GUARANTY BY CORPORATION
Exhibit
10.4
GUARANTY
BY CORPORATION
Edina,
Minnesota
February
20, 2007
For
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and to induce Commerce Bank (with its participants, successors
and
assigns, the “Bank”), at its option, at any time or from time to time to make
loans or extend other accommodations to or for the account of CorVu Corporation
(the “Borrower”) or to engage in any other transactions with Borrower, the
undersigned hereby absolutely and unconditionally guarantees to the Bank the
full and prompt payment when due, whether at maturity or earlier by reason
of
acceleration or otherwise, of the debt, liability or obligation of Borrower
to
the Bank evidenced by or arising out of the Term Loan Agreement dated as of
the
date hereof between the Borrower and the Bank, as such Term Loan Agreement
may
be amended from time to time (all such debts, liabilities and obligations
collectively referred to as the “Indebtedness”).
The
undersigned further acknowledges and agrees with the Bank that:
1. No
act or thing need occur to establish the liability of the undersigned hereunder,
and no act or thing, except payment in full and discharge of all Indebtedness,
shall in any way exonerate the undersigned or modify, reduce, limit or release
the liability of the undersigned hereunder.
2. This
is an absolute, unconditional and continuing guaranty of payment of the
Indebtedness and shall continue to be in force and be binding upon the
undersigned, whether or not all Indebtedness is paid in full, until this
guaranty is revoked prospectively as to future transactions, by written notice
actually received by the Bank, and such revocation shall not be effective as
to
Indebtedness existing or committed for at the time of actual receipt of such
notice by the Bank, or as to any renewals, extensions and refinancings thereof.
The undersigned represents and warrants to the Bank that the undersigned has
a
direct and substantial economic interest in Borrower and expects to derive
substantial benefits therefrom and from any loans and financial accommodations
resulting in the creation of Indebtedness guaranteed hereby, and that this
guaranty is given for a corporate purpose. The undersigned agrees to rely
exclusively on the right to revoke this guaranty prospectively as to future
transactions, in accordance with this paragraph, if at any time, in the opinion
of the directors or officers of the undersigned, the corporate benefits then
being received by the undersigned in connection with this guaranty are not
sufficient to warrant the continuance of this guaranty as to future
Indebtedness. Accordingly, so long as this guaranty is not revoked prospectively
in accordance with this paragraph, the Bank may rely conclusively on a
continuing warranty, hereby made, that the undersigned continues to be benefited
by this guaranty and the Bank shall have no duty to inquire into or confirm
the
receipt of any such benefits, and this guaranty shall be effective and
enforceable by the Bank without regard to the receipt, nature or value of any
such benefits.
3. If
the undersigned shall be dissolved or shall be or become insolvent (however
defined) then the Bank shall have the right to declare immediately due and
payable, and the undersigned will forthwith pay to the Bank, the full amount
of
all Indebtedness, whether due and payable or unmatured. If the undersigned
voluntarily commences or there is commenced involuntarily against the
undersigned a case under the United States Bankruptcy Code, the full amount
of
Indebtedness, whether due and payable or unmatured, shall be immediately due
and
payable without demand or notice thereof.
4. The
liability of the undersigned shall be unlimited.
5. The
undersigned will not exercise or enforce any right of contribution,
reimbursement, recourse or subrogation available to the undersigned against
any
person liable for payment of the Indebtedness, or as to any collateral security
therefor, unless and until all of the Indebtedness shall have been fully paid
and discharged.
6. The
undersigned will pay or reimburse the Bank for all costs and expenses (including
reasonable attorneys’ fees and legal expenses) incurred by the Bank in
connection with the protection, defense or enforcement of this guaranty whether
suit is commenced or not, including costs and expenses in any litigation or
bankruptcy or insolvency proceedings.
7. Whether
or not any existing relationship between the undersigned and Borrower has been
changed or ended and whether or not this guaranty has been revoked, the Bank
may, but shall not be obligated to, enter into transactions resulting in the
creation or continuance of Indebtedness, without any consent or approval by
the
undersigned and without any notice to the undersigned. The liability of the
undersigned shall not be affected or impaired by any of the following acts
or
things (that the Bank is expressly authorized to do, omit or suffer from time
to
time, both before and after revocation of this guaranty, without notice to
or
approval by the undersigned): (i) any acceptance of collateral security,
guarantors, accommodation parties or sureties for any or all Indebtedness;
(ii)
any one or more extensions or renewals of Indebtedness (whether or not for
longer than the original period) or any modification of the interest rates,
maturities or other contractual terms applicable to any Indebtedness; (iii)
any
waiver or indulgence granted to Borrower, any delay or lack of diligence in
the
enforcement of Indebtedness, or any failure to institute proceedings, file
a
claim, give any required notices or otherwise protect any Indebtedness; (iv)
any
full or partial release of, settlement with, or agreement not to sue Borrower
or
any other guarantor or other person liable in respect of any Indebtedness;
(v)
any discharge of any evidence of Indebtedness or the acceptance of any
instrument, in renewal thereof or substitution therefor, (vi) any failure to
obtain collateral security (including rights of setoff) for Indebtedness, or
to
see to the proper or sufficient creation and perfection thereof, or to establish
the priority thereof, or to protect, insure or enforce any collateral security;
or any modification, substitution, discharge, impairment, or loss of any
collateral security; (vii) any foreclosure or enforcement of any collateral
security; (viii) any transfer of any Indebtedness or any evidence thereof;
(ix)
any order of application of any payments or credits upon Indebtedness or upon
any other obligations of Borrower to the Bank; (x) any election by the Bank
under §1111(b)(2) of the United States Bankruptcy Code. The undersigned waives
any right the undersigned may have to a discharge now or hereafter under Uniform
Commercial Code § 3-605.
