Exhibit 4.16
[EXECUTION COPY]
CANADIAN SUBSIDIARY GUARANTY
This CANADIAN SUBSIDIARY GUARANTY (as amended, supplemented, amended
and restated or otherwise modified from time to time, this "GUARANTY"), dated as
of June 30, 1997, is made by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LTD., a Manitoba corporation (the
"GUARANTOR"), in favor of THE BANK OF NOVA SCOTIA ("SCOTIABANK"), as agent (in
such capacity, the "CANADIAN AGENT") for each of the Secured Parties (as defined
below).
W I T N E S S E T H:
WHEREAS, pursuant to a Credit Agreement, dated as of June 30, 1997 (as
amended, supplemented, amended and restated or otherwise modified from time to
time, the "CREDIT AGREEMENT"), among ▇▇▇▇▇▇ Health Products Group Inc., a
Delaware corporation ("LHPG" or the "U.S. BORROWER" (prior to the Assumption)),
Vita Health Company (1985) Ltd., a Manitoba corporation (the "CANADIAN
BORROWER", and together with the U.S. Borrower, the "BORROWERS"), the various
financial institutions as are or may become parties thereto which extend a
Commitment under the U.S. Facility (collectively, the "U.S. LENDERS"), the
various financial institutions as are or may become parties thereto which extend
a Commitment under the Canadian Facility (collectively, the "CANADIAN LENDERS",
and together with the U.S. Lenders, the "LENDERS"), the Canadian Agent and
Scotiabank, as agent for the U.S. Lenders under the U.S. Facility (in such
capacity, the "U.S. AGENT", and together with the Canadian Agent, collectively,
the "AGENTS"), the Lenders and the Issuers have extended Commitments to make
Credit Extensions to the Borrowers;
WHEREAS, as contemplated by the Credit Agreement, immediately
following the making of the initial Credit Extensions, ▇▇▇▇▇▇ Health Products
Inc., a Delaware corporation ("LEINER") and LHPG have delivered the Assumption
Agreement, pursuant to which Leiner has assumed (the "ASSUMPTION") the rights
and obligations of LHPG as (and has become) the "U.S. Borrower" under the Credit
Agreement;
WHEREAS, as a condition precedent to the making of the Credit
Extensions (including the initial Credit
Extension) and the execution and delivery of the Assumption Agreement under
the Credit Agreement, the Guarantor is required to execute and deliver this
Guaranty; and
WHEREAS, the Guarantor has duly authorized the execution, delivery and
performance of this Guaranty; and
WHEREAS, it is in the best interests of the Guarantor to execute this
Guaranty inasmuch as the Guarantor will derive substantial direct and indirect
benefits from the Credit Extensions made from time to time to the Borrowers by
the Lenders and the Issuers pursuant to the Credit Agreement;
NOW THEREFORE, for good and valuable consideration the receipt of
which is hereby acknowledged, and in order to induce the Lenders and the Issuers
to make Credit Extensions (including the initial Credit Extensions) to the
Borrowers pursuant to the Credit Agreement, and to induce Secured Parties to
enter into Rate Protection Agreements, if any, the Guarantor agrees, for the
benefit of each Secured Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. CERTAIN TERMS. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
"AGENTS" is defined in the FIRST RECITAL.
"BORROWERS" is defined in the FIRST RECITAL.
"CANADIAN AGENT" is defined in the PREAMBLE.
"CANADIAN BORROWER" is defined in the FIRST RECITAL.
"CANADIAN LENDERS" is defined in the FIRST RECITAL.
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"CREDIT AGREEMENT" is defined in the FIRST RECITAL.
"GUARANTOR" is defined in the PREAMBLE.
"GUARANTY" is defined in the PREAMBLE.
"LENDERS" is defined in the FIRST RECITAL.
"SCOTIABANK" is defined in the PREAMBLE.
"SECURED PARTY" means, as the context may require, the Canadian
Lenders, the Canadian Issuers, the Agents, each counterparty to a Rate
Protection Agreement that is (or at the time such Rate Protection Agreement is
entered into, was) a Canadian Lender or an Affiliate thereof and (in each case),
each of their respective successors, permitted transferees and permitted
assigns.
"U.S. AGENT" is defined in the FIRST RECITAL.
"U.S. BORROWER" is defined in the FIRST RECITAL.
"U.S. LENDERS" is defined in the FIRST RECITAL.
SECTION 1.2. CREDIT AGREEMENT DEFINITIONS. Unless otherwise defined
herein or the context otherwise requires, terms used in this Guaranty, including
its preamble and recitals, have the meanings provided in the Credit Agreement.
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1. GUARANTY. The Guarantor hereby absolutely,
unconditionally and irrevocably
(a) guarantees the full and punctual payment when due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand
or
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otherwise, of all Obligations of the Canadian Borrower now or hereafter
existing, whether for principal, interest, fees, expenses or otherwise
(including all such amounts which would become due but for the operation of
the automatic stay under Section 362(a) of the United States Bankruptcy
Code, 11 U.S.C. Section 362(a), and the operation of Sections 502(b) and
506(b) of the United States Bankruptcy Code, 11 U.S.C. Section 502(b) and
Section 506(b) or analogous provisions under Canadian law), and
(b) indemnifies and holds harmless each Secured Party and each holder
of a Canadian Note for any and all costs and expenses (including reasonable
attorney's fees and expenses and disbursements) incurred by such Secured
Party or such holder, as the case may be, in enforcing any rights under
this Guaranty except for any such costs, expenses and disbursements arising
by reason of the relevant indemnified party's gross negligence or willful
misconduct;
PROVIDED, HOWEVER, that the Guarantor shall be liable under this Guaranty for
the maximum amount of such liability that can be hereby incurred without
rendering this Guaranty, as it relates to the Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer, and not
for any greater amount. This Guaranty constitutes a guaranty of payment when
due and not of collection, and the Guarantor specifically agrees that it shall
not be necessary or required that any Secured Party or any holder of any
Canadian Note exercise any right, assert any claim or demand or enforce any
remedy whatsoever against the Canadian Borrower (or any other Person) before or
as a condition to the obligations of the Guarantor hereunder.
