UNLIMITED GUARANTY
THIS UNLIMITED GUARANTY ("Guaranty") is made as of the 20th day of
March, 1996, by Guarantor (as hereinafter defined) for the benefit of
Bank (as hereinafter defined).
1. Definitions. As used in this Guaranty, the following terms
shall have the meanings indicated below:
(a) The term "Bank" shall mean BANK ONE, TEXAS, NATIONAL
ASSOCIATION, whose address for notice purposes is the following:
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxxx Xxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxxxxx
(b) The term "Borrower" (whether one or more shall mean
the following:
Xxxxxx Oil Company
(c) The term "Guarantor" shall mean Xxxxxx Resources
Corporation, whose address for notice purposes is the following:
000 00xx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
(d) The term "Guaranteed Indebtedness" shall mean (i) all
indebtedness, obligations and liabilities of Borrower to Bank of any
kind or character now existing or hereafter arising, whether direct,
indirect, related, unrelated, fixed, contingent, liquidated,
unliquidated, joint, several or joint and several, and regardless of
whether such indebtedness, obligations and liabilities may, prior to
their acquisition by Bank, be or have been payable to or in favor of a
third party and subsequently acquired by Bank (it being contemplated
that Bank may make such acquisitions from third parties), including
without limitation all indebtedness, obligations and liabilities of
Borrower to Bank now existing or hereafter arising by note, draft,
acceptance, guaranty, endorsement, letter of credit, assignment,
purchase, overdraft, discount, indemnity agreement or otherwise, (ii)
all accrued but unpaid interest on any of the indebtedness described in
(i) above, (iii) all obligations of Borrower to Bank under any documents
evidencing, securing, governing and/or pertaining to all or any part of
the indebtedness described in (i) and (ii) above, (iv) all costs and
expenses incurred by Bank in connection with the collection and
administration of all or any part of the indebtedness and obligations
described in (i), (ii) and (iii) above or the protection or preservation
of, or realization upon, the collateral securing all or any part of such
indebtedness and obligations, including without limitation all
reasonable attorneys' fees, and (v) all renewals, extensions,
modifications and rearrangements of the indebtedness and obligations
described in (i), (ii), (iii) and (iv) above.
2. Obligations. As an inducement to Bank to extend or continue
to extend credit and other financial accommodations to Borrower,
Guarantor, for value received, does hereby unconditionally and
absolutely guarantee the prompt and full payment and performance of the
Guaranteed Indebtedness when due or declared to be due and at all times
thereafter.
3. Character of Obligations. This is an absolute, continuing
and unconditional Guaranty of payment and not of collection and if at
any time or from time to time there is no outstanding Guaranteed
Indebtedness, the obligations of the Guarantor with respect to any and
all Guaranteed Indebtedness of Borrower to Bank incurred thereafter
shall not be affected. All Guaranteed Indebtedness heretofore,
concurrently herewith or hereafter made by Bank to Borrower shall be
conclusively presumed to have been made or acquired in acceptance
hereof. Guarantor shall be primarily liable, jointly and severally,
with Borrower and any other guarantor of all or any part of the
Guaranteed Indebtedness.
4. Right of Revocation. Guarantor understands and agrees that
Guarantor may revoke Guarantor's future obligations under this Guaranty
at any time by giving Bank written notice that Guarantor will not be
liable hereunder for any indebtedness or obligations of Borrower
incurred on or after the effective date of such revocation. Such
revocation shall be deemed to be effective on the day following the day
the Bank receives such notice delivered either by (a) personal delivery
to the address and designed department of Bank identified in
subparagraph 1(a) above, or (b) United States mail, registered or
certified, return receipt requested, postage prepaid, addressed to Bank
at the address shown in subparagraph 1(a) above. Notwithstanding such
revocation, Guarantor shall remain liable on Guarantor's obligations
hereunder until payment in full to Bank of (x) all of the Guaranteed
Indebtedness that is outstanding on the effective date of such
revocation, and any renewals and extensions thereof, and (y) all loans,
advances and other extensions of credit made to or for the account of
Borrower on or after the effective date of such revocation pursuant to
the obligation of Bank under a commitment or agreement made to or with
Borrower prior to the effective date of such revocation. The terms and
conditions of this Guaranty, including without limitation the consents
and waivers set forth in paragraph 7 hereof, shall remain in effect with
respect to the Guaranteed Indebtedness described in the preceding
sentence in the same manner as if such revocation had not been made by
Guarantor.
