EXHIBIT 4
GUARANTY
September 16, 1999
Gateway Companies, Inc.
0000 Xxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000
Ladies and Gentlemen:
We refer to that Convertible Loan Agreement (the "Loan Agreement"), dated
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as of September 16, 1999, between Gateway Companies, Inc. ("Gateway") and Vitech
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America, Inc., ("Vitech"), pursuant to which Gateway agreed to lend to Vitech
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the principal amount of $31,000,000.00 for use in the repayment of certain of
Vitech's debts and accounts payable. Capitalized terms used and not otherwise
defined herein shall have the meanings set forth in the Loan Agreement. Each of
Xxxxxxx X. St. Laurent and Xxxxxxx X. St. Laurent, III (individually, a
"Guarantor" and, collectively, the "Guarantors") are shareholders in Vitech and
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will benefit from the making of the Loan. Accordingly, in order to induce
Gateway to enter into the Loan Agreement and make the Loan thereunder, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and Gateway agree as follows:
1. Guarantee of Performance and Payment. The Guarantors, jointly and
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severally as primary obligors and not as sureties only, hereby unconditionally
and irrevocably guarantee to Gateway, in an amount not to exceed $11,000,000,
the performance by Vitech of its obligations to Gateway arising out of or in
connection with the Loan Documents, including without limitation, the due and
punctual payment of an aggregate of $11,000,000 of any and all sums owed by
Vitech under the Loan Documents (collectively, the "Guaranteed Obligations").
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This guaranty shall remain in effect so long as Vitech has any obligations under
the Loan Documents. The Guarantors' liabilities and obligations hereunder shall
not exceed the lesser of (i) $11,000,000 or (ii) the liabilities and obligations
of Vitech to Gateway arising out of or in connection with the Loan Documents,
except that the Guarantors shall also be liable for the costs and expenses set
forth in Section 7 hereof.
2. Guaranty Unconditional and Absolute. The obligations of the Guarantors
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hereunder shall be joint, several, unconditional and absolute and, without
limiting the generality of the foregoing, shall not be released, discharged or
otherwise affected by:
(i) any extension, renewal, settlement, compromise, waiver or release in
respect of any obligation of Vitech or any other guarantor of any of
the Guaranteed Obligations;
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(ii) any modification or amendment of or supplement to the Loan Agreement
or the Note;
(iii) any change in the corporate existence (including its constitution,
laws, rules, regulations or powers), structure or ownership of Vitech
or the Guarantors, or any insolvency, bankruptcy, reorganization or
other similar proceeding affecting Vitech or its assets, the
Guarantors or any other guarantor of any of the Guaranteed
Obligations;
(iv) the existence of any claim, set-off or other rights which the
Guarantors may have at any time against Vitech or any other
corporation or person, whether in connection herewith or in
connection with any unrelated transaction;
(v) any invalidity or unenforceability relating to or against Vitech or
any other guarantor for any reason of the Loan Agreement or any other
guaranty agreement, or any provision of applicable law or regulation
purporting to prohibit payment by Vitech of amounts to be paid by it
under the Loan Agreement or any of the Guaranteed Obligations or
under any such guaranty agreement; or
(vi) any other act or omission to act or delay of any kind by Vitech, any
other guarantor or any other corporation or person or any other
circumstance whatsoever which might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the
Guarantors' obligations hereunder.
3. Waiver by the Guarantors. The Guarantors irrevocably waive
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acceptance hereof, diligence, presentment, demand, protest, notice of dishonor
and any notice not provided for herein, any requirement that at any time any
person exhaust any right or take any action against Vitech or its assets or any
other guarantor or person, and any other defense that may be available to a
surety and guarantor.
4. Subrogation. Upon making any payment hereunder, the Guarantors shall
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be subrogated to the rights of Gateway against Vitech with respect to such
payment; provided that the Guarantors shall not enforce any right or receive any
payment by way of subrogation until all of the Guaranteed Obligations shall have
been discharged or paid in full.
5. Stay of Acceleration Ineffective with respect to Guarantors. In the
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event that acceleration of the time for payment of any amount payable by Vitech
under the Loan Agreement is stayed upon the insolvency, bankruptcy, or
reorganization of Vitech, all such amounts otherwise subject to acceleration or
required to be paid upon any early termination pursuant to the terms of the Loan
Agreement shall nonetheless be payable by the Guarantors hereunder forthwith on
demand by Gateway.
