EXHIBIT 10.28
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LIMITED GUARANTY AGREEMENT
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THIS LIMITED GUARANTY AGREEMENT (this "Guaranty") by XXXXXXX X. XXXXXXX, a
resident of Racine, Wisconsin ("Guarantor"), is in favor of FIRST INTERSTATE
BANK OF TEXAS, N.A., a national banking association (such bank, together with
its successors and assigns herein called "Bank").
W I T N E S S E T H:
WHEREAS, Bank has extended and will extend credit and financial
accommodations to IMSL, INC., a Texas corporation ("Borrower"), whose address is
00000 Xxxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxx Xxxx, Xxxxx;
NOW, THEREFORE, (i) to induce Bank, at any time from time to time, to loan
monies, with or without security to or for the account of Borrower, (ii) at the
special insistence and request of Bank, and (iii) for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Guarantor hereby agrees as follows:
1. Guarantor hereby absolutely and unconditionally guarantees the prompt
and punctual payment and performance when due (whether at its maturity, by lapse
of time, by acceleration or otherwise) of the Guaranteed Obligations
(hereinafter defined).
Specific Guaranty. This is a specific guaranty applicable to and
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guaranteeing prompt payment when due of any and all amounts of principal,
interest, attorneys' fees, costs of collection and other amounts owing or which
hereafter become owing on or in connection with indebtedness, obligations or
liabilities of Borrower Bank owing under that certain Term Note B dated December
16, 1992, executed by Borrower payable to the order of the Bank in the original
principal amount of $1,300,000, in installments as therein provided, together
with all renewals, extensions and rearrangements thereof, even though
represented by new instruments (hereinafter called the "Guaranteed
Obligations").
Limitation. Notwithstanding any other provision of this Guaranty,
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Guarantor's liability respecting the Guaranteed Obligations shall in no event
exceed an aggregate principal amount at any time of One Million and No/100
Dollars ($1,000,000.00), together with and plus any and all interest, reasonable
attorneys' fees, and costs of collection owing and which may hereafter become
owing on or in connection with the Guaranteed Obligations.
2. Guarantor hereby waives marshalling of assets and liabilities, sale
in inverse order of alienation, notice of acceptance of
this Guaranty and of any indebtedness, obligation or liability to which it
applies or may apply, and waives presentment and demand for payment thereof,
notice of dishonor or nonpayment thereof, notice of intention to accelerate,
notice of acceleration, protest, and notice thereof and all other notices and
demands, collection or instigation of suit or any other action by Bank in
collection thereof, including any notice of default in payment thereof or other
notice to, or demand of payment therefor on, any party. Further, to the extent
permitted by applicable law, Guarantor expressly waives each and every right to
which he may be entitled by virtue of the suretyship law of the State of Texas
including without limitation, any rights he may have pursuant to Rule 31, Texas
Rules of Civil Procedure, Section 17.001, Civil Practice and Remedies Code, and
Chapter 34 of the Texas Business and Commerce Code.
3. Guarantor agrees to pay to Bank its collection costs, including any
additional amount for reasonable attorneys' fees, but in no event to exceed the
maximum amount permitted by law, if the Guaranteed Obligations are not paid by
Guarantor upon demand when due as required herein or if this Guaranty is
enforced by suit or through probate or bankruptcy court or through any judicial
proceedings whatsoever, and should it be necessary to reduce Bank's claim to
judgment, such judgment shall bear interest at the rate of 10% per annum.
