Exhibit 10 (t)
GUARANTY AGREEMENT
by
OTR EXPRESS, INC. (the "Guarantor")
000 Xxxxx Xxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxx 00000
in favor of
HSBC BUSINESS LOANS, INC. (the "Secured Party")
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxx Xxxx, Xxxxxxxx 00000
June 8, 1998
GUARANTY AGREEMENT
This GUARANTY AGREEMENT (the "Guaranty") is made as of June 8, 1998, by
the Guarantor in favor of the Secured Party.
RECITALS
A. At the request of Guarantor, as of the date of this Guaranty,
Secured Party has extended credit to Xxxxxxx X. Xxxxx (the "Debtor")
pursuant to the terms of a Promissory Note of even date herewith in the
principal amount of $60,000.00 from Debtor, as maker, payable to the order
of Secured Party (as amended, modified, extended, renewed or otherwise
amended from time to time, the "Note").
B. Debtor is a key employee of Guarantor, and Guarantor has requested
and arranged for the extensions of credit described in the Note to Debtor
in order to permit Debtor to purchase shares of Guarantor's common stock in
open market transactions, in private transactions at negotiated prices or
pursuant to the exercise of stock options granted by the Guarantor.
C. Guarantor has independently determined that the execution, delivery
and performance of this Guaranty will directly benefit it and are within
its corporate purposes and best interests.
NOW, THEREFORE, in consideration of these background recitals, and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, and intending to be legally bound hereby, the
Guarantor and the Secured Party agree as follows:
Section 1. Reference to Loan Agreement. Reference is hereby made to
the Note and Security Documents (as defined in the Note) for a statement of
the terms and conditions thereof.
Section 2. Guaranty of Payment.
(A) Subject to the limitations on liability contained in Section 10 of
this Guaranty, the Guarantor hereby irrevocably, absolutely, and
unconditionally guarantees the full and prompt payment to the Secured Party
when due, whether by acceleration or otherwise, of any and all indebtedness
evidenced by the Note and the other Security Documents, including, without
limitation, all extensions, renewals, and replacements of such
indebtedness:
i) whether such indebtedness exists now or is hereafter incurred;
ii) whether such indebtedness is from time to time reduced and
thereafter increased or entirely extinguished and thereafter reincurred;
and
iii) whether such indebtedness is incurred by the Debtor prior to,
during, or after any filing by the Debtor or against the Debtor of any
petition or request for liquidation, reorganization, arrangement,
adjudication as a bankrupt, relief as a debtor, or other relief under
bankruptcy, insolvency, or similar laws now or hereafter in effect in the
United States of America or any state or territory thereof, and
notwithstanding the Debtor's legal status as a debtor or a debtor-in-
possession or the Debtor's discharge in any such proceeding;
(collectively, the "Obligations").
(B) The Guarantor hereby acknowledges and agrees that:
i) although applicable bankruptcy or insolvency laws may relieve
all or part of the Debtor's obligations for principal, interest, default
interest, fees, costs, or expenses under the Note or otherwise, the
Guarantor shall continue to be liable for such obligations as if the
bankruptcy or insolvency of the Debtor had not occurred;
ii) the obligations of the Guarantor under this Guaranty may exceed
allowable obligations of the Debtor to the Secured Party under such
bankruptcy or insolvency laws; and
iii) to this extent, the Guarantor's liability to the Secured Party
hereunder may not be co-extensive with the Debtor's liability to the
Secured Party under the Note and the other Security Documents or otherwise.
Section 3. Nature of Guaranty; Termination.
