GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT ("Guaranty") is given this 18th
day of January, 2000, to the persons and entities
listed on Schedule 1 hereto by CYBERFIN CORP.
("Guarantor"), a Massachusetts corporation, as security
for the obligations of Cambex Corporation, a
Massachusetts corporation (the "Company") described
below. The entities on Schedule 1 are hereinafter
collectively referred to as "Purchasers." Defined terms
used and not otherwise defined in this Guaranty shall
have the meanings ascribed to them in the Purchase
Agreement.
Background
Purchasers have purchased up to an aggregate $2,000,000
in principal amount of the Company's Series 1 Bridge
Notes ("Bridge Notes") issued by the Company pursuant
to a Series 1 Bridge Note Purchase Agreement of even
date herewith (the "Purchase Agreement"). Guarantor is
the holder of 730,228 shares of Common Stock of the
Company, represented by the copied certificates
attached hereto as Exhibit A (collectively the "Pledged
Shares;" the Pledged Shares are sometimes collectively
referred to as "Pledged Securities"). The execution and
delivery of this Agreement was a condition precedent
and a material inducement to Purchasers to purchase the
Bridge Notes guarantied hereby. Guarantor (a
corporation whose sole shareholder is Executive Vice
President and Chief Financial Officer of the Company)
as a stockholder of the Company receives a significant
benefit from the sale to Purchasers of the Bridge Notes
issued by the Company. Guarantor acknowledges that
Purchasers would not have purchased the Bridge Notes
without the execution and delivery of this Guaranty
Agreement. Guarantor acknowledges that because of the
direct benefit to the Guarantor from the proceeds of
the sale of the Bridge Notes by the Company, the
Guarantor agreed to guaranty to the Purchasers the
performance of the obligations of the Company as and to
the extent set forth herein.
Agreement
For and in consideration of the execution and delivery
of the Purchase Agreement by Purchasers and the
purchase by Purchasers of the Bridge Notes, the
Guarantor hereby covenants and agrees with the
Purchaser as follows:
Section 1. Guaranty of Payment.
Guarantor hereby unconditionally and irrevocably
guarantees to Purchasers the full payment and
performance, when due, by acceleration or otherwise, of
all past, present, and future indebtedness,
liabilities, and obligations of the Company to
Purchasers of any kind and description arising in
connection with the Purchase Agreement, the Bridge
Notes, the Stock Pledge Agreement, and this Guaranty
Agreement (collectively, the "Bridge Note Purchase
Documents"), whether direct or indirect, absolute or
contingent, or due or to become due (collectively, the
"Obligations"), it being understood by all the parties
hereto that such guaranty of payment is limited to the
value of the Pledged Securities at such time any action
is taken with respect to the Pledged Securities
pursuant to any Event of Default hereunder and that the
parties hereto have no other recourse to the property
and assets of the Guarantor other than the Pledged
Securities. This Guaranty shall only relate to the
Obligations and not to any other obligations of the
Company which now or hereafter may be held by
Purchasers and their respective successors and assigns.
The guaranty of Guarantor as set forth in this section
is an absolute, continuing, primary, and unconditional
guaranty of payment and not of collection. If a claim
is ever made upon Purchasers for the repayment or
recovery of any amount or amounts received by
Purchasers in payment of any of the Obligations and
Purchasers repay all or part of such amount by reason
of (a) any judgment, decree, or order of any court or
administrative body having jurisdiction over Purchasers
or any of their property, or (b) any settlement or
compromise of any such claim effected by the Purchasers
with any such claimant, including the Company, then in
such event Guarantor agrees that any such judgment,
decree, order, settlement, or compromise shall be
binding upon Guarantor as if against the Guarantor and
in favor of the Purchasers, notwithstanding any
revocation hereof or the cancellation of any promissory
note or other instrument evidencing any of the
Obligations, and Guarantor shall be and remain
obligated to Purchasers hereunder for the amount so
repaid or recovered to the same extent as if such
amount had never originally been received by
Purchasers, such amount to be included in the term
"Obligations."
This Guaranty may be enforced by Purchasers
against Guarantor without the necessity at any time of
Purchasers (a) resorting to or exhausting any other
security or collateral now or hereafter pledged,
assigned, or granted to Purchasers and without the
necessity at any time of Purchasers' having recourse
against the Company on the Bridge Notes, or (b)
exercising any other rights available to them under the
Bridge Note Purchase Documents if neither the Company
nor Guarantor timely performs the obligations of the
Company thereunder.
