Exhibit 10.3


 


SECOND AMENDMENT TO NINTH RESTATED LOAN
AGREEMENT AND WAIVER


 


THIS SECOND AMENDMENT TO NINTH RESTATED LOAN
AGREEMENT  AND WAIVER
(hereinafter referred to as the “Second Amendment”) executed as of the
    day of December, 2003, by and among CLAYTON WILLIAMS ENERGY,
INC., a Delaware corporation (the “CWE”), WARRIOR GAS CO., a Texas corporation
(“Warrior “) (CWE and Warrior being hereinafter sometimes collectively referred
to as “Borrower”), CWEI ACQUISITIONS, INC., a Delaware corporation (“CWEI”),
CWEI ROMERE PASS ACQUISITION CORP., a Delaware corporation (“CWEIRPA”) and
ROMERE PASS ACQUISITION L.L.C., a Delaware limited liability company (“Romere”)
(CWEI, CWEIRPA and Romere being hereinafter sometimes collectively referred to
as “Guarantors”), BANK ONE, NA, a national banking association (“Bank One”),
UNION BANK OF CALIFORNIA, N.A., a national banking association (“Union”) and
BANK OF SCOTLAND (“BOS”) (Bank One, Union Bank and BOS each in their capacity
as a lender hereunder together with each and every future holder of any note
issued pursuant to this Agreement are hereinafter collectively referred to as
“Banks”, and individually as a “Bank”) and Bank One, as “Agent”.


 


WITNESSETH:


 


WHEREAS, on
July 18, 2002, Borrower, CWEI, Romere Pass Acquisition Corp., a Delaware
corporation (“Romere Corp”), Bank One, Union, BOS and Agent entered into a
Ninth Restated Loan Agreement, as amended by that certain First Amendment to
Ninth Restated Loan Agreement dated as of August 9, 2002 (as amended,
restated or modified from time to time, the “Ninth Restated”);


 


WHEREAS, the Borrower has informed the Banks that (i)
CWE proposes to contribute 100% of the issued and outstanding capital stock of
Romere Corp to CWEIRPA for 100% of the issued and outstanding capital stock of
CWEIRPA and (ii) Romere Corp will convert from a corporation to a limited
liability company, Romere Pass Acquisition L.L.C. (collectively, the “Romere
Conversion”);


 


WHEREAS, the Romere Conversion is prohibited pursuant
to Sections 13(f) and 13(k) of the Ninth Restated and the Borrower has
requested that the Banks consent to the Romere Conversion and waive the
requirements of Sections 13(f) and 13(k) of the Ninth Restated; and


 


WHEREAS, subject to the conditions set forth herein,
the Banks hereby consent to the Romere Conversion and waive the requirements of
Sections 13(f) and (k) of the Ninth Restated with respect to the Romere
Conversion and have agreed to make certain additional changes to the
Ninth Restated.


 


NOW, THEREFORE, the
parties hereto agree as follows:


 


1.                                       Unless
otherwise defined herein, all defined terms used herein shall have the same
meaning ascribed to such terms in the Ninth Restated.


 


1

















 


2.                                       CWEIRPA and
Romere hereby join the Ninth Restated and accept and agree to be bound by all
of the terms and conditions thereof. 
CWEIRPA and Romere shall henceforth be deemed a Guarantor, together with
CWEI, for all purposes of the Ninth Restated, the Notes and the Loan Documents.


 


3.                                       Section 1
of the Ninth Restated is hereby amended by deleting the definition of
“Subsidiaries” and the following is inserted in lieu thereof:


 


Subsidiaries means
Warrior, Clajon Industrial Gas, Inc., Clayton Williams Venezuela, Inc., Clayton
Williams Trading Company, Clayton Williams Pipeline Corporation, CWEI
Acquisitions, Inc., CWEI Romere Pass Acquisition Corp., Romere Pass Acquisition
L.L.C., and any other corporation or entity of which voting securities or other
ownership interests having ordinary voting power to elect a majority of the
board of directors or other persons performing similar functions are at any
time owned directly or indirectly by Borrower.


 


4.                                       Sections 10(a)
and (t) of the Ninth Restated are hereby amended by deleting such sections and
the following is inserted in lieu thereof:


 


(a)                                  Creation and
Existence.  Borrower
and Guarantor are corporations or limited liability companies, as the case may
be, duly organized and validly existing in good standing under the laws of
their state of incorporation or organization, as the case may be, and are duly
qualified as a foreign corporation or limited liability company, as the case
may be, in all jurisdictions wherein failure to qualify may result in a
Material Adverse Effect.  Borrower and
Guarantor have all the power and authority to own their properties and assets
and to transact the business in which they are engaged.


