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EXHIBIT 10.13
GUARANTOR SECURITY AGREEMENT
This Guarantor Security Agreement, dated as of October 1, 1998, is made
by Xxxxxx X. Xxxxxx, an individual ("Pledgor"), in favor of ENDOcare, Inc., a
Delaware corporation, and its successors and assigns ("Guarantied Party").
WHEREAS, Advanced Medical Procedures LLC, a Florida limited liability
company ("Borrower") and Guarantied Party are, contemporaneously herewith,
entering into the Loan and Security Agreement;
WHEREAS, Pledgor expects to receive substantial direct and indirect
benefits from the financial accommodations to Borrower pursuant to the Loan and
Security Agreement;
WHEREAS, in order to induce Guarantied Party to extend financial
accommodations to Borrower pursuant to the Loan and Security Agreement, and in
consideration thereof, and in consideration of any loans or other financial
accommodations heretofore or hereafter extended by Guarantied Party to Borrower,
whether pursuant to the Loan and Security Agreement or otherwise, Pledgor has
agreed to enter into this Agreement, pursuant to which Pledgor grants Guarantied
Party a security interest in the Collateral (as hereinafter defined) to secure
Borrower's obligations to Guarantied Party under the Loan and Security
Agreement; and
WHEREAS, Pledgor acknowledges and agrees that Guarantied Party is
extending the financial accommodations to Borrower pursuant to the Loan and
Security Agreement in reliance on Pledgor's entry into this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants herein contained and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Defined Terms. All capitalized terms used herein and not otherwise
defined shall have the meaning set forth in the Loan and Security Agreement. As
used in this Agreement, the following terms shall have the following meanings:
"Agreement" shall mean this Guarantor Security Agreement, as the
same may from time to time be amended or supplemented.
"Code" shall mean the Uniform Commercial Code as the same may
from time to time be in effect in the State of California.
"Collateral" shall have the meaning assigned to it in Section 2
of this Agreement.
"Loan and Security Agreement" shall mean that certain Loan and
Security Agreement, dated as of the date hereof, entered into between Borrower
and Guarantied Party, as the same may be amended, modified or restated from time
to time after the date hereof.
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"Secured Obligations" shall mean all liabilities, obligations, or
undertakings owing by Borrower to Guarantied Party of any kind or description
arising out of or outstanding under, advanced or issued pursuant to, or
evidenced by the Loan Documents, irrespective of whether for the payment of
money, whether direct or indirect, absolute or contingent, due or not due,
voluntary or involuntary, whether now existing or hereafter arising, and
including all interest (including interest that accrues after the filing of a
case under the Bankruptcy Code) and any and all costs, fees (including
attorney's fees), and expenses which Borrower is required to pay pursuant to any
of the foregoing, by law or otherwise.
2. Grant of Security Interest; Delivery of Collateral.
(a) As security for the prompt and complete payment and
performance when due of the Secured Obligations, Pledgor hereby grants to
Guarantied Party a security interest in the [tax-free bonds] more fully
described on Schedule 1 hereto (the "Collateral").
(b) Pledgor shall deliver, or cause to be promptly delivered to
Guarantied Party, any and all certificates or other evidence of ownership
representing or evidencing the Collateral, at a location designated by
Guarantied Party to be held by Guarantied Party pursuant hereto, and each such
certificate or other evidence of ownership shall be in suitable form for
transfer by delivery, or shall be accompanied by duly executed instruments of
transfer or assignment in blank, all in form and substance satisfactory to
Guarantied Party.
3. Representations and Warranties. Pledgor hereby represents and
warrants that:
(a) Pledgor is the sole owner of the Collateral, free and clear
of any and all liens and claims whatsoever except for the security interests
granted to Guarantied Party pursuant to this Agreement.
(b) No security agreement, financing statement, assignment,
equivalent security or lien instrument or continuation statement covering all or
any part of the Collateral is on file or of record in any public office, except
for any financing statements with respect to the Collateral filed by Guarantied
Party pursuant to this Agreement.
