Exhibit 10.52
UNCONDITIONAL GUARANTY
THIS UNCONDITIONAL GUARANTY ("Guaranty") is made July 12, 2000, by CAP ROCK
ELECTRIC COOPERATIVE, INC. ("Corporate Guarantor") for the benefit of BANK
UNITED TEXAS FSB ("Bank").
1. DEFINITIONS. As used in this Guaranty, the following terms shall have the
meanings indicated below:
a. The term "Bank" shall mean BANK UNITED TEXAS FSB.
b. The term "Borrower" shall mean New West Resources, Inc., a Texas Corporation.
c. The term "Corporate Guarantor" shall mean Cap Rock Electric Cooperative,
Inc., a Texas cooperative.
d. The term "Individual Guarantor" shall mean and refer to each of Xxxxxx X.
Xxxxx and Xxxxxxx X. Xxxxxxxx (who are jointly referred to as "Individual
Guarantors").
2. The term "Guaranteed Indebtedness" shall mean (i) all indebtedness,
obligations and liabilities of Borrower to Bank of any kind or character now
existing or hereafter arising, whether direct, indirect, related, unrelated,
fixed, contingent, liquidated, unliquidated, joint, several or joint and
several, and regardless of whether such indebtedness, obligations and
liabilities may, prior to their acquisition by Bank, be or have been payable to
or in favor of a third party and subsequently acquired by Bank (it being
contemplated that Bank may make such acquisitions from third parties), including
without limitation all indebtedness, obligations and liabilities of Borrower to
Bank now existing or hereafter arising by note, draft, acceptance, guaranty,
endorsement, letter of credit, assignment, purchase, overdraft, discount,
indemnity agreement or otherwise, (ii) all accrued but unpaid interest on any of
the indebtedness described in (i) above; (iii) all obligations of Borrower to
Bank under any documents evidencing, securing, governing and/or pertaining to
all or any part of the indebtedness described in (i) and (ii) above, (iv) all
costs and expenses incurred by Bank in connection with the collection and
administration of all or any part of the indebtedness and obligations described
in (i), (ii) and (iii) above or the protection or preservation of, or
realization upon, the collateral securing all or any part of such indebtedness
and obligations, including without limitation all reasonable attorneys' fees,
and (v) all renewals, extensions, modifications and rearrangements of the
indebtedness and obligations described in (i), (ii), (iii) and (iv) above,
3. OBLIGATIONS. As an inducement to Bank to extend or continue to extend credit
and other financial accommodations to Borrower, Corporate Guarantor, for value
received, does hereby
unconditionally and absolutely guarantee the prompt and full payment and
performance of the Guaranteed Indebtedness when due or declared to be due and
at all times thereafter. The liability of Corporate Guarantor hereunder shall
be limited to the maximum amount of liability that can be incurred with
rendering the obligations of Corporate Guarantor hereunder voidable under
applicable laws relating to fraudulent conveyance or fraudulent transfer, and
not for a greater amount.
4. CHARACTER OF OBLIGATIONS. This is an absolute, continuing and unconditional
Guaranty of payment and not of collection and if at any time or from time to
time there is no outstanding Guaranteed Indebtedness, the obligations of the
Corporate Guarantor with respect to any and all Guaranteed Indebtedness of
Borrower to Bank incurred thereafter shall not be affected. All Guaranteed
Indebtedness heretofore, concurrently herewith or hereafter made by Bank to
Borrower shall be conclusively presumed to have been made or acquired in
acceptance hereof. Corporate Guarantor shall be primarily liable, jointly and
severally, with Borrower and any other guarantor of all or any part of the
Guaranteed Indebtedness.
