Exhibit 10.17
GUARANTY
(Omrix Biopharmaceuticals Ltd.)
For and in consideration of the loan by HERCULES TECHNOLOGY GROWTH CAPITAL,
INC. ("Lender") to OMRIX BIOPHARMACEUTICALS, INC., a Delaware corporation
("Borrower"), which loan is made pursuant to a Senior Loan and Security
Agreement between Borrower and Lender dated as of March 31,, 2005 (the
"Agreement"), and acknowledging that Lender would not enter into the Agreement
without the benefit of this Guaranty, the undersigned OMRIX BIOPHARMACEUTICALS
LTD., an Israeli private company registered with the Israeli Registrar of
Companies under number 00-000000-0 ("Guarantor") hereby irrevocably guarantees
the prompt and complete payment of all amounts that Borrower owes to Lender
pursuant to the Loan Documents, as amended from time to time (collectively
referred to as the "Agreements"), in strict accordance with their respective
terms. All terms used without definition in this Guaranty shall have the meaning
assigned to them in the Agreement.
1. If Borrower does not pay any amount due to Lender in strict accordance
with the Agreement despite a notice of such failure provided to it by Lender,
and only if such failure constitutes an Event of Default under the Agreerment,
then and only then Guarantor shall, immediately upon receipt of Lender's written
request, pay all amounts due thereunder (including, without limitation, all
principal, interest, and fees).
2. If there is more than one guarantor, the obligations hereunder are joint
and several, and whether or not there is more than one guarantor, the
obligations hereunder are independent of the obligations of Borrower and any
other person or entity, and a separate action or actions may be brought and
prosecuted against Guarantor whether action is brought against Borrower or
whether Borrower be joined in any such action or actions.
3. Guarantor authorizes Lender, without notice or demand and without
affecting its liability hereunder, from time to time to (a) renew, extend, or
otherwise change the terms of the Agreements or any part thereof, pursuant to
the provisions in the Agreements related to a change of their terms and subject
to the consent of the Borrower; (b) take and hold security for the payment of
this Guaranty or the Agreements, and exchange, enforce, waive and release any
such security, pursuant to the terms of the Agreements; and (c) apply such
security and direct the order or manner of sale thereof as Lender in its sole
discretion may determine, pursuant to the terms of the Agreements; all subject
to the terms and conditions detailed hererin.
4. Guarantor waives any right to require Lender to (a) proceed against
Borrower, any guarantor or any other person; (b) proceed against or exhaust any
security held from Borrower; or (c) pursue any other remedy in Lender's power
whatsoever. Lender may, at its election, exercise or decline or fail to exercise
any right or remedy it may have against Borrower or any security held by Lender,
including without limitation the right to foreclose upon any such security by
judicial or nonjudicial sale, without affecting or impairing in any way the
liability of Guarantor hereunder. Until all of the amounts that Borrower owes to
Lender have been paid in full, Guarantor shall have no right of subrogation or
reimbursement, contribution or other rights against Borrower, and Guarantor
waives any right to enforce any remedy that Lender now has or may hereafter have
against Borrower. Except as explicitly provided herein, Guarantor waives all
presentments, demands for performance, notices of nonperformance, protests,
notices of protest, notices of dishonor, and notices of acceptance of this
Guaranty and of the existence, creation, or incurring of new or additional
indebtedness. Guarantor assumes the responsibility for being and keeping itself
informed of the financial condition of Borrower and of all other circumstances
bearing upon the risk of nonpayment of any indebtedness or nonperformance of any
obligation of Borrower, and agrees that absent a request for particular
information by Guarantor, Lender shall not have any duty to advise Guarantor of
information known to Lender regarding such condition or any such circumstances.
Guarantor hereby waives any rights and benefits to which Guarantor is entitled
under the Guarantee Law 5727 - 1967 (as this law may be amended from time to
time) and Guarantor shall not be entitled to assert that any of Guarantor's
obligations or that any of Lender's rights hereunder are void based on that law.
