EXHIBIT 4.11
GUARANTY
THIS GUARANTY (this "Guaranty") is dated as of the 20th day of May, 1997,
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by T.W.O.C., INC., a Delaware corporation ("Guarantor"), in favor of NATIONSBANK
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OF TEXAS, N.A. and PNC BANK, NATIONAL ASSOCIATION (NationsBank of Texas, N.A.
acting as a Bank but not as Agent, and PNC Bank, National Association, and each
of their successors and assigns are collectively referred to herein as
"Noteholders").
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W I T N E S S E T H:
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WHEREAS, The Wiser Oil Company, a Delaware corporation ("Wiser U.S."), The
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Wiser Oil Company of Canada, a Nova Scotia unlimited liability company, formerly
known as The Wiser Oil Company Canada Ltd. ("Wiser Canada," and together with
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Wiser U.S., collectively referred to herein as "Borrowers"), Noteholders, and
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NationsBank of Texas, N.A., as Agent ("Agent") are parties to that certain
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Credit Agreement dated as of June 23, 1994 (as amended through the date hereof,
the "Credit Agreement"), pursuant to which Noteholders have provided Wiser U.S.
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with a revolving credit facility and Wiser Canada with a term credit facility
(unless otherwise defined herein, all terms used herein with their initial
letter capitalized shall have the meaning given such terms in the Credit
Agreement); and
WHEREAS, Borrowers have requested that the Agent and Noteholders enter into
a letter agreement of even date herewith (the "Second Amendment") pursuant to
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which the Credit Agreement will be amended in certain respects; and
WHEREAS, Banks have required as a condition to entering into the Second
Amendment, that Guarantor execute and deliver this Guaranty; and
WHEREAS, Guarantor has determined that valuable benefits, either directly
or indirectly, will be derived by it as a result of the Second Amendment and the
extension of credit to be made by Noteholders under the Credit Agreement as
amended by the Second Amendment; and
WHEREAS, Guarantor has further determined that the benefits accruing to it
from the Credit Agreement as amended by the Second Amendment exceed Guarantor's
anticipated liability under this Guaranty.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged and confessed, Guarantor hereby covenants and
agrees as follows:
1. Guarantor hereby absolutely and unconditionally guarantees the prompt,
complete and full payment when due, no matter how such shall become due, of the
Guaranteed Debt (as hereinafter defined), and further guarantees that Wiser U.S.
will properly and timely perform each and all of the Obligations. This Guaranty
shall remain in effect until the Guaranteed Debt is fully paid and performed.
Guarantor may not rescind or revoke its obligations with respect to this
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Guaranty and the Guaranteed Debt. Notwithstanding any contrary provision in
this Guaranty, however, the maximum liability of Guarantor under this Guaranty
shall not exceed the Maximum Liability Amount (as hereinafter defined). As used
herein, the term "Guaranteed Debt" means the Obligations, as defined in the
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Credit Agreement, and all present and future costs, attorneys' fees and expenses
reasonably incurred by each of the Noteholders to enforce Wiser U.S.'s, any
guarantor's (including Guarantor's), or any other obligor's payment of any of
the Obligations, including, without limitation (to the extent lawful) all
present and future accrued and unpaid interest (including, without limitation,
all post-petition interest if Wiser U.S. or any Subsidiary voluntarily or
involuntarily becomes subject to any Debtor Relief Law). As used herein, the
term "Debtor Relief Law" means the Bankruptcy Code of the United States of
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America and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, suspension
of payments, or similar laws affecting creditor's rights. As used herein, the
term "Maximum Liability Amount" means $1.00 less than the amount of the lowest
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claim on this Guaranty which would render it void or voidable under any Debtor
Relief Law as against Guarantor.
2. If Guarantor is or becomes liable for any indebtedness owing by Wiser
U.S. to any Noteholder by endorsement or otherwise than under this Guaranty,
such liability shall not be in any manner impaired or affected hereby, and the
rights of each Noteholder hereunder shall be cumulative of any and all other
rights that each Noteholder may ever have against Guarantor. The exercise by
any Noteholder of any right or remedy hereunder or under any other instrument,
at law or in equity, shall not preclude the concurrent or subsequent exercise of
any other right or remedy.
