ASSUMPTION AGREEMENT
EXHIBIT
10.6
THIS ASSUMPTION AGREEMENT (“Agreement”) is dated as of the 18th day of December, 2003, by and
among National Loan Investors, L.P., a Delaware Limited Partnership (“Lender”), having an address
of Xxxxx 0000, 0000 X.X. Xxxxxxxxxx, Xxxxxxxx Xxxx, XX 00000, as assignee of Wachovia Bank,
National Association (“Wachovia”); The Wheatstone Energy Group, Inc., a Georgia corporation (the
“Prior Borrower”) having an address of 0000 Xxxxxxx Xxxx, XX, Xxxxx 0, Xxxxxxx, XX 00000; WEGI
Acquisition, LLC, a Georgia Limited Liability Company (the “New Borrower”) having an address of
0000 Xxx Xxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxx Xxxxxx, Xxxxxxx 00000-0000; and M. Xxxx Xxxxxx and Xxxx
X. Xxxxxxxx, individually (collectively, the “Guarantors”).
RECITALS:
A. Wachovia made the following loans to the Prior Borrower:
1. Line of Credit Loan dated July 26, 2001, in an amount not to exceed One Million Two Hundred
Thousand Dollars ($1,200,000.00) (“Line of Credit Loan”), evidenced by Note and Security Agreement
dated July 26, 2001, as first amended by that certain letter agreement dated October 31, 2002, and
by Line of Credit Extension and Modification Agreement dated February 28, 2003 (“Extension
Agreement”), which Line of Credit Loan has a revised maturity date of December 1, 2003, and which
is secured, inter alia, by that collateral more particularly described in the documents evidencing
said Line of Credit Loan, including, but not limited to, that certain Security Agreement-Commercial
dated July 26, 2001 (“Security Agreement”), to include, but not be limited to, Accounts,
Inventory, Equipment, General Intangibles, Instruments, Documents, Letter-of-Credit Rights, Deposit
Accounts, Chattel Paper, Investment Collateral and Proceeds and Products therefrom (all of which
terms are defined in the Security Agreement and accompanying Uniform Commercial Code Financing
Statements (“UCC’s”) (collectively, the “Line of Credit Collateral”) (“NLI Loan Number 38300180”);
2. Term Loan dated October 14, 1999 in the original principal amount of $30,379.25 as
evidenced by that certain Note and Security Agreement and accompanying motor vehicle lien MV-1 and
secured by a l999 White Ford F-350 SD Pickup (the “Ford F-350 Loan”), which has a maturity date of
November 1, 2004 (“NLI Loan Number 38300170”);
3. Term Loan dated August 24, 2001 in the original principal amount of $13,502.76 as evidenced
by that certain Note and Security Agreement and accompanying motor vehicle lien MV-1 and secured
by a l998 Ford F-150 (the “Ford F-150 Loan”) (“NLI Loan Number 38300190”);
4. Term Loan dated October 11, 2001 in the original principal amount of $12,500.00 as
evidenced by that certain Note and Security Agreement and accompanying motor vehicle lien MV-1
and secured by a 2000 White Ford Taurus SC (the “Ford Taurus Loan”), which has a maturity date of
November 1, 2004 (“NLI Loan Number 38300210”);
5. Term Loan dated December 5, 2001 in the original principal amount of $18,166.70 as
evidenced by that certain Note and Security Agreement and accompanying UCC’s and secured by certain
equipment collateral (the “Equipment Loan”), which has a maturity date of January 1, 2005 (“NLI
Loan Number 38300200”).
