Exhibit 10(i).2
COMMERCIAL GUARANTY
--------- --------- -------- ------- --------- ------- ------- --------
Principal Loan Date Maturity Loan No Call/Coll Account Officer Initials
703
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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: MorAmerica Capital Corporation
000 0xx Xxxxxx XX Xxx 000
Xxxxx Xxxxxx, XX 00000
Lender: Cedar Rapids Bank and Trust Company
000 0xx Xxxxxx XX Xxx 000, P.O. Box 789
Cedar Rapids, IA 52406-0789
Guarantor: MACC Private Equities Inc
000 0xx Xxxxxx XX Xxx 000
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
Xxxxxx has not exhausted Xxxxxx'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 unterminated 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 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 Xxxxxx, or any notice to Guarantor or
to Borrower, and will continue in full force until all the Indebtedness incurred
or contracted
COMMERCIAL GUARANTY
Loan No: 1089921654 Page 2
before receipt by Xxxxxx 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 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 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. For this purpose and without limitation, "new
Indebtedness" does not include all or part of the Indebtedness that is: incurred
by Borrower prior to revocation; incurred under a commitment that became binding
before revocation; any renewals, extensions, substitutions, and modifications of
the 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 by this Guaranty, and Guarantor
specifically acknowledges and agrees that reductions in the amount of the
Indebtedness, even to zero dollars ($0.00), 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 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 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 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 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, 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:
COMMERCIAL GUARANTY
Loan No: 1089921654 Page 3
Annual Statements. As soon as available, but in no event later than
one-hundred-twenty (120) days after the end of each fiscal year,
Guarantor's balance sheet and income statement for the year ended,
audited 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, 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
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 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 Xxxxxx 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 Xxxxxxxx,
whether voluntarily or otherwise, or by any third party, on the Indebtedness and
thereafter Xxxxxx is forced to remit the amount of that payment to Xxxxxxxx'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.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all 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 IRA or Xxxxx accounts, or any trust accounts
for which setoff would be prohibited by law. Guarantor authorizes Xxxxxx, 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 XXXXXXXX'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 Xxxxxx 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
COMMERCIAL GUARANTY
Loan No: 1089921654 Page 4
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 charged or bound by the alteration
or amendment.
Attorneys' Fees; Expenses. Xxxxxxxxx agrees to pay upon demand all of
Xxxxxx's costs and expenses, including Xxxxxx's attorneys' fees and
Xxxxxx'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 Xxxxxx'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), 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 federal law applicable
to Lender and, to the extent not preempted by federal law, the laws of
the State of Iowa without regard to its conflicts of law provisions.
This Guaranty has been accepted by Xxxxxx in the State of Iowa.
Choice of Venue. If there is a lawsuit, Xxxxxxxxx agrees upon Xxxxxx's
request to submit to the jurisdiction of the courts of Linn County,
State of Iowa.
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,"
"Borrower," 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 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, Xxxxxxxxx
agrees to keep Xxxxxx informed at all times of Guarantor's current
address.
COMMERCIAL GUARANTY
Loan No: 1089921654 Page 5
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 benefit of the parties, their successors
and assigns.
Waive Jury. Xxxxxx and Guarantor hereby waive the right to any jury
trial in any action, proceeding, or counterclaim brought by either
Lender or Guarantor 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 MorAmerica Capital Corporation and
includes all co-signers and co-makers signing the Note and all their
successors and assigns.
GAAP. The word "GAAP" means generally accepted accounting principles.
Guarantor. The word "Guarantor" means everyone signing this Guaranty,
including without limitation MACC Private Equities 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 Xxxxxxxx's indebtedness to
Lender as more particularly described in this Guaranty.
Lender. The word "Lender" means Cedar Rapids Bank and Trust Company,
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 XXXXXX IS NECESSARY TO MAKE THIS GUARANTY EFFECTIVE. THIS GUARANTY
IS DATED AUGUST 30, 2007.
COMMERCIAL GUARANTY
Loan No: 1089921654 Page 6
GUARANTOR ACKNOWLEDGES RECEIPT OF A COMPLETED COPY OF THIS COMMERCIAL GUARANTY
AND ALL OTHER DOCUMENTS RELATING TO THIS DEBT.
GUARANTOR:
MACC PRIVATE EQUITIES INC.
By: /s/ Xxxxx X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx, President of MACC Private Equities Inc.
