EXHIBIT 10(xii)
CONTINUING GUARANTY (UNLIMITED)
See attached.
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CONTINUING GUARANTY (UNLIMITED)
1. GUARANTEE. For value received, and to induce FIRSTAR BANK, N.A.
(the "BANK") to extend or continue credit or other financial accommodations
now or in the future to RAINBO COMPANY LLC (the "BORROWER"), the undersigned
(the "GUARANTOR") hereby absolutely and unconditionally jointly and severally
guarantees prompt payment of and promises to pay or cause to be paid to the
Bank the Obligations (as hereinafter defined), whether or not the Obligations
are valid and enforceable against the Borrower, whenever the Obligations
become due, whether on demand, at maturity or by reason of acceleration, or
at the time the Borrower or the Guarantor shall become the subject of any
bankruptcy or insolvency proceeding.
As used herein, the term "OBLIGATIONS" shall mean all loans, drafts,
overdrafts, checks, notes and all other debts, liabilities and obligations of
every kind owing by the Borrower to the Bank, whether direct or indirect,
absolute or contingent, liquidated or unliquidated whether of the same or a
different nature and whether existing now or in the future, including
interest thereon and all costs, expenses and reasonable attorneys' fees
(including fees of inside counsel) paid or incurred by the Bank at any time
before or after judgment in attempting to collect any of the foregoing, to
realize on any collateral securing any of the foregoing of this Guaranty, and
to enforce this Guaranty. The definition of "Obligations" also includes the
amount of any payments made to the Bank or another on behalf of the Borrower
(including payments resulting from liquidation of collateral) which are
recovered from the Bank by a trustee, receiver, creditor or other party
pursuant to applicable Federal or state law (the "SURRENDERED PAYMENTS"). In
the event that the Bank makes any Surrendered Payments (including pursuant to
a negotiated settlement), the Surrendered Payments shall immediately be
reinstated as Obligations, regardless of whether the Bank has surrendered or
cancelled this Guaranty prior to returning the Surrendered Payments.
2. CONSENT TO BANK ACTIONS; NO DISCHARGE. The Guarantor agrees that
the Bank does not have to take any steps whatsoever to realize upon any
collateral securing the Obligations, or to proceed against the Borrower or
any other guarantor or surety for the Obligations either before or after
proceeding against the Guarantor; and the Guarantor waives any claim of
marshalling of assets against the Bank or any collateral. The Guarantor also
agrees that the Bank may do or refrain from doing any of the following
without notice to, or the consent of, the Guarantor, without reducing or
discharging the Guarantor's liability under this Guaranty: (i) renew, amend,
modify, extend or release any existing or future Obligations (including
making additional advances, or changing the interest rate or amount, time or
manner of payment of any Obligations), and make additional extensions of
credit to the Borrower (which will become additional Obligations), regardless
of when such modifications or additional extensions of credit are made, and
regardless of whether they are similar to or different from any other
Obligations; (ii) amend, supplement and waive compliance with any of the
provisions of documents evidencing or related to any of the Obligations;
(iii) settle, modify, release, compromise or subordinate any Obligation, any
collateral securing any Obligation or this Guaranty, or the liability of any
other party responsible for payment of any Obligation; and (iv) accept
partial payments, and apply any payments and all other amounts received from
the Borrower, from liquidation of any collateral or from any other guarantor
to the Obligations (or any other amounts due to the Bank) in any manner that
the Bank elects. The Guarantor also expressly agrees that the Guarantor's
liability will not be reduced or discharged by the Bank's failure or delay in
perfecting (or to continue perfection of) any security interest, mortgage or
other lien on any collateral securing the Obligations or this Guaranty, or to
protect the value or condition of any such collateral. THE GUARANTOR
SPECIFICALLY ACKNOWLEDGES THAT THIS GUARANTY COVERS ALL EXISTING AND FUTURE
OBLIGATIONS OF THE BORROWER TO THE BANK REGARDLESS OF THE AMOUNT OF THOSE
OBLIGATIONS; THAT THE BANK CAN MAKE ADDITIONAL EXTENSIONS OF CREDIT TO THE
BORROWER WITHOUT NOTIFYING THE GUARANTOR; AND THAT THE BANK CAN DEMAND
PAYMENT FROM AND IMPOSE LIABILITY ON THE GUARANTOR WITHOUT FIRST TRYING TO
COLLECT FROM THE BORROWER OR ANY OTHER GUARANTOR.
