EXHIBIT 10.30
CONTINUING GUARANTY AGREEMENT
WHEREAS, PHOTOMEDEX, INC., a Delaware corporation, (hereinafter
referred to as the "Guarantor") has agreed to guarantee the payment of all
credit heretofore or hereafter extended and all advances heretofore or hereafter
made by AMSOUTH BANK (hereinafter referred to as the "Bank") to SURGICAL LASER
TECHNOLOGIES, INC., a Delaware corporation (herein referred to as the
"Borrower"), and of all other Liabilities (as hereinafter defined) of the
Borrower to the Bank.
NOW, THEREFORE, in consideration of the premises, the sum of Ten and
no/100 ($10.00) Dollars to the Guarantor in hand paid by the Bank, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the Guarantor, and in order to induce the Bank to extend to the
Borrower from time to time such extensions of credit, advances and forbearances
as the Bank in its sole discretion may deem prudent and wise, the Guarantor
unconditionally and absolutely hereby guarantees the due and punctual payment to
the Bank when and as the same shall become due and payable (whether by
acceleration or otherwise) of the following (collectively, the "Liabilities");
all indebtedness, obligations and liabilities of the Borrower to the Bank of
every kind, character and description whatsoever, direct or indirect, absolute
or contingent, due or to become due, now existing or hereafter incurred,
contracted or arising, joint or several, liquidated or un-liquidated, regardless
of how they arise or by what agreement or instrument they may be evidenced or
whether they are evidenced by any agreement or instrument, and whether incurred
as maker, drawer, endorser, surety, guarantor or otherwise,
GUARANTY AGREEMENT 1
including without limitation obligations of the Borrower purchased by the Bank,
"Recovered Payments," as hereinafter defined, and obligations incurred in
connection with the issuance of a letter of credit, and any and all extensions
and renewals of all or any part of the same.
The Guarantor further agrees that, in the event the Bank grants to the
Borrower one or more extensions or renewals of any of the Liabilities, or any
part thereof, or permits or requires any other modification in any of the terms
of the Liabilities, or any part thereof, in any manner which may be acceptable
to the Bank, with or without notice to the Guarantor, this guaranty shall, and
is hereby made to extend to and cover such extended, renewed or modified
Liabilities, on whatever terms and conditions the same may be extended, renewed
or modified, and without regard to the number of times or the manner in which
the same may have been or shall be extended, renewed or modified.
The Guarantor further agrees (a) to pay any and all of the Liabilities
upon demand at any time after maturity thereof (whether by acceleration or
otherwise); (b) to be bound by all of the terms and provisions appearing on the
face of any instrument or agreement evidencing, securing, guaranteeing, or
executed in connection with any of the Liabilities and of any renewal instrument
or agreement (the "Loan Documents") (including any terms waiving notice and
agreeing to pay costs and expenses of collection in the event of default) just
as though the Guarantor had signed such instrument or agreement; (c) that the
Bank will not be required first to resort to the Borrower or any other maker,
endorser, surety, guarantor or other Guarantor (each such Borrower, maker,
endorser, surety, guarantor, or other Guarantor being hereinafter individually
called an "Obligor") or to the security pledged or granted to it by any
instrument or agreement, or otherwise assigned or conveyed to it, but in case of
default in the payment of any of the Liabilities the Bank may forthwith look to
the
GUARANTY AGREEMENT 2
Guarantor for payment under the provisions hereof; and (d) that the Bank's
enforcement of the Guarantor's obligations hereunder shall not be stayed or
otherwise delayed by any claim (including without limitation, a counterclaim)
that any Obligor may have against the Bank.
