Exhibit 10.152
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AMENDED AND RESTATED
GUARANTY AND SURETYSHIP AGREEMENT
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THIS AMENDED AND RESTATED GUARANTY AND SURETYSHIP AGREEMENT (this
"Guaranty"), is made as of the 12th day of April, 2005, by Commodore Advanced
Sciences, Inc., which maintains an office at 000 Xxxxxx Xxxxxx, Xxxxx X,
Xxxxxxxx, Xxxxxxxxxx 00000 ("Guarantor") to and in favor of The Shaar Fund,
Ltd., c/o SS&C Fund Services N.V., Xxxxxxxxx 00, Xxxxxxx, Xxxxxxxxxxx Antilles
(the "Lender"). This Guaranty amends and restates that certain Guaranty and
Suretyship Agreement, dated June 13, 2001 (the "Original Guaranty") between
Guarantor and the Lender.
W I T N E S S E T H:
WHEREAS, on June 13, 2001, concurrently with the execution and delivery
of that certain Security Agreement (the "Original Security Agreement") between
the Lender, Guarantor and Commodore Applied Technologies, Inc. ("CXI"), CXI
executed and delivered (i) to the Lender, a Secured Promissory Note in the
principal amount of Five Hundred Thousand Dollars ($500,000.00) (the "Shaar
Note"), a Warrant ("Shaar Warrant"), a Patent Collateral Assignment (the
"Original Patent Collateral Assignment") and Registration Rights Agreement
("Shaar Registration Rights Agreement"); and (ii) to Milford Capital &
Management ("Milford"), a Secured Promissory Note in the principal amount of
Five Hundred Thousand Dollars ($500,000.00) ("Milford Note"), a Security
Agreement ("Milford Security Agreement"), a Warrant ("Milford Warrant"), and a
Registration Rights Agreement ("Milford Registration Rights Agreement"). The
Milford Note, the Milford Security Agreement, the Milford Warrant, Milford
Registration Rights Agreement, and the Milford Guaranty (as hereinafter defined)
are sometimes hereinafter referred to as the "Milford Loan Documents");
WHEREAS, pursuant to the Shaar Guaranty and a Guaranty and Suretyship
Agreement, dated June 13, 2001, between Guarantor and Milford ("Milford
Guaranty"), Guarantor, a wholly-owned subsidiary of CXI, guaranteed payment of
the Shaar Note and the Milford Note;
WHEREAS, subsequent to issuance of the Shaar Note, the Lender and CXI
amended and restated the Shaar Note such that as of the date hereof the Shaar
Note has an outstanding principal balance of Three Million Two Hundred
Seventy-Nine Thousand Five Hundred Eighty Five Dollars ($3,279,585);
WHEREAS, subsequent to the issuance of the Milford Note, Milford and
CXI amended and restated the Milford Note and the Milford Note had an
outstanding principal balance of One Hundred Eight-Eight Thousand One Hundred
Forty-Nine Dollars ($188,149);
WHEREAS, pursuant to that certain Purchase Agreement, dated March 23,
2005 (the "Purchase Agreement"), the Lender purchased, among other things, the
amended and restated Milford Note from Milford;
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WHEREAS, pursuant to the Purchase Agreement, the rights and obligations
under those Milford Loan Documents pertaining to Milford were assigned,
transferred and conveyed to the Lender and all rights of Milford thereunder were
extinguished;
WHEREAS, pursuant to that certain Exchange Agreement, of even date
herewith (the "Exchange Agreement"), (i) the Lender exchanged the outstanding
principal amount of the Shaar Note and the Milford Note (including all
forbearance amounts, accrued and unpaid interest and unpaid fees thereon) for
the 10% Convertible Secured Note of CXI (the "Convertible Note"), in the
original principal amount of Four Million Six Hundred Thousand Seven Hundred
Thirty-Three ($4,600,733) Dollars, (ii) the Lender, CXI and Guarantor have
agreed to amend and restate the Original Security Agreement (as amended and
restated, the "Security Agreement"), (ii) the Lender and CXI have agreed to
amend and restate the Original Patent Collateral Assignment, (as amended and
restated, the "Patent Collateral Assignment"), (iii) the Lender exchanged all of
its shares of CXI's Series E Convertible Preferred Stock and Series F
Convertible Preferred Stock for shares of CXI's Series I Convertible Preferred
Stock created pursuant to a Certificate of Designation filed with the Secretary
of State of the State of Delaware (the "Certificate of Designation");
WHEREAS, During the six (6) month period following the Issue Date of
the Note, if both the Lender and CXI consent, which consent can be withheld by a
party for any reason whatsoever, the Lender will, from time to time, make
advances to CXI under the Note in an aggregate principal amount of up to
$500,000; provided, that at no time shall the Note have an outstanding Principal
Balance more than $5,100,733.
