SUBSIDIARY
GUARANTY
THIS SUBSIDIARY GUARANTY is
made and entered into as September 1, 2009, by each of Pacific
Biometrics, Inc., a Washington corporation, Pacific Biomarkers,
Inc., a Washington corporation, PBI Technology, Inc., a Washington
corporation, and BioQuant, Inc., a Michigan corporation (each, a
“ Guarantor ” and collectively, the “
Guarantors ”), to and for the benefit of Terry M.
Giles, an individual residing in the State of Texas (“
Lender ”).
RECITALS
A. Lender and Pacific
Biometrics, Inc., a Delaware corporation (“ Borrower
”), have entered into that certain Loan and Security
Agreement dated of even date herewith (the “ Loan
Agreement ”), pursuant to which Lender has agreed to make
certain loans to Borrower (the “ Loans ”).
Capitalized terms used in this Guaranty without definition shall
have their respective meanings as defined in the Loan Agreement, a
copy of which has been provided to the Guarantors.
B. Each Guarantor is
wholly-owned by Borrower and will be directly benefited by Lender
making the Loans to Borrower and the Guarantors acknowledge that,
absent this Guaranty, Lender would not make the Loans to
Borrower.
GUARANTY
In consideration of the foregoing,
the Guarantors, jointly and severally, make the following promises
and guarantees:
1. Each Guarantor, jointly and
severally, unconditionally and irrevocably guarantees and promises
to pay the Obligations of Borrower to Lender under or pursuant to
the Loan Agreement, whether absolute or contingent, liquidated or
unliquidated, determined or undetermined, as if the payment of such
Obligations constituted the direct primary obligation of such
Guarantor. If, at any time, default shall be made by Borrower in
the payment of any Obligations due Lender in connection with the
Loans, Guarantors shall pay upon demand any sums, interest, or
other charges that may be due to Lender. This Guaranty is a
guaranty of payment and not of collection.
2. In order to secure this
Guaranty, each Guarantor hereby grants to Lender, and its
successors and assigns, a first priority security interest in the
Collateral (defined below). This Agreement shall continue until all
Obligations are paid in full.
(a) For purposes of the
foregoing grant of security interest to Lender, “
Collateral ” means all of Guarantor’s right,
title and interest in, to and under all of its assets, whether now
owned or existing or hereafter acquired or arising, and wherever
located including, but not limited to the following: all cash and
cash equivalents, accounts, deposit accounts, inventory, equipment,
goods, documents, instruments, contract rights, general
intangibles, chattel paper, investment property (including, without
limitation, all equity interests owned by such Guarantor),
letter-of-credit rights, trademarks, trademark applications,
tradestyles, patents, patent applications, copyrights, copyright
applications and other intellectual property in which such
Guarantor now has or hereafter may acquire any right, title or
interest, all proceeds and products thereof (including, without
limitation, proceeds of insurance) and all additions, accessions
and substitutions thereto or therefor. Unless otherwise defined
herein, terms that are defined in Article 9 of the Uniform
Commercial Code as in effect, from time to time, in the State of
Washington (the “ Uniform Commercial Code ”) and
used herein shall have the meanings given to them in the Uniform
Commercial Code. Notwithstanding the foregoing, the Collateral
shall not include any of such property that is subject on the date
hereof to certain outstanding security interests (and the related
UCC-1 financing statements relating thereto) granted by Guarantor
to third parties in connection with certain equipment
financings.
(b) The security interests
granted herein shall be perfected by Lender’s filing of
appropriate Uniform Commercial Code Forms UCC-1 with the
appropriate government filing offices (including, as applicable,
any required filings with the United States Patent and Trademark
Office). In connection with the foregoing, each Guarantor
authorizes Lender to prepare and file any fina
