GUARANTY
GUARANTY dated as of this 29th day of August,
1996, by NEWPARK RESOURCES, INC., a Delaware
corporation ("Guarantor"), for the benefit of
XXXXXX FINANCIAL LEASING, INC., a Delaware
corporation ("Xxxxxx").
RECITALS:
WHEREAS, Newpark Shipbuilding and Repair,
Inc., a Texas corporation ("Borrower"), has
entered into a certain Credit Agreement of even
date herewith (as the same may hereafter be
amended, supplemented or otherwise modified from
time to time, the "Credit Agreement") with Xxxxxx;
and
WHEREAS, Borrower has received, and may
hereafter receive, loans and other financial
accommodations from Xxxxxx under the Credit
Agreement, as a result of which it has incurred,
and expects simultaneously with the delivery of
this Agreement to, and will hereafter, incur,
"Obligations" (as that term is defined in the
Credit Agreement) to Xxxxxx; and
WHEREAS, Newpark Shipholding Texas, L.P., a
wholly owned Subsidiary of Guarantor
("Shipholding"), has entered into a certain
Agreement for Purchase and Sale of Assets dated as
of August 29, 1996, pursuant to which Shipholding
will sell to Borrower, and Borrower will purchase
from Shipholding, certain real and personal
property; and
WHEREAS, Borrower intends to use the proceeds
of the loans extended by Xxxxxx to Borrower under
the Credit Agreement to finance a portion of the
purchase price of certain assets, including,
without limitation, certain of the assets acquired
from Shipholding; and
WHEREAS, Borrower will not be able to
purchase the assets from Shipholding but for the
extension of the loans by Xxxxxx to Borrower; and
WHEREAS, Guarantor acknowledges that, as the
owner, directly and indirectly, of all of the
equity interests in Shipholding, it will receive
substantial direct and indirect benefits by reason
of the making of loans to Borrower as provided in
the Credit Agreement; and
WHEREAS, one of the conditions precedent to
the obligation of Xxxxxx to extend loans to
Borrower is the execution by Guarantor of this
Guaranty and the performance by Guarantor of its
obligations hereunder;
NOW, THEREFORE, in consideration of the
premises and in order to induce Xxxxxx to make the
loans under the Credit Agreement and for other
good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged,
Guarantor hereby agrees with Xxxxxx, as follows:
1. Incorporation of Recitals; Defined
Terms. The foregoing recitals are incorporated
herein by this reference. Terms that are
capitalized but which are not defined herein shall
have the meanings ascribed to such terms in the
Credit Agreement.
2. Guaranty of Payment. Guarantor hereby
unconditionally and irrevocably guaranties to
Xxxxxx the punctual payment when due, whether at
stated maturity or by acceleration or otherwise,
of eighty and sixty-five one hundredths percent
(80.65%) of the principal balance of the Loans
outstanding from time to time under the Credit
Agreement; provided, however, in no event shall
Guarantor's aggregate liability pursuant to the
foregoing exceed Ten Million and No/100ths Dollars
($10,000,000). Guarantor agrees that this
Guaranty is a present and continuing guaranty of
payment and not of collectibility, and that Xxxxxx
shall not be required to prosecute collection,
enforcement or other remedies against Borrower,
any other guarantor of the Obligations or any
other Person, or to enforce or resort to any of
the Collateral or other rights or remedies
pertaining thereto, before calling on Guarantor
for payment. Guarantor agrees that if, for any
reason, Borrower or any other guarantor of the
Obligations shall fail or be unable to pay,
punctually and fully, any of the outstanding
principal of the Loans, Guarantor shall pay the
outstanding principal of the Loans, or any portion
thereof demanded by Xxxxxx (in each case subject
to the limitation set forth above) to Xxxxxx
immediately upon demand. In the event payment of
any amount due and payable under this Guaranty is
not made by Guarantor immediately after demand
therefor, Guarantor agrees to pay to Xxxxxx
interest on such amount owed by Guarantor
hereunder at the default rate of interest set
forth in the Credit Agreement. Guarantor agrees
that one or more successive actions may be brought
against Guarantor, as often as Xxxxxx deems
advisable, until all of the Obligations are paid
and performed in full.
