EXHIBIT 10.25
COMERICA GUARANTY
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As of October 9, 1998, the undersigned, SPECIALIZED DATA SYSTEMS, INC., a
North Carolina corporation, for value received, unconditionally and
absolutely guarantees to COMERICA BANK, a Michigan banking corporation
("Bank"), payment when due, whether by stated maturity, demand,
acceleration or otherwise, of all existing and future indebtedness
("Indebtedness") to the Bank of MANATRON, INC., a Michigan corporation
("Borrower"). Indebtedness includes, without limit, any and all
obligations or liabilities of the Borrower to the Bank, whether absolute or
contingent, direct or indirect, voluntary or involuntary, liquidated or
unliquidated, joint or several, known or unknown; any and all indebtedness,
obligations or liabilities for which Borrower would otherwise be liable to
the Bank were it not for the invalidity, irregularity or unenforceability
of them by reason of any bankruptcy, insolvency or other law or order of
any kind, or for any other reason; any and all amendments, modifications,
renewals and/or extensions of any of the above; and all costs of collecting
Indebtedness, including, without limit, attorney fees. Any reference in
this Guaranty to attorney fees shall be deemed a reference to reasonable
fees, charges, costs and expenses of both in-house and outside counsel and
paralegals, whether or not a suit or action is instituted, and to court
costs if a suit or action is instituted, and whether attorney fees or court
costs are incurred at the trial court level, on appeal, in a bankruptcy,
administrative or probate proceeding or otherwise. All costs shall be
payable immediately by the undersigned when incurred by the Bank, without
demand, and until paid shall bear interest a the highest per annum rate
applicable to any of the Indebtedness, but not in excess of the maximum
rate permitted by law.
1. UNLIMITED OBLIGATION: The total obligation of the undersigned under
this Guaranty is UNLIMITED, and this obligation shall include all
principal of Borrower at any time owing to the Bank, all interest
thereon, and all costs incurred by the Bank in collection efforts
against the Borrower and/or the undersigned or otherwise incurred by
the Bank in any way relating to the Indebtedness or this Guaranty,
including, without limit, attorney fees. The undersigned agrees that
(a) nothing set forth in this Guaranty shall be a limitation on the
amount of Borrower's Indebtedness to the Bank; (b) any payments by the
undersigned shall not reduce the maximum liability of the undersigned
under this Guaranty, unless written notice to that effect is actually
received by the Bank at, or prior to, the time of payment; and (c) the
liability of the undersigned to the Bank shall at all times be deemed
to be the aggregate liability of the undersigned under this Guaranty
and any other guaranties previously or subsequently given to the Bank
by the undersigned and not expressly revoked, modified or invalidated
in writing.
2. NATURE OF GUARANTY: This is a continuing Guaranty of payment and not
of collection and remains effective whether the Indebtedness is from
time to time reduced and later increased or entirely extinguished and
later reincurred. The undersigned delivers this Guaranty based solely
on the undersigned's independent investigation of (or decision not to
investigate) the financial condition of Borrower and is not relying on
any information furnished by the Bank. The undersigned assumes full
responsibility for obtaining any further information concerning the
Borrower's financial condition, the status of the Indebtedness or any
other matter which the undersigned may deem necessary or appropriate
now or later. The undersigned knowingly accepts the full range of
risk encompassed in this Guaranty, which risk includes, without limit,
the possibility that Borrower may incur Indebtedness to the Bank after
the financial condition of the Borrower, or the Borrower's ability to
pay debts as the mature, has deteriorated.
3. APPLICATION OF PAYMENTS: The undersigned authorizes the Bank, either
before or after termination of this Guaranty, without notice to or
demand on the undersigned and without affecting the undersigned's
liability under this Guaranty, from time to time to: (a) apply any
security and direct the order or manner of sale; and (b) apply
payments received by the Bank from the Borrower to any indebtedness of
the Borrower to the Bank, in such order as the Bank shall determine in
its sole discretion, whether or not this indebtedness is covered by
this Guaranty, and the undersigned waives any provision of law
regarding application of payments which specifies otherwise. The
undersigned agrees to provide to the Bank copies of the undersigned's
financial statements upon request.
4. SECURITY: The undersigned grants to the Bank a security interest in
and the right of setoff as to any and all property of the undersigned
now or later in the possession of the Bank. The undersigned further
assigns to the Bank as collateral for the obligations of the
undersigned under this Guaranty all claims of any nature that the
undersigned now or later has against the Borrower (other than any
claim under a deed of trust or mortgage covering California real
property) with full right on the part of the Bank, in its own name or
in the name of the undersigned, to collect and enforce these claims.