5. RIGHT OF REVOCATION. Corporate Guarantor understands and agrees that
Corporate Guarantor may revoke Corporate Guarantor's future obligations under
this Guaranty at any time by giving Bank written notice that Corporate Guarantor
will not be liable hereunder for any indebtedness or obligations of Borrower
incurred on or after the effective date of such revocation. Such revocation
shall be deemed to be effective on the day following the day the Bank receives
such notice delivered either by (a) personal delivery to the address and
designed department of Bank identified in subparagraph I (a) above; or (b)
United States mail, registered or certified, return receipt requested, postage
prepaid, addressed to Bank. Notwithstanding such revocation, Corporate Guarantor
shall remain liable on Corporate Guarantor's obligations hereunder until payment
in full to Bank of (x) all of the Guaranteed Indebtedness that is outstanding on
the effective date of such revocation, and any renewals and extensions thereof,
and (y) all loans, advances and other extensions of credit made to or for the
account of Borrower on or after the effective date of such revocation pursuant
to the obligation of Bank under a commitment or agreement made to or with
Borrower prior to the effective date of such revocation. The terms and
conditions of this Guaranty, including without limitation the consents and
waivers set forth in paragraph 8 hereof, shall remain in effect with respect to
the Guaranteed Indebtedness described in the preceding sentence in the same
manner as if such revocation had not been made by Corporate Guarantor.
6. REPRESENTATIONS AND WARRANTIES. Corporate Guarantor hereby represents and
warrants the following to Bank:
a. This Guaranty may reasonably be expected to benefit, directly or indirectly,
Corporate Guarantor, and the Board of Directors of Corporate Guarantor has
determined that this Guaranty may
reasonably be expected to benefit, directly or indirectly, Corporate
Guarantor;
b. Corporate Guarantor is familiar with, and has independently reviewed the
books and records regarding, the financial condition of Borrower (which is its
wholly owned subsidiary) and is familiar with the value of any and all
collateral intended to be security for the payment of all or any part of the
Guaranteed Indebtedness; provided, however, Corporate Guarantor is not relying
on such financial condition or collateral as an inducement to enter into this
Guaranty;
c. Corporate Guarantor has adequate means to obtain from Borrower on a
continuing basis information concerning the financial condition of Borrower and
Corporate Guarantor is not relying on Bank to provide such information to
Corporate Guarantor either now or in the future;
d. Corporate Guarantor has the power and authority to execute, deliver and
perform this Guaranty and any other agreements executed by Corporate Guarantor
contemporaneously herewith, and the execution, delivery and performance of this
Guaranty and any other agreements executed by Corporate Guarantor
contemporaneously herewith does not and will not violate, (i) any agreement or
instrument to which Corporate Guarantor is a party, (ii) any law, rule,
regulation or order of any governmental authority to which Corporate Guarantor
is subject, or (iii) Corporate Guarantor's Articles of Incorporation or Bylaws;
e. Neither Bank nor any other party has made any representation, warranty or
statement to Corporate Guarantor in order to induce Corporate Guarantor to
execute this Guaranty;
f. The financial statements and other financial information regarding Corporate
Guarantor heretofore and hereafter delivered to Bank are and shall be true and
correct in all material respects and fairly present the financial position of
Corporate Guarantor as of the dates thereof, and no material adverse change has
occurred in the financial condition of Corporate Guarantor reflected in the
financial statements and other financial information regarding Corporate
Guarantor heretofore delivered to Bank since the date of the last statement
thereof, and
g. As of the date hereof, and after giving effect to this Guaranty and the
obligations evidenced hereby, (i) Corporate Guarantor is and will be solvent,
(ii) the fair saleable value of Corporate Guarantor's assets exceeds and will
continue to exceed Corporate Guarantor's liabilities (both fixed and
contingent), (iii) Corporate Guarantor is and will continue to be able to pay
Corporate Guarantor's debts as they mature, and (iv) Corporate Guarantor has and
will continue to have sufficient capital to carry on its business and all
businesses in which it is about to engage.