(c) All steps necessary to create and perfect the security
interest created by this Agreement as a valid and continuing first lien on and
first perfected security interest in the Collateral in favor of Guarantied
Party, prior to all other liens, security interests and other claims of any sort
whatsoever have been taken. This Agreement and the security interest created
hereby is enforceable as such against creditors of and purchasers from Pledgor
except with respect to liens or other interests accorded a superior priority as
a matter of law.
(d) Pledgor has all power to execute and deliver this Agreement,
to perform its obligations hereunder, and to subject the Collateral to the
security interest created hereby.
4. Covenants. Pledgor covenants and agrees that from and after the date
of this Agreement and until the Secured Obligations are fully satisfied:
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(a) Further Documentation; Pledge of Instruments. At any time and
from time to time, upon the written request of Guarantied Party, and at the sole
expense of Pledgor, Pledgor will promptly and duly execute and deliver any and
all such further instruments and documents and take such further action as
Guarantied Party may reasonably deem desirable to obtain the full benefits of
this Agreement and of the rights and powers herein granted, including, without
limitation, the execution and filing of any financing or continuation statements
under the Uniform Commercial Code in effect in any jurisdiction with respect to
the security interest granted hereby and, if otherwise required hereunder,
transferring Collateral to the possession of Guarantied Party (if a security
interest in such Collateral can be perfected by possession). Pledgor also hereby
authorizes Guarantied Party to file any such financing or continuation statement
without the signature of Pledgor to the extent otherwise permitted by applicable
law.
(b) Priority of Liens. Pledgor will defend the right, title and
interest hereunder of the Guarantied Party, as a first priority security
interest in the Collateral, against the claims and demands of all persons
whomsoever.
(c) Notices. Pledgor will advise Guarantied Party promptly, in
reasonable detail, (i) of any material lien, security interest, encumbrance or
claim made or asserted against the Collateral and (ii) of the occurrence of any
other event which would have a material adverse effect on the aggregate value of
the Collateral or on the security interest created hereunder.
(d) Transfer of Assets. Pledgor will not sell, pledge, mortgage,
assign, transfer, or otherwise dispose of or create or suffer to be created any
lien, security interest or encumbrance on, the Collateral, except for the
security interests granted to Guarantied Party pursuant to this Agreement.
5. Guarantied Party's Appointment as Attorney-in-Fact.
(a) Pledgor hereby irrevocably constitutes and appoints
Guarantied Party, and each officer or agent of Guarantied Party with full power
of substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of Pledgor and in the name of Pledgor
or in its own name, from time to time in the discretion of each such
attorney-in-fact after the occurrence of an Event of Default, for the purpose of
carrying out the terms of this Agreement, to take any and all appropriate action
and to execute any and all documents and instruments which may be necessary or
desirable to accomplish the purposes of this Security Agreement and, without
limiting the generality of the foregoing, hereby gives each such
attorney-in-fact after the occurrence of an Event of Default the power and
right, on behalf of Pledgor, without notice to or assent by Pledgor, to pay or
discharge taxes, liens, security interests or other encumbrances levied or
placed on or threatened against the Collateral, to effect any repairs or any
insurance called for with respect to any of the Collateral by the terms of this
Agreement and to pay all or any part of the premiums therefor and the costs.
Pledgor hereby ratifies, to the extent permitted by law, all that said attorneys
shall lawfully do or cause to be done by virtue hereof. This power of attorney
is a power coupled with an interest and shall be irrevocable.
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(b) The powers conferred on each attorney-in-fact hereunder are
solely to protect the interest in the Collateral of Guarantied Party and shall
not impose any duty upon any such attorney-in-fact to exercise any such powers.
Each such attorney-in-fact shall be accountable only for amounts that it
actually receives as a result of the exercise of such powers and neither it nor
any of its officers, directors, employees or agents shall be responsible to
Pledgor for any act or failure to act, except for its own gross negligence or
willful misconduct.
