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HomeMy WebLinkAboutContract 28496-GA1 CITY SECRETARY GUARANTY AGREEMENT CONTRACT NO. � A THIS GUARANTY AGREEMENT is made and dated as of January 5, 2010,between Waste Management, Inc. a corporation organized and existing under the laws of the State of Delaware (together with any permitted successors and assigns hereunder, the "Guarantor"), and the City of Fort Worth, a municipal corporation organized and existing under the laws of the State of Texas("City"). RECITALS The City and Abitibi Consolidated Corporation, have entered into a Contract for the Processing of Recyclable Materials, dated as of March 26, 2003, as amended from time to time (the "Contract") whereby the Abitibi Consolidated Corporation has agreed to process recyclable materials, all as more particularly described therein. Abitibi Consolidated Corporation has assigned the Contract to WM Recycle America, L.L.C., (the "Company") a corporation organized and existing under the laws of the State of Texas and duly authorized to do business in the State of Texas and the City has consented to that assignment. The Company is an indirect subsidiary of the Guarantor. The City has consented to the assignment of the Contract based on Guarantor's agreement to guarantee the performance by the Company of all of the Company's responsibilities and obligations under the Contract as set forth in this Guaranty Agreement(the "Guaranty"). In order to induce the assignment of the Contract by the City and in consideration thereof, the Guarantor agrees as follows: ARTICLE I DEFINITIONS AND INTERPRETATION SECTION I.I. DEFINITIONS. For the purposes of this Guaranty, the term "Obligations" means the amounts payable by, and the covenants and agreements of, the Company pursuant to the terms of the Contract. Any other capitalized word or term used but not defined herein is used as defined in the Contract. SECTION I.2.INTERPRETATION.In this Guaranty, unless the context otherwise requires: (A) References Hereto. The terms "hereby", "hereof', "herein", "hereunder" and any similar terms refer to this Guaranty, and the term "hereafter" means after, and the term "heretofore" means before, the date of execution and delivery of this Guaranty. (B) Gender and Plurality. Words of the masculine gender mean and include correlative words of the feminine and neuter genders and words importing the singular number mean and include the plural number and vice versa. (C)Persons. Words importing persons include firms,companies, associations, general partnerships, limited partnerships, trusts, business trusts, corporations and other legal entities, including public bodies, as well as individuals. (D) Headings. The table of contents and any headings preceding the text of the Articles, Sections and subsections of this Guaranty shall be solely for convenience of reference and shall not constitute a part of this Guaranty,nor shall they affect its meaning,construction or effect. tF.) Entire Agreement: Authority. This Guaranty constitutes the entire agreement between the parties hereto with respect to the transactions contemplated by this Guaranty Nothing in this Guaranty is intended to confer on any person other dFmicthe GweOwt. the Citr and their permitted successors and assigns hereunder any rights or remedies ttrttler or 43,4 QVajF-qf this Guaranty. (F) Counterparts. This Guaranty may be executed in any number of original counterparts. All such counterparts shall constitute but one and the same Guaranty. (G) Applicable Law. This Guaranty shall be governed by and construed in accordance with the applicable laws of the State of Texas. (H) Severability. If any clause, provision, subsection, Section or Article of this Guaranty shall be ruled invalid by any court of competent jurisdiction, the invalidity of any such clause, provision, subsection, Section or Article shall not affect any of the remaining provisions hereof, and this Guaranty shall be construed and enforced as if such invalid portion did not exist provided that such construction and enforcement shall not increase the Guarantor's liability beyond that expressly set forth herein. (I) Approvals. All approvals, consents and acceptances required to be given or made by any party hereto shall be at the sole discretion of the party whose approval,consent or acceptance is required. (J)Payments.All payments required to be made by the Guarantor hereunder shall be made in lawful money of t;ie United States of America. ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR SECTION ILL REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR. The Guarantor hereby represents and warrants that: (A) Existence and Powers. The Guarantor is a duly registered company organized and validly existing under the laws of Delaware, with full legal right,power and authority to enter into and perform its obligations under this Guaranty. (B) Due Authorization and Binding Obligation. The Guarantor has duly authorized the execution and delivery of this Guaranty, and this Guaranty has been duly executed and delivered by the Guarantor and constitutes the legal, valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms except insofar as such enforcement may be affected by bankruptcy, insolvency, moratorium or by general equity principals of reorganization and other similar laws affecting creditors'rights generally and general principles of equity. (C) No Conflict. Neither the execution or delivery by the Guarantor of this Guaranty nor the performance .,Y the Guarantor of its obligations h erew-der(1)to the Guarantor's knowwledge conflicts :with,violates or results in a breach of any law or governmental regulation applicable to the Guarantor, (2) conflicts with, violates or results in a material breach of any term or condition of the Guarantor's corporate charter or by-laws or any judgment, decree, agreement or instrument to which the Guarantor is a party or by which the Guarantor or any of its properties or assets are bound, or constitutes a default under any such judgment, decree, agreement or instrument, or (3) to the Guarantor's knowledge will result in the creation or imposition of any material encumbrance of any nature whatsoever upon any of the properties or assets of the Guarantor except as permitted hereby. (D) No Governmental Approval Required. No approval, authorization, order or consent of, or declaration, registration or filing with, any governmental authority is required of the Guarantor for the valid execution and delivery by the Guarantor of this Guaranty,except such as shall have been duly obtained or made. (E) No Litigation. Except as disclosed in the Guarantor's filings with the Securities and Exchange Commission pursuant to the requirements of the Securities Exchange Act of 1934, as amended, there is no action, suit or ether proceeding, at law or in equity, before or by any court or governmental authority, pending or. to the Guarantor's knowledge. threatened against the GUarantor which has a likelihood of an untavorable decision. ruling or finding that would materially and adversely affect the validity or enforceability of this Guaranty. (F) No Legal Prohibition. The Guarantor has no knowledge of any Applicable Law in effect on the date as of which this representation is being made which would prohibit the performance by the Guarantor of this Guaranty and the transactions contemplated by this Guaranty. (G)Consent to Agreements.The Guarantor is fully aware of the terms and conditions of the Contract. (H)Consideration. This Guaranty is made in furtherance of the purposes for which the Guarantor has been organized, and the assumption by the Guarantor of its obligations hereunder will result in a material benefit to the Guarantor. ARTICLE III GUARANTY COVENANTS SECTION 111.1. GUARANTY TO CITY. The Guarantor hereby absolutely, presently, irrevocably and unconditionally guarantees to the City for the benefit of the City (1) the full and prompt payment when due of each and all of the payments required to be credited or made by the Company under the Contract (including all amendments and supplements thereto)to, or for the account of, City, when the same shall become due and payable pursuant to this Guaranty, and (2) the full and prompt performance and observance of each and all of the Obligations. Notwithstanding the unconditional nature of the Guarantor's obligations as set forth herein, the Guarantor shall have the right to assert the defenses provided in Section 3.4 hereof against claims made under this Guaranty. SECTION II1.2.RIGHT OF CITY TO PROCEED AGAINST GUARANTOR. This Guaranty shall constitute a guaranty of payment and of performance and not of collection, and the Guarantor specifically agrees that in the event of a failure by the Company to pay or perform any obligation guaranteed hereunder, the City shall have the right to proceed first and directly against the Guarantor under this Guaranty and without proceeding against the Company or exhausting any other remedies against the Company which the City may have.Without limiting the foregoing,the Guarantor agrees that it shall not be necessary,and that the Guarantor shall not be entitled to require, as a condition of enforcing the liability of the Guarantor hereunder, that the City (1) file suit or proceed to obtain a personal judgment against the Company or any other person that may be liable for the Obligations or any part of the Obligations, (2) make any other effort to