Exhibit 10.2


 


UNCONDITIONAL AND CONTINUING GUARANTY


 


WHEREAS,
the undersigned, Steven B. Rash and Ira Goldknopf (individually, a “Guarantor,”
collectively, the “Guarantors”), seek to induce Trinity Financing Investments
Corporation (“Lender”), with an address at 300 E. 55th Street, Apt.
14D, New York, New York 10022, to make a loan to Power 3 Medical Products, Inc.,
a New York corporation (“Borrower”); and


 


WHEREAS,
the execution and delivery by Guarantors of this Unconditional and Continuing
Guaranty (the “Guaranty”) is a condition precedent to the making of a loan by
Lender to the Borrower; and


 


WHEREAS,
each of the Guarantors is a shareholder of Borrower and will derive substantial
benefits from such loan;


 


NOW,
THEREFORE, in consideration of the premises and of other good and valuable
consideration, the receipt of which is hereby acknowledged, each of the
Guarantors hereby covenants and agrees as follows:


 


1.                                       Guaranty.  Each Guarantor hereby absolutely, irrevocably
and unconditionally guarantees to Lender the full and prompt performance by
Borrower of all its covenants and obligations under a certain promissory note
in the original principal amount of $150,000 between Lender and Borrower of
even date herewith (the “Promissory Note”) and the punctual and full payment
and performance when due, whether at the stated date or dates for such payment,
by acceleration or otherwise, of all indebtedness, liabilities and obligations
of Borrower to Lender under the Note (all of the foregoing are hereinafter
sometimes referred to as the “Obligations”).


 


2.                                       Payment
by Guarantor; Set-Off.  In the event
Lender makes demand or upon the occurrence of any Event of Default (as defined
in the Promissory Note) or a default by Borrower under any of the Obligations
and/or the failure of Borrower punctually to pay or perform any of the
Obligations when due, each Guarantor hereby agrees to make such payment and/or
performance punctually when and as the same shall become due and payable,
whether at maturity, by acceleration or otherwise.  Each such payment shall be made to Lender at
its address set forth above (or at such other address as Lender shall specify
by written notice to each Guarantor), in immediately available funds.


 


3.                                       Obligation
of Guarantors Unconditional.  Each
Guarantor hereby agrees that:


 


(a)                                  Its
liability hereunder is unconditional, irrespective of:  (i) the legality, validity or
enforceability of the Obligations; (ii) the legality, validity or
enforceability of any security interest, mortgage or pledge granted by Borrower
or any Guarantor as collateral for the Obligations, any guarantee, suretyship,
letter of credit or reimbursement agreement issued by any person secondarily or
otherwise liable for any of the Obligations, any security interest, mortgage,
or pledge granted


 





















 


by any
person secondarily or otherwise liable for any of the Obligations, or any other
device providing collateral security for payment of any of the Obligations, all
of the hereinabove referenced devices being referred to herein as the “Collateral
Security”; (iii) the absence of any action or effort by Lender to either
resort to, enforce or exhaust its remedies under or against the Obligations
and/or the Collateral Security; (iv) the waiver or consent by Lender with
respect to any provision in the documentation of the Obligations or the
Collateral Security; or (v) the recovery of any judgment against Borrower
or any action to enforce such judgment or any other circumstance which might,
absent the unconditional nature of this Guaranty, constitute a legal or
equitable discharge or defense of either Guarantor.


 


(b)                                 Lender
may at any time, or from time to time, in Lender’s sole discretion:  (i) change, alter, renew, continue,
extend and/or accelerate the time of payment of, all or any of the Obligations,
or any part or parts thereof or any renewal or renewals thereof; (ii) extend
credit to Borrower whether or not any Event of Default, or any event which with
notice or lapse of time, or both, would constitute an Event of Default, has
occurred under the Promissory Note or any other agreement between Lender and
Borrower; (iii) replace any existing Obligation and the documentation
therefor with an amended and restated Obligation and the documentation
therefor; (iv) sell, exchange, release, compromise and/or surrender all or
any of the property which is the subject of the Collateral Security (the “Collateral”),
or any part or parts thereof, with respect to which Lender may now or hereafter
have an interest; (v) sell and/or purchase any or all of the Collateral at
public or private sale, or at any broker’s board, and after deducting all costs
and expenses of every kind for collection, sale and/or delivery, apply the
proceeds of any such sale or sales against any of the Obligations; or (vi) settle
or compromise any or all of the Obligations with Borrower, and/or any other
person or persons liable thereon; all in such manner and upon such terms as
Lender may see fit and without notice to or consent from any Guarantor, who
hereby agrees to be and remain bound upon this Guaranty, irrespective of the
effect upon the existence or status of the Obligations or the Collateral
Security and notwithstanding any such change, alteration, renewal, continuance,
extension, acceleration, sale, exchange, release, compromise, surrender,
application, settlement, subordination or any other action hereinabove
mentioned.


