Exhibit 10.44
BORROWER: MWI,INC., d/b/a DANAM
ELECTRONICS
GUARANTOR: XXXXX XXXX
GUARANTY
(EXIM BANK-GUARANTEED LINE OF CREDIT)
To: BANK OF AMERICA, N.A.
1. The Guaranty. For valuable consideration, the undersigned
("Guarantor") hereby unconditionally guarantees and promises to pay promptly to
Bank of America, N.A., or order, in lawful money of the United States, any and
all Indebtedness of MWI; Inc., d/b/a Danam Electronics ("Borrower") to Bank when
due, whether at stated maturity, upon acceleration or otherwise, and at all
times thereafter, subject to such limitations on Guarantor's liability as are
set forth below. This Guaranty is cumulative and does not supersede any other
outstanding guaranties, and the liability of Guarantor under this Guaranty is
exclusive of Guarantor's liability under any other guaranties signed by
Guarantor. If more than one individual or entity sign this Guaranty, their
obligations under this Guaranty shall be joint and several.
The liability of Guarantor under this Guaranty shall be limited to the
Indebtedness under the Loan Documents, and shall not exceed at any one time the
sum of (a) the principal amount of the Indebtedness under such Loan Documents
plus (b) all interest, fees, indemnities (including, without limitation,
hazardous waste indemnities), and other costs and expenses relating to or
arising out of the Indebtedness under such Loan Documents.
2. Definitions.
(a) "Borrower" shall mean the individual or the entity named in
Paragraph 1 of this Guaranty and, if more than one, then any one or more
of them.
(b) "Guarantor" shall mean the individual or the entity signing this
Guaranty and, if more than one, then any one or more of them.
(c) "Indebtedness" shall mean any and all debts, liabilities, and
obligations of Borrower to Bank, now or hereafter existing, whether
voluntary or involuntary and however arising, whether direct or indirect
or acquired by Bank by assignment, succession, or otherwise, whether due
or not due, absolute or contingent, liquidated or unliquidated, determined
or undetermined, held or to be held by Bank for its own account or as
agent for another or others, whether Borrower may be liable individually
or jointly with others, whether recovery upon such debts, liabilities, and
obligations may be or hereafter become barred by any statute of
limitations, and whether such debts, liabilities, and obligations may be
or hereafter become otherwise unenforceable.
(d) "Loan Documents" shall mean that certain Loan Agreement (Exim
Bank-Guaranteed Line of Credit) dated June 1, 2000, between Borrower and
Bank (the "Loan Agreement") and any promissory notes from Borrower in
favor of Bank evidencing or relating to any of the Indebtedness, and deeds
of trust, mortgages, security agreements, and other agreements, documents,
and instruments executed by Borrower in connection with the Loan
Agreement, as such Loan Agreement, promissory notes, and other agreements,
documents, and instruments are now in effect and as hereafter amended,
restated, renewed or superseded.
3. Obligations Independent. The obligations hereunder are independent
of the obligations of Borrower or any other guarantor, and a separate action or
actions may be brought and prosecuted against Guarantor whether action is
brought against Borrower or any other guarantor or whether Borrower or any other
guarantor be joined in any such action or actions. Anyone executing this
Guaranty shall be bound by its terms without regard to execution by anyone else.
4. Rights of Bank. Guarantor authorizes Bank, without notice or demand
and without affecting its liability hereunder, from time to time to:
(a) renew, compromise, extend, accelerate, or otherwise change the
time for payment, or otherwise change the terms, of the Indebtedness or
any part thereof, including increase or decrease of the rate of interest
thereon, or otherwise change the terms of any Loan Documents;
(b) receive and hold security for the payment of this Guaranty or
any Indebtedness and exchange, enforce, waive, release, fail to perfect,
sell, or otherwise dispose of any such security;
(c) apply such security and direct the order or manner of sale
thereof as Bank in its discretion may determine;
(d) permit the Indebtedness to exceed Guarantor's liability under
this Guaranty, and apply any amounts received from any source, other than
from Guarantor, to any unguaranteed portion of the Indebtedness; and
(e) release or substitute any Guarantor or any one or more of any
endorsers or other guarantors of any of the Indebtedness.
5. Guaranty to be Absolute. Guarantor agrees that until the
Indebtedness has been paid in full and any commitments of Bank or facilities
provided by Bank with respect to the Indebtedness have been terminated,
Guarantor shall not be released by or because of the taking, or failure to take,
any action that might in any manner or to any extent vary the risks of Guarantor
under this Guaranty or that, but for this paragraph, might discharge or
otherwise reduce, limit, or modify Guarantor's obligations under this Guaranty.
