COMMERCIAL GUARANTY
EXHIBIT 10.19
| Call / Coll | Officer | |||||||||||||
| Principal | Loan Date | Maturity | Loan No | 4A / 100 | Account | TMF | Initials | |||||||
| References in the shaded area are for Lender’s use only and do not limit the applicability of this document to any particular loan or item. | ||||||||||||||
| Any item above containing “***” has been omitted due to text length limitations. | ||||||||||||||
Borrower:
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Wireless Ronin Technologies, Inc. 00000 Xxxxxx Xx. Xxxx Xxxxxxx, XX 00000 |
Lender: | Signature Bank 0000 Xxxx Xxxx Xxxx Xxx 000 Xxxxxxxxxx, XX 00000 |
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Guarantor:
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Xxxxxxx X. Xxxxxxx 00000 Xxxxxx Xxxxxx Xxxxxxxxx, XX 00000 |
CONTINUING GUARANTEE OF PAYMENT AND PERFORMANCE. For good and valuable consideration,
Guarantor absolutely and unconditionally guarantees full and punctual payment and satisfaction of
the Indebtedness of Borrower to Lender, and the performance and discharge of all Borrower’s
obligations under the Note and the Related Documents. This is a guaranty of payment and
performance and not of collection, so Lender can enforce this Guaranty against Guarantor even when
Xxxxxx has not exhausted Xxxxxx’s remedies against anyone else obligated to pay the Indebtedness or
against any collateral securing the Indebtedness, this Guaranty or any other guaranty of the
Indebtedness. Guarantor will make any payments to Lender or its order, on demand, in legal tender
of the United States of America, in same-day funds, without set-off or deduction or counterclaim,
and will otherwise perform Borrower’s obligations under the Note and Related Documents. Under this
Guaranty, Guarantor’s liability is unlimited and Guarantor’s obligations are continuing.
INDEBTEDNESS. The word “Indebtedness” as used in this Guaranty means all of the principal amount
outstanding from time to time and at any one or more times, accrued unpaid interest thereon and all
collection costs and legal expenses related thereto permitted by law, reasonable attorneys’ fees,
arising from any and all debts, liabilities and obligations of every nature or form, now existing
or hereafter arising or acquired, that Borrower individually or collectively or interchangeably
with others, owes or will owe Lender. “Indebtedness” includes, without limitation, loans,
advances, debts, overdraft indebtedness, credit card indebtedness, lease obligations, other
obligations, and liabilities of Borrower, and any present or future judgments against Borrower,
future advances, loans or transactions that renew, extend, modify, refinance, consolidate or
substitute these debts, liabilities and obligations whether: voluntarily or involuntarily incurred;
due or to become due by their terms or acceleration; absolute or contingent; liquidated or
unliquidated; determined or undetermined; direct or indirect; primary or secondary in nature or
arising from a guaranty or surety; secured or unsecured; joint or several or joint and several;
evidenced by a negotiable or non-negotiable instrument or writing; originated by Lender or another
or others; barred or unenforceable against Borrower for any reason whatsoever; for any transactions
that may be voidable for any reason (such as infancy, insanity, ultra xxxxx or otherwise); and
originated then reduced or extinguished and then afterwards increased or reinstated.
If Lender presently holds one or more guaranties, or hereafter receives additional guaranties from
Guarantor, Lender’s rights under all guaranties shall be cumulative. This Guaranty shall not
(unless specifically provided below to the contrary) affect or invalidate any such other
guaranties. Guarantor’s
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liability will be Guarantor’s aggregate liability under the terms of this Guaranty and any
such other unterminated guaranties.
