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EXHIBIT 10.20
AMENDED AND RESTATED
GUARANTY AGREEMENT
Dated as of April 17, 1998
By
NORTHLAND OPERATING CO.,
as the Guarantor,
in favor of
BANK OF MONTREAL,
as Agent,
and
THE LENDERS NOW OR HEREAFTER SIGNATORY TO THE CREDIT AGREEMENT
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions and Accounting Matters
Section 1.01 Terms Defined in the Recitals .......................... 2
Section 1.02 Certain Definitions .................................... 2
Section 1.03 Credit Agreement Definitions ........................... 3
ARTICLE II
The Guaranty
Section 2.01 Obligations Guaranteed ................................. 3
Section 2.02 Nature of Guaranty ..................................... 3
Section 2.03 Lenders' Rights ........................................ 3
Section 2.04 Guarantor's Waivers .................................... 4
Section 2.05 Maturity of Obligations; Payment ....................... 4
Section 2.06 Lenders' Expenses ...................................... 4
Section 2.07 Obligation ............................................. 4
Section 2.08 Events and Circumstances Not Reducing or Discharging the
Guarantor's Obligations ................................ 4
Section 2.09 Limitations on Obligation of the Guarantor Hereunder ... 6
Section 2.10 Subrogation ............................................ 6
ARTICLE III
Representations and Warranties
Section 3.01 By the Guarantor ....................................... 7
ARTICLE IV
Subordination of Indebtedness
Section 4.01 Subordination of All Guarantor Claims .................. 8
Section 4.02 Claims in Bankruptcy ................................... 8
Section 4.03 Payments Held in Trust ................................. 9
Section 4.04 Liens Subordinate ...................................... 9
Section 4.05 Notation of Records .................................... 9
ARTICLE V
Miscellaneous
Section 5.01 Successors and Assigns ................................. 9
Section 5.02 Notices ................................................ 9
Section 5.03 Authority of Agent ..................................... 9
Section 5.04 Governing Law; Submission to Jurisdiction .............. 10
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Section 5.05 Entire Agreement ....................................... 11
Section 5.06 Survival of Obligations ................................ 11
Section 5.07 Status as Guarantor Senior Indebtedness ................ 11
Section 5.08 Prior Guaranty ......................................... 11
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AMENDED AND RESTATED
GUARANTY AGREEMENT
This AMENDED AND RESTATED GUARANTY AGREEMENT dated as of April 17, 1998
is by NORTHLAND OPERATING CO., a corporation duly organized and validly existing
under the laws of the state of Nevada ("Guarantor"), in favor of each of the
following: each of the financial institutions that is now or hereafter a
signatory to the Credit Agreement (as defined below) (individually, a "Lender"
and, collectively, the "Lenders"); and BANK OF MONTREAL, AS AGENT for the
Lenders (in such capacity, the "Agent").
RECITALS
A. QUEEN SAND RESOURCES, INC., a corporation duly organized and validly
existing under the laws of the state of Delaware ("QSRD"), as Guarantor, QUEEN
SAND RESOURCES, INC., a corporation duly organized and validly existing under
the laws of the state of Nevada (the "Borrower"), the Agent and the Lenders have
executed that certain Amended and Restated Credit Agreement of even date
herewith (such credit agreement, as amended, the "Credit Agreement").
B. One of the terms and conditions stated in the Credit Agreement for the
making of the loans and extensions of credit described in the Credit Agreement
is the execution and delivery to the Agent and the Lenders of this Guaranty
Agreement.
C. NOW, THEREFORE, (i) in order to comply with the terms and conditions
of the Credit Agreement, (ii) to induce the Lenders to enter into the Credit
Agreement, and (iii) for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Guarantor hereby agrees as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING MATTERS
SECTION 1.01 TERMS DEFINED IN THE RECITALS. As used in This Guaranty
Agreement, the terms defined in the Recitals shall have the meanings indicated
in the Recitals.
SECTION 1.02 CERTAIN DEFINITIONS. As used in this Guaranty Agreement,
the following terms shall have the following meanings, unless the context
otherwise requires:
"Guarantor Claims" shall have the meaning indicated in Section 4.01.
"Guaranty Agreement" shall mean this Amended and Restated Guaranty
Agreement, as the same may from time to time be amended or supplemented.
