Exhibit 10.8.4
GUARANTY
For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and in consideration of the Emerging Technology Fund of
the Government Land Bank d/b/a MassDevelopment (hereinafter called the
"Bank") having made, or now or in the future making, advances or otherwise
giving credit to GTC Xxxxx Laboratories, Inc. (hereinafter called the
"Borrower"), however such advances or credit may be made or evidenced, the
undersigned does hereby unconditionally guarantee to Bank, its successors and
assigns, full and prompt payment and performance of all present and future
obligations of Borrower to Bank, including all renewals and extensions
thereof or substitutions therefor. The undersigned also agrees to pay in
addition thereto all costs, expenses and reasonable attorney's fees at any
time paid or incurred by the Bank in endeavoring to enforce this Guaranty.
Notice of acceptance of and action taken by Bank from time to time under
this Guaranty are hereby waived, and this Guaranty shall operate as
continuing, absolute and irrevocable Guaranty covering all obligations of
Borrower to Bank (and renewals and extensions thereof or substitutions
therefor) now existing or hereafter arising.
Upon any default by Borrower with respect to any of the obligations
herein guaranteed, the liability of the undersigned hereunder shall be deemed
to have become immediately due and payable, without demand, presentment,
protest or notice of any kind, all of which are hereby waived, and without
any suit or action against Borrower or any other Guarantor and without
further steps to be taken or further conditions to be performed by Bank or
anyone. Failure of Bank to make any demand or otherwise to proceed against
the
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undersigned in respect to any default by Borrower or the undersigned, or
Bank's delay in doing so, shall not constitute a waiver of Bank's right to
proceed in respect to any or all other defaults by Borrower or the
undersigned.
The liability of the undersigned is primary and shall not be terminated
or otherwise affected or impaired by, and the undersigned waives notice of:
Bank's granting time to Borrower (regardless of the number or length of such
grants of time) or any other indulgence or indulgences granted by Bank to
Borrower; Bank's heretofore, now or hereafter acquiring, releasing or in any
way modifying any guaranty from any other person or persons or any collateral
or other security in whatever form for any of the obligations hereby
guaranteed, whether or not notice thereof shall have been or be given to the
undersigned; any failure on Bank's part to take any action with respect to,
or to realize upon any security, rights, endorsements or guaranties which
Bank may now or hereafter hold with respect to any obligation hereby
guaranteed, including without limitation rights against the Borrower; any
alterations, waivers, extensions, renewals or modifications of any such
obligation to which Bank may agree from time to time; any invalidity or
unenforceability of any of the obligations guaranteed hereby; any change in
the membership of any partnership which shall be the Borrower; any fraud,
illegal or improper acts of Borrower; any relief of Borrower's with respect
to its obligations to Bank because of any right of set-off, deduction or
defense of any kind or otherwise; any other defenses which might constitute a
legal or equitable discharge of a surety or guarantor; Bank's failure to
perfect any lien securing the Borrower's obligations or the obligations of
other parties, including any other guarantors; voluntary or involuntary
bankruptcy (including a reorganization in bankruptcy) of Borrower
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or entry of an order for relief against or with respect to the Borrower under
Title 11 of the United States Code; composition, extension, moratoria or
other forms of debtor relief granted to Borrower pursuant to law presently in
force or hereafter enacted; payment of any or all obligations and
indebtedness of Borrower in the event such payment is invalidated or avoided
by a trustee, custodian or receiver of Borrower; the dissolution of Borrower;
or the reorganization, merger or consolidation of Borrower into or with
another entity, corporate or otherwise, or the sale or disposition of all or
substantially all of the capital stock, business or assets of Borrower to any
other person or party. The undersigned further waives all suretyship
defenses and defenses in the nature thereof; any right or claim to right to
cause a marshaling of the assets of the Borrower or any collateral; any right
to require the Bank to proceed against security or other guarantors before
enforcing this Guaranty; any right of subrogation to Bank's rights against
Borrower and any right of reimbursement, indemnity, contribution, exoneration
and the like now or hereafter accorded by law to indemnitors, guarantors,
sureties or accommodation parties, provided that such waiver shall not be
effective to the extent that by virtue of such waiver the liability of
Guarantor is rendered invalid, avoidable or unenforceable under any
applicable law dealing with the recovery or avoidance of so-called fraudulent
conveyances or otherwise.