 


(c)                                  The
liability of Guarantors will not be discharged except by complete and final
payment and performance of the Obligations.


 


(d)                                 The
liability of each Guarantor under this Guaranty shall be reinstated with
respect to any amount paid to Lender by Borrower which is thereafter required
to be returned to Borrower or any trustee, receiver or other representative of
or for Borrower, upon or by reason of the bankruptcy, insolvency,
reorganization, or dissolution of Borrower, or for any other reason, all as
though such amount had never been paid by Borrower.


 


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(e)                                  This
is a guarantee of payment and not merely of collection.


 


4.                                       Waiver
of Subrogation.  No payment by any
Guarantor pursuant to any provision of this Guaranty or other satisfaction of
any Guarantor’s liabilities hereunder shall entitle either Guarantor, by
subrogation to the rights of Lender or otherwise, to any payment from Borrower,
from the proceeds of the property of Borrower or from any Collateral
Security.  Each Guarantor hereby releases
and waives any and all rights to, and claims for, subrogation, indemnity,
reimbursement and/or contribution which either Guarantor may now or hereafter
have against Borrower by reason of payments made by either Guarantor under this
Guaranty.


 


5.                                       Waivers.  Each Guarantor hereby expressly waives:  (a) notice of the acceptance of this
Guaranty; (b) notice of the making of the loan evidenced y the promissory
Note and of any change in the rate at which any of the Obligations are accruing
interest or fees; (c) diligence, presentment and demand for payment of any
of the Obligations; (d) protest, notice of protest, notice of dishonor and
notice of nonpayment or default to either Guarantor or to any other person with
respect to the Obligations; (e) filings of claims or proof of claims with
a court in the event of any bankruptcy or insolvency proceedings as to which
Borrower or any person secondarily or otherwise liable for any of the
Obligations is subject; (f) any right to require a proceeding first
against Borrower or any other person; (g) any demand for payment under
this Guaranty; (h) any defenses available to a surety under law; and (i) all
other legally waivable notices to which either Guarantor might otherwise be
entitled.


 


6.                                       Insolvency
of Borrower.  In the event that any
proceeding is commenced by or against Borrower under the Federal Bankruptcy
Code or any insolvency or other debtor relief laws, as now or hereafter in
effect, or for the appointment of a receiver for Borrower or any of its
property, or if Borrower shall make an assignment for the benefit of creditors
or shall discontinue business or becomes unable to pay or admits in writing its
inability to pay its debts as they come due, all Obligations of Borrower shall,
for the purpose of this Guaranty, become immediately due and payable.


 


7.                                       Omitted


 


8.                                       Termination
of Guaranty.  This Guaranty is a
continuing Guaranty and shall remain in full force and effect irrespective of
any interruptions in the business relations of Borrower with Lender; provided,
however, that either may, by notice in writing actually received and
acknowledged by Lender, terminate this Guaranty with respect to all new
Obligations incurred or contracted by Borrower after the date on which such
notice is so received, but this Guaranty shall remain in full force and effect
as to all Obligations existing at the date of receipt of such notice and to all
renewals and extensions thereof until the full payment thereof and all interest
and fees thereon to Lender.


 


9.                                       Consent
to Jurisdiction; Waiver of Jury Trial. 
Each Guarantor hereby submits to the jurisdiction of the courts of the
State of New York and the United States District Court for the Southern
District of New York, as well as to the jurisdiction of all courts from which
an


 


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appeal may be taken from
the aforesaid courts, for the purpose of any suit, action or other proceeding
arising out of any obligations under or with respect to this Guaranty, and
expressly waives any and all objections Guarantor may have as to venue in any
such courts.  EACH GUARANTOR WAIVES TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT ON ANY MATTER
WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ANY ACTION, PROCEEDING OR
COUNTERCLAIM) ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS GUARANTY.  No party to this Guaranty, including but
not limited to any assignee or successor of a party, shall seek a jury
trial in any lawsuit, proceeding, counterclaim, or any other litigation
procedure based upon, or arising out of, this Guaranty, any related
instruments, any collateral or the dealings or the relationship between the
parties.  No party will seek to
consolidate any such action, in which a jury trial has been waived, with any
other action in which a jury trial cannot be or has not been waived.  THE PROVISIONS OF THIS PARAGRAPH HAVE BEEN
FULLY DISCUSSED BY THE PARTIES HERETO, AND THESE PROVISIONS SHALL BE SUBJECT TO
NO EXCEPTIONS.  NO PARTY HAS IN ANY WAY
AGREED WITH OR REPRESENTED TO ANY OTHER PARTY THAT THE PROVISIONS OF THIS
PARAGRAPH WILL NOT BE FULLY ENFORCED IN ALL INSTANCES.