SECTION 2.2. ACCELERATION OF GUARANTY. The Guarantor agrees that, in
the event of the dissolution or insolvency of the Canadian Borrower or the
Guarantor (but excluding liquidation, dissolution, merger or other action
permitted pursuant to Section 9.2.10 of the Credit Agreement), or the inability
or failure of the Canadian Borrower or the Guarantor to pay debts as they become
due, or an assignment by the Canadian Borrower or the Guarantor for the benefit
of creditors, or the commencement of any case or proceeding in respect of the
Canadian Borrower or
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the Guarantor under any bankruptcy, insolvency or similar laws, and if such
event shall occur at a time when any of the Obligations of the Canadian
Borrower may not then be due and payable, the Guarantor agrees that it will
pay to the Lenders forthwith the full amount which would be payable hereunder
by the Guarantor if all such Obligations were then due and payable.
SECTION 2.3. GUARANTY ABSOLUTE, ETC. This Guaranty shall in all
respects be a continuing, absolute, unconditional and irrevocable guaranty of
payment, and shall remain in full force and effect until all Obligations of the
Canadian Borrower have been paid in full in cash or cash collateralization in
full, all obligations of the Guarantor hereunder shall have been paid in full in
cash or cash collateralization in full, all Canadian Letters of Credit have been
terminated or expired, all Rate Protection Agreements in respect of the Canadian
Commitments have been terminated and all Canadian Commitments shall have
terminated. The Guarantor guarantees that the Obligations of the Canadian
Borrower will be paid strictly in accordance with the terms; PROVIDED, HOWEVER,
that in the event of any sale of the capital stock of the Guarantor to the
extent permitted by Section 9.2.11 of the Credit Agreement and to the extent
that, after giving effect to such sale, the Guarantor is no longer a Subsidiary
of the Canadian Borrower, the Guarantor and each Guarantor that is a Subsidiary
of the Guarantor shall be deemed automatically discharged and released from this
Guaranty without any consent or other action by the Canadian Borrower or any
Secured Party or any other Person and this Guaranty shall, as to each the
Guarantor, be automatically terminated and of no further force and effect, and
the Canadian Agent will, at the request of the Canadian Borrower or of the
Guarantor and at the Guarantor's sole cost and expense, execute and deliver such
documents (without recourse and without representation or warranty) as the
Guarantor may reasonably request to evidence such release. The Guarantor
guarantees that the Obligations of the Canadian Borrower will be paid strictly
in accordance with the terms of the Credit Agreement and each other Loan
Document, as the case may be, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of any Secured Party or any holder of any Note with respect thereto. The
liability of the Guarantor under
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this Guaranty shall be absolute, unconditional and irrevocable irrespective
of:
(a) any lack of validity, legality or enforceability of the Credit
Agreement, any Canadian Note or any other Loan Document or any other
instrument or document relating to any thereof;
(b) the failure of any Secured Party or any holder of any Canadian
Note
(i) to assert any claim or demand or to enforce any right or
remedy against the Canadian Borrower or any other Person (including
any other guarantor (including the Guarantor)) under the provisions of
the Credit Agreement, any Canadian Note, any other Loan Document, any
other instrument or document relating to any thereof or otherwise, or
(ii) to exercise any right or remedy against any other guarantor
(including the Guarantor) of, or collateral securing, any Obligations
of the Canadian Borrower;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of the Canadian Borrower, or
any other extension, compromise or renewal of any Obligation of the
Canadian Borrower;
(d) any reduction, limitation, impairment or termination of any
Obligations of the Canadian Borrower for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be
subject to (and the Guarantor hereby waives any right to or claim of) any
defense or setoff, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality, nongenuineness, irregularity,
compromise, unenforceability of, or any other event or occurrence
affecting, any Obligations of the Canadian Borrower or otherwise;
(e) any amendment to, rescission, waiver, or other modification of, or
any consent to departure
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from, any of the terms of the Credit Agreement, any Canadian Note or any
other Loan Document or any other instrument or document relating to any
thereof;
(f) any addition, exchange, release, surrender or non-perfection of
any collateral, or any amendment to or waiver or release or addition of, or
consent to departure from, any other guaranty, held by any Secured Party or
any holder of any Canadian Note securing any of the Obligations of the
Canadian Borrower; or
(g) any other circumstance which might otherwise constitute a defense
(other than the defense of payment in full of the Obligations) available
to, or a legal or equitable discharge of, the Canadian Borrower, any surety
or any guarantor.
SECTION 2.4. REINSTATEMENT, ETC. The Guarantor agrees that this
Guaranty shall continue to be effective or be reinstated, as the case may be, if
at any time any payment (in whole or in part) of any of the Obligations of the
Canadian Borrower is rescinded or must otherwise be restored by any Secured
Party or any holder of any Canadian Note, upon the insolvency, bankruptcy or
reorganization of the Canadian Borrower or otherwise, all as though such payment
had not been made.
SECTION 2.5. WAIVER, ETC. The Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations of the Canadian Borrower and this Guaranty and any requirement that
the Canadian Agent, any other Secured Party or any holder of any Canadian Note
protect, secure, perfect or insure any security interest or Lien, or any
property subject thereto, or exhaust any right or take any action against the
Canadian Borrower or any other Person (including any other guarantor) or entity
or any collateral securing the Obligations of the Canadian Borrower.