WHEREAS, Guarantor has and/or will derive and will continue to derive a
substantial direct benefit from the Lender's making of the loan and advances
evidenced by and under the Convertible Note to CXI; and
WHEREAS, in order to induce Lender to enter into the Exchange Agreement
and accept the Convertible Note in exchange for the Shaar Note and the Milford
Note, the Guarantor has agreed to amend and restate the Shaar Guaranty (as
amended and restated, the "Guaranty") to unconditionally guarantee the prompt
and timely payment of all Obligations, as defined in the Security Agreement, due
and payable by CXI pursuant to the Convertible Note. For purposes of this
Agreement, the term "Documents" means (i) this Agreement; (ii) the Certificate
of Designation; (iii) the Convertible Note; (iv) the Security Agreement; and (v)
the Patent Collateral Assignment.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and legal sufficiency of which are hereby
acknowledged, and intending to be legally bound, Guarantor hereby agrees as
follows:
Section 1. Terms of Guaranty.
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(a) Guarantor absolutely and unconditionally guarantees and acts as a
surety to Lender, its successors, endorsers and assigns for CXI's prompt payment
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and performance when due of: (i) the Obligations and (ii) all of CXI's
obligations to Lender, whether primary or secondary, direct, absolute or
contingent, sole, joint and/or several, heretofore, now or hereafter acquired,
whether at maturity or by acceleration, pursuant to or in connection with the
Convertible Note and otherwise due and owing pursuant to the Documents (the
obligations described in this Section 1(a) are hereinafter sometimes referred to
as the "Guaranty Obligations"). Terms used herein but not otherwise defined
shall have the meanings given to such terms in the Security Agreement and the
Convertible Note.
(b) If any of the Guaranty Obligations is not paid when due, Lender:
(a) may forthwith recover from Guarantor the full amount of any liability under
this Guaranty or the Documents; and (b) may sell all or any part of any property
held as security under this Guaranty or the Documents on any exchange or at
public or private sale at the option of the Lender, at any time or times without
advertisement, or demand upon, or additional notice to Guarantor all of which
are hereby waived, except such notice as is required by this Guaranty. Upon such
sale, Lender or its nominee shall have the right to become the purchaser of the
property at such sale unless prohibited by statute.
(c) It is understood and agreed that this Guaranty is a guaranty of
payment and not of collection, and is in no way conditioned or contingent upon
any attempt to enforce Lender's rights against CXI or to collect from CXI or
upon any other condition or contingency; accordingly, Lender shall have the
right to proceed against the Guarantor immediately upon any default of CXI under
the Documents, without taking any prior action or proceeding to enforce the
Documents or any of them or for the liquidation or foreclosure of any security
Lender may at any time hold pursuant thereto. It is expressly understood and
agreed that this Guaranty is a continuing Guaranty and that the obligations of
Guarantor hereunder are and shall be absolute under any and all circumstances,
without regard to the validity, regularity or enforceability of any of the
Documents, or any other documents establishing or evidencing the Obligations.
