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Exhibit 10.26
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GUARANTY AGREEMENT
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THIS AGREEMENT, dated as of the 31st day of December, 1996, by SEPRACOR
INC., a Delaware corporation (the "Guarantor"), to FLEET NATIONAL BANK (the
"Secured Party").
W I T N E S S E T H
WHEREAS, Versicor, Inc., a Delaware corporation (the "Company"), and the
Secured Party have entered into a Revolving Credit, Term Loan and Security
Agreement dated as of the date hereof (as amended from time to time, the "Credit
Agreement") pursuant to which the Secured Party has agreed, subject to the terms
and conditions set forth therein, to make loans to the Company (collectively,
the "Loans"), such Loans to be evidenced by the Company's Revolving Note and the
Company's Term Note, each payable to the order of the Secured Party (the
"Notes"); and
WHEREAS, the Guarantor owns a majority of the outstanding capital stock of
the Company and the making of the Loans will therefore be beneficial to the
Guarantor; and
WHEREAS, the obligation of the Secured Party to make the Loans is subject
to the condition, among others, that the Guarantor shall execute and deliver
this Guaranty Agreement;
NOW, THEREFORE, in consideration of the willingness of the Secured Party to
make the Loans to the Company, and for other good and valuable consideration,
receipt of which is hereby acknowledged by the Guarantor, the Guarantor hereby
agrees as follows:
1. GUARANTEED OBLIGATIONS. The Guarantor does hereby irrevocably and
unconditionally guarantee the due and punctual payment and performance by the
Company of the following obligations to the Secured Party (individually, a
"Guaranteed Obligation" and collectively the "Guaranteed Obligations"):
(a) Principal of and premium, if any, and interest on the Notes;
(b) Any and all other obligations of the Company to the Secured Party
under the Credit Agreement or under any agreement or instrument relating
thereto, all as amended from time to time; and
(c) Any and all other indebtedness or obligations of the Company to
the Secured Party, whether direct or indirect, absolute or contingent, due or to
become due or now existing or hereafter arising.
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2. DEMAND BY SECURED PARTY. Upon failure by the Company punctually to pay
or perform any Guaranteed Obligation when due, after the expiration of any
applicable grace period, the Secured Party may make demand upon the Guarantor
for the payment or performance of such Guaranteed Obligation and the Guarantor
binds and obliges itself to make such payment or performance forthwith upon such
demand.
3. WAIVER OF DEMANDS, NOTICES, DILIGENCE, ETC. The Guarantor hereby assents
to all of the terms and conditions of the Guaranteed Obligations and waives: (a)
demand for the payment of the principal of any Guaranteed Obligation or of any
claim for interest or any part of any thereof (other than the demand provided
for in Section 2 hereof); (b) notice of the occurrence of a default or an event
of default under any Guaranteed Obligation; (c) protest of the nonpayment of the
principal of any Guaranteed Obligation or of any claim for interest or any part
thereof; (d) notice of presentment, demand and protest; (e) notice of acceptance
of any guaranty herein provided for or of the terms and provisions thereof or
hereof by the Secured Party; (f) notice of any indulgences or extensions granted
to the Company or any successor to the Company or any person or party which
shall have assumed the obligations of the Company; (g) any requirement of
diligence or promptness on the part of the Secured Party in the enforcement of
any of its rights under the provisions of any Guaranteed Obligation or this
Guaranty Agreement; (h) any enforcement of any Guaranteed Obligation; (i) any
right which the Guarantor might have to require the Secured Party to proceed
against any other guarantor of the Guaranteed Obligations or to realize on any
collateral security therefor; and (j) any and all notices of every kind and
description which may be required to be given by any statute or rule of law in
any jurisdiction. The waivers set forth in this Section 3 shall be effective
notwithstanding the fact that the Company ceases to exist by reason of its
liquidation, merger, consolidation or otherwise.
4. OBLIGATIONS OF GUARANTOR UNCONDITIONAL. The obligations of the Guarantor
under this Guaranty Agreement shall be unconditional, irrespective of the
validity, regularity or enforceability of any Guaranteed Obligation, and shall
not be affected by any action taken under any Guaranteed Obligation in the
exercise of any right or remedy therein conferred, or by any failure or omission
on the part of the Secured Party to enforce any right given thereunder or
hereunder or any remedy conferred thereby or hereby, or by any waiver of any
term, covenant, agreement or condition of any Guaranteed Obligation or this
Guaranty Agreement, or by any release of any security or any other guaranty at
any time existing for the benefit of any Guaranteed Obligation, or by the merger
or consolidation of the Company, or by sale, lease or transfer by the Company to
any person of any or all of its properties, or by any action of the Secured
Party granting indulgence or extension to, or waiving or acquiescing in any
default by, the Company or any successor to the Company or any person or party
which shall have assumed its obligations, or by reason of any disability or
other defense of the Company or any successor to the Company, or by any
modification, alteration, or by any circumstance whatsoever (with or without
notice to or knowledge of the Guarantor) which may or might in any manner or to
any extent vary the risk of the Guarantor
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hereunder, it being the purpose and intent of the Guarantor that the obligations
of the Guarantor hereunder shall be absolute and unconditional under any and all
circumstances and shall not be discharged except by payment or performance as
herein provided, and then only to the extent of such payment or performance.