 


(t)                                    Guarantor.  CWE owns, directly or indirectly, one
hundred percent (100%) of the issued and outstanding equity securities and
membership interests, as the case may be, of Guarantor.


 


5.                                       This Second
Amendment shall be effective as of the date first above written, but only upon
satisfaction of the conditions precedent set forth in Paragraph 5 hereto
(the “Second Amendment Effective Date”).


 


6.                                       The obligations
of Banks under this Second Amendment shall be subject to the satisfaction of
the following conditions precedent:


 


(a)                                  Execution and Delivery.  The Borrower shall have executed and
delivered this Second Amendment and other required documents, all in form and
substance satisfactory to the Banks;


 


(b)                                 Guarantors’ Execution and
Delivery.  The
Guarantors shall have executed and delivered this Second Amendment and other
required documents, and, in addition, 
CWEIRPA and Romere shall execute the Subsidiary Guaranty in the form
attached hereto as Exhibit A, all in form and substance satisfactory to the
Banks;


 


2

















 


(c)                                  Conversion Documents. Banks shall
have received appropriate copies of the documents converting Romere Corp from a
corporation to a limited liability company;


 


(d)                                 Resolutions.  The Agent shall have received appropriate
certified resolutions of CWEIRPA and Romere;


 


(e)                                  Good Standing.  The Agent shall have received evidence of
existence and good standing for CWEIRPA and Romere;


 


(f)                                    Certificates of
Incorporation and Bylaws.  The
Agent shall have received copies of Certificates of Incorporation, or similar
organizational documents, for each of CWEIRPA and Romere, together with all
amendments thereto, appropriately certified by governmental authority in the
jurisdiction of incorporation of each of CWEIRPA and Romere, and a copy of the
Bylaws, or similar governing documents, of CWEIRPA and Romere, and all
amendments thereto, certified by one or more officers of CWEIRPA and Romere, as
the case may be, as being true, correct and complete;


 


(g)                                 Incumbency.  The Agent shall have received a signed
Certificate of each of CWEIRPA and Romere, certifying the names of the officers
of CWEIRPA and Romere authorized to sign loan documents on behalf of CWEIRPA
and Romere, together with the true signatures of each such officer.  The Agent may conclusively rely on each such
Certificate until the Agent receives a further Certificate of such Guarantor
canceling or amending the prior Certificate and submitting signatures of the
officers named in such further Certificate;


 


(h)                                 Representations and
Warranties.  The
representations and warranties of Borrower under the Ninth Restated are true
and correct in all material respects as of such date, as if then made (except
to the extent that such representations and warranties related solely to an
earlier date);


 


(i)                                     No Event of Default.  No Event of Default shall have occurred and
be continuing nor shall any event have occurred or failed to occur which, with
the passage of time or service of notice, or both, would constitute an Event of
Default;


 


(j)                                     Other Documents.  Each Bank shall have received such other
instruments and documents incidental and appropriate to the transaction
provided for herein as such Bank or its counsel may reasonably request, and all
such documents shall be in form and substance satisfactory to such Bank; and


 


(k)                                  Legal Matters Satisfactory.  All legal matters incident to the
consummation of the transactions contemplated hereby shall be satisfactory to
special counsel for Bank retained at the expense of Borrower.


 


7.                                       The Banks hereby waive the requirements of Sections 13(f) and (k) of the
Ninth Restated with respect to the Romere Conversion.  Borrower and Banks further agree that the


 


3

















 


waiver
set forth herein is limited solely to Sections 13(f) and (k) of the Ninth
Restated with respect to the Romere Conversion.  The waiver set forth herein is expressly limited as follows: (a)
such waiver is limited solely to the Romere Conversion and (b) such waiver is a
limited one-time waiver, and nothing contained herein shall obligate Banks to
grant any additional or future waivers of Sections 13(f) or (k) of the Ninth Restated,
or any other provision of the Ninth Restated or any other Loan Document.


 


8.                                       Except to the
extent its provisions are specifically amended, modified or superseded by this
Second Amendment, the representations, warranties and affirmative and negative
covenants of the Borrower contained in the Ninth Restated are incorporated
herein by reference for all purposes as if copied herein in full.  The Borrower hereby restates and reaffirms
each and every term and provision of the Ninth Restated, as amended, including,
without limitation, all representations, warranties and affirmative and
negative covenants.  Except to the
extent its provisions are specifically amended, modified or superseded by this
Second Amendment, the Ninth Restated, as amended, and all terms and provisions
thereof shall remain in full force and effect, and the same in all respects are
confirmed and approved by the Borrower and the Banks.