 


10.                                 Miscellaneous.


 


(a)                                  Notices.  All notices, requests, demands or other
communications (including telecommunications) to or from either Guarantor or
Lender shall be in writing and shall be deemed to have been duly given or made
when delivered (i) to Lender, at its address as set forth above,
Attention:  Trinity Bui,  and (ii) to either Guarantor, at the
address of the Borrower as set forth in the Promissory Note, or as to either
party, at such other address or telecopier number as such party may hereafter
specify to the party in writing.  Written
notices if delivered by hand or telecopier shall be deemed delivered upon
receipt acknowledged in written form by the recipient or five (5) business
days (business day being defined as a day, other than a Saturday or Sunday, on
which the banks in Massachusetts are authorized to be open for business) after
mailing or sending, and all mailed notices shall be by registered or certified
mail, postage prepaid.  Notices provided
by any other means shall be deemed delivered upon receipt acknowledged in
writing.


 


(b)                                 Expenses.  Guarantor agrees that, with or without notice
to or demand upon Borrower or Guarantor, Guarantor will pay or reimburse Lender
(to the extent reimbursement has not already been made by Borrower) for all
expenses, including reasonable fees and expenses of its legal counsel, incurred
by Lender in connection with any of the Obligations or the collection thereof
and the enforcement of any provisions of this Guaranty.


 


(c)                                  Continuing
Guaranty.  This is a continuing
guaranty and shall remain in full force and effect and be binding upon
Guarantor and its successors and assigns until payment in full to Lender of all
the Obligations.


 


(d)                                 Assignments.  Lender may assign its rights and powers under
this Guaranty with respect to all or any of the Obligations, and, in the event
of such assignment, the


 


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assignee of such rights
and powers, to the extent of such assignment, shall have the same rights and
remedies as if originally named herein in the place of its assignor.


 


(e)                                  Waiver
of Rights.  No delay on the part of
Lender in exercising any rights hereunder or failure to exercise the same shall
operate as a waiver of such rights; no notice to or demand on either Guarantor
shall be deemed to be a waiver of the obligation of either Guarantor or of the
right of Lender to take other or further action without notice or demand as
provided herein.  In any event no
modification or waiver of the provisions hereof shall be effective unless in
writing nor shall any waiver be applicable except with respect to the specific
person to whom and in the specific instance or matter for which given.


 


(f)                                    Cumulative
Remedies.  The obligations of each
Guarantor hereunder are in addition to and not in substitution for any other
obligations or security interests now or hereafter held by Lender and shall not
operate as a merger of any contract or debt or suspend the fulfillment of, or
affect the rights, remedies or powers of Lender in respect of, any obligation
or other security interest held by it for the fulfillment thereof.  The rights and remedies provided herein and
in any other instrument are cumulative and not exclusive of any other rights or
remedies provided by law.


 


(g)                                 Governing
Law.  This Guaranty shall be governed
by, determined and construed in accordance with the laws of the State of New
York without regards to the choice of law principles thereof.


 


(h)                                 Severability.  If any part of this Guaranty is contrary to,
prohibited by or deemed invalid under the applicable law or regulations of any
jurisdiction, such provision shall, as to such jurisdiction, be inapplicable
and deemed omitted to the extent so contrary, prohibited or invalid, but the
remainder hereof shall not be invalidated thereby and shall be given full force
and effect so far as possible, and any such prohibition or invalidity in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.


 


(i)                                     References
to Lender and Guarantor.  Each
reference herein to Lender shall be deemed to include its successors and
assigns, and each reference to Guarantor and any pronouns referring thereto as
used herein shall be construed in the masculine, feminine, neuter, singular, or
plural as the context may require and shall be deemed to include the heirs,
executors, administrators, legal representatives, successors and assigns of
Guarantor, all of whom shall be bound by the provisions hereof.


 


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IN
WITNESS WHEREOF, each Guarantor has executed and delivered this Guaranty as of
the       day of November, 2005.


 


WITNESS:


 


	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Steven B. Rash

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Ira Goldknopf

  



 


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