Exhibit 10(u)
DATE OF AGREEMENT
AUGUST 30, 2000
GUARANTY AGREEMENT
DEBTOR NAME AND ADDRESS LENDER NAME AND ADDRESS
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The Xxxxx Company Bank of Oklahoma, N.A.
5600 N. May Ave. Suite 320 OKC Main
Xxxxxxxx Xxxx, XX 00000 X.X. Xxx 000000
Xxxxxxxx Xxxx, XX 00000-0000
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A. To induce the Lender to extend credit to the Debtor and
for other good and valuable consideration, the receipt of
which is acknowledged, and for the purpose of enabling
the Debtor to obtain or renew loans, credit or other
financial accommodation from the Lender named above, each
of the undersigned as a primary obligor, jointly and
severally and unconditionally: (I) guarantees to the
Lender that Debtor will fully and promptly pay or
otherwise discharge all indebtedness and other
obligations ("indebtedness") upon which Debtor now is or
may later, from time to time, become obligated to Lender
as principal, guarantor, endorser, or in any other
capacity, and whether joint or several liability or
liability created by direct dealing with Lender or
through transfer from others, and regardless of the
nature and form of indebtedness and whether due or not
due; (2) agrees, without the Lender first having to
proceed against Debtor or any other party liable or to
liquidate any security, to pay on demand all sums due and
to become due to Lender from Debtor, and all losses,
costs, attorney fees or expenses which may be suffered or
incurred by Lender by reason of Debtor's default or the
default of the undersigned; (3) except as setoff is
waived, agrees to be bound by and on demand to pay any
deficiency or difference between all indebtedness of the
Debtor and the proceeds of any private or public sale
(including a sheriff's sale) of the security held by
Lender, with or without notice to the undersigned; (4)
agrees that liability under this Agreement will not be
affected or impaired by any failure, neglect or omission,
including a failure or delay to perfect or maintain
perfection of a security interest, either in relation to
the collection of the indebtedness or the protection of
the security given, and regardless of whether the Lender
fails or omits to seek or is precluded from seeking a
judgment against Debtor; and (5) further agrees that the
liability of the undersigned shall not be affected by any
lack of validity or enforceability due to defense, claim,
discharge or otherwise of any indebtedness guaranteed by
this Agreement or of the security of the indebtedness.
B. Lender may at any time and from time to time without the
further consent of or notice to the undersigned, without
incurring responsibility to the undersigned and without
impairing or releasing the obligations of the
undersigned, and upon any terms and conditions the Lender
may elect: (1) change the manner, place or terms of
payment or extend the time of payment of any indebtedness
of Debtor to Lender; (2) renew, increase or alter any
indebtedness of Debtor to Lender; (3) raise or lower the
interest rate or rates charged Debtor; (4) sell,
exchange, release, surrender, realize upon support or
otherwise deal or not deal with in any manner and in any
order any property at any time pledged to secure or
securing the indebtedness of Debtor to Lender or any
liabilities incurred directly or indirectly under this
Agreement, or any offsets against any such indebtedness
or liabilities; (5) exercise or refrain from exercising
any rights against Debtor or others, or otherwise act or
refrain from acting; (6) settle or compromise any
indebtedness guaranteed or incurred; (7) subordinate the
payment of all or part of any indebtedness of Debtor to
Lender to the payment of any liabilities which may be due
Lender or others; (8) apply any sums paid by or for
account of Debtor to any indebtedness of Debtor to Lender
regardless of what indebtedness or liability of Debtor to
Lender remains unpaid and regardless of to which
indebtedness such sums were intended to be applied; (9)
release any one or more of the undersigned, any other
guarantor or any other party liable upon or for any
indebtedness or other obligation guaranteed and such
release will not affect the liability under this
Agreement of any of the undersigned or any other party
not so released; (10) add or release the primary or
secondary liability of principals, guarantors or other
parties; and/or (11) obtain additional collateral
security.