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8. The
undersigned waives any and all defenses, claims and discharges of Borrower,
or
any other obligor, pertaining to Indebtedness, except the defense of discharge
by payment in full. Without limiting the generality of the foregoing, the
undersigned will not assert, plead or enforce against the Bank any defense
of
waiver, release, discharge in bankruptcy, statute of limitations, res judicata,
statute of frauds, anti-deficiency statute, fraud, incapacity, minority, usury,
illegality, marshaling or unenforceability that may be available to Borrower
or
any other person liable in respect of any Indebtedness, or any setoff available
against the Bank to Borrower or any such other person, whether or not on account
of a related transaction. The undersigned expressly agrees that the undersigned
shall be and remain liable for any deficiency remaining after foreclosure of
any
mortgage or security interest securing Indebtedness, whether or not the
liability of Borrower or any other obligor for such deficiency is discharged
pursuant to statute or judicial decision.
9. The
undersigned waives presentment, demand for payment, notice of dishonor or
nonpayment, and protest of any instrument evidencing Indebtedness. The Bank
shall not be required first to resort for payment of the Indebtedness to
Borrower or other persons or their properties, or first to enforce, realize
upon
or exhaust any collateral security for Indebtedness, before enforcing this
guaranty.
10. If
any payment applied by the Bank to Indebtedness is thereafter set aside,
recovered, rescinded or required to be returned for any reason (including,
without limitation, the bankruptcy, insolvency or reorganization of Borrower
or
any other obligor), the Indebtedness to which such payment was applied shall
for
the purposes of this guaranty be deemed to have continued in existence,
notwithstanding such application, and this guaranty shall be enforceable as
to
such Indebtedness as fully as if such application had never been
made.
11. The
liability of the undersigned under this guaranty is in addition to and shall
be
cumulative with all other liabilities of the undersigned to the Bank as
guarantor or otherwise, without any limitation as to amount, unless the
instrument or agreement evidencing or creating such other liability specifically
provides to the contrary.
12. The
undersigned represents and warrants to the Bank that (i) the undersigned is
a
corporation duly organized and existing in good standing and has full power
and
authority to make and deliver this guaranty; (ii) the execution, delivery and
performance of this guaranty by the undersigned have been duly authorized by
all
necessary action of its directors and shareholders and do not and will not
violate the provisions of, or constitute a default under, any presently
applicable law or its articles of incorporation or bylaws or any agreement
presently binding on it; (iii) this guaranty has been duly executed and
delivered by the authorized officers of the undersigned and constitutes its
lawful, binding and legally enforceable obligation (subject to the United States
Bankruptcy Code and other similar laws generally affecting the enforcement
of
creditors’ rights); and (iv) the authorization, execution, delivery and
performance of this guaranty do not require notification to, registration with,
or consent or approval by, any federal, state or local regulatory body or
administrative agency.
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13. This
guaranty shall be effective upon delivery to the Bank, without further act,
condition or acceptance by the Bank, shall be binding upon the undersigned
and
the successors and assigns of the undersigned and shall inure to the benefit
of
the Bank and its participants, successors and assigns. Any invalidity or
unenforceability of any provision or application of this guaranty shall not
affect other lawful provisions and application hereof, and to this end the
provisions of this guaranty are declared to be severable. Except as provided
in
Paragraph 2 relating to revocations, this guaranty may not be waived, modified,
amended, terminated, released or otherwise changed except by a writing signed
by
the undersigned and the Bank. This guaranty shall be governed by the laws of
the
State of Minnesota. THE
UNDERSIGNED WAIVES NOTICE OF THE BANK’S ACCEPTANCE HEREOF AND WAIVES THE RIGHT
TO A TRIAL BY JURY IN ANY ACTION BASED ON OR PERTAINING TO THIS GUARANTY.
The
undersigned hereby irrevocably submits to the jurisdiction of the Minnesota
District Court, Fourth District, and the Federal District Court, District of
Minnesota, Fourth Division, over any action or proceeding arising out of or
relating to this guaranty and agrees that all claims in respect of such action
or proceeding may be heard and determined in any such court.
This
guaranty is secured by a security agreement dated as of the date
hereof.
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IN
WITNESS WHEREOF, this guaranty has been duly executed by the undersigned the
day
and year first above written.
| CorVu North America, Inc. | |||
| By | /s/ Xxxxxx X. Xxxxxxxxxx | ||
|
Its CEO |
|||
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