EXHIBIT 10.7
GUARANTY AGREEMENT
BY
ISRAMCO, INC.
IN FAVOR OF
XXXXX FARGO BANK, N.A.,
AS ADMINISTRATIVE AGENT
MARCH 2, 2007
TABLE OF CONTENTS
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PAGE
ARTICLE I
General Terms
Section 1.1 Terms Defined Above.............................................1
Section 1.2 Certain Definitions.............................................1
Section 1.3 Credit Agreement Definitions....................................1
ARTICLE II
The Guaranty
Section 2.1 Obligations Guaranteed..........................................2
Section 2.2 Nature of Guaranty..............................................2
Section 2.3 Administrative Agent's Rights...................................2
Section 2.4 Guarantor's Waivers.............................................2
Section 2.5 Maturity of Obligations; Payment................................3
Section 2.6 Administrative Agent's Expenses.................................3
Section 2.7 Liability.......................................................3
Section 2.8 Events and Circumstances Not Reducing or Discharging
Guarantor's Obligations.........................................3
ARTICLE III
Representations and Warranties
Section 3.1 By Guarantor....................................................5
Section 3.2 No Representation by Lenders....................................6
ARTICLE IV
Subordination of Indebtedness
Section 4.1 Subordination of All Guarantor Claims...........................7
Section 4.2 Claims in Bankruptcy............................................7
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Section 4.3 Payments Held in Trust..........................................7
Section 4.4 Liens Subordinate...............................................7
Section 4.5 Notation of Records.............................................8
ARTICLE V
Miscellaneous
Section 5.1 Successors and Assigns..........................................8
Section 5.2 Notices.........................................................8
Section 5.3 Business and Financial Information..............................8
SECTION 5.4 GOVERNING LAW; CONSTRUCTION.....................................8
Section 5.5 Amendments......................................................9
Section 5.6 Invalidity......................................................9
Section 5.7 Electronic Delivery of Signature Pages..........................9
SECTION 5.8 ENTIRE AGREEMENT................................................9
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GUARANTY AGREEMENT
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THIS GUARANTY AGREEMENT is made as of March 2, 2007 by ISRAMCO, Inc., a
Delaware corporation ("Guarantor"), in favor of Xxxxx Fargo Bank, N.A., as
administrative agent (the "ADMINISTRATIVE AGENT") for the lenders (the
"LENDERS") that are or become parties to the Credit Agreement defined below.
R E C I T A L S:
A. Isramco Energy, LLC, a Texas limited liability company,
(hereinafter called "BORROWER"), the Administrative Agent and the Lenders have
entered into that certain Credit Agreement dated as of even date herewith (as
the same may be amended from time to time, the "CREDIT AGREEMENT").
B. One of the terms and conditions stated in the Credit Agreement
for the making of the loans described therein is the execution and delivery to
the Administrative Agent for the benefit of the Lenders of this Guaranty
Agreement.
NOW, THEREFORE, (i) in order to comply with the terms and conditions of
the Credit Agreement, (ii) to induce the Lenders, at any time or from time to
time, to loan monies, with or without security to or for the account of Borrower
in accordance with the terms of the Credit Agreement, (iii) at the special
insistence and request of the Lenders, and (iv) for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
Guarantor hereby agrees as follows:
ARTICLE I
GENERAL TERMS
Section 1.1 TERMS DEFINED ABOVE. As used in this Guaranty Agreement,
the terms defined in the opening paragraph and the Recitals above shall have the
meanings indicated therein.
Section 1.2 CERTAIN DEFINITIONS. As used in this Guaranty Agreement,
the following terms shall have the following meanings, unless the context
otherwise requires:
"GUARANTOR CLAIMS" shall have the meaning indicated in Section 4.1
hereof.
"GUARANTY AGREEMENT" shall mean this Guaranty Agreement, as the same may
from time to time be amended, supplemented, restated or otherwise
modified.
"OBLIGATIONS" shall have the meaning assigned to such term in the Credit
Agreement.
Section 1.3 CREDIT AGREEMENT DEFINITIONS. Unless otherwise defined
herein, all terms beginning with a capital letter which are defined in the
Credit Agreement shall have the same meanings herein as therein.
