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June 25, 2008
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Cornerstone
Biopharma Holdings, Inc.
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2000 Regency
Parkway, Suite 255, Cary NC 27518
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Aristos
Pharmaceuticals, Inc.
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2000 Regency
Parkway, Suite 255, Cary, NC 27518
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PARAGON
COMMERCIAL BANK
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3535
Glenwood Avenue
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Raleigh,
North Carolina 27612
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WHEREAS , the above OBLIGOR(S) (hereinafter jointly and
severally termed “Customer”) desire(s) to obtain
extensions of credit and/or a continuation of credit extensions
and/or to engage in business transactions and enter into various
contractual relationships and otherwise to deal with Paragon
Commercial Bank (hereinafter termed “Bank”);
and
WHEREAS , Bank is unwilling to extend or continue to
extend credit to and/or to engage in business transactions and
enter into various contractual relationships with, and otherwise to
deal with Customer; unless it receives an unconditional and
continuing, joint and several guaranty from the above identified,
undersigned GUARANTOR(S) (each, any and all of whom are hereinafter
termed “Guarantor”), covering all “Obligations of
Customer,” as hereinafter defined.
NOW,
THEREFORE , in
consideration of the premises and of other good and valuable
consideration, and in order to induce Bank, from time to time, in
its sole discretion to extend or continue to extend credit(with or
without security) to and/or to engage in business transactions and
enter into various contractual relationships with Customer (without
limiting the generality of the foregoing, this Guaranty is being
given in order to induce Bank to lease and/or sell real, personal
and/or mixed property to Customer, to purchase or discount any
Acceptances, Accounts, Chattel Paper, Checks, Contracts, Contract
Rights, Drafts, General Intangibles, Instruments, Investment
Securities, Land Contracts, Purchase Money Security Agreements
(Conditional Sale Contracts of real and/or personal property), Real
and/or Personal Property Leases, or any other instruments or
evidences of indebtedness (with or without recourse) upon which
Customer, jointly or severally, is or may be liable as maker,
co-maker, endorser, acceptor, guarantor, surety or otherwise and
otherwise to deal with Customer), Guarantor (jointly and severally,
if more than one) hereby absolutely and unconditionally guarantees
to Bank and its successors and assigns, the due and punctual
payment of all indebtedness, obligations and liabilities of said
Customer to Bank, and all claims of Bank against the Customer
primary or secondary (whether by way of endorsement or otherwise),
whether now existing or hereafter arising, whether arising out of
contract(s), tort(s) or otherwise, whether created directly with
Bank or acquired by Bank through assignment, endorsement or
otherwise; whether matured or unmatured; whether absolute or
contingent; whether joint or several; whether secured or unsecured;
whether monetary or nonmonetary; whether liquidated or
unliquidated, as and when the same become due and payable (whether
by acceleration or otherwise), in accordance with the terms of any
instruments, accounts receivable, security agreements, land and/or
other contracts, drafts, leases, chattel paper, debts, obligations
or liabilities evidencing any such indebtedness, obligations,
liabilities, or claims, including all renewals, extensions,
substitutions and/or modifications thereof (all indebtedness,
obligations and liabilities of the Customer to Bank and claims of
Bank against Customer, including all of the foregoing, being
hereinafter collectively termed “Obligations of
Customer”) provided, however, that the maximum liability,
jointly and severally, of the undersigned Guarantors hereunder, at
any one time outstanding, with respect to the aggregate principal
amount of the “Obligations of Customer,” shall not
exceed the sum of money here specified, plus all interest or
finance charges thereon, costs of court, default interest thereon,
late payment charges and the reasonable attorney’s fees of
Bank, to wit:
Four Million and 00/100 Dollars
($4,000,000.00)
Further , if the Obligations of Customer or this
Guaranty are referred to an attorney-at-law, including Bank’s
in-house counsel, for collection, whether or not suit is commenced,
Guarantor expressly hereby agrees to pay all expenses of
collection, including, without limitation, reasonable
attorneys’ fees. Guarantor hereby stipulates and agrees that,
if suit is instituted, 15% of the total amount(s) due hereunder and
remaining unpaid at the time suit is instituted by Bank shall be
deemed to be the “reasonable attorneys’
fees.”
In order to
implement the foregoing and as additional inducements to Bank,
Guarantor further covenants and agrees:
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1.
