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EXHIBIT 10.1.2
GUARANTY
GUARANTY, dated as of December 21, 1999, made by LONE STAR MUD, INC., a
corporation organized and existing under the laws of Texas ("Guarantor"), in
favor of TRANSAMERICA EQUIPMENT FINANCIAL SERVICES CORPORATION ("Lender").
A. Lender and Xxxxxxxxx Drilling Company ("Borrower") have entered into
certain financing arrangements pursuant to which Lender may make loans and
advances to Borrower as set forth in the Loan and Security Agreement, dated of
even date herewith, by and among Lender, Borrower and Guarantor (as the same now
exists or may hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced, the "Loan Agreement"), and other agreements, documents,
and instruments referred to therein or at any time executed and/or delivered in
connection therewith or related thereto, including, but not limited to, this
Guaranty (all of the foregoing, together with the Loan Agreement, as the same
now exists or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced, being collectively referred to herein as the
"Loan Documents");
B. Due to the close business and financial relationships between
Borrower and the Guarantor, in consideration of the benefits which will accrue
to Guarantor and as an inducement for and in consideration of Lender making
loans and advances and providing other financial accommodations to Borrower
pursuant to the Loan Agreement and the other Loan Documents, the Guarantor
hereby agrees in favor of Lender as follows:
1. Guaranty.
(a) Guarantor absolutely and unconditionally, jointly and severally,
guarantees and agrees to be liable for the full and indefeasible payment and
performance when due of the following (all of which are collectively referred to
herein as the "Guaranteed Obligations"): (i) all obligations, liabilities and
indebtedness of any kind, nature and description of Borrower to Lender and/or
its affiliates, including principal, interest, charges, fees, costs and
expenses, however evidenced, whether as principal, surety, endorser, guarantor
or otherwise, arising under the Loan Agreement, or any of the other Loan
Documents, whether now existing or hereafter arising, whether arising before,
during or after the initial or any renewal term of the Loan Agreement or after
the commencement of any case with respect to Borrower under the United States
Bankruptcy Code or any similar statute (including, without limitation, the
payment of interest and other amounts, which would accrue and become due but for
the commencement of such case, whether or not such amounts are allowed or
allowable in whole or in part in any such case and including loans, interest,
fees, charges and expenses related thereto and all other obligations of Borrower
or its successors to Lender arising under the Loan Agreement or any of the other
Loan Documents after the commencement of such case), whether direct or indirect,
absolute or contingent, joint or several, due or not due, primary or secondary,
liquidated or unliquidated, secured or unsecured, and however acquired by Lender
and (ii) all expenses (including, without limitation, attorneys' fees and legal
expenses) incurred by Lender in connection with the preparation, execution,
delivery, recording, administration, collection, liquidation, enforcement and
defense of Borrower's
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obligations, liabilities and indebtedness as aforesaid to Lender, the rights of
Lender in any collateral or under this Guaranty and all other Loan Documents or
in any way involving claims by or against Lender directly or indirectly arising
out of or related to the relationships between Borrower, Guarantor or any other
Obligor (as hereinafter defined) and Lender under the Loan Agreement or any of
the other Loan Documents, whether such expenses are incurred before, during or
after the initial or any renewal term of the Loan Agreement and the other Loan
Documents or after the commencement of any case with respect to Borrower or
Guarantor under the United States Bankruptcy Code or any similar statute.
(b) This Guaranty is a guaranty of payment and not of collection.
Guarantor agrees that Lender need not attempt to collect any Guaranteed
Obligations from Borrower, any other guarantor or any other Obligor or to
realize upon any collateral, but may require Guarantor to make immediate payment
of all of the Guaranteed Obligations to Lender when due, whether by maturity,
acceleration or otherwise, or at any time thereafter. Lender may apply any
amounts received in respect of the Guaranteed Obligations to any of the
Guaranteed Obligations, in whole or in part (including attorneys' fees and legal
expenses incurred by Lender with respect thereto or otherwise chargeable to
Borrower or Guarantor) and in such order as Lender may elect.
(c) Payment by Guarantor shall be made to Lender at the office of
Lender from time to time on demand as Guaranteed Obligations become due.
