COAST BUSINESS CREDIT
Continuing Guaranty
Borrower: Comtel Electronics, Inc.
Guarantors: Palomar Medical Technologies, Inc.
Palomar Electronics Corporation
Date: December 5, 1996
THIS CONTINUING GUARANTY is executed by the above-named guarantors Oointly and
severally, the "Guarantor"), as of the above date, in favor of COAST BUSINESS
CREDIT, a division of Southern Pacific Thrift & Loan Association ("Coast"), a
California corporation, with offices at 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx X I 11,
Xxx Xxxxxxx, Xxxxxxxxxx 00000, with respect to the Indebtedness of the
above-named borrower Oointly and severally, the "Borrower").
1. CONTINUING GUARANTY. Guarantor hereby debtor in possession under the federal Bankruptcy Code,
unconditionally guarantees and promises to pay on and any trustee, custodian or receiver for Borrower or any
demand to Coast, at the address indicated above, or at of its assets, should Borrower hereafter become the
such other address as Coast may direct, in lawful money subject of any bankruptcy or insolvency proceeding,
of the United States, and to perform for the benefit of voluntary or involuntary; and all indebtedness, liabilities
Coast, all Indebtedness of Borrower now or hereafter and obligations incurred by any such person shall be
-owing to or held by Coast. As used herein, the term included in the Indebtedness guaranteed hereby. This
"Indebtedness" is used in its most comprehensive sense Guaranty is given in consideration for credit and other
and shall mean and include without limitation: (a) any financial accommodations which may, from time to time,
and all debts, duties, obligations, liabilities, be given by Coast to Borrower in Coast's sole discretion,
representations, warranties and guaranties of Borrower or but Guarantor acknowledges and agrees that acceptance
any one or more of them, heretofore, now, or hereafter by Coast of this Guaranty shall not constitute a
made, incurred, or created, whether directly to Coast or commitment of any kind by Coast to extend such credit or
acquired by Coast by assignment or otherwise, or held by other financial accommodation to Borrower or to permit
Coast on behalf of others, however arising, whether Borrower to incur Indebtedness to Coast. All sums due
voluntary or involuntary, due or not due, absolute or under this Guaranty shall bear interest from the date due
contingent, liquidated or unliquidated, certain or until the date paid at the highest rate charged with respect
uncertain, determined or undetermined, monetary or to any of the Indebtedness.
nonmonetary, written or oral, and whether Borrower may 2. Waivers. Guarantor hereby waives:
be liable individually orjointly with others, and regardless (a) presentment for payment, notice of dishonor, demand,
of whether recovery thereon may be or hereafter become protest, and notice thereof as to any instrument, and all
barred by any statute of limitations, discharged or other notices and demands to which Guarantor might be
uncollectible in any bankruptcy, insolvency or other entitled, including without limitation notice of all of the
proceeding, or otherwise unenforceable; and (b) any and following: the acceptance hereof; the creation, existence,
all amendments, modifications, renewals and extensions or acquisition of any Indebtedness; the amount of the
of any or all of the foregoing, including without limitation Indebtedness from time to time outstanding; any
amendments, modifications, renewals and extensions foreclosure sale or other disposition of any property which
which are evidenced by any NEW OR ADDITIONAL instrument, secures any or all of the Indebtedness or which secures the
document or agreement; and (c) any and all attorneys' obligations of any other guarantor of any or all of the
fees, court costs, and collection charges incurred in Indebtedness-, any adverse change in Borrower's financial
endeavoring to collect or enforce any of the foregoing position; any other fact which might increase Guarantor's
against Borrower, Guarantor, or any other person liable risk; any default, partial payment or non-payment of all or
thereon (whether or not suit be brought) and any other any part of the Indebtedness; the occurrence of any other
expenses of, for or incidental to collection thereof. As Event of Default (as hereinafter defined); any and all
used herein, the term "Borrower" shall include any agreements and arrangements between Coast and
successor to the business and assets of Borrower, and Borrower and any changes, modifications, or extensions
shall also include Borrower in its capacity as a debtor or thereof, and any revocation, modification or release of any
COAST BUSINESS CREDIT Continuing Guaranty
guaranty of any or all of the Indebtedness by any person judgment, decree or order of any court or administrative
(including without limitation any other person signing this body having jurisdiction over Coast or any of its property,
Guaranty); (b) any right to require Coast to institute suit or by reason of any settlement or compromise of any such
against, or to exhaust its rights and remedies against, claim effected by Coast with any such claimant (including
Borrower or any other person, or to proceed against any without limitation the Borrower), then and in any such
property of any kind which secures all or any part of the event, Guarantor agrees that any such judgment, decree,
Indebtedness, or to exercise any right of offset or other order, settlement and compromise shall be binding upon
right with respect to any reserves, credits or deposit Guarantor, notwithstanding any revocation or release of
accounts held by or maintained with Coast or any this Guaranty or the cancellation of any note or other
indebtedness of Coast to Borrower, or to exercise any instrument evidencing any of the Indebtedness, or any
other right or power, or pursue any other remedy Coast release of any of the Indebtedness, and the Guarantor shall