3. In the event of default by Wiser U.S. in payment of the Guaranteed
Debt, or any part thereof, when such Guaranteed Debt becomes due, either by its
terms or as the result of the exercise of any power to accelerate, Guarantor
shall, on demand, and without further notice of dishonor and without any notice
having been given to Guarantor previous to such demand of the acceptance by each
Noteholder of this Guaranty, and without any notice having been given to such
Guarantor previous to such demand of the creating or incurring of such
Guaranteed Debt, pay the amount due thereon to each Noteholder at Agent's office
as set forth in the Credit Agreement, and it shall not be necessary for any
Noteholder, in order to enforce such payment by Guarantor, first, to institute
suit or exhaust its remedies against Wiser U.S. or others liable on such
Guaranteed Debt, to have Wiser U.S. joined with Guarantor in any suit brought
under this Guaranty or to enforce its rights against any security which shall
ever have been given to secure such indebtedness; provided, however, that in the
event any Noteholder elects to enforce and/or exercise any remedies it may
possess with respect to any security for the Guaranteed Debt prior to demanding
payment from Guarantor, Guarantor shall nevertheless be obligated hereunder for
any and all sums still owing to any of the Noteholders on the Guaranteed Debt
and not repaid or recovered incident to the exercise of such remedies.
4. Notice to Guarantor of the acceptance of this Guaranty and of the
making, renewing or assignment of the Guaranteed Debt and each item thereof, are
hereby expressly waived by Guarantor.
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5. Each payment on the Guaranteed Debt shall be deemed to have been made
by Wiser U.S. unless express written notice is given to each Noteholder at the
time of such payment that such payment is made by Guarantor as specified in such
notice.
6. If all or any part of the Guaranteed Debt at any time be secured,
Guarantor agrees that Agent and/or any Noteholder may at any time and from time
to time, at its discretion and with or without valuable consideration, allow
substitution or withdrawal of collateral or other security and release
collateral or other security or compromise or settle any amount due or owing
under the Credit Agreement or amend or modify in whole or in part the Credit
Agreement or any Loan Paper executed in connection with same without impairing
or diminishing the obligations of Guarantor hereunder. Guarantor further agrees
that if Wiser U.S. executes in favor of any Noteholder any collateral agreement,
mortgage or other security instrument, the exercise by any Noteholder of any
right or remedy thereby conferred on any such Noteholder shall be wholly
discretionary with such Noteholder, and that the exercise or failure to exercise
any such right or remedy shall in no way impair or diminish the obligations of
Guarantor hereunder. Guarantor further agrees that none of the Noteholders nor
Agent shall be liable for its failure to use diligence in the collection of the
Guaranteed Debt or in preserving the liability of any Person liable for the
Guaranteed Debt, and Guarantor hereby waives presentment for payment, notice of
nonpayment, protest and notice thereof (including, notice of acceleration), and
diligence in bringing suits against any Person liable on the Guaranteed Debt, or
any part thereof.
7. Guarantor agrees that any Noteholder, in its discretion, may (i) bring
suit against all guarantors (including, without limitation, Guarantor hereunder)
of the Guaranteed Debt jointly and severally or against any one or more of them,
(ii) compound or settle with any one or more of such guarantors for such
consideration as Noteholders may deem proper, and (iii) release one or more of
such guarantors from liability hereunder, and that no such action shall impair
the rights of any such Noteholder to collect the Guaranteed Debt (or the unpaid
balance thereof) from other such guarantors of the Guaranteed Debt, or any of
them, not so sued, settled with or released. Guarantor agrees, however, that
nothing contained in this paragraph, and no action by any Noteholder permitted
under this paragraph, shall in any way affect or impair the rights or
obligations of such guarantors among themselves.
