exv10w1






Exhibit 10.1




FORBEARANCE AGREEMENT




     This FORBEARANCE AGREEMENT (this “Forbearance Agreement”) is entered into as of
September 29, 2011 (the “Forbearance Effective Date”), by and among (i) NYTEX Energy Holdings, Inc.
(“NYTEX Holdings”), (ii) NYTEX FDF Acquisition, Inc.
(“NYTEX Acquisition”), (iii) WayPoint Nytex,
LLC (“WayPoint”), (iv) New Francis Oaks, LLC
(“New Francis”), and (v) Francis Drilling Fluids,
Ltd. and any of its subsidiaries (collectively, “FDF”). Where applicable, NYTEX Holdings, NYTEX
Acquisition, WayPoint, New Francis and FDF are collectively referred
to as the “Parties” or each
“Party.” Capitalized terms used and not otherwise defined herein have the meanings assigned to them
in the Preferred Stock and Warrant Purchase Agreement, dated” as of November 23, 2010, among NYTEX
Holdings, NYTEX Acquisition and WayPoint, as amended from time to time (collectively, the
“WayPoint Purchase Agreement”) and all related agreements and documents, each as amended
from time to time (collectively, together with the WayPoint Purchase
Agreement, the “WayPoint
Purchase Documents”).



     WHEREAS, (a) Events of Default have occurred under the WayPoint Purchase Documents (each such
Events of Default, a “Current Event of Default” and, collectively, the “Current Events
of Default”) including, without limitation, the Current Events of Default set forth in the
letter dated April 14, 2011, from WayPoint to NYTEX Holdings; and (b) pursuant to the letter from
WayPoint to NYTEX Holdings dated May 4, 2011 (the “Put
Election Notice”), as a result of the
Current Events of Default, WayPoint has demanded that, pursuant to the WayPoint Purchase
Agreement, NYTEX Holdings repurchase the Warrants, the shares of Senior Series A Redeemable
Preferred Stock of NYTEX Acquisition and the one share of Series B Redeemable Preferred Stock of
NYTEX Holdings held by WayPoint for an aggregate purchase price of $30,000,000, and NYTEX Holdings
has failed to timely make such repurchase, which failure is an additional Current Event of
Default.



     WHEREAS, upon the request of NYTEX Holdings, WayPoint has agreed, subject to the terms and
conditions set forth herein, to forbear during the Forbearance Period (as defined below) from
exercising rights and remedies under the WayPoint Purchase Documents with respect to the Current
Events of Default and, as additional consideration, subject to the terms and conditions set forth
herein, grant such other and further relief as expressly set forth in this Forbearance Agreement;
and



     NOW, THEREFORE, in consideration of the foregoing, the terms, covenants and conditions
contained herein and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the Parties hereto agree as follows:



     SECTION 1. Forbearance; Forbearance Default Rights and Remedies.



     (a) Acknowledgment of Current Events of Default and Entitlement to Exercise Rights
and Remedies. NYTEX Holdings, NYTEX Acquisition, New Francis and FDF acknowledge and agree
that (i) the Current Events of Default have occurred and are continuing and (ii) but for the
terms of this Forbearance Agreement, WayPoint may, if it so elects, exercise its respective
rights and remedies in respect of the Current Events of Default.



1









 





     (b) The Forbearance. Effective upon the Forbearance Effective Date (as hereinafter
defined), WayPoint agrees that until the occurrence of the Forbearance Termination Date (as
hereinafter defined), WayPoint will forbear from exercising all of its rights and remedies
under the WayPoint Purchase Documents or otherwise existing pursuant to any other agreement
entered into in connection with the WayPoint Purchase Agreement, by operation of law or
otherwise against NYTEX Holdings, NYTEX Acquisition, New Francis and FDF solely with
respect to the Current Events of Default. NYTEX Holdings, NYTEX Acquisition, New Francis
and FDF acknowledge and agree that each Current Event of Default constitutes an Event of
Default upon which action could be taken but for the forbearance described herein.