Guarantor shall make all payments to Lender on the Guaranteed Obligations free
and clear of, and without deduction or withholding for or on account of, any
setoff, counterclaim, defense, duties, taxes, levies, imposts, fees, deductions,
withholding, restrictions or conditions of any kind. One or more successive or
concurrent actions may be brought hereon against the Guarantor and any other
guarantor either in the same action in which Borrower or any other Obligor is
sued or in separate actions. In the event any claim or action, or action on any
judgment, based on this Guaranty is brought against Guarantor, Guarantor agrees
not to deduct, set-off, or seek any counterclaim for or recoup any amounts which
are or may be owed by Lender to Guarantor.
2. Waivers and Consents.
(a) Notice of acceptance of this Guaranty, the making of loans and
advances and providing other financial accommodations to Borrower and
presentment, demand, protest, notice of protest, notice of nonpayment or default
and all other notices to which Borrower or Guarantor are entitled are hereby
waived by Guarantor. Guarantor also waives notice of and hereby consents to, (i)
any amendment, modification, supplement, extension, renewal, or restatement of
the Loan Agreement and any of the other Loan Documents, including, without
limitation, extensions of time of payment of or increase or decrease in the
amount of any of the Guaranteed Obligations, the interest rate, fees, other
charges, or any collateral, and the guaranty made herein shall apply to the Loan
Agreement and the other Loan Documents and the Guaranteed Obligations as so
amended, modified, supplemented, renewed, restated or extended, increased or
decreased, (ii) the taking, exchange, surrender and releasing of collateral or
guarantees now or at any time held by or available to Lender for the obligations
of Borrower or any other party at any time liable on or in respect of the
Guaranteed Obligations or who is the owner of any property which is security for
the Guaranteed Obligations (individually, an "Obligor" and collectively, the
"Obligors"), including, without limitation, the surrender or release by Lender
of any one of Guarantor hereunder, (iii) the exercise of, or refraining from the
exercise of any rights against Borrower, Guarantor or any other Obligor or any
collateral, (iv) the settlement, compromise or release of, or the waiver of any
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default with respect to, any of the Guaranteed Obligations and (v) any financing
by Lender of Borrower under Section 364 of the United States Bankruptcy Code or
consent to the use of cash collateral by Lender under Section 363 of the United
States Bankruptcy Code. The Guarantor agrees that the amount of the Guaranteed
Obligations shall not be diminished and the liability of Guarantor hereunder
shall not be otherwise impaired or affected by any of the foregoing.
(b) No invalidity, irregularity or unenforceability of all or any part
of the Guaranteed Obligations shall affect, impair or be a defense to this
Guaranty, nor shall any other circumstance which might otherwise constitute a
defense available to or legal or equitable discharge of Borrower in respect of
any of the Guaranteed Obligations, or the Guarantor in respect of this Guaranty,
affect, impair or be a defense to this Guaranty. Without limitation of the
foregoing, the liability of Guarantor hereunder shall not be discharged or
impaired in any respect by reason of any failure by Lender to perfect or
continue perfection of any lien or security interest in any collateral or any
delay by Lender in perfecting any such lien or security interest. As to
interest, fees and expenses, whether arising before or after the commencement of
any case with respect to Borrower under the United States Bankruptcy Code or any
similar statute, Guarantor shall be liable therefor, even if Borrower's
liability for such amounts does not, or ceases to, exist by operation of law.
Guarantor acknowledges that Lender has not made any representations to Guarantor
with respect to Borrower, any other Obligor or otherwise in connection with the
execution and delivery by Guarantor of this Guaranty and Guarantor is not in any
respect relying upon Lender or any statements by Lender in connection with this
Guaranty.
(c) Guarantor hereby irrevocably and unconditionally waives and
relinquishes all statutory, contractual, common law, equitable and all other
claims against Borrower, any collateral for the Guaranteed Obligations or other
assets of Borrower or any other Obligor, for subrogation, reimbursement,
exoneration, contribution, indemnification, setoff or other recourse in respect
to sums paid or payable to Lender by Guarantor hereunder and Guarantor hereby
further irrevocably and unconditionally waives and relinquishes any and all
other benefits which Guarantor might otherwise directly or indirectly receive or
be entitled to receive by reason of any amounts paid by or collected or due from
Guarantor, Borrower or any other Obligor upon the Guaranteed Obligations or
realized from their property.
3. Subordination. Payment of all amounts now or hereafter owed to
Guarantor by Borrower or any other Obligor is hereby subordinated in right of
payment to the indefeasible payment in full to Lender of the Guaranteed
Obligations and all such amounts and any security and guarantees therefor are
hereby assigned to Lender as security for the Guaranteed Obligations.