8. Guarantor represents and warrants to each Noteholder that (i) Guarantor
is a corporation, partnership or limited liability company (as applicable) duly
organized and validly existing under the laws of the jurisdiction of its
incorporation or formation; (ii) Guarantor possesses all requisite authority and
power to authorize, execute, deliver and comply with the terms of this Guaranty;
(iii) this Guaranty has been duly authorized and approved by all necessary
action on the part of Guarantor and constitutes a valid and binding obligation
of Guarantor enforceable in accordance with its terms, except as (a) the
enforcement thereof may be limited by applicable Debtor Relief Laws, and (b) the
availability of equitable remedies may be limited by equitable principles of
general applicability; (iv) no approval or consent of any court or Governmental
Authority is required for the authorization, execution, delivery or compliance
with this Guaranty which has not been obtained (and copies thereof delivered to
Agent and each Noteholder); and (v) Guarantor is not involved in, nor aware of
the threat of, any Litigation (as
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defined in Paragraph 23(a) hereinbelow) which, in the event of an outcome
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unfavorable to Guarantor, could have a material adverse effect on the financial
position, business, operations or prospects of Guarantor nor are there any
outstanding or unpaid judgments against Guarantor. Guarantor further
acknowledges that certain (A) representations and warranties in the Credit
Agreement are applicable to it and confirms that each such representation and
warranty is true and correct in all material respects, and (B) covenants and
other provisions in the Credit Agreement are applicable to it or are imposed
upon it and agrees to promptly comply with or be bound by each of them.
9. Guarantor covenants and agrees that until the Guaranteed Debt is paid
and performed in full, except as otherwise provided in the Credit Agreement or
unless each Noteholder gives its prior written consent to any deviation
therefrom, it will (i) at all times maintain its existence and authority to
transact business in any State or jurisdiction where Guarantor has assets and
operations, (ii) promptly deliver to any Noteholder and to Agent such
information respecting its business affairs, assets and liabilities as any
Noteholder may reasonably request, and (iii) duly and punctually observe and
perform all covenants applicable to Guarantor under the Credit Agreement and the
other Loan Papers.
10. This Guaranty is for the benefit of each Noteholder, its successors
and assigns, and in the event of an assignment by any Noteholder (or its
successors or assigns) of the Guaranteed Debt, or any part thereof, the rights
and benefits hereunder, to the extent applicable to the Guaranteed Debt so
assigned, may be transferred with such Guaranteed Debt. This Guaranty is
binding upon Guarantor and its legal representatives, successors and assigns.
11. No modification, consent, amendment or waiver of any provision of this
Guaranty, nor consent to any departure by Guarantor therefrom, shall be
effective unless the same shall be in writing and signed by each Noteholder, and
then shall be effective only in the specific instance and for the purpose for
which given. No notice to or demand on Guarantor in any case shall, of itself,
entitle Guarantor to any other or further notice or demand in similar or other
circumstances. No delay or omission by any Noteholder in exercising any power
or right hereunder shall impair any such right or power or be construed as a
waiver thereof or any acquiescence therein, nor shall any single or partial
exercise of any such power preclude other or further exercise thereof, or the
exercise of any other right or power hereunder. All rights and remedies of each
Noteholder hereunder are cumulative of each other and of every other right or
remedy which any of the Noteholders may otherwise have at law or in equity or
under any other contract or document, and the exercise of one or more rights or
remedies shall not prejudice or impair the concurrent or subsequent exercise of
other rights or remedies.
12. No provision herein or in any promissory note, instrument or any other
Loan Paper executed by either Borrower or Guarantor evidencing the Guaranteed
Debt shall require the payment or permit the collection of interest in excess of
the Maximum Lawful Rate. If any excess of interest in such respect is provided
for herein or in any such promissory note, instrument, or any other Loan Paper,
the provisions of this paragraph shall govern, and none of the Borrowers nor
Guarantor shall be obligated to pay the amount of such interest to the extent
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that it is in excess of the amount permitted by law. The intention of the
parties being to conform strictly to any applicable federal or state usury laws
now in force, all promissory notes, instruments and other Loan Papers executed
by Borrowers or Guarantor evidencing the Guaranteed Debt shall be held subject
to reduction to the amount allowed under said usury laws as now or hereafter
construed by the courts having jurisdiction.
