CONTINUING AND UNCONDITIONAL GUARANTY

1. Obligations.

(a)  Unless expressly indicated to the contrary below, the terms “Obligation” and “Obligations” as used herein mean (i) the Secured Convertible Promissory Note in the principal amount of $1,500,000 executed by the Borrower in favor of Lender dated the date hereof (the “Note”); (ii) the Secured Convertible Promissory Note in the principal amount of up to $1,000,000 that may be executed by the Borrower in favor of Lender within 90 days of the date of Note (the “Additional Note”); (iii) all other Loan Documents (a s defined in the Note or Additional Note, as the case may be) executed in connection with the Note or Additional Note, as the case may be; and (iv) all liabilities and obligations of the Borrower to the Lender and all obligations of the Guarantor hereunder, however and whenever incurred or evidenced, whether primary, secondary, direct, indirect, absolute, contingent, sole, joint or several, arising prior to the date hereof or in connection herewith, or which may be hereafter contracted or acquired, or incurred directly or indirectly in respect thereof, and all extensions or renewals thereof and all sums payable under or by virtue thereof, whether principal, interest, or otherwise (including, without limitation, obligations that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. §362(a), including interest, fees, and other charges whether or not a claim is allowed for such ob ligations in any such bankruptcy proceedings; including costs and expenses, including costs of collection and attorneys' fees, incurred or paid by the Lender as more specifically described in the documents evidencing the Obligations and herein; and including any Obligations arising from failure to comply with state or federal laws, rules, and regulations concerning the control of hazardous waste), whether arising in the ordinary course of business or otherwise, and whether held or to be held by the Lender for its own account or as agent for another or others.  If the Borrower or the Guarantor is a partnership or corporation, the term “Obligations” as used herein shall include all Obligations of any successor entity or entities of the Borrower or the Guarantor to the Lender.

 

(b) Notwithstanding anything to the contrary set forth in this Section, it is the intent of the parties hereto that the Obligation incurred by the Guarantor in respect of the Obligations (and any lien granted by the Guarantor to secure this Guaranty or the Obligations) shall not constitute a fraudulent conveyance under Section 548 of the United States Bankruptcy Code or a fraudulent conveyance or fraudulent transfer under the provisions of any applicable law of any other governmental unit (“Fraudulent Conveyance”).  Consequently, the Guarantor and the Lender (by its acceptance hereof) hereby agree that if a court of competent jurisdiction determines that the incurrence of Obligation by the Guarantor in respect of the Obligations (or any liens granted by such Borrower to secure this Guaranty or the Obligations) would, but for the application of this sentence, constitute a Fraudulent Conveyance, such Obligation (and such liens) shall be valid and enforceable only to the maximum extent that would not cause the same to constitute a Fraudulent Conveyance, and this Guaranty and the other loan documents to which the Guarantor is a party shall automatically be deemed to have been amended accordingly.

2. No Obligation of the Lender to Apply Payments in Particular Order.

3. Guarantor Waivers and Similar Agreements.

(a) The Guarantor waives notice of acceptance of this Guaranty and notice of any Obligation to which it may apply, and waives presentment, demand for payment, protest, notice of dishonor or nonpayment of any Obligations and any suit or the taking of other action by the Lender against and any other notice to any party liable thereon (including the Guarantor).

 

(b) The Lender may at any time and from time to time (whether before or after revocation or termination of this Guaranty) without notice to the Guarantor, without incurring responsibility to the Guarantor, without impairing, releasing, or otherwise affecting the obligations of the Guarantor in whole or in part and without the endorsement or execution by the Guarantor of any additional consent, waiver, or guaranty: (i) change the manner, place, or terms of payment of, change,  extend the time of, renew, or alter, any Obligation or installment thereof, or any security or guaranty therefor, and may loan additional monies or extend additional credit to the Borrower, indi vidually or jointly with other persons, with or without security, thereby creating new Obligations the payment of which shall be guaranteed hereunder, and the guaranty herein made shall apply to the Obligations as so changed, extended, renewed, increased, or otherwise altered; (ii) sell, exchange, release, surrender, realize upon, or otherwise deal with in any manner and in any order any property at any time pledged or mortgaged to secure the Obligations and any offset thereagainst; (iii) take and hold additional security or guaranties for the Obligations; (iv) exercise or refrain from exercising any rights against the Borrower or others (including the Guarantor) or act or refrain from acting in any other manner; (v) settle or compromise any Obligation or any security or guaranty therefor, and may subordinate the payment of all or any part thereof to the payment of any Obligation (whether or not due) to creditors of the Borrower other than the Lender and the Guarantor; and (vi) apply any sums from any sources to any Obligation, or any portion thereof, and in any order, without regard to any Obligations remaining unpaid.

