Common use of Outstanding Indebtedness; Liens Clause in Contracts

Outstanding Indebtedness; Liens. Payments of principal and other payments due under the Sub Notes will, upon issuance at the Closing, rank senior to all other Indebtedness of the Company or any of the Subsidiaries (other than the Indebtedness under the Senior Notes and the FNBW Indebtedness) and, by virtue of their secured position, and to the extent of the Collateral, to all trade account payables of the Company, and the obligations of the Subsidiaries under the Guaranty will, upon issuance of the Sub Notes at the Closing, rank senior to all other Indebtedness of the Subsidiaries other than the Senior Notes and, by virtue of the secured position of the Guaranty and to the extent of the Collateral, to all trade account payables of any of the Subsidiaries. Except as set forth on Schedule 3(z), (i) neither the Company nor any of the Subsidiaries has any, and upon consummation of the transactions contemplated hereby and by the other Transaction Documents will not have any, outstanding Indebtedness other than (A) pursuant to the Senior Notes, the Securities Purchase Documents and the Transaction Documents, (B) the FNBW Indebtedness and (C) the Xxxxxxxxxx Indebtedness, (ii) there are no, and upon consummation of the transactions contemplated hereby and by the other Transaction Documents there will not be any, Liens on any of the assets of the Company or the Subsidiaries, other than (X) pursuant to the Security Documents and (Y) the FNBW Security Interest, and (iii) there are no, and upon consummation of the transactions contemplated hereby and by the Senior Notes, the Securities Purchase Documents and the Transaction Documents there will not be any, financing statements securing obligations of any amounts filed against the Company or any of the Subsidiaries or any of their respective assets, other than under the Security Documents. As used in this Agreement, “FNBW Note” means that certain promissory note, dated July 11, 2008, in the outstanding principal amount of $150,000 (as in effect as of the date hereof, without any increase in the principal thereof or the interest rate thereon, and without any waiver, amendment, supplement, restatement or modification thereof, other than to the extend the term thereof) issued by North Texas to the First National Bank of Xxxxxxxxxxx (“FNBW”); “FNBW Indebtedness” means the obligation evidenced by the FNBW Note; “FNBW Security Interest” means the security interest granted by North Texas in certain of its vehicles, as specified on Schedule 3(z), in favor of FNBW, as security for the FNBW Indebtedness (as such security interest is in effect on the date hereof, without any waiver, amendment, supplement, restatement or modification after the date hereof); “Xxxxxxxxxx Note” means that certain promissory note, dated July 8, 2006, in the outstanding principal amount of $75,000 (as in effect as of the date hereof, without any increase in the principal thereof or the interest rate thereon, and without any waiver, amendment, supplement, restatement or modification thereof, other than to the extend the term thereof) issued by Velocity Energy Partners LP to Xxxxxx X. Xxxxxxxxxx; and “Xxxxxxxxxx Indebtedness” means the obligation evidenced by the Xxxxxxxxxx Note.

Outstanding Indebtedness; Liens. Payments Except for the Prior Notes and as set forth on Schedule 3(x), payments of principal and other payments due under the Sub Notes will, upon issuance at the Closing, rank senior to all other Indebtedness of the Company or any of its Subsidiaries, or, to the Company’s Knowledge, any of its Foreign Subsidiaries (other than the Indebtedness under the Senior Notes and the FNBW Indebtednessin right of payment, whether with respect of payment of redemptions, interest or damages or upon liquidation or dissolution or otherwise) and, by virtue of their secured position, and to the extent of the Collateral, to all trade account payables of the Company or any of its Subsidiaries, or, to the Company’s Knowledge, and the obligations any of the Subsidiaries under the Guaranty its Foreign Subsidiaries. The Notes will, upon issuance of the Sub Notes at the Closing, rank senior to all other Indebtedness pari passu with the Prior Notes in right of the Subsidiaries other than the Senior Notes andpayment, by virtue whether with respect of the secured position payment of the Guaranty and to the extent of the Collateralredemptions, to all trade account payables of any of the Subsidiariesinterest or damages or upon liquidation or dissolution or otherwise. Except for the Prior Notes and as set forth on Schedule 3(z3(x), (i) neither the Company nor any of its Subsidiaries, nor, to the Company’s Knowledge, any of its Foreign Subsidiaries has anyhas, and upon consummation of the transactions contemplated hereby and by the other Transaction Documents will not have anyhave, any outstanding Indebtedness other than Permitted Indebtedness (A) pursuant to the Senior Notes, the Securities Purchase Documents and the Transaction Documents, (B) the FNBW Indebtedness and (C) the Xxxxxxxxxx Indebtednessas defined below), (ii) there are no, and upon consummation of the transactions contemplated hereby and by the other Transaction Documents there will not be any, Liens on any of the assets of the Company or the Subsidiaries, and its Subsidiaries other than (X) pursuant to the Permitted Liens and that created by the Security Documents and (Y) the FNBW Security InterestAgreement, and (iii) there are no, and upon consummation of the transactions contemplated hereby and by the Senior Notes, the Securities Purchase Documents and the other Transaction Documents there will not be any, financing statements securing obligations of any amounts filed against the Company or any of its Subsidiaries, or, to the Company’s Knowledge, any of its Foreign Subsidiaries or any of their respective assets, other than under the Security Documents. As used in this Agreement, “FNBW Note” means that certain promissory note, dated July 11, 2008, in the outstanding principal amount of $150,000 (as in effect as of the date hereof, without any increase in the principal thereof or the interest rate thereon, and without any waiver, amendment, supplement, restatement or modification thereof, other than to the extend the term thereof) issued by North Texas to the First National Bank of Xxxxxxxxxxx (“FNBW”); “FNBW Indebtedness” means the obligation evidenced by the FNBW Note; “FNBW Security Interest” means the security interest granted by North Texas in certain of its vehicles, as specified on Schedule 3(z), in favor of FNBW, as security for the FNBW Indebtedness (as such security interest is in effect on the date hereof, without any waiver, amendment, supplement, restatement or modification after the date hereof); “Xxxxxxxxxx Note” means that certain promissory note, dated July 8, 2006, in the outstanding principal amount of $75,000 (as in effect as of the date hereof, without any increase in the principal thereof or the interest rate thereon, and without any waiver, amendment, supplement, restatement or modification thereof, other than to the extend the term thereof) issued by Velocity Energy Partners LP to Xxxxxx X. Xxxxxxxxxx; and “Xxxxxxxxxx Indebtedness” means the obligation evidenced by the Xxxxxxxxxx Note.