3. Continuing Guaranty. Guarantor agrees
that the obligations of Guarantor pursuant to
Section 2 above and any other provision of any of
the Loan Documents to which Guarantor is a party
shall be primary obligations, shall not be subject
to any counterclaim, set-off, abatement, deferment
or defense (other than payment or performance)
based upon any claim that Guarantor may have
against Xxxxxx, Borrower, any other guarantor of
the Obligations or any other Person, and shall
remain in full force and effect without regard to,
and shall not be released, discharged or affected
in any way by any circumstance or condition
(whether or not Guarantor shall have any knowledge
thereof), including without limitation:
(a) any lack of validity or
enforceability of any of the Loan Documents;
(b) any termination, amendment,
modification or other change in any of the
Loan Documents;
(c) any furnishing, exchange,
substitution or release of any Collateral, or
any failure to perfect any Lien in any of the
Collateral;
(d) any failure, omission or delay on
the part of Borrower, Guarantor, any other
guarantor of the Obligations, or Xxxxxx to
conform or comply with any term of any of the
Loan Documents or any failure of Xxxxxx to
give notice of any Default or Event of
Default;
(e) any waiver, compromise, release,
settlement or extension of time of payment or
performance or observance of any of the
obligations or agreements contained in any of
the Loan Documents;
(f) any action or inaction by Xxxxxx
under or in respect of any of the Loan
Documents, any failure, lack of diligence,
omission or delay on the part of Xxxxxx to
enforce, assert or exercise any right, power
or remedy conferred on it in any of the Loan
Documents, or any other action or inaction on
the part of Xxxxxx;
(g) any dissolution of Borrower,
Guarantor or any guarantor or any voluntary
or involuntary bankruptcy, insolvency,
reorganization, arrangement, readjustment,
assignment for the benefit of creditors,
composition, receivership, liquidation,
marshalling of assets and liabilities or
similar events or proceedings with respect to
Borrower, Guarantor or any other guarantor of
the Obligations, as applicable, or any of
their respective property or creditors, or
any action taken by any trustee or receiver
or by any court in any such proceeding;
(h) any merger or consolidation of
Borrower, Guarantor or any other guarantor of
the Obligations into or with any Person, or
any sale, lease or transfer of any of the
assets of Borrower, Guarantor or any other
guarantor of the Obligations to any other
Person;
(i) any change in the ownership of the
capital stock or other equity securities of
Guarantor, Borrower or any other guarantor of
the Obligations or any change in the
relationship between Borrower, Guarantor or
any other guarantor of the Obligations, or
any termination of any such relationship;
(j) any release or discharge by
operation of law of Borrower, Guarantor or
any other guarantor of the Obligations from
any obligation or agreement contained in any
of the Loan Documents; or
(k) any other occurrence, circumstance,
happening or event, whether similar or
dissimilar to the foregoing and whether
foreseen or unforeseen, which otherwise might
constitute a legal or equitable defense or
discharge of the liabilities of a guarantor
or surety or which otherwise might limit
recourse against Borrower or Guarantor.
4. Waivers. Guarantor unconditionally
waives, to the extent permitted by law, (i) notice
of any of the matters referred to in Section 3
above, (ii) all notices which may be required by
statute, rule of law or otherwise, now or
hereafter in effect, to preserve intact any rights
against Guarantor, including, without limitation,
any demand, presentment and protest, proof of
notice of non-payment under any of the Loan
Documents and notice of any Default or any Event
of Default or any failure on the part of Borrower,
Guarantor or any other guarantor of the
Obligations to perform or comply with any
covenant, agreement, term or condition of any of
the Loan Documents, (iii) any right to the
enforcement, assertion or exercise against
Borrower, Guarantor or any other guarantor of the
Obligations of any right or remedy conferred under
any of the Loan Documents, (iv) any requirement of
diligence on the part of any Person, (v) any
requirement to exhaust any remedies or to mitigate
the damages resulting from any default under any
of the Loan Documents, and (vi) any notice of any
sale, transfer or other disposition of any right,
title or interest of Xxxxxx under any of the Loan
Documents.
