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COAST
CONTINUING GUARANTY
Borrower: THE NEW ALGAE COMPANY
dba Cell Tech,
an Oregon corporation
THE NEW EARTH COMPANY,
an Oregon corporation
Guarantor: HUMASCAN INC.,
a Delaware corporation
Date: August 6, 1999
This Continuing Guaranty (this "Guaranty") is executed by the above-named
guarantor ("Guarantor"), as of the above date, in favor of COAST BUSINESS
CREDIT, a division of Southern Pacific Bank, a California corporation ("Coast"),
with offices at 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000, Xxxx Xxxxxxx, Xxxxxxxxxx
00000, with respect to the Indebtedness (as hereinafter defined) of the
above-named borrowers (collectively, "Borrower").
1. CONTINUING GUARANTY. Guarantor hereby unconditionally guarantees and
promises to pay on demand to Coast, at the address indicated above, or at such
other address as Coast may direct, in lawful money of the United States, and to
perform for the benefit of Coast, as and for Guarantor's own debt, all
Indebtedness of Borrower now or hereafter owing to or held by Coast, until the
Indebtedness has been indefeasibly paid in full in accordance with Section 12
hereof. As used herein, the term "Indebtedness" is used in its most
comprehensive sense and shall mean and include without limitation: (a) any and
all debts, duties, obligations, liabilities, representations, warranties and
guaranties of Borrower heretofore, now, or hereafter made, incurred, or created,
whether directly to Coast or acquired by Coast by assignment or otherwise, or
held by Coast on behalf of others, however arising, whether voluntary or
involuntary, due or not due, absolute or contingent, liquidated or unliquidated,
certain or uncertain, determined or undetermined, monetary or nonmonetary,
written or oral, and whether Borrower may be liable individually or jointly with
others, and regardless of whether recover thereon may be or hereafter become
barred by any statute of limitations, discharged or uncollectible in any
bankruptcy, insolvency or other proceeding, or otherwise unenforceable, and (b)
any and all amendments, modifications, renewals and extensions of any or all of
the foregoing, including without limitation, amendments, modifications, renewals
and extensions which are evidenced by any new or additional instruments
documents or agreements; and (c) any and all attorneys fees, court costs, and
collection charges incurred in endeavoring to collect or enforce any of the
foregoing against Borrower, Guarantor, or any other person liable thereon
(whether or not suit be brought) and any other expenses of, for or incidental to
collection thereof. As used herein, the term "Borrower" shall include any
successor to the business and assets of Borrower, and shall also include
Borrower in its capacity as a debtor or debtor in possession under the federal
Bankruptcy Code, and any trustee custodian or receiver for Borrower or any of
its assets, should Borrower hereafter become the subject of any bankruptcy or
insolvency proceeding, voluntary or involuntary; and all indebtedness,
liabilities and obligations incurred by any such person shall be included in the
Indebtedness guaranteed hereby. This Guaranty is given in
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consideration for credit and other financial accommodations which may, from time
to time, be given by Coast to Borrower in Coast's sole discretion, but Guarantor
acknowledges and agrees that acceptance by Coast of this Guaranty shall not
constitute a commitment of any kind by Coast to extend such credit or other
financial accommodation to Borrower or to permit Borrower to incur indebtedness
to Coast.
2. PERFORMANCE UNDER THIS GUARANTY. In the event that Borrower fails to
make any payment of any Indebtedness on or before the due date thereof, or
perform, keep, observe or fulfill any obligation, agreement or covenant included
in the Indebtedness on or before the due date thereof, Guarantor immediately
shall cause such Indebtedness to by paid, performed, kept, observed, or
fulfilled, as the case may be.