7. COVENANTS. Corporate Guarantor hereby covenants and agrees with Bank as
follows:
a. Corporate Guarantor shall not, so long as Corporate Guarantor's obligations
under this Guaranty continue, transfer or pledge any material portion of
Corporate Guarantor's assets for less than full and adequate consideration;
b. Corporate Guarantor shall promptly furnish to Bank at any time and from time
to time such financial statements and other financial information of Corporate
Guarantor as the Bank may require, in form and substance satisfactory to Bank;
c. Corporate Guarantor shall comply with all terms and provisions of the
instruments and agreements evidencing, governing and securing all or any part of
the Guaranteed Indebtedness that apply to Corporate Guarantor; and
d. Corporate Guarantor shall promptly inform Bank of (i) any litigation or
governmental investigation against Corporate Guarantor or affecting any security
for all or any part of the Guaranteed Indebtedness or this Guaranty which, if
determined adversely, might have a material adverse effect upon the financial
condition of Corporate Guarantor or upon such security or might cause a default
under any of the instruments or agreements evidencing, governing or securing all
or any part of the Guaranteed Indebtedness, (ii) any claim or controversy which
might become the subject of such litigation or governmental investigation, and
(iii) any material adverse change in the financial condition of Corporate
Guarantor.
8. CONSENT AND WAIVER.
a. Corporate Guarantor waives (i) promptness, diligence and notice of acceptance
of this Guaranty and notice of the incurring of any obligation, indebtedness or
liability to which this Guaranty applies or may apply and waives presentment for
payment, notice of nonpayment, protest, demand, notice of protest, notice of
intent to accelerate, notice of acceleration, notice of dishonor, diligence in
enforcement and indulgences of every kind, and (ii) the , taking of any other
action of Bank, including without limitation giving any notice of default or any
other notice to, or making any demand on, Borrower, Individual Guarantors, or
any other guarantor of all or any part of the Guaranteed Indebtedness or any
other party.
b. Corporate Guarantor waives any rights Corporate Guarantor has under, or any
requirements imposed by, Chapter 34 of the Texas Business and Commerce Code, as
in effect on the date of this Guaranty or as it may be amended from time to
time.
c. Bank may at any time, without the consent of or notice to Corporate
Guarantor, without incurring responsibility to Corporate Guarantor and without
impairing, releasing, reducing or affecting
the obligations of Corporate Guarantor hereunder: (i) change the manner,
place or terms of payment of all or any part of the Guaranteed Indebtedness,
or renew, extend, modi~, rearrange or alter all or any part of the Guaranteed
Indebtedness; (ii) sell, exchange, release, surrender, subordinate, realize
upon or otherwise deal with in any manner and in any order any collateral for
all or any part of the Guaranteed Indebtedness or this Guaranty or setoff
against all or any part of the Guaranteed Indebtedness; (iii) neglect, delay,
omit, fail or refuse to take or prosecute any action for the collection of
all or any part of the Guaranteed Indebtedness or this Guaranty or to take or
prosecute any action in connection with any instrument or agreement
evidencing, governing or securing all or any part of the Guaranteed
Indebtedness or this Guaranty; (iv) exercise or refrain from exercising any
rights against Borrower or Individual Guarantors or others, or otherwise act
or refrain from acting; (v) settle or compromise all or any part of the
Guaranteed Indebtedness and subordinate the payment of all or any part of the
Guaranteed Indebtedness to the payment of any obligations, indebtedness or
liabilities which may be due or become due to Bank or others; (vi) apply any
deposit balance, fund, payment, collections through process of law or
otherwise or other collateral of Borrower to the satisfaction and liquidation
of the indebtedness or obligations of Borrower to Bank not guaranteed under
this Guaranty pursuant to paragraph 4 herein; and (vii) apply any sums paid
to Bank by Corporate Guarantor, Borrower, Individual Guarantors or others to
the Guaranteed Indebtedness in such order and manner as Bank, in its sole
discretion, may determine.
