GUARANTY
EXHIBIT
10.3
NewAlliance
Bank
000
Xxxxxx Xxxxxx
Xxx
Xxxxx, XX 00000
Gentlemen:
To induce
NewAlliance Bank (hereinafter referred to as the "Lender") to enter into a
Third Modification Agreement (“Third Modification”) dated of
even date herewith with CAS Medical Systems, Inc. (hereinafter
referred to as the “Borrower”)
modifying a Revolving Loan to Borrower evidenced by a Commercial
Revolving Promissory Note dated February 11, 2008 from Borrower in
favor of Lender in the amount of ten million dollars ($10,000,000.00), as
modified by Debt Modification Agreement (the “First Modification”) from
Borrower dated December 31, 2008, as further modified by Second Modification
Agreement executed April 3, 2009 (the “Second Modification”) reducing
the principal amount outstanding at anytime to five million dollars
($5,000,000.00), and as further modified by Third Modification (said Commercial
Revolving Promissory Note, as modified by the First Modification, Second
Modification and Third Modification, and as the same may be further amended
and/or restated from time to time, the “Note,” and the loan evidenced
by the Note, herein called the “Loan, and the Commercial Loan
Agreement dated February 11, 2008 between Borrower and Lender, as modified by
the First Modification, the Second Modification and the Third Modification, and
as the same may be further amended and/or restated from time to time, herein
called the “Loan
Agreement"”) and, in consideration thereof and of any loans, advances or
financial accommodations heretofore or hereafter granted by the Lender to or for
the account of the Borrower in connection with the Loan, the undersigned (the
"Guarantor")
unconditionally guarantees by this agreement (the "Guaranty") the payment and
performance from or by the Borrower of any and all Obligations (as hereafter
defined). The term "Obligations," as used herein,
shall mean the Loan, all amounts advanced and/or outstanding from time to time
under or pursuant to the Loan Agreement and/or the Note, and any and all
principal, interest, commissions, fees, amounts, obligations, liabilities,
indebtedness, charges and expenses now or hereafter chargeable against the
Borrower by the Lender or owing by the Borrower to the Lender under, pursuant to
or in connection with the Note, the Loan Agreement, and/or the Loan, whether any
of the foregoing are direct or indirect, joint or several, absolute or
contingent, due or to become due, now existing or hereafter arising no matter
how or when arising under any present or future agreement or instrument between
the Borrower and the Lender or otherwise, and the performance and fulfillment by
the Borrower of all of the terms, conditions, promises, covenants, agreements
and provisions contained in said Note, the Loan Agreement and/or in any present
or future documents or agreements now or hereafter evidencing, relating to,
executed in connection with, or securing the Loan (said documents and
agreements, including, without limitation, the Note and Loan Agreement, herein
called the “Loan
Documents”).
The Guarantor also
agrees: to indemnify the Lender and hold the Lender harmless against
all losses in any way suffered, incurred or paid by the Lender as a result of or
in any way arising out of, or following, or consequential to transactions with
the Borrower, with respect to the Note, including all costs of
collection and expenses including reasonable attorneys’ fees incurred by the
Lender to collect the Obligations from any party liable for the payment thereof
whether as maker, endorser, guarantor, surety or otherwise (hereinafter the
“Parties”), or in
protecting, enforcing or realizing upon Lender’s rights in connection with any
collateral securing the Obligations, or any guaranty thereof; that said costs,
expenses and attorneys’ fees enumerated above shall expressly include those as
may be incurred by the Lender to collect the Obligations from any of the Parties
after judgment in favor of the Lender by any court of competent jurisdiction
including those incurred by the Lender to foreclose any judgment lien, or to
realize upon any collateral or to otherwise obtain payment and satisfaction of
such judgment from any of the Parties; that the obligation to pay the reasonable
attorneys’ fees of the Lender in connection with the protecting, enforcing or
realizing of the rights and remedies above described shall exist whether or not
proceedings are instituted or legal appearances made in any court of competent
jurisdiction on behalf of Lender; that this Guaranty shall not be impaired by
any modification, extension, renewal, compromise, release, substitution,
surrender, exchange or other alteration of any of the Loan Documents,
Obligations or agreements whatever with the Borrower or anyone else including
but not limited to the release, substitution, surrender, exchange or other
alteration to all or any part of the collateral securing the Obligations or the
release of any other guarantor of the Obligations; that this Guaranty shall not
be impaired by the Lender’s obtaining additional security for any of the
Obligations; that the liability of the Guarantor hereunder is direct and
unconditional and may be enforced without requiring the Lender first to resort
to any other right, remedy or security; that no Guarantor shall have any right
of subrogation, reimbursement or indemnity whatsoever, nor any right of recourse
to security for the debts and Obligations of the Borrower to the Lender and the
Guarantor hereby expressly waives any and all of said rights of subrogation,
reimbursement, indemnity, and recourse to security; that the Guarantor shall not
be deemed a “creditor” of the Borrower with respect to the Obligations as said
term “creditor” is defined in the U.S. Bankruptcy Code, as amended; and this
Guaranty is, and shall be as to the Guarantor continuing, and shall not
terminate unless and until all of the Obligations have been paid in full and any
obligation of the Lender to make, or right of Borrower to obtain advances under
any of the Loan Documents shall have terminated; and that if there is
more than one guarantor of the Obligations, whether hereunder or under any
separate instrument of guaranty, the liability of the Guarantor and any and all
other guarantors shall be joint and several.