 


9.                                       This Second
Amendment may be executed in any number of counterparts and all of such
counterparts taken together shall be deemed to constitute one and the same
instrument.


 


10.                                 The Guarantors
hereby consent to the execution of this Second Amendment by the Borrower and
reaffirm their guaranty of all of the obligations of the Borrower to the
Bank.  Borrower and each Guarantor
acknowledge and agree that the renewal, extension and amendment of the Ninth
Restated shall not be considered a novation of account or new contract but that
all existing rights, titles, powers, Liens, security interests and estates in
favor of the Banks constitute valid and existing obligations and Liens and
security interests as against the Collateral in favor of the Banks.  Borrower and each Guarantor confirm and
agree that (a) neither the execution of this Second Amendment or any other
Loan Document nor the consummation of the transactions described herein and
therein shall in any way effect, impair or limit the covenants, liabilities,
obligations and duties of the Borrower and under the Loan Documents and
(b) the obligations evidenced and secured by the Loan Documents continue
in full force and effect.  Guarantors
hereby further confirm that they unconditionally guarantee to the extent set
forth in their Guaranty the due and punctual payment and performance of any and
all amounts and obligations owed to the Banks under the Ninth Restated or the
other Loan Documents.


 


[SIGNATURE PAGES FOLLOW]


 


4

















 


IN WITNESS WHEREOF,
the parties have caused this Second Amendment to Ninth Restated to be duly
executed as of the date first above written.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  	
   

  
	
   

  	
  CLAYTON WILLIAMS ENERGY, INC.

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ MEL G. RIGGS

  	
   

  
	
   

  	
   

  	
  Mel G. Riggs, Senior Vice President-Finance

  
	
   

  	
   

  	
   

  
	
   

  	
  WARRIOR GAS CO.

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ MEL G. RIGGS

  	
   

  
	
   

  	
   

  	
  Mel G. Riggs, Senior Vice President-Finance

  
	
   

  	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
  CWEI ACQUISITIONS, INC.

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ MEL G. RIGGS

  	
   

  
	
   

  	
   

  	
  Mel G. Riggs, Senior Vice President-Finance

  
	
   

  	
   

  	
   

  
	
   

  	
  CWEI ROMERE PASS ACQUISITION CORP.

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ MEL G. RIGGS

  	
   

  
	
   

  	
  Name:

  	
  Mel G. Riggs

  	
   

  
	
   

  	
  Title:

  	
  Vice President and Treasurer

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ROMERE PASS ACQUISITION L.L.C.

  
	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ MEL G. RIGGS

  	
   

  
	
   

  	
  Name:

  	
  Mel G. Riggs

  	
   

  
	
   

  	
  Title:

  	
  Vice President and Treasurer

  	
   

  
							



 

















 


	
   

  	
  BANKS:

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK ONE, NA

  
	
   

  	
  a national banking association

  as a Bank and as Administrative Agent

  (Main Office Chicago)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ WILLIAM MARK CRANMER

  	
   

  
	
   

  	
   

  	
  Wm. Mark Cranmer, Director, Capital Markets

  
	
   

  	
   

  	
   

  
	
   

  	
  UNION BANK OF CALIFORNIA, N.A.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ JOHN CLARK

  	
   

  
	
   

  	
  Name:

  	
  John Clark

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ SEAN MURPHY

  	
   

  
	
   

  	
  Name:

  	
  Sean Murphy

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BANK OF SCOTLAND

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ JOSEPH FRATUS

  	
   

  
	
   

  	
  Name:

  	
  Joseph Fratus

  	
   

  
	
   

  	
  Title:

  	
  First Vice President

  	
   

  
						



 

















 


EXHIBIT A


 


SUBSIDIARY GUARANTY


 


THIS SUBSIDIARY GUARANTY
(this “Guaranty”) is made as of the     day of DECEMBER, 2003,
by CWEI ROMERE PASS ACQUISITION CORP., a Delaware corporation (“CWEIRPA”) and
ROMERE PASS ACQUISITION L.L.C., a Delaware limited liability company (“Romere”)
(collectively, CWEIRPA and Romere are hereinafter referred to as the
“Subsidiary Guarantors”) in favor of the Agent, for the benefit of the Banks,
under the Loan Agreement referred to below;


