Exhibit 99.3
CONTINUING UNCONDITIONAL GUARANTY
This CONTINUING UNCONDITIONAL GUARANTY dated as of March 29, 2005 (the
"Guaranty"), is executed by ROCKWELL TRANSPORTATION, INC., a Michigan
corporation (the "Guarantor"), whose address is 00000 Xxxxx Xxxx, Xxxxx,
Xxxxxxxx 00000, to and for the benefit of STANDARD FEDERAL BANK NATIONAL
ASSOCIATION, a national banking association (together with any of its affiliate
or subsidiary corporations, or their successors or assigns, being collectively
referred to herein as the "Bank"), whose address is 0000 Xxxx Xxx Xxxxxx Xxxx,
Xxxx, Xxxxxxxx 00000.
WHEREAS, Rockwell Medical Technologies, Inc., a Michigan corporation (the
"Borrower"), whose address is 00000 Xxxxx Xxxx, Xxxxx, Xxxxxxxx 00000, desires
or may desire at some time and/or from time to time to obtain financial
accommodations from the Bank; and
WHEREAS, the Guarantor is a subsidiary of the Borrower, and desires the
Bank to extend or continue the extension of credit to the Borrower and the Bank
has required that Guarantor execute and deliver this Guaranty to the Bank as a
condition to the extension and continuation of credit by the Bank; and
WHEREAS, the extension or continued extension of credit, as aforesaid, by
the Bank is necessary and desirable to the conduct and operation of the
business of the Borrower and will inure to the financial benefit of the
Guarantor;
NOW, THEREFORE, FOR VALUE RECEIVED, it is agreed that the preceding
provisions and recitals are an integral part hereof and that this Guaranty shall
be construed in light thereof, and in consideration of advances, credit or other
financial accommodation heretofore afforded, concurrently herewith being
afforded or hereafter to be afforded to the Borrower by the Bank, the Guarantor
hereby unconditionally and absolutely guarantees to the Bank or other person
paying or incurring the same, irrespective of the validity, regularity or
enforceability of any instrument, writing, arrangement or credit agreement
relating to or the subject of any such financial accommodation, the prompt
payment in full of: (a) any and all indebtedness, obligations and liabilities of
every kind and nature of the Borrower to the Bank (including all indebtedness,
obligations and liabilities of partnerships created or arising while the
Borrower may have been or may be a member thereof), howsoever evidenced, whether
now existing or hereafter created or arising, direct or indirect, primary or
secondary, absolute or contingent, due or to become due, joint, several or joint
and several, and howsoever owned, held or acquired, whether through discount,
overdraft, purchase, direct loan or as collateral, or otherwise, plus (b) all
costs, legal expenses and attorneys' and paralegals' fees of every kind
(including those costs, expenses and fees of attorneys and paralegals who may be
employees of the Bank, its parent or affiliates), paid or incurred by the Bank
in endeavoring to collect all or any part of the foregoing indebtedness, or in
enforcing its rights in connection with any collateral therefor, or in enforcing
this Guaranty, or in defending against any defense, counterclaim, setoff or
crossclaim based on any act of commission or omission by the Bank with respect
to the
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foregoing indebtedness, any collateral therefor, or in connection with any
Repayment Claim (as hereinafter defined), plus (c) interest on the foregoing
from and after demand from the Bank to the Guarantor for payment of the
foregoing, at a floating per annum rate of interest equal to four percent
(4.00%) over the Prime Rate (as hereinafter defined) (collectively, the
"Guaranteed Debt"). In addition, the Guarantor hereby unconditionally and
absolutely guarantees to the Bank the prompt, full and faithful performance and
discharge by the Borrower of each of the terms, conditions, agreements,
representations and warranties on the part of the Borrower contained in any
agreement, or in any modification or addenda thereto or substitution thereof in
connection with any of the Guaranteed Debt.
