Exhibit 10.16
GUARANTY
(Omrix Biopharmaceuticals, S.A.)
For and in consideration of the loan by HERCULES TECHNOLOGY GROWTH CAPITAL,
INC. ("Lender") to OMRIX BIOPHARMACEUTICALS, INC., a Delaware corporation
("Borrower"), which loan is made pursuant to a Senior Loan and Security
Agreement between Borrower and Lender dated as of March 31, 2005 (the
"Agreement"), and acknowledging that Lender would not enter into the Agreement
without the benefit of this Guaranty, the undersigned OMRIX BIOPHARMACEUTICALS,
S.A. ("Guarantor") hereby unconditionally and irrevocably guarantees the prompt
and complete payment of all amounts that Borrower owes to Lender pursuant to the
Loan Documents, as amended from time to time (collectively referred to as the
"Agreements"), in strict accordance with their respective terms. All terms used
without definition in this Guaranty shall have the meaning assigned to them in
the Agreement.
1. If Borrower does not pay any amount due to Lender in strict accordance
with the Agreements despite a notice of such failure provided to it by Lender,
and only if such failure constitutes an Event of Default under the Agreement,
then and only then Guarantor shall, immediately upon receipt of Lender's written
request, pay all amounts due thereunder (including, without limitation, all
principal, interest, and fees).
2. If there is more than one guarantor, the obligations hereunder are joint
and several, and whether or not there is more than one guarantor, the
obligations hereunder 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 Guarantor whether action is brought against Borrower or
whether Borrower be joined in any such action or actions.
3. Guarantor authorizes Lender, 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 Agreements or any part thereof, pursuant to
the provisions in the Agreements related to a change of their terms; (b) take
and hold security for the payment of this Guaranty or the Agreements, and
exchange, enforce, waive and release any such security, pursuant to the terms of
the Agreements; and (c) apply such security and direct the order or manner of
sale thereof as Lender in its sole discretion may determine, pursuant to the
terms of the Agreements.
4. Guarantor waives any right to require Lender to (a) proceed against
Borrower, any guarantor or any other person; (b) proceed against or exhaust any
security held from Borrower; or (c) pursue any other remedy in Lender's power
whatsoever. Lender 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 Lender,
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 Guarantor hereunder. 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 Lender have been paid in full, Guarantor shall have no right of subrogation
or reimbursement, contribution or other rights against Borrower, and Guarantor
waives any right to enforce any remedy that Lender now has or may hereafter have
against Borrower. Except as explicitly provided herein, 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. 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 Lender that it will keep so informed, and
agrees that absent a request for particular information by Guarantor, Lender
shall not have any duty to advise Guarantor of information known to Lender
regarding such condition or any such circumstances. Guarantor waives the
benefits of California Civil Code sections 2809, 2810, 2819, 2845, 2847, 2848,
2849, 2850, 2899 and 3433.
5. 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
Lender 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. Guarantor
waives that defense and any others arising from Lender's election to pursue
non-judicial foreclosure. Without limiting the
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generality of the foregoing, Guarantor waives any and all benefits and defenses
under California Code of Civil Procedure Sections 580a, 580b, 580d and 726, to
the extent they are applicable.
6. If Borrower becomes insolvent or is adjudicated Bankrupt or files a
petition for reorganization, arrangement, composition or similar relief under
any present or future provision of the United States Bankruptcy Code, or if such
a petition is filed against Borrower, and in any such proceeding some or all of
any indebtedness or obligations under the Agreements are terminated or rejected
or any obligation of Borrower is modified or abrogated, or if Borrower's
obligations are otherwise avoided for any reason, Guarantor agrees that
Guarantor's liability hereunder shall not thereby be affected or modified and
such liability shall continue in full force and effect as if no such action or
proceeding had occurred. This Guaranty shall continue to be effective or be
reinstated, as the case may be, if any payment must be and is returned by Lender
to the Borrower or any other guarantor, except the Guarantor, upon the
insolvency, Bankruptcy or reorganization of Borrower, or any other guarantor,
except the Guarantor, or otherwise, as though such payment had not been made.
7. Guarantor agrees to pay reasonable attorneys' fees and all other costs
and expenses, which may be incurred by Lender in the enforcement of this
Guaranty. No terms or provisions of this Guaranty may be changed, waived,
revoked or amended without Lender's prior written consent. Should any provision
of this Guaranty be determined by a court of competent jurisdiction to be
unenforceable, all of the other provisions shall remain effective. This Guaranty
embodies the entire agreement among the parties hereto with respect to the
matters set forth herein, and supersedes all prior agreements among the parties
with respect to the matters set forth herein. No course of prior dealing among
the parties, no usage of trade, and no parol or extrinsic evidence of any nature
shall be used to supplement, modify or vary any of the terms hereof. There are
no conditions to the full effectiveness of this Guaranty. Lender may assign this
Guaranty without in any way affecting Guarantor's liability under it, but may
only assign this Guaranty to the same party, and at the same time, it assigns
the Agreement pursuant to the terms thereof. This Guaranty shall inure to the
benefit of Lender and its successors and assigns. This Guaranty is in addition
to the guaranties of any other guarantors and any and all other guaranties of
Borrower's indebtedness or liabilities to Lender.