"Obligations" shall mean (a) the payment and performance of all present
and future indebtedness, obligations and liabilities of QSRD, the Borrower
and/or the Guarantor to the Agent and the Lenders under the Credit Agreement,
including but not limited to, (i) the full and punctual payment of the Notes
issued thereunder, and any and all promissory notes given in substitution for
such Notes or in modification, renewal, extension or rearrangement thereof in
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whole or in part, and (ii) the reimbursement and other obligations of the
Borrower under and with respect to Letters of Credit and Letter of Credit
Agreements now outstanding or hereafter issued under the Credit Agreement; (b)
all obligations of the Guarantor under this Guaranty Agreement; (c) all interest
(whether pre or post petition), charges, expenses, reasonable attorneys' or
other fees and any other sums payable to or incurred by the Agent and, to the
extent provided in the Credit Agreement, the Lenders in connection with the
execution or enforcement of any of their rights and remedies hereunder or any
other Security Instrument; (d) payment of and performance of any and all present
or future obligations of QSRD or the Borrower according to the terms of any
present or future interest rate or currency swap, rate cap, rate floor, rate
collar, forward rate agreement or other exchange or rate protection agreements
or any option with respect to any such transaction now existing or hereafter
entered into between QSRD or the Borrower and any Lender or an Affiliate of such
Lender; and (e) payment of and performance of any and all present or future
obligations of QSRD or the Borrower according to the terms of any present or
future swap agreements, cap, floor, collar, forward agreement or other exchange
or protection agreements relating to crude oil, natural gas or other
hydrocarbons or any option with respect to any such transaction now existing or
hereafter entered into between QSRD or the Borrower and any Lender or an
Affiliate of such Lender.
SECTION 1.03 CREDIT AGREEMENT DEFINITIONS. Unless otherwise defined
herein, all terms beginning with a capital letter which are defined in the
Credit Agreement shall have the same meanings herein as therein.
ARTICLE II
THE GUARANTY
SECTION 2.01 OBLIGATIONS GUARANTEED. The Guarantor hereby irrevocably
and unconditionally guarantees the prompt payment at maturity of the
Obligations.
SECTION 2.02 NATURE OF GUARANTY. This guaranty is an absolute,
irrevocable, completed and continuing guaranty of payment and not a guaranty of
collection, and no notice of the Obligations or any extension of credit already
or hereafter contracted by or extended to the Borrower need be given to the
Guarantor. The guaranty evidenced hereby is joint and several with all other
guarantees of the Obligations. This guaranty may not be revoked by the Guarantor
and shall continue to be effective with respect to debt under the Obligations
arising or created after any attempted revocation by the Guarantor and shall
remain in full force and effect until the Obligations are paid in full and the
Aggregate Commitments are terminated, notwithstanding that from time to time
prior thereto no Obligations may be outstanding. The Borrower, the Agent and the
Lenders may modify, alter, rearrange, extend for any period and/or renew from
time to time, the Obligations and the Agent and the Lenders may waive any
Default or Events of Default without notice to the Guarantor and in such event
the Guarantor will remain fully bound hereunder on the Obligations. This
Guaranty Agreement may be enforced by the Agent and/or the Lenders and any
subsequent holder of the Obligations and shall not be discharged by the
assignment or negotiation of all or part of the Obligations. The Guarantor
hereby expressly waives presentment, demand, notice of non-payment, protest and
notice of protest and dishonor, notice of Event of Default, notice of intent to
accelerate the maturity and notice of acceleration of the maturity and any other
notice in connection with the Obligations, and also notice of
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acceptance of this Guaranty Agreement, acceptance on the part of the Agent and
the Lenders being conclusively presumed by their request for this Guaranty
Agreement and delivery of the same to the Agent.
SECTION 2.03 LENDERS' RIGHTS. Subject to the terms of the Credit
Agreement, the Guarantor authorizes the Lenders (or the Agent on behalf of the
Lenders), without notice or demand and without affecting the Guarantor's
obligation hereunder, to take and hold security for the payment of the
Obligations, and exchange, enforce, waive and release any such security; and to
apply such security and direct the order or manner of sale thereof as the Agent
and the Lenders in their discretion may determine; and to obtain a guaranty of
the Obligations from any one or more Persons and at any time or times to
enforce, waive, rearrange, modify, limit or release any of such other Persons
from their obligations under such guaranties.