C. The undersigned waives: (1) any and all acceptance of
this Guaranty Agreement; (2) notice of the creation of
any indebtedness; (3) any presentment, demand for
payment, notice of default or non-payment, notice of
acceleration, notice of disposition of security, notice
of dishonor or protest to or upon any party and all other
notices whatsoever whether required or permitted by this
Guaranty Agreement, any other agreement, course of
dealing, usage of trade, course of performance and, to
the extent allowed, the law; (4) any exercise of any
remedy which the Lender now has or later acquires against
the Debtor or any other party; (5) any impairment of
collateral, including, but not limited to, the failure to
perfect, or maintain perfection of, a security interest
in collateral; and (6) any event, or any act or omission
of the Lender (except acts or omissions in bad faith)
which materially increases the scope of the undersigned's
risk as guarantor, including the manner of administration
of the loan and changes in the form or manner in which
any party does business or in their financial condition
and any notice of any such change.
D. This Guaranty Agreement shall be absolute, unconditional
and continuing guaranty of payment and not of collection
and shall be binding upon the undersigned, heirs or
successors of the undersigned, and the estate or estates
of the undersigned: (1) regardless of the death or
cessation of existence of any of the undersigned or of
any guarantor or any other party liable upon any
indebtedness or other obligation hereby guaranteed; (2)
irrespective of any defenses, claim or discharge
available to the Debtor under law or under any agreement
with the Lender; and (3) irrespective of any failure or
delay by the Lender to perfect or keep perfected any lien
or security interest in any collateral. This Guaranty
Agreement is an independent obligation which is
separately enforceable from the obligation of the Debtor.
E. All rights of the Lender are cumulative and not
alternative to other rights. Suit may be brought against
the undersigned or other parties liable, jointly and
severally, and against any one or more of them, and
against all or less than all, without impairing the
rights of the Lender, its successors or assigns, against
others of the undersigned. The Lender may settle with any
one of the undersigned or any other party for such sum or
sums as it may see fit and release such of the
undersigned or other parties from all further liability
to the Lender for such indebtedness without impairing the
right of the Lender to demand and collect the balance of
such indebtedness from others of the undersigned not so
released.
F. The Lender may assign this Agreement or any of its rights
and powers under it, with all or any part of the
indebtedness guaranteed, and may assign to any such
assignee any of the security for the indebtedness. In
the event of such assignment, the assignee shall have the
same rights and remedies as if originally named in this
Agreement in place of Lender, and the Lender shall
thereafter be fully discharged from all responsibility
with respect to any such indebtedness so assigned.
G. Unless expressly limited by specific writing as set forth
in this Guaranty Agreement, it is understood to be
unlimited in amount. If limited, it is understood the
limit means a fixed amount or percentage of any
indebtedness remaining after application of the actual
proceeds of the disposition of any security to any
unguaranteed portion of the indebtedness.
H. Until the indebtedness of the Debtor have been paid in
full, the undersigned agrees to provide to the Lender
from time to time upon demand such financial statements,
copies of tax returns, and other information as to the
undersigned as the Lender may reasonably required.
I. Any deposits or other sums credited by or due from the
Lender to the undersigned may be set off against any and
all liabilities of the undersigned to the Lender arising
under the terms of this Guaranty Agreement. The rights
granted by this paragraph shall be in addition to the
rights of the Lender under any statutory banker's lien or
common law right of offset.
J. Until the obligations of the Debtor have been paid in
full, the undersigned specifically waives all rights of
subrogation to the rights of the Lender, any claim to any
security or its value to which the lender has recourse,
and all rights of reimbursement or contribution from
other parties, whether principals or sureties,
accommodation parties or guarantors.