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ARTICLE II
THE GUARANTY
Section 2.1 OBLIGATIONS GUARANTEED. Guarantor hereby irrevocably and
unconditionally guarantees the prompt payment of the Obligations when due,
whether at maturity or otherwise.
Section 2.2 NATURE OF GUARANTY. This Guaranty Agreement is an
absolute, irrevocable, completed and continuing guaranty of payment and not a
guaranty of collection, and no notice of the Obligations or any extension of
credit already or hereafter contracted by or extended to Borrower need be given
to Guarantor. This Guaranty Agreement may not be revoked by Guarantor and shall
continue to be effective with respect to debt under the Obligations arising or
created after any attempted revocation by Guarantor and shall remain in full
force and effect until the Obligations are paid in full and the Commitments are
terminated, notwithstanding that from time to time prior thereto no Obligations
may be outstanding. Borrower and the Lenders may modify, alter, rearrange,
extend for any period and/or renew from time to time, the Obligations, and the
Lenders may waive any Default or Events of Default without notice to Guarantor
and in such event Guarantor will remain fully bound hereunder on the
Obligations. This Guaranty Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of the Obligations is
rescinded or must otherwise be returned by any of the Lenders upon the
insolvency, bankruptcy or reorganization of Borrower or otherwise, all as though
such payment had not been made. This Guaranty Agreement may be enforced by the
Administrative Agent and any subsequent holder of any of the Obligations and
shall not be discharged by the assignment or negotiation of all or part of the
Obligations. Guarantor hereby expressly waives presentment, demand, notice of
nonpayment, protest and notice of protest and dishonor, notice of Default or
Event of Default, notice of intent to accelerate the maturity and notice of
acceleration of the maturity and any other notice in connection with the
Obligations, and also notice of acceptance of this Guaranty Agreement,
acceptance on the part of the Lenders being conclusively presumed by the
Lenders' request for this Guaranty Agreement and delivery of the same to the
Administrative Agent.
Section 2.3 ADMINISTRATIVE AGENT'S RIGHTS. Guarantor authorizes the
Administrative Agent, without notice or demand and without affecting its
liability hereunder, to take and hold security for the payment of this Guaranty
Agreement and/or the Obligations, and exchange, enforce, waive and release any
such security; and to apply such security and direct the order or manner of sale
thereof as the Administrative Agent in its discretion may determine; and to
obtain a guaranty of the Obligations from any one or more Persons and at any
time or times to enforce, waive, rearrange, modify, limit or release any of such
other Persons from their obligations under such guaranties.
Section 2.4 GUARANTOR'S WAIVERS.
(a) GENERAL. Guarantor waives any right to require any of
the Lenders to (i) proceed against Borrower or any other person liable
on the Obligations, (ii) enforce any of their rights against any other
guarantor of the Obligations (iii) proceed or enforce any of their
rights against or exhaust any security given to secure the Obligations
(iv) have Borrower joined with Guarantor in any suit arising out of this
Guaranty
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Agreement and/or the Obligations, or (v) pursue any other remedy in the
Lenders' powers whatsoever. The Lenders shall not be required to
mitigate damages or take any action to reduce, collect or enforce the
Obligations. Guarantor waives any defense arising by reason of any
disability, lack of corporate authority or power, or other defense of
Borrower or any other guarantor of the Obligations, and shall remain
liable hereon regardless of whether Borrower or any other guarantor be
found not liable thereon for any reason. Whether and when to exercise
any of the remedies of the Lenders under any of the Loan Documents shall
be in the sole and absolute discretion of the Administrative Agent, and
no delay by the Administrative Agent in enforcing any remedy, including
delay in conducting a foreclosure sale, shall be a defense to
Guarantor's liability under this Guaranty Agreement. To the extent
allowed by applicable law, Guarantor hereby waives any good faith duty
on the part of the Administrative Agent in exercising any remedies
provided in the Loan Documents.
