Exhibit 10.4
GUARANTY
New
York, New
York
November 20, 2007
FOR
VALUE RECEIVED, and in consideration of note purchases from,
loans made or to be made or credit otherwise extended or to be
extended by the Purchasers (as defined below) to or for the
account of Gulf Coast Oil Corporation, a Delaware corporation
(the “ Company ”), from time to time and at
any time and for other good and valuable consideration and to
induce the Purchasers, in their discretion, to purchase such
notes, make such loans or other extensions of credit and to
make or grant such renewals, extensions, releases of
collateral or relinquishments of legal rights as the Creditor
Parties (as defined below) may deem advisable, each of the
undersigned (and each of them if more than one, the liability
under this Guaranty being joint and several) (jointly and
severally referred to as “ Guarantors ” or
“ the undersigned ”) unconditionally
guaranties to the Creditor Parties, their successors,
endorsees and assigns the prompt payment when due (whether by
acceleration or otherwise) of all present and future
obligations and liabilities of any and all kinds of the
Company to the Creditor Parties and of all instruments of any
nature evidencing or relating to any such obligations and
liabilities upon which the Company or one or more parties and
the Company is or may become liable to the Creditor Parties,
whether incurred by the Company as maker, endorser, drawer,
acceptor, guarantors, accommodation party or otherwise, and
whether due or to become due, secured or unsecured, absolute
or contingent, joint or several, and however or whenever
acquired by the Creditor Parties, whether arising under, out
of, or in connection with (i) that certain Securities Purchase
Agreement dated as of the date hereof (as amended, restated,
modified and/or supplemented from time to time, the “
Securities Purchase Agreement ”) by and between
the Company, the purchasers named therein or which thereafter
become a party thereto (each a “ Purchaser
” and collectively, the “ Purchasers
”) and LV Administrative Services, Inc., as
administrative and collateral agent for the Purchasers (in
such capacity, the “ Agent ”) (the
Purchasers and the Agent, each a “ Creditor Party
” and collectively, the “ Creditor Parties
”) and (ii) each Related Agreement referred to in the
Securities Purchase Agreement (the Securities Purchase
Agreement and each Related Agreement, as each may be amended,
modified, restated or supplemented from time to time, are
collectively referred to herein as the “
Documents ”), or any documents, instruments or
agreements relating to or executed in connection with the
Documents or any documents, instruments or agreements referred
to therein or otherwise, or any other indebtedness,
obligations or liabilities of the Company to the Creditor
Parties, whether now existing or hereafter arising, direct or
indirect, liquidated or unliquidated, absolute or contingent,
due or not due and whether under, pursuant to or evidenced by
a note, agreement, guaranty, instrument or otherwise (all of
which are herein collectively referred to as the “
Obligations ”), and irrespective of the
genuineness, validity, regularity or enforceability of such
Obligations, or of any instrument evidencing any of the
Obligations or of any collateral therefor or of the existence
or extent of such collateral, and irrespective of the
allowability, allowance or disallowance of any or all of the
Obligations in any case commenced by or against the Company
under Title 11, United States Code, including, without
limitation, obligations or indebtedness of the Company for
post-petition interest, fees, costs and charges that would
have accrued or been added to the Obligations but for the
commencement of such case. Terms not otherwise
defined herein shall have the meaning assigned such terms in
the Securities Purchase Agreement. In furtherance
of the foregoing, the undersigned hereby agrees as
follows:
1.
No Impairment . The Creditor Parties may at
any time and from time to time, either before or after the
maturity thereof, without notice to or further consent of the
undersigned, extend the time of payment of, exchange or
surrender any collateral for, renew or extend any of the
Obligations or increase or decrease the interest rate thereon,
or any other agreement with the Company or with any other
party to or person liable on any of the Obligations, or
interested therein, for the extension, renewal, payment,
compromise, discharge or release thereof, in whole or in part,
or for any modification of the terms thereof or of any
agreement between any Creditor Party and the Company or any
such other party or person, or make any election of rights the
Creditor Parties may deem desirable under the United States
Bankruptcy Code, as amended, or any other federal or state
bankruptcy, reorganization, moratorium or insolvency law
relating to or affecting the enforcement of creditors’
rights generally (any of the foregoing, an “
Insolvency Law ”) without in any way impairing or
affecting this Guaranty. This Guaranty shall be
effective regardless of the subsequent incorporation, merger
or consolidation of the Company, or any change in the
composition, nature, personnel or location of the Company and
shall extend to any successor entity to the Company, including
a debtor in possession or the like under any Insolvency
Law.
2.