5. Representations and Warranties. Guarantor hereby represents
and warrants the following to Bank:
(a) This Guaranty may reasonably be expected to benefit,
directly or indirectly, Guarantor, and (i) if Guarantor is a
corporation, the Board of Directors of Guarantor has determined that
this Guaranty may reasonably be expected to benefit, directly or
indirectly, Guarantor, or (ii) if Guarantor is a partnership, the
requisite number of Guarantor's partners have determined that this
Guaranty may reasonably be expected to benefit, directly or indirectly,
Guarantor;
(b) Guarantor is familiar with, and has independently
reviewed the books and records regarding, the financial condition of
Borrower and is familiar with the value of any and all collateral
intended to be security for the payment of all or any part of the
Guaranteed Indebtedness; provided, however, Guarantor is not relying on
such financial condition or collateral as an inducement to enter into
this Guaranty;
(c) Guarantor has adequate means to obtain from Borrower
on a continuing basis information concerning the financial condition of
Borrower and Guarantor is not relying on Bank to provide such
information to Guarantor either now or in the future;
(d) Guarantor has the power and authority to execute,
deliver and perform this Guaranty and any other agreements executed by
Guarantor contemporaneously herewith, and the execution, delivery and
performance of this Guaranty and any other agreements executed by
Guarantor contemporaneously herewith does not and will not violate (i)
any agreement or instrument to which Guarantor is a party, (ii) any law,
rule, regulation or order of any governmental authority to which
Guarantor is subject, or (iii) Guarantor's Articles of Incorporation or
Bylaws if Guarantor is a corporation, or Guarantor's Partnership
Agreement if Guarantor is a partnership;
(e) Neither Bank nor any other party has made any
representation, warranty or statement to Guarantor in order to induce
Guarantor to execute this Guaranty;
(f) The financial statements and other financial
information regarding Guarantor heretofore and hereafter delivered to
Bank are and shall be true and correct in all material respects and
fairly present the financial position of Guarantor as of the dates
thereof, and no material adverse change has occurred in the financial
condition of Guarantor reflected in the financial statements and other
financial information regarding Guarantor heretofore delivered to Bank
since the date of the last statement thereof; and
(g) As of the date hereof, and after giving effect to this
Guaranty and the obligations evidenced hereby, (i) Guarantor is and will
be solvent, (ii) the fair saleable value of Guarantor's assets exceeds
and will continue to exceed Guarantor's liabilities (both fixed and
contingent), (iii) Guarantor is and will continue to be able to pay
Guarantor's debts as they mature, and (iv) if Guarantor is not an
individual, Guarantor has and will continue to have sufficient capital
to carry on its business and all businesses in which it is about to
engage.
6. Covenants. Guarantor hereby covenants and agrees with Bank
as follows:
(a) Guarantor shall not, so long as Guarantor's
obligations under this Guaranty continue, transfer or pledge any
material portion of Guarantor's assets for less than full and adequate
consideration;
(b) Guarantor shall promptly furnish to Bank at any time
and from time to time such financial statements and other financial
information of Guarantor as the Bank may require, in form and substance
satisfactory to Bank;
(c) Guarantor shall comply with all terms and provisions
of the instruments and agreements evidencing, governing and securing all
or any part of the Guaranteed Indebtedness that apply to Guarantor; and
(d) Guarantor shall promptly inform Bank of (i) any
litigation or governmental investigation against Guarantor or affecting
any security for all or any part of the Guaranteed Indebtedness or this
Guaranty which, if determined adversely, might have a material adverse
effect upon the financial condition of Guarantor or upon such security
or might cause a default under any of the instruments or agreements
evidencing, governing or securing all or any part of the Guaranteed
Indebtedness, (ii) any claim or controversy which might become the
subject of such litigation or governmental investigation, and (iii) any
material adverse change in the financial condition of Guarantor.
7. Consent and Waiver.
(a) Guarantor waives (i) promptness, diligence and notice
of acceptance of this Guaranty and notice of the incurring of any
obligation, indebtedness or liability to which this Guaranty applies or
may apply and waives presentment for payment, notice of nonpayment,
protest, demand, notice of protest, notice of intent to accelerate,
notice of acceleration, notice of dishonor, diligence in enforcement and
indulgences of every kind, and (ii) the taking of any other action of
Bank, including without limitation giving any notice of default or any
other notice to, or making any demand on, Borrower, any other guarantor
of all or any part of the Guaranteed Indebtedness or any other party.
(b) Guarantor waives any rights Guarantor has under, or
any requirements imposed by, Chapter 34 of the Texas Business and
Commerce Code, as in effect on the date of this Guaranty or as it may be
amended from time to time.
