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Exhibit 10.12
US TRUST GUARANTY
For good and valuable consideration, the receipt and adequacy of which
are acknowledged, the undersigned (jointly and severally if more than one)
unconditionally guaranties, in accordance with the terms hereof and without any
prior written notice, the payment and performance of all of the Liabilities
(hereinafter defined) of Implant Sciences Corporation, a Massachusetts
Corporation with its principal office at 000 Xxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxxxx ("Borrower") to USTrust, having a principal place of business at
00 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx (hereinafter, with any subsequent
holder hereof, the "Bank"). All references herein to "Borrower" include the
Borrower acting alone and/or with another or others.
"Liabilities" includes, without limitation, any and all liabilities,
debts, and obligations of the Borrower to the Bank and any and all liabilities,
debts and obligations of every endorser, guarantor, and surety of the Borrower
to the Bank, each of the foregoing in this sentence of every kind, nature, and
description, now existing or hereafter arising, whether in whole or in part with
recourse, without recourse or otherwise. "Liabilities" also includes, without
limitation, each obligation to repay all loans, advances, indebtedness, notes,
obligations, overdrafts, and amounts now or hereafter at any time owed by the
Borrower to the Bank (including all future advances or the like whether or not
given pursuant to a commitment by the Bank), whether or not any of such are
liquidated, unliquidated, primary, secondary, secured, unsecured, direct,
indirect, absolute, contingent, or of any other type, nature, description, or by
reason of any cause of action which the Bank may hold against the Borrower.
"Liabilities" also includes, without limitation, all notes and other obligations
of the Borrower now or hereafter assigned to or held by the Bank, each of every
kind, nature and description. "Liabilities" also includes, without limitation,
all interest and other amounts which may be charged to the Borrower and/or which
may be due from the Borrower to the Bank from time to time; all fees and charges
in connection with any account maintained by the Borrower with the Bank or any
service rendered by the Bank; and all costs and expenses incurred or paid by the
Bank in respect of any agreement between the Borrower and the Bank or instrument
furnished by the Borrower to the Bank (including, without limitation, Costs of
Collection (hereinafter defined), attorneys' fees and expenses, and all court
and litigation costs and expenses). "Liabilities" also includes, without
limitation, any and all obligations of the Borrower to act or to refrain from
acting in accordance with the terms, provisions and covenants of any agreement
between the Borrower and the Bank or instrument furnished by the Borrower to the
Bank. As used herein, the term "indirect" includes, without limitation, all
obligations and liabilities which the Bank may incur or become liable for or, on
account of, or as a result of any transactions between the Bank and the Borrower
including, without limitation, any which may arise out of any letter of credit
or acceptance, or similar instrument issued or obligation incurred by the Bank
for the account of the Borrower; any of which may arise out of any action
brought or threatened against the Bank by the Borrower, any guarantor or
endorser of any or all of the Liabilities of the Borrower, or other person or
entity in connection with any or all of the Liabilities; and any obligation of
the Borrower which may arise as endorser or guarantor of a third party, or as
obligor to any third party which obligation has been endorsed, participated, or
assigned to the Bank. The term "indirect" also refers to any direct or
contingent liability of the Borrower to make payment towards any obligation held
by the Bank (including, without limitation, on account of any industrial revenue
bond) to the extent so held by the Bank.
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"Costs of Collection" includes, without limitation, all attorneys' fees
and expenses incurred by the Bank's attorneys, and all costs incurred by the
Bank in the administration of the Liabilities, this Guaranty, and all other
instruments and agreements executed in connection with or relating to the
limitation, all the Bank's attorneys' fees and expenses and all other
out-of-pocket expenses of the Liabilities, including without limitation, costs
and expenses associated with travel on behalf of the Bank, "Costs of Collection"
also includes, without limitation, all the Bank's attorneys' fees and expenses
and all other out-of-pocket expenses of the Bank including, without limitation,
associated with travel by or on behalf of the Bank, all of which costs and
expenses are directly or indirectly related to or in respect of the Bank's
efforts to preserve, protect, collect or enforce the Liabilities and/or the
Bank's Rights and Remedies (hereinafter defined) or any of the Bank's rights and
remedies against or in respect of the Borrower, any other guarantor, endorser or
other person and/or entity liable in respect of any or all of the Liabilities or
any collateral granted to the Bank by the Borrower, the undersigned, such other
guarantor, or such other person and/or entity (whether or not such is instituted
in connection with such efforts). The Costs of Collection shall be added to the
Liabilities of the Borrower to the Bank, as if such had been lent, advanced, and
credited by the Bank to, or for the benefit of, the Borrower.