     (c) Effect of Forbearance Termination. From and after the Forbearance Termination
Date, the agreement of WayPoint to forbear as set forth in Section 1(b) shall immediately
terminate without the requirement of any demand, presentment, protest, or notice of any kind.



     (d) Forbearance Termination Date means the earlier of:




	 	i.	 	the occurrence of a Forbearance Default (as defined below);or
	 
	 	ii.	 	12:00 a.m. (New York City time) 60 days after the Forbearance Effective
Date.





     (e) Forbearance Period means the period beginning on the Forbearance Effective
Date and ending on the Forbearance Termination Date



     (f) Forbearance Default. A Forbearance Default shall occur, immediately and
without notice, if one or more of the following shall occur:




	 	i.	 	the occurrence of any Default or Event of Default other than the Current
Events of Default (without taking into account any grace or cure periods);
	 
	 	ii.	 	any creditor of any Party (other than WayPoint), or any of such creditor’s
assignees, agents or designees, including, without limitation, PNC Bank,
National Association (“PNC”) pursuant to its senior revolving credit and
term loan facility (the “Senior Facility”), commences any enforcement
action, exercises or seeks to exercise any of its or their respective rights
or remedies or takes or seeks to take any action that renders compliance by
NYTEX Holdings, NYTEX Acquisition, New Francis and FDF with this Forbearance
Agreement impossible, or that otherwise materially impairs or materially
adversely affects WayPoint’s ability to exercise its rights or remedies;
	 
	 	iii.	 	the failure by NYTEX Holdings to, no later than 35 days after the
Forbearance Effective Date, either (x) identify a lead investor in
connection with a proposed recapitalization of NYTEX Holdings, NYTEX
Acquisition, New Francis and FDF that would, among other things, fund the
purchase of the WayPoint Securities contemplated by Sections 3(a)(xiv) and
3(a)(xv) hereof, or (y) provide WayPoint with evidence of





2









 





	 	 	 	progress toward such a proposed recapitalization that is satisfactory to WayPoint in
its sole discretion;
	 
	 	iv.	 	the commencement by one or more of NYTEX Holdings, NYTEX
Acquisition, New Francis and FDF of a case under title 11 of the United States Code or
any other act that seeks relief under any comparable bankruptcy or insolvency regime
proceeding, or the commencement against one or more of NYTEX Holdings, NYTEX
Acquisition, New Francis and FDF of any such case or proceeding;
	 
	 	v.	 	the failure of any of NYTEX Holdings, NYTEX Acquisition, New Francis
and FDF to timely comply with any term, condition or covenant set forth in this
Forbearance Agreement;
	 
	 	vi.	 	no later than one (1) Business Day after the Forbearance Effective Date,
FDF shall pay not less than $100,000.00 of the reasonable out-of-pocket fees, costs and
expenses incurred by WayPoint both on behalf of itself in connection with the Current
Events of Default and on behalf of NYTEX Acquisition, New Francis and FDF, including
the reasonable fees, disbursements and other charges of their counsel, consultants and
advisors to date, and the remaining amount of such fees, costs and expenses to be paid
no later than 14 days after the Forbearance Effective Date;
	 
	 	vii.	 	any change in the members of the Board of Directors of and NYTEX
Acquisition, New Francis and FDF;
	 
	 	viii.	 	the failure of the NYTEX Acquisition, New Francis and FDF to retain no
later than three (3) Business Days after the Forbearance Effective Date a Business
Improvement Officer or financial and operational consultant with
executive officer
authority (the “BIO”) and related personnel reasonably acceptable to WayPoint (it being
understood that firm for such personnel will be PriceWaterhouseCoopers LLP and that
James F. Reed from that firm as BIO is acceptable to all Parties) pursuant to a scope
of engagement and otherwise on terms and conditions (in each case) reasonably
acceptable to NYTEX Acquisition, New Francis, FDF and WayPoint, and WayPoint and its
representatives shall be granted direct, regular access to the BIO and all reasonably
requested information related to the performance of the BIO’s duties; and
	 
	 	ix.	 	the failure of any representation or warranty made by any of NYTEX
Holdings, NYTEX Acquisition, New Francis and FDF under this Forbearance Agreement to
be true and complete as of the date when made or any other breach of such
representation or warranty.