(c) Bank may at any time, without the consent of or notice
to Guarantor, without incurring responsibility to Guarantor and without
impairing, releasing, reducing or affecting the obligations of Guarantor
hereunder: (i) change the manner, place or terms of payment of all or
any part of the Guaranteed Indebtedness, or renew, extend, modify,
rearrange or alter all or any part of the Guaranteed Indebtedness; (ii)
sell, exchange, release, surrender, subordinate, realize upon or
otherwise deal with in any manner and in any order any collateral for
all or any part of the Guaranteed Indebtedness or this Guaranty or
setoff against all or any part of the Guaranteed Indebtedness; (iii)
neglect, delay, omit, fail or refuse to take or prosecute any action for
the collection of all or any part of the Guaranteed Indebtedness or this
Guaranty or to take or prosecute any action in connection with any
instrument or agreement evidencing, governing or securing all or any
part of the Guaranteed Indebtedness or this Guaranty; (iv) exercise or
refrain from exercising any rights against Borrower or others, or
otherwise act or refrain from acting; (v) settle or compromise all or
any part of the Guaranteed Indebtedness and subordinate the payment of
all or any part of the Guaranteed Indebtedness to the payment of any
obligations, indebtedness or liabilities which may be due or become due
to Bank or others; (vi) apply any deposit balance, fund, payment,
collections through process of law or otherwise or other collateral of
Borrower to the satisfaction and liquidation of the indebtedness or
obligations of Borrower to Bank not guaranteed under this Guaranty
pursuant to paragraph 4 herein; and (vii) apply any sums paid to Bank by
Guarantor, Borrower or others to the Guaranteed Indebtedness in such
order and manner as Bank, in its sole discretion, may determine.
(d) Notwithstanding any provision in this Guaranty to the
contrary, Guarantor hereby waives and releases (i) any and all rights of
subrogation, reimbursement, indemnification or contribution which
Guarantor may have, after payment in full or in part of the Guaranteed
Indebtedness, against others liable on all or any part of the Guaranteed
Indebtedness, (ii) any and all rights to be subrogated to the rights of
Bank in any collateral or security for all or any part of the Guaranteed
Indebtedness after payment in full or in part of the Guaranteed
Indebtedness, and (iii) any and all other rights and claims of such
Guarantor against Borrower or any third party as a result of such
Guarantor's payment of all or any part of the Guaranteed Indebtedness.
(e) Should Bank seek to enforce the obligations of
Guarantor hereunder by action in any court or otherwise, Guarantor
waives any requirement, substantive or procedural, that (i) Bank first
enforce any rights or remedies against Borrower or any other person or
entity liable to Bank for all or any part of the Guaranteed
Indebtedness, including without limitation that a judgment first be
rendered against Borrower or any other person or entity, or that
Borrower or any other person or entity should be joined in such cause,
or (ii) Bank shall first enforce rights against any collateral which
shall ever have been given to secure all or any part of the Guaranteed
Indebtedness or this Guaranty. Such waiver shall be without prejudice
to Bank's right, at its option, to proceed against Borrower or any other
person or entity, whether by separate action or by joinder.
(f) In addition to any other waivers, agreements and
covenants of Guarantor set forth herein, Guarantor hereby further waives
and releases all claims, causes of action, defenses and offsets for any
act or omission of Bank, its directors, officers, employees,
representatives or agents in connection with Bank's administration of
the Guaranteed Indebtedness, except for Bank's willful misconduct and
gross negligence.
8. Obligations Not Impaired.
(a) Guarantor agrees that Guarantor's obligations
hereunder shall not be released, diminished, impaired, reduced or
affected by the occurrence of any one or more of the following events:
(i) the death, disability or lack of corporate power of Borrower,
Guarantor (except as provided in paragraph 11 herein) or any other
guarantor of all or any part of the Guaranteed Indebtedness, (ii) any
receivership, insolvency, bankruptcy or other proceedings affecting
Borrower, Guarantor or any other guarantor of all or any part of the
Guaranteed Indebtedness, or any of their respective property; (iii) the
partial or total release or discharge of Borrower or any other guarantor
of all or any part of the Guaranteed Indebtedness, or any other person
or entity from the performance of any obligation contained in any
instrument or agreement evidencing, governing or securing all or any
part of the Guaranteed Indebtedness, whether occurring by reason of law
or otherwise; (iv) the taking or accepting of any collateral for all or
any part of the Guaranteed Indebtedness or this Guaranty; (v) the taking
or accepting of any other guaranty for all or any part of the Guaranteed
Indebtedness; (vi) any failure by Bank to acquire, perfect or continue
any lien or security interest on collateral securing all or any part of
the Guaranteed Indebtedness or this Guaranty; (vii) the impairment of
any collateral securing all or any part of the Guaranteed Indebtedness
or this Guaranty; (viii) any failure by Bank to sell any collateral
securing all or any part of the Guaranteed Indebtedness or this Guaranty
in a commercially reasonable manner or as otherwise required by law;
(ix) any invalidity or unenforceability of or defect or deficiency in
any instrument or agreement evidencing, governing or securing all or any
part of the Guaranteed Indebtedness or this Guaranty; or (x) any other
circumstances which might otherwise constitute a defense available to,
or discharge of, Borrower or any other guarantor of all or any part of
the Guaranteed Indebtedness.