d. Notwithstanding any provision in this Guaranty to the contrary, Corporate
Guarantor hereby waives and releases (i) any and all rights of subrogation,
reimbursement, indemnification or contribution which Corporate Guarantor may
have, before payment in lull of the Guaranteed Indebtedness, against others
liable on all or any part of the Guaranteed Indebtedness, (ii) any and all
rights to be subrogated to the rights of Bank in any collateral or security for
all or any part of the Guaranteed Indebtedness before payment in full of the
Guaranteed Indebtedness, and (iii) any and all other rights and claims of such
Corporate Guarantor against Borrower or any third party as a result of such
Corporate Guarantor's payment before payment in full of the Guaranteed
Indebtedness.
e. Should Bank seek to enforce the obligations of Corporate Guarantor hereunder
by action in any court or otherwise, Corporate Guarantor waives any requirement,
substantive or procedural, that (i) Bank first enforce any rights or remedies
against Borrower, Individual Guarantors, or any other person or entity liable to
Bank for all or any part of the Guaranteed Indebtedness, including without
limitation that a judgment first be rendered against Borrower, Individual
Guarantors or any other person or entity, or that Borrower, Individual
Guarantors, or any other person or entity should be joined in such cause, or
(ii) Bank shall first
enforce rights against any collateral which shall ever have been given to
secure all or any part of the Guaranteed Indebtedness or this Guaranty. Such
waiver shall be without prejudice to Bank's right, at its option, to proceed
against Borrower, Individual Guarantors, or any other person or entity,
whether by separate action or by joinder.
f. In addition to any other waivers, agreements and covenants of Corporate
Guarantor set forth herein, Corporate Guarantor hereby further waives and
releases all claims, causes of action, defenses and offsets for any act or
omission of Bank, its directors, officers, employees, representatives or agents
in connection with Bank's administration of the Guaranteed Indebtedness, except
for Bank's willful misconduct and gross negligence.
9. OBLIGATIONS NOT IMPAIRED.
a. Corporate Guarantor agrees that Corporate Guarantor's obligations hereunder
shall not be released, diminished, impaired, reduced or affected by the
occurrence of any one or more of the following events: (i) the lack of corporate
power of Borrower, Corporate Guarantor or any other guarantor of all or any part
of the Guaranteed Indebtedness, (ii) any receivership, insolvency, bankruptcy or
other proceedings affecting Borrower, Corporate Guarantor, Individual
Guarantors, or any other guarantor of all or any part of the Guaranteed
Indebtedness, or any of their respective property; (iii) the partial or total
release or discharge of Borrower, Individual Guarantors, or any other guarantor
of all or any part of the Guaranteed Indebtedness, or any other person or entity
from the performance of any obligation contained in any instrument or agreement
evidencing, governing or securing all or any part of the Guaranteed
Indebtedness, whether occurring by reason of law or otherwise; (iv) the taking
or accepting of any collateral for all or any part of the Guaranteed
Indebtedness or this Guaranty; (v) the taking or accepting of any other guaranty
for all or any part of the Guaranteed Indebtedness; (vi) any failure by Bank to
acquire, perfect or continue any lien or security interest on collateral
securing all or any part of the Guaranteed Indebtedness or this Guaranty; (vii)
the impairment of any collateral securing all or any part of the Guaranteed
Indebtedness or this Guaranty; (viii) any failure by Bank to sell any collateral
securing all or any part of the Guaranteed Indebtedness or this Guaranty in a
commercially seasonable manner or as otherwise required by law; (ix) any
invalidity or unenforceability of or defect or deficiency in any instrument or
agreement evidencing, governing or securing all or any part of the Guaranteed
Indebtedness or this Guaranty; or (x) any other circumstances which might
otherwise constitute a defense available to, or discharge of, Borrower,
Individual Guarantors, or any other guarantor of all or any part of the
Guaranteed Indebtedness, other than payment of the Guaranteed Indebtedness.