The Guarantor represents and warrants
that as of the date of this Guaranty:
A. The
Guarantor is generally paying its debts as such debts become due, the fair
market value of its assets exceeds its liabilities and no bankruptcy or
insolvency proceedings are pending or contemplated by or against the
Guarantor.
B. All
reports, statements and other data furnished by the Guarantor to the Lender in
connection with the Loan are true, correct and complete in all material respects
and do not omit any fact or circumstance which would make the statements
contained therein misleading; present fairly the financial position of the
Guarantor as of the date stated therein, and the results of the Guarantor's
operation and changes in financial position for the years then ended and the
statements
are prepared in conformity with generally accepted accounting principles applied
on a consistent basis; and that no material adverse change has occurred in the
financial condition of the Guarantor since the date of said financial
statement.
C. The
Guarantor is a duly organized validly existing corporation under the laws of the
State of Delaware and has the authority to execute and deliver this Guaranty;
this Guaranty is a valid and binding obligation of the Guarantor enforceable in
accordance with its terms.
D. There
is no action, suit or proceeding pending, or to the knowledge of the Guarantor,
threatened against or materially affecting the Guarantor or which involves the
possibility of any judgment or liability not fully covered by insurance or
which, in the Guarantor's opinion, might result in any adverse change in the
business, assets or operations of the Guarantor which would, in any way,
materially and adversely affect the validity or enforceability of this
Guaranty.
E. The
Guarantor is not a party to or bound by any contract, agreement or other
instrument, or subject to any charter or other restriction or any judgment,
order, writ, injunction, decree, rule or regulation which now or in the future
may materially and adversely affect the business, operations, properties, assets
or condition, financial or otherwise, of the Guarantor.
F. The
Guarantor has filed all required federal, state and local tax returns, and no
claims have been asserted and/or are unpaid with respect to such
taxes.
G. The
Guarantor is not in default under the terms of any instrument evidencing or
securing any indebtedness of the Guarantor and there has occurred no event which
would, if uncured or uncorrected, constitute a default under any such instrument
with the giving of notice, passage of time, or both.
H. The
assumption by the Guarantor of the Obligations hereunder will result in a
financial benefit to the Guarantor.
I. The
Guarantor is duly qualified to transact business, as a foreign corporation, in
Florida and in all jurisdictions in which the character of the properties owned
or the nature of the activities conducted by such corporation requires its
qualification as a foreign corporation.
Guarantor hereby covenants and agrees
that Guarantor shall (a) furnish or cause to be furnished to Lender annually,
within 90 days following the end of Borrower’s fiscal year ( i ) the financial
statement of Guarantor, in form, substance, and detail satisfactory to Lender;
and (ii) a copy of the annual federal and state income tax returns of Guarantor,
for the year most recently ended; provided, however, that so long
as the Guarantor’s tax returns and financial statements are included within the
financial statements and tax returns which the Borrower is obligated to provide
and does provide to Lender in accordance with the terms of Borrower’s agreements
with Lender, Guarantor need not provide such tax returns and financial
statements of Guarantor; and
(b)
deliver to Lender, within ten (10) days following Lender’s request therefor,
such financial reports and information with respect to the Guarantor, as the
Lender may request from time to time, in form and detail satisfactory to
Lender.