SECTION 2.6. POSTPONEMENT OF SUBROGATION, ETC. The Guarantor agrees
that it will not exercise any rights which it may acquire by way of rights of
subrogation under this Guaranty, by any payment made hereunder or otherwise,
until the prior payment in full in cash of or cash collateralization in full of
all Obligations of the Canadian
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Borrower, the termination, expiration or cash collateralization of all
Canadian Letters of Credit, the termination of all Rate Protection Agreements
in respect of the Canadian Commitments and the termination of all Canadian
Commitments. Any amount paid to the Guarantor on account of any such
subrogation rights prior to the payment in full in cash of all Obligations of
the Canadian Borrower shall be held in trust for the benefit of the Secured
Parties and each holder of a Canadian Note and shall immediately be paid to
the Canadian Agent for the benefit of the Secured Parties and each holder of
a Canadian Note and credited and applied against the Obligations of the
Canadian Borrower, whether matured or unmatured, in accordance with the terms
of the Credit Agreement; PROVIDED, HOWEVER, that if
(a) the Guarantor has made payment to the Secured Parties and each
holder of a Canadian Note of all or any part of the Obligations of the
Canadian Borrower, and
(b) all Obligations of the Canadian Borrower have been paid in full in
cash or cash collateralization in full, all Canadian Letters of Credit have
been terminated, expired or cash collateralized, all Rate Protection
Agreements in respect of the Canadian Commitments have been terminated and
all Canadian Commitments have been permanently terminated,
each Secured Party and each holder of a Canadian Note agrees that, at the
Guarantor's request, the Canadian Agent, on behalf of the Secured Parties and
the holders of the Canadian Notes, will execute and deliver to the Guarantor
appropriate documents (without recourse and without representation or warranty)
necessary to evidence the transfer by subrogation to the Guarantor of an
interest in the Obligations of the Canadian Borrower resulting from such payment
by the Guarantor. In furtherance of the foregoing, for so long as any
Obligations of the Canadian Borrower or any Canadian Commitments remain
outstanding, the Guarantor shall refrain from taking any action or commencing
any proceeding against the Canadian Borrower (or its successors or assigns,
whether in connection with a bankruptcy proceeding or otherwise) to recover any
amounts in the respect of payments made under this Guaranty to any Secured Party
or any holder of a Canadian Note.
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SECTION 2.7. SUCCESSORS, TRANSFEREES AND ASSIGNS; TRANSFERS
OF CANADIAN NOTES, ETC. This Guaranty shall:
(a) be binding upon the Guarantor, and its successors, transferees and
assigns; and
(b) inure to the benefit of and be enforceable by the Canadian Agent
and each other Secured Party.
Without limiting the generality of the foregoing, any Lender may assign or
otherwise transfer (in whole or in part) any Canadian Commitment, Canadian Note
or Canadian Credit Extension held by it to any other Person or entity, and such
other Person or entity shall thereupon become vested with all rights and
benefits in respect thereof granted to such Lender under any Loan Document
(including this Guaranty) or otherwise, subject, however to the provisions of
Section 12.11 and Article XI of the Credit Agreement.
SECTION 2.8. JUDGMENT. The Guarantor hereby agrees that, with
respect to the Canadian Facility:
(a) if, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due in Canadian Dollars hereunder into another
currency, then the rate of exchange used shall be that at which the
Canadian Agent, in accordance with normal banking procedures could purchase
Canadian Dollars with such other currency on the Business Day preceding
that on which final judgment is given; and
(b) the obligation of the Guarantor in respect of any sum due from it
to any Secured Party hereunder or any other Loan Document shall,
notwithstanding any judgment in a currency other than Canadian Dollars, be
discharged only to the extent that on the Business Day following receipt by
the Secured Party of any sum adjudged to be so due in a currency other than
Canadian Dollars such Secured Party may, in accordance with normal banking
procedures, purchase Canadian Dollars with such other currency; in the
event that the Canadian Dollars so purchased are less than the amount
originally due to any Secured Party in Canadian Dollars, the Guarantor, as
a separate obligation and notwithstanding any such judgment, hereby
indemnifies
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and holds harmless such Secured Party against such loss, and if the
Canadian Dollars so purchased exceed the sum originally due to such
Secured Party or holder in Canadian Dollars, such Secured Party shall remit
to the Guarantor such excess.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby
represents and warrants to each Secured Party that the representations and
warranties contained in Article VIII of the Credit Agreement, insofar as the
representations and warranties contained therein are applicable to the Guarantor
and its properties, are true and correct in all material respects, each such
representation and warranty set forth in such Article (insofar as applicable as
aforesaid) and all other terms of the Credit Agreement to which reference is
made therein, together with all related definitions and ancillary provisions,
being hereby incorporated into this Guaranty by reference as though specifically
set forth in this Article.
ARTICLE IV
COVENANTS, ETC.
SECTION 4.1. AFFIRMATIVE COVENANTS. The Guarantor covenants and
agrees that, so long as any portion of the Obligations of the Canadian Borrower
shall remain unpaid, any Canadian Letters of Credit shall be outstanding, any
Rate Protection Agreement in respect of the Canadian Commitments shall remain in
full force and effect or any Canadian Lender shall have any outstanding
Commitment, the Guarantor will, unless the Required Lenders shall otherwise
consent in writing, perform, comply with and be bound by all of the agreements,
covenants and obligations contained in Article IX of the Credit Agreement which
are applicable to the Guarantor or its properties, each such agreement, covenant
and obligation contained in such Article and all other terms of the Credit
Agreement to which reference is made herein, together with all related
definitions and
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ancillary provisions, being hereby incorporated into this Guaranty by
reference as though specifically set forth in this Article.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. LOAN DOCUMENT. This Guaranty is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof, including ARTICLE XII thereof.