SECTION 2.04 GUARANTOR'S WAIVERS. The Guarantor waives any right to
require the Agent and the Lenders to (a) proceed against the Borrower or any
other Person liable on the Obligations, (b) enforce their rights against any
other guarantor of the Obligations, (c) proceed or enforce their rights against
or exhaust any security given to secure the Obligations, (d) have the Borrower
joined with the Guarantor in any suit arising out of this Guaranty Agreement
and/or the Obligations, or (e) pursue any other remedy whatsoever. Neither the
Agent nor the Lenders shall be required to mitigate damages or take any action
to reduce, collect or enforce the Obligations. The Guarantor waives any defense
arising by reason of any disability, lack of corporate authority or power, or
other defense of the Borrower or any other guarantor of the Obligations, and
shall remain liable hereon regardless of whether the Borrower or any other
guarantor be found not liable thereon for any reason.
SECTION 2.05 MATURITY OF OBLIGATIONS; PAYMENT. The Guarantor agrees that
if the maturity of the Obligations is accelerated by bankruptcy or otherwise,
such maturity shall also be deemed accelerated for the purpose of this Guaranty
Agreement without demand or notice to the Guarantor. The Guarantor will,
forthwith upon notice from the Agent of the Borrower's failure to pay the
Obligations at maturity, pay to the Agent for the benefit of the Agent and the
Lenders at the Agent's Principal Office, the amount due and unpaid by the
Borrower and guaranteed hereby. The failure of the Agent to give this notice
shall not in any way release the Guarantor hereunder.
SECTION 2.06 LENDERS' EXPENSES. If the Guarantor fails to pay the
Obligations after notice from the Agent of the Borrower's failure to pay any
Obligations at maturity (whether by acceleration or otherwise), and if
thereafter the Agent or the Lenders obtain the services of an attorney for
collection of amounts owing by the Guarantor hereunder or if suit is filed to
enforce this Guaranty Agreement, or if proceedings are had in any bankruptcy,
receivership or other judicial proceedings for the establishment or collection
of any amount owing by the Guarantor hereunder, or if any amount owing by the
Guarantor hereunder is collected through such proceedings, the Guarantor agrees
to pay to the Agent at its Principal Office, the reasonable attorneys' fees of
the Agent and the Lenders.
SECTION 2.07 OBLIGATION. It is expressly agreed that the obligation of
the Guarantor for the payment of the Obligations guaranteed hereby shall be
primary and not secondary.
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SECTION 2.08 EVENTS AND CIRCUMSTANCES NOT REDUCING OR DISCHARGING THE
GUARANTOR'S OBLIGATIONS. The Guarantor hereby consents and agrees to each of
the following to the fullest extent permitted by law, agrees its obligations
under this Guaranty Agreement shall not be released, diminished, impaired,
reduced or adversely affected by any of the following, and waives any rights
(including without limitation rights to notice) which it might otherwise have as
a result of or in connection with any of the following:
(a) Modifications, etc. Any renewal, extension, modification, or increase
in the amount of the Aggregate Commitments as in effect on the Effective Date,
decrease, alteration or rearrangement of all or any part of the Obligations, any
Security Instrument or any instrument executed in connection therewith, or any
contract or understanding between the Borrower, any Agent and/or the Lenders, or
any other Person, pertaining to the Obligations;
(b) Adjustment, etc. Any adjustment, indulgence, forbearance or
compromise that might be granted or given by the Agent or the Lenders to the
Borrower or the Guarantor or any Person liable on the Obligations;
(c) Condition of the Borrower or the Guarantor. The insolvency,
bankruptcy arrangement, reorganization, adjustment, composition, liquidation,
disability, dissolution or lack of power of the Borrower or the Guarantor or any
other Person at any time liable for the payment of all or part of the
Obligations; or any sale, lease or transfer of any or all of the assets of the
Borrower or the Guarantor, or any changes in the shareholders of the Borrower or
the Guarantor;
(d) Invalidity of Obligations. The invalidity, illegality or
unenforceability of all or any part of the Obligations or any Security
Instrument, including the Notes, for any reason whatsoever, including without
limitation the fact that the Obligations, or any part thereof, exceed the amount
permitted by law, the act of creating the Obligations or any part thereof is
ultra vires, the officers or representatives executing any Security Instrument
acted in excess of their authority, the Obligations violate applicable usury
laws, the Borrower has valid defenses, claims or offsets (whether at law, in
equity or by agreement) which render the Obligations wholly or partially
