EXHIBIT 10.2
GUARANTOR NAME AND ADDRESS LENDER NAME AND ADDRESS
CORVU CORPORATION COMMERCE BANK Number 200775
0000 X. 00xx XXXXXX, XXXXX 000 CENTENNIAL LAKES OFFICE Amount 300,000.00
EDINA, MN 55435 0000 XXXXXXXXXXX XXX, Date December 02, 2004
SUITE 150
EDINA, MN 55435
--------------------------------------------------------------------------------
GUARANTY
DATE. The date of this Guaranty is 12-02-2004 .
For good and valuable consideration, the receipt of sufficiency of which
are hereby acknowledged, and to induce Lender (with its participants, successors
and assigns), at the option, at any time or from time to time to make loans or
extend other accommodations to or for the account of CORVU NORTH AMERICA, INC.
(Borrower) or to engage in any other transactions with Borrower, the Guarantor
hereby absolutely and unconditionally guaranties to the Lender the full and
prompt payment when due, whether at maturity or earlier by reason of
acceleration or otherwise, of the debts, liabilities and obligations described
as follows:
INDEBTEDNESS.
[_] SPECIFIC DEBTS. The Guarantor guaranties to Lender the payment and
performance of the debt, liability or obligation of Borrower to Lender
evidenced by or arising out of the following: and any extensions, renewals
or replacements thereof (indebtedness).
[_] ALL DEBTS. Except as this Guaranty may otherwise provide, the
Guarantor guaranties to Lender the payment and performance of each and
every debt, liability and obligation of every type and description which
Borrower may now or at any time hereafter owe to Lender (whether such
debt, liability or obligation now exists or is hereafter created or
incurred, and whether it is or may be direct or indirect, due or to become
due, absolute or contingent, primary or secondary, liquidated or
unliquidated, or joint, several, or joint and several; all such debts,
liabilities and obligations (indebtedness)). Without limitation, this
Guaranty includes the following described debt(s):
--------------------------------------------------------------------------------
ECOA EXCLUSION.
[_] If Lender, in its sole discretion, determines that Borrower is
creditworthy alone without any guaranty while evaluating whether to
renew an existing guarantied debt, liability or obligation, then
"indebtedness" excludes this debt, liability or obligation between
Xxxxxx and Borrower, except when Borrower is a closely-held
corporation and Guarantor is Borrower's owner, director or officer.
EXCLUSIONS.
[_] Guarantor will be liable for $___________ of the principal
amount of the Indebtedness outstanding at default and for all of the
accrued interest, and the expenses of collection, enforcement or
protection of Xxxxxx's rights and remedies under this Guaranty,
including reasonable attorneys' fees.
[_] Guarantor's liability will not exceed _______% of the
indebtedness outstanding at default and all of the accrued interest,
and the expenses of collection, enforcement or protection of
Xxxxxx's rights and remedies under this Guaranty, including
reasonable attorneys' fees.
[_] Indebtedness Excludes:
SECURITY.
[_] the Guaranty is unsecured.
[_] secured by MONEY MARKET ACCOUNT NO. 0000000 AT COMMERCE BANK
--------------------------------------------------------------------------------
[_] CONFESSIONS OF JUDGMENT. If Guarantor defaults, it authorizes any attorney
to appear in a court of record and confess judgment against it in favor of
Xxxxxx. The confession of judgment may be without process and for any amount due
on this Guaranty including collection costs and reasonable attorneys' fees.
--------------------------------------------------------------------------------
VA ONLY [_] CONFESSION OF JUDGMENT. Guarantor appoints and authorizes ,
attorneys in fact, to appear in the office of ______________, Virginia, to
confess judgment against Guarantor in favor of Xxxxxx, if Guarantor defaults on
this agreement. The confession of judgment may be without process and for any
amount due on this Guaranty including collection costs and reasonable attorneys'
fees. IN THIS NOTICE, YOU MEANS THE GUARANTOR. IMPORTANT NOTICE: THIS INSTRUMENT
CONTAINS A CONFESSION OF JUDGMENT WHICH CONSTITUTES A WAIVER OF IMPORTANT RIGHTS
YOU MAY HAVE AS A DEBTOR AND ALLOWS THE CREDITOR TO OBTAIN A JUDGMENT AGAINST
YOU WITHOUT ANY FURTHER NOTICE.
