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Exhibit
10.3
UNCONDITIONAL
GUARANTY
For and in consideration of
the loan by COMERICA BANK (“Bank”) to TPTX, INC.
(“Borrower”), which loan is made pursuant to a Loan and
Security Agreement between Borrower and Bank dated as of
June 11, 2008, as amended from time to time (the
“Agreement”), and acknowledging that Bank would not
enter into the Agreement without the benefit of this Guaranty, 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. All terms used without definition in
this Guaranty shall have the meaning assigned to them in the
Agreement.
1. If Borrower does not pay
any amount or 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. If there is more than one
guarantor, the obligations hereunder are joint and several, and
whether or not there is more than one guarantor, the obligations
hereunder are independent of the obligations of Borrower and any
other person or entity, 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, any guarantor
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, 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
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 not have any duty
to advise Guarantor of information known to Bank regarding such
condition or any such circumstances. Guarantor waives the benefits
of California Civil Code sections 2809, 2810, 2819, 2845, 2847,
2848, 2849, 2850, 2899 and 3433.
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
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waives that defense and any others
arising from Bank’s election to pursue non-judicial
foreclosure. Without limiting the generality of the foregoing,
Guarantor waives any and all benefits and defenses under California
Code of Civil Procedure Sections 580a, 580b, 580d and 726, to the
extent they are applicable.
Guarantor waives all rights
and defenses arising out of an election of remedies by Bank even
though that election of remedies, such as a nonjudicial foreclosure
with respect to security for a guaranteed obligation, has destroyed
the Guarantor’s rights of subrogation and reimbursement
against Borrower by the operation of Section 580d of the Code
of Civil Procedure or otherwise.
Without limiting the
generality of any other waiver or other provision set forth in this
Guaranty, each undersigned Guarantor waives all rights and defenses
that any such undersigned Guarantor may have because the
Indebtedness is secured by real property. This means, among other
things:
(1) Bank may collect from any
undersigned Guarantor without first foreclosing on any real or
personal property collateral pledged by any Borrower to secure the
Indebtedness.
(2) If Bank forecloses on any
real property collateral pledged by any Borrower to secure the
Indebtedness:
(a) the amount of the
Indebtedness may be reduced only by the price for which that
collateral is sold at the foreclosure sale, even if the collateral
is worth more than the sale price.
(b) Bank may collect from any
undersigned Guarantor even if Bank, by foreclosing on the real
property pledged as collateral, has destroyed any right that the
undersigned Guarantor may have to collect from Borrower.
This is an unconditional and
irrevocable waiver of any rights and defenses each undersigned
Guarantor may have because the Indebtedness is secured by Real
Property. These rights and defenses include, but are not limited
to, any rights or defenses based upon Section 580a, 580b,
580d, or 726 of the California Code of Civil Procedure.
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.
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
reasonable attorneys’ fees 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 the prior written consent of Bank and
Guarantor. 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, together
with any agreements (including without limitation any security
agreements or any pledge agreements) executed in connection with
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
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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 wi
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