EXHIBIT 10.10
CONTINUING GUARANTY
-------------------
WHEREAS, the undersigned guarantor (the "Guarantor") is a subsidiary of LA-
MAN CORPORATION, a Nevada corporation (the "Borrower");
WHEREAS, Renaissance Capital Growth & Income Fund III, a Texas corporation,
and Renaissance US Growth & Income Trust PLC, a public limited company
registered in England and Wales (each a "Lender" and collectively, the
"Lenders"), are willing to make a loan to the Borrower only upon receiving a
continuing guaranty from each of the Borrower's wholly-owned subsidiaries; and
WHEREAS, Guarantor acknowledges that it will receive a direct benefit by
the Borrower obtaining such a loan;
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING, the undersigned for
itself, its successors and assigns, unconditionally guarantees to the Lenders,
and its agents, successors, participants, endorsees and/or assigns, the due
performance and full and prompt payment, whether at maturity, by acceleration,
or otherwise, of any and all Obligations and Indebtedness of the Borrower to
Lenders pursuant to the Convertible Loan Agreement (as amended from time to
time, the "Loan Agreement"), of even date herewith among Borrower, Lenders and
Renaissance Capital Group, Inc., as Agent for the Lenders, including, but not
limited to, a loan (the "Loan") from Lenders to Borrower in the aggregate sum of
THREE MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($3,500,000.00),
evidenced by those certain 8.75% Convertible Debentures from Borrower in favor
of Lenders dated of even date herewith (the "Debentures").
This is a Continuing Guaranty relating to said all such Indebtedness and
Obligations and is not limited as to amount. Further, this Continuing Guaranty
shall remain in effect whether recovery on any such Indebtedness or Obligations
may become barred by any statute of limitations or equitable estoppel or whether
any such Indebtedness or Obligations may be or hereafter become otherwise
unenforceable.
The obligations hereunder are independent of the obligations of Borrower,
and a separate action or actions may be brought and prosecuted against
Guarantor, whether or not action is brought against Borrower, Borrower may be
joined in any such action or actions. If separate guaranties of the Borrower's
indebtedness to Lenders are executed by other guarantors, the obligations of
Guarantor hereunder shall be joint and several with those of the other
guarantors and may be enforced regardless of the enforcement of other
guaranties. This is a guaranty of payment and not of collection.
Guarantor acknowledges and agrees with Lenders that each indebtedness is a
valid and binding obligation of Borrower. Guarantor authorizes Lenders, without
notice or demand, and without affecting its liability hereunder, from time to
time, and on any number of occasions, to (a) renew, amend, compromise, extend,
accelerate, reinstate, or otherwise change the time for payment
of, or otherwise change the terms of, the indebtedness or any part thereof,
including increasing or decreasing the interest rate thereon; (b) take and hold
security for the payment of this Continuing Guaranty or the indebtedness, and
exchange, enforce, waive and release any such security; (c) apply such security
and direct the order or manner of sale thereof as Lenders in their discretion
may elect from time to time; and (d) release or substitute any one or more of
the endorsers or guarantors. Guarantor acknowledges and agrees that no act or
omission of any kind by Lenders, including, but not limited to, the failure to
take or perfect a security interest in any security for the indebtedness shall
affect or impair this Continuing Guaranty, and the Lenders shall have no duties
with respect thereof to any Guarantor. Lenders may without notice assign this
Continuing Guaranty in whole or in part at any time.
Guarantor waives any right to require Lenders to (a) proceed against
Borrower; (b) proceed against or exhaust any security held from Borrower; or (c)
pursue any other remedy whatsoever available to Lenders. Guarantor waives any
defense arising by reason of any disability or other defense of Borrower or by
reason of the cessation from any cause whatsoever of Borrower's liability or by
reason of Lenders releasing any security held from Borrower. Until all of
Borrower's indebtedness to Lenders shall have been paid in full, Guarantor shall
have no right of subrogation, and Guarantor waives any right to enforce any
remedy that Lenders now have or may hereafter have against Borrower, and shall
waive any benefit of, and any right to participate in, any security now or
hereafter held by Lenders. Guarantor waives all presentments, demands for
performance, notices of nonperformance, protests, notices of dishonor, and
notices of acceptance of this Continuing Guaranty and of the existence,
creation, or incurrence of new or additional indebtedness and all other defenses
to any action or proceeding to enforce this Continuing Guaranty, except the
single defense that the sum claimed has actually been paid to Lenders. Guarantor
covenants to maintain and preserve the enforceability of any instruments now or
hereafter executed by Guarantor in favor of the Lenders. Guarantor covenants and
agrees that no action of any kind taken by Borrower shall be the basis for a
claim that Guarantor has any defense hereunder other than payment in full of all
Borrower's indebtedness to Lenders. Guarantor hereby indemnifies Lenders against
any loss, cost, or expense by reason of the assertion by Guarantor of any
defense hereunder based upon any such action or inaction of Borrower. Guarantor
waives any right or claim of right to cause a marshaling of the Borrower's
assets. No delay on the part of Lenders in the exercise of any right, power or
privilege under the terms of any documentation between Lenders and Borrower or
under this Continuing Guaranty shall operate as a waiver of any such privilege,
power or right.