may have; (c) any defense arising by reason of any be and remain liable to Coast under this Guaranty for the
disability or other defense of Borrower or any other amount so repaid or recovered, to the same extent as if
guarantor or any endorser, co-maker or other person, or such amount had never originally been received by Coast,
by reason of the cessation from any cause whatsoever of and the provisions of this sentence shall survive, and
any liability of Borrower or any other guarantor or any continue in effect, notwithstanding any revocation or
endorser, co-maker or other person, with respect to all or release of this Guaranty. Until all of the Indebtedness has
any part of the Indebtedness, or by reason of any act or been irrevocably paid and performed in full. Guarantor
omission of Coast or others which directly or indirectly hereby expressly and unconditionally waives all rights of
results in the discharge or release of Borrower or any subrogation, reimbursement and indemnity of every kind
other guarantor or any other person or any Indebtedness against Borrower, and all rights of recourse to any assets
or any security therefor, whether by operation of law or or property of Borrower, and all rights to any collateral or
otherwise; (d) any defense arising by reason of any failure security held for the payment and performance of any
of Coast to obtain, perfect, maintain or keep in force any Indebtedness, including (but not limited to) any of the
security interest in, or lien or encumbrance upon, any foregoing rights which Guarantor may have under any
property of Borrower or any other person; (e) any defense present or future document or agreement with any
based upon any failure of Coast to give Guarantor notice Borrower or other person, and including (but not limited
of any sale or other disposition of any property securing to) any of the foregoing rights which Guarantor may have
any or all of the Indebtedness, or any defects in any such under any equitable doctrine of subrogation, implied
notice that may be given, or any failure of Coast to contract, or unjust enrichment, or any other equitable or
comply with any provision of applicable law in enforcing legal doctrine. Neither Coast, nor any of its directors,
any security interest in or lien upon any property securing officers, employees, agents, attorneys or any other person
any or all of the Indebtedness including, but not limited to, affiliated with or representing Coast shall be liable for any
any failure by Coast to dispose of any property securing claims, demands, losses or damages, of any kind
any or all of the Indebtedness in a commercially whatsoever, made, claimed, incurred or suffered by
reasonable manner; (f) any defense based upon or arising Guarantor or any other party through the ordinary
out of any bankruptcy, insolvency, reorganization, negligence of Coast, or any of its directors, officers,
arrangement, readjustment of debt, liquidation or employees, agents, attorneys or any OTHER PERSON AFFILIATED
dissolution proceeding commenced by or against with or representing Coast.
Borrower or any other GUARANTOR OR ANY ENDORSER, CO- 3. CONSENTS. Guarantor hereby consents and agrees
maker or other person, including without limitation any that, without notice to or by Guarantor and without
discharge of, or bar against collecting, any of the affecting or impairing in any way the obligations or
Indebtedness (including without limitation any interest liability of Guarantor hereunder, Coast may, from time to
thereon), in or as a result of any such proceeding; and time before or after revocation of this Guaranty, do any
(g) the benefit of any and all statutes of limitation with one or more of the following in Coast's sole and absolute
respect to any action based upon, arising out of or related discretion: (a) accelerate, accept partial payments of,
to this Guaranty. Until all of THE INDEBTEDNESS HAS BEEN compromise or settle, renew, extend the time for the
paid, performed, and discharged in FULL, nothing shall payment, discharge, or performance of, refuse to enforce,
discharge or satisfy the liability of Guarantor hereunder and release all or any parties to, any or all of the
except the FULL performance and payment of all of the Indebtedness; M grant any other indulgence to Borrower
Indebtedness. If any claim is ever made upon Coast for or any other person in respect of any or all of the
repayment or recovery of any amount or amounts received Indebtedness or any other matter; (c) accept~ release,
by Coast in payment of or on account of any of the waive, surrender, enforce, exchange, modify, impair, or
Indebtedness, because of any claim that any such payment extend the time for the perfortnance, discharge, or
constituted a preferential transfer or fraudulent payment of, any and all property of any kind securing any
conveyance, or for any other reason whatsoever, and or all of the Indebtedness or any guaranty of any or all of
Coast repays all or part of said amount by reason of any the Indebtedness, or on which Coast at any time may have
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COAST BUSINESS CREDIT Continuing Guaranty
a lien, or refuse to enforce its rights or make any Indebtedness or any GUARANTY THEREOF, INCLUDING without
compromise or settlement or agreement therefor in respect limitation judicial foreclosure, nonjudicial foreclosure,
of any or all of such property; (d) substitute or add, or exercise of a power of sale, and taking a deed, assignment
take any action or omit to take any action which results in or transfer in lieu of foreclosure as to any such property,
the release of, any one or more endorsers or guarantors of and Guarantor expressly waives any defense based upon
all or any part of the Indebtedness, including, without the exercise of any such right or remedy, notwithstanding
limitation one or more parties to this Guaranty, regardless the effect thereof upon any of Guarantor's rights, including