3. WAIVERS. Guarantor hereby waives: (a) presentment for payment, notice of
dishonor, demand, protest, and notice thereof as to any instrument and all other
notices and demands to which Guarantor might be entitled, including without
limitation notice of all of the following: the acceptance hereof; the creation,
existence, or acquisition of any Indebtedness; the amount of the Indebtedness
from time to time outstanding; any foreclosure sale or other disposition of any
property which secures any or all of the Indebtedness or which secures the
obligations of any other guarantor of any or all of the Indebtedness: any
adverse change in Borrower's financial position; any other fact which might
increase Guarantor's risk; any default, partial payment or non-payment of all or
any part of the Indebtedness; the occurrence of any other Event of Default (as
hereinafter defined); any and all agreements and arrangements between Coast and
Borrower and any changes, modifications, or extensions thereof, and any
revocation, modification or release of any guaranty of any or all of the
Indebtedness by any person (including without limitation any other person
signing this Guaranty); (b) any right to require Coast to institute suit
against, or to exhaust its rights and remedies against, Borrower or any other
person, or to proceed against any property of any kind which secures all or any
part of the Indebtedness, or to exercise any right of offset or other right with
respect to any reserves, credits or deposit accounts held by or maintained with
Coast or any indebtedness of Coast to Borrower, or to exercise any other right
or power, or pursue any other remedy Coast may have; (c) any defense arising by
reason of any disability or other defense of Borrower or any other guarantor or
any endorser, co-maker or other person, or by reason of the cessation from any
cause whatsoever of any liability of Borrower or any other guarantor or any
endorser, co-maker or other person, with respect to all or any part of the
Indebtedness, or by reason of any act or omission of Coast or others which
directly or indirectly results in the discharge or release of Borrower or any
other guarantor or any other person or any Indebtedness or any security
therefor, whether by operation of law or otherwise; (d) any defense arising by
reason of any failure of Coast to obtain, perfect, maintain or keep in force any
security interest in, or lien or encumbrance upon, any property of Borrower or
any other person: (e) any defense based upon any failure of Coast to give
Guarantor notice of any sale or other disposition of any property securing any
or all of the Indebtedness, or any defects in any such notice that may be given,
or any failure to Coast to comply with any provision of applicable law in
enforcing any security interest in or lien upon any property securing any or all
of the Indebtedness including, but not limited to, any failure by Coast to
dispose of any property securing any or all of the Indebtedness in a
commercially reasonable manner; (f) any defense based upon or arising out of any
bankruptcy, insolvency, reorganization, arrangement, readjustment of debt,
liquidation or dissolution proceeding commenced by or against Borrower or any
other guarantor or any endorser, co-maker or other person, including without
limitation any discharge of, or bar against collecting, any of the Indebtedness
(including without limitation any interest thereon), in or as a result of any
such proceeding and (g) the benefit of any and all statutes of limitation with
respect to any action based upon, arising out of or related to this Guaranty.
Until all of the Indebtedness has been paid, performed, and discharged in full,
nothing shall discharge or satisfy the liability of Guarantor hereunder except
the full performance and payment of all of the Indebtedness. If any claim is
ever made upon Coast for repayment or recovery of any amount or amounts received
by Coast in payment of or on account of any of the Indebtedness, because of any
claim that any such payment constituted a preferential transfer or fraudulent
conveyance, or for any other reason whatsoever, and Coast repays all or part of
said amount by reason of any judgment, decree or order of any court or
administrative body having jurisdiction over Coast or any of its property, or by
reason of any settlement or compromise of any such claim effected by Coast with
any such claimant (including without limitation the Borrower), then and in any
such event, Guarantor agrees that any such judgment, decree, order, settlement
and compromise shall be binding upon Guarantor, notwithstanding any revocation
or release of this Guaranty or the cancellation of any note or other instrument
evidencing any of the Indebtedness, or any release of any of the Indebtedness,
and Guarantor shall be and remain liable to Coast under this Guaranty for the
amount so repaid or recovered, to the same extent as if such amount had never
originally been received by Coast, and the provisions of this sentence shall
survive, and continue in effect, notwithstanding any revocation or release of
this Guaranty. Guarantor hereby expressly and unconditionally waives all rights
of subrogation, reimbursement and indemnity of every kind against Borrower, and
all rights of recourse to any assets or property of Borrower, and all rights to
any
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collateral or security held for the payment and performance of any Indebtedness,
including (but not limited to) any of the foregoing rights which Guarantor may
have under any present or future document or agreement with any Borrower or
other person, and including (but not limited to) any of the foregoing rights
which Guarantor may have under any equitable doctrine of subrogation, implied
contract, or unjust enrichment, or any other equitable or legal doctrine.
Neither Coast, nor any of its directors, officers, employees, agents, attorneys
or any other person affiliated with or representing Coast shall be liable for
any claims, demands, losses or damages, of any kind whatsoever, made, claimed,
incurred or suffered by Guarantor or any other party through the ordinary
negligence of Coast, or any of its directors, officers, employees, agents,
attorneys or any other person affiliated with or representing Coast.
