Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1 Filing Table of Contents
Document/ExhibitDescriptionPagesSize
1: S-1/A Pre-Effective Amendment to Registration Statement HTML 3.40M
(General Form)
21: CORRESP ¶ Comment-Response or Other Letter to the SEC HTML 118K
2: EX-1.(A) Underwriting Agreement HTML 301K
3: EX-4.(D) Instrument Defining the Rights of Security Holders HTML 15K
4: EX-4.(E) Instrument Defining the Rights of Security Holders HTML 15K
5: EX-5 Opinion re: Legality HTML 19K
6: EX-8 Opinion re: Tax Matters HTML 80K
7: EX-10 Material Contract HTML 54K
8: EX-10.(H)(1) Material Contract HTML 30K
9: EX-10.(H)(2) Material Contract HTML 26K
10: EX-10.(H)(3) Material Contract HTML 48K
11: EX-10.(O) Material Contract HTML 52K
12: EX-10.(Q) Material Contract HTML 121K
13: EX-10.(R) Material Contract HTML 37K
14: EX-10.(S) Material Contract HTML 76K
15: EX-10.(T) Material Contract HTML 33K
16: EX-10.(U) Material Contract HTML 35K
17: EX-10.(W) Material Contract HTML 1.05M
18: EX-10.(X) Material Contract HTML 55K
19: EX-23.(A) Consent of Experts or Counsel HTML 12K
20: EX-24 Power of Attorney HTML 16K
BY ATLAS ENERGY RESOURCES, LLC IN FAVOR OF WACHOVIA
BANK, NATIONAL ASSOCIATION, AS ADMINISTRATIVE AGENT FOR
THE LENDERS
CONTINUING
GUARANTY AGREEMENT
THIS
CONTINUING GUARANTY AGREEMENT (this “Guaranty
Agreement”),
dated
as of December 18, 2006, is made by ATLAS ENERGY RESOURCES, LLC, a Delaware
limited liability company (the “Guarantor”),
in
favor of WACHOVIA BANK, NATIONAL ASSOCIATION, as administrative agent for the
Lenders (the “Administrative
Agent”).
WITNESSETH:
WHEREAS,
the Lenders have made extensions of credit including but not limited to Loans
and Letters of Credit in the maximum aggregate principal amount not to exceed
$250,000,000 at any one time outstanding to Atlas Energy Operating Company,
LLC,
a Delaware limited liability company (the “Borrower”),
pursuant to that certain Revolving Credit Agreement dated as of December 18,2006, by and among the Borrower, the financial institutions (the “Lenders”)
party
thereto, and Wachovia Bank, National Association, in its capacity of the issuer
of certain letters of credit and as the Administrative Agent for the Lenders
thereunder (the Credit Agreement together with the exhibits and schedules
thereto and all extensions, renewals, amendments, substitutions and replacements
thereto and thereof is herein referred to as the “Credit
Agreement”);
WHEREAS,
(i) the Letters of Credit may be issued under the Credit Agreement for the
account of one or more of the Guarantors, (ii) the proceeds of the Loans under
the Credit Agreement may be used by the Borrower to make loans to one or more
of
the Guarantors and for other general corporate purposes of the Borrower and
the
Guarantors, and (iii) Hedging Agreements may be entered into by one or more
of
the Guarantors and any Lender or its Affiliate, all as permitted pursuant to
the
Credit Agreement and all of which will directly and indirectly benefit the
Borrower and the Guarantors;
WHEREAS,
as a condition precedent to extending credit to the Borrower pursuant to the
Credit Agreement, the Lenders have required that, inter
alia,
each of
the Guarantors execute and deliver to the Administrative Agent, for and on
behalf of the Lenders, a guaranty agreement;
WHEREAS,
the Guarantor has determined, reasonably and in good faith, that (i) it has
adequate capital to conduct its business as presently conducted and as proposed
to be conducted, (ii) it will be able to meet its obligations hereunder and
in
respect of its existing and future indebtedness and liabilities (contingent
or
otherwise) as and when the same shall become due and payable, including those
under this Guaranty Agreement, (iii) it is otherwise solvent and (iv) the
execution and delivery of this Guaranty Agreement and the consummation of the
transactions contemplated hereby will not render it insolvent;
WHEREAS,
the Guarantor has determined that the execution and delivery of this Guaranty
Agreement is in furtherance of its corporate purposes and in its best interest
and that it will derive substantial benefit, whether directly or indirectly,
from the making of this Guaranty Agreement, having regard for all relevant
facts
and circumstances; and
WHEREAS,
the Guarantor has agreed to execute and deliver this Guaranty Agreement to
the
Administrative Agent, for the benefit of the Lenders.
