THIRD AMENDED AND RESTATED GUARANTY AGREEMENT
Exhibit 10.3
THIRD AMENDED AND RESTATED
GUARANTY AGREEMENT
GUARANTY AGREEMENT
This Third Amended and Restated Guaranty Agreement dated as of January 29, 2010 (this
“Guaranty”) is executed by each of the undersigned (individually a “Guarantor” and
collectively, the “Guarantors”), in favor of Regions Bank, as administrative agent (the
“Administrative Agent”) for the ratable benefit of itself, the Lenders (as defined below),
the Issuing Lender (as defined below), and the Swap Counterparties (as defined below) (together
with the Administrative Agent, the Issuing Lender, the Lenders, individually a
“Beneficiary”, and collectively, the “Beneficiaries”).
INTRODUCTION
A. The Guarantors have previously executed and delivered that certain Guaranty Agreement dated
as of June 14, 2004 (the “2004 Guaranty”), which was ratified and reaffirmed in connection
with that certain Amended and Restated Credit Agreement dated as of August 30, 2006, as amended
heretofore (as so amended, the “2006 Credit Agreement”), among Xxxxxx Petroleum Company
(“Borrower”), the lenders party thereto from time to time (individually, a
“Lender”, and collectively the “Lenders”), and Union Bank of California, N.A., as
administrative agent (in such capacity, the “Prior Administrative Agent”) and issuing
lender (in such capacity, the “Issuing Lender”) for the Lenders.
B. The 2004 Guaranty was amended and restated by that certain Amended and Restated Guaranty,
dated September 25, 2008, made by the Guarantors (the “Existing Guaranty”), and the 2006
Credit Agreement was amended and restated in its entirety pursuant to that certain Second Amended
and Restated Credit Agreement dated as of September 25, 2008 (the “Existing Credit
Agreement”) among the Borrower, the Lenders, the Issuing Lender and the Prior Administrative
Agent. Effective as of January 29, 2010, the Prior Administrative Agent has resigned from such
capacity and the Adminstrative Agent has been appointed as the successor administrative agent under
the Existing Credit Agreement.
C. The Existing Credit Agreement is being amended and restated in its entirety pursuant to
that certain Third Amended and Restated Credit Agreement dated as of January 29, 2010 (as amended,
restated, supplemented and otherwise modified from time to time, the “Credit Agreement”)
among the Borrower, the Lenders, the Issuing Lender and the Administrative Agent.
D. The Guarantors are Subsidiaries of the Borrower and will derive substantial direct and
indirect benefit from (i) the transactions contemplated by the Credit Agreement, and the other Loan
Documents (as defined in the Credit Agreement), and (ii) the Hedge Contracts (as defined in the
Credit Agreement) entered into by the Borrower or any of its Subsidiaries with a Swap Counterparty
(as defined in the Credit Agreement).
E. It is a requirement under the Credit Agreement that each of the Guarantors continue to
guarantee the due payment and performance of all Obligations (as defined in the
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Credit Agreement) by amending and restating in its entirety the Existing Guaranty as set forth
herein.
NOW, THEREFORE, in consideration of the premises, each Guarantor hereby agrees (a) that the
Existing Guaranty is amended and restated in its entirety as follows and (b) further agrees as
follows:
Section 1. Definitions. All capitalized terms not otherwise defined in this Guaranty
that are defined in the Credit Agreement shall have the meanings assigned to such terms by the
Credit Agreement.
Section 2. Guaranty.
