SECOND AMENDED AND RESTATED LIMITED GUARANTY
SECOND
AMENDED AND RESTATED LIMITED GUARANTY
THIS
SECOND AMENDED AND RESTATED LIMITED GUARANTY is
made
as of the ___ day of November, 2005, by and among XXXXXX-XXXXXXX COMPANY, a
Texas corporation (“Xxxxxx”)
and
THREE D OIL CO. OF KILGORE, INC., a Texas corporation (“Three D;”
together with Xxxxxx, individually a “Company”
and
collectively, the “Companies”),
THE
CIT GROUP/BUSINESS CREDIT, INC. (“CIT”)
as
administrative and collateral agent (“Agent”)
for
the Lenders (as hereinafter defined) party to the Financing Agreement (as
hereinafter defined), and XXXXXX X. XXXXX, an individual residing at 0000
Xxxxxxx Xxxx, Xxxxxxx, Xxxxx 00000 (“Guarantor”).
RECITALS
A. Reference
is made (a) to that certain Amended and Restated and Financing Agreement,
dated April 8, 2005, by and among the Companies, Agent and CIT as a Lender
and
SunTrust Bank as a Lender (collectively, “Lenders”)
(as
amended, restated, modified or supplemented and in effect from time to time,
the
“Financing
Agreement”),
and
to the other Loan Documents, and (b) to that certain Amended and Restated
Limited Guaranty, executed in November of 2004 by Guarantor, in favor of CIT,
in
connection with the payment of the Obligations (as defined in the Financing
Agreement) (the “Existing
Limited Guaranty”)
(the
Existing Limited Guaranty itself being in renewal, extension, amendment and
restatement, but not in novation, of the provisions of that certain Limited
Guaranty, dated October 10, 2003, executed by Guarantor, in favor of
CIT).
B. Guarantor
and Agent, on behalf of itself and the Lenders, now desire to amend and restate
the Existing Limited Guaranty and the provisions of this Second Amended and
Restated Limited Guaranty are in renewal, extension, amendment, and restatement,
but not in novation, of the provisions of the Existing Limited Guaranty (the
Existing Limited Guaranty, as amended and restated by this Second Amended and
Restated Limited Guaranty, being hereinafter referred to as the “Agreement”).
C. Guarantor
confirms and affirms he requested that Agent and Lenders extend the Revolving
Loans to the Companies pursuant to the terms of the Financing Agreement and
the
other Loan Documents, and that the obligations of Agent and Lenders to execute
and deliver the Loan Documents and to make the Revolving Loans to the Companies
were conditioned on, and continue to be conditioned on, among other things,
the
execution of this Agreement.
D. Guarantor
acknowledges and confirms that (a) Guarantor has benefitted and will
continue to benefit from the execution, delivery and performance by Agent and
Lenders of the Financing Agreement and the other Loan Documents and the making
of advances and/or funding of the Revolving Loans to the Companies, (b) the
Revolving Loans by Agent and Lenders have constituted and will continue to
constitute valuable consideration to Guarantor, (c) this Agreement was
intended and continues to be intended to be an inducement to Agent and Lenders
to execute, deliver and perform the Financing Agreement and the other Loan
Documents and to fund the Revolving Loans; and (d) Agent and Lenders
have
relied and will continue to rely upon this Agreement in making advances and/or
funding the Revolving Loans to the Companies.
Accordingly,
for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and as an inducement for Agent and Lenders to enter into
the Loan Documents, the parties hereto, intending to be legally bound, do hereby
agree as follows:
SECTION
1
DEFINITIONS
1.1. Definitions.
Capitalized terms used herein and not otherwise defined shall have the meanings
assigned to such terms in the Financing Agreement or, to the extent the same
are
used or defined therein, the meanings provided in Article 9 of the UCC
in
effect on the date hereof. Whenever the context so requires, each reference
to
gender includes the masculine and feminine, the singular number includes the
plural and vice versa. This Agreement shall mean such agreement as the same
now
exists or may hereafter be amended, modified, supplemented, extended, renewed,
restated or replaced, from time to
time.
Unless otherwise specified, all accounting terms not defined in the Loan
Documents shall have the meanings given to such terms in and shall be
interpreted in accordance with GAAP. References in this
Agreement to any Person shall include such Person and its successors and
permitted assigns.
1.2. Defined
Terms.
In this
Agreement, the following terms shall mean as follows:
“Default”
shall
mean any event, fact, circumstance or condition that, with the giving of
applicable notice or passage of time or both, would constitute, be or result
in
an Event of Default hereunder or under any Loan Document.
“Event of Default”
shall
mean the occurrence of any event set forth in Section 5.
“Loan
Collateral”
shall
mean the Collateral as defined in the Loan Documents.
SECTION
2
LIMITED
GUARANTY
2.1. Guaranty
of Obligations.