NOW
THEREFORE, for good and valuable consideration the receipt of which is hereby
acknowledged, and in order to induce the Lenders to make Loans to the Borrower
pursuant to the Credit Agreement by fulfilling the requirements of the Credit
Agreement, the Guarantor agrees, for the benefit of each Lender, as follows:
SECTION
1.1 Certain
Terms.
The
following capitalized terms when used in this Guaranty Agreement, including
its
preamble and recitals, shall have the following meanings (such definitions
to be
equally applicable to the singular and plural forms thereof):
“Administrative
Agent”
is
defined in the preamble.
“Borrower”
is
defined in the first recital.
“Commitments”
means
each Commitment as defined in the Credit Agreement.
“Credit
Agreement”
is
defined in the first recital.
“Guarantor”
is
defined in the preamble.
“Guaranty
Agreement”
is
defined in the preamble.
“Lenders”
is
defined in the first recital.
“Taxes”
is
defined in clause (1) of Section
2.7.
“U.C.C.”
means
the Uniform Commercial Code as in effect in the State of Texas.
SECTION
1.2 Credit
Agreement Definitions.
Unless
otherwise defined herein or the context otherwise requires, capitalized terms
used in this Guaranty Agreement, including its preamble and recitals, have
the
meanings provided in the Credit Agreement.
SECTION
1.3 U.C.C.
Definitions.
Unless
otherwise defined herein or the context otherwise requires, terms for which
meanings are provided in the U.C.C. are used in this Guaranty Agreement,
including its preamble and recitals, with such meanings.
ARTICLE
II
GUARANTY
PROVISIONS
SECTION
2.1 Guaranty
Agreement.
The
Guarantor hereby absolutely, unconditionally, and irrevocably (1) guarantees
the
full and punctual payment when due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise, of all Indebtedness
of the Borrower and each other Obligor now or hereafter existing under each
of
the Credit Agreement, the Notes and each other Loan Document to which the
Borrower or such other Obligor is or may become a party, whether for principal,
interest, fees, expenses or otherwise (including all such amounts which would
become due but for the operation of the automatic stay under Section 362(a)
of
the United States Bankruptcy Code, 11 U.S.C. §362(a), and the operation of
Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C.
§502(b) and §506(b)), and (2) indemnifies and holds harmless each Lender and
each holder of a Note for any and all costs and expenses (including reasonable
attorney’s fees and expenses) incurred by such Lender or such holder, as the
case may be, in enforcing any rights under this Guaranty Agreement; provided,
however,
that
the Guarantor shall be liable under this Guaranty Agreement for the maximum
amount of such liability that can be hereby incurred without rendering this
Guaranty Agreement, as it relates
to the Guarantor, voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer, and not for any greater amount. This Guaranty
Agreement constitutes a guaranty of payment when due and not of collection,
and
the Guarantor specifically agrees that it shall not be necessary or required
that any Lender or any holder of any Note exercise any right, assert any claim
or demand or enforce any remedy whatsoever against the Borrower or any other
Obligor (or any other Person) before or as a condition to the obligations of
the
Guarantor hereunder.
SECTION
2.2 Acceleration
of Guaranty Agreement.
The
Guarantor agrees that, in the event of the occurrence of any event of the type
described in Section
10.01(e), (f) or (g)
of the
Credit Agreement, with respect to the Borrower, any other Obligor or the
Guarantor, and if such event shall occur at a time when any of the Indebtedness
may not then be due and payable by the Borrower due to any automatic stay or
other debtor relief laws, the Guarantor will pay to the Lenders forthwith the
full amount which would be payable hereunder by the Guarantor if all such
Indebtedness were then due and payable.