b. This Guaranty shall continue to be effective or be reinstated, as the case
may be, if at any time any payment of all or any part
of the Guaranteed Indebtedness is rescinded or must otherwise be returned by
Bank upon the insolvency, bankruptcy or reorganization of Borrower, Corporate
Guarantor, Individual Guarantors, or any other guarantor of all or any part
of the Guaranteed Indebtedness, or otherwise, all as though such payment had
not been made.
c. None of the following shall affect Corporate Guarantor's liability hereunder:
(i) the unenforceability of all or any part of the Guaranteed Indebtedness
against Borrower by reason of the fact that the Guaranteed Indebtedness exceeds
the amount permitted by law; (ii) the act of creating all or any part of the
Guaranteed Indebtedness is ultra xxxxx; or (iii) the officers or partners
creating all or any part of the Guaranteed Indebtedness acted in excess of their
authority. Corporate Guarantor hereby acknowledges that withdrawal from, or
termination of; any ownership interest in Borrower now or hereafter owned or
held by Corporate Guarantor shall not alter, affect or in any way limit the
obligations of Corporate Guarantor hereunder.
10. ACTIONS AGAINST CORPORATE GUARANTOR In the event of a default in the payment
or performance of all or any part of the Guaranteed Indebtedness when such
Guaranteed Indebtedness becomes due, whether by its terms, by acceleration or
otherwise, Corporate Guarantor shall, without notice or demand, promptly pay the
amount due thereon to Bank, in lawful money of the United States, at Bank's
address set forth herein above. One or more successive or concurrent actions may
be brought against Corporate Guarantor, either in the same action in which
Borrower is sued or in separate actions, as often as Bank deems advisable. The
exercise by Bank of any right or remedy under this Guaranty or under any other
agreement or instrument, at law, in equity or otherwise, shall not preclude
concurrent or subsequent exercise of any other right or remedy. The books and
records of Bank shall be admissible in evidence in any action or proceeding
involving this Guaranty and shall be prima facie evidence of the payments made
on, and the outstanding balance of; the Guaranteed Indebtedness.
11. PAYMENT BY CORPORATE GUARANTOR. Whenever Corporate Guarantor pays any sum
which is or may become due under this Guaranty, written notice must be delivered
to Bank contemporaneously with such payment. Such notice shall be effective for
purposes of this paragraph when contemporaneously with such payment Bank
receives such notice either by: (a) personal delivery to the address and
designated department of Bank, or (b) United States mail, certified or
registered, return receipt requested, postage prepaid, addressed to Bank. In the
absence of such notice to Bank by Corporate Guarantor in compliance with the
provisions hereof, any sum received by Bank on account of the Guaranteed
Indebtedness shall be conclusively deemed paid by Borrower.
12. NOTICE OF SALE. In the event that Corporate Guarantor is entitled to receive
any notice under the Uniform Commercial Code, as it exists in the state
governing any such notice, of the sale or other disposition of any collateral
securing all or any part of
the Guaranteed Indebtedness or this Guaranty, reasonable notice shall be
deemed given when such notice is deposited in the United States mail, postage
prepaid, at the address for Corporate Guarantor, five (5) days prior to the
date any public sale, or after which any private sale, of any such collateral
is to be held; provided, however, that notice given in any other reasonable
manner or at any other reasonable time shall be sufficient.
13. WAIVER OF BANK. No delay on the part of Bank in exercising any right
hereunder or failure to exercise the same shall operate as a waiver of such
fight. In no event shall any waiver of the provisions of this Guaranty be
effective unless the same be in writing and signed by an officer of Bank, and
then only in the specific instance and for the purpose given.
14. SUCCESSORS AND ASSIGNS. This Guaranty is for the benefit of Bank, its
successors and assigns, including, without limitation, any assignee or
participant. This Guaranty is binding upon Corporate Guarantor's successors and
assigns, including without limitation any person or entity obligated by
operation of law upon the reorganization, merger, consolidation or other change
in the organizational structure of Corporate Guarantor.
