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GUARANTY
This guaranty (the
“Guaranty”) is entered into as of February 28, 2007 by
PLANT HEALTH CARE plc, a public limited company duly organized and
existing under the laws of England and Wales
(“Guarantor”) for the benefit of EDEN BIOSCIENCE
CORPORATION, a Washington corporation
(“Payee”).
RECITALS
A. Pursuant to the terms
of an Asset Purchase Agreement (the “Agreement”) dated
as of December 1, 2006 between Payee and Plant Health Care, Inc., a
Pennsylvania corporation and a subsidiary of Guarantor
(“Maker”), under which Maker agreed to purchase certain
assets and assume certain obligations of Payee, Maker has delivered
to Payee concurrently herewith a Secured Promissory Note in the
original principal amount of $700,751 (the “Note”),
along with a Security Agreement and Patent and Trademark Security
Agreement (the “Security Agreement”). The Agreement,
the Note, this Guaranty, and the Security Agreement, along with any
amendments or modifications thereto, or instruments delivered in
connection therewith, are collectively referred to herein as the
“Documents.” Capitalized terms used in this Guaranty
that are not defined herein shall have the meanings assigned to
those terms in the Agreement.
B. Guarantor is the
indirect parent of Maker and, as such, will derive direct and
indirect economic benefits from the Agreement, including without
limitation the provisions of the Note.
C. One of the conditions
precedent to the obligations of Payee to consummate the
transactions contemplated by the Agreement is receipt by Payee of
this Guaranty from Guarantor. Guarantor is executing this Guaranty
in order to satisfy that condition. Payee would not have accepted
the Note but for the execution and delivery of this
Guaranty.
NOW, THEREFORE, for
valuable consideration, and in order to induce Payee to enter into
the Agreement, Guarantor agrees as follows:
SECTION I
UNCONDITIONAL GUARANTY
Guarantor unconditionally,
absolutely, and irrevocably guarantees payment and performance of
all present and future debts, liabilities, and obligations of Maker
to Payee under the Note, including, but not limited to, the due and
punctual payment of the principal and interest owed pursuant to the
Note, whether according to the present terms of the Note, or at any
earlier or accelerated date or dates as provided therein, or
pursuant to any amendment, modification, or replacement of the Note
(collectively, the “Obligations”). The liability of
Guarantor under this Guaranty includes accrued interest on any sum
due under this Guaranty (calculated at the highest rate of interest
in effect under the Note at the time in question) and expenses due
pursuant to Section 10.6 of this Guaranty; provided, however, that
the Obligations shall be subject to the rights of setoff provided
to Maker under the Note.
SECTION II
WAIVERS BY GUARANTOR AND RIGHTS OF PAYEE
Guarantor intends that it
shall remain unconditionally liable for payment of the Obligations
regardless of any act or omission that otherwise might operate as a
legal or equitable defense to discharge Maker, Guarantor, or any
other guarantor of the Obligations in whole or in part. Therefore,
Guarantor hereby waives any defense it has or may have to the
enforceability of its obligations under this Guaranty (except those
matters, if any, that may not be waived under the Uniform
Commercial Code of the State of Delaware (the “UCC”) or
other applicable law) by virtue of any of the following and,
subject to the terms of the Documents and applicable law, Payee may
do any of the following things as many times as Payee
wishes,
without Guarantor’s permission and without notifying
Guarantor, and this will not affect Guarantor’s promise to
pay the entire amount of the Obligations:
(a) Payee does not have to
notify Guarantor of Payee’s acceptance of this
Guaranty;
(b) Payee does not have to
notify Guarantor of (i) Maker’s failure to pay all or any
portion of the Obligations when due, or (ii) Maker’s failure
to perform any other obligation under the Note;
(c) Payee may extend,
renew, accelerate, or otherwise change the time for payment of any
of Maker’s obligations to Payee;
(d) Payee may make any
other changes to the Note pursuant to the terms of the
Note;
(e) Payee may release
Maker, any other guarantor of the Obligations, or anyone else
