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EXHIBIT 10.8
UNCONDITIONAL CONTINUING GUARANTY
(Loan Agreement)
THIS UNCONDITIONAL CONTINUING GUARANTY ("Guaranty") is made and entered into as
of May 17, 1995, for the benefit of _________________________________
("Lender"), whose principal place of business is located at 0000 XxxXxxxxx
Xxx., Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, by American Shared Hospital
Services, a California corporation ("Guarantor"), whose principal place of
business is located at Four Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx
Xxxxxxxxxx 00000.
RECITALS
A. Guarantor directly or indirectly owns all of the ownership
interests in American Shared-CuraCare, a California general partnership, and
CuraCare, Inc., a Delaware corporation ("collectively and individually,
"Borrower").
AGREEMENT
1. Guaranty. In order to induce Lender, and in consideration thereof,
to enter into that certain Loan and Security Agreement dated as of the date
hereof (the "Agreement") with Borrower, Guarantor and Xxxxxx X. Xxxxx, M.D.,
and any future agreements with Borrower, Guarantor unconditionally, absolutely
and irrevocably guarantees and promises to Lender to pay, perform and
discharge, any and all present and future indebtedness, liabilities and
obligations (collectively "Obligations") of Borrower to Lender, including but
not limited to the repayment to Lender of all sums presently due and owing and
of all sums that shall in the future become due and owing from Borrower whether
arising under the Agreement or otherwise.
2. Obligations. The Obligations of Borrower include any and all
loans, advances, indebtedness and other obligations owed by Borrower to Lender
of every description whether now existing or hereafter arising (including those
owed to others by Borrower and acquired by Lender by purchase, assignment or
otherwise) and include Obligations that are: (a) direct or indirect; (b) fixed
or contingent; (c) primary or as guarantor or surety; (d) liquidated or
unliquidated; (e) matured or unmatured; (f) acquired by pledge, assignment,
security interest or purchase; (g) secured or unsecured; (h) primary or
secondary; (i) joint, several or joint and several; (j) represented by letters
of credit now or hereafter issued by Lender for the benefit of or at the
request of Borrower; and (k) all of Lender's expenses, included but not limited
to (i) all reasonable costs or expenses, including without limitation, taxes
and insurance premiums, required to be paid by Borrower under the Agreement
that are paid or advanced by Lender, (ii) all filing, recording, publication
and search fees paid or incurred by Lender in connection with Lender's
transactions with Borrower, (iii) all costs and expenses incurred by Lender to
correct any Event of Default (as defined in the Agreement) or enforce any
provision of the Agreement, or in gaining possession of, maintaining, handling,
preserving, storing, shipping, selling, preparing for sale or advertising to
sell any security for the Obligations, whether or not a sale is consummated,
after the occurrence of an Event of Default (iv) all costs and expenses of suit
incurred by Lender and enforcing or defending the Agreement or any portion
thereof, and (v) all reasonable Lender's attorney's fees and expenses incurred
in advising, structuring, drafting,
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reviewing, negotiating, amending, terminating, enforcing, defending or
concerning the Agreement or any portion thereof, irrespective of whether suit
is brought, and includes each Borrower's prompt, full and faithful performance,
observance and discharge of each and every term, condition, agreement,
representation, warranty, undertaking and provision to be performed by Borrower
under the Agreement.
3. Attorneys' Fees. Guarantor agrees to pay Lender the costs and
expenses of the enforcement of this Guaranty, including attorneys' fees.
4. Waivers.
(a) Scope of Risk Defenses. Lender may at any time and from time
to time, without notice to, or the consent of, Guarantor, and without affecting
or impairing the obligation of Guarantor hereunder, do any of the following:
(i) renew or extend any Obligations of Borrower, of its customers, of any
co-guarantors (whether hereunder or under a separate instrument) or of any
other party at any time directly or contingently liable for the payment of any
of the Obligations; (ii) accept partial payments of the Obligations; (iii)
settle, release (by operation of law or otherwise), compound, compromise,
collect or liquidate any of the Obligations and the security therefor in any
manner; (iv) consent to the transfer or sale of security, or (v) bid and
purchase at any sale of any security.
(b) Primary Obligation Defenses. Guarantor waives any rights to
require Lender to (i) proceed against Borrower or any other party; (ii) proceed
against or exhaust any security held from Borrower; or (iii) pursue any other
remedy in Lender's power whatsoever. Guarantor waives any defense based on or
arising out of any defense of Borrower other than payment in full of the
Obligations, including without limitation any defense based on or arising out
of any disability of Borrower, or the unenforceability of the Obligations or
any part thereof from any cause, or the cessation from any cause of the
liability of Borrower.
(c) Commercially Reasonable Sale and Anti-deficiency Laws. Lender
may, at Lender's election, foreclose on any security held by Lender by one or
more judicial or nonjudicial sales, whether or not every aspect of any such
sale is commercially reasonable, or exercise any other right or remedy Lender
may have against Borrower, or any security, without affecting or impairing in
any way the liability of Guarantor except to the extent the Obligations have
been paid. Guarantor waives any defense arising out of any such election by
Lender, even though such election operates to impair or extinguish any right of
reimbursement or subrogation or other right or remedy of Lender against
Borrower or any security. In the absence of agreeing to the waivers contained
in this subsection 4(c), Guarantor may have the right of subrogation or
reimbursement against a Borrower. For example, if Lender elects to foreclose,
by nonjudicial sale, any deeds of trust securing any indebtedness of Borrower
to Lender, causing Guarantor to lose any such rights or create defenses to
enforcement of this Guaranty, Guarantor gives up any such potential defenses by
agreeing to these waivers. Guarantor also expressly waives any defense or
benefit that may be derived from California Code of Civil Procedure Sections
580a, 580d or 726 or comparable provisions of the laws of any other state and
all securityship defenses it would otherwise under California law or under the
laws of any other state.
