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GUARANTY
(Subsidiaries)
This Guaranty dated as of December 29, 1997 ("Agreement"), is made by
the undersigned subsidiaries of Queen Sand Resources, Inc., a Nevada corporation
(each a "Guarantor"), in favor of Enron Capital & Trade Resources Corp., a
Delaware corporation in its capacity as agent for the lenders described below
("Agent").
INTRODUCTION
This Agreement is given in connection with the Subordinated Revolving
Credit Loan Agreement dated as of December 29, 1997 (as modified from time to
time, the "Loan Agreement"), among Queen Sand Resources, Inc., a Nevada
corporation ("Borrower"), the lenders who are or may become party thereto, and
the Agent, the defined terms of which are used herein unless otherwise defined
herein. It is a condition precedent to the effectiveness of the Loan Agreement
that the Guarantors execute and deliver this Agreement to the Agent. Because
each Guarantor is a Subsidiary of the Borrower, each Guarantor receives and
expects to continue to receive financial and management support from the
Borrower, and thus, each Guarantor will obtain substantial benefit from the
extensions of credit expected to be made to the Borrower under the Loan
Agreement.
Therefore, to induce the Agent and the Lenders to enter into the Loan
Agreement, the Guarantors jointly and severally agree with the Agent as follows:
Section 1. Guaranty.
1.1 The Guarantors irrevocably and jointly and severally guarantee to
the Agent the full payment when due of (a) all principal, interest, fees,
reimbursements, indemnifications, and other amounts now or hereafter owed by the
Borrower to the Agent or any Lender (and with respect to the Interest Hedge
Agreements, any Affiliates of any Lender) under the terms of the Loan Agreement
and the other Loan Documents, including amounts owed under the terms of the Loan
Agreement and the other Loan Documents for which the Borrower has obtained
relief under bankruptcy or other laws providing for relief from creditors, and
(b) any increases, extensions, and rearrangements of the foregoing obligations
under any amendments, supplements, and other modifications of the documents and
agreements creating the foregoing obligations (collectively, the "Guaranteed
Obligations"). This is a guaranty of payment and not merely a guaranty of
collection, and each Guarantor is liable as a primary obligor. If any of the
Guaranteed Obligations are not punctually paid when due, whether by maturity,
acceleration, or otherwise, and the Agent shall notify any Guarantor of such
default and make demand for payment hereunder, such Guarantor shall immediately
pay to the Agent the full amount of the Guaranteed Obligations which are due and
payable. Each Guarantor shall make each payment to the Agent in U.S. Dollars in
immediately available funds as directed by the Agent. The Agent is hereby
authorized at any time following any demand for payment hereunder to set off and
apply any indebtedness owed by the Agent to any Guarantor against any and all of
the obligations of such Guarantor under this Agreement. The Agent
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agrees to promptly notify such Guarantor after any such setoff and application,
but the failure to give such notice shall not affect the validity of such setoff
and application.
1.2 This Agreement is subordinate to the Senior Debt in accordance with
the terms of the Subordination Agreement.
Section 2. Guaranty Absolute.
2.1 This Agreement shall be deemed accepted by the Agent upon receipt,
and the obligations of the Guarantors under this Agreement are effective
immediately and are continuing and cover all Guaranteed Obligations arising
prior to and after the date hereof. This Agreement may not be revoked by any
Guarantor and shall continue to be effective with respect to Guaranteed
Obligations arising or created after any attempted revocation by any Guarantor.
