EXHIBIT 10.102
G U A R A N T E E
THIS GUARANTEE AGREEMENT (this "Guarantee") dated November 28th, 1995
made by READING & XXXXX CORPORATION, a Delaware corporation with offices
at 000 Xxxxxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxx 00000 (hereinafter called
the "Guarantor"), in favor of CHRISTIANIA BANK OG KREDITKASSE, a Norwegian
banking corporation, acting through its New York branch, as agent for the
Lenders party to the Credit Agreement described below (hereinafter called
the "Agent"),
W I T N E S S E T H :
WHEREAS, (i) Reading & Xxxxx Drilling Co. (hereinafter called "R & B
Drilling") and Reading & Xxxxx Exploration Co. (hereinafter called "R & B
Exploration" and together with R&B Drilling collectively called the
"Borrowers"), each an Oklahoma corporation, as joint and several
borrowers, (ii) the Guarantor (hereinafter together with the Borrowers
collectively called the "Companies"), (iii) the Lenders (as such term is
defined in the Credit Agreement) and (iv) the Agent have entered into a
Credit Facility Agreement dated as of November 16, 1995 (hereinafter as at
any time amended called the "Credit Agreement"), whereby the Lenders have
agreed to make available to the Borrowers (i) a US$45,000,000 reducing
revolving credit facility (the "Revolving Credit Facility") for general
corporate purposes and (ii) a US$10,000,000 standby letter of credit
facility (the "Standby Letter of Credit Facility", and together with the
Revolving Credit Facility, the "Credit Facility") for issuance of standby
letters of credit in the ordinary course of business and to back up
standby letters of credit issued by ING Bank which are outstanding on the
date hereof.
WHEREAS, concurrently herewith the Borrowers and Wilmington Trust
Company, a Delaware banking corporation as indenture trustee (hereinafter
the "Indenture Trustee"), are entering into an Indenture of Trust dated as
of November 16, 1995, with respect to certain security held by the
Indenture Trustee for the benefit of the Lenders;
WHEREAS, R&B Drilling is a wholly-owned corporate subsidiary of the
Guarantor;
WHEREAS, R&B Exploration is a wholly-owned corporate subsidiary of R
& B Drilling;
WHEREAS, the Lenders require that the Guarantor execute and deliver
this Guarantee as a condition of their willingness to enter into the
Credit Agreement and to make the Credit Facility available thereunder;
NOW, THEREFORE, in consideration of the foregoing premises and in
order to induce the Lenders to enter into the Credit Agreement and to make
the Credit Facility available to the Borrowers, the Guarantor hereby
agrees as follows:
1. The Guarantor hereby irrevocably and unconditionally
guarantees to the Lenders, their successors and assigns, as primary
obligor and not as surety merely, the due and faithful payment of all
amounts due under the Credit Agreement, including, without limitation, the
due and punctual payment when due (whether at the stated maturity or by
acceleration or otherwise), of all indebtedness, obligations and
liabilities of each of the Borrowers and each of their respective
successors and assigns to the Agent or the Lenders now existing or
hereafter incurred, arising out of or in connection with the Credit
Agreement, the Note and the Security Documents (as such terms are defined
in the Credit Agreement) (all such agreements, covenants, conditions,
indebtedness, obligations and liabilities being hereinafter called the
"Obligations") together with any and all expenses which may be paid or
incurred by the Agent and the Lenders in collecting any or all of the
Obligations and/or in enforcing any rights hereunder, and the due and
faithful performance by the Borrowers and each of their respective
successors and assigns and their due and faithful observance of and
compliance with all of the agreements, covenants and conditions to be
performed by the Borrowers, as provided in the Credit Agreement, as the
same may hereafter be amended and supplemented.
2. Notwithstanding any payment or payments hereunder, the
Guarantor shall not be entitled to be subrogated to any of the rights of
the Agent or the Indenture Trustee or the Lenders against the Borrowers or
any collateral security held by the Agent for the payment of the
Obligations of the Borrowers until all amounts owing by the Borrowers to
the Lenders are paid in full.
3. The Guarantor consents that, without the necessity of any
reservation of rights against it and without notice to or further assent
by it: (i) the obligations and liabilities of the Borrowers and any other
party or parties for or upon any of the Obligations, or any collateral
security or guarantee therefor or right of off-set with respect thereto,
may, from time to time, in whole or in part, be renewed, extended,
modified, accelerated, compromised or released by the Agent at the
direction of the Agent; (ii) any and all collateral security at any time
held by the Agent for payment of the Obligations may be sold, exchanged or
released, all without notice to or further assent by the Guarantor, who
will remain bound hereunder, notwithstanding any such renewal, extension,
modification, acceleration, compromise, sale or exchange or release; and
(iii) the covenants and agreements of the Borrowers contained in the
Credit Agreement, the Note and the Security Documents may at any time be
amended, modified, supplemented or terminated in whole or in part, from
time to time without impairing, abridging, releasing or affecting the
obligations of the Guarantor hereunder.