4. This limited guaranty is an absolute and unconditional guaranty of
payment and not of collection, by Guarantor, jointly and severally with any
guarantor of the Guaranteed Obligations in each and every particular, and
Guarantor waives any right to require that (a) any action be brought against
Borrower or any other person or entity, (b) Bank enforce its rights against any
other guarantor of the Guaranteed Obligations, (c) Bank proceed or enforce its
rights against or exhaust any security given to secure the Guaranteed
Obligations, (d) Bank have Borrower joined with Guarantor or any other guarantor
of all or part of the Guaranteed Obligations in any suit arising out of this
Guaranty and/or the Guaranteed Obligations, or (e) Bank pursue any other remedy
in Bank's powers whatsoever. Bank shall not be required to mitigate damages or
take any action to reduce, collect or enforce the Guaranteed Obligations. To the
extent permitted by applicable law, Guarantors any defense arising by reason of
any disability, lack of corporate authority or power, or other defense of
Borrower or any other guarantor of the Guaranteed Obligations, and shall remain
liable hereon regardless of whether Borrower or any other guarantor be found not
liable thereon for any reason. Should Bank seek to enforce the obligations of
Guarantor by action in any
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court, Guarantor waives any necessity, substantive or procedural, that a
judgment previously be rendered against Borrower or any other person or entity
or that Borrower or any other person or entity be joined in such cause or that a
separate action be brought against Borrower or any other person or entity. The
obligations of Guarantor hereunder are several from those of Borrower or any
other person or entity (including without limitation any other surety for
Borrower), and are primary obligations concerning which Guarantor is the
principal obligor. All waivers herein contained shall be without prejudice to
Bank at its option to proceed against Borrower or any other person or entity,
whether by separate action or by joinder. Notwithstanding anything herein to
the contrary, the Guarantor expressly waives and releases and shall not be
entitled to any "claim" (as such term is defined in the Bankruptcy Reform Act of
1978, as amended) that Guarantor may have against the Borrower, whether now in
existence or hereafter arising, including, without limitation, any right of
reimbursement from the Borrower or any right of subrogation to the Bank's rights
against the Borrower (including contractual, statutory and equitable rights of
reimbursement, subrogation, contribution and indemnity). Notwithstanding any
payment or payments made by Guarantor hereunder or any setoff or application of
funds of Guarantor by Bank, Guarantor shall not be entitled to be subrogated to
any of the rights of Bank against Borrower or any collateral security or rights
of offset held by Bank until the payment of the Guaranteed Obligations.
5. Guarantor agrees that suit may be brought against Guarantor and any
other guarantors of the Guaranteed Obligations, jointly and severally, and
against one or more of them, less than all, without impairing the rights of
Bank, its successors or assigns, against the other guarantors; nor shall Bank be
required to join Borrower or any other guarantor or liable party in a suit
against a particular guarantor; and Bank may release Borrower and/or one or more
guarantor(s) or settle with such persons or entities as Bank deems fit without
releasing or impairing the rights of Bank to demand and collect the balance of
such indebtedness from the other remaining guarantors not so released.
6. Guarantor hereby consents and agrees to each of the following to the
fullest extent permitted by law, and agrees that the Guarantor's obligations
under this Guaranty shall not be released, diminished, impaired, reduced or
adversely affected by any of the following, and waives any rights (including
without limitation rights to notice) which Guarantor might otherwise have as a
result of or in connection with any of the following:
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(a) Any renewal, extension, modification, decrease, alteration or
rearrangement of all or any part of the Guaranteed Obligations or any instrument
executed in connection therewith, or any contract or understanding between
Borrower and Bank, or any other person or entity, pertaining to the Guaranteed
Obligations provided such contract or understanding does not increase the amount
of the Guaranteed Obligations;
(b) Any adjustment, indulgence, forbearance or compromise that might
be granted or given by Bank to Borrower or Guarantor or any person or entity
liable on the Guaranteed Obligations;
(c) The insolvency, bankruptcy arrangement, adjustment, composition,
liquidation, disability, dissolution, death or lack of power of Borrower or
Guarantor or any other person or entity at any time liable for the payment of
all or part of the Guaranteed Obligations; or any dissolution of Borrower, or
any sale, lease or transfer of any or all of the assets of Borrower or
Guarantor, or any changes in the shareholders, partners, or members of Borrower;
or any reorganization of Borrower;
(d) The invalidity, illegality or unenforceability of all or any part
of the Guaranteed Obligations, or any document or agreement executed in
connection with the Guaranteed Obligations, for any reason whatsoever, including
without limitation the fact that the Guaranteed Obligations, or any part
thereof, exceed the amount permitted by law, the act of creating the Guaranteed
Obligations or any part thereof is ultra xxxxx, the officers or representatives
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executing the documents or otherwise creating the Guaranteed Obligations acted
in excess of their authority, the Guaranteed Obligations violate applicable
usury laws, Borrower has valid defenses, claims or offsets (whether at law, in
equity or by agreement) which render the Guaranteed Obligations wholly or
partially uncollectible from Borrower, the creation, performance or repayment of
the Guaranteed Obligations (or the execution, delivery and performance of any
document or instrument representing part of the Guaranteed Obligations or
