COMERICA BANK
(“Bank”) made one or more loans or provided credit
facilities to LAUREATE PHARMA, INC. (“Borrower”),
pursuant to a Loan and Security Agreement between Borrower and Bank
dated as of December 1, 2004, as amended, including, without
limitation, by that certain First Amendment to Loan and Security
Agreement dated as of January 31, 2005, that certain Second
Amendment to Loan and Security Agreement dated as of May 6,
2005, that certain Third Amendment to Loan and Security Agreement
dated as of June 20, 2005, that certain letter agreement dated
as of January 28, 2006, that certain Fourth Amendment to Loan
and Security Agreement dated as of February 28, 2006, and that
certain Fifth Amendment to Loan and Security Agreement dated as of
August 2, 2006, as amended from time to time (the
“Agreement”). Bank proposes to enter into that certain
Sixth Amendment to Loan and Security Agreement dated as of the date
hereof (the “Amendment”). Acknowledging that Bank would
not enter into the Amendment without the benefit of this Guaranty,
each of the undersigned guarantors (individually, a
“Guarantor”) hereby unconditionally, irrevocably,
jointly and severally guarantees the prompt and complete payment of
all amounts that Borrower owes to Bank in respect of the Equipment
Advances, as defined in the Agreement, in accordance with its terms
and subject to the limitations set forth herein. All terms used
without definition in this Guaranty shall have the meaning assigned
to them in the Agreement. Each Guarantor’s maximum liability
under this Guaranty shall not exceed a principal amount of
$6,000,000 plus interest and fees accrued in connection with the
enforcement of the Agreement.
1. Guarantors
shall pay all amounts due in connection with the Equipment Advances
(including, without limitation, all principal, interest, and fees)
upon demand by Bank in accordance with Section 2
hereof.
2. Each
Guarantor’s maximum liability under this Guaranty shall not
exceed a principal amount of $6,000,000 plus interest and fees
accrued in connection with the enforcement of the Agreement.
Furthermore, the guaranty evidenced hereby is a deficiency guaranty
only. Bank may exercise its remedies hereunder as against the each
Guarantor only (a) after having commenced taking commercially
reasonable efforts to obtain payment from the Borrower and the
other Credit Parties and realize on the collateral security granted
in connection with the Agreement, and (b) for any such
Obligations remaining outstanding beyond 90 days after
(i) the date of such occurrence of an Event of Default under
Section 8.1 (payment of principal or interest under the
Agreement) of the Agreement that remains uncured after such
90 day period; or (ii) the acceleration of the
Obligations which results from any other Event of Default that
remains uncured after such 90 day period.
Notwithstanding
the foregoing, Bank shall not be required to (i) continue to
take any enforcement action after any proceeding under the
Bankruptcy Code has been filed by or against Borrower,
(ii) demand payment if Borrower has filed, or has had filed
against it, a petition or other filing under the Bankruptcy Code
that could operate to stay or otherwise restrict Bank from making
such demand, or seek or obtain relief from any automatic stay under
the Bankruptcy Code, (iii) take any enforcement action in
contravention of any court order, injunction, law or governmental
rule or regulation or contest any such court order, injunction, law
or governmental rule or regulation, (iv) exercise any remedies
with respect to Collateral (as defined in the Agreement), if Bank
believes in good faith that the net amount which could reasonably
be recovered from the Collateral does not justify the time, risks,
cost, or expense involved, or (v) institute, intervene in or
contest any suit or other legal proceedings.
3. The
obligations hereunder are joint and several, are in addition to the
obligations of Guarantors under the Guaranty dated as of
December 1, 2004, as amended, and, subject to Section 2,
are independent of the obligations of Borrower and any other person
or entity, and a separate action or actions may be brought and
prosecuted against a Guarantor whether action is brought against
Borrower or whether Borrower be joined in any such action or
actions. Each Guarantor waives the benefit of any statute of
limitations affecting its liability hereunder or the enforcement
thereof, to the extent permitted by law and subject to the
limitations set forth in Section 2 above. A Guarantor’s
liability under this Guaranty is not conditioned or contingent upon
the genuineness, validity, regularity or enforceability of the
Agreement.
4. Each
Guarantor authorizes Bank, without notice or demand and without
affecting its liability hereunder, from time to time to
(a) renew, extend, or otherwise change the terms of the
Agreement or any part thereof; (b) take and hold security for
the payment of this Guaranty or the Agreement, and exchange,
enforce, waive
1.
and release any
such security; and (c) apply such security and direct the
order or manner of sale thereof as Bank in its reasonable
discretion may determine.
5. Subject to
Section 2, each Guarantor waives any right to require Bank to
(a) proceed against Borrower or any other person;
(b) proceed against or exhaust any security held from
Borrower; or (c) pursue any other remedy in Bank’s power
whatsoever. Subject to Section 2, Bank may, at its election,
exercise or decline or fail to exercise any right or remedy it may
have against Borrower or any security held by Bank, including
without limitation the right to foreclose upon any such security by
judicial or nonjudicial sale, without affecting or impairing in any
way the liability of a Guarantor hereunder. Each Guarantor waives
any defense arising by reason of any disability or other defense of
Borrower or by reason of the cessation from any cause whatsoever of
the liability of Borrower other than any defense of payment by
Borrower or any other obligor. Each Guarantor waives any setoff,
defense or counterclaim that it may have against Bank. Each
Guarantor waives any defense arising out of the absence, impairment
or loss of any right of reimbursement or subrogation or any other
rights against Borrower. Until all of the amounts that Borrower
owes to Bank have been paid in full, a Guarantor shall have no
right of subrogation or reimbursement for claims arising out of or
in connection with this Guaranty, contribution or other rights
against Borrower, and such Guarantor waives any right to enforce
any remedy that Bank now has or may hereafter have against
Borrower. Each Guarantor waives all rights to participate in any
security now or hereafter held by Bank. Each Guarantor waives all
presentments, demands for performance, notices of nonperformance,
protests, notices of protest, notices of dishonor, and notices of
acceptance of this Guaranty and of the existence, creation, or
incurring of new or additional indebtedness. Each Guarantor assumes
the responsibility for being and keeping itself informed of the
financial condition of Borrower and of all other circumstances
bearing upon the risk of nonpayment of any indebtedness or
nonperformance of any obligation of Borrower, warrants to Bank that
it will keep so informed, and agrees that absent a request for
particular information by such Guarantor, Bank shall have no duty
to advise a Guarantor of information known to Bank regarding such
condition or any such circumstances. Each Guarantor waives the
benefits of California Civil Code sections 2809, 2810, 2819, 2845,
2847, 2848, 2849, 2850, 2899 and 3433.
6. Each
Guarantor acknowledges that, to the extent Guarantor has or may
have certain rights of subrogation or reimbursement against
Borrower for claims arising out of this Guaranty, those rights may
be impaired or destroyed if Bank elects to proceed against any real
property security of Borrower by non-judicial foreclosure. That
impairment or destruction could, under certain judicial cases and
based on equitable principles of estoppel, give rise to a defense
by Guarantor against its obligations under this Guaranty. Each
Guarantor waives that defense and any others arising from
Bank’s election to pursue non-judicial foreclosure. Without
limiting the generality of the foregoing, each Guarantor waives any
and all benefits and defenses under C
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