2.2 Each Guarantor guarantees that the Guaranteed Obligations will be
paid strictly in accordance with the terms of the Loan Agreement and the other
Loan Documents, regardless of any law, regulation, or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Agent with respect thereto. Each Guarantor agrees that such Guarantor's
obligations under this Agreement shall not be released, diminished, or impaired
by, and waives any rights which such Guarantor might otherwise have which relate
to:
(a) Any lack of validity or enforceability of the Guaranteed
Obligations, any Loan Document, or any other agreement or instrument relating
thereto; any increase, reduction, extension, or rearrangement of the Guaranteed
Obligations; any amendment, supplement, or other modification of the Loan
Documents; any waiver or consent granted under the Loan Documents, including
waivers of the payment and performance of the Guaranteed Obligations; or any
sale, assignment, delegation, or other transfer of the Guaranteed Obligations or
the Loan Documents;
(b) Any grant of any security or support for the Guaranteed
Obligations or any impairment of any security or support for the Guaranteed
Obligations, including any full or partial release, exchange, subordination, or
waste of any collateral for the Guaranteed Obligations or any full or partial
release of the Borrower, any Guarantor, or any other Person liable for the
payment or performance of the Guaranteed Obligations; any change in the
organization or structure of the Borrower, any Guarantor, or any other Person
liable for the payment or performance of the Guaranteed Obligations; or the
insolvency, bankruptcy, liquidation, or dissolution of the Borrower, any
Guarantor, or any other Person liable for the payment or performance of the
Guaranteed Obligations;
(c) The manner of applying payments on the Guaranteed
Obligations or the proceeds of any security or support for the Guaranteed
Obligations against the Guaranteed Obligations;
(d) The failure to give notice of the occurrence of any of the
events or actions referred to in this Section 2.2, notice of any default or
event of default, however denominated, under the Loan Documents, notice of
intent to demand, notice of demand, notice of presentment for
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payment, notice of nonpayment, notice of intent to protest, notice of protest,
notice of grace, notice of dishonor, notice of intent to accelerate, notice of
acceleration, notice of bringing of action to enforce the payment or performance
of the Guaranteed Obligations, notice of any sale or foreclosure of any
collateral for the Guaranteed Obligations, notice of any transfer of the
Guaranteed Obligations, notice of the financial condition of or other
circumstances regarding the Borrower, any Guarantor, or any other Person liable
for the Guaranteed Obligations, or any other notice of any kind relating to the
Guaranteed Obligations (and the parties intend that no Guarantor by execution of
this Agreement shall be considered a "Debtor" as defined in Section 9.105 of the
UCC for the purpose of notices required to be given to a Debtor thereunder); or
(e) Any other action taken or omitted which affects the
Guaranteed Obligations, whether or not such action or omission prejudices any
Guarantor or increases the likelihood that any Guarantor will be required to pay
the Guaranteed Obligations pursuant to the terms hereof--it is the unambiguous
and unequivocal intention of each Guarantor that such Guarantor shall be
obligated to pay the Guaranteed Obligations when due, notwithstanding any
occurrence, circumstance, event, action, or omission whatsoever, whether
contemplated or uncontemplated, and whether or not particularly described
herein.
2.3 This Agreement shall continue to be effective or be reinstated, as
the case may be, if any payment on the Guaranteed Obligations must be refunded
for any reason including any bankruptcy proceeding. In the event that the Agent
or any Lender must refund any payment received against the Guaranteed
Obligations, any prior release from the terms of this Agreement given to any
Guarantor by the Agent shall be without effect, and this Agreement shall be
reinstated in full force and effect. It is the intention of each Guarantor that
such Guarantor's obligations hereunder shall not be discharged except by final
payment of the Guaranteed Obligations.
2.4 (a) Each Guarantor is a Subsidiary of the Borrower and
receives and, because of its ownership by the Borrower, expects to continue to
receive business opportunities, financial support, and management support from
the Borrower. Each Guarantor has agreed to enter into this Agreement so that the
Borrower can receive the benefits of the Guaranteed Obligations and continue to
provide these services to such Guarantor.
(b) In consummating the transactions contemplated by the Loan
Documents, no Guarantor intends to disturb, delay, hinder, or defraud either
present or future creditors of such Guarantor. Each Guarantor is familiar with,
and has independently reviewed books and records regarding, the financial
condition of the Borrower and is familiar with the value of the security and
support for the payment and performance of the Guaranteed Obligations. Based
upon such examination, and taking into account the fairly discounted value of
such Guarantor's contingent obligations under this Agreement and the value of
the subrogation and contribution claims such Guarantor could make in connection
with this Agreement, and assuming each of the transactions contemplated by the
Loan Documents is consummated and the Borrower makes full use of the credit
facilities thereunder, the present realizable fair market value of the assets of
such Guarantor exceeds the total obligations of such Guarantor, and such
Guarantor is able to realize upon its assets and pay its obligations as such
obligations mature in the normal course of business.
