Ex. 10.23
GUARANTEE
This Guarantee is made as of October 10, 2001, by the undersigned (a
"Guarantor"), in favor of CARDIOTECH INTERNATIONAL, INC. ("Lender").
RECITALS
Lender has entered into a line of credit letter agreement (the "Credit Line
Letter") with Implant Sciences Corporation ("Borrower"), dated as of October 10,
2001. As a condition precedent to the execution and delivery of the Credit Line
Letter by Lender, Lender requires that Guarantor execute and deliver this
Guarantee.
Guarantor is an officer, director and a major shareholder of Borrower and
will derive direct and substantial benefit from Lender entering into the Credit
Line Letter with Borrower. Any capitalized terms used herein and not otherwise
defined shall have the meaning used in the Credit Line Letter.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and to induce Lender to enter into
the Credit Line Letter with Borrower, Guarantor hereby covenants and agrees with
Lender as follows:
1. Guarantor hereby unconditionally, irrevocably and absolutely
guarantees unto Lender, and independently assumes liability to Lender, without
any requirement of resort to any other party, for the punctual and full
performance and observance of all of the covenants, conditions, duties and
obligations to be observed and performed by Borrower and its successors and
assigns under the Credit Line Letter and all Loan Documents, and the payment of
all amounts of any kind or nature due thereunder (the "Obligations"), in each
case as set forth in the Loan Documents, as any or all Loan Documents may be
amended, modified, supplemented, extended, added to or renewed from time to
time.
2. The obligations of Guarantor hereunder shall remain in full force
and effect without regard to, and shall not be affected or impaired by, the
following, any or all of which may be taken without the consent of, or notice
to, any Guarantor nor shall any of the following give any Guarantor any recourse
or right of action against Lender, each and all of which are hereby expressly
authorized by the Guarantor to be undertaken at any time and from time to time
by Borrower or Lender, as the case may be, in its sole and absolute discretion:
(a) Any express or implied amendment, extension, renewal,
modification, addition, or supplement of or to any Loan Document;
(b) Any renewal, extension or continuation of any Loan Document or
the term thereof, whether pursuant to a written agreement or otherwise;
(c) Any exercise or non-exercise or delay in the exercise or
assertion by Lender of any right or privilege under this Guarantee or any other
Loan Document;
(d) Any bankruptcy, insolvency, reorganization, composition,
adjustment, dissolution, liquidation or other similar proceeding relating to the
Guarantor or Borrower, or any action taken in respect of Borrower, this
Guarantee, or any other Loan Document by any trustee, receiver,
debtor-in-possession or the like, by Lender or by any court, in any such
proceeding, whether or not any such Guarantor shall have had notice or knowledge
of any of the foregoing:
(e) Any extension of time or other indulgence granted to Borrower
or any waiver with respect to the payment or repayment of any amounts due under
any Loan Document, and any other charges to be paid by Borrower or with respect
to the performance and observance of any other obligations of Borrower under any
Loan Document, except as may be agreed to in writing by Lender;
(f) The acceptance by Lender of any security for the punctual and
full payment of the Obligations, or the release, surrender, substitution or
omission to act, by Lender with respect to any such security;
(g) Any other act or omission to act by Borrower; and
(h) Any other matter whatsoever whereby a Guarantor would or might
be released, it being the intent hereof that the Guarantor shall at all times be
and remain liable to Lender to the same extent as if each Guarantor was jointly
and severally liable with Borrower to Lender for the performance of each and all
of the terms, conditions, covenants and provisions of the Loan Documents.
3. Guarantor hereby unconditionally waives:
(a) All presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor and notices of
acceptance of this Guarantee;
(b) Any right to require Lender to proceed against Borrower or any
other person at any time or to proceed against or exhaust any security held by
Lender at any time or to pursue any other remedy whatsoever at any time;
(c) Any defense arising out of the absence, impairment or loss of
any right of reimbursement, contribution or subrogation or any other right or
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remedy of Guarantor against Borrower, whether resulting from any action or
election of remedies by Borrower or otherwise;
(d) The defense of any statute of limitations;
(e) Any defense arising by reason of any invalidity or
unenforceability of the Credit Line Letter or any disability of Borrower, or by
any cessation from any cause whatsoever of the liability of Borrower, including,
without limitation, any reduction, diminution or limitation upon or discharge of
the liability of Borrower under the Bankruptcy Code;
(f) Any defense based upon an election of remedies by Lender;
(g) Any duty of Lender to advise any Guarantor of any information
known to Lender regarding the financial condition of Borrower and all other
circumstances affecting the ability of Borrower to perform its obligations under
the Loan Documents;
(h) Any duty of Lender to give Guarantor notice of any demand by
Lender or any notice of any type or nature under the Loan Document, including,
without limitation, any notice relating to any default by Borrower under the
Loan Documents ; and
(i) Any defense based upon any express or implied amendment,
modification, addition or supplement of or to any Loan Document or of or to
Borrower's obligations under the Loan documents made without the consent of
Guarantor, which consent shall not be required.
4. Lender may, without notice to Guarantor, assign its right, title,
claim and interest in the Loan Documents (and thereby its rights under this
Guarantee) in whole or in part, and no assignment or transfer of the Loan
Documents (whether or not permitted under the terms thereof) and this Guarantee
shall operate to extinguish or diminish the liability of Guarantor hereunder.