(a) Each Guarantor hereby absolutely, unconditionally and irrevocably guarantees the punctual
payment and performance, when due, whether at stated maturity, by acceleration or otherwise, of (i)
all Obligations, whether absolute or contingent and whether for principal, interest (including,
without limitation, interest that but for the existence of a bankruptcy, reorganization or similar
proceeding would accrue), fees, amounts required to be provided as collateral, indemnities,
expenses or otherwise, and all other amounts owing in respect of the Obligations and (ii) all
obligations under this Guaranty (collectively, the “Guaranteed Obligations”). Without
limiting the generality of the foregoing, each Guarantor’s liability shall extend to all amounts
that constitute part of the Guaranteed Obligations and would be owed by the Borrower or any of its
Subsidiaries to the Administrative Agent, the Issuing Lender or any Lender under the Loan Documents
and by the Borrower or any of its Subsidiaries to any Swap Counterparty but for the fact that they
are unenforceable or not allowable due to insolvency or the existence of a bankruptcy,
reorganization or similar proceeding involving any Person.
(b) It is the intention of the Guarantors and each Beneficiary that the amount of the Guaranteed
Obligations guaranteed by each Guarantor shall not be in excess of the maximum amount permitted by
fraudulent conveyance, fraudulent transfer or similar Legal Requirements applicable to such
Guarantor. Accordingly, notwithstanding anything to the contrary contained in this Guaranty or in
any other agreement or instrument executed in connection with the payment of any of the Guaranteed
Obligations, the amount of the Guaranteed Obligations guaranteed by a Guarantor under this Guaranty
shall be limited to an aggregate amount equal to the largest amount that would not render such
Guarantor’s obligations hereunder subject to avoidance under Section 548 of the United States
Bankruptcy Code or any comparable provision of any other applicable law.
Section 3. Guaranty Absolute. Each Guarantor guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of the Loan Documents and any Hedge
Contracts with Swap Counterparties (collectively, the “Guaranteed Documents”), regardless
of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of
such terms or the rights of any Beneficiary with respect thereto but subject to Section 2(b) above.
The obligations of each Guarantor under this Guaranty are independent of the Guaranteed
Obligations or any other obligations of any other Person under the Guaranteed Documents, and a
separate action or actions may be brought and prosecuted against any Guarantor to enforce this
Guaranty, irrespective of whether any action is brought against the
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Borrower, any Guarantor or any other Person or whether the Borrower, any Guarantor or any
other Person is joined in any such action or actions. The liability of each Guarantor under this
Guaranty shall be irrevocable, absolute and unconditional irrespective of, and each Guarantor
hereby irrevocably and unconditionally waives any defenses it may now or hereafter have in any way
relating to, any or all of the following:
(a) any lack of validity or enforceability of any Guaranteed Document or any agreement or
instrument relating thereto or any part of the Guaranteed Obligations being irrecoverable;
(b) any change in the time, manner or place of payment of, or in any other term of, all or any of
the Guaranteed Obligations or any other obligations of any Person under the Loan Documents or any
agreement or instrument relating to Hedge Contract with a Swap Counterparty, or any other amendment
or waiver of or any consent to departure from any Loan Document or any agreement or instrument
relating to any Hedge Contract with a Swap Counterparty, including, without limitation, any
increase in the Guaranteed Obligations resulting from the extension of additional credit to the
Borrower or otherwise;
(c) any taking, exchange, release or non-perfection of any collateral, or any taking, release or
amendment or waiver of or consent to departure from any other guaranty, for all or any of the
Guaranteed Obligations;
(d) any manner of application of collateral, or proceeds thereof, to all or any of the Guaranteed
Obligations, or any manner of sale or other disposition of any collateral for all or any of the
Guaranteed Obligations or any other obligations of any other Person under the Guaranteed Documents
or any other assets of the Borrower or any other Person;
(e) any change, restructuring or termination of the corporate structure or existence of the
Borrower or any other Person;
(f) any failure of any Lender, the Administrative Agent, the Issuing Lender or any other
Beneficiary to disclose to the Borrower or any Guarantor any information relating to the business,
condition (financial or otherwise), operations, properties or prospects of any Person now or in the
future known to the Administrative Agent, the Issuing Lender, any Lender or any other Beneficiary
(and each Guarantor hereby irrevocably waives any duty on the part of any Beneficiary to disclose
such information);
(g) any signature of any officer of the Borrower being mechanically reproduced in facsimile or
otherwise; or
(h) any other circumstance or any existence of or reliance on any representation by any Beneficiary
that might otherwise constitute a defense available to, or a discharge of, the Borrower, any
Guarantor or any other guarantor, surety or other Person.
