Terms & Conditions for Guarantors
1. General Provisions
1.1. Introduction. These Terms & Conditions for Guarantors (“T&Cs”) of the above-named company (“Company”) are for the signed Guaranty that references these T&Cs (“Guaranty”).
1.2. Definitions. Whenever one of the following terms appears in these T&Cs with its first letters capitalized, it shall have the meaning given to it below:
(a) “Affiliate” is a corporation, partnership, or other business entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person specified.
(b) “Business Successor” means any successor to the business of that person by (i) merger or consolidation; (ii) sale or transfer of its assets, stock, other ownership interests, business operations, or customers; and/or (iii) any other means whatsoever (regardless of how it is described or accomplished).
(c) “Debtor” is the Debtor in the Guaranty, its Business Successors, and their Affiliates.
(d) “Effective Date” is the Effective Date specified in the Guaranty.
(e) “Guarantor” means the Guarantor in the Guaranty and its Affiliates.
(f) “Indebtedness” refers to the Indebtedness described in the Guaranty.
(g) “Parties” means the Company and Guarantor (and references to a “Party” are to either of them).
(h) “Successor-In-Interest” of an individual includes all of his or her (i) transferees of stock or other ownership interest; (ii) heirs, devisees, and personal representatives; and/or (iii) any other voluntary or involuntary successor to that interest by any means (including a successor by operation of law).
1.3. Recovery by Company. The Company always retains the right to recover directly from the Guarantor the full amount of all Indebtedness then owed. The Company may do so without prior notice to the Guarantor and without any need to first prosecute its claim against the Debtor or obtain a judgment against the Debtor.
1.4. Rights Regarding Indebtedness. The Company reserves the following rights, all of which may be exercised without notice to Guarantor, and without terminating or changing in any way Guarantor’s obligations to the Company under the Guaranty:
(a) Amount. The amount of Indebtedness shall be determined solely by the Company and Debtor based on Debtor’s credit purchases from the Company. At any time, therefore, the amount of the Indebtedness may be increased, decreased, or reduced to zero.
(b) Settlement and Adjustment. The Indebtedness may be settled or adjusted by the Company and the Debtor at any time. The Company may receive notes from the Debtor for this purpose. The Company may also increase or reduce the amount of the Debtor’s security for the Indebtedness, if any, or release any or all of such security.
(c) Extensions. The Company may extend or reduce the time of payment on the Indebtedness, of any notes taken with respect thereto, and of any other security given therefor.
(d) Waiver of Notices. The Guarantor waives notice of (i) all credit advances by the Company to the Debtor, (ii) any notes or security taken for the Indebtedness, and (iii) any and all notices of default to the Debtor.
1.5. Rights Cumulative. All of the Company’s recovery rights under the Guaranty are cumulative. The Company retains all rights it possesses in law and equity. Until the entire Indebtedness subject to the Guaranty is paid in full, these rights shall not be exhausted by the exercise of one or more actions by the Company against Guarantor, whether under the Guaranty or otherwise.
2.1. Duration. The Guaranty is effective on its Effective Date (regardless of when it is signed). It is a continuing guaranty. The Guaranty shall remain in effect despite (i) the closing of the Debtor’s business, (ii) the Guarantor’s death or other legal disability, or (ii) the fact that no Indebtedness may be outstanding at any given time.
2.2. Termination. The Guaranty can be terminated only by means of a writing signed on behalf of the Company by (i) its Credit Manager, (ii) its Vice President & General Counsel, or (iii) any other executive officer of the Company. It cannot be terminated by any other means. The following provisions shall apply in all cases:
(a) Time of Termination. The termination shall be of nor force or effect unless and until it is duly signed by the Company and received by the Guarantor. The time of receipt must be proven by clear and convincing evidence, such as by production of a signed receipt for a document sent by certified mail or proof furnished by a courier (e.g. Federal Express or UPS).
(b) Subsequent Effect Only. A termination shall render the Guaranty void for any Indebtedness that becomes due and payable pursuant to obligations entered into on or after the time of termination [¶ 2.2(a)]. However, the termination shall not affect the Guaranty with respect to any Indebtedness becoming due and payable on obligations that were entered into prior to the time of termination [¶ 2.2(a)].