(A) This Guaranty is a continuing guaranty of the Obligations,
independent of and in addition to any other guaranty, collateral, or other
agreement held by the Secured Party for the Obligations or any part
thereof, whether executed or granted by the Guarantor or otherwise. The
liability of the Guarantor hereunder shall be absolute and unconditional
irrespective of, and the Guarantor waives any defense which might otherwise
arise as a result of, any of the following:
i) any lack of validity or enforceability of the Note or any other
Security Document or any other document, agreement, or writing creating or
evidencing any of the Obligations, including, without limitation, the lack
of validity or enforceability of all or any portion of any liens or
security interests securing all or any part of the Obligations;
ii) any non-perfection of any lien on or security interest in any
collateral securing all or any part of the Obligations or this Guaranty or
any failure by the Secured Party to protect, preserve, or insure the
collateral securing all or any part of the Obligations or this Guaranty; or
iii) any event or circumstance which might operate under applicable
law to discharge the liability of the Guarantor hereunder or might
otherwise constitute or give rise to a defense available to the Debtor, the
Guarantor, or any other guarantor of any of the Obligations.
(B) This Guaranty is a guaranty of payment, not of collection.
(C) This Guaranty shall remain in full force and effect until all of
the Obligations and other fees, costs, and expenses payable by the
Guarantor pursuant to Section 4 hereof have been paid or performed in full
and the Secured Party has no further obligation or commitment to the Debtor
to advance funds under the Note or otherwise. This Guaranty shall continue
to be effective or shall be reinstated, as the case may be, if at any time
any payment of any of the Obligations is rescinded, voided, or rendered
void or voidable as a preferential transfer, impermissible set-off, or
fraudulent conveyance or must otherwise be returned or disgorged by the
Secured Party, as if such rescinded, avoided, voided, or voidable payment
had not been made.
Section 4. Costs and Expenses.
(A) The Guarantor agrees to pay on demand all fees, costs, and
expenses of every kind incurred by the Secured Party for any purpose
arising from, relating to, or in connection with the Obligations, the
Debtor, or this Guaranty, including, without limitation, fees, costs, and
expenses incurred by the Secured Party in enforcing this Guaranty, in
collecting any Obligations from the Debtor or the Guarantor, or in
realizing upon or protecting any collateral securing all or any part of the
Obligations or this Guaranty.
(B) The Guarantor specifically acknowledges and agrees that the fees,
costs, and expenses described in the preceding subsection include, without
limitation, actual attorneys' fees and expenses incurred by the Secured
Party in retaining counsel for any purpose arising from, relating to, or in
connection with the Obligations, the Debtor, or this Guaranty, including,
without limitation, attorneys' fees and expenses incurred by the Secured
Party in retaining counsel for advice, suit, or appeal, or for any
bankruptcy, insolvency, or similar proceeding under the Federal Bankruptcy
Code or otherwise.
Section 5. Collateral. Guarantor's obligations under this Guaranty
constitute indebtedness that is secured by the Collateral (as that term is
defined in the that certain Loan and Security Agreement dated June 11, 1997
between Guarantor and Secured Party) (as amended from time to time, the
"Loan Agreement").
Section 6. Waivers of the Guarantor. The Guarantor hereby agrees that the
Guarantor shall not have, and hereby expressly waives:
(A) Any right to subrogation, indemnification, or contribution and any
other right to payment from or reimbursement by the Debtor in connection
with or as a consequence of any payment made by the Guarantor hereunder,
until such time as the Obligations have been paid in full and Secured Party
has no further commitment to extend credit to Debtor;
(B) Any right to enforce any right or remedy which the Secured Party
has or may hereafter have against the Debtor, until such time as the
Obligations have been paid in full and Secured Party has no further
commitment to extend credit to Debtor;
(C) Any benefit of, and any right to participate in, any collateral
securing all or any part of the Obligations or this Guaranty or any payment
made to the Secured Party or collection by the Secured Party from the
Debtor, until such time as the Obligations have been paid in full and
Secured Party has no further commitment to extend credit to Debtor;
(D) Any right to require promptness and diligence on the part of the
Secured Party;
(E) Any right to receive notices, including, without limitation,
notice of the acceptance of this Guaranty or of the incurrence of any
Obligation by the Debtor, notice of any action taken by the Secured Party
or the Debtor pursuant to any document, agreement, or writing relating to
the Obligations (including, without limitation, the release of any
collateral securing the Obligations), or notice of the intended disposition
of any collateral securing all or any part of the Obligations or this
Guaranty; provided, that Secured Party shall not voluntarily release any
shares of the Guarantor's common stock pledged by Debtor to Secured Party
without the prior written consent of the Guarantor; and
(F) Any right to require the Secured Party to advise the Guarantor of
any information known to the Secured Party regarding the financial or other
condition of the Debtor, the Guarantor acknowledging that the Guarantor is
responsible for being and keeping informed regarding such condition.