13. If Guarantor should breach or fail to perform any provision of this
Guaranty, Guarantor agrees to pay each Noteholder all costs and expenses
(including court costs and reasonable attorneys fees) incurred by such
Noteholder in the enforcement hereof.
14. (a) The liability of Guarantor under this Guaranty shall in no manner
be impaired, affected or released by the insolvency, bankruptcy, making of an
assignment for the benefit of creditors, arrangement, compensation, composition
or readjustment of either Borrower, or any proceedings affecting the status,
existence or assets of either Borrower or other similar proceedings instituted
by or against either Borrower and affecting the assets of either Borrower.
Furthermore, no obligations of Guarantor under this Guaranty may be released,
diminished or affected by the occurrence of any one or more of the following
events: (a) any taking or accepting of any other security or assurance for any
Guaranteed Debt; (b) any release, surrender, exchange, subordination, impairment
or loss of any collateral securing any Guaranteed Debt; (c) any full or partial
release of the liability of any other guarantor or any other obligor on the
Guaranteed Debt; (d) the modification of, or waiver of compliance with, any
terms of any other Loan Paper; (e) the insolvency, bankruptcy or lack of
corporate, partnership or limited liability company (as applicable) power of
Guarantor or any other obligor at any time liable for any of the Guaranteed
Debt, whether now existing or occurring in the future; (f) any renewal,
extension or rearrangement of any Guaranteed Debt or any adjustment, indulgence,
forbearance, or compromise that may be granted or given by any Noteholder to any
guarantor (including Guarantor) or any other obligor on the Guaranteed Debt; (g)
any neglect, delay, omission, failure or refusal of any Noteholder to take or
prosecute any action in connection with the Guaranteed Debt; (h) any failure of
any Noteholder to notify Guarantor of any renewal, extension, or assignment of
any Guaranteed Debt, or the release of any security or of any other action taken
or refrained from being taken by any Noteholder against Wiser U.S. or any new
agreement between any Noteholder and Wiser U.S., it being understood that none
of the Noteholders nor Agent are required to give Guarantor any notice of any
kind under any circumstances whatsoever with respect to or in connection with
any Guaranteed Debt, other than any notice required to be given to Guarantor by
law or elsewhere in this Guaranty; (i) the unenforceability of any Guaranteed
Debt against Guarantor or any other obligor because it exceeds the amount
permitted by law, the act of creating it is ultra xxxxx, the officers creating
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it exceeded their authority or violated their fiduciary duties in connection
with it, or otherwise; or (j) any payment of the Guaranteed Debt to any
Noteholder or Agent is held to constitute a preference under any Debtor Relief
Law or for any other reason any Noteholder is required to refund that payment or
make payment to someone else (and in each such instance this Guaranty will be
reinstated in an amount equal to that payment).
(b) Guarantor acknowledges and agrees that any interest on any
portion of the
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Obligations which accrues after the commencement of any proceeding referred to
in clause (a) above (or, if interest on any portion of the Obligations ceases to
accrue by operation of law by reason of the commencement of said proceeding,
such interest as would have accrued on such portion of the Obligations if said
proceedings had not been commenced) shall be included in the Guaranteed Debt
because it is the intention of Guarantor, Agent and Noteholders that the
Guaranteed Debt which is guaranteed by Guarantor pursuant to this Guaranty
should be determined without regard to any rule of law or order which may
relieve Wiser U.S. of any portion of such Guaranteed Debt. Guarantor will
permit any trustee in bankruptcy, receiver, debtor in possession, assignee for
the benefit of creditors or similar person to pay Noteholders or Agent, or allow
the claim of Noteholders or Agent in respect of, any such interest accruing
after the date on which such proceeding is commenced.
(c) In the event that all or any portion of the Guaranteed Debt is
paid by Borrowers or any other obligor, the obligations of Guarantor hereunder
shall continue and remain in full force and effect or be reinstated, as the case
may be, in the event that all or any part of such payment(s) are rescinded or
recovered directly or indirectly from Agent or any Noteholder as a preference,
fraudulent transfer or otherwise, and any such payments which are so rescinded
or recovered shall constitute Guaranteed Debt for all purposes under this
Guaranty.
