GUARANTY AGREEMENT
Date of Agreement
October 16, 1997
DEBTOR NAME AND ADDRESS:
"XXXX X. XXXXXXXXX #J-1 TRUST"
P. O. XXX 000
XXXXXXXX XXXX, XX 00000-0000
LENDER NAME AND ADDRESS:
STILLWATER NATIONAL BANK
AND TRUST COMPANY
0000 XXXXXXXXX XXXX., XXXXX 000
XXXXXXXX XXXX, XX 00000
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:
(1) 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,
reasonable 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 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 to 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 unless debtor directs
the application of such payment; (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 and 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 of the
indebtedness 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.
NOTWITHSTANDING ANY PROVISION CONTAINED IN THIS GUARANTY TO
THE CONTRARY, THIS GUARANTY IS LIMITED TO DEBTORS INDEBTEDNESS
TO LENDER ARISING UNDER THAT PROMISSORY NOTE DATED OCTOBER
___, 1997, IN THE PRINCIPAL AMOUNT OF $__.
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 require.
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 o
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, 150.S sec. 341, or any like statutes.
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.
O. 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. This Guaranty and the obligations evidenced in it are to be
construed and governed by the laws of the state indicated in
the address of Lender shown above.
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 SIGNATURES:
Signed and sworn to before me on
By
Notary Public
My commission expires:
GUARANTOR SIGNATURES:
Xxxx X. Xxxxxx
