1
Exhibit 10.15
AMENDED AND RESTATED
PORTFIELD INDEMNIFICATION AGREEMENT
FOR VALUE RECEIVED, and in consideration of advances, credits or other
financial accommodations which The WLD Trust, an Ohio Testamentary Trust ("WLD
Trust"), may now or hereafter extend to Portfield Investments, Inc., a
corporation formed under the laws of the state of Colorado ("Portfield"),
pursuant to a loan made by Xxxxxx Guaranty Trust Company of New York ("Xxxxxx")
to Portfield under that certain Demand Note dated February 28, 1997 (the
"Note"), Portfield hereby unconditionally and absolutely agrees to indemnify
and hold WLD Trust harmless from and against any and all costs, indebtedness,
obligations and liabilities of every kind and nature, whether now existing or
hereafter created or arising, whether direct or indirect, absolute or
contingent, which WLD Trust pays or incurs under that certain Guaranty dated
February 28, 1997 (the "Guaranty") given by WLD Trust to Xxxxxx to guaranty
Portfield's obligations under the Note, including all expenses, legal or
otherwise, including court costs and reasonable attorney's fees, which WLD
Trust pays or incurs in connection therewith (collectively, the
"Indebtedness"). Portfield covenants and agrees to pay and perform its
liabilities and obligations under the Note promptly as and when the same shall
become due to Xxxxxx thereunder, and Portfield shall not commit nor permit to
occur any default under the provisions of the Note.
This Amended and Restated Indemnification Agreement amends and
restates that certain Indemnification Agreement dated March 12, 1997 given by
Portfield to WLD.
Portfield's obligations hereunder are secured by a pledge of
"Collateral" as defined in and pursuant to that certain Amended and Restated
WLD Security Agreement of even date herewith by and among WLD Trust, Portfield,
Wescourt Group, Inc., a corporation formed under the laws of the state of
Delaware, Wescourt Distributing, Inc., a corporation formed under the laws of
the state of Colorado, Wesfrac, Inc., a corporation formed under the laws of
the state of Colorado, Westec Denver, Inc., a corporation formed under the laws
of the state of Colorado, Xxxxx-Xxxx Corp. Utah, a corporation formed under the
laws of the state of Colorado, Xxxxx-Xxxx Corp., a corporation formed under the
laws of the state of Colorado, Xxxxx-Xxxx Corp. Montrose, Inc., a corporation
formed under the laws of the state of Colorado, Westec Fruita, Inc., a
corporation formed under the laws of the state of Delaware, Montrose Propane,
Inc., a corporation formed under the laws of the state of Colorado, Grand Mesa
Texaco, Inc., a corporation formed under the laws of the state of Colorado,
Fruita RP Holding, Inc., a corporation formed under the laws of the state of
Delaware, Super-Mart Convenience Stores, Inc., a corporation formed under the
laws of the state of Colorado, and Xxxxxxx Oil Company, Inc., a corporation
formed under the laws of the state of Texas.
The terms of this Amended and Restated Indemnification Agreement are
subject to the terms, express or implied, and provisions of a certain First
Amended and Restated Intercreditor and Subordination Agreement, dated as of the
date hereof, among Xxxxxx Financial, Inc., a corporation formed under the laws
of the state of Delaware, National Canada Finance Corp., a corporation formed
under the laws of the state of Delaware, WLD Trust and the other parties named
1
2
therein, as the same may be amended, modified, substituted or replaced from
time to time (the "First Amended and Restated Intercreditor Agreement"), and to
the extent any conflict arises between this Amended and Restated
Indemnification Agreement and the First Amended and Restated Intercreditor
Agreement, then the terms of the First Amended and Restated Intercreditor
Agreement shall control in all respects and this Amended and Restated
Indemnification Agreement shall be interpreted as if those terms of the First
Amended and Restated Intercreditor Agreement are explicitly set forth herein.
Portfield's obligations hereunder shall be unconditional and shall not
be subject to any defense, setoff, counterclaim or recoupment whatsoever,
irrespective of the genuineness, validity, regularity or enforceability of the
Note or Guaranty or any conduct of Portfield, WLD Trust or Xxxxxx which might
constitute a legal or equitable discharge of a surety, guarantor or guaranty.
WLD Trust may continue to act in reliance on Portfield's
indemnification hereunder, and this Amended and Restated Indemnification
Agreement shall remain in full force and effect with respect to the
Indebtedness until all amounts to be paid and actions to be performed by
Portfield under the Note have been paid and performed in full. Portfield
agrees that this Amended and Restated Indemnification Agreement shall continue
to be effective or be reinstated, as the case may be, if at any time payment,
or any part thereof, of the Note or the Indebtedness is set aside, rescinded,
or must otherwise be returned by WLD Trust or Xxxxxx for any reason, including
the insolvency, bankruptcy or reorganization of Portfield or any other person
or entity, and this Amended and Restated Indemnification Agreement shall be
binding and enforceable as though such returned or rescinded payment had never
been made.