Guarantor, by its execution hereof, acknowledges receipt of true copies of all
of the Documents and all other documents establishing or evidencing the Guaranty
Obligations, and further assents to all agreements, including the Documents,
made with Lender by CXI in connection with the Convertible Note.
(d) To the extent the Guaranty Obligations are due and payable, and
unpaid, and at any time thereafter, Lender shall have all the rights and
remedies as against the Collateral of a secured party and further, Lender may
apply or set-off such Collateral against the Guaranty Obligations as the Lender
deems appropriate, and/or refuse to honor orders to pay or withdraw the
Collateral or sums represented thereby, all at Lender's sole and absolute
discretion.
(e) The obligations, covenants, agreements and duties of Guarantor
under this Guaranty shall in no way be affected or impaired by reason of the
occurrence from time to time of any of the following with respect to the
Documents, or any other documents establishing or evidencing the Guaranty
Obligations or this Guaranty (collectively, the "Instruments"):
(i) The waiver of the performance or observance by CXI of any
agreement, covenant, term or condition to be performed or observed by
it;
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(ii) The extension of the time for the payment of any sums owing
or payable under the Instruments or the time for the performance of any
other obligation under or arising out of or on account of the
Instruments;
(iii) The supplementing, modification or amendment (whether
material or otherwise) of any of the instruments or any of the
Obligations of CXI set forth in any of the Instruments or any other
documents establishing or evidencing the Guaranty Obligations;
(iv) Any failure, omission, delay or lack on the part of Lender or
any other person to enforce, assert or exercise any right, power or
remedy conferred on Lender, or such other person in or by virtue of any
of the Instruments, or any action on either such Lender's or such other
person's part in granting indulgence or extension in any form;
(v) The release of any Collateral under this Guaranty, or the
release, modification, waiver or failure to enforce any other guaranty,
indemnity, pledge or security device whatsoever;
(vi) The voluntary or involuntary liquidation, dissolution, sale
of all or substantially all of the property, marshalling of assets and
liabilities, receivership, insolvency, bankruptcy, assignment for the
benefit of creditors, reorganization, arrangement, composition or
readjustment of, or other similar application or proceeding affecting,
CXI or any of its assets;
(vii) The sale, transfer or conveyance of any of the Collateral or
any part thereof or any interest therein to any party, whether now or
hereafter having or acquiring an interest in the Collateral;
(viii) The release of CXI from the performance or observance of
any of the agreements, covenants, terms or conditions contained in any
of the Instruments, whether by operation of law, or otherwise.
(f) Notice of acceptance of this Guaranty, presentment, diligence,
demand for payment, protest, notice of default or nonpayment, notice of
dishonor, notice of protest, and all other notices and demands are hereby waived
by Guarantor.
(g) Guarantor hereby waives, to the extent permitted by law, any and
all legal requirements that Lender institute any action or proceeding at law or
in equity against CXI, or anyone else, or exhaust their remedies against CXI, or
anyone else, in respect of the Guaranty Obligations or the Documents or in
respect of any other security held by Lender as a condition precedent to
bringing an action or proceeding against Guarantor under this Guaranty.
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(h) In the event that Guarantor shall advance or become obligated to
pay any sums under this Guaranty, or in the event that for any reason whatsoever
CXI is now, or shall hereafter become, indebted to Guarantor, Guarantor agrees
that Guarantor shall not be entitled to enforce or receive payment thereof until
all such sums owed to Lender have been paid. Nothing contained herein is
intended or shall be construed to give Guarantor any right of subrogation in or
under the Documents or any right to participate in any way therein, or in the
right, title or interest of Lender in or to the Collateral, notwithstanding any
payments made by Guarantor under this Guaranty until Lender shall have been paid
in full for all of the Guaranty Obligations.
Section 2. Events of Default.