3









 





     SECTION
2. Conditions to Effectiveness. This Forbearance Agreement shall not be
effective unless WayPoint shall have received duly executed counterparts of this Forbearance
Agreement from each of the Parties.



     SECTION
3. Representations, Warranties and Covenants.



     (a) To induce WayPoint to execute and deliver this Forbearance Agreement, each of NYTEX
Holdings, NYTEX Acquisition, New Francis and FDF hereby represents,
warrants and covenants that:




	 	i.	 	such Party has the power, and has been duly authorized by all requisite
action, to execute and deliver this Forbearance Agreement and the other
documents and agreements executed and delivered in connection herewith to
which it is a party;
	 
	 	ii.	 	this Forbearance Agreement has been duly executed by such Party and the
other documents and agreements executed and delivered in connection herewith
to which any Party is a party have been duly executed and delivered by such
Party, as applicable;
	 
	 	iii.	 	this Forbearance Agreement is the legal, valid and binding obligation of
such Party and the other documents and agreements executed or delivered in
connection herewith to which such Party is a party are the legal, valid and
binding obligations of such Party, in each case enforceable against such
Party in accordance with their respective terms, except as such
enforceability may be limited by any applicable bankruptcy, reorganization,
moratorium or similar laws of general applicability affecting the
enforcement of creditors’ rights and subject to general equitable principles
which may limit the right to obtain equitable remedies;
	 
	 	iv.	 	the execution, delivery and performance of this Forbearance Agreement
and the other documents and agreements executed and delivered in connection
therewith do not and will not (i) violate any law, rule, regulation or court
order to which such Party is subject or (ii) conflict with or result in a
breach of the certificate or articles of incorporation, certificate of
formation, limited liability company agreement or by-laws (or equivalent
organizational documents) of such Party or any other agreement or instrument
to which it is party or by which the properties of such Party is bound;
	 
	 	v.	 	as of the Forbearance Effective Date, other than the Current Events of
Default, no Default or Event of Default has occurred or is continuing under
any WayPoint Purchase Document;
	 
	 	vi.	 	such Party shall immediately, but in any event within twenty four (24)
hours, provide written notice to WayPoint of any notice from or action by
any creditor (other than WayPoint) regarding an event or circumstance






4











 






	 	 	 	that may adversely impact performance of such Party under this Forbearance
Agreement;
	 
	 	vii.	 	Without limiting the rights of WayPoint or WayPoint’s legal and financial
advisors under the WayPoint Purchase Documents, such Party shall, upon reasonable
notice, at reasonable times and for reasonable duration, (a) give WayPoint’s legal
and financial advisors reasonable access, during normal business hours, to such
Party’s books and records, offices, properties, officers, employees, accountants,
auditors, counsel and other representatives; (b) furnish to WayPoint’s legal and
financial advisors such financial, operating and property-related data and other
information as such persons may reasonably request; and (c) request that its
employees and legal and financial advisors use commercially reasonable efforts to
cooperate with WayPoint’s legal and financial advisors in respect of the
aforementioned clauses (a) and (b);
	 
	 	viii.	 	such Party shall provide Harbor View Advisors, LLC, (“HVA”),
(a) reasonable access, during normal business hours, to such Party’s books and
records, offices, properties, officers, employees, accountants, auditors, counsel and
other representatives; (b) financial, operating and property-related data and other
information as HVA may reasonably request; and (c) request that its employees and
legal and financial advisors use commercially reasonable efforts to cooperate with
HVA in respect of the aforementioned clauses (a) and (b);
	 
	 	ix.	 	commencing on the Forbearance Effective Date, such Party shall in good
faith reasonably cooperate with HVA to prepare NYTEX Acquisition, New Francis and FDF
for a Transaction, (as that term is defined in the engagement letter between FDF and
HVA dated July 19, 2011, hereinafter the “HVA Engagement Letter”);
	 
