COMMERCIAL GUARANTY
Borrower:
Padko International, Incorporated (TIN: 00-0000000);
Chemical and Equipment Specialties, Inc. (TIN: 00-0000000);
Xxxx'x Technology, Inc. (TIN: 00-0000000);
Plainsman Technology, Inc. (TIN: 00-0000000); and
Esses, Inc. (TIN: 00-0000000)
00 Xxxxx 0xx
Xxxxxx, XX 00000
Guarantor:
Xxxxx X. Xxxxx
0000 Xxxxxxxxxx Xx
Xxxxxx, XX 00000
Lender:
Legacy Bank
Legacy Bank Duncan North Branch
XX Xxx 0000
0000 X. Xxx 00
Xxxxxx, XX 00000-0000
AMOUNT OF GUARANTY. The amount of this Guaranty is Unlimited.
CONTINUING UNLIMITED GUARANTY. For good and valuable consideration, and for the
purpose of enabling Padko International, Incorporated; Chemical and Equipment
Specialties, Inc.; Xxxx'x Technology, Inc.; Plainsman Technology, Inc.; and
Esses, Inc. ("Borrower"), or either or any of them, to obtain or renew loans,
credit or other financial accommodation from Legacy Bank ("Lender"), Xxxxx X.
Xxxxx ("Guarantor") absolutely and unconditionally (1) guarantees and promises
to pay to Lender that Borrower will fully and promptly pay and discharge in
legal tender of the United States of America all of the indebtedness (as that
term is defined below); (2) agrees, without the Lender first having to proceed
against Borrower or any other party liable or to liquidate any security or
Collateral, to pay on demand all sums due and to become due to Lender from
Borrower, and all losses, costs, attorney fees or expenses which may be suffered
or incurred by Lender by reason of Borrower's default or the default of
Guarantor; (3) agrees to be bound by and on demand to pay any deficiency
established by a sale of Collateral held by Lender, with or without notice to
the Guarantor; and (4) further agrees that liability hereunder will not be
affected or impaired by any failure, neglect or omission by Lender to protect in
any manner, the collection of the indebtedness or the Collateral given
therefore, and regardless of whether the Lender fails or omits to seek a
deficiency against Borrower. Under this Guaranty, the liability of Guarantor is
unlimited and the obligations of Guarantor are continuing.
INDEBTEDNESS GUARANTEED. The indebtedness guaranteed by this Guaranty includes
any and all of Borrower's indebtedness to Lender and is used in the most
comprehensive sense and means and includes any and all of Borrower's
liabilities, obligations and debts to Lender, now existing or hereinafter
incurred or created, including, without limitation, all loans, advances,
interest, costs, debts, overdraft indebtedness, credit card indebtedness, lease
obligations, other obligations, and liabilities of Borrower, or any of them, and
any present or future judgments against Borrower, or any of them; and whether
any such indebtedness is voluntarily or involuntarily incurred, due or not due,
absolute or contingent, liquidated or unliquidated, determined or undetermined;
whether Borrower may be liable individually or jointly with others, or primarily
or secondarily, or as guarantor or surety; whether recovery on the indebtedness
may be or may become barred or unenforceable against Borrower for any reason
whatsoever; and whether the indebtedness arises from transactions which may be
voidable on account of infancy, insanity, ultra xxxxx, or otherwise.
DURATION OF GUARANTY. This Guaranty will take effect when received by Lender
without the necessity of any acceptance by Lender, or any notice to Guarantor or
to Borrower, and will continue in full force until all indebtedness incurred or
contracted before receipt by Lender of any notice of revocation shall have been
fully and finally paid and satisfied and all of Guarantor's other obligations
under this Guaranty shall have been performed in full. If Guarantor elects to
revoke this Guaranty, Guarantor may only do so in writing. Guarantor's written
notice of revocation must be mailed to Lender, by certified mail, at Lender's
address listed above or such other place as Lender may designate in writing.