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(c) If notwithstanding the foregoing it is judicially
determined with respect to any Guarantor that entering into this Agreement would
violate Section 548 of the United States Bankruptcy Code or any comparable
provisions of any state law, then such Guarantor shall be liable under this
Guaranty only for amounts aggregating up to the largest amount that would not
render such Guarantor's obligations hereunder subject to avoidance under Section
548 of the United States Bankruptcy Code or any comparable provisions of any
state law.
(d) Each Guarantor agrees that each Guarantor shall have
rights of contribution and subrogation against each other Guarantor with respect
to any payments made in connection with the Guaranteed Obligations.
Section 3. Unimpaired Collection.
3.1 There are no conditions precedent to the enforcement of this
Agreement, except as expressly contained herein. It shall not be necessary for
the Agent, in order to enforce payment by any Guarantor under this Agreement, to
show any proof of the Borrower's default, to exhaust the Agent's remedies
against the Borrower, any Guarantor, or any other Person liable for the payment
or performance of the Guaranteed Obligations, to enforce any security or support
for the payment or performance of the Guaranteed Obligations, or to enforce any
other means of obtaining payment or performance of the Guaranteed Obligations.
Each Guarantor waives any statutory or common law procedural or substantive
rights related to the foregoing. Neither the Agent nor any Lender shall be
required to mitigate damages or take any other action to reduce, collect, or
enforce the Guaranteed Obligations.
3.2 With respect to each Guarantor, all Subordinated Obligations of
such Guarantor (as defined below) shall be subordinate and junior in right of
payment and collection to the payment and collection in full of all Guaranteed
Obligations as described below:
(a) As used herein, the term "Subordinated Obligations" for
such Guarantor means: (i) all present and future indebtedness, liabilities, and
obligations of any kind owed by the Borrower, any other Guarantor, or any other
Person liable for the payment or performance of the Guaranteed Obligations to
such Guarantor, including (A) debt obligations, equity obligations, and other
contractual obligations requiring payments of any kind to be made to such
Guarantor and including (B) any right of subrogation (including any statutory
rights of subrogation under Section 509 of the Bankruptcy Code, 11 U.S.C.
Section 509, or under state statutes), contribution, indemnification,
reimbursement, exoneration, or any right to participate in any claim or remedy
of the Agent against the Borrower, any Guarantor, or any Person liable for the
payment or performance of the Guaranteed Obligations, or any collateral which
the Agent now has or may acquire, and (ii) any increases, extensions, and
rearrangements of the foregoing obligations under any amendments, supplements,
and other modifications of the documents and agreements creating the foregoing
obligations.
(b) Until all Guaranteed Obligations have been irrevocably
paid in full (and therefore the payment thereof is no longer subject to being
set aside or returned under the law), such Guarantor agrees not to take any
action to enforce payment of the Subordinated Obligations of such
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Guarantor, but this standstill is not intended as a permanent waiver of the
subrogation, contribution, indemnification, reimbursement, exoneration,
participation, or other rights of such Guarantor.
(c) Upon any receivership, insolvency proceeding, bankruptcy
proceeding, assignment for the benefit of creditors, reorganization, arrangement
with creditors, sale of assets for creditors, dissolution, liquidation, or
marshaling of the assets of the Borrower, any Guarantor, or any other Person
liable for the payment or performance of the Guaranteed Obligations, (i) all
amounts due with respect to the Guaranteed Obligations shall be paid in full
before such Guarantor shall be entitled to collect or receive any payment with
respect to the Subordinated Obligations of such Guarantor, and (ii) all payments
to which such Guarantor would be entitled to collect or receive on the
Subordinated Obligations of such Guarantor shall be paid over to the Agent for
application to the Guaranteed Obligations.
(d) Following notice from the Agent to the Borrower that an
Event of Default exists and that no further payments shall be made on the
Subordinated Obligations of such Guarantor, all amounts due with respect to the
Guaranteed Obligations shall be paid in full before such Guarantor shall be
entitled to collect or receive any payment with respect to the Subordinated
Obligations of such Guarantor.