obtain payment or performance of the Obligations from the Company other than providing the Company with any notice of such payment or performance as may be required by the terms of the Contract or required to be given to the Company under Applicable Law, (3) foreclose against or seek to realize upon any security for the Obligations,or(4)exercise any other right or remedy to which the City is or may be entitled in connection with the Obligations or any security therefor or any other guarantee thereof,except to the extent that any such exercise of such other right or remedy may be a condition to the Obligations of the Company or to the enforcement of remedies under the Contract. Upon any unexcused failure by the Company III Ulie payment or performance of any Obligation and the giving of such notice or demand, if any, to the Company and Guarantor as may be required in connection with such Obligation and this Guaranty, the liability of the Guarantor shall be effective and shall immediately be paid or performed. Notwithstanding the City's right to proceed directly against the Guarantor, the City (or any successor) shall not be entitled to more than a single full performance of the obligations in regard to any breach or non-performance thereof. SECTION I11.3. GUARANTY ABSOLUTE AND UNCONDITIONAL. The obligations of the Guarantor hereunder are absolute, present, irrevocable and unconditional and shall remain in full force and effect until the Company shall have fully discharged the Obligations in accordance with their respective terms, and except as provided in Section 3.4 hereof,shall not be subject to any counterclaim,set-off,deduction or defense(other than full and strict compliance with, or release, discharge or satisfaction of, such obligations) based on any claim that the Guarantor may have against the Company, the City or any other person. Without limiting the foregoing, the obligations of the Guarantor hereunder shall not be released, discharged or in any way modified by reason of any of the following (whether with or without notice to, knowledge by or turther consent of the Guarantor): (I)the extension or renewal of this Guaranty or the Contract up to the specified Terms of each agreement; (2) any exercise or failure, omission or delay by the City in the exercise of any right, power or remedy conferred on the City with respect to this Guaranty or the Contract except to the extent such failure, omission or delay gives rise to an applicable statute of limitations defense with respect to a specific claim; (3) any permitted transfer or assignment of rights or obligations under the Contract by any party thereto (other than a permitted assignment to a replacement contractor in the event of a termination of the Company pursuant to Section 20 of the Contract), or any permitted assignment, conveyance or other transfer of any of their respective interests in the Managed Assets or in,to or under any of the Contract; (4)any permitted assignment for the purpose of creating a security interest or mortgage of all or any part of the respective interests of the City; (5) any renewal, amendment, change or modification in respect of any of the Obligations or terms or conditions of the Contract; (6)any failure of title with respect to all or any part of the respective interests of any person in the Disposal Site and/or Processing Facility(if applicable); (7) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, moratorium, arrangement, composition with creditors or readjustment of, or other similar proceedings against the Company or the Guarantor, or any of the property of either of them, or any allegation or contest of the validity of this Guaranty in any such proceeding(it is specifically understood,consented and agreed to that, to the extent permitted by law, this Guaranty shall remain and continue in full force and effect and shall be enforceable against the Guarantor to the same extent and with the same force and effect as if any such proceeding had not been instituted and as if no rejection, stay, termination, assumption or modification has occurred as a result thereof, it being the intent and purpose of this Guaranty that the Guarantor shall and does hereby waive all rights and benefits which might accrue to it by reason of any such proceeding); (8) except as permitted by Sections 4.1 or 4.2 hereof, any sale or other transfer by the Guarantor or any Affiliate of any of the capital stock or other interest of the Guarantor or any Affiliate in the Company now or hereafter owned, directly or indirectly, by the Guarantor or any Affiliate, or any change in composition of the interests in the Company; (9) any failure on the part of the Company for any reason to perform or comply with any