Exhibit 10.9
COMMERCIAL GUARANTY
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Principal Loan Maturity Loan No. [Call/Coll] Account 309275 Officer Initials
Date [4100] 123
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Reference 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.
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Lender: Bank Midwest N.A.
Borrower: DCI, INC. (TIN: 00-0000000) City Center Square Facility
000 X XXXX XXX XXXXX 0000 Xxxx, Xxxxx 000
XXXXXX, XX 00000 Xxxxxx Xxxx, XX 00000
Guarantor: NTG, INC. (TIN: 00-0000000)
000 X XXXX XXX XXXXX
XXXXXX, 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
Lender has not exhausted Lender'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, 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, liabilities and obligations under any interest
rate protection agreements or foreign currency exchange agreements or commodity
price protection agreements, 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
liability will be Guarantor's aggregate liability under the terms of this
Guaranty and any such other undetermined 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
COMMERCIAL GUARANTY
Loan No.: 2000207186 (Continued) Page 2
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 lender, 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
Lender'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 Lender 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 byt5 his 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, principal amount,
fees or other charges on the indebtedness; extensions may be repeated and may be
for longer than the original loan term; (C) to take and hold 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 xxx, 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
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COMMERCIAL GUARANTY
Loan No.: 2000207186 (Continued) Page 3
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,
Lender 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 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 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 Guaranty, 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 Lender 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 Lender 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 Borrower,
whether voluntarily or otherwise, or by any third party, on the indebtedness and
thereafter Lender is forced to remit the amount of that payment to Borrower'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
wavier is determined to be contrary to any applicable law or public policy, such
wavier shall be effective only to the extent permitted by law of public policy.
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COMMERCIAL GUARANTY
Loan No.: 2000207186 (Continued) Page 4
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of set off in al 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 XXX or Xxxxx accounts, or any trust accounts
for which setoff would be prohibited by law. Guarantor authorizes Lender, 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.
SUBORDINATION OF BORROWER'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 Lender 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. Guarantor agrees, and Lender 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
Lender's costs and expenses, including Lender's attorneys' fees and
Lender'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 Lender's attorneys' fees and legal
expenses whether or not there is a lawsuit, including attorneys' fees and
legal expenses for bankruptcy proceedings (including efforts to modify or
vacate any automatic stay or injunction), and appeals. 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 Missouri without regard to its conflicts of law provisions. This
Guaranty has been accepted by Lender in the State of Missouri.
Choice of Venue. If there is a lawsuit, Guarantor agrees upon Lender's
request to submit to the jurisdiction of the courts of XXXXXXX County,
State of Kansas.
Integration. Guarantor 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 Lender harmless from all losses,
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COMMERCIAL GUARANTY
Loan No.: 2000207186 (Continued) Page 5
claims, damages, and costs (including Lender's attorneys' fees) suffered or
incurred by Lender 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 requires; 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," "Borrower," and "Lender" include the
heirs, successors, assigns, and transferees of each of them. All of the
obligations of Guarantor under this Guaranty (if more than one Guarantor)
shall be joint and several. 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 Untied
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, Guarantor agrees to keep Lender 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 Lender. Lender shall not be deemed to have waived any rights
under this Guaranty unless such waiver is given in writing and signed by
Lender. 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
Lender 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
Lender, nor any course of dealing between Lender 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. This Guaranty shall be understood to be for the
benefit of Lender and for such other person or persons as may from time to
time become or be the holder or owner of any of the indebtedness or any
interest therein, and this Guaranty shall be transferable to the same
extent and with the same force and effect as any such indebtedness may be
transferable.
ADDITIONAL EVENTS OF DEFAULT. I agree to provide reasonable financial income
information including, but not limited to, signed financial statements, Federal
Tax Returns, and lease/rental documents to the Lender within 30 days of Lender's
written request. The financial statements shall consist of at least a balance
sheet, a listing of all contingent liabilities, and a statement of year-to-date
income as of the close of my last fiscal year. Failure on the part of the
borrower(s) to provide the requested information may be considered an event of
default under this note or agreement.
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COMMERCIAL GUARANTY
Loan No.: 2000207186 (Continued) Page 6
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 DCI, INC., and includes all co-signers
and co-makers signing the Note and all their successors and assigns.
Guarantor. The word "Guarantor" means everyone signing this Guaranty,
including without limitation NTG, INC., 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 Borrower's indebtedness to
Lender as more particular described in this Guaranty.
Lender. The words "Lender" means Bank Midwest N.A., 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 LENDER IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY
IS DATED NOVEMBER 15, 2006.
GUARANTOR:
NTG, INC.
By: __________________________________________________________
XXXX X. XXXXXXXX, Director & Treasurer of NTG, INC.
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