--------------------------------------------------------------------------------
PA only [_] WARRANT OF AUTHORITY TO CONFESS JUDGMENT. Upon default, in addition
to all other remedies and rights available to Lender, by signing below guarantor
irrevocably authorizes the prothonotary, clerk, or any attorney to appear in any
court of record having jurisdiction over this matter and to confess judgment
against Xxxxxxxxx at any time without stay of execution. Guarantor waives
notice, service of process and process. Xxxxxxxxx agrees and understands that
judgment may be confessed against Guarantor for any unpaid principal, accrued
interest and accrued charges due on this Note, plus collection costs and
reasonable attorneys' fees up to 15 percent of the judgment. The exercise of the
power to confess judgment will not exhaust this warrant of authority to confess
judgment and may be done as often as Lender elects. Guarantor further
understands that Guarantor's property may be seized without prior notice to
satisfy the debt owed. Guarantor knowingly, intentionally, and voluntarily
waives any and all constitutional rights Guarantor has to pre=deprivation notice
and hearing under federal and state laws and fully understands the consequences
of this waiver. By signing immediately below, Xxxxxxxxx agrees to the terms of
the WARRANT OF AUTHORITY TO CONFESS JUDGMENT section.
--------------------------------------------------------------------------------
In this warning, you and your mean the Guarantor. OH only WARNING: BY SIGNING
THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY
ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE
AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY
CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED GOODS, FAULTY
GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER CAUSE.
--------------------------------------------------------------------------------
SIGNATURES. By signing under seal, Xxxxxxxxx agrees to the terms contained in
this Guaranty (including those on page 2). Guarantor also acknowledges receipt
of a copy of this Guaranty.
GUARANTOR:
CORVU CORPORATION
Entity Name (Seal) Entity Name (Seal)
/S/ XXXXX X. XXXXXXX
-------------------------------------- ---------------------------------
Name, Title (Seal) Name, Title (Seal)
-------------------------------------- ---------------------------------
Name, Title (Seal) Name, Title (Seal)
ADDITIONAL PROVISIONS
The Guarantor further acknowledges and agrees with Xxxxxx that:
1. NO ACT OR THING NEED OCCUR TO ESTABLISH THE LIABILITY OF THE GUARANTOR
HEREUNDER, AND NO ACT OR THING, EXCEPT FULL PAYMENT AND DISCHARGE of all
Indebtedness, shall in any way exonerate the Guarantor or modify, reduce, limit
or release the liability of the Guarantor hereunder.
2. This is an absolute, unconditional and continuing Guaranty of payment
of the Indebtedness and will continue to be enforceable against the Guarantor,
whether or not all Indebtedness Is paid in full, until this Guaranty is revoked
by written notice actually received by the Lender. Any revocation shall not be
effective as to any Indebtedness existing or committed to at the time of actual
receipt of notice by the Lender, or as to any renewals, extensions and
refinancings thereof.
The Guarantor represents and warrants to the Lender that the Guarantor has
a direct and substantial economic interest in Borrower and expects to derive
substantial benefits therefrom and from any loans and financial accommodations
resulting from the creation of Indebtedness guaranteed hereby, and that this
Guaranty is given for a business purpose. The Guarantor agrees to rely
exclusively on its right to revoke this Guaranty prospectively as to future
transactions, by written notice actually received by Lender if at any time, the
benefits then being received by the Guarantor In connection with this Guaranty
are not sufficient to warrant its continuance as a Guarantor as .to future
Indebtedness. Accordingly, the Lender may rely conclusively on a continuing
warranty, hereby made, that the Guarantor continues to be benefited by this
Guaranty and that the Lender has no duty to inquire into or confirm the receipt
of any benefits, and that this Guaranty will be enforceable without regard to
the receipt, nature or value of any such benefits.
3. If the Guarantor is dissolved or becomes insolvent, however defined, or
revokes this Guaranty, then the Lender has the right to declare the full amount
of all Indebtedness immediately due and payable, end the Guarantor will
forthwith pay the Lender. If the Guarantor voluntarily commences or there is
commenced involuntarily against the Guarantor a case under.the United States
Bankruptcy Code, the full amount of all Indebtedness, whether due and payable or
unmatured, will become immediately due and payable without demand or notice
thereof.