(c) Pledgor also authorizes Guarantied Party and each officer or
agent of Guarantied Party at any time and from time to time upon the occurrence
of any Event of Default, to execute, in connection with the sale provided for in
Section 8 of this Agreement , any endorsements, assignments or other instruments
of conveyance or transfer with respect to any of the Collateral.
(d) Pledgor hereby acknowledges and agrees that Guarantied Party
has control over the Collateral within the meaning of Articles 8 and 9 of the
Code.
6. Performance by Guarantied Party of Pledgor's Obligations. If Pledgor
fails to perform or comply with any of its agreements contained herein and
Guarantied Party as provided for by the terms of this Agreement shall itself
perform or comply, or otherwise cause performance or compliance, with such
agreement, the reasonable expenses of Guarantied Party incurred in connection
with such performance or compliance, together with interest thereon at the
interest rate applicable to the Secured Obligations in effect from time to time
as specified in the Note, which rate shall change when and as such rate shall
change, shall be payable by Pledgor to Guarantied Party on demand and shall
constitute Secured Obligations secured hereby.
7. Default. Any of the following shall constitute an Event of Default
hereunder:
(a) A failure by Pledgor for a period of seven (7) days to
observe or perform any obligation, covenant, condition, or agreement hereof to
be performed by Pledgor;
(b) Any representation or warranty made by Pledgor herein is not
true and correct in any material respect;
(c) The occurrence of any "Event of Default", as such term is
defined in the Loan and Security Agreement; or
(d) The occurrence of any "Event of Default", as such term is
defined in the Note.
8. Remedies, Rights Upon Default.
(a) If any Event of Default shall occur, Guarantied Party may
exercise in addition to all other rights and remedies granted to it in this
Agreement and in any other instrument or agreement securing, evidencing or
relating to the Secured Obligations, all rights and remedies of a secured party
under the Code. Without limiting the generality of the foregoing, Pledgor
expressly agrees that in any such event Guarantied Party, without demand of
performance or other demand, advertisement or notice of any kind (except the
notice specified
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below of time and place of public or private sale) to or upon Pledgor or any
other person (all and each of which demands, advertisements and/or notices are
hereby expressly waived), may forthwith collect, receive, appropriate and
realize upon the Collateral, or any part thereof, and/or may forthwith sell,
lease, assign, give option or options to purchase, or sell or otherwise dispose
of and deliver said Collateral (or contract to do so), or any part thereof, in
one or more parcels at public or private sale or sales, at any exchange or
broker's board or at any of Guarantied Party's offices or elsewhere at such
prices as it may deem best, for cash or on credit or for future delivery without
the assumption of any credit risk. Pledgor expressly acknowledges that private
sales may be less favorable to a seller than public sales but that private sales
shall nevertheless be deemed commercially reasonable and otherwise permitted
hereunder. Guarantied Party shall have the right upon any such public sale or
sales, and, to the extent permitted by law, upon any such private sale or sales,
to purchase the whole or any part of said Collateral so sold, free of any right
or equity of redemption, which equity of redemption Pledgor hereby releases.
Pledgor further agrees, at the request of Guarantied Party, to make the
Collateral available to Guarantied Party at places which Guarantied Party shall
reasonably select, whether at Pledgor's premises or elsewhere. Guarantied Party
shall apply the net proceeds of any such collection, recovery, receipt,
appropriation, realization or sale as provided in Section 8(d) of this
Agreement. Only after so paying over such net proceeds and after the payment by
Guarantied Party of any other amount required by any provision of law, including
Section 9-504(1)(c) of the Code, need Guarantied Party account for the surplus,
if any, to Pledgor. To the extent permitted by applicable law, Pledgor waives
all claims, damages, and demands against Guarantied Party arising out of the
repossession, retention or sale of the Collateral except in each case such as
arise out of the gross negligence or willful misconduct of Guarantied Party.
Pledgor agrees that Guarantied Party need not give more than ten (10) days
notice (which notification shall be deemed given when mailed or delivered on an
overnight basis, postage prepaid, addressed to Pledgor at his address referred
to in Section 10 hereof) of the time and place of any public sale or of the time
after which a private sale may take place and that such notice is reasonable
notification of such matters.