The Guarantor hereby gives the Lender a
lien and right of setoff for all the Guarantor’s obligations hereunder and the
Borrower’s Obligations upon and against the deposits, credits and property of
the Guarantor now or hereafter in the Lender’s possession or control or in
transit to the Lender. The Lender may at any time apply the same or
any part thereof to any of the Guarantor’s obligations hereunder and/or the
Borrower’s Obligations, though unmatured, without notice and without first
resorting to any other collateral.
The Guarantor waives: notice
of acceptance hereof; presentment and protest of any instrument, and notice
thereof; notice of default; and all other notices to which the Guarantor might
otherwise be entitled.
This Guaranty shall continue to be
effective or be reinstated, as the case may be, if at any time payment of all or
any part of the Obligations is rescinded or otherwise must be restored by the
Lender to the Borrower or to the creditors of the Borrower or any representative
of the Borrower or representative of the Borrower’s creditors upon the
insolvency, bankruptcy or reorganization of the Borrower, or to the Guarantor or
to the creditors of the Guarantor or any representative of the Guarantor or
representative of the creditors of the Guarantor upon the insolvency, bankruptcy
or reorganization of any Guarantor, or otherwise, all as though such payments
had not been made.
Any and all present and future debts
and obligations of the Borrower or any other guarantor to the Guarantor are
hereby waived and postponed in favor of, and subordinated to payment in full of,
the Obligations by the Borrower to the Lender. As security for this
Guaranty, the Guarantor hereby assigns to the Lender all claims of any nature
which the Guarantor may now or hereafter have against the
Borrower. This assignment shall terminate upon payment and
performance of the Obligations in full and the termination of any obligation of
the Lender to make, or right of Borrower to obtain, advances under any
of the Loan Documents.
The Lender may from time to time,
whether before or after any discontinuance of this Guaranty, without notice to
the Guarantor, assign or transfer any or all of the Obligations or any interest
therein; and, notwithstanding any such assignment or transfer or any subsequent
assignment or transfer thereof, such Obligations shall be and remain Obligations
for the purposes of this Guaranty, and each and every immediate and successive
assignee or transferee of any of the Obligations or of any interest therein
shall, to the extent of the interest of such assignee or transferee in the
Obligations, be entitled to the benefits of this Guaranty to the same extent as
if such assignee or transferee were the Lender; provided, however, that unless
the Lender shall otherwise consent in writing, the Lender shall have an
unimpaired right, prior and superior to that of any such assignee or transferee,
to enforce this Guaranty, for the benefit of the Lender, as to those of the
Obligations which the Lender has not assigned or transferred.
THE GUARANTOR ACKNOWLEDGES THAT THE
TRANSACTION OF WHICH THIS GUARANTY IS A PART IS A COMMERCIAL TRANSACTION, AND
HEREBY WAIVES THE RIGHT TO NOTICE AND HEARING UNDER CONNECTICUT
GENERAL STATUTE SECTION 52-278a
ET SEQ. AS AMENDED OR UNDER ANY OTHER STATE
OR FEDERAL LAW, WITH RESPECT TO ANY PREJUDGMENT REMEDY WHICH THE LENDER, ITS
SUCCESSORS OR ASSIGNS MAY DESIRE TO EMPLOY TO ENFORCE ITS RIGHTS AND REMEDIES
HEREUNDER AS WELL AS
GUARANTOR’S RIGHT TO
REQUEST THAT LENDER POST A BOND IN CONNECTION WITH ANY SUCH PREJUDGMENT
REMEDY. MORE
SPECIFICALLY, THE GUARANTOR ACKNOWLEDGES THAT LENDER’S ATTORNEY MAY, PURSUANT TO
CONNECTICUT GENERAL STATUTES, SECTION 52-278f, ISSUE A WRIT FOR A PREJUDGMENT
REMEDY WITHOUT SECURING A COURT ORDER.
THE GUARANTOR HEREBY WAIVES TRIAL BY
JURY IN ANY ACTION OR PROCEEDING OF ANY KIND OR NATURE IN ANY COURT IN WHICH AN
ACTION MAY BE COMMENCED ARISING OUT OF THIS GUARANTY, OR ANY ASSIGNMENT
THEREOF.
