EXH. 10.6 GUARANTY
EXH.
10.6
| 1. |
Identification.
|
This
Guaranty (the "Guaranty"), dated as of February 12, 2007, is entered into by
Lotus Pharmaceutical International, Inc., a Nevada corporation (and wholly
owned
subsidiary of Lotus Pharmaceuticals, Inc., a Nevada corporation), En
Ze ▇▇▇
▇▇▇ Pharmaceutical CO., Ltd., a People’s Republic of China corporation, ▇▇▇▇▇
▇▇▇▇ Pharmaceutical CO., Ltd., a People’s Republic of China
corporation
(each a
“Guarantor” or “Guarantors”), for the benefit of the parties identified on
Schedule A hereto (each a “Lender” and collectively, the
"Lenders").
| 2. |
Recitals.
|
2.1 Guarantor
Lotus Pharmaceutical International, Inc. is a wholly owned subsidiary of Lotus
Pharmaceuticals, Inc., a Nevada corporation (“Parent”). En
Ze ▇▇▇
▇▇▇ Pharmaceutical CO., Ltd., and ▇▇▇▇▇ ▇▇▇▇ Pharmaceutical CO., Ltd., are
both
entities formed in the People’s Republic of China as corporations and are not
direct subsidiaries of Parent but have entered contracts assigning all or
substantially all of their respective revenue to Lotus
Pharmaceutical International, Inc. The Lenders have made, are making and will
be
making loans to Parent (the "Loans"). Guarantors, and each of them, will obtain
substantial benefit from the proceeds of the Loans.
2.2 The
Loans
are and will be evidenced by certain promissory Notes (collectively, “Note” or
“Notes") issued by Parent on, about or after the date of this Guaranty pursuant
to subscription agreements dated at or about the date hereof (“Subscription
Agreements”). The Notes are further identified on Schedule A hereto and were and
will be executed by Parent as “Borrower” or “Debtor” for the benefit of each
Lender as the “Holder” or “Lender” thereof.
2.3 In
consideration of the Loans made and to be made by Lenders to Parent and for
other good and valuable consideration, and as security for the performance
by
Parent of its obligations under the Notes and as security for the repayment
of
the Loans and all other sums due from Debtor to Lenders arising under the Notes,
Subscription Agreements and any other agreement between or among them relating
to the foregoing (collectively, the "Obligations"), Guarantors, for good and
valuable consideration, receipt of which is acknowledged, each has agreed to
enter into this Guaranty. Obligations include all future advances by Lenders
to
Parent made by Lenders pursuant to the Subscription Agreement.
2.4 The
Lenders have appointed S. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ as Collateral Agent pursuant to that
certain Collateral Agent Agreement dated at or about the date of this Agreement
(“Collateral Agent Agreement”), among the Lenders and Collateral
Agent.
| 3. |
3.1 Guaranty.
Guarantors, and each of them, hereby unconditionally and irrevocably guarantees,
jointly and severally with any other Guarantor, the punctual payment,
performance and observance when due, whether at stated maturity, by acceleration
or otherwise, of all of the Obligations now or hereafter existing, whether
for
principal, interest (including, without limitation, all interest that accrues
after the commencement of any insolvency, bankruptcy or reorganization of
Parent, whether or not constituting an allowed claim in such proceeding), fees,
commissions, expense reimbursements, liquidated damages, indemnifications or
otherwise (such obligations, to the extent not paid by Parent being the
“Guaranteed Obligations”), and agrees to pay any and all reasonable costs, fees
and expenses (including reasonable counsel fees and expenses) incurred by
Collateral Agent and the Lenders in enforcing any rights under the guaranty
set
forth herein. Without limiting the generality of the foregoing, each Guarantor’s
liability shall extend to all amounts that constitute part of the Guaranteed
Obligations and would be owed by Parent to Collateral Agent and the Lenders,
but
for the fact that they are unenforceable or not allowable due to the existence
of an insolvency, bankruptcy or reorganization involving Parent.
1
3.2 Guaranty
Absolute.
Guarantor and each of them undersigned hereby guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Notes,
regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of Collateral Agent
or
the Lenders with respect thereto. The obligations of each Guarantor under this
Guaranty are independent of the Guaranteed Obligations, and a separate action
or
actions may be brought and prosecuted against Guarantor to enforce such
obligations, irrespective of whether any action is brought against Parent or
any
other Guarantor or whether Parent or any other Guarantor is joined in any such
action or actions. The liability of each Guarantor under this Guaranty
constitutes a primary obligation, and not a contract of surety, and to the
extent permitted by law, shall be irrevocable, absolute and unconditional
irrespective of, and Guarantors hereby irrevocably waive any defenses they
may
now or hereafter have in any way relating to, any or all of the
following:
(a)
any
lack of validity or enforceability of the Notes or any agreement or instrument
relating thereto;
(b)
any
change in the time, manner or place of payment of, or in any other term of,
all
or any of the Guaranteed Obligations, or any other amendment or waiver of or
any
consent to departure from the Notes, including, without limitation, any increase
in the Guaranteed Obligations resulting from the extension of additional credit
to Parent or otherwise;
(c)
any
taking, exchange, release, subordination or non-perfection of any Collateral,
or
any taking, release or amendment or waiver of or consent to departure from
any
other guaranty, for all or any of the Guaranteed Obligations;
(d)
any
change, restructuring or termination of the corporate, limited liability company
or partnership structure or existence of Parent; or
(e)
any
other circumstance (including, without limitation, any statute of limitations)
or any existence of or reliance on any representation by Collateral Agent or
the
Lenders that might otherwise constitute a defense available to, or a discharge
of, Parent or any other guarantor or surety.
