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XXXXXXX XXXXX UNCONDITIONAL GUARANTY
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FOR VALUE RECEIVED, and in order to induce XXXXXXX XXXXX BUSINESS
FINANCIAL SERVICES INC. ("MLBFS") to advance moneys or extend or continue to
extend credit to or for the benefit of DURAMED PHARMACEUTICALS, INC., a
corporation organized and existing under the laws of the State of Delaware (with
any successor in interest, including, without limitation, any successor by
merger or by operation of law, herein collectively referred to as "Customer")
under: (a) that certain TERM WCMA LOAN AGREEMENT NO. 9808880201 between MLBFS
and Customer (the "Loan Agreement"), (b) any "Additional Agreements", as that
term is defined in the Loan Agreement, and (c) all present and future
amendments, restatements, supplements and other evidences of any extensions,
increases, renewals, modifications and other changes of or to the Loan Agreement
or any Additional Agreements (collectively, the "Guaranteed Documents"), and for
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the undersigned, XXXXXX-XXXXXXX COMPANY, a corporation
organized and existing under the laws of the State of Delaware ("Guarantor"),
hereby unconditionally guarantees to MLBFS: (i) the prompt and full payment when
due, by acceleration or otherwise, of all sums now or any time hereafter due
from Customer to MLBFS under the Guaranteed Documents, and (ii) the prompt, full
and faithful performance and discharge by Customer of each and every other
covenant and warranty of Customer set forth in the Guaranteed Documents
(collectively, the "Obligations"). Guarantor further agrees to pay all
reasonable costs and expenses (including, but not limited to, court costs and
reasonable attorneys' fees) paid or incurred by MLBFS in endeavoring to collect
or enforce performance of any of the Obligations, or in enforcing this Guaranty.
Guarantor acknowledges that MLBFS is relying on the execution and delivery of
this Guaranty in advancing moneys to or extending or continuing to extend credit
to or for the benefit of Customer.
This Guaranty is absolute, unconditional and continuing and shall
remain in effect until all of the Obligations shall have been fully and
indefeasibly paid, performed and discharged. Upon the occurrence and during the
continuance of any default or Event of Default under the Guaranteed Documents,
any or all of the indebtedness hereby guaranteed then existing shall, at the
option of MLBFS, become immediately due and payable from Guarantor (it being
understood, however, that upon the occurrence of any "Bankruptcy Event", as
defined in the Guaranteed Documents, all such indebtedness shall automatically
become due and payable without action on the part of MLBFS). Notwithstanding the
occurrence of any such event, this Guaranty shall continue and remain in full
force and effect. To the extent MLBFS receives payment with respect to the
Obligations, and all or any part of such payment is subsequently invalidated,
declared to be fraudulent or preferential, set aside, required to be repaid by
MLBFS or is repaid by MLBFS pursuant to a settlement agreement, to a trustee,
receiver or any other person or entity, whether under any Bankruptcy law or
otherwise (a "Returned Payment"), this Guaranty shall continue to be effective
or shall be reinstated, as the case may be, to the extent of such payment or
repayment by MLBFS, and the indebtedness or part thereof intended to be
satisfied by such Returned Payment shall be revived and continued in full force
and effect as if said Returned Payment had not been made.
The liability of Guarantor hereunder shall in no event be affected or
impaired by any of the following, any of which may be done or omitted by MLBFS
from time to time, without notice to or the consent of Guarantor: (a) any
renewals, amendments, restatements, modifications or supplements of or to any of
the Guaranteed Documents, or any extensions, forbearances, compromises or
releases of any of the Obligations or any of MLBFS' rights under any of the
Guaranteed Documents; (b) any acceptance by MLBFS of any collateral or security
for, or other guarantees of, any of the Obligations; (c) any failure, neglect or
omission on the part of MLBFS to realize upon or protect any of the Obligations,
or any collateral or security therefor, or to exercise any lien upon or right of
appropriation of any moneys, credits or property of Customer or any other
guarantor, possessed by or under the control of MLBFS or any of its affiliates,
toward the liquidation or reduction of the Obligations; (d) any invalidity,
irregularity or unenforceability of all or any part of the Obligations, of any
collateral security for the Obligations, or the Guaranteed Documents; (e) any
application of payments or credits by MLBFS; (f) the granting of credit from
time to time by MLBFS to Customer in excess of the amount set forth in the
Guaranteed Documents; or (g) any other act of commission or omission of any kind
or at any time upon the part of MLBFS or any of its affiliates or any of their
respective employees or agents with respect to any matter whatsoever. MLBFS
shall not be required at any time, as a condition of Guarantor's obligations
hereunder, to resort to payment from Customer or other persons or entities
whatsoever, or any of their properties or estates, or resort to any collateral
or pursue or exhaust any other rights or remedies whatsoever.