(b) SUBROGATION. Until the Obligations have been paid in
full and the Commitments are terminated, Guarantor waives all rights of
subrogation or reimbursement against the Borrower, whether arising by
contract or operation of law (including, without limitation, any such
right arising under any federal or state bankruptcy or insolvency laws)
and waives any right to enforce any remedy which the Lenders now have or
may hereafter have against the Borrower, and waives any benefit or any
right to participate in any security now or hereafter held by the
Administrative Agent or any Lender.
Section 2.5 MATURITY OF OBLIGATIONS; PAYMENT. Guarantor agrees that
if the maturity of any of the Obligations is accelerated by bankruptcy or
otherwise, such maturity shall also be deemed accelerated for the purpose of
this Guaranty Agreement without demand or notice to Guarantor. Guarantor will,
forthwith upon notice from the Administrative Agent, pay to the Administrative
Agent the amount due and unpaid by Borrower and guaranteed hereby. The failure
of the Administrative Agent to give this notice shall not in any way release
Guarantor hereunder.
Section 2.6 ADMINISTRATIVE AGENT'S EXPENSES. If Guarantor fails to
pay the Obligations after notice from the Administrative Agent of Borrower's
failure to pay any Obligations at maturity, and if the Administrative Agent
obtains the services of an attorney for collection of amounts owing by Guarantor
hereunder, or obtaining advice of counsel in respect of any of their rights
under this Guaranty Agreement, or if suit is filed to enforce this Guaranty
Agreement, or if proceedings are had in any bankruptcy, probate, receivership or
other judicial proceedings for the establishment or collection of any amount
owing by Guarantor hereunder, or if any amount owing by Guarantor hereunder is
collected through such proceedings, Guarantor agrees to pay to the
Administrative Agent the Administrative Agent's reasonable attorneys' fees.
Section 2.7 LIABILITY. It is expressly agreed that the liability of
Guarantor for the payment of the Obligations guaranteed hereby shall be primary
and not secondary.
Section 2.8 EVENTS AND CIRCUMSTANCES NOT REDUCING OR DISCHARGING
GUARANTOR'S OBLIGATIONS. Guarantor hereby consents and agrees to each of the
following to the fullest extent permitted by law, and agrees that its
obligations under this Guaranty Agreement shall not be released, diminished,
impaired, reduced or adversely affected by any of the following, and
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waives any rights (including without limitation rights to notice) which
Guarantor might otherwise have as a result of or in connection with any of the
following:
(a) MODIFICATIONS, ETC. Any renewal, extension,
modification, increase, decrease, alteration or rearrangement of all or
any part of the Obligations, or of the Notes, or the Credit Agreement or
any instrument executed in connection therewith, or any contract or
understanding between Borrower and any of the Lenders, or any other
Person, pertaining to the Obligations;
(b) ADJUSTMENT, ETC. Any adjustment, indulgence, forbearance
or compromise that might be granted or given by any of the Lenders to
Borrower or Guarantor or any Person liable on the Obligations;
(c) CONDITION OF BORROWER OR GUARANTOR. The insolvency,
bankruptcy arrangement, adjustment, composition, liquidation,
disability, dissolution, death or lack of power of Borrower or Guarantor
or any other Person at any time liable for the payment of all or part of
the Obligations; or any dissolution of Borrower or Guarantor, or any
sale, lease or transfer of any or all of the assets of Borrower or
Guarantor, or any changes in the shareholders, partners, or members of
Borrower or Guarantor; or any reorganization of Borrower or Guarantor;
(d) INVALIDITY OF OBLIGATIONS. The invalidity, illegality or
unenforceability of all or any part of the Obligations, or any document
or agreement executed in connection with the Obligations, for any reason
whatsoever, including without limitation the fact that the Obligations,
or any part thereof, exceed the amount permitted by law, the act of
creating the Obligations or any part thereof is ULTRA XXXXX, the
officers or representatives executing the documents or otherwise
creating the Obligations acted in excess of their authority, the
Obligations violate applicable usury laws, the Borrower has valid
defenses, claims or offsets (whether at law, in equity or by agreement)
which render the Obligations wholly or partially uncollectible from
Borrower, the creation, performance or repayment of the Obligations (or
the execution, delivery and performance of any document or instrument
representing part of the Obligations or executed in connection with the
Obligations, or given to secure the repayment of the Obligations) is
illegal, uncollectible, legally impossible or unenforceable, or the
Credit Agreement or other documents or instruments pertaining to the
Obligations have been forged or otherwise are irregular or not genuine
or authentic;
(e) RELEASE OF OBLIGORS. Any full or partial release of the
liability of Borrower on the Obligations or any part thereof, of any
co-guarantors, or any other Person now or hereafter liable, whether
directly or indirectly, jointly, severally, or jointly and severally, to
pay, perform, guarantee or assure the payment of the Obligations or any
part thereof, it being recognized, acknowledged and agreed by Guarantor
that it may be required to pay the Obligations in full without
assistance or support of any other Person, and Guarantor has not been
induced to enter into this Guaranty Agreement on the basis of a
contemplation, belief, understanding or agreement that other parties
other than the Borrower will be liable to perform the Obligations, or
the Lenders will look to other parties to perform the Obligations.