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This guaranty is and shall remain an
unconditional and continuing guaranty of payment and not of
collection, shall remain in full force and effect irrespective of
any interruption(s) in the business or other dealings and relations
of Customer with Bank and shall apply to and guarantee the due and
punctual payment and performance of all “Obligations of
Customer” due by Customer to Bank. To that end, Guarantor
hereby expressly waives any right to require Bank to bring any
action against any Customer or any other person(s) or to require
that resort be had to any security or to any balance(s) of any
deposit or other account(s) or debt(s) or credit(s) on the books of
Bank in favor of Customer or any other person(s) and without
limiting the generality of the foregoing, undersigned Guarantor
herewith expressly waives any rights he otherwise might have had
under the provisions of G.S. §26-7, et seq. and/or other laws
to require Bank to attempt to recover against Customer and/or to
realize upon any securities or collateral security which Bank holds
for the Obligations of Customer. Any Guarantor may, by a written
notice, delivered personally to or received by certified or
registered United States Mail by an officer of Bank actually
involved in the transactions being guaranteed hereby, at the
address of Bank first above given, terminate this Guaranty with
respect to all “Obligations of Customer” incurred or
contracted by Customer, acquired by Bank, or otherwise arising more
than thirty (30) business days after the date on which such
written notice is so delivered to or received by said Bank officer.
Such written notice of termination shall be the sole and exclusive
method for terminating this Guaranty as to future Obligations of
Customer and notwithstanding termination, this Guaranty and all
security given for this Guaranty and/or the Obligations of Customer
shall remain in full force and effect as to all Obligations of
Customer incurred, existing, or arising in any manner
pre-termination, including, without limitation, all Obligations of
Customer then existing or thereafter arising under loan commitments
which exist pre-termination and all Obligations of Customer under
lines of credit and/or revolving lines of credit for advances both
pre- and post-termination.
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2.
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TIME IS OF THE ESSENCE
HEREOF . Any
notice(s) to Guarantor shall be sufficiently given, if mailed to
the first above stated address(es) of Guarantor.
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3.
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This Guaranty Agreement constitutes
the entire agreement between the parties with respect to this
Guaranty, and no waivers or modifications shall be valid unless
they are reduced to writing, duly executed by the party to be
charged thereby, and expressly approved in writing by an officer of
Bank actually involved in the transactions being guaranteed hereby.
This Guaranty does not terminate, cancel, supersede, renew, or
substitute for any existing guarantee to Bank by any Guarantor,
unless expressly provided herein, and the execution and delivery
hereafter to Bank by any Guarantor of a new guarantee shall not
terminate, cancel, supersede, or be a renewal or substitution for
this Guaranty, unless expressly provided therein, and all rights
and remedies of Bank hereunder, under any existing guarantee, or
under any guarantee hereafter given to Bank by any Guarantor shall
be cumulative and may be enforced singly or
concurrently.
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4.
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If
any process is issued or ordered to be served upon Bank, seeking to
seize Customer’s and/or Guarantor’s rights and/or
interests in any bank account(s), such bank account(s) shall be
deemed to have been and shall be set-off against any and all
“Obligations of Customer” and/or all obligations and
liabilities of Guarantor hereunder, as of the time of the issuance
of any such writ or process, whether or not Customer, Guarantor
and/or Bank shall then have been served with notice
thereof.
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5.
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All
moneys available to and/or received by Bank for application toward
payment of (or reduction of) the “Obligations of
Customer” may be applied by Bank to such individual debt(s)
in such manner, and apportioned in such amount(s) and at such
time(s), as Bank, in its sole discretion, may deem suitable or
desirable.
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6.
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As
security for any and all liabilities of Guarantor hereunder, now
existing or hereafter arising, Guarantor hereby grants Bank a
security interest in any and all moneys or other property (i.e.,
goods and merchandise, as well as all documents relative thereto,
also, funds, investment securities, choses in action and any and
all other forms of property, whether real, personal or mixed, and
any right, title, or interest of Guarantor therein or thereto)
and/or the proceeds thereof, which have been or may hereafter be,
deposited or left with Bank (or with any agent or other third party
acting on Bank’s behalf) by or for the account or credit of
Guarantor, including (without limitation of the foregoing), any
property in which Guarantor may have any interest. Further, where
any obligation of Guarantor is due and unpaid Bank hereunder, Bank
is herewith authorized to exercise its right of Set-Off or
“Bank Lien” as to any moneys deposited in demand,
checking, time, savings, or other accounts of any nature maintained
in and with it by any of the undersigned, without advance notice.
Such right of Set-Off shall also be applicable and exercised by
Bank, in its sole discretion, where Bank is indebted to any
Guarantor by reason of any Certificate(s) of Deposit, Bond(s),
Note(s) or otherwise.
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7.
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Guarantor acknowledges that any
termination of liability hereunder, as provided for in paragraph 1
above shall not terminate this Guaranty as to existing Obligations
of Customer nor release Guarantor from full liability for
“Obligations of Customer” hereby guaranteed and then in
existence including, without limitation, all Obligations of
Customer the existing or thereafter arising under loan commitments
which exist pre-termination and all Obligations of Customer under
lines of credit and for revolving lines of credit for advances
subsequent to the effective date of termination, or from full
liability for renewal(s) or extension(s) of
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