SECTION
2.3 Guaranty Agreement Absolute, etc. This Guaranty Agreement
shall in all respects be a continuing, absolute, unconditional and irrevocable
guaranty of payment, and shall remain in full force and effect until all Indebtedness
of the Borrower and each other Obligor has been paid in full, all obligations
of the Guarantor hereunder shall have been paid in full, all Commitments shall
have terminated and all Lender Hedging Agreements have terminated. Guarantor
may not rescind or revoke its obligations hereunder. The Guarantor guarantees
that the Indebtedness of the Borrower and each other Obligor will be paid strictly
in accordance with the terms of the Credit Agreement and each other Loan Document
under which they arise, 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
Lender or any holder of any Note with respect thereto. The liability of the
Guarantor under this Guaranty Agreement shall be absolute, unconditional and
irrevocable irrespective of: (1) any lack of validity, legality or enforceability
of the Credit Agreement, any Note or any other Loan Document; (2) the failure
of any Lender or any holder of any Note (a) to assert any claim or demand or
to enforce any right or remedy against the Borrower, any other Obligor or any
other Person (including any other guarantor) under the provisions of the Credit
Agreement, any Note, any other Loan Document or otherwise, or (b) to exercise
any right or remedy against any other guarantor of, or collateral securing,
any Indebtedness of the Borrower or any other Obligor; (3) any change in the
time, manner or place of payment of, or in any other term of, all or any of
the Indebtedness of the Borrower or any other Obligor, or any other extension,
compromise or renewal of any Indebtedness of the Borrower or any other Obligor;
(4) any reduction, limitation, impairment or termination of any Indebtedness
of the Borrower or any other Obligor for any reason, including any claim of
waiver, release, surrender, alteration or compromise, and shall not be subject
to (and the Guarantor hereby waives any right to or claim of) any defense or
setoff, counterclaim, recoupment or termination whatsoever by reason of the
invalidity, illegality, nongenuineness, irregularity, compromise, unenforceability
of, or any other event or occurrence affecting, any Indebtedness of the Borrower,
any other Obligor or otherwise; (5) any amendment to, rescission, waiver, or
other modification of, or any consent to departure from, any of the terms of
the Credit Agreement, any Note or any other Loan Document; (6) any addition,
exchange, release, surrender or non-perfection of any collateral, or any amendment
to or waiver or release or addition of, or consent to departure from, any other
guaranty, held by any Lender or any holder of any Note securing any of the Indebtedness
of the Borrower or any other Obligor; (7) the insolvency or bankruptcy of, or
similar event affecting, the Borrower or any other Obligor; or (8) any other
circumstance which might otherwise constitute a defense available to, or a legal
or equitable discharge of, the Borrower, any other Obligor, any surety or any
guarantor. Guarantor waives all rights and defenses which may arise with respect
to any of the foregoing, and Guarantor waives any right to revoke this Guaranty
Agreement with respect to future indebtedness. Guarantor waives all rights or
defenses under (1) Section 34.01 etseq. of the Texas Business
and Commerce Code, as amended, (2) Section 17.001 of the Texas Civil
Practice and Remedies Code, as amended, (3) Rule 31 of the Texas Rules
of Civil Procedure, as amended, or (4) common law, in equity, under contract,
by statute, or otherwise.
SECTION
2.4 Reinstatement.
The
Guarantor agrees that this Guaranty Agreement shall continue to be effective
or
be reinstated, as the case may be, if at any time any payment (in whole or
in
part) of any of the Indebtedness is rescinded or must otherwise be restored
by
any Lender or any holder of any Note, upon the insolvency, bankruptcy or
reorganization of the Borrower, any other Obligor or otherwise, all as though
such payment had not been made.
SECTION
2.5 Waiver,
etc.
The
Guarantor hereby waives promptness, diligence, notice of acceptance and any
other notice with respect to any of the Indebtedness of the Borrower or any
other Obligor and this Guaranty Agreement and any requirement that the
Administrative Agent, any other Lender or any holder of any Note protect,
secure, perfect or insure any security interest or Lien, or any property subject
thereto, or exhaust any right or take any action against the Borrower, any
other
Obligor or any other Person (including any other guarantor) or entity or any
collateral securing the Indebtedness of the Borrower or any other Obligor,
as
the case may be.
