EXHIBIT 99.2
AMENDED AND RESTATED LIMITED GUARANTY
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THIS AMENDED AND RESTATED LIMITED GUARANTY is made as of the ___ day of
November, 2004, 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., a New York corporation
(herein "CIT"), and XXXXXX X. XXXXX, an individual residing at 0000 Xxxxxxx
Xxxx, Xxxxxxx, Xxxxx 00000 ("Guarantor").
RECITALS
A. Reference is made (a) to that certain Financing Agreement dated October
10, 2003, by and among the Companies and CIT (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 Limited Guaranty, dated
October 10, 2003, executed by Guarantor, in favor of CIT, in connection with the
payment of the Obligations (as defined in the Financing Agreement) (the
"Existing Limited Guaranty").
B. Guarantor and CIT now desire to amend and restate the Existing Limited
Guaranty and the provisions of this Amended and Restated Limited Guaranty are
therefore 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 Amended and Restated Limited
Guaranty, being hereinafter referred to as the "Agreement").
C. Guarantor confirms and affirms he requested that CIT 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 CIT 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 CIT
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 CIT 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 CIT to execute, deliver and perform the
Financing Agreement and the other Loan Documents and to fund the Revolving
Loans; and (d) CIT has 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 CIT 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 CIT 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, CIT's right to seek any payment from Guarantor
on account of the Guaranteed Obligations shall be limited to, and shall not
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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 CIT, to any Guaranteed Obligation must be returned
by CIT 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 CIT,
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 CIT 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, CIT shall not be required to
make any demand on any other guarantor of the Guaranteed Obligations or
otherwise pursue or exhaust its remedies against the Companies, Loan Collateral,
any other guarantor of the Guaranteed Obligations or any other Person before
enforcing its 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 CIT may deem advisable, in its 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 CIT, 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
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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 CIT 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 CIT 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
CIT or extensions of credit by CIT 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 CIT 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 CIT 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, CIT 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 CIT, 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
CIT and shall forthwith be paid to CIT 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.
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2.7. Savings Clause.
(a) It is the intent of Guarantor and CIT 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)
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
CIT, and neither Guarantor nor any other Person shall have any right or claim
under this section against CIT 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 CIT 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
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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.
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(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 CIT 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 CIT 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 CIT 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 CIT or its Affiliate or agents may be
required to obtain for such consent, approval, registration, qualification or
authorization. Guarantor hereby appoints CIT, its attorney-in-fact (without
requiring CIT 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 CIT, or Guarantor, as CIT 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 CIT's request or the time when Guarantor is otherwise obligated
to do so).
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(c) If Guarantor is an individual, Guarantor shall deliver to CIT
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 CIT 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 CIT 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 CIT'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 CIT 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.
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(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, CIT does not waive any breach of
any representation or warranty under any Loan Document or this Agreement, and
all of CIT's 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 CIT to obtain an
order of court recognizing the assignment of, or Lien of CIT, 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
CIT 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 CIT 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
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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 CIT to serve process in any manner permitted
by law or shall limit the right of CIT to bring proceedings against Guarantor in
the courts of any other jurisdiction having jurisdiction. Any judicial
proceedings against CIT, 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's 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, CIT 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 CIT. Nothing contained in this Agreement or any
other Loan Document shall be construed as a delegation to CIT of Guarantor's
duty of performance. GUARANTOR ACKNOWLEDGES AND AGREES THAT CIT 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 "CIT" in this Agreement includes successors and assigns,
each of which shall have all rights and benefits of CIT thereunder. 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
10
Documents held by it as fully as if the original holder thereof. Notwithstanding
any other provision of this Agreement or any Loan Document, CIT 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 CIT and its Affiliates all costs
and expenses incurred by CIT 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
CIT 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 CIT 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 CIT 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 CIT's 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, CIT hereby agrees to release Guarantor from its obligations
under this Agreement on the first day after January 30, 2006, that each of the
following is true:
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(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 CIT'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. CIT reserve the right to review and
approve all materials that Guarantor or any of his Affiliates prepares that
contain CIT'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 CIT'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 CIT.
(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 CIT with respect to
any matter that is subject of any Loan Document may be granted or withheld by
CIT in its sole and absolute discretion.
5.14. amendment and Restatement of Existing Limited Guaranty. The
provisions of this Amended and Restated Limited Guaranty are in renewal,
extension, amendment, and restatement, but not in novation, of the provisions of
the Existing Limited Guaranty.
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IN WITNESS WHEREOF, each of the parties hereto has duly executed this
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.
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 1 day of November, 2004, 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/China Xxxxxx
-------------------------------------
Print Name: China Xxxxxx
---------------------------------
Notary Public, State of Texas
--------------------
My Commission Expires: September 26, 2005
----------------------
[NOTARIAL SEAL]
Acknowledged and Agreed to as of November 1, 2004:
XXXXXX-XXXXXXX COMPANY
By: /s/ Xxxxx Xxxxxx
-------------------------------------
Name: Xxxxx Xxxxxx
-------------------------------------
Title: President/CEO
-------------------------------------
THREE D OIL CO. OF XXXXXXX, INC.
By: /s/ Xxxxx Xxxxxx
--------------------------------------
Name: Xxxxx Xxxxxx
--------------------------------------
Title: President/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 Amended
and Restated Limited Guaranty dated as of November 1, 2004, by and between such
Guarantor listed therein as a party thereto and THE CIT GROUP/BUSINESS CREDIT
INC., a New York corporation (herein "CIT"), (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
Amended and Restated Limited Guaranty.
This Acknowledgement and Stipulation constitutes an instrument executed
under seal, entered into as of November 1, 2004.
SPOUSE
/s/ Xxxxxx Xxxxx
--------------------------------------------
Name: Xxxxxx Xxxxx
---------------------------------------
Sworn to and subscribed before me this 1 day of November, 2004 by Xxxxxx Xxxxx,
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:/s/ Xxxxx X. Xxxx
-------------------------------------
Print Name: Xxxxx X. Xxxx
---------------------------------
Notary Public, State of Texas
---------------------
My Commission Expires: 7-25-08
----------------------
[NOTARIAL SEAL]
T