uncollectible from the Borrower, the creation, performance or repayment of the
Obligations (or the execution, delivery and performance of any Security
Instrument) is illegal, uncollectible or legally unenforceable, or the Credit
Agreement, the Notes or other Security Instruments have been forged or otherwise
are irregular or not genuine or authentic;
(e) Release of Obligors. Any full or partial release of the obligation of
the Borrower on the Obligations or any part thereof, of any co-guarantors, or
any other Person now or hereafter liable, whether directly or indirectly,
jointly, severally, or jointly and severally, to pay, perform, guarantee or
assure the payment of the Obligations or any part thereof, it being recognized,
acknowledged and agreed by the Guarantor that the Guarantor may be required to
pay the Obligations in full without assistance or support of any other Person,
and the Guarantor has not been induced to enter into this Guaranty Agreement on
the basis of a contemplation, belief, understanding or agreement that other
parties other than the Borrower will be liable to perform the Obligations, or
that the Agent and Lenders will look to other parties to perform the
Obligations;
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(f) Other Security. The taking or accepting of any other security,
collateral or guaranty, or other assurance of payment, for all or any part of
the Obligations;
(g) Release of Collateral, etc. Any release, surrender, exchange,
subordination, deterioration, waste, loss or impairment (including without
limitation negligent, willful, unreasonable or unjustifiable impairment) of any
collateral, Property or security, at any time existing in connection with, or
assuring or securing payment of, all or any part of the Obligations;
(h) Care and Diligence. The failure of any Agent or Lender or any other
Person to exercise diligence or reasonable care in the preservation, protection,
enforcement, sale or other handling or treatment of all or any part of such
collateral, Property or security;
(i) Status of Liens. The fact that any collateral, security or Lien
contemplated or intended to be given, created or granted as security for the
repayment of the Obligations shall not be properly perfected or created, or
shall prove to be unenforceable or subordinate to any other Lien, it being
recognized and agreed by the Guarantor that the Guarantor is not entering into
this Guaranty Agreement in reliance on, or in contemplation of the benefits of,
the validity, enforceability, collectability or value of any of the collateral
for the Obligations;
(j) Payments Rescinded. Any payment by the Borrower to any Agent or
Lender is held to constitute a preference under the bankruptcy laws, or for any
reason an Agent or Lender is required to refund such payment or pay such amount
to the Borrower or someone else; or
(k) Other Actions Taken or Omitted. Any other action taken or omitted to
be taken with respect to the Credit Agreement or the other Security Instruments,
the Obligations, or the security and collateral therefor, whether or not such
action or omission prejudices the Guarantor or increases the likelihood that the
Guarantor will be required to pay the Obligations pursuant to the terms hereof;
it being the unambiguous and unequivocal intention of the Guarantor that the
Guarantor shall be obligated to pay the Obligations when due, notwithstanding
any occurrence, circumstance, event, action, or omission whatsoever, whether
contemplated or uncontemplated, and whether or not otherwise or particularly
described herein, except for the full and final payment and satisfaction of the
Obligations.
SECTION 2.09 LIMITATIONS ON OBLIGATION OF THE GUARANTOR HEREUNDER. The
parties hereto (i) intend that the obligation of the Guarantor hereunder be
limited to the maximum amount that would not result in the obligation created
hereby being avoidable under Section 548 of the Federal Bankruptcy Code (11
U.S.C. Section 548; hereinafter "Section 548") or other applicable state
fraudulent conveyance or transfer law and (ii) agree that this Guaranty
Agreement shall be so construed. Accordingly, the obligation of the Guarantor
hereunder is limited to an amount that is the greater of (x) the "reasonably
equivalent value" or "fair consideration" received by the Guarantor in exchange
for the obligation incurred hereunder, within the meaning of Section 548, as
amended, or any applicable state fraudulent conveyance or transfer law, as
amended; or (y) the lesser of (1) the maximum amount that will not render the
Guarantor insolvent or (2) the maximum amount that will not leave the Guarantor
with any Property deemed an unreasonably
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small capital. Clauses (1) and (2) are and shall be determined pursuant to
Section 548, as amended, or other applicable state fraudulent conveyance or
transfer law, as amended.
