GUARANTY AGREEMENT
GUARANTY, dated June 26, 2002, by the direct or indirect subsidiaries of
Medical Technology Systems, Inc (the "Company") which have executed this
Agreement (together, the "Guarantors"), in favor of Eureka I, L.P., a Delaware
limited partnership with an address at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, as Collateral Agent under the Purchase Agreement (defined
below) (in such capacity together with its successors in such capacity, the
"Collateral Agent").
WHEREAS, the Company has entered into a Securities Purchase Agreement,
dated the date hereof, with Eureka I, L.P., as investor (the "Investor"), and
the Collateral Agent (herein, as amended or modified from time to time, the
"Purchase Agreement"), providing, subject to the terms and conditions thereof,
for purchase from the Company by the Investor of, among other things, $4,000,000
aggregate principal amount of Notes (as defined in the Purchase Agreement);
WHEREAS, the Guarantors are interested in the welfare of the Company and
are directly benefited by the Investor purchasing the Notes. The Investor, as a
condition to its agreement to purchase the Notes from the Company, and as a
material inducement thereto, has required that the Guarantors execute this
Agreement for the purposes hereinafter set forth.
NOW, THEREFORE, in consideration of the purchase of the Notes from the
Company and intending to be legally bound hereby, the Guarantors hereby agree as
follows:
Section 1. The Guaranteed Obligations. (a) The Guarantors hereby jointly
and severally, irrevocably, unconditionally, and absolutely become Guarantors to
the Collateral Agent and the Noteholders, and their successors, endorsees and
assigns, for the prompt payment of or other satisfaction of all Guaranteed
Obligations. The term "Guaranteed Obligations" shall mean the indebtedness and
liabilities of the Company to the Collateral Agent and/or the Noteholders under
this Agreement, the Notes, the Purchase Agreement and the Security Documents (as
defined in the Purchase Agreement) including but not limited to all obligations
to perform acts or refrain from taking any action and any obligations of the
Company owing to the Collateral Agent and/or the Noteholders. This Guaranty
shall terminate upon payment in full of the Notes.
(b) This Agreement is an agreement of guaranty and constitutes an
absolute and unconditional undertaking by the Guarantors with respect to
the payment and performance of the Guaranteed Obligations by the Company.
The liability of the Guarantors hereunder shall be direct and may be
enforced without the Collateral Agent and/or the Noteholders being required
to resort to any other right, remedy or security, and this Agreement shall
be enforceable against any of the Guarantors and the Guarantors' successors
and assigns, without the necessity of any notice of acceptance of this
Agreement or of the Collateral Agent's and/or the Noteholders' intention to
act in reliance hereon, or of any loan to or other transaction between the
Collateral Agent and/or the Noteholders and the Company, or of any default
by the Company, all of which the Guarantors hereby expressly waive.
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Section 2. Intercreditor Agreement. The guaranties granted hereby, the
exercise by the Collateral Agent of any of its rights or remedies
hereunder, and the covenants of the Guarantors contained herein (in each
case whether or not so expressed) are subject in all respects to the
Intercreditor Agreement (as such term is defined in the Purchase
Agreement).
Section 3. Further Undertakings. (a) The Guarantors:
(1) agree that the validity of this Agreement shall in no way be
terminated, affected or impaired by reason of the assertion of the
Collateral Agent's and/or any Noteholder's failure to assert against
the Company, any of the Guarantors, or any other party liable with
respect to any of the Guaranteed Obligations, any of the Collateral
Agent's or any Noteholder's rights or remedies under any Transaction
Documents or any other document or instrument evidencing or relating
to any of the Guaranteed Obligations or otherwise available to the
Collateral Agent or any Noteholder at law or in equity;
(2) waive any right which the Guarantors might otherwise have
under any statute, rule of law or practice or custom to require the
Collateral Agent and/or the Noteholders to take any action against the
Company or any other party liable with respect to any of the
Guaranteed Obligations, or to proceed against or exhaust any security
held by the Collateral Agent and/or the Noteholders before proceeding
against the Guarantors;
(3) waive any notice of (A) any presentment, demand, protest,
notice of protest or of dishonor, notices of default and all other
notices with respect to any of the Guaranteed Obligations, and (B) the
commencement or prosecution of any enforcement proceeding, including
any proceeding in any court, against the Company or any other party
liable with respect to any of the Guaranteed Obligations; and
(4) agree that any failure by the Collateral Agent or any
Noteholder to exercise any right hereunder shall not be construed as a
waiver of the right to exercise the same or any other right at any
other time and from time to time thereafter.