CONTINUING GUARANTY. THIS IS A “CONTINUING GUARANTY” UNDER WHICH GUARANTOR AGREES TO GUARANTEE THE
FULL AND PUNCTUAL PAYMENT, PERFORMANCE AND SATISFACTION OF THE INDEBTEDNESS OF: BORROWER TO LENDER,
NOW EXISTING OR HEREAFTER ARISING OR ACQUIRED, ON AN OPEN AND CONTINUING BASIS. ACCORDINGLY, ANY
PAYMENTS MADE ON THE INDEBTEDNESS WILL NOT DISCHARGE OR DIMINISH GUARANTOR’S OBLIGATIONS AND
LIABILITY UNDER THIS GUARANTY FOR ANY REMAINING AND SUCCEEDING INDEBTEDNESS EVEN WHEN ALL OR PART
OF THE OUTSTANDING INDEBTEDNESS MAY BE A ZERO BALANCE FROM TIME TO TIME.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender without the necessity
of any acceptance by Xxxxxx, or any notice to Guarantor or to Borrower, and will continue in full
force until all the Indebtedness incurred or contracted before receipt by Lender of any notice of
revocation shall have been fully and finally paid and satisfied and all of Guarantor’s other
obligations under this Guaranty shall have been performed in full. If Guarantor elects to revoke
this Guaranty, Guarantor may only do so in writing. Guarantor’s written notice of revocation must
be mailed to Lender, by certified mail, at Xxxxxx’s address listed above or such other place as
Lender may designate in writing. Written revocation of this Guaranty will apply only to advances
or new Indebtedness created after actual receipt by Xxxxxx of Guarantor’s written revocation. For
this purpose and without limitation, the term “new Indebtedness” does not include the Indebtedness
which at the time of notice of revocation is contingent, unliquidated, undetermined or not due and
which later becomes absolute, liquidated, determined or due, This Guaranty will continue to bind
Guarantor for all the Indebtedness incurred by Borrower or committed by Lender prior to receipt of
Guarantor’s written notice of revocation, including any extensions, renewals, substitutions or
modifications of the Indebtedness. All renewals, extensions, substitutions, and modifications of
the Indebtedness granted after Guarantor’s revocation, are contemplated under this Guaranty and,
specifically will not be considered to be new Indebtedness. This Guaranty shall bind Guarantor’s
estate as to the Indebtedness created both before and after Guarantor’s death or incapacity,
regardless of Lender’s actual notice of Guarantor’s death. Subject to the foregoing, Guarantor’s
executor or administrator or other legal representative may terminate this Guaranty in the same
manner in which Guarantor might have terminated it and with the same effect. Release of any other
guarantor or termination of any other guaranty of the Indebtedness shall not affect the liability
of Guarantor under this Guaranty. A revocation Lender receives from any one or more Guarantors
shall not affect the liability of any remaining Guarantors under this Guaranty. It is anticipated
that fluctuations may occur in the aggregate amount of the Indebtedness covered by this Guaranty,
and Guarantor specifically acknowledges and agrees that reductions in the amount of the
Indebtedness, even to zero dollars ($0.00), prior to Guarantor’s written revocation of this
Guaranty shall not constitute a termination of this Guaranty. This Guaranty is binding upon
Guarantor and Guarantor’s heirs, successors and assigns so long as any of the Indebtedness remains
unpaid and even though the Indebtedness may from time to time be zero dollars ($0.00).
GUARANTOR’S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before or after any
revocation hereof, without notice or demand and without lessening Guarantor’s liability under this
Guaranty, from time to time: (A) prior to revocation as set forth above, to make one or more
additional secured or unsecured loans to Borrower, to lease equipment or other goods to Borrower,
or otherwise to extend additional credit to Borrower; (B) to alter, compromise, renew, extend,
accelerate, or otherwise change one or more times the time for payment or other terms of the
Indebtedness or any part of the Indebtedness, including increases and decreases of the rate of
interest on the Indebtedness; extensions may be repeated and may be for longer than the original
loan term; (C) to take and hold
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security for the payment of this Guaranty or the Indebtedness, and exchange, enforce, waive,
subordinate, fail or decide not to perfect, and release any such security, with or without the
substitution of new collateral; (D) to release, substitute, agree not to sue, or deal with any one
or more of Borrower’s sureties, endorsers, or other guarantors on any terms or in any manner Lender
may choose; (E) to determine how, when and what application of payments and credits shall be made
on the Indebtedness; (F) to apply such security and direct the order or manner of sale thereof,
including without limitation, any nonjudicial sale permitted by the terms of the controlling
security agreement or deed of trust, as Lender in its discretion may determine; (G) to sell,
transfer, assign or grant participations in all or any part of the Indebtedness; and (H) to assign
or transfer this Guaranty in whole or in part.
