DEFICIENCY GUARANTY
EXHIBIT 10.31.11
DEFICIENCY GUARANTY
COMERICA BANK (“Bank”) made one or more loans or provided credit facilities to LAUREATE
PHARMA, INC. (“Borrower”), pursuant to a Loan and Security Agreement between Borrower and Bank
dated as of December 1, 2004, as amended, including, without limitation, by that certain First
Amendment to Loan and Security Agreement dated as of January 31, 2005, that certain Second
Amendment to Loan and Security Agreement dated as of May 6, 2005, that certain Third Amendment to
Loan and Security Agreement dated as of June 20, 2005, that certain letter agreement dated as of
January 28, 2006, that certain Fourth Amendment to Loan and Security Agreement dated as of February
28, 2006, and that certain Fifth Amendment to Loan and Security Agreement dated as of August 2,
2006, as amended from time to time (the “Agreement”). Bank proposes to enter into that certain
Sixth Amendment to Loan and Security Agreement dated as of the date hereof (the “Amendment”).
Acknowledging that Bank would not enter into the Amendment without the benefit of this Guaranty,
each of the undersigned guarantors (individually, a “Guarantor”) hereby unconditionally,
irrevocably, jointly and severally guarantees the prompt and complete payment of all amounts that
Borrower owes to Bank in respect of the Equipment Advances, as defined in the Agreement, in
accordance with its terms and subject to the limitations set forth herein. All terms used without
definition in this Guaranty shall have the meaning assigned to them in the Agreement. Each
Guarantor’s maximum liability under this Guaranty shall not exceed a principal amount of $6,000,000
plus interest and fees accrued in connection with the enforcement of the Agreement.
1. Guarantors shall pay all amounts due in connection with the Equipment Advances (including,
without limitation, all principal, interest, and fees) upon demand by Bank in accordance with
Section 2 hereof.
2. Each Guarantor’s maximum liability under this Guaranty shall not exceed a principal amount
of $6,000,000 plus interest and fees accrued in connection with the enforcement of the Agreement.
Furthermore, the guaranty evidenced hereby is a deficiency guaranty only. Bank may exercise its
remedies hereunder as against the each Guarantor only (a) after having commenced taking
commercially reasonable efforts to obtain payment from the Borrower and the other Credit Parties
and realize on the collateral security granted in connection with the Agreement, and (b) for any
such Obligations remaining outstanding beyond 90 days after (i) the date of such occurrence of an
Event of Default under Section 8.1 (payment of principal or interest under the Agreement) of the
Agreement that remains uncured after such 90 day period; or (ii) the acceleration of the
Obligations which results from any other Event of Default that remains uncured after such 90 day
period.
Notwithstanding the foregoing, Bank shall not be required to (i) continue to take any
enforcement action after any proceeding under the Bankruptcy Code has been filed by or against
Borrower, (ii) demand payment if Borrower has filed, or has had filed against it, a petition or
other filing under the Bankruptcy Code that could operate to stay or otherwise restrict Bank from
making such demand, or seek or obtain relief from any automatic stay under the Bankruptcy Code,
(iii) take any enforcement action in contravention of any court order, injunction, law or
governmental rule or regulation or contest any such court order, injunction, law or governmental
rule or regulation, (iv) exercise any remedies with respect to Collateral (as defined in the
Agreement), if Bank believes in good faith that the net amount which could reasonably be recovered
from the Collateral does not justify the time, risks, cost, or expense involved, or (v) institute,
intervene in or contest any suit or other legal proceedings.
3. The obligations hereunder are joint and several, are in addition to the obligations of
Guarantors under the Guaranty dated as of December 1, 2004, as amended, and, subject to Section 2,
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 a Guarantor whether action is brought
against Borrower or whether Borrower be joined in any such action or actions. Each Guarantor
waives the benefit of any statute of limitations affecting its liability hereunder or the
enforcement thereof, to the extent permitted by law and subject to the limitations set forth in
Section 2 above. A Guarantor’s liability under this Guaranty is not conditioned or contingent upon
the genuineness, validity, regularity or enforceability of the Agreement.
4. Each Guarantor authorizes Bank, 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
Agreement or any part thereof; (b) take and hold security for the payment of this Guaranty or the
Agreement, and exchange, enforce, waive
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and release any such security; and (c) apply such security
and direct the order or manner of sale thereof as Bank in its reasonable discretion may determine.