 

(c) The Guarantor waives any duty on the Lender's part (should such duty exist) to disclose to the Guarantor any matter, fact, or thing related to the business, operations, or condition (financial or otherwise) of the Borrower or its affiliates or property, whether now or hereafter known by the Lender.  The Lender shall have no duty to disclose to the Guarantor the difference, if any, between the terms which were initially proposed for any Obligation and which were presumably disclosed to or known by the Guarantor, and the actual terms of the Obligation, as executed, including but not limited to the existence of or amount of guaranties or security therefor.  The Guarantor agrees that any lack of knowledge of the Guarantor as to such matters will not impair, release, or otherwise affect the obligations of the Guarantor under this Guaranty.  The Guarantor hereby represents and warrants to the Lender that it has read the provisions of this Guaranty and has read or otherwise understands all of the provisions of the loan documents evidencing each of the present Obligations, and will read or otherwise become familiar with all of the loan documents evidencing each of the future Obligations.

 

(d) No invalidity, irregularity, or unenforceability of all or any part of the Obligations or insufficiency, invalidity, irregularity, or unenforceability of any security or guaranty therefor shall affect, impair, or be a defense to this Guaranty, and this Guaranty is a primary and absolute obligation of the Guarantor.

4. Continuing Guaranty.

(a) This Guaranty is a continuing one, and all Obligations to which it applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.  This Guaranty shall continue until written notice of revocation signed by each respective the Guarantor is given, or until written notice of the death of such the Guarantor shall actually have been received by the Lender, notwithstanding a revocation by, or the death of, or complete or partial release for any cause of, any one or more of the remainder of the Guarantor, or of the Borrower or of anyone liable in any manner for the Obligations and notwithstanding change in name, location, composition or structure of, or the dissolution, termination, or increase, decrease, or change in personnel, owners, or partners of the Borrower, or a ny one or more of the Guarantor; provided, however, that no notice of revocation or termination hereof shall affect in any manner rights arising under this Guaranty with respect to Obligations that shall have been created, contracted, assumed, or incurred prior to receipt by the Lender of written notice of such revocation or termination, or Obligations that shall have been created, contracted for, assumed, or incurred after receipt of such written notice pursuant to any agreement entered into by the Lender prior to receipt of such notice; and the sole effect of such notice of revocation or termination hereof shall be to exclude from this Guaranty Obligations thereafter arising that are unconnected with Obligations theretofore arising or transactions theretofore entered into.

 

(b)  It is the intent of the Guarantor and the Lender that the obligations and Obligations of the Guarantor hereunder be absolute and unconditional under any and all circumstances and that until the Obligations are fully and finally paid and performed, and not subject to refund or disgorgement, the obligations and Obligations of the Guarantor hereunder shall not be discharged or released, in whole or in part, by any act or occurrence that might, but for the provisions of this Guaranty, be deemed a legal or equitable discharge or release of a guarantor.

5. Cumulative Obligations.

6. Subordination of Rights Against the Borrower.

7. Continuing Lien; Set Off.

8. Events of Default.

9. Rights and Remedies.

(a) The Lender shall have, in addition to the rights and remedies contained in this Guaranty and any other loan documents now or hereafter evidencing, securing, guaranteeing, or otherwise relating to any of the Obligations, all of the rights and remedies of a creditor and, to the extent applicable, of a secured party, now or hereafter available at law or in equity.  The Lender may, at its option, exercise any one or more of such rights and remedies individually, partially, or in any combination from time to time, including, to the extent applicable, before the occurrence of an Event of Default.  No right, power, or remedy conferred upon the Lender by the Loan Documents shall be exclusive of any other right, power, or remedy referred to therein or now or hereafter available at law or in equity.

