Exhibit 10.13
CONTINUING UNLIMITED GUARANTY AGREEMENT
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RECITALS
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A. FUTUREFUEL CHEMICAL COMPANY, a Delaware corporation
("Borrower") has applied for credit, or is presently indebted or obligated to
REGIONS BANK ("Bank"); and
B. For the purpose of inducing Bank to extend credit to
Borrower, or to presently refrain from making demand on Borrower or otherwise
pursuing Bank's rights or remedies against Borrower, the undersigned
("Guarantor") agrees to guarantee the prompt payment of the indebtedness and
liabilities of Borrower to Bank in accordance with the terms and conditions
hereinafter set forth.
WITNESSETH
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NOW, THEREFORE, for value received, and in consideration of the
financial accommodations given or to be given or continued to Borrower by Bank
and/or of Bank's presently refraining from making demand on Borrower or
otherwise pursuing Bank's legal remedies against Borrower, and for other good
and valuable consideration to Guarantor moving, the receipt and sufficiency of
which is hereby acknowledged:
1. Guarantor hereby unconditionally guarantees to Bank the
prompt payment when due, whether by acceleration or otherwise, and at all
times thereafter, of any and all indebtedness and obligations of Borrower to
Bank made or entered into pursuant to the terms and conditions of that certain
Credit Agreement by and between Borrower and Bank and dated of even date
herewith (the "Credit Agreement"), or made pursuant to or evidenced by any of
the Loan Documents (as such term is defined in the Credit Agreement),
including extensions, renewals or refundings thereof (and extensions, renewals
or refundings made after any release or termination hereof), whether such be
direct or indirect, liquidated or unliquidated, absolute or contingent,
single, joint, by the entirety or several, now existing or hereafter arising,
due or to become due whether or not originally contracted with Bank, including
all obligations and liabilities of Borrower arising pursuant to or in
connection with any interest rate swap, basis swap, forward rate, interest
rate option, collar or corridor agreement or transaction or any similar
transaction between the Borrower and Bank or any of Bank's affiliates which
relates to the obligations of Borrower to Bank pursuant to the Credit
Agreement, which may now or hereafter be entered into or amended, modified,
extended, or renewed (hereinafter collectively referred to as "Liabilities"
or, in the singular, "Liability"). "Liabilities" or a "Liability" shall also
include reasonable expenses, including attorney's fees, incurred by Bank in
the efforts to collect any Liability or to enforce the undertakings of
Guarantor hereunder. Whenever any such Liabilities shall become due and remain
unpaid in accordance with the provisions of Credit Agreement and the other
Loan Documents, Guarantor will, on demand, make prompt payment of the amount
due thereof.
2. Guarantor shall be obligated to make payment in full to Bank
in accordance with the terms and provisions hereof irrespective of the
validity, regularity or enforceability of any instrument or writing evidencing
such Liability or of the Liability itself, and if the Liability is secured,
said obligation of Guarantor to make payment hereunder shall be made
irrespective of the validity, perfection, regularity or enforceability of any
instrument or writing evidencing such security or of the security itself and
it shall not be necessary for Bank to resort to such security before enforcing
Guarantor's liability hereunder. Demand may be made upon Guarantor for the
enforcement of this Guaranty without the necessity of action at any time by
Bank against Borrower or any collateral or to first accelerate the maturity of
any Liabilities (subject to the provisions of the Credit Agreement). Any
action taken by Bank against Borrower, including foreclosure of any security
held by Bank, shall in no event be considered a waiver or diminishment of any
rights against Guarantor under this Guaranty and Bank shall, at its sole
discretion,
have the right at any time to discontinue any action or proceeding
against Borrower and require full payment by Guarantor of the Liabilities
together with reasonable attorneys' fees, cost of the proceedings and court
costs. It is agreed that a compromise and settlement of any Liability shall,
in no sense, compromise or settle Guarantor's liability hereunder. Bank may
apply any collateral for the Liabilities in such order as it may elect and
without any obligation to account to Guarantor for the manner or order of
application.
3. Except as may be set forth in the Credit Agreement or in any
of the other Loan Documents, Guarantor does hereby waive presentment of any
instrument, demand for payment, protest and notice of dishonor or nonpayment
and Guarantor waives all rights arising out of any statute now existing or
hereafter enacted with respect to guaranty or suretyship and which may
otherwise require Bank at any time to take legal action against Borrower.