executed in connection with the Guaranteed Obligations, or given to secure the
repayment of the Guaranteed Obligations) is illegal, uncollectible, legally
impossible or unenforceable, or the documents or instruments pertaining to the
Guaranteed Obligations have been forged or otherwise are irregular or not
genuine or authentic;
(e) Any full or partial release of the liability of Borrower on the
Guaranteed Obligations or any part thereof, of any co-guarantors, or any other
person or entity now or hereafter
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liable, whether directly or indirectly, jointly, severally, or jointly and
severally, to pay, perform, guarantee or assure the payment of the Guaranteed
Obligations or any part thereof, it being recognized, acknowledged and agreed by
Guarantor that Guarantor may be required to pay the Guaranteed Obligations in
full without assistance or support of any other person or entity, and Guarantor
has not been induced to enter into this Guaranty on the basis of a
contemplation, belief, understanding or agreement that other parties other than
Borrower will be liable to perform the Guaranteed Obligations, or Bank will look
to other parties to perform the Guaranteed Obligations;
(f) The taking or accepting of any other security, collateral or
guaranty, or other assurance of payment, for all or any part of the Guaranteed
Obligations;
(g) Any release, surrender, exchange, subordination, deterioration,
waste, loss or impairment (including without limitation negligent, willful,
unreasonable or unjustifiable impairment) of any collateral, property or
security, at any time existing in connection with, or assuring or securing
payment of, all or any part of the Guaranteed Obligations;
(h) The failure of Bank or any other person or entity to exercise
diligence or reasonable care in the preservation, protection, enforcement, sale
or other handling or treatment of all or any part of such collateral, property
or security;
(i) The fact that any collateral, security, security interest or lien
contemplated or intended to be given, created or granted as security for the
repayment of the Guaranteed Obligations shall not be properly perfected or
created, or shall prove to be unenforceable or subordinate to any other security
interest or lien other than a Permitted Lien (as such term is defined in that
certain Second Restated and Amended Loan Agreement dated as of December , 1992
among the Borrower, IMSL Acquisition Corp., Inc. and the Bank), it being
recognized and agreed by Guarantor that Guarantor is not entering into this
Guaranty in reliance on, or in contemplation of the benefits of, the validity,
enforceability, collectibility or value of any of the collateral for the
Guaranteed Obligations;
(j) Any payment by Borrower to Bank is held to constitute a preference
under the bankruptcy laws, or for any reason Bank is required to refund such
payment or pay such amount to Borrower or someone else;
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(k) Any other action taken or omitted to be taken with respect to the
Guaranteed Obligations, or the security and collateral therefor, whether or not
such action or omission prejudices Guarantor or increases the likelihood that
Guarantor will be required to pay the Guaranteed Obligations pursuant to the
terms hereof; it being the unambiguous and unequivocal intention of Guarantor
that Guarantor shall be obligated to pay the Guaranteed Obligations when due,
notwithstanding any occurrence, circumstance, event, action, or omission
whatsoever, whether contemplated or uncontemplated, and whether or not otherwise
or particularly described herein, except for the full and final payment and
satisfaction of the Guaranteed Obligations; or
(1) The fact that all or any of the Guaranteed Obligations cease to
exist by operation of law, including without limitation by way of a discharge,
limitation or tolling thereof under applicable bankruptcy laws.
7. In the event any payment by Borrower or any other guarantor of all or
part of the Guaranteed Obligations to Bank is held to be a preference under the
bankruptcy laws, or if for any other reason Bank is required to refund such
payment or pay the amount thereof to any other party, such payment by Borrower
or by such guarantor to Bank shall not constitute a release of Guarantor from
any liability respecting payment of the Guaranteed Obligations, and Guarantor
agrees to pay such amount to Bank upon demand.
8. It is the intention of the parties hereto to comply with applicable
usury laws; accordingly, it is agreed that notwithstanding any provision to the
contrary in the Guaranteed Obligations or in this Guaranty, in any note or other
instrument, or in any documents securing payment thereof or hereof, or otherwise
relating thereto or hereto, no such provision shall require the payment or
permit the collection of interest in excess of the maximum permitted by such
laws. If any excess of interest in such respect is provided for, or shall be
adjudged to be so provided for, then in such event (a) the provisions of this
paragraph shall govern and control, (b) neither Guarantor nor Guarantor's heirs,
successors, or assigns or any other party liable for the payment hereof shall be
obligated to pay the amount of such interest to the extent that it is in excess
of the maximum amount permitted by such laws, (c) any such excess which may have
been collected shall be, at Bank's option, either applied as a credit against
the then unpaid principal amount owing on the Guaranteed Obligations, or
refunded, and (d) the effective rate of interest covered by this Guaranty shall
be automatically subject to
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reduction to the maximum lawful rate allowed under applicable usury laws.
9. This Guaranty is for the benefit of Bank, and for such other persons
and entities as may from time to time become or be the holders of any Guaranteed
Obligations; and this Guaranty shall be transferable and negotiable, with the
same force and effect and to the same extent as the Guaranteed Obligations may
be transferable, it being understood that upon the assignment or transfer by
Bank of any Guaranteed Obligations, the legal holder of such Guaranteed
Obligations shall have all of the rights granted to Bank under this Guaranty.
