EXHIBIT 10.22
GUARANTY
This GUARANTY (this "Guaranty") is dated as of the 15th day of September,
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1997, by Petroglyph Energy, Inc., a Delaware corporation ("Guarantor"), in favor
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of The Chase Manhattan Bank, a New York state banking corporation ("Lender", and
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each of its 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, PGP II, L.P., a Delaware limited partnership ("PGP II"),
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Petroglyph Gas Partners, L.P., a Delaware limited partnership ("PGP", together
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with PGP II, "Borrowers"), Guarantor and Lender are parties to that certain
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Amended and Restated Loan Agreement dated of even date herewith (as amended, the
"Loan Agreement"), pursuant to which Lender has provided Borrowers with certain
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revolving and term credit facilities (unless otherwise defined herein, all terms
used herein with their initial letter capitalized shall have the meaning given
such terms in the Loan Agreement); and
WHEREAS, Lender has required as a condition to entering into the Loan
Agreement, 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 Loan Agreement and the
extensions of credit to be made by Lender under the Loan Agreement; and
WHEREAS, Guarantor has further determined that the benefits accruing to it
from the Loan Agreement 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 Borrowers
will properly and timely perform each and all of the Obligation. 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
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 Obligation, as defined in the Loan
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Agreement, and all present and future costs, attorneys' fees and expenses
reasonably incurred by each of the Noteholders to enforce Borrowers', any
guarantor's (including Guarantor's), or any other obligor's payment of any of
the Obligation, including, without limitation (to the extent lawful) all present
and future accrued and unpaid interest (including, without limitation, all post-
petition interest if Borrowers or any Subsidiary voluntarily or involuntarily
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becomes subject to any Debtor Relief Law). As used herein, the term "Debtor
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Relief Law" means the Bankruptcy Code of the United States of America and all
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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
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Liability Amount" means $1.00 less than the amount of the lowest claim on this
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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
Borrowers 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 Borrowers 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 as set forth in
the Loan 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 Borrowers or others liable on such Guaranteed Debt, to have
Borrowers 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.
5. Each payment on the Guaranteed Debt shall be deemed to have been made
by Borrowers 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 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 Loan
Agreement or amend or modify in whole or in part the Loan Agreement or any Loan
Document executed in connection with same without impairing or diminishing the
obligations of Guarantor hereunder. Guarantor further agrees that if Borrowers
execute in favor of any Noteholder any collateral
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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 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.
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 each Noteholder); and (v) Guarantor is not
involved in, nor aware of the threat of, any Litigation (as defined in Paragraph
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23(a) hereinbelow) which, in the event of an outcome unfavorable to Guarantor,
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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 Loan 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 Loan 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 Loan 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 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 Loan Agreement and the other Loan
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Documents. The failure of Guarantor to comply with the terms of this paragraph
shall be an Event of Default under the Loan Agreement.
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 Document 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
Document, 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 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
Documents 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
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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 Document; (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 Borrowers or any new agreement between any
Noteholder and Borrowers, it being understood that none of the Noteholders 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 it exceeded their authority or
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violated their fiduciary duties in connection with it, or otherwise; or (j) any
payment of the Guaranteed Debt to any Noteholder 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 Obligation which accrues after the commencement of any proceeding
referred to in clause (a) above (or, if interest on any portion of the
Obligation 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
Obligation if said proceedings had not been commenced) shall be included in the
Guaranteed Debt because it is the intention of Guarantor 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 Borrowers 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 allow the claim of
Noteholders 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 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.
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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 Borrowers to Guarantor to the
Guaranteed Debt evidenced by the Loan Agreement and agrees after the occurrence
of a Default under the Loan Agreement, or any event which with notice, lapse of
time, or both, would constitute a Default under the Loan 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 Borrowers, or any other guarantor of
the Guaranteed Debt, as a result of any payment made by Guarantor pursuant to
this Guaranty.
18. After giving effect to the Exchange, (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 Documents 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 each
Borrower'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 Borrowers and any circumstances affecting
each Borrower's ability to perform under the Loan Documents to which it 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 Borrowers 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
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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, in the Loan 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
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appropriate answer back is received or receipt is otherwise confirmed, (ii) if
given by certified mail, return receipt requested, on the fourth day after such
communication is deposited 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.