THE GUARANTOR AND THE LENDER HEREBY
AGREE THAT THE FOLLOWING COURTS:
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STATE
COURT -
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ANY
STATE OR LOCAL COURT OF THE STATE
OF
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FEDERAL
COURT -
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UNITED
STATES DISTRICT COURT FOR THE
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DISTRICT
OF CONNECTICUT
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OR AT THE OPTION OF THE LENDER, ANY
COURT IN WHICH THE LENDER SHALL INITIATE LEGAL OR EQUITABLE PROCEEDINGS AND
WHICH HAS SUBJECT MATTER JURISDICTION OVER THE MATTER IN CONTROVERSY
(COLLECTIVELY REFERRED TO AS THE “COURTS”), SHALL HAVE EXCLUSIVE JURISDICTION
TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THE GUARANTOR AND THE
LENDER PERTAINING DIRECTLY OR INDIRECTLY TO THIS GUARANTY OR TO ANY MATTER
ARISING THEREFROM. THE GUARANTOR EXPRESSLY SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH
COURTS, HEREBY WAIVING PERSONAL SERVICE OF THE SUMMONS AND COMPLAINT, OR OTHER
PROCESS OR PAPERS ISSUED THEREIN, AND AGREEING THAT SERVICE OF SUCH SUMMONS AND
COMPLAINT, OR OTHER PROCESS OR PAPERS, MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL ADDRESSED TO THE GUARANTOR AT THE ADDRESS SET FORTH
BELOW. SHOULD THE GUARANTOR FAIL TO APPEAR OR ANSWER ANY SUMMONS,
COMPLAINT, PROCESS OR PAPERS SO SERVED WITHIN THIRTY (30) DAYS AFTER THE MAILING
THEREOF, IT SHALL BE DEEMED IN DEFAULT AND AN
ORDER AND/OR JUDGMENT MAY BE ENTERED
AGAINST IT AS DEMANDED OR PRAYED FOR IN SUCH SUMMONS, COMPLAINT, PROCESS OR
PAPERS. THE EXCLUSIVE CHOICE OF FORUM SET FORTH IN THIS PARAGRAPH
SHALL NOT BE DEEMED TO PRECLUDE THE ENFORCEMENT OF ANY JUDGMENT OBTAINED IN SUCH
FORUM OR THE TAKING OF ANY ACTION UNDER THIS GUARANTY TO ENFORCE THE SAME IN ANY
APPROPRIATE JURISDICTION.
This Guaranty, all acts and
transactions hereunder, and the rights and obligations of the parties hereto
shall be governed, construed and interpreted according to the laws of the State
of Connecticut, shall be binding upon the heirs, executors, administrators,
successors and assigns of the Guarantor and shall inure to the benefit of the
Lender’s successors and assigns. If there be more than one Guarantor
hereunder, any reference to or covenant, representation, or acknowledgement made
by “the Guarantor” shall apply to each and any Guarantor, and the undersigned
shall be jointly and severally liable hereunder.
Dated: Xxxxx
00, 0000
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XXXXXXXXX
STATCORP,
INC.
By: /s/ Xxxxxxx X.
Xxxxx
Xxxxxxx
X. Xxxxx
Its
Vice President, Treasurer and Secretary
Address: 00000
Xxxxx Xxxxx Xxxx
Xxxxx
000
Xxxxxxxxxxxx,
XX 00000
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STATE OF
CONNECTICUT
COUNTY OF NEW HAVEN
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)
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ss. New Haven |
On this
the 11th day
of March, 2010, before me, the undersigned officer, personally appeared Xxxxxxx
X. Xxxxx, who acknowledged himself to be the Vice President, Treasurer and
Secretary of STATCORP, Inc., a Delaware corporation, and that he as such Vice
President, Treasurer and Secretary being authorized so to do, executed the
foregoing instrument for the purposes therein contained, by signing the name of
such corporation by himself as Vice President, Treasurer and
Secretary.
In witness whereof, I hereunto set my
hand.
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/s/ Xxxxxxxxx X. XxXxxxxx
Xxxxxxxxx
X. XxXxxxxx
Commissioner
of the Superior Court
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