VALIDITY GUARANTY
Exhibit 10.4
This Validity Guaranty made this 22nd
day of September, 2008, by Xxxxxx Xxxxxxxxx (“Validity Guarantor”), whose
address is 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxx,
Xxxxxxxx 00000, to and for the benefit of Marquette Business Credit,
Inc., d/b/a Marquette Healthcare Finance (“Lender”), whose address is
Standard Insurance Center, 000 XX Xxxxx Xxx., Xxxxxxxx, Xxxxxx 00000.
Recitals
A. Zynex,
Inc., a Nevada corporation, and Zynex Medical, Inc. f/d/b/a Stroke Recovery
Systems, a Colorado corporation (collectively, “Borrower”) has applied to
Lender for a loan (the “Loan”), the terms of which are
described in that certain Loan and Security Agreement and other loan documents
dated as of even date herewith, among the Borrower and the Lender (the “Loan
Documents”). Capitalized terms used herein will have the
respective meanings ascribed to them in the Loan Documents unless they are
otherwise defined herein.
B. Validity
Guarantor serves as the President and Chief Executive Officer of
Borrower.
C. To
induce Lender to make the Loan to Borrower, and as a condition precedent to
making of the Loan, Lender has required that Validity Guarantor guarantee the
truth and accuracy of the Borrower’s representations and warranties contained in
the Loan Documents, and to guaranty and warrant the performance by
Borrower of certain covenants of the Loan Documents on Borrower’s part to be
performed and observed pursuant to the provisions thereof, as more particularly
provided in this Validity Guaranty.
Agreement
NOW, THEREFORE, in consideration of
Lender’s making the Loan to Borrower, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
1. Recitals. The
above Recitals are acknowledged and incorporated into this
Agreement.
2. Representations, Warranties,
and Covenants. Validity Guarantor warrants and represents to Lender
that:
2.1. Any and
all financial statements, balance sheets, receivables information and other
financial data that have been furnished to Lender and that concern Borrower
fairly and accurately present the financial condition of the Borrower as of the
date thereof; that since the date thereof, there has been no material adverse
change in the financial condition of such Borrower, except as disclosed to
Lender in writing; that there are no legal proceedings, material claims, or
demands pending against or, to the best of Validity Guarantor’s knowledge,
threatened against Borrower or any of the Borrower’s assets that have not been
disclosed to Lender in writing.
Exhibit
10.4 - Page 1 of 5
2.2. Any and
all financial statements, balance sheets, receivables information, and other
financial data that Validity Guarantor causes to be furnished to Lender on
behalf of Borrower will fairly and accurately present the financial condition of
the Borrower as of the date thereof.
2.3. Each and
every warranty and representation made by Borrower in the Loan Documents is true
and correct on the date so made to the best of Validity Guarantor’s
knowledge.
2.4. The
Validity Guarantor agrees to immediately notify the Lender upon obtaining
knowledge of any facts or circumstances indicating that any representations or
warranties of the Borrower made to the Lender are or were untrue on the date
made.
2.5. This
Validity Guaranty constitutes a legal, valid and binding obligation of Validity
Guarantor and is fully enforceable in accordance with its terms.
2.6. The
execution and delivery of this Validity Guaranty, and the fulfillment of and
compliance with the terms and provisions hereof, will not conflict with or
result in a breach of the terms, conditions, or provisions of, or constitute a
default under, any agreement or instrument to which Validity Guarantor is now a
party or by which Validity Guarantor may be bound.
2.7. Validity
Guarantor agrees to notify Lender immediately of any default, breach,
misrepresentation, or nonperformance by Borrower of any terms, conditions,
covenants, or other requirements of Borrower in the Loan Documents known to
Validity Guarantor. Validity Guarantor will be liable to Lender for
any loss or liability Lender suffers arising from or related to any fraudulent
or criminal activities of the Borrower or its executive officers with respect to
the transactions contemplated under the Loan Documents, or any fraudulent or
criminal activities arising from the operation of the business of the Borrower,
which activities were known to Validity Guarantor.
3. Foreclosure. In
the event that the Lender declares a default under the Loan Documents and
commences to realize on the Collateral, the undersigned will exercise his
reasonable efforts in an appropriate manner to assist the Lender to obtain
maximum proceeds from the liquidation of all of the Collateral.
4. General.
4.1. The
obligations of Validity Guarantor hereunder are independent of the obligations
of Borrower to Lender, and, subject to the terms hereof, a separate action or
actions may be brought and prosecuted against Validity Guarantor, whether action
is brought against Borrower or whether Borrower is joined in any such action or
actions. Validity Guarantor agrees that any releases which may be
given by Lender to Borrower shall not release Validity Guarantor from its
obligations under this Validity Guaranty.
4.2. This
Validity Guaranty shall not be impaired by any modification, supplement,
extension, or amendment of any of the Obligations or the Loan
Documents.
4.3. Validity
Guarantor authorizes Lender, without notice or demand and without affecting its
liability hereunder, from time to time to:
(a) renew,
compromise, extend, accelerate, or otherwise change the time for payment of, or
otherwise change the terms of, the Loan Documents or of any other agreements,
instruments, or documents with Lender or any part thereof, including increase or
decrease of the rate of interest thereon;
(b) release
or substitute the Collateral and any one or more of the endorsers or guarantors
of the Obligations; and
Exhibit
10.4 - Page 2 of 5
(c) assign,
without notice, this Validity Guaranty in whole or in part and/or Lender’s
rights hereunder to anyone at any time.