SECTION 2.10 SUBROGATION. The Guarantor shall not exercise any rights
which it may acquire by way of subrogation, reimbursement, exoneration,
indemnification or participation, by any payment made under this Guaranty
Agreement, under any other Security Instrument or otherwise until the
Obligations have been paid in full and the Aggregate Commitments are terminated;
provided that, notwithstanding the foregoing, the Guarantor reserves its rights
of contribution and reimbursement, if any, from its co-guarantors and other
Persons liable on the Obligations or otherwise. Except as described in this
Section 2.10, the Guarantor further waives any benefit of any right to
participate in any security now or hereafter held by the Agent and/or the
Lenders.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.01 BY THE GUARANTOR. In order to induce the Agent and the
Lenders to accept this Guaranty Agreement, the Guarantor represents and warrants
to the Agent and the Lenders (which representations and warranties will survive
the creation of the Obligations and any extension of credit thereunder) that:
(a) Benefit to the Guarantor. The Guarantor is a wholly-owned Subsidiary
of the Borrower and the Guarantor's guaranty pursuant to this Guaranty Agreement
reasonably may be expected to benefit, directly or indirectly, the Guarantor;
and the Guarantor has determined that this Guaranty Agreement is necessary and
convenient to the conduct, promotion and attainment of the business of the
Guarantor and the Borrower.
(b) Corporate Existence. The Guarantor: (i) is duly organized and validly
existing under the laws of the jurisdiction of its formation; (ii) has all
requisite power, and has all material governmental licenses, authorizations,
consents and approvals necessary to own its assets and carry on its business as
now being conducted; and (iii) is qualified to do business in all jurisdictions
in which the nature of the business conducted by it makes such qualification
necessary and where failure so to qualify would have a Material Adverse Effect.
(c) No Breach. The execution and delivery by the Guarantor of this
Guaranty Agreement and the other Security Instruments to which it is a party,
the consummation of the transactions herein or therein contemplated, and the
compliance with the terms and provisions hereof will not (i) conflict with or
result in a breach of, or require any consent under (A) the respective charter
or by-laws of the Guarantor, or (B) any applicable law or regulation, or any
order, writ, injunction or decree of any court or other Governmental Authority,
or any material agreement or instrument to which the Guarantor is a party or by
which it is bound or to which it is subject in each case in such manner as could
reasonably be expected to have a Material Adverse Effect; or (ii) constitute a
default under any such agreement or instrument, or result in the creation or
imposition of any Lien upon any of the revenues or Property of the Guarantor in
each case in such manner as could reasonably be expected to have a Material
Adverse Effect.
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(d) Corporate Action. The Guarantor has all necessary corporate power and
authority to execute, deliver and perform its obligations under this Guaranty
Agreement and the Security Instruments to which it is a party; and the
execution, delivery and performance by the Guarantor of this Guaranty Agreement
and the other Security Instruments to which such Person is a party have been
duly authorized by all necessary corporate action on its part. This Guaranty
Agreement and the Security Instruments to which the Guarantor is a party
constitute the legal, valid and binding obligation of the Guarantor, enforceable
against the Guarantor in accordance with their terms, except as may be limited
by applicable bankruptcy, insolvency, reorganization or other similar laws
affecting creditors' rights and general principals of equity.
(e) Approvals. Other than consents heretofore obtained or described in
the Credit Agreement, no authorizations, approvals or consents of, and no
filings or registrations with, any Governmental Authority are necessary for the
execution, delivery or performance by the Guarantor of this Guaranty Agreement
or the Security Instruments to which it is a party or for the validity or
enforceability thereof. It is understood that continued performance by the
Guarantor of this Guaranty Agreement and the other Security Instruments to which
it is a party will require various filings, such as filings related to
environmental matters, ERISA matters, Taxes and intellectual property, filings
required to maintain corporate and similar standing and existence, filings
pursuant to the Uniform Commercial Code and other security filings and
recordings and filings required by the SEC, routine filings in the ordinary
course of business, and filings required in connection with the exercise by the
Lenders and the Agent of remedies in connection with the Security Instruments.
(f) Solvency. The Guarantor (i) is not insolvent as of the date hereof
and will not be rendered insolvent as a result of this Guaranty Agreement, (ii)
is not engaged in business or a transaction, or about to engage in a business or
a transaction, for which any Property or assets remaining with the Guarantor
constitute unreasonably small capital, and (iii) does not intend to incur, or
believe it will incur, debts that will be beyond its ability to pay as such
debts mature.