5. Subject to Section 2, each Guarantor waives any right to require Bank to (a) proceed
against Borrower or any other person; (b) proceed against or exhaust any security held from
Borrower; or (c) pursue any other remedy in Bank’s power whatsoever. Subject to Section 2, Bank
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 Bank, 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 a Guarantor hereunder. Each Guarantor waives any defense arising by reason of any
disability or other defense of Borrower or by reason of the cessation from any cause whatsoever of
the liability of Borrower other than any defense of payment by Borrower or any other obligor. Each
Guarantor waives any setoff, defense or counterclaim that it may have against Bank. Each 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
Bank have been paid in full, a Guarantor shall have no right of subrogation or reimbursement for
claims arising out of or in connection with this Guaranty, contribution or other rights against
Borrower, and such Guarantor waives any right to enforce any remedy that Bank now has or may
hereafter have against Borrower. Each Guarantor waives all rights to participate in any security
now or hereafter held by Bank. Each 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. Each 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 Bank
that it will keep so informed, and agrees that absent a request for particular information by such
Guarantor, Bank shall have no duty to advise a Guarantor of information known to Bank regarding
such condition or any such circumstances. Each Guarantor waives the benefits of California Civil
Code sections 2809, 2810, 2819, 2845, 2847, 2848, 2849, 2850, 2899 and 3433.
6. Each 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 Bank 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. Each Guarantor waives that defense and any others arising
from Bank’s election to pursue non-judicial foreclosure. Without limiting the generality of the
foregoing, each 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.
7. 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 Agreement 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 returned by Bank upon the insolvency,
bankruptcy or reorganization of Borrower, Guarantor, any other guarantor, or otherwise, as though
such payment had not been made.
8. Each Guarantor agrees to pay a reasonable attorneys’ fee and all other costs and expenses
which may be incurred by Bank in the enforcement of this Guaranty. No terms or provisions of this
Guaranty may be changed, waived, revoked or amended without Bank’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. Bank may assign this Guaranty together with
the underlying indebtedness of Borrower, without in any way affecting Guarantor’s liability under
it. This Guaranty shall inure to the benefit of Bank and its successors and
2.
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 Bank.
9. Each Guarantor represents and warrants to Bank that (i) Guarantor has taken all necessary
and appropriate corporate 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 Certificate of Incorporation or Bylaws 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, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditors’
rights generally and by general equitable principles (whether enforcement is sought by proceedings
in equity or at law).
10. Each Guarantor covenants and agrees that such Guarantor shall do all of the following:
10.1 Guarantor shall maintain its corporate existence, remain in good standing in its state of
formation, and continue to qualify in each jurisdiction in which the failure to so qualify could
reasonably be expected to have a material adverse effect on the financial condition, operations or
business of Guarantor. Guarantor shall maintain in force all licenses, approvals and Agreement,
the loss of which could reasonably be expected to have a material adverse effect on its financial
condition, operations or business.
10.2 Guarantor shall comply with all statutes, laws, ordinances, directives, orders, and
government rules and regulations to which it is subject if non-compliance with such laws could
adversely affect the financial condition, operations or business of Guarantor.
10.3 At any time and from time to time Guarantor shall execute and deliver such further
instruments and take such further action as may reasonably be requested by Bank to effect the
purposes of this Guaranty.
10.4 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 Borrower.
11. This Guaranty shall be governed by the laws of the State of California, without regard to
conflicts of laws principles. Jurisdiction shall lie in the State of California. UNDERSIGNED
ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED
UNDER CERTAIN CIRCUMSTANCES. TO THE EXTENT PERMITTED BY LAW, EACH PARTY, AFTER CONSULTING (OR
HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS, HIS OR HER CHOICE, KNOWINGLY AND
VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF ALL PARTIES, WAIVES ANY RIGHT TO TRIAL BY JURY IN THE
EVENT OF LITIGATION ARISING OUT OF OR RELATED TO THIS GUARANTY OR ANY OTHER DOCUMENT, INSTRUMENT OR
AGREEMENT BETWEEN THE UNDERSIGNED PARTIES.
12. REFERENCE PROVISION.
12.1 In the event the Jury Trial Waiver set forth above is not enforceable, the parties elect
to proceed under this Judicial Reference Provision.
12.2 With the exception of the items specified in clause 12.3, below, any controversy, dispute
or claim (each, a “Claim”) between the parties arising out of or relating to this Agreement or any
other document, instrument or agreement between the undersigned parties (collectively in this
Section, the “Loan Documents”), will be resolved by a reference proceeding in California in
accordance with the provisions of Sections 638 et seq. of the California Code of Civil Procedure
(“CCP”), or their successor sections, which shall constitute the exclusive remedy for the
resolution of any Claim, including whether the Claim is subject to the reference proceeding. Except
as otherwise provided in the Loan Documents, venue for the reference proceeding will be in the
Superior Court in the County where the real property involved in the action, if any, is located or
in a County where venue is otherwise appropriate under applicable law (the “Court”).
3.
12.3 The matters that shall not be subject to a reference are the following: (i) nonjudicial
foreclosure of any security interests in real or personal property, (ii) exercise of self-help
remedies (including, without limitation, set-off), (iii) appointment of a receiver and (iv)
temporary, provisional or ancillary remedies (including, without limitation, writs of attachment,
writs of possession, temporary restraining orders or preliminary injunctions). This Agreement does
not limit the right of any party to exercise or oppose any of the rights and remedies described in
clauses (i) and (ii) or to seek or oppose from a court of competent jurisdiction any of the items
described in clauses (iii) and (iv). The exercise of, or opposition to, any of those items does not
waive the right of any party to a reference pursuant to this Agreement.