Section 2. Nature of Obligations.
Guarantor acknowledges and agrees that no change in the
nature or terms of the Obligations or the Bridge Note
Purchase Documents (including any novation), whether by
operation of law or otherwise, including, without
limitation any impairment, modification, change,
release, or limitation of the liability of the Company
or any co-guarantor by reason of the Company's or any
co-guarantor's bankruptcy or insolvency or any
subsequent reorganization, merger, or consolidation of
the Company or any other change in its composition,
nature, personnel, or location shall discharge all or
any part of the liabilities and obligations of
Guarantor pursuant to this Guaranty. It is the purpose
and intent of Guarantor and Purchasers that the
covenants, agreements, and all liabilities and
obligations of Guarantor hereunder are absolute,
unconditional, and irrevocable under any and all
circumstances, including, without limitation, the
invalidity or unenforceability of any or all of the
Bridge Note Purchase Documents. Without limiting the
generality of the foregoing, Guarantor agrees that
until each and every one of the covenants and
agreements of this Guaranty are fully performed, and
all of the obligations hereunder are paid, performed,
satisfied, and discharged in full, Guarantor's
undertakings hereunder and the Pledged Securities shall
not be released, in whole or in part, by any action or
thing which might, but for this paragraph of this
Guaranty, be deemed a legal or equitable discharge of a
surety or guarantor, or by reason of any waiver,
omission of Purchasers, or their failure to proceed
promptly or otherwise, or by reason of any action taken
or omitted by Purchasers, whether or not such action or
failure to act varies or increases the risk of, or
affects the rights or remedies of Guarantor, including,
without limitation, the failure of Purchasers to
perfect, or to continue the perfection of, any lien or
security interest in any security or any delay by
Purchasers in perfecting any such lien or security
interest, or by reason of any further dealings between
the Company and Purchasers, or any other guarantor or
surety; and Guarantor hereby expressly waives and
surrenders any defense to its liability hereunder based
upon, and shall be deemed to have consented to, any of
the foregoing acts, omissions, things, agreements, or
waivers. Without limiting the generality of the
foregoing, Guarantor hereby gives its consent for the
Purchaser to do any one or more of the following
without in any manner affecting, impairing, limiting,
modifying, or releasing any of the obligations of
Guarantor under this Agreement and without notice to or
consent of Guarantor: (a) exchange, compromise, or
surrender the whole or any part of any security now or
hereafter held for the Obligations; (b) exchange,
extend, or renew the time or place of payment of the
Obligations in whole or in part, to a time certain or
otherwise whether or not longer than the original
period, or withdraw credit or time to pay; (c) extend
or change the terms of performance of any other
obligations of the Company under the Bridge Note
Purchase Documents; (d) modify, amend, or waive any of
the provisions of the Bridge Note Purchase Documents;
(e) release or grant indulgences to the Company, any co-
guarantor, or any party to the Bridge Note Purchase
Documents; (f) receive property or other security as
collateral for the Obligations; (g) fail to exercise
due diligence or omit to enforce any right, power, or
privilege under the Bridge Note Purchase Documents; and
(h) apply any payment received by Purchasers from the
Company of, or on account of, the Obligations, in any
manner Purchasers elect.
Section 3. Waiver of Rights.
Guarantor expressly waives: (a) notice of the execution
and delivery of the Bridge Note Purchase Documents and
creation of the Obligations; (b) notice of acceptance
of this Guaranty by Purchasers and of all extensions of
credit to the Company by Purchasers; (c) presentment
and demand for payment of any of the Obligations; (d)
protest and notice of dishonor or of default or
nonpayment to Guarantor or to any other party with
respect to the Obligations or with respect to any
security therefor; (e) notice of the Purchaser's
obtaining, amending, substituting for, releasing,
waiving, or modifying any security interest, liens, or
encumbrances now or hereafter securing the Obligations,
or subordinating, compromising, discharging, or
releasing such security interests, liens, or
encumbrances by Purchasers and any other notices
whatever; (f) demand for payment under this Guaranty;
and (g) all rights of subrogation, indemnification,
contribution, and reimbursement from the Company, all
rights to enforce any remedy Purchasers may have
against the Company, and any benefit of, or right to
participate in, any collateral or security now or
hereinafter held by Purchasers in respect of the
Obligations, until the Company shall have paid in full
all Bridge Notes issued by the Company pursuant to (i)
the Bridge Note Purchase Agreement of even date
herewith, as the same may hereafter be amended,
extended, or modified.