Guarantor waives and surrenders any defense to any liability under this Guaranty
based upon any such action, including but not limited to any action of Bank
described in the immediately
2
preceding paragraph of this Guaranty. It is the express intent of Guarantor that
Guarantor's obligations under this Guaranty are and shall be absolute and
unconditional.
6. Guarantor's Waivers of Certain Rights and Certain Defenses.
Guarantor waives:
(a) any right to require Bank to proceed against Borrower, proceed
against or exhaust any security for the Indebtedness, or pursue any other
remedy in Bank's power whatsoever;
(b) any defense arising by reason of any disability or other defense
of Borrower, or the cessation from any cause whatsoever of the liability
of Borrower;
(c) any defense based on any claim that Guarantor's obligations
exceed or are more burdensome than those of Borrower; and
(d) the benefit of any statute of limitations affecting Guarantor's
liability hereunder.
No provision or waiver in this Guaranty shall be construed as limiting the
generality of any other waiver contained in this Guaranty.
7. Waiver of Subrogation. Until the Indebtedness has been paid in full
and any commitments of Bank or facilities provided by Bank with respect to the
Indebtedness have been terminated, even though the Indebtedness may be in excess
of Guarantor's liability hereunder, Guarantor waives any right of subrogation,
reimbursement, indemnification, and contribution (contractual, statutory, or
otherwise) including, without limitation, any claim or right of subrogation
under the Bankruptcy Code (Title 11, United States Code) or any successor
statute, arising from the existence or performance of this Guaranty, and
Guarantor waives any right to enforce any remedy which Bank now has or may
hereafter have against Borrower, and waives any benefit of, and any right to
participate in, any security now or hereafter held by Bank.
8. Waiver of Notices. Guarantor waives all presentments, demands for
performance, notices of nonperformance, protests, notices of protest, notices
of dishonor, notices of intent to accelerate, notices of acceleration, notices
of any suit or any other action against Borrower or any other person, any other
notices to any party liable on any Loan Document (including Guarantor), notices
of acceptance of this Guaranty, and notices of the existence, creation, or
incurring of new or additional Indebtedness to which this Guaranty applies or
any other Indebtedness of Borrower to Bank.
9. [INTENTIONALLY OMITTED]
10. Security. To secure all of Guarantor's obligations hereunder,
Guarantor assigns and grants to Bank a security interest in all moneys,
securities, and other property of Guarantor now or hereafter in the possession
of Bank, all deposit accounts of Guarantor
3
maintained with Bank, and all proceeds thereof. Upon default or breach of any of
Guarantor's obligations to Bank, Bank may apply any deposit account to reduce
the Indebtedness, and may foreclose any collateral as provided in the Uniform
Commercial Code and in any security agreements between Bank and Guarantor.
11. Subordination. Any obligations of Borrower to Guarantor, now or
hereafter existing, including but not limited to any obligations to Guarantor as
subrogee of Bank or resulting from Guarantor's performance under this Guaranty,
are hereby subordinated to the Indebtedness. Such obligations of Borrower to
Guarantor if Bank so requests shall be enforced and performance received by
Guarantor as trustee for Bank, and the proceeds, thereof shall be paid over to
Bank on account of the Indebtedness, but without reducing or affecting in any
manner the liability of Guarantor under the other provisions of this Guaranty.
Any security interest, lien, or other encumbrance that Guarantor may now or
hereafter have on any property of Borrower is hereby subordinated to any
security interest, lien, or other encumbrance that Bank may have on any such
property.
12. Revocation of Guaranty.
(a) This Guaranty may be revoked at any time by Guarantor in respect
to future transactions, unless there is a continuing consideration as to
such transactions which Guarantor does not renounce. Such revocation shall
be effective upon actual receipt by Bank, at the address shown below or at
such other address as may have been provided to Guarantor by Bank, of
written notice of revocation. Revocation shall not affect any of
Guarantor's obligations or Bank's rights with respect to transactions
which precede Bank's receipt of such notice, regardless of whether or not
the Indebtedness related to such transactions, before or after revocation,
has been renewed, compromised, extended, accelerated, or otherwise changed
as to any of its terms, including time for payment or increase or decrease
of the rate of interest thereon, and regardless of any other act or
omission of Bank authorized hereunder. Revocation by Guarantor shall not
affect any obligations of any other guarantor.
(b) In the event of the death of a Guarantor, the liability of the
estate of the deceased Guarantor shall continue in full force and effect
as to (i) the Indebtedness existing at the date of death, and any renewals
or extensions thereof, and (ii) loans or advances made to or for the
account of Borrower after the date of the death of the deceased Guarantor
pursuant to a commitment made by Bank to Borrower prior to the date of
such death. As to all surviving Guarantors, this Guaranty shall continue
in full force and effect after the death of a Guarantor, not only as to
the Indebtedness existing at that time, but also as to the Indebtedness
thereafter incurred by Borrower to Bank.