(b) Until all of the Guaranteed Obligations are completely fulfilled
to the satisfaction of the Collateral Agent or any Noteholder and each and
every one of the terms, covenants, and conditions of this Agreement are
fully performed, the liability of the Guarantors under this Agreement shall
not be released, discharged or in any way impaired by:
(1) any amendment or modification of or supplement to or
extension or renewal of the Notes, the Purchase Agreement, any other
Transaction Documents or any other document or instrument evidencing
or relating to any of the Guaranteed Obligations and any agreements
made or to be made between the Collateral Agent and/or the Noteholders
and the Company or between the Collateral Agent and/or the Noteholders
and any other party liable with respect to any of the Guaranteed
Obligations;
(2) any exercise or non-exercise by the Collateral Agent or any
Noteholder of any right, power, remedy or privilege under or with
respect to any of the Transaction Documents or any other document or
instrument evidencing or relating to any of the Guaranteed Obligations
or this Agreement, or any waiver, consent or approval by the
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Collateral Agent with respect to any of the covenants, terms,
conditions or agreements contained in any Transaction Documents or any
other document or instrument evidencing or relating to any of the
Guaranteed Obligation or any indulgence, forbearance or extension of
time for performance or observance allowed to the Company from time to
time and for any length of time;
(3) any bankruptcy, insolvency, reorganization, arrangement,
readjustment, composition, liquidation or similar proceeding relating
to the Company or any other party liable with respect to any of the
Guaranteed Obligations; or
(4) any act or circumstances which might, but for the terms and
provisions of this Section, be deemed a legal or equitable discharge
of the Guarantors.
(c) The Guarantors hereby waive and surrender any defenses to the
Guarantors' liability hereunder based upon any of the foregoing acts,
omissions, agreements, or waivers by the Collateral Agent or any
Noteholder, it being the purpose and intent of this Agreement that the
obligations of the Guarantors hereunder are absolute and unconditional.
(d) At the direction of the Required Noteholders, the Collateral Agent
may, without affecting the liability of the Guarantors hereunder:
(1) exchange or surrender any property pledged by the Company or
any other party liable with respect to any of the Guaranteed
Obligations, or accept additional security for the Guaranteed
Obligations;
(2) renew and change the terms of any of the Guaranteed
Obligations or any of the Company's other liabilities;
(3) waive any rights or remedies against the Company or any other
party liable with respect to any of the Guaranteed Obligations or any
of the Company's other liabilities; and
(4) release, substitute or add any one or more Guarantors or
guarantors.
(e) No enforcement of rights and remedies under this Agreement or any
of the Transaction Documents shall constitute an irrevocable election of
remedies by the Collateral Agent or any Noteholders. The Collateral Agent
and/or the Noteholders shall not be obligated to ▇▇▇▇▇▇▇▇ assets as a
condition to enforcing the Guarantors' liability hereunder. The liability
of the Guarantors hereunder shall be in addition to that stated in any
other guaranty agreement, if any, heretofore or hereafter delivered to the
Collateral Agent or any Noteholder.
Section 4. Guarantors' Liability Not Affected. (a) The Guarantors'
liability under this Agreement shall not be affected by any defect in the
validity, regularity, enforceability or legality of (1) any of the Guaranteed
Obligations, (2) any collateral securing the Guaranteed Obligations, or (3) any
term of any of the Transaction Documents or any other document or instrument
evidencing or relating to any of the Guaranteed Obligations. In the event that
for any reason one or more of the provisions of this Agreement or their
application to any person or circumstance shall be held to be invalid, illegal
or unenforceable in any respect or to any extent, such provisions shall
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nevertheless remain valid, legal and enforceable in all other respects and to
such extent as may be permissible, and such invalidity, illegality, or
unenforceability shall not affect any other provision hereof. Any failure by the
Collateral Agent to exercise any right hereunder shall not be construed as a
waiver of the right to exercise the same or any other right at any other time
and from time to time.
(b) No exercise or non-exercise by the Collateral Agent or any
Noteholder of any rights given the Collateral Agent or the Noteholders
under the Transaction Documents or any other document or instrument
evidencing or relating to any of the Guaranteed Obligations, no dealing by
the Collateral Agent or any Noteholder with the Company, the Guarantors, or
any other party, and no change, impairment, release or suspension of any
right or remedy of the Collateral Agent or any Noteholder against any
person or entity, including the Company and any other Guarantors or
guarantor, shall in any way affect any of the obligations of the Guarantors
hereunder or any security furnished by the Guarantors, give the Guarantors
any recourse or offset against the Collateral Agent and/or the Noteholders
or be construed as a waiver of the right to exercise the same or any other
right at any time and from time to time thereafter.