In addition to all liens upon, and rights to set off against, the monies,
securities or other property of Guarantor given to Lenders by law, Guarantor
agrees that Lenders shall have a lien upon, and a right to set off against, all
monies, securities, and other property of Guarantor now or hereafter in
possession of or on deposit with Lenders, whether held in a general or special
account of deposit, or for safekeeping or otherwise; and, every such lien and
right to set off may be exercised without demand upon or notice to Guarantor.
No lien or right to set off shall be deemed to have been waived by any act or
conduct on the part of Lenders, or by any neglect to exercise such right to set
off or to enforce such lien, or by any delay in so doing; and every right to set
off and lien shall continue in full force and effect until such right to set off
or lien is specifically waived or released by an instrument in writing executed
by Lenders.
2
Guarantor acknowledges and agrees with Lenders that any and all
indebtedness of Borrower now or hereafter held by Guarantor is hereby
subordinated to the indebtedness of Borrower to Lenders; and such indebtedness
of Borrower to Guarantor, if Lenders so request, shall be collected, enforced
and received by Guarantor as trustee for Lenders and be paid over to Lenders on
account of the indebtedness of Borrower to Lenders, but without reducing or
affecting in any manner the liability of Guarantor under the other provisions of
this Continuing Guaranty.
Guarantor agrees to pay all attorneys' fees and all other costs and
expenses that may be incurred or expended by Lenders in the enforcement of
Borrower's obligations and of this Continuing Guaranty, whether suit be brought
or not, and if suit is brought, then for all services in trial and appellate
courts.
Upon default of Borrower in any of its obligations or liabilities to
Lenders, or if Borrower or Guarantor shall become insolvent or make an
assignment for the benefit of creditors, or if a petition in bankruptcy or for
corporate reorganization or for an arrangement be filed by or against Borrower
or Guarantor, or if there is the appointment of a receiver for Borrower or for
Guarantor or their property, or if a judgment is obtained or warrant of
attachment issued against Borrower or Guarantor, all of the indebtedness, shall,
without notice or demand, at the option of Lenders, become immediately due and
payable and shall be paid forthwith by Guarantor.
If the Borrower is a corporation or a partnership, it shall not be
necessary for the Lenders to inquire into the existence or powers of the
Borrower, or the officers, directors, partners, or agents acting or purporting
to act on the Borrower's behalf, and any indebtedness made or created upon the
professed exercise of such existence or powers shall be guaranteed hereunder.
Guarantor hereby submits to the jurisdiction of the state and federal
courts in the State of Texas for purposes of any action arising from or growing
out of this Continuing Guaranty, and further agrees that the venue of any action
may be laid in Dallas County or, if applicable, any other county in any state in
which real property which secures any of the indebtedness is located. Nothing
contained in this Continuing Guaranty, however, shall be deemed to constitute,
or to imply the existence of, any agreement by Lenders to bring any action only
in said courts or to restrict in any way any of Lenders' remedies or rights to
enforce the terms of this Continuing Guaranty as, when and where Lenders shall
deem appropriate, in their sole discretion.
Notwithstanding any provision herein or in any instrument now or hereafter
evidencing said indebtedness, the total liability for payments in the nature of
interest under this Continuing Guaranty shall not exceed the limits imposed from
time to time by applicable usury laws. This Continuing Guaranty shall be
accepted, at the offices of Lenders in Dallas, Texas and for all purposes, be
governed by and construed with the laws of the State of Texas.
Guarantor acknowledges that Lenders have been induced by this Continuing
Guaranty to extend the credit to Borrower creating the indebtedness, and that
Lenders would not have extended said credit without this Continuing Guaranty,
and this Continuing Guaranty shall, without further
3
reference or assignment, pass to, and may be relied upon and enforced by, any
successor or participant or assignee of Lenders.