(e) Any lien, security interest, or assignment securing the
repayment of the Subordinated Obligations of such Guarantor shall be fully
subordinate to any lien, security interest, or assignment in favor of the Agent
or any Lender which secures the Guaranteed Obligations. At the request of the
Agent, such Guarantor will take any and all steps necessary to fully evidence
the subordination granted hereunder, including amending or terminating financing
statements and executing and recording subordinations of liens.
(f) This is an absolute and irrevocable agreement of
subordination and the Agent may, without notice to such Guarantor, take any
action described in Section 2.2 without impairing or releasing the obligations
of such Guarantor hereunder.
(g) Except for assignments made pursuant to guaranties of the
Senior Debt, such Guarantor shall not assign or otherwise transfer to any other
Person any interest in the Subordinated Obligations of such Guarantor without
the prior written permission of the Agent and except for assignments made
pursuant to guaranties of the Senior Debt, unless such Guarantor causes the
assignee or other transferee to execute and deliver to the Agent a subordination
agreement in sub stantially the form of the subordination provisions in this
Agreement.
(h) If any amount shall be paid to such Guarantor in violation
of this Section 3.2, such amount shall be held in trust for the benefit of the
Agent and immediately turned over to the Agent, with any necessary endorsement,
to be applied to the Guaranteed Obligations.
Section 4. Miscellaneous.
4.1 Each Guarantor hereby affirms and shall comply with the
representations, warranties, and covenants made by the Borrower in the Loan
Agreement to the extent that such representations,
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warranties, and covenants are applicable to such Guarantor, including all of the
covenants in Articles 4 and 5 of the Loan Agreement.
4.2 Each Guarantor agrees that this Agreement shall be governed by the
laws of the State of New York. If any provision in this Agreement is held to be
unenforceable, such provision shall be severed and the remaining provisions
shall remain in full force and effect. All representations, warranties, and
covenants of any Guarantor in this Agreement shall survive the execution of this
Agreement and any other contract or agreement. If a due date for an amount
payable is not specified in this Agreement, the due date shall be the date on
which the Agent demands payment therefor. The Agent's and the Lenders' remedies
under this Agreement and the Loan Documents to which any Guarantor is a party
shall be cumulative, and no delay in enforcing this Agreement and the Loan
Documents to which such Guarantor is a party shall act as a waiver of the
Agent's or any Lenders' rights thereunder. The provisions of this Agreement may
be waived or amended only in a writing signed by the party against whom
enforcement is sought. This Agreement shall bind and inure to the benefit of
each Guarantor and the Lender and their respective successors and assigns. No
Guarantor may assign its rights or delegate its duties under this Agreement. The
Agent and the Lenders may assign their rights and delegate its duties under this
Agreement in accordance with the terms of the Loan Agreement. This Agreement may
be executed in multiple counterparts each of which shall constitute one and the
same agreement. Unless otherwise specified, all notices and other communications
between such Guarantor and the Agent provided for in this Agreement and the Loan
Documents to which such Guarantor is a party shall be in writing and shall be
mailed by first class or express mail, postage prepaid, or sent by telex,
telegram, telecopy or other similar form of rapid transmission, or personally
delivered to the receiving party. Any communication so addressed and mailed
shall be deemed to be given when so mailed and any notice so sent by rapid
transmission shall be deemed to be given when receipt of such transmission is
acknowledged or confirmed, and any communication so delivered in person shall be
deemed to be given when receipted for by, or actually received by, an authorized
officer of the Borrower or the Agent, as the case may be. All such
communications shall be mailed, sent or delivered,
If to any Guarantor:
[Guarantor]
c/o Queen Sand Resources, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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with a copy to:
Queen Sand Resources, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ 5Y7
Attn: ▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇ and ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. Boeing
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Agent:
Enron Capital & Trade Resources Corp.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
4.3 Any present or future Subsidiary of the Borrower may become a
Guarantor under and a party to this Agreement by assuming in writing in favor of
the Agent the liabilities of a Guarantor under this Agreement. Upon assuming the
liabilities of a Guarantor under this Agreement such Subsidiary shall be deemed
to be a Guarantor under this Agreement and a party to this Agreement for all
purposes hereunder.
THIS WRITTEN AGREEMENT AND THE LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT
AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES.
THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.
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EXECUTED as of the date first above written.
CORRIDA RESOURCES, INC.
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
NORTHLAND OPERATING CO.
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
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