Section 4. Continuation and Reinstatement, Etc. Each Guarantor agrees that, to the
extent that payments of any of the Guaranteed Obligations are made, or any Beneficiary receives any
proceeds of collateral, and such payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside, or otherwise required to be
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repaid, then to the extent of such repayment the Guaranteed Obligations shall be reinstated
and continued in full force and effect as of the date such initial payment or collection of
proceeds occurred. EACH GUARANTOR SHALL DEFEND AND INDEMNIFY EACH BENEFICIARY FROM AND AGAINST ANY
CLAIM, DAMAGE, LOSS, LIABILITY, COST OR EXPENSE UNDER THIS SECTION 4 (INCLUDING REASONABLE
ATTORNEYS’ FEES AND EXPENSES) IN THE DEFENSE OF ANY SUCH ACTION OR SUIT INCLUDING SUCH CLAIM,
DAMAGE, LOSS, LIABILITY, COST, OR EXPENSE ARISING AS A RESULT OF THE INDEMNIFIED BENEFICIARY’S OWN
NEGLIGENCE BUT EXCLUDING SUCH CLAIM, DAMAGE, LOSS, LIABILITY, COST, OR EXPENSE THAT IS FOUND IN A
FINAL, NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH
INDEMNIFIED BENEFICIARY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Section 5. Waivers and Acknowledgments.
(a) Each Guarantor hereby waives promptness, diligence, presentment, notice of acceptance and any
other notice with respect to any of the Guaranteed Obligations and this Guaranty and any
requirement that any Beneficiary protect, secure, perfect or insure any Lien or any property or
exhaust any right or take any action against the Borrower or any other Person or any collateral.
(b) Each Guarantor hereby irrevocably waives any right to revoke this Guaranty, and acknowledges
that this Guaranty is continuing in nature and applies to all Guaranteed Obligations, whether
existing now or in the future.
(c) Each Guarantor acknowledges that it will receive substantial direct and indirect benefits from
the financing arrangements involving the Borrower or any Subsidiary of the Borrower contemplated by
the Guaranteed Documents (including any Hedge Contracts) and that the waivers set forth in this
Guaranty are knowingly made in contemplation of such benefits.
Section 6. Subrogation. No Guarantor will exercise any rights that it may now have or
hereafter acquire against the Borrower or any other Person to the extent that such rights arise
from the existence, payment, performance or enforcement of such Guarantor’s obligations under this
Guaranty or any other Guaranteed Document or otherwise, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution or indemnification and any right to
participate in any claim or remedy of any Beneficiary against the Borrower or any other Person,
whether or not such claim, remedy or right arises in equity or under contract, statute or common
law, including, without limitation, the right to take or receive from the Borrower or any other
Person, directly or indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right, unless and until the occurrence of
the Guaranty Termination (as defined in Section 13 below). If any amount shall be paid to a
Guarantor in violation of the preceding sentence at any time prior to Guaranty Termination, such
amount shall be held in trust for the benefit of the Beneficiaries and shall forthwith be paid to
the Administrative Agent to be credited and applied to the Guaranteed Obligations and any and all
other amounts payable by the Guarantors under this Guaranty, whether matured or unmatured, in
accordance with the terms of the Loan Documents.
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Section 7. Subordination. Each Guarantor hereby subordinates (in liquidation,
dissolution, bankruptcy, reorganization, or otherwise) all sums due and owing to such Guarantor by
the Borrower or any other Guarantor, if any, to all sums due and owing to any Beneficiary by the
Borrower or any Guarantor. Each Guarantor hereby agrees that no payments shall be made by, or
received from, the Borrower or any other Guarantor with respect to any such subordinated obligation
owing to such Guarantor, except as permitted under the Credit Agreement.