4. CONSENTS. Guarantor hereby consents and agrees that, without notice to
or by Guarantor and without affecting or impairing in any way the obligations or
liability of Guarantor hereunder, Coast may, from time to time before or after
revocation of this Guaranty, do any one or more of the following in Coast's sole
and absolute discretion; (a) accelerate, accept partial payments of, compromise
or settle, renew, extend the time for the payment, discharge, or performance of,
refuse to enforce, and release all or any parties to, any or all of the
indebtedness; (b) grant any other indulgence to Borrower or any other person in
respect of any or all of the Indebtedness or any other matter; (c) accept,
release, waive, surrender, enforce, exchange, modify, impair, or extend the time
for the performance, discharge, or payment of, any and all property of any kind
securing any or all of the Indebtedness or any guaranty of any or all of the
Indebtedness, or on which Coast at any time may have a lien, or refuse to
enforce its rights or make any compromise or settlement or agreement therefor
in respect of any or all of such property; (d) substitute or add, or take any
action or omit to take any action which results in the release of, any one or
more endorsers or guarantors of all or any part of the Indebtedness, including,
without limitation one or more parties to this Guaranty, regardless of any
destruction or impairment of any right of contribution or other right of
Guarantor; (e) amend, alter or change in any respect whatsoever any term or
provision relating to any or all of the Indebtedness, including the rate of
interest thereon; (f) apply any sums received from Borrower, any other
guarantor, endorser, or co-signer, or from the disposition of any collateral or
security, to any indebtedness whatsoever owing from such person or secured by
such collateral or security, in such manner and order as Coast determines in its
sole discretion, and regardless of whether such indebtedness is part of the
Indebtedness, is secured, or is due and payable; (g) apply any sums received
from Guarantor or from the dispositions of any collateral or security securing
the obligations of Guarantor, to any of the Indebtedness in such manner and
order as Coast determines in its sole discretion, regardless of whether or not
such Indebtedness is secured or is due and payable. Guarantor consents and
agrees that Coast shall be under no obligation to marshal any assets in favor of
Guarantor, or against or in payment of any or all of the Indebtedness. Guarantor
further consents and agrees that Coast shall have no duties or responsibilities
whatsoever with respect to any property securing any or all of the Indebtedness.
Without limiting the generality of the foregoing, Coast shall have no obligation
to monitor, verify, audit, examine, or obtain or maintain any insurance with
respect to, any property securing any or all of the Indebtedness.
5. ACCOUNT STATED. Coast's books and records showing the account between it
and the Borrower shall be admissible in evidence in any action or proceeding as
prima facie proof of the items therein set forth. Coast's monthly statements
rendered to Borrower shall be binding upon Guarantor (whether or not Guarantor
receives copies thereof), and shall constitute an account stated between Coast
and Borrower, unless Coast receives a written statement of Borrower's exceptions
within 30 days after the statement was mailed to Borrower. Guarantor assumes
full responsibility for obtaining copies of such monthly statements from
Borrower if Guarantor desires such copies.
6. EXERCISE OF RIGHTS AND REMEDIES; FORECLOSURE OF TRUST DEEDS. Guarantor
consents and agrees that without notice to or by Guarantor and without affecting
or impairing in any way the obligations or liability of Guarantor hereunder,
Coast may, from time to time, exercise any right or remedy it may have with
respect to any or all of the Indebtedness or any guaranty thereof, including
without limitation, judicial foreclosure, nonjuidical foreclosure, exercise of a
power of sale, and taking a deed, assignment or transfer in lieu of foreclosure
as to any such property, and Guarantor expressly waives any defense based upon
the exercise of any such right or remedy, notwithstanding the effect thereof
upon any of Guarantor's rights, including without limitation, any destruction of
Guarantor's right of subrogation against Borrower and any destruction of
Guarantor's right of contribution or other right against any other guarantor of
any or all of the Indebtedness or against any other person, whether by operation
of Sections 580a, 580d or 726 of the California Code of Civil Procedure, or any
comparable provisions of the laws of any other jurisdiction, or any other
statutes or rules of law now or hereafter in effect, or otherwise Pursuant to
Section 2856 to the California Civil Code. Guarantor waives all rights and
defenses that Guarantor may have because the Indebtedness is secured by real
property. This means, among other things: (a) Coast may collect
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from Guarantor without first foreclosing on any real or personal property
collateral pledged by Borrower or any other guarantor; and (b) if Coast
forecloses on any real property collateral pledged by Borrower or any other
guarantor: (i) the amount of the Indebtedness 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 (ii) Coast may collect from
Guarantor even if Coast, by foreclosing on such real property collateral, has
destroyed any right Guarantor may have to collect from Borrower or such other
guarantor. This is an unconditional and irrevocable waiver of any rights and
defenses Guarantor may have because the Indebtedness is secured by real
property. These rights and defenses include, but are not limited to, any rights
or defenses based upon Section 580a, 580b, 580d, or 726 of the California Code
of Civil Procedure.
