Exhibit 10.3
SDK GUARANTY AGREEMENT CONFIDENTIAL
GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT, dated as of September 1, 1992, by and between SHOWA
DENKO K.K. (the "Guarantor"), a corporation organized and existing under the
laws of Japan, and LHP Holdings Corp. (the "Beneficiary"), a corporation
organized and existing under the laws of California.
WITNESSETH
WHEREAS the Beneficiary and SHOWA DENKO AMERICA, INC. ("SDA") have entered into
a written agreement dated as of the date of this Guaranty Agreement providing
(among other things) that SDA agrees to indemnify the Beneficiary from and
against certain obligations in respect of Claims relating to L-tryptophan
manufactured by the Guarantor, all to the extent specified and pursuant to the
terms and conditions contained in that agreement (that agreement, as the same
may be amended, modified or supplemented from time to time, referred to herein
as the "Agreement"), and
WHEREAS it is a requirement of the Agreement that SDA deliver the guaranty of
SDA's obligations under the Agreement to the Beneficiary contained in this
Guaranty Agreement;
NOW, THEREFORE, the Guarantor and the Beneficiary agree as follows:
1. GUARANTY. (a) The Guarantor unconditionally and irrevocably guarantees (as
primary obligor and not merely as surety) payment in full as provided in the
Agreement of all amounts payable by SDA under the Agreement, as and when those
amounts become payable by SDA pursuant to the terms and conditions contained in
the Agreement. The Guarantor further unconditionally and irrevocably guarantees
the performance by SDA, as and when required pursuant to the terms and
conditions of the Agreement, of all obligations of SDA under the Agreement. The
Guaranty contained herein is made subject to all of the terms and conditions
contained in the Agreement evidencing the obligations of SDA guaranteed hereby,
and nothing contained herein shall be deemed to amend or modify any of such
terms or conditions in any way.
(b) This is a continuing Guaranty and a guaranty of payment (not merely of
collection) and performance, and it shall remain in full force and effect until
the later to occur of (i) termination of the Agreement in accordance with its
terms and (ii) such time as all amounts payable by SDA under the Agreement have
been validly, finally and irrevocably
paid in full. This Guaranty shall not be affected in any way by the absence of
any action to obtain those amounts from SDA. With respect to this Guaranty, the
Guarantor waives all requirements as to presentment, demand for payment, demand
for performance, notice of default, protest or notice of any kind regarding SDA
or the breach by SDA of its obligations under the Agreement.
(c) This Guaranty shall not be affected by the occurrence of any circumstance
(other than complete, irrevocable payment) that might otherwise constitute a
legal or equitable discharge or defense of a surety or guarantor. If SDA merges
or consolidates with or into another entity, loses its separate legal identity
or ceases to exist, or files any petition for bankruptcy or any other insolvency
proceeding, the Guarantor shall nonetheless continue to be liable for the
payment of all amounts payable by SDA under the Agreement and for the
performance of all obligations of SDA under the Agreement.
(d) This Guaranty shall remain in full force and effect or shall be reinstated
(as the case may be) if at any time any payment by SDA made pursuant to the
Agreement, in whole or in part, is rescinded or must otherwise be returned by
the Beneficiary upon the insolvency, bankruptcy or reorganization of SDA or
otherwise, all to the same extent as if that payment had not been made.
(e) So long as any amount payable by SDA under the Agreement is overdue and
unpaid, the Guarantor shall not (i) exercise any right of subrogation or
indemnity, or similar right or remedy, against SDA or any of its assets or
property in respect of any amount paid by the Guarantor under this Guaranty or
(ii) file a proof of claim in competition with the Beneficiary for any amount
owing to the Guarantor by SDA on any account whatsoever in the event of the
bankruptcy, insolvency or liquidation of SDA.
2. CONTRACTUAL CURRENCY. All payments by the Guarantor under this Guaranty
shall be made in United States currency.
3. NO CONFLICT WITH LAW; REMEDIES NOT EXCLUSIVE. (a) Neither the execution or
delivery of this Guaranty Agreement by the Guarantor, nor the performance by the
Guarantor of its obligations hereunder, conflicts with or will result in the
breach of any applicable Japanese law, regulation or statute.
(b) The rights and remedies set forth in the Agreement are in addition to and
not exclusive of any rights and remedies available to the Beneficiary by law in
respect of this Guaranty.
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4. AMENDMENTS, WAIVERS. All amendments, waivers and modifications of or to
any provision of this Guaranty and any consent to departure by the Guarantor
from the terms hereof shall be in writing and signed and delivered by the
Beneficiary and, in the case of any such amendment or modification, by the
Guarantor, and shall not otherwise be effective. Any such waiver or consent
shall be effective only in the specific instance and for the purpose for which
it is given.
5. BINDING EFFECT. This Guaranty shall be binding on the Guarantor and its
successors and assigns. However, the Guarantor shall not transfer any of its
obligations hereunder without the prior written consent of the Beneficiary, and
any purported transfer without that consent shall be void. This Guaranty shall
inure to the benefit of the Beneficiary and its successors and assigns.