Section 8. Representations and Warranties. Each Guarantor hereby represents and
warrants as follows:
(a) There are no conditions precedent to the effectiveness of this Guaranty that have not been
satisfied or waived. Such Guarantor benefits from executing this Guaranty.
(b) Such Guarantor has, independently and without reliance upon any Beneficiary and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this Guaranty, and such Guarantor has established adequate means of obtaining from
the Borrower and each other relevant Person on a continuing basis information pertaining to, and is
now and on a continuing basis will be completely familiar with, the business, condition (financial
and otherwise), operations, properties and prospects of the Borrower and each other relevant
Person.
(c) The obligations of such Guarantor under this Guaranty are the valid, binding and legally
enforceable obligations of such Guarantor, and the execution and delivery of this Guaranty by such
Guarantor has been duly and validly authorized in all respects by such Guarantor, and the Person
who is executing and delivering this Guaranty on behalf of such Guarantor has full power, authority
and legal right to so do, and to observe and perform all of the terms and conditions of this
Guaranty on such Guarantor’s part to be observed or performed.
Section 9. Right of Set-Off. Upon the occurrence and during the continuance of any
Event of Default, each Beneficiary is hereby authorized at any time, to the fullest extent
permitted by law, to set off and apply any deposits (general or special, time or demand,
provisional or final) and other indebtedness owing by such Beneficiary or an Affiliate thereof to
the account of each Guarantor against any and all of the obligations of the Guarantors under this
Guaranty, irrespective of whether or not such Beneficiary shall have made any demand under this
Guaranty and although such obligations may be contingent and unmatured. Such Beneficiary shall
promptly notify the affected Guarantor after any such set-off and application is made, provided
that the failure to give such notice shall not affect the validity of such set-off and application.
The rights of the Beneficiaries under this Section 9 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which any Beneficiary may have.
Section 10. Amendments, Etc. No amendment or waiver of any provision of this Guaranty
and no consent to any departure by any Guarantor therefrom shall in any event be effective unless
the same shall be in writing and signed by the affected Guarantor, the Administrative Agent and the
Required Lenders, and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given; provided that no amendment, waiver or consent
shall, unless in writing and signed by all of the Lenders, (a)
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release any Guarantor from its obligations hereunder except as permitted under Section 8.08(b)
of the Credit Agreement (it being understood that waivers and amendments permitted to be made under
the Credit Agreement by the Required Lenders with respect to any of the underlying obligations
guaranteed hereunder shall not be deemed to release or limit the liability of any Guarantor within
the meaning of this clause (a)), (b) postpone any date fixed for payment hereunder in respect of
any of the Guaranteed Obligations, or (c) change the percentage of the Lenders required to take any
action hereunder.
Section 11. Notices, Etc. All notices and other communications provided for hereunder
shall be sent in the manner provided for in Section 9.02 of the Credit Agreement and if to a
Guarantor, at its address specified on the signature page hereto and if to the Administrative
Agent, the Issuing Lender or any Lender, at its address specified in or pursuant to the Credit
Agreement, and if to a Swap Counterparty, at its address specified in the applicable Hedge
Contract. All such notices and communications shall be effective when delivered, except that
notices and communications to the Administrative Agent shall not be effective until received by the
Administrative Agent.
