EXHIBIT 10.37
UNCONDITIONAL GUARANTY
For and in consideration of the loan by SILICON VALLEY
BANK ("Bank") to TYTRONICS INCORPORATED ("Borrower"), which
loan is made pursuant to a Loan and Security Agreement of even
date herewith between Borrower and Bank (the "Agreement"), the
undersigned guarantor ("Guarantor") hereby unconditionally and
irrevocably guarantees the prompt and complete payment of all
amounts that Borrower owes to Bank and performance by Borrower
of the Agreement and any other agreements between Borrower and
Bank, as amended from time to time (collectively referred to
as the "Agreements"), in strict accordance with their
respective terms.
1. If Borrower does not perform its obligations in
strict accordance with the Agreements, Guarantor shall
immediately pay all amounts due thereunder (including, without
limitation, all principal, interest, and fees) and otherwise
to proceed to complete the same and satisfy all of Borrower's
obligations under the Agreements.
2. The obligations hereunder are independent of the
obligations of Borrower, and a separate action or actions may
be brought and prosecuted against Guarantor whether action is
brought against Borrower or whether Borrower be joined in any
such action or actions. Guarantor waives the benefit of any
statute of limitations affecting its liability hereunder or
the enforcement thereof, to the extent permitted by law.
Guarantor's liability under this Guaranty is not conditioned
or contingent upon the genuineness, validity, regularity or
enforceability of the Agreements.
3. Guarantor authorizes Bank, without notice or demand
and without affecting its liability hereunder, from time to
time to (a) renew, extend, or otherwise change the terms of
the Agreements or any part thereof; (b) take and hold security
for the payment of this Guaranty or the Agreements, and
exchange, enforce, waive and release any such security; and
(c) apply such security and direct the order or manner of sale
thereof as Bank in its sole discretion may determine.
4. Guarantor waives any right to require Bank to (a)
proceed against Borrower or any other person; (b) proceed
against or exhaust any security held from Borrower; or (c)
pursue any other remedy in Bank's power whatsoever. Bank may,
at its election, exercise or decline or fail to exercise any
right or remedy it may have against Borrower or any security
held by Bank, including without limitation the right to
foreclose upon any such security by judicial or nonjudicial
sale, without affecting or impairing in any way the liability
of Guarantor hereunder. Guarantor waives any defense arising
by reason of any disability
or other defense of Borrower or by reason of the cessation
from any cause whatsoever of the liability of Borrower.
Guarantor waives any setoff, defense or counterclaim that
Borrower may have against Bank. Guarantor waives any defense
arising out of the absence, impairment or loss of any right of
reimbursement or subrogation or any other rights against
Borrower. Until all of the amounts that Borrower owes to Bank
have been paid in full, Guarantor shall have no right of
subrogation or reimbursement for claims arising out of or in
connection with this Guaranty, contribution or other rights
against Borrower, and Guarantor waives any right to enforce
any remedy that Bank now has or may hereafter have against
Borrower. Guarantor waives all rights to participate in any
security now or hereafter held by Bank. Guarantor waives all
presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of
dishonor, and notices of acceptance of this Guaranty and of
the existence, creation, or incurring of new or additional
indebtedness. Guarantor assumes the responsibility for being
and keeping itself informed of the financial condition of
Borrower and of all other circumstances bearing upon the risk
of nonpayment of any indebtedness or nonperformance of any
obligation of Borrower, warrants to Bank that it will keep so
informed, and agrees that absent a request for particular
information by Guarantor, Bank shall have no duty to advise
Guarantor of information known to Bank regarding such
condition or any such circumstances.
5. Guarantor acknowledges that, to the extent Guarantor
has or may have certain rights of subrogation or reimbursement
against Borrower for claims arising out of this Guaranty,
those rights may be impaired or destroyed if Bank elects to
proceed against any real property security of Borrower by non-
judicial foreclosure. That impairment or destruction could,
under certain judicial cases and based on equitable principles
of estoppel, give rise to a defense by Guarantor against its
obligations under this Guaranty. Guarantor waives that
defense and any others arising from Bank's election to pursue
non-judicial foreclosure.