No amounts paid under this Continuing Guaranty shall in any way or at any
time entitle Guarantor to any right, claim or cause of action against the
Borrower, or to any right, title or interest in or to any of the indebtedness or
any rights of the Lenders, or in or to any instruments or documents evidencing
or securing or concerning the indebtedness, and Guarantor hereby waives, for the
benefit of the Lenders and the Borrower, any and all such rights (whether
arising by way of subrogation, exoneration, reimbursement, participation,
assignment, judicial decision, statute, constitutional provision, or otherwise)
which Guarantor might otherwise have had in the absence of this waiver and which
would have otherwise entitled Guarantor to be a "creditor" of the Borrower under
the provisions of the U.S. Bankruptcy Code (Title 11, U.S. Code) or any other
bankruptcy or insolvency law.
Guarantor acknowledges and agrees that this Continuing Guaranty shall
remain in full force and effect until all indebtedness of Borrower to Lenders is
paid in full and that if Lenders are required by a court of competent
jurisdiction to refund or repay to the Borrower or on behalf of the Borrower any
amounts received in reduction or satisfaction of the indebtedness, then and in
that event the liabilities of Guarantor in regard to said amounts shall be
reinstated and this Continuing Guaranty shall remain in full force and effect in
respect thereto. Furthermore, Guarantor agrees that this Continuing Guaranty
shall continue to be effective or shall be reinstated, as the case may be, at
any time payment, or any part thereof, of principal or interest charges, or
other related expenses of the obligations are rescinded or otherwise forgiven by
Lenders upon the bankruptcy or reorganization of Borrower or Guarantor.
Guarantor agrees to furnish to Lenders within sixty (60) days after the end
of its fiscal year a complete financial statement of Guarantor, including a
statement of income and expenses and a balance sheet indicating net worth,
prepared by an independent certified public accountant and prepared in
accordance with generally accepted accounting principles, applied on a
consistent basis and certified by Guarantor as true and correct.
This Continuing Guaranty may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute but one instrument.
Each provision hereof is intended to be severable and the invalidity or
illegality of any portion of this Continuing Guaranty shall not affect the
validity or legality of the remainder hereof.
Capitalized terms used but not defined herein shall have the respective
meanings set forth in the Loan Agreement.
4
LENDERS BY THEIR ACCEPTANCE HEREOF AND GUARANTOR HEREBY VOLUNTARILY,
KNOWINGLY AND INTENTIONALLY WAIVE ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING ARISING UNDER THIS GUARANTY OR CONCERNING THE
INDEBTEDNESS AND/OR COLLATERAL THEREFOR OR PERTAINING TO ANY TRANSACTION RELATED
TO OR CONTEMPLATED THEREBY, REGARDLESS OF WHETHER SUCH ACTION OR PROCEEDING
CONCERNS ANY CONTRACTUAL OR TORTIOUS OR OTHER CLAIM. GUARANTOR ACKNOWLEDGES
THAT THIS WAIVER OF JURY TRIAL IS A MATERIAL INDUCEMENT TO THE LENDERS IN
EXTENDING CREDIT TO THE BORROWER, THAT THE LENDERS WOULD NOT HAVE EXTENDED SUCH
CREDIT WITHOUT THIS JURY TRIAL WAIVER, AND THAT GUARANTOR HAS BEEN REPRESENTED
BY AN ATTORNEY OR HAVE HAD AN OPPORTUNITY TO CONSULT WITH AN ATTORNEY IN
CONNECTION WITH THIS JURY TRIAL WAIVER AND UNDERSTAND THE LEGAL EFFECT OF THIS
WAIVER.
5
IN WITNESS WHEREOF, Guarantor has executed this Continuing Guaranty as of
the date of the issuance of the Debentures.
CERTIFIED MAINTENANCE SERVICES, INC.
By: /s/ J. Xxxxxxx Xxxxxxxx
--------------------------
J. Xxxxxxx Xxxxxxxx
Title: Vice President
---------------------
The terms and provisions of this Continuing Guaranty are hereby agreed to
by the undersigned.
LA-MAN CORPORATION
By: /s/ J. Xxxxxxx Xxxxxxxx
--------------------------
J. Xxxxxxx Xxxxxxxx
President and Chief Executive Officer
6