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(f) OTHER SECURITY. The taking or accepting of any other
security, collateral or guaranty, or other assurance of payment, for all
or any part of the Obligations;
(g) RELEASE OF COLLATERAL, ETC. Any release, surrender,
exchange, subordination, deterioration, waste, loss or impairment
(including without limitation negligent, willful, unreasonable or
unjustifiable impairment) of any collateral, property or security, at
any time existing in connection with, or assuring or securing payment
of, all or any part of the Obligations;
(h) CARE AND DILIGENCE. The failure of the Lenders or any
other Person to exercise diligence or reasonable care in the
preservation, protection, enforcement, sale or other handling or
treatment of all or any part of such collateral, property or security;
(i) STATUS OF LIENS. The fact that any collateral, security,
security interest or lien contemplated or intended to be given, created
or granted as security for the repayment of the Obligations shall not be
properly perfected or created, or shall prove to be unenforceable or
subordinate to any other security interest or lien, it being recognized
and agreed by Guarantor that it is not entering into this Guaranty
Agreement in reliance on, or in contemplation of the benefits of, the
validity, enforceability, collectibility or value of any of the
collateral for the Obligations;
(j) PAYMENTS RESCINDED. Any payment by Borrower to the
Lenders is held to constitute a preference under the bankruptcy laws, or
for any reason the Lenders are required to refund such payment or pay
such amount to Borrower or someone else; or
(k) OTHER ACTIONS TAKEN OR OMITTED. Any other action taken
or omitted to be taken with respect to the Credit Agreement, the
Obligations, or the security and collateral therefor, whether or not
such action or omission prejudices Guarantor or increases the likelihood
that Guarantor will be required to pay the Obligations pursuant to the
terms hereof; it being the unambiguous and unequivocal intention of
Guarantor that it shall be obligated to pay the Obligations when due,
notwithstanding any occurrence, circumstance, event, action, or omission
whatsoever, whether contemplated or uncontemplated, and whether or not
otherwise or particularly described herein, except for the full and
final payment and satisfaction of the Obligations.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 BY GUARANTOR. In order to induce the Lenders to accept
this Guaranty Agreement, Guarantor represents and warrants to the Lenders (which
representations and warranties will survive the creation of the Obligations and
any extension of credit thereunder) that:
(a) BENEFIT TO GUARANTOR. Guarantor's guaranty pursuant to
this Guaranty Agreement reasonably may be expected to benefit, directly
or indirectly, Guarantor.
(b) CORPORATE EXISTENCE. Guarantor is a corporation duly
organized, legally existing and in good standing under the laws of the
State of Delaware and is duly
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qualified as a foreign corporation in all jurisdictions wherein the
property owned or the business transacted by it makes such qualification
necessary.
(c) CORPORATE POWER AND AUTHORIZATION. Guarantor is duly
authorized and empowered to execute, deliver and perform this Guaranty
Agreement and all corporate action on Guarantor's part requisite for the
due execution, delivery and performance of this Guaranty Agreement has
been duly and effectively taken.