10. Payment of all amounts hereunder shall be made at the offices of Bank.
11. Any notice, request or other communication required or permitted to be
given hereunder shall be given in writing by delivering the same against receipt
therefor or shall be deemed given three (3) days following deposit of same in
the United States Postal Service, postage prepaid, registered or certified mail,
return receipt requested, addressed to the respective parties at the address
shown below or to such other address as the intended recipient may have
specified in a prior written notice received by the sender.
12. This Guaranty shall continue in full force and effect as against
Guarantor for the full amount of the Guaranteed Obligations until payment in
full thereof.
13. This Guaranty shall be binding upon Guarantor, his heirs, devisees,
executors, administrators, personal representatives, successors and assigns and
shall inure to the benefit of, and be enforceable by, Bank and its successors
and assigns and each and every other person who shall from time to time be or
become the owner or holder of any of the Guaranteed Obligations, and each and
every reference herein to "Bank" shall also include each and every successor,
assign, owner or holder. Guarantor shall not assign or delegate his obligations
hereunder without the prior written consent of Bank.
14. In the event of the death of Guarantor, the obligations of the
deceased Guarantor shall continue in full force and effect as to all Guaranteed
Obligations.
15. The release by Bank of Borrower or one or more other guarantors of all
or part of the Guaranteed Obligations shall not
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affect the Guarantor, who shall remain fully liable in accordance with the terms
of this Guaranty.
16. This Guaranty, whether continuing, specific, and/or limited, shall be
in addition to and cumulative of, and not in substitution, novation or discharge
of, any and all prior or contemporaneous guaranty agreements by other persons or
entities, in favor of Bank.
17. Guarantor represents and warrants that (i) this Guaranty is not given
with actual intent to hinder, delay or defraud any entity to which Guarantor is
or will become, on or after the date hereof, indebted; (ii) Guarantor has
received at least a reasonably equivalent value in exchange for the giving of
this Guaranty; (iii) Guarantor is not insolvent on the date hereof and will not
become insolvent as a result of the giving of this Guaranty; (iv) Guarantor is
not engaged in a business or transaction, nor is about to engage in a business
or transaction, for which any property remaining with Guarantor constitutes an
unreasonably small amount of capital; or (v) Guarantor does not intend to incur
debts that will be beyond the Guarantor's ability to pay as such debts mature.
18. Guarantor shall furnish to Bank all such financial statements and
other information relating to the financial condition, properties and affairs of
Guarantor as Bank may from time to time request.
19. Guarantor will not change his address, name or identity without
notifying Bank of such change in writing at least thirty (30) days prior to the
effective date of such change.
20. No delay on the part of Bank his exercising any right hereunder or
failure to exercise the same shall operate as a waiver of such right, nor shall
any single or partial exercise of any right, power or privilege bar any further
or subsequent exercise of the same or any other right, power or privilege.
21. This Guaranty shall not be changed orally, but shall be changed only
by agreement in writing signed by the person against whom enforcement of such
change is sought.
22. The masculine and neuter genders used herein shall each include the
masculine, feminine and neuter genders and the singular number used herein shall
include the plural number. The words "person" and "entity" shall include without
limitation individuals, corporations, partnerships, joint ventures,
associations, joint
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stock companies, trusts, unincorporated organizations, and governments and any
agency or political subdivision thereof.
23. If any provision of this Guaranty is determined to be invalid by any
court of competent jurisdiction or to be in violation of any applicable law,
such invalidity or violation shall have no effect on any other provisions of
this Guaranty (which shall remain valid and binding and in full force and
effect) or in any other jurisdiction, and to that end the provisions of this
Guaranty shall be considered severable.
24. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY, CONSTRUED AND
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INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCEPT TO THE
EXTENT THAT THE FEDERAL LAWS OF THE UNITED STATES OF AMERICA MAY APPLY.
