xedar8k_ex1021032007.htm


     

    
      

      

    

     

    Exhibit
      10.2

     

    UNCONDITIONAL
      GUARANTY

    


    This
      continuing Unconditional Guaranty
      (“Guaranty”) is entered into as of September 28, 2007 by Xedar Corporation
      (“Guarantor”) in favor of Silicon Valley Bank (“Bank”).

    


    Recitals

     

    A.           Bank
      and LandPixx, LLC, a Colorado limited liability company (“Borrower”), entered
      into that certain Loan and Security Agreement dated as of April 23, 2007, (as
      amended, restated, or otherwise modified from time to time, the “Loan
      Agreement”) pursuant to which Bank agreed to make certain advances of money and
      to extend certain financial accommodations to Borrower (collectively, the
“Loans”), subject to the terms and conditions set forth
      therein.  Capitalized terms used but not otherwise defined herein
      shall have the meanings given them in the Loan Agreement.

     

    B.           In
      consideration of the agreement of Bank to continue to extend the Loans to
      Borrower under the Loan Agreement, Guarantor is willing to guaranty the full
      payment and performance by Borrower of all of its obligations thereunder and
      under the other Loan Documents, all as further set forth herein.

     

    C.           Guarantor
      is, or will soon be, directly or indirectly, the 50% owner of Borrower and
      will
      obtain substantial direct and indirect benefit from the Loans made by Bank
      to
      Borrower under the Loan Agreement.

     

    Now,
      Therefore, to induce Bank
      to continue its extension of credit under the Loan Agreement, and for other
      good
      and valuable consideration, the receipt and adequacy of which are hereby
      acknowledged, and intending to be legally bound, Guarantor hereby represents,
      warrants, covenants and agrees as follows:

    


    Section
      1. Guaranty.

    


    1.1           Unconditional
      Guaranty of Payment.  In consideration of the foregoing, Guarantor
      hereby irrevocably, absolutely and unconditionally guarantees to Bank the prompt
      and complete payment and performance when due (whether at stated maturity,
      by
      acceleration or otherwise) of all Obligations; provided, however, the maximum
      liability of Guarantor hereunder shall not exceed at any time the sum of (a)
      principal indebtedness of Borrower to Bank in the amount of $1,400,000.00,
      plus
      (b) all accrued and unpaid interest on such principal indebtedness, plus (c)
      all
      Bank Expenses.  Guarantor agrees that it shall execute such other
      documents or agreements and take such action as Bank shall reasonably request
      to
      effect the purposes of this Guaranty.

    


    1.2           Separate
      Obligations.  These obligations are independent of Borrower’s
      obligations and separate actions may be brought against Guarantor (whether
      action is brought against Borrower or whether Borrower is joined in the
      action).

    


    Section
      2.  Representations and Warranties.

     

    Guarantor
      hereby represents and warrants
      that:

     

    (a)           Guarantor
      (i) is a corporation duly organized, validly existing and in good standing
      under
      the laws of the State of Colorado; (ii) is duly qualified to do business and
      is
      in good standing in every jurisdiction where the nature of its business requires
      it to be so qualified (except where the failure to so qualify would not have
      a
      material adverse effect on Guarantor’s condition, financial or otherwise, or on
      Guarantor’s ability to pay or perform the obligations hereunder); and (iii) has
      all requisite power and authority to execute and deliver this Guaranty and
      each
      Loan Document executed and delivered by Guarantor pursuant to the Loan Agreement
      or this Guaranty and to perform its obligations thereunder and
      hereunder.

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    


     

    (b)           The
      execution, delivery and performance by Guarantor of this Guaranty (i) are within
      Guarantor’s powers and have been duly authorized by all necessary action; (ii)
      do not contravene Guarantor’s charter documents or any law or any contractual
      restriction binding on or affecting Guarantor or by which Guarantor’s property
      may be affected; (iii) do not require any authorization or approval or other
      action by, or any notice to or filing with, any governmental authority or any
      other Person under any indenture, mortgage, deed of trust, lease, agreement
      or
      other instrument to which Guarantor is a party or by which Guarantor or any
      of
      its property is bound, except such as have been obtained or made; and (iv)
      do
      not result in the imposition or creation of any Lien upon any property of
      Guarantor.