 


WITNESSETH:


 


WHEREAS, CLAYTON
WILLIAMS ENERGY, INC, a Delaware corporation (“CWE”) and WARRIOR GAS CO., a
Texas corporation (“Warrior”) (CWE and Warrior being hereinafter sometimes
collectively referred to as the “Principal”) and Bank One, NA, a national
banking association having its principal office in Dallas, Texas, as Agent (the
“Agent”), and certain other Banks from time to time party thereto have entered
into a certain Ninth Restated Loan Agreement dated as of July 18, 2002 (as
same may be amended or modified from time to time, the “Loan Agreement”),
providing, subject to the terms and conditions thereof, for extensions of
credit to be made by the Banks to the Principal;


 


WHEREAS, it is a
condition precedent to the Agent and the Banks executing the Loan Agreement
that each of the Subsidiary Guarantors execute and deliver this Guaranty
whereby each of the Subsidiary Guarantors shall guarantee the payment when due,
subject to Section 9 hereof, of all Guaranteed Obligations, as defined below;
and


 


WHEREAS, in
consideration of the financial and other support that the Principal has
provided, and such financial and other support as the Principal may in the
future provide, to the Subsidiary Guarantors, and in order to induce the Banks
and the Agent to enter into the Loan Agreement, and the Banks and their
Affiliates to enter into one or more Rate Management Transactions with the
Principal, and because each Subsidiary Guarantor has determined that executing
this Guaranty is in its interest and to its financial benefit, each of the
Subsidiary Guarantors is willing to guarantee the obligations of the Principal
under the Loan Agreement, any Note, any Rate Management Transaction, and the
other Loan Documents;


 


NOW, THEREFORE, in
consideration of the premises and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:


 


SECTION  l.1.  Selected
Terms Used Herein. 


 


“Guaranteed Obligations” is defined in Section 3 below.


 


“Rate Management Transaction” means any transaction (including an
agreement with respect thereto) now existing or hereafter entered into between
the Principal and any Bank or


 

















 


Affiliate thereof which is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction, cap transaction, floor transaction, collar transaction,
forward transaction, currency swap transaction, cross-currency rate swap
transaction, currency option or any other similar transaction (including any
option with respect to any of these transactions) or any combination thereof,
whether linked to one or more interest rates, foreign currencies, commodity prices,
equity prices or other financial measures.


 


“Rate Management Obligations” means any and all obligations of the
Principal, whether absolute or contingent and howsoever and whensoever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Management Transactions, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management Transactions.


 


SECTION  1.2.  Terms in
Loan Agreement.  Other capitalized
terms used herein but not defined herein shall have the meaning set forth in
the Loan Agreement.


 


SECTION  2.1.  Representations
and Warranties.  Each of the
Subsidiary Guarantors represents and warrants (which representations and
warranties shall be deemed to have been renewed upon each Borrowing Date under
the Loan Agreement) that:


 


(a)                                  It
is a corporation, partnership or limited liability company duly and properly
incorporated or organized, as the case may be, validly existing and (to the
extent such concept applies to such entity) in good standing under the laws of
its jurisdiction of incorporation or organization and has all requisite
authority to conduct its business in each jurisdiction in which its business is
conducted.


 


(b)                                 It
has the power and authority and legal right to execute and deliver this
Guaranty and to perform its obligations hereunder.  The execution and delivery by it of this Guaranty and the
performance of its obligations hereunder have been duly authorized by proper
corporate proceedings, and this Guaranty constitutes a legal, valid and binding
obligation of such Subsidiary Guarantor enforceable against it in accordance
with its terms, except as enforceability may be limited by bankruptcy, insolvency
or similar laws affecting the enforcement of creditors’ rights generally.


 


(c)                                  Neither
the execution and delivery by it of this Guaranty, nor the consummation of the
transactions herein contemplated, nor compliance with the provisions hereof
will violate (i) any law, rule, regulation, order, writ, judgment, injunction,
decree or award binding on it or any of its subsidiaries or (ii) its articles
or certificate of incorporation, partnership agreement, certificate of
partnership, articles or certificate of organization, by-laws, or operating or
other management agreement, as the case may be, or (iii) the provisions of any
indenture, instrument or agreement to which it or any of its subsidiaries is a
party or is subject, or by which it, or its Property, is bound, or conflict
with or constitute a default thereunder, or result in, or require, the creation
or imposition of any Lien in, of or on the Property of such Subsidiary
Guarantor or a subsidiary thereof pursuant to the terms of any such indenture, instrument
or agreement.  No order, consent,
adjudication, approval, license, authorization, or validation of, or filing,
recording


 

















 


or registration with, or exemption by, or other action in respect of
any governmental or public body or authority, or any subdivision thereof, which
has not been obtained by it or any of its subsidiaries, is required to be
obtained by it or any of its subsidiaries in connection with the execution and
delivery of this Guaranty or the performance by it of its obligations hereunder
or the legality, validity, binding effect or enforceability of this Guaranty.