(The Ford F-350 Loan, The Ford F-150 Loan, the Ford Taurus Loan and the Equipment Loan are
hereinafter collectively referred to as the “Term Loans”) (the Line of Credit Loan and the Term
Loans are hereinafter collectively referred from time to time herein as the “Loans”) (The Line of
Credit Collateral and the additional collateral securing the various Term Loans as described above
are hereinafter collectively referred to as the “Collateral”) (the Loan Documents are further
affected by the terms of that certain Inter-Creditor Agreement dated February 21, 2002 by and
between Venture Capital Solutions, Limited Partnership, a North Carolina Limited Partnership
(“VCS”) and Wachovia Bank, N.A. (“Inter-Creditor Agreement”));
B. The Loans were modified by: (i) the Extension Agreement, which contained, inter alia, a
cross-default/cross-collateralization feature for the various Loans and the Collateral securing
said Loans; (ii) the letter by Wachovia to the Prior Borrower dated May 12, 2003 extending the
maturity of the Line of Credit Loan to October 1, 2003; and (iii) the letter by Wachovia to the
Prior Borrower dated August 25, 2003 extending the maturity of the Line of Credit Loan to December
1, 2003. The Loans are modified on the date hereof by that certain Consolidated, Amended and
Restated Note and Security Agreement by and among the Lender, the New Borrower and the Prior
Borrower (the Consolidated Note and Modification Agreement”). The Notes, Security Agreements,
UCC’s, MV-1’s, Extension Agreement, letters referenced in clauses (ii) and (iii) of the first
sentence of this paragraph, the Consolidated Notes and Modification Agreement, all other
documents previously executed, including, but not limited to, the Commitment Letter dated July 5,
2001 from Wachovia Bank to Prior Borrower, and letter agreement dated October 31, 2002, evidencing
and securing the Loans, and all amendments, extensions and renewals thereof subsequent to the date
hereof, are referred to herein collectively as the “Loan Documents.”
C. Guarantors executed Guaranty Agreements dated May 22, 1996 and July 26, 2001, guaranteeing
repayment of the Loans (collectively the “Guaranties”).
D. Effective August 29, 2003, Wachovia, as lender and holder of the Loans, transferred
and assigned its interests in the Loans, Loan Documents and Collateral to National Loan Investors,
L.P.
E. The current balances on each of the Loans as of December 18, 2003 prior to modification
are:
1. Line of Credit Loan 38300180-principal $1,040,000.00; interest $32,124.44 (total due:
$1,072,124.44) (daily rate: $231.11); (current interest rate: 8.00% percent per annum);
2. Ford F-350 Loan 38300170-principal $8,763.10; interest $272.63 (total due: $9,035.73)
(daily rate: $1.95); (current interest rate: 8.00% percent per annum);
2
3. Ford F-150 Loan 38300190-principal $4,855.90; interest $75.00 (total due: $4,930.90)
(daily rate: $0.54); (current interest rate: 4.00% percent per annum);
4. Ford Taurus Loan 38300210-principal $5,208.17; interest $80.44 (total due: $5,288.61)
(daily rate: $0.58); (current interest rate: 4.00% percent per annum);
5. Equipment Loan 38300200-principal $8,578.73; interest $132.49 (total due: $8,711.22) (daily
rate: $0.95); (current interest rate: 4.00% percent per annum);
F. The New Borrower has agreed to acquire substantially all of the assets of Prior Borrower,
including, but not limited to, the Collateral, subject to the Loan Documents, to assume and pay
all sums due under the Loan Documents, and to perform all obligations of the Prior Borrower under
the Loan Documents, subject to the terms of this Agreement. Lender is willing to enter into this
Agreement, allow the assumption of the Loans and to release the Guarantors and Prior Borrower,
provided that the terms of this Agreement and accompanying Consolidated Note and Modification
Agreement are executed and delivered to Lender.
In consideration of the foregoing recitals, the mutual covenants contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1. Incorporation of Recitals. All the above-referenced recitals are hereby
specifically incorporated herein by reference hereto.
2. Conditions Precedent to Approval of Assumption by Lender. The effectiveness of
this Agreement is subject to the satisfaction of each of the following conditions precedent, in
form and substance satisfactory to Lender, unless satisfaction is specifically waived in writing by
Lender:
A. On or before December 19, 2003, the asset sale shall be completed, and Lender shall be
furnished with copies of an executed Agreement and Plan of Reorganization and accompanying Bills
of Sale, together with full execution of this Agreement.
B. Execution and delivery of that certain Consolidated Note and Modification Agreement of even
date herewith relative to the Loans in the consolidated, amended and restated amount of
$1,000,000.00, with extension of maturity date, and related Modifications to other Loan Documents
as deemed necessary by Lender.
C. Lender shall be provided with UCC-11 Certified Searches from the Georgia Superior Court
Clerk’s Cooperative Authority, together with applicable UCC-3 Amendments and UCC-1 Financing
Statements in the name of New Borrower and The Wheatstone Energy Group, LLC (i.e., proposed name
change of New Borrower), evidencing that Lender shall maintain its first-priority interest in its
Collateral and shall receive new or amended MV-1’s on the current and new motor
vehicle Collateral.
