CONTINUING PERSONAL GUARANTY
THIS CONTINUING GUARANTY ("GUARANTY") is entered into as of January 29
2004, by Xxxxxxxx X. XxxxxxXxxxxx and Xxxx Xxxxxxxxxxx, jointly and severally
("GUARANTORS"), in favor of La Jolla Cove Investors, Inc. ("LJCI"), with
reference to the following:
WHEREAS, Guarantors are shareholders and officers of Sequiam Corporation, a
California corporation ("SEQUIAM");
WHEREAS, Sequiam has issued a 7% Promissory Note dated January 29 2004 (the
"NOTE") to LJCI;
WHEREAS, a material inducement to LJCI in accepting the Note was the
issuance of a satisfactory guaranty of Sequiam's obligations under the Note; and
WHEREAS, LJCI has agreed to accept such a guaranty from Guarantors
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Guarantors agree to guaranty the
Guarantied Obligations (as hereinafter defined) in accordance with the following
terms and conditions:
Guarantors hereby unconditionally and irrevocably guaranty the performance
of Sequiam's obligations under the Note in favor of LJCI, each of its
affiliates, assigns and successors in interest, arising under or with respect to
the Note (the "GUARANTIED OBLIGATIONS"), when the same shall become due
(including amounts that would become due but for the operation of the automatic
stay under section 362(a) of the Bankruptcy Code, 11 U.S.C. Sec. 101 et seq.)
and agree to pay any and all costs and expenses (including attorneys' fees and
disbursements) incurred by LJCI in enforcing any rights under this Guaranty. In
furtherance of the foregoing and not in limitation of any other right which LJCI
may have at law or in equity against Guarantors by virtue hereof, upon the
failure of Sequiam to perform any of the Guarantied Obligations when and as the
same become due, as aforesaid, Guarantors will, within ten (10) days after
written demand therefor, perform all Guarantied Obligations then due to LJCI.
Guarantors further agree that this Guaranty constitutes a guaranty of
performance and payment when due and not merely of collection. The obligations
of the Guarantors under this Guaranty shall not be subject to any reduction,
limitation, defense, setoff, recoupment, impairment or termination for any
reason, including, without limitation, by reason of the invalidity, illegality
or unenforceability of any of the Guarantied Obligations or any discharge of
Sequiam from any of the Guarantied Obligations in a bankruptcy or similar
proceeding or otherwise. Without limiting the generality of the foregoing, the
obligations of Guarantors under this Guaranty shall not be discharged or
impaired or otherwise affected by any default, failure or delay or by any other
act or thing or omission or delay to do any other act or thing that may or might
in any manner or to any extent vary the risk of Guarantors or which would
otherwise operate as a discharge of Guarantors as a matter of law or equity.
This Guaranty shall remain in full force and effect without regard to any future
event, including, without limitation, the bankruptcy, insolvency,
reorganization, dissolution or liquidation of Sequiam.
Guarantors agree that the Guarantied Obligations may be rescinded, waived,
extended, renewed or altered, in whole or in part, without notice or further
assent from Guarantors, and that Guarantors will remain bound by this Guaranty
notwithstanding any such rescission, waiver, extension, renewal or alteration of
any Guarantied Obligation.
Guarantors hereby waive (i) all presentments, demands for performance,
notices of nonperformance, protest, notices of protest, notices of dishonor,
notices of acceptance of this Guaranty, and notices of nonpayment; and (ii) any
and all rights, defenses and benefits arising under California Civil Code
Sections 2809, 2810, 2819, 2839, 2845, 2847, 2848, 2849, 2850, 2899 and 3433,
and all other rights, defenses and benefits limiting the liability of or
exonerating Guarantor or sureties offered by law as well as the benefits of
Sections 580a-580d and 726 of the California Code of Civil Procedure. The
obligations of the Guarantors under this Guaranty shall not be affected by (i)
the failure of LJCI to assert any claim or demand or to enforce any right or
remedy against Sequiam under the provisions of the Agreement, including, without
limitation, the failure of LJCI to proceed first against Sequiam or to pursue
any other remedy in LJCI's power; (ii) LJCI settling, releasing, compromising,
collecting or otherwise liquidating the Guarantied Obligations in any manner, as
LJCI may determine, unless otherwise agreed by LJCI and Guarantor; or (iii) the
failure of LJCI to exercise any right or remedy against Sequiam with respect to
the Guarantied Obligations or any provision of the Agreement.
Guarantors acknowledge that all of the waivers and consents set forth
herein are freely granted, after consultation with competent counsel, since it
is the Guarantors' purpose and intent that all of Guarantors' obligations
hereunder be absolute, independent and unconditional under any and all
circumstances. Guarantors hereby represent and warrant to LJCI that Guarantors
have the power, right and authority to enter into this Guaranty. This Guaranty
shall be binding upon the Guarantors and their personal representatives,
successors and assigns and shall inure to the benefit of LJCI and its successors
and assigns. This Guaranty may be executed by facsimile, with such facsimile
copy to serve as a duly executed original and as conclusive evidence of the
consent and ratification of the matters contained herein by Guarantors.
This Guaranty shall be governed by, and construed and enforced in
accordance with, the laws of the State of California.
All judicial proceedings brought against Guarantors with respect to this
Guaranty may be brought in any state or federal court of competent jurisdiction
in San Diego, California, and by execution and delivery of this Guaranty,
Guarantors accept the nonexclusive jurisdiction of the aforesaid courts and
irrevocably agree to be bound by any judgment rendered thereby in connection
with this Guaranty.
All notices required or permitted hereunder shall be in writing and shall
be deemed effectively given (i) upon personal delivery to the party notified,
(ii) three days after deposit with the United States Post Office, by registered
or certified mail, postage prepaid, return receipt requested, (iii) one day
after deposit with a nationally recognized overnight courier service such as
Federal Express or (iv) on the day of facsimile transmission, with confirmed
transmission; in any case addressed to the party to be notified at the address
indicated below for that party, or at such other address as that party may
indicate by providing ten (10) days' advance written notice to the other
parties:
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(a) If to La Jolla Cove Investors, Inc., to:
La Jolla Cove Investors, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, Xxxxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If to Guarantors:
Xxxxxxxx X. XxxxxxXxxxxx
000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Xxxx Xxxxxxxxxxx
000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
GUARANTORS HEREBY WAIVE AND COVENANT THAT GUARANTORS WILL NOT ASSERT
(WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN
ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
ARISING OUT OF OR BASED UPON THIS GUARANTY OR ANY GUARANTEED OBLIGATION, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING OR WHETHER IN CONTRACT OR IN TORT
OR OTHERWISE.
IN WITNESS WHEREOF, the undersigned have duly executed this Guaranty as of
the day and year first written above.
/s/ Xxxxxxxx X. XxxxxxXxxxxx
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Xxxxxxxx X. XxxxxxXxxxxx
/s/ Xxxx Xxxxxxxxxxx
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Xxxx Xxxxxxxxxxx
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