The undersigned agrees that no security now or later held by the Bank
for the payment of any Indebtedness, whether from the Borrower, any
guarantor, or otherwise, and whether in the nature of a security
interest, pledge, lien, assignment, setoff, suretyship, guaranty,
indemnity, insurance or otherwise, shall affect in any manner the
unconditional obligation of the undersigned under this Guaranty, and
the Bank, in its sole discretion, without notice to the undersigned,
may release, exchange, enforce and otherwise deal with any security,
without affecting in any manner the unconditional obligation of the
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undersigned under this Guaranty. The undersigned acknowledges and
agrees that the Bank has no obligation to acquire or perfect any lien
on or security interest in any asset(s), whether realty or personalty,
to secure payment of the Indebtedness, and the undersigned is not
relying upon any asset(s) in which the Bank has or may have a lien or
security interest for payment of the Indebtedness.
5. OTHER GUARANTORS: If any Indebtedness is guaranteed by two or more
guarantors, the obligation of the undersigned shall be several and
also joint, each with all and also each with any one or more of the
others, and may be enforced at the option of the Bank against each
severally, any two or more jointly, or some severally and some
jointly. The Bank, in its sole discretion, may release any one or
more of the guarantors for any consideration which it deems adequate,
and may fail or elect not to prove a claim against the estate of any
bankrupt, insolvent, incompetent or deceased guarantor; and after
that, without notice to any guarantor, the Bank may extend or renew
any or all Indebtedness and may permit the Borrower to incur
additional Indebtedness, without affecting in any manner the
unconditional obligation of the remaining guarantor(s). The
undersigned acknowledges that the effectiveness of this Guaranty is
not conditioned on any or all of the indebtedness being guaranteed by
anyone else.
6. TERMINATION: The undersigned may terminate its obligation under this
Guaranty as to future Indebtedness (except as provided below) by (and
only by) delivering written notice of termination to an officer of the
Bank and receiving from an officer of the Bank written acknowledgment
of delivery; provided, however, the termination shall not be effective
until the opening of business on the fifth (5th) day ("effective
date") following written acknowledgement of delivery. Any termination
shall not affect in any way the unconditional obligations of any
remaining guarantor(s), whether or not the termination is known to the
remaining guarantor(s). Any termination shall not affect in any way
the unconditional obligations of the undersigned as to any
Indebtedness existing at the effective date of termination or any
Indebtedness created after that pursuant to any commitment or
agreement of the Bank or pursuant to any Borrower loan with the Bank
existing at the effective date of termination (whether advances or
readvances by the Bank after the effective date of termination are
optional or obligatory), or any modifications, extensions or renewals
of any of this Indebtedness, whether in whole or in part, and as to
all of this Indebtedness and modifications, extensions or renewals of
it, this Guaranty shall continue effective until the same shall have
been fully paid. The Bank has no duty to give notice of termination
by any guarantor(s) to any remaining guarantor(s). The undersigned
shall indemnify the Bank against all claims, damages, costs and
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expenses, including, without limit, attorney fees, incurred by the
Bank in connection with any suit, claim or action against the Bank
arising out of any modification or termination of a Borrower loan or
any refusal by the Bank to extend additional credit in connection with
the termination of this Guaranty.
7. REINSTATEMENT: Notwithstanding any prior revocation, termination,
surrender or discharge of this Guaranty (or of any lien, pledge or
security interest securing this Guaranty) in whole or in part, the
effectiveness of this Guaranty, and of all liens, pledges and security
interests securing this Guaranty, shall automatically continue or be
reinstated, as the case may be, in the event that any payment received
or credit given by the Bank in respect of the Indebtedness is
returned, disgorged or rescinded under any applicable state or federal
law, including, without limitation, laws pertaining to bankruptcy or
insolvency, in which case, this Guaranty, and all liens, pledges and
security interests securing this Guaranty, shall be enforceable
against the undersigned as if the returned, disgorged or rescinded
payment or credit had not been received or given by the Bank, and
whether or not the Bank relied upon this payment or credit or changed
its position as a consequence of it. In the event of continuation or
reinstatement of this Guaranty and the liens, pledges and security
interests securing it, the undersigned agrees, upon demand by the
Bank, to execute and deliver to the Bank those documents which the
Bank determines are appropriate to further evidence (in the public
records or otherwise) this continuation or reinstatement, although the
failure of the undersigned to do so shall not affect in any way the
reinstated or continuation. If the undersigned does not execute and
deliver to the Bank upon demand such documents, the Bank and each Bank
officer is irrevocably appointed (which appointment is coupled with an
interest) the true and lawful attorney of the undersigned (with full
power of substitution) to execute and deliver such documents in the
name and on behalf of the undersigned.