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No release or discharge in whole or in part of any other guarantor of
the Obligations shall release or discharge Guarantor unless and until all of the
Obligations shall have been indefeasibly fully paid and discharged. Guarantor
expressly waives presentment, protest, demand, notice of dishonor or default,
notice of acceptance of this Guaranty, notice of advancement of funds under the
Guaranteed Documents and all other notices and formalities to which Customer or
Guarantor might be entitled, by statute or otherwise, and, so long as there are
any Obligations or MLBFS is committed to extend credit to Customer, waives any
right to revoke or terminate this Guaranty without the express written consent
of MLBFS.
So long as there are any Obligations, Guarantor shall not have any
claim, remedy or right of subrogation, reimbursement, exoneration, contribution,
indemnification, or participation in any claim, right, or remedy of MLBFS
against Customer or any security which MLBFS now has or hereafter acquires,
whether or not such claim, right or remedy arises in equity, under contract, by
statute, under common law, or otherwise. If, however, MLBFS shall make a demand
upon Guarantor hereunder and following such demand Guarantor shall pay to MLBFS
all outstanding Obligations, then, upon the written request of Guarantor to
MLBFS not later than 90 days thereafter, MLBFS will assign to Guarantor, without
warranty or recourse, all of its rights in and to the indebtedness of Customer
evidenced by the Guaranteed Documents (it being further understood, however,
that MLBFS will not in such case assign or allow the continued use of the
Xxxxxxx Xxxxx WCMA Account utilized to house part of the credit facility
evidenced by the Guaranteed Documents.)
MLBFS is hereby irrevocably authorized by Guarantor at any time during
the continuance of an Event of Default under the Loan Agreement or any other of
the Guaranteed Documents or in respect of any of the Obligations, in its sole
discretion and without demand or notice of any kind, to appropriate, hold, set
off and apply toward the payment of any amount due hereunder, in such order of
application as MLBFS may elect, all cash, credits, deposits, accounts,
securities and any other property of Guarantor which is in transit to or in the
possession, custody or control of MLBFS or Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated ("MLPF&S"), or any of their respective agents, bailees or
affiliates, including, without limitation, all securities accounts with MLPF&S
and all cash, securities and other financial assets therein or controlled
thereby, and all proceeds thereof. Guarantor hereby collaterally assigns and
grants to MLBFS a continuing security interest in all such property as
additional security for the Obligations. Upon the occurrence and during the
continuance of an Event of Default, MLBFS shall have all rights in such property
available to collateral assignees and secured parties under all applicable laws,
including, without limitation, the UCC.
Grantor agrees to furnish to MLBFS such financial information
concerning Guarantor as may be reasonably required by any of the Guaranteed
Documents or as MLBFS may otherwise from time to time reasonably request
Guarantor further hereby irrevocably authorizes MLBFS and each of its
affiliates, including without limitation MLPF&S, to at any time (whether or not
an Event of Default shall have occurred) obtain from and disclose to each other
any and all financial and other information about Guarantor. MLBFS agrees to
xxxx its records with an instruction to its employees to furnish to Guarantor a
copy of each invoice and WCMA account statement with respect to the Guaranteed
Obligations; it being understood, however, that no failure or delay on the part
of MLBFS in furnishing any such copy shall affect the validity or enforceability
of this Guaranty, or give rise to any defense on the part of Guarantor hereunder
or any liability on the part of MLBFS to Guarantor.