6. If Borrower becomes insolvent or is adjudicated
bankrupt or files a petition for reorganization, arrangement,
composition or similar relief under any present or future
provision of the United States Bankruptcy Code, or if such a
petition is filed against Borrower, and in any such proceeding
some or all of any indebtedness or obligations under the
Agreements are terminated or rejected or any obligation of
Borrower is modified or abrogated, or if Borrower's
obligations are otherwise avoided for any reason, Guarantor
agrees that Guarantor's liability hereunder shall not thereby
be affected or modified and such liability shall continue in
full force and effect as if no such action or proceeding had
occurred. This Guaranty shall continue to be effective or be
reinstated, as the case may be, if any payment must be
returned by Bank upon the insolvency, bankruptcy or
reorganization of Borrower, Guarantor, any other guarantor, or
otherwise, as though such payment had not been made.
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7. Any indebtedness of Borrower now or hereafter held
by Guarantor is hereby subordinated to any indebtedness of
Borrower to Bank; and such indebtedness of Borrower to
Guarantor shall be collected, enforced and received by
Guarantor as trustee for Bank and be paid over to Bank on
account of the indebtedness of Borrower to Bank but without
reducing or affecting in any manner the liability of Guarantor
under the other provisions of this Guaranty.
8. Guarantor agrees to pay a reasonable attorneys' fee
and all other costs and expenses which may be incurred by Bank
in the enforcement of this Guaranty. No terms or provisions
of this Guaranty may be changed, waived, revoked or amended
without Lender's prior written consent. Should any provision
of this Guaranty be determined by a court of competent
jurisdiction to be unenforceable, all of the other provisions
shall remain effective. This Guaranty embodies the entire
agreement among the parties hereto with respect to the matters
set forth herein, and supersedes all prior agreements among
the parties with respect to the matters set forth herein. No
course of prior dealing among the parties, no usage of trade,
and no parol or extrinsic evidence of any nature shall be used
to supplement, modify or vary any of the terms hereof. There
are no conditions to the full effectiveness of this Guaranty.
Bank may assign this Guaranty without in any way affecting
Guarantor's liability under it. This Guaranty shall inure to
the benefit of Bank and its successors and assigns. This
Guaranty is in addition to the guaranties of any other
guarantors and any and all other guaranties of Borrower's
indebtedness or liabilities to Bank.
9. Guarantor represents and warrants to Bank that (i)
Guarantor has taken all necessary and appropriate action to
authorize the execution, delivery and performance of this
guaranty, (ii) execution, delivery and performance of this
Guaranty do not conflict with or result in a breach of or
constitute a default under Guarantor's Articles of
Incorporation or Bylaws or other organizational documents or
agreements to which it is party or by which it is bound, and
(iii) this Guaranty constitutes a valid and binding
obligation, enforceable against Guarantor in accordance with
its terms.
10. Guarantor covenants and agrees that Guarantor shall
do all of the following:
10.1 Guarantor shall maintain its corporate
existence, remain in good standing in _______________, and
continue to qualify in each jurisdiction in which the failure
to so qualify could have a material adverse effect on the
financial condition, operations or business of Guarantor.
Guarantor shall maintain in force all licenses, approvals and
agreement, the loss of which could have a material adverse
effect on its financial condition, operations or business.
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10.2 Guarantor shall comply with all statutes, laws,
ordinances, directives, orders, and government rules and
regulations to which it is subject if non-compliance with such
laws could adversely affect the financial condition,
operations or business of Guarantor.
10.3 At any time and from time to time Guarantor
shall execute and deliver such further instruments and take
such further action as may reasonably be requested by Bank to
effect the purposes of this Agreement.
11. This Guaranty shall be governed by the laws of the
Commonwealth of Massachusetts, without regard to conflicts of
laws principles. GUARANTOR WAIVES ANY RIGHT TO A JURY TRIAL
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF
THIS GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS,
AND ALL OTHER COMMON LAW OR STATUTORY CLAIMS. Guarantor
submits to the exclusive jurisdiction of the state and federal
courts of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the undersigned Guarantor has
executed this Guaranty as of this ____ day of July, 1997.
HOLOMETRIX, INC.
By: //XXXX X. XXXXX//
Name: Xxxx X. Xxxxx
Title: President
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