This
Guaranty shall continue to be effective or be reinstated, as the case may be,
if
at any time any payment of any of the Guaranteed Obligations is rescinded or
must otherwise be returned by Collateral Agent, the Lenders or any other entity
upon the insolvency, bankruptcy or reorganization of the Parent or otherwise
(and whether as a result of any demand, settlement, litigation or otherwise),
all as though such payment had not been made.
3.3 Waiver.
Guarantors hereby waive promptness, diligence, notice of acceptance and any
other notice with respect to any of the Guaranteed Obligations and this Guaranty
and any requirement that Collateral Agent or the Lenders or exhaust any right
or
take any action against any Borrower or any other person or entity or any
Collateral. Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated herein and that the waiver
set forth in this Section 3.3
is
knowingly made in contemplation of such benefits. Guarantor hereby waives any
right to revoke this Guaranty, and acknowledges that this Guaranty is continuing
in nature and applies to all Guaranteed Obligations, whether existing now or
in
the future.
2
3.4
Continuing
Guaranty; Assignments.
This
Guaranty is a continuing guaranty and shall (a) remain in full force and effect
until the later of the indefeasible cash payment in full of the Guaranteed
Obligations and all other amounts payable under this Guaranty, the Subscription
Agreements and Notes, (b) be binding upon Guarantor, its successors and assigns
and (c) inure to the benefit of and be enforceable by the Lenders and their
successors, pledgees, transferees and assigns. Without limiting the generality
of the foregoing clause (c), any Lender may pledge, assign or otherwise
transfer all or any portion of its rights and obligations under this Guaranty
(including, without limitation, all or any portion of its Notes owing to it)
to
any other Person, and such other Person shall thereupon become vested with
all
the benefits in respect thereof granted such Collateral Agent or Lender herein
or otherwise.
3.5
Subrogation.
No
Guarantor will exercise any rights that it may now or hereafter acquire against
the Collateral Agent or any Lender or other Guarantor (if any) that arise from
the existence, payment, performance or enforcement of such Guarantor’s
obligations under this Guaranty, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution or indemnification,
whether or not such claim, remedy or right arises in equity or under contract,
statute or common law, including, without limitation, the right to take or
receive from the Collateral Agent or any Lender or other Guarantor (if any),
directly or indirectly, in cash or other property or by set-off or in any other
manner, payment or security solely on account of such claim, remedy or right,
unless and until all of the Guaranteed Obligations and all other amounts payable
under this Guaranty shall have been indefeasibly paid in full in cash.
3.6
Maximum
Obligations.
Notwithstanding any provision herein contained to the contrary, Guarantors’
liability with respect to the Obligations shall be limited to an amount not
to
exceed, as of any date of determination, the amount that could be claimed by
Lenders from any Guarantor without rendering such claim voidable or avoidable
under Section 548 of the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute
or
common law.
| 4. |
Miscellaneous.
|
4.1 Expenses.
Guarantors and each of them jointly and severally shall pay to the Lenders,
on
demand, the amount of any and all reasonable expenses, including, without
limitation, attorneys' fees, legal expenses and brokers' fees, which the Lenders
may incur in connection with exercise or enforcement of any the rights, remedies
or powers of the Lenders hereunder or with respect to any or all of the
Obligations.
4.2 Waivers,
Amendment and Remedies.
No
course of dealing by the Lenders and no failure by the Lenders to exercise,
or
delay by the Lender in exercising, any right, remedy or power hereunder shall
operate as a waiver thereof, and no single or partial exercise thereof shall
preclude any other or further exercise thereof or the exercise of any other
right, remedy or power of the Lenders. No amendment, modification or waiver
of
any provision of this Guaranty and no consent to any departure by Guarantor
therefrom, shall, in any event, be effective unless contained in a writing
signed by the Majority in Interest (as such term is defined in the Collateral
Agent Agreement) or the Lender or Lenders against whom such amendment,
modification or waiver is sought, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given. The rights, remedies and powers of the Lenders, not only hereunder,
but
also under any instruments and agreements evidencing or securing the Obligations
and under applicable law are cumulative, and may be exercised by the Lenders
from time to time in such order as the Lenders may elect.
4.3 Notices.
All
notices or other communications given or made hereunder shall be in writing
and
shall be personally delivered or deemed delivered the first business day after
being faxed (provided that a copy is delivered by first class mail) to the
party
to receive the same at its address set forth below or to such other address
as
either party shall hereafter give to the other by notice duly made under this
Section:
3
To
Parent
and
| Guarantors, to: |
Boca
Corporate Plaza
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
▇▇.