Written revocation of this Guaranty will apply only to advances or new
indebtedness created after actual receipt by Lender of Guarantor's written
revocation. For this purpose and without limitation, the term "new indebtedness"
does not include indebtedness which at the time of notice of revocation is
contingent, unliquidated, undetermined or not due and which later becomes
absolute, liquidated, determined or due. This Guaranty will continue to bind
Guarantor for all indebtedness incurred by Borrower or committed by Lender prior
to receipt of Guarantor's written notice of revocation, including any
extensions, renewals, substitutions or modifications of the indebtedness. All
renewals, extensions, substitutions, and modifications of the indebtedness
granted after Guarantor's revocation, are contemplated under this Guaranty and,
specifically will not be considered to be new indebtedness. This Guaranty shall
bind Guarantor's estate as to indebtedness created both before and after
Guarantor's death or incapacity, regardless of Lender's actual notice of
Guarantor's death. Subject to the foregoing, Guarantor's executor or
administrator or other legal representative may terminate this Guaranty in the
same manner in which Guarantor might have terminated it and with the same
effect. Release of any other guarantor or termination of any other guaranty of
the indebtedness shall not affect the liability of Guarantor under this
Guaranty. A revocation Lender receives from anyone or more Guarantors shall not
affect the liability of any remaining Guarantors under this Guaranty. It is
anticipated that fluctuations may occur in the aggregate amount of indebtedness
covered by this Guaranty, and Guarantor specifically acknowledges and agrees
that reductions in the amount of indebtedness, even to zero dollars ($0.00),
prior to Guarantor's written revocation of this Guaranty shall not constitute a
termination of this Guaranty. This Guaranty is binding upon Guarantor and
Guarantor's heirs, successors and assigns so long as any of the guaranteed
indebtedness remains unpaid and even though the indebtedness guaranteed may from
time to time be zero dollars ($0.00).
GUARANTOR'S AUTHORIZATION TO LENDER. Guarantor authorizes Lender, either before
or after any revocation hereof, without notice or demand and without lessening
Guarantor's liability under this Guaranty, from time to time: (A) prior to
revocation as set forth above, to make one or more additional secured or
unsecured loans to Borrower, to lease equipment or other goods to Borrower, or
otherwise to extend additional credit to Borrower; (B) to alter, compromise,
renew, extend, accelerate, or otherwise change one or more times the time for
payment or other terms of the indebtedness or any part of the indebtedness,
including increases and decreases of the rate of interest on the indebtedness;
extensions may be repeated and may be for longer than the original loan term;
(C) to take and hold security for the payment of this Guaranty or the
indebtedness, and exchange, enforce, waive, subordinate, fail or decide not to
perfect, and release any such security, with or without the substitution of new
collateral; (D) to release, substitute, agree not to xxx, or deal with anyone or
more of Borrower's sureties, endorsers, or other guarantors on any terms or in
any manner Lender may choose; (E) to determine how, when and what application of
payments and credits shall be made on the indebtedness (F) to apply such
security and direct the order or manner of sale thereof, including without
limitation, any nonjudicial sale permitted by the terms of the controlling
security agreement or deed of trust, as Lender in its discretion may determine;
(G) to sell, transfer, assign or grant participations in all or any part of the
indebtedness; (H) to assign or transfer this Guaranty in whole or in part; (I)
to exercise or refrain from exercising any rights against Borrower or others, or
otherwise act or refrain from acting; (J) to settle or compromise any
indebtedness; and (K) to subordinate the payment of all or any part of any
indebtedness of Borrower to Lender to the payment of any liabilities which maybe
due Lender or others.
GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and warrants to
Lender that (A) no representations or agreements of any kind have been made to
Guarantor which would limit or quality In any way the terms of this Guaranty;
(B) this Guaranty is executed at Borrower's request and not at the request of
Lender; (C) Guarantor has full power, right and authority to enter into this
Guaranty; (D) the provisions of this Guaranty do not conflict with or result in
a default under any agreement or other instrument binding upon Guarantor and do
not result in a violation of any law, regulation, court decree or order
applicable to Guarantor; (E) Guarantor has not and will not, without the prior
written consent of Lender, sell, lease, assign, encumber, hypothecate, transfer,
or otherwise dispose of all or substantially all of Guarantor's assets, or any
interest therein; (F) upon Lender's request, Guarantor will provide to Lender
financial and credit information in form acceptable to Lender, and all such
financial information which currently has been, and all future financial
information which will be provided to Lender is and will be true and correct in
all material respects and fairly present Guarantor's financial condition as of
the dates the financial information is, provided; (G) no material adverse change
has occurred in Guarantor's financial condition since the date of the most
recent financial statements provided to Lender and no event has occurred which
may materially adversely affect Guarantor's financial condition; (H) no
litigation, claim, investigation, administrative proceeding or similar action
(including those for unpaid taxes) against Guarantor is pending or threatened;
(I) Lender has made no representation to Guarantor as to the creditworthiness of
Borrower; and (J) Guarantor has established adequate means of obtaining from
Borrower on a continuing basis information regarding Borrower's financial
condition. Guarantor agrees to keep adequately informed from such means of any
facts, events, or circumstances which might in any way affect Guarantor's risks
under this Guaranty, and Guarantor further agrees that, absent a request for
information, Lender shall have no obligation to disclose to Guarantor any
information or documents acquired by Lender in the course of its relationship
with Borrower.