(b) This Guaranty shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of all or any
part of the Guaranteed Indebtedness is rescinded or must otherwise be
returned by Bank upon the insolvency, bankruptcy or reorganization of
Borrower, Guarantor, any other guarantor of all or any part of the
Guaranteed Indebtedness, or otherwise, all as though such payment had
not been made.
(c) In the event Borrower is a corporation, joint stock
association or partnership, or is hereafter incorporated, none of the
following shall affect Guarantor's liability hereunder: (i) the
unenforceability of all or any part of the Guaranteed Indebtedness
against Borrower by reason of the fact that the Guaranteed Indebtedness
exceeds the amount permitted by law; (ii) the act of creating all or any
part of the Guaranteed Indebtedness is ultra xxxxx; or (iii) the
officers or partners creating all or any part of the Guaranteed
Indebtedness acted in excess of their authority. Guarantor hereby
acknowledges that withdrawal from, or termination of, any ownership
interest in Borrower now or hereafter owned or held by Guarantor shall
not alter, affect or in any way limit the obligations of Guarantor
hereunder.
9. Actions against Guarantor. In the event of a default in the
payment or performance of all or any part of the Guaranteed Indebtedness
when such Guaranteed Indebtedness becomes due, whether by its terms, by
acceleration or otherwise, Guarantor shall, without notice or demand,
promptly pay the amount due thereon to Bank, in lawful money of the
United States, at Bank's address set forth hereinabove. One or more
successive or concurrent actions may be brought against Guarantor,
either in the same action in which Borrower is sued or in separate
actions, as often as Bank deems advisable. The exercise by Bank of any
right or remedy under this Guaranty or under any other agreement or
instrument, at law, in equity or otherwise, shall not preclude
concurrent or subsequent exercise of any other right or remedy. The
books and records of Bank shall be admissible in evidence in any action
or proceeding involving this Guaranty and shall be prima facie evidence
of the payments made on, and the outstanding balance of, the Guaranteed
Indebtedness.
10. Payment by Guarantor. Whenever Guarantor pays any sum
which is or may become due under this Guaranty, written notice must be
delivered to Bank contemporaneously with such payment. Such notice
shall be effective for purposes of this paragraph when contemporaneously
with such payment Bank receives such notice either by: (a) personal
delivery to the address and designated department of Bank identified in
subparagraph 1(a) above, or (b) United States mail, certified or
registered, return receipt requested, postage prepaid, addressed to Bank
at the address shown in subparagraph 1(a) above. In the absence of such
notice to Bank by Guarantor in compliance with the provisions hereof,
any sum received by Bank on account of the Guaranteed Indebtedness shall
be conclusively deemed paid by Borrower.
11. Death of Guarantor. In the event of the death of
Guarantor, any duly authorized representative of the estate of Guarantor
may revoke Guarantor's future obligations under this Guaranty by giving
Bank written notice of Guarantor's of death and that the estate of
Guarantor shall not be liable hereunder for any indebtedness or
obligations of Borrower incurred on or after the effective date of such
revocation. Such revocation shall be deemed to be effective on the day
following the day Bank receives such notice delivered by: (a) personal
delivery to the address and designated department of Bank identified in
subparagraph 1(a) above, or (b) United States mail, registered or
certified, return receipt requested, postage prepaid, addressed to Bank
at the address shown in subparagraph 1(a) above. Notwithstanding such
revocation, the obligations of the deceased Guarantor shall continue as
an obligation against his estate as to (a) all of the Guaranteed
Indebtedness that is outstanding on the effective date of such
revocation, and any renewals or extensions thereof, and (b) all loans,
advances and other extensions of credit made to or for the account of
Borrower on or after the effective date of such revocation pursuant to
an obligation of Bank under a commitment or agreement made to or with
Borrower prior to the effective date of such revocation. The terms and
conditions of this Guaranty, including without limitation the consents
and waivers set forth in paragraph 7 hereof, shall remain in effect with
respect to the Guaranteed Indebtedness described in the preceding
sentence in the same manner as if such revocation had not been made.