of any destruction or impairment of any right of without limitation, any destruction of Guarantor's right of
contribution or other right of Guarantor; (e) amend, alter subrogation against Borrower and any destruction of
or change in any respect whatsoever any term or provision Guarantoes right of contribution or other right against any
relating to any or all of the Indebtedness, including the other guarantor of any or all of the Indebtedness or against
rate of interest thereon; (f) apply any sums received from any other person, whether by operation of Sections 580a,
Borrower, any other guarantor, endorser, or co-signer, or 580d or 726 of the California Code of Civil Procedure, or
from the disposition of any collateral or security, to any any comparable provisions of the laws of any other
indebtedness whatsoever owing from such person or jurisdiction, or any other statutes or rules of law now or
secured by such collateral or security, in such manner and hereafter in effect, or otherwise. Without limiting the
order as Coast determines in its sole discretion, and (renerality of the foregoing. (a) Guarantor waives all ri(-,hts
regardless of whether such indebtedness is part of the and defenses arising out of an election of reniedies by
Indebtedness, is secured, or is due and payable; (g) apply Coast, even though that election of remedies, such as a
any sums received from Guarantor or from the disposition nonjiudicial foreclosure with respect to security for any of
of any collateral or security securing the obligations of the Indebtedness. has destroyed tile : P-Liarantor's rights of
Guarantor, to any of the Indebtedness in such manner and subro-ation and reimbursement aeainst the principal by
order as Coast determines in its sole discretion, regardless the operation of Section 580d of & Code of Civil
of whether or not such Indebtedness is secured or is due Procedure or otherwise. (b) Guarantor further waives all
and payable. Guarantor consents and agrees that Coast rights and defenses arisina out of an election of remedies
shall be under no obligation to marshal any assets in favor by Coast. even though that election of remedies. such as a
of Guarantor, or against or in payment of any or all of the nonjudicial foreclosure with respect to securit), for any of
Indebtedness. Guarantor further consents and agrees that the indebtedness. has destroyed the g arantor's rights of
Coast shall have no duties or responsibilities whatsoever subrogation, reimbursement and contribution aeainst any
with respect to any property securing any or all of the other guarantor of the guaranteed obligation, by the
Indebtedness. Without limiting the generality of the operation of Section 580d of the Code of Civil Procedure
foregoing, Coast shall have no obligation to monitor, or otherwise. (c) Guarantor understands that if Coast
verify, audit, examine, or obtain or maintain any insurance forecloses any present or future trust deed, which secures
with respect to, any property securing any or all of the any or all of the Indebtedness or which secures any other
Indebtedness. guaranty of any or all of the Indebtedness, by nonjudicial
4. ACCOUNT STATED. Absent manifest error, Coast's foreclosure. Guarantor may, as a result. have a complete
books and records showing the account between it and the defense to liability under this Guaranty, based on the legal
Borrower shall be admissible in evidence in any action or doctrine of estoppel and Sections 580a. 580d or 726 of the
proceeding as prima facie proof of the items therein set California Code of Civil Procedure, and Guarantor hereby
forth. Coast's monthly statements rendered to the expressly waives all such defenses. (d) Guarantor
Borrower shall be binding upon the Guarantor (whether or understands and agrees that, in the event Coast in its sole
not the Guarantor receives copies thereof), and shall discretion forecloses any trust deed now or hereafter
constitute an account stated between Coast and the securing any or all of the Indebtedness, by nonjudicial
Borrower, unless Coast receives a written statement of the foreclosure, Guarantor will remain liable to Coast for any
Borrowees exceptions within 30 days after the statement deficiency, even though Guarantor will lose his right of
was mailed to the Borrower. The Guarantor assumes full subrogation against the Borrower, and even though
responsibility for obtaining copies of such monthly Guarantor will be unable to recover from the Borrower the
statements from the Borrower, if the Guarantor desires amount of the deficiency for which Guarantor is liable,
such copies. and even though Guarantor may have retained his right of
5. EXERCISE OF RIGHTS AND REMEDIES; FORECLOSURE subrogation against Borrower if Coast had foreclosed said
of TRUST DEEDS. Guarantor consents and agrees that, trust deed by judicial foreclosure as opposed to
without notice to or by Guarantor and without affecting or nonjudicial foreclosure, and even though absent the
impairing in any way the obligations or liability of waivers set forth herein Guarantor may have had a
Guarantor hereunder, Coast may, from time to time, complete defense to any liability for any deficiency
before or after revocation of this Guaranty, exercise any hereunder. (e) Guarantor understands and agrees that. in
right or remedy it may have with respect to any or all of the event Coast in its sole discretion forecloses any trust
the Indebtedness or any property securing any or all of the deed now or hereafter securing any other guaranty of any
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COAST BUSINESS CREDIT Continuing Guaranty
or all of the Indebtedness, by nonjudicial foreclosure, bankruptcy, insolvency, arrangement, readjustment of
Guarantor will remain liable to Coast for any deficiency. debt, dissolution or liquidation law or statute of any
even though Guarantor will lose his right of subrogation jurisdiction, now or hereafter in effect or (i) Borrower or
