Exhibit 10.12
CONTINUING CONTRACT OF
GUARANTY
WHEREAS, A CCENTIA P HARMACEUTICALS , I NC ., a
Florida corporation (hereinafter referred to as
“Borrower”), is presently indebted or obligated to
M ISSOURI S TATE B ANK AND T RUST C OMPANY (hereinafter referred to as
“Lender”), for a certain revolving credit loan in an
amount not to exceed Three Million and No/100 Dollars
($3,000,000.00) (the “Loan”);
WHEREAS, the undersigned (each hereinafter referred to as
“Guarantor”), has a direct financial interest in the
Borrower, and will benefit financially from the Loan;
and
WHEREAS , to induce Lender to extend credit to Borrower,
Guarantor has agreed to guaranty the credit of Borrower pursuant to
and in strict accordance with the terms and conditions hereinafter
set forth.
NOW, THEREFORE
, in consideration of the sum of
$1.00 paid by Lender to Guarantor and/or the extension of credit to
Borrower by Lender and other good and valuable considerations,
receipt of which is hereby acknowledged, it is agreed as
follows:
1. Guarantor does hereby for itself
and its successors and assigns, unconditionally guaranty on a
continuing basis to Lender, its successors and assigns, the prompt,
faithful and full payment, when due, of the Loan owing by Borrower
to Lender, evidenced by one or more promissory notes, guaranties or
other instruments dated of even date herewith, together with any
and all renewals, extensions and modifications thereof (hereinafter
collectively referred to as “Liabilities” or, in the
singular, “Liability”), which Liabilities are secured
by certain collateral, all as described in that certain Revolving
Credit Agreement of even date herewith between Borrower and Lender
(the “Credit Agreement”).
2. Guarantor shall, upon demand,
when due or matured in accordance with the provisions of any
instrument or document executed by Borrower in connection with the
Liabilities, pay to Lender, its successors and assigns, the amount
of any Liability, irrespective of the validity, regularity or
enforceability of any instrument or writing evidencing such
Liability or of the Liability itself, said payment to be made upon
the maturity of such Liability or at any earlier time by reason of
Lender’s power of acceleration and if the Liability is
secured, said payment shall be made irrespective of the validity,
regularity or enforceability of any instrument or writing
evidencing such security or of the security itself and it shall not
be necessary for Lender to resort to such security before enforcing
Guarantor’s liability hereunder. Demand may be made upon
Guarantor for the enforcement of this guaranty without the
necessity of action at any time by Lender against Borrower. Any
action taken by Lender against Borrower, including foreclosure of
any security held by Lender, shall in no event be considered a
waiver of any rights against Guarantor under this guaranty and
Lender shall, at its sole discretion, have the right at any time to
discontinue any action or proceedings against Borrower and require
full payment by Guarantor of the Liabilities together with
attorney’s fees, cost of the proceedings and court costs. Any
recovery by Lender against Borrower, whether by settlement,
execution or foreclosure of collateral, shall be credited against
Guarantor’s liability hereunder, it being however agreed
that
a compromise and settlement of any Liability
shall, in no sense, compromise or settle Guarantor’s
liability hereunder, but Guarantor shall continue to be liable for
any difference between the full amount of Liabilities and the net
proceeds of any amounts realized by Lender from
Borrower.
3. Guarantor does hereby waive
presentment of any instrument, demand for payment, protest and
notice of non-payment and Guarantor waives all rights arising out
of any statute now existing or hereafter enacted with respect to
suretyship and which may otherwise require Lender at any time to
take legal action against Borrower. Guarantor does hereby waive
notice of the acceptance of this guaranty and notice of any
Liability contracted or incurred by Borrower.
4. Lender may, without notice to
Guarantor, renew, extend, modify or otherwise change the time for
payment of, or otherwise change the terms (including the rate of
interest) of any Loans or indebtedness of Borrower forming part of
the Liabilities and may from time to time at its own discretion,
without notice to Guarantor, release, substitute, diminish or
exchange any security or securities, property or chooses in action
held by it as collateral in connection with any Liability without
in any way affecting Guarantor’s obligation
hereunder.
5. This guaranty shall continue in
full force and be binding upon Guarantor and Lender may continue to
act in reliance hereon until the actual receipt by an officer of
Lender of written notice from Guarantor not to give further
accommodation hereunder. However, notwithstanding receipt of such
notice by Lender, this guaranty shall so continue in full force and
effect with respect to any Loans or advances Lender has committed
or is otherwise obligated to make to or for the account of Borrower
arising out of a commitment or obligation existing at the time of
receipt of such notice of termination. Furthermore, Lender may
renew, extend or otherwise modify any Loans or indebtedness of
Borrower forming part of the Liabilities after receipt of such
notice of termination without affecting the obligations of
Guarantor hereunder (except to the extent that the principal amount
of any indebtedness is increased, but in such an instance the
obligations of Guarantor hereunder shall remain in full force and
effect except for the increased amount of the
Liabilities).