12.4 The referee shall be a retired Judge or Justice selected by mutual written agreement of
the parties. If the parties do not agree within ten (10) days of a written request to do so by any
party, then, upon request of any party, the referee shall be selected by the Presiding Judge of the
Court (or his or her representative). A request for appointment of a referee may be heard on an ex
parte or expedited basis, and the parties agree that irreparable harm would result if ex parte
relief is not granted.
12.5 The parties agree that time is of the essence in conducting the reference proceedings.
Accordingly, the referee shall be requested, subject to change in the time periods specified herein
for good cause shown, to (i) set the matter for a status and trial-setting conference within
fifteen (15) days after the date of selection of the referee, (ii) if practicable, try all issues
of law or fact within one hundred twenty (120) days after the date of the conference and (iii)
report a statement of decision within twenty (20) days after the matter has been submitted for
decision.
12.6 The referee will have power to expand or limit the amount and duration of discovery. The
referee may set or extend discovery deadlines or cutoffs for good cause, including a party’s
failure to provide requested discovery for any reason whatsoever. Unless otherwise ordered based
upon good cause shown, no party shall be entitled to “priority” in conducting discovery,
depositions may be taken by either party upon seven (7) days written notice, and all other
discovery shall be responded to within fifteen (15) days after service. All disputes relating to
discovery which cannot be resolved by the parties shall be submitted to the referee whose decision
shall be final and binding.
12.7 Except as expressly set forth in this Agreement, the referee shall determine the manner
in which the reference proceeding is conducted including the time and place of hearings, the order
of presentation of evidence, and all other questions that arise with respect to the course of the
reference proceeding. All proceedings and hearings conducted before the referee, except for trial,
shall be conducted without a court reporter, except that when any party so requests, a court
reporter will be used at any hearing conducted before the referee, and the referee will be provided
a courtesy copy of the transcript. The party making such a request shall have the obligation to
arrange for and pay the court reporter. Subject to the referee’s power to award costs to the
prevailing party, the parties will equally share the cost of the referee and the court reporter at
trial.
12.8 The referee shall be required to determine all issues in accordance with existing case
law and the statutory laws of the State of California. The rules of evidence applicable to
proceedings at law in the State of California will be applicable to the reference proceeding. The
referee shall be empowered to enter equitable as well as legal relief, enter equitable orders that
will be binding on the parties and rule on any motion which would be authorized in a court
proceeding, including without limitation motions for summary judgment or summary adjudication. The
referee shall issue a decision at the close of the reference proceeding which disposes of all
claims of the parties that are the subject of the reference. Pursuant to CCP § 644, such decision
shall be entered by the Court as a judgment or an order in the same manner as if the action had
been tried by the Court and any such decision will be final, binding and conclusive. The parties
reserve the right to appeal from the final judgment or order or from any appealable decision or
order entered by the referee. The parties reserve the right to findings of fact, conclusions of
laws, a written statement of decision, and the right to move for a new trial or a different
judgment, which new trial, if granted, is also to be a reference proceeding under this provision.
12.9 If the enabling legislation which provides for appointment of a referee is repealed (and
no successor statute is enacted), any dispute between the parties that would otherwise be
determined by reference procedure will be resolved and determined by arbitration. The arbitration
will be conducted by a retired judge or Justice, in accordance with the California Arbitration Act
§1280 through §1294.2 of the CCP as amended from time
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to time. The limitations with respect to
discovery set forth above shall apply to any such arbitration proceeding.
12.10 THE PARTIES RECOGNIZE AND AGREE THAT ALL CONTROVERSIES, DISPUTES AND CLAIMS RESOLVED
UNDER THIS REFERENCE PROVISION WILL BE DECIDED BY A REFEREE AND NOT BY A JURY. AFTER CONSULTING (OR
HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS, HIS OR HER OWN CHOICE, EACH PARTY
KNOWINGLY AND VOLUNTARILY, AND FOR THE MUTUAL BENEFIT OF ALL PARTIES, AGREES THAT THIS REFERENCE
PROVISION WILL APPLY TO ANY CONTROVERSY, DISPUTE OR CLAIM BETWEEN OR AMONG THEM ARISING OUT OF OR
IN ANY WAY RELATED TO, THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS.
IN WITNESS WHEREOF, the undersigned Guarantor has executed this Guaranty as of this 28th day
of February, 2007.
| SAFEGUARD DELAWARE, INC. | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||||
| Title: | Vice President | |||||
| SAFEGUARD SCIENTIFICS (DELAWARE), INC. | ||||||
| By: | /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||||
| Title: | Vice President | |||||
| Safeguard Delaware, Inc. and Safeguard Scientifics (Delaware), Inc. Attn: CFO 800 The Safeguard Building ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ |
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