5. Until all Obligations have been paid in full or satisfied, Guarantor
shall not have any right of subrogation and Guarantor waives, to the fullest
extent permitted by law, any right to enforce any remedy which Guarantor now has
or may hereafter have against Borrower, and each Guarantor further waives the
benefit of, and any right to participate in, any security, whether real or
personal property, now or hereafter held by Lender as security for the
performance of Borrower under the Loan Documents.
6. This is a continuing guaranty and may not be terminated. Guarantor
waives, to the fullest extent possible under applicable law, any right to revoke
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its liability hereunder. In no event shall any extension or renewal of any Loan
Document constitute or be deemed to constitute a future transaction and
Guarantor hereby unconditionally waives any right to make such a claim. No such
termination permitted hereunder shall be effective until written notice thereof
is given to Lender at the address and in the manner set forth herein. No such
notice shall release Guarantor from any liability then existing hereunder or
under the Loan Documents as of the day any such notice is received, and all
renewals and extensions thereof.
7. Successive demands may be made upon, and successive actions for the
enforcement of such demands may be brought against, the Guarantor upon
successive defaults in the making of particular payments and the performance and
observance of particular obligations or conditions under the Loan Documents that
are guaranteed by the Guarantor in Section 1 above, and the enforcement of this
Guarantee against the Guarantor with respect to any particular payment or
obligations or conditions under the Loan Documents shall not operate to exhaust
this Guarantee or as a waiver of the right to proceed under this Guarantee with
respect to any future default or defaults.
8. The obligations of the Guarantor hereunder are primary and
independent of the obligations of Borrower and, in the event of any default
hereunder, a separate action or actions may be brought and prosecuted against
the Guarantor and whether or not Borrower is joined therein or a separate action
or actions are brought against Borrower. The liability of the Guarantor shall
not be affected by any rendering of any judgment against Borrower.
9. All of the terms of this instrument shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns. No delay or failure by Lender to execute any remedy against Borrower
or any Guarantor will be construed as a waiver of that right or remedy. All
remedies of Lender are cumulative.
10. This Guarantee of the Loan Documents shall be one of payment and
performance and not merely of collection.
11. The Guarantor hereby agrees to be responsible for and to pay any
and all costs and expenses, including, without limitation, reasonable attorney's
fees and court costs, incurred by Lender in connection with the collection of
any and all sums or obligations guaranteed hereby, the defense or enforcement of
any or all of Lender's rights hereunder and the defense or enforcement of any or
all of Lender's rights under the Loan Documents.
12. Guarantor agrees that this Guarantee shall be construed as an
absolute, unconditional, irrevocable, continuing and unlimited obligation of the
Guarantors without regard to the regularity, validity or enforceability against
Borrower of any liability or obligation hereby guaranteed, and waives any rights
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that would limit Guarantor's liability to the extent that it exceeds that of
Borrower due to any defense of Borrower or enforceability of the Obligations.
13. If any Obligations shall be held to be unenforceable, the remainder
of this Guarantee and its application to all other Obligations other than those
with respect to which it is held unenforceable shall not be affected thereby and
shall remain in full force and effect.
14. This Guarantee shall continue for the term of all Loan Documents
and any extensions or renewals thereof and until all obligations and liabilities
of Borrower and its successors and assigns, to Lender under or relating to the
Loan Documents have been fully paid or satisfied.
15. This Guarantee shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts. Guarantor and Lender each
hereby irrevocably submits to the exclusive jurisdiction of the state and
federal courts located in or closest in geographic proximity to Middlesex
County, Massachusetts, in the event of any dispute hereunder, and further waives
any right to a trial by jury.
16. This Guarantee shall not be modified, amended or waived in any
manner unless the same be in writing and signed by Lender and Guarantor.
17. In the event that more than one party is executing as Guarantor,
then each undersigned Guarantor is executing this instrument, and shall be
liable hereon, jointly and severally. Lender may make demand upon or pursue
any remedies against any one or more Guarantor, whether or not any demand is
made upon or any remedies are pursued against any other Guarantor. Each
Guarantor expressly agrees that recourse may be had against any and all property
of such Guarantor, regardless of whether such property constitutes community
property or separate property.
18. Each Guarantor hereby represents and warrants to Lender that such
Guarantor has the full power and authority to execute and deliver this Guarantee
to Lender, and that this Guarantee has been duly executed and delivered to
Lender, and constitutes the binding and enforceable obligation of such
Guarantor.
19. All notices, requests, demands, consents, and other communications
required or permitted to be given or made hereunder shall be in writing and
shall be deemed to have been duly given and received, (i) if mailed, certified
first class mail, postage prepaid, return receipt requested, five days after it
is mailed, or (ii) if sent by overnight courier or delivered by hand to the
party to whom the same is so given or made, at the address of such party as set
forth below, which address may be changed by notice to the other parties hereto
duly given pursuant hereto, the day after it is sent:
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(a) if to Lender:
Cardiotech International, Inc.
00-X Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Tel: 000-000-0000
Fax: 000-000-0000
with a copy to:
Ellenoff Xxxxxxxx Schole & Cyruli, LLP
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
(b) if to the Guarantor:
Xxxxxxx X. Xxxxxx
00 Xxxxxx Xxxxx
Xxxxxxxxxx-xx-xxx-Xxx, Xxxxxxxxxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Law Office of Xxxxx X. Xxxxxxxx LLC
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx. 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
20. This Guaranty and the other Loan Documents to which Guarantor is a party
embody the entire agreement between Guarantor and Lender relating to the subject
matter thereof and supersede all prior agreements, representations and
understandings, if any, relating to the subject matter thereof.
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IN WITNESS WHEREOF, the undersigned has executed this Guarantee as of the
date first above written.
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
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