Subject
to the last sentence of this Section
2.1,
Guarantor hereby unconditionally and absolutely guarantees the prompt and
punctual payment and performance of the Revolving Loans, all amounts from time
to time payable by the Companies in connection with the Revolving Loans
(including without limitation, all principal, interest, and all other monetary
obligations, including reasonable attorneys fees, costs, expenses and
indemnities, whether primary, secondary, contingent, fixed or otherwise in
connection with the Revolving Loans) and all other Obligations and terms,
covenants and agreements of the Loan Documents and obligations to Agent and
Lenders hereunder and under the Loan Documents, in any case whether according
to
the present terms hereof and thereof, at any earlier or accelerated date or
pursuant to any extension of time or to any change therein now or at any time
hereafter made or granted (the obligations so guaranteed shall be collectively
referred to herein as the “Guaranteed
Obligations”).
The
Guaranteed Obligations includes in all cases, all such obligations that arise
after the filing of a bankruptcy petition with respect to the Companies and/or
Guarantor and all such obligations that will become payable but for the
operation of (i) the automatic stay under Section 362(a) of the Bankruptcy
Code,
(ii) Section 502(b) of the Bankruptcy Code, or (iii) Section 506(b) of the
Bankruptcy Code, including, but not limited to, interest, fees and expenses
accruing with respect to the Obligations after the filing of a bankruptcy
petition, whether or not allowed or allowable as a claim in the bankruptcy
proceeding. Notwithstanding any other provision of any Loan Document or this
Agreement, Agent’s right to seek any payment from Guarantor on account of the
Guaranteed Obligations shall be limited to, and shall not under any
circumstances exceed $2,000,000, and Guarantor shall not be liable for any
deficiency in excess of $2,000,000.
2.2. Binding
Effect.
(a) Subject
to the last sentence of Section
2.1,
this
guaranty is a continuing guarantee of prompt and punctual payment of the
Guaranteed Obligations, whether at stated maturity, by acceleration or
otherwise, and not merely a guaranty of collection. Guarantor agrees that
Guarantor’s obligations hereunder are absolute and unconditional, independent of
the obligations of the Companies or any other Person, and shall be binding
upon
Guarantor and Guarantor’s successors and assigns, and are irrevocable without
regard to the genuineness, validity, legality or enforceability of the Revolving
Loans or Obligations or the lack of power or authority of the Companies to
enter
into any Loan Document or any substitution, release or exchange of any other
guaranty of or any security for any of the Guaranteed Obligations or any other
circumstances (other than payment or performance) which might otherwise
constitute a legal or equitable discharge of a surety or guarantor and shall
not
be subject to any right of set-off or counterclaim and are in no way conditioned
upon any attempt to enforce performance or compliance by the Companies or any
other event or contingency.
(b) Guarantor
agrees that, if at any time all or any part of any payment previously applied
by
Agent or Lenders to any Guaranteed Obligation must be returned by Agent or
Lenders for any reason, whether by court order, administrative order, or
settlement, Guarantor, subject to the limitations of Section
2.1,
remains
liable for the full amount returned as if such amount had never been received
by
Agent or Lenders, notwithstanding any termination of this Agreement or any
Loan
Document or the cancellation of this Agreement or any Loan Document or any
other
agreement evidencing the Guaranteed Obligations.
(c) Guarantor
expressly waives any defenses or benefits available to Guarantor as a result
of
the exercise by Agent or Lenders of nonjudicial or judicial remedies against
the
Companies, Guarantor or any Loan Collateral, and further expressly waives any
defenses or benefits arising out of or against any Loan Collateral. Without
limiting the generality of the foregoing, neither Agent nor Lenders shall be
required to make any demand on any other guarantor of the Guaranteed Obligations
or otherwise pursue or exhaust their remedies against the Companies, Loan
Collateral, any other guarantor of the Guaranteed Obligations or any other
Person before enforcing their rights and remedies against Guarantor hereunder,
and any one or more successive and/or concurrent actions may be brought against
Guarantor in the same action brought against the Companies or any other Person
or in separate actions, as often as Agent or Lenders may deem advisable, in
their sole discretion. The obligations of Guarantor hereunder and under the
Loan
Documents shall not in any way be affected by any action or inaction of Agent
or
Lenders, which action or inaction is hereby consented and agreed to by
Guarantor, or by the partial or complete unenforceability or invalidity of
any
other guaranty, pledge, assignment or Lien for any of the Guaranteed Obligations
or of the value, genuineness, validity or enforceability of the Loan Collateral
or any of the Guaranteed Obligations or Loan Documents.
2.3. Defenses
of the Companies Waived.
The
Loan Documents remain fully enforceable irrespective of any defenses which
any
Company or Guarantor may assert under any Loan Document, including, but not
limited to, failure of consideration, breach of warranty, payment, statute
of
frauds, statute of limitations, accord and satisfaction and usury (other than
prior indefeasible payment in full in cash of the Guaranteed Obligations by
the
Companies).
2.4. Liability
of Guarantor.
