MARQUETTE CAPITAL BANK, N.A. - GUARANTY
Minneapolis, Minnesota
Date: November 4, 1999
For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and in consideration of and to induce financial
accommodations of any kind, with or without security, given or to be given or
continued at any time and from time to time by Marquette Capital Bank, NA.
(hereinafter called the "Bank") to or for the account of August Technology
Corporation (hereinafter called the "Borrower"), the undersigned guarantor
(called the "Guarantor") absolutely and unconditionally guarantees to the
Bank the full and prompt payment when due, whether at maturity or earlier by
reason of acceleration or otherwise, of the following (called the
"Indebtedness"):
Any and all debts, obligations and liabilities of the Borrower (and
any and all successors of the Borrower) to the Bank, including but not
limited to all principa4 interest and other charges, fees, expenses and
amounts, now or hereafter existing, absolute or contingent, independent joint
several or joint and several, secured or unsecured, due or to become due, con
or tortious, liquidated or unliquidated arising by assignment or otherwise,
including without limitation all indebtedness, obligations and liabilities
owed by the Borrower (and any and all successors of the Borrower) as a member
of any partnership, syndicate, association or other group,, and whether
incurred by the Borrower (or any successor of the Borrower) as principal,
surety, endorser, guarantor, accommodation party or otherwise.
Notwithstanding the aggregate amount of Indebtedness which able at
any time or from time to time, the liability of the Guarantor hereunder shall
not exceed the principal sum of $500,000 plus accrued interest thereon and
the costs, expenses and attorneys' fees described herein. Such liability
shall not be released, impaired or affected if at any time the Indebtedness
exceeds that amount, and the Bank may apply first in payment of such excess
all stuns received from the Borrower, from security for the Indebtedness, or
from any other source without releasing, impairing or affecting such
liability. If the liability of the Guarantor is limited by this p h, any
payment made by the Guarantor under this guaranty shall be effective to
reduce or discharge such liability only if accompanied by a written statement
received by the advising the Bank that such payment is made under this
guaranty for such purpose.
The Bank may at any time and from time to time, without consent of
or notice to the Guarantor, without incurring responsibility to the
Guarantor, without releasing, impairing or affecting the liability of the
Guarantor hereunder, upon or without any terms or conditions, and in whole or
in part: (1) sell pledge, surrender, compromise, settle, release, renew,
subordinate, extend, alter, substitute, exchange, change, modify or otherwise
dispose of or deal with in any manner and in any order any Indebtedness, any
evidence thereof or any security or other guaranty therefor, (2) accept any
security for or other guarantors of any Indebtedness; (3) fail neglect or
omit to obtain, realize upon or protect any Indebtedness or any security
therefor, to exercise any lien upon or right to any money, credit or property
toward the liquidation of the Indebtedness, or to exercise any other right
against the Borrower, the Guarantor, any other guarantor or any other person
or entity; and (4) apply any payments and credits to the
13
Indebtedness in any manner and in any order. No act, omission or thing,
except full payment and discharge of the Indebtedness, which but for this
provision could act as a release or impairment of the liability of the
Guarantor hereunder, shall in any way release, impair or otherwise affect the
liability of the Guarantor hereunder, and the Guarantor waives any and all
defenses of the Borrower pertaining to the Indebtedness, any evidence
thereof, and any security therefor, except the defense of discharge by
payment. The failure of any person or entity to execute this or any other
guaranty shall not release, impair or affect the liability of the Guarantor
hereunder. This guaranty is a primary obligation of the Guarantor and the
Bank shall not be required to resort for payment of the Indebtedness to the
Borrower or any other person or entity, their properties or estates, or any
security or other rights or remedies whatsoever. The Guarantor shall be and
remain liable for any deficiency remaining after foreclosure of any mortgage
or security interest securing the Indebtedness, whether or not the liability
of the Borrower or any other person or entity for such deficiency is
discharged pursuant to statute, judicial decision or otherwise.
The liability of the Guarantor under this guaranty is in addition to
and shall be cumulative with all other liabilities of the Guarantor to the
Bank, as guarantor or otherwise, without any limitation as to amount, unless
the writing evidencing or creating such other liability specifically provides
to the contrary. If any payment applied by the Bank to the Indebtedness is
thereafter set aside, recovered, rescinded or required to be returned for any
reason (including without limitation the bankruptcy, insolvency or
reorganization of the Borrower or any other person or entity), the
Indebtedness to which such payment was applied shall for the purposes of this
guaranty be deemed to have continued in existence, notwithstanding such
application, and this guaranty shall be enforceable as to such Indebtedness
as fully as if such application had never been made.