8. WAIVERS: The undersigned waives any right to require the Bank to:
(a) proceed against any person or property; (b) give notice of the
terms, time and place of any public or private sale of personal
property security held from the Borrower or any other person, or
otherwise comply with the provisions of Section 9-504 of the Michigan
or other applicable Uniform Commercial Code; or (c) pursue any other
remedy in the Bank's power. The undersigned waives notice of
acceptance of this Guaranty and presentment, demand, protest, notice
of protest, dishonor, notice of dishonor, notice of default, notice of
intent to accelerate or demand payment of any Indebtedness, any and
all other notices to which the undersigned might otherwise be
entitled, and diligence in collecting any Indebtedness, and agrees
that the Bank may, once or any number of times, modify the terms of
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any Indebtedness, compromise, extend, increase, accelerate, renew or
forbear to enforce payment of any or all Indebtedness, or permit the
Borrower to incur additional Indebtedness, all without notice to the
undersigned and without affecting in any manner the unconditional
obligation of the undersigned under this Guaranty.
The undersigned unconditionally and irrevocably waives each and every
defense and setoff of any nature which, under principles of guaranty
or otherwise, would operate to impair or diminish in any way the
obligation of the undersigned under this Guaranty, and acknowledges
that each such waiver is by this reference incorporated into each
security agreement, collateral assignment, pledge and/or other
document from the undersigned now or later securing this Guaranty
and/or the Indebtedness, and acknowledges that as of the date of this
Guaranty no such defense or setoff exists.
9. WAIVER OF SUBROGATION: The undersigned waives any and all rights
(whether by subrogation, indemnity, reimbursement, or otherwise) to
recover from the Borrower any amounts paid by the undersigned pursuant
to this Guaranty.
10. SALE/ASSIGNMENT: The undersigned acknowledges that the Bank has the
right to sell, assign, transfer, negotiate, or grant participations in
all or any part of the Indebtedness and any related obligations,
including, without limit, this Guaranty, without notice to the
undersigned and that the Bank may disclose any documents and
information which the Bank now has or later acquires relating to the
undersigned or to the Borrower in connection with such sale,
assignment, transfer, negotiation, or grant. The undersigned agrees
that the Bank may provide information relating to this Guaranty or
relating to the undersigned to the Bank's parent, affiliates,
subsidiaries and service providers.
11. GENERAL: This Guaranty constitutes the entire agreement of the
undersigned and the Bank with respect to the subject matter of this
Guaranty. No waiver, consent, modification or change of the terms of
the Guaranty shall bind any of the undersigned or the Bank unless in
writing and signed by the waiving party or an authorized officer of
the waiving party, and then this waiver, consent, modification or
change shall be effective only in the specific instance and for the
specific purpose given. This Guaranty shall inure to the benefit of
the Bank and its successors and assigns and shall be binding on the
undersigned and the undersigned's heirs, legal representatives,
successors and assigns including, without limit, any debtor in
possession or trustee in bankruptcy for any of the undersigned. The
undersigned has (have) knowingly and voluntarily entered into this
Guaranty in good faith for the purpose of inducing the Bank to extend
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credit or make other financial accommodations to the Borrower. If any
provision of this Guaranty is unenforceable in whole or in part for
any reason, the remaining provisions shall continue to be effective.
THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS OF THE STATE OF MICHIGAN, WITHOUT REGARD TO CONFLICT
OF LAWS PRINCIPLES.
12. HEADINGS: Headings in this Agreement are included for the convenience
of reference only and shall not constitute a part of this Agreement
for any purpose.
13. JURY TRIAL WAIVER: THE UNDERSIGNED AND BANK ACKNOWLEDGE THAT THE
RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE
WAIVED. EACH PARTY, AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY
TO CONSULT) WITH COUNSEL OF THEIR CHOICE, KNOWINGLY AND VOLUNTARILY,
AND FOR THEIR MUTUAL BENEFIT WAIVES ANY RIGHT TO TRIAL BY JURY IN THE
EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN
ANY WAY RELATED TO, THIS GUARANTY OR THE INDEBTEDNESS.
IN WITNESS WHEREOF, the undersigned has signed and delivered this Guaranty
the day and year first written above.
GUARANTOR:
WITNESSES: SPECIALIZED DATA SYSTEMS, INC.
/S/ XXXXXX X. XXXXXXXXX By: /S/ XXXX X. XXXXXXXXX
SIGNATURE OF: XXXXXX X. XXXXXXXXX SIGNATURE OF: XXXX X. XXXXXXXXX
Its: PRESIDENT
/S/ X.X. XXXXXX
SIGNATURE OF X.X. XXXXXX
GUARANTOR'S ADDRESS:
0000 X. 0XX XXXXXX
XXXXXX XXXXXXX
XXXXXXXXX XX 00000
CITY STATE ZIP CODE
6
