Exhibit 10.1.4


 


GUARANTY


 


This
GUARANTY (this “Guaranty”), dated as of September 30, 2010 by and
among the Guarantors identified as such on the signature page hereof and
any persons that join this Guaranty in accordance with Section 5.10
(each, a “Guarantor” and collectively, “Guarantors”), and GENERAL
ELECTRIC CAPITAL CORPORATION, a Delaware corporation, individually and as
agent (in such capacity and together with any successors, endorsees and
assigns, “Agent”) for itself and the lenders from time to time signatory
to the Loan Agreement hereinafter defined (“Lenders”).


 


W I T N E S S E T H:


 


WHEREAS,
pursuant to that certain Loan and Security Agreement (the “Loan Agreement”)
dated as of September 30, 2010 by and among SYNTA PHARMACEUTICALS CORP., a
Delaware corporation (“Borrower”), the Guarantors, the Lenders and
Agent, the Lenders have agreed to make Loans to Borrower;


 


WHEREAS,
each Guarantor is a Subsidiary of Borrower and as such will derive direct and
indirect economic benefits from the making of the Loans and other financial
accommodations provided to the Borrower pursuant to the Loan Agreement; and


 


WHEREAS,
in order to induce Agent and Lenders to enter into the Loan Agreement and other
Debt Documents and to induce Lenders to make the Loans as provided for in the
Loan Agreement, each Guarantor has agreed to guarantee payment of the
Obligations;


 


NOW,
THEREFORE, in consideration of the premises and the covenants hereinafter
contained, and to induce Lenders to provide the Loans and other financial accommodations
under the Loan Agreement, it is agreed as follows:


 


1.             DEFINITIONS.


 


(a)           Capitalized
terms used herein shall have the meanings assigned to them in the Loan
Agreement, unless otherwise defined herein.


 


(b)           References
to this “Guaranty” shall mean this Guaranty, including all amendments,
modifications and supplements and any annexes, exhibits and schedules to any of
the foregoing, and shall refer to this Guaranty as the same may be in effect at
the time such reference becomes operative.


 


2.             THE GUARANTY.


 


2.1.         Guaranty of Guaranteed Obligations of Borrower.  Each
Guarantor hereby jointly and severally unconditionally guarantees to Agent and
Lenders, and their respective successors, endorsees, transferees and assigns,
the prompt payment (whether at stated maturity, by acceleration or otherwise)
and performance of the Obligations of Borrower (hereinafter the “Guaranteed
Obligations”).  Guarantors agree that
this Guaranty is a guaranty of payment and performance and not of collection,
and that their obligations under this Guaranty shall be 


 

















 


primary, absolute and
unconditional, irrespective of, and unaffected by:


 


(a)           the genuineness, validity,
regularity, enforceability or any future amendment of, or change in this
Guaranty, any other Debt Document or any other agreement, document or
instrument to which any Loan Party and/or Guarantors are or may become a party;


 


(b)           the absence of any action to enforce
this Guaranty or any other Loan Document or the waiver or consent by Agent
and/or Lenders with respect to any of the provisions thereof;


 


(c)           the existence, value or condition of,
or failure to perfect its lien against, any Collateral for the Guaranteed
Obligations or any action, or the absence of any action, by Agent in respect
thereof (including, without limitation, the release of any such security);


 


(d)           the insolvency of any Loan Party; or


 


(e)           any other action or circumstances
which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor,


 


it being agreed by each
Guarantor that its obligations under this Guaranty shall not be discharged
until the Termination Date.  Each
Guarantor shall be regarded, and shall be in the same position, as principal
debtor with respect to the Guaranteed Obligations.  Each Guarantor agrees that any notice or
directive given at any time to Agent which is inconsistent with the waiver in
the immediately preceding sentence shall be null and void and may be ignored by
Agent and Lenders, and, in addition, may not be pleaded or introduced as evidence
in any litigation relating to this Guaranty for the reason that such pleading
or introduction would be at variance with the written terms of this Guaranty,
unless Agent and Lenders have specifically agreed otherwise in writing.  It is agreed among each Guarantor, Agent and
Lenders that the foregoing waivers are of the essence of the transaction
contemplated by the Debt Documents and that, but for this Guaranty and such
waivers, Agent and Lenders would decline to enter into the Loan Agreement.