5. Representations and Warranties.
Guarantor represents and warrants to Xxxxxx as
follows:
(a) Organization and Qualification.
Guarantor is a corporation duly organized,
validly existing and in good standing under
the laws of the State of Delaware, has all
requisite corporate power and authority to
own its property and to carry on its business
as now conducted and as proposed to be
conducted, and is in good standing and
authorized to do business in each
jurisdiction in which the nature of its
business requires it to be so qualified,
except in jurisdictions in which the failure
to be so authorized and in good standing
could not reasonably be expected to have a
Material Adverse Effect.
(b) Power and Authority. Guarantor has
the corporate power and authority to enter
into, execute, deliver and carry out the
terms of this Guaranty and the other Loan
Documents to which it is a party and to incur
the obligations provided for herein and
therein, all of which have been duly
authorized by all proper and necessary action
and are not prohibited by the organizational
instruments of Guarantor.
(c) Binding Obligation. This Guaranty
and the other Loan Documents to which
Guarantor is a party, have been duly executed
and delivered by, and constitute the valid
and legally binding obligations of,
Guarantor, enforceable against Guarantor in
accordance with their respective terms,
subject to bankruptcy, insolvency,
moratorium, reorganization and other similar
laws affecting creditor's rights.
(d) No Conflict. The execution,
delivery and performance by Guarantor of this
Guaranty and each of the other Loan Documents
to which it is a party and the consummation
by Guarantor of the transactions contemplated
hereby and thereby do not and will not: (1)
violate any provision of law applicable to
Guarantor, the certificate of incorporation
or bylaws of Guarantor, or any order,
judgment or decree of any court or other
agency of government binding on Guarantor;
(2) conflict with, result in a breach of or
constitute (with due notice or lapse of time
or both) a default under any Contractual
Obligation of Guarantor; (3) result in or
require the creation or imposition of any
material Lien upon any of the properties or
assets of Guarantor; or (4) require any
approval or consent of any Person under any
Contractual Obligation of Guarantor which has
not been obtained, except, with respect to
each of clauses (1) and (2), such violations,
conflicts, breaches and defaults which could
not reasonably be expected to have, either
individually or in the aggregate, a Material
Adverse Effect.
(e) Governmental Consents. The
execution, delivery and performance by
Guarantor of this Guaranty and each of the
other Loan Documents to which it is a party,
and the consummation by Guarantor of the
transactions contemplated hereby and thereby
do not and will not require any registration
with, consent or approval of, or notice to,
or other action to, with or by, any federal,
state or other governmental authority or
regulatory body except filings required in
connection with the perfection of security
interests granted pursuant to the Loan
Documents, and other filings, authorizations,
consents and approvals, all of which have
been made or obtained or the absence of which
would not have a Material Adverse Effect.
(f) Litigation; Adverse Facts. There
are no judgments outstanding against
Guarantor or affecting any of its property
nor is there any action, charge, claim,
demand, suit, proceeding, petition,
governmental investigation or arbitration now
pending or, to the best knowledge of
Guarantor after due inquiry, threatened
against or affecting Guarantor and/or any of
its property which, if adversely determined,
would result in a Material Adverse Effect or
which relate to and affect the consummation
of the transactions contemplated by the Loan
Documents to which Guarantor is a party.
Guarantor has not received any opinion or
memorandum or legal advice from legal counsel
to the effect that it is exposed to any
liability or disadvantage which could
reasonably be expected to result in any
Material Adverse Effect.