As used herein, "Prime Rate" shall mean the floating per annum rate of
interest which at any time, and from time to time, shall be most recently
announced by the Bank as its Prime Rate, which is not intended to be the Bank's
lowest or most favorable rate of interest at any one time. The effective date of
any change in the Prime Rate shall for purposes hereof be the date the Prime
Rate is changed by the Bank. The Bank shall not be obligated to give notice of
any change in the Prime Rate. The Prime Rate shall be computed on the basis of a
year consisting of 360 days and shall be paid for the actual number of days
elapsed.
Notwithstanding any other provision of this Guaranty to the contrary, the
maximum liability of the Guarantor hereunder shall be limited to the greater of
(i) the proceeds of credit extended by the Bank under the Loan Agreement dated
March 29, 2005 to the extent such proceeds are advanced, transferred or applied
to or for the benefit of the Guarantor, and (ii) ninety-five percent (95.00%) of
the difference between (a) the present fair salable value of the Guarantor's
assets as of the date of this Guaranty, and (b) the amount of all liabilities of
the Guarantor, including probable exposure under contingent liabilities
(including this Guaranty), as of such date.
In case of any bankruptcy, reorganization, debt arrangement or other
proceeding under any bankruptcy or insolvency law, any dissolution, liquidation
or receivership proceeding is instituted by or against either the Borrower or
the Guarantor, or any default by the Guarantor of any of the covenants, terms
and conditions set forth herein, all of the Guaranteed Debt shall, without
notice to anyone, immediately become due or accrued and shall be payable by the
Guarantor. The Guarantor hereby expressly and irrevocably: (a) waives, to the
fullest extent possible, on behalf of itself and its successors and assigns
(including any surety) and any other person, any and all rights at law or in
equity to subrogation, reimbursement, exoneration, contribution,
indemnification, set off or to any other rights that could accrue to a surety
against a principal, a guarantor against a maker or obligor, an accommodation
party against the party accommodated, a holder or transferee against a maker, or
to the holder of a claim against any person, and which the Guarantor may have or
hereafter acquire against any person in connection with or as a result of the
Guarantor's execution, delivery and/or performance of this Guaranty, or any
other documents to which the Guarantor is a party or otherwise; (b) waives any
"claim" (as such term is defined in the United States Bankruptcy Code) of any
kind against the Borrower, and further agrees that it shall not have or assert
any such rights against any person (including any surety), either directly or as
an attempted set off to any action commenced against the Guarantor by the Bank
or any other person; and (c) acknowledges and agrees (i) that foregoing
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waivers are intended to benefit the Bank and shall not limit or otherwise
affect the Guarantor's liability hereunder or the enforceability of this
Guaranty, (ii) that the Borrower and its successors and assigns are intended
third party beneficiaries of the foregoing waivers, and (iii) the agreements
set forth in this paragraph and the Bank's rights under this paragraph shall
survive payment in full of the Guaranteed Debt.
All dividends or other payments received by the Bank on account of the
Guaranteed Debt, from whatever source derived, shall be taken and applied by the
Bank toward the payment of the Guaranteed Debt and in such order of application
as the Bank may, in its sole discretion, from time to time elect. The Bank shall
have the exclusive right to determine how, when and what application of payments
and credits, if any, whether derived from the Borrower or any other source,
shall be made on the Guaranteed Debt and such determination shall be conclusive
upon the Guarantor.
This Guaranty shall in all respects be continuing, absolute and
unconditional, and shall remain in full force and effect with respect to the
Guarantor until: (i) written notice from the Bank to the Guarantor by United
States certified mail of its discontinuance as to the Guarantor; or (ii) until
all Guaranteed Debt created or existing before receipt of either such notice
shall have been fully paid. In the event of the dissolution of the Guarantor,
this Guaranty shall continue as to all of the Guaranteed Debt theretofore
incurred by the Borrower even though the Guaranteed Debt is renewed or the time
of maturity of the Borrower's obligations is extended without the consent of the
administrators, successors or assigns of the Guarantor.