7. RIGHT TO ATTACHMENT REMEDY. Guarantor agrees that, notwithstanding the
existence of any property securing any or all of the Indebtedness, Coast shall
have all of the rights of an unsecured creditor of Guarantor, including without
limitation the right to obtain a temporary protective order and writ of
attachment against Guarantor with respect to any sums due under this Guaranty.
Guarantor further agrees that in the event any property secures the obligations
of Guarantor under this Guaranty, to the extent that Coast, in its sole and
absolute discretion, determines prior to the disposition of such property that
the amount to be realized by Coast therefrom may be less than the indebtedness
of the Guarantor under this Guaranty. Coast shall have all the rights of an
unsecured creditor against Guarantor, including without limitation the right of
Coast, prior to the disposition of said property, to obtain a temporary
protective order and writ of attachment against Guarantor. Guarantor waives the
benefit of Section 483.010(b) of the California Code of Civil Procedure and of
any and all other statutes and rules of law now or hereafter in effect requiring
Coast to first resort to or exhaust all such collateral before seeking or
obtaining any attachment remedy against Guarantor. Coast shall have no liability
to Guarantor as a result thereof, whether or not the actual deficiency realized
by Coast is less than the anticipated deficiency on the basis of which Coast
obtains a temporary protective order or writ of attachment.
8. INDEMNITY. Guarantor hereby agrees to indemnify Coast and hold Coast
harmless from and against any and all claims, debts, liabilities, demands,
obligations, actions, causes of action, penalties, costs and expenses (including
without limitation attorneys' fees), of every nature, character and description,
which Coast may sustain or incur based upon or arising out of any of the
Indebtedness, any actual or alleged failure to collect and pay over any
withholding or other tax relating to Borrower or its employees, any relationship
or agreement between Coast and Borrower, any actual or alleged failure of Coast
to comply with any writ of attachment or other legal process relating to
Borrower or any of its property, or any other matter, cause or thing whatsoever
occurred, done, omitted or suffered to be done by Coast relating in any way to
Borrower or the Indebtedness (except any such amounts sustained or incurred as
the result of the gross negligence or willful misconduct of Coast or any of its
directors, officers, employees, agents, attorneys, or any other person
affiliated with or representing Coast). Notwithstanding any provision in this
Guaranty to the contrary, the indemnity agreement set forth in this Section
shall survive any termination or revocation of this Guaranty and shall for all
purposes continue in full force and effect.
9. SUBORDINATION. Any and all rights of Guarantor under any and all debts,
liabilities and obligations owing from Borrower to Guarantor, including any
security for the guaranties of any such obligations, whether now existing or
hereafter arising, are hereby subordinated in right of payment to the prior
payment in full of all of the Indebtedness. No payment in respect of any such
subordinated obligations shall at any time be made to or accepted by Guarantor
if at the time of such payment any Indebtedness is outstanding. If any Event of
Default has occurred, Borrower and any assignee, trustee in bankruptcy,
receiver, or any other person having custody or control over any or all of
Borrower's property are hereby authorized and directed to pay to Coast the
entire unpaid balance of the Indebtedness before making any payments whatsoever
to Guarantor, whether as a creditor, shareholder, or otherwise and insofar as
may be necessary for that purpose. Guarantor hereby assigns and transfers to
Coast all rights to any and all debts, liabilities and obligations owing from
Borrower to Guarantor, including any security for and guaranties of any such
obligations, whether now existing or hereafter arising, including without
limitation any payments, dividends or distributions out of the business or
assets of Borrower. Any amounts received by Guarantor in violation of the
foregoing provisions shall be received and held as trustee for the benefit of
Coast and shall forthwith be paid over to Coast to be applied to the
Indebtedness in such order and sequence as Coast shall in its sole discretion
determine, without limiting or affecting any other right or remedy which Coast
may have hereunder or otherwise and without otherwise affecting the liability of
Guarantor hereunder. Guarantor hereby expressly waives any right to set-off or
assert any counterclaim against Borrower.