8. Guarantor represents and warrants to Lender that (i) Guarantor has taken
all necessary and appropriate action to authorize the execution, delivery and
performance of this Guaranty, (ii) execution, delivery and performance of this
Guaranty do not conflict with or result in a breach of or constitute a default
under Guarantor's charter documents or other organizational documents or
agreements to which it is party or by which it is bound, and (iii) this Guaranty
constitutes a valid and binding obligation, enforceable against Guarantor in
accordance with its terms.
9. Guarantor shall not transfer, assign, encumber or otherwise dispose of
any shares of capital stock or other equity interest Guarantor may now have or
hereafter acquire in Omrix Biopharmaceuticals Ltd. This Guaranty shall be
governed by the laws of the State of California, without regard to conflicts of
laws principles. EACH OF LENDER AND GUARANTOR WAIVE ANY RIGHT TO A JURY TRIAL OF
ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY OR ANY
OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS.
Each of Lender and Guarantor submit to the jurisdiction of the state and federal
courts located in Santa Xxxxx County, California for purposes of this Guaranty
and the Agreements. If the jury waiver set forth in this Section is not
enforceable, then any dispute, controversy or claim arising out of or relating
to this Agreement or any of the transactions contemplated herein shall be
settled by final and binding arbitration held in Palo Alto, California in
accordance with the then applicable Commercial Arbitration Rules of the American
Arbitration Association. Judgment upon any award resulting from arbitration may
be entered into and enforced by any state of federal court having jurisdiction
thereof.
10. All payments made by Guarantor hereunder will be made free and clear
of, and without deduction or withholding for, any present or future taxes,
levies, imposts, duties, fees, assessments or other charges of whatever nature
now or hereafter imposed by any governmental authority or by any political
subdivision or taxing authority thereof or therein with respect to such payments
(but excluding any tax imposed on or measured by the income or profits of the
Lender) and all interest, penalties or similar liabilities with respect thereto
(all such non-excluded taxes, levies, imposts, duties, fees, assessments or
other charges being referred to collectively as "Taxes"). If any Taxes are so
levied or imposed, Guarantor agrees to pay the full amount of such Taxes, and
such additional
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amounts as may be necessary so that every payment of all amounts due under this
Guaranty, after withholding or deduction for or on account of any Taxes, will
not be less than the amount provided for herein.
11. Notwithstanding anything stated to the contrary contained in this
Guaranty and the Loan Documents, the Borrower's and the Guarantors' total and
maximum liability toward Lender for any breach of this Agreement and the Loan
Documents, any guaranty of the obligations under this Guaranty and the Loan
Documents executed by any Person other than Borrower (including without
limitation the Guaranty), the covenants or in any case of an Event of Default or
otherwise under all such agreements (but expressly excluding from this limit any
liability in respect of the Warrant Agreement) shall be limited to the then
current outstanding unpaid Loan amount including all unpaid interest accrued
thereon plus any expenses due under Section 12.15 of the Agreement plus any
amount due on account of Section 6.3 of the Agreement.
12. Notwithstanding anything to the contrary stated herein (a) Lender shall
only make a claim or exercise its rights under this Guaranty upon the occurrence
of an Event of Default under the Agreement, and (b) the Guarantor shall be
entitled to the same rights of Borrower under the Loan Documents to defend and
protect itself against any claim made by Lender pursuant to the Guaranty and the
Loan Documents.
13. The Borrower acknowledges that any sale and/or transfer of the shares
of Omrix Biopharmaceuticals Ltd. held by the Guarantor, requires the written
consents of Discount Bank Ltd. and Bank Hapoalim Ltd.
14. To secure performance of this Guaranty, Guarantor grants Lender a
security interest in, and charge over, the following property, now owned or
hereafter acquired (the "Collateral") by Guarantor: shares of capital stock, and
any other interest in, Omrix Biopharmaceuticals Ltd, together with all dividends
and distributions payable or otherwise due or to become due on account of such
stock or interest; accounts and accounts receivable; inventory; equipment;
general intangibles, deposit accounts; securities; financial assets; investment
property; and all proceeds thereof, provided the Collateral shall not include
intellectual property, but shall include all proceeds from the sale, licensing
or disposition of any intellectual property. Guarantor authorizes Lender to
execute and file such documents, and to take such other actions, as Lender
reasonably determines appropriate to perfect or enforce the security interest
granted herein.
IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty as of
March 31, 2005.
OMRIX BIOPHARMACEUTICALS, S.A.
By: /s/ Xxxxxxx Xxxxxxxxx
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Title: CFO
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Accepted and Agreed:
HERCULES TECHNOLOGY GROWTH CAPITAL,
INC.
Signature: /s/ Xxxxx Xxxxxx
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Print Name: Xxxxx Xxxxxx
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Title: Chief Legal Officer
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