For said good and valuable consideration, the undersigned also agreed
to indemnify, defend and hold the Bank harmless of and from any claim brought or
threatened against the Bank by the Borrower, the undersigned, any other
guarantor or endorser of any or all of the Liabilities or any other person
and/or entity (as well as from attorneys' fees and expenses in connection
therewith) on account of the Bank's relationship with the Borrower, the
undersigned, or any other guarantor or endorser of the Liabilities (each of
which may be defended, compromised, settled, or pursued by the Bank with counsel
of the Bank's selection, but at the expense of the undersigned). The undersigned
agrees to pay on demand interest on all amounts due to the Bank under this
Guaranty, or arising under any documents, instruments, or agreements relative to
any collateral securing this Guaranty, from the time the Bank first demands
payment of this Guaranty at a rate equal to the highest rate chargeable to the
Borrower after the earlier of (i) demand or (ii) the occurrence of any event of
default hereunder.
Any and all deposits or other sums at any time credited by or due to
the undersigned from the Bank or any of its banking or lending affiliates, or
any bank acting as a participant under any loan arrangement between the Bank and
the Borrower, and any cash, securities, instruments or other property of the
undersigned in the possession of the Bank, or any of its banking or lending
affiliates, or any bank acting as a participant under any loan arrangement
between the Bank and the Borrower, whether for safekeeping or otherwise, or in
transit to or from the Bank or any of its banking or lending affiliates or any
such participant, or in the possession of any third party acting on the Bank's
behalf (regardless of the reason the Bank had received same or whether the Bank
has conditionally released the same) shall at all times constitute security for
all of the Liabilities and for all obligations of the undersigned to the Bank
and may be applied or set off against such Liabilities and/or against the
obligations of the undersigned to the Bank including without limitation, those
arising hereunder, at any time, whether or not such are then due and whether or
not other collateral is then available to the Bank.
The obligations of the undersigned hereunder shall not be affected by
any fraudulent, illegal, or improper act by the Borrower, nor by any release,
discharge, or invalidation, by operation of law
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or otherwise, of any or all of the Liabilities, or by the legal incapacity of
the Borrower, the undersigned, or any other person and/or entity liable or
obligated to the Bank for or on the Liabilities. Interest and Costs of
Collection shall continue to accrue and shall continue to be deemed Liabilities
guaranteed hereby notwithstanding any stay to the enforcement thereof against
the Borrower or disallowance of any claim therefor against the Borrower. The
within instrument incorporates all discussions and negotiations between the
undersigned and the Bank concerning the guaranty and indemnification provided by
the undersigned herein. No such discussions or negotiations shall limit, modify,
or otherwise affect the provisions hereof. This agreement and the rights and
obligations hereunder may not be modified, amended or waived, whether in whole
or in part, orally or otherwise, except by written instrument signed by the
Bank. The undersigned waives presentment, demand, notice and protest with
respect to the Liabilities or this Guaranty, and further waives any delay on the
part of the Bank, and further waives any right to require the Bank to pursue or
to proceed against the Borrower or any collateral which the Bank might have been
granted to secure the Liabilities or to secure the obligations of the
undersigned hereunder, and further waives notice of acceptance of this Guaranty.
The undersigned agrees not to exercise any rights of subrogation, reimbursement,
indemnity, contribution, or the like (including any right to proceed upon any
collateral granted by the Borrower to the undersigned) against the Borrower or
any person and/or entity liable or obligated for or on the Liabilities unless
and until all of the Liabilities have been satisfied in full. The undersigned
agrees to pay to the Bank on demand any or all of the Bank's attorneys fees and
expenses, and all other costs incurred by the Bank, including, without
limitation, costs and expenses associated with travel by or on behalf of the
Bank, (a) in the administration, collection and/or enforcement of the
Liabilities, this Guaranty and/or all other instruments, documents, and
agreements executed in connection with or relating to the Liabilities and/or
this Guaranty; and/or (b) directly or indirectly related to or in respect of the
Bank's efforts to collect and/or to enforce any of the obligations of the
undersigned hereunder and/or to enforce any of the Bank's Rights and Remedies,
and/or the Bank's powers against or in respect to the undersigned, whether or
not suit is instituted by or against the Bank.