(g) No Representation by Agent or Lenders. Neither any Agent, any Lender
nor any other Person has made any representation, warranty or statement to the
Guarantor in order to induce the Guarantor to execute this Guaranty Agreement.
ARTICLE IV
SUBORDINATION OF INDEBTEDNESS
SECTION 4.01 SUBORDINATION OF ALL GUARANTOR CLAIMS. As used herein, the
term "Guarantor Claims" shall mean all debts and obligations of the Borrower to
the Guarantor, whether such debts and obligations now exist or are hereafter
incurred or arise, or whether the obligation of the Borrower thereon be direct,
contingent, primary, secondary, several, joint and several, or otherwise, and
irrespective of whether such debts or obligations be evidenced by note,
contract, open account, or otherwise, and irrespective of the Person or Persons
in whose favor such debts or obligations may, at their inception, have been, or
may hereafter be created, or the manner in which they have been or may hereafter
be acquired by. Except for payments permitted by the Credit Agreement, until the
Obligations shall be paid and satisfied in full, the Aggregate Commitments are
terminated and the Guarantor shall have performed all of its obligations
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hereunder and under the other Security Instruments to which it is a party, the
Guarantor shall not receive or collect, directly or indirectly, from the
Borrower any amount upon the Guarantor Claims.
SECTION 4.02 CLAIMS IN BANKRUPTCY. In the event of receivership,
bankruptcy, reorganization, arrangement, debtor's relief, or other insolvency
proceedings involving the Borrower, the Agent on behalf of the Agent and the
Lenders shall have the right to prove their claim in any proceeding, so as to
establish their rights hereunder and receive directly from the receiver, trustee
or other court custodian, dividends and payments which would otherwise be
payable upon Guarantor Claims. The Guarantor hereby assigns such dividends and
payments to the Agent for the benefit of the Agent and the Lenders. Should any
Agent or Lender receive, for application upon the Obligations, any such dividend
or payment which is otherwise payable to the Guarantor, and which, as between
the Borrower and the Guarantor, shall constitute a credit upon the Guarantor
Claims, then upon payment in full of the Obligations, the Guarantor shall become
subrogated to the rights of the Agent and the Lenders to the extent that such
payments to the Agent and the Lenders on the Guarantor Claims have contributed
toward the liquidation of the Obligations, and such subrogation shall be with
respect to that proportion of the Obligations which would have been unpaid if
the Agent and the Lenders had not received dividends or payments upon the
Guarantor Claims.
SECTION 4.03 PAYMENTS HELD IN TRUST. In the event that notwithstanding
Sections 4.01 and 4.02, the Guarantor should receive any funds, payments, claims
or distributions which is prohibited by such Sections, the Guarantor agrees: (a)
to hold in trust for the Agent and the Lenders an amount equal to the amount of
all funds, payments, claims or distributions so received, and (b) that it shall
have absolutely no dominion over the amount of such funds, payments, claims or
distributions except to pay them promptly to the Agent, for the benefit of the
Agent and the Lenders; and the Guarantor covenants promptly to pay the same to
the Agent.
SECTION 4.04 LIENS SUBORDINATE. The Guarantor agrees that, until the
Obligations are paid in full and the Aggregate Commitments terminated, any Liens
upon the Borrower's assets securing payment of the Guarantor Claims shall be and
remain inferior and subordinate to any Liens upon the Borrower's assets securing
payment of the Obligations, regardless of whether such encumbrances in favor of
the Guarantor, any Agent or Lender presently exist or are hereafter created or
attach. Without the prior written consent of the Agent, the Guarantor, during
the period in which any of the Obligations are outstanding or the Aggregate
Commitments are in effect, shall not (a) exercise or enforce any creditor's
right it may have against the Borrower, or (b) foreclose, repossess, sequester
or otherwise take steps or institute any action or proceeding (judicial or
otherwise, including without limitation the commencement of or joinder in any
liquidation, bankruptcy, rearrangement, debtor's relief or insolvency
proceeding) to enforce any Lien on assets of the Borrower held by the Guarantor.
SECTION 4.05 NOTATION OF RECORDS. All promissory notes and, upon the
request of the Agent, all accounts receivable ledgers or other evidence of the
Guarantor Claims accepted by or held by the Guarantor shall contain a specific
written notice thereon that the indebtedness evidenced thereby is subordinated
under the terms of this Guaranty Agreement.