Section 12. No Waiver: Remedies. No failure on the part of the Administrative Agent
or any other Beneficiary to exercise, and no delay in exercising, any right hereunder shall operate
as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any
other or further exercise thereof or the exercise of any other right. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
Section 13. Continuing Guaranty: Assignments under the Credit Agreement. This
Guaranty is a continuing guaranty and shall (a) remain in full force and effect until such time
when each of the following shall have occurred: (i) the indefeasible payment in full in cash of all
Guaranteed Obligations and all other amounts payable under the Loan Documents, (ii) the termination
or expiration of all Letters of Credit, (iii) the termination of all Hedge Contracts with the Swap
Counterparties (other than Hedge Contracts with any Swap Counterparty with respect to which other
arrangements satisfactory to such Swap Counterparty and the Borrower have been made or have been
deemed to have to been made under Section 8.08(b) of the Credit Agreement), and (iv) the
termination of all the Commitments (such time being referred to herein as the “Guaranty
Termination”), (b) be binding upon each Guarantor and its successors and assigns, (c) inure to the
benefit of and be enforceable by the Administrative Agent, the Issuing Lender and each Lender and
their respective successors, and, in the case of transfers and assignments made in accordance with
the Credit Agreement, transferees and assigns, and (d) inure to the benefit of and be enforceable
by a Swap Counterparty and each of its successors, transferees and assigns to the extent such
successor, transferee or assign is a Lender or an Affiliate of a Lender. Without limiting the
generality of the foregoing clause (c), subject to Section 9.06 of the Credit Agreement,
Administrative Agent, the Issuing Lender and each Lender may assign or otherwise transfer all or
any portion of its rights and obligations under the Credit Agreement (including, without
limitation, all or any portion of its Commitment, the Advances owing to it and the Note or Notes
held by it) to any other Person, and such other Person shall thereupon become vested with all the
benefits in respect thereof granted to such Lender herein or otherwise, subject, however, in all
respects to the provisions of the Credit Agreement. Furthermore, when any Swap Counterparty
assigns or otherwise transfers any interest held by it under a Hedge Contract to any other Person
pursuant to the terms of such agreement, that other
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Person shall thereupon become vested with all the benefits held by such Lender under this
Guaranty only if such Person is also then a Lender or an Affiliate of a Lender. Each Guarantor
acknowledges that upon any Person becoming a Lender or the Administrative Agent in accordance with
the Credit Agreement, such Person shall be entitled to the benefits hereof.
Section 14. Governing Law. This Guaranty shall be governed by, and construed and
enforced in accordance with, the laws of the State of Mississippi. Each Guarantor hereby
irrevocably and unconditionally submits to the jurisdiction of any Mississippi state sitting in
Madison County, Mississippi or any federal court sitting in the Southern District of Mississippi in
any action or proceeding arising out of or relating to this Guaranty and the other Loan Documents,
and each Guarantor hereby irrevocably and unconditionally agrees that all claims in respect of such
action or proceeding may be heard and determined in such court. Each Guarantor hereby irrevocably
waives, to the fullest extent it may effectively do so, any right it may have to the defense of an
inconvenient forum to the maintenance of such action or proceeding. Each Guarantor hereby agrees
that service of copies of the summons and complaint and any other process which may be served in
any such action or proceeding may be made by mailing or delivering a copy of such process to such
Guarantor at its address set forth in the Credit Agreement or set forth on the signature page of
this Guaranty. Each Guarantor agrees that a final judgment in any such action or proceeding shall
be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law. Nothing in this Section shall affect the rights of any Beneficiary to
serve legal process in any other manner permitted by the law or affect the right of any Beneficiary
to bring any action or proceeding against any Guarantor or its Property in the courts of any other
jurisdiction.
Section 15. Amendment and Restatement. As to the Guarantors party to the Existing
Guaranty, this Guaranty is an amendment and restatement of the Existing Guaranty and is given in
renewal and replacement for such Existing Guaranty. Such Guarantors, though not required, hereby
consent to the terms of the Credit Agreement.