13. Reinstatement of Guaranty. If this Guaranty is revoked, returned, or
canceled, and subsequently any payment or transfer of any interest in property
by Borrower to Bank is rescinded or must be returned by Bank to Borrower, this
Guaranty
4
shall be reinstated with respect to any such payment or transfer, regardless of
any such prior revocation, return, or cancellation.
14. Stay of Acceleration. In the event that acceleration of the time for
payment of any of the Indebtedness is stayed upon the insolvency, bankruptcy, or
reorganization of Borrower or otherwise, all such Indebtedness guaranteed by
Guarantor shall nonetheless be payable by Guarantor immediately upon demand by
Bank.
15. No Deductions. All payments by Guarantor hereunder shall be paid in
full, without setoff or counterclaim or any deduction or withholding whatsoever,
including, without limitation, for any and all present and future taxes. In the
event that Guarantor or Bank is required by law to make any such deduction or
withholding, Guarantor agrees to pay on behalf of Bank such amount directly to
the appropriate person or entity, or if the Guarantor cannot legally comply with
the foregoing, Guarantor shall pay to Bank such additional amounts as will
result in the receipt by Bank of the full amount payable hereunder. Guarantor
shall promptly provide Bank with evidence of payment of any such amount made on
Bank's behalf.
16. Information Relating to Borrower. Guarantor acknowledges and agrees
that it shall have the sole responsibility for, and has adequate means of,
obtaining from Borrower such information concerning Borrower's financial
condition or business operations as Guarantor may require, and that Bank has no
duty, and Guarantor is not relying on Bank, at any time to disclose to Guarantor
any information relating to the business operations or financial condition of
Borrower.
17. Borrower's Authorization. Where Borrower is a corporation,
partnership, or limited liability company, it is not necessary for Bank to
inquire into the powers of Borrower or of the officers, directors, partners,
members, managers, or agents acting or purporting to act on its behalf, and any
Indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed hereunder, subject to any limitations on Guarantor's
liability set forth herein.
18. Information Relating to Guarantor. Guarantor authorizes Bank to
verify or check any information given by Guarantor to Bank, check Guarantor's
credit references, verify employment, and obtain credit reports. Guarantor
acknowledges and agrees that the authorizations provided in this paragraph apply
to any individual general partner of Guarantor and to Guarantor's spouse and any
such general partner's spouse if Guarantor or such general partner is married
and lives in a community property state.
19. Guarantor's Covenants. Until the Indebtedness guaranteed under this
Guaranty has been paid in full and any commitments of Bank or facilities
provided by Bank with respect to such Indebtedness have been terminated and each
and every term, covenant, and condition of this Guaranty is fully performed,
Guarantor agrees to comply with the financial reporting provisions applicable to
Guarantor as set forth in Section 9.3 of the Loan Agreement.
5
20. Foreign Currency.
(a) If any claim arising under or related to this Guaranty is
reduced to judgment denominated in a currency (the "Judgment Currency")
other than the currency or currencies in which the guaranteed Indebtedness
is denominated (individually, an "Obligation Currency"), the judgment
shall be for the equivalent in the Judgment Currency of the amount of the
claim denominated in each Obligation Currency included in the judgment,
determined as of the date of judgment. The equivalent of any Obligation
Currency amount in any Judgment Currency shall be calculated at the spot
rate for the purchase of the Obligation Currency with the Judgment
Currency quoted by Bank in the place of Bank's choice at or about 8:00
a.m. on the date for determination specified above. Guarantor shall
indemnify Bank and hold Bank harmless from and against all loss or damage
resulting from any change in exchange rates between the date any claim is
reduced to judgment and the date of payment thereof by Guarantor.
(b) The obligations hereunder shall not be affected by any acts of
any governmental authority affecting Borrower including, without
limitation, any restrictions on the conversion of currency or repatriation
or control of funds or any total or partial expropriation of Borrower's
property, or by economic, political, regulatory, or other events in the
countries where Borrower is located.
(c) If (i) a maximum amount for which Guarantor is liable under this
Guaranty with respect to the principal amount of the Indebtedness is
expressed in U.S. Dollars in Paragraph 1 of this Guaranty and (ii) an
increase occurs in the market value of any Obligation Currencies as
compared to the U.S. Dollars before any payment by Guarantor of its
obligations under this Guaranty, then such maximum amount for which
Guarantor is liable shall be increased by an amount of U.S. Dollars
sufficient to purchase on the day of such payment, whether before or after
settlement or judgment, the amount of such Obligation Currencies owed to
Bank. Such increased maximum amount shall be calculated using the exchange
rate quotes described in sub paragraph (a) above.