GUARANTOR'S WAIVERS. Except as prohibited by applicable law, Guarantor waives
any right to require Lender (A) to continue lending money or to extend other
credit to Borrower; (B) to make any presentment, protest, demand, or notice of
any kind, including notice of any nonpayment of the indebtedness or of any
nonpayment related to any collateral, or notice of any action or nonaction on
the part of Borrower, Lender, any surety, endorser, or other guarantor in
connection with the indebtedness or in connection with the creation of new or
additional loans or obligations; (C) to resort for payment or to proceed
directly or at once against any person, including Borrower or any other
guarantor; (D) to proceed directly against or exhaust any collateral held by
Lender from Borrower, any other guarantor, or any other person; (E) to give
notice of the terms, time, and place of any public or private sale of personal
property security held by Lender from Borrower or to comply with any other
applicable provisions of the Uniform Commercial Code; (F) to pursue any other
remedy with Lender's power; or (G) to commit any act or omission of any kind, or
at any time, with respect to any matter whatsoever.
In addition to the waivers set forth above, if now or hereafter Borrower is or
shall become insolvent and the indebtedness shall not at all times until paid be
fully secured by collateral pledged by Borrower, Guarantor hereby forever waives
and gives up in favor of Lender and Borrower, and Lender's and Borrower's
respective successors, any claim or right to payment Guarantor may now have or
hereafter have or acquire against Borrower, by subrogation or otherwise, so that
at no time shall Guarantor be or become a "creditor" of Borrower within the
meaning of 11 U.S.C. section 547(b), or any successor provision of the Federal
bankruptcy laws.
Guarantor also waives any and all rights or defenses arising by reason of (A)
any "one action" or "anti-deficiency" law or any other law which may prevent
Lender from bringing any action, including a claim for deficiency, against
Guarantor, before or after Lender's commencement or completion of any
foreclosure action, either judicially or by exercise of a power of sale; (B) any
election of remedies by Lender which destroys or otherwise adversely affects
Guarantor's subrogation rights or Guarantor's rights to proceed against Borrower
for reimbursement, including without imitation, any loss of rights Guarantor may
suffer by reason of any law limiting qualifying, or discharging the
indebtedness; (C) any disability or other defense of Borrower, of any other
guarantor, or of any other person, or by reason of the cessation of Borrower's
liability from any cause whatsoever, other than payment in full in legal tender,
of the indebtedness; (D) any right to claim discharge of the indebtedness on the
basis of impairment of any collateral for the indebtedness; (E) any statute of
limitations, if at any time any action or suit brought by Lender against
Guarantor is commenced, there is outstanding indebtedness of Borrower to Lender
which is not barred by any applicable statute of limitations; (F) any defense
given to guarantors at law or in equity other than actual payment and
performance of the indebtedness; or (G) by any failure, neglect, or omission by
Lender to perfect in any manner the collection of the indebtedness or the
security given therefor, including the failure or omission to seek a deficiency
judgment against Borrower. If payment is made by Borrower, whether voluntarily
or otherwise, or by any third party, on the indebtedness and thereafter Lender
is forced to remit the amount of that payment to Borrower's trustee in
bankruptcy or to any similar person under any federal or state bankruptcy law
for the relief of debtors, the indebtedness shall be considered unpaid for the
purpose of the enforcement of this Guaranty.
Guarantor further waives and agrees not to assert or claim at any time any
deductions to the amount guaranteed under this Guaranty for any claim of setoff,
counterclaim, counter demand, recoupment or similar right, whether such claim,
demand or right may be asserted by the Borrower, the Guarantor, or both.
GUARANTOR'S UNDERSTANDING WITH RESPECT TO WAIVERS. Guarantor warrants and agrees
that each of the waivers set forth above is made with Guarantor's full knowledge
of its significance and consequences and that, under the circumstances, the
waivers are reasonable and not contrary to public policy or law. If any such
waiver is determined to be contrary to any applicable law or public policy, such
waiver shall be effective only to the extent permitted by law or public policy.