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ARTICLE V
MISCELLANEOUS
SECTION 5.01 SUCCESSORS AND ASSIGNS. This Guaranty Agreement is and
shall be in every particular available to the successors and assigns of the
Agent and Lenders and is and shall always be fully binding upon the legal
representatives, successors and assigns of the Guarantor, notwithstanding that
some or all of the monies, the repayment of which this Guaranty Agreement
applies, may be actually advanced after any bankruptcy, receivership,
reorganization or other event affecting either the Borrower or the Guarantor.
SECTION 5.02 NOTICES. Any notice or demand to the Guarantor under or in
connection with this Guaranty Agreement may be given and shall conclusively be
deemed and considered to have been given and received in the manner and to the
address of the Guarantor set forth on the signature page hereto as provided for
in Section 12.02 of the Credit Agreement.
SECTION 5.03 AUTHORITY OF AGENT. The Guarantor acknowledges that the
rights and responsibilities of the Agent under this Guaranty Agreement with
respect to any action taken by the Agent or the exercise or non-exercise by the
Agent of any option, right, request, judgment or other right or remedy provided
for herein or resulting or arising out of this Guaranty Agreement shall, as
between the Agent and the Lenders, be governed by the Credit Agreement and by
such other agreements with respect thereto as may exist from time to time among
them, but, as between the Agent and the Guarantor, the Agent shall be
conclusively presumed to be acting as agent for the Lenders with full and valid
authority so to act or refrain from acting; and the Guarantor shall not be under
any obligation, or entitlement, to make any inquiry respecting such authority.
SECTION 5.04 GOVERNING LAW; SUBMISSION TO JURISDICTION.
(a) THIS GUARANTY AGREEMENT (INCLUDING, BUT NOT LIMITED TO, THE VALIDITY
AND ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF TEXAS.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS GUARANTY
AGREEMENT OR THE OTHER SECURITY INSTRUMENTS TO WHICH THE GUARANTOR IS A PARTY
MAY BE BROUGHT IN THE COURTS OF THE STATE OF TEXAS OR OF THE UNITED STATES OF
AMERICA FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION, AND, BY EXECUTION
AND DELIVERY OF THIS GUARANTY AGREEMENT, THE GUARANTOR HEREBY ACCEPTS FOR ITSELF
AND (TO THE EXTENT PERMITTED BY LAW) IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, THE JURISDICTION OF THE AFORESAID COURTS. THE GUARANTOR HEREBY
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING, WITHOUT LIMITATION, ANY OBJECTION
TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT
MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY SUCH ACTION OR PROCEEDING IN
SUCH RESPECTIVE JURISDICTIONS. THIS SUBMISSION TO JURISDICTION IS NONEXCLUSIVE
AND DOES NOT PRECLUDE THE AGENT OR ANY LENDER FROM OBTAINING JURISDICTION OVER
THE GUARANTOR IN ANY COURT OTHERWISE HAVING JURISDICTION.
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(c) THE GUARANTOR IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OF ANY
OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF
COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO IT, AS THE
CASE MAY BE, AT ITS SAID ADDRESS, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER
SUCH MAILING.
(d) NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY AGENT OR ANY LENDER OR
ANY HOLDER OF A NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE GUARANTOR IN ANY
OTHER JURISDICTION.
(e) THE GUARANTOR, THE AGENT, AND EACH LENDER HEREBY (I) IRREVOCABLY AND
UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, TRIAL BY JURY IN
ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTY AGREEMENT OR ANY LOAN
DOCUMENTS TO WHICH IT IS A PARTY OR RECEIVES THE BENEFIT OF AND FOR ANY
COUNTERCLAIM THEREIN; (II) IRREVOCABLY WAIVE, TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY SUCH
LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR DAMAGES
OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES; (III) CERTIFY THAT NO PARTY
HERETO NOR ANY REPRESENTATIVE OR AGENT OR COUNSEL FOR ANY PARTY HERETO HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, OR IMPLIED THAT SUCH PARTY WOULD NOT, IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVERS, AND (IV)
ACKNOWLEDGE THAT IT HAS BEEN INDUCED TO ENTER INTO THIS GUARANTY AGREEMENT, THE
LOAN DOCUMENTS TO WHICH IT IS A PARTY AND THE TRANSACTIONS CONTEMPLATED HEREBY
AND THEREBY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
CONTAINED IN THIS SECTION 5.04.