agreement with the Guarantor; (10) the failure on the part of the City to provide any notice to ilae Guarantor NNI-ch is riot required to be given to the Guarantor pursuant to this Guaranty and to the Company as a condition to the enforcement of Obligations pursuant to the Contract; (1 1) any failure of any party to the Contract to mitigate damages resulting from any default by the Company or the Guarantor; (12) the merger or consolidation of any party to the Contract into or with any other person, or any sale. lease,transfer,abandonment or other disposition of any or all of the property of any of the foregoing to any person. (13)any legal disability or incapacity of any party to the Contract;or (14) the fact that entering into any transaction by the Company or the Guarantor was invalid or in excess of the powers of such party. Should any money due or owing under this Guaranty not be recoverable from the Guarantor due to any of the matters specified in subparagraphs (1) through (14) above, then, in any such case. such money. together with all additional sums due hereunder, shall nevertheless be recoverable from the Guarantor as though the Guarantor were principal obligor in place of the Company pursuant to the terms of the Contract and not merely a guarantor and shall be paid by the Guarantor forthwith subject to the terms of this Guaranty. Notwithstanding anything to the contrary expressed in this Guaranty, nothing in this Guaranty shall be deemed to amend, modify, clarify, expand or reduce the Company's rights, benefits, duties or obligations under the Contract. To the extent that any of the matters specified in subparagraphs (1) through (6) and (8) through (14) would provide a defense to, release, discharge or otherwise affect the Company's Obligations, the Guarantor's obligations under this Guaranty shall be treated the same. SECTION II1.4. DEFENSES, SET-OFFS AND COUNTERCLAIMS. Notwithstanding any provision contained herein to the contrary, the Guarantor shall be entitled to exercise or assert any and all legal or equitable rights or defenses which the Company may have under the contract or under Applicable Law(other than bankruptcy or insolvency of the Company and other than any defense which the Company has expressly waived in the Contract or the Guarantor has expressly waived in Section 3.5 hereof or elsewhere hereunder), and the obligations of the Guarantor hereunder are subject to such counterclaims, set-offs or defenses which the Company is permitted to assert pursuant to the Contract,if any. SECTION 111.5. WAIVERS BY THE GUARANTOR. The Guarantor hereby unconditionally and irrevocably waives: (1)notice from the City of its acceptance of this Guaranty; (2)notice of any of the events referred to in Section 3.3 hereof, except to the extent that notice is required to be given as a condition to the enforcement of Obligations; (3) to the fullest extent lawfully possible, all notices which may be required by statute, rule of law or otherwise to preserve intact any rights against the Guarantor,except any notice to the Company required pursuant to the Contract or Applicable Law as a condition to the performance of any Obligation; (4)to the fullest extent lawfully possible,any statute of limitations defense based on a statute of limitations period which may be applicable to guarantors (or parties in similar relationships) which would be shorter than the applicable statute of limitations period for the underlying claim; (5)any right to require a proceeding first against the Company; (6)any right to require a proceeding first against any person; (7) any requirement that the Company be joined as a party to any proceeding for the enforcement of any term or condition of the Contract; (8) the requirement of, or the notice of, the filing of claims by the City in the event of the receivership or bankruptcy of the Company;and (9) all demands upon the Company or any other person and all other formalities the omission of any of which, or delay in performance of which, might, but for the provisions of this Section 3.5, by rule of law or otherwise, constitute grounds for relieving or discharging the Guarantor in whole or in part from its absolute, present, irrevocable,unconditional and continuing obligations hereunder. SECTION III.6. PAYMENT OF COSTS AND EXPENSES. The Guarantor agrees to pay the City on demand all reasonable costs and expenses, legal or otherwise (including counsel fees), incurred by or on behalf of the City in successfully enforcing by Legal Proceeding observance of the covenants, agreements and obligations contained in this Guaranty against the Guarantor, other than the costs and expenses that the City incurs in performing any of its obligations under the