SECTION
2.6 Waiver
of Subrogation.
Until
the Indebtedness is paid in full, all Commitments have terminated and all Lender
Hedging Agreements have terminated, the Guarantor shall not enforce or exercise
any claim or other rights which it may now or hereafter acquire against the
Borrower or any other Obligor that arise from the existence, payment,
performance or enforcement of the Guarantor’s obligations under this Guaranty
Agreement or any other Loan Document, including any right of subrogation,
reimbursement, exoneration, or indemnification, any right to participate in
any
claim or remedy of the Lenders against the Borrower or any other Obligor or
any
collateral which the Administrative Agent now has or hereafter acquires, whether
or not such claim, remedy or right arises in equity, or under contract, statute
or common law, including the right to take or receive from the Borrower or
any
other Obligor, directly or indirectly, in cash or other property or by set-off
or in any manner, payment or security on account of such claim or other rights.
If any amount shall be paid to the Guarantor in violation of the preceding
sentence, such amount shall be deemed to have been paid to the Guarantor for
the
benefit of, and held in trust for, the Lenders, and shall forthwith be paid
to
the Lenders to be credited and applied upon the Indebtedness, whether matured
or
unmatured. The Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by the Credit Agreement
and that the waiver set forth in this Section is knowingly made in contemplation
of such benefits.
SECTION
2.7 Payments
Free and Clear of Taxes, etc.
The
Guarantor hereby agrees that:
(a)
All
payments by the Guarantor hereunder shall be made in accordance with
Section
4.06
of the
Credit Agreement free and clear of and without deduction for any present or
future income, excise, stamp or franchise taxes and other taxes, fees, duties,
withholdings or other charges of any nature whatsoever imposed by any taxing
authority, but excluding franchise taxes and taxes imposed on or measured by
any
Lender’s net income or receipts (such non-excluded items being called
“Taxes”).
In
the event that any withholding or deduction from any payment to be made by
the
Guarantor hereunder is required in respect of any Taxes pursuant to any
applicable law, rule or regulation, then the Guarantor will (i) pay directly
to
the relevant authority the full amount required to be so withheld or deducted;
(ii) promptly forward to such Lender an official receipt or other documentation
satisfactory to such Lender evidencing such payment to such authority; and
(iii)
pay to such Lender such additional amount or amounts as is necessary to ensure
that the net amount actually received by such Lender will equal the full amount
such Lender would have received had no such withholding or deduction been
required. Moreover, if any Taxes are directly asserted against any Lender with
respect to any payment received by such Lender hereunder, such Lender may pay
such Taxes and the Guarantor will promptly pay such additional amounts
(including, if incurred as a result of Guarantor’s or the Borrower’s action,
omission or delay, any penalties, interest or expenses) as is necessary in
order
that the net amount received by such Lender after the payment of such Taxes
(including any Taxes on such additional amount) shall equal the amount such
Lender would have received had such Taxes not been asserted.
(b)
If
the Guarantor fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to any Lender the required receipts or other
required documentary evidence, the Guarantor shall indemnify such Lender for
any
incremental Taxes, interest or penalties that may become payable by such Lender
as a result of any such failure.
(c)
Without prejudice to the survival of any other agreement of the Guarantor
hereunder, the agreements and obligations of the Guarantor contained in this
Section
2.7
shall
survive the payment in full of the principal of and interest on the Loans.
SECTION
2.8 Contribution
Agreement.
Upon
full and final payment of the Indebtedness, Guarantor and all other Guarantors
which have made payments upon all or any part of the Indebtedness shall be
entitled to contribution from all of the other Guarantors, to the end that
all
such payments upon the Indebtedness shall be shared among all Guarantors who
guaranteed such Indebtedness in proportion to their respective Net Worths
(defined below), provided that the contribution obligations of each of the
Guarantors shall be limited to the maximum amount that it can pay at such time
without rendering its contribution obligations voidable under applicable law
relating to fraudulent conveyances or fraudulent transfers. As used in this
subsection, the “Net Worth” of each of the Guarantors means, at any time, the
remainder of (i) the fair value of such Guarantor’s assets (other than such
right of contribution), minus (ii) the fair value of such Guarantor’s
liabilities (other than its liabilities under its guaranty of the Indebtedness).