4. The Guarantor will be liable for all Indebtedness, without any
limitation as to amount, plus accrued interest thereon end all attorneys' fees,
collection costs and enforcement expenses referable thereto. Indebtedness may be
created and continued in any amount, whether or not in excess of such principal
amount, without affecting or impairing the liability of the Guarantor hereunder,
The Lender may apply any sums received by or available to the Lender on account
of the Indebtedness from Borrower or any other person (except the Guarantor),
from their properties, out of any collateral security or from any other source
to.payment of the excess. Such application of receipts will not reduce, affect
or impair the liability of the Guarantor hereunder. If the liability of the
Guarantor is limited pursuant to this paragraph 4, any payment made by the
Guarantor under this Guaranty will be effective to reduce or discharge its
liability only if accompanied by a written transmittal document, received by the
Lender, advising that such payment is made under this Guaranty for that purpose.
b. The Guarantor will pay or reimburse the Lender for all costs and
expenses (including reasonable attorneys' fees and legal expenses) incurred by
the Lender in connection with the protection, defense or enforcement of this
Guaranty in any litigation or bankruptcy or insolvency proceedings.
6. Whether or not any existing relationship between the Guarantor and
Borrower has been changed or ended and whether or not this Guaranty has been
revoked, the Lender may, but shall not be obligated to, enter into transactions
resulting In the creation or continuance of Indebtedness, without any consent or
approval by the Guarantor and without any notice to the Guarantor. The liability
of the Guarantor will not be affected or impaired by any of the following acts
or things (which the Lender is expressly authorized to do, omit or suffer from
time to time, both before and after revocation of this Guaranty; without notice
to or approval by the Guarantor): (i) any acceptance of collateral security,
Guarantor's, accommodation parties or sureties for any or all Indebtedness; (Ill
any one or more extensions or renewals of Indebtedness (whether or not for
longer than the original period) or any modification of the interest rates,
maturities or other contractual terms applicable to any Indebtedness; (iii) any
waiver adjustment, forbearance, compromise or indulgence granted to Borrower,
any delay or lack of diligence in the enforcement of Indebtedness, or any
failure to institute proceedings, file a claim, give any required notices or
otherwise protect any Indebtedness; liv) any full or partial release of,
settlement with, or agreement not to sue, Borrower or any other Guarantor or
other person liable in respect of any Indebtedness; (v) any discharge of any
evidence of Indebtedness or the acceptance of any instrument in renewal thereof
or substitution therefor; (vi) any failure to obtain collateral security
(including rights of setoff) for Indebtedness, or to see to the proper or
sufficient creation and perfection thereof, or to establish the priority
thereof, or to protect, insure, or enforce any collateral security; or any
release, modification, substitution, discharge, impairment, deterioration,
waste, or loss of any collateral security; (vii) any foreclosure or enforcement
of any collateral security; (viii) any transfer of any Indebtedness or any
evidence thereof; (ix) any order of application of any payments or credits upon
Indebtedness; (x) any election by the Lender under S 11 XXXX of the United
States Bankruptcy Code,
7. The Guarantor waives any and all defenses, claims and discharges of
Borrower, or any other obligor, pertaining to Indebtedness, except the defense
of discharge by payment in full. Without limiting the generality of the
foregoing, the Guarantor will not assert, plead or enforce against the Lender
any defense of waiver, release, estoppel, statute of limitations, res judicata,
statute of frauds, fraud, forgery, incapacity, minority, USURY, ILLEGALITY OR
UNENFORCEABILITY WHICH MAY BE AVAILABLE TO BORROWER OR ANY OTHER person LIABLE
IN RESPECT OF ANY INDEBTEDNESS, OR ANY SETOFF available against the Lender to
Borrower or any such other person, whether or not on account of a related
TRANSACTION, THE GUARANTOR EXPRESSLY AGREES THAT THE GUARANTOR WILL BE LIABLE,
TO THE fullest extent permitted by applicable law, for any deficiency remaining
after foreclosure of any mortgage or security interest securing Indebtedness,
whether or not the liability of Borrower or any other obligor for such
deficiency is discharged pursuant to statute or judicial decision. The Guarantor
shall remain obligated, to the fullest extent permitted by law, to pay such
amounts as though Borrower's obligations had not been discharged. -
8. The Guarantor further agree(s) that Guarantor will be obligated to pay
Indebtedness even though any other person obligated to pay Indebtedness,
including Borrower, has such obligation discharged in bankruptcy or otherwise
discharged by law. "Indebtedness" shall include post-bankruptcy petition
interest and attorneys' fees and any other amounts which Borrower is discharged
from paying or which do not accrue to Indebtedness due to Borrower's discharge,
and Guarantor will be.obligated to pay such amounts as fully as if Borrower's
obligations had not been discharged.