(g) Payment of Taxes. All material tax
returns and reports required to be filed by
Guarantor have been timely filed, and all
taxes, assessments, fees and other
governmental charges upon Guarantor and upon
its properties, assets, income and franchises
which are shown on such returns as due and
payable have been paid when due and payable,
except where being contested in good faith by
appropriate proceedings diligently prosecuted
for which reserves have been established in
accordance with GAAP.
(h) Burdensome Obligations; Solvency.
After giving effect to the transactions
contemplated by this Guaranty and the other
Loan Documents to which Guarantor is a party,
Guarantor (i) will not be a party to or be
bound by any franchise, agreement, deed,
lease or other instrument, or be subject to
any restriction, which is so unusual or
burdensome, so as to cause, in the
foreseeable future, a Material Adverse
Effect, (ii) does not intend to incur, and
does not believe that it will incur, debts
beyond its ability to pay such debts as they
become due, (iii) owns and will own assets,
the fair saleable value of which are (I)
greater than the total amount of its
liabilities (including contingent
liabilities) and (II) greater than the amount
that will be required to pay the probable
liabilities of its then existing debts as
they become absolute and matured considering
all financing alternatives and potential
asset sales reasonably available to it , and
(iv) has and will have capital that is not
unreasonably small in relation to its
business as presently conducted and as
proposed to be conducted. Guarantor does not
presently anticipate that future expenditures
needed to meet the provisions of federal or
state statutes, orders, rules or regulations
will be so burdensome so as to have a
Material Adverse Effect.
6. Subordination. Guarantor agrees that
any and all present and future debts and
obligations of Borrower to Guarantor hereby are
subordinated to the claims of Xxxxxx.
7. Reinstatement. The obligations of
Guarantor pursuant to this Guaranty shall continue
to be effective or automatically be reinstated, as
the case may be, if at any time payment of any of
the Obligations is rescinded or otherwise must be
restored or returned by Xxxxxx upon the
insolvency, bankruptcy, dissolution, liquidation
or reorganization of Guarantor, Borrower or any
other guarantor of the Obligations or otherwise,
all as though such payment had not been made.
8. Successors and Assigns. This Guaranty
shall inure to the benefit of Xxxxxx, its
successors and assigns. This Guaranty shall be
binding on Guarantor, its successors and assigns,
and shall continue in full force and effect until
all of the Obligations are paid and performed in
full.
9. No Waiver of Rights. No delay or
failure on the part of Xxxxxx to exercise any
right, power or privilege under this Guaranty or
any of the other Loan Documents shall operate as a
waiver thereof, and no single or partial exercise
of any right, power or privilege shall preclude
any other or further exercise thereof or the
exercise of any other power or right, or be deemed
to establish a custom or course of dealing or
performance between the parties hereto. The
rights and remedies herein provided are cumulative
and not exclusive of any rights or remedies
provided by law. No notice to or demand on
Guarantor in any case shall entitle Guarantor to
any other or further notice or demand in the same,
similar or other circumstance.
10. Modification. The terms of this
Guaranty may be waived, discharged, or terminated
only by an instrument in writing signed by the
party against which enforcement of the change,
waiver, discharge or termination is sought. No
amendment, modification, waiver or other change of
any of the terms of this Guaranty shall be
effective without the prior written consent of
Xxxxxx.
11. Costs and Expenses. Guarantor agrees to
pay on demand all reasonable costs and expenses
incurred by or on behalf of Xxxxxx (including,
without limitation, attorneys' fees and expenses)
in enforcing the obligations of Guarantor under
this Guaranty.
12. Joinder. Guarantor agrees that any
action to enforce this Guaranty may be brought
against Guarantor without any reimbursement or
joinder of Borrower or any other guarantor of the
Obligations in such action.
13. Covenants.
(a) Financial Statements. Guarantor
will maintain, and cause each of its Subsidiaries
to maintain, a system of accounting established
and administered in accordance with sound business
practices to permit preparation of financial
statements in conformity with GAAP. Guarantor
will deliver to Xxxxxx the financial statements
and other reports described below.