GUARANTOR’S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to Lender that (A)
no representations or agreements of any kind have been made to Guarantor which would limit or
qualify in any way the terms of this Guaranty; (B) this Guaranty is executed at Borrower’s request
and not at the request of Lender; (C) Guarantor has full power, right and authority to enter into
this Guaranty; (D) the provisions of this Guaranty do not conflict with or result in a default
under any agreement or other instrument binding upon Guarantor and do not result in a violation of
any law, regulation, court decree or order applicable to Guarantor; (E) Guarantor has not and will
not, without the prior written consent of Lender, sell, lease, assign, encumber, hypothecate,
transfer, or otherwise dispose of all or substantially all of Guarantor’s assets, or any interest
therein; (F) upon Lender’s request, Guarantor will provide to Lender financial and credit
information in form acceptable to Lender, and all such financial information which currently has
been, and all future financial information which will be provided to Lender is and will be true and
correct in all material respects and fairly present Guarantor’s financial condition as of the dates
the financial information is provided; (G) no material adverse change has occurred in Guarantor’s
financial condition since the date of the most recent financial statements provided to Lender and
no event has occurred which may materially adversely affect Guarantor’s financial condition; (H) no
litigation, claim, investigation, administrative proceeding or similar action (including those for
unpaid taxes) against Guarantor is pending or threatened; (I) Lender has made no representation to
Guarantor as to the creditworthiness of Borrower; and (J) Guarantor has established adequate means
of obtaining from Borrower on a continuing basis information regarding Borrower’s financial
condition. Guarantor agrees to keep adequately informed from such means of any facts, events, or
circumstances which might in any way affect Guarantor’s risks under this Guaranty, and Guarantor
further agrees that, absent a request for information, Xxxxxx shall have no obligation to disclose
to Guarantor any information or documents acquired by Lender in the course of its relationship with
Borrower.
GUARANTOR’S FINANCIAL STATEMENTS. Xxxxxxxxx agrees to furnish Lender with the following:
Annual Statements. As soon as available, but in no event later than ninety (90) days after
the end of each fiscal year, Guarantor’s balance sheet and income statement for the year
ended, prepared by Guarantor.
Tax Returns. As soon as available, but in no event later than thirty (30) days after the
applicable filing date for the tax reporting period ended, Federal and other governmental
tax returns, prepared by Guarantor.
All financial reports required to be provided under this Guaranty shall be prepared in accordance
with GAAP, applied on a consistent basis, and certified by Guarantor as being true and correct.
GUARANTOR’S WAIVERS. Except as prohibited by applicable law, Guarantor waives any right to require
Lender (A) to continue lending money or to extend other credit to Borrower; (B) to make any
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presentment, protest, demand, or notice of any kind, including notice of any nonpayment of the
Indebtedness or of any nonpayment related to any collateral, or notice of any action or nonaction
on the part of Borrower, Lender, any surety, endorser, or other guarantor in connection with the
Indebtedness or in connection with the creation of new or additional loans or obligations; (C) to
resort for payment or to proceed directly or at once against any person, including Borrower or any
other guarantor; (D) to proceed directly against or exhaust any collateral held by Lender from
Borrower, any other guarantor, or any other person; (E) to give notice of the terms, time, and
place of any public or private sale of personal property security held by Xxxxxx from Borrower or
to comply with any other applicable provisions of the Uniform Commercial Code; (F) to pursue any
other remedy within Lender’s power; or (G) to commit any act or omission of any kind, or at any
time, with respect to any matter whatsoever.