SUBORDINATION OF BORROWER'S DEBTS TO GUARANTOR. Guarantor agrees that the
indebtedness of Borrower to Lender, whether now existing or hereafter created,
shall be superior to any claim that Guarantor may now have or hereafter acquire
against Borrower, whether or not Borrower becomes insolvent, except for claims
by Guarantor of reasonable compensation under the employment agreement with
Borrower, a copy of which Guarantor has delivered to Lender herewith. Guarantor
hereby expressly subordinates any claim Guarantor may have against Borrower,
upon any account whatsoever, to any claim that Lender may now or hereafter have
against Borrower. In the event of insolvency and consequent liquidation of the
assets of Borrower, through bankruptcy, by an assignment for the benefit of
creditors, by voluntary liquidation, or otherwise, the assets of Borrower
applicab1e to the payment of the claims of both Lender and Guarantor shall be
paid to Lender and shall be first applied by Lender to the indebtedness of
Borrower to Lender. Guarantor does hereby assign to Lender all claims which it
may have or acquire against Borrower or against any assignee or trustee in
bankruptcy of Borrower; provided however, that such assignment shall be
effective only for the purpose of assuring to Lender full payment in legal
tender of the indebtedness. If Lender so requests, any notes or credit
agreements now or hereafter evidencing any debts or obligations of Borrower to
Guarantor shall be marked with a legend that the same are subject to this
Guaranty and shall be delivered to Lender. Guarantor agrees, and Lender is
hereby authorized, in the name of Guarantor, from time to time to execute and
file financing statements and continuation statements and to execute such other
documents and to take such other actions as Lender deems necessary or
appropriate to perfect, preserve and enforce its rights under this Guaranty.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Guaranty:
Amendments. This Guaranty, together with any Related Documents, constitutes the
entire understanding and agreement of the parties as to the matters set forth in
this Guaranty. All prior and contemporaneous representations and discussions
concerning such matters either are included in this document or do not
constitute an aspect of the agreement of the parties. Except as may be
specifically set forth in this Guaranty, no conditions precedent or subsequent,
of any kind whatsoever, exist with respect to Guarantor's obligations under this
Guaranty. No alteration of or amendment to this Guaranty shall be effective
unless given in writing and signed by the party or parties sought to be charged
or bound by the alteration or amendment.
Attorneys' Fees; Expenses. Guarantor agrees to pay upon demand all of Lender's
costs and expenses, including Lender's reasonable attorneys' fees and Lender's
legal expenses, incurred in connection with the enforcement of this Guaranty.
Lender may hire or pay someone else to help enforce this Guaranty, and Guarantor
shall pay the costs and expenses of such enforcement. Costs and expenses include
Lender's attorneys' fees and legal expenses whether or not there is a lawsuit,
including attorneys' fees and legal expenses for bankruptcy proceedings
(including efforts to modify or vacate any automatic stay or injunction),
appeals, and any anticipated post-judgment collection services. Guarantor also
shall pay all court costs and such additional fees as may be directed by the
court.
Caption Headings. Caption headings in this Guaranty are for convenience purposes
only and are not to be used to interpret or define the provisions of this
Guaranty.
Governing Law. This Guaranty will be governed by, construed and enforced in
accordance with federal law and the laws of the State of Oklahoma. This Guaranty
has been accepted by Lender in the State of Oklahoma.
Integration. Guarantor further agrees that Guarantor has read and fully
understands the terms of this Guaranty; Guarantor has had the opportunity to be
advised by Guarantor's attorney with respect to this Guaranty; the Guaranty
fully reflects Guarantor's Intentions and parol evidence is not required to
interpret the terms of this Guaranty. Guarantor hereby indemnifies and holds
Lender harmless from all losses, claims, damages, and costs (including Lender's
attorneys' fees) suffered or incurred by Lender as a result of any breach by
Guarantor of the warranties, representations and agreements of this paragraph.
Interpretation. In all cases where there is more than one Borrower or Guarantor,
then all words used in this Guaranty in the singular shall be deemed to have
been used in the plural where the context and construction so require; and where
there is more than one Borrower named in this Guaranty or when this Guaranty is
executed by more than one Guarantor, the words "Borrower" and "Guarantor"
respectively shall mean all and any one or more of them. The words "Guarantor",
"Borrower", and "Lender" include the heirs, successors, assigns, and transferees
of each of them. If a court finds that any provision of this Guaranty is not
valid or should not be enforced, that fact by itself will not mean that the rest
of this Guaranty will not be valid or enforced. Therefore, a court will enforce
the rest of the provisions of this Guaranty even if a provision of this Guaranty
may be found to be invalid or unenforceable. If any one or more of Borrower or
Guarantor are corporations, partnerships, limited liability companies, or
similar entities, it is not necessary for Lender to inquire into the powers of
Borrower or Guarantor or of the officers, directors, partners, managers, or
other agents acting or purporting to act on their behalf, and any Loan
indebtedness made or created in reliance upon the professed exercise of such
powers shall be guaranteed under this Guaranty.
