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Exhibit (b)(5)
UNLIMITED GUARANTY
In consideration of financial accommodations given or to be given or
continued to TEVA PHARMACEUTICALS USA, INC., hereinafter called "Borrower," by
BANK LEUMI USA hereinafter called "Bank," and the benefits to be obtained
therefrom by the undersigned, the undersigned irrevocably and unconditionally
guarantee to the Bank, payment when due, without reference to and
notwithstanding any subordination provisions contained in such documents,
whether by acceleration or otherwise, of any and all liabilities of the Borrower
to the Bank, in the aggregate at any one time outstanding plus all interest
thereon and all attorneys' fees, costs and expenses of collection incurred by
the Bank in enforcing any of such liabilities. This is a guaranty of payment and
not of collection.
The term "liabilities of the Borrower" shall mean all liabilities of the
Borrower to the Bank under Credit Agreement and Promissory Note, each dated
September 13, 1999.
The undersigned waive notice of acceptance of this guaranty and notice of
any liability to which it may apply, and waive presentment, demand of payment,
protest, notice of dishonor or nonpayment of any such liabilities, suit or
taking other action by the Bank against, and any other notice to, any party
liable thereon (including the undersigned).
The Bank may at any time and from time to time (whether or not after
revocation or termination of this guaranty) without the consent of, or notice
to, the undersigned, without incurring responsibility to the undersigned,
without impairing or releasing the obligations of the undersigned hereunder,
upon or without any terms or conditions and in whole or in part:
(1) change the manner, place or terms of payment, and/or change or extend
the time of payment of, renew or alter, any liability of the Borrower, any
security therefor, or any liability incurred directly or indirectly in respect
thereof, and the guaranty herein made shall apply to the liabilities of the
Borrower as so changed, extended, renewed or altered;
(2) exercise or refrain from exercising any rights against the Borrower or
others (including the undersigned), or otherwise act or refrain from acting;
(3) settle or compromise any liability hereby guaranteed, or any liability
(including any of those hereunder) incurred directly or indirectly in respect
thereof or hereof, and may subordinate the payment of all or any part thereof to
the payment of any liability (whether due or not) of the Borrower to creditors
of the Borrower other than the Bank and the undersigned; and
(4) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrower to the Bank regardless of what
liability or liabilities of the Borrower remain unpaid.
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No invalidity, irregularity or unenforceability of all or any part of the
liabilities hereby guaranteed shall affect, impair or be a defense to this
guaranty, and this guaranty is a primary obligation of the undersigned.
This guaranty is a continuing one and all liabilities to which it applies
or may apply under the terms hereof shall be conclusively presumed to have been
created in reliance hereon. As to the undersigned, this guaranty shall continue
until written notice of revocation signed by such undersigned, shall in each
case have been actually received by the Bank, notwithstanding a revocation by,
or complete or partial release for any cause, of the undersigned, or of the
Borrower or of any one liable in any manner for the liabilities hereby
guaranteed or for the liabilities (including those hereunder) incurred directly
or indirectly in respect thereof or hereof, and notwithstanding the
dissolution, termination or increase, decrease or change in personnel,
management, shareholders or members of the undersigned. Written notice as
above provided shall be the only means of revocation or termination of this
guaranty, notwithstanding the fact that for periods of time there may be no
outstanding liabilities of the Borrower. No revocation or termination hereof
shall affect in any manner the effectiveness and applicability of this
guaranty, or any rights of the Bank or the obligations of the undersigned
hereunder, with respect to (a) liabilities of the Borrower which shall have
been created, contracted, assumed or incurred prior to receipt by the Bank of
written notice of such revocation or termination, (b) all extensions, renewals
or modifications of any of the liabilities referred to in (a) above made after
receipt by the Bank of such written notice, or (c) liabilities of the Borrower
which shall have been created, contracted, assumed or incurred after receipt by
the Bank of such written notice pursuant to any contract entered into by the
Bank prior to its receipt of such notice or which are otherwise related to or
connected with liabilities of the Borrower theretofore arising or transactions
theretofore entered into.