or contribution against the other guarantor, and even Guarantor shall be deceased or declared incompetent by
though Guarantor will be unable to recover from the other any court or a guardian or conservator shall be appointed
guarantor any part of the deficiency for which Guarantor for either of them or for the property of either of them; or
is liable, and even though Guarantor may have retained 0) Guarantor or Borrower shall generally not pay their
his right of subrogation or contribution against the other respective debts as they become due or shall enter into any
guarantor if Coast had foreclosed said trust deed by agreement (whether written or oral), or offer to enter into
judicial foreclosure as opposed to nonjudicial foreclosure, any such agreement, with all or a significant number of its
and even though absent the waivers set forth herein creditors regarding any moratorium or other indulgence
Guarantor may have had a complete defense to any with respect to its debts or the participation of such
liability for any deficiency hereunder. creditors or their representatives in the supervision,
6. Acceleration. Notwithstanding the terms of all management, or control of the business of either of them;
or any part of the Indebtedness, the obligations of the or (k) Borrower or Guarantor shall conceal, remove or
Guarantor hereunder to pay and perform all of the permit to be concealed or removed any part of its
Indebtedness shall, at the option of Coast, immediately property, with intent to hinder, delay or defraud its
become due and payable, without notice, and without creditors, or make or suffer any transfer of any of its
regard to the expressed maturity of any of the property which may be fraudulent under any bankruptcy,
Indebtedness, in the event: (a) any warranty, fraudulent conveyance or similar law, or shall make any
representation, statement, report, or certificate made or transfer of its property to or for the benefit of any creditor
delivered to Coast by Borrower or Guarantor, or any of at a time when other creditors similarly situated have not
their respective officers, partners, employees, or agents, is been paid; or (1) the board of directors or shareholders of
incorrect, false, untrue, or misleading when given in any Borrower or Guarantor shall adopt any resolution or plan
material respect; or (b) Borrower or Guarantor shall fail to for its dissolution or the liquidation of all or substantially
pay or perform when due al I or any part of the all of its assets; or (m) Guarantor shall revoke this
Indebtedness; or (c) Guarantor shall fail to pay or perform Guaranty or contest or deny liability under this Guaranty.
when due any indebtedness or obligation of Guarantor to All of the foregoing are hereinafter referred to as "Events
Coast or to any parent, subsidiary or corporate affiliate of of Default".
Coast, whether under this Guaranty or any other 7. RIGHT TO ATTACHMENT REMEDY. Guarantor
instrument, document, or agreement heretofore or agrees that, notwithstanding the existence of any property
hereafter entered into; or (d) there occurs in Coasfs securing any or all of the Indebtedness, Coast shall have
judgment a material impairment of the prospect of all of the rights of an unsecured creditor of Guarantor,
payment or performance of any or all of the Indebtedness; including without limitation the right to obtain a
or (e) any event shall occur which may or does result in temporary protective order and writ of attachment against
the acceleration of the maturity of any indebtedness of Guarantor with respect to any sums due under this
Borrower or Guarantor to others (regardless of any Guaranty. Guarantor further agrees that in the event any
requirement of notice, opportunity to cure or other property secures the obligations of Guarantor under this
condition prior to the exercise of any right of Guaranty, to the extent that Coast, in its sole and absolute
acceleration); or (f) Borrower or Guarantor shall fail discretion, determines prior to the disposition of such
promptly to perform or comply with any term or condition property that the amount to be realized by Coast therefrom
of any agreement with any third party which does or may may be less than the indebtedness of the Guarantor under
result in a material adverse effect on the business of this Guaranty, Coast shall have all the rights of an
Borrower or Guarantor, or (g) there shall be made or exist unsecured creditor against Guarantor, including without
any levy, assessment, attachment, seizure, lien, or limitation the right of Coast, prior to the disposition of
encumbrance for any cause or reason whatsoever upon ail said property, to obtain a temporary protective order and
OR ANY MATERIAL PART OF THE PROPERTY OF BORROWER or writ of attachment against Guarantor. Guarantor waives
Guarantor (unless discharged by payment, release or bond the benefit of Section 483.0 1 O(b) of the California Code
not more than ten days after such event has occurred); or of Civil Procedure and of any and all other statutes and
(h) there shall occur the dissolution, termination of rules of law now or hereafter in effect requiring Coast to
existence, insolvency, or business failure of Borrower or first resort to or exhaust all such collateral before seeking
Guarantor, or the appointment of a receiver, trustee or or obtaining any attachment remedy against Guarantor.
custodian for Borrower or Guarantor or all or any material Coast shall have no liability to Guarantor as a result
part of the property of either of them, or the assignment thereof, whether or not the actual deficiency realized by
for the benefit of creditors by Borrower or Guarantor, or Coast is less than the anticipated deficiency on the basis of
the commencement of any proceeding by or against which Coast obtains a temporary protective order or writ
Borrower or Guarantor under any reorganization, of attachment.