(c) This Agreement and the Guarantors' obligations hereunder shall
continue to be effective or be reinstated, as the case may be, if at any
time payment of any of the Guaranteed Obligations is rescinded or must
otherwise be restored or returned by the Collateral Agent and/or the
Noteholders, all as though such payment had not been made. At the direction
of the Required Noteholders, the Collateral Agent's good faith
determination as to whether a payment must be restored or returned shall be
binding on the Guarantors.
Section 5. Waiver of Subrogation and Other Rights. Until such time as the
Guaranteed Obligations have been paid in full, the Guarantors hereby irrevocably
waive any and all rights they may have at any time (whether arising directly or
indirectly, by operation of law or contract) to assert any claim on account of
this Agreement against the Company or any other party liable with respect to any
of the Guaranteed Obligations, including, without limitation, any and all rights
of subrogation, reimbursement, exoneration, contribution and indemnity.
Section 6. Default and Remedies. (a) If an Event of Default (as defined in
the Purchase Agreement) shall occur, subject to the terms of the Intercreditor
Agreement, the Guarantors shall pay, comply with and perform such of the
Guaranteed Obligations as the Collateral Agent and/or the Noteholders shall
direct, whether or not the Guaranteed Obligations directed by the Collateral
Agent to be paid, complied with or performed by the Guarantors are those which
gave rise to the Event of Default. If an Event of Default shall occur, at the
direction of the Required Noteholders, the Collateral Agent without any prior
demand or proceeding against the Company, (1) may forthwith recover from the
Guarantors the full amount of the Guaranteed Obligations, and (2) (at the
direction of the Required Noteholders) may sell all or any part of any property
held as security hereunder on any exchange or at public or private sale at its
option at any time with five Business Days notice to each Guarantor and with
such advertisement as is required by applicable statute, with the right on the
part of the Collateral Agent or its nominee to become the purchaser thereof at
any public sale (unless prohibited by statute), free from any equity of
redemption and from all other claims.
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(b) If the Guarantors default in the performance of its obligations
hereunder, the Guarantors shall, in addition to all other liabilities
hereunder, be liable to the Collateral Agent and the Noteholders for all
costs and expenses, including reasonable attorneys' fees actually incurred
and court costs, incurred by the Collateral Agent or any Noteholder in
enforcing this Agreement, and any judgment entered against the Guarantors
pursuant to this Agreement shall bear interest after judgment until paid at
the rate or rates of interest specified in the Notes, and not at the
statutory rate of interest, and interest at such rate or rates shall be
collectible as part of any judgment hereunder.
Section 7. Cumulative Remedies. Subject to the terms of the Intercreditor
Agreement, the rights, powers and remedies of the Collateral Agent and the
Noteholders hereunder and under any other agreement now or at any time hereafter
in force between the Collateral Agent or any Noteholder and the Guarantors shall
be cumulative and not alternative and shall be in addition to all rights, powers
and remedies given to the Collateral Agent and the Noteholders by law. Each and
every default in the performance of this Agreement shall give rise to a separate
cause of action, and separate suits may be brought as each such cause of action
arises and matures.
Section 8. Jurisdiction, Service of Process and Waiver of Jury Trial. The
Guarantors hereby unconditionally and irrevocably (a) submit to the jurisdiction
of the courts of the Commonwealth of Pennsylvania and the courts of the United
States sitting in Pennsylvania in connection with any action, suit or proceeding
under or relating to, or to enforce any of the provisions of, this Agreement,
(b) waive, to the extent permitted by law, any right to obtain a change in venue
from any such court in any such action, suit or proceeding, and (c) waive
personal service of process in any such action, suit or proceeding and agrees
that process may be served by certified mail, return receipt requested, postage
prepaid to the Guarantors' address set forth following their signatures to this
Agreement. The Guarantors irrevocably agree that service of process in
accordance with the preceding sentence shall be deemed in every respect
effective and valid personal service of process upon the Guarantors. The
provisions of this Section shall not limit or otherwise affect the right of the
Collateral Agent or any Noteholder to institute and conduct an action in any
other appropriate manner, jurisdiction or court. The Guarantors, the Collateral
Agent and the Noteholders waive any right to trial by jury in any action or
proceeding arising out of this Agreement. Section 9. Set-Off. The Collateral
Agent and the Noteholders shall have a lien upon and a security interest in and
a right of set-off against all property of the Guarantors now or at any time
hereafter in the possession of or under the control of the Collateral Agent or
any Noteholder in any capacity whatsoever, as security for this Agreement. Each
such lien, security interest and right of set-off may be enforced or exercised
without demand or notice to the Guarantors, shall continue in full force and
effect unless specifically waived or released by the Collateral Agent in
writing, and shall not be deemed waived by any conduct of the Collateral Agent,
by any failure of the Collateral Agent to exercise any such right of set-off or
to enforce any such lien or security interest or by any neglect or delay in so
doing.