6. Guarantor does hereby give and
grant unto Lender, as security for Guarantor’s liability and
obligations hereunder, a security interest in, a lien on and an
express contractual right to set off against all depository account
balances, cash and any other property of the Guarantor (excluding
trust accounts) now or hereafter in the possession of the Lender
and the right to refuse to allow withdrawals from any non-trust
account (collectively “Setoff”). The Lender may, at any
time upon the occurrence of an Event of Default under the Credit
Agreement setoff against the Liabilities whether or not the
Liabilities (including future installments) are then due or have
been accelerated, all without any advance or contemporaneous notice
or demand of any kind to the Guarantor, such notice and demand
being expressly waived.
7. The word Guarantor, as used
herein, shall designate one or more Guarantors. In the event that
more than one Guarantor is a party to these presents, the liability
of each Guarantor shall be joint and several, each Guarantor to be
fully liable hereunder irrespective of the death, incapacity or
other disqualification of the other Guarantor or Guarantors and
Lender may proceed against one or less than all of the Guarantors,
such proceeding not being deemed an election, and Lender may, at
any time thereafter in the event full payment has not been
realized, proceed against the other Guarantor or Guarantors. Lender
may release any Guarantor hereon or any other surety of Borrower
without affecting the liability hereunder of any Guarantor not
released by Lender.
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8. Guarantor will not exercise any
rights which Guarantor may acquire by way of subrogation under this
guaranty, by any payment made hereunder or otherwise, until all of
the Liabilities shall have been paid in full and Lender shall be
under no duty to extend credit to or for the benefit of Borrower.
If any amount shall be paid to Guarantor on account of such
subrogation rights at any time when all of the Liabilities shall
not have been paid in full, such amount(s) shall be held in trust
for the sole benefit of Lender and shall forthwith be paid to
Lender to be applied to the Liabilities, whether matured or
unmatured, in accordance with the terms of any documents,
instruments or agreements given by Borrower to the Lender
evidencing or relating to the Liabilities.
9. This guaranty shall continue to
be effective or be reinstated, as the case may be, if (i) at
any time any payment of any of the Liabilities is rescinded or must
otherwise be returned by the Lender upon the insolvency, bankruptcy
or reorganization of the Borrower or otherwise, all as though such
payment had not been made, or (ii) this guaranty is released
or the liability of Guarantor hereunder is reduced in consideration
of a payment of money or transfer of property or grant of a
security interest by the Guarantor or any other person or entity
and such payment, transfer or grant is rescinded or must otherwise
be returned by the Lender upon the insolvency, bankruptcy or
reorganization of such person or entity or otherwise, all as though
such payment, transfer or grant had not been made.
10. If any provision of this
guaranty or the application thereof in any jurisdiction and/or to
any person, entity or circumstance shall be invalid or
unenforceable to any extent, the remainder of this guaranty and the
application of such provisions in such jurisdiction and/or to other
persons, entities or circumstances shall not be affected thereby
and shall be enforced to the greatest extent permitted by law in
any other jurisdiction and/or to any other persons, entities or
circumstances. This Continuing Contract of Guaranty is a Missouri
contract and shall be governed by and construed according to the
laws of the State of Missouri.
11. If Lender presently holds one or
more guaranties from Guarantor or hereafter receives additional
guaranties from Guarantor, the rights of Lender under all
guaranties shall be cumulative. This guaranty shall not affect or
invalidate any such other guaranties. The liability of Guarantor
will be the aggregate liability of Guarantor under the terms of
this guaranty and any other unterminated guaranties.
12. The liability of Guarantor in
all cases shall extend to and shall also include all costs incurred
by the Lender in enforcing this guaranty, including reasonable
attorney’s fees and court costs.
13. Any payment of a Liability made
by Borrower or another guarantor shall be credited against
Guarantor’s liabilities hereunder, it being agreed, however,
that a compromise and settlement of any Liability shall, in no
sense, compromise or settle Guarantor’s liabilities
hereunder, but Guarantor shall continue to be liable for any
difference between the full amount of Liabilities and the net
proceeds of any amounts paid by any other party.
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14.
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Each
“Entity Guarantor” (as that term is hereinafter
defined) hereby represents and warrants to Lender that:
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a. It (i) is duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its organization; (ii) has all requisite
corporate or other powers required to carry on its business as now
conducted; (iii) has all requisite governmental and regulatory
licenses, authorizations, conse