SECTION
2.9 Subordination.
Guarantor hereby subordinates and makes inferior to the Indebtedness any and
all
Intercompany Debt now or at any time hereafter owed by the Borrower or other
Obligor to the Guarantor. Guarantor agrees that after the occurrence of any
Default or Event of Default under the Credit Agreement, it will not permit
the
Borrower to repay such Intercompany Debt or any part thereof and it will not
accept payment from the Borrower of such Intercompany Debt or any part thereof
without the prior written consent of the Majority Lenders as defined in the
Credit Agreement. If Guarantor receives any such payment without the prior
required written consent, the amount so paid shall be held in trust for the
benefit of the Lenders, shall be segregated from the other funds of such
Guarantor, and shall forthwith be paid over to the Administrative Agent to
be
held by the Administrative Agent as collateral for, or then or at any time
thereafter applied in whole or in part by the Administrative Agent against,
all
or any portions of the Indebtedness, whether matured or unmatured, in such
order
as the Administrative Agent shall elect.
ARTICLE
III
REPRESENTATIONS,
WARRANTIES AND COVENANTS
SECTION
3.1 Representations,
Warranties and Covenants.
By
execution hereof, Guarantor covenants and agrees that certain representations,
warranties, terms, covenants, and conditions set forth in the Credit Agreement
and other Loan Documents are applicable to Guarantor and shall be imposed upon
Guarantor, and Guarantor reaffirms that each such representation and warranty
is
true and correct and covenants and agrees to promptly and properly perform,
observe, and comply with each such term, covenant, or condition. Moreover,
Guarantor acknowledges and agrees that this Guaranty Agreement is subject to
the
offset provisions of the Credit Agreement in favor of the Administrative Agent
and the Lenders.
SECTION
4.1 Loan
Document.
This
Guaranty Agreement is a Loan Document executed pursuant to the Credit Agreement
and shall (unless otherwise expressly indicated herein) be construed,
administered and applied in accordance with the terms and provisions thereof.
SECTION
4.2 Releases.
At such
time as the Loans shall have been paid in full, the Commitments have been
terminated and no Lender Hedging Agreements are outstanding, the Administrative
Agent shall, at the request and expense of the Guarantor following such
termination, promptly execute and deliver to the Guarantor such documents and
instruments as the Guarantor shall reasonably request to evidence termination
and release of this Guaranty Agreement.
SECTION
4.3 Administrative
Agent and Lenders; Successors and Assigns.
(a)
The
Administrative Agent is Administrative Agent for each Lender under the Credit
Agreement. All rights granted to Administrative Agent under or in connection
with this Guaranty Agreement are for each Lender’s ratable benefit. The
Administrative Agent may, without the joinder of any Lender, exercise any rights
in Administrative Agent’s or Lenders’ favor under or in connection with this
Guaranty Agreement. The Administrative Agent’s and each Lender’s rights and
obligations vis-a-vis
each
other may be subject to one or more separate agreements between those parties.
However, the Guarantor is not required to inquire about any such agreement
and
is not subject to any terms of it unless the Guarantor specifically enters
into
such agreement. Therefore, neither Guarantor nor its successors or assigns
is
entitled to any benefits or provisions of any such separate agreement nor is
it
entitled to rely upon or raise as a defense any party’s failure or refusal to
comply with the provisions of any such agreement.
(b)
This
Guaranty Agreement benefits the Administrative Agent, the Lenders, and their
respective successors and assigns and binds Guarantor and its successors and
assigns. Upon appointment of any successor Administrative Agent under the Credit
Agreement, all of the rights of Administrative Agent under this Guaranty
Agreement automatically vests in that new Administrative Agent as successor
Administrative Agent on behalf of Lenders without any further act, deed,
conveyance, or other formality other
than
that
appointment. The rights of the Administrative Agent and the Lenders under this
Guaranty Agreement may be transferred with any assignment of the obligations
hereby guaranteed pursuant to and in accordance with the terms of the Credit
Agreement. The Credit Agreement contains provisions governing assignments of
the
obligations guaranteed under this Guaranty Agreement.