25. SUBMISSION TO JURISDICTION. WITH RESPECT TO ANY AND ALL DISPUTES
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ARISING HEREUNDER, OR UNDER ANY OF THE OTHER INSTRUMENTS AND DOCUMENTS EXECUTED
IN CONNECTION HEREWITH OR THEREWITH NOT SETTLED, OR SUBJECT TO ARBITRATION,
PURSUANT TO THE ARBITRATION PROGRAM REFERENCED IN PARAGRAPH 26 HEREOF, THE
GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY:
(A) SUBMITS FOR HIMSELF AND HIS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING
RELATING TO THIS GUARANTY AND ANY DOCUMENT TO WHICH HE IS A PARTY, OR FOR
RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT IN RESPECT OF ANY THEREOF, TO THE
NON-EXCLUSIVE GENERAL JURISDICTION OF THE COURTS OF THE STATE OF TEXAS, THE
COURTS OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF TEXAS, AND
APPELLATE COURTS FROM ANY THEREOF;
(B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH
COURTS, AND WAIVES ANY OBJECTION THAT HE MAY NOW OR HEREAFTER HAVE TO THE VENUE
OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR
PROCEEDING WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM
THE SAME;
(C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY
BE EFFECTED BY MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY
SUBSTANTIALLY SIMILAR FORM AND MAIL), POSTAGE PREPAID, TO HIM AT HIS ADDRESS
SPECIFIED BESIDE HIS SIGNATURE HERETO;
(D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO XXX IN
ANY OTHER JURISDICTION.
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26. Arbitration Proqram. The parties agree to be bound by the terms and
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provisions of the current Arbitration Program of the Bank which is incorporated
by reference herein and is acknowledged as received by the parties pursuant to
which any and all disputes arising hereunder, or under any of the documents and
instruments contemplated thereby, or pertaining hereto or thereto, shall be
resolved by mandatory binding arbitration upon the request of any party.
27. NO ORAL AGREEMENTS. THIS WRITTEN AGREEMENT, AND THE SECURITY
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AGREEMENT-PLEDGE EXECUTED BY THE GUARANTOR, REPRESENTS THE FINAL AGREEMENT
BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
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THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. EXECUTED THIS
16 day of December, 1992.
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/s/ Xxxxxxx X. Xxxxxxx 0000 Xxxxxxxxxx Xxxxx
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XXXXXXX X. XXXXXXX, Guarantor
###-##-#### Racine, Racine County,
Tax I.D. No. Wisconsin 53402
City, County, State, Zip Code
J 525-1592-9413-08 WISCONSIN DRIVER'S LIC. NO/STATE
THE STATE OF WISCONSIN (S)
COUNTY OF RACINE (S)
The foregoing was acknowledged before me on the F day of December, 1992, by
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Xxxxxxx X. Xxxxxxx.
Notary Public in and for The State of Wisconsin
[SEAL]
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ADDENDUM TO LIMITED GUARANTY AGREEMENT
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NAME OF GUARANTOR: XXXXXXX X. XXXXXXX
NAME OF BORROWER: IMSL, INC.
NAME OF BANK: FIRST INTERSTATE BANK OF TEXAS, N.A.
NOTICE TO GUARANTOR
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YOU ARE BEING ASKED TO GUARANTEE THIS DEBT. THINK CAREFULLY BEFORE YOU DO.
SEE THE BEGINNING OF THIS AGREEMENT TO DETERMINE THE TYPE OF GUARANTY INDICATED
(e. g., SPECIFIC, LIMITED OR CONTINUING). IF THIS IS A SPECIFIC OR LIMITED
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GUARANTY, YOU ARE BEING ASKED TO GUARANTEE ONLY THIS DEBT. IF THIS IS A
CONTINUING GUARANTY, YOU ARE BEING ASKED TO GUARANTEE ALL DEBT (WHETHER NOW OR
IN THE FUTURE) OF THE BORROWER ENTERED INTO WITH THIS BANK.
IF THE BORROWER DOESN'T PAY THE DEBT, YOU WILL HAVE TO. BE SURE YOU CAN
AFFORD TO PAY IF YOU HAVE TO, AND THAT YOU WANT TO ACCEPT THIS RESPONSIBILITY.
YOU MAY HAVE TO PAY UP TO $1,000,000 PLUS INTEREST, OF THE DEBT IF THE
BORROWER DOES NOT PAY. YOU MAY ALSO HAVE TO PAY ATTORNEY'S FEES, LATE FEES OR
COLLECTION COSTS, WHICH INCREASE THIS AMOUNT.
THE BANK CAN COLLECT THIS DEBT FROM YOU WITHOUT FIRST TRYING TO COLLECT
FROM THE BORROWER. THE BANK CAN USE THE SAME COLLECTION METHODS AGAINST YOU THAT
CAN BE USED AGAINST THE BORROWER, SUCH AS SUING YOU, ETC. IF THIS DEBT IS EVER
IN DEFAULT, THAT FACT MAY BECOME A PART OF YOUR CREDIT RECORD.
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THIS NOTICE IS NOT THE CONTRACT THAT MAKES YOU LIABLE FOR THE DEBT.
DECEMBER 16, 0000
/x/ Xxxxxxx X. Xxxxxxx
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XXXXXXX X. XXXXXXX, Guarantor
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