Guarantor also waives any and all rights or defenses based on suretyship or impairment of
collateral including, but not limited to, any rights or defenses arising by reason of (A) any “one
action” or “anti-deficiency” law or any other law which may prevent Lender from bringing any
action, including a claim for deficiency, against Guarantor, before or after Lender’s commencement
or completion of any foreclosure action, either judicially or by exercise of a power of sale; (B)
any election of remedies by Xxxxxx which destroys or otherwise adversely affects Guarantor’s
subrogation rights or Guarantor’s rights to proceed against Borrower for reimbursement, including
without limitation, any loss of rights Guarantor may suffer by reason of any law limiting,
qualifying, or discharging the Indebtedness; (C) any disability or other defense of Borrower, of
any other guarantor, or of any other person, or by reason of the cessation of Borrower’s liability
from any cause whatsoever, other than payment in full in legal tender, of the Indebtedness; (D) any
right to claim discharge of the Indebtedness on the basis of unjustified impairment of any
collateral for the Indebtedness; (E) any statute of limitations, if at any time any action or suit
brought by Lender against Guarantor is commenced, there is outstanding Indebtedness which is not
barred by any applicable statute of limitations; or (F) any defenses given to guarantors at law or
in equity other than actual payment and performance of the Indebtedness. If payment is made by
Xxxxxxxx, whether voluntarily or otherwise, or by any third party, on the Indebtedness and
thereafter Xxxxxx is forced to remit the amount of that payment to Xxxxxxxx’s trustee in bankruptcy
or to any similar person under any federal or state bankruptcy law or law for the relief of
debtors, the Indebtedness shall be considered unpaid for the purpose of the enforcement of this
Guaranty.
Guarantor further waives and agrees not to assert or claim at any time any deductions to the amount
guaranteed under this Guaranty for any claim of setoff, counterclaim, counter demand, recoupment or
similar right, whether such claim, demand or right may be asserted by the Borrower, the Guarantor,
or both.
GUARANTOR’S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees that each of the
waivers set forth above is made with Guarantor’s full knowledge of its significance and
consequences and that, under the circumstances, the waivers are reasonable and not contrary to
public policy or law. If any such waiver is determined to be contrary to any applicable law or
public policy, such waiver shall be effective only to the extent permitted by law or public policy.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a right of setoff in
all Guarantor’s accounts with Lender (whether checking, savings, or some other account). This
includes all accounts Guarantor holds jointly with someone else and all accounts Guarantor may open
in the future. However, this does not include any IRA or Xxxxx accounts, or any trust accounts for
which setoff would be prohibited by law. Guarantor authorizes Xxxxxx, to the extent permitted by
applicable law, to hold these funds if there is a default, and Lender may apply the funds in these
accounts to pay what Guarantor owes under the terms of this Guaranty.
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SUBORDINATION OF XXXXXXXX’S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness,
whether now existing or hereafter created, shall be superior to any claim that Guarantor may now
have or hereafter acquire against Borrower, whether or not Borrower becomes insolvent. Guarantor
hereby expressly subordinates any claim Guarantor may have against Borrower, upon any account
whatsoever, to any claim that Lender may now or hereafter have against Borrower. In the event of
insolvency and consequent liquidation of the assets of Borrower, through bankruptcy, by an
assignment for the benefit of creditors, by voluntary liquidation, or otherwise, the assets of
Borrower applicable to the payment of the claims of both Xxxxxx and Guarantor shall be paid to
Lender and shall be first applied by Lender to the Indebtedness. Guarantor does hereby assign to
Lender all claims which it may have or acquire against Borrower or against any assignee or trustee
in bankruptcy of Borrower; provided however, that such assignment shall be effective only for the
purpose of assuring to Lender full payment in legal tender of the Indebtedness. If Lender so
requests, any notes or credit agreements now or hereafter evidencing any debts or obligations of
Borrower to Guarantor shall be marked with a legend that the same are subject to this Guaranty and
shall be delivered to Lender. Xxxxxxxxx agrees, and Xxxxxx is hereby authorized, in the name of
Guarantor, from time to time to file financing statements and continuation statements and to
execute documents and to take such other actions as Lender deems necessary or appropriate to
perfect, preserve and enforce its rights under this Guaranty.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of this Guaranty:
Amendments. This Guaranty, together with any Related Documents, constitutes the entire
understanding and agreement of the parties as to the matters set forth in this Guaranty. No
alteration of or amendment to this Guaranty shall be effective unless given in writing and
signed by the party or parties sought to be charged or bound by the alteration or amendment.
