Guaranty Of Collection
As of July ____, 1997, the undersigned, for value received, unconditionally and
absolutely guarantee(s) to Comerica Bank ("Bank"), a Michigan banking
corporation, collection of all existing and future indebtedness ("Indebtedness")
to the Bank of Enercorp, Inc., a Colorado corporation ("Borrower"). Indebtedness
includes without limit any and all obligations or liabilities of the Borrower to
the Bank, whether absolute or contingent, direct or indirect, voluntary or
involuntary, liquidated or unliquidated, joint or several, known or unknown; any
and all indebtedness, obligations or liabilities for which Borrower would
otherwise be liable to the Bank were it not for the invalidity, irregularity or
unenforceability of them by reason of any bankruptcy, insolvency or other law or
order of any kind, or for any other reason; any and all amendments,
modifications, renewals and/or extensions of any of the above; and all costs of
collecting Indebtedness, including, without limit, attorney fees. Any reference
in this Guaranty to attorney fees shall be deemed a reference to reasonable
fees, charges, costs and expenses of both in-house and outside counsel and
paralegals, whether or not a suit or action is instituted, and to court costs if
a suit or action is instituted, and whether attorney fees or court costs are
incurred at the trial court level, on appeal, in a bankruptcy, administrative or
probate proceeding or otherwise. All costs shall be payable immediately by the
undersigned when incurred by the Bank, without demand, and until paid shall bear
interest a the highest per annum rate applicable to any of the Indebtedness, but
not in excess of the maximum rate permitted by law.
1. LIMITATION: The total obligation of the undersigned under this Guaranty is
UNLIMITED unless specifically limited in the Additional Provisions of this
Guaranty, and this obligation (whether unlimited or limited to the extent
specified in the Additional Provisions) shall include, IN ADDITION TO any
limited amount of principal guaranteed, all interest on that limited amount, and
all costs incurred by the Bank in collection efforts against the Borrower and/or
the undersigned or otherwise incurred by the Bank in any way relating to the
Indebtedness, or this Guaranty, including without limit attorney fees. The
undersigned agree(s) that (a) this limitation shall not be a limitation on the
amount of Borrower's Indebtedness to the Bank; (b) any payments by the
undersigned shall not reduce the maximum liability of the undersigned under this
Guaranty unless written notice to that effect is actually received by the Bank
at, or prior to, the time of the payment; and (c) the liability of the
undersigned to the Bank shall at all times be deemed to be the aggregate
liability of the undersigned under this Guaranty and any other guaranties
previously or subsequently given to the Bank by the undersigned and not
expressly revoked, modified or invalidated in writing.
2. NATURE OF GUARANTY: This is a continuing Guaranty and remains effective
whether the Indebtedness is from time to time reduced and later increased or
entirely extinguished and later reincurred. The undersigned deliver(s) this
Guaranty based solely on the undersigned's independent investigation of (or
decision not to investigate) the financial condition of Borrower and is (are)
not relying on any information furnished by the Bank. The undersigned assume(s)
full responsibility for obtaining any further information concerning the
Borrower's financial condition, the status of the Indebtedness or any other
matter which the undersigned may deem necessary or appropriate now or later. The
undersigned knowingly accept(s) the full range of risk encompassed in this
Guaranty, which risk includes, without limit, the possibility that Borrower may
incur Indebtedness to the Bank after the financial condition of the Borrower, or
the Borrower's ability to pay debts as they mature, has deteriorated. This
Guaranty is a guaranty of collection and Bank shall have all rights and remedies
available to the holder of a guaranty of collection. Notwithstanding any
limitations on Bank under applicable law with respect to guaranties of
collection, Bank shall be entitled immediately to proceed against the
undersigned under this Guaranty: (i) if Bank shall have reduced its claim
against Borrower to judgment and after Bank shall have exercised commercially
reasonable efforts to collect, repossess, sell, liquidate or otherwise dispose
of the collateral securing Borrower's obligations to Bank, execution has been
returned unsatisfied; (ii) if more than thirty (30) days have elapsed since any
obligation included as part of the Indebtedness shall have matured (whether at
maturity or at any accelerated or extended payment date or otherwise); (iii) if
the undersigned shall have contested his liability under this Guaranty or denied
that he has any liability under this Guaranty; (iv) if Bank in good faith
determines that failure to proceed would cause Bank to lose any material rights
or remedies against the undersigned at a later date or would materially
jeopardize Bank's ability to enforce and/or realize upon this Guaranty at a
later date or if Bank is precluded from exercising rights against any material
portion of the collateral securing Borrower's obligations to Bank; (v) if the
undersigned has become insolvent, filed a voluntary petition in bankruptcy or
filed an answer to a creditor's petition or other petition filed against him
admitting the material allegations thereof for an adjudication in bankruptcy; or
(vi) it is apparent to Bank in the exercise of its reasonable discretion that it
is useless to proceed against Borrower.
