Attached files
EXHIBIT 10.4
INDIVIDUAL LEASING RECORD NO. 57
Relating to Lease Schedule No. 57 dated September 19, 2008, to
Equipment Leasing Agreement Described Below.
Equipment Leasing Agreement Described Below.
EQUIPMENT LEASED | ||||||||||
New or | ||||||||||
Qty. | Used | Make/Manufacturer and Description | Model No. | Serial No. | ||||||
4
|
New | 2009 Peterbilt Tractors | 388 | 1XPWD49X89D769890 335 | ||||||
1XPWD49X19D769889 334 | ||||||||||
1XPWD49XX9D769888 333 | ||||||||||
1XPWD49X89D770313 336 |
Location of Equipment:
|
240 Jasmine Road | Crowley | Acadia | LA | 70526 | |||||||
(Street Address) | (Town/City) | (Parish) | (State) | (Zip) |
Date of
Delivery of Equipment: August 18, 2008.
1. | Total Acquisition Cost: $447,717.20. | |
2. | Lease Term: Sixty (60) calendar months (plus, if applicable, any partial first month) commencing on the date of this Individual Leasing Record and ending on October 9. 2013. |
3. | Rent: (a) for each full calendar month: $6,769.47 (plus applicable sales/use tax), payable on
the 9th day of each calendar month, in advance, commencing on October 9, 2008, and the same amount on
the 9th day of each consecutive month thereafter throughout the lease term. |
(b) | for partial first month: $4,738.65 (plus applicable sales/use tax), payable on September 19, 2008. |
4. | The undersigned Lessee hereby acknowledges that it has reviewed and approved the purchase order, supply contract or purchase agreement covering each Item of Equipment described above and that each such Item (i) was selected by Lessee, (ii) has been, as of the Date of Delivery of Equipment specified hereinabove, delivered to, and inspected by, Lessee, (iii) is of a size, design, capacity, and manufacture acceptable to Lessee and suitable for purposes of accepting those items under the Lease and making them subject to the Schedule and the Lease, (iv) is in good working order, repair, and condition, (v) has been installed to Lessees satisfaction and unconditionally and irrevocably accepted by Lessee, and (vi) has been tested by Lessee (to the extent Lessee deems appropriate in order to make this certification. The undersigned Lessor and the undersigned Lessee hereby agree that the Equipment described above is hereby leased from Lessor to Lessee under the Equipment Leasing Agreement between Lessor and Lessee dated as of October 2, 2001 (the Lease), is subject to all of the terms, conditions, and provisions thereof, as supplemented by the terms, conditions, and provisions of the above-referenced Lease Schedule and any Riders annexed to and made a part of said Lease Schedule, and the terms and conditions hereof, and that this Individual Leasing Record is made a part of, and incorporates by reference all of the terms, conditions, and provisions of, the Lease. The undersigned Lessee hereby agrees to pay the rent for all Items of Equipment covered by this Individual Leasing Record, in the amounts and at the times specified above and reaffirms its acknowledgments and agreements in Section 4 of the Lease. Capitalized terms used herein shall have the meaning given to such terms in the Lease. |
Dated: September 19, 2008
Francis Drilling Fluids, Ltd. (Lessee) |
Capital One, National Association (Lessor) |
|||||||||
By:
|
/s/ Michael G. Francis | By: | ||||||||
Name:
|
Name: | |||||||||
Title:
|
President | Title: |
ELF#14A
Ind. Lsg. Rec.
Capital One ELF #14.1 (04/24/06)
Ind. Lsg. Rec.
Capital One ELF #14.1 (04/24/06)
LEASE SCHEDULE NO. 57
Lease
Schedule No. 57 to, and made part of, Equipment Leasing Agreement dated as of
October 2, 2001 (herein called the Lease), between
Capital One, National Association (herein
called Lessor) and Francis Drilling Fluids, Ltd.
(herein called Lessee). All capitalized terms
used herein which are defined in the Lease are used herein so defined.
1. | Description of the Equipment covered by this Schedule (the Equipment): |
New or | ||||||||||
Qty. | Used | Make/Manufacturer and Description | Model No. | Serial No. | ||||||
4
|
New | 2009 Peterbilt Tractors | 388 | 1XPWD49X89D769890 | ||||||
1XPWD49X19D769889 | ||||||||||
1XPWD49XX9D769888 | ||||||||||
1XPWD49X89D770313 |
2. |
Location of Equipment: | 240 Jasmine Road | Crowley | Acadia | LA | 70526 | ||||||
(Street Address) | (Town/City) | (Parish) | (State) | (Zip) |
3. | The aggregate Acquisition Cost of the Equipment shall not exceed $447,717.20, and the Equipment shall not be delivered and accepted by Lessee after December 31, 2008, unless Lessor otherwise agrees in writing. Lessor shall have no obligation to acquire and lease any Item of Equipment to Lessee if (a) a material adverse change in the financial condition of Lessee (or of any guarantor of Lessees obligations under the Lease) has occurred since January 9, 2008, or (b) an event which is (or with notice or lapse of time or both would become) an Event of Default under the Lease has occurred. | |
4. | Rent (as a percentage of Acquisition Cost of each Item of the Equipment): 1.511997% for each full calendar month, and N/A% for each day of any partial first month. Lessee shall pay the rent to Lessor in advance during the lease term on the dates specified in the Individual Leasing Record for each Item of the Equipment. | |
5. | Lease Term of the Equipment: sixty (60) full calendar month (plus any partial first month), commencing, as to each Item, on the date of the Individual Leasing Record therefore, and unless sooner terminated in accordance with the provisions of the Lease, ending on the date specified in such Individual Leasing Record. | |
6. | Terminal Rental Adjustment Clause: See Section 24 of the Lease. | |
7. | Casualty Loss Value Payment Date: þ The rent payment date next preceding or coincident with the date of loss (if rent is paid in advance); or o The rent payment date next following the date of loss (if rent is paid in arrears). |
|
8. | Comprehensive Public Liability Insurance: $1,000,000.00 per occurrence. Property Damage Insurance: In an amount equal to the Acquisition Cost. |
|
9. | Other Conditions or Riders (if none, so state): Tax Indemnification Rider, Motor Vehicle Rider, Terminal Rental Adjustment Rider, and Trac Rider Business Use. |
Dated:
September 19, 2008.
Francis Drilling Fluids, Ltd. (Lessee) |
Capital One, National Association (Lessor) |
|||||||||
By:
|
/s/ Michael G. Francis | By: | ||||||||
Name:
|
Name: | |||||||||
Title:
|
President | Title: |
ELF#7B
Lse.Sched.2/TRAC
Capital One ELF #7.2 (04/24/06)
Lse.Sched.2/TRAC
Capital One ELF #7.2 (04/24/06)
SCHEDULE OF CASUALTY LOSS VALUES
THIS
SCHEDULE is annexed to, and made part of, Individual Leasing Record No. 57 of Lease
Schedule No. 57 to the Equipment Leasing Agreement dated as
of October 2, 2001, between Capital One,
National Association (Lessor) and Francis Drilling Fluids, Ltd. (Lessee).
Francis
Drilling Fluids, Ltd.
Schedule 57, Record 57
Schedule 57, Record 57
Termination Schedule
termination | ||||||||
termination | value | |||||||
date | value | % of basis | ||||||
Sep-08 |
442,978.55 | 98.94159751 | ||||||
Oct-08 |
438,635.48 | 97.97154936 | ||||||
Nov-08 |
434,262.50 | 96.99482109 | ||||||
Dec-08 |
429,843.83 | 96.00788822 | ||||||
Jan-09 |
425,285.45 | 94.98975032 | ||||||
Feb-09 |
420,696.36 | 93.96475224 | ||||||
Mar-09 |
416,076.44 | 92.93286831 | ||||||
Apr-09 |
411,418.57 | 91.89251005 | ||||||
May-09 |
406,677.27 | 90.83351553 | ||||||
Jun-09 |
401,897.52 | 89.76593340 | ||||||
Jul-09 |
397,033.93 | 88.67962485 | ||||||
Aug-09 |
392,138.49 | 87.58620090 | ||||||
Sep-09 |
387,203.95 | 86.48404548 | ||||||
Oct-09 |
382,185.05 | 85.36304915 | ||||||
Nov-09 |
377,133.72 | 84.23480755 | ||||||
Dec-09 |
372,042.65 | 83.09768901 | ||||||
Jan-10 |
366,866.70 | 81.94161376 | ||||||
Feb-10 |
361,657.72 | 80.77816190 | ||||||
Mar-10 |
356,415.60 | 79.60730581 | ||||||
Apr-10 |
351,141.85 | 78.42938586 | ||||||
May-10 |
345,840.57 | 77.24531732 | ||||||
Jun-10 |
340,507.42 | 76.05412972 | ||||||
Jul-10 |
335,146.54 | 74.85674960 | ||||||
Aug-10 |
329,751.95 | 73.65183821 | ||||||
Sep-10 |
324,325.09 | 72.43972067 | ||||||
Oct-10 |
318,870.20 | 71.22134129 | ||||||
Nov-10 |
313,381.23 | 69.99535202 | ||||||
Dec-10 |
307,859.61 | 68.76206854 | ||||||
Jan-11 |
302,309.64 | 67.52245313 | ||||||
Feb-11 |
296,725.24 | 66.27514832 | ||||||
Mar-11 |
291,106.28 | 65.02012533 | ||||||
Apr-11 |
285,456.36 | 63.75818459 | ||||||
May-11 |
279,792.15 | 62.49305283 | ||||||
Jun-11 |
274,096.77 | 61.22096108 | ||||||
Jul-11 |
268,386.96 | 59.94564469 | ||||||
Aug-11 |
262,642.13 | 58.66250525 | ||||||
Sep-11 |
256,865.79 | 57.37233057 | ||||||
Oct-11 |
251,074.75 | 56.07887137 | ||||||
Nov-11 |
245,248.38 | 54.77752118 | ||||||
Dec-11 |
239,390.18 | 53.46905968 | ||||||
Jan-12 |
233,516.99 | 52.15725310 | ||||||
Feb-12 |
227,608.17 | 50.83748683 | ||||||
Mar-12 |
221,663.58 | 49.50973108 | ||||||
Apr-12 |
215,688.89 | 48.17525147 | ||||||
May-12 |
209,713.32 | 46.84057643 | ||||||
Jun-12 |
203,707.51 | 45.49914860 | ||||||
Jul-12 |
197,700.73 | 44.15750233 | ||||||
Aug-12 |
191,657.81 | 42.80778467 | ||||||
Sep-12 |
185,584.38 | 41.45125137 | ||||||
Oct-12 |
179,509.75 | 40.09444960 | ||||||
Nov-12 |
173,398.72 | 38.72951969 | ||||||
Dec-12 |
167,256.90 | 37.35771059 | ||||||
Jan-13 |
161,113.64 | 35.98558243 | ||||||
Feb-13 |
154,933.74 | 34.60526875 | ||||||
Mar-13 |
148,717.05 | 33.21673890 | ||||||
Apr-13 |
142,475.28 | 31.82260644 | ||||||
May-13 |
136,271.78 | 30.43702038 | ||||||
Jun-13 |
130,043.24 | 29.04584402 | ||||||
Jul-13 |
123,853.01 | 27.66322383 | ||||||
Aug-13 |
117,625.96 | 26.27237884 | ||||||
Sep-13 |
111,373,78 | 24.87592158 | ||||||
Oct-13 |
111,929.30 | 25.00000000 |
Dated:
September 19, 2008.
Francis Drilling Fluids, Ltd. (Lessee) |
Capital One, National Association (Lessor) |
|||||||||
By:
|
/s/ Michael G. Francis | By: | ||||||||
Name:
|
Name: |
ELF#8
Sched Cas.LossValues
Capital One ELF #8 (04/24/06)
Sched Cas.LossValues
Capital One ELF #8 (04/24/06)
MOTOR VEHICLE RIDER
THIS RIDER, is annexed to, and made a part of Lease Schedule No. 57 (the Schedule), to the
Equipment Leasing Agreement dated as of October 2, 2001 (the Lease), between Capital One,
National Association (Lessor) and Francis Drilling
Fluids, Ltd. (Lessee).
Lessor and Lessee acknowledge that certain of the Equipment to be leased under the Lease will
consist of motor vehicles (Vehicular Equipment). In addition to, and not in limitation of, all
of the terms, conditions, and provisions of the Lease and Schedule, the following terms and
provisions shall apply to each unit of Vehicular Equipment.
(a) Lessee shall not use Vehicular Equipment, nor allow the same to be used, for any unlawful
purpose, nor for the transportation of any property or material deemed extra hazardous except
material normally needed and used in Lessees business, and Vehicular Equipment shall be operated
only by safe, careful, and licensed drivers to be selected, employed, controlled, and paid by
Lessee;
(b) Lessees drivers shall conclusively be presumed to be the agents of Lessee, shall be required
to operate Vehicular Equipment with reasonable care and diligence and to use normal reasonable
precautions to prevent loss or damage to Vehicular Equipment because of fire, theft, or collision,
and Lessees drivers, servants, and agents shall cooperate fully with Lessor and all insurance
companies providing insurance under this Lease in the investigation and defense of any claims and
suits arising from the operation of Vehicular Equipment;
(c) Lessee will, at its sole expense, (i) supply and replace all parts and tires for Vehicular
Equipment, (ii) supply the necessary gasoline, oil, grease, and other items required in the
operation of Vehicular Equipment, and (iii) arrange for the satisfactory garaging, if applicable,
of Vehicular Equipment;
(d) Lessee will, at its expense, obtain all titles, registrations, registration plates, permits,
and licenses, including all renewals thereof, required for the lawful ownership, use, and
operation of Vehicular Equipment, and will (i) cause Vehicular Equipment to be titled and
registered in the name of Lessor as owner and with Lessee to be shown as the lessee, and (ii)
cause all such certificates of title to be promptly furnished to Lessor and all certificates of
registration (and where required by applicable law, a copy of the Lease) to be retained in the
unit(s) of Vehicular Equipment. Lessor shall furnish Lessee with appropriate powers of attorney
for the sole and limited purpose of effecting said titling, registration, and licensing. Lessee
will not place Vehicular Equipment in operation until same has been properly titled, registered,
and licensed as aforesaid;
(e) In addition to the insurance coverages specified in Section 11 of the Lease. Lessee will also
cause to be carried and maintained, at its sole expense, and in the same amounts required under
said Section, theft and collision insurance, with such deductible as may be satisfactory to
Lessor;
(f) In
addition to the indemnities set forth in Section 7 of the Lease, Lessee will pay when due,
and will indemnify, protect, save, defend, and hold Lessor and its assigns harmless from and
against (i) any obligations, license or other fees, liabilities, losses, damages, penalties,
claims, actions, suits, costs, and expenses, including legal expenses, of every kind and nature
whatsoever imposed on, incurred by, or asserted against Lessor, its agents, employees, officers,
directors, successors, and assigns in any way relating to or arising out of any power of attorney
issued by Lessor to any person or persons designated in writing by Lessee to apply on behalf of
Lessor for applications for the licensing, re-licensing, titling, re-titling, registration or
re-registration of Vehicular Equipment, or any odometer certification with respect to Vehicular
Equipment, and (ii) all towing charges, parking tolls, fines, parking and speeding tickets, and
other civil and criminal motor vehicle violations (and all fines, penalties, and interest
applicable thereto) with respect to Vehicular Equipment. All capitalized or other terms used herein
which are not defined herein shall have the meaning given to such
terms in the Lease.
Dated:
September 19, 2008.
Francis Drilling Fluids, Ltd. (Lessee) |
Capital One, National Association (Lessor) |
|||||||||
By:
|
/s/ Michael G. Francis | By: | ||||||||
Name:
|
Name: | |||||||||
Title:
|
President | Title: |
TAX INDEMNIFICATION RIDER
THIS RIDER is annexed to Lease Schedule No. 57 (the Lease Schedule) to the Equipment Leasing
Agreement dated as of October 2, 2001 (the Lease), between Capital One, National Association
(Lessor) and Francis Drilling Fluids, Ltd. (Lessee).
Lessor has executed the Lease Schedule on the basis of Lessors assumptions that, with respect to
each Item of Equipment described in the Lease Schedule (an Item of Schedule Equipment or Item)
Lessor will (i) be entitled to cost recovery deductions for Federal income tax purposes under the
Accelerated Cost Recovery System provided for in Section 168 of the Internal Revenue Code of 1986,
as in effect on the date of the Lease Schedule (the Code), and depreciation or cost recovery
deductions for state income tax purposes for the State of Louisiana based upon one hundred percent
(100%) of the Acquisition Cost of each Item of Schedule Equipment and on the basis that each such
Item shall have the applicable recovery period and property classification, and that Lessor will be
entitled to use the applicable method of depreciation and depreciation convention (the Recovery
Deduction), and be entitled to deductions for Federal and Louisiana income tax purposes for
interest payable with respect to any indebtedness incurred by Lessor in connection with any
financing by Lessor of any portion of the Acquisition Cost of such Item (the Interest Deduction),
and (ii) be subject to tax for each year, including any year in which a Tax Loss (hereinafter
defined) occurs be at a composite Federal and state corporate income tax rate that is equal to the
highest marginal rate for corporations provided for under the Code and the laws of Louisiana (the
Highest Composite Marginal Tax Rate). If, for any reason
whatsoever, Lessor shall lose the
benefit of, or shall not have or shall lose the right to claim, or shall suffer a disallowance or
recapture of, or delay in claiming, all or any portion of the Recovery Deduction or (if Lessor
finances any portion of its Acquisition Cost) the Interest Deduction, with respect to any Item of
Schedule Equipment, or for Federal, foreign, state or local income tax purposes, any item of
income, loss or deduction with respect to any Item of Schedule Equipment is treated as derived
from, or allocable to, sources outside the United States (whether or not any foreign income taxes
imposed as a result thereof may be credited against Federal, state or local income taxes of
Lessor), or there shall be included in the gross income of Lessor for Federal, state or local
income tax purposes any amount on account of any addition, modification or improvement to or in
respect of any Item of Schedule Equipment made or paid for by Lessee (any such loss, failure to
have or loss of the right to claim, disallowance, recapture, delay in claiming, treatment or
inclusion being hereinafter called a Tax Loss), then, within thirty (30) days of Lessees receipt
of written notice from Lessor that a Tax Loss has occurred, Lessee shall pay to Lessor such lump
sum amount as shall (after deduction of all taxes required to be paid by Lessor in respect of the
receipt or accrual of such payment under the laws of the United States, any state or any political
subdivision thereof or any foreign taxing authority) be necessary to maintain Lessors after-tax
yield and aggregate after-tax cash flows in respect of such Item at levels which are each not less
than the levels of Lessors after-tax yield and aggregate after-tax cash flows that would have been
applicable if such Tax Loss had not occurred, and Lessee shall also pay to Lessor an amount which,
after the deduction of any additional taxes required to be paid by Lessor in respect of the receipt
or accrual of such amount, shall be equal to the amount of any interest, penalty or additions to
tax which may be imposed in connection with such Tax Loss. Lessors after-tax yield and aggregate
after-tax cash flows shall be determined by taking into account (i) the assumptions used by Lessor
in originally calculating rent and Casualty Loss Value percentages, including the assumptions set
forth above (as such assumptions may have been revised pursuant to the next sentence hereof) and
(ii) the Highest Composite Marginal Tax Rate actually in effect during each year from the date of
such original calculations to the date of such Tax Loss, both dates inclusive. In the event Lessor
shall suffer a Tax Loss with respect to which Lessee is required to pay an indemnity hereunder, and
the full amount of such indemnity has been paid or provided for hereunder, the aforesaid
assumptions, without further act of the parties hereto, shall thereupon be and be deemed to be
amended, if and to the extent appropriate, to reflect such Tax Loss. In the event any indemnity
payments shall be paid to Lessor under this Rider with respect to any Item(s) of Schedule
Equipment, the Casualty Loss Values (and, if applicable, Termination
Values) of such Item(s) shall
be adjusted appropriately. The indemnification obligations of Lessee under this Rider shall survive
the expiration or termination of the Lease and the lease term of each Item of Schedule Equipment.
As used herein, the term Lessor will include any corporation consolidated with Lessor for tax
purposes (and, if Lessor is a partnership, the partners thereof) and their respective successor(s)
in interest and assigns. All capitalized terms used herein which are not defined herein shall have
the meaning given to such terms in the Lease.
Dated:
September 19, 2008.
Francis Drilling Fluids, Ltd. (Lessee) |
Capital One, National Association (Lessor) |
|||||||||
By:
|
/s/ Michael G. Francis | By: | ||||||||
Name:
|
Name: |
ELF#10
Tax Indem. Rider
Capital One ELF #10 (04/24/06)
Tax Indem. Rider
Capital One ELF #10 (04/24/06)
TRAC
RIDER BUSINESS USE
Certification by Lessee
This Certification is provided by the undersigned (Lessee) in connection with that certain Master
Lease Agreement dated as of October 2, 2001, with Capital One National Association The Parties
intend and agree that the Lease constitutes a qualified vehicle operating agreement within the
meaning of Section 7701(h) of the Internal Revenue Code of 1986, as now or hereafter amended, and
this Certification is required to be provided pursuant to that Section.
Lessee hereby certifies, under penalty of perjury, that it intends that more than fifty (50%)
percent of the use of the Equipment (as such term is defined in the Lease) is to be in a trade or
business of the Lessee.
Lessee acknowledges that it has been advised that it will not be treated as the owner of the
Equipment for Federal income tax purposes.
IN WITNESS
WHEREOF, Lessee has caused this Certification to be dully executed, under seal, as of
the 19th
of September, 2008.
Francis Drilling Fluids, Ltd. (Lessee) |
Capital One, National Association (Lessor) |
|||||||||
By:
|
/s/ Michael G. Francis | By: | ||||||||
Name:
|
Name: | |||||||||
Title:
|
President | Title: |
Capital One Confidential/Proprietary
CONTINUING GUARANTY
This Continuing Guaranty (this Agreement), is dated September 19, 2008. The undersigned
(hereinafter whether one or more, individually referred to as Guarantor), guarantees the
Indebtedness (hereinafter defined) of Francis, Drilling Fluids LTD. (hereinafter, whether one or more,
individually and collectively referred to as Lessee) to Capital One, National Association, Post
Office Box 61540, New Orleans, Louisiana 70161 (hereinafter Lessor).
FOR VALUE RECEIVED, and in consideration of and for credit and financial accommodations
extended, to be extended or continued, to or for the account of Lessee, the undersigned Guarantor,
whether one or more, hereby jointly, severally and solidarily, agrees as follows:
1. Guarantor hereby irrevocably and unconditionally guarantees to Lessor the prompt, complete and
punctual payment, full performance, observance and satisfaction of any and all loans, extensions
of credit and/or other obligations and duties that Lessee may now and/or in the future owe to
and/or incur in favor and for the benefit of Lessor, including but not limited to the punctual
payment of all rents due and payable and the performance of any and all obligations and duties of
Lessee under any and all Equipment Leasing Agreement(s) by and between Lessor, as Lessor, and
Lessee, as Lessee (any and all such Equipment Leasing Agreement(s), together with any and all
Riders, Schedules, Addenda, Purchase Orders Individual Leasing Records and/or other documentation
ancillary thereto are hereinafter collectively referred to as Lease) whether such indebtedness
and/or obligations are direct or indirect, or by way of assignment, and whether such indebtedness
and/or obligations are absolute or contingent, liquidated or unliquidated, due or to become due,
secured or unsecured and whether now or hereafter arising of any nature or kind whatsoever (with
all of Lessees indebtedness and/or obligations being hereinafter individually and collectively,
referred to under this Agreement as the Indebtedness) GUARANTOR FURTHER AGREES TO INDEMNIFY AND
HOLD HARMLESS LESSOR FROM ANY AND ALL LOSSES, DAMAGES, COSTS AND EXPENSES (INCLUDING, WITHOUT
LIMITATION, COSTS OF COURT AND ATTORNEYS FEES INCURRED BY LESSOR) IN THE EVENT OF ANY DEFAULT BY
GUARANTOR OF HIS OBLIGATIONS UNDER THIS AGREEMENT.
If Lessor agrees, and notwithstanding any other provision contained herein to the contrary, the
maximum principal amount of Lessees Indebtedness in favor of Lessor guaranteed by Guarantor under
this Agreement is limited to Four Hundred Forty Seven Thousand Seven Hundred Seventeen Dollars and
Twenty Cents($447,717 20) DOLLARS. Notwithstanding the limitation on principal set forth above,
interest, costs and attorneys fees under Lessees Indebtedness are fully guaranteed hereunder.
2. Guarantor agrees that Guarantors obligations and liabilities for the prompt and punctual
payment, performance and satisfaction of all of Lessees Indebtedness shall be on a joint and
several and solidary basis along with Lessee to the same degree and extent as if Guarantor had
been or will be a co-borrower, co-principal obligor and/or co-maker of all of Lessees
Indebtedness. In the event that there is more than one guarantor under this Agreement, or in the
event that there are other guarantors, endorsers or sureties of all or any portion of Lessees
Indebtedness. Guarantors obligations and liabilities hereunder shall be on a joint and several
and solidary basis along with such other guarantor or guarantors, endorsers and/or sureties,
Guarantor further agrees that in any right of action which shall accrue to Lessor with respect to
Lessees Indebtedness or under this Agreement, Lessor may, at its option, proceed against Lessee
alone (without having made any prior demand upon Guarantor or having commenced any action against
Guarantor or having obtained or having attempted to satisfy any judgment against Guarantor) or may
proceed against Guarantor and Lessee, jointly, severally and solidarily, or may proceed against
Guarantor alone (without having made any prior demand upon Lessee or having commenced any action
against Lessee or having obtained or having attempted to satisfy any judgment against Lessee). With
the exception only of the defense of prior performance by Lessee (of Lessees Indebtedness which
Guarantor is called upon to perform) or the defense that Lessors claim against Guarantor hereunder
has prescribed or is barred by the applicable statute of limitations or is not within the scope of
Lessees Indebtedness, all defenses of the law of guaranty, indemnification and surety, including,
without limitation, substantive defenses and procedural defenses, are hereby waived and released by
Guarantor. Except as provided in the preceding sentence, under no
circumstances shall the liability
of Guarantor under this Agreement be terminated either with respect to any period of time when the
liability of Lessee under the Lease continues or with respect to any circumstances as to which the
liability of Lessee has not been fully discharged by performance.
3. Guarantors obligations and liabilities under this Agreement shall remain in full force and
effect until such time as all of Lessees Indebtedness has been paid, performed and/or satisfied in
full in principal interest, costs and attorneys fees, or until such time as this Agreement may be
cancelled or otherwise terminated by Lessor under a written cancellation instrument in favor of
Guarantor. Guarantor understands that fluctuations might occur in the aggregate amount of Lessees
Indebtedness, and Guarantor agrees that reductions in the amount of Lessees Indebtedness, even to
zero ($0.00) dollars, prior to Lessors written cancellation of this Agreement, will not constitute
a termination of this Agreement. Guarantor expressly agrees that the validity of this Agreement and
Guarantors obligations hereunder shall in no way be terminated, affected, or impaired by reason of
the assertion by Lessor against Lessee of any of the rights and remedies reserved to Lessor under
the Lease or otherwise at law or in equity as a result of Lessees breach of any of its
obligations under the Lease. Guarantor further covenants and agrees that this Agreement and the
full liability of Guarantor hereunder shall remain and continue in full force and effect
notwithstanding the occurrence of any one or more of the following types of transactions (whether
or not Guarantor shall have received any notice of or consented to any such transaction): (i) any
modification or amendment of the Lease, (ii) any assignment or transfer of the Lease by Lessor,
(iii) any assignment or transfer by Lessee as permitted under the Lease, (iv) any dissolution of
Lessee; or (v) the fact that Lessee may be a party to any merger, consolidation or reorganization.
4. In the event Lessee defaults under any of Lessees Indebtedness in favor of Lessor, Guarantor
unconditionally and absolutely agrees to pay the full then unpaid amount of all of Lessees
Indebtedness guaranteed hereunder, including
ELF#15
Cont. Gty.
Hibernia ELF #15 (2/98)
Cont. Gty.
Hibernia ELF #15 (2/98)
principal, interest, costs and attorneys, fees, and Guarantor hereby makes himself and agrees to be
fully, primarily and personally liable to Lessor for any and all of Lessees Indebtedness. Such
payment or payments shall be made immediately following demand by Lessor at Lessors office
indicated above. Guarantor hereby waives notice of acceptance of this Agreement and of any
Indebtedness to which this Agreement applies or may apply. Guarantor further waives presentment and
demand for payment of Lessees Indebtedness, notice of dishonor and of nonpayment, notice of
intention to accelerate, notice of acceleration, protest, and notice of protest collection or
institution of any suit or other action by Lessor in collection thereof, including any notice of
default in payment thereof or other notice to, or demand for payment thereof on any party. Guarantor
additionally waives any and all rights and division and discussion as provided under Louisiana law,
as well as to the degree applicable, any similar rights as may be provided under the laws of any
other state.
5. If Guarantor should for any reason (i) advance or lend monies to Lessee for any reason
whatsoever, and/or (ii) make any payment for and on behalf of Lessee under any of Lessees
Indebtedness, and/or (iii) make any payment to Lessor in total or partial satisfaction of
Guarantors obligations and liabilities hereunder, Guarantor hereby agrees that any and all rights
that Guarantor may have or acquire to collect or to be reimbursed by Lessee (or by any guarantor
endorser or surety of Lessees indebtedness), shall in all respects be subordinate, inferior and
junior to Lessors rights to collect and enforce payment, performance and satisfaction of Lessees
then remaining Indebtedness, until such time as all of Lessees Indebtedness is fully paid and
satisfied. Guarantor further agrees to refrain from attempting to collect and/or enforce any of
Guarantors aforesaid rights against Lessee (or any other guarantor surety or endorser of Lessees
Indebtedness) arising by way of subrogation or otherwise, until such time as all of Lessees then
remaining indebtedness in favor of Lessor is fully paid and satisfied including principal,
interest, costs and attorneys, fees. Guarantor agrees that Guarantor shall have no right of
subrogation, reimbursement or indemnity, whatsoever and no right of recourse to or with respect to
any assets or properly of Lessee or to any collateral securing the Indebtedness, even upon payment
in full of the Indebtedness.
6. Guarantor further agrees that Lessor may, at its sole option at any time, and from time to time
without the consent of or notice to Guarantor, or any one of them or by any other party, and
without impairing or releasing the obligations of Guarantor under this Agreement (i) discharge or
release any party (including, but not limited to, Lessee or any co-lessee or any guarantor under
this Agreement) who is or may be liable to Lessor for any of Lessees Indebtedness, (ii) sell
exchange, release, surrender, realize upon or otherwise deal with, in any manner and in any order,
any collateral directly or indirectly securing repayment of any of Lessees Indebtedness, (iii)
change the manner, place or terms of payment, or change or extend the time of payment of or renew,
as often and for such periods as Lessor may determine, or alter any of Lessees Indebtedness, (iv)
settle or compromise any of Lessees Indebtedness, (v) subordinate and/or agree to subordinate the
payment of all or any part of Lessees Indebtedness or Lessors security rights in and/or to any
collateral directly or indirectly securing any such indebtedness, to the payment and/or security
rights of any other present and/or future creditors of Lessee, (vi) apply any sums paid to any of
Lessees Indebtedness, with such payments being applied in such priority or with such preferences
as Lessor may determine in its sole discretion, regardless of any amount of Indebtedness of Lessee
remaining outstanding, (vii) take or accept any other security or guaranty for any or all of
Lessees Indebtedness, and/or (viii) enter into deliver, modify, amend or waive compliance with, any
instrument or arrangement evidencing, securing or otherwise affecting, all or any part of Lessees
Indebtedness, including but not limited to any Lease.
In addition, no course of dealing between Lessor and Lessee (or any other guarantor, surety or
endorser of Lessees indebtedness), nor any failure or delay on the part of Lessor to exercise any
of Lessors rights and remedies under any Lease, or any other agreement or agreements by and
between Lessor and Lessee (or any other guarantor, surety or endorser) shall have the effect of
impairing or releasing Guarantors obligations and liabilities to Lessor hereunder or of waiving
any of Lessors rights and remedies under this Agreement or otherwise. The stated rights and
remedies of Lessor under this Agreement against Guarantor with respect to the liability of
Guarantor for Lessees Indebtedness shall be understood as not excluding any other legal or
equitable rights and remedies of Lessor against Guarantor not expressly set forth herein, but
shall be understood as being cumulative of all other legal and equitable rights and remedies of
Lessor not expressly stated herein.
This Agreement and Guarantors obligations and liabilities hereunder shall continue to be
effective, and/or shall automatically and retroactively be reinstated if a release or discharge has
occurred, as the case may be, if at any time any payment or apt hereof to Lessor with respect to
any of Lessees Indebtedness is rescinded or must otherwise be restored by Lessor pursuant to any
insolvency bankruptcy, reorganization, receivership, or any other debt relief granted to Lessee or
to any other party.
7. Guarantor agrees that, in the event Lessor, in its sole discretion, deems it necessary to
commence a collection action to enforce Guarantors obligations and liabilities under this
Agreement, Lessor may commence such a civil action against Guarantor without the necessity of
first (i) attempting to collect Lessees Indebtedness from Lessee or from any other guarantor,
surety or endorser, (ii) attempting to exercise remedies against any collateral directly or
indirectly securing repayment of any of Lessees Indebtedness, or (iii) including Lessee or any
other guarantor, surety or endorser of any of Lessees Indebtedness as an additional party
defendant in such a collection action against Guarantor. In the event Lessor, in its sole
discretion, ever refers this Agreement to an attorney-at-law to enforce Guarantors obligations and
liabilities hereunder, or to protect or preserve Lessors rights hereunder, Guarantor (and each or
them, on a joint, several and solidary basis) agrees to reimburse Lessor for the reasonable fees
of such an attorney Guarantor additionally agrees that Lessor shall not be liable for failure to
use diligence in the collection of any of Lessees Indebtedness or any collateral security
therefor, or in creating or preserving the liability of any person liable on any such Indebtedness
or in creating perfecting or preserving any security for any such Indebtedness.
8. Guarantor represents and warrants to Lessor that (i) Guarantor will receive a direct or indirect
material benefit from the transactions contemplated herein and/or arising out of Lessees
Indebtedness, and (ii) this Agreement when executed and delivered by Guarantor, will constitute a
valid, legal and binding obligation of Guarantor enforceable in accordance with its terms. All
actions and consents required to be performed, obtained and/or satisfied prior to the execution and
delivery of this Agreement, in order for this Agreement to be a valid and binding obligation of
Guarantor in accordance with its terms, have been performed obtained and satisfied in due and
strict compliance with all applicable laws.
Capital One Confidential/Proprietary -2-
9. Upon the request of Lessor, Guarantor will at any time, and from time to time, duly execute and
deliver to Lessor any and all such further instruments and documents, and supply such additional
information, as may be necessary or advisable in the opinion of Lessor, to obtain the full benefits
of this Agreement Guarantor, at his sole cost and expense, further agrees to provide Lessor with
annual financial statements, tax returns and other financial statements and related information at
such frequencies and in such detail as Lessor may reasonably request.
10. This Agreement is for the benefit of Lessor and for such other person or persons as may from
time to time become or be the holders of any of Lessees Indebtedness and this Agreement shall be
transferable. This Agreement and Guarantors obligations and liabilities under this Agreement shall
be binding upon Guarantors successors, heirs, legatees, devisees, administrators, executors and
assigns.
11. As collateral security for the repayment of Guarantors obligations and liabilities under this
Agreement, Guarantor hereby grants Lessor a continuing security interest in any and all funds or
other property that Guarantor may then have on deposit with or in the possession or control of
Lessor and its successors or assigns (with the exception of funds deposited in IRA, pension or
other tax-deferred deposit account).
12. Any notice required under this Agreement will be considered as given to Guarantor on the day
Lessor hand delivers the notice to Guarantor, or deposits such notice in the United States mail,
postage prepaid, to the address of Guarantor stated herein, or to such other address delivered in
writing to Lessor by Guarantor. Nothing in this paragraph shall be deemed to require any notice by
Lessor to Guarantor.
13. No amendment, modification, consent or waiver of any provision of this Agreement, and no consent
to any departure by Guarantor therefrom, shall be effective unless the same shall be in writing
signed by a duly authorized officer of Lessor, and then shall be effective only to the specific
instance and for the specific purpose for which given. Receipt by Lessor of any monetary sum or
acceptance of any obligation of Lessee under the Lease with knowledge of the breach of any
provision of the Lease shall not be deemed a waiver of such breach. Waiver by Lessor of any right
of Lessor against Lessee under the Lease shall not constitute a wavier against Guarantor or in any
other way inure to the benefit of Guarantor.
14. This Agreement shall be governed and construed in accordance with the laws of the State of
Louisiana and all matters relating to this Agreement and the covenants, duties and obligations of
Guarantor under this Agreement shall be governed by the laws of the State of Louisiana.
15. If any provision of this Agreement is held to be illegal, invalid or unenforceable under
present or future laws effective during the term hereof, such provision shall be fully severable.
16. GUARANTOR AND LESSOR HEREBY WAIVE THE RIGHT TO A JURY TRIAL IN ANY ACTION, PROCEEDING OR COUNTER
CLAIM BROUGHT BY EITHER AGAINST THE OTHER AND AGREE THAT VENUE FOR ANY ACTION SHALL BE LIMITED TO
THE CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS, STATE OF LOUISIANA, OR THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF LOUISIANA AT LESSORS OPTION.
17. Guarantor agrees that in the event Lessee shall become insolvent or shall be adjudicated
bankrupt, or shall file a petition for reorganization, arrangement or other relief under any
present or future provisions of the Federal Bankruptcy Code, as amended, or if such a petition is
filed by creditors of Lessee, or if Lessee shall seek judicial readjustment of the rights of its
creditors under any present or future federal or state law, or if a receiver for all or a part of
Lessees property and assets is appointed by any state or federal court, no such proceeding or
action taken therein shall modify, diminish, or in any way affect the liability of Guarantor under
this Agreement, and no rejection and/or termination of the Lease in any of the proceedings
referred to in this paragraph 17 shall be effective to release and/or terminate the continuing
liability of Guarantor to Lessor under this Agreement with respect to Lessees Indebtedness
unaffected by any such rejection and/or termination in such proceedings.
18. All past due amounts owing by Guarantor to Lessor hereunder shall bear interest, until paid, at
the maximum rate of
non-usurious interest allowed from time to time by law as is now, or to the extent allowed by law, as may hereafter be, in effect.
non-usurious interest allowed from time to time by law as is now, or to the extent allowed by law, as may hereafter be, in effect.
19. Guarantor recognizes that Lessor is relying upon this Agreement and the undertakings of
Guarantor hereunder to enter into the Lease and carry out the transactions contemplated by the
Lease, and further recognizes that the execution and delivery of this Agreement is a material
inducement to Lessor to enter into the Lease and carry out the transactions contemplated by the
Lease. Guarantor hereby acknowledges that there are no conditions to the full effectiveness of this
Agreement.
IN WITNESS WHEREOF, Guarantor has executed this Agreement in favor of Lessor on the day,
month and year first written above.
GUARANTOR: | |||||||
/s/ Michael G. Francis |
|||||||
SSN: xxx-xx-2806 | |||||||
Address: 240 Jasmine Rd. | |||||||
Crowley, LA 70527 |
Capital
One Confidential/Proprietary - 3 -