(d) BINDING OBLIGATIONS. This Guaranty Agreement constitutes
valid and binding obligations of Guarantor, enforceable in accordance
with its terms (except that enforcement may be subject to any applicable
bankruptcy, insolvency or similar laws generally affecting the
enforcement of creditors' rights).
(e) NO LEGAL BAR OR RESULTANT LIEN. This Guaranty Agreement
will not violate any provisions of Guarantor's articles or certificate
of incorporation, bylaws, or any contract, agreement, law, regulation,
order, injunction, judgment, decree or writ to which Guarantor is
subject, or result in the creation or imposition of any Lien upon any
Properties of Guarantor.
(f) NO CONSENT. Guarantor's execution, delivery and
performance of this Guaranty Agreement does not require the consent or
approval of any other Person, including without limitation any
regulatory authority or governmental body of the United States or any
state thereof or any political subdivision of the United States or any
state thereof.
(g) SOLVENCY. Guarantor hereby represents that (i) it is not
insolvent as of the date hereof and will not be rendered insolvent as a
result of this Guaranty Agreement, (ii) it is not engaged in business or
a transaction, or about to engage in a business or a transaction, for
which any property or assets remaining with Guarantor is unreasonably
small capital, and (iii) it does not intend to incur, or believe it will
incur, debts that will be beyond its ability to pay as such debts
mature.
Section 3.2 NO REPRESENTATION BY LENDERS. Neither the Lenders nor
any other Person has made any representation, warranty or statement to Guarantor
in order to induce Guarantor to execute this Guaranty Agreement. Guarantor
represents that, in executing and delivering this Guaranty, Guarantor has (i)
without reliance on the Lenders or any information received from the Lenders and
based upon such documents and information it deems appropriate, made an
independent investigation of the transactions contemplated hereby and the
Borrower, the Borrower's business, assets, operations, prospects and condition,
financial or otherwise, and any circumstances which may bear upon such
transactions, the Borrower or the obligations and risks undertaken herein with
respect to the Obligations; (ii) adequate means to obtain from the Borrower on a
continuing basis information concerning the Borrower; (iii) has full and
complete access to the Loan Documents and any other documents executed in
connection with the Loan Documents; and (iv) not relied and will not rely upon
any representations or warranties of the Lenders not embodied herein or any act
heretofore or hereafter taken by the Lenders (including but not limited to any
review by the Lenders of the affairs of the Borrower).
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ARTICLE IV
SUBORDINATION OF INDEBTEDNESS
Section 4.1 SUBORDINATION OF ALL GUARANTOR CLAIMS. As used herein,
the term "Guarantor Claims" shall mean all debts and liabilities of Borrower to
Guarantor, whether such debts and liabilities now exist or are hereafter
incurred or arise, or whether the obligation of Borrower thereon be direct,
contingent, primary, secondary, several, joint and several, or otherwise, and
irrespective of whether such debts or liabilities be evidenced by note,
contract, open account, or otherwise, and irrespective of the person or persons
in whose favor such debts or liabilities may, at their inception, have been, or
may hereafter be created, or the manner in which they have been or may hereafter
be acquired by Guarantor. Guarantor Claims shall include without limitation all
rights and claims of Guarantor against Borrower arising as a result of
subrogation or otherwise as a result of Guarantor's payment of all or a portion
of the Obligations. Until the Obligations shall be paid and satisfied in full,
Guarantor shall have performed all of its obligations hereunder and the
Commitments are terminated, Guarantor shall not receive or collect, directly or
indirectly, from Borrower or any other party any amount upon Guarantor Claims.
Section 4.2 CLAIMS IN BANKRUPTCY. In the event of receivership,
bankruptcy, reorganization, arrangement, debtor's relief, or other insolvency
proceedings involving Borrower as debtor, the Lenders shall have the right to
prove their claim in any proceeding, so as to establish its rights hereunder and
receive directly from the receiver, trustee or other court custodian, dividends
and payments which would otherwise be payable upon Guarantor Claims. Guarantor
hereby assigns such dividends and payments to the Lenders. Should the
Administrative Agent or any Lender receive, for application upon the
Obligations, any such dividend or payment which is otherwise payable to
Guarantor, and which, as between Borrower and Guarantor, shall constitute a
credit upon Guarantor Claims, then upon payment in full of the Obligations,
Guarantor shall become subrogated to the rights of the Lenders to the extent
that such payments to the Lenders on Guarantor Claims have contributed toward
the liquidation of the Obligations, and such subrogation shall be with respect
to that proportion of the Obligations which would have been unpaid if the
Administrative Agent or a Lender had not received dividends or payments upon
Guarantor Claims.
