GUARANTY New York, New York November 20, 2007
Exhibit 10.4
FOR
VALUE
RECEIVED, and in consideration of note purchases from, loans made or to be
made
or credit otherwise extended or to be extended by the Purchasers (as defined
below) to or for the account of Gulf Coast Oil Corporation, a Delaware
corporation (the “Company”), from time to time and at any time and for
other good and valuable consideration and to induce the Purchasers, in their
discretion, to purchase such notes, make such loans or other extensions of
credit and to make or grant such renewals, extensions, releases of collateral
or
relinquishments of legal rights as the Creditor Parties (as defined below)
may
deem advisable, each of the undersigned (and each of them if more than one,
the
liability under this Guaranty being joint and several) (jointly and severally
referred to as “Guarantors” or “the undersigned”) unconditionally
guaranties to the Creditor Parties, their successors, endorsees and assigns
the
prompt payment when due (whether by acceleration or otherwise) of all present
and future obligations and liabilities of any and all kinds of the Company
to
the Creditor Parties and of all instruments of any nature evidencing or relating
to any such obligations and liabilities upon which the Company or one or more
parties and the Company is or may become liable to the Creditor Parties, whether
incurred by the Company as maker, endorser, drawer, acceptor, guarantors,
accommodation party or otherwise, and whether due or to become due, secured
or
unsecured, absolute or contingent, joint or several, and however or whenever
acquired by the Creditor Parties, whether arising under, out of, or in
connection with (i) that certain Securities Purchase Agreement dated as of
the
date hereof (as amended, restated, modified and/or supplemented from time to
time, the “Securities Purchase Agreement”) by and between the Company,
the purchasers named therein or which thereafter become a party thereto (each
a
“Purchaser” and collectively, the “Purchasers”) and LV
Administrative Services, Inc., as administrative and collateral agent for the
Purchasers (in such capacity, the “Agent”) (the Purchasers and the Agent,
each a “Creditor Party” and collectively, the “Creditor Parties”)
and (ii) each Related Agreement referred to in the Securities Purchase Agreement
(the Securities Purchase Agreement and each Related Agreement, as each may
be
amended, modified, restated or supplemented from time to time, are collectively
referred to herein as the “Documents”), or any documents, instruments or
agreements relating to or executed in connection with the Documents or any
documents, instruments or agreements referred to therein or otherwise, or any
other indebtedness, obligations or liabilities of the Company to the Creditor
Parties, whether now existing or hereafter arising, direct or indirect,
liquidated or unliquidated, absolute or contingent, due or not due and whether
under, pursuant to or evidenced by a note, agreement, guaranty, instrument
or
otherwise (all of which are herein collectively referred to as the
“Obligations”), and irrespective of the genuineness, validity, regularity
or enforceability of such Obligations, or of any instrument evidencing any
of
the Obligations or of any collateral therefor or of the existence or extent
of
such collateral, and irrespective of the allowability, allowance or disallowance
of any or all of the Obligations in any case commenced by or against the Company
under Title 11, United States Code, including, without limitation, obligations
or indebtedness of the Company for post-petition interest, fees, costs and
charges that would have accrued or been added to the Obligations but for the
commencement of such case. Terms not otherwise defined herein shall
have the meaning assigned such terms in the Securities Purchase
Agreement. In furtherance of the foregoing, the undersigned xxxxxx
agrees as follows:
1. No
Impairment. The Creditor Parties may at any time and from time to
time, either before or after the maturity thereof, without notice to or further
consent of the undersigned, extend the time of payment of, exchange or surrender
any collateral for, renew or extend any of the Obligations or increase or
decrease the interest rate thereon, or any other agreement with the Company
or
with any other party to or person liable on any of the Obligations, or
interested therein, for the extension, renewal, payment, compromise, discharge
or release thereof, in whole or in part, or for any modification of the terms
thereof or of any agreement between any Creditor Party and the Company or any
such other party or person, or make any election of rights the Creditor Parties
may deem desirable under the United States Bankruptcy Code, as amended, or
any
other federal or state bankruptcy, reorganization, moratorium or insolvency
law
relating to or affecting the enforcement of creditors’ rights generally (any of
the foregoing, an “Insolvency Law”) without in any way impairing or
affecting this Guaranty. This Guaranty shall be effective regardless
of the subsequent incorporation, merger or consolidation of the Company, or
any
change in the composition, nature, personnel or location of the Company and
shall extend to any successor entity to the Company, including a debtor in
possession or the like under any Insolvency Law.
