SECTION 3.6
DEFINES RIGHTS OF LENDERS.
THE PROVISIONS OF THIS AGREEMENT ARE
SOLELY FOR THE PURPOSE OF DEFINING THE RELATIVE RIGHTS OF TRIDENT AND FEQ AND
SHALL NOT BE DEEMED TO CREATE ANY RIGHTS OR PRIORITIES IN FAVOR OF ANY OTHER
PERSON OR ENTITY, INCLUDING, WITHOUT LIMITATION, THE COMPANY.
SECTION 3.7
DELAY OR OMISSION NOT WAIVER.
NEITHER THE FAILURE NOR ANY DELAY
ON THE PART OF FEQ TO EXERCISE ANY RIGHT, REMEDY, POWER OR PRIVILEGE HEREUNDER
SHALL OPERATE AS A WAIVER THEREOF OR IMPAIR ANY SUCH RIGHT, REMEDY, POWER OR
PRIVILEGE.
NO SINGLE, PARTIAL OR FULL EXERCISE OF ANY RIGHTS, REMEDIES, POWERS
AND PRIVILEGES BY FEQ SHALL PRECLUDE FURTHER OR OTHER EXERCISE THEREOF.
NO
COURSE OF DEALING BETWEEN FEQ AND THE COMPANY OR TRIDENT SHALL OPERATE AS OR BE
DEEMED TO CONSTITUTE A WAIVER OF FEQ'S RIGHTS HEREUNDER OR AFFECT THE DUTIES OR
OBLIGATIONS OF THE COMPANY OR TRIDENT.
SECTION 3.8
TERMINATION.
THIS AGREEMENT SHALL TERMINATE UPON THE EARLIER TO
OCCUR OF: (A) THE FEQ DEBT IS SATISFIED, OR (B) A WRITTEN TERMINATION IS
EXECUTED BY ALL PARTIES HERETO.
SECTION 3.9
SEVERABILITY.
IF ANY PROVISION HEREIN SHALL FOR ANY REASON BE
HELD INVALID OR UNENFORCEABLE, NO OTHER PROVISION SHALL BE AFFECTED THEREBY, AND
THIS AGREEMENT SHALL BE CONSTRUED AS IF THE INVALID OR UNENFORCEABLE PROVISION
HAD NEVER BEEN A PART OF IT, AND THE AFFECTED PROVISION SHALL BE MODIFIED TO THE
MINIMUM EXTENT PERMITTED BY LAW SO AS TO ACHIEVE MOST FULLY THE INTENTION OF
THIS AGREEMENT.
SECTION 3.10
COUNTERPARTS; FACSIMILE SIGNATURES.
THIS AGREEMENT MAY BE
EXECUTED IN ANY NUMBER OF COUNTERPARTS, ALL OF WHICH TAKEN TOGETHER SHALL
CONSTITUTE ONE AND THE SAME INSTRUMENT, AND ANY OF THE PARTIES HERETO MAY
EXECUTE THIS AGREEMENT BY SIGNING ANY SUCH COUNTERPART.
ANY SIGNATURE ON THIS
AGREEMENT DELIVERED BY FACSIMILE TRANSMISSION SHALL BE DEEMED TO BE AN ORIGINAL
SIGNATURE TO THIS AGREEMENT.
SECTION 3.11
HEADINGS.
THE PARAGRAPH HEADINGS USED IN THIS AGREEMENT ARE FOR
CONVENIENCE ONLY AND SHALL NOT AFFECT THE INTERCEPTION OF ANY OF THE PROVISIONS
HEREOF.
SECTION 3.12
TRIDENT EXPENSES.
FEQ SHALL REIMBURSE TRIDENT FOR ITS REASONABLE
OUT OF POCKET ATTORNEYS FEES INCURRED IN CONNECTION WITH THE REVIEW AND
NEGOTIATION OF THIS AGREEMENT.
[CONTINUED ON NEXT PAGE]
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SECTION 3.13
ENTIRE AGREEMENT.
THIS AGREEMENT EMBODIES THE ENTIRE AGREEMENT
OF THE PARTIES HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND THERE ARE
NO COURSES OF DEALING, USAGES OF TRADE, OR OTHER REPRESENTATIONS, PROMISES,
TERMS OR CONDITIONS REFERRING TO SUCH SUBJECT MATTER, AND NO INDUCEMENTS OR
REPRESENTATIONS LEADING TO THE EXECUTION HEREOF OTHER THAN AS MENTIONED HEREIN.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the date first above written.
GEM SOLUTIONS, INC
By:
/s/ John E. Baker
Name: John E. Baker
Title: C.E.O.
FEQ GAS, LLC
By:
/s/ Ernest A. Bartlett III
Name: Ernest A. Bartlett III
Title: President
TRIDENT GROWTH FUND, L.P.:
By:
Trident Management, LLC, its General Partner
By:
/s/ Scotty Cook
Name: Scotty Cook
Title: Authorized Member
8