10. CONTINUING GUARANTY. This Guaranty includes Indebtedness arising under
successive transactions continuing, compromising, extending, increasing,
modifying, releasing, or renewing the Indebtedness, changing the interest rate,
payment terms, or other terms
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and conditions thereof, or creating new or additional Indebtedness after prior
Indebtedness has been satisfied in whole or in part. Guarantor hereby waives and
agrees not to assert any right Guarantor has under Section 2815 of the
California Civil Code, or otherwise, to revoke this guaranty as to future
Indebtedness.
11. INDEPENDENT AND PRIMARY LIABILITY. This Guaranty is a primary and
original obligation of Guarantor, is not merely the creation of a surety
relationship, and is an absolute, unconditional, and continuing guaranty of
payment and performance which shall remain in full force and effect without
respect to future changes in conditions, including any change of law or any
invalidity or irregularity with respect to any of the agreements between
Borrower and Coast. Guarantor agrees that Guarantor is severally and not jointly
and severally liable, with any other guarantor of the Indebtedness, to Coast, to
the extent set forth in Section 2 hereof, that the obligations of Guarantor
hereunder are independent of the obligations of Borrower or any other guarantor,
and that a separate action may be brought against Guarantor whether such action
is brought against Borrower or any other guarantor or whether Borrower or any
such other guarantor is joined in such action. Guarantor agrees that Guarantor's
liability hereunder shall be immediate and shall not be contingent upon the
exercise or enforcement by Coast of whatever remedies it may have against
Borrower or any other guarantor, or the enforcement of any lien or realization
upon any security Coast may at any time possess. Guarantor agrees that any
release which may be given by Coast to Borrower or any other guarantor shall not
release Guarantor. The liability of Guarantor hereunder shall not be affected,
revoked, impaired, or reduced by any one or more of the following: (a) any
direction as to the application of payment by Borrower or by any other party; or
(b) any other continuing or restrictive guaranty or undertaking or any
limitation on the liability of any other guarantor (whether under this Guaranty
or under any other agreement); or (c) any payment on or reduction of any such
other guaranty or undertaking; or (d) any revocation, amendment, modification or
release of any such other guaranty or undertaking; or (e) any dissolution or
termination of, or increase, decrease, or change in membership of Guarantor, in
the event that Guarantor is a partnership. Guarantor hereby expressly represents
that he was not induced to give this Guaranty by the fact that there are or may
be other guarantors either under this Guaranty or otherwise, and Guarantor
agrees that any release of any one or more of such other guarantors shall not
release Guarantor from his obligations hereunder either in full or to any lesser
extent.
12. INDEFEASIBLE PAYMENT. The Indebtedness shall not be considered
indefeasibly paid for purposes of this Guaranty unless and until all payments to
Coast are no longer subject to any right on the part of any person, including
Borrower. Borrower as a debtor in possession, or any trustee (whether appointed
under the Bankruptcy Code or otherwise) of any of Borrower's assets, to
invalidate or set aside such payments or to seek to recoup the amount of such
payments or any portion thereof, or to declare same to be fraudulent or
preferential. In the event that, for any reason, any portion of such payments to
Coast is set aside or restored, whether voluntarily or involuntarily, after the
making thereof, then the obligation intended to be satisfied thereby shall be
revived and continued in full force and effect as if said payment or payments
had not been made, and Guarantor shall be liable for the full amount Coast is
required to repay plus any and all costs and expenses (including attorneys' fees
and expenses and attorneys' fees and expenses incurred pursuant to proceedings
arising under the Bankruptcy Code) paid by Coast in connection therewith.