5. Guarantor acknowledges that, to the extent Guarantor has or may have
certain rights of subrogation or reimbursement against Borrower for claims
arising out of this Guaranty, those rights may be impaired or destroyed if
Lender elects to proceed against any real property security of Borrower by
non-judicial foreclosure. That impairment or destruction could, under certain
judicial cases and based on equitable principles of estoppel, give rise to a
defense by Guarantor against its obligations under this Guaranty.
6. If Borrower becomes insolvent or is adjudicated bankrupt or files a
petition for reorganization, arrangement, composition or similar relief under
any present or future provision of the Israeli Companies Ordinance (New
Version), 1983 or the Israeli Companies Law, 1999 or pursuant to any similar
Israeli law or foreign law of
another jurisdiction, or if such a petition is filed against Borrower, and in
any such proceeding some or all of any indebtedness or obligations under the
Agreements are terminated or rejected or any obligation of Borrower is modified
or abrogated, or if Borrower's obligations are otherwise avoided for any reason,
Guarantor agrees that Guarantor's liability hereunder shall not thereby be
affected or modified and such liability shall continue in full force and effect
as if no such action or proceeding had occurred. This Guaranty shall continue to
be effective or be reinstated, as the case may be, if any payment must be and is
returned by Lender to the Borrower or any other guarantor, except the Guarantor,
upon the insolvency, bankruptcy or reorganization of Borrower, or any other
guarantor, except the Guarantor, or otherwise, as though such payment had not
been made.
7. Guarantor agrees to pay reasonable attorneys' fees and all other costs
and expenses, which may be incurred by Lender in the enforcement of this
Guaranty. No terms or provisions of this Guaranty may be changed, waived,
revoked or amended without Lender's prior written consent. Should any provision
of this Guaranty be determined by a court of competent jurisdiction to be
unenforceable, all of the other provisions shall remain effective. This Guaranty
and the Agreement, embodies the entire agreement among the parties hereto with
respect to the matters set forth herein, and supersedes all prior agreements
among the parties with respect to the matters set forth herein. No course of
prior dealing among the parties, no usage of trade, and no parol or extrinsic
evidence of any nature shall be used to supplement, modify or vary any of the
terms hereof. There are no conditions to the full effectiveness of this
Guaranty. Lender may assign this Guaranty without in any way affecting
Guarantor's liability under it, but may only assign this Guaranty to the same
party, and at the same time, it assigns the Agreement pursuant to the terms
thereof. This Guaranty shall inure to the benefit of Lender and its successors
and permitted assigns. This Guaranty is in addition to the guaranties of any
other guarantors and any and all other guaranties of Borrower's indebtedness or
liabilities to Lender.
Guarantor represents and warrants to Lender that (i) Guarantor has taken all
necessary and appropriate action to authorize the execution, delivery and
performance of this Guaranty, (ii) execution, delivery and performance of this
Guaranty do not conflict with or result in a breach of or constitute a default
under Guarantor's Memorandum of Association, Articles of Association or other
organizational documents or agreements to which it is party or by which it is
bound, (iii) neither the execution nor delivery of this Guaranty, nor the
performance by the Guarantor of any of its obligations hereunder will contravene
or constitute a default under any provision contained in any law, rule or
regulation or any treaty by which of Israel is bound, or any decree or
injunction of any court or any other applicable governmental body or entity, and
(iv) this Guaranty constitutes a valid and binding obligation, enforceable
against Guarantor in accordance with its terms.
8. This Guaranty shall be governed by the laws of the State Israel, without
regard to conflicts of laws principles. Guarantor and Lender hereby submits to
the exclusive jurisdiction of the courts located in Tel Aviv, Israel.