The Guarantor hereby further jointly and severally agrees that the
obligations of the Guarantor hereunder are absolute, unconditional, present and
continuing guaranties of payment and not collectibility, and shall not be
subject to any counterclaim, recoupment, set-off, reduction or defense based
upon any claim that the Guarantor may have against the Borrower or the Bank and
shall not be discharged, impaired, modified or otherwise affected by (a) the
unenforceability, non-existence, invalidity or non-perfection of (i) any of the
Liabilities, (ii) any Loan Documents, (iii) any renewal instrument or agreement
or (iv) any lien, pledge, assignment, security interest or conveyance given as
security therefor; (b) any understanding or agreement that any other person,
firm or corporation was or is to execute this agreement or any other document
evidencing, guaranteeing or securing the Liabilities; or any part thereof; (c)
Bank's resort or failure or refusal to resort to any other security or remedy
for the collection of the Liabilities, or any part thereof; (d) the sale,
exchange, release, surrender, or impairment of any collateral or other security
for the Liabilities, or any part thereof; (e) the death, insolvency or
bankruptcy of any Obligor or the failure of the Bank to file a claim against
such deceased or bankrupt Obligor's estate for such Obligor's liability or
obligation to the Bank; (f) any modification, amendment, supplement, or change
in the status or terms of any of the Liabilities of any collateral or other
security for the Liabilities, or any part thereof; (g) any default by Borrower
in payment of any of the liabilities; (h) any compromise, settlement, release,
discharge, termination, waiver, or extension of time for payment, performance,
or
GUARANTY AGREEMENT 3
observance of, any obligation of any Obligor with respect to any of the
Liabilities; (i) the application of any payments, proceeds of collateral or
other sums to any of the Liabilities in such order as the Bank may elect; (j)
any exercise or non-exercise of any right, remedy, power, or privilege of the
Bank with respect to any of the Liabilities or any collateral or other security
thereof; (k) any failure, omission, delay, or lack of diligence on the part of
Bank to enforce, assert, or exercise any such right, power, privilege, or
remedy; (l) any claim (including, but not limited to a counterclaim) that any
Obligor may have against the Bank; or (m) any other event, circumstance or
condition, whether or not the Guarantor shall have notice or knowledge thereof.
The Guarantor further agrees that it shall not be necessary for the
Bank to give Guarantor notice of or to obtain consent or approval of Guarantor
in connection with (a) the making of any advances or any extensions of credit or
the terms thereof, or of any renewal or extension of or other modification with
respect to the Liabilities, or any part thereof; (b) any of the matters
described in clauses (a) through (m) of the preceding paragraph; or (c) the
Bank's acceptance of and reliance on this agreement. The terms hereof shall
inure to the benefit of the successors and assigns of the Bank and shall be
binding, jointly and severally, upon the Guarantor, its successors and assigns.
Neither any failure nor any delay on the part of the Bank in exercising
any right, power or privilege under this agreement shall operate as a waiver
thereof, nor shall a single or partial exercise thereof preclude any other or
further exercise of any other right, power or privilege. No modification,
amendment or waiver of any provision of this agreement shall be effective unless
in writing and signed by a duly authorized officer of the Bank, and then the
same shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on the
GUARANTY AGREEMENT 4
Guarantor in any case shall entitle the Guarantor to any other or further notice
or demand in the same, similar or other circumstances.
The Guarantor hereby agrees to indemnify and hold the Bank harmless
against any loss or expense, including reasonable attorneys' fees and
disbursements, that may result from any failure of any Obligor to pay any of the
Liabilities when and as due and payable or that may be incurred by or on behalf
of the Bank in enforcing payment of any of the Liabilities against Guarantor or
any of the Obligors; provided, however, that if this agreement is subject to
Section 5-19-10 of the Code of Alabama (1985), attorneys' fees shall be limited
to fifteen percent (15%) of the unpaid balance of the debt after default, and no
attorneys' fees shall be payable if the original principal amount of the
original amount financed does not exceed Three Hundred and no/100 ($300.00)
Dollars.
In addition to all liens upon, and rights of set-off against, any
moneys, securities, or other property of the Guarantor given to the Bank by law,
the Bank shall have a lien upon and a right of set-off against all deposits,
moneys, securities, and other property of the Guarantor now or hereafter in the
possession of, or on deposit with, the Bank, whether held in a general or
special account or deposit, for safekeeping, or otherwise, and every such lien
and right of set-off may be exercised without demand upon or notice to the
Guarantor.
Any Guarantor who now is or hereafter becomes an "insider", as defined
in 11 U.S.C. Section 101 (or any amendment or successor thereto or replacement
thereof), of the Borrower hereby waives and relinquishes all rights (including
without limitation rights of subrogation) that such Guarantor now has or
hereafter may have to recover from or be reimbursed by the Borrower or the
Borrower's property, or from any person, firm, or corporation that may now or
hereafter have such a
GUARANTY AGREEMENT 5
right to recover from or be reimbursed by the Borrower or the Borrower's
property, any amounts paid by such Guarantor to satisfy, in whole or in part,
the Liabilities. The provisions of this paragraph are made for the express
benefit of the Borrower as well as the Bank and may be enforced independently by
the Borrower.
