CONTINUING SECURED LIMITED GUARANTY
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FOR VALUABLE CONSIDERATION, the receipt of which is hereby
acknowledged, and to induce HEARTLAND BANK, a federal savings bank ("Lender") to
make loans and advance credit to THE FEMALE HEALTH COMPANY ("FHC" or
"Borrower"), a Wisconsin corporation, and in consideration of any such loan or
advance of credit, the signer hereof, ___________________, "Guarantor", dated
and effective as of May 18, 2001, unconditionally guarantees full payment when
due of all Liabilities (as hereinafter defined) of Borrower to Lender. This
shall be a continuing guaranty.
1. The term "Liabilities" or a "Liability" as used herein shall
include any and all indebtedness and obligations of Borrower to Lender,
including extensions, renewals or refundings thereof (and extensions, renewals
or refundings made after notice of termination or revocation hereof), whether
such be direct or indirect, liquidated or unliquidated, absolute or contingent,
joint or several, now existing or hereafter arising, due or to become due and
whether or not originally contracted with Lender, including interests acquired
by Lender through whole or partial assignment of an item which would have been a
Liability if created between Borrower and Lender. "Liabilities" or a
"Liability" shall also include all or any portion of any Liability of Borrower
to Lender which is assumed by any other person or entity with or without the
consent of Lender, and Guarantor hereby guarantees the repayment of any such
indebtedness or obligation so assumed by any such person or entity.
"Liabilities" or a "Liability" shall further include all costs incurred by
Xxxxxx in efforts to collect any Liability or to enforce the undertakings of
Guarantor hereunder, including expenses, reasonable attorneys' fees (whether or
not there is litigation), court costs and all costs in connection with any
proceedings under the United States Bankruptcy Code. Guarantor waives notice of
acceptance of this Guaranty, notice of extension, renewal, refunding of any
Liability and the incurrence of any existing Liability and any Liability which
has not yet actually accrued (the latter type of Liability being sometimes
hereinafter referred to as an "Inchoate Liability"). All Liabilities shall
conclusively be presumed to have been created or accepted by the Lender in
reliance on this Guaranty. Notwithstanding anything set forth herein to the
contrary, the undersigned's liability hereunder for Liabilities shall not exceed
the SUM OF (a) _____________________________ Dollars ($___________________) PLUS
(b) all costs and expenses, including without limitation, the reasonable
attorneys' fees and expenses paid or incurred by the Lender in efforts enforce
the undertakings of the undersigned hereunder.
2. This Guaranty is delivered in connection with that certain
Promissory Note in the original principal amount of $2,000,000.00, dated as of
even date herewith, by Borrower in favor of Lender (as amended, modified,
extended, restated or replaced from time to time, the "Note"), and (b) that
certain Loan Agreement, dated as of the date herewith, by and between Borrower
and Lender (as amended, modified, extended, restated or replaced from time to
time, the "Loan Agreement")). Capitalized terms used herein, but not defined
herein, shall have the meanings ascribed to such terms as set forth in the Loan
Agreement.
3. This is a continuing, secured, limited, absolute and
unconditional guaranty of payment and performance and not merely of collection,
and continues in full force and effect
until the Liabilities have been fully and indefeasibly paid in cash and the
Lender has no other commitment to extend credit or make advances to or for the
account of Borrower. Guarantor's liability with respect to the Liabilities is
primary, not secondary. Upon the occurrence and during the continuance of any
Event of Default, Lender may proceed directly against Guarantor without first
proceeding against Borrower, any other person or entity liable for the payment
or performance of the Liabilities, or any collateral or other security for the
Liabilities or for this Guaranty, including, but not limited to, the Warrant (as
hereinafter defined).
4. Guarantor waives notice of acceptance of this Guaranty, notice
of extension, renewal, refunding of any Liability and the incurrence of any
existing Liability and any Inchoate Liability. All Liabilities shall
conclusively be presumed to have been created or accepted by Lender in reliance
on this Guaranty.