3
D. Delivery to Lender of Evidence of Insurance on the Collateral satisfactory to Lender and
naming Lender as loss payee in the priority of Lender’s security interests, showing New Borrower
(and New Borrower’s subsequent name change) as insured.
E. Delivery to Lender of Articles of Organization and Operating Agreement of New Borrower,
and Consents, Resolutions, etc. of New Borrower and Prior Borrower authorizing the terms of this
Assumption.
F. Lender’s receipt of an Agreement signed by VCS, confirming that the Inter-Creditor
Agreement remains in effect vis-à-vis this Agreement and related Consolidated Note and Modification
Agreement, in form and substance satisfactory to Lender.
G. New Borrower to execute and deliver to Lender Affidavit Regarding Business Assets in
form and substance satisfactory to Lender.
H. Without limiting the generality of any provision of this Agreement or the Loan Documents,
Lender shall be reimbursed by either the New Borrower or the Prior Borrower for the payment of all
fees and out-of-pocket disbursements incurred by the Lender in any way arising from or in
connection with this Agreement and the Loan Documents, including, without limitation, the fees of
legal counsel for the preparation, examination and approval of documents in connection with the
drafting of this Agreement and related documents or relating to the enforcement or amendment of
this Agreement or any of the Loan Documents. Notwithstanding the foregoing sentence, Lender’s fees
and expenses, including recording fees, shall be reimbursed up to the first $5,000.00; with Lender
bearing the fees and expenses over this reimbursed amount.
I. As a condition subsequent, Lender shall be furnished with a complete Schedule of new
vehicle collateral, which shall consist of all vehicles, i.e., trucks and cars, that are currently
unencumbered, and that are currently owned by Prior Borrower, which shall be transferred to New
Borrower (“New Vehicle Collateral”) which term shall also be deemed to be part of the “Collateral”
globally as described herein, in the Consolidated Note and Modification Agreement and other Loan
Documents as well as the Inter-Creditor Agreement. Lender further shall be furnished with the
original vehicle titles, and the parties shall cooperate with each other to cause Lender’s liens to
be filed with the appropriate recording authorities.
3. Assignment. The Prior Borrower hereby transfers, sets over, and assigns to the New
Borrower all of the Prior Borrower’s right, title, obligation, and interest in, to, and under the
Loan Documents and the New Borrower hereby accepts the same. When this Agreement is duly executed
and delivered by the New Borrower, the Guarantors and Prior Borrower shall be discharged from
liability arising out of or pertaining to the Loan Documents and the Guaranties. New Borrower is
hereby liable for the obligations contained in the Loan Documents.
4. Assumption of Obligation and Agreement to Pay. The New Borrower hereby assumes and
agrees to be bound by and to repay all indebtedness owed by the Prior Borrower to the Lender under,
and evidenced by, the Loan Documents and to pay the same to any person, corporation,
4
or entity who
holds the Loan Documents by assignment from the Lender. The New Borrower hereby acknowledges the
receipt of copies of the Loan Documents. As an inducement to the Lender to enter into this
Agreement, the New Borrower agrees that it will pay or cause to be paid directly to the Lender or
in accordance with directions received from the Lender all payments due under such documents,
regardless of any right of set off, counterclaim, or other defense which the New Borrower may have
against the Prior Borrower. The New Borrower agrees to execute and deliver all instruments and
take all actions as the Lender from time to time may reasonably request in order that the Lender
shall obtain the full benefit of this Agreement and shall have the rights and powers herein
created.
5. Consent of the Lender. The Lender expressly consents to the assumption by the New
Borrower of the Loan Documents pursuant to the terms of this Agreement, and upon the execution of
this Agreement by the Prior Borrower and the New Borrower; provided, however, that the Lender
releases the Guarantors and Prior Borrower from liability under any of the Loan Documents and
Guaranties.
6. Balance Due on Notes. The Loan Balances are amended by virtue of accompanying
Consolidated Note and Modification Agreement, the terms of which are incorporated herein by this
reference. The parties shall furnish to Lender copies of applicable tax information, if any,
reflecting the tax allocation between Prior Borrower and New Borrower regarding the reduction of
the Loan Balance as more particularly described in the Consolidated Note and Modification
Agreement.
7. No Waiver of Rights. Except as expressly stated herein with regard to the
modifications to the Loan Documents, nothing contained in this Agreement shall be construed as a
waiver by the Lender of the right to enforce against the New Borrower any and all its rights under
the Loan Documents, and the Lender expressly reserves all such rights as against the New Borrower.
