COMMERCIAL GUARANTY
EXHIBIT 10.21
| 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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Xxxxx Xxxxxx 0000 Xxxxxxx Xxxxxx Xxxx Xxxxxxx, XX 00000 |
AMOUNT OF GUARANTY. The amount of this Guaranty is Unlimited.
CONTINUING UNLIMITED GUARANTY. For good and valuable consideration, Xxxxx Xxxxxx (“Guarantor”)
absolutely and unconditionally guarantees and promises to pay to Signature Bank (“Lender”) or its
order, in legal tender of the United States of America, the Indebtedness (as that term is defined
below) of Wireless Ronin Technologies, Inc. (“Borrower”) to Lender on the terms and conditions set
forth in this Guaranty. Under this Guaranty, the liability of Guarantor is unlimited and the
obligations of Guarantor are continuing.
INDEBTEDNESS GUARANTEED. The Indebtedness guaranteed by this Guaranty includes any and all of
Borrower’s Indebtedness to Lender and is used in the most comprehensive sense and means and
includes any and all of Borrowers’ liabilities, obligations and debts to Lender, now existing or
hereinafter incurred or created, including, without limitation, all loans, advances, interest,
costs, debts, overdraft Indebtedness, credit card Indebtedness, lease obligations, other
obligations, and liabilities of Borrower, or any of them, and any present or future judgments
against Borrower, or any of them; and whether any such Indebtedness is voluntarily or involuntarily
incurred, due or not due, absolute or contingent, liquidated or unliquidated, determined or
undetermined; whether Borrower may be liable individually or jointly with others, or primarily or
secondarily, or as guarantor or surety; whether recovery on the Indebtedness may be or may become
barred or unenforceable against Borrower for any reason whatsoever; and whether the Indebtedness
arises from transactions which may be voidable on account of infancy, insanity, ultra xxxxx, or
otherwise.
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 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 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 Indebtedness incurred by Xxxxxxxx or
committed by
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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 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 remaining Guarantors 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
Indebtedness covered by this Guaranty, and Guarantor specifically acknowledges and agrees that
reductions in the amount of 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 guaranteed Indebtedness remains unpaid and even though the Indebtedness guaranteed 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 or 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 security for the payment of this Guaranty of 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 agreements 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
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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 Xxxxxxxx’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 statements 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 a certified public accountant satisfactory to Lender.
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
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, and 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 Xxxxxx 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 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 objection 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 case 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
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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 of Borrower to Lender 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 Lender is forced to render 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 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.
SUBORDINATION OF XXXXXXXX’S DEBTS TO GUARANTOR. Guarantor agrees that the Indebtedness of Borrower
to Lender, 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 of Borrower to Lender. 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 changed 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
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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, construed and enforced in accordance with
federal law and the laws of the State of Minnesota. 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 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
addressees 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
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“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 benefits of the
parties, their successors and assigns.
Waive Jury. Xxxxxx and Guarantor hereby waives 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.
GAAP. The word “GAAP” means generally accepted accounting principles.
Guarantor. The word “Guarantor” means each and every person or entity signing this
Guaranty, including without limitation Xxxxx Xxxxxx.
Guaranty. The word “Guaranty” means the guaranty from Guarantor to Lender, including
without limitation a guaranty of all or part of the Note.
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.
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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,
mortgagee, 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 NOVEMBER
2, 2004.
GUARANTOR:
X
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/s/ Xxxxx Xxxxxx | |||
| Xxxxx Xxxxxx | ||||