Contract. SECTION 111.7. SUBORDINATION OF RIGHTS. The Guarantor agrees that any right of subrogation or contribution which it may have against the Company as a result of any payment or performance hereunder is hereby fully subordinated to the rights of the City hereunder and under the Contract and that the Guarantor shall not recover or seek to recover any payment made by it hereunder from the Company until the Company and the Guarantor shall have fully and satisfactorily paid or performed and discharged the Obligations giving rise to a claim under this Guaranty. SECTION III.8. SEPARATE OBLIGATIONS; REINSTATEMENT. The obligations of the Guarantor to make any payment or to perform and discharge any other duties,agreements,covenants,undertakings or obligations hereunder shall (1)to the extent permitted by Applicable Law,constitute separate and independent obligations of the Guarantor from its other obligations under this Guaranty, (2) give rise to separate and independent causes of action against the Guarantor, and (3) apply irrespective of any indulgence granted from time to time by the City. The Guarantor agrees that this Guaranty shall be automatically reinstated if and to the extent that for any reason any payment or performance by or on behalf of the Company is rescinded or must be otherwise restored by the City, whether as a result of any proceedings in bankruptcy,reorganization or similar proceeding, unless such rescission or restoration is pursuant to the terms of the Contract or the Company's enforcement of such terms under Applicable Law. SECTION I11.9. TERM. This Guaranty shall remain in full force and effect from the date set forth above until all of the Obligations of the Company have been fully paid and performed. This Guaranty shall be effective irrespective as to when the Commencement Date occurs. ARTICLE IV GENERAL COVENANTS SECTION IV.1.MAINTENANCE OF CORPORATE EXISTENCE. (A)Consolidation,Merger,Sale or Transfer. The Guarantor covenants that during the term of this Guaranty it will maintain its corporate existence, will not dissolve or otherwise dispose of all or substantially all of its assets and will not consolidate with or merge into another entity or permit one or more other entities to consolidate with or merge into it; provided, however, that the Guarantor may consolidate with or merge into another entity, or permit one or more other entities to consolidate with or merge into it, or sell or otherwise transfer to another entity all or substantially all of its assets as an entirety and thereafter dissolve if the successor entity(if other than the Guarantor) (1) assumes in writing all the obligations of the Guarantor hereunder and, if required by law, is duly qualified to do business in the State of Texas, and (2) delivers to the City an opinion of counsel to the effect that its obligations under this Guaranty are legal,valid,binding and enforceable subject to applicable bankruptcy and similar insolvency or moratorium laws, (B)Continuance of Obligations. If a consolidation, merger or sale or other transfer is made as permitted by this Section 4.1,the provisions of this Section 4.1 shall continue in full force and effect and no further consolidation, merger or sale or other transfer shall be made except in compliance with the provisions of this Section 4.1. No such consolidation, merger or sale or other transfer shall have the effect of releasing the initial Guarantor from its liability hereunder unless a successor entity has assumed responsibility for this Guaranty as provided in this Section 4.1. SECTION IV.2. ASSIGNMENT. Without the prior written consent of the City, this Guaranty may not be assigned by the Guarantor,except pursuant to Section 4.1 hereof. SECTION IV.3. QUALIFICATION IN TEXAS. The Guarantor agrees that, so long as this Guaranty is in effect, if required by law,the Guarantor will be duly qualified to do business in the State of Texas. SECTION IVA. CONSENT TO JURISDICTION. The Guarantor irrevocably: (1) agrees that any Legal Proceeding arising out of this Guaranty shall be brought in the State or federal courts in Fort Worth, Texas having appropriate jurisdiction: (2) consents to the jurisdiction of such court in any such Legal Proceeding; (3) waives any objection which it may have to the laying of the jurisdiction of any such legal Proceeding in any of such courts: and (4) waives its right to a trial by jury in any Legal Proceeding in any of such courts. SECTION IV.5. BINDING EFFECT. This Guaranty shall inure to the benefit of the City and its permitted successors and assigns and shall be binding upon the Guarantor and its successors and assigns. SECTION IV.6. AMENDMENTS, CHANGES AND MODIFICATIONS. This Guaranty may not be amended,changed