Guarantor does hereby waive notice of the acceptance of this Guaranty and
notice of any Liability contracted or incurred by Borrower.
4. Bank may, from time to time, without the consent of or
notice to Guarantor, change the manner, interest rate, place or terms of
payment, and change or extend the time of payment of, refund, increase,
decrease, renew or alter in any manner any Liability or security therefor, and
may, from time to time, at its own discretion, without the consent of or
notice to Guarantor, exchange, release, surrender, realize upon or otherwise
deal with in any manner and in any order, any collateral pledged or mortgaged
to secure any Liability, without in any way affecting Guarantor's obligation
hereunder.
5. The obligations of Guarantor hereunder shall apply to all
Liabilities, including Liabilities arising on or prior to notice in writing
from any Guarantor that such Guarantor will not be responsible for any further
Liabilities. Any such notice, to be effective, must be actually received by
Bank. Notwithstanding the giving of such notice, the obligations of Guarantor
shall continue in full force and effect as to all Liabilities then existing
including those contingent, unliquidated or not yet accrued and to any
Liabilities thereafter arising, to the extent that Bank may be bound or
permitted by contract or otherwise to create or permit the creation of
additional Liabilities including those which may or might have been
contingent, unliquidated or not yet accrued Liabilities at the time such
notice is given. Termination or revocation of this Guaranty by notice or by
operation of law shall affect only the obligations of the Guarantor for or on
behalf of whom such notice is given or as to whom such event occurs, the
obligations of the other Guarantors to continue unabated.
6. Guarantor acknowledges and agrees that it has derived or
will derive a financial advantage from each and every loan, advance, or other
extension of credit and from each and every renewal, extension, modification,
release of collateral, or other relinquishment of legal rights made or granted
or to be granted by Bank to Borrower and further represents and warrants to
Bank that it has full power and authority (corporate or otherwise) to execute
and deliver this Guaranty.
7. This Guaranty shall be understood to be for the benefit of
Bank or for such other person or persons as may from time to time become or be
the holders of the Liabilities; and this Guaranty shall be transferable and
negotiable without notice to Guarantor with the same force and effect and to
the same extent as such Liabilities may be transferable, provided that Bank
agrees to give Guarantor notice at such time as Bank may decide to transfer
this Guaranty, along with notice of any such transferee.
8. Guarantor agrees that Guarantor's liability hereunder is
several and independent of any other guaranties at any time in effect with
respect to all or any part of the Liabilities, and that Guarantor's liability
hereunder may be enforced regardless of the existence of any such other
guaranty agreements.
9. The word "Guarantor," as used herein, shall designate one or
more guarantors. In the event that more than one guarantor is a party to this
Guaranty, the liability of each of the undersigned
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shall be joint and several, each of the undersigned to be fully liable
hereunder irrespective of the death, bankruptcy, incapacity or other
disqualification of any other of the undersigned or Borrower and Bank may
proceed against one or less than all of the undersigned, such proceeding not
being deemed an election, and Bank may, at any time thereafter in the event
full payment has not been realized, proceed against any other of the
undersigned. Bank may release any Guarantor hereon or any other surety,
guarantor or Borrower or any collateral or security pledged by any Guarantor
or surety without affecting the liability hereunder of any Guarantor not
released by Bank in writing. This Guaranty shall be binding upon Guarantor and
upon Guarantor's heirs, executors, personal representatives, administrators,
legal representatives, successors and assigns and shall likewise be
enforceable against any trusts created by Guarantor and shall inure to the
benefit of Bank, its successors and assigns.
10. This Guaranty shall not supersede any earlier guaranty of
Guarantor or any of them in which Bank has an interest, nor shall any later
guaranty of Guarantor or any of them in which Bank has an interest be
construed to supersede this Guaranty. The effect of any earlier, later or
other guaranty shall be cumulative with this Guaranty, whether or not the
interests of Bank in such earlier, later or other guaranty derives from
arrangements made directly with Guarantor or indirectly by way of Bank being a
transferee of all or part of obligations of Borrower guaranteed by Guarantor.
11. In addition to all other collateral and security provided
for herein, this Guaranty shall be secured by all collateral and security
previously, now or hereafter pledged to Bank by Guarantor and any security
previously, now or hereafter granted Bank by Guarantor, but only if such
pledge or grant of security interest specifically relates to the Liabilities.