Section 10. Representations and Warranties. The Guarantors represent and
warrant to the Investor that:
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(a) The Guarantors are corporations duly organized, validly existing
and have active status under the laws of Florida and each has full power,
authority and legal right to execute and deliver, and to comply with, the
provisions of, this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by
the Guarantors, and such execution and delivery will not conflict with or
result in a breach of or constitute a default under the articles of
incorporation or bylaws or any instrument to which the Guarantors are a
party or by which the Guarantors or the Guarantors' property is bound, or
violate any applicable provision of law or any judgment, order, writ,
injunction, decree, rule or regulation of any court, administrative agency
or other governmental agency or authority, and this Agreement constitutes
the valid and binding obligation of the Guarantors and is enforceable in
accordance with its terms.
Section 11. Notices. All notices required to be given to any of the parties
hereunder shall be in writing and shall be given in the manner provided in the
Purchase Agreement, addressed to such party at its address as set forth in the
caption to this Agreement. Any notice of any change in such address shall also
be given in the manner set forth above. Whenever the giving of notice is
required, the giving of such notice may be waived in writing by the party
entitled to receive such notice.
Section 12. Miscellaneous. (a) All understandings, representations, and
agreements heretofore made or exchanged between the Guarantors and the Investor
with respect to the subject matter hereof are merged into this Agreement and any
other Transaction Documents to which the Guarantors are a party, which alone,
fully, completely, and integrally, express the understanding of the Guarantors
and the Investor concerning the subject matter hereof.
(b) No modification of this Agreement shall be effective unless in
writing and (at the direction of the Required Noteholders) signed by an
authorized officer of the Collateral Agent.
(c) This Agreement shall be binding upon the Guarantors and their
respective successors and assigns, and shall inure to the benefit of the
Collateral Agent, the Noteholders and their successors and assigns,
including, but not limited to, any assignee to which any Noteholder shall
assign the Notes.
(d) This Agreement may be signed in counterparts.
(e) This Agreement shall be construed in accordance with and governed
in all respects by the laws of the Commonwealth of Pennsylvania.
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IN WITNESS WHEREOF, the Guarantors have duly executed this Agreement the
day and year first above written.
MTS PACKAGING SYSTEMS, INC.
By: ____________________________________
Name/Title: _____________________________
Address: _______________________________
MEDICATION MANAGEMENT CLEARWATER MEDICAL SERVICES,
TECHNOLOGIES, INC. INC.
By: ______________________________ By: ______________________________
Name/Title: ______________________ Name/Title: ______________________
Address: ______________________ Address: _________________________
______________________ _________________________
MEDICAl TECHNOLOGY MEDICATION MANAGEMENT
LABORATORIES, INC. SYSTEMS, INC.
By: ______________________________ By: ______________________________
Name/Title: ______________________ Name/Title: ______________________
Address: ______________________ Address: _________________________
______________________ _________________________
SYSTEMS PROFESSIONALS, INC. CART-▇▇▇▇, INC.
By: ______________________________ By: ______________________________
Name/Title: ______________________ Name/Title: ______________________
Address: ______________________ Address: _________________________
______________________ _________________________
VANGARD PHARMACEUTICAL LIFESERV TECHNOLOGIES, INC.
PACKAGING, INC.
By: ______________________________ By: ______________________________
Name/Title: ______________________ Name/Title: ______________________
Address: ______________________ Address: _________________________
______________________ _________________________
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PERFORMANCE PHARMACY MTS SALES & MARKETING, INC.
SYSTEMS, INC.
By: ______________________________ By: ______________________________
Name/Title: ______________________ Name/Title: ______________________
Address: ______________________ Address: _________________________
______________________ _________________________