 


2.2.         Demand by Agent or Lenders.  In
addition to the terms of the Guaranty set forth in Section 2.1 hereof, and in no
manner imposing any limitation on such terms, it is expressly understood and
agreed that, if, at any time, the outstanding principal amount of the
Guaranteed Obligations under the Loan Agreement (including all accrued interest
thereon) is declared to be immediately due and payable in accordance with the
provisions of the Loan Agreement, then Guarantors shall, without demand, pay to
the holders of the Guaranteed Obligations the entire outstanding Guaranteed
Obligations due and owing to such holders. 
Payment by Guarantors shall be made to Agent in immediately available
Federal funds to an account designated by Agent or at the address set forth in the
Loan Agreement for the giving of notice to Agent or at any other address that
may be specified in writing from time to time by Agent, and shall be credited
and applied to the Guaranteed Obligations.


 


2.3.         Enforcement of Guaranty.  In no
event shall Agent have any obligation (although it is entitled, at its option)
to proceed against Borrower or any other Loan Party or any Collateral pledged
to secure Guaranteed Obligations before seeking satisfaction from any or all 


 


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of the Guarantors, and
Agent may proceed, prior or subsequent to, or simultaneously with, the
enforcement of Agent’s rights hereunder, to exercise any right or remedy which
it may have against any Collateral, as a result of any lien it may have as
security for all or any portion of the Guaranteed Obligations.


 


2.4.         Waiver.  In addition to the waivers contained in Section 2.1 hereof, Guarantors
waive, and agree that they shall not at any time insist upon, plead or in any
manner whatever claim or take the benefit or advantage of, any appraisal,
valuation, stay, extension, marshaling of assets or redemption laws, or
exemption, whether now or at any time hereafter in force, which may delay,
prevent or otherwise affect the performance by Guarantors of their Guaranteed
Obligations under, or the enforcement by Agent or Lenders of, this Guaranty.
Guarantors hereby waive diligence, presentment and demand (whether for
non-payment or protest or of acceptance, maturity, extension of time, change in
nature or form of the Guaranteed Obligations, acceptance of further security,
release of further security, composition or agreement arrived at as to the
amount of, or the terms of, the Guaranteed Obligations, notice of adverse
change in Borrower’s financial condition or any other fact which might increase
the risk to Guarantors) with respect to any of the Guaranteed Obligations or
all other demands whatsoever and waive the benefit of all provisions of law
which are or might be in conflict with the terms of this Guaranty.  Guarantors represent, warrant and jointly and
severally agree that, as of the date of this Guaranty, their obligations under
this Guaranty are not subject to any counterclaims, offsets or defenses against
Agent or Lenders or any Loan Party of any kind. Guarantors further jointly and
severally agree that their obligations under this Guaranty shall not be subject
to any counterclaims, offsets or defenses against Agent or any Lender or
against any Loan Party of any kind which may arise in the future.


 


2.5.         Benefit of Guaranty.  The
provisions of this Guaranty are for the benefit of Agent and Lenders and their
respective successors, transferees, endorsees and assigns, and nothing herein
contained shall impair, as between any Loan Party and Agent or Lenders, the
obligations of any Loan Party under the Debt Documents.  In the event all or any part of the
Guaranteed Obligations are transferred, indorsed or assigned by Agent or any
Lender to any person or entity, any reference to “Agent” or “Lender” herein
shall be deemed to refer equally to such person or entity.


 


2.6.         Modification of Guaranteed Obligations, Etc.  Each
Guarantor hereby acknowledges and agrees that Agent and Lenders may at any time
or from time to time, with or without the consent of, or notice to, Guarantors
or any of them:


 


(a)           change or extend the manner, place or
terms of payment of, or renew or alter all or any portion of, the Guaranteed
Obligations;


 


(b)           take any action under or in respect
of the Debt Documents in the exercise of any remedy, power or privilege
contained therein or available to it at law, equity or otherwise, or waive or
refrain from exercising any such remedies, powers or privileges;


 


(c)           amend or modify, in any manner
whatsoever, the Debt Documents;


 


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(d)           extend or waive the time for any Loan
Party’s performance of, or compliance with, any term, covenant or agreement on
its part to be performed or observed under the Debt Documents, or waive such
performance or compliance or consent to a failure of, or departure from, such
performance or compliance;


 


(e)           take and hold Collateral for the
payment of the Guaranteed Obligations guaranteed hereby or sell, exchange,
release, dispose of, or otherwise deal with, any property pledged, mortgaged or
conveyed, or in which Agent or Lenders have been granted a lien, to secure any
Obligations;


 