Guarantor agrees that each of Agent and each Lender shall have the full right
and power, in its sole discretion and without any notice to or consent from
Guarantor and without affecting or discharging, in whole or in part, the
liability of Guarantor under this Agreement or any Loan Document, to deal in
any
manner with the Guaranteed Obligations, Loan Collateral and any security or
guaranties therefor. Without limiting the generality of the foregoing, the
occurrence of any one or more of the following shall not affect Guarantor’s
obligations hereunder or under the Loan Documents: (a) new agreements or
obligations of the Companies with or to Agent or Lenders or increases,
amendments, extensions, modification, renewals or waivers of default as to
any
existing or future agreements or obligations of the Companies or third parties
with or to Agent or Lenders or extensions of credit by Agent or Lenders to
the
Companies; (b) adjustments, compromises or releases of any obligations to or
of
the Companies, Guarantor or other Persons, or exchanges, releases of sales
of
any security or collateral of the Companies, Guarantor or other Persons; (c)
errors, omissions, invalidity or unenforceability of any Loan Document or this
Agreement; (d) reorganization, extensions, moratoria or other relief granted
to
the Companies pursuant to any law presently in force or hereafter enacted;
(e)
interruptions in the business relations between Agent or Lenders and the
Companies; (f) the release or exchange, in whole or in part, of any other
guaranty of the Guaranteed Obligations or any security or collateral therefor
or
any action or inaction by Agent or Lenders with respect thereto; (g) the failure
of any Person to sign any similar guaranty; (h) subsequent reorganization,
merger or consolidation of the Companies or any other change in its structure,
nature, personnel or location; or (i) any impairment, modification, change,
release or limitation of the liability of the Companies, any other guarantor
of
the Guaranteed Obligations or any other Person or their respective estates
in
bankruptcy resulting from the operation of any present or future provision
of
the bankruptcy laws or other similar statute, or from the decision of any
court.
2.5. Event
of Default.
If an
Event of Default shall occur and be continuing, Agent or any assignee thereof
shall be entitled to receive hereunder from Guarantor, upon demand therefor,
all
of the Guaranteed Obligations, subject to the last sentence of Section
2.1.
2.6. Subordination
of Certain Rights.
Upon
payment by Guarantor of any sums to Agent and Lenders, all rights of Guarantor
against the Companies arising as a result thereof by way of subrogation,
contribution, reimbursement, indemnity or otherwise shall in all respects be
subordinate and junior in right of payment to the prior indefeasible payment
in
full in cash and performance of all the remaining Guaranteed Obligations. If
any
amount shall erroneously be paid to Guarantor for any reason, such amount shall
be held in trust for the benefit of Agent and Lenders and shall forthwith be
paid to Agent to be credited against the Obligations, whether matured or
unmatured, in accordance with the terms of the Loan Documents. Guarantor shall
have no right of subrogation whatsoever with respect to the Guaranteed
Obligations or to any collateral therefor until the Guaranteed Obligations
have
been irrevocably and indefeasibly paid in full in cash and performed in full
and
the Financing Agreement and this Agreement have been terminated.
2.7. Savings
Clause.
(a) It
is the
intent of Guarantor and Agent and Lenders that, subject
to the last sentence of Section
2.1,
Guarantor’s maximum obligations hereunder shall be up to, but not in excess of,
the maximum amount which would not otherwise cause the Guaranteed Obligations
to
be avoidable or unenforceable against Guarantor under (i) Section 548 of the
Bankruptcy Code (in any case commenced by or against Guarantor within one (1)
year from the date on which any of the Guaranteed Obligations are incurred),
(ii) any state fraudulent transfer or fraudulent conveyance act or statute
applied in any case or proceeding by virtue of Section 544 of the Bankruptcy
Code, or (iii) any law, statute or regulation other than the Bankruptcy Code
(including, without limitation, any receivership, readjustment of debt,
dissolution, liquidation or similar debtor relief laws), without limitation,
any
state fraudulent transfer or fraudulent conveyance act or statute applied in
any
case or proceeding commenced by or against Guarantor in any case or proceeding
of any nature. (The substantive laws under which the possible avoidance or
unenforceability of the Guaranteed Obligations shall be determined in any such
case or proceeding shall be referred to herein as the “Avoidance
Provisions”).
(b) To
the
extent set forth in subsections
(i),
(ii),
and
(iii)
of
Section
2.7(a)
above,
but only to the extent that the Guaranteed Obligations would otherwise be
subject to avoidance under the Avoidance Provisions, if Guarantor is not deemed
to have received valuable consideration or reasonably equivalent value for
the
Guaranteed Obligations, or if the Guaranteed Obligations would render Guarantor
insolvent, or cause Guarantor to have incurred debts beyond Guarantor’s ability
to pay such debts as they mature, in each case as of the time any of the
Guaranteed Obligations are deemed to have been incurred under the Avoidance
Provisions and after giving effect to the contribution by Guarantor, the maximum
Guaranteed Obligations for which Guarantor shall be liable hereunder shall
be
reduced to that amount which, after giving effect thereto, would not cause
the
Guaranteed Obligations, as so reduced, to be subject to avoidance under the
Avoidance Provisions. This section is intended solely to preserve the rights
of
Agent and Lenders, and neither Guarantor nor any other Person shall have any
right or claim under this section against Agent or Lenders that would not
otherwise be available to such person under the Avoidance
Provisions.