 

(b) Without limiting the generality of the foregoing, if an Event of Default shall occur: (i) All commitments of the Lender to make advances shall terminate; (ii) The Lender may declare any or all of the Obligations, whether direct or indirect, contingent or certain, to be accelerated and due and payable at once, whereupon such Obligations, together with interest thereon, shall forthwith become due and payable, all without presentment, demand, protest, or other notice of any kind from the Lender, all of which are hereby expressly waived; and (iii) The Lender may proceed to do other all things provided by law, equity, or contract to enforce its rights under the Obligations and to collect all amounts owing to the Lender.

10. Disgorgement.

11. Statute of Limitations.

12. No Obligation of Lender; Permissible Actions.

13. Guaranty of Payment; No Defense of the Borrower as Defense to Guaranty.

14. Costs and Expenses.

15. Notices.

16. Miscellaneous.

(a) This Guaranty shall be governed by and construed and interpreted in accordance with, the laws of Florida, excluding those laws relating to the resolution of conflicts between laws of different jurisdictions.

 

(b) In any litigation in connection with or to enforce this Guaranty or any Obligation, the Guarantor irrevocably consents to and confers personal jurisdiction on the courts of the state of Florida or the United States courts located within the state of Florida, expressly waives any objections as to venue in any of such courts, and agrees that service of process may be made on the Guarantor by mailing a copy of the summons and complaint by registered or certified  mail, return receipt requested, to its address set forth herein (or otherwise expressly provided in writing).  Nothing contained herein shall, however, prevent the Lender from bringing any action or exercising any rig hts within any other state or jurisdiction or from obtaining personal jurisdiction by any other means available by applicable law.

 

(c) In the event that any one or more of the provisions of this Guaranty is determined to be invalid, illegal, or unenforceable in any respect as to one or more of the parties, all remaining provisions nevertheless shall remain effective and binding on the parties thereto and the validity, legality, and enforceability thereof shall not be affected or impaired thereby.  If any such provision is held to be illegal, invalid, or unenforceable, there will be deemed added in lieu thereof a provision as similar in terms to such provision as is possible, that is legal, valid, and enforceable.  To the extent permitted by applicable law, the Guarantor hereby waives any law that renders a ny such provision invalid, illegal, or unenforceable in any respect.

 

(d) The singular shall include the plural, the plural shall include the singular, and any gender shall be applicable to all genders when the context permits or implies.  If more than one party constitutes the Guarantor, their obligations hereunder shall be joint and several and the term the “Guarantor” as used herein shall mean the Guarantor or any one or more of them.

 

(e) Any party executing this Guaranty shall be bound by the terms hereof without regard to execution by any other party and the failure of any party to execute this Guaranty shall not release or otherwise affect the obligations of the party or parties who do sign this Guaranty.

 

 

(f) No delay or omission by the Lender in exercising any right or remedy under this Guaranty or otherwise afforded by law or equity shall operate as a waiver of that right or remedy or of any other right or remedy and no single or partial exercise of any right or remedy shall preclude any other or further exercise of that or any other right or remedy.

 

(g) All rights and remedies of the Lender hereunder and under any other loan documents are cumulative and are not exclusive of any rights or remedies provided by law or in equity, and may be pursued singularly, successively, or together, and may be exercised as often as the occasion therefor shall arise.  The warranties, representations, covenants, and agreements made herein and therein shall be cumulative, except in the case of irreconcilable inconsistency, in which case the provisions of the credit agreement, or if none, the promissory note or notes guaranteed hereby, shall control.

 

(h) This Guaranty may not be modified or amended nor shall any provision of it be waived except by a written instrument signed by the party against whom such action is to be enforced.

 

(i) The headings preceding the text of sections of this Guaranty have been included solely for convenience of reference and shall neither constitute a part of this Guaranty nor affect its meaning, interpretation, or effect.

 

(j) This Guaranty shall be binding upon and inure to the benefit of the Lender, its successors and assigns, and shall be binding upon the Guarantor and its respective heirs, legal representatives, successors, and assigns; provided, however, that no rights or obligations of the Guarantor hereunder shall be assigned without the prior written consent of the Lender.

 

(k) Time is of the essence in the performance of this Guaranty and the Obligations.