Attorneys’ Fees; Expenses. Guarantor agrees to pay upon demand all of Xxxxxx’s costs and
expenses, including Xxxxxx’s reasonable attorneys’ fees and Xxxxxx’s legal expenses,
incurred in connection with the enforcement of this Guaranty. Lender may hire or pay
someone else to help enforce this Guaranty, and Guarantor shall pay the costs and expenses
of such enforcement. Costs and expenses include Xxxxxx’s reasonable attorneys’ fees and
legal expenses whether or not there is a lawsuit, including reasonable attorneys’ fees and
legal expenses for bankruptcy proceedings (including efforts to modify or vacate any
automatic stay or injunction), appeals, and any anticipated post-judgment collection
services. Guarantor also shall pay all court costs and such additional fees as may be
directed by the court.
Caption Headings. Caption headings in this Guaranty are for convenience purposes only and
are not to be used to interpret or define the provisions of this Guaranty.
Governing Law. This Guaranty will be governed by federal law applicable to Lender and, to
the extent not preempted by federal law, the laws of the State of Minnesota without regard
to its conflicts of law provisions. This Guaranty has been accepted by Xxxxxx in the State
of Minnesota.
Choice of Venue. If there is a lawsuit, Xxxxxxxxx agrees upon Xxxxxx’s request to submit to
the jurisdiction of the courts of Hennepin County, State of Minnesota.
Integration. Xxxxxxxxx further agrees that Guarantor has read and fully understands the
terms of this Guaranty; Guarantor has had the opportunity to be advised by Guarantor’s
attorney with respect to this Guaranty; the Guaranty fully reflects Guarantor’s intentions
and parol evidence is not required to interpret the terms of this Guaranty. Guarantor
hereby indemnifies and holds
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Lender harmless from all losses, claims, damages, and costs (including Xxxxxx’s
attorneys’ fees) suffered or incurred by Xxxxxx as a result of any breach by Guarantor of
the warranties, representations and agreements of this paragraph.
Interpretation. In all cases where there is more than one Borrower or Guarantor, then all
words used in this Guaranty in the singular shall be deemed to have been used in the plural
where the context and construction so require; and where there is more than one Borrower
named in this Guaranty or when this Guaranty is executed by more than one Guarantor, the
words “Borrower” and “Guarantor” respectively shall mean all and any one or more of them.
The words “Guarantor,” “Xxxxxxxx,” and “Lender” include the heirs, successors, assigns, and
transferees of each of them. If a court finds that any provision of this Guaranty is not
valid or should not be enforced, that fact by itself will not mean that the rest of this
Guaranty will not be valid or enforced. Therefore, a court will enforce the rest of the
provisions of this Guaranty even if a provision of this Guaranty may be found to be invalid
or unenforceable. If any one or more of Borrower or Guarantor are corporations,
partnerships, limited liability companies, or similar entities, it is not necessary for
Lender to inquire into the powers of Borrower or Guarantor or of the officers, directors,
partners, managers, or other agents acting or purporting to act on their behalf, and any
Indebtedness made or created in reliance upon the professed exercise of such powers shall be
guaranteed under this Guaranty.
Notices. Any notice required to be given under this Guaranty shall be given in writing,
and, except for revocation notices by Guarantor, shall be effective when actually delivered,
when actually received by telefacsimile (unless otherwise required by law), when deposited with a
nationally recognized overnight courier, or, if mailed, when deposited in the United States
mail, as first class, certified or registered mail postage prepaid, directed to the
addresses shown near the beginning of this Guaranty. All revocation notices by Guarantor
shall be in writing and shall be effective upon delivery to Lender as provided in the
section of this Guaranty entitled “DURATION OF GUARANTY.” Any party may change its address
for notices under this Guaranty by giving formal written notice to the other parties,
specifying that the purpose of the notice is to change the party’s address. For notice
purposes, Xxxxxxxxx agrees to keep Xxxxxx informed at all times of Guarantor’s current
address. Unless otherwise provided or required by law, if there is more than one Guarantor,
any notice given by Lender to any Guarantor is deemed to be notice given to all Guarantors.