	 	x.	 	by no later than October 15, 2011, such Party shall (a) establish an
electronic data room accessible from the Internet with all relevant documents and data
necessary for the Transaction and (b) provided all information necessary for the
preparation of offering materials by HVA for a Transaction;
	 
	 	xi.	 	such Party agrees to pay HVA’s reasonable fees and expenses, including,
without limitation, HVA’s “break-up” fee if NYTEX Holdings consummates the proposed
recapitalization of NYTEX Holdings, NYTEX Acquisition, New Francis and FDF that
would, among other things, fund the purchase of the WayPoint Securities contemplated
by Sections 3(a)(xiv) and 3(a)(xv) hereof;
	 
	 	xii.	 	such Party agrees to provide WayPoint with five (5) Business Days’ prior
notice of and an opportunity to consult regarding their intent to (a) undertake any
transaction outside the ordinary course of business or




5









 






	 	 	 	(b) enter into, extend, renew, amend, or effectuate any contract or
agreement, if entering into such contract or agreement, or if such
extension, renewal, or amendment thereof will result in: (a) such Party
incurring an obligation in an amount greater than $100,000; or (b) an
obligation of the Borrower of longer than one year in duration;
	 
	 	xiii.	 	such party shall cooperate with the BIO, who shall report to the Boards of
Directors of NYTEX Acquisition, New Francis and FDF;
	 
	 	xiv.	 	By no later than 60 days after the Forbearance Effective Date (the
“Closing Date”), at a closing (the “Closing”) such Party
shall purchase or cause to be purchased all securities of NYTEX Holdings,
NYTEX Acquisition, New Francis and FDF owned by WayPoint, including,
without limitation, the following (collectively, the “WayPoint
Securities”): (a) 20,750 shares of 14% Senior Series A Redeemable
Preferred Stock of NYTEX Acquisition, (b) Common Stock Purchase Warrant
dated November 23, 2010 originally with respect to 18,491,190 shares of
Common Stock of NYTEX Holdings, (c) Common Stock Purchase Warrant dated
November 23, 2010 originally with respect to 19,809,245 shares of Common
Stock of NYTEX Holdings, and (d) 1 share of Series B Redeemable Preferred
Stock of NYTEX Holdings; and
	 
	 	xv.	 	The aggregate purchase price for all of the WayPoint Securities would
equal the sum of (a) $32,371,263.89 as of September 30, 2011, plus interest
accruing at the default rate as set forth in the Waypoint Purchase
Documents from that date, which amount would be payable in cash at the
Closing; and (b) in addition, at the closing, NYTEX Holdings, NYTEX
Acquisition, New Francis and FDF will pay or reimburse WayPoint for all
reasonable legal fees and disbursements incurred by WayPoint, on behalf of
itself and on behalf of NYTEX Acquisition, New Francis and FDF in
connection with the enforcement, attempted enforcement or preservation of
any of WayPoint’s rights or remedies under the WayPoint Purchase Documents
(collectively, the “Purchase Price”).





     (b) To induce NYTEX Holdings, NYTEX Acquisition, New Francis and FDF to execute and deliver
this Forbearance Agreement, WayPoint hereby represents and warrants and covenants that:




	 	i.	 	It has the power, and has been duly authorized by all requisite action, to
execute and deliver this Forbearance Agreement and the other documents and
agreements executed and delivered in connection herewith to which it is a
party;
	 
	 	ii.	 	this Forbearance Agreement has been duly executed by WayPoint and the
other documents and agreements executed and delivered in connection
herewith to which WayPoint is a party have been duly executed and delivered
by WayPoint;