12. Notice of Sale. In the event that Guarantor is entitled to
receive any notice under the Uniform Commercial Code, as it exists in
the state governing any such notice, of the sale or other disposition of
any collateral securing all or any part of the Guaranteed Indebtedness
or this Guaranty, reasonable notice shall be deemed given when such
notice is deposited in the United States mail, postage prepaid, at the
address for Guarantor set forth in subparagraph 1(c) above, five (5)
days prior to the date any public sale, or after which any private sale,
of any such collateral is to be held; provided, however, that notice
given in any other reasonable manner or at any other reasonable time
shall be sufficient.
13. Waiver of Bank. No delay on the part of Bank in exercising
any right hereunder or failure to exercise the same shall operate as a
waiver of such right. In no event shall any waiver of the provisions of
this Guaranty be effective unless the same be in writing and signed by
an officer of Bank, and then only in the specific instance and for the
purpose given.
14. Successors and Assigns. This Guaranty is for the benefit
of Bank, its successors and assigns. This Guaranty is binding upon
Guarantor's heirs, executors, administrators, personal representatives
and successors, including without limitation any person or entity
obligated by operation of law upon the reorganization, merger,
consolidation or other change in the organizational structure of
Guarantor.
15. Costs and Expenses. Guarantor shall pay on demand by Bank
all costs and expenses (including without limitation all reasonable
attorneys' fees) incurred by Bank in connection with the preparation,
administration, enforcement and/or collection of this Guaranty. This
covenant shall survive the payment of the Guaranteed Indebtedness.
16. Severability. If any provision of this Guaranty is held by
a court of competent jurisdiction to be illegal, invalid or enforceable
under present or future laws, such provision shall be fully severable,
shall not impair or invalidate the remainder of this Guaranty and the
effect thereof shall be confined to the provision held to be illegal,
invalid or unenforceable.
17. No Obligation. Nothing contained herein shall be construed
as an obligation on the part of Bank to extend or continue to extend
credit to Borrower.
18. Amendment. No modification or amendment of any provision
of this Guaranty, nor consent to any departure by Guarantor therefrom,
shall be effective unless the same shall be in writing and signed by an
officer of Bank, and then shall be effective only in the specific
instance and for the purpose for which given.
19. Cumulative Rights. All rights and remedies of Bank
hereunder are cumulative of each other and of every other right or
remedy which Bank may otherwise have at law or in equity or under any
instrument or agreement, and the exercise of one or more of such rights
or remedies shall not prejudice or impair the concurrent or subsequent
exercise of any other rights or remedies.
20. Governing Law. THIS GUARANTY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND
APPLICABLE FEDERAL LAWS.
21. Venue. This Guaranty has been entered into in the county
in Texas where Bank's address for notice purposes is located, and it
shall be performable for all purposes in such county. Courts within the
State of Texas shall have jurisdiction over any and all disputes arising
under or pertaining to this Guaranty and venue for any such disputes
shall be in the county or judicial district where the Bank's address for
notice purposes is located.
22. Compliance with Applicable Usury Laws. Notwithstanding any
other provision of this Guaranty or of any instrument or agreement
evidencing, governing or securing all or any part of the Guaranteed
Indebtedness, Guarantor and Bank by its acceptance hereof agree that
Guarantor shall never be required or obligated to pay interest in excess
of the maximum nonusurious interest rate as may be authorized by
applicable law for the written contracts which constitute the Guaranteed
Indebtedness. It is the intention of Guarantor and Bank to conform
strictly to the applicable laws which limit interest rates, and any of
the aforesaid contracts for interest, if and to the extent payable by
Guarantor, shall be held to be subject to reduction to the maximum
nonusurious interest rate allowed under said law.
23. Descriptive Headings. The captions in this Guaranty are
for convenience only and shall not define or limit the provisions
hereof.
24. Gender. Within this Guaranty, words of any gender shall be
held and construed to include the other gender.
25. Entire Agreement. This Guaranty contains the entire
agreement between Guarantor and Bank regarding the subject matter hereof
and supersedes all prior written and oral agreements and understandings,
if any, regarding same; provided, however, this Guaranty is in addition
to and does not replace, cancel, modify or affect any other guaranty of
Guarantor now or hereafter held by Bank that relates to Borrower or any
other person or entity.
EXECUTED as of the date first above written.
GUARANTOR:
XXXXXX RESOURCES CORPORATION,
a Colorado corporation
By: /s/ Xxx X. Xxxx
Xxx X. Xxxx,
Executive Vice President