4. Acceleration. Notwithstanding anything to the contrary contained
herein or any of the terms of any of the other Loan Documents, the liability of
Guarantor for the entire Guaranteed Obligations shall mature and become
immediately due and payable, even if the liability of Borrower or any other
Obligor therefor does not, upon the occurrence of any act, condition or event
which constitutes an Event of Default as such term is defined in the Loan
Agreement.
5. Account Stated. The books and records of Lender showing the account
between Lender and Borrower shall be admissible in evidence in any action or
proceeding against or involving Guarantor as prima facie proof of the items
therein set forth, and the monthly statements of Lender rendered to Borrower, to
the extent to which no written objection is made within thirty
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(30) days from the date of sending thereof to Borrower, shall be deemed
conclusively correct and constitute an account stated between Lender and
Borrower and be binding on Guarantor.
6. Termination. This Guaranty is continuing, unlimited, absolute and
unconditional. All Guaranteed Obligations shall be conclusively presumed to have
been created in reliance on this Guaranty. Guarantor shall continue to be liable
hereunder until one of Lender's officers receives a written termination notice
from a Guarantor sent to Lender at its address set forth above by certified
mail, return receipt requested and thereafter as set forth below. Such notice
received by Lender from Guarantor shall not constitute a revocation or
termination of this Guaranty as to any other guarantor. Revocation or
termination hereof by Guarantor shall not affect, in any manner, the rights of
Lender or any obligations or duties of Guarantor (including the Guarantor which
may have sent such notice) under this Guaranty with respect to (a) Guaranteed
Obligations which have been created, contracted, assumed or incurred prior to
the receipt by Lender of such written notice of revocation or termination as
provided herein, including, without limitation, (i) all amendments, extensions,
renewals and modifications of such Guaranteed Obligations (whether or not
evidenced by new or additional agreements, documents or instruments executed on
or after such notice of revocation or termination), (ii) all interest, fees and
similar charges accruing or due on and after revocation or termination, and
(iii) all attorneys' fees and legal expenses, costs and other expenses paid or
incurred on or after such notice of revocation or termination in attempting to
collect or enforce any of the Guaranteed Obligations against Borrower, Guarantor
or any other Obligor (whether or not suit be brought), or (b) Guaranteed
Obligations which have been created, contracted, assumed or incurred after the
receipt by Lender of such written notice of revocation or termination as
provided herein pursuant to any contract entered into by Lender prior to receipt
of such notice. The sole effect of such revocation or termination by Guarantor
shall be to exclude from this Guaranty the liability of such Guarantor for those
Guaranteed Obligations arising after the date of receipt by Lender of such
written notice which are unrelated to Guaranteed Obligations arising or
transactions entered into prior to such date. Without limiting the foregoing,
this Guaranty may not be terminated and shall continue so long as the Loan
Agreement shall be in effect (whether during its original term or any renewal,
substitution or extension thereof).
7. Reinstatement. If after receipt of any payment of, or proceeds of
collateral applied to the payment of, any of the Guaranteed Obligations, Lender
is required to surrender or return such payment or proceeds to any Person for
any reason, then the Guaranteed Obligations intended to be satisfied by such
payment or proceeds shall be reinstated and continue and this Guaranty shall
continue in full force and effect as if such payment or proceeds had not been
received by Lender. Guarantor shall be liable to pay to Lender, and does
indemnify and hold Lender harmless for the amount of any payments or proceeds
surrendered or returned. This Section 7 shall remain effective notwithstanding
any contrary action which may be taken by Lender in reliance upon such payment
or proceeds. This Section 7 shall survive the termination or revocation of this
Guaranty.
8. Amendments and Waivers. Neither this Guaranty nor any provision
hereof shall be amended, modified, waived or discharged orally or by course of
conduct, but only by a written agreement signed by an authorized officer of
Lender. Lender shall not by any act, delay, omission or otherwise be deemed to
have expressly or impliedly waived any of its rights, powers and/or remedies
unless such waiver shall be in writing and signed by an authorized officer of
Lender. Any such waiver shall be enforceable only to the extent specifically set
forth therein. A waiver by Lender of any right, power and/or remedy on any one
occasion shall not be construed as a bar to
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or waiver of any such right, power and/or remedy which Lender would otherwise
have on any future occasion, whether similar in kind or otherwise.
