EX-4.6
CONTINUING PERSONAL GUARANTY
CONTINUING PERSONAL GUARANTY
THIS CONTINUING GUARANTY ("Guaranty") is entered into as of
January 27, 2006, by Xxxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx,
("Guarantors"), jointly and severally, in favor of La Jolla Cove
Investors, Inc. ("LJCI"), with reference to the following:
WHEREAS, Guarantors are shareholders and/or officers of RMD
Technologies, Inc., a California corporation ("RMD");
WHEREAS, LJCI and RMD are parties to that certain 7 3/4 %
Convertible Debenture, Warrant to Purchase Common Stock, Registration
Rights Agreement and Securities Purchase Agreement, all dated January
27, 2006 (collectively, the "Agreements") pursuant to which RMD has,
among other things, sold a 7 3/4% Convertible Debenture (the
"Debenture") to LJCI;
WHEREAS, a material inducement to LJCI in entering into the
Agreements was the issuance of a satisfactory guaranty of RMD's
obligations under the Agreements;
WHEREAS, LJCI has agreed to accept such a guaranty from
Guarantors;
NOW, THEREFORE, in consideration of the mutual promises and
covenants contained herein, in consideration of LJCI purchasing the
Debenture, 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 RMD's obligations under the Agreements in favor of
LJCI, each of its affiliates, assigns and successors in interest, and
each of their respective shareholders, directors, officers,
employees, agents, attorneys and representative, arising under or
with respect to the Agreements (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. 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. This Guaranty shall terminate when the RMD Registration
Statement (as defined in the Agreements) is declared effective by the
Securities and Exchange Commission. 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
RMD 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 RMD 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 RMD.
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 Guarantors 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 Guarantor 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 RMD
under the provisions of the Agreements, including, without
limitation, the failure of LJCI to proceed first against RMD 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; (iii)
the failure of LJCI to assert or take advantage of the defense of the
statute of limitations in any action hereunder; or (iv) the failure
of LJCI to exercise any right or remedy against RMD with respect to
the Guarantied Obligations or any provision of the Agreements.
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:
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
If to Guarantors:
Xxxxxxx X. Xxxxxxxx and Xxxxxxx X. Xxxxxxxx
000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 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/ Xxxxxxx X. Xxxxxxxx /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxx Xxxxxxx X. Xxxxxxxx