5. Guarantor represents and warrants to Lender that: (a) he or she
or it has adequate means to obtain from Borrower on a continuing basis
information concerning the financial condition of Borrower, and Guarantor is not
relying on Lender to provide such information either now or in the future; (b)
the extension of credit by Lender pursuant to the Note constitutes an economic
benefit to Guarantor at least equal to the amount of its obligations hereunder;
(c) this Guaranty constitutes the legal, valid and binding obligation of
Guarantor, enforceable against Guarantor in accordance with its terms, except to
the extent that the enforceability thereof against Guarantor may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditor's rights generally or by equitable principles of general application;
(d) the execution of this Guaranty by Guarantor, and the performance by
Guarantor of its obligations under this Guaranty, will not violate or constitute
a default under any material agreement of Guarantor, or any material law, and
will not, except as expressly contemplated or permitted in this Guaranty, result
in any lien or security interest being imposed on any of Guarantor's property;
(e) there are no pending or threatened material proceedings involving Guarantor;
and (f) Guarantor is in compliance with all material laws. All representations,
warranties, and covenants of Guarantor contained herein survive the execution
and delivery of this Guaranty, and terminate only upon the full and indefeasible
payment of all of the Liabilities and when the Lender has no further obligation
to extend credit to or for the account of Borrower. Guarantor hereby waives all
errors and omissions in connection with the administration of the Liabilities by
Xxxxxx and any other act or omission of Lender that change the scope of
Guarantor's risk hereunder (except errors, acts or omissions in bad faith).
6. This Guaranty shall not supersede any earlier guaranty of
Guarantor in which Lender has an interest nor shall any later guaranty of
Guarantor in which Lender has an interest be construed to supersede this
Guaranty. The effect of any earlier or later guaranty shall be cumulative with
this Guaranty, and this shall be the case whether the interest of Lender in such
earlier or later guaranty derives from arrangements made directly with Guarantor
or indirectly by way of Lender being a transferee of all or part of obligations
of Borrower guaranteed by Guarantor.
7. The obligations of Guarantor hereunder shall apply to all
Liabilities, including Inchoate Liabilities, arising prior to notice in writing
from Guarantor that Guarantor will not be responsible for any further
Liabilities or notice from a Guarantor's personal
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representative that Xxxxxxxxx has died or been adjudicated incompetent. Any
such notice, to be effective, must be actually received by Xxxxxx.
Notwithstanding the giving of such notice, the obligations of Guarantor shall
continue in full force and effect as to all Liabilities then existing including
Inchoate Liabilities and to any Liabilities thereafter arising, to the extent
that Lender may be bound or permitted by contract or otherwise to create or
permit the creation of additional Liabilities including those which may or might
have been Inchoate Liabilities at the time such notice is given.
8. Guarantor waives notice of default by Borrower on any
Liability, and it shall not be a condition to the obligations of Guarantor
hereunder that Xxxxxx notify him, her or it of any such default.
9. It shall not be a condition to the obligations of Guarantor
hereunder that Xxxxxx pursue or preserve remedies against Borrower or any other
party primarily or secondarily liable on any Liability or that Lender enforce
its rights against any collateral for any Liability or for this Guaranty, and
Guarantor waives any requirement that Lender so proceed. Guarantor shall have
no right of subrogation and hereby waives all rights of Lender hereunder on
account of payment by any guarantor of a Liability until all of the Liabilities
are paid in full and waives the right to participate in any security now or
hereafter held by Xxxxxx; provided, however, that once all of the Liabilities
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are paid in full, Guarantor shall have rights of subrogation with respect to any
security for the Liabilities. Any obligation or liability owing from Borrower
to Guarantor or held by Guarantor shall be subordinated to payment of all
Liabilities and, if appropriate, shall be so marked with an appropriate legend.