9. Corporate Existence, Power and Authority. Guarantor is a corporation
duly organized and in good standing under the laws of the State of Texas and is
duly qualified as a foreign corporation and in good standing in all states or
other jurisdictions where the nature and extent of the business transacted by it
or the ownership of assets makes such qualification necessary, except for those
jurisdictions in which the failure to so qualify would not have a material
adverse effect on the financial condition, results of operation or businesses of
Guarantor or the rights of Lender hereunder or under any of the other Loan
Documents. The execution, delivery and performance of this Guaranty is within
the corporate powers of Guarantor, have been duly authorized and are not in
contravention of law or the terms of the certificates of incorporation, by-laws,
or other organizational documentation of Guarantor, or any indenture, agreement
or undertaking to which Guarantor is a party or by which Guarantor or its
property are bound. This Guaranty constitutes the legal, valid and binding
obligation of Guarantor enforceable in accordance with its terms.
10. Governing Law and Jury Trial Waiver.
(a) The validity, interpretation and enforcement of this Guaranty and
any dispute arising out of the relationship between Guarantor and Lender,
whether in contract, tort, equity or otherwise, shall be governed by the
internal laws of the State of Illinois (without giving effect to principles of
conflicts of law).
(b) GUARANTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS GUARANTY OR ANY OF THE
OTHER LOAN DOCUMENTS OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL
TO THE DEALINGS OF GUARANTOR AND LENDER IN RESPECT OF THIS GUARANTY OR ANY OF
THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT,
EQUITY OR OTHERWISE. GUARANTOR HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY
AND THAT GUARANTOR OR LENDER MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF GUARANTOR AND
LENDER TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11. Notices. All notices, requests and demands hereunder shall be in
writing and (a) made to Lender at its address set forth in the Loan Agreement
and to Guarantor at its chief executive office set forth below, or to such other
address as either party may designate by written notice to the other in
accordance with this provision, and (b) deemed to have been given or made: if
delivered in person, immediately upon delivery; if by telex, telegram or
facsimile transmission, immediately upon sending and upon confirmation of
receipt; if by nationally recognized overnight courier service with instructions
to deliver the next business day, one (1) business day after sending; and if by
certified mail, return receipt requested, five (5) days after mailing.
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12. Partial Invalidity. If any provision of this Guaranty is held to
be invalid or unenforceable, such invalidity or unenforceability shall not
invalidate this Guaranty as a whole, but this Guaranty shall be construed as
though it did not contain the particular provision held to be invalid or
unenforceable and the rights and obligations of the parties shall be construed
and enforced only to such extent as shall be permitted by applicable law.
13. Entire Agreement. This Guaranty represents the entire agreement
and understanding of the parties concerning the subject matter hereof, and
supersedes all other prior agreements, understandings, negotiations and
discussions, representations, warranties, commitments, proposals, offers and
contracts concerning the subject matter hereof, whether oral or written.
14. Successors and Assigns. This Guaranty shall be binding upon
Guarantor and its respective successors and assigns and shall inure to the
benefit of Lender and its successors, endorsees, transferees and assigns. The
liquidation, dissolution or termination of Guarantor shall not terminate this
Guaranty as to such entity or as to any other guarantor.
15. Construction. All references to the term "Guarantor" wherever used
herein shall mean Guarantor and its respective successors and assigns,
individually and collectively, jointly and severally (including, without
limitation, any receiver, trustee or custodian for Guarantor or any of its
respective assets or Guarantor in its capacity as debtor or debtor-in-possession
under the United States Bankruptcy Code). All references to the term "Lender"
wherever used herein shall mean Lender and its successors and assigns and all
references to the term "Borrower" wherever used herein shall mean Borrower and
its successors and assigns (including, without limitation, any receiver, trustee
or custodian for Borrower or any of its assets or Borrower in its capacity as
debtor or debtor-in-possession under the United States Bankruptcy Code). All
references to the term "Person" or "person" wherever used herein shall mean any
individual, sole proprietorship, partnership, corporation (including, without
limitation, any corporation which elects subchapter S status under the Internal
Revenue Code of 1986, as amended), limited liability company, limited liability
partnership, business trust, unincorporated association, joint stock
corporation, trust, joint venture or other entity or any government or any
agency or instrumentality of political subdivision thereof All references to the
plural shall also mean the singular and to the singular shall also mean the
plural.
IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty
as of the day and year first above written.
LONE STAR MUD, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Printed Name: Xxxxxx X. Xxxxxxx
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Title: CEO
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Chief Executive Office:
Xxxxxxx, Xxxxx 00000
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GUARANTY
GUARANTY, dated as of December 21, 1999, made by XXXXXXXXX ENERGY,
INC., a corporation organized and existing under the laws of Delaware
("Guarantor"), in favor of TRANSAMERICA EQUIPMENT FINANCIAL SERVICES CORPORATION
("Lender").