or modified or terminated and none of its provisions may be waived,except with the prior written consent of the City and of the Guarantor. SECTION IV.7. LIABILITY. It is understood and agreed to by the City that nothing contained herein shall create any obligation of or right to look to any director, officer, employee or stockholder of the Guarantor (or any Affiliate thereof) for the satisfaction of any obligations hereunder,and no judgment,order or execution with or to or in connection with this Guaranty shall be taken against any such director,officer,employee or stockholder. SECTION IV.8. NOTICES. All notices, demands, requests and other communications hereunder shall be deemed sufficient and properly given if in writing and delivered in person to the following addresses or sent by first class mail and facsimile,to such addresses: (a) If to the Guarantor: Waste Management,Inc. 1001 Fannin Street, Suite 4000 Houston,TX 77002 Attn.: General Counsel (b) If to the City: it no 4t)r City of Fort Worth," 1000 Throckmorton Fort Worth, Tie /—U 0 Attn: -fi n��y�x & It�ll �,Jr With a copy to: "' and the City Attorney. Either party may,by like notice,designate further or different addresses to which subsequent notices shall be sent.Any notice hereunder signed on behalf of the notifying party by a duly authorized attorney at law shall be valid and effective to the same extent as if signed on behalf of such party by a duly authorized officer or employee.Notices and communications given by mail hereunder shall be deemed to have been given five(5)days after the date of dispatch;all other notices shall be deemed to have been given upon receipt. IN WITNESS WHEREOF,the Guarantor has caused this Guaranty to be executed in its name and on its behalf by its duly authorized officer as of the date first above written. Waste Management,Inc.,as Guarantor ATTEST: 16 Printed Name:_ Cherie C. Rice Vice President&Treasurer Linda J. Smith Title: Vice President and Secretary Waste anagement,In=Guarantor By: Printed Name: Deyina Rankin Assistant Treasurer Title: Accepted and Agreed to by: [City Seal] CITY OF FORT WORTH ATTEST: By: _ ,n Printed Name: J (1' (1 C7 b Title:L-a S�-7,v t 4- C,] � M 'F—N(O 1,lUt' WRED 0 FORM AND LEGALITY: CITY AT ORNEY F _ ti PERFORMANCE BOND Bond No. 1055538 THE STATE OF TEXAS) COUNTY OF TARRANT ) SS. KNOW ALL MEN BY THESE PRESENTS: That we, WM Recycle America, L.L.C., a limited liability company of Delaware hereinafter called Principal, and Lexon Insurance Company, a corporation organized and existing under the laws of the State of Texas and fully authorized to transact business in the State of Texas as Surety, are held and firmly bound unto the City of Fort Worth, a municipal corporation organized and existing under the laws of the State of Texas, hereinafter called City, in the penal sum of One Million Five Hundred Thousand and 00/100 ($1,500,000.00) Dollars in lawful money of the United States, to be paid in Fort Worth, Tarrant County, Texas, for the payment of which sum well and truly to be made, we hereby bind ourselves, our heirs, executors, administrators and successors, jointly and severally, firmly by these presents. THE CONDITION OF THIS OBLIGATION is such that whereas the Principal has assumed a certain Contract with the City of Fort Worth, dated as of March 26, 2002, a copy of which is hereto attached and made a part hereof, to provide the public service of as specifically directed by the Director of City Services of the City of Fort Worth, such public service hereinafter referred to as the "Work". NOW, THEREFORE, if the Principal shall well, truly and faithfully perform the Work in accordance with the Specifications and Contract Documents during the original term thereof, and any extensions or renewals thereof without or without notice to the Surety, and if Principal shall satisfy all claims and demands of any kind incurred under such Contract, including but not limited to the payment of all amounts owed by the Principal to persons who furnished labor, equipment, materials, or services in connection with the Work, and if the Principal shall fully indemnify and save harmless the City from all costs and damages which it may suffer by reason of failure to do so, and shall reimburse and repay the City all outlay and expense which the City may incur in making good any default, then this obligation shall be void; otherwise to remain in full force and effect. PROVIDED FURTHER, that if any legal action be filed upon this bond, venue shall lie in Tarrant County, State of Texas. AND PROVIDED FURTHER, THAT THE SAID Surety, for value received hereby stipulates and agrees that no change, extension of time, renewal, alternations or additions to the terms of the Contract