6









 






	 	iii.	 	this Forbearance Agreement is the legal, valid and binding obligation of
WayPoint and the other documents and agreements executed or delivered in connection
herewith to which WayPoint is a party are the legal, valid and binding obligations of
WayPoint, in each case enforceable against WayPoint in accordance with its respective
terms, except as such enforceability may be limited by any applicable bankruptcy,
reorganization, moratorium or similar laws of general applicability affecting the
enforcement of creditors’ rights and subject to general equitable principles which
may limit the right to obtain equitable remedies;
	 
	 	iv.	 	the execution, delivery and performance of this Forbearance Agreement
and the other documents and agreements executed and delivered in connection therewith
do not and will not (i) violate any law, rule, regulation or court order to which
WayPoint is subject or (ii) conflict with or result in a breach of the certificate or
articles of incorporation, certificate of formation, limited liability company
agreement or by-laws (or equivalent organizational documents) of WayPoint or any
other agreement or instrument to which it is party or by which the properties of
WayPoint are bound;
	 
	 	v.	 	WayPoint has not transferred, pledged, or otherwise disposed of, until the
earlier to occur of the Closing or the termination of the Forbearance Period, WayPoint
will not transfer, pledge or otherwise dispose of, any of its interests in connection
with any of NYTEX Holdings, NYTEX Acquisition, New Francis and FDF or any of their
direct or indirect subsidiaries except to a party agreeing to be bound by this
Forbearance Agreement;
	 
	 	vi.	 	until the earlier to occur of the Closing or the termination of the
Forbearance Period, WayPoint would forbear from (a) exercising either of their
warrants, (b) directly or indirectly effecting any change in the officers or directors
of any of NYTEX Holdings, (c) exercising or otherwise pursuing the enforcement of any
of WayPoint’s put, redemption or similar rights with respect to any of the WayPoint
Securities, (d) taking any further action to enforce any of its rights under any
WayPoint Purchase Document with respect to any Current Events of Default with respect
to NYTEX Holdings, (e) having HVA actively and publicly market NYTEX Acquisition, New
Francis and FDF to any third party in furtherance of a Transaction;
	 
	 	vii.	 	until the earlier to occur of the Closing or the termination of the
Forbearance Period, notwithstanding anything to the contrary contained in the
WayPoint Purchase Agreement or any other WayPoint Purchase Document, such Party will
have the right to purchase or cause to be purchased the WayPoint Securities for the
Purchase Price;




7









 






	 	viii.	 	So long as there has been no termination of the Forbearance Period, at any
Closing, WayPoint would deliver customary documentation evidencing, among
other things, their organization, good standing and authorization with
respect to the Closing, and WayPoint would also deliver executed stock
powers, assignments and other customary transfer documents necessary to
effect the sale and assignment of the WayPoint Securities;
	 
	 	ix.	 	Contemporaneous with any Closing, WayPoint would cause to be
delivered resignations from each individual at the time serving as an
officer or director of either of NYTEX Holdings, NYTEX Acquisition, New
Francis and FDF or any of their direct or indirect subsidiaries pursuant
to the exercise at any time by WayPoint of any of their rights pursuant to
the Purchase Agreement (i.e., whether such individual is a WayPoint
designee or otherwise); and
	 
	 	x.	 	Until the earlier to occur of the Closing or the termination of the
Forbearance Agreement, WayPoint will reasonably cooperate with NYTEX
Holdings, NYTEX Acquisition, New Francis and FDF in order to facilitate the
ability such Parties to purchase the WayPoint Securities, including,
without limitation, all efforts by such Parties to complete any related
debt or equity financings, refinancings and/or restructurings.





          SECTION 4. Ratification of Liabilities, etc.




     (a) NYTEX Holdings, NYTEX Acquisition, New Francis and FDF each acknowledges
and agrees the Current Events of Default have occurred and continuing.



     (b) Each of NYTEX Holdings, NYTEX Acquisition, New Francis and FDF hereby ratifies and
reaffirms all of its payment and performance obligations and obligations to indemnify, contingent
or otherwise, under this Forbearance Agreement and each other WayPoint Purchase Document to which
such Party is a party.



     (c) Each of NYTEX Holdings, NYTEX Acquisition, New Francis and FDF (i) acknowledges
receipt of a copy of this Forbearance Agreement and all other agreements, documents and instruments
executed and/or delivered in connection herewith, (ii) consents to the terms and conditions of
same, and (iii) agrees and acknowledges that each WayPoint Purchase Document remains in full force
and effect, that such Party’s obligations thereunder are without defense, setoff and counterclaim
and that each of the WayPoint Purchase Documents is hereby ratified and confirmed.