 


SECTION  2.2.  Covenants.  Each of the Subsidiary Guarantors covenants
that, so long as any Bank has any Commitment outstanding under the Loan
Agreement, any Rate Management Transaction remains in effect or any of the
Guaranteed Obligations shall remain unpaid, that it will, and, if necessary,
will enable the Principal to, fully comply with those covenants and agreements
set forth in the Loan Agreement.


 


SECTION  3.  The Guaranty.  Subject to Section 9 hereof, each of
the Subsidiary Guarantors hereby absolutely and unconditionally guarantees, as
primary obligor and not as surety, the full and punctual payment (whether at
stated maturity, upon acceleration or early termination or otherwise, and at
all times thereafter) and performance of the Obligations and the Rate
Management Obligations, including without limitation any such Obligations or
Rate Management Obligations incurred or accrued during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, whether or
not allowed or allowable in such proceeding (collectively, subject to the
provisions of Section 9 hereof, being referred to collectively as the
“Guaranteed Obligations”).  Upon failure
by the Principal to pay punctually any such amount, each of the Subsidiary
Guarantors agrees that it shall forthwith on demand pay to the Agent for the
benefit of the Banks and, if applicable, their Affiliates, the amount not so
paid at the place and in the manner specified in the Loan Agreement, any Note,
any Rate Management Transaction or the relevant Loan Document, as the case may
be. This Guaranty is a guaranty of payment and not of collection.  Each of the Subsidiary Guarantors waives any
right to require the Banks to sue the Principal, any other guarantor, or any
other person obligated for all or any part of the Guaranteed Obligations, or
otherwise to enforce its payment against any collateral securing all or any
part of the Guaranteed Obligations.


 


SECTION  4.  Guaranty
Unconditional.  Subject to
Section 9 hereof, the obligations of each of the Subsidiary Guarantors
hereunder shall be unconditional and absolute and, without limiting the
generality of the foregoing, shall not be released, discharged or otherwise
affected by:


 


(i)                                     any extension,
renewal, settlement, compromise, waiver or release in respect of any of the
Guaranteed Obligations, by operation of law or otherwise, or any obligation of
any other guarantor of any of the Guaranteed Obligations, or any default,
failure or delay, willful or otherwise, in the payment or performance of the
Guaranteed Obligations;


 


(ii)                                  any modification or
amendment of or supplement to the Loan Agreement, any Note, any Rate Management
Transaction or any other Loan Document;


 


(iii)                               any release,
nonperfection or invalidity of any direct or indirect security for any
obligation of the Principal under the Loan Agreement, any Note, any Rate


 

















 


Management Transaction, any other Loan Document, or any obligations of
any other guarantor of any of the Guaranteed Obligations, or any action or
failure to act by the Agent, any Bank or any Affiliate of any Bank with respect
to any collateral securing all or any part of the Guaranteed Obligations;


 


(iv)                              any change in the
corporate existence, structure or ownership of the Principal or any other
guarantor of any of the Guaranteed Obligations, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the Principal, or any
other guarantor of the Guaranteed Obligations, or its assets or any resulting
release or discharge of any obligation of the Principal, or any other guarantor
of any of the Guaranteed Obligations;


 


(v)                                 the existence of any
claim, setoff or other rights which the Subsidiary Guarantors may have at any
time against the Principal, any other guarantor of any of the Guaranteed
Obligations, the Agent, any Bank or any other Person, whether in connection
herewith or any unrelated transactions;


 


(vi)                              any invalidity or
unenforceability relating to or against the Principal, or any other guarantor
of any of the Guaranteed Obligations, for any reason related to the Loan
Agreement, any Rate Management Transaction, any other Loan Document, or any
provision of applicable law or regulation purporting to prohibit the payment by
the Principal, or any other guarantor of the Guaranteed Obligations, of the
principal of or interest on any Note or any other amount payable by the
Principal under the Loan Agreement, any Note, any Rate Management Transaction
or any other Loan Document; or


 


(vii)                           any other act or omission to
act or delay of any kind by the Principal, any other guarantor of the
Guaranteed Obligations, the Agent, any Bank or any other Person or any other
circumstance whatsoever which might, but for the provisions of this paragraph,
constitute a legal or equitable discharge of any Subsidiary Guarantor’s
obligations hereunder.