No compromise, settlement, release or discharge of, or indulgence with
respect to, or failure, neglect or omission to enforce or exercise any right
against any other guarantor shall release or discharge the Guarantor.
The Guarantor's liability under this Guaranty shall in no way be
modified, affected, impaired, reduced, released or discharged by any of the
following (any or all of which may be done or omitted by the Bank in its sole
discretion, without notice to anyone and irrespective of whether the Guaranteed
Debt shall be increased or decreased thereby): (a) any acceptance by the Bank of
any new or renewal note or notes of the Borrower, or of any security or
collateral for, or other guarantors or obligors upon, any of the Guaranteed
Debt; (b) any compromise, settlement, surrender, release, discharge, renewal,
refinancing, extension, alteration, exchange, sale, pledge or election with
respect to the Guaranteed Debt, or any note by the Borrower, or with respect to
any collateral under Section 1111 or take any action under Section 364, or any
other section of the United States Bankruptcy Code, now existing or hereafter
amended, or other disposition of, or substitution for, or indulgence with
respect to, or failure, neglect or omission to realize upon, or to enforce or
exercise any liens or rights of appropriation or other rights with respect to,
the Guaranteed Debt or any security or collateral therefor or any claims against
any person or persons primarily or secondarily liable thereon; (c) any failure,
neglect or omission to perfect, protect, secure or insure any of the foregoing
security interests, liens, or encumbrances of the properties or interests in
properties subject thereto; (d) the granting of credit from time to time by the
Bank to the Borrower in excess of the amount, if any, to which the right of
recovery under this Guaranty is limited (which is hereby expressly authorized);
(e) any change in the Borrower's
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name or the merger of the Borrower into another corporation; (f) any act of
commission or omission of any kind or at any time upon the part of the Bank
with respect to any matter whatsoever, other than the execution and delivery by
the Bank to the Guarantor of an express written release or cancellation of this
Guaranty; or (g) the payment in full of the Guaranteed Debt. The Guarantor
hereby consents to all acts of commission or omission of the Bank set forth
above and agrees that the standards of good faith, diligence, reasonableness
and care shall be measured, determined and governed solely by the terms and
provisions hereof.
In order to hold the Guarantor liable hereunder, there shall be no
obligation on the part of the Bank, at any time, to resort for payment from the
Borrower or to anyone else, or to any collateral, security, property, liens or
other rights and remedies whatsoever, all of which are hereby expressly waived
by the Guarantor.
The Guarantor hereby expressly waives diligence in collection or
protection, presentment, demand or protest or in giving notice to anyone of the
protest, dishonor, default, or nonpayment or of the creation or existence of any
of the Guaranteed Debt or of any security or collateral therefor or of the
acceptance of this Guaranty or of extension of credit or indulgences hereunder
or of any other matters or things whatsoever relating hereto.
The Guarantor waives any and all defenses, claims and discharges of the
Borrower, or any other obligor, pertaining to the Guaranteed Debt, except the
defense of discharge by payment in full. Without limiting the generality of the
foregoing, the Guarantor will not assert, plead or enforce against the Bank any
defense of waiver, release, discharge in bankruptcy, statute of limitations, res
judicata, statute of frauds, anti-deficiency statute, fraud, incapacity,
minority, usury, illegality or unenforceability which may be available to the
Borrower or any other person liable in respect of any of the Guaranteed Debt, or
any setoff available against the Bank to the Borrower or any such other person,
whether or not on account of a related transaction. The Guarantor expressly
agrees that the Guarantor shall be and remain liable for any deficiency
remaining after foreclosure of any mortgage or security interest securing the
Guaranteed Debt, whether or not the liability of the Borrower or any other
obligor for such deficiency is discharged pursuant to statute or judicial
decision.