SECTION
3
REPRESENTATIONS,
WARRANTIES AND COVENANTS
Guarantor
hereby represents and warrants to Agent and Lenders as of the date hereof (which
representations and warranties shall survive the execution and delivery of
this
Agreement and the making of the Revolving Loans under the Financing Agreement)
as follows:
3.1. [Intentionally
Omitted]
3.2. Authorization.
Guarantor is an individual citizen of the United States residing at the address
set forth in the first paragraph of this Agreement and has full legal
capacity and requisite power, right and authority to
consummate the transactions contemplated under this Agreement and the other
Loan
Documents to which Guarantor is a party and is not under any legal restriction,
limitation or disability that would prevent Guarantor from entering into and
performing under this Agreement. The execution, delivery and performance by
Guarantor of this Agreement and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
actions on the part of Guarantor and pursuant to all necessary consents required
therefor. This Agreement has been duly executed and delivered by Guarantor
and
constitutes the legal, valid and binding obligation of Guarantor, enforceable
against Guarantor in accordance with its terms, subject to the effect of any
applicable bankruptcy, moratorium, insolvency, reorganization or other similar
law affecting the enforceability of creditors’ rights generally and to the
effect of general principles of equity which may limit the availability of
equitable remedies (whether in a proceeding at law or in equity). No approval,
consent, authorization of, filing registration or qualification with, or other
action by, Guarantor or any other Person or governmental authority is or will
be
necessary to permit the valid execution, delivery and performance of this
Agreement by Guarantor.
3.3. No
Conflicts.
The
execution, delivery and performance by Guarantor of this Agreement do not and
will not (1) conflict with or violate any provision of any applicable
law,
statute, rule, regulation, ordinance, license or tariff or any judgment, decree
or order of any court or other governmental authority binding on or applicable
to Guarantor or any of Guarantor’s properties or assets; (2) conflict with,
result in a breach of, constitute a default of or an event of default under,
or
an event, fact, condition or circumstance which, with notice or passage of
time,
or both, would constitute or result in a conflict, breach, default or event
of
default under, require any consent not obtained under, or result in or require
the acceleration of any indebtedness pursuant to, any indenture, agreement
or
other instrument to which Guarantor is a party or by which Guarantor, or any
of
Guarantor’s properties or assets are bound or subject; (3) if applicable,
conflict with or violate any provision of the certificate of incorporation
or
formation, by-laws, limited liability company agreement or similar documents
of
Guarantor; or (4) result in the creation or imposition of any Lien of
any
nature whatsoever upon any of the properties or assets of
Guarantor.
3.4. Non-Subordination.
The
obligations of Guarantor under this Agreement are not subordinated in any way
to
any other obligation of Guarantor or to the rights of any other Person, and
Guarantor is not a party to or bound by any other agreement, document or
instrument that otherwise relates to the Guaranteed Obligations.
3.5. Litigation
and Compliance; Other Agreements.
(a) Guarantor
is not in default or breach of the performance, observance or fulfillment of
any
obligation, covenant or condition contained in any agreement, document or
instrument to which Guarantor is a party or by which Guarantor or any of
Guarantor’s properties or assets is or are bound or subject, which default or
breach, if not remedied within any applicable grace period or cure period,
could
reasonably be expected to have or result in a material adverse effect. There
is
no action, suit, proceeding or investigation pending or, to Guarantor’s
knowledge, threatened before or by any court, arbitrator or governmental
authority (1) against or affecting the Loan Collateral, Guarantor, any entity
whose securities constitute the Loan Collateral, this Agreement or the
transactions contemplated hereby, or (2) that questions or could reasonably
be
expected to prevent the validity of this Agreement or any Loan Document or
the
right or ability of Guarantor or the Companies to execute or deliver this
Agreement or any Loan Document or to consummate the transactions contemplated
hereby or thereby.
(b) Guarantor
is not (i) a party to any judgment, order or decree or any agreement, document
or instrument, or subject to any restriction, which would materially adversely
affect its ability to execute and deliver, or perform under, this Agreement,
or
(ii) in default in the performance, observance or fulfillment of any obligation,
covenant or condition contained in any agreement, document or instrument to
which Guarantor is a party or to which any of Guarantor’s properties or assets
are subject, which default, if not remedied within any applicable grace or
cure
period, could reasonably be expected to have or be a material adverse effect,
nor is there any event, fact, condition or circumstance which, with notice
or
passage of time or both, would constitute or result in a conflict, breach,
default or event of default under, any of the foregoing which, if not remedied
within any applicable grace or cure period could reasonably be expected to
have
or be a material adverse effect.
3.6. Truthful
Disclosure.
The
representations and warranties made by Guarantor in this Agreement do not and
will not contain any untrue statement of material fact or omit to state any
fact
necessary to make the statements herein and therein not materially misleading,
and there is no fact known to Guarantor which Guarantor has not disclosed to
Agent and Lenders in writing which could reasonably be expected to have or
result in a material adverse effect.