Outstanding Indebtedness; Liens. Payments of principal and other payments due under the Sub Notes will, upon issuance at the Closing, rank senior to all other Indebtedness of the Company or any of the Subsidiaries (other than the Indebtedness under the Senior Notes and the FNBW Indebtedness) and, by virtue of their secured position, and to the extent of the Collateral, to all trade account payables of the Company, and the obligations of the Subsidiaries under the Guaranty will, upon issuance of the Sub Notes at the Closing, rank senior to all other Indebtedness of the Subsidiaries other than the Senior Notes and, by virtue of the secured position of the Guaranty and to the extent of the Collateral, to all trade account payables of any of the Subsidiaries. Except as set forth on Schedule 3(z), (i) neither the Company nor any of the Subsidiaries has any, and upon consummation of the transactions contemplated hereby and by the other Transaction Documents will not have any, outstanding Indebtedness other than (A) pursuant to the Senior Notes, the Securities Purchase Documents and the Transaction Documents, (B) the FNBW Indebtedness and (C) the Xxxxxxxxxx Indebtedness, (ii) there are no, and upon consummation of the transactions contemplated hereby and by the other Transaction Documents there will not be any, Liens on any of the assets of the Company or the Subsidiaries, other than (X) pursuant to the Security Documents and (Y) the FNBW Security Interest, and (iii) there are no, and upon consummation of the transactions contemplated hereby and by the Senior Notes, the Securities Purchase Documents and the other Transaction Documents there will not be any, financing statements securing obligations of any amounts filed against the Company or any of the Subsidiaries or any of their respective assets, other than under the Security Documents. As used in this Agreement, “FNBW Note” means that certain promissory note, dated July 11, 2008, in the outstanding principal amount of $150,000 (as in effect as of the date hereof, without any increase in the principal thereof or the interest rate thereon, and without any waiver, amendment, supplement, restatement or modification thereof, other than to the extend the term thereof) issued by North Texas to the First National Bank of Xxxxxxxxxxx (“FNBW”); “FNBW Indebtedness” means the obligation evidenced by the FNBW Note; “FNBW Security Interest” means the security interest granted by North Texas in certain of its vehicles, as specified on Schedule 3(z), in favor of FNBW, as security for the FNBW Indebtedness (as such security interest is in effect on the date hereof, without any waiver, amendment, supplement, restatement or modification after the date hereof); “Xxxxxxxxxx Note” means that certain promissory note, dated July 8, 2006, in the outstanding principal amount of $75,000 (as in effect as of the date hereof, without any increase in the principal thereof or the interest rate thereon, and without any waiver, amendment, supplement, restatement or modification thereof, other than to the extend the term thereof) issued by Velocity Energy Partners LP to Xxxxxx X. Xxxxxxxxxx; and “Xxxxxxxxxx Indebtedness” means the obligation evidenced by the Xxxxxxxxxx Note.

Outstanding Indebtedness; Liens. Payments of principal and other payments due under the Sub Notes will, upon issuance at in connection with the Closing, rank senior to all other Indebtedness (as defined in the Notes) of the Company or any of the Subsidiaries (other than the Indebtedness under the Senior Notes and the FNBW Indebtedness) and, by virtue of their secured position, and to the extent of the Collateral, to all trade account payables of the Company, and the obligations of the Subsidiaries under the Guaranty will, upon issuance of the Sub Notes at the Closing, rank senior to all other Indebtedness of the its Subsidiaries other than (X) payments of (i) principal due under that certain Loan Agreement dated September 10, 2004 by and between BNP Paribas and ES Holdings SAS, which agreement has not been amended, supplemented or otherwise modified since such date except as previously filed as an exhibit to an SEC Document (the Senior Notes and“BNP Facility”) and (ii) the two Subsequent Payments (as defined in the Eurosilicone Agreement) due under the Eurosilicone Agreement; provided, however that the aggregate amount of all such principal payments shall not exceed €16,400,000, and (Y) trade accounts payable of the Company and its Subsidiaries. As used in this Agreement, the “Eurosilicone Agreement” means that certain Agreement for the Sale and Purchase of the Shares of Laboratoires Eurosilicone SA, dated May 17, 2004, by virtue of and among the secured position of Company and the Guaranty and to the extent of the Collateralsellers named therein, to all trade account payables of any of the Subsidiarieswhich agreement has not been amended, supplemented or otherwise modified since such date. Except as set forth on Schedule 3(z3(bb), (ia) neither the Company nor any of the its Subsidiaries has any, and upon consummation of the transactions contemplated hereby and by the other Transaction Documents will not have any, any outstanding Indebtedness other than (A) pursuant to the Senior Notes, the Securities Purchase Documents and the Transaction Documentsor trade accounts payable, (B) the FNBW Indebtedness and (C) the Xxxxxxxxxx Indebtedness, (iib) there are no, and upon consummation of the transactions contemplated hereby and by the other Transaction Documents there will not be any, no Liens on any of the respective assets of the Company or the any of its Subsidiaries, other than (X) pursuant to the Security Documents and (Y) the FNBW Security Interest, and (iiic) there are no, and upon consummation of the transactions contemplated hereby and by the Senior Notes, the Securities Purchase Documents and the Transaction Documents there will not be any, no financing statements securing obligations of any amounts filed against the Company or any of the its Subsidiaries or any of their respective assets, other than under the Security Documents. As used in this Agreement, “FNBW Note” means that certain promissory note, dated July 11, 2008, in the outstanding principal amount of $150,000 (as in effect as of the date hereof, without any increase in the principal thereof or the interest rate thereon, and without any waiver, amendment, supplement, restatement or modification thereof, other than to the extend the term thereof) issued by North Texas to the First National Bank of Xxxxxxxxxxx (“FNBW”); “FNBW Indebtedness” means the obligation evidenced by the FNBW Note; “FNBW Security Interest” means the security interest granted by North Texas in certain of its vehicles, as specified on Schedule 3(z), in favor of FNBW, as security for the FNBW Indebtedness (as such security interest is in effect on the date hereof, without any waiver, amendment, supplement, restatement or modification after the date hereof); “Xxxxxxxxxx Note” means that certain promissory note, dated July 8March 31, 2006, in the aggregate amount of the outstanding principal Indebtedness and trade accounts payable of the Company or any of its Subsidiaries shall not exceed the aggregate amount of Indebtedness and trade accounts payable set forth on Schedule 3(bb) by more than $75,000 (as in effect as of the date hereof, without any increase in the principal thereof or the interest rate thereon, and without any waiver, amendment, supplement, restatement or modification thereof, other than to the extend the term thereof) issued by Velocity Energy Partners LP to Xxxxxx X. Xxxxxxxxxx; and “Xxxxxxxxxx Indebtedness” means the obligation evidenced by the Xxxxxxxxxx Note500,000.

Outstanding Indebtedness; Liens. Payments of principal and other payments due under the Sub Notes willOther than Permitted Indebtedness, upon issuance at the Closing, rank senior to all other Indebtedness of the Company or any of the Subsidiaries (other than the Indebtedness under the Senior Notes and the FNBW Indebtedness) and, by virtue of their secured position, and to the extent of the Collateral, to all trade account payables of the Company, and the obligations of the Subsidiaries under the Guaranty will, upon issuance of the Sub Notes at the Closing, rank senior to all other Indebtedness of the Subsidiaries other than the Senior Notes and, by virtue of the secured position of the Guaranty and to the extent of the Collateral, to all trade account payables of any of the Subsidiaries. Except as set forth on Schedule 3(z), (i) neither the Company nor any of Subsidiary has, or on the Subsidiaries has anyClosing Date will have, and upon consummation of the transactions contemplated hereby and by the other Transaction Documents will not have any, any outstanding Indebtedness other than (A) pursuant to the Senior Notes, the Securities Purchase Documents and the Transaction Documents, (B) the FNBW Indebtedness and (C) the Xxxxxxxxxx Indebtedness, (ii) there . There are no, and upon consummation of on the transactions contemplated hereby and by the other Transaction Documents Closing Date there will not be any, Liens on any of the assets of the Company or the Subsidiaries, any Subsidiary other than (X) pursuant to the Security Documents and (Y) the FNBW Security Interest, and (iii) there Permitted Liens. There are no, and upon consummation of on the transactions contemplated hereby and by the Senior Notes, the Securities Purchase Documents and the Transaction Documents Closing Date there will not be any, financing statements securing obligations of any amounts filed against the Company or Company, any of the Subsidiaries or any of their respective assets, other than under the Security Documentsin connection with Permitted Liens. As used in this AgreementFor purposes hereof, “FNBW NoteIndebtedness” means of any Person means, without duplication: (i) all indebtedness for borrowed money; (ii) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (other than unsecured account trade payables that certain promissory noteare entered into or incurred in the ordinary course of such Person’s business, dated July 11including those that arise under standard industry joint operating agreements); (iii) all reimbursement or payment obligations with respect to letters of credit, 2008surety bonds and other similar instruments; (iv) all obligations evidenced by notes, bonds, debentures, redeemable capital stock or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses; (v) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to any property or assets acquired with the outstanding principal amount proceeds of $150,000 such indebtedness (as in effect as even though the rights and remedies of the date hereofseller, without any increase bank or other financing source under such agreement in the principal thereof event of default are limited to repossession or sale of such property); (vi) all Capital Lease Obligations; (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, charge, security interest rate thereonor other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person that owns such assets or property has not assumed or become liable for the payment of such indebtedness; and without (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; “Contingent Obligation” means, as to any waiverPerson, amendmentany direct or indirect liability, supplementcontingent or otherwise, restatement of such Person with respect to any indebtedness, lease, dividend or modification other obligation of another Person if a primary purpose or intent of the Person incurring such liability, or a primary effect thereof, other than is to provide assurance to the extend obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the term thereofholders of such liability will be protected (in whole or in part) issued by North Texas to the First National Bank of Xxxxxxxxxxx (against loss with respect thereto; and “FNBW”); “FNBW Permitted Indebtedness” means (i) Indebtedness of the obligation evidenced by Company and the FNBW NoteSubsidiaries for taxes, assessments, municipal or governmental charges not yet due; “FNBW Security Interest” means (ii) obligations of the security interest granted by North Texas in certain of its vehicles, as specified on Schedule 3(z), in favor of FNBW, as security Company and the Subsidiaries resulting from endorsements for the FNBW Indebtedness (as such security interest is in effect on the date hereof, without any waiver, amendment, supplement, restatement collection or modification after the date hereof); “Xxxxxxxxxx Note” means that certain promissory note, dated July 8, 2006, deposit in the outstanding principal amount ordinary course of $75,000 business; and (as in effect as iii) obligations of the date hereof, without any increase in the principal thereof or the interest rate thereon, Company under Sections 2(b) and without any waiver, amendment, supplement, restatement or modification thereof, other than to the extend the term thereof) issued by Velocity Energy Partners LP to Xxxxxx X. Xxxxxxxxxx; and “Xxxxxxxxxx Indebtedness” means the obligation evidenced by the Xxxxxxxxxx Note.2(c). 11