6. Amendments and Waivers. No provision of this guaranty may be
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amended, supplemented or modified, nor any of the terms and conditions hereof or
thereof waived, except by a written instrument executed by the Guarantors and
Gateway.
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7. Expenses and Taxes. Without limiting the generality of the
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Guarantors' obligations hereunder, the Guarantors agree to pay to Gateway upon
its request all reasonable costs and expenses, including fees and disbursements
of counsel and taxes, incurred by Gateway in connection with any enforcement,
collection or other proceedings against any person or assets arising out of or
related to the Loan Documents, all of which shall be "Guaranteed Obligations"
the performance and payment of which is guaranteed hereunder. The Guarantors
agree that all amounts payable under this guaranty shall be paid without set-off
or counterclaim and free and clear of, and without deduction or withholding for
or on account of any present or future taxes, levies, imports, duties, fees,
assessments or other charges of whatever nature, now or hereafter imposed by any
governmental or taxing authority to which the Guarantors are subject.
8. Enforcement. Notwithstanding anything to the contrary in the Loan
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Agreement, Guarantors and Vitech agree that any decision by Gateway to enforce
the terms hereof shall be in the sole discretion of Gateway, and Guarantors and
Vitech hereby waive any rights they may have to object to any such decision made
by Gateway.
9. Termination and Release. This guaranty shall be terminated and the
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Guarantors shall be released from their obligations hereunder upon the earlier
of:
(i) the payment and performance in full by Vitech of each of the
Guaranteed Obligations in accordance with the terms of the Loan
Agreement and each other agreement, document, instrument or other
understanding pursuant to which such Guaranteed Obligations arose, and
the subsequent expiry of all applicable bankruptcy preference periods,
and
(ii) the execution and delivery of an instrument in writing from Gateway
terminating this guaranty and releasing Guarantors.
10. GOVERNING LAW; WAIVER OF JURY TRIAL. (a) THIS GUARANTY SHALL BE
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GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO ITS PRINCIPLES OF CONFLICT OF LAWS.
(b) THE GUARANTORS EACH HEREBY IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP BETWEEN THEM ESTABLISHED BY THIS GUARANTY OR ANY OTHER LOAN
DOCUMENT AND ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT ENTERED INTO IN
CONNECTION WITH THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
11. Jurisdiction and Consent to Suit. (a) Any proceeding to enforce this
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guaranty may be brought in any state or federal court of competent jurisdiction
in the State of New
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York. Each Guarantor hereby irrevocably waives any present or future objection
to any such venue, and irrevocably consents and submits unconditionally to the
non-exclusive jurisdiction for itself and in respect of any of its property of
any such court. Each Guarantor further agrees that final judgment against it in
any such action or proceeding arising out of or relating to this guaranty shall
be conclusive and may be enforced in any other jurisdiction within or outside
the United States of America by suit on the judgment, a certified or exemplified
copy of which shall be conclusive evidence of the fact and of the amount of its
obligation.
(b) Prior to the Closing Date, each Guarantor shall irrevocably
designate and appoint an agent satisfactory to Gateway for service of process in
The City of New York, New York as its authorized agent to receive, accept, and
forward on its behalf service of process in any such proceeding, and shall
provide Gateway with evidence of the prepayment in full of the fees of such
agent. Each Guarantor agrees that service of process, writ, judgment, or other
notice of legal process upon said agent shall be deemed and held in every
respect to be effective personal service upon it. Each Guarantor shall maintain
such appointment (or that of a successor satisfactory to Gateway) continuously
in effect at all times
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while the Guarantor is obligated under this guaranty. Nothing herein shall
affect Gateway's right to serve process in any other manner permitted by
applicable law.
Very truly yours,
_____________________________
Xxxxxxx X. St. Laurent
_____________________________
Xxxxxxx X. St. Laurent, III
AGREED AND ACCEPTED:
GATEWAY COMPANIES, INC.
By:__________________________
Name:
Title:
AGREED AND ACCEPTED AS TO SECTION 8:
VITECH AMERICA, INC.
By:__________________________
Name:
Title:
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