23. (a) VENUE; SERVICE OF PROCESS. GUARANTOR, FOR ITSELF, ITS SUCCESSORS
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AND ASSIGNS, HEREBY (A) IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF
THE STATE AND FEDERAL COURTS OF THE STATE OF TEXAS AND AGREES AND CONSENTS THAT
SERVICE OF PROCESS MAY BE MADE UPON IT IN ANY LEGAL PROCEEDING ARISING OUT OF OR
IN CONNECTION WITH THE LOAN DOCUMENTS AND THE OBLIGATION BY SERVICE OF PROCESS
AS PROVIDED BY TEXAS LAW, (B) 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 THE LOAN
DOCUMENTS AND THE OBLIGATION BROUGHT IN THE COURTS OF DALLAS COUNTY, TEXAS, OR
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS, (C)
IRREVOCABLY WAIVES ANY CLAIMS THAT ANY LITIGATION BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCONVENIENT FORUM, (D) AGREES TO DESIGNATE AND MAINTAIN AN
AGENT FOR SERVICE OF PROCESS IN DALLAS COUNTY, TEXAS, IN CONNECTION WITH ANY
SUCH LITIGATION AND TO DELIVER TO LENDER EVIDENCE THEREOF, (E) 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 AT ITS ADDRESS SET FORTH
HEREIN, AND (F) IRREVOCABLY AGREES THAT ANY LEGAL PROCEEDING AGAINST LENDER
ARISING OUT OF OR IN
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CONNECTION WITH THE LOAN DOCUMENTS OR THE OBLIGATION SHALL BE BROUGHT IN THE
COURTS OF DALLAS COUNTY, TEXAS, OR IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF TEXAS. NOTHING HEREIN SHALL AFFECT THE RIGHT OF LENDER 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 proceeding, claim, lawsuit or
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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 Documents.
24. THIS GUARANTY AND THE OTHER LOAN DOCUMENTS COLLECTIVELY REPRESENT THE
FINAL AGREEMENT BY AND BETWEEN NOTEHOLDERS AND GUARANTOR AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF NOTEHOLDERS AND GUARANTOR. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN NOTEHOLDERS AND GUARANTOR.
25. WAIVER OF JURY TRIAL PUNITIVE DAMAGES, ETC. GUARANTOR AND LENDER
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HEREBY (a) KNOWINGLY, VOLUNTARILY, INTENTIONALLY, AND IRREVOCABLY WAIVE, TO THE
MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREIN, OR DIRECTLY OR INDIRECTLY AT ANY TIME
ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR ANY
TRANSACTION CONTEMPLATED THEREBY OR ASSOCIATED THEREWITH, BEFORE OR AFTER
MATURITY; (b) 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
DAMAGES," AS DEFINED BELOW; (c) 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 (d) ACKNOWLEDGE THAT IT
HAS BEEN INDUCED TO ENTER INTO THIS GUARANTY, THE OTHER LOAN DOCUMENTS AND THE
TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY BY, AMONG OTHER
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THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS CONTAINED IN THIS SECTION. AS USED
IN THIS SECTION, "SPECIAL DAMAGES" INCLUDES ALL SPECIAL, CONSEQUENTIAL,
EXEMPLARY, OR PUNITIVE DAMAGES (REGARDLESS OF HOW NAMED), BUT DOES NOT INCLUDE
ANY PAYMENT OR FUNDS WHICH ANY PARTY HERETO HAS EXPRESSLY PROMISED TO PAY OR
DELIVER TO ANY OTHER PARTY HERETO.
26. PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401, THIS
GUARANTY AND THE OTHER LOAN DOCUMENTS SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, OTHER THAN CONFLICT OF LAWS RULES
THEREOF.
EXECUTED and effective as of the date first above written.
GUARANTOR:
PETROGLYPH ENERGY, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
Address:
Petroglyph Energy, Inc.
0000 Xxxxx Xxxxxxx 00
Xxxxxxxxxx, Xxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx
Fax No. (000) 000-0000
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