or to the t Work to be performed thereunder or the Specifications accompanying the same shall in any ways affect its obligation on this bond, and it does hereby waive notice of any change, extension of time, renewal, alteration or addition to the terms of the Contract or to the work or to the Specifications. IN WITNESS WHEREOF, this instrument is executed in four counterparts, each one of which shall be deemed an original dated September 1, 2010. WM Recycle America, L.L.C. Principal ATTEST: By: _ 44A't- Joh sal V.P. Assistsat General Counsel 1923 Meridian Street Arlinqton, TX 76011-7803 Address Witness as to Principal �9a3/�'/ti"rc��ahynZ1 ��( 7Gv1 Lexon Insurance Company Address Surety ATTEST: By: G Jacki C. Koestel, Attorney-in-Fact (SEAL) Sandra F. Harper Witness as to Surety 10002 Shelbyville Road, Suite 100 Louisville, KY 40223 Address 4 T POWER OF ATTORNEY Lexon Insurance Company Lx - 78299 KNOW ALL MEN BY THESE PRESENTS, that LEXON INSURANCE COMPANY, a Texas Corporation, with its principal office in Louisville, Kentucky, does hereby constitute and appoint:Brook T. Smith, Kathy Hobbs, Raymond A Hundley,Jason D. Cromwell, James H.Martin,Sandra F.Harper,Myrtie F.Henry,Virginia E.Woolridge, Deborah Neichter,Jill Kemp,Jackie C.Koestel,Sheryon Quinn its true and lawful Attorney(s)-In-Fact to make, execute, seal and deliver for, and on its behalf as surety, any and all bonds, undertakings or other writings obligatory in nature of a bond. This authority is made under and by the authority of a resolution which was passed by the Board of Directors of LEXON INSURANCE COMPANY on the 1 st day of July, 2003 as follows: Resolved, that the President of the Company is hereby authorized to appoint and empower any representative of the Company or other person or persons as Attorney-In-Fact to execute on behalf of the Company any bonds, undertakings, policies, contracts of indemnity or other writings obligatory in nature of a bond not to exceed $2,500,000.00, Two-million five hundred thousand dollars, which the Company might execute through its duly elected officers, and affix the seal of the Company thereto. Any said execution of such documents by an Attorney-In-Fact shall be as binding upon the Company as if they had been duly executed and acknowledged by the regularly elected officers of the Company.Any Attorney-In-Fact, so appointed, may be removed for good cause and the authority so granted may be revoked as specified in the Power of Attorney. Resolved, that the signature of the President and the seal of the Company may be affixed by facsimile on any power of attorney granted, and the signature of the Vice President, and the seal of the Company may be affixed by facsimile to any certificate of any such power and any such power or certificate bearing such facsimile signature and seal shall be valid and binding on the Company.Any such power so executed and sealed and certificate so executed and sealed shall, with respect to any bond of undertaking to which it is attached, continue to be valid and binding on the Company. IN WITNESS THEREOF, LEXON INSURANCE COMPANY has caused this instrument to be signed by its President, and its Corporate Seal to be affixed this 2nd day of July, 2003. LEXON INSURANCE COMPANY 'ytANCFo O A Xi TEXAS •��0 ������ X; INSURANCE BY COMPANY 'z David E. Campbell President ACKNOWLEDGEMENT On this 2nd day of July, 2003, before me, personally came David E. Campbell to me known,who being duly sworn, did depose and say that he is the President of LEXON INSURANCE COMPANY,the corporation described in and which executed the above instrument;that he executed said instrument on behalf of the corporation by authority of his office under the By-laws of said corporation. "OFFICIAL SEAL" MALTREEN K.AYE Notary Public,State of Illinois ��'` JQ My Commission Expires 09/21/13 Maureen K,Aye CERTIFICATE Notary Public I, the undersigned, Secretary of LEXON INSURANCE COMPANY. A Texas Insurance Company, DO HEREBY CERTIFY that the original Power of Attorney of which the foregoing is a true and correct copy, is in full force and effect and has not been revoked and the resolutions as set forth are now in force. ` CC ,�� Signed and Sealed at Lombard, Illinois this / 54 Day of iAt 201 - \c:��FtANCF� G=: TEXAS •• X• INSURANCE n �K —.� • COMPANY Donald D Buchanan •••• Secretary "WARNING: Any person who knowingly and with intent to defraud any insurance company or other person, files an application for insurance or statement of claim containing any materially false information,or conceals for the purpose of misleading, information concerning any fact materi- al thereto,commits a fraudulent insurance act,which is a crime and subjects such person to criminal and civil penalties." i xi