13. FINANCIAL CONDITION OF BORROWER. Guarantor is fully aware of the
financial condition of Borrower and is executing and delivering this Guaranty at
Borrower's request and based solely upon his own independent investigation of
all matters pertinent hereto, and Guarantor is not relying on any manner upon
any representation or statement of Coast with respect thereto. Guarantor
represents and warrants that he is in a position to obtain, and Guarantor hereby
assumes full responsibility for obtaining, any additional information concerning
Borrower's financial condition and any other matter pertinent hereto as
Guarantor may desire, and Guarantor is not relying upon or expecting Coast to
furnish to him any information now or hereafter in Coast's possession concerning
the same or any other matter. By executing this Guaranty, Guarantor knowingly
accepts the full range of risks encompassed within a contract of continuing
guaranty, which risks Guarantor acknowledges include without limitation the
possibility that Borrower will incur additional Indebtedness for which Guarantor
will be liable hereunder after Borrower's financial condition or ability to pay
such Indebtedness has deteriorated and/or after bankruptcy or insolvency
proceedings have been commenced by or against Borrower. Guarantor shall have no
right to require Coast to obtain or disclose any information with respect to the
Indebtedness, the financial condition or character of Borrower, the existence of
any collateral or security for any or all of the Indebtedness, the filing by or
against Borrower of any bankruptcy or insolvency proceeding, the existence of
any other guaranties of all or any part of the Indebtedness, any action or
non-action on the part of Coast, Borrower, or any other person, or any other
matter, fact, or occurrence.
14. REPORTS AND FINANCIAL STATEMENT OF GUARANTOR. Guarantor shall, at its
sole cost and expense at any time and from time to time, prepare or cause to be
prepared, and provide to Coast upon Coast's request (i) such financial
statements and reports concerning Guarantor for
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such periods of time as Coast may designate, (ii) any other information
concerning Guarantor's business, financial condition or affairs as Coast may
request, and (iii) copies of any and all foreign, federal, state and local tax
returns and reports of or relating to Guarantor as Coast may from time to time
request. Guarantor hereby intentionally and knowingly waives any and all rights
and privileges it may have not to divulge or deliver said tax returns, reports
and other information which are requested by Coast hereunder or in any
litigation in which Coast may be involved relating directly or indirectly to
Borrower or to Guarantor. Guarantor further agrees immediately to give written
notice to Coast of any adverse change in Guarantor's financial condition. All
reports and information furnished to Coast hereunder shall be complete, accurate
and correct in all respects. Whenever requested, Guarantor shall further deliver
to Coast a certificate signed by Guarantor (and, if Guarantor is a partnership,
by all general partners of Guarantor, in their individual capacities, and, if
Guarantor is a corporation, by the president and secretary of Guarantor, in
their individual capacities) warranting and representing that all reports,
financial statements and other documents and information delivered or caused to
be delivered to Coast under this Guaranty, are complete, correct and thoroughly
and accurately present the financial condition of Guarantor, and that there
exists on the date of delivery of said certificate to Coast no condition or
event which constitutes an Event of Default under this Guaranty.
15. REPRESENTATIONS AND WARRANTIES. Guarantor hereby represents and
warrants to Coast that (i) Guarantor is a corporation duly organized and
existing under the laws of Delaware and has the power and authority to own its
own properties and assets, and to transact the business in which it is engaged,
and is properly licensed, qualified to do business and in good standing in every
jurisdiction where the conduct of its business requires it to be so qualified;
(ii) the execution, delivery and performance of this Guaranty are within
Guarantor's powers, are not in conflict with the terms of any charter, bylaw,
certificate of incorporation or other organization papers of Guarantor, and do
not result in a breach of or constitute a default under any contract,
obligation, indenture or other instrument to which Guarantor is a party or by
which Guarantor is bound or affected; (iii) there is no law, rule or regulation,
nor is there any judgment, decree or order of any court or governmental
authority binding on Guarantor which would be contravened by the execution,
delivery, performance or enforcement of this Guaranty and the other agreements,
instruments and documents executed by Guarantor in connection herewith
(collectively, with this Guaranty, the "Guarantor Loan Documents"); (iv)
Guarantor has taken all corporate action necessary to authorize the execution
and delivery of the Guarantor Loan Documents, and the consummation of the
transactions contemplated hereby and thereby. Upon their execution and delivery
in accordance with their respective terms, the Guarantor Loan Documents will
constitute legal, valid and binding agreements and obligations of Guarantor
enforceable against Guarantor in accordance with their respective terms, except
as enforceability may be limited by bankruptcy, insolvency, fraudulent
conveyance and similar laws and equitable principles affecting the enforcement
of creditors' rights generally; (v) no approval, consent, exemption or other
action by, or notice to or filing with, any governmental authority is necessary
in connection with the execution, delivery, performance or enforcement of the
Guarantor Loan Documents; and (vi) it is in Guarantor's direct interest to
assist Borrower in procuring credit because Borrower is an affiliate of
Guarantor, furnishes goods or services to Guarantor, purchases or acquires goods
or services from Guarantor, and/or otherwise has a direct or indirect corporate
or business relationship with Guarantor.