No delay on the part of MLBFS in the exercise of any right or remedy
under the Guaranteed Documents, this Guaranty or any other agreement shall
operate as a waiver thereof, and, without limiting the foregoing, no delay in
the enforcement of any security interest, and no single or partial exercise by
MLBFS of any right or remedy shall preclude any other or further exercise
thereof or the exercise of any other right or remedy. This Guaranty may be
executed in any number of counterparts, each of which counterparts, once they
are executed and delivered, shall be deemed to be an original and all of which
counterparts, taken together, shall constitute but one and the same Guaranty.
This Guaranty shall be binding upon Guarantor and its successors and assigns,
and shall inure to the benefit of MLBFS and its successors and assigns.
NOTWITHSTANDING ANYTHING HEREINABOVE TO THE CONTRARY:
(A) AS CONDITIONS OF GUARANTOR'S OBLIGATION TO MAKE ANY PAYMENT
HEREUNDER: (I) MLBFS SHALL, UNLESS PROHIBITED BY ANY LAW, REGULATION OR
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JUDICIAL OR ADMINISTRATIVE ORDER, MAKE A WRITTEN DEMAND UPON CUSTOMER FOR
PAYMENT AND SEND A COPY OF SUCH WRITTEN DEMAND TO GUARANTOR; AND (II) IF SUCH
DEMAND IS NOT SO PROHIBITED, 30 DAYS SHALL ELAPSE AFTER MLBFS SHALL HAVE MADE
SUCH DEMAND (IT BEING FURTHER UNDERSTOOD THAT A FAILURE OR DELAY IN MAKING ANY
SUCH DEMAND OR FURNISHING A COPY THEREOF TO GUARANTOR SHALL ONLY DELAY
GUARANTOR'S OBLIGATIONS, BUT SHALL NOT EXCUSE OR DISCHARGE SUCH OBLIGATIONS.)
(B) THE MAXIMUM LIABILITY OF GUARANTOR HEREUNDER SHALL BE $8,500,000.00
PLUS ACCRUED AND UNPAID INTEREST AND ALL OUT-OF-POCKET COSTS AND EXPENSES OF
MLBFS IN ENFORCING THE GUARANTEED DOCUMENTS AND THIS GUARANTY, INCLUDING
REASONABLE ATTORNEYS' FEES AND EXPENSES.
This Guaranty shall be governed by the laws of the State of Illinois.
WITHOUT LIMITING THE RIGHT OF MLBFS TO ENFORCE THIS GUARANTY IN ANY JURISDICTION
AND VENUE PERMITTED BY APPLICABLE LAW, GUARANTOR AGREES THAT THIS GUARANTY MAY
AT THE OPTION OF MLBFS BE ENFORCED BY MLBFS IN ANY JURISDICTION AND VENUE IN
WHICH ANY OF THE GUARANTEED DOCUMENTS MAY BE ENFORCED. GUARANTOR AND MLBFS
HEREBY EACH EXPRESSLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES AGAINST THE OTHER
PARTY IN ANY WAY RELATED TO OR ARISING OUT OF THIS GUARANTY OR THE OBLIGATIONS.
Wherever possible each provision of this Guaranty shall be interpreted in such
manner as to be effective and valid under applicable law, but if any provision
of this Guaranty shall be prohibited by or invalid under such law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Guaranty. No modification or waiver of any of the
provisions of this Guaranty shall be effective unless in writing and signed by
both Guarantor and an officer of MLBFS. Each signatory on behalf of Guarantor
warrants that he or she has authority to sign on behalf of Guarantor, and by so
signing, to bind Guarantor hereunder.
Without affecting the validity or enforceability of this Guaranty with
respect to the Guaranteed Documents as the same may be from time to time
modified with the consent of MLBFS, Customer and Guarantor, it is understood
that no modification of any of the Guaranteed Documents shall be effective
unless in a writing signed by MLBFS, Customer and Guarantor.
Dated as of October 1, 1998.
XXXXXX-XXXXXXX COMPANY
By: /s/ Xxxx Xxxxxxxx
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Signature (1) Signature (2)
Xxxx Xxxxxxxx
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Printed Name Printed Name
Vice President - Manufacturing
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Title Title
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Address of Guarantor:
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