2. Guaranty
Absolute. Subject to Section 5(c) hereof, each of the undersigned
jointly and severally guarantees that the Obligations will be paid strictly
in
accordance with the terms of the Documents and/or any other document, instrument
or agreement creating or evidencing the Obligations, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting
any
of such terms or the rights of the Company with respect
thereto. Guarantors hereby knowingly accept the full range of risk
encompassed within a contract of “continuing guaranty” which risk includes the
possibility that the Company will contract additional indebtedness, obligations
and liabilities for which Guarantors may be liable hereunder after the Company’s
financial condition or ability to pay its lawful debts when they fall due has
deteriorated, whether or not the Company has properly authorized incurring
such
additional indebtedness, obligations and liabilities. The undersigned
acknowledge that (i) no oral representations, including any representations
to
extend credit or provide other financial accommodations to the Company, have
been made by any Creditor Party to induce the undersigned to enter into this
Guaranty and (ii) any extension of credit to the Company shall be governed
solely by the provisions of the Documents. The liability of each of
the undersigned under this Guaranty shall be absolute and unconditional, in
accordance with its terms, and shall remain in full force and effect without
regard to, and shall not be released, suspended, discharged, terminated or
otherwise affected by, any circumstance or occurrence whatsoever, including,
without limitation: (a) any waiver, indulgence, renewal, extension, amendment
or
modification of or addition, consent or supplement to or deletion from or any
other action or inaction under or in respect of the Documents or any other
instruments or agreements relating to the Obligations or any assignment or
transfer of any thereof, (b) any lack of validity or enforceability of any
Document or other documents, instruments or agreements relating to the
Obligations or any assignment or transfer of any thereof, (c) any furnishing
of
any additional security to the Creditor Parties or their assignees or any
acceptance thereof or any release of any security by the Creditor Parties or
their assignees, (d) any limitation on any party’s liability or obligation under
the Documents or any other documents, instruments or agreements relating to
the
Obligations or any assignment or transfer of any thereof or any invalidity
or
unenforceability, in whole or in part, of any such document, instrument or
agreement or any term thereof, (e) any bankruptcy,
insolvency, reorganization, composition, adjustment, dissolution, liquidation
or
other like proceeding relating to the Company, or any action taken with respect
to this Guaranty by any trustee or receiver, or by any court, in any such
proceeding, whether or not the undersigned shall have notice or knowledge of
any
of the foregoing, (f) any exchange, release or nonperfection of any collateral,
or any release, or amendment or waiver of or consent to departure from any
guaranty or security, for all or any of the Obligations or (g) any other
circumstance which might otherwise constitute a defense available to, or a
discharge of, the undersigned. Any amounts due from the undersigned
to the Creditor Parties shall bear interest until such amounts are paid in
full
at the highest rate then applicable to the Obligations. Obligations
include post-petition interest whether or not allowed or
allowable.
3. Waivers.
(a) This
Guaranty is a guaranty of payment and not of collection. The Creditor
Parties shall be under no obligation to institute suit, exercise rights or
remedies or take any other action against the Company or any other person or
entity liable with respect to any of the Obligations or resort to any collateral
security held by it to secure any of the Obligations as a condition precedent
to
the undersigned being obligated to perform as agreed herein and each of the
Guarantors hereby waives any and all rights which it may have by statute or
otherwise which would require the Creditor Parties to do any of the
foregoing. Each of the Guarantors further consents and agrees that
the Creditor Parties shall be under no obligation to marshal any assets in
favor
of Guarantors, or against or in payment of any or all of the
Obligations. The undersigned hereby waives all suretyship defenses
and any rights to interpose any defense, counterclaim or offset of any nature
and description which the undersigned may have or which may exist between and
among any Creditor Party, the Company and/or the undersigned with respect to
the
undersigned’s obligations under this Guaranty, or which the Company may assert
on the underlying debt, including but not limited to failure of consideration,
breach of warranty, fraud, payment (other than cash payment in full of the
Obligations), statute of frauds, bankruptcy, infancy, statute of limitations,
accord and satisfaction, and usury.