The Guarantor represents and warrants to the Bank that (a) the Guarantor
shall at all times maintain a standard and modern system of accounting in all
respects in accordance with generally accepted accounting principals,
consistently applied, (b) no change with respect to the such accounting
principles shall be made by the Guarantor without giving prior notification to
the Bank, (c) (omitted), (d) the Guarantor agrees to advise the Bank immediately
of any adverse change in the financial condition, the operations or any other
status of the Guarantor, and (e) the Bank shall have the right at all times
during business hours to inspect the books and records of the Guarantor and make
extracts therefrom. Except as expressly shown on the most recent of the
Borrower's consolidated financial statements, the Guarantor is the sole owner or
has other rights in all of its properties and assets, real and personal,
tangible and intangible, of any nature whatsoever (including patents,
trademarks, trade names, service marks and copyrights), free and clear of all
Liens, as defined in the Loan and Security Agreement dated as of the date hereof
between the Borrower and the Bank, charges and claims (including infringement
claims with respect to
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patents, trademarks, service marks, copyrights and the like), other than
Permitted Liens, as defined in the Loan and Security Agreement dated as of the
date hereof between the Borrower and the Bank. Guarantor is not a party to any
litigation, nor is any litigation threatened to the knowledge of the Guarantor
which would, if adversely determined, cause any material adverse change in its
business or financial condition; and has no delinquent tax liabilities, nor
have any tax deficiencies been proposed against it. The Guarantor shall not
sell, lease, transfer, convey or assign any of its assets, unless such sale,
lease, transfer, conveyance or assignment is performed in the ordinary course
of its business consistent with past practices, and will not have a material
adverse effect on the business or financial condition of the Guarantor or its
ability to perform its obligations hereunder. In addition, the Guarantor shall
neither become a party to any merger or consolidation, nor, except in the
ordinary course of its business consistent with past practices, acquire all or
substantially all of the assets of, a controlling interest in the stock of, or
a partnership or joint venture interest in, any other entity.
To secure payment of the Guaranteed Debt, the Guarantor grants to the
Bank a security interest in all property of the Guarantor delivered concurrently
herewith or which is now, or at any time hereafter in transit to, or in the
possession, custody, or control of the Bank, and all proceeds of all such
property. The Guarantor agrees that the Bank shall have the rights and remedies
of a secured party under the Uniform Commercial Code in effect in Michigan from
time to time, with respect to all of the aforesaid property, including, without
limitation thereof, the right to sell or otherwise dispose of any such property.
The Bank may, without demand or notice of any kind to anyone, apply or set off
any balances, credits, deposits, accounts, moneys or other indebtedness at any
time credited by or due from the Bank to the Guarantor against the amounts due
hereunder and in such order of application as the Bank may from time to time
elect. Any notification of intended disposition of any property required by law
shall be deemed reasonably and properly given if given in the manner provided by
the applicable statute. The Guarantor hereby assigns and transfers to the Bank
any and all cash, negotiable instruments, documents of title, chattel paper,
securities, certificates of deposit, deposit accounts other cash equivalents and
other assets of the Guarantor in the possession or control of the Bank for any
purpose.
THE GUARANTOR WAIVES EVERY DEFENSE, CAUSE OF ACTION, COUNTERCLAIM OR
SETOFF WHICH THE GUARANTOR MAY NOW HAVE OR HEREAFTER MAY HAVE TO ANY ACTION BY
THE BANK IN ENFORCING THIS GUARANTY. AS FURTHER SECURITY, ANY AND ALL DEBTS AND
LIABILITIES NOW OR HEREAFTER ARISING AND OWING TO THE GUARANTOR BY THE BORROWER,
OR TO ANY OTHER PARTY LIABLE TO THE BANK FOR THE GUARANTEED DEBT, ARE HEREBY
SUBORDINATED TO THE BANK'S CLAIMS AND ARE HEREBY ASSIGNED TO THE BANK. THE
GUARANTOR HEREBY AGREES THAT THE GUARANTOR MAY BE JOINED AS A PARTY DEFENDANT IN
ANY LEGAL PROCEEDING (INCLUDING, BUT NOT LIMITED TO, A FORECLOSURE PROCEEDING)
INSTITUTED BY THE BANK AGAINST THE BORROWER. THE GUARANTOR AND THE BANK, AFTER
CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL, EACH
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE IRREVOCABLY THE RIGHT TO TRIAL BY
JURY WITH RESPECT TO ANY SUCH LEGAL PROCEEDING IN WHICH THE GUARANTOR AND THE
BANK ARE ADVERSE PARTIES. THIS
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PROVISION IS A MATERIAL INDUCEMENT TO THE BANK GRANTING ANY FINANCIAL
ACCOMMODATION TO THE BORROWER AND ACCEPTING THIS GUARANTY.