A. Lender and Xxxxxxxxx Drilling Company ("Borrower") have entered into
certain financing arrangements pursuant to which Lender may make loans and
advances to Borrower as set forth in the Loan and Security Agreement, dated of
even date herewith, by and among Lender, Borrower and Guarantor (as the same now
exists or may hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced, the "Loan Agreement"), and other agreements, documents,
and instruments referred to therein or at any time executed and/or delivered in
connection therewith or related thereto, including, but not limited to, this
Guaranty (all of the foregoing, together with the Loan Agreement, as the same
now exists or may hereafter be amended, modified, supplemented, extended,
renewed, restated or replaced, being collectively referred to herein as the
"Loan Documents");
B. Due to the close business and financial relationships between
Borrower and the Guarantor, in consideration of the benefits which will accrue
to Guarantor and as an inducement for and in consideration of Lender making
loans and advances and providing other financial accommodations to Borrower
pursuant to the Loan Agreement and the other Loan Documents, the Guarantor
hereby agrees in favor of Lender as follows:
1. Guaranty.
(a) Guarantor absolutely and unconditionally, jointly and severally,
guarantees and agrees to be liable for the full and indefeasible payment and
performance when due of the following (all of which are collectively referred to
herein as the "Guaranteed Obligations"): (i) all obligations, liabilities and
indebtedness of any kind, nature and description of Borrower to Lender and/or
its affiliates, including principal, interest, charges, fees, costs and
expenses, however evidenced, whether as principal, surety, endorser, guarantor
or otherwise, arising under the Loan Agreement, or any of the other Loan
Documents, whether now existing or hereafter arising, whether arising before,
during or after the initial or any renewal term of the Loan Agreement or after
the commencement of any case with respect to Borrower under the United States
Bankruptcy Code or any similar statute (including, without limitation, the
payment of interest and other amounts, which would accrue and become due but for
the commencement of such case, whether or not such amounts are allowed or
allowable in whole or in part in any such case and including loans, interest,
fees, charges and expenses related thereto and all other obligations of Borrower
or its successors to Lender arising under the Loan Agreement or any of the other
Loan Documents after the commencement of such case), whether direct or indirect,
absolute or contingent, joint or several, due or not due, primary or secondary,
liquidated or unliquidated, secured or unsecured, and however acquired by Lender
and (ii) all expenses (including, without limitation, attorneys' fees and legal
expenses) incurred by Lender in connection with the preparation, execution,
delivery, recording, administration, collection, liquidation, enforcement and
defense of Borrower's
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obligations, liabilities and indebtedness as aforesaid to Lender, the rights of
Lender in any collateral or under this Guaranty and all other Loan Documents or
in any way involving claims by or against Lender directly or indirectly arising
out of or related to the relationships between Borrower, Guarantor or any other
Obligor (as hereinafter defined) and Lender under the Loan Agreement or any of
the other Loan Documents, whether such expenses are incurred before, during or
after the initial or any renewal term of the Loan Agreement and the other Loan
Documents or after the commencement of any case with respect to Borrower or
Guarantor under the United States Bankruptcy Code or any similar statute.
(b) This Guaranty is a guaranty of payment and not of collection.
Guarantor agrees that Lender need not attempt to collect any Guaranteed
Obligations from Borrower, any other guarantor or any other Obligor or to
realize upon any collateral, but may require Guarantor to make immediate payment
of all of the Guaranteed Obligations to Lender when due, whether by maturity,
acceleration or otherwise, or at any time thereafter. Lender may apply any
amounts received in respect of the Guaranteed Obligations to any of the
Guaranteed Obligations, in whole or in part (including attorneys' fees and legal
expenses incurred by Lender with respect thereto or otherwise chargeable to
Borrower or Guarantor) and in such order as Lender may elect.
(c) Payment by Guarantor shall be made to Lender at the office of
Lender from time to time on demand as Guaranteed Obligations become due.
Guarantor shall make all payments to Lender on the Guaranteed Obligations free
and clear of, and without deduction or withholding for or on account of, any
setoff, counterclaim, defense, duties, taxes, levies, imposts, fees, deductions,
withholding, restrictions or conditions of any kind. One or more successive or
concurrent actions may be brought hereon against the Guarantor and any other
guarantor either in the same action in which Borrower or any other Obligor is
sued or in separate actions. In the event any claim or action, or action on any
judgment, based on this Guaranty is brought against Guarantor, Guarantor agrees
not to deduct, set-off, or seek any counterclaim for or recoup any amounts which
are or may be owed by Lender to Guarantor.