3.7. Covenants.
(a) Guarantor
shall not (i) cause or permit to be done, or enter into or make or become
a
party to any agreement, arrangement or commitment to do or cause to be done,
any
of the things prohibited by this Agreement or that would breach this Agreement,
or (ii) enter into or make or become a party to any agreement, document
or
instrument or arrangement that conflicts with this Agreement or that would
prevent Guarantor from complying herewith and/or performing
hereunder.
(b) Guarantor
hereby agrees to take or cause to be taken promptly such further actions, obtain
such consents and approvals and duly execute and deliver or cause to be executed
and delivered such further agreements, assignments, instructions or documents
Agent may request with respect to or in order to fully effectuate the purposes,
terms and conditions of this Agreement and the consummation of the transactions
contemplated hereby, whether before, at or after the performance and/or
consummation of such transactions or the occurrence of a Default or Event of
Default. Without limiting the foregoing, upon the exercise by Agent or any
of
its Affiliates or agents of any right or remedy which requires any consent,
approval or registration with, consent, qualification or authorization by,
any
Person, Guarantor shall execute and deliver, or cause the execution and delivery
of, all applications, certificates, instruments and other documents that Agent
or its Affiliate or agents may be required to obtain for such consent, approval,
registration, qualification or authorization. Guarantor hereby appoints Agent,
its attorney-in-fact (without requiring Agent to act as such), with full power
of substitution, which appointment as attorney-in-fact is irrevocable and
coupled with an interest, to take all such actions, whether in the name of
Agent, or Guarantor, as Agent may consider necessary or desirable with respect
to the foregoing (to the extent Guarantor fails to so execute and/or file any
of
the foregoing within two (2) Business Days of Agent’s request or the time when
Guarantor is otherwise obligated to do so).
(c) If
Guarantor is an individual, Guarantor shall deliver to Agent upon execution
of
this Agreement or, if Guarantor is not currently married, within thirty (30)
days after Guarantor marries, a Spousal Acknowledgment and Stipulation in the
form attached as Exhibit
A
hereto
executed by Guarantor’s spouse.
(d) Guarantor
shall promptly, and in any event within twenty (20) Business Days thereafter,
notify Agent of any change of his residence address.
3.8. Provisions
of Financing Agreement.
Guarantor acknowledges and confirms receipt of the Loan Documents and hereby
acknowledges all terms and provisions of the Loan Documents, the creation of
the
Obligations and the granting of security interests by the Companies, including,
without limitation, the rights of Lenders to assign and participate any part
of
the Revolving Loans pursuant to the Financing Agreement.
3.9. No
Third Party Beneficiary.
No
rights are intended to be created under this Agreement for the benefit of any
third party donee, creditor or incidental beneficiary of Guarantor.
SECTION
4
EVENTS
OF DEFAULT
The
occurrence of any one or more of the following shall constitute an “Event of
Default:” under this Agreement (a) Guarantor shall be in violation, breach
or default of, or shall fail to perform, observe or comply with any covenant,
obligation or agreement set forth in, this Agreement or any other Loan Document
to which Guarantor is a party and such failure shall not be cured within the
applicable period, if any; (b) any representation, statement or warranty made
or
deemed made by Guarantor in this Agreement shall not be true and correct in
all
material respects or shall have been false or misleading in any material respect
on the date when made or deemed to have been made (except to the extent already
qualified by materiality, in which case it shall be true and correct in all
respects and shall not be false or misleading in any respect) except those
made
as of a specific date; (c) any Event of Default (as defined in the Financing
Agreement) shall occur and be continuing past any cure period and shall not
have
been waived in writing; or (d) if prior to termination of this Agreement
pursuant to Section
7.11
hereof,
this Agreement shall cease to be in full force and effect.
SECTION
5
MISCELLANEOUS
5.1. No
Waiver of Defaults; Waiver.
(a) No
course
of action or dealing, renewal, waiver, release or extension of any provision
of
any Loan Document or this Agreement, or single or partial exercise of any such
provision, or delay, failure or omission on Agent’s or any Lender’s part in
enforcing any such provision shall affect the liability of Guarantor or operate
as a waiver of such provision or preclude any other or further exercise of
such
provision. No waiver by Agent or Lenders of any one or more defaults by any
other party in the performance of any of the provisions of any Loan Document
or
this Agreement shall operate or be construed as a waiver of any future default,
whether of a like or different nature, and each such waiver shall be limited
solely to the express terms and provisions of such waiver.
(b) Notwithstanding
any other provision of any Loan Document or this Agreement, by completing the
closing of the Financing Agreement and/or making of advances and/or funding
the
Revolving Loans, neither Agent nor any Lender waives any breach of any
representation or warranty under any Loan Document or this Agreement, and all
of
Agent’s and Lenders’ claims and rights resulting therefrom are specifically
reserved. Except as expressly provided for herein, Guarantor hereby waives
setoff, counterclaim, demand, presentment, protest, all defenses with respect
to
any and all instruments and all notices and demands of any description
(including,
without limitation, notice of acceptance hereof, notice of any Loan made, credit
extended, collateral received or delivered)
and the
pleading of any statute of limitations as a defense to any demand under any
Loan
Document, it being the intention that Guarantor shall remain liable under this
Agreement and the Loan Documents until the full amount of all Guaranteed
Obligations shall have been indefeasibly paid in cash and performed and
satisfied in full and the Financing Agreement terminated, notwithstanding any
act, omission or anything else which might otherwise operate as a legal or
equitable discharge of Guarantor. Guarantor hereby waives any and all defenses
and counterclaims Guarantor may have or could interpose in any action or
procedure brought by Agent or Lenders to obtain an order of court recognizing
the assignment of, or Lien of Agent, in and to, any Loan
Collateral.