Notices. To the extent permitted by applicable law, any notice required to be
given under this Guaranty shall be given in writing, and, except for revocation
notices by Guarantor, shall be effective when actually delivered, when actually
received by telefacsimile (unless otherwise required by law), when deposited
with a nationally recognized overnight courier, or, if mailed, when deposited in
the United States mail, as first class, certified or registered mail postage
prepaid, directed to the addresses shown near the beginning of this Guaranty.
All revocation notices by Guarantor shall be in writing end shall be effective
upon delivery to Lender as provided in the section of this Guaranty entitled
"DURATION OF GUARANTY". Any party may change its address for notices under this
Guaranty by giving formal written notice to the other parties, specifying that
the purpose of the notice is to change the party's address. For notice purposes,
Guarantor agrees to keep Lender informed at a11 times of Guarantor's current
address. To the extent permitted by applicable law, if there is more than one
Guarantor, any notice given by Lender to any Guarantor is deemed to be notice
given to all Guarantors.
No Waiver by Lender. Lender shall not be deemed to have waived any rights under
this Guaranty unless such waiver is given in writing and signed by Lender. No
delay or omission on the part of Lender in exercising any right shall operate as
a waiver of such right or any other right. A waiver by Lender of a provision of
this Guaranty shall not prejudice or constitute a waiver of Lender's right
otherwise to demand strict compliance with that provision or any other provision
of this Guaranty. No prior waiver by Lender, nor any course of dealing between
Lender and Guarantor, shall constitute a waiver of any of Lender's rights or of
any of Guarantor's obligations as to any future transactions. Whenever the
consent of Lender is required under this Guaranty, the granting of such consent
by Lender in any instance shall not constitute continuing consent to subsequent
instances where such consent is required and in all cases such consent may be
granted or withheld in the sole discretion of Lender.
Successors and Assigns. Subject to any limitations stated in this Guaranty on
transfer of Guarantor's Interest, this Guaranty shall be binding upon and inure
to the benefit of the parties, their successors and assigns.
DEFINITIONS. The following capitalized words and terms shall have the following
meanings when used in this Guaranty. Unless specifically stated to the contrary,
all references to dollar amounts shall mean amounts in lawful money of the
United States of America. Words and terms used in the plural singular shall
include the plural, and the plural shall include the singular, as the context
may require. Words and terms not otherwise defined in this Guaranty shall have
the meanings attributed to such terms in the Uniform Commercial Code:
Borrower. The word "Borrower" means Padko International, Incorporated; Chemical
and Equipment Specialties, Inc.; Xxxx'x Technology, Inc.; Plainsman Technology,
Inc.; and Esses, Inc., and all other persons and entities signing the Note in
whatever capacity.
Collateral. The word "Collateral" means all property and assets granted as
collateral security for any indebtedness, whether real or personal property,
whether granted directly or indirectly, whether granted now or in the future,
and whether granted in the form of a security interest, mortgage, collateral
mortgage, deed of trust, assignment, pledge, crop pledge, chattel mortgage,
collateral chattel mortgage, chattel trust, factor's lien, equipment trust,
conditional sale, trust receipt, lien, charge, lien or title retention contract,
lease or consignment intended as a security device, or any other security or
lien interest whatsoever, whether created by law, contract, or otherwise.
Guarantor. The word "Guarantor" means each and every person or entity signing
this Guaranty, including without limitation Xxxxx X. Xxxxx.
Guaranty. The word "Guaranty" means the guaranty from Guarantor to Lender,
including without limitation a guaranty of all or part of the Note.
Indebtedness. The word "Indebtedness" means Borrower's Indebtedness to Lender as
more particularly described in this Guaranty.
Lender. The word "Lender" means Legacy Bank, its successors and assigns.
Related Documents. The words "Related Documents" mean all promissory notes,
credit agreements, loan agreements, environmental agreements, guaranties,
security agreements, mortgages, deeds of trust, security deeds, collateral
mortgages, and all other instruments, agreements and documents, whether now or
hereafter existing, executed in connection with the indebtedness.
GUARANTOR ACKNOWLEDGES HAVING READ ALL THE PROVISIONS OF THIS COMMERCIAL
GUARANTY AND GUARANTOR AGREES TO ITS TERMS.
THIS COMMERCIAL GUARANTY IS DATED JANUARY 23, 2001.
Guarantor:
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
3109 Stagestand
Xxxxxx, Xxxxxxxx 00000