The obligations of the undersigned hereunder are primary, with no
recourse necessary by the Bank against the Borrower or any collateral given to
secure the Liabilities or against any other person and/or entity liable for or
on the Liabilities prior to proceeding against the undersigned hereunder. The
undersigned assents to any indulgence or waiver which the Bank may grant or give
the Borrower and/or any other person and/or entity liable or obligated to the
Bank for or on the Liabilities. The undersigned authorizes the Bank to alter,
amend, cancel, waive, or modify any term or condition of any or all of the
Liabilities and of any or all of the obligations of any other person and or
entity liable or obligated to the Bank for or on any or all of the Liabilities,
without notice to, or consent from, the undersigned. No compromise, settlement,
or release by the Bank of any or all of the Liabilities or any or all of the
obligations of any such other person and/or entity (whether or not jointly
liable with the undersigned) and no release of any collateral securing any of
all of the Liabilities or securing any or all of the obligations of any such
other person and/or entity shall affect the obligations of the undersigned
hereunder. No action by the Bank which has been assented to herein shall affect
the obligations of the undersigned to the Bank hereunder.
The rights, remedies, powers, privileges and discretions of the Bank
under this Guaranty and/or the Liabilities ("Bank's Rights and Remedies' shall
be cumulative and not exclusive of any rights or remedies which it would
otherwise have. No delay or omission by the Bank in exercising
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or enforcing any of the Bank's Rights and Remedies shall operate as, or
constitute a waiver thereof on that occasion nor on any other occasion. No
waiver by the Bank of any of the Bank's Rights and Remedies or of any default of
remedies under any other agreement with or by the undersigned, or of any default
under any agreement with or by the Borrower, or any other person and/or entity
liable or obligated for or on the Liabilities, shall operate as waiver of (a)
any other of the Bank's Rights and Remedies, (b) any default or remedy hereunder
or thereunder, or (c) any other provision hereunder or thereunder. No exercise
of any of the Bank's Rights and Remedies and no other agreement or transaction
of whatever nature entered into between the Bank and the undersigned, the Bank
and the Borrower, and/or the Bank and any such other person and/or entity oat
any time shall preclude any other exercise of the Bank's Rights and Remedies. No
waiver by the Bank of any of the Bank's Rights and Remedies on any one occasion
shall be deemed a waiver on any subsequent occasion, nor shall it be deemed a
continuing waiver. All of the Bank's Rights and Remedies and all of the Banks
rights, remedies, powers, privileges and discretions under any other agreement
or transaction with the undersigned, the Borrower, or any such other person
and/or entity shall be cumulative and not alternative or exclusive, and may be
exercised by the Bank at such time or times and in such order of preference as
the Bank in its sole discretion may determine.
This instrument and all documents which have been or may be hereafter
furnished by the undersigned and/or the Borrower to the Bank may be reproduced
by the Bank by any photographic, photostatic, microfilm, microcard, miniature
photographic, xerographic, or similar of other process, and the Bank may destroy
the original from which this instrument and/or such documents were so
reproduced. Any such reproduction shall be admissible in evidence as the
original itself in any judicial or administrative proceeding (whether or not the
original is in existence and whether or not such reproduction was made in the
regular course of business). It is the intention and agreement of the
undersigned that the provisions of this instrument be liberally construed to the
end that the Bank may be put in as good a position as if the Borrower had
promptly, punctually and faithfully performed all Liabilities and the
undersigned had promptly, punctually and faithfully performed hereunder. The
books and records of the Bank showing the Borrower's account(s) and/or the
undersigned's account(s), and/or showing any indebtedness of the Borrower and/or
the undersigned to the Bank, shall be admissible in any action or proceeding in
connection herewith and/or any other matters which include the Bank and the
undersigned, including any and all rights and obligations relating hereto or
thereto, or arising hereunder or thereunder, and shall constitute conclusive and
non-rebuttable evidence and proof of the items contained therein and shall be
binding upon the undersigned, unless shown to be to the contrary by clear and
convincing written evidence. This instrument shall inure to the benefit of the
Bank, its successors and assigns, shall be binding upon the undersigned, and the
heirs, successors, representatives, and assigns of the undersigned, and shall
apply without limitation to all Liabilities of the Borrower and any successor to
the Borrower, including any successor by operation of law.
In any case, controversy or matter which arises out of, or is in
respect of, this instrument, any endorsement or other guaranty heretofore,
herewith and/or hereafter by the undersigned (whether alone and/or with another
or others) of any promissory note payable to the Bank or order, the maker of
which is the Borrower (whether with or without any other co-maker or co-makers),
and/or any matter relating to the Liabilities, the undersigned voluntarily and
intentionally waives any right to and agrees not to bring, commence, or
otherwise take any action to transfer any proceeding, including without
limitation court action, arbitration, mediation, administrative proceeding or
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otherwise against the Bank other than in the city described above in which the
Bank has its principal place of business, however it is understood and agreed
that nothing contained herein shall restrict the Bank. The undersigned
certifies, warrants and agrees that (a) the undersigned is bound by the
provisions contained herein, (b) the undersigned is of legal contractual age and
sound mind, and (c) the Bank has made no agreements, warranties,
representations, or promises in connection with this instrument or any matters
arising hereunder, except as set forth in a written instrument executed and
delivered by the Bank, if at all. The provisions of this instrument are hereby
declared to be severable, and the invalidity, illegality, or unenforceability of
any provision or application thereof shall not effect any other provision or any
other application thereof. This instrument and the rights and obligations
hereunder may not be modified, amended or waived, whether in whole or in part,
orally or otherwise, except by a written instrument executed by the Bank.