(f)            release anyone who may be liable in
any manner for the payment of any amounts owed by Guarantors or any Loan Party
to Agent or any Lender;


 


(g)           modify or terminate the terms of any
intercreditor or subordination agreement pursuant to which claims of other
creditors of any Guarantor or any Loan Party are subordinated to the claims of
Agent and Lenders; and/or


 


(h)           apply any sums by whomever paid or
however realized to any amounts owing by any Guarantor or any Loan Party to
Agent or any Lender in such manner as Agent or any Lender shall determine in
its discretion to the extent provided in, or not otherwise inconsistent with,
the Loan Agreement;


 


and Agent and Lenders shall
not incur any liability to Guarantors as a result thereof, and no such action
shall impair or release the Guaranteed Obligations of Guarantors or any of them
under this Guaranty.


 


2.7.         Reinstatement.  This Guaranty shall remain in
full force and effect and continue to be effective should any petition be filed
by or against any Loan Party or any Guarantor for liquidation or
reorganization, should any Loan Party or any Guarantor become insolvent or make
an assignment for the benefit of creditors or should a receiver or trustee be
appointed for all or any significant part of such Loan Party’s or such
Guarantor’s assets, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment and performance of the Guaranteed
Obligations, or any part thereof, is, pursuant to applicable law, rescinded or
reduced in amount, or must otherwise be restored or returned by Agent or any
Lender, whether as a “voidable preference”, “fraudulent conveyance”, or
otherwise, all as though such payment or performance had not been made.  In the event that any payment, or any part
thereof, is rescinded, reduced, restored or returned, the Guaranteed
Obligations shall be reinstated and deemed reduced only by such amount paid and
not so rescinded, reduced, restored or returned.


 


2.8.         Waiver of Subrogation, Etc. 
Notwithstanding anything to the contrary in this Guaranty, or in any
other Debt Document, each Guarantor hereby:


 


(a)           expressly and irrevocably waives, on
behalf of itself and its successors and assigns (including any surety), any and
all rights at law or in equity to subrogation, to reimbursement, to
exoneration, to contribution, to indemnification, to set off or to any other
rights that could accrue to a surety against a principal, to a guarantor
against a principal, to a guarantor against a maker or obligor, to an
accommodation party 


 


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against the party accommodated, to a holder
or transferee against a maker, or to the holder of any claim against any person
or entity, and which such Guarantor may have or hereafter acquire against any
Loan Party in connection with or as a result of such Guarantor’s execution,
delivery and/or performance of this Guaranty, or any other documents to which
such Guarantor is a party or otherwise; and


 


(b)           acknowledges and agrees (i) that
this waiver is intended to benefit Agent and Lenders and shall not limit or
otherwise affect any Guarantor’s liability hereunder or the enforceability of
this Guaranty, and (ii) that Agent, Lenders and their respective
successors and assigns are intended third party beneficiaries of the waivers
and agreements set forth in this Section 2.8
and their rights under this Section 2.8
shall survive payment in full of the Guaranteed Obligations.


 


2.9.         Election of Remedies.  If Agent
may, under applicable law and the Debt Documents, proceed to realize benefits
under any of the Debt Documents giving Agent and Lenders a lien upon any
Collateral owned by any Loan Party, either by judicial foreclosure or by
non-judicial sale or enforcement, Agent may, at its sole option, determine
which of such remedies or rights it may pursue without affecting any of such
rights and remedies under this Guaranty. 
If, in the exercise of any of its rights and remedies, Agent shall
forfeit any of its rights or remedies, including its right to enter a
deficiency judgment against any Loan Party, whether because of any applicable
laws pertaining to “election of remedies” or the like, Guarantors hereby consent
to such action by Agent and waive any claim based upon such action, even if
such action by Agent shall result in a full or partial loss of any rights of
subrogation which Guarantors might otherwise have had but for such action by
Agent.  Any election of remedies which
results in the denial or impairment of the right of Agent to seek a deficiency
judgment against any Loan Party shall not impair each Guarantor’s obligation to
pay the full amount of the Guaranteed Obligations.  In the event Agent shall bid at any
foreclosure or trustee’s sale or at any private sale permitted by law or the
Debt Documents, Agent may bid all or less than the amount of the Guaranteed
Obligations and the amount of such bid need not be paid by Agent but shall be
credited against the Guaranteed Obligations. 
The amount of the successful bid at any such sale shall be conclusively
deemed to be the fair market value of the collateral and the difference between
such bid amount and the remaining balance of the Guaranteed Obligations shall
be conclusively deemed to be the amount of the Guaranteed Obligations
guaranteed under this Guaranty, notwithstanding that any present or future law
or court decision or ruling may have the effect of reducing the amount of any
deficiency claim to which Agent and Lenders might otherwise be entitled but for
such bidding at any such sale.