16. COSTS. Whether or not suit be instituted, Guarantor agrees to reimburse
Coast on demand for all reasonable attorneys' fees and all other reasonable
costs and expenses incurred by Coast in enforcing this Guaranty, or arising out
of or relating in any way to this Guaranty, or in enforcing any of the
Indebtedness against Borrower, Guarantor, or any other person, or in connection
with any property of any kind securing all or any part of the Indebtedness.
Without limiting the generality of the foregoing, and in addition thereto,
Guarantor shall reimburse Coast on demand for all reasonable attorneys' fees and
costs Coast incurs in any way relating to Guarantor, Borrower or the
Indebtedness, in order to obtain legal advice; enforce or seek to enforce any of
its rights; commence, intervene in, respond to, or defend any action or
proceeding; file, prosecute or defend any claim or cause of action in any action
or proceeding (including without limitation any probate claim, bankruptcy claim,
third-party claim, secured creditor claim, reclamation complaint, and complaint
for relief from any stay under the Bankruptcy Code or otherwise); protect,
obtain possession of, sell, lease, dispose of or otherwise enforce any security
interest in or lien on any property of any kind securing any or all of the
Indebtedness; or represent Coast in any litigation with respect to Borrower's or
Guarantor's affairs. In the event either Coast or Guarantor files any lawsuit
against the other predicated on a breach of this Guaranty, the prevailing party
in such action shall be entitled to recover its attorneys' fees and costs of
suit from the non-prevailing party.
17. NOTICES. Any notice which a party shall be required or shall desire to
give to the other hereunder (except for notice of revocation, which shall be
governed by Section 10 of this Guaranty) shall be given by personal delivery or
by telecopier or by depositing the same in the United States mail, first class
postage pre-paid, addressed to Coast at its address set forth in the heading of
this Guaranty and to
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Guarantor at his address set forth under his signature hereon, and such notices
shall be deemed duly given on the date of personal delivery or one day after the
date telecopied or 3 business days after the date of mailing as aforesaid. Coast
and Guarantor may change their address for purposes of receiving notices
hereunder by giving written notice thereof to the other party in accordance
herewith. Guarantor shall give Coast immediate written notice of any change in
his address.
18. CLAIMS. Guarantor agrees that any claim or cause of action by Guarantor
against Coast, or any of Coast's directors, officers, employees, agents,
accountants or attorneys, based upon, arising from, or relating to this
Guaranty, or any other present or future agreement between Coast and Guarantor
or between Coast and Borrower, or any other transaction contemplated hereby or
thereby or relating hereto or thereto, or any other matter, cause or thing
whatsoever, whether or not relating hereto or thereto, occurred, done, omitted
or suffered to be done by Coast, or by Coast's directors, officers, employees,
agents, accountants or attorneys, whether sounding in contract or in tort or
otherwise, shall be barred unless asserted by Guarantor by the commencement of
an action or proceeding in a court of competent jurisdiction within Los Angeles
County, California, by the filing of a complaint within one year after the first
act, occurrence or omission upon which such claim or cause of action, or any
part thereof, is based and service of a summons and complaint on an officer of
Coast or any other person authorized to accept service of process on behalf of
Coast, within 30 days thereafter. Guarantor agrees that such one year period is
a reasonable and sufficient time for Guarantor to investigate and act upon any
such claim or cause of action. The one year period provided herein shall not be
waived, tolled, or extended except by a specific written agreement of Coast.
This provision shall survive any termination of this Guaranty or any other
agreement.
19. CONSTRUCTION; SEVERABILITY. If more than one person has executed this
Guaranty, the term "Guarantor" as used herein shall be deemed to refer to all
and any one or more such persons and their obligations hereunder shall be joint
and several. Without limiting the generality of the foregoing, if more than one
person has executed this Guaranty, this Guaranty shall in all respects be
interpreted as though each person signing this Guaranty had signed a separate
Guaranty, and references herein to "other guarantors" or words of similar effect
shall include without limitation other persons signing this Guaranty. As used in
this Guaranty, the term "property" is used in its most comprehensive sense and
shall mean all property of every kind and nature whatsoever, including without
limitation real property, personal property, mixed property, tangible property
and intangible property. Words used herein in the masculine gender shall include
the neuter and feminine gender, words used herein in the neuter gender shall
include the masculine and feminine, words used herein in the singular shall
include the plural and words used in the plural shall include the singular,
wherever the context so reasonably requires. If any provision of this Guaranty
or the application thereof to any party or circumstance is held invalid, void,
inoperative or unenforceable, the remainder of this Guaranty and the application
of such provision to other parties or circumstances shall not be affected
thereby, the provisions of this Guaranty being severable in any such instance.