10. All payments received from Guarantor shall be deemed to have
been made by Borrower, unless Lender is otherwise advised in writing by Borrower
or Guarantor.
11. Lender is authorized from time to time, without notice to or
consent of Guarantor (any requirement of such notice or consent being waived by
Guarantor) to renew, extend, refund or amend the terms, including changing the
interest rate, of any Liability or any agreement pursuant to which any Liability
is created or security therefor is held, in any manner to surrender, release,
realize upon or deal with collateral for the Liabilities, exercise or refrain
from exercising rights against Borrower or any other guarantor and to settle,
release or otherwise enter into agreements regarding the Liabilities with any
party primarily or secondarily liable on any Liability. Guarantor hereby
expressly waives any requirement of notice to or consent of Guarantor to any
other change in the Liabilities including a change in the organizational
structure or ownership of Borrower. Lender may apply any collateral for the
Liabilities in such order as it may elect and without any obligation to account
to Guarantor for the manner or order of application.
12. The obligations of Guarantor hereunder shall not be impaired
by failure on the part of Lender to realize upon, perfect any interest in or
protect any of the Liabilities or any security therefor, nor shall such
obligations be impaired by any impairment, modification, change, release or
limitation of any Liability, or any release of Borrower, resulting from the
operation of any present or future provision of the Revised Bankruptcy Act or
other similar statute, or from the decision of any court.
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13. Guarantor will deliver to Lender, within thirty (30) days
after the filing thereof, copies of all federal and state tax returns, together
with current personal financial statements of Guarantor in a form reasonably
acceptable to Lender. Guarantor represents and warrants that all of the
information contained in each such financial statement are true, correct and
accurate in all material respects. Guarantor further represents and warrants
that any and all liens and/or encumbrances on Guarantor's respective assets are
fully disclosed, reflected and described in said financial statements.
14. This Guaranty shall inure to the benefit of and may be
enforced by Xxxxxx, its successors and assigns and any party to whom all or any
part of a Liability may be sold, transferred, negotiated or assigned for all
such Liabilities. If all or part of a Liability is sold, transferred,
negotiated or assigned, Lender shall have the right to enforce this Guaranty as
to the remainder.
15. Actions to enforce this Guaranty may be brought successively
against Guarantor or one or more of the other guarantors jointly or severally
and against less than all without impairing or affecting the rights of Lender
against the others. No release, with or without consideration, nor any action
or inaction by Xxxxxx as regards less than all such guarantors shall impair the
rights of Lender against the others. However, all guarantors, including
Guarantor, agree among themselves that no release, compounding or settlement
shall impair their rights as among themselves.
16. Guarantor understands and agrees that this Guaranty will,
unless expressly otherwise agreed, be secured by all collateral previously, now
or hereafter pledged to Lender by Guarantor and any security interest
previously, now or hereafter granted Lender by Guarantor whether such pledge or
grant of security interest specifically relates to the Liabilities or not.
17. Guarantor understands and agrees that in the event any payment
made by or on behalf of Borrower respecting any Liability or any portion of any
such payment shall at any time be repaid by the recipient in compliance with an
order (whether or not final) by a court of competent jurisdiction pursuant to
any provision of the Revised Bankruptcy Act as now existing or hereafter amended
or applicable state law, the Liabilities shall not be deemed to have been paid
to the extent of the repayment so made, the obligations of Guarantor shall
continue in full force and effect and such recipient, whether or not that be
Lender, will continue to be entitled to the full benefits of this Guaranty,
notwithstanding any termination of this Guaranty or the cancellation of any note
or other agreement evidencing the Liabilities.