The liability hereunder shall not be affected or impaired by, and WLD
Trust and Xxxxxx are hereby expressly authorized to make from time to time,
without notice to anyone, any sale, pledge, surrender, compromise, release,
renewal, extension, modification or other disposition of or with respect to the
Note or this Amended and Restated Indemnification Agreement or any security or
collateral therefor, and such liability shall not be affected or impaired by
any acceptance by WLD Trust or Xxxxxx of any security for, or other guarantors
of, the Note, or by any forbearance or indulgence by WLD Trust or Xxxxxx in the
collection of, or any failure, neglect or omission on its part to realize upon
any collateral or security therefor, or to enforce any lien upon or right of
appropriation of any monies, credits or property of Portfield in the possession
of WLD Trust or Xxxxxx, or by any application of payments or credits on the
Indebtedness or the Note.
Any and all monies, credits or other property belongings to Portfield
in the possession or under the control of WLD Trust may be appropriated and
applied against the liability of Portfield hereunder.
Portfield waives presentment, protest, demand, notice of dishonor or
default, notice of acceptance of this Amended and Restated Indemnification
Agreement, notice of any loans made, extensions granted or other action taken
in reliance hereon and all demands and notices of any kind in connection with
this Amended and Restated Indemnification Agreement or the Indebtedness. No
delay on the part of WLD Trust or Xxxxxx in the exercise of any right or remedy
shall preclude other or further exercise thereof or the exercise of any other
right or remedy. No action
2
3
of WLD Trust or Xxxxxx permitted hereunder shall in any way impair or affect
this Amended and Restated Indemnification Agreement.
As a condition to payment or performance by Portfield under this
Amended and Restated Indemnification Agreement, neither WLD Trust nor Xxxxxx
shall be required to, and Portfield hereby waives any rights to require WLD
Trust or Xxxxxx to prosecute or seek to enforce any remedies against any other
party liable to WLD Trust or Xxxxxx on account of the Guaranty, the Note or the
Indebtedness or to require WLD Trust or Xxxxxx to seek to enforce or resort to
any remedies with respect to any security interests, liens or encumbrances
granted to WLD Trust or Xxxxxx by Portfield or any other party on account of
the Guaranty or the Indebtedness.
Portfield agrees to pay, upon WLD Trust's demand therefor, any and all
costs, fees and expenses (including reasonable attorneys' fees, costs and
expenses) incurred by WLD Trust (i) in enforcing any of WLD Trust's rights
hereunder, and (ii) in representing WLD Trust in any litigation, contest, suit
or dispute, or to commence, defend or intervene or to take any action with
respect to any litigation, contest, suit or dispute (whether instituted by WLD
Trust, Xxxxxx, Portfield or any other person) in any way relating to the Note
and to the extent not paid the same shall become part of the Indebtedness
hereunder. Any sums not paid when due hereunder bear interest until paid at
the default rate specified in the Note. Enforcement costs and interest are
included in the "Indebtedness" and secured by the Amended and Restated WLD
Security Agreement.
This Amended and Restated Indemnification Agreement, and each and
every part hereof, shall be binding upon Portfield and upon the successors and
assigns of Portfield, and shall inure to the benefit of WLD Trust, its
successors and assigns.
THIS AMENDED AND RESTATED INDEMNIFICATION AGREEMENT HAS BEEN EXECUTED,
DELIVERED AND ACCEPTED AT AND SHALL HAVE BEEN DEEMED TO HAVE BEEN MADE AT
FRUITA, COLORADO, AND SHALL BE INTERPRETED AND THE RIGHTS AND LIABILITIES OF
THE PARTIES HERETO DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
COLORADO OTHER THAN LAWS PERTAINING TO CONFLICTS. PORTFIELD HEREBY WAIVES ANY
OBJECTION TO IMPROPER VENUE, FORUM NON CONVENIENS, AND ANY RIGHTS TO A TRIAL BY
JURY OF ANY CLAIM OR CAUSE OF ACTION OR IN ANY LITIGATION OR ANY COURT WITH
RESPECT TO OR ARISING OUT OF THIS AMENDED AND RESTATED INDEMNIFICATION
AGREEMENT. THIS WAIVER IS INFORMED AND FREELY MADE. PORTFIELD ACKNOWLEDGES
THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO WLD TRUST TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT IT HAS ALREADY RELIED ON THE WAIVER IN ACCEPTING THIS
AMENDED AND RESTATED INDEMNIFICATION AGREEMENT, AND THAT IT WILL CONTINUE TO
RELY ON THE WAIVER IN ITS RELATED FUTURE DEALINGS. PORTFIELD FURTHER WARRANTS
AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL AND THAT
IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING
CONSULTATION WITH LEGAL COUNSEL.
3
4
IN WITNESS WHEREOF, the undersigned has executed and delivered this Amended and
Restated Indemnification Agreement on this April 11, 1997.
Portfield Investments, Inc., a Colorado corporation
By:
--------------------------------------
Xxxxx Xxxxxx
Its: President
Address for notices: 0000 Xxxxxxxx 0 xxx 00
Xxxxxx, Xxxxxxxx 00000
4
