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Exhibit 10.9
UNCONDITIONAL CONTINUING GUARANTY
(Loan Agreement)
THIS UNCONDITIONAL CONTINUING GUARANTY ("Guaranty") is made and entered into as
of January 31, 1996, for the benefit of DVI Business Credit Receivables Corp.
("Lender"), whose principal place of business is located at 000 Xxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000, by Xxxxxx X. Xxxxx, M.D., an individual
("Individual Guarantor") whose principal place of business is located at Xxxx
Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx Xxxxxxxxxx 00000.
RECITALS
A. Individual Guarantor is the chief executive officer of
American Shared Hospital Services, a California corporation ("Guarantor"), and
owns twenty-five percent (25%) or more of the outstanding shares of Guarantor's
common stock.
B. Guarantor directly or indirectly owns all of the ownership
interests in American Shared-CuraCare, a California general partnership, and
CuraCare, Inc., a Delaware corporation ("collectively and individually,
"Borrower").
AGREEMENT
1. Guaranty. In order to induce Lender, and in consideration
thereof, to enter into that certain Loan and Security Agreement dated as of the
date hereof (the "Agreement") with Borrower, Guarantor and Individual Guarantor
and any future agreements with Borrower, Individual Guarantor unconditionally,
absolutely and irrevocably guarantees and promises to Lender to pay, perform
and discharge, any and all present and future indebtedness, liabilities and
obligations (collectively "Obligations") of Borrower to Lender, including but
not limited to the repayment to Lender of all sums presently due and owing and
of all sums that shall in the future become due and owing from Borrower whether
arising under the Agreement or otherwise.
2. Obligations. The Obligations of Borrower include any and all
loans, advances, indebtedness and other obligations owed by Borrower to Lender
of every description whether now existing or hereafter arising (including those
owed to others by Borrower and acquired by Lender by purchase, assignment or
otherwise) and include Obligations that are: (a) direct or indirect; (b) fixed
or contingent; (c) primary or as guarantor or surety; (d) liquidated or
unliquidated; (e) matured or unmatured; (f) acquired by pledge, assignment,
security interest or purchase; (g) secured or unsecured; (h) primary or
secondary; (i) joint, several or joint and several; (j) represented by letters
of credit now or hereafter issued by Lender for the benefit of or at the
request of Borrower; and (k) all of Lender's expenses, included but not limited
to (i) all reasonable costs or expenses, including without limitation, taxes
and insurance premiums, required to be paid by Borrower under the Agreement
that are paid or advanced by Lender, (ii) all filing,
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recording, publication and search fees paid or incurred by Lender in connection
with Lender's transactions with Borrower, (iii) all costs and expenses incurred
by Lender to correct any Event of Default (as defined in the Agreement) or
enforce any provision of the Agreement, or in gaining possession of,
maintaining, handling, preserving, storing, shipping, selling, preparing for
sale or advertising to sell any security for the Obligations, whether or not a
sale is consummated, after the occurrence of an Event of Default (iv) all costs
and expenses of suit incurred by Lender and enforcing or defending the
Agreement or any portion thereof, and (v) all reasonable Lender's attorney's
fees and expenses incurred in advising, structuring, drafting, reviewing,
negotiating, amending, terminating, enforcing, defending or concerning the
Agreement or any portion thereof, irrespective of whether suit is brought, and
includes each Borrower's prompt, full and faithful performance, observance and
discharge of each and every term, condition, agreement, representation,
warranty, undertaking and provision to be performed by Borrower under the
Agreement.
3. Attorneys' Fees. Individual Guarantor agrees to pay Lender
the costs and expenses of the enforcement of this Guaranty, including
attorneys' fees.
4. Waivers.
(a) Scope of Risk Defenses. Lender may at any time and
from time to time, without notice to, or the consent of, Individual Guarantor,
and without affecting or impairing the obligation of Individual Guarantor
hereunder, do any of the following: (i) renew or extend any Obligations of
Borrower, of its customers, of any co-guarantors (whether hereunder or under a
separate instrument) or of any other party at any time directly or contingently
liable for the payment of any of the Obligations; (ii) accept partial payments
of the Obligations; (iii) settle, release (by operation of law or otherwise),
compound, compromise, collect or liquidate any of the Obligations and the
security therefor in any manner; (iv) consent to the transfer or sale of
security, or (v) bid and purchase at any sale of any security.
(b) Primary Obligation Defenses. Individual Guarantor
waives any rights to require Lender to (i) proceed against Borrower or any
other party; (ii) proceed against or exhaust any security held from Borrower;
or (iii) pursue any other remedy in Lender's power whatsoever. Individual
Guarantor waives any defense based on or arising out of any defense of Borrower
other than payment in full of the Obligations, including without limitation any
defense based on or arising out of any disability of Borrower, or the
unenforceability of the Obligations or any part thereof from any cause, or the
cessation from any cause of the liability of Borrower.