(b) Pledgor also agrees to pay all costs of Guarantied Party,
including reasonable attorneys' fees and expenses, incurred with respect to the
collection of any of the Secured Obligations and the enforcement of any of its
rights hereunder.
(c) Pledgor hereby waives presentment, demand, or protest (to the
extent permitted by applicable law) of any kind in connection with this
Agreement or any Collateral. Except for notices provided for herein, Pledgor
hereby waives notice (to the extent permitted by applicable law) of any kind in
connection with this Agreement .
(d) The proceeds of any sale, disposition or other realization
upon all or any part of the Collateral shall be distributed by Guarantied Party
in the following order of priorities:
first, to Guarantied Party in an amount sufficient to pay in full
the expenses of Guarantied Party in connection with such sale, disposition or
other realization, including all expenses, liabilities and advances incurred or
made by Guarantied Party in connection therewith, including reasonable
attorneys' fees;
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second, to Guarantied Party in an amount equal to the then unpaid
principal of and accrued interest on the Secured Obligations;
finally, upon payment in full of all of the Secured Obligations,
to Pledgor, or his representative or as a court of competent jurisdiction or
Pledgor may direct.
Pledgor agrees to indemnify and hold harmless Guarantied Party, its
directors, officers, employees, agents and parent and subsidiary corporations,
and each of them, from and against any and all liabilities, obligations, claims,
damages, or expenses incurred by any of them arising out of or by reason of
entering into this Agreement or the consummation of the transactions
contemplated by this Agreement and to pay or reimburse Guarantied Party for the
fees and disbursements of counsel incurred in connection with any investigation,
litigation or other proceedings (whether or not Guarantied Party is a party
thereto) arising out of or by reason of any of the aforesaid. Guarantied Party
will promptly give Pledgor written notice of the assertion of any claim which it
believes is subject to the indemnity set forth in this Section 8 and will upon
the request of Pledgor promptly furnish Pledgor with all material in its
possession relating to such claim or the defense thereof to the extent that the
Guarantied Party may do so without breach of duty to others. Any amounts
properly due under this Section 8 shall be payable to the Guarantied Party
immediately upon demand.
9. Limitation on Guarantied Party's Duty in Respect of Collateral.
Except as expressly provided in the Code, Guarantied Party shall have no duty as
to any Collateral in its possession or control or in the possession or control
of any agent or nominee of Guarantied Party or as to any income thereon or as to
the preservation of rights against prior parties or any other rights pertaining
thereto.
10. Consents of Guarantor. The Pledgor hereby unconditionally consents
and agrees that, without notice to or further assent from the Pledgor:
(i) the principal amount of the Secured Obligations may be
increased or decreased and additional indebtedness or obligations of the
Borrower under the Loan Documents may be incurred, by one or more amendments,
modifications, renewals or extensions of any Loan Document or otherwise;
(ii) the time, manner, place or terms of any payment under any
Loan Document may be extended or changed, including by an increase or decrease
in the interest rate on any Secured Obligations or any fee or other amount
payable under such Loan Document, by an amendment, modification or renewal of
any Loan Document or otherwise;
(iii) the time for the Borrower's (or any other Person's)
performance of or compliance with any term, covenant or agreement on its part to
be performed or observed under any Loan Document may be extended, or such
performance or compliance waived, or failure in or departure from such
performance or compliance consented to, all in such manner and upon such terms
as the Guarantied Party may deem proper;
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(iv) the Guarantied Party may discharge or release, in whole or
in part, any other Pledgor or any other Person liable for the payment and
performance of all or any part of the Secured Obligations, and may permit or
consent to any such action or any result of such action, and shall not be
obligated to demand or enforce payment upon any of the Collateral or any other
collateral, nor shall the Guarantied Party be liable to the Pledgor for any
failure to collect or enforce payment or performance of the Secured Obligations
from any Person or to realize Collateral or other collateral therefor;