(f) THE GUARANTOR AGREES THAT, IN ADDITION TO (AND WITHOUT LIMITATION OF)
ANY RIGHT OF SET-OFF, BANKERS' LIEN OR COUNTERCLAIM A LENDER MAY OTHERWISE HAVE,
AFTER THE OCCURRENCE AND DURING THE CONTINUATION OF AN EVENT OF DEFAULT, EACH
LENDER SHALL HAVE THE RIGHT AND BE ENTITLED (AFTER CONSULTATION WITH THE AGENT),
AT ITS OPTION, TO OFFSET BALANCES HELD BY IT OR BY ANY OF ITS AFFILIATES FOR
ACCOUNT OF THE GUARANTOR AT ANY OF ITS OFFICES, IN DOLLARS OR IN ANY OTHER
CURRENCY, AGAINST ANY PRINCIPAL OF OR INTEREST ON ANY OF SUCH LENDER'S LOANS, OR
ANY OTHER AMOUNT PAYABLE TO SUCH LENDER HEREUNDER, WHICH IS NOT PAID WHEN DUE
(REGARDLESS OF WHETHER SUCH BALANCES ARE THEN DUE TO THE GUARANTOR), IN WHICH
CASE IT SHALL PROMPTLY NOTIFY THE GUARANTOR AND THE AGENT THEREOF, PROVIDED THAT
SUCH LENDER'S FAILURE TO GIVE SUCH NOTICE SHALL NOT AFFECT THE VALIDITY THEREOF.
SECTION 5.05 ENTIRE AGREEMENT. This Guaranty Agreement and the other
Security Instruments embody the entire agreement and understanding between the
Lenders, the Agent and the Guarantor and supersede all prior agreements and
understandings between such parties relating to the subject matter hereof and
thereof. There are no unwritten oral agreements between the parties.
SECTION 5.06 SURVIVAL OF OBLIGATIONS. To the extent that any payments on
the Obligations or proceeds of any collateral are subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be repaid to
a trustee, debtor in possession, receiver or other Person under any bankruptcy
law, common law or equitable cause, then to such extent, the
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Obligations so satisfied shall be revived and continue as if such payment or
proceeds had not been received and the Agent' and the Lenders' Liens, rights,
powers and remedies under this Guaranty Agreement and each Security Instrument
to which the Guarantor is a party shall continue in full force and effect. In
such event, each Security Instrument shall be automatically reinstated and the
Guarantor shall take such action as may be reasonably requested by the Agent and
the Lenders to effect such reinstatement.
SECTION 5.07 STATUS AS GUARANTOR SENIOR INDEBTEDNESS . The obligations of
the Guarantor under this Guaranty Agreement are intended to be "guarantor senior
indebtedness", "designated guarantor senior indebtedness" or any other similar
or equivalent classification for all purposes in any debt instrument or
agreement to which the Guarantor is now or hereafter a party.
SECTION 5.08 PRIOR GUARANTY . This Guaranty Agreement supersedes and
replaces that certain Guaranty Agreement dated August 1, 1997 given by the
Guarantor in favor of the Agent and the Lenders.
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WITNESS THE EXECUTION HEREOF, effective as of the date first written
above.
NORTHLAND OPERATING CO.
By: /s/ ROBERT P. LINDSAY
------------------------------
Robert P. Lindsay
Vice President
By: /s/ EDWARD J. MUNDEN
------------------------------
Edward J. Munden
President
Address for Notices:
Northland Operating Co.
c/o Queen Sand Resources, Inc.
3500 Oak Lawn Drive, Suite 380
Dallas, Texas 75219
Attention: Robert P. Lindsay
Telephone: (214) 521-9959
Facsimile: (214) 521-9960
with copy to:
Queen Sand Resources, Inc.
60 Queen Street, Suite 1400
Ottawa, Canada K1P 5Y7
Attention: Mr. Ronald Benn
Telephone: (613) 230-7211
Facsimile: (613) 230-6055
and
Haynes & Boone LLP
901 Main Street, Suite 3100
Dallas, Texas 75202-3789
Attention: Mr. William L. Boeing
Telephone: (214) 651-5553
Facsimile: (214) 651-5940