Outstanding Indebtedness; Liens. Payments of principal and other payments due under the Sub outstanding Bridge Notes will, upon issuance at the Closing, will rank senior to all other Indebtedness of the Company or any of the Subsidiaries (other than the Indebtedness under obligations evidenced by the Diversity Note, which will rank senior to the Bridge Notes, and the obligations evidenced by the Existing Senior Notes and issued to Marquis, which will rank pari passu with the FNBW IndebtednessBridge Notes) and, by virtue of their secured position, position and to the extent of the CollateralCollateral (as defined in the Bridge Security Agreement), to all trade account payables of the Company, and the obligations of the Subsidiaries under the Bridge Guaranty will, upon issuance of the Sub Notes will at the Closing, all times rank senior to all other Indebtedness of the Subsidiaries (other than the obligations of the Subsidiaries under the Subsidiary Guaranty (as defined in the Existing Purchase Agreement) with respect to Indebtedness under the Existing Senior Notes issued to Marquis, which will rank pari passu with the obligations of the Subsidiaries under the Bridge Guaranty) and, by virtue of the secured position of the Guaranty Bridge Guarantees and to the extent of the Collateral, to all trade account payables of any of the Subsidiaries. Except as set forth on Schedule 3(z4(v), (i) neither the Company nor any of the Subsidiaries has any, and upon consummation of the transactions contemplated hereby and by the other Transaction Documents will not have any, outstanding Indebtedness other than (A) pursuant to the Senior Notes, the Securities Purchase Documents and the Transaction Documents, (B) the FNBW Indebtedness and (C) the Xxxxxxxxxx Indebtedness, (ii) there are no, and upon consummation of the transactions contemplated hereby and by the other Transaction Documents there will not be any, Liens on any of the assets of the Company or the Subsidiaries, other than (X) pursuant to the Security Documents and (Y) the FNBW Security Interest, and (iii) there are no, and upon consummation of the transactions contemplated hereby and by the Senior Notes, the Securities Purchase Documents and the Transaction Documents there will not be any, financing statements securing obligations of any amounts filed against the Company or any of the Subsidiaries or any of their respective assets, other than under the Security Documents. As used in this Agreement, “FNBW Note” means that certain promissory note, dated July 11, 2008, in the outstanding principal amount of $150,000 (as in effect as of the date hereof, without any increase in the principal thereof or the interest rate thereon, and without any waiver, amendment, supplement, restatement or modification thereof, other than to the extend the term thereof) issued by North Texas to the First National Bank of Xxxxxxxxxxx (“FNBW”); “FNBW Indebtedness” means the obligation evidenced by the FNBW Note; “FNBW Security Interest” means the security interest granted by North Texas in certain of its vehicles, as specified on Schedule 3(z), in favor of FNBW, as security for the FNBW Indebtedness (as such security interest is in effect on the date hereof, without any waiver, amendment, supplement, restatement or modification after the date hereof); “Xxxxxxxxxx Note” means that certain promissory note, dated July 8, 2006, in the outstanding principal amount of $75,000 (as in effect as of the date hereof, without any increase in the principal thereof or the interest rate thereon, and without any waiver, amendment, supplement, restatement or modification thereof, other than to the extend the term thereof) issued by Velocity Energy Partners LP to Xxxxxx X. Xxxxxxxxxx; and “Xxxxxxxxxx Indebtedness” means the obligation evidenced by the Xxxxxxxxxx Note.by

Outstanding Indebtedness; Liens. Payments of principal and other payments due under the Sub outstanding Notes will, upon issuance at the Closing, will rank senior to all other Indebtedness of the Company or any outstanding as of the Subsidiaries Closing Date (other than the Indebtedness under obligations evidenced by the Diversity Note, which will rank senior to the Notes, the obligations evidenced by the Senior Notes Notes, which will rank senior to the Notes, and the FNBW Indebtedness) and, obligations evidenced by virtue of their secured position, and to the extent each of the Collateralother outstanding Offering Notes, to all trade account payables of which will be pari passu with the CompanyNotes), and the obligations of the Applicable Subsidiaries under the Subsidiary Guaranty will, upon issuance of the Sub Notes will at the Closing, all times rank senior to all other Indebtedness of the Subsidiaries as of the Closing Date (other than the obligations of the Subsidiaries under the Bridge Guaranty (as defined in the Bridge Purchase Agreement) with respect to Indebtedness under the Bridge Notes, the Subsidiary Guaranty (as defined in the Existing Senior Notes Purchase Agreement), with respect to Indebtedness under the Existing Senior Notes, which will rank senior to the Subsidiary Guaranty, and the obligations of the Applicable Subsidiaries under the other executed Subsidiary Guaranties with respect to Indebtedness under the other outstanding Offering Notes, which will be pari passu with the Subsidiary Guaranty) and, by virtue of the secured position of the Guaranty Subsidiary Guarantees and to the extent of the Collateral, to all trade account payables of any of the Subsidiaries. Payments of principal and other