(v) in addition to the Collateral, the Guarantied Party may take
and hold other security (legal or equitable) of any kind, at any time, as
collateral for the Secured Obligations, and may, from time to time, in whole or
in part, exchange, sell, surrender, release, subordinate, modify, waive,
rescind, compromise or extend such security and may permit or consent to any
such action or the result of any such action, and may apply such security and
direct the order or manner of sale thereof;
(vi) the Guarantied Party may request and accept other guaranties
of the Secured Obligations and any other indebtedness, obligations or
liabilities of the Borrower to the Guarantied Party and may, from time to time,
in whole or in part, surrender, release, subordinate, modify, waive, rescind,
compromise or extend any such guaranty and may permit or consent to any such
action or the result of any such action; and
(vii) the Guarantied Party may exercise, or waive or otherwise
refrain from exercising, any other right, remedy, power or privilege (including
the right to accelerate the maturity of any Revolving Loan and any power of
sale) granted by any Loan Document or other security document or agreement, or
otherwise available to the Guarantied Party, with respect to the Secured
Obligations or any of the Collateral, even if the exercise of such right,
remedy, power or privilege affects or eliminates any right of subrogation or any
other right of the Pledgor against the Borrower;
all as the Guarantied Party may deem advisable, and all without impairing,
abridging, releasing or affecting this Agreement.
11. Pledgor's Waivers.
(a) Certain Waivers. The Pledgor waives and agrees not to assert:
(i) any right to require the Guarantied Party to marshal
assets in favor of the Borrower, the Pledgor, any other Pledgor or any other
Person, to proceed against the Borrower, any other Pledgor or any other Person,
to proceed against or exhaust any of the Collateral, to give notice of the
terms, time and place of any public or private sale of personal property
security constituting the Collateral or comply with any other provisions of
Section 9-504 of the California UCC (or any equivalent provision of any other
applicable law) or to pursue any other right, remedy, power or privilege of the
Guarantied Party whatsoever;
(ii) the defense of the statute of limitations in any
action hereunder or for the collection or performance of the Secured
Obligations;
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(iii) any defense arising by reason of any lack of
corporate or other authority or any other defense of the Borrower, the Pledgor
or any other Person;
(iv) any defense based upon the Guarantied Party's errors
or omissions in the administration of the Secured Obligations;
(v) any rights to set-offs and counterclaims;
(vi) any defense based upon an election of remedies
(including, if available, an election to proceed by nonjudicial foreclosure)
which destroys or impairs the subrogation rights of the Pledgor or the right of
the Pledgor to proceed against the Borrower or any other obligor of the Secured
Obligations for reimbursement; and
(vii) without limiting the generality of the foregoing, to
the fullest extent permitted by law, any defenses or benefits that may be
derived from or afforded by applicable law limiting the liability of or
exonerating Pledgors or sureties, or which may conflict with the terms of this
Agreement, including any and all benefits that otherwise might be available to
the Pledgor under California Civil Code Sections 1432, 2809, 2810, 2815, 2819,
2839, 2845, 2848, 2849, 2850, 2899 and 3433 and California Code of Civil
Procedure Sections 580a, 580b, 580d and 726. Accordingly, the Pledgor waives all
rights and defenses that the Pledgor may have because the Borrower's debt is
secured by real property. This means, among other things: (A) the Guarantied
Party may collect from the Pledgor without first foreclosing on any real or
personal property Collateral pledged by the Borrower; and (B) if the Guarantied
Party forecloses on any real property Collateral pledged by the Borrower: (1)
the amount of the debt may be reduced only by the price for which that
Collateral is sold at the foreclosure sale, even if the Collateral is worth more
than the sale price, and (2) the Guarantied Party may collect from the Pledgor
even if the Guarantied Party, by foreclosing on the real property Collateral,
has destroyed any right the Pledgor may have to collect from the Borrower. This
is an unconditional and irrevocable waiver of any rights and defenses the
Pledgor may have because the Borrower's debt is secured by real property. These
rights and defenses include, but are not limited to, any rights of defenses
based upon Section 580a, 580b, 580d or 726 of the California Code of Civil
Procedure.