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(d) Disclosure Defenses. Guarantor expressly waives all
set-offs and counterclaims and waives all notices, protests and demands
including, but not limited to, notice of default in payment or in the
performance or observance of any of the terms, provisions, covenants or
conditions contained in any agreement between Lender and any Borrower.
(e) Borrowers' Defenses On Underlying Obligations. Guarantor
expressly agrees that the validity of this Guaranty and the obligations of
Guarantor shall not be terminated, affected or impaired by reason of the
waiving, delaying, exercising or nonexercising, of any of Lender's rights
against any Borrower pursuant to any of the Agreement against Guarantor by
reason of this Guaranty or as a result of the substitution, release,
repossession, sale, disposition or destruction of any collateral securing the
Obligations.
(f) Impairment of Collateral Defenses. Guarantor shall not be
released or discharged, either in whole or in part, by Lender's failure or delay
to perfect or continue the perfection of any security interest in any property
which secures the Obligations of any Borrower or Guarantor to Lender, or to
protect the property covered by such security interest.
(g) Guarantor's Right to Revoke. Guarantor expressly waives
the right to revoke or terminate this continuing Guaranty, including any
statutory right of revocation under California Civil Code Section 2815, or
comparable provisions of the laws of any other state.
5. Financial Condition of Borrower. Guarantor assumes all
responsibility for being and keeping informed of Borrower's financial condition
and assets and of all other circumstances bearing upon the risk of nonpayment
of the Obligations and the nature, scope and extent of the risks which
Guarantor assumes and incurs hereunder, and agrees that Lender shall have no
duty to advise Guarantor of information known to it regarding such
circumstances or risks.
6. Guarantor Not Entitled To Subrogation. No payment by Guarantor
hereunder shall entitle Guarantor, by subrogation, indemnity, reimbursement,
contribution or otherwise, to any payment by Borrower or to any subrogation,
indemnity, reimbursement or contribution out of the property of Borrower until
the Obligations have been paid in full.
7. Recovery of Preferences. If a claim is made upon Lender at any
time for repayment or recovery of any amount(s) or other value received by
Lender, from any source, in payment of or on account of any of the Obligations
of Borrower guaranteed hereunder and Lender repays or otherwise becomes liable
for all or any part of such claim by reason of (a) any judgment, decree or
order of any court or administrative body having competent jurisdiction, or (b)
any settlement or compromise of any such claim, Guarantor shall remain liable
to Lender hereunder for the amount so repaid or for which Lender is otherwise
liable to the same extent as if such amount(s) had never been received by
Lender, notwithstanding any termination hereof or the termination of any
agreements evidencing any of the Obligations of Borrower.
8. Events Of Default. The occurrence of any Event of Default under
the Agreement shall constitute an event of default under this Guaranty and upon
the occurrence thereof and at Lender's election without notice or demand,
Guarantor's obligations hereunder shall become due, payable and enforceable
against Guarantor, whether or not the Obligations are then due and payable.
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9. Binding On Successors and Assigns. This Guaranty shall bind
Guarantor's legal representatives, successors and assigns, and shall inure to
the benefit of Lender's successors and assigns, including, but not limited to,
any party to whom Lender may assign the Agreement or any other agreements, and
Guarantor hereby waives notice of any such assignment. All of Lender's rights
are cumulative and not alternative.
10. Miscellaneous. This Guaranty contains the entire agreement of the
parties hereto and no other oral or written agreement exists. This Guaranty may
not be amended or modified except by a writing signed by Lender and Guarantor.
This Guaranty is a valid and subsisting legal instrument and no provision which
may be deemed unenforceable shall in any way invalidate any other provision or
provisions, all of which shall remain in full force and effect. No invalidity,
irregularity or unenforceability of all or any part of the Obligations
guaranteed nor any other circumstance which might be a legal defense of a
guarantor shall affect, impair, or be a defense to this Guaranty. Each of the
persons who has signed this or any other Guaranty has unconditionally delivered
it to Lender, and the failure to sign this or any other Guaranty by any other
person shall not discharge the liability of any signer. The unconditional
liability of the signer applies whether the signer is jointly and severally
liable for the entire amount of the debt, or for only a pro-rata portion.
11. Choice of Law and Forum. THIS GUARANTY SHALL IN ALL RESPECTS BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
CALIFORNIA, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE AND
GUARANTOR AGREES TO SUBMIT TO THE JURISDICTION OF THE STATE AND/OR FEDERAL
COURTS IN THE STATE OF CALIFORNIA.
GUARANTOR:
AMERICAN SHARED HOSPITAL SERVICES
BY: /s/ XXXXXX X. XXXXX, M.D.
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Xxxxxx X. Xxxxx, M.D.
President
Chairman and
Chief Executive Officer