15. COSTS AND EXPENSES. Corporate Guarantor shall pay on demand by Bank all
costs and expenses (including without limitation all reasonable attorneys' fees)
incurred by Bank in connection with the preparation, administration, enforcement
and/or collection of this Guaranty. This covenant shall survive the payment of
the Guaranteed Indebtedness.
16. SEVERABILITY. If any provision of this Guaranty is held by a court of
competent jurisdiction to be illegal, invalid or enforceable under present or
future laws, such provision shall be fully severable, shall not impair or
invalidate the remainder of this Guaranty and the effect thereof shall be
confined to the provision held to be illegal, invalid or unenforceable.
17. NO OBLIGATION. NothIng contained herein shall be construed as an obligation
on the part of Bank to extend or continue to extend credit to Borrower.
18. AMENDMENT. No modification or amendment of any provision of this Guaranty,
nor consent to any departure by Corporate Guarantor therefrom, shall be
effective unless the same shall be in writing and signed by an officer of Bank,
and then shall be effective only in the specific instance and for the purpose
for which given.
19. CUMULATIVE RIGHTS. All rights and remedies of Bank hereunder are cumulative
of each other and of every other right or remedy which Bank may otherwise have,
at law or in equity or under any instrument or agreement, and the exercise of
one or more of such rights or remedies shall not prejudice or impair the
concurrent or subsequent exercise of any other rights or remedies.
20. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS AND APPLICABLE FEDERAL LAWS.
21. VENUE. This Guaranty has been entered into in Midland County, Texas, and it
shall be performable for all purposes in such county. Courts within the State of
Texas shall have jurisdiction over any and all disputes arising under or
pertaining to this Guaranty and venue for any such disputes shall be Midland
County, Texas.
22. COMPLIANCE WITH APPLICABLE USURY LAWS. Notwithstanding any other provision
of this Guaranty or of any instrument or agreement evidencing, governing or
securing all or any part of the Guaranteed Indebtedness, Corporate Guarantor and
Bank by its acceptance hereof agree that Corporate Guarantor shall never be
required or obligated to pay interest in excess of the maximum nonusurious
interest rate as may be authorized by applicable law for the written contracts
which constitute the Guaranteed Indebtedness. It is the intention of Corporate
Guarantor and Bank to conform strictly to the applicable laws which limit
interest rates, and any of the aforesaid contracts for interest, if and to the
extent payable by Corporate Guarantor, shall be held to be subject to reduction
to the maximum nonusurious interest rate allowed under said law.
23. DESCRIPTIVE HEADINGS. The captions in this Guaranty are for convenience only
and shall not define or limit the provisions hereof.
24. GENDER. Within this Guaranty, words of any gender shall be held and
construed to include the other gender.
25. NOTICE. For purposes of notice under this Guaranty, the addresses of the
parties is as follows:
Cap Rock Electric Cooperative, Inc.
000 Xxxx Xxxx
Xxxxxxx, Xxxxx 00000
Arm: Xxxxx Xxxxxx, President
Fax 915/000-0000
Bank United Texas FSB
000 Xxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxx, President Midland Region
915/687-5006
26. ENTIRE AGREEMENT. This Guaranty contains the entire agreement between
Corporate Guarantor and Bank regarding the subject matter hereof and supersedes
all prior written and oral agreements and understandings, if any, regarding
same; provided, however, this Guaranty is in addition to and does not replace,
cancel, modify or affect any other guaranty of Corporate Guarantor now or
hereafter
held by Bank that relates to Borrower or any other person or entity.
EXECUTED as of July 12, 2000.
CAP ROCK ELECTRIC COOPERATIVE, INC.
By:__________________________
Xxxx X. Xxxxxx, Vice President.