     SECTION 5. Reference to and Effect upon the WayPoint Purchase Agreement.



     (a) Except as expressly modified hereby, all terms, conditions, covenants, representations
and warranties contained in the WayPoint Purchase Agreement and the other WayPoint Purchase
Documents, and all rights of WayPoint shall remain in full force and effect.




8











 





     (b) Except as expressly set forth herein, the effectiveness of this Forbearance
Agreement shall not directly or indirectly, (i) create any obligation to continue to defer any
enforcement action after the occurrence of any Forbearance Default or after the Forbearance
Termination Date, (ii) constitute a consent or waiver of any past, present or future violations,
including Defaults and Events of Default, of any provisions of the WayPoint Purchase Agreement or
any other WayPoint Purchase Documents, (iii) amend, modify, prejudice or operate as a waiver of
any provision of the WayPoint Purchase Agreement or any other WayPoint Purchase Documents or any
right, remedy, power or privilege of WayPoint, or (iv) constitute a consent to any merger or other
transaction or to any sale, restructuring or refinancing transaction. Except as expressly set
forth herein, WayPoint reserves all of its rights, remedies, powers and privileges under the
WayPoint Purchase Agreement or any other WayPoint Purchase Documents, applicable law and/or
equity. All of the provisions of the WayPoint Purchase Agreement or any other WayPoint Purchase
Documents are hereby reiterated, and if ever waived, are hereby reinstated.



     (c) This Forbearance Agreement shall not be deemed or construed to be a satisfaction,
reinstatement, novation or release of the WayPoint Purchase Agreement or any other WayPoint
Purchase Document.



     SECTION 6. Counterparts. This Forbearance Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed an original, but all such
counterparts shall constitute one and the same instrument, and all signatures need not appear on
any one counterpart. Any party hereto may execute and deliver a counterpart of this Forbearance
Agreement by delivering by facsimile or other electronic transmission a signature page of this
Forbearance Agreement signed by such party, and any such facsimile or other electronic signature
shall be treated in all respects as having the same effect as an original signature.



     SECTION
7. Severability. The invalidity, illegality, or unenforceability of any
provision in or obligation under this Forbearance Agreement in any jurisdiction shall not affect
or impair the validity, legality, or enforceability of the remaining provisions or obligations
under this Forbearance Agreement or of such provision or obligation in any other jurisdiction.



     SECTION
8. Section Headings. Section headings in this Forbearance Agreement are
included herein for convenience of reference only and shall not constitute part of this
Forbearance Agreement for any other purpose.



     SECTION
9. Notices. All notices, requests, and demands to or upon the respective
parties hereto shall be given in accordance with the WayPoint Purchase Agreement or any other
WayPoint Purchase Documents.



     SECTION 10. Governing Law. This Forbearance Agreement and the rights and obligations
of the parties under this Forbearance Agreement shall be governed by,
and construed and
interpreted in accordance with, the law of the State of New York.



     SECTION
11. Assignments; No Other Third Party Beneficiaries. This Forbearance
Agreement shall be binding upon and inure to the benefit of the Parties and their respective



9









 




successors and assigns; provided, however, that none of NYTEX Holdings, NYTEX Acquisition,
New Francis and FDF shall be entitled to delegate any of their duties hereunder without the prior
written consent of WayPoint in its sole discretion. No Person other than the parties hereto, their
permitted successors and assigns and the Releases (as defined below), shall have any rights
hereunder or be entitled to rely on this Forbearance Agreement and all third-party beneficiary
rights are hereby expressly disclaimed.




     SECTION 12. Amendments. This Forbearance Agreement may only be amended, modified,
waived or supplemented pursuant to an agreement or agreements in writing entered into by each of
the Parties.