 


SECTION  5.  Discharge
Only Upon Payment In Full: Reinstatement In Certain Circumstances.  Each of the Subsidiary Guarantor’s
obligations hereunder shall remain in full force and effect until all
Guaranteed Obligations shall have been indefeasibly paid in full, the
Commitments under the Loan Agreement shall have terminated or expired and all
Rate Management Transactions have terminated or expired.  If at any time any payment of the principal
of or interest on any Note or any other amount payable by the Principal or any
other party under the Loan Agreement, any Rate Management Transaction or any
other Loan Document is rescinded or must be otherwise restored or returned upon
the insolvency, bankruptcy or reorganization of the Principal or otherwise,
each of the Subsidiary Guarantor’s obligations hereunder with respect to such
payment shall be reinstated as though such payment had been due but not made at
such time.


 


SECTION  6.  Waivers.  Each of the Subsidiary Guarantors
irrevocably waives acceptance hereof, presentment, demand, protest and, to the
fullest extent permitted by law, any


 

















 


notice not provided for herein, as well as any requirement that at any
time any action be taken by any Person against the Principal, any other
guarantor of any of the Guaranteed Obligations, or any other Person.


 


SECTION  7.  Subrogation.  Each of the Subsidiary Guarantors hereby
agrees not to assert any right, claim or cause of action, including, without
limitation, a claim for subrogation, reimbursement, indemnification or
otherwise, against the Principal arising out of or by reason of this Guaranty
or the obligations hereunder, including, without limitation, the payment or
securing or purchasing of any of the Guaranteed Obligations by any of the
Subsidiary Guarantors unless and until the Guaranteed Obligations are
indefeasibly paid in full, any commitment to lend under the Loan Agreement and
any other Loan Documents is terminated and all Rate Management Transactions
have terminated or expired.


 


SECTION  8.  Stay of
Acceleration.  If acceleration of
the time for payment of any of the Guaranteed Obligations is stayed upon the
insolvency, bankruptcy or reorganization of the Principal, all such amounts
otherwise subject to acceleration under the terms of the Loan Agreement, any
Note, any Rate Management Transaction or any other Loan Document shall
nonetheless be payable by each of the Subsidiary Guarantors hereunder forthwith
on demand by the Agent made at the request of the Majority Banks.


 


SECTION  9.  Limitation
on Obligations.  (a) The provisions
of this Guaranty are severable, and in any action or proceeding involving any
state corporate law, or any state, federal or foreign bankruptcy, insolvency,
reorganization or other law affecting the rights of creditors generally, if the
obligations of any Subsidiary Guarantor under this Guaranty would otherwise be
held or determined to be avoidable, invalid or unenforceable on account of the
amount of such Subsidiary Guarantor’s liability under this Guaranty, then,
notwithstanding any other provision of this Guaranty to the contrary, the
amount of such liability shall, without any further action by the Subsidiary
Guarantors, the Agent or any Bank, be automatically limited and reduced to the
highest amount that is valid and enforceable as determined in such action or
proceeding (such highest amount determined hereunder being the relevant
Subsidiary Guarantor’s “Maximum Liability”). This Section 9(a) with
respect to the Maximum Liability of the Subsidiary Guarantors is intended
solely to preserve the rights of the Agent hereunder to the maximum extent not
subject to avoidance under applicable law, and neither the Subsidiary Guarantor
nor any other person or entity shall have any right or claim under this
Section 9(a) with respect to the Maximum Liability, except to the extent
necessary so that the obligations of the Subsidiary Guarantor hereunder shall
not be rendered voidable under applicable law.


 


(b)                                 Each
of the Subsidiary Guarantors agrees that the Guaranteed Obligations may at any
time and from time to time exceed the Maximum Liability of each Subsidiary
Guarantor, and may exceed the aggregate Maximum Liability of all other
Subsidiary Guarantors, without impairing this Guaranty or affecting the rights
and remedies of the Agent hereunder. Nothing in this Section 9(b) shall be
construed to increase any Subsidiary Guarantor’s obligations hereunder beyond
its Maximum Liability.