payments due under the outstanding Notes will be pari passu with those due under all other Offering Notes outstanding as of the Closing Date or thereafter, and the obligations of the Applicable Subsidiaries under the Subsidiary Guaranty will be pari passu with the obligations of the Applicable Subsidiaries under any other Subsidiary Guaranties with respect to the Indebtedness under the other Offering Notes outstanding as of the Closing Date or thereafter. Except as set forth on Schedule 3(z4(v), (i) neither the Company nor any of the Subsidiaries has any, and upon consummation of the transactions contemplated hereby and by the other Transaction Documents will not have any, outstanding Indebtedness as of the Closing Date, except for the obligations evidenced by the Notes, the other than (A) pursuant to Offering Notes outstanding as of the Closing Date, the Bridge Notes, the Existing Senior Notes, the Securities Purchase Documents Diversity Note and for the Leexus Additional Consideration Obligation and the Transaction Documents, (B) the FNBW Indebtedness and (C) the Xxxxxxxxxx Indebtedness, (ii) there Leexus Settlement Obligation. There are no, and upon consummation of the transactions contemplated hereby and by the other Transaction Documents there will not be any, Liens on any of the assets of the Company or the Subsidiaries, other than except for Permitted Liens (X) pursuant to the Security Documents and (Y) the FNBW Security Interest, and (iii) there as defined below). There are no, and upon consummation of the transactions contemplated hereby and by the Senior Notes, the Securities Purchase Documents and the other Transaction Documents there will not be any, financing statements securing obligations of any amounts filed against the Company or any of the Subsidiaries or any of their respective assets, other than under pursuant to the Bridge Security DocumentsAgreement (as defined in the Bridge Purchase Agreement) and the Amended and Restated Security Agreement (as defined in the Existing Senior Security Agreement). As used in this AgreementFor purposes hereof, “FNBW Indebtedness” of any Person means, without duplication: (i) all indebtedness for borrowed money; (ii) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (other than unsecured account trade payables that are (A) entered into or incurred in the ordinary course of the Company’s and the Subsidiaries’ business, including those that arise under standard industry joint operating agreements, (B) on terms that require full payment within ninety (90) days from the date entered into or incurred and (C) not unpaid in excess of ninety (90) days from the date entered into or incurred, or are being contested in good faith and as to which such reserve as is required by GAAP has been made); (iii) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments; (iv) all obligations evidenced by notes, bonds, debentures, redeemable capital stock or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses; (v) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the seller, bank or other financing source under such agreement in the event of default are limited to repossession or sale of such property); (vi) all Capital Lease Obligations; (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, charge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person that owns such assets or property has not assumed or become liable for the payment of such indebtedness; and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; “Capital Lease Obligation” means, as to any Person, any obligation that is required to be classified and accounted for as a capital lease on a balance sheet of such Person prepared in accordance with GAAP; “Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of such Person with respect to any indebtedness, lease, dividend or other obligation of another Person if a primary purpose or intent of the Person incurring such liability, or a primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; “Diversity Note” means that certain promissory notePromissory Note, dated July 11September 24, 20082007, in the outstanding principal amount of $150,000 1,500,000 (as in effect as of the date hereof, without any increase in the principal thereof or the interest rate thereon, and without any waiver, amendment, supplement, restatement or modification thereof, other than to the extend the term thereof) issued by North Texas to the First National Bank of Xxxxxxxxxxx (“FNBW”); “FNBW Indebtedness” means the obligation evidenced by the FNBW Note; “FNBW Security Interest” means the security interest granted by North Texas in certain of its vehicles, as specified on Schedule 3(z), in favor of FNBW, as security for the FNBW Indebtedness (as such security interest is in effect on the date hereofof its original issuance, without any waiver, amendment, supplement, restatement or other modification thereof after such date), issued by the Company to Diversity Petroleum, L.P. (“Diversity”), pursuant to that certain Purchase and Sale Agreement, dated as of September 25, 2007, among STO Properties LLC (“STO”), a Texas limited liability company and wholly-owned subsidiary of the Company, Diversity and the other parties thereto (collectively with Diversity, the “Sellers”), whereby STO purchased certain assets of the Sellers; “Diversity Security Interest” means the first priority security interest granted by STO in favor of the Sellers, pursuant to that certain Deed of Trust, Security Agreement and UCC Financing Statement for Fixture Filing, dated September 25, 2007, between STO and Xxxxxxx X. Xxxxx, as Trustee for the benefit of the Sellers, in STO’s right title, interest, privileges and options in the real property subject to the leases set forth on Exhibit B to the Deed of Trust, as security for the performance by STO of its obligations under the Diversity Note (as such security interest was in effect on the date hereof); “Xxxxxxxxxx Note” means that certain promissory noteof its grant, dated July 8, 2006, in the outstanding principal amount of $75,000 (as in effect as of the date hereof, without any increase in the principal thereof or the interest rate thereon, and without any waiver, amendment, supplement, restatement or other