(b) Additional Waivers. The Pledgor waives any and all notice of
the acceptance of this Agreement, and any and all notice of the creation,
renewal, modification, extension or accrual of the Secured Obligations, or the
reliance by the Guarantied Party upon this Agreement, or the exercise of any
right, power or privilege hereunder. The Secured Obligations shall conclusively
be deemed to have been created, contracted, incurred and permitted to exist in
reliance upon this Agreement. The Pledgor waives promptness, diligence,
presentment, protest, demand for payment, notice of default, dishonor or
nonpayment and all other notices to or upon the Borrower, the Pledgor or any
other Person with respect to the Secured Obligations.
(c) Independent Obligations. The obligations of the Pledgor
hereunder are independent of and separate from the obligations of the Borrower
and any other Pledgor and upon the occurrence and during the continuance of any
Event of Default, a separate action or actions may be brought against the
Pledgor, whether or not the Borrower or any such other
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Pledgor is joined therein or a separate action or actions are brought against
the Borrower or any such other Pledgor.
(d) Financial Condition of Borrower. The Pledgor shall not have
any right to require the Guarantied Party to obtain or disclose any information
with respect to: (i) the financial condition or character of the Borrower or the
ability of the Borrower to pay and perform the Secured Obligations; (ii) the
Secured Obligations; (iii) the Collateral; (iv) the existence or nonexistence of
any other guarantees of all or any part of the Secured Obligations; (v) any
action or inaction on the part of the Guarantied Party or any other Person; or
(vi) any other matter, fact or occurrence whatsoever.
12. Notices. All notices, requests and demands to or upon a party
hereto, to be effective, shall be in writing and shall be sent by certified or
registered mail, return receipt requested, by personal delivery against receipt,
or by overnight courier and, unless otherwise expressly provided herein, shall
be deemed to have been validly served, given or delivered immediately when
delivered against receipt, one Business Day after deposit in the mail, postage
prepaid, or with an overnight courier, addressed as follows:
If to Pledgor: Xxxxxx X. Xxxxxx
________________________________
________________________________
________________________________
With a copy to: ________________________________
________________________________
________________________________
________________________________
If to Guarantied Party: ENDOcare, Inc.
7 Studebaker
Xxxxxx, Xxxxxxxxxx 00000
Attn: Chief Executive Officer
With a copy to: XXXXXXX, XXXXXXX & XXXXXXXX LLP
00 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
If to the Borrower: Advanced Medical Procedures
________________________________
________________________________
Attn: _________________________
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With a copy to: _______________________________
________________________________
________________________________
________________________________
or to such other address as each party may designate for itself by notice given
in accordance with this Section.
13. Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
14. No Waiver; Cumulative Remedies. Guarantied Party shall not, by any
act, delay, omission or otherwise, be deemed to have waived any of its rights or
remedies hereunder. No waiver hereunder shall be valid except to the extent
therein set forth. A waiver of any right or remedy hereunder on any one occasion
shall not be construed as a bar to any right or remedy which Guarantied Party
would otherwise have had on any future occasion. No failure to exercise nor any
delay in exercising on the part of Guarantied Party any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right, power or privilege hereunder preclude any other
or future exercise thereof or the exercise of any other right, power or
privilege. Except to the extent that Guarantied Party has specifically and
expressly waived such remedies in this Agreement or otherwise, the rights and
remedies hereunder provided are cumulative and may be exercised singly or
concurrently, and are not exclusive of any rights and remedies provided by law.
Guarantied Party may resort to and realize on the Collateral simultaneously with
any acts or proceedings initiated by Guarantied Party in its sole and conclusive
discretion to resort to or realize upon any other sources of repayment of the
Secured Obligations, including but not limited to, collateral granted by other
security agreements. None of the terms or provisions of this Agreement may be
waived, altered, modified or amended except by an instrument in writing, duly
executed by Pledgor and Guarantied Party.
