GUARANTY
Exhibit
10.5
GUARANTY
Edina,
Minnesota
February
20, 2007
For
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and to induce Commerce Bank (with its participants, successors
and
assigns, the “Bank”), at its option, at any time or from time to time to make
loans or extend other accommodations to or for the account of CorVu Corporation
(the “Borrower”) or to engage in any other transactions with Borrower, the
undersigned hereby absolutely and unconditionally guarantee to the Bank the
full
and prompt payment when due, whether at maturity or earlier by reason of
acceleration or otherwise, of the debt, liability or obligation of Borrower
to
the Bank evidenced by or arising out of the Term Loan Agreement dated as of
the
date hereof between the Borrower and the Bank, as such Term Loan Agreement
may
be amended from time to time (the “Term Loan Agreement”) (all such debts,
liabilities and obligations collectively referred to as the
“Indebtedness”).
The
undersigned further acknowledge and agree with the Bank that:
1. No
act or thing need occur to establish the liability of the undersigned hereunder,
and no act or thing, except payment in full and discharge of all Indebtedness,
shall in any way exonerate the undersigned or modify, reduce, limit or release
the liability of the undersigned hereunder.
2. This
is an absolute, unconditional and continuing guaranty of payment of the
Indebtedness and shall continue to be in force and be binding upon the
undersigned, whether or not all Indebtedness is paid in full, until this
guaranty shall be revoked prospectively as to future transactions, by written
notice actually received by the Bank, and such revocation shall not be effective
as to Indebtedness existing or committed for at the time of actual receipt
of
such notice by the Bank, or as to any renewals, extensions and refinancing
thereof. If there is more than one undersigned, such revocation shall be
effective only as to the one so revoking. The death or incompetence of the
undersigned shall not revoke this guaranty, except upon actual receipt of
written notice thereof by the Bank and then only as to the decedent or the
incompetent and only prospectively, as to future transactions, as herein set
forth.
3. If
any of the undersigned shall die, and if within 90 days of death a replacement
guaranty shall not be provided by the decedent’s estate or another replacement
guarantor reasonably acceptable to the Bank, the Bank may declare the decedent’s
liability under this guaranty to be immediately due and payable.
4. Notwithstanding
anything to the contrary contained herein, the liability of the undersigned
hereunder shall be limited to a maximum principal amount for all of the
undersigned collectively as determined below plus accrued interest thereon
and
all attorneys’ fees, collection costs and enforcement expenses referable
thereto. The
maximum principal amount of this guaranty initially shall be $300,000.00. Upon
certain circumstances described in the Term Loan Agreement, the maximum
principal amount of this guaranty may be reduced to $200,000.00 or to
$100,000.00 or this guaranty may be released in its
entirety.
Indebtedness may be created and continued in any amount, whether or not in
excess of the maximum principal amount stated in this Paragraph, without
affecting or impairing the liability of the undersigned hereunder. Any payment
made by the undersigned under this guaranty shall be effective to reduce or
discharge its liability, only if accompanied by a written transmittal document,
received by the Bank, advising the Bank that such payment is made under this
guaranty for such purpose. The Bank may apply any sums received by or available
to the Bank on account of the Indebtedness from Borrower or any other person
(except the undersigned), from their properties, out of any collateral security
or from any other source to payment of the excess. Such application of receipts
shall not reduce, affect or impair the liability of the undersigned
hereunder.
5. The
undersigned will not exercise or enforce any right of contribution,
reimbursement, recourse or subrogation available to the undersigned against
any
person liable for payment of the Indebtedness, or as to any collateral security
therefor, unless and until all of the Indebtedness shall have been fully paid
and discharged.
6. The
undersigned will pay or reimburse the Bank for all costs and expenses (including
reasonable attorneys’ fees and legal expenses) incurred by the Bank in
connection with the protection, defense or enforcement of this guaranty whether
suit is commenced or not, including costs and expenses in any litigation or
bankruptcy or insolvency proceedings.