(c) Commercially Reasonable Sale and Anti-deficiency
Laws. Lender may, at Lender's election, foreclose on any security held by
Lender by one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially
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reasonable, or exercise any other right or remedy Lender may have against
Borrower, or any security, without affecting or impairing in any way the
liability of Individual Guarantor except to the extent the Obligations have
been paid. Individual Guarantor waives any defense arising out of any such
election by Lender, even though such election operates to impair or extinguish
any right of reimbursement or subrogation or other right or remedy of Lender
against Borrower or any security. In the absence of agreeing to the waivers
contained in this subsection 4(c), Individual Guarantor may have the right of
subrogation or reimbursement against a Borrower. For example, if Lender elects
to foreclose, by nonjudicial sale, any deeds of trust securing any indebtedness
of Borrower to Lender, causing Individual Guarantor to lose any such rights or
create defenses to enforcement of this Guaranty, Individual Guarantor gives up
any such potential defenses by agreeing to these waivers. Individual Guarantor
also expressly waives any defense or benefit that may be derived from
California Code of Civil Procedure Section Section 580a, 580d or 726 or
comparable provisions of the laws of any other state and all securityship
defenses it would otherwise under California law or under the laws of any other
state.
(d) Disclosure Defenses. Individual Guarantor expressly
waives all set-offs and counterclaims and waives all notices, protests and
demands including, but not limited to, notice of default in payment or in the
performance or observance of any of the terms, provisions, covenants or
conditions contained in any agreement between Lender and any Borrower.
(e) Borrowers' Defenses On Underlying Obligations.
Individual Guarantor expressly agrees that the validity of this Guaranty and
the obligations of Individual Guarantor shall not be terminated, affected or
impaired by reason of the waiving, delaying, exercising or nonexercising, of
any of Lender's rights against any Borrower pursuant to any of the Agreement
against Individual Guarantor by reason of this Guaranty or as a result of the
substitution, release, repossession, sale, disposition or destruction of any
collateral securing the Obligations.
(f) Impairment of Collateral Defenses. Individual
Guarantor shall not be released or discharged, either in whole or in part, by
Lender's failure or delay to perfect or continue the perfection of any security
interest in any property which secures the Obligations of any Borrower or
Individual Guarantor to Lender, or to protect the property covered by such
security interest.
(g) Individual Guarantor's Right to Revoke. Individual
Guarantor expressly waives the right to revoke or terminate this continuing
Guaranty, including any statutory right of revocation under California Civil
Code Section 2815, or comparable provisions of the laws of any other state.
5. Financial Condition of Borrower. Individual Guarantor assumes
all responsibility for being and keeping informed of Borrower's financial
condition and assets and of all other
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circumstances bearing upon the risk of nonpayment of the Obligations and the
nature, scope and extent of the risks which Individual Guarantor assumes and
incurs hereunder, and agrees that Lender shall have no duty to advise
Individual Guarantor of information known to it regarding such circumstances or
risks.
6. Individual Guarantor Not Entitled To Subrogation. No payment
by Individual Guarantor hereunder shall entitle Individual Guarantor, by
subrogation, indemnity, reimbursement, contribution or otherwise, to any
payment by Borrower or to any subrogation, indemnity, reimbursement or
contribution out of the property of Borrower until the Obligations have been
paid in full.
7. Recovery of Preferences. If a claim is made upon Lender at
any time for repayment or recovery of any amount(s) or other value received by
Lender, from any source, in payment of or on account of any of the Obligations
of Borrower guaranteed hereunder and Lender repays or otherwise becomes liable
for all or any part of such claim by reason of (a) any judgment, decree or
order of any court or administrative body having competent jurisdiction, or (b)
any settlement or compromise of any such claim, Individual Guarantor shall
remain liable to Lender hereunder for the amount so repaid or for which Lender
is otherwise liable to the same extent as if such amount(s) had never been
received by Lender, notwithstanding any termination hereof or the termination
of any agreements evidencing any of the Obligations of Borrower.
8. Events Of Default. The occurrence of any Event of Default
under the Agreement shall constitute an event of default under this Guaranty
and upon the occurrence thereof and at Lender's election without notice or
demand, Individual Guarantor's obligations hereunder shall become due, payable
and enforceable against Individual Guarantor, whether or not the Obligations
are then due and payable.
9. Binding On Successors and Assigns. This Guaranty shall bind
Individual Guarantor's legal representatives, successors and assigns, and shall
inure to the benefit of Lender's successors and assigns, including, but not
limited to, any party to whom Lender may assign the Agreement or any other
agreements, and Individual Guarantor hereby waives notice of any such
assignment. All of Lender's rights are cumulative and not alternative.
10. Miscellaneous. This Guaranty contains the entire agreement of
the parties hereto and no other oral or written agreement exists. This
Guaranty may not be amended or modified except by a writing signed by Lender
and Individual Guarantor. This Guaranty is a valid and subsisting legal
instrument and no provision which may be deemed unenforceable shall in any way
invalidate any other provision or provisions, all of which shall remain in full
force and effect. No invalidity, irregularity or unenforceability of all or
any part of the Obligations guaranteed nor any other circumstance which might
be a legal defense of a guarantor shall affect, impair, or be a defense to this
Guaranty. Each of the persons who has signed this or any other Guaranty has
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unconditionally delivered it to Lender, and the failure to sign this or any
other Guaranty by any other person shall not discharge the liability of any
signer. The unconditional liability of the signer applies whether the signer
is jointly and severally liable for the entire amount of the debt, or for only
a pro-rata portion.
11. CHOICE OF LAW. THIS GUARANTY SHALL IN ALL RESPECTS BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
PENNSYLVANIA, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE.
INDIVIDUAL GUARANTOR:
/s/ Xxxxxx X. Xxxxx, M.D.
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XXXXXX X. XXXXX, M.D.
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