modification thereof after such date); “Leexus Additional Consideration Obligation” means the Company’s obligation under that certain Agreement and Plan of Merger, dated as of March 7, 2007 (the “Leexus Merger Agreement”), by and among the Company, Leexus Operating Company, Leexus Properties Corp. (“Leexus”) and the shareholders of Leexus (the “Leexus Shareholders”) (as such agreement was in effect on the original date thereof, without any waiver, amendment, supplement, restatement or other modification after such date other than as set forth in the Leexus Settlement Agreement (as defined below)), to pay Additional Consideration (as defined in the Leexus Merger Agreement) to Xxxxxxx Xxxxxxxxxx an aggregate of $1,333,334 and deliver up to 666,667 shares of Common Stock pursuant to, and subject to the extend terms and conditions set forth in, Section IV of the term Leexus Merger Agreement; “Leexus Settlement Obligation” means the Company’s obligation under that certain Settlement Agreement, dated as of May 15, 2008 (the “Leexus Settlement Agreement”), by and among the Company, STO Operating, Xxxxxx Xxxxxxxx, Leexus Oil & Gas, LLP, and certain of the Leexus Shareholders (the “Leexus Settlement Shareholders”) (as such agreement was in effect on the original date thereof) issued by Velocity Energy Partners LP , without any waiver, amendment, supplement, restatement or other modification after such date), to Xxxxxx X. Xxxxxxxxxxpay up to an aggregate amount of $2,000,000 to the Leexus Settlement Shareholders pursuant to, and subject to the terms and conditions set forth in, Section 6 of the Leexus Settlement Agreement; and “Xxxxxxxxxx IndebtednessLien” means means, with respect to any asset or property, any mortgage, lien, pledge, hypothecation, charge, security interest, encumbrance or adverse claim of any kind and any restrictive covenant, condition, restriction or exception of any kind that has the obligation practical effect of creating a mortgage, lien, pledge, hypothecation, charge, security interest, encumbrance or adverse claim of any kind (including (i) any of the foregoing created by, arising under or evidenced by any conditional sale or other title retention agreement, the Xxxxxxxxxx Noteinterest of a lessor with respect to a Capital Lease Obligation, or any financing lease having substantially the same economic effect as any of the foregoing, and (ii) any restriction on the use, voting, transfer, receipt of income or other exercise of any attributes of free and clear ownership by a current holder).

Outstanding Indebtedness; Liens. Payments of principal and other payments due under the Sub outstanding Notes will, upon issuance at the Closing, will rank senior to all other Indebtedness of the Company or any outstanding as of the Subsidiaries Closing Date (other than the Indebtedness under obligations evidenced by the Diversity Note, which will rank senior to the Notes, and the obligations evidenced by the Senior Notes and the FNBW Indebtedness) andNotes, by virtue of their secured position, and which will rank senior to the extent of the Collateral, to all trade account payables of the CompanyNotes), and the obligations of the Applicable Subsidiaries under the Subsidiary Guaranty will, upon issuance of the Sub Notes will at the Closing, all times rank senior to all other Indebtedness of the Subsidiaries as of the Closing Date (other than the obligations of the Subsidiaries under the Bridge Guaranty (as defined in the Bridge Purchase Agreement) with respect to Indebtedness under the Bridge Notes and the Subsidiary Guaranty (as defined in the Existing Senior Notes Purchase Agreement), with respect to Indebtedness under the Existing Senior Notes, which will rank senior to the Subsidiary Guaranty) and, by virtue of the secured position of the Guaranty Subsidiary Guarantees and to the extent of the Collateral, to all trade account payables of any of the Subsidiaries. Except as set forth on Schedule 3(z4(v), (i) neither the Company nor any of the Subsidiaries has any, and upon consummation of the transactions contemplated hereby and by the other Transaction Documents will not have any, outstanding Indebtedness other than (A) pursuant to Indebtedness, except for the obligations evidenced by the Notes, the Bridge Notes, the Existing Senior Notes, the Securities Purchase Documents Diversity Note and for the Leexus Additional Consideration Obligation and the Transaction Documents, (B) the FNBW Indebtedness and (C) the Xxxxxxxxxx Indebtedness, (ii) there Leexus Settlement Obligation. There are no, and upon consummation of the transactions contemplated hereby and by the other Transaction Documents there will not be any, Liens on any of the assets of the Company or the Subsidiaries, other than except for Permitted Liens (X) pursuant to the Security Documents and (Y) the FNBW Security Interest, and (iii) there as defined below). There are no, and upon consummation of the transactions contemplated hereby and by the Senior Notes, the Securities Purchase Documents and the other Transaction Documents there will not be any, financing statements securing obligations of any amounts filed against the Company or any of the Subsidiaries or any of their respective assets, other than under pursuant to the Bridge Security DocumentsAgreement (as defined in the Bridge Purchase Agreement) and the Amended and Restated Security Agreement (as defined in the Existing Senior Security Agreement). As used in this AgreementFor purposes hereof, “FNBW Indebtedness” of any Person means, without duplication: (i) all indebtedness for borrowed money; (ii) all obligations issued, undertaken or assumed as the deferred purchase price of property or services (other than unsecured account trade payables that are (A) entered into or incurred in the ordinary course of the Company’s and the Subsidiaries’ business, including those that arise under standard industry joint operating agreements, (B) on terms that require full payment within ninety (90) days from the date entered into or incurred and (C) not unpaid in excess of ninety (90) days from the date entered into or incurred, or are being contested in good faith and as to which such reserve as is required by GAAP has been