Exhibit 10.4 (e)
GUARANTY
This Guaranty ("Guaranty"), dated as of March 7th, 2005, is made by Xxxxxx
X. Xxxxxx ("Guarantor"), in favor of Xx. Xxxxxxx X. Xxxxxxxx ("Beneficiary").
WHEREAS, BOK Financial Corporation, an Oklahoma corporation ("BOKF") and
Beneficiary have entered into that certain 409A Deferred Compensation Agreement
dated December 31, 2004 (the "Agreement"); and
WHEREAS, BOKF is an affiliate of Guarantor; and Guarantor will indirectly
benefit from the Agreement; and
WHEREAS, as an inducement to Beneficiary to defer compensation under the
Agreement, Guarantor has agreed to provide this Guaranty; and
WHEREAS, Guarantor has agreed to execute and deliver this Guaranty with
respect to certain BOKF obligations under the Agreement;
NOW THEREFORE, in consideration of the premises, Guarantor hereby agrees as
follows:
1. Guaranty. Guarantor hereby absolutely and unconditionally guarantees the
timely payment when due of BOKF's obligations arising under the Agreement
as they relate to compensation that is deferred pursuant to the Agreement
("Obligations"). In the event BOKF fails to satisfy any of the Obligations,
within ten (10) days after receiving written notice from Beneficiary,
Guarantor shall pay or perform such
Obligations. This Guaranty may be enforced by Beneficiary
without the necessity at any time of resorting to or exhausting any other
security or collateral. This Guaranty shall be limited in amount to
the aggregate amount of $10,000,000 including interest and any applicable
collection costs.
2. Effectiveness. This Guaranty is effective as of the date set forth above
and is a continuing guaranty which shall remain in full force and effect
throughout the term of the Agreement, including any extensions or renewals
thereof, until Guarantor has irrevocably paid in full all amounts due and
owing or all of the Obligations under the Agreement are completely
fulfilled.
3. Waivers. Guarantor waives any right to require as a condition to its
Obligations hereunder any of the following should Beneficiary seek to
enforce the obligations of Guarantor:
(i) presentment, demand for payment, notice of dishonor or non-payment,
protest, notice of protest, or any similar type of notice;
(ii) any suit or other action be brought against, or any notice of default
or other similar notice be given to, or any demand be made upon BOKF
or any other person or entity;
(iii)notice of acceptance of this Guaranty, of the creation or existence
of the Obligations, and/or any action by Beneficiary in reliance
hereon or in connection herewith;
(iv) evidence of entering into the Agreement between BOKF and Beneficiary,
and/or any amendments, supplements or modifications thereto, or any
waiver of consent under the Agreement, including of the Obligations;
(v) notice of any increase, reduction or rearrangement of BOKF's
Obligations under the Agreement, or any extension of time for payment
of any amounts due Beneficiary under the Agreement; and
(vi) the right to require, substantively or procedurally, that a judgment
be rendered against BOKF or any other person or entity, or BOKF or any
other person or entity be joined in any action against the Guarantor.
4. Assignment. Guarantor shall not assign its duties hereunder without the
prior written consent of Beneficiary. This Guaranty shall be binding upon
and inure to the benefit of the parties hereto and their respective
successors, permitted assigns, and legal representatives.
5. Notice. All demands, notices or other communications to be given to any
party to another must be in writing and shall be deemed to have been given
when delivered personally or otherwise actually received or on the third
(3rd) day after being deposited in the United States mail if registered or
certified, postage prepaid, or one (1) day after delivery to a nationally
recognized overnight courier service, fee prepaid, return receipt
requested, and addressed as follows:
--------------------------------- -------------------------------------------
Guarantor's Name and Address Beneficiary's Name and Address
--------------------------------- -------------------------------------------
Xxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxxxx
6733 South Yale 0000 X. 00xx Xxxxxx
Xxxxx, XX 00000 Wellington South
Phone: 000-000-0000 Xxxxx, Xxxxxxxx 00000
Fax: 000-000-0000 Phone: (000) 000-0000
Fax: (000) 000-0000
--------------------------------- -------------------------------------------
With a copy to:
--------------------------------- -------------------------------------------
Xxxxxxxx Xxxxxxx
Old City Hall
000 Xxxx Xxxxxx Xxxxxx
Xxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
--------------------------------- -------------------------------------------
Or such other addresses as they may change from time by a party giving prior
written notice of such change to the others.
6. Applicable Law. This Guaranty is deemed executed and delivered in the County
of Tulsa, State of Oklahoma and shall be governed by and construed in accordance
with
the laws of the State of Oklahoma. Wherever possible, each provision of
this Guaranty shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provisions of this Guaranty shall be prohibited
by or invalid under such law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or this Guaranty.
7. Effect of Certain Events. Guarantor agrees that its liability hereunder will
not be released, reduced, impaired or affected by the occurrence of any one or
more of the following events:
(i) the insolvency, bankruptcy, reorganization, or disability of BOKF;
(ii) the renewal, consolidation, extension, modification or amendment from
time to time of the Agreement;
iii) the failure, delay, waiver, or refusal by Beneficiary to exercise any
right or remedy held by Beneficiary with respect to the Agreement;
(iv) the sale, encumbrance, transfer or other modification of the ownership
of BOKF or the change in the financial condition or management of
BOKF; or
(v) the settlement or compromise of any of the Obligations.
8. Representations and Warranties. Guarantor hereby represents and warrants
that this Guaranty constitutes the legal, valid and binding obligation of
Guarantor enforceable against Guarantor in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other similar laws and to general principles of equity.
9. Subrogation. Until all amounts which may be or become payable under the
Agreement have been irrevocably paid in full and/or all Obligations fully
and finally satisfied, Guarantor shall not by virtue of this Guaranty be
subrogated to any rights of BOKF or claim in competition with Beneficiary
against BOKF in connection with any mater relating to or arising from the
Obligations or this Guaranty. If any amount shall be paid to Guarantor on
account of such subrogation rights at any time before all of the
Obligations have been irrevocably paid in full and/or all Obligations fully
and finally satisfied, such amounts shall be held in trust for the benefit
of Beneficiary and shall promptly be paid to Beneficiary to be applied to
the Obligations.
10. Amendment. No term or provision of this Guaranty shall be amended,
modified, altered, waived, supplemented or terminated unless first agreed
to by Guarantor and Beneficiary and then set forth in a written amendment
to this Guaranty.
11. Counterparts. This Guaranty may be executed in any number of counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one document.
12. Entire Agreement. This Guaranty embodies the entire agreement and
understanding between Guarantor and beneficiary regarding payment of the
Obligation under the
Agreement and supersedes all prior agreements and understandings relating
to the subject matter hereof.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty effective as of the
date first herein written.
GUARANTOR
/s/ Xxxxxx X. Xxxxxx
___________________________
Xxxxxx X. Xxxxxx