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COAST BUSINESS CREDIT Continuing Guaranty
8. INDEMNITY. Guarantor hereby agrees to Guarantor hereby expressly waives any right to set-off or
indemnify Coast and hold Coast harmless from and assert any counterclaim against Borrower.
against any and all claims, debts, liabilities, demands, 10. REVOCATION. This is a Continuing Guaranty
obligations, actions, causes of action, penalties, costs and relating to all of the Indebtedness, including Indebtedness
expenses (including without limitation attorneys' fees), of arising under successive transactions which from time to
every nature, character and description, which Coast may time continue the Indebtedness or renew it after it has
sustain or incur based upon or arising out of any of the been satisfied. Guarantor waives all benefits of California
Indebtedness, any actual or alleged failure to collect and Civil Code Section 2815, and agrees that the obligations
pay over any withholding or other tax relating to of Guarantor hereunder may not be terminated or revoked
Borrower or its employees, any relationship or agreement in any manner except by giving 90 days' advance written
between Coast and Borrower, any actual or alleged failure notice of revocation to Coast at its address above by
of Coast to comply with any writ of attachment or other registered first-class U.S. mail, postage prepaid, return
legal process relating to Borrower or any of its property, receipt requested, and only as to new loans made by Coast
or any other matter, cause or thing whatsoever occurred, to Borrower more than 90 days after actual receipt of such
done, omitted or suffered to be done by Coast relating in written notice by Coast. No termination or revocation of
any way to Borrower or the Indebtedness (except any such this Guaranty shall be effective until 90 days following the
amounts sustained or incurred as the result of the gross date of actual receipt of said written notice of revocation
negligence or willful misconduct of Coast or any of its by Coast. Notwithstanding such written notice of
directors, officers, employees, agents, attorneys, or any revocation or any other act of Guarantor or any other
other person affiliated with or representing Coast). event or circumstance, Guarantor agrees that this
Notwithstanding any provision in this Guaranty to the Guaranty and all consents, waivers and other provisions
contrary, the indemnity agreement set forth in this Section hereof shall continue in full force and effect as to any and
shall survive any termination or revocation of this all Indebtedness which is outstanding on or before the
Guaranty and shall for all purposes continue in full force 90th day following actual receipt of said written notice of
and effect. revocation by Coast, and all extensions, renewals and
9. SUBORDINATION. Any and all rights of Guarantor modifications of said Indebtedness (including without
under any and all debts, liabilities and obligations owing limitation amendments, extensions, renewals and
from Borrower to Guarantor, including any security for modifications which are evidenced by new or additional
and guaranties of any such obligations, whether now instruments, documents or agreements executed before or
existing or hereafter arising, are hereby subordinated in after expiration of said 90-day period), and all interest
right of payment to the prior payment in full of all of the thereon, accruing before or after expiration of said 90-day
Indebtedness. No payment in respect of any such period, and all attorneys' fees, court costs and collection
subordinated obligations shall at any time be made to or charges, incurred before or after expiration of said 90-day
accepted by Guarantor if at the time of such payment any period, in endeavoring to collect or enforce any of the
Indebtedness is outstanding. If any Event of Default has foregoing against Borrower, Guarantor or any other
occurred, Borrower and any assignee, trustee in person liable thereon (whether or not suit be brought) and
bankruptcy, receiver, or any other person having custody any other expenses of, for or incidental to collection
or control over any or all of Borrowees property are thereof.
hereby authorized and directed to pay to Coast the entire 11. INDEPENDENT LIABILITY. Guarantor hereby
unpaid balance of the Indebtedness before making any agrees that one or more successive or concurrent actions
payments whatsoever to Guarantor, whether as a creditor, may be brought hereon against Guarantor, in the same
shareholder, or otherwise; and insofar as may be necessary action in which Borrower may be sued or in separate
for that purpose, Guarantor hereby assigns and transfers to actions, as often as deemed advisable by Coast. The
Coast all rights to any and all debts, liabilities and liability of Guarantor hereunder is exclusive and
obligations owing from Borrower to Guarantor, including independent of any other guaranty of any or all of the
any security for and guaranties of any such obligations, Indebtedness whether executed by Guarantor or by any
whether now existing or hereafter arising, including other guarantor (including without limitation any other
without limitation any payments, dividends or persons signing this Guaranty). The liability of Guarantor
distributions out of the business or assets of Borrower. hereunder shall not be affected, revoked, impaired, or
Any amounts received by Guarantor in violation of the REDUCED BY ANY one or more of the following: (a) the fact
foregoing provisions shall be
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COAST BUSINESS CREDIT Continuing Guaranty
continuing or restrictive guaranty or undertaking or any Guarantor for such periods of time as Coast may
limitation on the liability of any other guarantor (whether designate, (ii) any other information concerning
under this Guaranty or under any other agreement); or Guarantoes business, financial condition or affairs as
(d) any payment on or reduction of any such other Coast may request, and (iii) copies of any and all foreign,
guaranty or undertaking; or (e) any revocation, federal, state and local tax returns and reports of or
amendment, modification or release of any such other relating to Guarantor as Coast may from time to time
guaranty or undertaking; or (f) any dissolution or request. Guarantor hereby intentionally and knowingly
termination of, or increase, decrease, or change in waives any and all rights and privileges it may have not to
membership of any Guarantor which is a partnership. divulge or deliver said tax returns, reports and other
Guarantor hereby expressly represents that he was not information which are requested by Coast hereunder or in
induced to give this Guaranty by the fact that there are or any litigation in which Coast may be involved relating
may be other guarantors either under this Guaranty or directly or indirectly to Borrower or to Guarantor.