The Prior Borrower and the New Borrower agree that this Agreement and all covenants, designations,
and directions herein contained are irrevocable, and that they will not, without the express
written consent of the Lender, take any action which is inconsistent with this Agreement.
8. Waiver and Consent; Grant of Security Agreement. The Prior Borrower and the New
Borrower and the Guarantors hereby expressly consent to, ratify, and waive any objection to this
Agreement and any other agreement that amends the Loan Documents. The New Borrower agrees that the
Security Agreements and all Collateral associated herein shall continue in full force and effect,
that the addition of the New Vehicle Collateral shall not lessen or release any obligations owed
hereunder or under the Loan Documents or Consolidated Note and Modification Agreement by the
obligors thereto, and that the New Borrower shall not be discharged or released in whole or in
part by this Agreement. In addition, the New Borrower acknowledges that its obligations under the
Loan Documents shall be continuing, absolute, and unconditional and shall remain in full force and
effect until the Loans are paid in full. Further, all parties acknowledge that the release of the
Guarantors and Prior Borrower shall not cause a novation, discharge, or a loss of priority of the
obligations owed by
the New Borrower and of the status of the Collateral securing the Loans.
The entire agreement of the parties with respect to the Loans is set forth in the Loan Documents
and this Agreement and accompanying Consolidated Note and Modification Agreement, and such
5
instruments supercede any prior or contemporaneous oral or written understandings to the contrary.
The Loan Documents are in full force and effect enforceable in accordance with their terms
against New Borrower and have not been amended or modified, except as referenced in this
Agreement or the Consolidated Note and Modification Agreement. The New Vehicle Collateral is hereby
pledged to Lender, and a security interest is created therein, as additional Collateral for the
entire Consolidated indebtedness, and this instrument shall be deemed to be amend the prior
security agreements executed in connection with the Loans. Lender is directed to file any
documents and instruments necessary to evidence the New Vehicle Collateral pledge herein granted.
9. Waiver of Notification and Right of Redemption. Pursuant to O.C.G.A. §11-9-624,
New Borrower herewith releases and waives any and all rights that it may have under the Loan
Documents or the Uniform Commercial Code, as codified in Official Code of Georgia Annotated, to (i)
notice of the disposition of any of the Collateral that Lender may hereinafter seek to sell or
liquidate in order to satisfy the amounts outstanding under the Loans, pursuant to O.C.G.A.
§11-9-611, (ii) redeem the Collateral, pursuant to O.C.G.A. §11-9-623, or (iii) require the
disposition of the Collateral, pursuant to O.C.G.A. § 11-9-620.
10. Acknowledgment of Liquidation Options and Waiver of Objections. New Borrower
expressly acknowledges and agrees that any one of a public outcry auction, sealed bid auction, or
private sale will each constitute commercially reasonable methods for the sale of any of the
Collateral that Lender may later seek to liquidate, as defined by the Uniform Commercial Code, as
adopted and codified in the Official Code of Georgia Annotated. New Borrower herewith forever
waives and releases any defenses, whether relating to the form, manner, or commercial
reasonableness of the sale of any of the Collateral that it may have or seek to assert against
Lender with regard to any actions or proceedings by Lender to collect from New Borrower, any and
all balances or deficiency balances that may remain under any of the Loans after the sale of any
Collateral securing the Loans.
11. Sale of Collateral. During the term of this Agreement, New Borrower shall not,
without the prior written consent of Lender, transfer, assign, pledge, encumber, hypothecate,
gift, sell or otherwise convey any assets that either (i) comprise a portion of the Collateral
(other than Inventory) for repayment of the Loans; or (ii) have been purchased with the proceeds
from the sale of the Collateral (other than Inventory) that secured repayment of the Loans without
prior written approval from Lender; provided, however, New Borrower may, during any rolling
three-month period, transfer, assign, pledge, encumber, hypothecate, gift, sell or otherwise convey
an amount of assets whose aggregate value does not exceed $25,000.00 without the consent of or
notice to Lender. Should such a conveyance occur, however; New Borrower shall notify Lender in
writing no later than 5 business days after such a conveyance, only if the conveyance consists of
either: (a) a single transaction of an asset having a value of $25,000.00; or (b) a single
transaction of a group of assets that jointly has a value of
$25,000.00. It is also provided that this contemplated sale of part of the Collateral as
outlined herein shall not be allowed should the New Borrower be delinquent in any of its
obligations to Lender at the proposed time of the Collateral conveyance.