Guarantor further warrants and represents to Bank that:
(a) Guarantor is a duly organized, validly existing corporation in
good standing under the laws of its state of incorporation, is duly qualified to
do business as a foreign corporation and in good standing in each jurisdiction
in which the character of its properties or the transaction of its business
makes such qualification necessary and has full
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corporate power to own its properties, to carry on its business as now
conducted and to execute, deliver and perform this Guaranty;
(b) the execution, delivery and performance of this Guaranty (i)
have been duly authorized by all requisite corporate action on its part, (ii)
do not require the consent of any party (including, without limitation,
Guarantor's stockholders and creditors) which consent has not been obtained,
(iii) will not (A) violate any law or regulation or its Articles of
Organization or By-Laws, (B) violate any order of any court, tribunal or
governmental agency binding on it or any of its properties, (C) violate or
constitute (after due notice or lapse of time or both) a default under any
indenture, agreement, license or other instrument or contract to which it is
a party or by which it or any of its properties is bound or (D) result in the
creation or imposition of any lien of any nature whatsoever on any of its
assets (except any liens as are created hereby) and (iv) require any filing
or registration with, or any permit, license, consent or approval of, any
governmental agency or regulatory authority;
(c) this Guaranty has been duly executed and delivered by the
Guarantor and is a legal, valid and binding obligation, enforceable against
the Guarantor in accordance with its terms;
(d) there are no actions, suits, proceedings or claims pending or,
to the Guarantor's knowledge, threatened against or affecting the Guarantor
that relate to the transactions contemplated by this Guaranty, or which
materially adversely affect the business or condition (financial or
otherwise) of the Guarantor.
The Guarantor further affirms that neither this Guaranty, nor the
performance or consummation of any transactions or matters contemplated
thereby shall limit, restrict,
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extinguish, or otherwise impair Guarantor's obligations to Bank under any and
all guaranties previously given to Bank of Borrower's obligations to Bank, if
any, and Guarantor reaffirms any and all such previous guaranties, if any.
The Guarantor further affirms that it shall, at all times, maintain net
assets at least twenty million dollars ($20 million) measured on a quarterly
basis.
For the purposes of this Guaranty, the term "obligations" shall mean and
include, without limitation, the payment and performance of all loans,
indebtedness, notes, liabilities (including, without limitation, Borrower's
written agreements with Bank) and amounts, liquidated or unliquidated, owing
by Borrower to Bank at any time, each of every kind, nature and description,
and whether secured or unsecured, direct or indirect (that is, whether the
same are due directly by Borrower to Bank; or are due indirectly by Borrower
to Bank as endorser or guarantor, or as obligor of obligations due to third
persons, firms, or corporations which have been endorsed or assigned to Bank;
or otherwise), absolute or contingent, due or to become due, now existing or
hereafter contracted. Said term shall also include all interests, charges,
costs and expenses (including reasonable attorneys' fees) now due or that may
hereafter become due from Borrower to Bank from time to time.
As security for the payment and performance of Guarantor's obligations
hereunder, Bank is hereby granted a lien and security interest in and to any
and all deposits or other sums at any time credited by or due from Bank to
Guarantor whether in regular or special depository accounts or otherwise, and
all moneys, securities and other property and the proceeds thereof, now or
hereafter held or received by Bank, whether for safekeeping, custody, pledge,
collection or otherwise. Upon the occurrence of a default hereunder, and in
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addition to and not in limitation of any and all rights and remedies of the
Bank hereunder or otherwise, all of such rights and remedies being
cumulative, Bank may set off any such deposits, other sums, moneys,
securities and other property and the proceeds thereof against any or all of
the obligations of Guarantor, without prior notice or demand, and regardless
of whether or not such obligations are secured by any other collateral, and
regardless of the adequacy of any such other collateral.
This Guaranty shall be binding upon the successors and assigns of the
Guarantor.
For purposes of any action or proceeding involving this Guaranty or any
other agreement or document referred to therein, Guarantor hereby expressly
submits to the jurisdiction of all federal and state courts located in the
Commonwealth of Massachusetts and consents that any order, process, notice of
motion or other application to or by any of said courts or a judge thereof
may be served within or without such court's jurisdiction by registered mail
or by personal service, provided a reasonable time for appearance is allowed
(but not less than the time otherwise afforded by any law or rule) and waives
any right to contest the appropriateness of any action brought in any such
court based upon lack of personal jurisdiction, improper venue or forum non
conveniens.
GUARANTOR AND BANK EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR RELATING TO THIS GUARANTY OR
THE AGREEMENTS AND AGREES THAT ANY SUCH DISPUTE SHALL BE TRIED BEFORE A JUDGE
SITTING WITHOUT A JURY.
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This instrument is intended to take effect as a sealed instrument and
this instrument and all rights, duties and remedies of the parties shall be
governed as to interpretation, validity, effect and enforcement, and in all
other respects of the same or different nature, by the domestic law of
Massachusetts. The invalidity or unenforceability of any provision hereof
shall not limit the validity or enforceability of any other provision hereof.
This Guaranty may not be amended except by an instrument in writing signed
by the party to be charged.
Dated June 26, 1997
WITNESS: GUARANTOR:
GENZYME TRANSGENICS CORPORATION
/s/ Xxxxx X. Xxxx By: /s/ Xxxx X. Xxxxx
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Xxxxx X. Xxxx Name: Xxxx X. Xxxxx
Title: Vice President and C.F.O
Address: 0 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX
192077-1
