Exhibit 10.70
GUARANTY
THIS GUARANTY, made this 16th day of January, 2001, by XXXXXX X. XXXXXXXX
(hereinafter referred to as the "Guarantor"), to and for the benefit of XXXXX
FARGO BANK WEST, N.A., TRUSTEE OF THE XXXXX X. XXXXXX ROLLOVER XXX (formerly
Norwest Bank Colorado, National Association, Trustee of the Xxxxx X. Xxxxxx
Rollover XXX) ("XXXXXX"), XXXX X. XXXXXXXXXXX ("XXXXXXXXXXX"), XXXXX X. XXXXXX
AND XXXX X. XXXXXX (COLLECTIVELY "XXXXXX"), and any successor holder of the
Notes more particularly referred to below (Xxxxxx, Xxxxxxxxxxx and Xxxxxx
hereinafter collectively referred to as the "Lender").
1.00 RECITALS
1.01 LOAN. OPEC Corp. and FutureOne, Inc., (hereinafter collectively
referred to as the "Borrower") has applied to Lender to amend and extend a loan
in the principal amount of ONE MILLION DOLLARS ($1,000,000.00) and has applied
to Xxxxxx and Ventimiglia for a new loan in the principal amount of THREE
HUNDRED THOUSAND DOLLARS ($300,000.00) (hereinafter collectively referred to as
the "Loan") to be evidenced by Borrower's Second Amendment and Note (hereinafter
referred to collectively as the "Note"), of even date herewith, secured by a
Security Agreement (hereinafter referred to as the "Security Agreement") of even
date therewith.
1.02 INDUCEMENT FOR GUARANTY. Lender is unwilling to make the Loan
unless Guarantor guarantees payment of the Note and performance by Borrower of
each and every term, covenant, condition, and agreement contained therein and in
the Security Agreement and under any and all other agreements executed by the
Borrower to or for the benefit of the Lender in connection with the Loan on the
part of Borrower to be kept, observed or performed. The Note, Security
Agreement, and such other agreements are hereinafter collectively referred to as
the "Loan Documents." Guarantor desires to give such guaranty in order to induce
Lender to make the Loan. Guarantor is a substantial shareholder in FutureOne,
Inc., and FutureOne, Inc., is the parent of OPEC Corp., and Guarantor has a
financial interest in the success of Borrower.
2.00 GUARANTY, WAIVER, AND CONSENTS
2.01 GUARANTY. Guarantor unconditionally and absolutely guarantees the
due and punctual payment of the principal of the Note, the interest thereon, and
any other money due or which may become due under the Loan Documents, and the
due and punctual performance and observance by Borrower of any other terms,
covenants, and conditions of the Loan Documents on the part of the Borrower to
be kept, observed, or performed, whether according to the present terms thereof,
at any earlier or accelerated date or dates as provided therein, or pursuant to
any extension of time or to any change or changes in the terms, covenants, and
conditions thereof (other than an increase in the principal of, or interest on,
the Note), now or at any time hereafter made or granted.
2.02 WAIVER AND CONSENTS. Guarantor waives diligence, presentment,
protest, notice of dishonor, demand for payment, extension of time for payment,
notice of acceptance of this Guaranty, nonpayment at maturity, and indulgences
and notice of every kind, and consents to any and all forbearances and
extensions of the time for payment of the Note or performance under the Loan
Documents, and to any and all changes in the terms, covenants, and conditions of
the Loan Documents hereafter made or granted, and to any and all substitutions,
exchanges, or releases of all or any part of the collateral therefor. It is the
intention hereof that Guarantor shall remain liable hereunder until the full
amount of the principal of the Note, with interest, and any other sums due or to
become due under the Loan Documents, shall have been fully paid, and the terms,
covenants and conditions of the Loan Documents shall have been fully kept,
observed, and performed by Borrower notwithstanding any act, omission, or thing
which might otherwise operate as a legal or equitable discharge of Guarantor.
3.00 AGREEMENTS AND COVENANTS OF GUARANTOR
3.01 NO SUBROGATION. Guarantor agrees that he shall have no right of
subrogation whatsoever with respect to the Loan Documents, or to original moneys
due and unpaid thereon, or any collateral securing the same, unless and until
Lender shall have received payment in full of all sums due under the Loan
Documents.
3.02 ENFORCEMENT. This Guaranty may be enforced by Lender without
first resorting to or exhausting any other security or collateral and without
first having recourse to the Note or any of the remedies provided by the Loan
Documents through foreclosure proceedings or otherwise. Nothing herein
contained, however, shall prevent Lender from suing on the Note, or foreclosing
the Security Agreement, or from exercising any other rights under the Loan
Documents. If such foreclosure or other remedy is availed of, only the net
proceeds therefrom, after deduction of all charges and expenses of every kind
and nature whatsoever, shall be applied in reduction of the amount due on the
Note and/or the other Loan Documents. Lender shall not be required to institute
or prosecute proceedings to recover any deficiency as a condition of payment
hereunder or enforcement hereof. At any sale of the security or collateral for
the indebtedness or any part thereof, whether by foreclosure or otherwise,
Lender may at its discretion purchase all or any part of such collateral so sold
or offered for sale for its own account and may apply the amount bid therefor
against the balance due it pursuant to the terms of the Note and/or the other
Loan Documents.
3.03 EXPENSES OF ENFORCEMENT. ln the event this Guaranty is placed in
the hands of an attorney for enforcement, Guarantor will reimburse Lender for
all expenses incurred in connection therewith, including reasonable attorney's
fees.
4.00 MISCELLANEOUS
4.01 SUCCESSORS AND ASSIGNS. This Guaranty shall inure to the benefit
and may be enforced by Lender, and any subsequent holder of the Note and/or
beneficiary under the Security Agreement and shall be binding upon and
enforceable against the legal representatives, heirs, and assigns of Guarantor.
4.02 NO ALTERATION OF OTHER DOCUMENTS. No provision of this Guaranty
shall be construed to alter or amend the Loan Documents, or to relieve Borrower
of any duties or obligations under the Loan Documents.
4.03 WORD MEANINGS. As used herein the singular shall include the
plural, the plural the singular, and the use of any gender shall be applicable
to all genders.
4.04 JOINT OBLIGATION. In the event that more than one person or party
shall execute this Guaranty as the Guarantor herein, this agreement shall bind
all persons and parties jointly and severally.
4.05 COLORADO LAW; VENUE. This Guaranty and the terms and provisions
hereof shall be governed by and construed according to the laws of the State of
Colorado, without regard to principles of conflict of laws. Any suit hereon may
be brought and prosecuted in the courts of El Paso County, Colorado.
4.06 REMEDIES CUMULATIVE. Guarantor hereby agrees with Lender that all
rights, remedies, and recourses afforded to Lender by reason of this Guaranty,
or otherwise, are separate and cumulative and may be pursued separately,
successively or concurrently, as occasion therefor shall occur, and are
nonexclusive and shall in no way limit or prejudice any other legal or equitable
right, remedy or recourse which Lender may have.
4.07 CAPTIONS. The captions herein are for reference purposes only.
2
WITNESS the execution hereof by the Guarantor and the affixing of the
Guarantor's seal.
GUARANTOR:
/s/ Xxxxxx X. Xxxxxxxx
------------------------------------ (SEAL)
Xxxxxx X. Xxxxxxxx