     

    (c)           This
      Guaranty is a valid and binding obligation of Guarantor, enforceable against
      Guarantor in accordance with its terms, except as the enforceability thereof
      may
      be subject to or limited by bankruptcy, insolvency, reorganization, arrangement,
      moratorium or other similar laws relating to or affecting the rights of
      creditors generally.

    


    (d)           There
      is no action, suit or proceeding affecting Guarantor pending or threatened
      before any court, arbitrator, or governmental authority, domestic or foreign,
      which may have a material adverse effect on the ability of Guarantor to perform
      its obligations under this Guaranty.

     

    (e)           Guarantor’s
      obligations hereunder are not subject to any offset or defense against Bank
      or
      Borrower of any kind.

     

    (f)           The
      financial statements of Guarantor which have been furnished to Bank, fairly
      present the financial position and results of operations for Guarantor for
      the
      dates and periods purported to be covered thereby, all in accordance with GAAP,
      and there has been no material adverse change in the financial position or
      operations of Guarantor since the date of such financial
      statements.

     

    (g)           The
      incurrence of Guarantor’s obligations under this Guaranty will not cause
      Guarantor to (i) become insolvent; (ii) be left with unreasonably small capital
      for any business or transaction in which Guarantor is presently engaged or
      plans
      to be engaged; or (iii) be unable to pay its debts as such debts
      mature.

     

    (h)           Guarantor
      covenants, warrants, and represents to Bank that all representations and
      warranties contained in this Guaranty shall be true at the time of Guarantor’s
      execution of this Guaranty, and shall continue to be true so long as this
      Guaranty remains in effect.  Guarantor expressly agrees that any
      misrepresentation or breach of any warranty whatsoever contained in this
      Guaranty shall be deemed material.

    


    Section
      3.  General
      Waivers.  Guarantor waives:

    


    (a)           Any
      right to require Bank to (i) proceed against Borrower or any other person;
      (ii) proceed against or exhaust any security or (iii) pursue any other
      remedy.  Bank may exercise or not exercise any right or remedy it has
      against Borrower or any security it holds (including the right to foreclose
      by
      judicial or nonjudicial sale) without affecting Guarantor’s liability
      hereunder.

    


    (b)           Any
      defenses from disability or other defense of Borrower or from the cessation
      of
      Borrowers liabilities.

    


    (c)           Any
      setoff, defense or counterclaim against Bank.

    


    (d)           Any
      defense from the absence, impairment or loss of any right of reimbursement
      or
      subrogation or any other rights against Borrower.  Until Borrower’s
      obligations to Bank have been paid, Guarantor has no right of subrogation or
      reimbursement or other rights against Borrower.


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    


    (e)           Any
      right to enforce any remedy that Bank has against Borrower.

    


    (f)           Any
      rights to participate in any security held by Bank.

    


    (g)           Any
      demands for performance, notices of nonperformance or of new or additional
      indebtedness incurred by Borrower to Bank.  Guarantor is responsible
      for being and keeping itself informed of Borrower’s financial
      condition.

    


    (h)           The
      benefit of any act or omission by Bank which directly or indirectly results
      in
      or aids the discharge of Borrower from any of the Obligations by operation
      of
      law or otherwise.

    


    


    Section
      4.  Real Property
      Security Waiver.  Guarantor acknowledges that, to the extent
      Guarantor has or may have rights of subrogation or reimbursement against
      Borrower for claims arising out of this Guaranty, those rights may be impaired
      or destroyed if Bank elects to proceed against any real property security of
      Borrower by non-judicial foreclosure.  That impairment or destruction
      could, under certain judicial cases and based on equitable principles of
      estoppel, give rise to a defense by Guarantor against its obligations under
      this
      Guaranty.  Guarantor waives that defense and any others arising from
      Bank’s election to pursue non-judicial foreclosure.  Guarantor waives
      the benefits, if any, of any statutory or common law rule that may permit a
      subordinating creditor to assert any defenses of a surety or guarantor, or
      that
      may give the subordinating creditor the right to require a senior creditor
      to
      marshal assets, and Guarantor agrees that it shall not assert any such defenses
      or rights.

