GUARANTY AND SURETYSHIP AGREEMENT
Exhibit 10.4
THIS GUARANTY AND SURETYSHIP AGREEMENT (hereafter, the “Guaranty”) is made as of October 20,
2010, by UNILIFE CORPORATION, a Delaware corporation (hereafter the “Guarantor”) to and for the
benefit of METRO BANK, a Pennsylvania banking corporation, with offices at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000 (hereafter the “Lender”), with respect to the obligations of
UNILIFE CROSS FARM LLC, a Delaware Limited Liability Company, (the “Borrower”).
WHEREAS, the Borrower has requested the Lender provide certain credit accommodations to or for
the benefit of the Borrower. The Lender has agreed to provide the requested credit accommodations
to the Borrower, but only if the Guarantor gives the guaranty provided in this Guaranty. The
Guarantor is willing to provide this Guaranty so as to induce the Lender to provide, or continue to
provide, the requested credit accommodations to the Borrower.
NOW, THEREFORE, in consideration of these premises and other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Guarantor gives the following
guaranty and indemnification to and for the benefit of the Lender.
1. The Guaranty. The Guarantor guarantees to the Lender and becomes surety to the
Lender for: (a) payment of any and all sums now or hereafter due and owing to the Lender by the
Borrower as a result of or in connection with any and all existing or future indebtedness,
liability or obligation of every kind, nature, type, and variety owed by the Borrower to the Lender
from time to time, as a result of or in connection with any credit accommodation, loan guaranty,
overdraft, or other agreement or transaction, whether direct or indirect, absolute or contingent,
primary or secondary, joint or several, unconditional or conditional, known or unknown, liquidated
or unliquidated, including all renewals, extensions, substitutions, and modifications thereof, no
matter when or how created, arising, evidenced or acquired, and whether or not presently
contemplated or anticipated and, including, but not limited to, all amounts of principal, interest,
penalties, reimbursements, advancements, escrows, collection expenses, and fees; and (b) the
timely, complete, continuous, and strict performance and observance by the Borrower of any and all
of the terms, covenants, agreements and conditions contained in any and all existing or future
documents, instruments, agreements, and writing of every kind, nature, type, and variety which
evidence, reflect, embody or give rise to any and all existing and future indebtedness,
liabilities, and obligations of any kind of the Borrower to the Lender. As used in this Guaranty,
the term “Obligations” shall refer to the obligations of payment, performance and indemnification
which the Guarantor has undertaken and assumed pursuant to this Guaranty. This is a continuing
guaranty, and all liabilities to which it applies or may apply shall be conclusively deemed to have
been created in reliance hereon.
2. Nature of Guaranty; Acceleration. This Guaranty is irrevocable, absolute and
unconditional, and is a suretyship agreement and guaranty of payment, and not just a guaranty of
collection. The Lender shall be authorized to proceed against the Guarantor and enforce the terms
and conditions of this Guaranty upon the occurrence of any of the following events: (i) the
occurrence of a default or breach by the Borrower, after the expiration of any applicable notice
and cure periods, under any loans, guaranties or other transactions between the Lender and the
Borrower, or pursuant to any documents or agreements relating thereto; (ii) the failure of the
Borrower to satisfy, after the expiration of any applicable notice and cure periods, any duty or
obligation of any kind owed from time to time by the Borrower to the Lender; (iii) the violation by
the Guarantor of any term or condition set forth in this Guaranty; (iv) the death of the Guarantor
if the Guarantor is a natural person; (v) the filing of a petition or other pleading seeking the
entry of a decree or order for relief by a court having jurisdiction against or with respect to the
Guarantor or the Borrower, or any other guarantor of the Borrower’s obligations to the Lender, in
an involuntary case under the federal bankruptcy laws or any state insolvency or similar laws
ordering the liquidation of the Guarantor or the Borrower, or any other guarantor of the Borrower’s
obligations, or a reorganization of the Guarantor or the Guarantor’s business and affairs or of the
Borrower or the Borrower’s business and affairs, or of the business and affairs of any other
guarantor of the Borrower’s obligations, or the appointment of a receiver, liquidator, assignee,
custodian, trustee, or similar official for the Guarantor or the Guarantor’s property or for the
Borrower or any of the Borrower’s property or for any other guarantor of the Borrower’s obligations
or any other guarantor’s property and the failure to have such petition or other pleading denied or
dismissed within sixty (60) calendar days from the date of filing; (vi) the commencement by the
Guarantor or the Borrower or any other guarantor of the Borrower’s obligations, of a voluntary case
under the federal bankruptcy laws or any state insolvency or similar laws or the consent by the
Guarantor or the Borrower, or any other guarantor of the Borrower’s obligations, to the appointment
of or taking possession by a receiver, liquidator, assignee, trustee, custodian, or similar
official for the Guarantor of any of the Guarantor’s property or for the Borrower or any of the
Borrower’s property, or for any other guarantor or for any other guarantor’s property, or the
making by the Guarantor or by the Borrower, or any other guarantor of the Borrower’s obligations,
of an assignment for the benefit of creditors, or the failure by the Guarantor generally to pay the
Guarantor’s debts as the debts become due or the failure by the Borrower generally to pay the
Borrower’s debts as the debts become due or the failure by any other guarantor of the Borrower’s
obligations generally to pay its debts as those debts become due.