2. Waivers and Consents.
(a) Notice of acceptance of this Guaranty, the making of loans and
advances and providing other financial accommodations to Borrower and
presentment, demand, protest, notice of protest, notice of nonpayment or default
and all other notices to which Borrower or Guarantor are entitled are hereby
waived by Guarantor. Guarantor also waives notice of and hereby consents to, (i)
any amendment, modification, supplement, extension, renewal, or restatement of
the Loan Agreement and any of the other Loan Documents, including, without
limitation, extensions of time of payment of or increase or decrease in the
amount of any of the Guaranteed Obligations, the interest rate, fees, other
charges, or any collateral, and the guaranty made herein shall apply to the Loan
Agreement and the other Loan Documents and the Guaranteed Obligations as so
amended, modified, supplemented, renewed, restated or extended, increased or
decreased, (ii) the taking, exchange, surrender and releasing of collateral or
guarantees now or at any time held by or available to Lender for the obligations
of Borrower or any other party at any time liable on or in respect of the
Guaranteed Obligations or who is the owner of any property which is security for
the Guaranteed Obligations (individually, an "Obligor" and collectively, the
"Obligors"), including, without limitation, the surrender or release by Lender
of any one of Guarantor hereunder, (iii) the exercise of, or refraining from the
exercise of any rights against Borrower, Guarantor or any other Obligor or any
collateral, (iv) the settlement, compromise or release of, or the waiver of any
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default with respect to, any of the Guaranteed Obligations and (v) any financing
by Lender of Borrower under Section 364 of the United States Bankruptcy Code or
consent to the use of cash collateral by Lender under Section 363 of the United
States Bankruptcy Code. The Guarantor agrees that the amount of the Guaranteed
Obligations shall not be diminished and the liability of Guarantor hereunder
shall not be otherwise impaired or affected by any of the foregoing.
(b) No invalidity, irregularity or unenforceability of all or any part
of the Guaranteed Obligations shall affect, impair or be a defense to this
Guaranty, nor shall any other circumstance which might otherwise constitute a
defense available to or legal or equitable discharge of Borrower in respect of
any of the Guaranteed Obligations, or the Guarantor in respect of this Guaranty,
affect, impair or be a defense to this Guaranty. Without limitation of the
foregoing, the liability of Guarantor hereunder shall not be discharged or
impaired in any respect by reason of any failure by Lender to perfect or
continue perfection of any lien or security interest in any collateral or any
delay by Lender in perfecting any such lien or security interest. As to
interest, fees and expenses, whether arising before or after the commencement of
any case with respect to Borrower under the United States Bankruptcy Code or any
similar statute, Guarantor shall be liable therefor, even if Borrower's
liability for such amounts does not, or ceases to, exist by operation of law.
Guarantor acknowledges that Lender has not made any representations to Guarantor
with respect to Borrower, any other Obligor or otherwise in connection with the
execution and delivery by Guarantor of this Guaranty and Guarantor is not in any
respect relying upon Lender or any statements by Lender in connection with this
Guaranty.
(c) Guarantor hereby irrevocably and unconditionally waives and
relinquishes all statutory, contractual, common law, equitable and all other
claims against Borrower, any collateral for the Guaranteed Obligations or other
assets of Borrower or any other Obligor, for subrogation, reimbursement,
exoneration, contribution, indemnification, setoff or other recourse in respect
to sums paid or payable to Lender by Guarantor hereunder and Guarantor hereby
further irrevocably and unconditionally waives and relinquishes any and all
other benefits which Guarantor might otherwise directly or indirectly receive or
be entitled to receive by reason of any amounts paid by or collected or due from
Guarantor, Borrower or any other Obligor upon the Guaranteed Obligations or
realized from their property.
3. Subordination. Payment of all amounts now or hereafter owed to
Guarantor by Borrower or any other Obligor is hereby subordinated in right of
payment to the indefeasible payment in full to Lender of the Guaranteed
Obligations and all such amounts and any security and guarantees therefor are
hereby assigned to Lender as security for the Guaranteed Obligations.