6. GOVERNING LAW; JURISDICTION; WAIVER OF JURY TRIAL. (a) This Guaranty shall
be governed by and construed and interpreted in accordance with the law of the
State of New York.
(b) The Guarantor irrevocably submits to the non-exclusive jurisdiction of the
courts of the State of New York and of the United States sitting in the Borough
of Manhattan in connection with any action or proceeding by the Beneficiary to
enforce the Guarantor's obligations under this Guaranty (each, a "Proceeding")
and irrevocably appoints CT CORPORATION SYSTEM, 0000 Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 as its agent for the sole purpose of receiving service of process or
other legal summons in connection with any Proceeding brought in any such court.
So long as the Guarantor has any obligation under this Guaranty, it will
maintain a duly appointed agent in New York City for the service of such process
or summons and, if it fails to maintain such an agent, any such process or
summons may be served on it by mailing a copy thereof to the Guarantor at its
address set forth, and in the manner provided, in Paragraph 7 hereof, with such
service deemed effective on the fifteenth day after the date of such mailing.
(c) The Guarantor irrevocably waives, to the fullest extent permitted by
applicable law, any defense or objection it may now or hereafter have to the
laying of venue of any Proceeding brought in the courts of the State of New York
or of the United States sitting in the Borough of Manhattan (a Proceeding
brought in any such court, a "New York Proceeding") and any claim that any
Proceeding brought in any such court has been brought in an inconvenient forum.
Nothing herein contained shall preclude the Beneficiary from bringing an action
or proceeding to enforce the Guarantor's
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obligations under this Guaranty in any other place where jurisdiction over the
Guarantor properly may be obtained.
(d) The Guarantor irrevocably agrees that it will not raise as a defense or
set-off in any New York Proceeding an allegation that the Beneficiary is
indebted to the Guarantor or SDA, or interpose a counter-claim in a New York
Proceeding seeking recovery of any such alleged indebtedness, unless that
indebtedness allegedly arose out of the same operative facts as form the basis
of the Beneficiary's claims in that New York Proceeding.
(e) The Guarantor and the Beneficiary each irrevocably waives trial by jury in
any New York Proceeding.
(f) The Guarantor and the Beneficiary each irrevocably agree that the party
prevailing in any New York Proceeding shall be entitled to be awarded therein an
amount equal to the reasonable fees and expenses of its attorneys incurred in
connection with that Proceeding.
7. ENFORCEMENT IN JAPAN. The Guarantor solemnly covenants that in the event
that a final, non-appealable judgment is rendered against it in a New York
Proceeding (any such final, non-appealable judgment, a "Judgment"), the
Guarantor (i) will not raise any defense to the enforcement of such Judgment in
Japan which would, or seeks to, require relitigation of that New York
Proceeding; and (ii) will do everything within its power to assure that such
Judgment becomes enforceable in Japan as soon as is possible under Japanese law
after the time enforcement of such Judgment is sought in that country.
8. NOTICES. All notices, requests, demands and other communications to the
Guarantor or the Beneficiary which are required or permitted hereunder shall be
made in writing and shall be deemed properly given hereunder when provided by
confirmed facsimile transmission, with a separate confirming copy sent by United
States registered mail, return receipt requested, with sufficient postage
prepaid thereon to carry it to its addressed destination, as follows:
SHOWA DENKO K.K.
00-0, Xxxxx Xxxxxx 0-xxxxx
Xxxxxx-xx, Xxxxx 000
Xxxxx
Attention: President
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Facsimile: 011-81-3-5470-3709
with a copy to:
CLEARY, GOTTLIEB, XXXXX & XXXXXXXX
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Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxxxx, Esq.
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Facsimile: 212-225-3999
If to the Beneficiary:
LHP Holdings Corp.
0000 X. 000 Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx
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Facsimile: (000) 000-0000
with a copy to:
Ropers, Majeski, Kohn, Bentley, Xxxxxx & Xxxx
0000 Xxxxx Xxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
-----------------------------------
Facsimile: (000) 000-0000
The Guarantor and the Beneficiary each reserves the right to change its address
and/or facsimile number for the purposes set forth above by giving fifteen days'
prior written notice of such change to the other either at its address for the
giving of notices set forth in the Agreement or to such other address as the
party giving such notice shall have specified to the other party in the manner
set forth above.
9. HEADINGS. The section headings in this Guaranty are for convenience of
reference only and shall not affect the meaning or construction of any provision
hereof.
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IN WITNESS WHEREOF the Guarantor and the Beneficiary each has duly executed this
Guaranty Agreement as of the date first written above.
SHOWA DENKO K.K.
By: /s/ Daiya Miyoshi
----------------------
Daiya Miyoshi
Representative Director
and Executive Vice President
LHP HOLDINGS CORP.
By: /s/ Xxxx X. Xxxxxxxxx
----------------------
Xxxx X. Xxxxxxxxx
President
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