18. Guarantor's liability under this Guaranty will not be reduced,
extinguished, discharged or released by, and Guarantor is not entitled to raise
as a defense, and Guarantor waives notice of: any invalidity, irregularity or
unenforceability of any Liability; any existing or future offset, claim,
counterclaim or defense of Borrower, Guarantor or any other party against Lender
or against payment of the Liabilities (whether such offset, claim, counterclaim
or defense arises in connection with the Liabilities or the transactions
creating the Liabilities or otherwise); waivers of defaults or Events of Default
or other waivers under the Loan Agreement, Note or the Pledge Agreement; release
of or non-perfection with respect to any or all of the security for the
Liabilities; taking or accepting of any other security or collateral for,
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or guaranty of, any or all of the Liabilities; and other acts or omissions
which, in the absence of this Section 18 would operate so as to reduce,
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extinguish, discharge or release Guarantor's liability under this Guaranty
(except for payment by Guarantor of the Liabilities or the full and indefeasible
payment of the Liabilities and when the Lender has no further obligation to
extend credit to or for the account of Borrower). Guarantor understands and
agrees that this Guaranty remains fully enforceable notwithstanding any defenses
that Borrower may assert on the Liabilities, or on any Liability, including but
not limited to failure of consideration, breach of warranty, statute of frauds,
statute of limitations, accord and satisfaction and usury.
19. Guarantor hereby waives (i) diligence, presentment, demand for
payment, protest or notice, whether of nonpayment, dishonor, protest or
otherwise, (ii) any and all claims, counterclaims or defenses based upon,
related to or arising out of (a) any matter referred to in Section 18 of this
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Guaranty, (b) any issue as to whether any sale or other disposition of any
collateral or other security for the Liabilities was conducted in a commercially
reasonable fashion, (c) any election of remedies by Xxxxxx, and (d) a theory
that this Guaranty should be strictly construed against Lender, and (iii) all
other defenses under applicable law that would, but for this clause (iii), be
available to Guarantor as a defense against, or a reduction, extinguishment,
discharge or release of its obligations under, this Guaranty (other than the
full and indefeasible payment of the Liabilities and when the Lender has no
further obligation to extend credit to or for the account of Borrower).
20. Guarantor agrees that, while any of the Liabilities are
outstanding, Guarantor will not, without Xxxxxx's prior written consent (which
will not be unreasonably withheld or delayed), transfer a material portion of
Guarantor's assets, including transfers into a trust. In the event Guarantor
desires to transfer any of its assets into a trust, the trust documents shall be
delivered to Lender for its review and approval. In the event the trust
documents are approved by Xxxxxx and Lender consents to such transfer, Xxxxxx's
consent thereto shall be conditioned upon such trust executing a guaranty of the
Liabilities in favor of Xxxxxx. Guarantor acknowledges that Lender is relying
on Guarantor's assets and the Pledge Agreement to support the ability of
Guarantor to pay the Liabilities and that, consequently, any such transfer
without Xxxxxx's prior written consent while any of the Liabilities are
outstanding would be a conveyance of assets to the trust intended to hinder,
delay or defraud Guarantor's creditors generally and Lender specifically.
21. This Guaranty is secured by a certain Pledge Agreement, dated
as of even date herewith (the "Pledge Agreement"), wherein Guarantor has granted
Lender a lien and security interest in Guarantor's warrant for the purchase of
shares in FHC (the "Warrants"), the corresponding shares of FHC stock in the
event the Warrants are exercised, and the associated Registration Rights
Agreement. As further security for this Guaranty, Guarantor grants Lender a
security interest in any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by Xxxxxx to or for the credit or the account of Guarantor (collectively, the
"Deposits"). Upon the occurrence and during the continuance of any event of
default under any instruments evidencing the Liabilities, Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply the Deposits against any and all of the Liabilities
irrespective of whether or not Lender shall have made any demand on Borrower and
although such obligations may be contingent or unmatured.
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22. With the exception of any earlier or later guaranty agreement
of Guarantor referred to in Section 6 hereof, Guarantor warrants, represents and
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agrees that this Guaranty, together with any exhibits or schedules incorporated
herein, fully incorporates the entire understanding and agreement between the
parties concerning the subject matter hereof and supersedes any and all prior
understandings and agreements, whether oral or written, between the parties
respecting the subject matter hereof. No course of dealing, course of
performance or trade usage, and no parol evidence of any nature, shall be used
to supplement or modify any of the terms hereof, nor are there any conditions to
the full effectiveness of this Guaranty.