5. SUBORDINATION OF CLAIMS OF GUARANTOR. Any claims against the Company to
which the Guarantor may be or become entitled (including, without limitation,
claims by subrogation or otherwise by reason of any payment or performance by
the Guarantor in satisfaction and discharge, in whole or in part, of its
obligations under this Guaranty Agreement) shall be and hereby are made subject
and subordinate to the prior payment or performance in full of the Guaranteed
Obligations.
6. REINSTATEMENT. This Agreement shall continue to be effective, or be
reinstated, as the case may be, if at any time any amount received by the
Secured Party in respect of the Guaranteed Obligations is rescinded or must
otherwise be restored or returned by the Secured Party upon the insolvency,
bankruptcy, dissolution, liquidation or reorganization of the Company or the
Guarantor or upon the appointment of an intervenor or conservator of, or trustee
or similar official for, the Company or the Guarantor or any substantial part of
any of their respective properties, or otherwise, all as though said payments
had not been made.
7. NOTICES. Except as otherwise provided herein, all notices to the
Guarantor or the Secured Party shall be in writing and shall be deemed to have
been sufficiently given or served for all purposes hereof if personally
delivered or mailed by first class mail, postage prepaid, as follows:
(a) if to the Guarantor:
Sepracor Inc.
000 Xxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Senior Vice President
with a copy to:
Xxxx X. Xxxxx, Esquire
Xxxx & Xxxx
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
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(b) if to the Secured Party:
Fleet National Bank
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx
Vice President
with a copy to:
Xxxxxx Xxxxxxx, Esquire
Xxxxxx & Dodge
Xxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
or at such other address as the party to whom such notice or demand is directed
may have designated in writing to the other party hereto. A notice shall be
deemed to have been given upon the earlier to occur of (i) three (3) days after
the date on which it is deposited in the U.S. mails or (ii) receipt by the party
to whom such notice is directed.
8. MISCELLANEOUS. This Guaranty Agreement shall inure to the benefit of and
be binding upon the Secured Party and the Guarantor and their respective
successors and assigns, and the term "Secured Party" shall be deemed to include
any other holder or holders of any of the Guaranteed Obligations. In case any
provision in this Guaranty Agreement shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby. This Guaranty Agreement may be
executed in any number of counterparts and by the different parties hereto on
separate counterparts, each of which shall be an original, but all of which
together shall constitute one instrument. The Guarantor agrees, as principal
obligor and not as guarantor, to pay to the Secured Party forthwith upon demand
in funds immediately available to the Secured Party, all reasonable costs and
expenses (including court costs and reasonable attorneys' fees and
disbursements) incurred or expended by the Secured Party in connection with the
enforcement of this Guaranty Agreement.
9. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL. This Guaranty
Agreement, including the validity hereof and the rights and obligations of the
parties hereunder, shall be construed in accordance with and governed by the
laws of the Commonwealth of Massachusetts. The Guarantor, to the extent that it
may lawfully do so, hereby consents to the jurisdiction of the courts of the
Commonwealth of Massachusetts and the United States District Court for the
District of Massachusetts, as well as to the jurisdiction of all courts to which
an appeal may be taken from such courts, for the purpose of any suit, action or
other proceeding arising out of any of its
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obligations hereunder or with respect to the transactions contemplated hereby,
and expressly waives any and all objections it may have as to venue in any such
courts. The Guarantor further agrees that a summons and complaint commencing an
action or proceeding in any of such courts shall be properly served and shall
confer personal jurisdiction if served personally or by certified mail to it at
its address provided in Section 7 of this Guaranty Agreement or as otherwise
provided under the laws of the Commonwealth of Massachusetts. The Guarantor
irrevocably waives all right to a trial by jury in any suit, action or other
proceeding instituted by or against it in respect of its obligations hereunder
or the transactions contemplated hereby.
IN WITNESS WHEREOF, the parties have executed this Guaranty Agreement as a
sealed instrument as of the date first above written.
SEPRACOR INC.
By /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President
Finance and Administration
The foregoing Guaranty
Agreement is hereby
accepted:
FLEET NATIONAL BANK
By /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: Vice President
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