Section 7. Payment of the Obligations. If any Obligation is not paid
punctually when due, subject to any applicable grace period, including,
without limitation, any Obligation due by acceleration of the maturity
thereof, the Guarantor shall immediately pay such Obligation or cause such
Obligation to be paid in full:
(A) without deduction for any set-off, recoupment, defense, or
counterclaim;
(B) without requiring and notwithstanding the lack of protest or
notice of nonpayment or default to the Guarantor, the Debtor, or any other
person;
(C) without demand for payment or proof of such demand; and
(D) without requiring and without any obligation on the part of the
Secured Party to resort first to the Debtor or to any collateral securing
all or any part of the Obligations or this Guaranty, or to any other
guaranty which the Secured Party may hold as security for payment of the
Obligations.
Section 8. Rights and Remedies of the Secured Party.
(A) The Guarantor acknowledges and agrees that the Secured Party may,
without the consent of, notice or demand to, or reservation of rights
against the Guarantor, and without affecting the Guarantor's obligations
hereunder, from time to time:
i) accept and hold collateral securing payment of the Obligations,
or any part thereof, and exchange, enforce, or release such collateral, or
any part thereof;
ii) accept and hold any guaranty of payment of the Obligations or
any part thereof, and partially or fully discharge, release, or substitute
the obligations of any such guarantor, or any person or entity who has
pledged any collateral as security for payment of the Obligations, or waive
any rights or remedies with respect to any thereof;
iii) partially or fully discharge or release, or waive any rights
or remedies with respect to, the Debtor;
iv) dispose of any collateral securing all or any part of the
Obligations or this Guaranty in any manner or order as the Secured Party,
in its sole discretion, deems appropriate; and
v) determine the manner, amount, and time of application of
payments and credits to be made on all or any part of the Obligations
(whether for principal, interest, fees, costs, expenses, or otherwise),
and, if this Guaranty is limited in amount pursuant to Section 10 hereof,
apply such payments and credits first to reduce Obligations exceeding the
amount of this Guaranty.
(B) Upon the occurrence of any Event of Default, the Secured Party
may, at any time and from time to time without prior notice to the
Guarantor, set-off and apply any and all deposits (general or special, time
or demand, provisional or final) held and other indebtedness owing by the
Secured Party to or for the credit of the Guarantor against the
Obligations, irrespective of whether the Secured Party shall have made any
demand under this Guaranty. The Secured Party agrees to notify the
Guarantor after any such set-off and application, provided that failure to
give such notice to the Guarantor shall not affect the validity of such
set-off and application.
Section 9. Representations, Warranties and Agreements of the Guarantor.
The Guarantor hereby represents and warrants to the Secured Party, and
agrees with Secured Party, as follows:
(A) The Guarantor is duly organized and existing in good standing
under the laws of the state of its incorporation and is duly licensed or
qualified to do business and is in good standing in every state in which
the nature of its business or ownership of its property requires such
licensing or qualification.
(B) The execution, delivery, and performance of this Guaranty is
within the Guarantor's corporate powers, have been duly authorized by all
necessary and appropriate corporate action, and are not in contravention of
any law or the terms of the Guarantor's articles or certificate of
incorporation or by-laws or any amendment thereto, or of any indenture,
agreement, undertaking, or other document to which the Guarantor is a party
or by which the Guarantor or any of the Guarantor's property is bound or
affected.
(C) No consent, license, approval, or authorization of, or
registration, declaration, or filing with, any court, governmental body,
authority, or other person or entity is required in connection with the
valid execution, delivery, or performance of this Guaranty, other than
filings and recordings in connection with this Guaranty.
