EXHIBIT 10.21
Bank of America
Business Loan
Continuing Guaranty
In this guaranty (the "Guaranty"), "Guarantor", refers to each business
organization or erasion who signs below. "Bank" refers to Bank of America Texas,
N.A.
1. GUARANTY In consideration of the financial arrangements between Bank and the
Borrowers listed below (each a "Borrower" and collectively, the "Borrowers"),
Guarantor guarantees payment of, and agrees to pay to the order of Bank on
demand, the debts (herein so called) to the Bank of the following Borrower under
the Facility No. 2 Commitment (as defined in the below referenced Loan
Agreement):
1. New West Acquisition Corp., Borrower
If two or more Borrowers are named above, the Guarantor guarantees payment of
any Debt they incur together as well as any Debt each one incurs alone. Subject
to the limitations contained in Section 2, the Debt includes all obligations to
Bank that any Borrower incurs:
. at any time, past, present, or future;
. voluntarily or involuntarily;
. directly or indirectly; or
. individually or together with others.
The Debt includes obligations:
. due or not yet due;
. absolute or contingent;
. liquidated or unliquidated; or
. for a determined or undetermined amount.
The Debt also includes any and all renewals, extensions, modifications and
increases of each Borrower's obligations to Bank.
Guarantor irrevocably and unconditionally covenants and agrees that it is liable
for the Debt as primary obligor subject to the limitations contained in Section
2.
Guarantor represents and warrants that it has received or will receive direct or
indirect benefit from the making of this Guaranty and the loans made by Bank to
Borrower, that Guarantor is familiar with the financial condition of Borrower
and the value of any collateral security for the Debt, and that Bank has made no
representations to Guarantor to induce Guarantor to execute this Guaranty.
This Guaranty is continuous. Until revoked, it covers Debts Borrower incurs even
after fully repaying any previous Debts. Each guarantor's obligations remain and
will not be affected in the event of revocation by any other guarantor.
This Guaranty is unconditional. Bank may require Guarantor to pay, and Guarantor
shall not be released or discharged, even if Bank does not:
. proceeds against any borrower, guarantor, or other party;
. perfect any security interest;
. proceed against any security; or
. pursue any other remedy.
Bank may do any of the following without release or discharging Guarantor,
. release, in full or in part, Borrower, other guarantors, or any other
obligors from liability with respect to the Debt;
. grant any forbearance or compromise to Borrower;
. release, subordinate its interest in, surrender, or otherwise impair the
value of, its interest in any collateral securing the Debt; or
. fail to exercise reasonable diligence, commercial reasonableness, or
reasonable care in the preservation, enforcement or sale of any collateral
securing the Debt.
Bank may require Guarantor to pay even if a statute of limitations or disability
bars recovery from Borrower, or the Debt is or becomes otherwise unenforceable.
Guarantor waives the benefit of any statute of limitations that would apply to
this Guaranty.
Guarantor hereby waives all notices, including, without limitation, notice of
(a) acceptance of this Guaranty,
(b) the extension of credit by Bank to Borrower,
(c) the occurrence of any breach or default by Borrower in respect of the
Debt,
(d) the sale or foreclosure of any collateral for the Debt,
(e) the transfer of the Debt to any third party,
(f) intent to accelerate, and
(g) acceleration.
Guarantor's obligations are independent of Borrower's obligations, and Bank may
xxx Guarantor without suing Borrower. Capitalized terms used herein, but not
defined herein, shall have the same meanings described thereto in that certain
Loan Agreement (as amended or otherwise modified from time to time, the "Loan
Agreement") between the Borrower and the Bank.
2. LIMITS OF THE GUARANTY Guarantor shall not be liable for any amount over the
following limit, although Bank may allow the Debt to go above it:
principal and any interest, fees, and other expenses arising out of, or
constituting part of, the Debt, in no event to exceed the amount of
$1,000,000.00. Such amount to be reduced
to $500,000 on the date Borrower delivers its audited financial statements
showing that the Borrower has an Adjusted EBITDA of $1,600,000, if on such
date Borrower is in compliance with all covenants under the Loan
Agreement. This Guaranty shall terminate in full on the second anniversary
of the Loan Agreement, if the Borrower's audited financial statements show
that the Borrower has an Adjusted EBITDA of $1,600,000, and on such date
Borrower is in compliance with all covenants under the Loan Agreement.
This Guaranty is in addition to any other guaranty, if any, given by Guarantor.
3. RIGHTS OF THE BANK Bank may from time to time, without notice to or demand on
Guarantor:
. change the interest rate on or renew the Debt;
. accelerate, extend, compromise, or otherwise change the repayment period
of the Debt;
. receive, substitute, or release collateral for the Debt;
. sell, otherwise dispose of, or apply collateral in any order;
. apply amounts received from anyone other than Guarantor to any
unguaranteed part of the Debt;
. assign or sell the whole or a portion of the Debt and this Guaranty; or
. foreclose any deed of trust securing the Debt, either by judicial
foreclosure or power of sale. Even if the foreclosure destroys or lessens
Guarantor's rights against Borrower, the Guarantor will be liable to Bank
for any part of the Debt remaining unpaid after foreclosure.
Bank may, at its option, request annual financial statements from Guarantor.
Guarantor agrees to supply these statements promptly whenever they are
requested.
Bank may exercise these rights either before or after Guarantor revokes this
Guaranty, and without affecting any obligation under this Guaranty.
Bank may assign this Guaranty, in whole or part, without notice, and Bank and
any assignee or purchaser, or any prospective assignee or purchaser of the Debt,
may exchange financial information about Guarantor with each other in connection
with any assignment or purchase transaction.