6
12. Events of Default. A violation of any of the terms, conditions, covenants, and
provisions of this Agreement shall constitute a material event of default under the Loan Documents,
whereupon all indebtedness owing under the Loan Documents shall, at the option of the Lender,
immediately become due and payable in full by the New Borrower, without presentment, demand,
protest, or any other notice of any kind, all of which are hereby expressly waived.
13. UCC Financing Statements. If there are any UCC-1 Financing Statements filed to
perfect the Lender’s security interest in any personal Collateral as collateral for the Loan, the
New Borrower shall cooperate with Lender regarding the filing of new UCC-1 Financing Statements
naming the New Borrower as the Debtor for filing in all jurisdictions deemed necessary by the
Lender. The New Borrower shall pay all filing fees incurred in connection with the filing of UCC-1
Financing Statements and Motor Vehicle Lien Registrations.
It is further agreed that New Borrower, immediately after the closing of the purchase/sale of
assets described herein, shall change its official name to The Wheatstone Energy Group, LLC. As a
condition subsequent to Lender’s approval of this Agreement and related Consolidated Note and
Modification Agreement, New Borrower shall provide to Lender the following:
a. UCC’s and MV-1’s filed in all required locations for The Wheatstone Energy Group, LLC;
b. copies to Lender of all required Articles of Organization Name Change documents as are
filed with the Georgia Secretary of State; and
c. insurance policies on those items of Collateral that have insurance policies
previously given to Lender, i.e., motor vehicle Collateral.
It is expressly agreed and intended by all of the parties that the subsequent name change
shall not operate to create any novation, discharge or lessening of all obligations or liabilities
of the Obligors and that no other documents shall be necessary to evidence this agreement and
intention.
In connection with the UCC and MV-1 filings, New Borrower (WEGI Acquisition, LLC and also The
Wheatstone Energy Group, LLC), authorizes Lender to pre-file the financing statements, etc. as
outlined herein.
14. Amendment. This Agreement and the Loan Documents may be amended, modified, or
discharged only in writing.
15. Delay No Waiver. No delay or omission to exercise any right or power accruing
upon
any default, omission, or failure of performance shall impair any such right or power, or
shall such delay or omission be construed to be a waiver thereof by the Lender.
16. Counterparts. This Agreement may be executed simultaneously in several
7
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
17. Severability. The invalidity or unenforceability of any one or more phrases,
sentences, clauses, sections, or articles contained in this Agreement shall not affect the validity
or enforceability of the remaining portions or any part thereof.
18. Governing Law. This Agreement has been executed and shall be performed in the
State of Georgia and, notwithstanding any principles of conflicts of laws, the internal laws of the
State of Georgia shall govern and control the validity, interpretation, performance, and
enforcement of this Agreement.
19. Conveyance of Title. The New Borrower shall provide to the Lender a copy of the
recorded bills of sale, etc. conveying title to the Collateral to the New Borrower and copies of
any other instruments of conveyance by which the New Borrower has acquired title to any Collateral
for the Loan.
20. Consent of the Guarantors and Prior Borrower. The Guarantors and Prior Borrower
join in the execution of this Agreement to evidence their consent to the assumption of the Loan
Documents by the New Borrower.
21. Representations and Warranties. Lender is relying upon New Borrower’s and Prior
Borrower’s representations and warranties in entering into this Agreement; and the New Borrower
and Prior Borrower make these representations and warranties for the purpose of influencing the
decision of Lender with respect to the provisions of this Agreement.