Guaranty Absolute . Subject to Section 5(c)
hereof, each of the undersigned jointly and severally
guarantees that the Obligations will be paid strictly in
accordance with the terms of the Documents and/or any other
document, instrument or agreement creating or evidencing the
Obligations, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such
terms or the rights of the Company with respect
thereto. Guarantors hereby knowingly accept the
full range of risk encompassed within a contract of
“continuing guaranty” which risk includes the
possibility that the Company will contract additional
indebtedness, obligations and liabilities for which Guarantors
may be liable hereunder after the Company’s financial
condition or ability to pay its lawful debts when they fall
due has deteriorated, whether or not the Company has properly
authorized incurring such additional indebtedness, obligations
and liabilities. The undersigned acknowledge that
(i) no oral representations, including any representations to
extend credit or provide other financial accommodations to the
Company, have been made by any Creditor Party to induce the
undersigned to enter into this Guaranty and (ii) any extension
of credit to the Company shall be governed solely by the
provisions of the Documents. The liability of each
of the undersigned under this Guaranty shall be absolute and
unconditional, in accordance with its terms, and shall remain
in full force and effect without regard to, and shall not be
released, suspended, discharged, terminated or otherwise
affected by, any circumstance or occurrence whatsoever,
including, without limitation: (a) any waiver, indulgence,
renewal, extension, amendment or modification of or addition,
consent or supplement to or deletion from or any other action
or inaction under or in respect of the Documents or any other
instruments or agreements relating to the Obligations or any
assignment or transfer of any thereof, (b) any lack of
validity or enforceability of any Document or other documents,
instruments or agreements relating to the Obligations or any
assignment or transfer of any thereof, (c) any furnishing of
any additional security to the Creditor Parties or their
assignees or any acceptance thereof or any release of any
security by the Creditor Parties or their assignees, (d) any
limitation on any party’s liability or obligation under
the Documents or any other documents, instruments or
agreements relating to the Obligations or any assignment or
transfer of any thereof or any invalidity or unenforceability,
in whole or in part, of any such document, instrument or
agreement or any term thereof, (e) any bankruptcy,
insolvency, reorganization, composition, adjustment,
dissolution, liquidation or other like proceeding relating to
the Company, or any action taken with respect to this Guaranty
by any trustee or receiver, or by any court, in any such
proceeding, whether or not the undersigned shall have notice
or knowledge of any of the foregoing, (f) any exchange,
release or nonperfection of any collateral, or any release, or
amendment or waiver of or consent to departure from any
guaranty or security, for all or any of the Obligations or (g)
any other circumstance which might otherwise constitute a
defense available to, or a discharge of, the
undersigned. Any amounts due from the undersigned
to the Creditor Parties shall bear interest until such amounts
are paid in full at the highest rate then applicable to the
Obligations. Obligations include post-petition
interest whether or not allowed or
allowable.
3.
Waivers .
(a) This
Guaranty is a guaranty of payment and not of
collection. The Creditor Parties shall be under no
obligation to institute suit, exercise rights or remedies or
take any other action against the Company or any other person
or entity liable with respect to any of the Obligations or
resort to any collateral security held by it to secure any of
the Obligations as a condition precedent to the undersigned
being obligated to perform as agreed herein and each of the
Guarantors hereby waives any and all rights which it may have
by statute or otherwise which would require the Creditor
Parties to do any of the foregoing. Each of the
Guarantors further consents and agrees that the Creditor
Parties shall be under no obligation to marshal any assets in
favor of Guarantors, or against or in payment of any or all of
the Obligations. The undersigned hereby waives all
suretyship defenses and any rights to interpose any defense,
counterclaim or offset of any nature and description which the
undersigned may have or which may exist between and among any
Creditor Party, the Company and/or the undersigned with
respect to the undersigned’s obligations under this
Guaranty, or which the Company may assert on the underlying
debt, including but not limited to failure of consideration,
breach of warranty, fraud, payment (other than cash payment in
full of the Obligations), statute of frauds, bankruptcy,
infancy, statute of limitations, accord and satisfaction, and
usury.
(b) Each
of the undersigned further waives (i) notice of the acceptance
of this Guaranty, of the making of any such loans or
extensions of credit, and of all notices and demands of any
kind to which the undersigned may be entitled, including,
without limitation, notice of adverse change in the
Company’s financial condition or of any other fact which
might materially increase the risk of the undersigned and (ii)
presentment to or demand of payment from anyone whomsoever
liable upon any of the Obligations, protest, notices of
presentment, non-payment or protest and notice of any sale of
collateral security or any default of any sort.
(c) Notwithstanding
any payment or payments made by the undersigned hereunder, or
any setoff or application of funds of the undersigned by any
Creditor Party, the undersigned shall not be entitled to be
subrogated to any of the rights of such Creditor Party against
the Company or against any collateral or guarantee or right of
offset held by such Creditor Party for the payment of the
Obligations, nor shall the undersigned seek or be entitled to
seek any contribution or reimbursement from the Company in
respect of payments
made by the undersigned hereunder, until all amounts owing to
the Creditor Parties by the Company on account of the
Obligations are indefeasibly paid in full and the
Purchasers’ obligation to extend credit pursuant to the
Documents has been irrevocably terminated. If,
notwithstanding the foregoing, any amount shall be paid to the
undersigned on account of such subrogation rights at any time
when all of the Obligations shall not have been paid in full
and the Purchasers’ obligation to extend credit pursuant
to the Documents shall not have been terminated, such amount
shall be held by the undersigned in trust for the Creditor
Parties, segregated from other funds of the undersigned, and
shall forthwith upon, and in any event within two (2) business
days of, receipt by the undersigned, be turned over to the
Agent in the exact form received by the undersigned (duly
endorsed by the undersigned to the Agent, if required), to be
applied
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