    


    Section
      5. Reinstatement.  Notwithstanding any
      provision of the Loan Agreement to the contrary, the liability of Guarantor
      hereunder shall be reinstated and revived and the rights of Bank shall continue
      if and to the extent that for any reason any payment by or on behalf of
      Guarantor or Borrower is rescinded or must be otherwise restored by Bank,
      whether as a result of any proceedings in bankruptcy or reorganization or
      otherwise, all as though such amount had not been paid.  The
      determination as to whether any such payment must be rescinded or restored
      shall
      be made by Bank in its sole discretion; provided, however, that if Bank
      chooses to contest any such matter at the request of Guarantor, Guarantor agrees
      to indemnify and hold harmless Bank from all costs and expenses (including,
      without limitation, reasonable attorneys’ fees) of such
      litigation.  To the extent any payment is rescinded or restored,
      Guarantor’s obligations hereunder shall be revived in full force and effect
      without reduction or discharge for that payment.

    


    Section
      6. No Waiver; Amendments.  No failure on
      the part of Bank to exercise, no delay in exercising and no course of dealing
      with respect to, any right hereunder shall operate as a waiver thereof; nor
      shall any single or partial exercise of any right hereunder preclude any other
      or further exercise thereof or the exercise of any other right.  The
      remedies herein provided are cumulative and not exclusive of any remedies
      provided by law.  This Guaranty may not be amended or modified except
      by written agreement between Guarantor and Bank, and no consent or waiver
      hereunder shall be valid unless in writing and signed by Bank.

     

    Section
      7. Compromise and Settlement.  No
      compromise, settlement, release, renewal, extension, indulgence, change in,
      waiver or modification of any of the Obligations or the release or discharge
      of
      Borrower from the performance of any of the Obligations shall release or
      discharge Guarantor from this Guaranty or the performance of the obligations
      hereunder.

     

    Section
      8. Notice.  Any notice or other
      communication herein required or permitted to be given shall be in writing
      and
      may be delivered in person or sent by facsimile transmission, overnight courier,
      or by United States mail, registered or certified, return receipt requested,
      postage prepaid and addressed as follows:

     


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    


     

    If
      to
      Guarantor:                          
Xedar Corporation

    8310
      South Valley Highway, Suite
      220

    Englewood,
      CO 80112

    Attention:
      Hugh H. Williamson

    Telephone
      No.: 303-377-0111

    Facsimile
      No.: 303-377-0632

     

    If
      to
      Bank:                                 
Silicon Valley Bank

    380
      Interlocken Crescent, Suite
      600

    Broomfield,
      CO 80021

    Attention:
      Ryan Lee

    Telephone
      No.: 303-410-3477

    Facsimile
      No.: 303-469-9088

     

    with
      copies
      to:                            
Block Markus & Williams LLC]

    1700
      Lincoln Street, Suite 4000

    Denver,
      CO 80203

    Attention:
      Keith Block, Esq.

    Telephone
      No.: 303-830-0800

    Facsimile
      No.: 303-830-0809

     

    or
      at such other address as may be substituted by notice given as herein
      provided.  Every notice, demand, request, consent, approval,
      declaration or other communication hereunder shall be deemed to have been duly
      given or served on the date on which personally delivered or sent by facsimile
      transmission or three (3) Business Days after the same shall have been deposited
      in the United States mail.  If sent by overnight courier service, the
      date of delivery shall be deemed to be the next Business Day after deposited
      with such service.

     

    Section
      9. Entire Agreement.  This Guaranty
      constitutes and contains the entire agreement of the parties and supersedes
      any
      and all prior and contemporaneous agreements, negotiations, correspondence,
      understandings and communications between Guarantor and Bank, whether written
      or
      oral, respecting the subject matter hereof.

     

    Section
      10. Severability.  If any provision of
      this Guaranty is held to be unenforceable under applicable law for any reason,
      it shall be adjusted, if possible, rather than voided in order to achieve the
      intent of Guarantor and Bank to the extent possible.  In any event,
      all other provisions of this Guaranty shall be deemed valid and enforceable
      to
      the full extent possible under applicable law.