5.2. Entire
Agreement.
This
Agreement and the other Loan Documents to which Guarantor is a party constitute
the entire agreement between Guarantor and Agent and Lenders with respect to
the
subject matter hereof and thereof, and supersede all prior agreements and
understandings, if any, relating to the subject matter hereof or thereof. Any
promises, representations, warranties or guarantees not herein contained and
hereinafter made shall have no force and effect unless in writing signed by
the
parties hereto. Each party hereto acknowledges that it has been advised by
counsel in connection with the negotiation and execution of this Agreement
and
is not relying upon oral representations or statements inconsistent with the
terms and provisions hereof.
5.3. Amendment.
No
provision of this Agreement may be changed, modified, amended, restated, waived,
supplemented, discharged, canceled or terminated orally or by any course of
dealing or in any other manner other than by a written agreement signed by
Agent
and Guarantor. Guarantor acknowledges that Guarantor has been advised by counsel
in connection with the negotiation and execution of this Agreement and is not
relying upon oral representations or statements inconsistent with the terms
and
provisions hereof.
5.4. Notices.
Any
notice or request under this Agreement shall be given to any party hereto at
such party’s address set forth beneath its signature on the signature page
hereto, or at such other address as such party may hereafter specify in a notice
given in the manner required under this Section
5.4.
Any
such notice or request shall be given only by, and shall be deemed to have
been
received upon (each, a “Receipt”):
(a) registered or certified mail, return receipt requested, on the date
on
which such received as indicated in such return receipt, (b) delivery
by a
nationally recognized overnight courier, one (1) Business Day after deposit
with
such courier, or (c) facsimile or electronic transmission, in each case upon
telephone or further electronic communication from the recipient acknowledging
receipt (whether automatic or manual from recipient), as
applicable.
5.5. Governing
Law; Jurisdiction; Construction.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of Texas without giving effect to its choice of law
provisions. Any judicial proceeding against Guarantor with respect to any of
the
Guaranteed Obligations or this Agreement may be brought in any federal or state
court of competent jurisdiction located in the State of Texas. By execution
and
delivery of this Agreement, Guarantor (a) accepts the non-exclusive
jurisdiction of the aforesaid courts and irrevocably agrees to be bound by
any
judgment rendered thereby, (b) waives personal service of process, (c) agrees
that service of process upon Guarantor may be made by certified or registered
mail, return receipt requested, pursuant to Section
5.4
hereof,
and (d) waives any objection to jurisdiction and venue of any action
instituted hereunder and agrees not to assert any defense based on lack of
jurisdiction, venue, convenience or forum
non conveniens.
Nothing
shall affect the right of Agent to serve process in any manner permitted by
law
or shall limit the right of Agent to bring proceedings against Guarantor in
the
courts of any other jurisdiction having jurisdiction. Any judicial proceedings
against Agent or Lenders involving, directly or indirectly, the Guaranteed
Obligations, Loan Collateral or this Agreement shall be brought only in a
federal or state court located in the State of Texas. Guarantor acknowledges
that Guarantor participated in the negotiation and drafting of this Agreement
and that, accordingly, Guarantor shall not move or petition a court construing
this Agreement to construe it more stringently against one party than against
any other.
5.6. Severability;
Captions; Counterparts; Facsimile Signature.
If any
provision of this Agreement is adjudicated to be invalid under applicable laws
or regulations, such provision shall be inapplicable to the extent of such
invalidity without affecting the validity or enforceability of the remainder
of
this Agreement which shall be given effect so far as possible. The captions
in
this Agreement are intended for convenience and reference only and shall not
affect the meaning or interpretation of this Agreement. This Agreement may
be
executed in one or more counterparts (which taken together, as applicable,
shall
constitute one and the same instrument) and by
facsimile transmission, which facsimile signatures shall be considered original
executed
counterparts. Each party to this Agreement
agrees
that it will be bound by its own facsimile signature and that it accepts the
facsimile signature of each other party.
5.7. Successors
and Assigns.