SECTION
4.4 Amendments,
etc.
No
amendment to or waiver of any provision of this Guaranty Agreement, nor consent
to any departure by the Guarantor herefrom, shall in any event be effective
unless the same shall be in writing and signed by or on behalf of the party
against whom it is sought to be enforced and is in conformity with the
requirements of Section
12.04
of the
Credit Agreement. Each such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given.
SECTION
4.5 Addresses
for Notices to the Guarantor.
All
notices and other communications hereunder to the Guarantor shall be in writing
and mailed or delivered to it, addressed to it at the address set forth below
or
at such other address as shall be designated by the Guarantor in a written
notice to the Administrative Agent at the address specified in the Credit
Agreement complying as to delivery with the terms
of
this Section. All such notices and other communications shall, when mailed,
be
effective when deposited in the mails, addressed as aforesaid. Address for
notices:
SECTION
4.6 No
Waiver; Remedies.
In
addition to, and not in limitation of, Section
2.3
and
Section
2.5,
no
failure on the part of any Lender or any holder of a Note 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
4.7 Section
Captions.
Section
captions used in this Guaranty Agreement are for convenience of reference only,
and shall not affect the construction of this Guaranty Agreement.
SECTION
4.8 Setoff.
In
addition to, and not in limitation of, any rights of any Lender or any holder
of
a Note under applicable law, upon the occurrence of an Event of Default under
or
as defined in the Credit Agreement, each Lender and each such holder shall
be
entitled to exercise any right of offset or banker’s lien against each and every
account and other property or interest that the Guarantor may now or hereafter
have with, or which is now or hereafter in the possession of, any such Lender,
to the extent of the full amount of the Indebtedness.
SECTION
4.9 Severability.
Wherever
possible each provision of this Guaranty Agreement shall be interpreted in
such
manner as to be effective and valid under applicable law, but if any provision
of this Guaranty Agreement shall be prohibited by or invalid under such law,
such provision shall be ineffective to the extent of such prohibition or
invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Guaranty Agreement.
SECTION
4.10 Governing
Law.
THIS GUARANTY AGREEMENT SHALL BE DEEMED TO BE A CONTRACT UNDER AND GOVERNED
BY
THE INTERNAL LAWS OF THE STATE OF TEXAS AND APPLICABLE FEDERAL LAW. THIS
GUARANTY AGREEMENT AND THE OTHER LOAN DOCUMENTS CONSTITUTE THE ENTIRE
UNDERSTANDING AMONG THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF
AND SUPERSEDE ANY PRIOR AGREEMENTS, WRITTEN OR ORAL, WITH RESPECT THERETO.
SECTION
4.11 Forum
Selection and Consent to Jurisdiction.
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS GUARANTY AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER VERBAL OR WRITTEN) OR ACTIONS OF THE LENDERS OR THE GUARANTOR MAY
BE
BROUGHT AND MAINTAINED IN THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED
STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK. THE GUARANTOR
HEREBY EXPRESSLY AND IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF
THE
COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR
THE
SOUTHERN DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET
FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT
RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE GUARANTOR FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY PERSONAL SERVICE WITHIN OR
WITHOUT THE STATE OF TEXAS. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY
HAVE
OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT
IN
ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS
BEEN
BROUGHT IN AN INCONVENIENT FORUM.
SECTION
4.12 Waiver
of Jury Trial.
THE GUARANTOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS
IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS GUARANTY AGREEMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN)
OR
ACTIONS OF THE LENDERS OR THE GUARANTOR. THE GUARANTOR ACKNOWLEDGES AND AGREES
THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDERS ENTERING INTO
THE
CREDIT AGREEMENT.
SECTION
4.13 Entire
Agreement.
THIS GUARANTY AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Remainder
of Page Intentionally Blank. Signature Page to
Follow.
IN
WITNESS WHEREOF, the Guarantor has caused this Guaranty Agreement to be duly
executed and delivered by an officer duly authorized as of the date first
written above.