(D) This Guaranty constitutes the legal, valid, and binding obligation
of the Guarantor, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy and insolvency laws
and laws affecting creditors' rights generally.
(E) The Stock Purchase Assistance Agreements among the Guarantor and
Xxxxxxx X. Xxxxx and Xxxx X. Xxxxxx, respectively (true and correct copies
of which have been provided by the Guarantor to the Secured Party) (the
"Assistance Agreements") shall have been adopted and approved by the
Guarantor's Board of Directors and stockholders (if necessary), and are and
shall be binding and enforceable on the parties thereto in accordance with
their terms.
(F) The Guarantor agrees that it shall not consent to or approve any
amendment to or modification of the Assistance Agreements without the prior
written consent of Secured Party.
(G) If requested to do so by the Secured Party, the Guarantor shall
make all Principal Payment Reimbursement (as defined in the Assistance
Agreements as in effect on the date of this Guaranty) directly to the
Secured Party.
Section 10. Limited Guaranty; Reserves.
(A) This Guaranty is limited in amount to (a) an amount equal to the
difference between (1) the principal balance of the Obligations, and (2)
fifty percent (50%) of the Value (as defined below) of any shares of common
stock of the Guarantor purchased by Debtor using proceeds of advances under
the Note and upon which Secured Party has a perfected first priority
security interest less accrued and unpaid interest on the Note, plus (b)
costs and expenses provided for in Section 4 hereof (collectively, the
"Maximum Amount"). For purposes of this paragraph: (i) the term "Value"
shall mean an amount equal to the "Bid" price for the Guarantor's common
stock as published in the Wall Street Journal on the applicable
Determination Date (as defined below), and (ii) the Value of the
Guarantor's common stock purchased by Debtor using proceeds of advances
under this Note and upon which Secured Party has a perfected first priority
security interest shall be done on a monthly basis on the first Business
Day (as defined in the Loan Agreement) of each month (a "Determination
Date") and the amount of this Guaranty shall be adjusted on each such
Determination Date.
(B) The Guarantor acknowledges that a reserve against availability on
the credit facility provided by the Secured Party to the Guarantor under
the Loan Agreement will be maintained in an amount equal to the then
applicable Maximum Amount, as adjusted from time to time.
(C) Upon demand for payment on the Guarantor pursuant to this
Guaranty, the Guarantor hereby authorizes the Secured Party to make on
advance (without notice to or approval of the Guarantor) under the Loan
Agreement in an amount equal to the Guarantor's liability hereunder to be
applied to the Obligations.
(D) Notwithstanding anything to the contrary provided in this
Guaranty, the Guarantor shall not be liable to Secured Party for any
interest charges relating to the Note.
Section 11. Notices. Any notices and other communications provided for
hereunder shall be made by fax, overnight air courier, or certified or
registered mail, return receipt requested, and shall be deemed to be
received by the party to whom sent one (1) Business Day after sending, if
sent by fax, or overnight air courier, and three (3) Business Days after
mailing, if sent by certified or registered mail. All such notices and
other communications to a party shall be addressed to such party at the
address set forth on the cover page hereof or to such other address as such
party may designate for itself in a notice to the other party given in
accordance with this Section.
Section 12. Miscellaneous.
(A) The Guarantor will make each payment hereunder in lawful money of
the United States of America and in immediately available funds to the
Secured Party at its address as reflected on the cover page hereof.
(B) No modification, rescission, waiver, release, or amendment of any
provision of this Guaranty shall be made, except by a written agreement
signed by the Guarantor and a duly authorized officer of the Secured Party.
(C) "Secured Party" shall include the successors and assigns of the
Secured Party.
(D) The rights and benefits of the Secured Party hereunder shall, if
the Secured Party so agrees, inure to any party acquiring any interest in
the Obligations, or any part thereof.
(E) No course of dealing between the Debtor or the Guarantor and the
Secured Party, and no delay or omission by the Secured Party in exercising
any right or remedy hereunder or with respect to the Obligations shall
operate as a waiver thereof or of any other right or remedy, and no single
or partial exercise thereof shall preclude any other or further exercise
thereof or the exercise of any other right or remedy. All rights and
remedies of the Secured Party are cumulative.