     SECTION 13. Final Agreement. This Forbearance Agreement and the other written
agreements, instruments, and documents entered into in connection herewith (collectively, the
“Forbearance Documents”) set forth in full the terms of agreement between the Parties hereto and
thereto and are intended as the full, complete, and exclusive contracts governing the
relationship between such parties, superseding all other discussions, promises, representations,
warranties, agreements, undertakings and understandings between the parties with respect thereto.
Any waiver of any condition in, or breach of, any of the foregoing in a particular instance shall
not operate as a waiver of other or subsequent conditions or breaches of the same or a different
kind. WayPoint’s exercise or failure to exercise any rights or remedies under any of the foregoing
in a particular instance shall not operate as a waiver of its right to exercise the same or
different rights, remedies, powers and privileges in any other instances. There are no oral
agreements among the Parties hereto.



     SECTION 14. Releases.



     (a) In consideration of, among other things, WayPoint’s execution and delivery of this
Forbearance Agreement, each of NYTEX Holdings, NYTEX Acquisition, New Francis and FDF, on behalf
of itself and its agents, representatives, officers, directors, members, advisors, employees,
subsidiaries, affiliates, successors and assigns (collectively, the
“NYTEX Releasors”),
hereby forever waives, releases and discharges, to the fullest extent permitted by law, each
Releasee (as defined herein) from any and all claims (including, without limitation, crossclaims,
counterclaims, rights of set-off and recoupment), actions, causes of action, suits, debts,
accounts, interests, liens, promises, warranties, damages and consequential damages, demands,
agreements, bonds, bills, specialties, covenants, controversies, variances, trespasses, judgments,
executions, costs, expenses or claims whatsoever (collectively, the
“Claims”), that such Releasor
now has or hereafter may have, of whatsoever nature and kind, whether known or unknown, whether
now existing or hereafter arising, whether arising at law or in equity, against any or all of
WayPoint in any capacity and its respective affiliates, subsidiaries, shareholders and
“controlling persons” (within the meaning of the federal securities laws), and each of their
respective successors and assigns and each and all of the officers, directors, members, employees,
agents, attorneys and other representatives of each of the foregoing (collectively, the
“WayPoint Releasees”), based in whole or in part on facts, whether or not now known,
existing on or before the Forbearance Effective Date, that relate to, arise out of or otherwise
are in connection with: (i) any or all of the WayPoint Purchase Agreement or any other WayPoint
Purchase Documents or transactions contemplated thereby or hereby, or any actions or omissions in
connection therewith or herewith, or (ii) any aspect of the dealings or relationships between or



10









 




among NYTEX Holdings, NYTEX Acquisition, New Francis and FDF, on the one hand, and WayPoint,
on the other hand, relating to any or all of the documents, transactions, or actions clause (i)
hereof; provided, however, that nothing in this Forbearance Agreement or in this Section 14
shall have the effect of limiting, modifying, waiving compliance with, or releasing the WayPoint
Releasees in connection with their obligations under this Forbearance Agreement. In entering into
this Forbearance Agreement, each Party has consulted with, and have been represented by, legal
counsel and expressly disclaim any reliance on any representations, acts or  omissions by any of
the Releasees and hereby agree and acknowledge that the validity and effectiveness of the releases
set forth above do not depend in any way on any such representations, acts and/or omissions or the
accuracy, completeness or validity hereof. The provisions of this Section shall survive the
termination of this Forbearance Agreement, the WayPoint Purchase Agreement or any other WayPoint
Purchase Documents.