 


3.             FURTHER ASSURANCES.


 


Each
Guarantor agrees, upon the written request of Agent or any Lender, to execute
and deliver to Agent or such Lender, from time to time, any additional
instruments or documents reasonably considered necessary by Agent or such
Lender to cause this Guaranty to be, become or remain valid and effective in
accordance with its terms.


 


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4.             PAYMENTS FREE AND CLEAR OF TAXES.


 


All
payments under this Guaranty shall be made free and clear of any taxes,
withholdings, duties, impositions or other charges, such that Agent and Lenders
will receive the entire amount of any Guaranteed Obligations, regardless of source
of payment.


 


5.             OTHER TERMS.


 


5.1.         Entire Agreement.  This Guaranty, together with
the other Debt Documents, constitutes the entire agreement between the parties
with respect to the subject matter hereof and supersedes all prior agreements
relating to a guaranty of the loans and advances under the Debt Documents
and/or the Guaranteed Obligations.


 


5.2.         Headings.  The headings in this Guaranty are for
convenience of reference only and are not part of the substance of this
Guaranty.


 


5.3.         Severability.  Whenever possible, each provision of this
Guaranty shall be interpreted in such a manner to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under applicable 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.


 


5.4.         Notices.  Except as otherwise provided herein, whenever
it is provided herein that any notice, demand, request, consent, approval,
declaration or other communication shall or may be given to or served upon any
of the parties by any other party, or whenever any of the parties desires to
give and serve upon any other party any communication with respect to this
Guaranty, each such notice, demand, request, consent, approval, declaration or
other communication shall be in writing and shall be given in the manner, and
deemed received, as provided for in the Loan Agreement.


 


5.5.         Successors and Assigns.  This
Guaranty and all obligations of Guarantors hereunder shall be binding upon the
successors and assigns of each Guarantor (including a debtor-in-possession on
behalf of such Guarantor) and shall, together with the rights and remedies of
Agent, for itself and for the benefit of Lenders, hereunder, inure to the
benefit of Agent and Lenders, all future holders of any instrument evidencing
any of the Obligations and their respective successors and assigns.  No sales of participations, other sales,
assignments, transfers or other dispositions of any agreement governing or
instrument evidencing the Obligations or any portion thereof or interest
therein shall in any manner affect the rights of Agent and Lenders
hereunder.  Guarantors may not assign,
sell, hypothecate or otherwise transfer any interest in or obligation under
this Guaranty other than as permitted by the Loan Agreement.


 


5.6.         No Waiver; Cumulative Remedies; Amendments. 
Neither Agent nor any Lender shall by any act, delay, omission or
otherwise be deemed to have waived any of its rights or remedies hereunder, and
no waiver shall be valid unless in writing, signed by Agent and then only to
the extent therein set forth.  A waiver
by Agent, for itself and the ratable benefit of Lenders, of any right or remedy
hereunder on any one occasion shall not be construed as a bar to any right or
remedy which Agent would otherwise have had on any future occasion.  No failure 


 


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to exercise nor any delay
in exercising on the part of Agent or any Lender, any right, power or privilege
hereunder, shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege hereunder preclude any other or
future exercise thereof or the exercise of any other right, power or
privilege.  The rights and remedies
hereunder provided are cumulative and may be exercised singly or concurrently,
and are not exclusive of any rights and remedies provided by law.  None of the terms or provisions of this
Guaranty may be waived, altered, modified, supplemented or amended except by an
instrument in writing, duly executed by Agent and Guarantors.


 


5.7.         Termination.  This Guaranty is a continuing guaranty and
shall remain in full force and effect until the Termination Date.  Upon payment and performance in full of the
Guaranteed Obligations, Agent shall deliver to Guarantors such documents as
Guarantors may reasonably request to evidence such termination.


 


5.8.         Counterparts.  This Guaranty may be executed in any number
of counterparts, each of which shall collectively and separately constitute one
and the same agreement.