4. Acceleration. Notwithstanding anything to the contrary contained
herein or any of the terms of any of the other Loan Documents, the liability of
Guarantor for the entire Guaranteed Obligations shall mature and become
immediately due and payable, even if the liability of Borrower or any other
Obligor therefor does not, upon the occurrence of any act, condition or event
which constitutes an Event of Default as such term is defined in the Loan
Agreement.
5. Account Stated. The books and records of Lender showing the account
between Lender and Borrower shall be admissible in evidence in any action or
proceeding against or involving Guarantor as prima facie proof of the items
therein set forth, and the monthly statements of Lender rendered to Borrower, to
the extent to which no written objection is made within thirty
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(30) days from the date of sending thereof to Borrower, shall be deemed
conclusively correct and constitute an account stated between Lender and
Borrower and be binding on Guarantor.
6. Termination. This Guaranty is continuing, unlimited, absolute and
unconditional. All Guaranteed Obligations shall be conclusively presumed to have
been created in reliance on this Guaranty. Guarantor shall continue to be liable
hereunder until one of Lender's officers receives a written termination notice
from a Guarantor sent to Lender at its address set forth above by certified
mail, return receipt requested and thereafter as set forth below. Such notice
received by Lender from Guarantor shall not constitute a revocation or
termination of this Guaranty as to any other guarantor. Revocation or
termination hereof by Guarantor shall not affect, in any manner, the rights of
Lender or any obligations or duties of Guarantor (including the Guarantor which
may have sent such notice) under this Guaranty with respect to (a) Guaranteed
Obligations which have been created, contracted, assumed or incurred prior to
the receipt by Lender of such written notice of revocation or termination as
provided herein, including, without limitation, (i) all amendments, extensions,
renewals and modifications of such Guaranteed Obligations (whether or not
evidenced by new or additional agreements, documents or instruments executed on
or after such notice of revocation or termination), (ii) all interest, fees and
similar charges accruing or due on and after revocation or termination, and
(iii) all attorneys' fees and legal expenses, costs and other expenses paid or
incurred on or after such notice of revocation or termination in attempting to
collect or enforce any of the Guaranteed Obligations against Borrower, Guarantor
or any other Obligor (whether or not suit be brought), or (b) Guaranteed
Obligations which have been created, contracted, assumed or incurred after the
receipt by Lender of such written notice of revocation or termination as
provided herein pursuant to any contract entered into by Lender prior to receipt
of such notice. The sole effect of such revocation or termination by Guarantor
shall be to exclude from this Guaranty the liability of such Guarantor for those
Guaranteed Obligations arising after the date of receipt by Lender of such
written notice which are unrelated to Guaranteed Obligations arising or
transactions entered into prior to such date. Without limiting the foregoing,
this Guaranty may not be terminated and shall continue so long as the Loan
Agreement shall be in effect (whether during its original term or any renewal,
substitution or extension thereof).
7. Reinstatement. If after receipt of any payment of, or proceeds of
collateral applied to the payment of, any of the Guaranteed Obligations, Lender
is required to surrender or return such payment or proceeds to any Person for
any reason, then the Guaranteed Obligations intended to be satisfied by such
payment or proceeds shall be reinstated and continue and this Guaranty shall
continue in full force and effect as if such payment or proceeds had not been
received by Lender. Guarantor shall be liable to pay to Lender, and does
indemnify and hold Lender harmless for the amount of any payments or proceeds
surrendered or returned. This Section 7 shall remain effective notwithstanding
any contrary action which may be taken by Lender in reliance upon such payment
or proceeds. This Section 7 shall survive the termination or revocation of this
Guaranty.
8. Amendments and Waivers. Neither this Guaranty nor any provision
hereof shall be amended, modified, waived or discharged orally or by course of
conduct, but only by a written agreement signed by an authorized officer of
Lender. Lender shall not by any act, delay, omission or otherwise be deemed to
have expressly or impliedly waived any of its rights, powers and/or remedies
unless such waiver shall be in writing and signed by an authorized officer of
Lender. Any such waiver shall be enforceable only to the extent specifically set
forth therein. A waiver by Lender of any right, power and/or remedy on any one
occasion shall not be construed as a bar to
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or waiver of any such right, power and/or remedy which Lender would otherwise
have on any future occasion, whether similar in kind or otherwise.
