Execution Copy
GUARANTY
THIS GUARANTY is made and entered into at Fort Myers,
Florida, to be
effective as of the 23rd day of March, 2005, by the undersigned,
NEOGENOMICS,
INC.
, a Nevada corporation (hereinafter referred to as the
"Guarantor"), in
favor of
ASPEN SELECT HEALTHCARE, LP
, a Delaware limited partnership
(hereinafter referred to as "ASPEN").
R E C I T A L S
WHEREAS, pursuant to the terms hereof and of that certain
Loan and Security
Agreement by and between NeoGenomics, Inc., a Florida corporation
(hereinafter
referred to as the "Borrower"), Guarantor, and ASPEN dated of even
date herewith
(as the same may be amended, modified, restated, extended and/or
replaced from
time to time, the "Loan Agreement"), ASPEN has agreed to lend to
Borrower (i) up
to the maximum sum of One Million Five Hundred Thousand Dollars
(hereinafter
referred to as the "Loan"), as evidenced by that certain Note of
even date
herewith in the amount of One Million Five Hundred Thousand Dollars
($1,500,000.00), as the same may be amended, modified, restated,
extended and/or
replaced from time to time (hereinafter referred to as the "Note").
WHEREAS, Guarantor is the parent of Borrower.
NOW, THEREFORE, for good and valuable consideration
received by the
Guarantor, the receipt and sufficiency of which are hereby
acknowledged, and in
order to induce any person or persons who may be and become the
holder of the
Notes to accept the same, the Guarantor hereby agrees as follows:
1. The Guarantor hereby unconditionally, absolutely and
irrevocably
guarantees, for the benefit of each and every present and future
holder or
holders, from time to time, of the Notes (all herein called the
"Obligees"), the
full and prompt payment to the Obligees at maturity (whether at the
stated
maturities thereof, or by acceleration or otherwise) of any and all
of the
indebtedness of the Borrower evidenced by the Notes, together with
all other
obligations and liabilities of the Borrower to ASPEN and/or any
affiliate of
ASPEN, whether now existing or hereafter incurred, as the same or
any part
thereof may from time to time be amended, extended, restated,
replaced, and/or
modified (all of which indebtedness, obligations and liabilities
being herein
called the "Indebtedness"), and the full and prompt performance and
observance
by the Borrower of all of the warranties, covenants and agreements
provided by
the Note and any other instruments made and delivered, now or
hereafter, in
connection with the Note or the Indebtedness (all herein called the
"Loan
Documents"), to be performed and observed by the Borrower (herein
called the
"Obligations"); and to this end the Guarantor covenants and agrees
to take all
such actions necessary to enable the Borrower to pay the
Indebtedness and to
observe and perform each and every Obligation, and to refrain from
taking any
action which would prevent the Borrower from paying the
Indebtedness or
observing and performing each and every Obligation.
The Guarantor acknowledges and confesses that it will be of
substantial
economic benefit to the Guarantor for the Borrower to issue the
Notes and incur
the Indebtedness. Guarantor represents and warrants to ASPEN that
it has
received value which is reasonably equivalent to its Guaranty
hereunder, and
that it is not rendered insolvent by delivery of this Guaranty.
2. This Guaranty shall be a continuing guaranty, shall be
binding upon the
Guarantor and upon its respective heirs, administrators,
successors, legal
representatives and assigns, and shall remain in full force and
effect, and
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shall not be discharged, impaired or affected by (a) the existence
or
continuance of any obligation on the part of the Borrower or any
other guarantor
on or with respect to the Indebtedness or any Obligation under the
Notes, or any
other Loan Document; (b) the power or authority (or any lack
thereof) of the
Borrower to issue the Notes or to execute, acknowledge or deliver
the Notes or
any other Loan Document; (c) the validity or invalidity of the
Notes or any
other Loan Document; (d) any defense whatsoever that the Borrower
or any other
guarantor may or might have to the payment of the Indebtedness or
to the
performance or observance of any of the Obligations; (e) any
limitation or
exculpation of liability on the part of the Borrower; (f) the
existence or
continuance of the Borrower as a legal entity; (g) the transfer of
all or any
part of Borrower's assets to any other corporation, person or
entity; (h) any
sale, pledge, surrender, indulgence, alteration, substitution,
exchange, change
in, increase in, extension, modification or other disposition of
any of the
Indebtedness, or any of the Obligations, all of which the Obligees
are hereby
expressly authorized to make from time to time without notice to
the Guarantor
or to anyone; (i) the acceptance by the Obligees, or any of them,
of any
security for, or other guarantors upon, all or any part of the
Indebtedness or
the Obligations; (j) any failure, neglect or omission on the part
of the
Obligees, or any of them, to realize or protect any of the
Indebtedness or any
collateral or security therefor, or to exercise any lien upon or
right or
appropriation of any moneys, credits or property of the Borrower
toward the
liquidation of the Indebtedness or any application of payments or
credits
thereon; (k) any right, claim or offset which Guarantor may have
against
Borrower, or (l) any defense (other than the payment of the
Indebtedness and
performance of the Obligations, in accordance with their terms)
that the
Guarantor may or might have to its undertakings, liabilities and
obligations
hereunder, each and every such defense being hereby waived by the
Guarantor; it
being understood and agreed that this Guaranty, and the
undertakings,
liabilities and obligations of the Guarantor hereunder, are
absolute and
unconditional and shall not be affected, discharged, impaired or
varied by any
act, omission or circumstance whatsoever (whether or not
specifically enumerated
above) except the due and punctual payment of the Indebtedness and
performance
of the Obligations, and then only to the extent thereof.
The Obligees shall have the exclusive right to determine
how, when and what
application of payments and credits, if any, shall be made on the
Indebtedness
or the Obligations, or any part thereof; and in order to hold the
Guarantor
liable hereunder, there shall be no obligation on the part of any
Obligee, or
anyone, at any time, to proceed against the Borrower, its
properties or estates,
or to proceed against any other guarantor, or to resort to any
collateral,
security, property, liens or other rights or remedies whatsoever.
3. The death or dissolution of any guarantor shall not
terminate or limit
this Guaranty as to any surviving or existing Guarantor, and shall
not terminate
this Guaranty as to the estate of any deceased Guarantor or the
property of any
dissolved Guarantor.
4. The Obligees, or any of them, shall have the right to
enforce this
Guaranty against any Guarantor for and to the full amount of the
Indebtedness,
with or without enforcing or attempting to enforce this Guaranty
against any
other guarantor or any security for the obligation of any of them,
and whether
or not proceedings or steps are pending or have been taken or have
been
concluded to enforce or otherwise realize upon the obligation or
security of the
Borrower or any other guarantor; and the payment of any amount or
amounts by
Guarantor, pursuant to its obligation hereunder or under any other
guaranty
instrument, shall not in any way entitle Guarantor, either at law,
in equity or
otherwise, to any right, title or interest (whether by way of
subrogation or
otherwise) in and to any of the Indebtedness, or any principal or
interest
payments theretofore, then or thereafter at any time made by the
Borrower on the
Indebtedness, or made by anyone on behalf of the Borrower, or in
and to any
security therefor, unless and until the full amount of the
Indebtedness has been
fully paid.
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5. No release or discharge of any other guarantor or any
other person
liable for payment of the Indebtedness or granting collateral
therefor shall
release or discharge Guarantor unless and until all of the
Indebtedness shall
have been fully paid and discharged and all Obligations shall have
been fully
performed.
6. No act of commission or omission of any kind, or at any
time, on the
part of any Obligee, in respect to any matter whatsoever, shall in
any way
affect or impair this Guaranty,
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