 


5.9.         Limitation on Guaranteed Obligations. 
Notwithstanding any provision herein contained to the contrary, each
Guarantor’s liability hereunder shall be limited to an amount not to exceed as
of any date of determination the greater of:


 


(a)           the
net amount of all Loans and other extensions of credit advanced under the Loan
Agreement and directly or indirectly re-loaned or otherwise transferred to, or
incurred for the benefit of, such Guarantor, plus interest thereon at the
applicable rate specified in the Loan Agreement; or


 


(b)           the
amount which could be claimed by the Agent and Lenders from such Guarantor
under this Guaranty without rendering such claim voidable or avoidable under Section 548
of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute
or common law after taking into account, among other things, such Guarantor’s
right of contribution and indemnification from each other Guarantor under Section 5.11.


 


5.10.       Additional Guarantors. 
Additional Guarantors may become party to this Guaranty by the
execution and delivery by such Person of a joinder agreement in
form and substance satisfactory to Agent and such other documents and
deliverables as may be required by Agent.  Upon receipt of such
items, such Person shall become a “Guarantor” hereunder with the same
force and effect as if it were originally a party to this Guaranty and named as
a “Guarantor” hereunder.  The execution
and delivery of such joinder agreement or such other requested deliverables,
and the joining of such Person to this Guaranty, shall not require the
consent of any other Guarantor hereunder, and the rights and obligations of
each Guarantor hereunder shall remain in full force and effect notwithstanding
the addition of any new Guarantor as a party to this Guaranty.


 


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5.11.       Contribution with Respect to Guaranteed Obligations.


 


(a)           To
the extent that any Guarantor shall make a payment under this Guaranty of all
or any of the Guaranteed Obligations (a “Guarantor
Payment”) which, taking into account all other Guarantor Payments
then previously or concurrently made by the other Guarantors, exceeds the
amount which such Guarantor would otherwise have paid if each Guarantor had
paid the aggregate Guaranteed Obligations satisfied by such Guarantor Payment
in the same proportion that such Guarantor’s “Allocable Amount” (as defined
below) (in effect immediately prior to such Guarantor Payment) bore to the
aggregate Allocable Amounts of all of Guarantors in effect immediately prior to
the making of such Guarantor Payment, then, following indefeasible
payment in full in cash of the Obligations and termination of the Commitments,
such Guarantor shall be entitled to receive contribution and indemnification
payments from, and be reimbursed by, each of the other Guarantors for the
amount of such excess, pro  rata based upon their respective
Allocable Amounts in effect immediately prior to such Guarantor Payment.


 


(b)           As
of any date of determination, the “Allocable
Amount” of any Guarantor shall be equal to the maximum amount of the
claim which could then be recovered from such Guarantor under this Guaranty
without rendering such claim voidable or avoidable under Section 548 of
Chapter 11 of the Bankruptcy Code or under any applicable state Uniform
Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute
or common law.


 


(c)           This
Section 5.11 is
intended only to define the relative rights of Guarantors and nothing set forth
in this Section 5.11
is intended to or shall impair the obligations of Guarantors, jointly and
severally, to pay any amounts as and when the same shall become due and payable
in accordance with the terms of this Guaranty.


 


(d)           The
rights of the parties under this Section 5.11
shall be exercisable upon the full and indefeasible payment of the Guaranteed
Obligations and the termination of the Loan Agreement and the other Debt
Documents.


 


(e)           The
parties hereto acknowledge that the rights of contribution and indemnification
hereunder shall constitute assets of any Guarantor to which such contribution
and indemnification is owing.


 


6.             SECURITY.


 


To
secure payment of each Guarantor’s obligations under this Guaranty,
concurrently with the execution of this Guaranty, each Guarantor has entered
into the Loan Agreement pursuant to which each Guarantor has granted to Agent
for the benefit of the Lenders a security interest in the Collateral and has
entered into a Pledge Agreement pursuant to which each Guarantor has pledged
the stock of each of its Subsidiaries as set forth in the Pledge Agreement,
among other collateral, to Agent for the benefit of the Lenders.


 


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IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Guaranty
as of the date first above written.


 


	
   

  	
  SYNTA SECURITIES CORP.,

  
	
   

  	
  a Massachusetts corporation, as Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Keith Ehrlich

  
	
   

  	
  Name:

  	
  Keith
  Ehrlich

  
	
   

  	
  Title:

  	
  Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GENERAL
  ELECTRIC CAPITAL CORPORATION, as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  R. Hanes Whiteley

  
	
   

  	
  Name:

  	
  R.
  Hanes Whiteley

  
	
   

  	
  Title:

  	
  Its
  Duly Authorized Signatory