EXHIBIT 10(xi)
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 or 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 Guarantee 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. COLLATERAL; 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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imitation as described in the following documents:_____________________________
_____________________________________________________________________________.
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 Guarantor 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 liability 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, OR 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 MFG. CO.
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(Individual Guarantor) Guarantor Name (Organization)
(SEAL) a NEBRASKA Corporation
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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
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Guarantor Name N/A By
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Name and Title
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