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If any of the following events occur and is continuing, then an "Event
of Default" under this Guaranty shall have occurred and Lender shall have all
rights and remedies available to it under this Guaranty against the Guarantor,
at law or in equity:
(a) If any Guarantor defaults in the performance or observance of any
agreement, covenant term or condition contained in this Guaranty; or
(b) If there occurs an Event of Default as defined in the Note or if
CXI or Guarantor breaches any material covenant set forth in the Documents.
Section 3. Miscellaneous.
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(a) No delay on the part of Lender in exercising any power or right
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any power or right hereunder or the failure to exercise same in any
instance preclude other or further exercise thereof or the exercise of any other
power or right; nor shall Lender be liable for exercising or failing to exercise
any such power or right. The rights and remedies hereunder expressly specified
are cumulative and not exclusive of any rights or remedies that Lender may or
will otherwise have.
(b) Guarantor agrees and acknowledges that the Guarantor's liability
under this Guaranty is absolute and that no set off, recoupment, claim,
reduction or diminution of any obligation, or any defense of any kind or nature,
which the Guarantor or CXI may now or in the future may have against the Lender
shall be available to the Guarantor against the Lender, except that the
Guarantor may assert as a defense against the Lender only full payment or
performance by CXI of all Guaranty Obligations.
(c) This Guaranty shall continue as to the Guarantor until the Note is
satisfied in full and all Obligations of CXI to the Lender have been satisfied,
including any of CXI's obligations, warranties and representations that survive
payment in full and the termination of the Documents. In addition, this Guaranty
shall continue as to the Guarantor until all such sums received by Lender are
not subject to recision or repayment upon the bankruptcy, insolvency or
reorganization of any CXI and/or CASI.
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(d) If after receipt of any payment or proceeds on account of the
payment of all or any part of the Guaranty Obligations hereby guaranteed, Lender
is for any reason compelled to surrender or voluntarily surrenders, such payment
or proceeds to any person (a) because such payment or application of proceeds is
or may be avoided, invalidated, declared fraudulent, set aside, determined to be
void or voidable as a preference, fraudulent conveyance, impermissible setoff or
a diversion of trust funds, or (b) for any other reason, including without
limitation (i) any judgment, decree or order of any Court or administrative body
having jurisdiction over Lender or any of its property, or (ii) any settlement
or compromise of any such claim effected by Lender with any such claimant
(including CXI), then the Guaranty Obligations hereby guaranteed or any part
thereof intended to be satisfied shall be reinstated and continue and this
Guaranty shall continue in full force as if such payment or proceeds had not
been received by Lender, notwithstanding any revocation thereof or the
cancellation of any note or other instrument evidencing any obligation hereby
guaranteed or otherwise; and Guarantor shall be liable to pay to Lender, and
hereby agrees to indemnify Lender and hold Lender harmless for, from and against
the amount of such payment or proceeds so surrendered and all expenses
(including all attorneys' fees, court costs and expenses attributable thereto)
incurred by Lender in the defense of any claim made against Lender that any
payment or proceeds received by Lender in respect of all or any part of the
obligations hereby guaranteed must be surrendered. The provisions of this
paragraph shall survive the termination of this Guaranty, and any satisfaction
and discharge of CXI by virtue of any payment, court order or any federal or
state law.
(e) GUARANTOR EXPRESSLY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY
ACTION, COUNTERCLAIM OR PROCEEDING BASED UPON, OR RELATED TO, THE SUBJECT MATTER
OF THIS GUARANTY. THIS WAIVER APPLIES TO ALL CLAIMS AGAINST ALL PARTIES TO SUCH
ACTIONS AND PROCEEDINGS, INCLUDING PARTIES WHO ARE NOT PARTIES TO THIS GUARANTY.