3. WAIVERS. The Guarantor expressly waives all rights of setoff and
counterclaims, as well as diligence in collection or prosecution,
presentment, demand of payment or performance, protest, notice of dishonor,
nonpayment or nonperformance of any Obligation. The Guarantor also expressly
waives notice of acceptance of this Guaranty, and the right to receive all
other notices and demands of any kind relating to the Obligations or this
Guaranty. The Guarantor agrees that any right of subrogation as to payment or
enforcement of any security interest securing the Obligations shall not be
enforceable by any Guarantor until the Bank is paid in full. In addition to,
and not in substitution or lieu of, all of the other waivers and releases
contained herein from the Guarantor. Guarantor hereby specifically,
unconditionally and jointly and severally waives any and all defenses
predicated upon: (i) change of ownership of any collateral covered by any
mortgage or security agreement or other security instrument securing the
Obligations; (ii) acquiring additional collateral; (iii) substitution of
different collateral in exchange or exchanges for part or parts of any
original collateral; (iv) sale or other disposition, either in whole or in
part, of any collateral for the Obligations without notice to the Guarantor
pursuant to Uniform Commercial Code Section 9-504(3) or otherwise; (v) the
fact that there may be persons other than the Guarantor solvent and
responsible for the payment of the Obligations; (vi) release, death,
dissolution, liquidation or termination of the existence of the Borrower or
any other guarantor; (vii) an election of remedies; or (viii) any other
defenses based on suretyship or impairment of collateral.
4. FINANCIAL INFORMATION. The Guarantor warrants that all financial
information previously provided to the Bank was accurate when given, and that
no material adverse change has occurred in the Guarantor's financial status
since such information was given to the Bank. The Guarantor agrees to provide
to the Bank from time to time upon request any information regarding the
Guarantor's financial condition which the Bank reasonably requests; and
without request, the Guarantor will provide annual financial statements in
form and content satisfactory to the Bank within 60 days of the end of each
year.
5. XXXXXXXX'S FINANCIAL CONDITION. The Guarantor warrants and
represents to the Bank that (i) the Guarantor is sufficiently knowledgeable
and experienced in financial and business matters to evaluate and understand
the risks assumed in connection with the execution of this Guaranty; (ii) the
Guarantor has had the opportunity to examine the records, reports, financial
statements, and other information relating to the financial condition of the
Borrower; (iii) the Guarantor has relied solely upon investigations of the
Borrower's financial condition conducted by the Guarantor or the Guarantor's
authorized representative in deciding to execute this Guaranty; and (iv) the
Guarantor, or its authorized representative, shall continue to independently
review, monitor and investigate the financial condition of the Borrower while
this Guaranty is in effect. THE GUARANTOR SPECIFICALLY RELIEVES THE BANK OF
ANY DUTY, OBLIGATION OR RESPONSIBILITY OF ANY NATURE WHATSOEVER TO ADVISE THE
GUARANTOR OF ANY CHANGE IN THE BORROWER'S FINANCIAL CONDITION.
6. CONDITION; SETOFF. The Guarantor grants to the Bank a security
interest in all property in which the Guarantor has an ownership interest
which is now or in the future in the possession of the Bank to secure payment
under this Guaranty. The Guarantor hereby authorizes the Bank, without
further notice to anyone, to charge any account of the Guarantor for the
amount of any and all Obligations due under this Guaranty, and grants the
Bank a contractual right to set off (WITHOUT NOTICE OR DEMAND) amounts due
hereunder against all depository account balances, cash and other property
now or hereafter in the possession of the Bank and the right to refuse to
allow withdrawals from any account (collectively "SETOFF"). This Guaranty is
also secured by any and all security interests, pledges or liens now or
hereafter in existence granted to the Bank to secure indebtedness of the
Guarantor to the Bank, including without
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limitation as described in the following documents: SECURITY AGREEMENT DATED
SEPTEMBER 26, 2000.
7. DURATION OF GUARANTY; REVOCATION; CONTINUING OBLIGATIONS. This is a
continuing Guaranty and shall not be revoked by death, dissolution, merger,
bankruptcy, incompetency or insolvency of the Guarantor. This Guaranty shall
remain in full force and effect with respect to the Guarantor until the Bank
receives written notice from the Guarantor revoking this Guaranty as to the
Guarantor. In the event that this Guaranty is revoked by the Guarantor, said
revocation shall have no effect on the continuing liability of the Guarantor
to guarantee unconditionally the prompt payment of all Obligations which are
contracted or incurred before the revocation becomes effective, including
such prior Obligations which are subsequently renewed, modified or extended
after the revocation becomes effective, as well as all extensions of credit
made after revocation pursuant to commitments made prior to such revocation.
Revocation of this Guaranty by any Guarantor shall not relieve any other
Guarantor of any liability hereunder after the effective date of such
revocation.
