Exhibit 10.113
UNCONDITIONAL GUARANTEE
AGREEMENT
THIS
UNCONDITIONAL GUARANTY AGREEMENT (this “ Agreement ”) is
effective as of the 15 th day of June, 2009, between
CORAMANDEL INFRASTRUCTURE PRIVATE LIMITED, a company incorporated
under the Company Act, 1956, in the Republic of India (the “
Guarantor ”), in favor of ORE PHARMACEUTICALS INC., a
Delaware corporation, any successor holder of the Note described
below, and all successors and assigns of any of the foregoing
(collectively, “ Ore ”).
WHEREAS , Ore, Ocimum Biosolutions Inc., a Delaware
corporation and an affiliate of Guarantor ( “ Ocimum
”), and Ocimum Biosolutions (India) Limited, a company
incorporated under the Company Act, 1956 in the Republic of India,
the parent of Ocimum and an affiliate of Guarantor (
“Ocimum India” , and together with Ocimum,
“Maker” ), have agreed to Maker’s Secured
Note (the “ Note ”) of even date herewith in a
stated principal amount equal to Three Million Dollars ($3,000,000)
(the “ Principal Amount ”); (ii) that certain
Security Agreement of even date herewith between Ore and Ocimum
(the “Security Agreement” ); and (iii) other
Security Documents (as defined in the Security
Agreement).
WHEREAS, Ore desires a guaranty of the Note and Guarantor
has agreed to guaranty the Note, pursuant to the terms of this
Agreement.
NOW,
THEREFORE , in
consideration of the foregoing and in consideration of the mutual
covenants herein contained and of One Dollar ($1.00) and other good
and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Guarantor hereby agrees as
follows:
1.
Recitals . The above recitals are
incorporated herein as part of this Agreement.
2. Representations and
Warranties of the Guarantor . The Guarantor represents and
warrants that as of the date hereof:
(a) The
Note obligates Ocimum and Ocimum India to repay a commercial loan
within the meaning of Section 12-101(c) of the Commercial Law
Article of the Annotated Code of Maryland.
(b) Guarantor
has read or has had an opportunity to review the Note, the Security
Agreement (the other Security Documents) and all documents referred
to herein or therein, and this Agreement is Guarantor’s valid
and legally binding obligation and is fully enforceable against
Guarantor in accordance with its terms, except as such may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other laws affecting creditors’ rights
generally.
(c) Except
as disclosed on Schedule 2(c) attached hereto and
incorporated herein by this reference, there are (i) no provisions
of any existing mortgage, indenture, contract or agreement binding
on Guarantor or affecting Guarantor’s property, and (ii) to
Guarantor’s knowledge, no provision of law or order of court
or of an administrative officer or administrative agency, binding
upon Guarantor or Guarantor’s property, which would conflict
with or in any way prevent the execution, delivery or performance
of the terms of this Agreement or which would be in default or
breached as a result of such execution, delivery or
performance.
(d) There
are no proceedings pending or, so far as the Guarantor knows,
threatened, before any court or administrative agency or officer
which, in the reasonable opinion of the Guarantor, will materially
adversely affect its financial condition.
3.
Guaranty . Guarantor hereby fully absolutely,
unconditionally and irrevocably guarantees to Ore all of the
following obligations (collectively, the “ Guaranteed
Obligations ”):
(a) the
full and prompt payment (and not merely the collection) of the
then-outstanding Principal Amount and all other amounts due with
respect to the Note, including all interest payments thereon, and
any and all renewals, extensions, substitutions and replacements
thereof; and
(b) the
payment of all expenses and charges (including all court costs and
reasonable attorneys’ fees) paid or incurred by Ore in
realizing upon the Note or in enforcing this Agreement, the
Security Agreement or any other Security Documents.
4. Separate Causes of
Action . Each and every Event of Default
(hereinafter defined) or failure by Maker to punctually pay or
perform any of Maker’s Obligations (as defined in the
Security Agreement) underlying the Guaranteed Obligations shall
give rise to a separate cause of action hereunder, and separate
actions may be brought hereunder as each cause of action
arises.
5. Continuing
Guaranty .
The obligations of the Guarantor under this Agreement shall be
continuing, irrevocable and unconditional and shall remain in full
force and effect so long as any of the Guaranteed Obligations
remain unpaid or unperformed, irrespective of the invalidity,
irregularity or unenforceability of the Note. Without
limiting the generality of the foregoing, the obligations of the
Guarantor hereunder shall not, to the maximum extent permitted by
law, be affected, modified or impaired upon the happening from time
to time of any event or circumstance, including, without
limitation, the assignment, waiver of payments, performance or
observance, compromise, settlement, release or termination of any
or all of the rights, remedies, obligations, covenants or
agreements of Maker or the Guarantor under the Note, the extension
of time for the payment of all or any part of the principal of, or
interest on, the Note, the modification or amendment of any
obligation, covenant, agreement or provision of the Note; any
failure, omission, delay or deficiency on the part of Ore to
enforce, assert or exercise any right, power or remedy conferred on
it; the voluntary or involuntary liquidation, dissolution, merger,
sale or other disposition of all or substantially all of the assets
of Maker, or any receivership, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement,
composition or readjustment of debt or other similar proceeding
affecting Maker or any of the Guaranteed Obligations; the release
or discharge of any other guarantor of the Guaranteed Obligations
from such guarantee or the performance or observance of any
obligation, covenant, agreement, duty, term or condition in respect
thereof, whether by operation of law or for any other reason or;
the release of any collateral or security for any of the Guaranteed
Obligations or any other guaranty thereof.
6. Right to Proceed
Directly Against the Guarantor . Upon the occurrence of an Event of
Default, Ore, in its sole discretion, may proceed first and
directly against the Guarantor under this Agreement without
proceeding against or exhausting any other security held by any
person in connection with the Guaranteed Obligations or the
Guarantor’s obligations hereunder, and without first filing
any suit or proceeding to obtain or assert a claim for judgment
against Maker or any other guarantor of the Guaranteed Obligations,
foreclosing on or disposing of any security therefor, or making any
effort at collection of the Guaranteed Obligations from Maker, any
other guarantor thereof or any other person.
7. Confession of
Judgment . UPON
A DEFAULT IN A PAYMENT UNDER THE NOTE, OR IN THE PAYMENT OF ANY
INSTALLMENT DUE THEREUNDER, THE GUARANTOR HEREBY APPOINTS AND
AU