The Guarantor waives: (1) notice of acceptance of this guaranty and of
the creation and existence of the Indebtedness; (2) presentment, demand for
payment, notice of dishonor, notice of nonpayment and protest of any instrument
evidencing the Indebtedness; and (3) all other demands and notices to the
Guarantor or any other person or entity and all other actions to establish the
liability of the Guarantor hereunder. The Guarantor consents to the personal
jurisdiction of the state and federal courts located in the State of Minnesota
in connection with any controversy related to this guaranty or any transaction
or matter relating to this guaranty, waives any argument that venue in such
forums is not convenient and agrees that any litigation initiated by the
Guarantor against the Bank in connection with this guaranty or any transaction
or matter relating to this guaranty shall be venued in either the Minnesota
District Court of the county where the Bank is located, or the United States
District Court, District of Minnesota.
The Guarantor hereby agrees that the Bank shall have no duty to advise
the Guarantor of information now or hereafter known to the Bank regarding the
financial or other condition of the Borrower or any other person or entity
primarily or secondarily liable on the Indebtedness or regarding any
circumstance bearing on the risk of nonpayment of the Indebtedness. The
Guarantor acknowledges and agrees that the Guarantor has conducted its own
investigation of the business and affairs of the Borrower and any other person
or entity primarily or secondarily liable on the Indebtedness to its
satisfaction, has not relied and will not rely on any information provided by
the Bank in determining whether to enter into or continue this guaranty, and is
and will continue to remain informed of the Borrower's financial condition, the
status and financial
14
condition of other guarantors, if any, and all other circumstances which bear
upon the risk of nonpayment of the Indebtedness.
All property of the Guarantor now or hereafter in the possession,
control or custody of or in transit to the Bank for any purpose, including
without limitation the balance of every account of the Guarantor with and each
claim of the Guarantor against the Bank, shall be subject to a lien and security
interest in favor of the Bank, as security for all liabilities of the Guarantor
to the Bank, and shall be subject to be set off against any and all such
liabilities, and the Bank may at any time and from time to time at its option
and without notice appropriate and apply any such property toward the payment of
any and all such liabilities.
The Guarantor agrees to promptly provide the Bank from time to time the
following, all in form and substance acceptable to the Bank:
At least once every 12 months and as otherwise requested by the Bank,
the current signed personal financial statement of the Guarantor.
Within 45 days after the same are filed with the United States Internal
Revenue Service, the annual federal income tax returns of the Guarantor, and all
schedules, attachments and amendments to such returns.
The Guarantor also agrees to promptly provide the Bank from time to
time with such other information respecting the condition (financial and
otherwise), business and property of the Guarantor as the Bank may request, in
form and substance acceptable to the Bank.
The Guarantor waives all claims, rights and remedies which the
Guarantor may now have or hereafter acquire against any person or entity at any
time now or hereafter liable to payment of any of the Indebtedness and as to any
collateral security, including but not limited to all claims, rights and
remedies of contribution, indemnification, exoneration, reimbursement recourse
and subrogation, whether or not such claim, right or remedy arises in equity,
under contract, by statute, under common law or otherwise, whether or not the
Indebtedness has been fully paid, and all payments and recoveries under this
guaranty shall be considered equity investments by the Guarantor in the
Borrower, provided, nothing contained in this guaranty shall deprive the
Guarantor of any claim, right or remedy, after the Indebtedness has been fully
paid, against any person or entity other dm the Borrower. No delay or failure by
the Bank in exercising any right, and no partial or single exercise thereof
shall co a waiver thereof. No waiver of any rights hereunder, and no
modification or amendment of this guaranty shall be effective unless the same is
in writing duly executed by the Bank, and each such waiver, if any, shall apply
only with respect to the specific instance involved and shall not impair or
affect the rights of the Bank or the provisions of this guaranty in any other
respect at any other time. This guaranty shall continue until written notice of
revocation of this guaranty, executed by the Guarantor, has been received by the
Bank; provided, no revocation of this guaranty shall affect in any manner any
liability of the Guarantor under this guaranty with respect to Indebtedness
arising before the Bank receives such written notice of revocation, and the sole
effect of revocation of this guaranty shall be to exclude from this guaranty
Indebtedness thereafter arising which is unconnected with Indebtedness
theretofore arising or transactions theretofore entered into.
15
Any invalidity or unenforceability of any provision or application of
this guaranty shall not affect other lawful provisions and applications hereof
and to this end the provisions of this guaranty are declared to be severable.
This guaranty shall bind the Guarantor and the heirs, representatives,
successors and assigns of the Guarantor, and of each o them respective an s all
benefit the Bank, its successors and assigns. This guaranty shall be governed by
and construed in accordance with the internal laws of the State of Minnesota
(excluding conflict of law rules).
THE GUARANTOR REPRESENTS AND WARRANTS TO THE BANK AND AGREES THAT THE
GUARANTOR HAS READ ALL OF THIS GUARANTY AND UNDERSTANDS ALL OF THE PROVISIONS OF
TIES GUARANTY.
_______________________________
Xxxx X'Xxxx
00000 Xxxxx Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
16