15. Successors and Assigns; Governing Law. This Agreement and all
obligations of Pledgor hereunder shall be binding upon the successors and
assigns of Pledgor, except that Pledgor shall not have the right to assign its
rights hereunder or any interest herein without the prior written consent of
Guarantied Party and shall, together with the rights and remedies of Guarantied
Party hereunder, inure to the benefit of Guarantied Party and its respective
successors and assigns. This Agreement shall be governed by, and be construed
and interpreted in accordance with, the laws of the State of California. Neither
this Agreement nor anything set forth herein is intended to, nor shall it,
confer any rights on any person or entity other than the parties hereto and all
third party rights are expressly negated.
16. Termination. This Agreement, and the assignments, pledges and
security interests created or granted hereby, shall terminate when the Secured
Obligations shall have been fully paid and satisfied and Guarantied Party has no
further obligation to lend monies or otherwise extend financial accommodations
to Borrower, at which time Guarantied Party shall reassign
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(without recourse upon, or any warranty whatsoever by, Guarantied Party), and
deliver to Pledgor all Collateral and related documents then in the custody or
possession of Guarantied Party, all without recourse upon, or warranty
whatsoever, by Guarantied Party and at the cost and expense of Pledgor.
17. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER
THE VALIDITY OF THIS AGREEMENT, ITS CONSTRUCTION, INTERPRETATION, AND
ENFORCEMENT, AND THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS
ARISING HEREUNDER OR RELATED HERETO SHALL BE DETERMINED UNDER, GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA.
THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION
WITH THIS AGREEMENT SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND FEDERAL
COURTS LOCATED IN THE COUNTY OF ORANGE, CALIFORNIA, OR AT THE SOLE OPTION OF
GUARANTIED PARTY, IN ANY OTHER COURT IN WHICH GUARANTIED PARTY SHALL INITIATE
LEGAL OR EQUITABLE PROCEEDINGS AND WHICH HAS SUBJECT MATTER JURISDICTION OVER
THE MATTER IN CONTROVERSY. EACH OF PLEDGOR AND GUARANTIED PARTY WAIVES, TO THE
EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE TO ASSERT THE
DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY
PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION 17.
PLEDGOR AND GUARANTIED PARTY HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. PLEDGOR AND GUARANTIED PARTY REPRESENT THAT EACH HAS REVIEWED
THIS WAIVER AND EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF
THIS AGREEMENT MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY THE COURT.
18. Revival and Reinstatement of Secured Obligations. If the incurrence
or payment of the Secured Obligations by Pledgor or the transfer by Pledgor to
Guarantied Party of any property of Pledgor should for any reason subsequently
be declared to be void or voidable under any state or federal law relating to
creditors' rights, including provisions of the Bankruptcy Code relating to
fraudulent conveyances, preferences, and other voidable or recoverable payments
of money or transfers of property (collectively, a "Voidable Transfer"), and if
Guarantied Party is required to repay or restore, in whole or in part, any such
Voidable Transfer, or elects to do so upon the reasonable advice of its counsel,
then, as to any such Voidable Transfer, or the amount thereof that Guarantied
Party is required or elects to repay or restore, and as to all reasonable costs,
expenses, and attorneys fees of Guarantied Party related thereto, the liability
of Pledgor
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automatically shall be revived, reinstated, and restored and shall exist as
though such Voidable Transfer had never been made.
19. Counterparts. This Agreement may be executed in any number of
counterparts and by different parties on separate counterparts, each of which,
when executed and delivered, shall be deemed to be an original, and all of
which, when taken together, shall constitute but one and the same Agreement.
[Signature page follows.]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed and delivered on the date first set forth above.
PLEDGOR
/s/ Xxxxxx X. Xxxxxx
------------------------------------
XXXXXX X. XXXXXX
GUARANTIED PARTY ENDOCARE, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Senior Vice President and
Chief Financial Officer
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