(b) Each
of the undersigned further waives (i) notice of the acceptance of this Guaranty,
of the making of any such loans or extensions of credit, and of all notices
and
demands of any kind to which the undersigned may be entitled, including, without
limitation, notice of adverse change in the Company’s financial condition or of
any other fact which might materially increase the risk of the undersigned
and
(ii) presentment to or demand of payment from anyone whomsoever liable upon
any
of the Obligations, protest, notices of presentment, non-payment or protest
and
notice of any sale of collateral security or any default of any
sort.
(c) Notwithstanding
any payment or payments made by the undersigned hereunder, or any setoff or
application of funds of the undersigned by any Creditor Party, the undersigned
shall not be entitled to be subrogated to any of the rights of such Creditor
Party against the Company or against any collateral or guarantee or right of
offset held by such Creditor Party for the payment of the Obligations, nor
shall
the undersigned seek or be entitled to seek any contribution or reimbursement
from the Company in respect of payments
made by the undersigned hereunder, until all amounts owing to the Creditor
Parties by the Company on account of the Obligations are indefeasibly paid
in
full and the Purchasers’ obligation to extend credit pursuant to the Documents
has been irrevocably terminated. If, notwithstanding the foregoing,
any amount shall be paid to the undersigned on account of such subrogation
rights at any time when all of the Obligations shall not have been paid in
full
and the Purchasers’ obligation to extend credit pursuant to the Documents shall
not have been terminated, such amount shall be held by the undersigned in trust
for the Creditor Parties, segregated from other funds of the undersigned, and
shall forthwith upon, and in any event within two (2) business days of, receipt
by the undersigned, be turned over to the Agent in the exact form received
by
the undersigned (duly endorsed by the undersigned to the Agent, if required),
to
be applied against the Obligations, whether matured or unmatured, in such order
as the Agent may determine, subject to the provisions of the
Documents. Any and all present and future debts, obligations and
liabilities of the Company to any of the undersigned are hereby waived and
postponed in favor of, and subordinated to the full payment and performance
of,
all present and future debts and Obligations of the Company to the Creditor
Parties.
4. Security. All
sums at any time to the credit of the undersigned and any property of the
undersigned in any Creditor Party’s possession or in the possession of any bank,
financial institution or other entity that directly or indirectly, through
one
or more intermediaries, controls or is controlled by, or is under common control
with, such Creditor Party (each such entity, an “Affiliate”) shall be
deemed held by such Creditor Party or such Affiliate, as the case may be, as
security for any and all of the undersigned’s obligations and liabilities to the
Creditor Parties and to any Affiliate of the Creditor Parties, no matter how
or
when arising and whether under this Guaranty or any other instrument, agreement
or otherwise.
5. Representations
and Warranties. Each of the undersigned hereby jointly and
severally represents and warrants (all of which representations and warranties
shall survive until all Obligations are indefeasibly satisfied in full and
the
Documents have been irrevocably terminated), that:
(a) Corporate
Status. It is a corporation, partnership or limited liability
company, as the case may be, duly formed, validly existing and in good standing
under the laws of its jurisdiction of formation indicated on the signature
page
hereof and has full power, authority and legal right to own its property and
assets and to transact the business in which it is engaged.
(b) Authority
and Execution. It has full power, authority and legal right to
execute and deliver, and to perform its obligations under, this Guaranty and
has
taken all necessary corporate, partnership or limited liability company, as
the
case may be, action to authorize the execution, delivery and performance of
this
Guaranty.
(c) Legal,
Xxxxx and Binding Character. This Guaranty constitutes its legal,
valid and binding obligation enforceable in accordance with its terms, except
as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium
or other laws of general application affecting the enforcement of creditor’s
rights and general principles of equity that restrict the availability of
equitable or legal remedies.
(d) Violations. The
execution, delivery and performance of this Guaranty will not violate any
requirement of law applicable to it or any contract, agreement or instrument
to
which it is a party or by which it or any of its property is bound or result
in
the creation or imposition of any mortgage, lien or other encumbrance other
than
in favor of the Agent, for the ratable benefit of the Creditor Parties, on
any
of its property or assets pursuant to the provisions of any of the foregoing,
which, in any of the foregoing cases, could reasonably be expected to have,
either individually or in the aggregate, a Material Adverse Effect.