3. Representations & Warranties
3.1. Relation to Debtor. Guarantor hereby represents and warrants to the Company that the Guarantor is in fact an Affiliate of the Debtor and has a material interest in the Debtor.
3.2. Independent Value. It is understood and agreed that, because the Guarantor is affiliated with the Debtor, the Guarantor will also benefit from each extension of credit from the Company to the Debtor.
3.3. Equal Credit Opportunity Act. The Guarantor understands that the Guaranty was requested because the Company’s credit standards would not qualify the Debtor for credit extensions based solely upon (i) the income and assets of the Debtor, and (ii) any and all other guarantees of its Indebtedness.
4. Dispute Resolution
4.1. In General. These dispute resolution provisions may be modified by the Parties in writing. Nothing herein prevents the Parties from utilizing mediation if they so agree. As used below, the amount of a Party’s requested claim or counterclaim excludes (i) interest; (ii) the monetary value of injunctive relief sought; (iii) any arbitration and arbitrator fees; (iv) all costs, disbursements, and attorney fees; and (v) types of damages that are not recoverable.
4.2. Claims of $150,000 or Less — Court. Any claim arising out of or relating to the Guaranty or the Indebtedness shall be resolved by a court under the provisions below whenever the Parties’ claims and counterclaims are each $150,000 or less (even if the aggregate exceeds that dollar threshold).
(a) Exclusive Jurisdiction & Venue. The court proceeding must be commenced in a federal or state district court in the Minneapolis-St. Paul Standard Metropolitan Statistical Area, and those courts shall have exclusive jurisdiction and venue to determine all legal and equitable disputes between the Parties.
(b) Consent to Jurisdiction & Venue. Each Party hereby (i) consents to the jurisdiction and venue of the above courts, (ii) waives any right to contest the same or claim that those courts are inconvenient forums, and (iii) agrees that those courts shall have exclusive jurisdiction and venue.
4.3. Claims Above $150,000 — Arbitration. Except as otherwise stated in ¶ 4.2 above or ¶ 4.3(d) or ¶ 4.3(e) below, any claim arising out of or relating to the Guaranty or the Indebtedness shall be settled by binding arbitration by the American Arbitration Association (“AAA”) under the AAA’s then existing Commercial Arbitration Rules.
(a) AAA Rules. The Expedited Procedures of the AAA shall be used when the Parties’ claims and counterclaims are each less than $500,000 (even if the aggregate equals or exceeds that dollar threshold). The procedures for Large, Complex Commercial Disputes shall be used if either Party’s claim or counterclaim is at least $500,000. There shall be just one arbitrator.
(b) Venue of Proceeding. The arbitration shall be in the Minneapolis-St. Paul Standard Metropolitan Area in the AAA offices or another location therein selected by the arbitrator (including his or her own offices).
(c) Arbitrator’s Powers. The arbitrator shall have all of the powers in the AAA rules, including the ability to grant injunctive relief. All jurisdiction and arbitrability issues shall be decided solely by the arbitrator (not a court).
(d) Indispensable Parties. Upon motion by either Party, the arbitrator shall dismiss the proceeding without prejudice and costs when (i) the arbitrator cannot accord complete relief between the Parties unless another person participates, and (ii) that person refuses to participate in the arbitration. If the arbitration gets dismissed, suit may be commenced in accordance with ¶ 4.2 above notwithstanding any dollar limit therein.
(e) Injunctive Relief. Nothing herein bars either Party from seeking injunctive relief from a court of law pursuant to ¶ 4.2 above if (i) no money damages are sought, or (ii) the amount of money damages also being sought does not exceed the dollar threshold therein. For all other requests for injunctive relief, see ¶ 4.3(c) above.
4.4. Loser Pays. Plaintiff is the “prevailing Party” — and defendant is the “losing Party” — when plaintiff is awarded (i) at least 67% of its money demand, and/or (ii) a substantial portion of its request for injunctive relief. If plaintiff is awarded neither of the preceding, then the “prevailing Party” is defendant and the “losing Party” is plaintiff.