7. Whether
or not any existing relationship between the undersigned and Borrower has been
changed or ended and whether or not this guaranty has been revoked, the Bank
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
undersigned and without any notice to the undersigned. The liability of the
undersigned shall not be affected or impaired by any of the following acts
or
things (that the Bank is expressly authorized to do, omit or suffer from time
to
time, both before and after revocation of this guaranty, without notice or
approval by the undersigned): (i) any acceptance of collateral security,
guarantors, accommodation parties or sureties for any or all Indebtedness;
(ii)
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 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; (iv)
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 modification, substitution, discharge, impairment, 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 or upon
any other obligations of Borrower to the Bank; (x) any election by the Bank
under §1111(b)(2) of the United States Bankruptcy Code. The undersigned waive
any right the undersigned may have to a discharge now or hereafter under Uniform
Commercial Code § 3-605.
8. The
undersigned waive 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
undersigned will not assert, plead or enforce against the Bank any defense
of
waiver, release, discharge in bankruptcy, statute of limitations, res judicata,
statute of frauds, anti-deficiency statute, fraud, incapacity, minority, usury,
illegality, marshaling or unenforceability that may be available to Borrower
or
any other person liable in respect of any Indebtedness, or any setoff available
against the Bank to Borrower or any such other person, whether or not on account
of a related transaction. The undersigned expressly agree that the undersigned
shall be and remain liable 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.
9. The
undersigned waive presentment, demand for payment, notice of dishonor or
nonpayment, and protest of any instrument evidencing Indebtedness. The Bank
shall 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.
10. If
any payment applied by the Bank 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 shall
for
the purposes of this guaranty be deemed to have continued in existence,
notwithstanding such application, and this guaranty shall be enforceable as
to
such Indebtedness as fully as if such application had never been
made.
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11. The
liability of the undersigned under this guaranty is in addition to and shall
be
cumulative with all other liabilities of the undersigned to the Bank 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.
12. This
guaranty shall be enforceable against each person signing this guaranty, even
if
only one person signs and regardless of any failure of other persons to sign
this guaranty. If there is more than one signer, all agreements and promises
herein shall be construed to be, and are hereby declared to be, joint and
several in each of every particular and shall be fully binding upon and
enforceable against either, any or all of the undersigned. This guaranty shall
be effective upon delivery to the Bank, without further act, condition or
acceptance by the Bank, shall be binding upon the undersigned and the heirs,
representatives, successors and assigns of the undersigned and shall inure
to
the benefit of the Bank and its participants, successors and assigns. Any
invalidity or unenforceability of any provision or application of this guaranty
shall not affect other lawful provisions and application hereof, and to this
end
the provisions of this guaranty are declared to be severable. Except as provided
in Paragraph 2 relating to revocations, this guaranty may not be waived,
modified, amended, terminated, released or otherwise changed except by writing
signed by the undersigned and the Bank. This guaranty shall be governed by
the
laws of the State of Minnesota. THE
UNDERSIGNED WAIVE NOTICE OF THE BANK’S ACCEPTANCE HEREOF AND WAIVE THE RIGHT TO
A TRIAL BY JURY IN ANY ACTION BASED ON OR PERTAINING TO THIS GUARANTY.
The
undersigned hereby irrevocably submit to the jurisdiction of the Minnesota
District Court, Fourth District, and the Federal District Court, District of
Minnesota, Fourth Division, over any action or proceeding arising out of or
relating to this guaranty and agree that all claims in respect of such action
or
proceeding may be heard and determined in any such court.
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IN
WITNESS WHEREOF, this guaranty has been duly executed by the undersigned the
day
and year first above written.
/s/ Xxxxx X. Xxxxxx | |||
Xxxxx X. Xxxxxx | |||
/s/ Xxxxxx X. Xxxxxxxxxx | |||
Xxxxxx X. Xxxxxxxxxx | |||
/s/ Xxxxx X. Xxxxxxx | |||
Xxxxx X. Xxxxxxx | |||
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