THIS WAIVER IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY GUARANTOR, AND
GUARANTOR EXPRESSLY ACKNOWLEDGES THAT NEITHER LENDER, NOR ANY PERSON ACTING ON
BEHALF OF LENDER, HAS MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF
TRIAL BY JURY OR IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. GUARANTOR FURTHER
ACKNOWLEDGE THAT GUARANTOR HAS BEEN REPRESENTED (OR HAVE HAD THE OPPORTUNITY TO
BE REPRESENTED) IN THE SIGNING OF THIS GUARANTY AND IN THE MAKING OF THIS WAIVER
BY INDEPENDENT LEGAL COUNSEL, SELECTED OF GUARANTOR'S OWN FREE WILL, AND THAT
GUARANTOR HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. GUARANTOR
FURTHER ACKNOWLEDGES THAT GUARANTOR HAS READ AND UNDERSTANDS THE MEANING AND
RAMIFICATIONS OF THIS GUARANTY AND, SPECIFICALLY, THIS WAIVER PROVISION.
(f) All notices or other communications required or permitted to be
given hereunder shall be in writing and shall be deemed to have been
sufficiently given or served for all purposes either by hand delivery, facsimile
or sent by recognized overnight courier or by United States registered mail,
postage or fee prepaid, if to Lender at its address above stated, and in the
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case of Guarantor to the attention of Guarantor at the respective address stated
above, or at such other address of which either Guarantor or Lender shall have
notified the other of them in writing as aforesaid. All such notices shall be
deemed given three (3) business days after delivery to the United States Post
Office registry clerk or if sent by overnight courier on the next business day
or if delivered by hand or by facsimile upon receipt thereof.
(g) This instrument, together with the Documents and the other
documents establishing or evidencing the Guaranty Obligations, represents the
entire agreement between the parties with respect to the subject matter hereof,
and this Guaranty may not be modified or amended except by a writing duly
executed by the party to be charged.
(h) In the event that any provision of this Guaranty or the application
thereof to Guarantor or any circumstance in any jurisdiction governing this
Guaranty shall, to any extent, be invalid or unenforceable under any applicable
statute, regulation, or rule of law, then such provision shall be deemed
inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform to such statute, regulation or rule of law, and the
remainder of this Guaranty and the application of any such invalid or
unenforceable provision to parties, jurisdictions, or circumstances other than
to whom or to which it is held invalid or unenforceable, shall not be affected
thereby nor shall same affect the validity or enforceability of any other
provision of this Guaranty.
(i) All guarantees, indemnities, covenants, warranties, representations
and agreements contained in this Guaranty shall bind the heirs, executors, and
successors of Guarantor, and shall inure to the benefit of Lender and its
successors and assigns.
(j) This Guaranty may not be assigned by Guarantor.
(k) This Guaranty shall be governed by and construed in accordance with
the internal laws of the State of New York, without regard to conflicts of law
principles.
(l) This Guaranty may be executed simultaneously in one or more
counterparts, each of which shall be deemed an original, and it shall not be
necessary in making proof of this Guaranty to produce or account for more than
one such counterpart.
(m) The undersigned shall pay to Lender all costs and expenses,
including without limitation all reasonable attorneys' fees and costs of
litigation, incurred by Lender in connection with the enforcement of the terms
of this Guaranty.
(n) The Guarantor is presently informed of the financial condition of
CXI and of all other circumstances which a diligent inquiry would reveal and
which bear upon the risk of nonpayment or performance of the Guaranty
Obligations.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Guaranty was executed and delivered by
Guarantor as of the date first above written.
COMMODORE ADVANCED
SCIENCES, INC.
By: /s/ Xxxxx X. XxXxxxxxx
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Xxxxx X. XxXxxxxxx
Chief Financial Officer
STATE OF RHODE ISLAND )
) ss.:
COUNTY OF NEWPORT )
On this 9th day of April, 2005, before me, the undersigned, personally
appeared Xxxxx X. XxXxxxxxx, personally known to me or proved to me on the basis
of satisfactory evidence to be the individual whose name is subscribed to the
within instrument and acknowledged to me that he executed the same in his
capacity, and that by his signature on the instrument, the individual, or the
person upon behalf of which the individual acted, executed the instrument.
/s/ Xxxxx Xxxxxxx - Bank of America
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Notary Public
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