3. Representations and Warranties. The Guarantor hereby represents and warrants that:
a. The execution and delivery of this Guaranty will not violate any
contract, agreement, statute, regulation or order applicable to
Guarantor; and
b. There is no litigation, proceeding or investigation, pending or
threatened, which would have a material adverse affect on the ability
of Guarantor to perform under this Guaranty.
4. Amount of Liability. The liability of the undersigned hereunder shall be for all
indebtedness of Borrower to Lender in connection with two loans evidenced by Borrower’s Term Notes
of even date herewith in the original principal amounts of $14,250,000.00 and $3,750,000.00,
including all principal advanced to Borrower, interest, penalties and any and all other charges in
connection therewith.
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5. Lender Need Not Pursue Rights Against Borrower, Any Guarantor, or Collateral. The
Lender shall be under no obligation to pursue the Lender’s rights against the Borrower or any other
guarantor or any of the Borrower’s real or personal property or any other guarantor’s real or
personal property before pursuing the Lender’s rights against the Guarantor, and the Lender need
not foreclose or enforce any security interests or mortgage liens which may have been granted or
created in any of the Loan Documents before enforcing the terms of this Guaranty against the
Guarantor.
6. Accuracy of Representations. The Guarantor warrants that all of the Guarantor’s
representation and those of the Borrower in securing and/or maintaining any credit accommodation
from the Lender, and as stated in the Loan Documents are true and correct in all material respects
and not misleading, and the Guarantor agrees to indemnify the Lender from any loss or expense as a
result of any representation or statement of the Guarantor or of the Borrower being materially
false, incorrect, or misleading.
7. Rights of Lender to Deal With Borrower, Guarantor, and Collateral. The Guarantor
hereby assents to any and all terms and agreements between the Lender and the Borrower or between
the Lender and any person, who has guaranteed in whole or in part the payment or performance of the
Borrower’s obligations, and all amendments and modifications thereof, whether presently existing or
hereafter made and whether oral or in writing. The Lender may, without compromising, impairing or
diminishing, or in any way releasing the Guarantor from the Guarantor’s Obligations hereunder and
without notifying or obtaining the prior approval of the Guarantor at any time or from time to
time: (a) waive or excuse a default or defaults by the Borrower of any person who has guaranteed
in whole or in part any of the Borrower’s obligations or delay in the exercise by the Lender of any
or all of the Lender’s rights or remedies with respect to such default or defaults; (b) grant
extensions of time for payment or performance by the Borrower or any person who has guaranteed in
whole or in part any of the Borrower’s obligations; (c) release, substitute, exchange, surrender,
or add collateral of the Borrower or any person who has guaranteed in whole or in part any of the
Borrower’s obligations, or waive, release, or subordinate, in whole or in part, any lien or
security interest held by the Lender on any real or personal property securing payment or
performance, in whole or in part, of the Borrower’s obligations; (d) release the Borrower or any
person who has guaranteed in whole or in part any of the Borrower’s obligations; (e) apply payments
made by the Borrower, or by any person who has guaranteed, in whole or in part, any of the
Borrower’s obligations to any sums owed by the Borrower to the Lender, in any order, or manner, or
to any specific account or accounts, as the Lender may elect; (f) modify, change, renew, extend, or
amend, in any respect the Lender’s agreement or understanding with the Borrower or any person who
has guaranteed in whole or in part any of the Borrower’s obligations or any document, instrument,
or writing, embodying, or reflecting the same. Should the Lender obtain the prior consent or
approval, or give prior notice to Guarantor, with respect to any of the above actions, the Lender
will not be required to do so in future cases nor be considered to have altered the terms of this
Section in any way.