Should a claim (a "Repayment Claim") be made upon the Bank at any time for
repayment of any amount received by the Bank in payment of the Guaranteed Debt,
or any part thereof, whether received from the Borrower, the Guarantor pursuant
hereto, or received by the Bank as the proceeds of collateral, by reason of:
(i) any judgment, decree or order of any court or administrative body having
jurisdiction over the Bank or any of its property; or (ii) any settlement or
compromise of any such Repayment Claim effected by the Bank, in its sole
discretion, with the claimant (including the Borrower), the Guarantor shall
remain liable to the Bank for the amount so repaid to the same extent as if such
amount had never originally been received by the Bank, notwithstanding any
termination hereof or the cancellation of any note or other instrument
evidencing any of the Guaranteed Debt.
The Bank may, without notice to anyone, sell or assign the Guaranteed
Debt, or any part thereof, or grant participations therein, and in any such
event each and every immediate or remote assignee or holder of, or participant
in, all or any of the Guaranteed Debt shall have the right to enforce this
Guaranty, by suit or otherwise for the benefit of such assignee, holder, or
participant, as fully as if herein by name specifically given such right herein,
but the Bank shall have an unimpaired right, prior and superior to that of any
such assignee, holder or participant, to enforce this Guaranty for the benefit
of the Bank, as to any part of the Guaranteed Debt retained by the Bank.
Unless and until all of the Guaranteed Debt has been paid in full, no
release or discharge of any other person, whether primarily or secondarily
liable for and obligated with respect to the Guaranteed Debt, or the institution
of bankruptcy, receivership, insolvency, reorganization, dissolution or
liquidation proceedings by or against the Guarantor or any other person
primarily or secondarily liable for and obligated with respect to the Guaranteed
Debt, or the entry of any restraining or other order in any such proceedings,
shall release or discharge the Guarantor, or any other guarantor of the
indebtedness, or any other person, firm or corporation liable to the Bank for
the Guaranteed Debt.
All references herein to the Borrower and to the Guarantor, respectively,
shall be deemed to include any successors or assigns, whether immediate or
remote, to such corporation.
If this Guaranty contains any blanks when executed by the Guarantor, the
Bank is hereby authorized, without notice to the Guarantor, to complete any
such blanks according to the terms upon which this Guaranty is executed by the
Guarantor and is accepted by the Bank.
This Guaranty has been delivered to the Bank at its offices in Michigan,
and the rights, remedies and liabilities of the parties shall be construed and
determined in accordance with the laws of the State of Michigan, in which State
it shall be performed by the Guarantor.