Section 4.3 PAYMENTS HELD IN TRUST. In the event that
notwithstanding Sections 4.1 and 4.2 above, Guarantor should receive any funds,
payments, claims or distributions which is prohibited by such Sections,
Guarantor agrees to hold in trust for the Lenders an amount equal to the amount
of all funds, payments, claims or distributions so received, and agrees that it
shall have absolutely no dominion over the amount of such funds, payments,
claims or distributions except to pay them promptly to the Administrative Agent,
and Guarantor covenants promptly to pay the same to the Administrative Agent.
Section 4.4 LIENS SUBORDINATE. Guarantor agrees that any liens,
security interests, judgment liens, charges or other encumbrances upon
Borrower's assets securing payment of Guarantor Claims shall be and remain
inferior and subordinate to any liens, security interests, judgment liens,
charges or other encumbrances upon Borrower's assets securing payment of the
Obligations, regardless of whether such encumbrances in favor of Guarantor, the
Administrative Agent or the Lenders presently exist or are hereafter created or
attach. Without the prior written
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consent of the Lenders, Guarantor shall not (a) exercise or enforce any
creditor's right it may have against the Borrower, or (b) foreclose, repossess,
sequester or otherwise take steps or institute any action or proceeding
(judicial or otherwise, including without limitation the commencement of or
joinder in any liquidation, bankruptcy, rearrangement, debtor's relief or
insolvency proceeding) to enforce any lien, mortgages, deeds of trust, security
interest, collateral rights, judgments or other encumbrances on assets of
Borrower held by Guarantor.
Section 4.5 NOTATION OF RECORDS. All promissory notes, accounts
receivable ledgers or other evidence of Guarantor Claims accepted by or held by
Guarantor shall contain a specific written notice thereon that the indebtedness
evidenced thereby is subordinated under the terms of this Guaranty Agreement.
ARTICLE V
MISCELLANEOUS
Section 5.1 SUCCESSORS AND ASSIGNS. This Guaranty Agreement is and
shall be in every particular available to the successors and assigns of the
Lenders and is and shall always be fully binding upon the legal representatives,
heirs, successors and assigns of Guarantor, notwithstanding that some or all of
the monies, the repayment of which this Guaranty Agreement applies, may be
actually advanced after any bankruptcy, receivership, reorganization, death,
disability or other event affecting Guarantor.
Section 5.2 NOTICES. Any notice or demand to Guarantor under or in
connection with this Guaranty Agreement may be given and shall conclusively be
deemed and considered to have been given and received in accordance with Section
12.02 of the Credit Agreement, addressed to Guarantor at the address on the
signature page hereof or at such other address provided to the Administrative
Agent in writing.
Section 5.3 BUSINESS AND FINANCIAL INFORMATION. Guarantor will
promptly furnish to the Administrative Agent and the Lenders from time to time
upon request such information regarding the business and affairs and financial
condition of Guarantor and its subsidiaries as the Administrative Agent and the
Lenders may reasonably request.
SECTION 5.4 GOVERNING LAW; CONSTRUCTION.