(I) For so long as Guarantor is a
reporting company under the Securities Exchange
Act of 1934, as amended, Guarantor shall deliver
to Xxxxxx, all financial statements, reports and
proxy statements sent or made available to its
security holders and copies of all regular and
periodic reports and all registration statements
and prospectuses, if any, filed by Guarantor with
any securities exchange or with the Securities
Exchange Commission.
(II) If Guarantor is not such a
reporting company:
(A) Interim Financials. As soon
as available and in any event within sixty (60)
days after the end of each quarter and, if
requested by Xxxxxx, within thirty-five (35) days
after the end of each month, Guarantor will
deliver the consolidated and consolidating balance
sheet of Guarantor (showing intercompany
eliminations), as at the end of such period and
the related consolidated and consolidating
statements of income (showing intercompany
eliminations), stockholders' equity and cash flow
for such period and for the period from the
beginning of the then current fiscal year to the
end of such period.
(B) Year-End Financials. As soon
as available and in any event within ninety (90)
days after the end of each Fiscal Year, Guarantor
will deliver: (1) the consolidated balance sheet
of Guarantor as at the end of such year and the
related consolidated statements of income,
stockholders' equity and cash flow for such fiscal
year; (2) a schedule of the outstanding
Indebtedness for borrowed money of Guarantor and
its Subsidiaries describing in reasonable detail
each such debt issue or loan outstanding and the
principal amount and amount of accrued and unpaid
interest with respect to each such debt issue or
loan; (3) a report with respect to the financial
statements from Xxxxx Xxxxxxxx or a Big Six
Accounting Firm selected by Guarantor, or other
firm of independent certified public accountants
acceptable to Xxxxxx, which report shall be
without Qualification and shall state that (a)
such consolidated financial statements present
fairly the consolidated financial position of
Guarantor and its Subsidiaries as at the dates
indicated and the results of their operations and
cash flow for the periods indicated in conformity
with GAAP applied on a basis consistent with prior
years and (b) that the examination by such
accountants in connection with such consolidated
financial statements has been made in accordance
with generally accepted auditing standards; and
(4) copies of the consolidating financial
statements of Guarantor and its Subsidiaries,
including (a) consolidating balance sheets of
Guarantor and its Subsidiaries as at the end of
such Fiscal Year showing intercompany eliminations
and (b) related consolidating statements of
earnings of Guarantor and its Subsidiaries showing
intercompany eliminations. As used in this
subsection 13(a)(II)(B), "Qualification" means,
with respect to any certificate covering financial
statements, a qualification to such certificate
(such as a "subject to" or "except for" statement
or emphasis paragraph therein) (a) resulting from
a limitation on the scope of examination of such
financial statements or the underlying data, (b)
as to the capability of the Person whose financial
statements are certified to continue operations as
a going concern, or (c) which could be eliminated
by changes in financial statements or notes
thereto covered by such certificate (such as by
the creation of or increase in a reserve or a
decrease in the carrying value of assets) and
which if so eliminated by the making of any such
change and after giving effect thereto would
occasion a Default or an Event of Default;
provided that, without limitation, neither of the
following shall constitute a Qualification: (x) a
consistency exception relating to a change in
accounting principles with which the independent
public accountants for the Person whose financial
statements are being certified have concurred, or
(y) a qualification relating to the outcome or
disposition of threatened litigation, pending
litigation being contested in good faith, pending
or threatened claims or other contingencies, the
impact of which litigation, claims or
contingencies cannot be determined with sufficient
certainty to permit quantification in such
financial statements.
(b) Restriction of Fundamental Changes.