SECTION 5.2. BINDING ON SUCCESSORS, TRANSFEREES AND ASSIGNS;
ASSIGNMENT. In addition to, and not in limitation of, SECTION 2.7, this
Guaranty shall be binding upon the Guarantor and its successors, transferees and
assigns and shall inure to the benefit of and be enforceable by each Secured
Party and each holder of a Canadian Note and their respective successors,
transferees and assigns (to the full extent provided pursuant to SECTION 2.7);
PROVIDED, HOWEVER, that the Guarantor may not assign any of its obligations
hereunder without the prior written consent of all Lenders.
SECTION 5.3. AMENDMENTS, ETC. No amendment to or waiver of any
provision of this Guaranty, nor consent to any departure by the Guarantor
herefrom, shall in any event be effective unless the same shall be in writing
and signed by the Canadian Agent (on behalf of the Lenders or the Required
Lenders, as the case may be), and then such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
SECTION 5.4. NOTICES. All notices and other communications provided
for hereunder shall be in writing or by facsimile and, mailed or telecopied or
delivered with respect to the Guarantor, in care of the Canadian Borrower at the
address of the Canadian Borrower specified in the Credit Agreement, and with
respect to the Canadian Agent, to the address of the Canadian Agent specified in
the Credit Agreement, or, with respect to the Guarantor or the Canadian Agent,
at such other address or facsimile number as shall be
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designated by such party in a written notice to each other party complying as
to delivery with the terms of this Section. All such notices and other
communications, when mailed and properly addressed with postage prepaid or if
properly addressed and sent by pre-paid courier service, shall be deemed
given when received; any such notice or communication, if transmitted by
telecopier, shall be deemed given when transmitted and electronically
confirmed.
SECTION 5.5. NO WAIVER; REMEDIES. In addition to, and not in
limitation of, SECTION 2.3 and SECTION 2.5, no failure on the part of any
Secured Party or any holder of a Canadian Note to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 5.6. CAPTIONS. Section captions used in this Guaranty are
for convenience of reference only, and shall not affect the construction of this
Guaranty.
SECTION 5.7. SETOFF. In addition to, and not in limitation of, any
rights of any Secured Party or any holder of a Canadian Note under applicable
law, each Secured Party and each such holder shall, upon the occurrence of any
Default described in any of clauses (a) through (d) of Section 10.1.9 of the
Credit Agreement or with the consent of the Required Lenders, any Event of
Default, have the right to appropriate and apply to the payment of the
obligations of the Guarantor owing to it hereunder, whether or not then due, and
the Guarantor hereby grants to each Secured Party and each such holder a
continuing security interest in, any and all balances, credits, deposits,
accounts or moneys of the Guarantor then or thereafter maintained with such
Secured Party, or such holder or any agent or bailee for such Secured Party or
such holder; PROVIDED, HOWEVER, that any such appropriation and application
shall be subject to the provisions of SECTION 6.8 of the Credit Agreement.
SECTION 5.8. SEVERABILITY. Wherever possible each provision of this
Guaranty shall be interpreted in such
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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.
SECTION 5.9. COUNTERPARTS. This Guaranty may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
SECTION 5.10. GOVERNING LAW, ENTIRE AGREEMENT, ETC. THIS GUARANTY
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF
THE PROVINCE OF MANITOBA AND THE LAWS OF CANADA APPLICABLE IN THE PROVINCE.
THIS GUARANTY AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING
AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE
ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
SECTION 5.11. FORUM SELECTION AND CONSENT TO JURISDICTION. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
GUARANTY OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE SECURED PARTIES
OR THE GUARANTOR SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF
THE STATE OF NEW YORK, NEW YORK COUNTY OR IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY PROPERTY MAY BE BROUGHT, AT THE CANADIAN AGENT'S OPTION,
IN THE COURTS OF ANY JURISDICTION WHERE SUCH PROPERTY MAY BE FOUND. THE
GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE
COURTS OF THE STATE OF NEW YORK, NEW YORK COUNTY AND OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH
LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE GUARANTOR HEREBY
IRREVOCABLY APPOINTS CT CORPORATION SYSTEM (THE "PROCESS AGENT"), WITH AN OFFICE
ON THE DATE HEREOF AT ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, AS
ITS AGENT TO RECEIVE, ON THE GUARANTOR'S BEHALF AND ON BEHALF OF THE
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GUARANTOR'S PROPERTY, SERVICE OF COPIES OF THE SUMMONS AND COMPLAINT AND ANY
OTHER PROCESS WHICH MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. SUCH
SERVICE MAY BE MADE BY MAILING OR DELIVERING A COPY OF SUCH PROCESS TO THE
GUARANTOR IN CARE OF THE PROCESS AGENT AT THE PROCESS AGENT'S ABOVE ADDRESS,
AND THE GUARANTOR HEREBY IRREVOCABLY AUTHORIZES AND DIRECTS THE PROCESS AGENT
TO ACCEPT SUCH SERVICE ON ITS BEHALF. AS AN ALTERNATIVE METHOD OF SERVICE,
THE GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY
REGISTERED MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT
THE STATE OF NEW YORK. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY
HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION
BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH
LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT THE
GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY
COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE)
WITH RESPECT TO ITSELF OR ITS PROPERTY, THE GUARANTOR HEREBY IRREVOCABLY
WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS GUARANTY AND
THE OTHER LOAN DOCUMENTS.
SECTION 5.12. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE SECURED PARTIES OR THE GUARANTOR. THE GUARANTOR ACKNOWLEDGES AND AGREES
THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS ENTERING INTO THE
CREDIT AGREEMENT.
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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
64804 MANITOBA LTD.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
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[EXECUTION COPY]
CANADIAN SUBSIDIARY GUARANTY
----------------------------
This CANADIAN SUBSIDIARY GUARANTY (as amended, supplemented, amended
and restated or otherwise modified from time to time, this "GUARANTY"), dated as
of June 30, 1997, is made by WESTCAN PHARMACEUTICALS LTD., a Manitoba
corporation (the "GUARANTOR"), in favor of THE BANK OF NOVA SCOTIA
("SCOTIABANK"), as agent (in such capacity, the "CANADIAN AGENT") for each of
the Secured Parties (as defined below).