K. The undersigned may, only by written notice given to and
received by Lender, withdraw only from liability for
additional indebtedness of Debtor accepted by or incurred
to Lender after the time of receipt of such notice by
Lender. The liability and other agreements of the
undersigned shall not be otherwise affected but shall
continue until all indebtedness, including loan
commitments, existing at the time of the receipt of such
notice, and renewals or extensions of indebtedness to
which the undersigned consents, is fully paid. After any
such revocation, Lender may exercise any rights granted
in this Agreement without releasing the undersigned from
liability.
L. Notwithstanding the provisions of any note or obligation
to which this Guaranty Agreement applies, it is the
intention of the parties, and it is here provided, that a
Guarantor shall not be liable for interest charges in
excess of the maximum amount permitted under the law
applicable to this Guaranty Agreement.
M. The undersigned specifically waives any right to setoff
under 12 O.S. sec. 686, 15 0.S. sec. 341, or any like
statutes, and agree that the Lender may apply the actual
proceeds from the disposition of any security first to
any unguaranteed portion of the indebtedness. Any party
to this Guaranty Agreement has right to waive trial by
jury and waives all objections to venue in any action
instituted by the Lender arising out of this Guaranty
Agreement.
N. The undersigned waive, as of the date of this Guaranty
Agreement, any claim, as that term is defined in the
Federal Bankruptcy Code, which the undersigned might have
or acquire against the Debtor arising from the existence
or performance of the undersigned's obligations under
this Guaranty Agreement, and to that extent that the
undersigned is not a creditor of the Debtor. In addition
to the waiver of the status of creditor, it is agreed
that the indebtedness guaranteed under this Guaranty
Agreement excludes all portions of the indebtedness paid
by the Debtor during the period of time within one year
prior to the filing of any bankruptcy, reorganization or
insolvency proceedings by or against the Debtor. If any
payment made by the Debtor to the Lender is determined to
be avoidable under applicable state law or the Federal
Bankruptcy Code, to that extent, if demanded by the
Lender, this Guaranty Agreement is deemed to be
reinstated to include the amount within the indebtedness
under this Guaranty Agreement.
0. The undersigned, by signing below, acknowledge having
read this Guaranty Agreement, having reviewed it to the
extent desired with their legal counsel, and receiving a
copy of it and also receiving an explanation of any
questions. The undersigned also have read any cosigner
notice provided by Lender. The undersigned understand
that the undersigned may have to pay any indebtedness
or obligation covered by this Guaranty Agreement in the
event the Debtor fails or refuses to do so. The
undersigned also represent that they are aware of the
financial condition of Debtor and acknowledge a
responsibility to maintain a close watch on that
financial condition as long as this Guaranty Agreement is
outstanding and that they are not relying on the Lender
to provide information on the Debtor's financial
condition, now or in the future.
P. Any cause of action for a breach or enforcement of, or a
declaratory judgment respecting, this agreement or any
agreement related to the execution and delivery of this
agreement shall be commenced and maintained only in the
United States District Court for the Northern District of
Oklahoma or the applicable Oklahoma state trial court
sitting in Tulsa, Oklahoma and having subject matter
jurisdiction; provided, however, any action to foreclose
any deed of trust or real estate mortgage securing
finance or repayment shall be brought in any county
having mandatory venue thereof pursuant to the venue
statutes of the State of Oklahoma.
Q. This Guaranty Agreement constitutes the entire agreement
between the parties with respect to the obligations of the
undersigned and the rights of the Lender under this Guaranty
Agreement. This Guaranty Agreement cannot be amended except by an
agreement in writing signed by both the undersigned and the
Lender. No condition as to the effectiveness or enforcement of
this Guaranty Agreement exists except as stated in this Guaranty
Agreement. Regardless of any other provision of this Guaranty
Agreement to the contrary, and unless otherwise specifically
released or modified by this Guaranty Agreement, all other
obligations of the undersigned to Lender evidenced by a note,
loan agreement, guaranty or any other written agreement remain in
force and effect.
WITNESSES SIGNATURE(S) GUARANTOR SIGNATURE(S)
XXXXXXX X. XXXXX
Xxxxxxx X. Xxxxx