(e) Consents
or Approvals. No consent of any other person or entity
(including, without limitation, any creditor of the undersigned) and no consent,
license, permit, approval or authorization of, exemption by, notice or report
to, or registration, filing or declaration with, any governmental authority
is
required in connection with the execution, delivery, performance, validity
or
enforceability of this Guaranty by it, except to the extent that the failure
to
obtain any of the foregoing could not reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect.
(f) Litigation. No
litigation, arbitration, investigation or administrative proceeding of or before
any court, arbitrator or governmental authority, bureau or agency is currently
pending or, to the best of its knowledge, threatened (i) with respect to this
Guaranty or any of the transactions contemplated by this Guaranty or (ii)
against or affecting it, or any of its property or assets, which, in each of
the
foregoing cases, if adversely determined, could reasonably be expected to have
a
Material Adverse Effect.
(g) Financial
Benefit. It has derived or expects to derive a financial or other
advantage from each and every loan, advance or extension of credit made under
the Documents or other Obligation incurred by the Company to the Creditor
Parties.
(h) Solvency. As
of the date of this Guaranty, (a) the fair saleable value of its assets exceeds
its liabilities and (b) it is meeting its current liabilities as they
mature.
6. Acceleration.
(a) If
any breach of any covenant or condition or other event of default shall occur
and be continuing under any agreement made by the Company or any of the
undersigned to any Creditor Party, or either the Company or any of the
undersigned should at any time become insolvent, or make a general assignment,
or if a proceeding in or under any Insolvency Law shall be filed or commenced
by, or in respect of, any of the undersigned, or if a notice of any
lien, levy, or assessment is filed of record with respect to any assets of
any
of the undersigned by the United States of America or any department, agency,
or
instrumentality thereof, or if any taxes or debts owing at any time or times
hereafter to any one of them becomes a lien or encumbrance upon any assets
of
the undersigned in any Creditor Party’s possession, or otherwise, any and all
Obligations shall
for
purposes hereof, at the Creditor Parties’ option, be deemed due and payable
without notice notwithstanding that any such Obligation is not then due and
payable by the Company.
(b) Each
of the undersigned will promptly notify the Agent of any default by such
undersigned in its respective performance or observance of any term or condition
of any agreement to which the undersigned is a party if the effect of such
default is to cause, or permit the holder of any obligation under such agreement
to cause, such obligation to become due prior to its stated maturity and, if
such an event occurs, the Creditor Parties shall have the right to accelerate
such undersigned’s obligations hereunder.
7. Payments
from Guarantors. The Creditor Parties, in their sole and absolute
discretion, with or without notice to the undersigned, may apply on account
of
the Obligations any payment from the undersigned or any other guarantors, or
amounts realized from any security for the Obligations, or may deposit any
and
all such amounts realized in a non-interest bearing cash collateral deposit
account to be maintained as security for the Obligations.
8. Costs. The
undersigned shall pay on demand, all costs, fees and expenses (including
expenses for legal services of every kind) relating or incidental to the
enforcement or protection of the rights of the Creditor Parties hereunder or
under any of the Obligations.
9. No
Termination. This Guaranty is a continuing irrevocable guaranty
and shall remain in full force and effect and be binding upon the undersigned,
and each of the undersigned’s successors and assigns, until all of the
Obligations have been indefeasibly paid in full and the Purchasers’ obligation
to extend credit pursuant to the Documents has been irrevocably
terminated. If any of the present or future Obligations are
guarantied by persons, partnerships, corporations or other entities in addition
to the undersigned, the death, release or discharge in whole or in part or
the
bankruptcy, merger, consolidation, incorporation, liquidation or dissolution
of
one or more of them shall not discharge or affect the liabilities of any
undersigned under this Guaranty.
10. Recapture. Anything
in this Guaranty to the contrary notwithstanding, if any Creditor Party receives
any payment or payments on account of the liabilities guaranteed hereby, which
payment or payments or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside and/or required to be repaid to
a
trustee, receiver, or any other party under any Insolvency Law, common law
or
equitable doctrine, then to the extent of any sum not finally retained by the
Creditor Parties, the undersigned’s obligations to the Creditor Parties shall be
reinstated and this Guaranty shall remain in full force and effect (or be
reinstated) until payment shall have been made to the Creditor Parties, which
payment shall be due on demand.
