Exhibit 10.40
GUARANTY
(Continuing Debt - Unlimited)
DATE AND
PARTIES. The date of this Guaranty is October 10, 2007. The
parties and their addresses are:
LENDER:
CROWN BANK
6600 France Avenue South Ste 125
Edina, Minnesota 55435
Telephone: (952) 285-5800
BORROWER:
PROUROCARE MEDICAL. INC
a
Nevada Corporation
5500 WAYZATA BLVD SUITE 310
GOLDEN VALLEY, Minnesota 55416
GUARANTOR:
BRUCE R CULVER
1856 DAWN MEADOW ST
WESTLAK E VILLAGE, California 91362
1. DEFINITIONS. As used in this
Guaranty, the terms have the following meanings:
A. Pronouns.
The pronouns “I”, “me” and ‘my”
refer to all persons or entities signing this Guaranty,
individually and together. “You” and “your”
refer to the Lender.
B.
Note. “Note” refers to the document that evidences the
Borrower’s indebtedness, and any extensions, renewals,
modifications and substitutions of the Note.
C. Property.
“Property” means any property, real, personal or
intangible, that secures performance of the obligations of the
Note, Debt, or this Guaranty.
2. SPECIFIC AND FUTURE DEBT
GUARANTY. For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and to induce you, at
your option, to make loans or engage in any other transactions with
the Borrower from time to time, I absolutely and unconditionally
agree to all terms of and guaranty to you the payment and
performance of each and every Debt, of every type, purpose and
description that the Borrower either individually, among all or a
portion of themselves, or with others. may now or at any time in
the future owe you, including, but not limited to the following
described Debt(s) including without limitation, all principal,
accrued interest, attorneys’ fees and collection costs, when
allowed by law, that may become due from the Borrower to you in
collecting and enforcing the Debt and all other agreements with
respect to the Borrower.
A promissory
note or other agreement, No. 4060307, dated October 10,
2007, from PROUROCARE MEDICAL, INC (Borrower) to you, in the amount
of $400,000.00.
In addition,
Debt refers to debts, liabilities, and obligations of the Borrower
including, but not limited to, amounts agreed to be paid under the
terms of any notes or agreements securing the payment of any debt,
loan, liability or obligation, overdrafts, letters of credit,
guaranties, advances for taxes, insurance, repairs and storage, and
all extensions, renewals, refinancings and modifications of these
debts whether now existing or created or incurred in the future,
due or to become due, or absolute or contingent, including
obligations and duties arising from the terms of all documents
prepared or submitted for the transaction such as applications,
security agreements, disclosures, and the Note.
You may,
without notice, apply this Guaranty to such Debt of the Borrower as
you may select from time to time.
3. EXTENSIONS. I consent to all
renewals, extensions, modifications and substitutions of the Debt
which may be made by you upon such terms and conditions as you may
see fit from time to time without further notice to me and without
limitation as to the number of renewals, extensions, modifications
or substitutions.
A. Future Advances. I waive notice of
and consent to any and all future advances made to the Borrower by
you.
4. UNCONDITIONAL LIABILITY. I
am unconditionally liable under this Guaranty, regardless of
whether or not you pursue any of your remedies against the
Borrower, against any other maker, surety, guarantor or endorser of
the Debt or against any Property. You may sue me alone, or anyone
else who is obligated on this Guaranty, or any number of us
together, to collect the Debt. My liability is not conditioned on
the signing of this Guaranty by any other person and further is not
subject to any condition not expressly set forth in this Guaranty
or any instrument executed in connection with the Debt. My
obligation to pay according to the terms of this Guaranty shall not
be affected by the illegality, invalidity or unenforceability of
any notes or agreements evidencing the Debt, the violation of any
applicable usury laws, forgery, or any other circumstances which
make the indebtedness unenforceable against the Borrower. I will
remain obligated to pay on this Guaranty even if any other person
who is obligated to pay the Debt, including the Borrower, has such
obligation discharged in bankruptcy, foreclosure, or otherwise
discharged by law.
5. BANKRUPTCY. If a bankruptcy
petition should at any time be filed by or against the Borrower,
the maturity of the Debt, so far as my liability is concerned,
shall be accelerated and the Debt shall be immediately payable by
me. I acknowledge and agree that this Guaranty, and the Debt
secured hereby, will remain in full force and effect at all times,
notwithstanding any action or undertakings by, or against, you or
against any Property, in connection with any obligation in any
proceeding in the United States Bankruptcy Courts. Such action or
undertaking includes, without limitation, valuation of Property,
election of remedies or imposition of secured or unsecured claim
status upon claims by you, pursuant to the United States Bankruptcy
Code, as amended. In the event that any payment of principal or
interest received and paid by any other guarantor, borrower,
surety, endorser or co-maker is deemed, by final order of a court
of competent jurisdiction, to have been a voidable preference under
the bankruptcy or insolvency laws of the United States or
otherwise, then my obligation will remain as an obligation to you
and will not be considered as having been extinguished.
6. REVOCATION. I agree that
this is an absolute and unconditional Guaranty. I agree that this
Guaranty will remain binding on me, whether or not there are any
Debts outstanding, until you have actually received written notice
of my revocation or written notice of my death or incompetence.
Notice of revocation or notice of my death or incompetence will not
affect my obligations under this Guaranty with respect to any Debts
incurred by or for which you have made a commitment to Borrower
before you actually receive such notice, and all renewals,
extensions, refinancings, and modifications of such Debts. I agree
that if any other person signing this Guaranty provides a notice of
revocation to you, I will still be obligated under this Guaranty
until I provide such a notice of revocation to you. if any other
person signing this Guaranty dies or is declared incompetent, such
fact will not affect my obligations under this Guaranty.
7. SECURITY. This Guaranty is
secured by Property described in these security instruments or
agreements: ASSIGNMENT OF INVESTMENT PROPERTY/SECURITIES DATED
OCTOBER 10, 2007.
8. PROPERTY. I agree that any
Property may be assigned, exchanged, released in whole or in part
or substituted without notice to me end without defeating,
discharging or diminishing my liability. My obligation is absolute
and your failure to perfect any security interest or any act or
omission by you which impairs the Property will not relieve me or
my liability under this Guaranty. You are under no duty to preserve
or protect any Property until you are in actual or constructive
possession. For purposes of this paragraph, you will only be in
“actual” possession when you have physical, immediate
and exclusive control over the Property and have accepted such
control in writing, Further, you will only be deemed to be in
“constructive” possession when you have both the power
and intent to exercise control over the Property.
9. DEFAULT. I will be in
default if any of the following occur:
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A.
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Payments. I
fail to make a payment in full when due.
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B.
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Insolvency or
Bankruptcy. The death, dissolution or insolvency of, appointment of
a receiver by or on behalf of, application
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of any debtor
relief law, the assignment for the benefit of creditors by or on
behalf of, the voluntary or involuntary termination of existence
by, or the commencement of any proceeding under any present or
future federal or state insolvency, bankruptcy, reorganization,
composition or debtor relief law by or against me, Borrower, or any
cosigner, endorser, surety or guarantor of this Guaranty or any
Debt.
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C.
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Death or
Incompetency. I die or am declared legally incompetent.
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D.
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Failure to
Perform. I fail to perform
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