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8. Waivers by the Guarantor. The Guarantor hereby irrevocably and absolutely waives:
(a) any and all notices whatsoever with respect to this Guaranty or with respect to any of the
Borrower’s obligations to the Lender, including, but not limited to, notice of: (i) the Lender’s
acceptance hereof or the Lender’s intention to act, or the Lender’s action, in reliance hereon,
(ii) the
present existence or future incurring of any of the Borrower’s obligations or any terms or amounts
thereof or any change therein, (iii) any default by the Borrower or any surety, pledgor of
security, guarantor or other person who has guaranteed or secured in whole or in part the
Borrower’s obligations, (iv) the obtaining or release of any guaranty or surety agreement (in
addition to this Guaranty), pledge, assignment, or other security for any of the Borrower’s
obligations, (v) the sale, liquidation or disposition of any collateral securing the Borrower’s
obligations to the Lender; and (vi) protest or dishonor; (b) any objections as to the commercial
reasonableness of any acts taken or not taken by the Lender in the sale, liquidation, or
disposition of any collateral securing the Borrower’s obligations to the Lender; (c) presentment,
diligence, protest and demand for payment of any sum due from the Borrower or any person who has
guaranteed in whole or in part any of the Borrower’s obligations and protest of nonpayment; (d)
demand for performance by the Borrower or any person who has guaranteed in whole or in part any of
the Borrower’s obligations; and (e) Guarantor expressly waives any right of subrogation,
indemnification or contribution Guarantor may have or which may arise against the Borrower with
respect to the Obligations hereunder, until such time as all amounts due in connection with the
Obligations have been paid in full and are not subject to any asserted claim that they be returned
or disgorged.
9. Collection Expenses. The Guarantor shall pay to the Lender, upon demand, all costs
and expenses, including reasonable attorneys’ fees of the unpaid principal balance and accrued
interest (whether or not suit is filed or judgment confessed), that are actually incurred by the
Lender in attempting to cause satisfaction of the Guarantor’s liability under this Guaranty, or to
otherwise enforce the Guarantor’s Obligations.
10. Warrant of Attorney; Confession of Judgment. Upon any default hereunder, or the
occurrence of any event authorizing an acceleration hereunder, or any failure of the Guarantor to
pay or perform on a timely basis any of the obligations, the Guarantor authorizes the Prothonotary
or any attorney admitted to practice before any court of record in the United States to appear on
half of the Guarantor in any such court in one or more proceedings, or before any clerk thereof,
and to confess judgment against the Guarantor, without prior notice or opportunity for prior
hearing, in favor of the Lender in full amount due on this Guaranty, plus reasonable attorneys’
fees and accrued interest and court costs. In addition to all other courts where jurisdiction and
venue would be proper, the Guarantor consents to the jurisdiction and venue of the courts of any
county of the Commonwealth of Pennsylvania for the entry of said judgment. The Guarantor waives
and releases all errors, defects, and imperfections whatever in the entering of the said judgment
and hereby agrees that no writ of error or objections or motion or rule to open or strike said
judgment or appeal shall be made or taken thereto. The Guarantor waives the benefit of any and
every statute, ordinance, or rule of court which may be lawfully waived conferring upon the
Guarantor any right or privilege of exemption, including but not limited to any homestead
exemptions, stay of execution, or supplementary proceedings, or other relief from the enforcement
or immediate enforcement of a judgment or related proceedings on a judgment. The authority and
power to appear for and enter judgment against the Guarantor shall not be exhausted by one or more
exercises thereof, or by any imperfect exercise thereof, and shall not be extinguished by any
judgment entered pursuant thereto; such authority and power may be exercised on one or more
occasions from time to time, in the same or different jurisdiction, as often as the Lender may deem
necessary or advisable.