 


(c)                                  In
the event any Subsidiary Guarantor (a “Paying Subsidiary Guarantor”) shall make
any payment or payments under this Guaranty or shall suffer any loss as a
result of any


 

















 


realization upon any collateral granted by it to secure its obligations
under this Guaranty, each other Subsidiary Guarantor (each a “Non-Paying
Subsidiary Guarantor”) shall contribute to such Paying Subsidiary Guarantor an
amount equal to such Non-Paying Subsidiary Guarantor’s “Pro Rata Share” of such
payment or payments made, or losses suffered, by such Paying Subsidiary
Guarantor.  For the purposes hereof,
each Non-Paying Subsidiary Guarantor’s “Pro Rata Share” with respect to any
such payment or loss by a Paying Subsidiary Guarantor shall be determined as of
the date on which such payment or loss was made by reference to the ratio of
(i) such Non-Paying Subsidiary Guarantor’s Maximum Liability as of such date
(without giving effect to any right to receive, or obligation to make, any
contribution hereunder) or, if such Non-Paying Subsidiary Guarantor’s Maximum
Liability has not been determined, the aggregate amount of all monies received
by such Non-Paying Subsidiary Guarantor from the Principal after the date
hereof (whether by loan, capital infusion or by other means) to (ii) the aggregate
Maximum Liability of all Subsidiary Guarantors hereunder (including such Paying
Subsidiary Guarantor) as of such date (without giving effect to any right to
receive, or obligation to make, any contribution hereunder), or to the extent
that a Maximum Liability has not been determined for any Subsidiary Guarantors,
the aggregate amount of all monies received by such Subsidiary Guarantors from
the Principal after the date hereof (whether by loan, capital infusion or by
other means).  Nothing in this Section 9
(c) shall affect any Subsidiary Guarantor’s several liability for the entire
amount of the Guaranteed Obligations (up to such Subsidiary Guarantor’s Maximum
Liability).  Each of the Subsidiary
Guarantors covenants and agrees that its right to receive any contribution
under this Guaranty from a Non-Paying Subsidiary Guarantor shall be subordinate
and junior in right of payment to all the Guaranteed Obligations.  The provisions of this Section 9(c) are
for the benefit of both the Agent and the Subsidiary Guarantors and may be
enforced by any one, or more, or all of them in accordance with the terms
hereof.


 


SECTION  10.  Application
of Payments.  All payments received
by the Agent hereunder shall be applied by the Agent to payment of the
Guaranteed Obligations in the following order unless a court of competent
jurisdiction shall otherwise direct:


 


(a)                                  FIRST, to payment of
all costs and expenses of the Agent incurred in connection with the collection
and enforcement of the Guaranteed Obligations or of any security interest
granted to the Agent in connection with any collateral securing the Guaranteed
Obligations;


 


(b)                                 SECOND, to payment of
that portion of the Guaranteed Obligations constituting accrued and unpaid
interest and fees, pro rata among the Banks and their Affiliates in accordance
with the amount of such accrued and unpaid interest and fees owing to each of
them;


 


(c)                                  THIRD, to payment of
the principal of the Guaranteed Obligations and the net early termination
payments and any other Rate Management Obligations then due and unpaid from the
Borrower to any of the Banks or their Affiliates, pro rata among the Banks and
their Affiliates in accordance with the amount of such principal and such net
early termination payments and other Rate Management Obligations then due and
unpaid owing to each of them; and


 

















 


(d)                                 FOURTH, to payment of
any Guaranteed Obligations (other than those listed above) pro rata among those
parties to whom such Guaranteed Obligations are due in accordance with the
amounts owing to each of them.


 


SECTION  11.  Notices.  All notices, requests and other
communications to any party hereunder shall be given or made by telecopier or
other writing and telecopied, or mailed or delivered to the intended recipient
at its address or telecopier number set forth on the signature pages hereof or
such other address or telecopy number as such party may hereafter specify for
such purpose by notice to the Agent in accordance with the provisions of
Article XIII of the Loan Agreement. 
Except as otherwise provided in this Guaranty, all such communications
shall be deemed to have been duly given when transmitted by telecopier, or
personally delivered or, in the case of a mailed notice sent by certified mail
return-receipt requested, on the date set forth on the receipt (provided, that
any refusal to accept any such notice shall be deemed to be notice thereof as
of the time of any such refusal), in each case given or addressed as aforesaid.


 


SECTION  12.  No Waivers.  No failure or delay by the Agent or any
Banks in exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege.  The rights and remedies
provided in this Guaranty, the Loan Agreement, any Note, any Rate Management
Transaction and the other Loan Documents shall be cumulative and not exclusive
of any rights or remedies provided by law.