Section 16. INDEMNIFICATION. EACH GUARANTOR SHALL INDEMNIFY EACH OF THE
BENEFICIARIES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM, AND DISCHARGE,
RELEASE, AND HOLD EACH OF THEM HARMLESS AGAINST, ANY AND ALL LIABILITIES, OBLIGATIONS, LOSSES,
CLAIMS, EXPENSES, OR DAMAGES OF ANY KIND OR NATURE WHATSOEVER TO WHICH ANY OF THEM MAY BECOME
SUBJECT RELATING TO OR ARISING OUT OF THIS GUARANTY, INCLUDING ANY LIABILITIES, OBLIGATIONS,
LOSSES, CLAIMS, EXPENSES, OR DAMAGES WHICH ARISE OUT OF OR RESULT FROM (A) ANY ACTUAL OR PROPOSED
USE BY THE BORROWER, ANY GUARANTOR OR ANY AFFILIATE OF THE BORROWER OR ANY GUARANTOR OF THE
PROCEEDS OF THE ADVANCES, (B) ANY BREACH BY THE BORROWER OR ANY GUARANTOR OF ANY PROVISION OF THE
CREDIT AGREEMENT OR ANY OTHER LOAN DOCUMENT, (C) ANY INVESTIGATION, LITIGATION OR OTHER PROCEEDING
(INCLUDING ANY THREATENED INVESTIGATION OR PROCEEDING) RELATING TO THE FOREGOING, (D) ANY
ENVIRONMENTAL CLAIM OR REQUIREMENT OF ENVIRONMENTAL LAWS CONCERNING OR RELATING TO THE PRESENT OR
PREVIOUSLY-OWNED OR OPERATED PROPERTIES OF THE BORROWER, ANY
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GUARANTOR OR THE OPERATIONS OR BUSINESS, OF THE BORROWER OR ANY GUARANTOR, INCLUDING ANY
MATTER DISCLOSED WITHIN THE CREDIT AGREEMENT, OR (E) ANY ENVIRONMENTAL CLAIM OR REQUIREMENT OF
ENVIRONMENTAL LAWS CONCERNING OR RELATED TO THE BORROWER’S OR ANY GUARANTOR’S PROPERTIES AND EACH
GUARANTOR SHALL REIMBURSE THE BENEFICIARIES AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND
AGENTS, UPON DEMAND FOR ANY OUT-OF-POCKET EXPENSES (INCLUDING LEGAL FEES) INCURRED IN CONNECTION
WITH ANY SUCH INVESTIGATION, LITIGATION OR OTHER PROCEEDING; AND EXPRESSLY INCLUDING ANY SUCH
LOSSES, LIABILITIES, CLAIMS, DAMAGES, OR EXPENSES INCURRED BY REASON OF THE PERSON BEING
INDEMNIFIED’S OWN NEGLIGENCE, BUT EXCLUDING ANY SUCH LOSSES, LIABILITIES, CLAIMS, DAMAGES OR
EXPENSES THAT IS FOUND IN A FINAL, NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT JURISDICTION TO
HAVE RESULTED FROM SUCH INDEMNIFIED PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Section 17. WAIVER OF JURY TRIAL. EACH GUARANTOR HEREBY ACKNOWLEDGES THAT IT HAS BEEN
REPRESENTED BY AND HAS CONSULTED WITH COUNSEL OF ITS CHOICE, AND HEREBY KNOWINGLY, VOLUNTARILY,
INTENTIONALLY, AND IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN RESPECT OF ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY, ANY OTHER LOAN DOCUMENT OR ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 18. Additional Guarantors. Pursuant to Section 6.15 of the Credit Agreement,
each Subsidiary of the Borrower (other than any Entrada Entity, unless CIECO Debt Termination has
occurred) that was not in existence on the date of the Credit Agreement is required to enter into
this Guaranty as a Guarantor upon becoming a Subsidiary. After the date hereof, upon execution and
delivery after the date hereof by the Administrative Agent and such Subsidiary of an instrument in
the form of Annex 1, such Subsidiary shall become a Guarantor hereunder with the same force and
effect as if originally named as a Guarantor herein. The execution and delivery of any instrument
adding an additional Guarantor as a party to this Guaranty shall not require the consent of any
other Guarantor hereunder. The rights and obligations of each Guarantor hereunder shall remain in
full force and effect notwithstanding the addition of any new Guarantor as a party to this
Guaranty.