4.4. Validity
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. Validity Guarantor waives all
presentments, demands for performance, notices of non-performance, protests,
notices of protest, notices of dishonor, notices of default, and of the
existence, creation of, or incurring of new or additional indebtedness of
Borrower.
4.5. This
Validity Guaranty shall be enforced and construed in accordance with the laws of
the State of Oregon without regard to principles of conflicts of
laws.
4.6. VALIDITY
GUARANTOR WAIVES ALL RIGHTS TO A TRIAL BY JURY IN THE EVENT OF ANY LITIGATION
WITH RESPECT TO ANY MATTER CONNECTED WITH THIS AGREEMENT, AND GUARANTOR HEREBY
IRREVOCABLY CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF THE STATE COURTS OF
THE STATE OF OREGON AND OF THE FEDERAL COURTS LOCATED IN THE DISTRICT OF OREGON
IN CONNECTION WITH ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT. IN ANY SUCH LITIGATION, GUARANTOR WAIVES PERSONAL SERVICE
OF ANY SUMMONS, COMPLAINT, OR OTHER PROCESS AND AGREES THAT SERVICE THEREOF MAY
BE MADE ON SUCH PARTY BY CERTIFIED U.S. FIRST CLASS MAIL, AND OTHERWISE IN
ACCORDANCE WITH APPLICABLE LAWS, POSTAGE PREPAID, ADDRESSED TO THE PARTY AT THE
ADDRESS SPECIFIED BELOW.
4.7. Lender’s
rights, remedies, and recourse under the Loan Documents or this Validity
Guaranty are separate and cumulative and may be pursued separately,
successively, or concurrently, are non-exclusive, and the exercise of any one or
more of them shall in no way limit or prejudice any other legal or equitable
right, remedy, or recourse to which Lender may be entitled.
4.8. In any
action to enforce or otherwise adjudicate any term of this Validity Guaranty,
the prevailing party in such action shall be entitled to recover from the
non-prevailing party all of the prevailing party’s reasonable attorney fees,
court costs, and all other costs and expenses incurred in connection with such
action.
4.9. In case
any one or more of the provisions contained in this Validity Guaranty shall for
any reason be held to be invalid, illegal, or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other provision
hereof, and this Validity Guaranty shall be construed as if such invalid,
illegal, or unenforceable provision had never been contained
herein.
4.10. All
notices, requests, demands, and other communications required under this
Validity Guaranty shall be given in writing by delivering the same in person to
the intended addressee, by overnight courier service with guaranteed next day
delivery, by certified United States Mail, postage prepaid and return receipt
requested, or telegram sent to the intended addressee, each addressed as
follows, or by telecopy addressed to the intended addressee and transmitted to
the following number:
Exhibit
10.4 - Page 3 of 5
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If
to Validity Guarantor:
|
Xxxxxx
Xxxxxxxxx
0000
Xxxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx,
XX 00000
Facsimile:
(000) 000-0000
E-mail:
xxxxxxxxxx@xxxxxxxx.xxx
|
|
If
to Lender:
|
Marquette
Healthcare Finance
Standard
Insurance Center
000
XX Xxxxx Xxx, Xxxxx 0000
Xxxxxxxx,
Xxxxxx 00000
Attn:
Xxxxxxxx Xxxxxxxxxx
E-mail:
Xxxxxxxx.Xxxxxxxxxx@xxxxxxxxx.xxx
|
or to
such other address or number as the intended addressee may have given to the
other party in writing in the manner set forth above. Such notices,
requests, demands, and other communications shall be deemed given when actually
received or, if earlier, (a) in the case of delivery by courier service with
guaranteed next day delivery, the next day or the day designated for delivery,
(b) in the case of certified United States mail, three days after deposit
therein, or (c) in the case of telecopy, the date upon which the transmitting
party received confirmation of receipt by telecopy, telephone, or
otherwise. No notice to or demand on Validity Guarantor shall in any
case, of itself, entitle Validity Guarantor to any other or further notice or
demand in similar or other circumstances
4.11. This
document constitutes the parties’ final written expression of their agreement
and supersedes all prior agreements, understandings, and writings concerning the
subject matter hereof. This Validity Agreement may be amended only in
writing and signed by the party against whom enforcement is sought.
4.12. This
Validity Guaranty shall cease to be of any effect and shall be terminated from
and after the following: The Validity Guarantor ceases to be the
Chief Executive Officer of Zynex, Inc. In the event of such
termination, the Validity Guarantor shall only have liability for any breach by
Validity Guarantor of this Validity Guarantor prior to such
termination.
4.13. The
liability of Validity Guarantor for any and all claims and other matters
relating to this Validity Guaranty (including, without limitation, losses,
attorneys fees, other expenses and damages) shall not exceed the amount of the
Obligations (as defined in the Loan Documents) and shall not include any of
Lender’s indirect, incidental, special or consequential damages.
[Signature
page follows]
Exhibit
10.4 - Page 4 of 5
VALIDITY
GUARANTOR
/s/ Xxxxxx
Xxxxxxxxx
Xxxxxx
Xxxxxxxxx
Exhibit 10.4 - Page 5 of
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