You agree that all payments to be made to the Bank will be made free and
clear of, and without deduction for or on account of, any present or future
"Foreign Taxes" (as defined below). You further agree that, if any Foreign
Taxes are required to be withheld from any amounts payable to the Bank, the
Bank may, in its sole and absolute discretion increase the amounts payable by
you to the Bank to the extent necessary to yield to the Bank (after payment of
all Foreign Taxes) the full amounts which the Bank would have received had the
payments not been subject to Foreign Taxes. "Foreign Taxes" means any income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions,
withholdings or restrictions or conditions of any nature whatsoever now or
hereafter imposed, levied, collected, withheld or assessed by any country or
government (or by a political subdivision or taxing authority thereof) other
than the United States of America or any political subdivision or taxing
authority thereof.
The balance of every account of the undersigned with, and each claim of the
undersigned against, the Bank existing from time to time, shall be subject to be
set off against any and all liabilities of the undersigned and the Bank may at
any time or from time to time following an Event of Default, or the occurrence
of any act or failure to act of the Borrower with respect to its obligations
under the Credit Agreement or Promissory Note, at its option and without notice
appropriate and apply toward the
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payment of any of the liabilities of the undersigned the balance of each such
account of the undersigned with, and each such claim of the undersigned
against, the Bank.
Upon the happening of any of the following events (each an "Event of
Default"): (1) any representation or warranty of the undersigned in this
guaranty or in any other writing or statement furnished to the Bank at any time
in connection with this guaranty shall prove to be false, incorrect or
misleading, (2) or the undersigned shall default in the performance or
observance of any agreement or covenant in this guaranty or any other agreement
or instrument entered into or made in connection with this guaranty, (3) or the
insolvency of the Borrower or the undersigned, (4) or failure of the
undersigned to furnish to the Bank, or cause the Borrower to furnish to the
Bank, such information respecting the condition or operations, financial or
otherwise, of the undersigned or the Borrower as the Bank may from time to time
reasonably request, (5) or suspension of business of the Borrower or the
undersigned, (6) or the issuance of any warrant of attachment against any of
the property of the Borrower or the undersigned, (7) or the making by the
Borrower or the undersigned of an assignment for the benefit of creditors, (8)
or a trustee or receiver being appointed for the Borrower or the undersigned or
for any property of either of them, or any proceeding being commenced by or
against the Borrower or the undersigned under any bankruptcy, reorganization,
arrangement of debt, insolvency, readjustment of debt, moratorium,
receivership, liquidation or dissolution law or statute, then and in any such
event, and at any time thereafter, the Bank may, without notice to the Borrower
or the undersigned, make the liabilities of the Borrower to the Bank, whether
or not then due, immediately due to and payable hereunder as to the
undersigned, and the Bank shall be entitled to enforce the obligations of the
undersigned hereunder provided that as to (2) and (4) above, the obligations of
the undersigned to the Bank shall become due and payable only if such default
remains uncured following ten (10) days prior written notice to the undersigned
of such default.
Without limiting the Bank's rights under any other agreement, upon the
date on which notice of revocation or termination of this guaranty is received,
or upon the occurrence of an Event of Default hereunder or under any of the
loan documents evidencing or relating to the liabilities of the Borrower, any
obligations owed by the Borrower to the undersigned in connection with any
extension of credit or financial accommodation by the undersigned to or for the
account of the Borrower are hereby subordinated to the liabilities of the
Borrower, and such obligations of the Borrower to the undersigned, if the Bank
so requests, shall be collected, enforced and received by the undersigned as
trustee for the Bank and shall be paid over to the Bank on account of the
liabilities of the Borrower without reducing or affecting in any manner the
liability of the undersigned under other provisions of this guaranty.
The undersigned shall not exercise any right of subrogation which it may
have at any time otherwise as a result of this guaranty (whether contractual,
under Section 509 of the Bankruptcy Code, or otherwise) until all of the
liabilities of the Borrower have been paid in full.