9. If any payment applied by the Lender to Indebtedness is thereafter set
aside, recovered, rescinded or required to be returned for any reason
(Including, without limitation, the bankruptcy, insolvency or reorganization of
Borrower or any other obligor), the Indebtedness to which such payment was
applied will for the purposes of this Guaranty be deemed to have continued in
existence, notwithstanding such application, and this Guaranty will be
enforceable as to such Indebtedness as fully as if such application had never
been made.
10. The Guarantor weive(s) any claim, remedy or other right which the
Guarantor may now have or hereafter acquire against Borrower or any other person
obligated to pay Indebtedness arising out of the creation or performance of the
Guarantor's obligation under this Guaranty, including, without lindtation, any
right of subrogation, contribution, reimbursement, indemnification, exoneration
or any right to participate in any claim or remedy the Guarantor may have
against the Borrower, collateral, or other party obligated for Borrower's debt,
whether or not such claim, remedy, or right arises in equity, or under contract,
statute or common law.
11. The Guarantor waives presentment, demand for payment, notice of
dishonor or nonpayment, and protest of any instrument evidencing Indebtedness.
The Lender will not be required first to resort for payment of the Indebtedness
to Borrower or other persons or their properties, or first to enforce, realize
upon or exhaust any collateral security for Indebtedness, before enforcing this
Guaranty.
12. The liability of the Guarantor under this Guaranty is in addition to
and is cumulative with all other liabilities of the Guarantor to the Lender as
Guarantor or otherwise, without any limitation as to amount, unless the
instrument or agreement evidencing or creating such other liability specifically
provides to the contrary.
13. To induce Lender to enter Into the Loan, Guarantor makes these
representations and warranties for as long as Guaranty is in effect. Guarantor
is duly organized, validly existing and in good standing under the laws in the
jurisdiction where Guarantor was organized and is duly qualified, validly
existing and in good standing in all jurisdictions in which Guarantor operates
or Guarantor owns or leases property. Guarantor has the power and authority to
enter into this transaction and to carry on Guarantor's business or activity as
now conducted. The execution, delivery and performance of this Guaranty and the
obligation evidenced by this Guaranty: are within Guarantor's duly authorized
powers; has received all necessary governmental approval; will not violate any
provision of law or order of court or governmental agency; and will not violate
any agreement to which Guarantor is a party or to which Guarantor is or any of
Guarantor's property is subject. Other than previously disclosed in writing to
Lender, Guarantor has not changed Guarantor's name or principal place of
business within the last ten years and has not used any other trade or
fictitious name. Without Xxxxxx's prior written consent, Guarantor does not and
will not use any other name and will preserve Guarantor's existing name, trade
names and franchises. Guarantor owns or leases all property that Guarantor needs
to conduct Guarantor's business and activities. All of Guarantor's property is
free and clear of all liens, security interests, encumbrances and other adverse
claims and interests, except those Xxxxxx previously agreed to in writing.
Guarantor is not violating any laws, regulations, rules, orders, judgments or
decrees applicable to Guarantor or Guarantor's property, except for those that
Guarantor is challenging in good faith through proper proceedings after
providing adequate reserves to fully pay the claim and its challenge should
Guarantor lose.
14. This Guaranty is effective upon delivery to the Lender, without
further act, condition or acceptance by the Lender. it will be binding upon the
Guarantor and the successors and assigns of the Guarantor and will inure to the
benefit of the Lender and its participants successors and assigns. Any
invalidity or unenforceability of any, provision or application of this Guaranty
will not affect other lawful provisions and application hereof, and to this end
the provisions of this Guaranty are declared to be severable. Except as allowed
by the terms herein, this Guaranty may not be waived, modified, amended,
terminated, released or otherwise changed except by a writing signed by the
Guarantor and the Lender. This Guaranty shall be governed by the laws of the
State in which it is executed, The Guarantor waives notice of the Lender's
acceptance hereof.