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to a Credit Agreement, dated as of June 30, 1997 (as
amended, supplemented, amended and restated or otherwise modified from time to
time, the "CREDIT AGREEMENT"), among ▇▇▇▇▇▇ Health Products Group Inc., a
Delaware corporation ("LHPG" or the "U.S. BORROWER" (prior to the Assumption)),
Vita Health Company (1985) Ltd., a Manitoba corporation (the "CANADIAN
BORROWER", and together with the U.S. Borrower, the "BORROWERS"), the various
financial institutions as are or may become parties thereto which extend a
Commitment under the U.S. Facility (collectively, the "U.S. LENDERS"), the
various financial institutions as are or may become parties thereto which extend
a Commitment under the Canadian Facility (collectively, the "CANADIAN LENDERS",
and together with the U.S. Lenders, the "LENDERS"), the Canadian Agent and
Scotiabank, as agent for the U.S. Lenders under the U.S. Facility (in such
capacity, the "U.S. AGENT", and together with the Canadian Agent, collectively,
the "AGENTS"), the Lenders and the Issuers have extended Commitments to make
Credit Extensions to the Borrowers;
WHEREAS, as contemplated by the Credit Agreement, immediately
following the making of the initial Credit Extensions, ▇▇▇▇▇▇ Health Products
Inc., a Delaware corporation ("LEINER") and LHPG have delivered the
Assumption Agreement, pursuant to which Leiner has assumed (the "ASSUMPTION")
the rights and obligations of LHPG as (and has become) the "U.S. Borrower" under
the Credit Agreement;
WHEREAS, as a condition precedent to the making of the Credit
Extensions (including the initial Credit Extension) and the execution and
delivery of the Assumption Agreement under the Credit Agreement, the Guarantor
is required to execute and deliver this Guaranty; and
WHEREAS, the Guarantor has duly authorized the execution, delivery and
performance of this Guaranty; and
WHEREAS, it is in the best interests of the Guarantor to execute this
Guaranty inasmuch as the Guarantor will derive substantial direct and indirect
benefits from the Credit Extensions made from time to time to the Borrowers by
the Lenders and the Issuers pursuant to the Credit Agreement;
NOW THEREFORE, for good and valuable consideration the receipt of
which is hereby acknowledged, and in order to induce the Lenders and the Issuers
to make Credit Extensions (including the initial Credit Extensions) to the
Borrowers pursuant to the Credit Agreement, and to induce Secured Parties to
enter into Rate Protection Agreements, if any, the Guarantor agrees, for the
benefit of each Secured Party, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. CERTAIN TERMS. The following terms (whether or not
underscored) when used in this Guaranty, including its preamble and recitals,
shall have the following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
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"AGENTS" is defined in the FIRST RECITAL.
"BORROWERS" is defined in the FIRST RECITAL.
"CANADIAN AGENT" is defined in the PREAMBLE.
"CANADIAN BORROWER" is defined in the FIRST RECITAL.
"CANADIAN LENDERS" is defined in the FIRST RECITAL.
"CREDIT AGREEMENT" is defined in the FIRST RECITAL.
"GUARANTOR" is defined in the PREAMBLE.
"GUARANTY" is defined in the PREAMBLE.
"LENDERS" is defined in the FIRST RECITAL.
"SCOTIABANK" is defined in the PREAMBLE.
"SECURED PARTY" means, as the context may require, the Canadian
Lenders, the Canadian Issuers, the Agents, each counterparty to a Rate
Protection Agreement that is (or at the time such Rate Protection Agreement is
entered into, was) a Canadian Lender or an Affiliate thereof and (in each case),
each of their respective successors, permitted transferees and permitted
assigns.
"U.S. AGENT" is defined in the FIRST RECITAL.
"U.S. BORROWER" is defined in the FIRST RECITAL.
"U.S. LENDERS" is defined in the FIRST RECITAL.
SECTION 1.2. CREDIT AGREEMENT DEFINITIONS. Unless otherwise defined
herein or the context otherwise requires, terms used in this Guaranty, including
its
3
preamble and recitals, have the meanings provided in the Credit Agreement.
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1. GUARANTY. The Guarantor hereby absolutely,
unconditionally and irrevocably
(a) guarantees the full and punctual payment when due, whether at
stated maturity, by required prepayment, declaration, acceleration, demand
or otherwise, of all Obligations of the Canadian Borrower now or hereafter
existing, whether for principal, interest, fees, expenses or otherwise
(including all such amounts which would become due but for the operation of
the automatic stay under Section 362(a) of the United States Bankruptcy
Code, 11 U.S.C. Section 362(a), and the operation of Sections 502(b) and
506(b) of the United States Bankruptcy Code, 11 U.S.C. Section 502(b) and
Section 506(b) or analogous provisions under Canadian law), and
(b) indemnifies and holds harmless each Secured Party and each holder
of a Canadian Note for any and all costs and expenses (including reasonable
attorney's fees and expenses and disbursements) incurred by such Secured
Party or such holder, as the case may be, in enforcing any rights under
this Guaranty except for any such costs, expenses and disbursements arising
by reason of the relevant indemnified party's gross negligence or willful
misconduct;
PROVIDED, HOWEVER, that the Guarantor shall be liable under this Guaranty for
the maximum amount of such liability that can be hereby incurred without
rendering this Guaranty, as it relates to the Guarantor, voidable under
applicable law relating to fraudulent conveyance or fraudulent transfer,
4
and not for any greater amount. This Guaranty constitutes a guaranty of payment
when due and not of collection, and the Guarantor specifically agrees that it
shall not be necessary or required that any Secured Party or any holder of any
Canadian Note exercise any right, assert any claim or demand or enforce any
remedy whatsoever against the Canadian Borrower (or any other Person) before or
as a condition to the obligations of the Guarantor hereunder.