Section 19. USA Patriot Act. Each Beneficiary that is subject to the Act (as
hereinafter defined) and the Administrative Agent (for itself and not on behalf of any other
Beneficiary) hereby notifies the Guarantors that pursuant to the requirements of the USA Patriot
Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))(the “Act”), it is required to
obtain, verify and record information that identifies the Guarantors, which information includes
the name and address of the Guarantors and other information that will allow such Beneficiary or
the Administrative Agent, as applicable, to identify the Guarantors in accordance with the Act.
Following a request by any Beneficiary, Guarantors shall promptly furnish all documentation and
other information that such Beneficiary reasonably requests in order to comply with its
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ongoing obligations under applicable “know your customer” and anti-money laundering rules and
regulations, including the Act.
THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO AN AGREEMENT SUBJECT TO THE PRECEDING PARAGRAPH
SHALL BE DETERMINED SOLELY FROM THE WRITTEN AGREEMENT, AND ANY PRIOR ORAL AGREEMENTS BETWEEN THE
PARTIES ARE SUPERSEDED BY AND MERGED INTO THIS GUARANTY. THIS GUARANTY AND THE GUARANTEED
DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF
THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
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Each Guarantor has caused this Guaranty to be duly executed as of the date first above
written.
| GUARANTOR: XXXXXX PETROLEUM OPERATING COMPANY, a Delaware corporation |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Address for Guarantor: 000 Xxxxx Xxxxx Xxxxxx Xxxxxxx, Xxxxxxxxxxx 00000 Attention: Xxxxxx X. Xxxxx, Treasurer Facsimile: 000.000.0000 Telephone: 000 000 0000 |
||||
| ADMINISTRATIVE AGENT: REGIONS BANK, as Administrative Agent |
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| By: | ||||
| Xxxxxxx X. Xxxxxxx, | ||||
| Vice President | ||||
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Annex 1 to the Third Amended and
Restated Guaranty Agreement
SUPPLEMENT NO. ___ dated as of ___ (the “Supplement”), to the Third Amended
and Restated Guaranty Agreement dated as of January 29, 2010 (as amended, supplemented or otherwise
modified from time to time, the “Guaranty Agreement”), executed by each of the subsidiaries
party thereto (each such subsidiary individually, a “Guarantor” and collectively, the
“Guarantors”) of Xxxxxx Petroleum Company, a Delaware corporation (the “Borrower”),
in favor of Regions Bank, as administrative agent for the benefit of the Beneficiaries (as defined
in the Guaranty Agreement).
A. Reference is made to the Third Amended and Restated Credit Agreement dated as of January
29, 2010 (as amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among the Borrower, the lenders from time to time party thereto (the
“Lenders”), and Regions Bank, as administrative agent (in such capacity, the
“Administrative Agent”) and issuing lender (in such capacity, the “Issuing Lender”)
for the Lenders.
B. Capitalized terms used herein and not otherwise defined herein shall have the meanings
assigned to such terms in the Guaranty Agreement or the Credit Agreement.
C. The Guarantors have entered into the Guaranty Agreement in order to induce the Lenders to
make Advances and the Issuing Lender to issue Letters of Credit. Pursuant to Section 6.15 of the
Credit Agreement, any new Subsidiaries of the Borrower (other than any Entrada Entity, unless CIECO
Debt Termination has occurred) are required to enter into the Guaranty Agreement as Guarantors.
Section 18 of the Guaranty Agreement provides that additional Subsidiaries of the Borrower may
become Guarantors under the Guaranty Agreement by execution and delivery of an instrument in the
form of this Supplement. The undersigned Subsidiary of the Borrower (the “New Guarantor”)
is executing this Supplement in accordance with the requirements of the Credit Agreement to become
a Guarantor under the Guaranty Agreement in order to induce the Lenders to make additional Advances
and the Issuing Lender to issue additional Letters of Credit and as consideration for Advances
previously made and Letters of Credit previously issued.