A. New Borrower Representations and Warranties:
The New Borrower represents and warrants to the Lender that: (i) all financial statements and
other financial information delivered to the Lender by the New Borrower fairly represents its
financial condition of the New Borrower, and no material adverse changes in its financial
condition, business or operations of the New Borrower have occurred since the date(s) of the most
recently furnished financial statements or other information; (ii) The New Borrower is a duly
organized limited liability company under the laws of the State of Georgia, and the execution and
delivery of this Agreement has been duly authorized by all necessary action on the part of the New
Borrower; (iii) upon the execution of this Agreement and accompanying Consolidated Note and
Modification Agreement, the Loan Documents constitute a valid and binding obligation of the New
Borrower enforceable against the New Borrower in accordance with their terms; (iv) the execution
and delivery of this Agreement and the performance of its obligations under the Loan Documents do
not and will not violate or conflict with
any order, writs, injunction or decree of any court, administrative agency or any other
governmental authority applicable to the New Borrower or the Collateral or any agreement by which
the New Borrower is bound; (v) the execution and delivery of this Agreement and the performance of
the Loan Documents by it will not result in the creation or imposition of any lien, charge or
encumbrance upon
8
any of its assets of the New Borrower, except as contemplated by the terms of the
Loan Documents; (vi) there is no action, suit or proceeding at law or in equity or by or before
any governmental agency or arbitral body now pending or overtly threatened against it or the
Collateral other than as set forth in Schedule 5.16 of the Agreement and Plan of Reorganization;
and (vii) All verbal and written information furnished by New Borrower to Lender as part of the
negotiations of this Agreement are truthful, accurate, and not misleading in the context in which
presented.
A. Prior Borrower Representations and Warranties:
The Prior Borrower represents and warrants to the Lender that: (i) all financial statements
and other financial information delivered to the Lender by the Prior Borrower fairly represents its
financial condition of the Prior Borrower, and no material adverse changes in its financial
condition, business or operations of the Prior Borrower have occurred since the date(s) of the most
recently furnished financial statements or other information; (ii) The Prior Borrower is a duly
organized corporation under the laws of the State of Georgia, and the execution and delivery of
this Agreement has been duly authorized by all necessary action on the part of the Prior Borrower;
(iii) the execution and delivery of this Agreement do not and will not violate or conflict with
any order, writs, injunction or decree of any court, administrative agency or any other
governmental authority applicable to the Prior Borrower or the Collateral or any agreement by which
the Prior Borrower is bound; (iv) the execution and delivery of this Agreement will not result in
the creation or imposition of any lien, charge or encumbrance upon any of its assets of the Prior
Borrower, except as contemplated by the terms of the Loan Documents; (v) there is no action, suit
or proceeding at law or in equity or by or before any governmental agency or arbitral body now
pending or overtly threatened against it or the Collateral other than as set forth in Schedule 5.16
of the Agreement and Plan of Reorganization; (vi) All verbal and written information furnished by
Prior Borrower to Lender as part of the negotiations of this Agreement are truthful, accurate, and
not misleading in the context in which presented; (vii) All representations and warranties set
forth in the Loan Documents remain true, correct and in full force and effect, and Prior Borrower
hereby reaffirms those representations and warranties as of the date of this Agreement; and (viii)
Prior Borrower acknowledges that no event of default under the Loan Documents has occurred and is
continuing, except that maturity date of the Line of Credit Loan has occurred, and except
that the Loans are delinquent in payment.
22. Waiver and Release. To induce Lender to enter into this Agreement, New Borrower,
Prior Borrower and Guarantors acknowledge that they do not have any claim, offset, defense,
damages, or cause of action against Lender, Lender’s transferees, successors, representatives,
assigns, predecessors, subsidiaries, divisions, related entities, including, but not limited to,
Wachovia Bank, National Association, and also Lender’s attorneys, agents, officers, directors, and
employees (collectively, “Released Parties”) that would reduce or diminish New Borrower’s, Prior
Borrower’s,
and each Guarantor’s (as to Guarantors and Prior Borrower—prior to the release of the Prior
Borrower and Guarantors herein) liability to Lender pursuant to the Loan Documents as to the Loans,
and that neither Prior Borrower, New Borrower nor either Guarantor has any claim, offset, defense
or cause of action based upon any acts or omissions of any of the Released Parties relating to the
Collateral, the Loans or the administration thereof (collectively, the “Borrower Claims”) against
the Released Parties,
9
or any of them; or, the extent that New Borrower, Prior Borrower or either
Guarantor does claim to have previously had or currently have any such Borrower Claims against any
of the Released Parties as described hereinabove, whether xxxxxx or inchoate, whether now known or
unknown, whether in law or in equity, which New Borrower, Prior Borrower or either Guarantor
previously may have had or currently may have, then New Borrower, Prior Borrower and each
Guarantor does hereby waive any and all said past and present Borrower Claims and does hereby
release and covenant not to xxx the Released Parties for past and present Borrower Claims up to
the date hereof.