     

    Section
      11. Subordination of Indebtedness.  Any
      indebtedness or other obligation of Borrower now or hereafter held by or owing
      to Guarantor is hereby subordinated in time and right of payment to all
      obligations of Borrower to Bank, except as such indebtedness or other obligation
      is expressly permitted to be paid under the Credit Agreement; and such
      indebtedness of Borrower to Guarantor is assigned to Bank as security for this
      Guaranty, and if Bank so requests shall be collected, enforced and received
      by
      Guarantor in trust for Bank and to be paid over to Bank on account of the
      Obligations of Borrower to Bank, but without reducing or affecting in any manner
      the liability of Guarantor under the other provisions of this
      Guaranty.  Any notes now or hereafter evidencing such indebtedness of
      Borrower to Guarantor shall be marked with a legend that the same are subject
      to
      this Guaranty.


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    


    Section
      12. Assignment; Governing
      Law.  This Guaranty shall be binding upon and inure to the
      benefit of Guarantor and Bank and their respective successors and assigns,
      except that Guarantor shall not have the right to assign its rights hereunder
      or
      any interest herein without the prior written consent of Bank, which may be
      granted or withheld in Bank’s sole discretion.  Any such purported
      assignment by Guarantor without Bank’s written consent shall be
      void.  This Guaranty shall be governed by, and construed in accordance
      with, the laws of the State of Colorado without regard to principles thereof
      regarding conflict of laws.

     

    Section
      13.  PERSONAL
      JURISDICTION.  GUARANTOR
      HEREBY IRREVOCABLY AGREES THAT ANY LEGAL ACTION OR PROCEEDING WITH RESPECT
      TO
      THIS GUARANTY OR ANY OF THE AGREEMENTS, DOCUMENTS OR INSTRUMENTS DELIVERED
      IN
      CONNECTION HEREWITH MAY BE BROUGHT IN THE STATE AND FEDERAL COURTS LOCATED
      IN
      THE STATE OF COLORADO AS BANK MAY ELECT (PROVIDED THAT GUARANTOR ACKNOWLEDGES
      THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED
      OUTSIDE OF THE STATE OF COLORADO), AND, BY EXECUTION AND DELIVERY HEREOF,
      GUARANTOR ACCEPTS AND CONSENTS TO, GENERALLY AND UNCONDITIONALLY, THE
      JURISDICTION OF THE AFORESAID COURTS AND AGREES THAT SUCH JURISDICTION SHALL
      BE
      EXCLUSIVE, UNLESS WAIVED BY BANK IN WRITING, WITH RESPECT TO ANY ACTION OR
      PROCEEDING BROUGHT BY GUARANTOR AGAINST BANK.  NOTHING HEREIN SHALL
      LIMIT THE RIGHT OF BANK TO BRING PROCEEDINGS AGAINST GUARANTOR IN THE COURTS
      OF
      ANY OTHER JURISDICTION.  GUARANTOR HEREBY WAIVES, TO THE FULL EXTENT
      PERMITTED BY LAW, ANY RIGHT TO STAY OR TO DISMISS ANY ACTION OR PROCEEDING
      BROUGHT BEFORE SAID COURTS ON THE BASIS OF FORUM NON CONVENIENS.

     

    Section
      14. WAIVER OF JURY TRIAL.  EACH OF BANK
      AND GUARANTOR HEREBY WAIVES, TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW,
      ANY
      RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY
      OR
      INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
      GUARANTY.  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE,
      AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
      THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE
      THE
      FOREGOING WAIVER, AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTY HERETO
      HAVE BEEN INDUCED TO ENTER INTO THIS GUARANTY AND ANY RELATED INSTRUMENTS,
      AS
      APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
      THIS SECTION 15.

     

     

    
      	
               

            	
              GUARANTOR

            


    

    XEDAR
      CORPORATION

    


    


    By:
/s/
      Hugh H.
      Williamson,
      III                                                                           

    


    Name:
Hugh
      H.
      Williamson,
      III                                                                           

    


    Title:
      President, CEO &
Director