 


SECTION  13.  No Duty to
Advise.  Each of the Subsidiary
Guarantors assumes all responsibility for being and keeping itself informed of
the Principal’s financial condition and assets, and of all other circumstances
bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature,
scope and extent of the risks that each of the Subsidiary Guarantors assumes
and incurs under this Guaranty, and agrees that neither the Agent nor any Bank
has any duty to advise any of the Subsidiary Guarantors of information known to
it regarding those circumstances or risks.


 


SECTION  14.  Successors
and Assigns.  This Guaranty is for
the benefit of the Agent and the Banks and their respective successors and
permitted assigns and in the event of an assignment of any amounts payable
under the Loan Agreement, any Note, any Rate Management Transaction, or the
other Loan Documents, the rights hereunder, to the extent applicable to the
indebtedness so assigned, shall be transferred with such indebtedness. This
Guaranty shall be binding upon each of the Subsidiary Guarantors and their
respective successors and permitted assigns.


 


SECTION  15.  Changes in
Writing.  Neither this Guaranty nor
any provision hereof may be changed, waived, discharged or terminated orally,
but only in writing signed by each of the Subsidiary Guarantors and the Agent
with the consent of the Majority Banks.


 


SECTION  16.  Costs of
Enforcement.  Each of the Subsidiary
Guarantors agrees to pay all costs and expenses including, without limitation,
all court costs and attorneys’ fees and expenses paid or incurred by the Agent
or any Bank or any Affiliate of any Bank in endeavoring to collect all or any
part of the Guaranteed Obligations from, or in prosecuting any action


 

















 


against, the Principal, the Subsidiary Guarantors or any other guarantor
of all or any part of the Guaranteed Obligations.


 


SECTION  17.  GOVERNING
LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.  THIS GUARANTY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF TEXAS.  EACH OF THE SUBSIDIARY GUARANTORS HEREBY
SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS AND OF ANY TEXAS STATE COURT SITTING IN
DALLAS, TEXAS AND FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR
RELATING TO THIS GUARANTY (INCLUDING, WITHOUT LIMITATION, ANY OF THE OTHER LOAN
DOCUMENTS)  OR THE TRANSACTIONS
CONTEMPLATED HEREBY.  EACH OF THE
SUBSIDIARY GUARANTORS IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION WHICH ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY
SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.  EACH OF THE SUBSIDIARY
GUARANTORS, AND THE AGENT AND THE BANKS ACCEPTING THIS GUARANTY, HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED
HEREBY.


 


SECTION  18.  Taxes. etc.  All payments required to be made by any of
the Subsidiary Guarantors hereunder shall be made without setoff or
counterclaim and free and clear of and without deduction or withholding for or
on account of, any present or future taxes, levies, imposts, duties or other
charges of whatsoever nature imposed by any government or any political or
taxing authority thereof (but excluding Excluded Taxes), provided, however,
that if any of the Subsidiary Guarantors is required by law to make such
deduction or withholding, such Subsidiary Guarantor shall forthwith  (i) pay to the Agent or any Bank, as
applicable, such additional amount as results in the net amount received by the
Agent or any Bank, as applicable, equaling the full amount which would have
been received by the Agent or any Bank, as applicable, had no such deduction or
withholding been made, (ii) pay the full amount deducted to the relevant
authority in accordance with applicable law, and (iii) furnish to the Agent or
any Bank, as applicable, certified copies of official receipts evidencing
payment of such withholding taxes within 30 days after such payment is made.


 


SECTION 19.  Setoff.  Without limiting the rights of the Agent or
the Banks under applicable law, if all or any part of the Guaranteed
Obligations is then due, whether pursuant to the occurrence of a Default or
otherwise, then the Guarantor authorizes the Agent and the Banks to apply any
sums standing to the credit of the Guarantor with the Agent or any Bank or any
Lending Installation of the Agent or any Bank toward the payment of the
Guaranteed Obligations.


 


[SIGNATURE PAGES FOLLOW]


 

















 


IN WITNESS WHEREOF, each of the Subsidiary Guarantors has caused this
Guaranty to be duly executed, under seal, by its authorized officer as of the
day and year first above written.


 


	
   

  	
   

  	
  SUBSIDIARY GUARANTORS:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CWEI ROMERE PASS ACQUISITION CORP.

  
	
   

  	
   

  	
  a Delaware corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ROMERE PASS ACQUISITION L.L.C.

  
	
   

  	
   

  	
  a Delaware limited liability company

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title: