Exhibit 10.17


 


AMENDED AND RESTATED GUARANTY


 


This
GUARANTY dated as of September 9, 2010 (the “Guaranty”), is executed by the
undersigned (“Guarantor”), to and for the benefit of THE LEADERS BANK (the “Lender”),
whose address is 2001 York Road, Suite 150, Oak Brook, Illinois 60523.


 


WHEREAS,
Lender has agreed to continue to extend credit to Advanced Life Sciences, Inc.
(the “Borrower”) in the original principal amount of $8,500,000 (the “Loan”)
pursuant to the terms of that certain Second Amended and Restated Business Loan
Agreement (the “Loan Agreement”);


 


WHEREAS,
Borrower has executed that certain Second Amended and Restated Promissory Note
in the original principal amount of $8,500,000 in favor of Lender (the “Note”);


 


WHEREAS,
on October 23, 2009, Guarantor executed that certain Commercial Guaranty in
favor of Lender (the “Original Guaranty”);


 


WHEREAS,
as a condition precedent to the Lender’s execution of the Loan Agreement and
continued extension of credit to the Borrower, the Lender requires the Guarantor
to execute and deliver this Guaranty that amends and restates the Original
Guaranty;


 


WHEREAS,
continued extension of credit by the Lender to the Borrower is necessary and
desirable to the finance the Borrower’s operations and will inure to the financial
benefit of the Guarantor;


 


NOW,
THEREFORE, in consideration of the premises and the agreements herein and in
order to induce the Lender to continue to make and maintain the Loan pursuant
to the Note, the Guarantor hereby agrees with Lender as follows:


 


1.                                       It is agreed
that the preceding provisions and preambles are an integral part hereof and
that this Guaranty shall be construed in light thereof, and in consideration of
advances, credit or other financial accommodation heretofore afforded,
concurrently herewith being afforded or hereafter to be afforded to the
Borrower by the Lender, the Guarantor hereby unconditionally and absolutely
guarantees to the Lender, irrespective of the validity, regularity or
enforceability of any instrument, writing, arrangement or credit agreement
relating to or the subject of any such financial accommodation, (i) the payment
in full to the Lender at maturity, whether by acceleration or otherwise, and at
all times thereafter, of the Guaranteed Debt (as hereinafter defined), promptly
upon demand of the Lender or other person paying or incurring the same, and (ii)
the prompt, full and faithful performance and discharge by the Borrower of each
of the terms, conditions, agreements, representations and warranties on the
part of the Borrower contained in any agreement, or in any modification or
addenda thereto or substitution thereof, entered into in connection with the
Guaranteed Obligation (as hereinafter defined).


 


2.                                       As used herein,
“Guaranteed Debt” shall mean and include (i) the principal amount of the
Guaranteed Obligation, plus (ii) all reasonable costs, legal expenses
and attorneys’ and paralegals’ fees of every kind, paid or incurred by the
Lender in endeavoring to collect any of the foregoing indebtedness, obligations
and liabilities of the Borrower or any part thereof, or in enforcing this
Guaranty, or in defending against any defense, counterclaim, setoff or
crossclaim 


 

















 


based
on any act of commission or omission by the Lender with respect to any of the
foregoing indebtedness, obligations and liabilities of the Borrower, or in
connection with any Repayment Claim (as hereinafter defined).


 


3.                                       As used herein,
“Guaranteed Obligation” shall mean and include any and all indebtedness,
obligations and liabilities of the Borrower to the Lender arising under and
pursuant to the Note executed by the Borrower, including any amendments
thereto.


 


4.                                       In case of the
occurrence of an Event of Default by Borrower under the Note or the Loan
Agreement, or a default by Guarantor hereunder of any of the covenants, terms
and conditions set forth herein, all of the Guaranteed Debt shall, without
notice to anyone, immediately become due or accrued and all amounts due
hereunder shall be payable from the Guarantor. 
The Guarantor hereby expressly and irrevocably:  (a) waives, to the fullest extent possible,
on behalf of himself and his successors and assigns (including any surety) and
any other person, any and all rights at law or in equity to subrogation,
reimbursement, exoneration, contribution, indemnification, set off or to any
other rights that could accrue to a surety against a principal, a guarantor
against a maker or obligor, an accommodation party against the party
accommodated, a holder or transferee against a maker, or to the holder of a
claim against any person, and which Guarantor may have or hereafter acquire
against any person in connection with or as a result of Guarantor’s execution,
delivery and/or performance of this Guaranty, or any other documents to which
Guarantor is a party or otherwise; (b) waives any “claim” (as such term is
defined in the United States Bankruptcy Code) of any kind against the Borrower,
and further agrees that he or she, as the case may be, shall not have or assert
any such rights against any person (including any surety), either directly or
as an attempted set off to any action commenced against the Guarantor by the
Lender or any other person; and (c) acknowledges and agrees (i) that foregoing
waivers are intended to benefit the Lender and shall not limit or otherwise
effect the Guarantor’s liability hereunder or the enforceability of this
Guaranty, (ii) that the Borrower and its successors and assigns are intended
third party beneficiaries of the foregoing waivers, and (iii) the agreements
set forth in this paragraph and the Lender’s rights under this paragraph shall
survive payment in full of the Guaranteed Debt.


 


5.                                       All dividends
or other payments received by the Lender on account of the Guaranteed Debt,
from whatever source derived, shall be taken and applied by the Lender toward
the payment of the Guaranteed Debt and in such order of application as the
Lender may, in its sole discretion, from time to time elect, and this Guaranty
shall apply to and secure any ultimate balance that shall remain owing to the
Lender.  The Lender shall have the
exclusive right to determine how, when and what application of payments and
credits, if any, whether derived from the Borrower or any other source, shall
be made on the Guaranteed Debt and such determination shall be conclusive upon
the Guarantor.


 


6.                                       This
Guaranty shall in all respects be continuing, absolute and unconditional, and
shall remain in full force and effect with respect to Guarantor until all
Guaranteed Debt shall have been fully paid.


 


7.                                       Guarantor’s liability under
this Guaranty shall in no way be modified, affected, impaired, reduced,
released or discharged by any of the following (any or all of which may be done
or omitted by the Lender in its sole discretion, without notice to anyone and
irrespective of 


 

















 


whether
the Guaranteed Debt shall be increased or decreased thereby): (a) any
acceptance by the Lender of any new or renewal note or notes of the Borrower,
or of any security or collateral for, or other guarantors or obligors upon, any
of the Guaranteed Debt; (b) any compromise, settlement, surrender, release,
discharge, renewal, refinancing, extension, alteration, exchange, sale, pledge
or election with respect to the Guaranteed Debt, or any note by the Borrower,
or take any action under Section 364, or any other section of the United States
Bankruptcy Code (11 U.S.C. § 101 et.  seq.), now existing or
hereafter amended, or other disposition of, or substitution for, or indulgence
with respect to, or failure, neglect or omission to realize upon, or to enforce
or exercise any liens or rights of appropriation or other rights with respect
to, any Guaranteed Debt or any security or collateral therefor or any claims
against any person or persons primarily or secondarily liable thereon; (c) any
failure, neglect or omission to perfect, protect, secure or insure any of the
foregoing security interests, liens, or encumbrances of the properties or
interests in properties subject thereto; (d) any change in the Borrower’s name
or the merger of the Borrower into another corporation; (e) any act of
commission or omission of any kind or at any time upon the part of the Lender
with respect to any matter whatsoever, other than the execution and delivery by
the Lender to the Guarantor of an express written release or cancellation of
this Guaranty; or (f) the payment in full of the Guaranteed Debt.  The Guarantor hereby consents to all acts of
commission or omission of the Lender set forth above and agrees that the
standards by which good faith, diligence, reasonableness and care shall be
measured, determined and governed solely by the terms and provisions hereof.


 


8.                                       Notwithstanding
any provision of this Guaranty to the contrary, it is intended that this
Guaranty not constitute a Fraudulent Conveyance (as defined below).  Consequently, Guarantor agrees that if this
Guaranty, would, but for the application of this sentence, constitute a
Fraudulent Conveyance, this Guaranty shall be valid and enforceable only to the
maximum extent that would not cause this Guaranty to constitute a Fraudulent
Conveyance, and this Guaranty shall automatically be deemed to have been
amended accordingly at all relevant times. 
For purposes hereof, “Fraudulent Conveyance” means a fraudulent
conveyance under Section 548 of the Bankruptcy Code or a fraudulent conveyance
or fraudulent transfer under the provisions of any applicable fraudulent
conveyance or fraudulent transfer law or similar law of any state, nation or
governmental unit, as in effect from time to time.


 


9.                                       In order to
hold the Guarantor liable hereunder, there shall be no obligation on the part
of the Lender, at any time, to resort for payment from the Borrower or to
anyone else, or to any collateral, security, property, liens or other rights
and remedies whatsoever, all of which are hereby expressly waived by the
Guarantor.  The Guarantor hereby
expressly waives diligence in collection or protection, presentment, demand or
protest or in giving notice to anyone of the protest, dishonor, default, or
nonpayment or of the creation or existence of any of the Guaranteed Debt or of
the acceptance of this Guaranty or of extension of credit or indulgences
hereunder or of any other matters or things whatsoever relating hereto.


 


10.                                 The Guarantor
waives any and all defenses, claims and discharges of the Borrower, or any
other obligor, pertaining to the Guaranteed Debt, except the defense of
discharge by payment in full.  Without
limiting the generality of the foregoing, the Guarantor will not assert, plead
or enforce against the Lender any defense of waiver, release, discharge in
bankruptcy, statute of limitations, res judicata, statute of frauds,
anti-deficiency statute, minority or unenforceability which may be available to
the Borrower or any other person liable in respect 


 

















 


of
any of the Guaranteed Debt, or any setoff available against the Lender to the
Borrower or any such other person, whether or not on account of a related
transaction.  The Guarantor expressly
agrees that the Guarantor shall be and remain liable for any deficiency
remaining after foreclosure of any security interest securing the Guaranteed
Debt, whether or not the liability of the Borrower or any other obligor for
such deficiency is discharged pursuant to statute or judicial decision.


 


11.                                 The Lender may,
without demand or notice of any kind to anyone, apply or set off any balances,
credits, deposits, accounts, moneys or other indebtedness at any time credited
by or due from the Lender to the Guarantor against the amounts due hereunder
and in such order of application as the Lender may from time to time
elect.  Any notification of intended
disposition of any property required by law shall be deemed reasonably and
properly given if given in the manner provided by the applicable statute.


 


12.                                 THE GUARANTOR
WAIVES EVERY DEFENSE, CAUSE OF ACTION, COUNTERCLAIM OR SETOFF WHICH THE
GUARANTOR MAY NOW HAVE OR HEREAFTER MAY HAVE TO ANY ACTION BY THE LENDER IN
ENFORCING THIS GUARANTY.  AS FURTHER
SECURITY, ANY AND ALL DEBTS AND LIABILITIES NOW OR HEREAFTER ARISING AND OWING
TO THE GUARANTOR BY THE BORROWER, OR TO ANY OTHER PARTY LIABLE TO THE LENDER,
ARE HEREBY SUBORDINATED TO THE LENDER’S CLAIMS AND ARE HEREBY ASSIGNED TO THE
LENDER.  THE GUARANTOR HEREBY AGREES THAT
THE GUARANTOR MAY BE JOINED AS A PARTY DEFENDANT IN ANY LEGAL PROCEEDING (INCLUDING,
BUT NOT LIMITED TO, A FORECLOSURE PROCEEDING) INSTITUTED BY THE LENDER AGAINST
THE BORROWER.  THE GUARANTOR AND THE
LENDER, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT WITH COUNSEL,
EACH KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE IRREVOCABLY THE RIGHT TO
TRIAL BY JURY WITH RESPECT TO ANY SUCH LEGAL PROCEEDING IN WHICH THE GUARANTOR
AND THE LENDER ARE ADVERSE PARTIES.  THIS
PROVISION IS A MATERIAL INDUCEMENT TO THE LENDER GRANTING ANY FINANCIAL ACCOMMODATION
TO THE BORROWER AND ACCEPTING THIS GUARANTY.


 


13.                                 Should a claim
(a “Repayment Claim”) be made upon the Lender at any time for repayment of any
amount received by the Lender in payment of the Guaranteed Debt, or any part
thereof, whether received from the Borrower, the Guarantor pursuant hereto, or
received by the Lender as the proceeds of collateral, by reason of:  (i) any judgment, decree or order of any
court or administrative body having jurisdiction over the Lender or any of its
property; or (ii) any settlement or compromise of any such Repayment Claim
effected by the Lender, in its sole discretion, with the claimant (including
the Borrower), the Guarantor shall remain liable to the Lender for the amount
so repaid to the same extent as if such amount had never originally been received
by the Lender, notwithstanding any termination hereof or the cancellation of
any note or other instrument evidencing any of the Guaranteed Debt.


 


14.                                 The Lender may,
without notice to anyone, sell or assign the Guaranteed Debt, or any part
thereof, or grant participations therein, and in any such event each and every
immediate or remote assignee or holder of, or participant in, all or any of the
Guaranteed Debt shall have the 


 

















 


right
to enforce this Guaranty, by suit or otherwise for the benefit of such
assignee, holder, or participant, as fully as if herein by name specifically
given such right herein, but the Lender shall have an unimpaired right, prior
and superior to that of any such assignee, holder or participant, to enforce
this Guaranty for the benefit of the Lender, as to any part of the Guaranteed
Debt retained by the Lender.


 


15.                                 Unless and
until all of the Guaranteed Debt has been paid in full, no release or discharge
of any other person, whether primarily or secondarily liable for and obligated
with respect to the Guaranteed Debt, or the institution of bankruptcy,
receivership, insolvency, reorganization, dissolution or liquidation
proceedings by or against the Guarantor or any other person primarily or
secondarily liable for and obligated with respect to the Guaranteed Debt, or
the entry of any restraining or other order in any such proceedings, shall
release or discharge the Guarantor, or any other guarantor of the indebtedness,
or any other person, firm or corporation liable to the Lender for the
Guaranteed Debt.


 


16.                                 (a)                                  All references
herein to the Borrower and to the Guarantor, respectively, shall be deemed to
include any successors or assigns, whether immediate or remote, to either
corporation and any executors or administrators to such individual.


 


(b)                                 If this
Guaranty contains any blanks when executed by the Guarantor, the Lender is
hereby authorized, without notice to the Guarantor, to complete any such blanks
according to the terms upon which this Guaranty is executed by the Guarantor
and is accepted by the Lender.


 


(c)                                  This Guaranty
has been delivered to the Lender, and the rights, remedies and liabilities of
the parties shall be construed and determined in accordance with the laws of
the State of Illinois, in which State it shall be performed by the Guarantor.


 


(d)                                 TO INDUCE THE
LENDER TO GRANT FINANCIAL ACCOMMODATIONS TO THE BORROWER, THE GUARANTOR
IRREVOCABLY AGREES THAT ALL ACTIONS ARISING DIRECTLY OR INDIRECTLY AS A RESULT
OR IN CONSEQUENCE OF THIS GUARANTY SHALL BE INSTITUTED AND LITIGATED ONLY IN
COURTS HAVING SITUS IN THE CITY OF CHICAGO, ILLINOIS, COUNTY OF COOK.  THE GUARANTOR HEREBY CONSENTS TO THE
EXCLUSIVE JURISDICTION AND VENUE OF ANY STATE OR FEDERAL COURT LOCATED AND
HAVING ITS SITUS IN CHICAGO, ILLINOIS, COUNTY OF COOK AND WAIVES ANY OBJECTION
BASED ON FORUM NON CONVENIENS.  THE
GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS, AND TO THE
SERVICE OF PROCESS BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO THE
GUARANTOR AT THE ADDRESS SET FORTH BELOW IN THE MANNER PROVIDED BY APPLICABLE
STATUTE, LAW, RULE OF COURT OR OTHERWISE. 
FURTHERMORE, THE GUARANTOR WAIVES ALL NOTICES AND DEMANDS IN CONNECTION
WITH THE ENFORCEMENT OF THE LENDER’S RIGHTS HEREUNDER, AND HEREBY CONSENTS TO,
AND WAIVES NOTICE OF THE RELEASE, WITH OR WITHOUT CONSIDERATION, OF THE
BORROWER OR ANY OTHER PERSON RESPONSIBLE FOR PAYMENT OF THE GUARANTEED DEBT, OR
OF ANY COLLATERAL THEREFOR.


 

















 


(e)                                  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.


 


(f)                                    It is agreed
that the Guarantor’s liability is independent of any other guaranties at any
time in effect with respect to all or any part of the Borrower’s indebtedness
to the Lender, and that the Guarantor’s liability hereunder may be enforced
regardless of the existence of any such other guaranties.


 


(g)                                 No delay on the
part of the Lender in the exercise of any right or remedy shall operate as a
waiver thereof, and no single or partial exercise by the Lender of any right or
remedy shall preclude other or further exercise thereof, or the exercise of any
other right or remedy.  No modification,
termination, discharge or waiver of any of the provisions hereof shall be
binding upon the Lender, except as expressly set forth in a writing duly signed
and delivered on behalf of the Lender.


 


(h)                                 This Guaranty
may be executed in any number of counterparts and by different parties hereto
in separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constituted one
and the same instrument.


 

















 


IN
WITNESS WHEREOF, the Guarantor has executed and delivered this Guaranty as of
the date set forth above.


 


 


	
   

  	
  ADVANCED
  LIFE SCIENCES HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
  /s/John
  L. Flavin

  
	
   

  	
   

  
	
   

  	
  Notice
  Address:

  
	
   

  	
   

  
	
   

  	
  1440
  Davey Road

  
	
   

  	
  Woodridge,
  Illinois 60517

  



 

















 


	
  ACCEPTED AND AGREED:

  	
   

  
	
   

  	
   

  
	
  LENDER:

  	
  THE
  LEADERS BANK

  
	
   

  	
   

  
	
   

  	
  /s/
  John Prosia

  
	
   

  	
  By:

  	
  John
  Prosia

  
	
   

  	
  Its:

  	
  Executive
  Vice President