The Guarantor further agrees that this agreement shall remain in full
force and effect until revoked or terminated by a written instrument, signed by
the Guarantor and delivered to the Bank and acknowledged in writing by the Bank,
and even after any such revocation or termination, shall be and remain effective
as to any Liabilities then outstanding; and that this agreement shall not be
construed as being terminated by payment in full of the Liabilities to the Bank,
if, thereafter, in the absence of written revocation or termination by the
Guarantor acknowledged by the Bank, the Borrower obtains or incurs additional or
new Liabilities. Notwithstanding the foregoing sentence, this Continuing
Guaranty Agreement and the Guarantor's obligations hereunder shall continue to
be effective or be automatically reinstated, as the case may be, any time
payment of all or any part of the Liabilities is recovered (a "Recovered
Payment") from the Bank as a result of a preference or other claim made under
any bankruptcy, insolvency, dissolution, liquidation, reorganization,
receivership, or similar law or otherwise. The collateral, if any, securing this
Continuing Guaranty Agreement may be held by the Bank until it is satisfied that
all time period during which the payment of all or any part of the Liabilities
may be recovered from the Bank as a result of a preference or other claim under
any bankruptcy, insolvency, dissolution, liquidation, reorganization,
receivership, or similar law or otherwise have elapsed.
Any act or circumstance that shall toll any statute of limitations
applicable to the Liabilities,
GUARANTY AGREEMENT 6
or any of them shall also toll the statute of limitations applicable to the
Guarantor's liability for the Liabilities under this Continuing Guaranty
Agreement.
The term "Guarantor" as used herein refers to the undersigned, whether
one or more natural persons, corporations, associations, partnerships, or other
entities.
This Agreement shall be governed by, and construed in accordance with
Alabama law.
This agreement and the other Loan Documents contain the entire
understanding and agreement between the Guarantor and the Bank with respect to
the obligations of the Guarantor hereunder and supersedes any prior agreements,
understandings, promises, and statements with respect to such obligations.
(SIGNATURE PAGE FOLLOWS)
GUARANTY AGREEMENT 7
WITNESS the signatures and seals of the undersigned on this the 26th
day of March 2003.
NOTICE TO COSIGNER
YOU ARE BEING ASKED TO GUARANTEE ALL DEBT OF THE BORROWER TO THIS BANK,
INCLUDING ALL FUTURE DEBTS OF THE BORROWER ENTERED INTO WITH THIS BANK PRIOR TO
THE TIME YOU REVOKE OR TERMINATE THIS AGREEMENT IN WRITING AS SET FORTH IN THIS
AGREEMENT. THINK CAREFULLY BEFORE YOU DO. IF THE BORROWER DOESN'T PAY THE DEBT,
YOU WILL HAVE TO. BE SURE YOU CAN AFFORD TO PAY IF YOU HAVE TO, AND THAT YOU
WANT TO ACCEPT THIS RESPONSIBILITY.
YOU MAY HAVE TO PAY UP TO THE FULL AMOUNT OF THE DEBT IF THE BORROWER DOES NOT
PAY. YOU MAY ALSO HAVE TO PAY LATE FEES OR COLLECTION COSTS, WHICH INCREASE THIS
AMOUNT.
THE BANK CAN COLLECT THIS DEBT FROM YOU WITHOUT FIRST TRYING TO COLLECT FROM THE
BORROWER. THE BANK CAN USE THE SAME COLLECTION METHODS AGAINST YOU THAT CAN BE
USED AGAINST THE BORROWER, SUCH AS SUING YOU, GARNISHING YOUR WAGES, ETC. IF
THIS DEBT IS EVER IN DEFAULT, THAT FACT MAY BECOME A PART OF YOUR CREDIT RECORD.
THIS NOTICE IS NOT THE CONTRACT THAT MAKES YOU LIABLE FOR THE DEBT.
CAUTION - - IT IS IMPORTANT THAT YOU THOROUGHLY READ THIS CONTRACT BEFORE YOU
SIGN IT.
PHOTOMEDEX, INC.
By: /s/ Xxxxxxx X. X'Xxxxxxx
Its: Chief Executive Officer
Attest:
By: /s/ Xxxxxx XxXxxxx
Its: Secretary
GUARANTY AGREEMENT 8