otherwise, and Guarantor agrees that any release of any Guarantor further agrees immediately to give written
one or more of such other guarantors shall not release notice to Coast of any adverse change in Guarantor's
Guarantor from his obligations hereunder either in full or financial condition and of any condition or event which
to any lesser extent. If Guarantor is a married person, constitutes an Event of Default under this Guaranty. All
Guarantor hereby expressly agrees that recourse may be reports and information furnished to Coast hereunder shall
had against his or her separate property for all of his or be complete, accurate and correct in all respects.
her obligations hereunder. Whenever requested, Guarantor shall further deliver to
12. FINANCIAL CONDITION OF BORROWER. Guarantor is Coast a certificate signed by Guarantor (and, if Guarantor
Mly aware of the financial condition of Borrower and is is a partnership, by all general partners of Guarantor, in
executing and delivering this Guaranty at Borrower's their individual capacities, and, if Guarantor is a
request and based solely upon his own independent corporation, by the president and secretary of Guarantor,
investigation of all matters pertinent hereto, and Guarantor in their individual capacities) warranting and representing
is not relying in any manner upon any representation or that all reports, financial statements and other documents
statement of Coast with respect thereto. Guarantor and information delivered or caused to be delivered to
represents and wan-ants that he is in a position to obtain, Coast under this Guaranty, are complete, correct and
and Guarantor hereby assumes Ul responsibility for thoroughly and accurately present the financial condition
obtaining, any additional information concerning of Guarantor, and that there exists on the date of delivery
Borrower's financial condition and any other matter of said certificate to Coast no condition or event which
pertinent hereto as Guarantor may desire, and Guarantor is constitutes an Event of Default under this Guaranty.
not relying upon or expecting Coast to furnish to him any 14. REPRESENTATIONS AND WARRANTIES. Guarantor
information now or hereafter in Coast's possession hereby represents and warrants that (i) it is in Guarantor's
concerning the same or any other matter. By executing direct interest to assist Borrower in procuring credit,
this Guaranty, Guarantor knowingly accepts the full range because Borrower is an affiliate of Guarantor, furnishes
of risks encompassed within a contract of continuing goods or services to Guarantor, purchases or acquires
guaranty, which risks Guarantor acknowledges include goods or services from Guarantor, and/or otherwise has a
without limitation the possibility that Borrower will incur direct or indirect corporate or business relationship with
additional Indebtedness for which Guarantor will be liable Guarantor, (ii) this Guaranty has been duly and validly
hereunder after Borrower's financial condition or ability to authorized, executed and delivered and constitutes the
pay such Indebtedness has deteriorated and/or after valid and binding obligation of Guarantor, enforceable in
bankruptcy or insolvency proceedings have been accordance with its terms, and (iii) the execution and
commenced by or against Borrower. Guarantor shall have delivery of this Guaranty does not violate or constitute a
no right to require Coast to obtain or disclose any default under (with or without the giving of notice, the
information with respect to the Indebtedness, the financial passage of time, or both) any order, judgment, decree,
condition or character of Borrower, the existence of any instrument or agreement to which Guarantor is a party or
collateral or security for any or all of the Indebtedness, the by which it or its assets are affected or bound.
filing by or against Borrower of any bankruptcy or 15. COSTS. Whether or not suit be instituted,
insolvency proceeding, the existence of any other Guarantor agrees to reimburse Coast on demand for all
guaranties of all or any part of the Indebtedness, any reasonable attorneys' fees and all other reasonable costs
action or non-action on the part of Coast, Borrower, or and expenses incurred by Coast in enforcing this
any other person, or any other matter, fact, or occurrence. GUARANTY, OR ARISING out of or RELATING IN ANY WAY TO THIS
13. REPORTS AND FINANCIAL STATEMENTS of Guaranty, or in enforcing any of the Indebtedness against
GUARANTOR. Guarantor shall, at its sole cost and expense, Borrower, Guarantor, or any other person, or in
at any time and from time to time, prepare or cause to be connection with any property of any kind securing all or
prepared, and provide to Coast upon Coast's request any part of the Indebtedness. Without limiting the
(i) such financial statements and reports concerning generality of the foregoing, and in addition thereto,
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COAST BUSINESS CREDIT Continuing Guaranty
Guarantor shall reimburse Coast on demand for all Coast or any other person authorized to accept service of
reasonable attorneys' fees and costs Coast incurs in any process on behalf of Coast, within 30 days thereafter.