This
Agreement (a) shall inure to the benefit of, and may be enforced by, Agent
and
all future holders of the Obligations, any of the Guaranteed Obligations or
any
of the Loan Collateral and each of their respective successors and permitted
assigns, and (b) shall be binding upon and enforceable against Guarantor
and Guarantor’s permitted heirs, administrators, executors, successors and
assigns. Guarantor shall not assign, delegate or transfer this Agreement or
any
of its rights or obligations thereunder without the prior written consent of
Agent. Nothing contained in this Agreement or any other Loan Document shall
be
construed as a delegation to Agent of Guarantor’s duty of performance. GUARANTOR
ACKNOWLEDGES AND AGREES THAT AGENT OR LENDERS
AT ANY
TIME AND FROM TIME TO TIME MAY SELL, ASSIGN OR GRANT PARTICIPATING INTERESTS
IN
OR TRANSFER ALL OR ANY PART OF ITS RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT,
THE OBLIGATIONS, THE LOAN COLLATERAL AND/OR THE LOAN DOCUMENTS TO ONE OR MORE
TRANSFEREES IN EACH CASE ON THE TERMS AND CONDITIONS PROVIDED IN THE FINANCING
AGREEMENT. The
term
“Agent” or “Lender” in this Agreement includes successors and assigns, each of
which shall thereunder have all rights and benefits of Agent or Lender, as
the
case may be. Each successor and assign shall have all of the rights and benefits
with respect to the Guaranteed Obligations, Loan Collateral, this Agreement
and/or Loan Documents held by it as fully as if the original holder thereof.
Notwithstanding any other provision of this Agreement or any Loan Document,
each
Agent and each Lender may disclose to any successor or assign all information,
reports, financial statements, certificates and documents obtained under any
provision of this Agreement.
5.8. Waiver
of Jury Trial.
EACH
PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY
OF
ANY CLAIM OR CAUSE OF ACTION ARISING HEREUNDER OR IN ANY WAY CONNECTED WITH
OR
INCIDENTAL TO THE DEALINGS OF THE PARTIES WITH RESPECT HERETO OR THE
TRANSACTIONS CONTEMPLATED HEREBY, WHETHER NOW EXISTING OR HEREAFTER ARISING,
AND
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. EACH PARTY HEREBY AGREES AND
CONSENTS THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL
WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL
COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF
THE
CONSENTS OF THE PARTIES TO THE WAIVER OF THEIR RESPECTIVE RIGHTS TO TRIAL BY
JURY.
5.9. Survival.
It is
the express intention and agreement of the parties hereto that all covenants,
representations, warranties and waivers and indemnities made by Guarantor herein
shall survive the execution, delivery and termination of this Agreement until
all Obligations are performed in full and indefeasibly paid in full in cash
and
the Loan Documents are terminated.
5.10. Expenses.
Guarantor
shall pay to Agent and its Affiliates all costs and expenses incurred by Agent
and/or its Affiliates, including, without limitation, documentation and
diligence fees and expenses, all search, audit, appraisal, recording,
professional and filing fees and expenses and all other out-of-pocket charges
and expenses (including, without limitation, UCC and judgment and tax lien
searches and UCC filings and fees for post-closing UCC and judgment and tax
lien
searches and wire transfer fees and audit expenses), and reasonable attorneys’
fees and expenses (a) in any effort to enforce this Agreement against
Guarantor, (b) in defending or prosecuting any actions, claims or proceedings
by
or against Guarantor arising out of or relating to this Agreement, (c) arising
in any way out of the taking or refraining from taking by Agent of any action
requested by Guarantor, and/or (d) in connection with any modification,
restatement, supplement, amendment, waiver or extension of this Agreement and/or
any related agreement, document or instrument requested by Guarantor. If Agent
or any of its Affiliates uses in-house counsel for any of the foregoing,
Guarantor expressly agrees that its obligations hereunder include reasonable
charges for such work commensurate with the fees that would otherwise be charged
by outside legal counsel selected by Agent or such Affiliate in its sole
discretion for the work performed.
5.11. Termination.
This
Agreement shall continue in full force and effect until full performance and
indefeasible payment in full in cash of all Guaranteed Obligations and
termination of the Loan Documents. Notwithstanding any other provision of this
Agreement or any Loan Document, no termination of this Agreement shall affect
Agent’s or Lenders’ rights or any of the Guaranteed Obligations existing as of
the effective date of such termination until the Guaranteed Obligations have
been fully performed and indefeasibly paid in cash in full;
provided,
however,
Agent,
on behalf of itself and the Lenders, hereby agrees to release Guarantor from
its
obligations under this Agreement on the first day after December
31, 2006,
that
each of the following is true:
(a) The
Average Daily Availability (as defined in the Financing Agreement) for the
Companies shall have been at least $3,500,000 for the three immediately
preceding consecutive calendar months; and
(b) No
Default or Event of Default exists under the Financing Agreement.
5.12. Confidentiality
and Publicity.
(a) Guarantor
agrees, and agrees to cause each of his Affiliates, (i) except to
the
extent required by applicable laws or regulations (in which case Guarantor
shall, and shall cause his Affiliates to, request
and use his best efforts to obtain confidential treatment of such information
to
the extent permitted by applicable law),
not
to
transmit or disclose any provision of this Agreement or any other Loan Document
to any Person (except as permitted in the Financing Agreement) without Agent’s
prior written consent, and (ii) to inform all Persons of the confidential nature
of this Agreement and the Loan Documents and to direct them not to disclose
the
same to any other Person and to require each of them to be bound by these
provisions. Agent reserve the right to review and approve all materials that
Guarantor or any of his Affiliates prepares that contain Agent’s or any Lender’s
name or describe or refer to any Loan Document, any of the terms thereof or
any
of the transactions contemplated thereby. Guarantor shall not, and shall not
permit any of his Affiliates to, use Agent’s or any Lender’s name (or the name
of any of its Affiliates) in connection with any of his business operations,
except as permitted in the Financing Agreement. Nothing contained in any Loan
Document is intended to permit or authorize Guarantor or any of his Affiliates
to contract on behalf of Agent or any Lender.