Guarantor will not: (a) enter into any transaction
of merger or consolidation unless (i) Guarantor is
the surviving entity or (ii) the surviving entity
(x) assumes all of the obligations of Guarantor
hereunder pursuant to an assumption agreement
reasonably satisfactory to Xxxxxx and (y) has
creditworthiness and financial position equivalent
to or better than Guarantor's as of June 30, 1996;
or (b) liquidate, wind-up or dissolve itself (or
suffer any liquidation or dissolution) unless (i)
there is in connection with such event a successor
entity to Guarantor and (ii) such successor (x)
assumes all of the obligations of Guarantor
hereunder pursuant to an assumption agreement
reasonably satisfactory to Xxxxxx and (y) has
creditworthiness and financial position equivalent
to or better than Guarantor's as of June 30, 1996;
or (c) convey, sell, transfer or otherwise dispose
of, in one transaction or a series of
transactions, (i) all or a material portion of the
business or assets of Guarantor and its
Subsidiaries, taken as a whole or, or (ii) the
capital stock of or other equity interests in any
of its Subsidiaries which represent all or a
material portion of the business or assets of
Guarantor and its Subsidiaries, taken as a whole,
unless (x) the purchaser or transferee assumes all
of the obligations of Guarantor hereunder pursuant
to an assumption agreement reasonably satisfactory
to Xxxxxx and (y) has creditworthiness and
financial position equivalent to or better than
Guarantor's as of June 30, 1996. The term
"material portion" as used in the foregoing
clauses (c)(i) and (ii) means any portion which
would materially impair Xxxxxx'x ability to
collect under this Guaranty or could reasonably be
expected to result in a Material Adverse Effect.
14. Severability. If any provision of this
Guaranty is deemed to be invalid by reason of the
operation of any law, or by reason of the
interpretation placed thereon by any court or
other governmental authority, this Guaranty shall
be construed as not containing such provision and
the invalidity of such provision shall not affect
the validity of any other provision hereof, and
any and all other provisions hereof which
otherwise are lawful and valid shall remain in
full force and effect.
15. Notices.
Unless otherwise specifically provided
herein, any notice or other communication required
or permitted to be given shall be in writing
addressed to the respective party as set forth
below and may be personally served, telecopied,
telexed or sent by overnight courier service or
United States mail and shall be deemed to have
been given: (a) if delivered in person, when
delivered; (b) if delivered by telecopy or telex,
on the date of transmission if transmitted on a
Business Day before 4:00 p.m. (Chicago time) or,
if not, on the next succeeding Business Day; (c)
if delivered by overnight courier, two days after
delivery to such courier properly addressed; or
(d) if by U.S. Mail, four Business Days after
depositing in the United States mail, with postage
prepaid and properly addressed.
Notices shall be addressed as follows:
If to Guarantor: Newpark Resources, Inc.
0000 Xxxxx Xxxxxxxx Xxxx., Xxxxx 0000
Xxxxxxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxxx
Telecopy: (000) 000-0000
With a copy to: Xxxxx Xxxxx & Xxxxxx
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
If to Xxxxxx: Xxxxxx Financial Leasing, Inc.
900 Circle 00 Xxxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Credit Manager
Commercial Equipment Finance Division
Telecopy: (000) 000-0000
With a copy to: Xxxxxx Financial Leasing, Inc.
900 Circle 00 Xxxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
or to such other address as the party
addressed shall have previously designated by
written notice to the serving party, given in
accordance with this Section 15. A notice
not given as provided above shall, if it is
in writing, be deemed given if and when
actually received by the party to whom given.
16. APPLICABLE LAW.
THIS GUARANTY SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE INTERNAL LAWS OF THE STATE OF
ILLINOIS, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
17. CONSENT TO JURISDICTION AND SERVICE
OF PROCESS.