11. Books
and Records. The books and records of the Agent showing the
account between the Creditor Parties and the Company shall be admissible in
evidence in any action or proceeding, shall be binding upon the undersigned
for
the purpose of establishing the items therein set forth and shall constitute
prima facie proof thereof.
12. No
Waiver. No failure on the part of any Creditor Party to exercise,
and no delay in exercising, any right, remedy or power hereunder shall operate
as a waiver thereof, nor shall any single or partial exercise by any Creditor
Party of any right, remedy or power hereunder preclude any other or future
exercise of any other legal right, remedy or power. Each and every
right, remedy and power hereby granted to the Creditor Parties or allowed it
by
law or other agreement shall be cumulative and not exclusive of any other,
and
may be exercised by the Creditor Parties at any time and from time to
time.
13. WAIVER
OF JURY TRIAL. EACH OF THE UNDERSIGNED DESIRES THAT ITS DISPUTES
BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO
ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF
ARBITRATION, EACH OF THE UNDERSIGNED HERETO WAIVES ALL RIGHTS TO TRIAL BY JURY
IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
ARISING IN CONTRACT, TORT, OR OTHERWISE BETWEEN ANY CREDITOR PARTY, AND/OR
ANY
OF THE UNDERSIGNED ARISING OUT OF, CONNECTED WITH, RELATED OR INCIDENTAL TO
THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS GUARANTY, ANY
DOCUMENT OR THE TRANSACTIONS RELATED HERETO OR THERETO.
14. GOVERNING
LAW; JURISDICTION. THIS GUARANTY CANNOT BE CHANGED OR TERMINATED
ORALLY, AND SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED
IN
SUCH STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. EACH
OF THE UNDERSIGNED HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS
LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK SHALL HAVE EXCLUSIVE
JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN ANY OF THE
UNDERSIGNED, ON THE ONE HAND, AND ANY CREDITOR PARTY, ON THE OTHER HAND,
PERTAINING TO THIS GUARANTY OR ANY OF THE DOCUMENTS OR TO ANY MATTER ARISING
OUT
OF OR RELATED TO THIS GUARANTY OR ANY OF THE DOCUMENTS; PROVIDED, THAT
EACH OF THE UNDERSIGNED ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY
HAVE
TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE COUNTY OF NEW YORK, STATE OF
NEW
YORK; AND FURTHERPROVIDED, THAT NOTHING IN THIS GUARANTY SHALL BE
DEEMED OR OPERATE TO PRECLUDE THE CREDITOR PARTIES FROM BRINGING SUIT OR TAKING
OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO COLLECT THE OBLIGATIONS, TO
REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE OBLIGATIONS, OR TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF ANY CREDITOR
PARTY. EACH OF THE UNDERSIGNED EXPRESSLY SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT,
AND EACH UNDERSIGNED HEREBY WAIVES ANY OBJECTION WHICH IT MAY HAVE BASED UPON
LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS. EACH OF THE UNDERSIGNED HEREBY WAIVES PERSONAL
SERVICE OF THE SUMMONS, COMPLAINT
AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE
OF
SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED
MAIL ADDRESSED TO SUCH UNDERSIGNED IN ACCORDANCE WITH SECTION 18 AND THAT
SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH UNDERSIGNED’S
ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S. MAILS, PROPER
POSTAGE PREPAID.
15. Understanding
With Respect to Waivers and Consents. Each Guarantor warrants and
agrees that each of the waivers and consents set forth in this Guaranty is
made
voluntarily and unconditionally after consultation with outside legal counsel
and with full knowledge of its significance and consequences, with the
understanding that events giving rise to any defense or right waived may
diminish, destroy or otherwise adversely affect rights which such Guarantor
otherwise may have against the Company, any Creditor Party or any other person
or entity or against any collateral. If, notwithstanding the intent
of the parties that the terms of this Guaranty shall control in any and all
circumstances, any such waivers or consents are determined to be unenforceable
under applicable law, such waivers and consents shall be effective to the
maximum extent permitted by law.
16. Severability. To
the extent permitted by applicable law, any provision of this Guaranty which
is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
17. Amendments,
Waivers. No amendment or waiver of any provision of this Guaranty
nor consent to any departure by the undersigned therefrom shall in any event
be
effective unless the same shall be in writing executed by each of the
undersigned directly affected by such amendment and/or waiver and the
Agent.
