EXHIBIT 2.46
GUARANTY AGREEMENT
1. The undersigned (hereinafter called "Guarantors," whether one or
more, and sometimes "Guarantor," if only one), for value received, the receipt
and sufficiency of which is hereby acknowledged, and for and in consideration of
UNITED FACTORS, L.L.C. ("Purchaser") entering into that certain Purchase and
Sale Agreement (the "Agreement") of even date herewith between Purchaser and
Vulcan Energy Corporation ("Seller"), as well as in consideration for Purchaser
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acquiring from time to time certain accounts receivable from Seller pursuant to
the Agreement, do hereby, jointly and severally, absolutely and
unconditionally, guarantee to Purchaser the prompt and full performance by
Seller of the representations, warranties and covenants (hereinafter together
called "Obligations"), of Seller to Purchaser under or relating to the
Agreement.
2. This is a continuing guaranty and shall not be wholly or
partially satisfied or extinguished by Guarantors' performance hereunder,
including payment of all amounts due as of any specified date, but shall
continue in full force and effect as against each of the respective Guarantors
for the full amount above specified as to all Obligations created, incurred or
arising prior to the time notice of termination is given by the respective
Guarantors to Purchaser under the provisions of paragraph 3, and until full
performance by Seller under the Agreement.
3. Guarantors, or any one of them, may give written notice, in
accordance with this paragraph, to Purchaser that the Guarantor of Guarantors
giving such notice will not be liable hereunder for any Obligations created,
incurred or arising on accounts receivable acquired by Purchaser more than sixty
(60) days after the effective date of such notice. Such notice will be effective
as to the Guarantor or Guarantors who give such notice from and after (but not
before) such time as said written notice is actually delivered to, received by
and receipted for in writing by Purchaser; provided however, such notice shall
not in any way affect, impair or limit the liability of the Guarantor or
Guarantors giving such notice with respect to Obligations created, incurred or
arising prior to the effective date of such notice, or in respect to interest or
costs of collection thereafter accruing on or with respect to such Obligations,
or with respect to attorneys' fees thereafter becoming payable hereunder with
respect to such Obligations.
4. In the event of death of any Guarantor, the Obligations of the
deceased Guarantor shall continue in full force and effect as to all
indebtedness that shall have been created or incurred by Seller or which may
thereafter be incurred for which Purchaser has, prior to Guarantor's death,
legally committed to lend to Seller prior to the time when Purchaser shall have
received notice, in writing, of termination in accordance with Paragraph 3.
Notwithstanding the death of a Guarantor, this guaranty shall continue in full
force and effect as a guaranty by the surviving Guarantors.
5. The release by Purchaser of one or more Guarantors under this
guaranty shall not affect the remaining Guarantors hereunder who shall remain
fully liable in accordance with the terms of this guaranty.
6. Guarantors further, jointly and severally, agree to pay to
Purchaser or to its successors or assigns, all reasonable attorneys' fees
incurred in enforcing this guaranty, or, the holder hereof may elect to recover
fifteen percent (15%) of the amount then unpaid by Guarantors as attorneys'
fees, if the indebtedness and Obligations guaranteed hereunder are not paid by
the Guarantors upon demand when due as required herein or if this guaranty is
enforced by suit or through probate or bankruptcy court or through any judicial
proceedings whatsoever, and should it be necessary to reduce purchaser's claim
to judgment, said judgment shall bear interest at the rate of ten percent (10%)
per annum.
7. All indebtedness of Seller to Guarantors, whether now existing or
hereafter arising (including indebtedness resulting from this guaranty) is
hereby assigned to Purchaser to the extent of the amount of this guaranty as
security for the payment of all liability or liabilities of Seller to Purchaser.
To the extent the indebtedness of Seller to Guarantors (whether now existing or
hereafter arising) exceeds the amount of this guaranty, such indebtedness is
hereby subordinated to all liability or liabilities of Seller to Purchaser.