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If claim is ever made upon the Bank for repayment, return, restoration or
other recovery of any amount or amounts received by the Bank in payment or on
account of any of the liabilities of the Borrower and the Bank repays all or
part of said amount: (a) because such payment or application of proceeds is or
may be avoided, invalidated, declared fraudulent, set aside or determined to be
void or voidable as a preferential transfer, fraudulent conveyance,
impermissible setoff or a diversion of trust funds; or (b) for any other
reason, including (without limitation) by reason of (i) any judgment, decree or
order of any court or administrative body having jurisdiction over the Bank or
any of its property, or (ii) any settlement or compromise of any such claim
effected by the Bank with any such claimant (including the Borrower), then and
in such event the undersigned agree that any such judgment, decree, order,
settlement or compromise shall be binding upon the undersigned, notwithstanding
any revocation hereof or the cancellation of any note or other instrument
evidencing any liability of the Borrower, and the undersigned shall be and
remain liable to the Bank hereunder for the amount so repaid or recovered to
the same extent as if such amount had never originally been received by the
Bank. The undersigned hereby indemnify and shall reimburse and hold the Bank
harmless for the amount so repaid and for all other claims, actions, suits,
proceedings, liabilities, losses, costs and expenses of every kind (including,
without limitation, the disbursements, expenses and fees of the Bank's
attorneys) that may be imposed upon, incurred by or asserted against the Bank
(i) in connection with defending any such claim for repayment and collecting
such amount from the undersigned, or (ii) otherwise arising out of or related
directly or indirectly to this guaranty (including, without limitation, any
action, suit or proceeding between the undersigned and the Bank, whether on
this guaranty or otherwise). The provisions of this paragraph shall survive the
termination of this guaranty, and any satisfaction and discharge of the
Borrower by virtue of any payment or court order or any state or federal law.
No delay on the part of the Bank in exercising any of its options, powers
or rights, or partial or single exercise thereof, shall constitute a waiver
thereof. No waiver any of its rights hereunder, and no modifications or
amendment of this guaranty, shall be deemed to be made by the Bank or the
undersigned unless the same shall be in writing, duly signed on behalf of the
Bank and the undersigned, and each such waiver, if any, shall apply only with
respect to the specific instance involved, and shall in no way impair the rights
of the Bank or the undersigned or the obligations of the undersigned to the Bank
or the Bank to the undersigned in any other respect at any other time.
The term "Bank" as used throughout this instrument shall be deemed to
include BANK LEUMI USA, and all its agencies, branches and departments wherever
located. The term "Business Days" shall mean any day of the year the Bank is
open for business (as required or permitted by law or otherwise).
Whenever in this instrument the words "attorneys' fees" are used, such
fees shall be the reasonable value of the services of the attorneys. The term
"Borrower" as used throughout this
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instrument shall be deemed to include any (a) successor partnership or
partnerships if the Borrower is a partnership, and (b) corporation or
corporations which succeed to all or substantially all of the assets or
business of the Borrower by merger, consolidation or sale of assets if the
Borrower is a corporation.
This guaranty and the rights and obligations of the Bank and of the
undersigned hereunder shall be governed and construed in accordance with the
laws of the State of New York; and this guaranty is binding upon the
undersigned, its administrators, successors, or assigns, and shall inure to the
benefit of the Bank, its successors or assigns. THE UNDERSIGNED HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT
LOCATED IN NEW YORK CITY OVER ANY ACTION OR PROCEEDING ARISING OUT OF ANY
DISPUTE BETWEEN THE UNDERSIGNED AND THE BANK, AND THE UNDERSIGNED FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF ANY PROCESS IN ANY SUCH ACTION OR
PROCEEDING BY THE MAILING OF A COPY OF SUCH PROCESS TO THE UNDERSIGNED AT THE
ADDRESS SET FORTH BELOW. IN THE EVENT OF LITIGATION BETWEEN THE BANK AND THE
UNDERSIGNED OVER ANY MATTER CONNECTED WITH THIS GUARANTY, RESULTING FROM
TRANSACTIONS HEREUNDER OR RELATING TO DOCUMENTATION OR MATTERS CONNECTED WITH
THE LIABILITIES OF THE BORROWER, THE RIGHT TO A TRIAL BY JURY IS HEREBY WAIVED
BY THE BANK AND THE UNDERSIGNED. THE UNDERSIGNED ALSO WAIVES THE RIGHT TO
INTERPOSE ANY SET-OFF OR COUNTERCLAIM OF ANY NATURE.
Dated: New York, New York
the 13th day of September, 1999
TEVA PHARMACEUTICAL INDUSTRIES LTD.
By: /s/ Xxx Xxxxxxxxx September 14, 1999
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Xxx Xxxxxxxxx
Chief Financial Officer (Title)
0 Xxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxx
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(Address)
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