23. WITHOUT LIMITING THE RIGHT OF THE LENDER TO BRING ANY ACTION
OR PROCEEDING AGAINST GUARANTOR OR AGAINST PROPERTY OF GUARANTOR ARISING OUT OF
OR RELATING TO THIS GUARANTY OR GUARANTOR'S LIABILITY HEREUNDER (AN "ACTION") IN
THE COURTS OF OTHER JURISDICTIONS, GUARANTOR HEREBY IRREVOCABLY SUBMITS TO AND
ACCEPTS THE EXCLUSIVE JURISDICTION OF ANY FEDERAL COURT SITTING IN MISSOURI OR
ANY MISSOURI STATE COURT SITTING IN THE CITY OR COUNTY OF ST. LOUIS, MISSOURI,
AND XXXXXXXXX HEREBY IRREVOCABLY AGREES THAT ANY ACTION MAY BE HEARD AND
DETERMINED IN SUCH MISSOURI STATE COURT OR IN SUCH FEDERAL COURT. GUARANTOR
HEREBY IRREVOCABLY WAIVES AND DISCLAIMS, TO THE FULLEST EXTENT THAT SUCH
GUARANTOR MAY EFFECTIVELY DO SO, ANY DEFENSE OR OBJECTION (INCLUDING, WITHOUT
LIMITATION, ANY DEFENSE OR OBJECTION TO VENUE BASED ON THE GROUNDS OF FORUM NON
CONVENIENS) WHICH SUCH GUARANTOR MAY NOW OR HEREAFTER HAVE TO THE MAINTENANCE OF
AN ACTION IN ANY SUCH JURISDICTION. NOTWITHSTANDING THE FOREGOING: (I) LENDER
HAS THE RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST GUARANTOR OR, HIS, HER,
ITS OR THEIR PROPERTY IN ANY COURT OF ANY OTHER JURISDICTION LENDER DEEMS
NECESSARY OR APPROPRIATE IN ORDER TO REALIZE ON ANY COLLATERAL, REAL ESTATE, THE
PLEDGE AGREEMENT OR OTHER SECURITY FOR THE LIABILITIES, AND (II) EACH OF THE
PARTIES HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THE COURTS DESCRIBED IN THE
IMMEDIATELY PRECEDING SENTENCE MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE
THOSE JURISDICTIONS. GUARANTOR HEREBY IRREVOCABLY AGREES THAT THE SUMMONS AND
COMPLAINT OR ANY OTHER PROCESS IN ANY ACTION IN ANY SUCH JURISDICTION MAY BE
SERVED BY MAILING (USING CERTIFIED OR REGISTERED MAIL, POSTAGE PREPAID) TO THE
OFFICE OR RESIDENCE ADDRESS OF SUCH GUARANTOR SET FORTH BELOW OR BY HAND
DELIVERY TO A PERSON OF SUITABLE AGE AND DISCRETION AT SUCH ADDRESS. SUCH
SERVICE WILL BE COMPLETE ON THE DATE SUCH PROCESS IS SO MAILED OR DELIVERED, AND
GUARANTOR SHALL HAVE THIRTY DAYS FROM SUCH COMPLETION OF SERVICE IN WHICH TO
RESPOND IN THE MANNER PROVIDED BY LAW. GUARANTOR MAY ALSO BE SERVED IN ANY
OTHER MANNER PERMITTED BY LAW, IN WHICH EVENT GUARANTOR'S TIME TO RESPOND SHALL
BE THE TIME PROVIDED BY LAW.