SECTION 2.2. ACCELERATION OF GUARANTY. The Guarantor agrees that, in
the event of the dissolution or insolvency of the Canadian Borrower or the
Guarantor (but excluding liquidation, dissolution, merger or other action
permitted pursuant to Section 9.2.10 of the Credit Agreement), or the inability
or failure of the Canadian Borrower or the Guarantor to pay debts as they become
due, or an assignment by the Canadian Borrower or the Guarantor for the benefit
of creditors, or the commencement of any case or proceeding in respect of the
Canadian Borrower or the Guarantor under any bankruptcy, insolvency or similar
laws, and if such event shall occur at a time when any of the Obligations of the
Canadian Borrower may not then be due and payable, the Guarantor agrees that it
will pay to the Lenders forthwith the full amount which would be payable
hereunder by the Guarantor if all such Obligations were then due and payable.
SECTION 2.3. GUARANTY ABSOLUTE, ETC. This Guaranty shall in all
respects be a continuing, absolute, unconditional and irrevocable guaranty of
payment, and shall remain in full force and effect until all Obligations of the
Canadian Borrower have been paid in full in cash or cash collateralization in
full, all obligations of the Guarantor hereunder shall have been paid in full in
cash or cash collateralization in full, all Canadian Letters of Credit have been
terminated or expired, all Rate Protection Agreements in respect of the Canadian
Commitments have been terminated and all Canadian Commitments shall have
terminated. The Guarantor guarantees that the Obligations of the Canadian
Borrower will be paid strictly in accordance
5
with the terms; PROVIDED, HOWEVER, that in the event of any sale of the capital
stock of the Guarantor to the extent permitted by Section 9.2.11 of the Credit
Agreement and to the extent that, after giving effect to such sale, the
Guarantor is no longer a Subsidiary of the Canadian Borrower, the Guarantor and
each Guarantor that is a Subsidiary of the Guarantor shall be deemed
automatically discharged and released from this Guaranty without any consent or
other action by the Canadian Borrower or any Secured Party or any other Person
and this Guaranty shall, as to each the Guarantor, be automatically terminated
and of no further force and effect, and the Canadian Agent will, at the request
of the Canadian Borrower or of the Guarantor and at the Guarantor's sole cost
and expense, execute and deliver such documents (without recourse and without
representation or warranty) as the Guarantor may reasonably request to evidence
such release. The Guarantor guarantees that the Obligations of the Canadian
Borrower will be paid strictly in accordance with the terms of the Credit
Agreement and each other Loan Document, as the case may be, regardless of any
law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of any Secured Party or any holder of
any Note with respect thereto. The liability of the Guarantor under this
Guaranty shall be absolute, unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of the Credit
Agreement, any Canadian Note or any other Loan Document or any other
instrument or document relating to any thereof;
(b) the failure of any Secured Party or any holder of any Canadian
Note
(i) to assert any claim or demand or to enforce any right or
remedy against the Canadian Borrower or any other Person (including
any other guarantor (including the Guarantor)) under the provisions of
the Credit Agreement, any Canadian
6
Note, any other Loan Document, any other instrument or document
relating to any thereof or otherwise, or
(ii) to exercise any right or remedy against any other guarantor
(including the Guarantor) of, or collateral securing, any Obligations
of the Canadian Borrower;
(c) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of the Canadian Borrower, or
any other extension, compromise or renewal of any Obligation of the
Canadian Borrower;
(d) any reduction, limitation, impairment or termination of any
Obligations of the Canadian Borrower for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be
subject to (and the Guarantor hereby waives any right to or claim of) any
defense or setoff, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality, nongenuineness, irregularity,
compromise, unenforceability of, or any other event or occurrence
affecting, any Obligations of the Canadian Borrower or otherwise;
(e) any amendment to, rescission, waiver, or other modification of, or
any consent to departure from, any of the terms of the Credit Agreement,
any Canadian Note or any other Loan Document or any other instrument or
document relating to any thereof;
(f) any addition, exchange, release, surrender or non-perfection of
any collateral, or any amendment to or waiver or release or addition of, or
consent to departure from, any other guaranty, held by any Secured Party or
any holder of any Canadian Note securing any of the Obligations of the
Canadian Borrower; or
7
(g) any other circumstance which might otherwise constitute a defense
(other than the defense of payment in full of the Obligations) available
to, or a legal or equitable discharge of, the Canadian Borrower, any surety
or any guarantor.
SECTION 2.4. REINSTATEMENT, ETC. The Guarantor agrees that this
Guaranty shall continue to be effective or be reinstated, as the case may be, if
at any time any payment (in whole or in part) of any of the Obligations of the
Canadian Borrower is rescinded or must otherwise be restored by any Secured
Party or any holder of any Canadian Note, upon the insolvency, bankruptcy or
reorganization of the Canadian Borrower or otherwise, all as though such payment
had not been made.
SECTION 2.5. WAIVER, ETC. The Guarantor hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations of the Canadian Borrower and this Guaranty and any requirement that
the Canadian Agent, any other Secured Party or any holder of any Canadian Note
protect, secure, perfect or insure any security interest or Lien, or any
property subject thereto, or exhaust any right or take any action against the
Canadian Borrower or any other Person (including any other guarantor) or entity
or any collateral securing the Obligations of the Canadian Borrower.