made); (iii) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments; (iv) all obligations evidenced by notes, bonds, debentures, redeemable capital stock or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses; (v) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the seller, bank or other financing source under such agreement in the event of default are limited to repossession or sale of such property); (vi) all Capital Lease Obligations; (vii) all indebtedness referred to in clauses (i) through (vi) above secured by (or for which the holder of such indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien, pledge, charge, security interest or other encumbrance upon or in any property or assets (including accounts and contract rights) owned by any Person, even though the Person that owns such assets or property has not assumed or become liable for the payment of such indebtedness; and (viii) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (i) through (vii) above; “Capital Lease Obligation” means, as to any Person, any obligation that is required to be classified and accounted for as a capital lease on a balance sheet of such Person prepared in accordance with GAAP; “Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of such Person with respect to any indebtedness, lease, dividend or other obligation of another Person if a primary purpose or intent of the Person incurring such liability, or a primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto; “Diversity Note” means that certain promissory notePromissory Note, dated July 11September 24, 20082007, in the outstanding principal amount of $150,000 1,500,000 (as in effect as of the date hereof, without any increase in the principal thereof or the interest rate thereon, and without any waiver, amendment, supplement, restatement or modification thereof, other than to the extend the term thereof) issued by North Texas to the First National Bank of Xxxxxxxxxxx (“FNBW”); “FNBW Indebtedness” means the obligation evidenced by the FNBW Note; “FNBW Security Interest” means the security interest granted by North Texas in certain of its vehicles, as specified on Schedule 3(z), in favor of FNBW, as security for the FNBW Indebtedness (as such security interest is in effect on the date hereofof its original issuance, without any waiver, amendment, supplement, restatement or other modification thereof after such date), issued by the Company to Diversity Petroleum, L.P. (“Diversity”), pursuant to that certain Purchase and Sale Agreement, dated as of September 25, 2007, among STO Properties LLC (“STO”), a Texas limited liability company and wholly-owned subsidiary of the Company, Diversity and the other parties thereto (collectively with Diversity, the “Sellers”), whereby STO purchased certain assets of the Sellers; “Diversity Security Interest” means the first priority security interest granted by STO in favor of the Sellers, pursuant to that certain Deed of Trust, Security Agreement and UCC Financing Statement for Fixture Filing, dated September 25, 2007, between STO and Xxxxxxx X. Xxxxx, as Trustee for the benefit of the Sellers, in STO’s right title, interest, privileges and options in the real property subject to the leases set forth on Exhibit B to the Deed of Trust, as security for the performance by STO of its obligations under the Diversity Note (as such security interest was in effect on the date hereof); “Xxxxxxxxxx Note” means that certain promissory noteof its grant, dated July 8, 2006, in the outstanding principal amount of $75,000 (as in effect as of the date hereof, without any increase in the principal thereof or the interest rate thereon, and without any waiver, amendment, supplement, restatement or other modification thereof after such date); “Leexus Additional Consideration Obligation” means the Company’s obligation under that certain Agreement and Plan of Merger, dated as of March 7, 2007 (the “Leexus Merger Agreement”), by and among the Company, Leexus Operating Company, Leexus Properties Corp. (“Leexus”) and the shareholders of Leexus (the “Leexus Shareholders”) (as such agreement was in effect on the original date thereof, without any waiver, amendment, supplement, restatement or other modification after such date other than as set forth in the Leexus Settlement Agreement (as defined below)), to pay Additional Consideration (as defined in the Leexus Merger Agreement) to Xxxxxxx Xxxxxxxxxx an aggregate of $1,333,334 and deliver up to 666,667 shares of Common Stock pursuant to, and subject to the extend terms and conditions set forth in, Section IV of the term Leexus Merger Agreement; “Leexus Settlement Obligation” means the Company’s obligation under that certain Settlement Agreement, dated as of May 15, 2008 (the “Leexus Settlement Agreement”), by and among the Company, STO Operating, Xxxxxx Xxxxxxxx, Leexus Oil & Gas, LLP, and certain of the Leexus Shareholders (the “Leexus Settlement Shareholders”) (as such agreement was in effect on the original date thereof) issued by Velocity Energy Partners LP , without any waiver, amendment, supplement, restatement or other modification after such date), to Xxxxxx X. Xxxxxxxxxxpay up to an aggregate amount of $2,000,000 to the Leexus Settlement Shareholders pursuant to, and subject to the terms and conditions set forth in, Section 6 of the Leexus Settlement Agreement; and “Xxxxxxxxxx IndebtednessLien” means means, with respect to any asset or property, any mortgage, lien, pledge, hypothecation, charge, security interest, encumbrance or adverse claim of any kind and any restrictive covenant, condition, restriction or exception of any kind that has the obligation practical effect of creating a mortgage, lien, pledge, hypothecation, charge, security interest, encumbrance or adverse claim of any kind (including (i) any of the foregoing created by, arising under or evidenced by any conditional sale or other title retention agreement, the Xxxxxxxxxx Noteinterest of a lessor with respect to a Capital Lease Obligation, or any financing lease having substantially the same economic effect as any of the foregoing, and (ii) any restriction on the use, voting, transfer, receipt of income or other exercise of any attributes of free and clear ownership by a current holder).