GUARANTOR HEREBY CONSENTS TO THE
JURISDICTION OF ANY STATE OR FEDERAL COURT
LOCATED WITHIN THE COUNTY OF XXXX, STATE OF
ILLINOIS AND IRREVOCABLY AGREES THAT, SUBJECT
TO XXXXXX'X ELECTION, ALL ACTIONS OR
PROCEEDINGS ARISING OUT OF OR RELATING TO
THIS GUARANTY OR THE OTHER LOAN DOCUMENTS
SHALL BE LITIGATED IN SUCH COURTS. GUARANTOR
ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, GENERALLY AND UNCONDITIONALLY,
THE NONEXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS AND WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS, AND IRREVOCABLY AGREES
TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY
IN CONNECTION WITH THIS GUARANTY, SUCH OTHER
LOAN DOCUMENT OR SUCH OBLIGATION. GUARANTOR
DESIGNATES AND APPOINTS CT CORPORATION SYSTEM
AND SUCH OTHER PERSONS AS MAY HEREAFTER BE
SELECTED BY GUARANTOR WHICH IRREVOCABLY AGREE
IN WRITING TO SO SERVE AS ITS AGENT TO
RECEIVE ON ITS BEHALF SERVICE OF ALL PROCESS
IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT,
SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY
GUARANTOR TO BE EFFECTIVE AND BINDING SERVICE
IN EVERY RESPECT. A COPY OF ANY SUCH PROCESS
SO SERVED SHALL BE MAILED BY REGISTERED MAIL
TO GUARANTOR AT ITS ADDRESS PROVIDED IN
SECTION 15 EXCEPT THAT UNLESS OTHERWISE
PROVIDED BY APPLICABLE LAW, ANY FAILURE TO
MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY
OF SERVICE OF PROCESS. IF ANY AGENT
APPOINTED BY GUARANTOR REFUSES TO ACCEPT
SERVICE, GUARANTOR HEREBY AGREES THAT SERVICE
UPON IT BY MAIL SHALL CONSTITUTE SUFFICIENT
NOTICE. NOTHING HEREIN SHALL AFFECT THE RIGHT
TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF
XXXXXX TO BRING PROCEEDINGS AGAINST GUARANTOR
IN THE COURTS OF ANY OTHER JURISDICTION.
18. WAIVER OF JURY TRIAL.
GUARANTOR HEREBY WAIVES ITS RIGHT TO A
JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS GUARANTY,
ANY OF THE LOAN DOCUMENTS, OR ANY DEALINGS
BETWEEN GUARANTOR AND XXXXXX RELATING TO THE
SUBJECT MATTER OF THE TRANSACTIONS
CONTEMPLATED BY THE LOAN DOCUMENTS.
GUARANTOR ALSO WAIVES ANY BOND OR SURETY OR
SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR
THIS WAIVER, BE REQUIRED OF XXXXXX. THE
SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-
ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY
BE FILED IN ANY COURT AND THAT RELATE TO THE
SUBJECT MATTER OF THIS TRANSACTION, INCLUDING
WITHOUT LIMITATION, CONTRACT CLAIMS, TORT
CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW AND STATUTORY CLAIMS. GUARANTOR
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL
INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT XXXXXX HAS ALREADY RELIED
ON THE WAIVER IN ENTERING INTO THE OTHER LOAN
DOCUMENTS TO WHICH THEY ARE A PARTY AND THAT
EACH WILL CONTINUE TO RELY ON THE WAIVER IN
THEIR RELATED FUTURE DEALINGS. GUARANTOR
FURTHER WARRANTS AND REPRESENTS THAT IT HAS
REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL,
AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES
ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION
WITH LEGAL COUNSEL. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING, AND THE
WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS GUARANTY, THE LOAN
DOCUMENTS, OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING TO THE LOANS. IN THE
EVENT OF LITIGATION, THIS GUARANTY MAY BE
FILED AS A WRITTEN CONSENT TO A TRIAL BY THE
COURT.