Accordingly, the Administrative Agent and the New Guarantor agree as follows:
SECTION 1. In accordance with Section 18 of the Guaranty Agreement, the New Guarantor by its
signature below becomes a Guarantor under the Guaranty Agreement with the same force and effect as
if originally named therein as a Guarantor and the New Guarantor hereby (a) agrees to all the terms
and provisions of the Guaranty Agreement applicable to it as a Guarantor thereunder and
(b) represents and warrants that the representations and warranties made by it as a Guarantor
thereunder are true and correct in all material respects on and as of the date hereof. Each
reference to a “Guarantor” in the Guaranty Agreement shall be deemed to include the New Guarantor.
The Guaranty Agreement is hereby incorporated herein by reference.
SECTION 2. The New Guarantor represents and warrants to the Administrative Agent and the other
Beneficiaries that this Supplement has been duly authorized, executed and
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delivered by it and constitutes its legal, valid and binding obligation, enforceable against
it in accordance with its terms (subject to applicable bankruptcy, reorganization, insolvency,
moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability,
to equitable principles of general application (regardless of whether enforcement is sought in a
proceeding in equity or at law)).
SECTION 3. This Supplement may be executed in counterparts, each of which shall constitute an
original, but all of which when taken together shall constitute a single contract. This Supplement
shall become effective when the Administrative Agent shall have received counterparts of this
Supplement that, when taken together, bear the signatures of the New Guarantor and the
Administrative Agent. Delivery of an executed signature page to this Supplement by fax transmission
shall be as effective as delivery of a manually executed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Guaranty Agreement shall remain in
full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF MISSISSIPPI. The New Guarantor hereby irrevocably submits to the
jurisdiction of any Mississippi state court sitting in Madison County, Mississippi or federal court
for the Southern District of Mississippi in any action or proceeding arising out of or relating to
this Supplement or the Guaranty and the other Guaranteed Documents, and the New Guarantor hereby
irrevocably agrees that all claims in respect of such action or proceeding may be heard and
determined in such court. The New Guarantor hereby irrevocably waives, to the fullest extent it
may effectively do so, any right it may have to the defense of an inconvenient forum to the
maintenance of such action or proceeding. The New Guarantor hereby agrees that service of copies
of the summons and complaint and any other process which may be served in any such action or
proceeding may be made by mailing or delivering a copy of such process to such Guarantor at its
address set forth on the signature page hereof. The New Guarantor agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this Section shall affect
the rights of any Beneficiary to serve legal process in any other manner permitted by the law or
affect the right of any Beneficiary to bring any action or proceeding against the New Guarantor or
its Property in the courts of any other jurisdiction.
SECTION 6. In case any one or more of the provisions contained in this Supplement should be
held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein and in the Guaranty Agreement shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a particular provision
hereof in a particular jurisdiction shall not in and of itself affect the validity of such
provision in any other jurisdiction). The parties hereto shall endeavor in good-faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
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SECTION 7. All communications and notices hereunder shall be in writing and given as provided
in Section 11 of the Guaranty Agreement. All communications and notices hereunder to the New
Guarantor shall be given to it at the address set forth under its signature below.
SECTION 8. The New Guarantor agrees to reimburse the Administrative Agent for its reasonable
out-of-pocket expenses in connection with this Supplement, including the fees, disbursements and
other charges of counsel for the Administrative Agent.
THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO AN AGREEMENT SUBJECT TO THE PRECEDING PARAGRAPH
SHALL BE DETERMINED SOLELY FROM THE WRITTEN AGREEMENT, AND ANY PRIOR ORAL AGREEMENTS BETWEEN THE
PARTIES ARE SUPERSEDED BY AND MERGED INTO THIS GUARANTY. THIS SUPPLEMENT, THE GUARANTY AGREEMENT
AND THE OTHER GUARANTEED DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES WITH RESPECT TO
THE SUBJECT MATTER HEREOF AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR
SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
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IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have duly executed this
Supplement to the Guaranty Agreement as of the day and year first above written.
| [Name of New Guarantor] |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| Address: | ||||
| REGIONS BANK, as Administrative Agent | |||||
| By: | |||||
| Name: | |||||
| Title: | |||||
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