8. ACCELERATION OF OBLIGATIONS; SUCCESSORS; MULTIPLE GUARANTORS. If
the Guarantor shall die, become the subject of any incompetency proceedings,
become the subject of any bankruptcy or insolvency proceedings, or fail to
comply with the terms of this Guaranty, any document securing this guaranty
or any related document, the Guarantor's liability hereunder to pay the
Obligations shall become immediately due and payable whether or not the
Obligations are then due and payable by the Borrower or any other guarantor.
This Guaranty shall inure to the benefit of the Bank, its successors and
assigns and of the holder and owner of any of the Obligations, and shall be
binding on heirs, executors, administrators, successors and assigns of the
Guarantor. If there is more than one Guarantor, the ability of the Guarantors
shall be joint and several, and the reference to the "Guarantor" shall be
deemed to refer to all Guarantors.
9. SEVERABILITY; PRIOR AGREEMENTS; AMENDMENT. Invalidity of any
provision of this Guaranty shall not affect the validity of any other
provision. This Guaranty, the collateral documents securing this Guaranty and
the documents evidencing the Obligations contain the entire agreement of the
parties regarding this matter, and any prior representations, promises or
agreements (whether oral or written) which are not a part of this Guaranty or
the documents described above are not enforceable. The terms of this Guaranty
may not be altered, amended or waived except by another written agreement
signed by the Guarantor and the Bank. Unless specifically limited in scope
this Guaranty shall not supersede any earlier guaranty of the Guarantor in
which the Bank has an interest nor shall any later guaranty supersede this
Guaranty. The effect of any earlier or later guaranty shall be cumulative
with this Guaranty.
10. COPIES; ENTIRE AGREEMENT; MODIFICATION. The Guarantor hereby
acknowledges the receipt of a copy of this Guaranty. IMPORTANT: READ BEFORE
SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY
THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT
CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED. THE TERMS OF THIS
AGREEMENT MAY ONLY BE CHANGED BY ANOTHER WRITTEN AGREEMENT. THIS NOTICE SHALL
ALSO BE EFFECTIVE WITH RESPECT TO ALL OTHER CREDIT AGREEMENTS NOW IN EFFECT
BETWEEN GUARANTOR AND THE BANK. A MODIFICATION OF ANY OTHER CREDIT AGREEMENTS
NOW IN EFFECT BETWEEN GUARANTOR AND THE BANK, WHICH OCCURS AFTER RECEIPT BY
GUARANTOR OF THIS NOTICE, MAY BE MADE ONLY BY ANOTHER WRITTEN INSTRUMENT.
ORAL OR IMPLIED MODIFICATIONS TO SUCH CREDIT AGREEMENTS ARE NOT ENFORCEABLE
AND SHOULD NOT BE RELIED UPON.
11. GOVERNING LAW; JURISDICTION. This Guaranty shall be governed by
the internal laws of the State of Iowa, except to the extent superseded by
Federal law. THE GUARANTOR HEREBY CONSENTS TO THE EXCLUSIVE JURISDICTION OF
ANY STATE OR FEDERAL COURT SITUATED IN THE COUNTY OR FEDERAL JURISDICTION OF
THE BANK'S BRANCH WHERE THE LOAN WAS ORIGINATED, AND WAIVES ANY OBJECTION
BASED ON FORUM NON CONVENIENS. WITH REGARD TO ANY ACTIONS, CLAIMS, DISPUTES
OR PROCEEDINGS RELATING TO THIS GUARANTY, THE COLLATERAL, ANY RELATED
DOCUMENT, NOR ANY TRANSACTIONS ARISING THEREFROM, OR ENFORCEMENT AND/OR
INTERPRETATION OF ANY OF THE FOREGOING. Nothing herein shall affect the
Bank's right to serve process in any manner permitted by law, or limit the
Bank's right to bring proceedings against the Guarantor in the competent
courts of any other jurisdiction or jurisdictions.
12. WAIVER OF JURY TRIAL. THE GUARANTOR AND THE BANK HEREBY JOINTLY AND
SEVERALLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING RELATING TO THIS GUARANTY, ALL DOCUMENTS RELATING TO THIS
GUARANTY, THE OBLIGATIONS HEREUNDER OR ANY TRANSACTION ARISING HEREFROM OR
CONNECTED HERETO. THE GUARANTOR AND THE BANK EACH REPRESENTS TO THE OTHER
THAT THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY GIVEN.
Dated: SEPTEMBER 26, 2000
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UNIVERSAL DISTRIBUTION LLC
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(Individual Guarantor) Guarantor Name (Organization)
--------------------------- (SEAL) a NEBRASKA limited liability company
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Guarantor Name N/A By /s/ Xxxxxx X. Xxxxxx
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--------------------------- (SEAL) Name and Title Xxxxxx X. Xxxxxx, President
---------------------------
Guarantor Name N/A By
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Name and Title
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