(F) From time to time, the Guarantor shall take such action and
execute and deliver to the Secured Party such additional documents,
instruments, certificates, and agreements as the Secured Party may
reasonably request to effectuate the purposes of this Guaranty.
(G) Section headings used in this Guaranty are for convenience only
and shall not affect the construction of this Guaranty.
(H) The provisions of this Guaranty are independent of and separable
from each other, and no such provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any
other such provision may be invalid or unenforceable in whole or in part.
If any provision of this Guaranty is prohibited or unenforceable in any
jurisdiction, such provision shall be ineffective in such jurisdiction only
to the extent of such prohibition or unenforceability, and such prohibition
or unenforceability shall not invalidate the balance of such provision to
the extent it is not prohibited or unenforceable nor render prohibited or
unenforceable such provision in any other jurisdiction.
(I) THIS GUARANTY AND THE TRANSACTIONS EVIDENCED HEREBY SHALL BE
GOVERNED BY AND CONSTRUED UNDER THE INTERNAL LAWS OF THE STATE OF MISSOURI,
WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS, AS THE SAME MAY FROM
TIME TO TIME BE IN EFFECT.
(J) THE GUARANTOR AND THE SECURED PARTY AGREE THAT ANY ACTION OR
PROCEEDING TO ENFORCE OR ARISING OUT OF THIS GUARANTY MAY BE COMMENCED IN
THE CIRCUIT COURT OF XXXXXXX COUNTY, MISSOURI OR THE UNITED STATES DISTRICT
COURT FOR THE WESTERN DISTRICT OF MISSOURI, AND THE GUARANTOR WAIVES
PERSONAL SERVICE OF PROCESS AND AGREES THAT A SUMMONS AND COMPLAINT
COMMENCING AN ACTION OR PROCEEDING IN ANY SUCH COURT SHALL BE PROPERLY
SERVED AND SHALL CONFER PERSONAL JURISDICTION IF SERVED BY REGISTERED OR
CERTIFIED MAIL TO THE GUARANTOR, OR AS OTHERWISE PROVIDED BY THE LAWS OF
SUCH STATE OR THE UNITED STATES.
(K) This Guaranty may be executed in any number of counterparts and by
the Secured Party and the Guarantor on separate counterparts, each of which
when so executed and delivered shall be an original, but all of which shall
together constitute one and the same Guaranty.
Section 13. Waiver of Jury Trial. THE GUARANTOR AND THE SECURED PARTY
HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT TO TRIAL
BY JURY THE GUARANTOR OR THE SECURED PARTY MAY HAVE IN ANY ACTION OR
PROCEEDING, IN LAW OR IN EQUITY, IN CONNECTION WITH THIS GUARANTY OR THE
TRANSACTIONS RELATED THERETO. THE GUARANTOR REPRESENTS AND WARRANTS THAT
NO REPRESENTATIVE OR AGENT OF THE SECURED PARTY HAS REPRESENTED, EXPRESSLY
OR OTHERWISE, THAT THE SECURED PARTY WILL NOT, IN THE EVENT OF LITIGATION,
SEEK TO ENFORCE THIS RIGHT TO JURY TRIAL WAIVER. THE GUARANTOR
ACKNOWLEDGES THAT THE SECURED PARTY HAS BEEN INDUCED TO ENTER INTO THIS
GUARANTY BY, AMONG OTHER THINGS, THE PROVISIONS OF THIS SECTION.
IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be
executed by a duly authorized officer as of the date first above written.
GUARANTOR:
OTR EXPRESS, INC.
By: /s/Xxxx X. Xxxxxxx
Name (print): Xxxx X. Xxxxxxx
Title: President
ACKNOWLEDGED AND ACCEPTED:
HSBC BUSINESS LOANS, INC.
By:/s/ M. Xxxxxxxxx Xxxxxx
M. Xxxxxxxxx Xxxxxx
Vice President