12. Guarantor agrees that this Guaranty, and all obligations
hereunder shall remain in full force and effect at all times hereinafter
during the term hereof, notwithstanding any action or undertakings by, or
against, Bank, or concerning any collateral securing the Liabilities in any
proceeding under any bankruptcy law; including without limitation, matters
relating to valuation of collateral, election or imposition of secured or
unsecured claim status upon claims by Bank, pursuant to the Bankruptcy Code,
or Rules of Bankruptcy Procedure as may be applicable from time to time.
Guarantor understands and agrees that in the event any payment made by or on
behalf of Borrower respecting any Liability or any portion of any such payment
shall at any time be repaid by the recipient in compliance with an order
(whether or not final) by a court of competent jurisdiction pursuant to any
provision of any bankruptcy law as now existing or hereafter amended or
applicable state law, the Liabilities shall not be deemed to have been paid to
the extent of the repayment so made, the obligations of Guarantor shall
continue in full force and effect and such recipient, whether or not that be
Bank, will continue to be entitled to the full benefits of this Guaranty
notwithstanding any release, termination or return of this Guaranty. If
acceleration of the time for payment of any amount payable by Borrower to Bank
is stayed upon the insolvency, bankruptcy or reorganization of such Borrower,
all such amounts otherwise subject to acceleration under the terms of the
Liabilities shall nonetheless be payable by Guarantor hereunder forthwith on
demand by Bank.
13. Bank shall have no obligation to inform Guarantor, and
Guarantor agrees to assume all responsibility for keeping informed as to
Borrower's or other Guarantors financial condition, the possible non-payment
and non-performance of the Liabilities, the obligations of any Guarantor and
all matters relating to any collateral for the Liabilities or for this
Guaranty. At its option, Bank may, at any time, disclose information
concerning Borrower or any collateral for the Liabilities or this Guaranty,
but such disclosure shall not obligate Bank to provide the same information,
now or in the future, to all of the Guarantors or additional information of
any kind to Guarantor.
14. Guarantor hereby agrees that no payment of any Liability
shall entitle it by subrogation, indemnification, contribution, reimbursement
or otherwise to any payment by Borrower or by any other
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guarantor of any Liability or from or out of any property of Borrower or of
any other guarantor of any Liability until all Liabilities have been paid in
full.
15. Guarantor agrees to provide upon request of Bank financial
statements or such other information on Guarantor as Bank shall from time to
time reasonably request.
16. This Guaranty shall be governed by and construed in
accordance with the laws of the State of Missouri without regard to conflict
of laws principles.
17. Upon the occurrence and continuance of an Event of Default,
any and all indebtedness of Borrower for borrowed money now or hereafter owed
to Guarantor is hereby subordinated in right of payment to the payment of
amounts owing under this Guaranty, and if a default in the payment of any
amounts owing under this Guaranty shall have occurred and be continuing, any
such indebtedness of Borrower owed to Guarantor, if collected or received by
Guarantor, shall be held in trust by Guarantor for Bank and be paid over to
Bank for application in accordance with this Guaranty.
18. GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF
ANY STATE OR FEDERAL COURT SITTING IN THE COUNTY OF ST. LOUIS, MISSOURI OVER
ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY, AND
GUARANTOR HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT TO SUCH ACTION
OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE OR FEDERAL COURT.
GUARANTOR HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY
DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION
OR PROCEEDING. GUARANTOR AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR
PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY
SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.
19. The following notice is given pursuant to Section 432.047 of
the Missouri Revised Statutes; nothing contained in such notice shall be
deemed to limit or modify the terms of this Agreement. "ORAL AGREEMENTS OR
COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO FOREBEAR FROM ENFORCING
REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT
ENFORCEABLE REGARDLESS OF THE LEGAL THEORY UPON WHICH IT IS BASED, THAT IS IN
ANY WAY RELATED TO THE CREDIT AGREEMENT. TO PROTECT YOU (GUARANTOR) AND US
(CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE REACH
COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS WE MAY LATER AGREE
IN WRITING TO MODIFY IT."
20. GUARANTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY (WHICH
BANK ALSO WAIVES) IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND
ARISING OUT OF OR RELATING TO THIS GUARANTY, ANY LIABILITIES OR BANK'S CONDUCT
IN RESPECT TO ANY OF THE FOREGOING.
SIGNATURE PAGE FOLLOWS
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IN WITNESS WHEREOF, this instrument has been duly executed by
Guarantor this 14th day of March, 2007.
FUTUREFUEL CORP.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Executive Vice President
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