3. APPLICATION OF PAYMENTS: The undersigned authorize(s) the Bank, either before
or after termination of this Guaranty, without notice to or demand on the
undersigned and without affecting the undersigned's liability under this
Guaranty, from time to time to: (a) apply any security and direct the order or
manner of sale; and (b) apply payments received by the Bank from the Borrower to
any indebtedness of the Borrower to the Bank, in such order as the Bank shall
determine in its sole discretion, whether or not this indebtedness is covered by
this Guaranty, and the undersigned waive(s) any provision of law regarding
application of payments which specifies otherwise. The undersigned agree(s) to
provide to the Bank copies of the undersigned's financial statements upon
request.
4. SECURITY: The undersigned grant(s) to the Bank a security interest in and the
right of setoff as to any and all property of the undersigned now or later in
the possession of the Bank. The undersigned further assign(s) to the Bank as
collateral for the obligations of the undersigned under this Guaranty all claims
of any nature that the undersigned now or later has (have) against the Borrower
(other than any claim under a deed of trust or mortgage covering California real
property) with full right on the part of the Bank, in its own name or in the
name of the undersigned, to collect and enforce these claims. The undersigned
agree(s) that no security now or later held by the Bank for the payment of any
Indebtedness, whether from the Borrower, any guarantor, or otherwise, and
whether in the nature of a security interest, pledge, lien, assignment, setoff,
suretyship, guaranty, indemnity, insurance or otherwise, shall affect in any
manner the unconditional obligation of the undersigned under this Guaranty, and
the Bank, in its sole discretion, without notice to the undersigned, may
release, exchange, enforce and otherwise deal with any security without
affecting in any manner the unconditional obligation of the undersigned under
this Guaranty. The undersigned acknowledge(s) and agree(s) that the Bank has no
obligation to acquire or perfect any lien on or security interest in any
asset(s), whether realty or personalty, to secure payment of the Indebtedness,
and the undersigned is (are) not relying upon any asset(s) in which the Bank has
or may have a lien or security interest for payment of the Indebtedness.
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5. OTHER GUARANTORS: If any Indebtedness is guaranteed by two or more
guarantors, the obligation of the undersigned shall be several and also joint,
each with all and also each with any one or more of the others, and may be
enforced at the option of the Bank against each severally, any two or more
jointly, or some severally and some jointly. The Bank, in its sole discretion,
may release any one or more of the guarantors for any consideration which it
deems adequate, and may fail or elect not to prove a claim against the estate of
any bankrupt, insolvent, incompetent or deceased guarantor; and after that,
without notice to any guarantor, the Bank may extend or renew any or all
Indebtedness and may permit the Borrower to incur additional Indebtedness,
without affecting in any manner the unconditional obligation of the remaining
guarantor(s). The undersigned acknowledge(s) that the effectiveness of this
Guaranty is not conditioned on any or all of the indebtedness being guaranteed
by anyone else.
6. TERMINATION: Any of the undersigned may terminate their obligation under this
Guaranty as to future Indebtedness (except as provided below) by (and only by)
delivering written notice of termination to an officer of the Bank and receiving
from an officer of the Bank written acknowledgment of delivery; provided,
however, the termination shall not be effective until the opening of business on
the fifth (5th) day ("effective date") following written acknowledgment of
delivery. Any termination shall not affect in any way the unconditional
obligations of the remaining guarantor(s), whether or not the termination is
known to the remaining guarantor(s). Any termination shall not affect in any way
the unconditional obligations of the terminating guarantor(s) as to any
Indebtedness existing at the effective date of termination or any Indebtedness
created after that pursuant to any commitment or agreement of the Bank or
pursuant to any Borrower loan with the Bank existing at the effective date of
termination (whether advances or readvances by the Bank after the effective date
of termination are optional or obligatory), or any modifications, extensions or
renewals of any of this Indebtedness, whether in whole or in part, and as to all
of this Indebtedness and modifications, extensions or renewals of it, this
Guaranty shall continue effective until the same shall have been fully paid. The
Bank has no duty to give notice of termination by any guarantor(s) to any
remaining guarantor(s). The undersigned shall indemnify the Bank against all
claims, damages, costs and expenses, including, without limit, attorney fees,
incurred by the Bank in connection with any suit, claim or action against the
Bank arising out of any modification or termination of a Borrower loan or any
refusal by the Bank to extend additional credit in connection with the
termination of this Guaranty.
7. REINSTATEMENT: Notwithstanding any prior revocation, termination, surrender
or discharge of this Guaranty (or of any lien, pledge or security interest
securing this Guaranty) in whole or in part, the effectiveness of this Guaranty,
and of all liens, pledges and security interests securing this Guaranty, shall
automatically continue or be reinstated in the event that any payment received
or credit given by the Bank in respect of the Indebtedness is returned,
disgorged or rescinded under any applicable state or federal law, including,
without limitation, laws pertaining to bankruptcy or insolvency, in which case
this Guaranty, and all liens, pledges and security interests securing this
Guaranty, shall be enforceable against the undersigned as if the returned,
disgorged or rescinded payment or credit had not been received or given by the
Bank, and whether or not the Bank relied upon this payment or credit or changed
its position as a consequence of it. In the event of continuation or
reinstatement of this Guaranty and the liens, pledges and security interests
securing it, the undersigned agree(s) upon demand by the Bank, to execute and
deliver to the Bank those documents which the Bank determines are appropriate to
further evidence (in the public records or otherwise) this continuation or
reinstatement, although the failure of the undersigned to do so shall not affect
in any way the reinstatement or continuation. If the undersigned do(es) not
execute and deliver to the Bank upon demand such documents, the Bank and each
Bank officer is irrevocably appointed (which appointment is coupled with an
interest) the true and lawful attorney of the undersigned (with full power of
substitution) to execute and deliver such documents in the name and on behalf of
the undersigned.