against whom Payee may have the right to collect amounts that may
become due under the Note;
(f) Payee may use the
Collateral to satisfy the Obligations (in whole or in part, as
applicable) and direct the order or manner of sale thereof pursuant
to the terms and conditions of the Security Agreement in
Payee’s good faith discretion;
(g) Payee may apply any
money or Collateral received from or on behalf of Maker to the
repayment of any indebtedness due to Payee from Maker in any order
that Payee elect;
(h) Payee may release,
surrender, substitute, add, or exchange any Collateral that Payee
now holds or may later acquire as security for the Obligations, or
Guarantor’s obligations hereunder;
(i) Payee may forbear from
or forego pursuing Maker, or from foreclosing or otherwise
realizing upon any security interest, letter of credit, or other
guaranty;
(j) Payee may impair any
Collateral, or Guarantor’s obligations hereunder, by
Payee’s acts or omissions, including, but not limited to,
Payee’s failure to perfect a security interest in any
Collateral;
(k) Guarantor hereby
waives any defense arising out of the absence, impairment, or loss
of (i) any or all rights of recourse, reimbursement, contribution,
or subrogation, or (ii) any other right or remedy of Guarantor
against Maker, any other party, or any Collateral;
(l) Guarantor hereby
waives any defense (i) arising by reason of any invalidity,
ineffectiveness, or unenforceability of all or any portion of any
of the Documents, or (ii) otherwise available to or asserted by
Maker (other than full payment in cash);
(m) Guarantor waives
diligence, demand for performance, notice of nonperformance,
presentment, protest, notice of dishonor, and indulgences and
notices of every other kind; and
(n) Guarantor agrees that
Payee in its sole and absolute discretion may proceed against all
or any portion of the Collateral by way of either judicial or
nonjudicial foreclosure in accordance with the terms of the
Security Agreement and applicable law.
If Guarantor pays the
Obligations in accordance with the terms of this Guaranty, Payee
shall assign Payee’s rights with respect to the Obligations
under the Note and the Security Agreement to Guarantor (without
recourse, warranty, or representation) provided, however, that such
assignment shall be subject to the terms of this Guaranty,
including the waivers set forth in this Section II of this
Guaranty.
SECTION III
PAYEE’S RIGHT NOT TO PROCEED AGAINST MAKER,
OTHER GUARANTORS, OR COLLATERAL
If an Event of Default
occurs under the Security Agreement and is continuing, Payee may
enforce this Guaranty against Guarantor (a) without attempting to
collect or without exhausting efforts to collect from Maker, any
other guarantor, or anyone else who is or may be liable for the
Obligations, or (b) without
attempting to enforce the rights of Payee in any Collateral.
Without limiting the foregoing, Payee may sue on the Note, may
elect not to sue on the Note, may elect not to enforce the security
interest in some or all of the Collateral, may sue less than all of
the guarantors of the Obligations, or may take any other action
authorized under the Documents or by law. In each case, Payee shall
have the right to exercise all available remedies in whatever order
Payee elects in accordance with the terms of the Agreement and
applicable law and may join Guarantor in any suit on the Documents,
or may proceed against Guarantor in a separate proceeding. In case
of suit, sale, or foreclosure, only the net proceeds therefrom,
after deducting all charges and expenses of any kind and nature
whatsoever, shall be applied to the reduction of the amount due on
the Note (or other Documents, as applicable), and Payee shall not
be required to institute or prosecute proceedings to recover any
deficiency as a condition of payment under or enforcement of this
Guaranty. At any sale of all or any portion of the Collateral,
Payee may in its discretion purchase all or any part of the
Collateral and may apply against the amount bid therefor all or any
portion of the balance of the Obligations. Guarantor hereby waives
to the fullest extent permitted by applicable law at the time in
question (including the UCC) the right to object to the amount that
may be bid by Payee at such foreclosure sale.
SECTION IV
BANKRUPTCY AND ASSI
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