way relating to Guarantor, Borrower or the Indebtedness, Guarantor agrees that such one year period is a reasonable
IN ORDER to: obtain legal advice; enforce or seek to enforce and sufficient time for Guarantor to investigate and act
any of its rights; commence, intervene in, respond to, or upon any such claim or cause of action. The one year
defend any action or proceeding; file, prosecute or defend period provided herein shall not be waived, tolled, or
any claim or cause of action in any action or proceeding extended except by a specific written agreement of Coast.
(including without limitation any probate claim, This provision shall survive any termination of this
bankruptcy claim, third-party claim, secured creditor Guaranty or any other agreement.
claim, reclamation complaint, and complaint for relief 18. CONSTRUCTION; SEVERABILITY. If more than one
from any stay under the Bankruptcy Code or otherwise); person has executed this Guaranty, the term "Guarantor"
protect, obtain possession of, sell, lease, dispose of or as used herein shall be deemed to refer to all and any one
otherwise enforce any security interest in or lien on any or more such persons and their obligations hereunder shall
property of any kind securing any or all of the bejoint and several. Without limiting the generality of
Indebtedness; or represent Coast in any litigation with the foregoing, if more than one person has executed this
respect to Borrower's or Guarantoes affairs. In the event Guaranty, this Guaranty shall in all respects be interpreted
either Coast or Guarantor files any lawsuit against the as though each person signing this Guaranty had signed a
other predicated on a breach of this Guaranty, the separate Guaranty, and references herein to "other
prevailing party in such action shall be entitled to recover guarantors" or words of similar effect shall include
its attorneys' fees and costs of suit from the non-prevailing without limitation other persons signing this Guaranty. As
party. used in this Guaranty, the term "property" is used in its
16. Notices. Any notice which a party shall be most comprehensive sense and shall mean all property of
required or shall desire to give to the other hereunder every kind and nature whatsoever, including without
(except for notice of revocation, which shall be governed limitation real property, personal property, mixed
by Section 10 of this Guaranty) shall be given by personal property, tangible property and intangible property.
delivery or by telecopier or by depositing the same in the Words used herein in the masculine gender shall include
United States mail, first class postage pre-paid, addressed the neuter and feminine gender, words used herein in the
to Coast at its address set forth in the heading of this neuter gender shall include the masculine and feminine,
Guaranty and to Guarantor at his address set forth under words used herein in the singular shall include the plural
his signature hereon, and such notices shall be deemed and words used in the plural shall include the singular,
duly given on the date of personal delivery or one day wherever the context so reasonably requires. If any
after the date telecopied or 3 business days after the date provision of this Guaranty or the application thereof to
of mailing as aforesaid. Coast and Guarantor may change any party or circumstance is held invalid, void,
their address for purposes of receiving notices hereunder inoperative or unenforceable, the remainder of this
by giving written notice thereof to the other party in Guaranty and the application of such provision to other
accordance herewith. Guarantor shall give Coast parties or circumstances shall not be affected thereby, the
immediate written notice of any change in his address. provisions of this Guaranty being severable in any such
17. CLAIMS. GUARANTOR AGREES THAT ANY CLAIM or instance.
cause of action by Guarantor against Coast, or any of 19. GENERAL PROVISIONS. Coast shall have the right
Coast's directors, officers, employees, agents, accountants to seek recourse against Guarantor to the full extent
or attorneys, based upon, arising from, or relating to this provided for herein and in any other instrument or
Guaranty, or any other present or future agreement agreement evidencing obligations of Guarantor to Coast,
between Coast and Guarantor or between Coast and and against Borrower to the full extent of the
Borrower, or any other transaction contemplated hereby Indebtedness. No election in one form of action or
or thereby or relating hereto or thereto, or any other proceeding, or against any party, or on any obligation,
matter, cause or thing whatsoever, whether or not relating shall constitute a waiver of Coast's right to proceed in any
hereto or thereto, occurred, done, omitted or suffered to other form of action or proceeding or against any other
be done by Coast, or by Coast's directors, officers, party. The failure of Coast to enforce any of the
employees, agents, accountants or attorneys, whether provisions of this Guaranty at any time or for any period
sounding in contract or in tort or otherwise, shall be of time shall not be construed to be a waiver of any such
barred unless asserted by Guarantor by the provision or the right thereafter to enforce the same. All
commencement of an action or proceeding in a court of remedies hereunder shall be cumulative and shall be in
competent jurisdiction within Los Angeles County, addition to all rights, powers and remedies given to Coast
California, by the filing of a complaint within one year by law or under any other instrument or agreement. Time
after the first act, occurrence or omission upon which such is of the essence in the performance by Guarantor of each
claim or cause of action, or any part thereof, is based and and every obligation under this Guaranty. If Borrower is
service of a summons and complaint on an officer of a corporation, partnership or other entity, Guarantor
-7-
COAST BUSINESS CREDIT Continuing Guaranty
hereby agrees that Coast shall have no obligation to 21. MUTUAL WAIVER OF RIGHT TO JURY TRIAL.