21. Taxes. Guarantor represents and warrants that it is organized and
resident in the United States of America. If Guarantor must make a payment under
this Guaranty, Guarantor represents and warrants that it will make the payment
from one of its U.S. resident offices to a U.S. office of Bank so that no
withholding tax is imposed on the payment. If notwithstanding the foregoing,
Guarantor makes a payment under this Guaranty to which withholding tax applies,
then Guarantor shall pay any taxes (other than taxes on net income (a) imposed
by the country or any subdivision of the country in which Bank's principal
office or actual lending office is located and (b) measured by the United States
taxable income Bank would have received if all payments under or in respect of
this Guaranty were exempt from taxes levied by Guarantor's country) that are at
any time imposed on any such payments under or in respect of this Guaranty
including, but not limited to, payments made pursuant to this paragraph.
Further, if such withholding tax is applicable, Guarantor shall also pay to
Bank, on demand, all additional amounts that Bank
6
specifies as necessary to preserve the after-tax yield Bank would have received
if such taxes had not been imposed.
22. Successors and Assigns. This Guaranty (a) binds Guarantor and
Guarantor's executors, administrators, successors, and assigns, provided that
Guarantor may not assign its rights or obligations under this Guaranty without
the prior written consent of Bank, and (b) inures to the benefit of Bank and
Bank's indorsees, successors, and assigns. Bank may, without notice to Guarantor
and without affecting Guarantor's obligations hereunder, sell, assign, grant
participations in, or otherwise transfer to any other person, firm, or
corporation the Indebtedness and this Guaranty, in whole or in part. Guarantor
agrees that Bank may disclose to any assignee or purchaser, or any prospective
assignee or purchaser, of all or part of the Indebtedness any and all
information in Bank's possession concerning Guarantor, this Guaranty, and any
security for this Guaranty.
23. Costs and Expenses. Guarantor agrees to pay all reasonable
attorneys' fees, including allocated costs of Bank's in-house counsel, and all
other costs and expenses which may be incurred by Bank (a) in the enforcement of
this Guaranty or (b) in the preservation, protection, or enforcement of any
rights of Bank in any case commenced by or against Guarantor under the
Bankruptcy Code (Title 11, United States Code) or any similar or successor
statute.
24. Governing Law and Jurisdiction. This Guaranty shall be governed by
and construed under the laws of the State of Texas. Guarantor irrevocably (a)
submits to the non-exclusive jurisdiction of any United States Federal or State
court sitting in the State of Texas in any action or proceeding arising out of
or relating to this Guaranty and (b) waives to the fullest extent permitted by
law any defense asserting an inconvenient forum in connection therewith. Service
of process by Bank in connection with such action or proceeding shall be binding
on Guarantor if sent to Guarantor by registered or certified mail at its address
specified below.
25. Judicial Proceedings; Waivers. THE GUARANTOR AND THE BANK
ACKNOWLEDGE AND AGREE THAT (a) ANY SUIT, ACTION OR PROCEEDING, WHETHER CLAIM OR
COUNTERCLAIM, BROUGHT OR INSTITUTED BY THE GUARANTOR OR THE BANK OR ANY
SUCCESSOR OR ASSIGN OF THE GUARANTOR OR THE BANK, ON OR WITH RESPECT TO THIS
GUARANTY, OR THE DEALINGS OF THE PARTIES WITH RESPECT HERETO OR THERETO SHALL BE
TRIED ONLY BY A COURT AND NOT BY A JURY AND EACH PARTY WAIVES THE RIGHT TO TRIAL
BY JURY; (b) EACH WAIVES ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER, IN ANY SUCH
SUIT, ACTION OR PROCEEDING, ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; AND (c)
THIS SECTION IS A SPECIFIC AND MATERIAL ASPECT OF THIS GUARANTY, AND THE BANK
WOULD NOT EXTEND CREDIT IF THE WAIVERS SET FORTH IN THIS SECTION WERE NOT A PART
OF THIS GUARANTY!
Executed this 1st day of June, 2000.
7
/s/ Xxxxx Xxxx
--------------------------------
Xxxxx Xxxx
Address:
________________________________
0
XXXXX XX XXXXX
XXXXXX XX XXXXXX
The foregoing was executed and acknowledged before me this 1st day of
June, 2000 by Xxxxx Xxxx. He/She is personally known to me or produced
__________________________as identification and did/did not take an oath.
/s/ Xxxxxxx Xxx Xxxx
-----------------------------------
[SEAL] Print Name: Xxxxxxx Xxx Xxxx
MY Commission Expires: 12/12/00
Commission No.: 00757678-6
Notary Public, State of Texas
[NOTARY SEAL]
9