Section 4. Term of Guaranty; Warranties.
This Guaranty shall continue in full force and effect
until the Obligations are fully paid, performed, and
discharged. The Obligations shall be regarded as
discharged for this purpose upon the first to occur of
either full and final payment of the Obligations due
under or in connection with the Bridge Notes or
conversion thereof pursuant to their terms, plus
discharge of any expenses payable by Borrower to or for
the benefit of Purchasers outstanding at that time.
Guarantor warrants and represents to Purchasers that
(a) Guarantor will directly benefit from the financial
accommodations being extended to the Company by
Purchasers; (b) this Guaranty is binding upon and
enforceable against Guarantor, in accordance with its
terms; (c) the execution and delivery of this Guaranty
do not violate or constitute a breach of any agreement
to which any Guarantor is a party or of any applicable
laws; and (d) there is no litigation, claim, action, or
proceeding pending, or, to the best knowledge of
Guarantor, threatened against any Guarantor that would
materially adversely affect the financial condition of
any Guarantor or its ability to fulfill its obligations
hereunder.
Section 5. Attorneys' Fees and Costs of Collection.
If at any time or times hereafter Purchasers employ
counsel to pursue collection, to intervene, to sue for
enforcement of, or take any other action with respect
to the terms hereof or of the Bridge Notes, then in
such event, all of the reasonable attorneys' fees and
disbursements relating thereto and any other fees and
disbursements incurred by or on behalf of the
Purchaser, including costs and legal fees in any appeal
due to the failure of the Company to pay the
Obligations when due and payable, shall be an
additional liability of Guarantor to Purchasers,
payable on demand.
Section 6. Events of Default.
The occurrence of any one or more of the following
events shall constitute an event of default (an "Event
of Default") under this Guaranty: (a) the failure of a
Guarantor to perform, observe, or comply with any of
the provisions of this Guaranty, including, without
limitation, the payment provisions; (b) the occurrence
and continuance of an Event of Default (as defined
therein) under any of the Bridge Note Purchase
Documents; (c) the receipt by Purchasers of any
materially false, inaccurate, or misleading information
contained in any financial statement, application,
schedule, report, or any other document given by or on
behalf of Guarantor in connection with this Guaranty;
(d) the entry of any order for relief under any
provision of Title 11 of the United States Code
(entitled "Bankruptcy"), as amended, or under any
similar federal or state statute in any bankruptcy case
filed by or against the Guarantor; or (e) the
appointment of a receiver or custodian for, the making
of a general assignment for the benefit of creditors
by, or the insolvency of a Guarantor.
Upon the occurrence and during the continuance of
an Event of Default under this Guaranty, Purchasers
may, at their option, declare an amount equal to any or
all of the then unpaid balance of the Obligations
(whether then due or not) to be immediately due and
payable by Guarantor, and Guarantor shall on demand pay
the same to Purchasers in immediately available funds,
in lawful money of the United States of America.
Section 7. Guaranty Secured.
The joint and several obligations of the Guarantor
hereunder are secured by a Stock Pledge Agreement of
even date herewith among the Company, Guarantor, and
Purchasers, and Purchasers are entitled to all of the
rights and privileges thereof.
Section 8. Cumulative Rights.
All rights of Purchasers hereunder or otherwise arising
under any of the Bridge Note Purchase Documents are
separate and cumulative and may be pursued separately,
successively, or concurrently, or not pursued, without
affecting or limiting any other right of Purchasers and
without affecting or impairing the liability of
Guarantor.
Section 9. Assignment.
Purchasers may, without notice to or consent of
Guarantor and subject to restrictions on transfer in
the Bridge Note Purchase Agreement, sell, assign, or
transfer to any person or persons all or any part of
the Obligations, and each such person or persons shall
have the right to enforce this Guaranty as fully as
Purchasers, provided that the Purchaser shall continue
to have the unimpaired right prior and superior to that
of any such assignee, transferee, or holder to enforce
this Guaranty as to so much of the Obligations that it
has not sold, assigned, or transferred.