19. WAIVER OF RIGHTS AGAINST BORROWER.
UNTIL THE PAYMENT IN FULL OF THE OBLIGATIONS,
NOTWITHSTANDING ANYTHING TO THE CONTRARY
WHICH MAY BE CONTAINED HEREIN, GUARANTOR
HEREBY UNCONDITIONALLY AND IRREVOCABLY AGREES
THAT GUARANTOR (I) WILL NOT ASSERT AGAINST
BORROWER ANY RIGHT OR CLAIM, AT LAW OR IN
EQUITY, TO INDEMNIFICATION, REIMBURSEMENT,
CONTRIBUTION, RESTITUTION OR PAYMENT FOR OR
WITH RESPECT TO ANY AND ALL AMOUNTS GUARANTOR
MAY PAY OR BE OBLIGATED TO PAY TO XXXXXX,
INCLUDING, WITHOUT LIMITATION, THE
OBLIGATIONS, AND ANY AND ALL OTHER
OBLIGATIONS WHICH GUARANTOR MAY PERFORM,
SATISFY OR DISCHARGE, UNDER OR WITH RESPECT
TO THIS GUARANTY, AND (II) WILL NOT ASSIGN OR
OTHERWISE TRANSFER ANY SUCH RIGHT OR CLAIMS
TO ANY OTHER PERSON. UNTIL THE PAYMENT IN
FULL OF THE OBLIGATIONS, GUARANTOR FURTHER
UNCONDITIONALLY AND IRREVOCABLY AGREES THAT
GUARANTOR SHALL HAVE NO RIGHT OF SUBROGATION,
AND WAIVES ANY RIGHT TO ENFORCE ANY REMEDY
WHICH XXXXXX NOW HAVE OR HEREAFTER MAY HAVE
AGAINST BORROWER AND WAIVES ANY DEFENSE BASED
UPON AN ELECTION OF REMEDIES BY XXXXXX, WHICH
DESTROYS OR OTHERWISE IMPAIRS ANY SUBROGATION
RIGHTS OF GUARANTOR AND/OR THE RIGHT OF
GUARANTOR TO PROCEED AGAINST BORROWER FOR
REIMBURSEMENT.
20. Board Representation. Pursuant to
that certain Shareholder Agreement of even
date herewith (the "Shareholder Agreement")
among First Wave, certain other shareholders
of Borrower, Borrower and Guarantor, all of
the shareholders of Borrower have agreed to
vote their stock to nominate and elect one
person designated by Guarantor to the board
of directors of Borrower. In addition,
pursuant to the Shareholder Agreement, the
articles of incorporation and by-laws of
Borrower are being amended to provide, among
other things, that the unanimous consent of
the board of directors is required for
certain material actions. To secure the
shareholders agreement to nominate and elect
to the board of directors an individual
designated by Guarantor, the shareholders
have granted a proxy to Guarantor for such
purpose. Guarantor covenants and agrees that
it will not modify, amend or waive, or permit
the modification, amendment or waiver of, the
Shareholder Agreement or the articles of
incorporation or by-laws of Borrower without
the prior written consent of Xxxxxx.
Pursuant to subsection 8.1(T) of the
Credit Agreement, an Event of Default shall
occur at such time as a Resources Designated
Director (as defined in the Shareholder
Agreement) is not a member of the Board of
Directors of Borrower. Notwithstanding such
provision and provided no other Event of
Default has occurred, solely for purposes of
this Guaranty, Xxxxxx will not demand payment
of Guarantor hereunder solely due to an Event
of Default under said subsection 8.1(T) (a)
for thirty (30) days after the occurrence of
a vacancy if such vacancy occurs due to the
death of the Resources Designated Director or
such person's resignation as an officer of
Resources, or otherwise solely as a result of
events occurring with respect to Guarantor
which are unrelated to Borrower or the
business or operations thereof, or (b) for
fifteen (15) days after the occurrence of a
vacancy for any other reason. If such
vacancy is filled within the applicable
designated time period, the Event of Default
under subsection 8.1(T) of the Credit
Agreement shall be deemed cured.
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IN WITNESS WHEREOF, Guarantor has executed
this Guaranty as of the date first above written.
NEWPARK RESOURCES, INC., a
Delaware corporation
By: __________________________
Title:________________________
Witness:
_____________________
Witness Address:
____________________
____________________