(a) Costs & Disbursements. In all cases, whether in a court proceeding or arbitration, the losing Party must pay all of the prevailing Party’s reasonable costs and disbursements including, without limitation, fees and expenses of expert witnesses. However, neither Party may recover for time spent by its employees or any of its travel costs, hotel charges, meals, or related items.
(b) Arbitration Expenses. In arbitration proceedings, the losing Party must either pay directly or provide reimbursement for (i) all AAA filing fees and other AAA charges, and (ii) all of the arbitrator’s fees and expenses.
(c) Attorney Fees. In all cases, whether in a court proceeding or arbitration, the losing Party shall pay the prevailing Party’s reasonable attorney fees and expenses. A contingency fee up to one-third (1/3) shall be deemed to be reasonable.
4.5. Interest. Any claim for a liquidated sum shall accrue interest at the rate of eighteen percent (18%), or if less, at the maximum legal rate of interest.
4.6. Collection Costs. Until the award is paid in full, interest shall accrue on the unpaid amount at the rate in ¶ 4.5 above. If full payment is not made within 30 days of the award, the prevailing Party shall be entitled to recover all of its reasonable collection costs, including additional attorney fees relating to collection of the unpaid amounts.
5. Rules of Construction
5.1. Entire Agreement. All references herein to the Guaranty includes these T&C. The signed Guaranty and its T&Cs comprise the entire agreement between the Parties with respect to this subject matter.
5.2. Severability. If any provision of the Guaranty is determined to be invalid, illegal or unenforceable, the remaining provisions of the Guaranty remain in full force, and to the maximum extent permitted by law, those other terms shall remain valid, binding, and enforceable.
5.3. Amendments. No amendment to the Guaranty is valid unless it is in writing and both Parties sign it. The only persons with authority to sign for the Company are (i) its Credit Manager, (ii) its Vice President & General Counsel, and (iii) another executive officer of the Company. A signature by any other person does not bind the Company.
5.4. Waivers. No amendment to the Guaranty is valid unless it is made in writing and both Parties sign it. A waiver of any provision in the Guaranty by the Company shall be unenforceable unless it is in writing and is signed for the Company by (i) its Credit Manager, (ii) its Vice President & General Counsel, or (iii) any other executive officer of the Company. Delay or failure of Company to insist on strict performance of any provision of the Guaranty or to exercise any rights or remedies shall not be deemed a waiver. A waiver given on one occasion does not require that a waiver be given on any later occasion (even under similar or identical circumstances).
6.1. Assignment and Delegation. The Company may assign or sell its rights under the Guaranty, either in whole or in part, without the consent of the Guarantor. However, the Guarantor cannot delegate the Guarantor’s obligations hereunder to any person without the prior written consent of the Company (and any such attempted delegation, without the Company’s prior written consent, is void).
6.2. Persons Bound. The Guaranty shall be binding upon and inure to the benefit of the Company and Guarantor and all of their permitted assigns, Business Successors [¶ 1.1(b)], and Successors-In-Interest [¶ 1.1(h)].
6.3. Meaning of Certain Terms. Unless the context clearly requires otherwise, all words used in these T&Cs in the singular include the plural, and all words used in the plural include the singular. Unless the context clearly requires otherwise, whenever the following terms are used in these T&Cs, they mean the following:
(a) “Include” and its derivatives are used in these T&Cs in an illustrative sense, not a limiting one (and thus has the same meaning as the phrase “including but not limited to”).
(b) “Signed” means (i) an original signature; (ii) a fax copy with a manual signature; (iii) any signature affixed to a writing that is then scanned and sent by email or other electronic communication; and/or (iii) any signature satisfying the Electronic Signatures in Global and National Commerce Act (ESIGNS), 15 U.S.C. Chap. 96, or any state law that is applicable to that instrument.
(c) “Writing” includes (i) traditional paper documents, (ii) information that is inscribed on a tangible medium, and (iii) information that is stored in an electronic or other medium and is retrievable in a perceivable form (including an email).
6.4. Choice of Law. The validity and construction of all matters arising under or related to the Guaranty and these T&Cs shall be governed by the laws of the State of Minnesota (excluding its conflict of law rules). This shall apply to all court proceedings [¶ 4.2], all arbitrations [¶ 4.3], and all other circumstances.