TO INDUCE THE BANK TO GRANT FINANCIAL ACCOMMODATIONS TO THE BORROWER, THE
GUARANTOR IRREVOCABLY AGREES THAT ALL ACTIONS
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ARISING DIRECTLY OR INDIRECTLY AS A RESULT OR IN CONSEQUENCE OF THIS GUARANTY
SHALL BE INSTITUTED AND LITIGATED ONLY IN COURTS HAVING SITUS IN THE COUNTY OF
OAKLAND, MICHIGAN. THE GUARANTOR HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION
AND VENUE OF ANY STATE OR FEDERAL COURT LOCATED AND HAVING ITS SITUS IN THE
COUNTY OF OAKLAND, MICHIGAN, AND WAIVES ANY OBJECTION BASED ON FORUM NON
CONVENIENS. THE GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL
PROCESS, AND CONSENTS TO THE SERVICE OF PROCESS BY CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, DIRECTED TO THE GUARANTOR AT THE ADDRESS INDICATED IN THE
BANK'S RECORDS IN THE MANNER PROVIDED BY APPLICABLE STATUTE, LAW, RULE OF COURT
OR OTHERWISE. FURTHERMORE, THE GUARANTOR WAIVES ALL NOTICES AND DEMANDS IN
CONNECTION WITH THE ENFORCEMENT OF THE BANK'S RIGHTS HEREUNDER, AND HEREBY
CONSENTS TO, AND WAIVES NOTICE OF THE RELEASE, WITH OR WITHOUT CONSIDERATION,
OF THE BORROWER OR ANY OTHER PERSON RESPONSIBLE FOR PAYMENT OF THE GUARANTEED
DEBT, OR OF ANY COLLATERAL THEREFOR.
Wherever possible each provision of this Guaranty shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
provision of this Guaranty shall be prohibited by or invalid under such law,
such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Guaranty.
It is agreed that the Guarantor's liability is independent of any other
guaranties at any time in effect with respect to all or any part of the
Guaranteed Debt, and that the Guarantor's liability hereunder may be enforced
regardless of the existence of any such other guaranties.
No delay on the part of the Bank in the exercise of any right or remedy
shall operate as a waiver thereof, and no single or partial exercise by the Bank
of any right or remedy shall preclude other or further exercise thereof, or the
exercise of any other right or remedy. No modification, termination, discharge
or waiver of any of the provisions hereof shall be binding upon the Bank, except
as expressly set forth in a writing duly signed and delivered on behalf of the
Bank.
The execution, delivery and performance of this Guaranty by the
Guarantor are within the corporate powers of the Guarantor, have been duly
authorized by all necessary corporate action on the part of the Guarantor and do
not and will not (i) require any consent or approval of the board of directors
or stockholders of the Guarantor which has not been obtained, (ii) violate any
provision of the articles of incorporation or bylaws of the Guarantor or of any
law, rule, regulation, order, writ, judgment, injunction, decree, determination
or award presently in effect having applicability to the Guarantor; (iii)
require the consent or approval of, or filing or registration with, any
governmental body, agency or authority, or (iv) result in a breach of or
constitute a default under, or result in the imposition of any lien, charge or
encumbrance upon any property of the Guarantor pursuant to, any indenture or
other agreement or instrument under which the Guarantor is a party or by which
it or any of its properties may be bound or affected.
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The officer or officers executing and delivering this Guarantor for and on
behalf of the Guarantor, is/are duly authorized to so act. The Bank, in
extending financial accommodations to the Borrower, is expressly acting and
relying upon the aforesaid representations and warranties.
This Guaranty: (i) is valid, binding and enforceable in accordance with
its provisions, and no conditions exist to the legal effectiveness of this
Guaranty as to the Guarantor; (ii) contains the entire agreement between the
Guarantor and the Bank; (iii) is the final expression of their intentions; and
(iv) supersedes all negotiations, representations, warranties, commitments,
offers, contracts (of any kind or nature, whether oral or written) prior to or
contemporaneous with the execution hereof. No prior or contemporaneous
representations, warranties, understandings, offers or agreements of any kind or
nature, whether oral or written, have been made by the Bank or relied upon by
the Guarantor in connection with the execution hereof.
The term "Guarantor" as used herein shall mean all parties signing this
Guaranty, and the provisions hereof shall be binding upon the Guarantor, and
each one of them, and all such parties, their respective administrators,
successors and assigns shall be jointly and severally obligated hereunder. This
Guaranty shall inure to the benefit of the Bank and its successors and assigns.
IN WITNESS WHEREOF, the Guarantor has executed and delivered this
Continuing Unconditional Guaranty as of the date set forth above.
GUARANTOR:
ROCKWELL TRANSPORTATION, INC.,
A MICHIGAN CORPORATION
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
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Title: Treasurer
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