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EXHIBIT 10.9
UNCONDITIONAL CONTINUING GUARANTY
(Loan Agreement)
THIS UNCONDITIONAL CONTINUING GUARANTY ("Guaranty") is made and entered into as
of May 17, 1995, for the benefit of __________________________ ("Lender"),
whose principal place of business is located at 0000 XxxXxxxxx Xxx., Xxxxx 000,
Xxxxxxx Xxxxx, Xxxxxxxxxx 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 owned 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, 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,
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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 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
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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 Sections 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 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,
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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
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 and Forum. THIS GUARANTY SHALL IN ALL RESPECTS
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE AND
INDIVIDUAL GUARANTOR AGREES TO SUBMIT TO THE JURISDICTION OF THE STATE AND/OR
FEDERAL COURTS IN THE STATE OF CALIFORNIA.
INDIVIDUAL GUARANTOR:
/s/ XXXXXX X. XXXXX
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XXXXXX X. XXXXX, M.D.
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