If a Borrower is a corporation or partnership, Bank is not required to
investigate the powers of anyone acting on Borrower's behalf.
4. PROTECTING THE BANK'S INTEREST Guarantor agrees that any amounts Borrower
owes Guarantor now or in the future are subordinated to borrower's Debt to Bank.
Guarantor shall be entitled to collect repayments on account of such debt so
long as no default or event of default has occurred, or would occur after giving
effect to such repayment in connection with such debt. At any time after a
default has occurred and is continuing in connection with the Debt, if Bank
requires, Guarantor, as a trustee for the Bank, shall collect amounts Borrower
owes Guarantor and pay them to Bank in reduction of the Debt without affecting
or reducing any obligations under this Guaranty.
Guarantor agrees that Guarantor does not have, and hereby waives, any:
. right of subrogation, reimbursement, indemnification or contribution
arising from the existence or performance of this Guaranty. This includes
any such rights arising from contract, statutory law or otherwise, and
includes any claim of subrogation under the Bankruptcy Code (Title 11 of
the U.S. Code) or any successor statute;
. right to enforce a remedy which Bank now has or may later have against
Borrower;
. right to participate in security now or later held by Bank; or
. right to any defense based on a claim that the obligations under this
Guaranty are more burdensome or are in excess of Borrower's debt to Bank
Guarantor is solely responsible for obtaining any financial information from
Borrower that guarantor may require. Bank is not required to give Guarantor any
information about Borrower's business operations or financial condition, or any
other notices or demands of any kind, including notices of new debts that may be
incurred by borrower, notices of default or notice of acceptance of this
Guaranty.
5. ARBITRATION
(a) This paragraph concerns the resolution of any controversies or claims
between Borrower and Bank, including but not limits to those that rise
from:
(i) This Guaranty (including any renewals, extensions or modifications
of this Guaranty);
(ii) Any document, agreement or procedure related to or delivered in
connection with this Guaranty;
(iii) Any violation of this Guaranty; or
(iv) Any claims for damages resulting from any business conducted between
Guarantor and Bank, including claims for injury to persons, property
or business interests (torts).
(b) At the request of Guarantor or Bank, any such controversies or claims will
be settled by arbitration in accordance with the United States Arbitration
Act. THE UNITED STATES ARBITRATION ACT WILL APPLY EVEN THOUGH THIS
AGREEMENT PROVIDES THAT IT IS GOVERNED BY TEXAS LAW.
(c) Arbitration proceedings will be administered by the American Arbitration
Association and will be subject to its commercial rules of arbitration.
(d) For purposes of the application of the statute of limitation, the filing
of a lawsuit, and any claim or controversy which may be arbitrated under
this paragraph is subject to any applicable statute of limitations. The
arbitrators will have the authority to decide whether any such claim or
controversy is barred by the statute of limitations and, if so, to dismiss
the arbitration on that basis.
(e) If there is a dispute as to whether an issue is arbitrable, the
arbitrators will have the authority to resolve any such dispute.
(f) The decision that results from an arbitration proceeding may be submitted
to any authorized court of law to be confirmed and enforced.
(g) This provision does not limit the right of Guarantor or Bank to:
(i) exercise self-help remedies such as setoff;
(ii) foreclose against or sell any real or personal property collateral
(iii) act in a court of law, before, during or after the arbitration
proceeding to obtain:
(A) a provisional or interim remedy; and/or (B) additional or
supplementary remedies
(h) The pursuit of a successful action for provision, interim, additional or
supplementary remedies, or the filing of a court action, does not
constitute a waiver of the right of Guarantor or Bank, including the suing
party, to submit the controversy or claim to arbitration if the other
party contests the lawsuit.
6. EXPENSES Guarantor agrees to pay all reasonable attorneys' fees, including
allocated costs of the Bank's in-house counsel, court costs, and all other
expenses Bank incurs in enforcing this Guaranty.
7. REVOKING THE GUARANTY Guarantor may revoke this Guaranty as to future
transactions at any time, provided that Guarantor renounces any consideration
given in return for the guaranty of such transactions. Guarantor is obligated on
all credit extended by Bank to Borrower until Bank receives a written notice at
the address shown below revoking this Guaranty.
Any revocation will not affect the Guarantor's obligation for any transactions
that preceded receipt of the written notice, and the Guarantor shall remain
obligated on all debts related to such transactions, even if such debts, before
or after the revocation, have been renewed or modified or any of their terms
shall have been changed in any way.
If this Guaranty is revoked, canceled or returned, and Bank later must refund or
rescind a payment, or transfer an interest in property back to Borrower, this
Guaranty shall be reinstated as to such payment or interest.
8. ENFORCING THIS GUARANTY THIS GUARANTY IS GOVERNED BY TEXAS LAW, AND BANK MAY
XXX GUARANTOR IN COURTS IN DALLAS COUNTY, TEXAS.
Bank may delay or waive exercising or enforcing any of its rights, including,
without limitation, its rights to setoff and lien, without losing them. Such
rights continue until Bank waives them in writing.
9. SIGNATURES/DATE All guarantors who sign are jointly and severally liable for
all obligations under this Guaranty.
This Guaranty is executed as of May 30, 1997.
Xxxxxx International, Inc.
a Delaware corporation
Dated: _________________________, 1996.
X____________________________________
Xxxxx Xxxxxx, President
0000 Xxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Tax I.D. No.: 760206074
Address for notices to the Bank:
BANK OF AMERICA TEXAS, N.A.
Houston Commercial Lending #2552
000 Xxxx Xxxxxx, Xxxxx #0000
Xxxxxxx, Xxxxx 00000
