of any provision of this Guarantee Agreement nor
consent to any departure herefrom shall in any event be effective unless the
same shall be in writing and signed by the Guaranteed Parties and then such
waiver or consent shall be effective only in the specific instance and for
the purpose for which given. No notice to or demand on the Guarantors or the
Company in any case shall, of itself, entitle such Guarantors to any other or
further notice or demand in similar or other circumstances.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. NOTICES. All notices, requests, demands or other
communications related to this Guarantee Agreement to or on the Guarantors or
any Guaranteed Party shall be in writing and shall be sent by first class
mail, overnight courier or by fax with hard copy by first class mail or
overnight courier, if to the Guarantors, to the respective addresses set
forth on the signature pages hereto and, if to any Guaranteed Party, to the
respective addresses set forth on Schedule I, or at such other address or
facsimile numbers as any such party may hereafter specify to the others in
writing, and (unless otherwise specified herein) shall be deemed received 24
hours after it is sent if sent via facsimile (with receipt confirmed) or
overnight courier; PROVIDED, HOWEVER, that any such communication to the
Guarantors may also, at the option of the holders of Securities, be either
delivered to such Guarantors at its address set forth above or to any
executive officer of such Guarantors.
SECTION 4.2. SUCCESSORS AND ASSIGNS; SURVIVAL. (a) This Guarantee
Agreement shall inure to the benefit of and shall be binding upon the
respective successors and assigns of the parties hereto; PROVIDED, HOWEVER,
that the Guarantors may not assign their rights and obligations hereunder
without the prior written consent of the Guaranteed Parties. All covenants,
agreements, representations and warranties made herein by the Guarantors
shall survive the execution and delivery of this Guarantee Agreement and
shall continue in full force and effect until all Obligations have been paid
in full.
(b) Any Guaranteed Party may assign its rights and powers under
this Guarantee Agreement, and, in the event of such assignment, the assignee
of such rights and powers, to the extent
of such assignment, shall have the same rights and remedies as if originally
named herein in the place of such Guaranteed Party.
SECTION 4.3. SET-OFF. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
upon the occurrence of any default, each Guaranteed Party is hereby
authorized at any time or from time to time, without notice to the Guarantors
or to any other Person (any such notice being hereby expressly waived) to set
off and to appropriate and apply any and all credit balances and any other
indebtedness at any time held or owing by such Guaranteed Party for any
reason whatsoever to or for the credit or the account of the Company or the
Guarantors against and on account of the obligations and liabilities of such
Guarantors to the Guaranteed Parties under this Guarantee Agreement,
irrespective of whether the Guaranteed Parties shall have made any demand
hereunder.
SECTION 4.4. SECTION HEADINGS. Article and Section headings
contained in this Guarantee Agreement are for convenience only and shall not
affect the construction of this Guarantee Agreement.
SECTION 4.5. GOVERNING LAW. This Guarantee Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York without giving effect to the conflicts or choice of law principles
thereof.
SECTION 4.6. SUBMISSION TO JURISDICTION. ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS GUARANTEE AGREEMENT MAY BE BROUGHT IN THE
COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS
GUARANTEE AGREEMENT, THE GUARANTOR HEREBY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. THE GUARANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL,
POSTAGE PREPAID, TO THE GUARANTOR AT ITS ADDRESS SET FORTH IN SECTION 4.1.
NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY GUARANTEED PARTY TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS
OR OTHERWISE PROCEED AGAINST ANY GUARANTOR IN ANY OTHER JURISDICTION.
SECTION 4.7. SEVERABILITY. If any part of this Guarantee
Agreement is contrary to, prohibited by or deemed invalid under any
applicable law of any jurisdiction, such provision shall, as to such
jurisdiction, be inapplicable and deemed omitted to the extent so contrary,
prohibited or invalid, without invalidating the remainder hereof or affecting
the validity or enforceability of such provision in any other jurisdiction.
SECTION 4.8. WAIVER OF TRIAL BY JURY. EACH OF THE GUARANTORS
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES (TO THE EXTENT
PERMITTED BY APPLICABLE LAW) ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY OF
ANY DISPUTE ARISING UNDER OR RELATING TO THIS GUARANTEE AGREEMENT OR ANY
OTHER AGREEMENT OR DOCUMENT REFERRED TO HEREIN AND EACH GUARANTOR AGREES THAT
ANY SUCH DISPUTE SHALL, AT THE OPTION OF ANY GUARANTEED PARTY AS THE CASE MAY
BE, BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
SECTION 4.9. COUNTERPARTS. This Guarantee Agreement may be
executed in several counterparts, each of which shall be an original and all
of which shall constitute but one and the same instrument.
SECTION 4.10. PERSONS BECOMING SUBSIDIARIES. In accordance with
Section 6R of the Securities Purchase Agreement, upon any Person becoming a
Subsidiary of the Company after the date hereof, such Person will become a
party to this Guarantee Agreement by executing a separate counterpart of this
Guarantee Agreement, whereupon such Person will be deemed a Guarantor for
purposes of this Guarantee Agreement on and after the date of such execution
to the extent so provided in Section 6R of the Securities Purchase Agreement.
IN WITNESS WHEREOF, the Guarantors hereto have caused this
Guarantee Agreement to be duly executed by their duly authorized officers as
of the day and year first above written.
AVRE, INCORPORATED
By: /s/ Xxxxx X. Xxxxx
-------------------------------------
Xxxxx X. Xxxxx, Chairman of the
Board, President and Chief
Executive Officer
BINARY ASSOCIATES, INCORPORATED
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Xxxxx X. Xxxxx, Chairman of the
Board, President and Chief
Executive Officer
SERACARE ACQUISITIONS, INC.
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Xxxxx X. Xxxxx, Chairman of the
Board, President and Chief
Executive Officer
BHM LABS, INC.
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Xxxxx X. Xxxxx, Chairman of the
Board, President and Chief
Executive Officer
SERACARE TECHNOLOGY, INC.
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Xxxxx X. Xxxxx, Chairman of the
Board, President and Chief
Executive Officer
WESTERN STATES GROUP, INC.
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Xxxxx X. Xxxxx, Chairman of the
Board, President and Chief
Executive Officer