9. All payments made by Guarantor hereunder will be made free and clear of,
and without deduction or withholding for, any present or future taxes, levies,
imposts, duties, fees, assessments or other charges of whatever nature now or
hereafter imposed by any governmental authority or by any political subdivision
or taxing authority thereof or therein with respect to such payments (but
excluding any tax imposed on or measured by the income or profits of the Lender)
and all interest, penalties or similar liabilities with respect thereto (all
such non-excluded taxes, levies, imposts, duties, fees, assessments or other
charges being referred to collectively as "Taxes"). If any Taxes are so levied
or imposed, Guarantor agrees to pay the full amount of such Taxes, and such
additional amounts as may be necessary so that every payment of all amounts due
under this Guaranty, after withholding or deduction for or on account of any
Taxes, will not be less than the amount provided for herein.
10. To secure performance of this Guaranty, Guarantor agrees and undertakes
to grant Lender within twenty one (21) days from the date hereof, pursuant to
and in accordance with Section 3.5 of the Agreement and the letter of consent
from Israel Discount Bank attached hereto as Exhibit A (the "Discount Bank
Consent"), a second ranking security interest by means of a second ranking
floating charge on certain of the Israeli Assets (the "Floating Charge") as set
forth in Exhibit B (the "Israeli Collateral"'), which Floating Charge shall be
subject to (a) the terms of the Discount Bank Consent, which requires, without
limitation, Israel Discount Bank's prior consent to the exercise by the Lender
of the Floating Charge, and (b) the provisions of Sections 3.1, 3.2, 3.3, 3.4,
3.5, 7.6, and 7.16 of the Agreement, which will apply mutatis mutandis.
Notwithstanding the foregoing, the Floating Charge will not apply to, and the
Israeli Assets will not include (i) any intellectual property, (ii) any of the
Guarantor's assets and rights, which are subject to Existing Liens of the
Guarantor (e.g., Liens granted to MDA and Bank Hapoalim),
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except the assets that are subject SOLELY to the Lien in favor of Israel
Discount Bank and, (iii) any other assets excluded under Section 3.5 of the
Agreement. (For clarity purposes, any asset that falls under the Discount Lien
and falls also under a Lien granted to MDA and/or to Bank Hapoalim, shall NOT be
subject to the Floating Charge.)
11. Guarantor shall execute and deliver such documents, as Lender
reasonably deems necessary to create, perfect and continue the Floating Charge.
Within twenty-one (21) days of the date hereof, Guarantor shall file this
Guaranty, with the Israeli Registrar of Companies and provide Lender with forms
for registering the Floating Charge stamped to indicate filing with the Israeli
Registrar of Companies in a form to be agreed upon and a certificate of
registration evidencing such filings.
12. Notwithstanding anything stated to the contrary contained in this
Guaranty and the Loan Documents, the Borrower's and the Guarantors' total and
maximum liability toward Lender for any breach of this Agreement and the Loan
Documents, any guaranty of the obligations under this Guaranty and the Loan
Documents executed by any Person other than Borrower, the covenants or in any
case of an Event of Default or otherwise under all such agreements (but
expressly excluding from this limit any liability in respect of the Warrant
Agreement) shall be limited to the then current outstanding unpaid Loan amount
including all unpaid interest accrued thereon plus any expenses due under
Section 12.15 of the Agreement plus any amount due on account of Section 6.3 of
the Agreement.
13. Notwithstanding anything to the contrary stated herein (a) Lender shall
only make a claim or exercise its rights under this Guaranty upon the occurrence
of an Event of Default under the Agreement, and (b) the Guarantor shall be
entitled to the same rights of Borrower under the Loan Documents to defend and
protect itself against any claim made by Lender pursuant to the Guaranty and the
Loan Documents.
IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty as
of_______, 2005.
OMRIX BIOPHARMACEUTICALS LTD.
Signature: /s/ Xxxxxxx Xxxxxxxxx
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Print Name: Xxxxxxx Xxxxxxxxx
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Title: CFO
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Accepted and Agreed:
HERCULES TECHNOLOGY GROWTH CAPITAL,
INC.
Signature: /s/ Xxxxx Xxxxxx
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Print Name: Xxxxx Xxxxxx
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Title: Chief Legal Officer
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