(b) Each
party covenants for itself and its directors and officers that it will use
due
care to prevent its officers, directors, employees, members, managers,
stockholders, controlling persons, affiliates, agents, lenders, advisors
(including, without limitation, attorneys, accountants, consultants, bankers
and
financial advisors) from (x) disclosing any non-public information of
any
other party to Persons other than to its officers, directors, employees,
members, managers, stockholders, controlling persons, affiliates, agents,
advisors (including, without limitation, attorneys, accountants, consultants,
bankers and financial advisors), or (y) using non-public information
in any
manner that would constitute a violation of federal or state securities laws;
provided,
however,
that a
party may disclose or deliver any non-public information of another party should
such first party be advised by its counsel that such disclosure or delivery
is
required by law, regulation or judicial or administrative order. For purposes
of
this subparagraph, “due care” means at least the same level of care that such
party would use to protect the confidentiality of its own sensitive or
proprietary information, and this obligation shall survive termination of this
Agreement.
5.13. Approvals
and Duties.
Unless
expressly provided herein to the contrary,
any approval, consent, waiver or satisfaction of Agent or Lenders with respect
to any matter that is subject of any Loan Document may be granted or withheld
by
Lenders or Agent, in its sole and absolute discretion.
5.14. Amendment
and Restatement of Existing Limited Guaranty.
The
provisions of this Second Amended and Restated Limited Guaranty are in renewal,
extension, amendment, and restatement, but not in novation, of the provisions
of
the Existing Limited Guaranty.
IN
WITNESS WHEREOF, each of the parties hereto has duly executed this Second
Amended and Restated Limited Guaranty as of the date first written
above.
/s/
Xxxxxx X. Xxxxx
Xxxxxx
X. Xxxxx
0000
Xxxxxxx Xxxx
Xxxxxxx,
Xxxxx 00000
Telephone:
(000) 000-0000
Fax:
(000) 000-0000
Social
Security Number
if
an
individual: ###-##-####
THE
CIT GROUP/BUSINESS CREDIT, INC., Agent
By: /s/
Xxxx Xxxxxxxx
Xxxx
Xxxxxxxx, Vice President
Two
Lincoln Centre
0000
XXX
Xxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Fax
No.:
(000) 000-0000
Sworn
to
and subscribed before me this 11th day of November, 2005, by Xxxxxx X.
Xxxxx, who personally appeared before me, is personally known to me or produced
his/her driver’s license as identification and did take an oath.
Notary: /s/
Xxxxxxx X. Xxxxx
Print
Name: Xxxxxxx
X. Xxxxx
Notary
Public, State of Texas
My
Commission Expires: 7/18/2006
[NOTARIAL
SEAL]
Acknowledged
and Agreed to as of November 11, 2005:
|
XXXXXX-XXXXXXX
COMPANY
|
|
By:
/s/
Xxxxxxx XxXxxxxx
|
|
Name: Xxxxxxx
XxXxxxxx
|
|
Title: CEO
|
|
THREE
D OIL CO. OF XXXXXXX, INC.
|
|
By: /s/
Xxxxxxx XxXxxxxx
|
|
Name: Xxxxxxx
XxXxxxxx
|
|
Title:
CEO
|
EXHIBIT
A
Spousal
Acknowledgement and Stipulation
The
undersigned hereby acknowledges and stipulates that (i) he/she is the spouse
of
Xxxxxx X. Xxxxx, who is the Guarantor party to that certain Second Amended
and
Restated Limited Guaranty dated as of November ___, 2005, by and between
such Guarantor listed therein as a party thereto and THE CIT GROUP/BUSINESS
CREDIT INC., a New York corporation, as Agent for itself and the other Lenders,
(ii) all property, jointly owned by Guarantor and the undersigned, whether
as
tenants in common, tenants in the entirety or joint tenants or as community
property, and whether now owned or hereafter acquired (whether subject to the
sole management of Guarantor or the undersigned or their joint management),
is
subject to, and may be used for, the payment and performance of Guarantor’s
obligations under the above-referenced Second Amended and Restated Limited
Guaranty.
This
Acknowledgement and Stipulation constitutes an instrument executed under seal,
entered into as of November ___, 2005.
| SPOUSE | |
| Name: | |
Sworn
to
and subscribed before me this _____ day of November, 2005 by
____________________, who personally appeared before me, is personally known
to
me or produced his or her driver’s license as identification and did take an
oath.
| Notary: | |
| Print Name: | |
| Notary Public, State of | |
| My Commission Expires: | |
| [NOTARIAL SEAL] | |