15. Guarantor understands and agrees that any amounts of Guarantor on
account with any Noteholder may be offset to satisfy the obligations of
Guarantor hereunder.
16. Guarantor hereby subordinates and makes inferior any and all
indebtedness now or at any time hereafter owed by Wiser U.S. to Guarantor to the
Guaranteed Debt evidenced by the Credit Agreement and agrees after the
occurrence of an Event of Default under the Credit Agreement, not to permit
either Borrower to repay, or to accept payment from either Borrower of, such
indebtedness or any part thereof without the prior written consent of each
Noteholder.
17. Guarantor hereby waives any and all rights of subrogation to which
Guarantor may otherwise be entitled against Wiser U.S., or any other guarantor
of the Guaranteed Debt, as a result of any payment made by Guarantor pursuant to
this Guaranty.
18. As of the date hereof (i) the fair value of the property of Guarantor
is greater than the total amount of liabilities including, without limitation,
contingent liabilities, of Guarantor, (ii) the present fair saleable value of
the assets of Guarantor (including, without limitation, intangible assets such
as goodwill) is not less than the amount that will be required to pay the
probable liability of Guarantor on its debts as they become absolute and
matured, (iii) Guarantor is able to realize upon its assets and pay its debts
and other liabilities, contingent obligations and other commitments as they
mature in the normal course of business, (iv) Guarantor does not intend to, nor
does Guarantor believe that it will, incur debts or liabilities beyond its
ability to pay as such debts and liabilities mature, and (v) Guarantor is not
engaged in a business or transaction, nor is Guarantor about to engage in a
business or transaction for which its property would constitute unreasonably
small capital after giving due consideration to the prevailing practice in the
industry in which Guarantor is engaged. For purposes of this Section 18,
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"contingent liabilities" shall be computed at the amount which, in light of all
relevant facts and circumstances, represents the amount that can reasonably be
expected to become an actual or matured liability.
19. Guarantor confirms that it has executed and delivered this Guaranty
after reviewing the terms and conditions of the Loan Papers and such other
information as it has deemed appropriate in order to make its own credit
analysis and decision to execute and deliver this Guaranty. Guarantor confirms
that it has made its own independent investigation with respect to Wiser U.S.'s
creditworthiness and is not executing and delivering this Guaranty in reliance
on any representation or warranty by any Noteholder as to that creditworthiness.
Guarantor expressly assumes all responsibilities to remain informed of the
financial condition of Wiser U.S. and any circumstances affecting Wiser U.S.'s
ability to perform under the Loan Papers to which is a party or any collateral
securing any Guaranteed Debt.
20. The Guaranteed Debt may not be reduced, discharged or released because
or by reason of any existing or future offset, claim, or defense (except for the
defense of complete and final payment of the Guaranteed Debt) of Wiser U.S. or
any other obligor against any Noteholder or against payment of the Guaranteed
Debt, whether that offset, claim or defense arises in connection with the
Guaranteed Debt or otherwise. Those claims and defenses include, without
limitation, failure of consideration, breach of warranty, fraud, bankruptcy,
incapacity/infancy, statute of limitations, lender liability, accord and
satisfaction, usury, forged signatures, mistake, impossibility, frustration of
purpose, and unconscionability.
21. All notices, requests and other communications to any party hereunder
shall be in writing (including bank wire, telex, telecopy or similar writing)
and shall be given to such party at its address, telex or telecopy number set
forth, in the case of any Noteholder, on the signature pages of the Credit
Agreement, or, in the case of Guarantor, on the signature pages hereof, or such
other address, telex or telecopy number as such party may hereafter specify for
the purpose by notice to the other party. Each such notice, request or other
communication shall be effective (a) if given by telex or telecopy, when such
telex or telecopy is transmitted to the telex or telecopy number specified in
this Section 21 and the appropriate answer back is received or receipt is
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otherwise confirmed, (ii) if given by mail, three (3) Domestic Business Days (as
defined in the Credit Agreement) after deposit in the mails with first class
postage prepaid, addressed as aforesaid, or (iii) if given by any other means,
when delivered at the address specified in this Section 21.