Outstanding Indebtedness; Liens. Payments of principal and other payments due under the Sub outstanding Notes will, upon issuance at the Closing, will rank senior to all other Indebtedness of the Company or any of the Subsidiaries (other than the Indebtedness under obligations evidenced by the Senior Notes and the FNBW IndebtednessDiversity Note) and, by virtue of their secured position, position and to the extent of the Collateral, to all trade account payables of the Company, and the obligations of the Subsidiaries under the Guaranty will, upon issuance of the Sub Notes Guarantees will at the Closing, all times rank senior to all other Indebtedness of the Subsidiaries other than the Senior Notes and, by virtue of the secured position of the Guaranty Guarantees and to the extent of the Collateral, to all trade account payables of any of the Subsidiaries. Except as set forth on Schedule 3(z), (i) neither Neither the Company nor any of the Subsidiaries has any, and upon consummation of the transactions contemplated hereby and by the other Transaction Documents will not have any, outstanding Indebtedness other than (A) pursuant to Indebtedness, except for the Senior obligations evidenced by the Notes, and by the Securities Purchase Documents Diversity Note, for the Leexus Additional Consideration Obligation, and the Transaction Documents, for any other Permitted Indebtedness (Bas defined in Section 6(f) the FNBW Indebtedness and (C) the Xxxxxxxxxx Indebtedness, (ii) there hereof). There are no, and upon consummation of the transactions contemplated hereby and by the other Transaction Documents there will not be any, Liens on any of the assets of the Company or the Subsidiaries, other than (X) pursuant to the Security Documents and (Y) the FNBW Security Interest, and (iii) there except for Permitted Liens. There are no, and upon consummation of the transactions contemplated hereby and by the Senior Notes, the Securities Purchase Documents and the other Transaction Documents there will not be any, financing statements securing obligations of any amounts filed against the Company or any of the Subsidiaries or any of their respective assets, other than under pursuant to the Amended and Restated Security DocumentsAgreement. As used in this Agreement, “FNBW Note” means that certain promissory note, dated July 11, 2008, in the outstanding principal amount of $150,000 (as in effect as of the date For purposes hereof, without any increase in the principal thereof or the interest rate thereon, and without any waiver, amendment, supplement, restatement or modification thereof, other than to the extend the term thereof) issued by North Texas to the First National Bank of Xxxxxxxxxxx (“FNBW”); “FNBW Indebtedness” means the obligation evidenced by the FNBW Note; “FNBW Security Interest” means the security interest granted by North Texas in certain of its vehicles, as specified on Schedule 3(z), in favor of FNBW, as security for the FNBW Indebtedness (as such security interest is in effect on the date hereof, without any waiver, amendment, supplement, restatement or modification after the date hereof); “Xxxxxxxxxx Note” means that certain promissory note, dated July 8, 2006, in the outstanding principal amount of $75,000 (as in effect as of the date hereof, without any increase in the principal thereof or the interest rate thereon, and without any waiver, amendment, supplement, restatement or modification thereof, other than to the extend the term thereof) issued by Velocity Energy Partners LP to Xxxxxx X. Xxxxxxxxxx; and “Xxxxxxxxxx Indebtedness” means the obligation evidenced by the Xxxxxxxxxx Note."

Outstanding Indebtedness; Liens. Payments of principal and other payments due under the Sub RCGI Notes will, upon issuance at in connection with each of the ClosingClosings, rank senior to all other Indebtedness of the Company or any of the Subsidiaries (other than the Indebtedness under the Senior Notes and the FNBW Indebtedness) RCGI and, by virtue of their secured position, position and to the extent of the Collateral, to all trade account payables of the CompanyRCGI, and the obligations of the Included Subsidiaries under the Guaranty Guarantee will, upon issuance of the Sub RCGI Notes at in connection with each of the ClosingClosings, rank senior to all other Indebtedness of the Included Subsidiaries other than the Senior Notes and, by virtue of the secured position of the Guaranty Guarantee and to the extent of the Collateral, to all trade account payables of any of the Included Subsidiaries. Except as set forth on Schedule 3(z), (i) neither the Company RCGI nor any of the Subsidiaries has any, and upon consummation of the transactions contemplated hereby and by the other Transaction Documents will not have any, outstanding Indebtedness or trade account payables other than (A) pursuant to the Senior Notes, the Securities Purchase Documents and the Transaction Documents, (B) the FNBW Indebtedness and (C) the Xxxxxxxxxx Indebtedness, (ii) there are no, and upon consummation of the transactions contemplated hereby and by the other Transaction Documents there will not be any, Liens on any of the assets of the Company RCGI or the Included Subsidiaries, other than (X) pursuant to the Security Documents and (Y) the FNBW Security Interest, and (iii) there are no, and upon consummation of the transactions contemplated hereby and by the Senior Notes, the Securities Purchase Documents and the other Transaction Documents there will not be any, financing statements securing obligations of any amounts filed against the Company RCGI or any of the Included Subsidiaries or any of their respective assets, other than under the Security Documents. As used in this Agreement, “FNBW Note” means that certain promissory note, dated July 11, 2008, in the outstanding principal amount of $150,000 (as in effect as of the date hereof, without any increase in the principal thereof Agreement or the interest rate thereon, and without any waiver, amendment, supplement, restatement or modification thereof, other than to the extend the term thereof) issued by North Texas to the First National Bank of Xxxxxxxxxxx (“FNBW”); “FNBW Indebtedness” means the obligation evidenced by the FNBW Note; “FNBW Security Interest” means the security interest granted by North Texas in certain of its vehicles, as specified on Schedule 3(z), agreement in favor only of FNBW, as security for the FNBW Indebtedness (as such security interest is in effect on the date hereof, without any waiver, amendment, supplement, restatement or modification after the date hereof); “Xxxxxxxxxx Note” means that certain promissory note, dated July 8, 2006, in the outstanding principal amount of $75,000 (as in effect as of the date hereof, without any increase in the principal thereof or the interest rate thereon, and without any waiver, amendment, supplement, restatement or modification thereof, other than to the extend the term thereof) issued by Velocity Energy Partners LP to Xxxxxx X. Xxxxxxxxxx; and “Xxxxxxxxxx Indebtedness” means the obligation evidenced by the Xxxxxxxxxx NoteBuyer.