     (b) In consideration of, among other things, the execution and delivery of this Forbearance
Agreement by each of NYTEX Holdings, NYTEX Acquisition, New Francis and FDF, WayPoint, on behalf
of itself and its agents, representatives, officers, directors, members, advisors, employees,
subsidiaries, affiliates, successors and assigns (collectively, the
“WayPoint Releasors”), hereby
forever waives, releases and discharges, to the fullest extent permitted by law, each NYTEX
Releasee (as defined herein) from any and all claims (including, without limitation, crossclaims,
counterclaims, rights of set-off and recoupment), actions, causes of action, suits, debts,
accounts, interests, liens, promises, warranties, damages and consequential damages, demands,
agreements, bonds, bills, specialties, covenants, controversies, variances, trespasses, judgments,
executions, costs, expenses or claims whatsoever (collectively, the
“Claims”), that such Releasor
now has or hereafter may have, of whatsoever nature and kind, whether known or unknown, whether now
existing or hereafter arising, whether arising at law or in equity, against any or all of NYTEX
Holdings, NYTEX Acquisition, New Francis and FDF in any capacity and its respective affiliates,
subsidiaries, shareholders and “controlling persons” (within the meaning of the federal securities
laws), and each of their respective successors and assigns and each and all of the officers,
directors, members, employees, agents, attorneys and other representatives of each of the foregoing
(collectively, the “NYTEX Releasees”), based in whole or in part on facts, whether or not now
known, existing on or before the Forbearance Effective Date, that relate to, arise out of or
otherwise are in connection with: (ii) any aspect of the dealings or relationships between or among
NYTEX Holdings, NYTEX Acquisition, New Francis and FDF, on the one hand, and WayPoint, on the other
hand, relating to the WayPoint Purchase Agreement or any other WayPoint Purchase Documents or
transactions contemplated thereby or hereby, provided, however, that nothing in this
Forbearance Agreement or in this Section 14 shall have the effect of limiting, modifying, waiving
compliance with, or releasing the NYTEX Releasees in connection with their obligations under this
Forbearance Agreement, the WayPoint Purchase Agreement or any other WayPoint Purchase Documents,
and, provided, further, nothing in this Forbearance Agreement or in this Section 14 shall
have the effect of limiting in any manner what WayPoint may allege in defense of claims by any
other Party and that Party’s equity and security holders, including, without limitation, debt
holders and shareholders of NYTEX Holdings. In entering into this Forbearance Agreement, each Party
has consulted with, and have been represented by, legal counsel and expressly disclaim any reliance
on any representations, acts or omissions by any of the Releasees and hereby agree and acknowledge
that the validity and effectiveness of the releases set forth above do not depend in any way on any
such representations, acts and/or omissions or the accuracy, completeness or







11









 







validity hereof. The provisions of this Section shall survive the termination of this
Forbearance Agreement, the WayPoint Purchase Agreement or any other WayPoint Purchase
Documents.




     SECTION 15. Covenants Not to Sue.



     (a) Each Party, on behalf of itself and its successors, assigns, and other legal
representatives, hereby absolutely, unconditionally and irrevocably, covenants and agrees
with and in favor of each Releasee that it will not sue (at law, in equity, in any
regulatory proceeding or otherwise) any Releasee on the basis of any claim released,
remised and discharged by such Party pursuant to Section 14 above. If any such
Party or any of its successors, assigns or other legal representations violates the
foregoing covenant, such Party, for itself and its successors, assigns and legal
representatives, agrees to pay, in addition to such other damages as any Releasee may
sustain as a result of such violation, all reasonable attorneys’ fees and costs incurred
by any Releasee as a result of such violation.



[Signature Page Follows]





12











 




IN WITNESS WHEREOF, the parties hereto have caused this Forbearance Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the day and year first
above written.




	 	 	 	 	 	 	 	 	 	 	 

	NYTEX ENERGY HOLDINGS, INC.	 	 	 	FRANCIS DRILLING FLUIDS, LTD.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By: 

Name:

	 	/s/ Michael Galvis
 

Michael Galvis
	 	 
	 	By:

Name:
	 	/s/ John Henry Moulton
 

John Henry Moulton
	 	 
	Title:

	 	President
	 	 	 	Title:
	 	Chairman	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	NYTEX FDF ACQUISITION, INC.	 	 	 	WAYPOINT NYTEX, LLC	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	9/30/11
	 
	By: 

Name:

	 	/s/ John Henry Moulton
 

John Henry Moulton
	 	 
	 	By:

Name:
	 	/s/ John Henry Moulton
 

John Henry Moulton
	 	 
	Title:

	 	Chairman
	 	 	 	Title:
	 	Member	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	NEW FRANCIS OAKS, LLC	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By: 

Name:

	 	/s/ John Henry Moulton
 

John Henry Moulton
	 	 	 	 	 	 	 	 
	Title:

	 	Chairman	 	 	 	 	 	 	 	 







13