18. Notice. All
notices, requests and demands to or upon the undersigned, shall be in writing
and shall be deemed to have been duly given or made (a) when delivered, if
by
hand, (b) three (3) days after being sent, postage prepaid, if by
registered or certified mail, (c) when confirmed electronically, if by
facsimile, or (d) when delivered, if by a recognized overnight delivery service
in each event, to the numbers and/or address set forth beneath the signature
of
the undersigned.
19. Successors. Each
Creditor Party may, from time to time, without notice to the undersigned, sell,
assign, transfer or otherwise dispose of all or any part of the Obligations
and/or rights under this Guaranty. Without limiting the generality of
the foregoing, each Creditor Party may assign, or grant participations to,
one
or more banks, financial institutions or other entities all or any part of
any
of the Obligations. In each such event, the Creditor Parties, their
Affiliates and each and every immediate and successive purchaser, assignee,
transferee or holder of all or any part of the Obligations shall have the right
to enforce this Guaranty, by legal action or otherwise, for its own benefit
as
fully as if such purchaser, assignee, transferee or holder were herein by name
specifically given such right. The Creditor Parties shall have an
unimpaired right to
enforce this Guaranty for its benefit with respect to that portion of the
Obligations which the Creditor Parties have not disposed of, sold, assigned,
or
otherwise transferred.
20. Joinder. It
is understood and agreed that any person or entity that desires to become a
Guarantor hereunder, or is required to execute a counterpart of this Guaranty
after the date hereof pursuant to the requirements of any Document, shall become
a Guarantor hereunder by (x) executing a joinder agreement in form and substance
satisfactory to the Agent, (y) delivering supplements to such exhibits and
annexes to such Documents as the Agent shall reasonably request and/or as may
be
required by such joinder agreement and (z) taking all actions as specified
in
this Guaranty as would have been taken by such such Guarantor had it been an
original party to this Guaranty, in each case with all documents required above
to be delivered to the Agent and with all documents and actions required above
to be taken to the reasonable satisfaction of the Agent.
21. Release. Nothing
except indefeasible payment in full of the Obligations shall release any of
the
undersigned from liability under this Guaranty.
22. Remedies
Not Exclusive. The remedies conferred upon the Creditor Parties
in this Guaranty are intended to be in addition to, and not in limitation of
any
other remedy or remedies available to the Creditor Parties.
23. Limitation
of Obligations under this Guaranty. Each Guarantor and each
Creditor Party (by its acceptance of the benefits of this Guaranty) hereby
confirms that it is its intention that this Guaranty not constitute a fraudulent
transfer or conveyance for purposes of the Bankruptcy Code, the Uniform
Fraudulent Conveyance Act of any similar Federal or state law. To
effectuate the foregoing intention, each Guarantor and each Creditor Party
(by
its acceptance of the benefits of this Guaranty) hereby irrevocably agrees
that
the Obligations guaranteed by such Guarantor shall be limited to such amount
as
will, after giving effect to such maximum amount and all other (contingent
or
otherwise) liabilities of such Guarantor that are relevant under such laws
and
after giving effect to any rights to contribution pursuant to any agreement
providing for an equitable contribution among such Guarantor and the other
Guarantors (including this Guaranty), result in the Obligations of such
Guarantor under this Guaranty in respect of such maximum amount not constituting
a fraudulent transfer or conveyance.
[REMAINDER
OF THIS PAGE IS BLANK.
SIGNATURE
PAGE IMMEDIATELY FOLLOWS]
IN
WITNESS WHEREOF, this Guaranty has been executed by the undersigned as of the
date and year here above written.
By:
/s/ Xxxxxx X. XxXxxxxxx
Name:
Xxxxxx X. XxXxxxxxx
Title:
President
Address:
0000
Xxx
Xxxxxx, Xxxxx 000
Houston,
TX 77057
Facsimile: (000)
000-0000
State
of
Formation: Colorado
CENTURY
RESOURCES, INC.
By:
/s/ Xxxxxx X. XxXxxxxxx
Name:
Xxxxxx X. XxXxxxxxx
Title:
President
Address:
0000
Xxx
Xxxxxx, Xxxxx 000
Houston,
TX 77057
Facsimile: (000)
000-0000
State
of
Formation: Delaware