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24. GUARANTOR AND THE LENDER HEREBY EXPRESSLY AND IRREVOCABLY
WAIVE AND DISCLAIM ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY LIABILITY UNDER THIS GUARANTY.
25. The word "Guarantor" as used herein refers to the undersigned,
his, her, its or their respective heirs, legal representatives, successors and
assigns and shall be read in the singular when this Guaranty is executed by only
one Guarantor or where the context otherwise requires.
26. In the event there is more than one Guarantor hereunder, this
Guaranty may be executed in several counterparts, each of which shall be deemed
an original but all of which shall constitute one and the same instrument. In
addition, this Guaranty may contain more than one counterpart of the signature
pages and this Guaranty may be executed by the affixing of the signatures of
each Guarantor to one of such counterpart signature pages, all of such
counterpart signature pages to be read as though one, and they shall have the
same force and effect as though each Guarantor had signed the same signature
page. For purposes of this Guaranty, a document (or signature page thereto)
signed and transmitted by Facsimile machine or telecopier is to be treated as an
original document.
27. All notices, consents, requests and demands to or upon the
respective parties hereto must be in writing, and will be deemed to have been
given or made when delivered in person to those persons listed on the signature
pages hereof or when deposited in the United States mail, postage prepaid, or
the overnight courier services, when delivered to the overnight courier service,
or in the case of telex or telecopy notice, when sent, verification received, in
each case addressed as set forth on the signature pages hereof, or to such other
address as either party may designate by notice to the other in accordance with
the terms of this Section. No notice given to or demand made on Guarantor by
Lender entitles Guarantor to notice or demand in any other instance.
28. Each of the rights and remedies of Lender under this Guaranty
is in addition to all of its other rights and remedies under applicable law, and
nothing in this Guaranty may be construed as limiting any such rights or
remedies.
29. Any provision of this Guaranty which is prohibited,
unenforceable or not authorized in any jurisdiction is, as to such jurisdiction,
ineffective to the extent of such prohibition, unenforceability or
nonauthorization without invalidating the remaining provisions hereof or
affecting the validity, enforceability or legality of such provision in any
other jurisdiction unless the ineffectiveness of such provision would result in
such a material change as to cause completion of the transactions contemplated
hereby to be unreasonable.
30. This Guaranty is to be governed by and construed and
interpreted in accordance with the internal Laws of the State of Missouri
applicable to contracts made and to be performed wholly within such state,
without regard to choice or conflicts of law principles.
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31. Guarantor, by executing this Guaranty, acknowledges receipt of
a copy of this Guaranty and that said Guarantor has had an opportunity to review
the terms and conditions hereof.
32. In addition to the waivers set forth above, if now or
hereafter Borrower is or shall become insolvent and the Liabilities shall not at
all times until paid be fully secured by collateral pledged by Borrower,
Guarantor hereby waives and relinquishes in favor of Xxxxxx and Borrower and
their respective successors and assigns any claim or right to payment Guarantor
may now have or hereafter have or acquire against Borrower, by subrogation or
otherwise, so that at no time shall Guarantor be or become a "creditor" of
Borrower within the meaning of 11 U.S.C. Section 547(b), or any successor
provision of the Federal Bankruptcy Code.
THIS GUARANTY CONTAINS A BINDING JURY WAIVER PROVISION.
IN WITNESS WHEREOF, this Guaranty has been duly executed as of even
date herewith.
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Print Name: ____________________
WITNESS:
____________________________
Print Name: __________________
Guarantor's Address:
_______________________
_______________________
_______________________
_______________________ (telephone no.)
_______________________ (facsimile no.)
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STATE OF ____________ )
) SS
COUNTY OF _____________ )
On this ____ day of _______________, 2001, before me personally appeared
______________________, to me known to be the persons described in and who
executed the foregoing instrument, and acknowledged that he executed the same as
his/her free act and deed.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my official
seal in the County and State aforesaid, the day and year first above written.
_______________________________________
Notary Public
My term expires:
_________________________
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