8. WAIVERS: The undersigned waive(s) any right to require the Bank to: (a)
proceed against any person or property; (b) give notice of the terms, time and
place of any public or private sale of personal property security held from the
Borrower or any other person, or otherwise comply with the provisions of Section
9-504 of the Michigan or other applicable Uniform Commercial Code; or (c) pursue
any other remedy in the Bank's power. The undersigned waive(s) notice of
acceptance of this Guaranty and presentment, demand, protest, notice of protest,
dishonor, notice of dishonor, notice of default, notice of intent to accelerate
or demand payment of any Indebtedness, any and all other notices to which the
undersigned might otherwise be entitled, and diligence in collecting any
Indebtedness, and agree(s) that the Bank may, once or any number of times,
modify the terms of any Indebtedness, compromise, extend, increase, accelerate,
renew or forbear to enforce payment of any or all Indebtedness, or permit the
Borrower to incur additional Indebtedness, all without notice to the undersigned
and without affecting in any manner the unconditional obligation of the
undersigned under this Guaranty.
The undersigned unconditionally and irrevocably waive(s) each and every
defense and setoff of any nature which, under principles of guaranty or
otherwise, would operate to impair or diminish in any way the obligation of
the undersigned under this Guaranty, and acknowledge(s) that each such
waiver is by this reference incorporated into each security agreement,
collateral assignment, pledge and/or other document from the undersigned now
or later securing this Guaranty and/or the Indebtedness, and acknowledge(s)
that as of the date of this Guaranty no such defense or setoff exists.
9. WAIVER OF SUBROGATION: The undersigned waive(s) any and all rights (whether
by subrogation, indemnity, reimbursement, or otherwise) to recover from the
Borrower any amounts paid by the undersigned pursuant to this Guaranty, until
the Indebtedness has been paid in full.
10. SALE/ASSIGNMENT: The undersigned acknowledge(s) that the Bank has the right
to sell, assign, transfer, negotiate, or grant participations in all or any part
of the Indebtedness and any related obligations, including, without limit, this
Guaranty, without notice to the undersigned and that the Bank may disclose any
documents and information which the Bank now has or later acquires relating to
the undersigned or to the Borrower in connection with such sale, assignment,
transfer, negotiation, or grant. The undersigned agree(s) that the Bank may
provide information relating to this Guaranty or relating to the undersigned to
the Bank's parent, affiliates, subsidiaries and service providers.
11. GENERAL: This Guaranty constitutes the entire agreement of the undersigned
and the Bank with respect to the subject matter of this Guaranty. No waiver,
consent, modification or change of the terms of the Guaranty shall bind any
of the undersigned or the Bank unless in writing and signed by the waiving
party or an authorized officer of the waiving party, and then this waiver,
consent, modification or change shall be effective only in the specific
instance and for the specific purpose given. This Guaranty shall inure to
the benefit of the Bank and its successors and assigns and shall be binding
on the undersigned and the undersigned's heirs, legal representatives,
successors and assigns including, without limit, any debtor in possession or
trustee in bankruptcy for any of the undersigned. The undersigned has (have)
knowingly and voluntarily entered into this Guaranty in good faith for the
purpose of inducing the Bank to extend credit or make other financial
accommodations to the Borrower. If any provision of this Guaranty is
unenforceable in whole or in part for any reason, the remaining provisions
shall continue to be effective. THIS GUARANTY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF MICHIGAN,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
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12. HEADINGS: Headings in this Agreement are included for the convenience of
reference only and shall not constitute a part of this Agreement for any
purpose.
13. ADDITIONAL PROVISIONS:
14. JURY TRIAL WAIVER: THE UNDERSIGNED AND BANK ACKNOWLEDGE THAT THE RIGHT TO
TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH PARTY,
AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF
THEIR CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT WAIVES ANY
RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR
ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THIS GUARANTY OR THE INDEBTEDNESS.
IN WITNESS WHEREOF, Guarantor(s) has (have) signed and delivered this Guaranty
the day and year first written above.
GUARANTOR(S): XXXXXX X. XXXXXX
GUARANTOR NAME TYPED/PRINTED
WITNESSES:
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By:
SIGNATURE OF SIGNATURE OF
Its:
TITLE (IF APPLICABLE)
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By:
SIGNATURE OF SIGNATURE OF
Its:
TITLE (IF APPLICABLE)
XXXXXXXXX'S ADDRESS:
0000 Xxxxxxx Xxxx Xxxx, Suite 000
XXXXXX ADDRESS
West Bloomfield, MI 48322-3608
CITY STATE ZIP CODE