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22. If any provision of this Guaranty is held to be illegal, invalid, or
unenforceable, such provision shall be fully severable; this Guaranty shall be
construed and enforced as if such illegal, invalid, or unenforceable provision
had never comprised a part hereof; and the remaining provisions hereof shall
remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance herefrom. Furthermore,
in lieu of such illegal, invalid, or unenforceable provision there shall be
added automatically as a part of this Guaranty a provision as similar in terms
to such illegal, invalid, or unenforceable provision as may be possible and be
legal, valid and enforceable.
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23. (a) Except to the extent required for the exercise of the remedies
provided in the other security instruments, Guarantor hereby irrevocably submits
to the nonexclusive jurisdiction of any Texas state or federal court over any
action or proceeding arising out of or relating to this Guaranty or any other
Loan Paper, and Guarantor hereby irrevocably agrees that all claims in respect
of such action or proceeding may be heard and determined in such Texas state or
federal court. Guarantor hereby irrevocably waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to the laying
of venue of any Litigation arising out of or in connection with this Guaranty or
any of the Loan Papers brought in district courts of Dallas County, Texas, or in
the United States District Court for the Northern District of Texas, Dallas
Division. Guarantor hereby irrevocably waives any claim that any Litigation
brought in any such court has been brought in an inconvenient forum. Guarantor
hereby irrevocably consents to the service of process out of any of the
aforementioned courts in any such Litigation by the mailing of copies thereof by
certified mail, return receipt requested, postage prepaid, to Guarantor's office
at the address set forth on the signature page hereof. Guarantor irrevocably
agrees that any legal proceeding against Noteholders shall be brought in the
district courts of Dallas County, Texas, or in the United States District Court
for the Northern District of Texas, Dallas Division. Nothing herein shall
affect the right of any Noteholder to commence legal proceedings or otherwise
proceed against Guarantor in any jurisdiction or to serve process in any manner
permitted by applicable law. As used herein, the term "Litigation" means any
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proceeding, claim, lawsuit or investigation (i) conducted or threatened by or
before any court or governmental department, commission, board, bureau, agency
or instrumentality of the United States or of any state, commonwealth, nation,
territory, possession, county, parish, or municipality, whether now or hereafter
constituted or existing, or (ii) pending before any public or private
arbitration board or panel.
(b) Nothing in this Paragraph 23 shall affect any right of any
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Noteholder to serve legal process in any other manner permitted by law or affect
the right of any Noteholder to bring any action or proceeding against Guarantor
in the courts of any other jurisdictions.
(c) To the extent that Guarantor has or hereafter may acquire any
immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) with respect to itself or its property,
Guarantor hereby irrevocably waives such immunity in respect of its obligations
under this Guaranty and the other Loan Papers.
24. THIS GUARANTY AND THE OTHER LOAN PAPERS COLLECTIVELY REPRESENT THE
FINAL AGREEMENT BY AND AMONG NOTEHOLDERS, AGENT AND GUARANTOR AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF NOTEHOLDERS, AGENT AND GUARANTOR. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS AMONG NOTEHOLDERS, AGENT AND GUARANTOR.
25. GUARANTOR, FOR ITSELF, ITS SUCCESSORS AND ASSIGNS, HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ITS RIGHT
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TO A JURY TRIAL, IN ANY LITIGATION ARISING OUT OF OR IN CONNECTION WITH THIS
GUARANTY OR ANY OF THE OTHER LOAN PAPERS.
26. THIS GUARANTY AND THE OTHER LOAN PAPERS SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF TEXAS.
EXECUTED and effective as of the date first above written.
GUARANTOR:
T.W.O.C., INC.
By:/s/ Xxxxxxxx X. Xxxx
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Name: Xxxxxxxx X. Xxxx
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Title: Vice President
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Address:
T.W.O.C., Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attn: Chief Financial Officer
Fax No. (000) 000-0000
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