9. Corporate Existence, Power and Authority. Guarantor is a corporation
duly organized and in good standing under the laws of the State of Delaware and
is duly qualified as a foreign corporation and in good standing in all states or
other jurisdictions where the nature and extent of the business transacted by it
or the ownership of assets makes such qualification necessary, except for those
jurisdictions in which the failure to so qualify would not have a material
adverse effect on the financial condition, results of operation or businesses of
Guarantor or the rights of Lender hereunder or under any of the other Loan
Documents. The execution, delivery and performance of this Guaranty is within
the corporate powers of Guarantor, have been duly authorized and are not in
contravention of law or the terms of the certificates of incorporation, by-laws,
or other organizational documentation of Guarantor, or any indenture, agreement
or undertaking to which Guarantor is a party or by which Guarantor or its
property are bound. This Guaranty constitutes the legal, valid and binding
obligation of Guarantor enforceable in accordance with its terms.
10. Governing Law and Jury Trial Waiver.
(a) The validity, interpretation and enforcement of this Guaranty and
any dispute arising out of the relationship between Guarantor and Lender,
whether in contract, tort, equity or otherwise, shall be governed by the
internal laws of the State of Illinois (without giving effect to principles of
conflicts of law).
(b) GUARANTOR HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS GUARANTY OR ANY OF THE
OTHER LOAN DOCUMENTS OR (ii) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL
TO THE DEALINGS OF GUARANTOR AND LENDER IN RESPECT OF THIS GUARANTY OR ANY OF
THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS RELATED HERETO OR THERETO IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT,
EQUITY OR OTHERWISE. GUARANTOR HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY
AND THAT GUARANTOR OR LENDER MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS
AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF GUARANTOR AND
LENDER TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
11. Notices. All notices, requests and demands hereunder shall be in
writing and (a) made to Lender at its address set forth in the Loan Agreement
and to Guarantor at its chief executive office set forth below, or to such other
address as either party may designate by written notice to the other in
accordance with this provision, and (b) deemed to have been given or made: if
delivered in person, immediately upon delivery; if by telex, telegram or
facsimile transmission, immediately upon sending and upon confirmation of
receipt; if by nationally recognized overnight courier service with instructions
to deliver the next business day, one (1) business day after sending; and if by
certified mail, return receipt requested, five (5) days after mailing.
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12. Partial Invalidity. If any provision of this Guaranty is held to be
invalid or unenforceable, such invalidity or unenforceability shall not
invalidate this Guaranty as a whole, but this Guaranty shall be construed as
though it did not contain the particular provision held to be invalid or
unenforceable and the rights and obligations of the parties shall be construed
and enforced only to such extent as shall be permitted by applicable law.
13. Entire Agreement. This Guaranty represents the entire agreement and
understanding of the parties concerning the subject matter hereof, and
supersedes all other prior agreements, understandings, negotiations and
discussions, representations, warranties, commitments, proposals, offers and
contracts concerning the subject matter hereof, whether oral or written.
14. Successors and Assigns. This Guaranty shall be binding upon
Guarantor and its respective successors and assigns and shall inure to the
benefit of Lender and its successors, endorsees, transferees and assigns. The
liquidation, dissolution or termination of Guarantor shall not terminate this
Guaranty as to such entity or as to any other guarantor.
15. Construction. All references to the term "Guarantor" wherever used
herein shall mean Guarantor and its respective successors and assigns,
individually and collectively, jointly and severally (including, without
limitation, any receiver, trustee or custodian for Guarantor or any of its
respective assets or Guarantor in its capacity as debtor or debtor-in-possession
under the United States Bankruptcy Code). All references to the term "Lender"
wherever used herein shall mean Lender and its successors and assigns and all
references to the term "Borrower" wherever used herein shall mean Borrower and
its successors and assigns (including, without limitation, any receiver, trustee
or custodian for Borrower or any of its assets or Borrower in its capacity as
debtor or debtor-in-possession under the United States Bankruptcy Code). All
references to the term "Person" or "person" wherever used herein shall mean any
individual, sole proprietorship, partnership, corporation (including, without
limitation, any corporation which elects subchapter S status under the Internal
Revenue Code of 1986, as amended), limited liability company, limited liability
partnership, business trust, unincorporated association, joint stock
corporation, trust, joint venture or other entity or any government or any
agency or instrumentality of political subdivision thereof All references to the
plural shall also mean the singular and to the singular shall also mean the
plural.
IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty
as of the day and year first above written.
XXXXXXXXX ENERGY, INC.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Printed Name: Xxxxxx X. Xxxxxxx
------------------------
Title: CEO
-------------------------------
Chief Executive Office:
0000 Xxxxxx Xxxxxxx
X.X. Xxxxxx 0000
Xxxxxx, Xxxxx 00000
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