8. Guarantors waive notice of acceptance of this guaranty and of any
liability to which it applies or may apply, and waive presentment and demand for
payment thereof, notice of dishonor or nonpayment thereof, notice of
acceleration, collection or instigation of suit or any other action by Purchaser
in collection thereof including any notice of default in payment thereof or
other notice to, or demand of payment therefor on, any party. Guarantors waive
all defenses of a surety, at law or in equity, with respect to this guaranty,
including, without limitation, (a) any rights of a surety to insist upon a
creditor first exhausting all remedies against the primary obligor of a debt or
other collateral securing the debt, and (b) those set forth in Rule 31 of the
Texas Rules of Civil procedure, Sections 17.001 and 34.005 of the Texas Civil
Practice and Remedies Code, and Chapter 34 of the Texas Business and Commerce
Code.
9. Purchaser may, at its option, at any time without the consent of
or notice to Guarantors, without incurring responsibility to Guarantors, without
impairing or releasing the Obligations of the Guarantors, upon or without any
items or conditions and in whole or in part (a) change the manner, place or
terms of payment or change or extend the time of performance of, renew, or alter
any liability of Seller hereby guaranteed, or any liabilities incurred directly
or indirectly hereunder, and the guaranty herein made shall apply to the
liabilities of Seller, changed, extended, renewed or altered in any manner, (b)
sell, exchange, release, surrender, realize upon or otherwise deal with in any
manner and in any order property at any time pledged or mortgaged to secure or
securing the liabilities hereby guaranteed or any liabilities incurred directly
or indirectly hereunder or any offset against any said liabilities, (c) exercise
or refrain from exercising any rights against Seller to others, or otherwise act
or refrain from acting, and (d) settle or compromise any liabilities hereby
guaranteed or hereby incurred, and may subordinate the payment of all or any
part of such liabilities to the payment of any liabilities which may be due to
Purchaser or others. Purchaser may, at its option, without the consent of or
notice to Guarantors, apply to the payment of the Liability created by this
guaranty, at any time after such liability becomes payable, any monies,
property, or balance on deposit belonging to any of Guarantors.
10. Suit may be brought against the Guarantors, jointly and
severally, and against one or more of them, less than all, without joining
Seller or any account debtor as a party, and without impairing the rights of
Purchaser, its successors or assigns, against each of Guarantors; and Purchaser
may release one or more of the Guarantors or settle with persons as Purchaser
deems fit without releasing or impairing the rights of Purchaser to demand and
collect the balance of such indebtedness from the other remaining Guarantors not
so released. It is agreed among the Guarantors, however, that such settlement
and release shall in no way impair the rights of the Guarantors as among
themselves.
11. This guaranty is for the benefit of Purchaser, and for such other
persons as may from time to time become or be the beneficiaries of Purchaser's
rights under the Agreement, and this guaranty shall be transferrable and
negotiable, with the same force and effect and to the same extent as Purchaser's
rights under the Agreement may be transferrable; it being understood that upon
the assignment or transfer by Purchaser of any of Purchaser's rights under the
Agreement, the legal owner of Purchaser's rights under the Agreement shall have
all of the rights granted to Purchaser under this guaranty.
12. Purchaser, its successors and assigns shall not be liable for
failure to use diligence in the collection of any matters hereby guaranteed,
or in preserving the liability of any person liable thereon, and the Guarantors
hereby waive presentment for payment, notice of nonpayment, notice of
acceleration, protest and notice thereof, and diligence in bringing suit against
any person liable for any Obligations hereby guaranteed. Payment of all amounts
hereunder shall be made at the offices of Purchaser in Houston, Xxxxxx County,
Texas.
13. If this guaranty is given by a corporation, then the undersigned
guaranteeing corporation does hereby acknowledge that it has investigated fully
the benefits and advantages which will be derived by it from execution of and
performance under this guaranty, and the Board of Directors of the guaranteeing
corporation has decided that, and guaranteeing corporation does hereby
acknowledge, warrant and represent that, a direct or an indirect benefit will
accrue to the guaranteeing corporation by reason of execution of and performance
under this guaranty and that a resolution to such effect has been duly adopted
by the board of directors of the corporation.
EXECUTED this 10 day of APRIL, 1996.
ADDRESS
_____________________________________ x /s/ F. Worthy Xxxxxx
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STATE OF TEXAS (S)
(S)
COUNTRY OF XXXXXX (S)
This instrument was acknowledged before me on April 10, 1996, by F.
WORTHY XXXXXX.
[Notary Seal appears here] /s/ Xxxx X. Xxxxxx
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Notary Public in and for the State of Texas
[Notary Seal appears here]