▇▇▇▇▇▇▇ ▇▇▇,
CEO
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
With
a
copy by telecopier only to:
▇▇▇▇▇▇
Alliance, LLP
▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
| To Lenders: |
To
the addresses and telecopier numbers set
|
forth
on
Schedule A
| TotheCollateralAgent: |
S.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
If
to
Parent, Guarantor, Lender or
Collateral
Agent, with a copy by telecopier only to:
Grushko
& ▇▇▇▇▇▇▇, P.C.
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
Any
party
may change its address by written notice in accordance with this
paragraph.
4.4 Term;
Binding Effect.
This
Guaranty shall (a) remain in full force and effect until payment and
satisfaction in full of all of the Obligations; (b) be binding upon Guarantor
and its successors and permitted assigns; and (c) inure to the benefit of the
Lenders and their respective successors and assigns. All the rights and benefits
granted by Guarantors to the Collateral Agent and Lenders hereunder and other
agreements and documents delivered in connection therewith are deemed granted
to
both the Collateral Agent and Lenders. Upon the payment in full of the
Obligations, (i) this Guaranty shall terminate and (ii) the Lenders will, upon
Guarantor's request and at Guarantor's expense, execute and deliver to Guarantor
such documents as Guarantor shall reasonably request to evidence such
termination, all without any representation, warranty or recourse
whatsoever.
4.5 Captions.
The
captions of Paragraphs, Articles and Sections in this Guaranty have been
included for convenience of reference only, and shall not define or limit the
provisions hereof and have no legal or other significance
whatsoever.
4
4.6 Governing
Law; Venue; Severability.
This
Guaranty shall be governed by and construed in accordance with the laws of
the
State of New York without regard to principles of conflicts or choice of law.
Any legal action or proceeding against Guarantors with respect to this Guaranty
may be brought in the courts of the State of New York or of the United States
for the Southern District of New York, and, by execution and delivery of this
Guaranty, Guarantor hereby irrevocably accepts for itself and in respect of
its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Guarantors hereby irrevocably waive any objection which they may now
or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Guaranty brought in the
aforesaid courts and hereby further irrevocably waives and agrees not to plead
or claim in any such court that any such action or proceeding brought in any
such court has been brought in an inconvenient forum. If any provision of this
Guaranty, or the application thereof to any person or circumstance, is held
invalid, such invalidity shall not affect any other provisions which can be
given effect without the invalid provision or application, and to this end
the
provisions hereof shall be severable and the remaining, valid provisions shall
remain of full force and effect.
4.7 Satisfaction
of Obligations.
For all
purposes of this Guaranty, the payment in full of the Obligations shall be
conclusively deemed to have occurred when either the Obligations have been
indefeasibly paid in cash or all outstanding Notes have been converted to common
stock pursuant to the terms of the Notes and the Subscription
Agreements.
4.8 Counterparts/Execution.
This
Agreement may be executed in any number of counterparts and by the different
signatories hereto on separate counterparts, each of which, when so executed,
shall be deemed an original, but all such counterparts shall constitute but
one
and the same instrument. This Agreement may be executed by facsimile signature
and delivered by facsimile transmission.
[THE
BALANCE OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
5
IN
WITNESS WHEREOF, the
undersigned have executed and delivered this Guaranty, as of the date first
written above.
“GUARANTOR”
LOTUS
PHARMACEUTICAL INTERNATIONAL, INC.
a
Nevada
corporation
/s/
▇▇▇▇▇▇▇ ▇▇▇
By:
▇▇▇▇▇▇▇ ▇▇▇
Its:
CEO
| “GUARANTOR” | “GUARANTOR” |
| EN ZE ▇▇▇ ▇▇▇ PHARMACEUTICAL CO., LTD. | LIANG FAN PHARMACEUTICAL CO., LTD. |
| a People’s Republic of China corporation | a People’s Republic of China corporation |
| /s/ ▇▇▇▇▇▇▇ ▇▇▇ | /s/ ▇▇▇▇▇▇▇ ▇▇▇ |
| By: ▇▇▇▇▇▇▇ ▇▇▇ | By: ▇▇▇▇▇▇▇ ▇▇▇ |
| Its: CEO | Its: CEO |
|
APPROVED
BY
“LENDERS”:
|
|
| LONGVIEW FUND, L.P. | ALPHA CAPITAL ANSTALT |
| By:_/s/ S. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | By:_/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
| Print Name of Signator: S. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ | Print Name of Signator: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
6
This
Guaranty Agreement may be signed by facsimile signature
and
delivered
by confirmed facsimile transmission.
7
SCHEDULE
A TO GUARANTY
|
LENDER
|
PRINCIPAL
AMOUNT OF NOTE TO BE ISSUED ON CLOSING DATE
|
|
LONGVIEW
FUND, L.P.
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax:
(▇▇▇) ▇▇▇-▇▇▇▇
|
$2,750,000.00
|
|
ALPHA
CAPITAL ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇
Fax:
▇▇▇-▇▇-▇▇▇▇▇▇▇▇
|
$250,000.00
|
|
TOTAL
|
$3,000,000.00
|
8