20. GENERAL PROVISIONS. Coast shall have the right to seek recourse against
Guarantor to the full extent provided for herein and in any other instrument or
agreement evidencing obligations of Guarantor to Coast, and against Borrower to
the full extent of the Indebtedness. No election in one form of action or
proceeding, or against any party, or on any obligation, shall constitute a
waiver of Coast's right to proceed in any other form of action or proceeding or
against any other party. The failure of Coast to enforce any of the provisions
of this Guaranty at any time or for any period of time shall not be construed to
be a waiver of any such provision or the right thereafter to enforce the same.
All remedies hereunder shall be cumulative and shall be in addition to all
rights, powers and remedies given to Coast by law or under any other instrument
or agreement. Time is of the essence in the performance by Guarantor of each and
every obligation under this Guaranty. If Borrower is a corporation partnership
or other entity, Guarantor hereby agrees that Coast shall have no obligation to
inquire into the power or authority of Borrower or any of its officers,
directors, partners, or agents acting or purporting to act on its behalf, and
any Indebtedness made or created in reliance upon the professed exercise of any
such power or authority shall be included in the Indebtedness guaranteed hereby.
This Guaranty is the entire and only agreement between Guarantor and Coast with
respect to the guaranty of the Indebtedness of Borrower by Guarantor, and all
representations, warranties, agreements, or undertakings heretofore or
contemporaneously made, which are not set forth herein, are superseded hereby.
No course of dealings between the parties, no usage of the trade, and no parol
extrinsic evidence of any nature shall be used or be relevant to supplement or
explain or modify any term or provision of this Guaranty. There are no
conditions to the full effectiveness of this Guaranty. The terms and provisions
hereof may not be waived, altered, modified, or amended except in a writing
executed by Guarantor and a duly authorized officer of Coast. All rights,
benefits and 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,
7
Coast Business Credit Continuing Guaranty
--------------------------------------------------------------------------------
administrators, personal representatives, successors and assigns. Section
headings are used herein for convenience only. Guarantor acknowledges that the
same may not describe completely 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 provisions hereof.
21. GOVERNING LAW; VENUE AND JURISDICTION. This 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 California without regard for principles of
conflicts of laws. In order to induce Coast to accept this Guaranty, and as a
material part of the consideration therefor, Guarantor (i) agrees that all
actions or proceedings relating directly or indirectly hereto shall, at the
option of Coast, be litigated in courts located within Los Angeles County,
California; (ii) consents to the jurisdiction of any such court and consents to
the service 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.
22. MUTUAL WAIVER OF RIGHT TO JURY TRIAL. COAST AND GUARANTOR HEREBY WAIVE
THE RIGHT TO TRIAL BY JURY IN ANY ACTION, CLAIM, LAWSUIT OR PROCEEDING BASED
UPON, ARISING OUT OF, OR IN ANY WAY RELATING TO: (i) THIS GUARANTEE OR ANY
SUPPLEMENT OR AMENDMENT THERETO; OR (ii) ANY OTHER PRESENT OR FUTURE INSTRUMENT
OR AGREEMENT BETWEEN COAST AND GUARANTOR; OR (iii) ANY BREACH, CONDUCT, ACTS OR
OMISSIONS OF COAST OR GUARANTOR OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, ATTORNEYS OR ANY OTHER PERSON AFFILIATED WITH OR REPRESENTING
COAST OR GUARANTOR; IN EACH OF THE FOREGOING CASES, WHETHER SOUNDING IN CONTRACT
OR TORT OR OTHERWISE.
23. RECEIPT OF COPY. Guarantor acknowledges receipt of a copy of this
Guaranty.
HUMANSCAN INC.,
a Delaware corporation
By: /s/ XXXXX X. XXXXXXX
---------------------------------
Name: /s/ XXXXX X. XXXXXXX
---------------------------------
Title: /s/ PRESIDENT
---------------------------------
ACCEPTED AND AGREED:
COAST BUSINESS CREDIT,
a division of Southern Pacific Bank, a California corporation
By: /s/ XXXX X. XXXXXXX
---------------------------------
Title: Vice President Underwriting
------------------------------------
8
