EXHIBIT 14
GUARANTY
GUARANTY, dated August 5, 1997, from Xxxxx Xxxx (the "Guarantor") to
Clearwater Fund IV, LLC ("Clearwater").
Reference is made to the Loan Agreement, dated August 5, 1997, between
XXXX/Biophile International Corporation ("XXXX") and Clearwater (the "Loan
Agreement"). Capitalized terms used herein and not otherwise defined shall have
the meaning ascribed to such terms in the Loan Agreement.
(i) Guaranty. In order to induce Clearwater to enter into the Loan
Documents and for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Guarantor hereby irrevocably and
unconditionally guarantees to Clearwater the prompt payment of all Obligations
of XXXX when due strictly in accordance with the terms of the Loan Documents as
the same may at any time be amended, modified, renewed or extended. In addition,
the Guarantor hereby agrees to pay any and all costs and expenses incurred by
Clearwater in enforcing this Guaranty, including reasonable attorneys' fees and
expenses incurred in connection therewith. It is understood and agreed by the
Guarantor that Clearwater may proceed against the Guarantor under this Guaranty,
in one or more actions, suits or proceedings, without pursuing or exhausting any
right or remedy Clearwater may have against XXXX, any other guarantor or any
other person obligated with respect to the Loan Documents or any part thereof.
(ii) Obligations Absolute; Revival. The liability of the Guarantor under
this Guaranty shall be irrevocable, absolute and unconditional irrespective of
the validity, legality or enforceability of the Loan Documents or any other
circumstance or circumstances which might otherwise constitute a legal or
equitable discharge of, or a defense available to, a surety or guarantor and
regardless of any law, rule, regulation, order, writ, judgment, decree, award or
other administrative or judicial pronouncement now or hereafter in effect in any
jurisdiction purporting to affect in any manner any of the terms of the Loan
Documents. Clearwater may at any time or times, in its absolute discretion (a)
extend or change the time, manner, place or other term of payment of the
Obligations or any part thereof, (b) waive compliance by XXXX or any other
guarantor with any term, covenant, agreement or condition on its part to be
complied with under the Loan Documents, (c) obtain or release any guarantor
(including the Guarantor) obligated with respect to the Obligations or any part
thereof, (d) settle or compromise with XXXX, or any other person or entity
obligated with respect to the Obligations or any part thereof, and subordinate
upon any terms Clearwater's right or rights to receive payment of the
Obligations or any part thereof and (e) amend or otherwise modify the Loan
Documents or any part thereof, or the liability of XXXX
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or any other person or entity obligated with respect thereto, in any manner, all
without notice to or the assent of the Guarantor and without affecting this
Guaranty or the liability of the Guarantor and without affecting this Guaranty
or the liability of the Guarantor hereunder, which shall continue until fully
paid in cash or payment is otherwise duly provided for in a manner satisfactory
to Clearwater. This Guaranty, and the liability of the Guarantor hereunder,
shall be reinstated and revived, and Clearwater's rights under this Guaranty
shall continue, with respect to any amount (or portion thereof) at any time paid
to or received by Clearwater on account of the Loan Document or that shall, at
any time after Clearwater's receipt of such payment, be required to be restored
or returned by Clearwater upon the bankruptcy, insolvency or reorganization of
XXXX or any other person or entity obligated with respect to the Loan Documents
or for any other reason, all as though such amount (or portion thereof) had not
been so paid or received by Clearwater.
(iii) Subordination of Subrogation Claims. The Guarantor hereby agrees not
to enforce or seek to satisfy, either against XXXX or any other guarantor or out
of any of its or their respective assets, any claim that Guarantor may have
against XXXX, or any such other guarantor by reason of any payment made to
Clearwater hereunder on account of the Loan Documents, and not to ask for,
demand, take or receive any payment from XXXX, or any such other guarantor or
account thereof, until the Obligations have been paid in full in cash or payment
of such obligations has otherwise been duly provided for in a manner
satisfactory to Clearwater. The Guarantor hereby agrees that should any payment
or payments be received by the Guarantor contrary to the terms of the preceding
sentence, the Guarantor will promptly pay over the same to Clearwater for credit
or application to the payment or prepayment of all or any part of the
Obligations, in any order selected by Clearwater, and to hold such payment or
payments in trust for Clearwater until so paid over to Clearwater.
(iv) Waiver. The Guarantor hereby waives (a) acceptance of this Guaranty
by Clearwater and notice thereof, (b) presentment for payment, demand, notice of
non-payment, protest and notice of protest with respect to the Obligations or
any part thereof and all other notices and (c) promptness by Clearwater in
giving any notice to or making any claim or demand upon the Guarantor hereunder,
but no act or omission of any kind in the premises shall in any way affect this
Guaranty or impair Clearwater's rights hereunder.
(v) Notices, Etc. All notices, demands and other communications required
or permitted to be given to or made upon the Guarantor or Clearwater with
respect to this Guaranty shall be in writing and delivered or sent, by the means
authorized under the Loan Agreement, if to the Guarantor, to him at: c/x
XXXX/Biophile International Corporation, 0000 XX 00xx Xxxx, Xxxxx X,
Xxxxxxxxxxx, Xxxxxxx 00000; and if to Clearwater to it at: the then current
address designated by Clearwater pursuant to the Loan Agreement for the receipt
of notices and other communications to it under the Loan Agreement. Any such
demand,
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notice or communication shall be deemed received by the intended recipient at
the time provided for under the terms of the Loan Agreement, according to the
means by which sent.
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(vi) Continuing Guaranty. This Guaranty shall remain in full force and
effect until the Obligations have been paid in full in cash or payment of the
Obligations has been duly provided for in a satisfactory manner to Clearwater,
and all expenses (which the Guarantor hereby agrees to pay) incurred by
Clearwater in enforcing this Guaranty have been paid. This Guaranty may not be
released, altered, modified or amended except in a writing signed by Clearwater.
(vii) Governing Law; Binding Character. This Guaranty shall be deemed to
have been made under, and for all purposes shall be governed by and construed
and enforced in accordance with, the laws of the State of New York, without
regard to its principles of conflict of laws. This Guaranty shall be binding
upon the Guarantor and its successors and assigns and shall inure to the benefit
of Clearwater and its successors and assigns. The Guarantor shall not be
permitted to assign any of its obligations hereunder (voluntarily, by operation
of the law or otherwise) without the prior written consent of Clearwater.
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Xxxxx Xxxx
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