Exhibit 10.4
CORPORATE GUARANTY
Date:
May 30, 2008
General
Electric Capital Corporation
11175 Cicero Drive Suite 600
Alpharetta, GA 30022
To induce you to enter into, purchase
or otherwise acquire, now or at any time hereafter, any promissory
notes, security agreements, chattel mortgages, pledge agreements,
conditional sale contracts, lease agreements, and/or any other
documents or instruments evidencing, or relating to, any lease,
loan, extension of credit or other financial accommodation
(collectively “Account Documents” and each an
“Account Document”) to PUMPCO, Inc, a
corporation organized and existing under the laws of the State
of Texas ( “Customer” ), but without in any way
binding you to do so, the undersigned, for good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, does hereby guarantee to you, your successors and
assigns, the due regular and punctual payment of any sum or sums of
money which the Customer may owe to you now or at any time
hereafter, whether evidenced by an Account Document, on open
account or otherwise, and whether it represents principal,
interest, rent, late charges, indemnities, an original balance, an
accelerated balance, liquidated damages, a balance reduced by
partial payment, a deficiency after sale or other disposition of
any leased equipment, collateral or security, or any other type of
sum of any kind whatsoever that the Customer may owe to you now or
at any time hereafter, and does hereby further guarantee to you,
your successors and assigns, the due, regular and punctual
performance of any other duty or obligation of any kind or
character whatsoever that the Customer may owe to you now or at any
time hereafter (all such payment and performance obligations being
collectively referred to as “Obligations” ). The
undersigned does hereby further guarantee to pay upon demand all
losses, costs, reasonable attorneys’ fees and expenses
which may be suffered by you by reason of Customer’s default
or default of the undersigned. As used in this Guaranty,
“you” shall mean General Electric Capital Corporation
and all its subsidiaries, parent entities, successors and
assigns.
This Guaranty is a guaranty of prompt
payment and performance (and not merely a guaranty of collection).
Nothing herein shall require you to first seek or exhaust any
remedy against the Customer, its successors and assigns, or any
other person obligated with respect to the Obligations, or to first
foreclose, exhaust or otherwise proceed against any leased
equipment, collateral or security which may be given in connection
with the Obligations. It is agreed that you may, upon any breach or
default of the Customer, or at any time thereafter, make demand
upon the undersigned and receive payment and performance of the
Obligations, with or without notice or demand for payment or
performance by the Customer, its successors or assigns, or any
other person. Suit may be brought and maintained against the
undersigned, at your election, without joinder of the Customer or
any other person as parties thereto. The obligations of each
signatory to the Guaranty, and each other guarantor of the
Obligations, shall be joint and several.
The undersigned agrees that its
obligations under this Guaranty shall be primary, absolute,
continuing and unconditional, irrespective of and unaffected by any
of the following actions or circumstances (regardless of any notice
to or consent of the undersigned) and the undersigned hereby
affirmatively and irrevocably waives as a defense to the payment or
performance of its obligations hereunder each and every one of the
following defenses: (a) the genuineness, validity, regularity
and enforceability of the Account Documents or any other document;
(b) any extension, renewal, amendment, change, waiver or other
modification of the Account Documents or any other document;
(c) the absence of, or delay in, any action to enforce the
Account Documents, this Guaranty or any other document;
(d) your failure or delay in obtaining any other guaranty of
the Obligations (including, without limitation, your failure to
obtain the signature of any other guarantor hereunder);
(e) the release of, extension of time for payment or
performance by, or any other indulgence granted to the Customer or
any other person with respect to the Obligations by operation of
law or otherwise; (f) the existence, value, condition, loss,
subordination or release (with or without substitution) of, or
failure to have title to or perfect and maintain a security
interest in, or the time, place and manner of any sale or other
disposition of any leased equipment, collateral or security given
in connection with the Obligations, or any other impairment
(whether intentional or negligent, by operation of law or
otherwise) of the rights of the undersigned; (g) the
Customer’s voluntary or involuntary bankruptcy, assignment
for the benefit of creditors, reorganization, or similar
proceedings affecting the Customer or any of its assets;
(h) any merger or consolidation of Customer, any change in
control of Customer or any sale of all or substantially all of the
assets of Customer; or (i) any other action or circumstances
which might otherwise constitute a legal or equitable discharge or
defense of an obligor, surety or guarantor.
This Guaranty, the Account Documents
and the Obligations may be assigned by you, without the consent of
the undersigned. The undersigned agrees that if it receives written
notice of an assignment from you, the undersigned will pay all
amounts due hereunder to such assignee or as instructed by you. The
undersigned also agrees to confirm in writing receipt of the notice
of assignment as may be reasonably requested by assignee. The
undersigned hereby waives and agrees not to assert against any such
assignee any of the defenses set forth in the immediate preceding
paragraph.
This Guaranty may be terminated upon
delivery to you (at your address shown above) of a written
termination notice from the undersigned. However, as to all
Obligations (whether matured, unmatured, absolute, contingent or
otherwise) incurred by the Customer prior to your receipt of such
written termination notice (and regardless of any subsequent
amendment, extension or other modification which may be made with
respect to such Obligations), this Guaranty shall nevertheless
continue and remain undischarged until all such Obligations are
indefeasibly paid and performed in full.
The undersigned agrees that this
Guaranty shall remain in full force and effect or be reinstated (as
the case may be) if at any time payment or performance of any of
the Obligations (or any part thereof) is rescinded, reduced or must
otherwise be restored or returned by you, all as though such
payment or performance had not been made. If, by reason of any
bankruptcy, insolvency or similar laws affecting the rights of
creditors, you shall be prohibited from exercising any of your
rights or remedies against the Customer or any other person or
against any property, then, as between you and the undersigned,
such prohibition shall be of no force and effect, and you shall
have the right to make demand upon, and receive payment from, the
undersigned of all amounts and other sums that would be due to you
upon a default with respect to the Obligations.
Notice of acceptance
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