SECTION 2.6. POSTPONEMENT OF SUBROGATION, ETC. The Guarantor agrees
that it will not exercise any rights which it may acquire by way of rights of
subrogation under this Guaranty, by any payment made hereunder or otherwise,
until the prior payment in full in cash of or cash collateralization in full of
all Obligations of the Canadian Borrower, the termination, expiration or cash
collateralization of all Canadian Letters of Credit, the termination of all Rate
Protection Agreements in respect of the Canadian Commitments and the termination
of all Canadian Commitments. Any amount paid to the Guarantor on account of any
such subrogation rights prior to the payment in full in
8
cash of all Obligations of the Canadian Borrower shall be held in trust for the
benefit of the Secured Parties and each holder of a Canadian Note and shall
immediately be paid to the Canadian Agent for the benefit of the Secured Parties
and each holder of a Canadian Note and credited and applied against the
Obligations of the Canadian Borrower, whether matured or unmatured, in
accordance with the terms of the Credit Agreement; PROVIDED, HOWEVER, that if
(a) the Guarantor has made payment to the Secured Parties and each
holder of a Canadian Note of all or any part of the Obligations of the
Canadian Borrower, and
(b) all Obligations of the Canadian Borrower have been paid in full in
cash or cash collateralization in full, all Canadian Letters of Credit have
been terminated, expired or cash collateralized, all Rate Protection
Agreements in respect of the Canadian Commitments have been terminated and
all Canadian Commitments have been permanently terminated,
each Secured Party and each holder of a Canadian Note agrees that, at the
Guarantor's request, the Canadian Agent, on behalf of the Secured Parties and
the holders of the Canadian Notes, will execute and deliver to the Guarantor
appropriate documents (without recourse and without representation or warranty)
necessary to evidence the transfer by subrogation to the Guarantor of an
interest in the Obligations of the Canadian Borrower resulting from such payment
by the Guarantor. In furtherance of the foregoing, for so long as any
Obligations of the Canadian Borrower or any Canadian Commitments remain
outstanding, the Guarantor shall refrain from taking any action or commencing
any proceeding against the Canadian Borrower (or its successors or assigns,
whether in connection with a bankruptcy proceeding or otherwise) to recover any
amounts in the respect of payments made under this Guaranty to any Secured Party
or any holder of a Canadian Note.
9
SECTION 2.7. SUCCESSORS, TRANSFEREES AND ASSIGNS; TRANSFERS
OF CANADIAN NOTES, ETC. This Guaranty shall:
(a) be binding upon the Guarantor, and its successors, transferees and
assigns; and
(b) inure to the benefit of and be enforceable by the Canadian Agent
and each other Secured Party.
Without limiting the generality of the foregoing, any Lender may assign or
otherwise transfer (in whole or in part) any Canadian Commitment, Canadian Note
or Canadian Credit Extension held by it to any other Person or entity, and such
other Person or entity shall thereupon become vested with all rights and
benefits in respect thereof granted to such Lender under any Loan Document
(including this Guaranty) or otherwise, subject, however to the provisions of
Section 12.11 and Article XI of the Credit Agreement.
SECTION 2.8. JUDGMENT. The Guarantor hereby agrees that, with
respect to the Canadian Facility:
(a) if, for the purposes of obtaining judgment in any court, it is
necessary to convert a sum due in Canadian Dollars hereunder into another
currency, then the rate of exchange used shall be that at which the
Canadian Agent, in accordance with normal banking procedures could purchase
Canadian Dollars with such other currency on the Business Day preceding
that on which final judgment is given; and
(b) the obligation of the Guarantor in respect of any sum due from it
to any Secured Party hereunder or any other Loan Document shall,
notwithstanding any judgment in a currency other than Canadian Dollars, be
discharged only to the extent that on the Business Day following receipt by
the Secured Party of any sum adjudged to be so due in a currency other than
Canadian Dollars such Secured Party may, in accordance with normal banking
procedures, purchase Canadian Dollars
10
with such other currency; in the event that the Canadian Dollars so
purchased are less than the amount originally due to any Secured Party in
Canadian Dollars, the Guarantor, as a separate obligation and
notwithstanding any such judgment, hereby indemnifies and holds harmless
such Secured Party against such loss, and if the Canadian Dollars so
purchased exceed the sum originally due to such Secured Party or holder in
Canadian Dollars, such Secured Party shall remit to the Guarantor such
excess.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. REPRESENTATIONS AND WARRANTIES. The Guarantor hereby
represents and warrants to each Secured Party that the representations and
warranties contained in Article VIII of the Credit Agreement, insofar as the
representations and warranties contained therein are applicable to the Guarantor
and its properties, are true and correct in all material respects, each such
representation and warranty set forth in such Article (insofar as applicable as
aforesaid) and all other terms of the Credit Agreement to which reference is
made therein, together with all related definitions and ancillary provisions,
being hereby incorporated into this Guaranty by reference as though specifically
set forth in this Article.
ARTICLE IV
COVENANTS, ETC.
SECTION 4.1. AFFIRMATIVE COVENANTS. The Guarantor covenants and
agrees that, so long as any portion of the Obligations of the Canadian Borrower
shall remain unpaid, any Canadian Letters of Credit shall be outstanding, any
Rate Protection Agreement in respect of the Canadian
11
Commitments shall remain in full force and effect or any Canadian Lender shall
have any outstanding Commitment, the Guarantor will, unless the Required Lenders
shall otherwise consent in writing, perform, comply with and be bound by all of
the agreements, covenants and obligations contained in Article IX of the Credit
Agreement which are applicable to the Guarantor or its properties, each such
agreement, covenant and obligation contained in such Article and all other terms
of the Credit Agreement to which reference is made herein, together with all
related definitions and ancillary provisions, being hereby incorporated into
this Guaranty by reference as though specifically set forth in this Article.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.1. LOAN DOCUMENT. This Guaranty is a Loan Document
executed pursuant to the Credit Agreement and shall (unless otherwise expressly
indicated herein) be construed, administered and applied in accordance with the
terms and provisions thereof, including ARTICLE XII thereof.