Section 10. Successors and Assigns.
This Guaranty shall bind Guarantor and its legal
representatives, successors, and assigns and shall
inure to the benefit of, and be enforceable by,
Purchasers and their heirs, executors, administrators,
legal representatives, successors and assigns,
including, without limitation, each and every person
who shall from time to time be or become the holder of
any of the Bridge Note Purchase Documents.
Section 11. Notices.
Notices under this Guaranty shall be given in writing
and shall be deemed served at the earlier of (a)
receipt, (b) three (3) days after deposit in the United
States mail, sent certified or registered mail, return
receipt requested, postage prepaid, or (c) upon receipt
by facsimile machine, and addressed to the parties at
the following addresses, or at such other addresses as
the parties shall designate in writing:
If to the Guarantor:
Cyberfin Corporation
c/o Cambex Corporation
360 Second Avenue
Waltham, Massachusetts 02451
Attn: Peter Kruy
Tel: (781) 890-6000
Fax: (781) 890-2899
With a copy to:
Ropes & Gray
One International Place
Boston, Massachusetts 02110
Attention: John E. Beard
Telephone: (617) 951-7411
Facsimile: (617) 951-7050
If to Purchasers, at the address of each
Purchaser on Schedule 1 hereto, under the caption
"Purchaser's name and address" with a copy to such
Purchaser's legal counsel, at the address set
forth adjacent to the address of such Purchaser on
Schedule 1 hereto, under the caption "Purchaser's
Counsel's name and address".
Personal delivery to a party or to any officer,
partner, agent, or employee of such party at its
address herein shall constitute receipt. Rejection or
other refusal to accept or inability to deliver because
of changed address of which no notice has been received
also shall constitute receipt.
Section 12. Amendment.
This Guaranty may be terminated, amended, supplemented,
waived, released or modified only by an instrument in
writing signed by the party against whom the
enforcement of the termination, amendment,
supplementation, waiver, release, or modification is
sought.
Section 13. Usury.
Notwithstanding any other provisions herein contained,
no provision of this Guaranty shall require or permit
the collection from Guarantor of interest in excess of
the maximum rate or amount that Guarantor may be
required or permitted to pay pursuant to any applicable
law.
Section 14. Governing Law.
This Guaranty shall be deemed to be a contract made
under, and for all purposes shall be construed and
interpreted in accordance with the internal laws of the
Commonwealth of Massachusetts without giving effect to
the principles or rules governing conflict of laws.
The parties agree that any action brought by one party
against the other shall be in any appropriate state
court or any federal Court located in the County where
the party against whom the action is brought is
principally located, and both parties agree that such
courts shall have exclusive jurisdiction of such case
or controversy arising under or in connection with this
Agreement and shall be a proper forum in which to
adjudicate such case or controversy. The parties
consent to the jurisdiction of such courts.
Section 15. Multiple Counterparts; Pronouns; Captions;
Severability.
This Guaranty may be executed in multiple counterparts,
each of which shall be deemed an original but all of
which shall constitute but one and the same document.
Captions are for reference only and in no way limit the
terms of this Guaranty. Wherever possible, each
provision of this Guaranty shall be interpreted in such
manner as to be effective and valid under applicable
law, but invalidation of any one or more of the
provisions of this Guaranty shall in no way affect any
of the other provisions hereof, which shall remain in
full force and effect.
IN WITNESS WHEREOF, Guarantor has executed this
Guaranty under seal as of the day and year first above
written.
[Signatures on following pages]
COMPANY SIGNATURE PAGE
TO
GUARANTY AGREEMENT
THE COMPANY:
CAMBEX CORPORATION
By: /s/ Peter Kruy
Peter Kruy
[Guarantor signatures on following page]
GUARANTOR SIGNATURE PAGE
TO
GUARANTY AGREEMENT
CYBERFIN CORPORATION
By: /s/ Peter Kruy
Peter Kruy,
President
SCHEDULE 1
TO
GUARANTY AGREEMENT
Schedule of Purchasers
Purchaser Name and Purchaser's Counsel's Principal Amount
Address Name and Address Purchased
Purchaser Name Purchaser's Legal $
Counsel
Address and
Facsimile Number
SovCap Equity $1,600,000
Partners, Ltd.
Correllus $250,000
International Ltd.
Arab Commerce Bank, $150,000
Ltd.
Total $2,000,000