The undersigned (a) agrees that this instrument shall be governed and
construed under the laws of the Commonwealth of Massachusetts, except that as to
all instances of conflict of laws or choice of law (if any), Massachusetts
substantive and procedural law shall also govern without regard to principles of
conflicts of law, and not the law of any other forum; (b) agrees that this
instrument is deemed executed and delivered to the Bank in the Commonwealth of
Massachusetts, to whose jurisdiction the undersigned submits as the sole forum
in which the undersigned may ever bring any claim or lawsuit against the Bank
under, relating to, or in connection with, this instrument, as well as for all
purposes in connection with any other now existing and/or hereafter arising
relationship between the undersigned and the Bank, and any and all rights and
obligations relating hereto or thereto, or arising hereunder or thereunder; (c)
agrees that all warranties, representations, provisions and agreements contained
herein are joint and several of each of the undersigned, if more than one; and
(d) agrees that the obligations of the undersigned hereunder shall not be
affected by (i) any fraudulent, illegal or improper act by the Borrower and/or
any of the undersigned, (ii) any release, discharge or invalidation, by
operation of law or otherwise, of the Liabilities, unless the Liabilities are
paid and performed in full, and/or (iii) the legal incapacity of the Borrower
and/or any of the undersigned. This instrument may be signed in counterparts, if
the undersigned is more than one, however shall constitute one agreement. THE
UNDERSIGNED WAIVES ANY NOW EXISTING AND/OR HEREAFTER ARISING RIGHT TO A TRIAL BY
JURY IN ANY CASE OR CONTROVERSY AGAINST THE BANK REGARDING, ARISING FROM, OR IN
CONNECTION WITH, THIS AGREEMENT, ANY ENDORSEMENT OR OTHER GUARANTY HERETOFORE,
HEREWITH AND/OR HEREAFTER BY THE UNDERSIGNED (WHETHER ALONE AND/OR WITH ANOTHER
OR OTHERS) OF ANY PROMISSORY NOTE PAYABLE TO THE BANK OR ORDER. THE MAKER OF
WHICH IS THE BORROWER (WHETHER WITH OR WITHOUT ANY OTHER CO-MAKER OR CO-MAKERS).
THE LIABILITIES, AND/OR ANY AND ALL RIGHTS AND OBLIGATIONS RELATING HERETO OR
THERETO, OR ARISING HEREUNDER OR THEREUNDER.
Except as set forth in the next sentence, the obligations of the
undersigned hereunder shall remain in full force and effect as to all
Liabilities, without regard to any reduction of the Liabilities other than by
payment and performance in full by the Borrower or by the undersigned pursuant
to this Guaranty, until the earlier of (a) ten (10) days following the actual
receipt by the Bank at its main office (presently 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 02108) of written notice signed by the undersigned of the
termination thereof, or (b) the delivery of written notice of termination dated
and signed by a duly authorized officer of the Bank, which notice of termination
includes specific
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reference to this Guaranty. No termination hereof shall affect the guaranty by
the undersigned of any of the Liabilities in existence or outstanding ten (10)
days following the date of such actual receipt by the Bank or delivery to the
Bank (including, without limitation, those which are contingent or not then due
and those which arise out of any check, draft, item, or paper which was made,
executed or drawn prior to the expiration of such ten (10) days, even if
received by the Bank thereafter) nor any obligation of the undersigned
hereunder, including, without limitation, any which by its terms includes any of
the Liabilities of a contingent nature (including, without limitation, the
indemnification provided for herein).
The undersigned certifies that the undersigned has read this Guaranty
prior to its execution. This instrument is signed as a sealed instrument this
1st day of May, 1996 .
Signed in my presence
/s/ Xxxxx X. Xxxx /s/ Xxxxxxx X. Xxxxxx
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Signature Signature: Xxxxxxx X. Xxxxxx, Individually
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Print Name Print Name
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Address
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(Name of entity, if applicable)
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Signature Signature
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Name Print Name Title, if applicable
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