(a) THIS GUARANTY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF TEXAS.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY
AGREEMENT OR ANY OTHER LOAN DOCUMENT TO WHICH GUARANTOR IS A PARTY SHALL BE
BROUGHT IN THE COURTS OF THE STATE OF TEXAS OR OF THE UNITED STATES OF AMERICA
FOR THE SOUTHERN DISTRICT OF TEXAS, AND, BY EXECUTION AND DELIVERY OF THIS
AGREEMENT, GUARANTOR HEREBY ACCEPTS FOR ITSELF AND (TO THE EXTENT PERMITTED BY
LAW) IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION
OF THE AFORESAID COURTS. GUARANTOR HEREBY IRREVOCABLY WAIVES ANY OBJECTION,
INCLUDING, WITHOUT LIMITATION, ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY SUCH ACTION OR PROCEEDING IN SUCH RESPECTIVE JURISDICTIONS. THIS
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SUBMISSION TO JURISDICTION IS NON-EXCLUSIVE AND DOES NOT PRECLUDE THE
ADMINISTRATIVE AGENT OR ANY LENDER FROM OBTAINING JURISDICTION OVER GUARANTOR IN
ANY COURT OTHERWISE HAVING JURISDICTION.
(c) GUARANTOR HEREBY IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS
OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
GUARANTOR AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE THIRTY (30) DAYS
AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE ADMINISTRATIVE
AGENT, ANY LENDER OR ANY HOLDER OF A NOTE TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
GUARANTOR OR ITS PROPERTIES IN ANY OTHER JURISDICTION.
(d) GUARANTOR HEREBY (I) IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS GUARANTY AGREEMENT OR ANY OTHER LOAN DOCUMENT TO
WHICH IT IS A PARTY AND FOR ANY COUNTERCLAIM THEREIN; (II) IRREVOCABLY WAIVES,
TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR
RECOVER IN ANY SUCH LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES, OR DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; (III)
CERTIFIES THAT NO PARTY HERETO NOR ANY REPRESENTATIVE, AGENT OR COUNSEL FOR ANY
PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS,
AND (IV) ACKNOWLEDGES THAT IT HAS BEEN INDUCED TO ENTER INTO THIS GUARANTY
AGREEMENT AND THE OTHER LOAN DOCUMENTS TO WHICH IT IS A PARTY AND THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION 5.4 AND SECTION 12.12 OF
THE CREDIT AGREEMENT.
Section 5.5 AMENDMENTS. No amendment, modification or waiver of any
provision of this Guaranty Agreement shall be effective unless and until
evidenced in writing and executed by Guarantor and the Administrative Agent. Any
amendment, modification or waiver or release of this Guaranty Agreement executed
by the Administrative Agent may be relied upon by all other parties to the Loan
Documents as evidence of the consent of the Majority Lenders as required by
Section 12.04 of the Credit Agreement.
Section 5.6 INVALIDITY. In the event that any one or more of the
provisions contained in this Guaranty Agreement shall, for any reason, be held
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Guaranty
Agreement.
Section 5.7 ELECTRONIC DELIVERY OF SIGNATURE PAGES. Delivery of a
manually executed signature page of this Guaranty Agreement by e-mail or
facsimile shall be effective as delivery of an original executed signature page
of this Guaranty and shall be binding against Guarantor.
SECTION 5.8 ENTIRE AGREEMENT. THIS WRITTEN GUARANTY AGREEMENT
EMBODIES THE ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE LENDERS AND
GUARANTOR AND SUPERSEDES ALL OTHER AGREEMENTS AND UNDERSTANDINGS BETWEEN
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SUCH PARTIES RELATING TO THE SUBJECT MATTER HEREOF AND THEREOF. THIS WRITTEN
GUARANTY AGREEMENT REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
[SIGNATURES BEGIN ON NEXT PAGE]
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WITNESS THE EXECUTION HEREOF, as of the date first above written.
The parties hereto have caused this Agreement to be duly executed as of
the day and year first above written.
BORROWER: ISRAMCO, INC.
By: /s/ Haim Tsuff
Name: Haim Tsuff
Title: Chief Executive Officer
Address for Notices:
00000 Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
e-mail: xxxxxx@xxxxxx.xxx
Attention: Xxxxx Xxxx
With copy to:
Xxxxxxxxx Xxxxxxxxxx P.C.
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000-0000
Telephone No.: (000) 000-0000
Telecopier No.:(000) 000-0000
e-mail: xxxxxxxxxxx@xxxxxxx.xxx
Attention: Xxxxx X. Xxxxxxxxxx, III
Signature Page