No Waiver by Xxxxxx. Lender shall not be deemed to have waived any rights under this
Guaranty unless such waiver is given in writing and signed by Xxxxxx. No delay or omission
on the part of Lender in exercising any right shall operate as a waiver of such right or any
other right. A waiver by Xxxxxx of a provision of this Guaranty shall not prejudice or
constitute a waiver of Lender’s right otherwise to demand strict compliance with that
provision or any other provision of this Guaranty. No prior waiver by Xxxxxx, nor any
course of dealing between Xxxxxx and Guarantor, shall constitute a waiver of any of Lender’s
rights or of any of Guarantor’s obligations as to any future transactions. Whenever the
consent of Lender is required under this Guaranty, the granting of such consent by Lender in
any instance shall not constitute continuing consent to subsequent instances where such
consent is required and in all cases such consent may be granted or withheld in the sole
discretion of Lender.
Successors and Assigns. Subject to any limitations stated in this Guaranty on transfer of
Guarantor’s interest, this Guaranty shall be binding upon and inure to the benefit of the
parties, their successors and assigns.
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Waive Jury. Xxxxxx and Guarantor hereby waive the right to any jury trial in any
action, proceeding, or counterclaim brought by either Xxxxxx or Borrower against the other.
DEFINITIONS. The following capitalized words and terms shall have the following meanings when used
in this Guaranty. Unless specifically stated to the contrary, all references to dollar amounts
shall mean amounts in lawful money of the United States of America. Words and terms used in the
singular shall include the plural, and the plural shall include the singular, as the context may
require. Words and terms not otherwise defined in this Guaranty shall have the meanings attributed
to such terms in the Uniform Commercial Code:
Borrower. The word “Borrower” means Wireless Ronin Technologies, Inc. and includes all
co-signers and co-makers signing the Note and all their successors and assigns.
GAAP. The word “GAAP” means generally accepted accounting principles.
Guarantor. The word “Guarantor” means everyone signing this Guaranty, including without
limitation Xxxxxxx X. Xxxxxxx, and in each case, any signer’s successors and assigns.
Guaranty. The word “Guaranty” means this guaranty from Guarantor to Lender.
Indebtedness. The word “Indebtedness” means Xxxxxxxx’s Indebtedness to Lender as more
particularly described in this Guaranty.
Lender. The word “Lender” means Signature Bank, its successors and assigns.
Note. The word “Note” means and includes without limitation all of Borrower’s promissory
notes and/or credit agreements evidencing Borrower’s loan obligations in favor of Lender,
together with all renewals of, extensions of, modifications of, refinancings of,
consolidations of and substitutions for promissory notes or credit agreements.
Related Documents. The words “Related Documents” mean all promissory notes, credit
agreements, loan agreements, environmental agreements, guaranties, security agreements,
mortgages, deeds of trust, security deeds, collateral mortgages, and all other instruments,
agreements and documents, whether now or hereafter existing, executed in connection with the
Indebtedness.
EACH UNDERSIGNED GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS GUARANTY AND AGREES
TO ITS TERMS. IN ADDITION, EACH GUARANTOR UNDERSTANDS THAT THIS GUARANTY IS EFFECTIVE UPON
GUARANTOR’S EXECUTION AND DELIVERY OF THIS GUARANTY TO LENDER AND THAT THE GUARANTY WILL CONTINUE
UNTIL TERMINATED IN THE MANNER SET FORTH IN THE SECTION TITLED “DURATION OF GUARANTY”. NO FORMAL
ACCEPTANCE BY XXXXXX IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY IS DATED DECEMBER
30, 2005.
GUARANTOR:
X
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