inquire into the power or authority of Borrower or any of COAST AND GUARANTOR HEREBY WAIVE THE
its officers, directors, partners, or agents acting or RIGHT TO TRIAL BY JURY IN ANY ACTION,
purporting to act on its behalf, and any Indebtedness made CLAIM, LAWSUIT OR PROCEEDING BASED
or created in reliance upon the professed exercise of any UPON, ARISING OUT OF, OR IN ANY WAY
such power or authority shall be included in the RELATING TO: (i) THIS GUARANTEE OR ANY
indebtedness guaranteed hereby. This Guaranty is the SUPPLEMENT OR AMENDMENT THERETO; OR
entire and only agreement between Guarantor and Coast (ii) ANY OTHER PRESENT OR FUTURE
with respect to the guaranty of the Indebtedness of INSTRUMENT OR AGREEMENT BETWEEN
Borrower by Guarantor, and all representations, COAST AND GUARANTOR; OR (III) ANY
warranties, agreements, or undertakings heretofore or BREACH, CONDUCT, ACTS OR OMISSIONS OF
contemporaneously made, which are not set forth herein, COAST OR GUARANTOR OR ANY OF THEIR
are superseded hereby. No course of dealings between the RESPECTIVE DIRECTORS, OFFICERS,
parties, no usage of the trade, and no parol or extrinsic EMPLOYEES, AGENTS, ATTORNEYS OR ANY
evidence of any nature shall be used or be relevant to OTHER PERSON AFFILIATED WITH OR
supplement or explain or modify any term or provision of REPRESENTING COAST OR GUARANTOR; IN
this Guaranty. There are no conditions to the MI EACH OF THE FOREGOING CASES, WHETHER
effectiveness of this Guaranty. The terms and provisions SOUNDING IN CONTRACT OR TORT OR
hereof may not be waived, altered, modified, or amended OTHERWISE.
except in a writing executed by Guarantor and a duly 22. Receipt of Copy. Guarantor acknowledges
authorized officer of Coast. All rights, benefits and receipt of a copy of this Guaranty.
privileges hereunder shall inure to the benefit of and be
enforceable by Coast and its successors and assigns and
shall be binding upon Guarantor and his heirs, executors, Palomar Medical Technologies, Inc.
administrators, personal representatives, successors and
assigns. Neither the death of Guarantor nor notice thereof
to Coast shall terminate this Guaranty as to his estate, and,
notwithstanding the death of Guarantor or notice thereof By: /s/ Xxxxx Xxxxxxxx
to Coast, this Guaranty shall continue in full force and -------------------------------
effect with respect to all Indebtedness, including without Its
limitation Indebtedness incurred or created after the death
of Guarantor and notice thereof to Coast. Section Guarantor's Address:
headings are used herein for convenience only. Guarantor 00 Xxxxxx Xxxx Xxxxx
acknowledges that the same may not describe completely Beverly, MA 0 1915
the subject matter of the applicable Section, and the same
shall not be used in any manner to construe, limit, define
or interpret any term or provision hereof.
20. GOVERNING LAW; VENUE AND JURISDICTION. This Palomar Electronics Corporation
instrument and all acts and transactions pursuant or
relating hereto and all rights and obligations of the parties
hereto shall be governed, construed, and interpreted in
accordance with the internal laws of the State of By: /s/ Xxxxxx X. Xxxxxx
California. In order to induce Coast to accept this -----------------------------
Guaranty, and as a material part of the consideration Its
therefor, Guarantor (i) agrees that all actions or
proceedings relating directly or indirectly hereto shall, at Guarantor's Address:
the option of Coast, be litigated in courts located within
Los Angeles County, California, (ii) consents to the 00 Xxxxxx Xxxx Xxxxx
jurisdiction of any such court and consents to the service Beverly, M.A 0 1915
of process in any such action or proceeding by personal
delivery or any other method permitted by law; and
(iii) waives any and all rights Guarantor may have to
transfer or change the venue of any such action or
proceeding.
COAST BUSINESS CREDIT Continuing Guaranty
STATE OF CALIFORNIA )
)ss.
COUNTY OF )
On 199 , before me,
--------------------------------- -- ----------------
Notary Public, personally appeared
---------------------------------------------
personally known to me (or proved to me on the
---------------------------------
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
-----------------------------------
(Seal)
STATE OF CALIFORNIA )
)ss.
COUNTY OF )
On 199 , before me,
--------------------------------- -- ----------------
Notary Public, personally appeared
---------------------------------------------
personally known to me (or proved to me on the
---------------------------------
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
-----------------------------------
(Seal)