SECTION 5.2. BINDING ON SUCCESSORS, TRANSFEREES AND ASSIGNS;
ASSIGNMENT. In addition to, and not in limitation of, SECTION 2.7, this
Guaranty shall be binding upon the Guarantor and its successors, transferees
and assigns and shall inure to the benefit of and be enforceable by each
Secured Party and each holder of a Canadian Note and their respective
successors, transferees and assigns (to the full extent provided pursuant to
SECTION 2.7); PROVIDED, HOWEVER, that the Guarantor may not assign any of its
obligations hereunder without the prior written consent of all Lenders.
SECTION 5.3. AMENDMENTS, ETC. No amendment to or waiver of any
provision of this Guaranty, nor consent to any departure by the Guarantor
herefrom, shall in any event be
12
effective unless the same shall be in writing and signed by the Canadian Agent
(on behalf of the Lenders or the Required Lenders, as the case may be), and then
such waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given.
SECTION 5.4. NOTICES. All notices and other communications provided
for hereunder shall be in writing or by facsimile and, mailed or telecopied or
delivered with respect to the Guarantor, in care of the Canadian Borrower at the
address of the Canadian Borrower specified in the Credit Agreement, and with
respect to the Canadian Agent, to the address of the Canadian Agent specified in
the Credit Agreement, or, with respect to the Guarantor or the Canadian Agent,
at such other address or facsimile number as shall be designated by such party
in a written notice to each other party complying as to delivery with the terms
of this Section. All such notices and other communications, when mailed and
properly addressed with postage prepaid or if properly addressed and sent by
pre-paid courier service, shall be deemed given when received; any such notice
or communication, if transmitted by telecopier, shall be deemed given when
transmitted and electronically confirmed.
SECTION 5.5. NO WAIVER; REMEDIES. In addition to, and not in
limitation of, SECTION 2.3 and SECTION 2.5, no failure on the part of any
Secured Party or any holder of a Canadian Note to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 5.6. CAPTIONS. Section captions used in this Guaranty are
for convenience of reference only, and shall not affect the construction of this
Guaranty.
13
SECTION 5.7. SETOFF. In addition to, and not in limitation of,any
rights of any Secured Party or any holder of a Canadian Note under applicable
law, each Secured Party and each such holder shall, upon the occurrence of any
Default described in any of clauses (a) through (d) of Section 10.1.9 of the
Credit Agreement or with the consent of the Required Lenders, any Event of
Default, have the right to appropriate and apply to the payment of the
obligations of the Guarantor owing to it hereunder, whether or not then due, and
the Guarantor hereby grants to each Secured Party and each such holder a
continuing security interest in, any and all balances, credits, deposits,
accounts or moneys of the Guarantor then or thereafter maintained with such
Secured Party, or such holder or any agent or bailee for such Secured Party or
such holder; PROVIDED, HOWEVER, that any such appropriation and application
shall be subject to the provisions of SECTION 6.8 of the Credit Agreement.
SECTION 5.8. SEVERABILITY. 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.
SECTION 5.9. COUNTERPARTS. This Guaranty may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
SECTION 5.10. GOVERNING LAW, ENTIRE AGREEMENT, ETC. THIS GUARANTY
SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF
THE PROVINCE OF MANITOBA AND THE LAWS OF CANADA APPLICABLE IN THE PROVINCE.
THIS GUARANTY AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE UNDERSTANDING
AMONG THE PARTIES HERETO WITH RESPECT
14
TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR
ORAL, WITH RESPECT THERETO.
SECTION 5.11. FORUM SELECTION AND CONSENT TO JURISDICTION. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS GUARANTY OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE SECURED
PARTIES OR THE GUARANTOR SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE
COURTS OF THE STATE OF NEW YORK, NEW YORK COUNTY OR IN THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY PROPERTY MAY BE BROUGHT, AT THE
CANADIAN AGENT'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH
PROPERTY MAY BE FOUND. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY
SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK, NEW YORK
COUNTY AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF
NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH SUCH LITIGATION. THE GUARANTOR HEREBY IRREVOCABLY APPOINTS CT
CORPORATION SYSTEM (THE "PROCESS AGENT"), WITH AN OFFICE ON THE DATE HEREOF
AT ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, AS ITS AGENT TO
RECEIVE, ON THE GUARANTOR'S BEHALF AND ON BEHALF OF THE GUARANTOR'S PROPERTY,
SERVICE OF COPIES OF THE SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH
MAY BE SERVED IN ANY SUCH ACTION OR PROCEEDING. SUCH SERVICE MAY BE MADE BY
MAILING OR DELIVERING A COPY OF SUCH PROCESS TO THE GUARANTOR IN CARE OF THE
PROCESS AGENT AT THE PROCESS AGENT'S ABOVE ADDRESS, AND THE GUARANTOR HEREBY
IRREVOCABLY AUTHORIZES AND DIRECTS THE PROCESS AGENT TO ACCEPT SUCH SERVICE
ON ITS BEHALF. AS AN ALTERNATIVE METHOD OF SERVICE, THE GUARANTOR FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. THE
GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO
THE LAYING OF VENUE OF ANY
15
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT
THAT THE GUARANTOR HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM JURISDICTION
OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE,
ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR OTHERWISE) WITH
RESPECT TO ITSELF OR ITS PROPERTY, THE GUARANTOR HEREBY IRREVOCABLY WAIVES SUCH
IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS GUARANTY AND THE OTHER LOAN
DOCUMENTS.
SECTION 5.12. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH, THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF
THE SECURED PARTIES OR THE GUARANTOR. THE GUARANTOR ACKNOWLEDGES AND AGREES
THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS ENTERING INTO THE
CREDIT AGREEMENT.
16
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be duly
executed and delivered by its officer thereunto duly authorized as of the date
first above written.
WESTCAN PHARMACEUTICALS LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
17