23. Representation of Parties. In executing this Agreement, each of the parties
hereto represents, warrants and certifies that it has received independent legal counsel and advice
from its respective attorneys with regard to the facts involved in connection with the
controversies set forth in this Agreement and subject matter hereof, and with regard to the rights
or asserted rights arising out of said controversies, if any. In accepting the consideration
referred to herein and in executing and delivering this Agreement, each of the parties does so with
the full knowledge of any and all rights which each now has or, in the future, may have in
connection with the aforementioned controversies, if any. This Agreement shall not be construed
against the drafter.
24. Binding Effect. This Agreement shall inure to the benefit of and be binding upon
the parties hereof and their respective heirs, executors, administrators, legal representatives,
successors, assigns and affiliates. Whenever in this Agreement reference is made to any party or
other person or entity such reference shall be deemed to include a reference to the heirs,
executors, representatives, successors, assigns, and affiliates of such party. Whenever used, the
singular number shall include the plural, the plural shall include the singular, and the use of any
gender shall be applicable to all genders. This Agreement may not be changed, discharged or
terminated orally, but only by an instrument in writing signed by the parties against whom the
enforcement of the change, waiver, discharge or termination is sought.
25. Severability. This Agreement is intended to be performed in accordance with and
only to the extent permitted by all applicable laws, ordinances, rules, and regulations. If any
provision of this Agreement, or the application thereof to any person or circumstance, shall be
invalid or unenforceable, for any reason and to any extent, the remainder of this Agreement and the
application of such provision to other persons or circumstances shall not he affected thereby, but
rather shall be enforced to the greatest extent permitted by law.
26. Entire Agreement. The parties hereto do further agree that the provisions
contained herein constitute the entire agreement of the parties as of this date, and that the terms
hereof are contractual and not mere recitals.
27. Headings. The headings and captions used herein are provided for convenience of
reference only and shall not be employed in the construction of this Agreement.
28. Time of the Essence. Time is of the essence of this Agreement.
10
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed under seal and
delivered by authority duly given and, where appropriate, to have their respective seals to be
hereunto affixed and attested by the duly empowered officers, all as of the date first above
written.
| LENDER: | |||
| NATIONAL LOAN INVESTORS, L.P. | |||
Signed, sealed, and delivered in the presence of: |
|||
/s/ Xxxxxx Xxxxxxx
|
By: /s/ Xxxxx X. Xxxxxx | (SEAL) | |
Witness
|
Title Senior Resolution Officer | ||
/s/ J. Xxxxx Xxxxxxx |
|||
Notary Public |
|||
[Notary Seal and Commission Expiration Date Here] |
|||
| NEW BORROWER: | |||
| WEGI Acquisition, LLC, a Georgia limited liability company BY: ABRI Facility Services, Inc., a Georgia corporation, sole manager/member |
|||
Signed, sealed, and delivered in the presence of: |
|||
/s/ Xxxxx Xxxx
|
By: /s/ J. Xxxxxx Xxxxxx | (SEAL) | |
Witness
|
Title Co-Chair and Vice President | ||
/s/ Xxxxxx Xxxxxxxx |
|||
Notary Public
|
Attest: /s/ Xxxx Xxxxxx | (SEAL) | |
| Title Chief Financial Officer | |||
[Notary Seal and Commission Expiration Date Here] |
|||
| [CORPORATE SEAL] | |||
| OLD BORROWER: | |||
| The Wheatstone Energy Group, Inc., a Georgia corporation |
|||
Signed, sealed, and delivered in the presence of: |
|||
/s/ Xxxxx Xxxx
|
By: /s/ Xxxx X. Xxxxxxxx | (SEAL) | |
Witness
|
Title President | ||
/s/ Xxxxxx Xxxxxxxx |
|||
Notary Public
|
Attest: /s/ M. Xxxx Xxxxxx | (SEAL) | |
| Title Secretary | |||
[Notary Seal and Commission Expiration Date Here] |
|||
| [CORPORATE SEAL] |
11
| GUARANTORS: | |||
Signed, sealed, and delivered in the presence of: |
|||
/s/ Xxxxx Xxxx
|
/s/ M. Xxxx Xxxxxx | (SEAL) | |
Witness
|
NAME: M. Xxxx Xxxxxx | ||
/s/ Xxxxxx Xxxxxxxx |
|||
Notary Public
|
/s/ Xxxx X. Xxxxxxxx | (SEAL) | |
| NAME: Xxxx X. Xxxxxxxx | |||
[Notary Seal and Commission Expiration Date Here] |
12