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11. Indemnification. In the event any real or personal property secures either any of
the sums now or hereafter owed by the Borrower to the Lender or the Obligations and the Lender
acquires the same after a foreclosure sale as to real property or a public auction sale as to
personal property, Guarantor agrees to indemnify and hold the Lender harmless from any loss, cost,
or expense which the Lender may sustain as a result of: (a) selling the real or personal property
so acquired for less than the total sums owed by the Borrower to the Lender or the Obligations, as
the case may be, provided, however, that any such sale by the Lender is done in a commercially
reasonable manner or (b) any action brought against the Lender on the ground that the consideration
paid by the Lender for the real or personal property was not “fair equivalent value,” within the
contemplation of the United States Bankruptcy Code, as amended, or any applicable state fraudulent
conveyance act.
12. Invalidity of any Part. If any provision or part of any provision of this
Guaranty shall for any reason be held invalid, illegal, or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other provisions or the remaining
part of any effective provisions of this Guaranty and this Guaranty shall be construed as if such
invalid, illegal, or unenforceable provision or part thereof had never been contained herein, but
only to the extent of its invalidity, illegality, or unenforceability.
13. Financial Statements. Upon written request of Lender, the Guarantor shall provide
the Lender with financial information as reasonably requested by Lender.
14. Nature of Guarantor’s Liability; Remedies Cumulative. The liability of the
Guarantor under this Guaranty, to the extent herein provided, is absolute and unconditional,
without regard to the liability of any other person, and shall not in any manner be affected by
reason of any action taken or not taken by the Lender, which action or inaction is herein consented
and agreed to, nor by the partial or complete unenforceability or invalidity of any other guaranty
or surety agreement, pledge, assignment or other security for any of the Borrower’s obligations to
the Lender. No delay in making demand on the Guarantor for satisfaction of the Guarantor’s
liability hereunder shall prejudice the Lender’s right to enforce such satisfaction. All of the
Lender’s rights and remedies shall be cumulative and any failure of the Lender to exercise any
right hereunder shall not be construed as a waiver of the right to exercise the same or any other
right at any time, and from time to time, thereafter. The liability of the Guarantor hereunder
shall be joint and several with the liability of any other persons who have guaranteed the
obligations of the Borrower to the Lender. If more than one Guarantor has executed this guaranty,
the liability of each signatory shall be joint and several.
15. Effective Date. This Guaranty shall be effective as of the stated date hereof,
independent of the date of execution or delivery.
16. Binding Nature. This Guaranty shall inure to the benefit of and be enforceable by
the Lender and the Lender’s successors and assigns and any other person to whom the Lender may
grant an interest in the Borrower’s obligations, and shall be binding upon and enforceable against
the Guarantor and the Guarantor’s respective personal representatives, successors and assigns.
This Guaranty may only be terminated in writing by the signature of the Lender.
17. Assignability. This Guaranty may be assigned by the Lender, or any other holder
at any time or from time to time.
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18. Choice of Law; Consent to Jurisdiction. This Guaranty shall be construed,
interpreted, and enforced in accordance with the internal laws of the Commonwealth of Pennsylvania.
The Guarantor hereby consents to the jurisdiction and venue of the courts of the Commonwealth of
Pennsylvania in any action brought to enforce, construe or interpret this Guaranty.
19. Waiver of Trial by Jury. The Guarantor agrees that any suit, action, or
proceeding, whether claim or counterclaim, brought or instituted by the Guarantor or any successor
or assign of the Guarantor on or with respect to this Guaranty or which in any way relates,
directly or indirectly, to this Guaranty or any event, transaction, or occurrence arising out of or
in any way connected with this Guaranty, or the dealings of the parties with respect thereto, shall
be tried only by a court and not by a jury. The Guarantor hereby expressly waives any right to a
trial by jury in any such suit, action, or proceeding. The Guarantor acknowledges and agrees that
its waiver of a trial by jury is a specific and material aspect of this Guaranty and that the
Lender would not extend, or continue to extend, the requested credit accommodations to the Borrower
if this waiver of jury trial provision were not a part of this Guaranty.
20. Tense, Gender, Defined Terms, Caption. As used herein, the plural shall refer to
and include the singular, and the singular, the plural and the use of any gender shall include and
refer to any other gender. All captions are for the purpose of convenience only.
IN WITNESS WHEREOF, the Guarantor has duly executed this Guaranty under seal.
| WITNESS/ATTEST: | UNILIFE CORPORATION | |||||
/s/ J. Xxxxxxxxxxx Xxxxxxxx
|
By: | /s/ R. Xxxxxxx Xxxxxxx | ||||
Chief Financial Officer and Treasurer |
||||||
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