4. The Guarantor waives any and all notice of the acceptance of
this Guarantee, and any and all notice of the creation, renewal, extension
or accrual of any of the Obligations and notice of or proof of the
reliance by the Agent or the Lenders upon this Guarantee. The Obligations
shall conclusively be deemed to have been created, contracted and incurred
in reliance upon this Guarantee, and all dealings between the Companies
and the Agent or the Lenders shall likewise be conclusively presumed to
have been had or consummated in reliance upon this Guarantee. The
Guarantor waives diligence, presentment, protest, demand for payment and
notice of default or nonpayment to or upon it with respect to the
Obligations or any of them.
5. This is a continuing, absolute and unconditional guarantee of
payment and performance without regard to the regularity or enforceability
of the Credit Agreement or any of the Obligations or any collateral
security or guarantee therefor or rights of off-set with respect thereto
and without regard to any defense, off-set or counterclaim which may at
any time be available to or be asserted by any of the Companies against
the Agent or the Lenders and which constitutes, or which might be
construed to constitute, an equitable or legal discharge of the Borrowers
for the Obligations, or the obligations of the Guarantor under this
Guarantee, in bankruptcy or in any other instance, and the provisions of
this Guarantee shall remain in full force and effect and be binding in
accordance with and to the extent of its terms upon the Guarantor, its
successors and assigns thereof and inure to the benefit of the Agent and
the Lenders, their successors, endorsees, transferees and assigns thereof,
until all of the Obligations and the obligations of the Guarantor under
this Guarantee shall have been satisfied by payment in full. This
Guarantee shall be joint and several with any guarantee given by any other
guarantor with respect to the Obligations or any of them. All rights and
remedies of the Agent or the Lenders hereunder and under the Credit
Agreement shall be cumulative and may be exercised singly or concurrently.
6. This Guarantee shall continue to be effective or be
reinstated, as the case may be, if at any time payment, or any part
thereof, of any of the Obligations is rescinded or must be restored or
returned by the Agent or the Lenders upon the insolvency, bankruptcy or
reorganization of any of the Companies or otherwise, all as though payment
had not been made.
7. The Guarantor hereby represents, warrants and covenants that:
(a) This Guarantee constitutes the legal, valid and binding
obligation of the Guarantor enforceable in accordance with its terms
except to the extent that such enforcement may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting generally the enforcement of creditors'
rights and general equitable principles.
(b) The Guarantor is and shall remain a corporation duly
organized and validly existing in good standing under the laws of
Delaware; the Guarantor has full power, authority and legal right to
execute, deliver and perform its obligations under this Guarantee
and it has taken all necessary corporate and legal action to
authorize the execution, delivery and performance of this Guarantee.
(c) The execution, delivery and performance of this
Guarantee and the other instruments and agreements herein and in the
Credit Agreement will not violate any provision of law or any rule,
regulation, order or decree of any court, tribunal or governmental
authority, bureau, or agency, or of the charter or by-laws or other
corporate rules of the Guarantor, or any indenture, contract or
other undertaking to which the Guarantor is a party or which
purports to be binding upon it or any of its assets, and will not
result in the creation or imposition of any security interest, lien,
charge or encumbrance on any of its assets pursuant to the
provisions of any of the foregoing.
(d) The Obligations of the Guarantor under this Guarantee
are unconditional and irrevocable and shall rank pari passu with all
other liabilities of the Guarantor for borrowed money or for
obligations that have become the direct obligations of the
Guarantor.
(e) All necessary consents, licenses, approvals,
authorizations of, and registrations or declarations with, any
governmental authority, bureau or agency required in connection with
the execution, delivery, performance, validity and enforceability of
this Guarantee have been obtained and are in full force and effect.
(f) No consent or approval of any creditor is required as a
condition to the validity of this Guarantee or any of the
transactions contemplated hereby, except as shall have been obtained
by the Guarantor.
(g) The Guarantor is not in default in the payment or
performance of any of its material obligations or any of the
material covenants or conditions to be performed pursuant to the
terms and provisions of any loan or credit agreement or mortgage,
indenture, or security agreement, to which it is a party or by which
it may be bound.
(h) There are no actions, suits or proceedings before any
court, tribunal or governmental body pending or threatened (i) with
respect to any of the transactions contemplated by this Guarantee or
(ii) against or affecting the Guarantor or any of its assets, which
could reasonably be expected to result in any material adverse
change in the business condition (financial or otherwise) of the
Guarantor. The Guarantor has not been charged with any material
violation of or material default under any statute, decree, rule,
regulation, writ or order of any court or any administrative order.
8. Any and all amounts required to be paid by the Guarantor
hereunder shall be paid in lawful money of the United States of America by
wire transfer to The Bank of New York, New York, New York (ABA No.
000000000) for credit to the account of Christiania Bank, New York, New
York (Account No. 8026120277) or to such other place as the Agent may from
time to time direct without set-off or counterclaim and free from, clear
of and without deduction for any Taxes which Borrowers are required to
pay, or indemnify the Lenders, under the terms of the Credit Agreement,
provided, however, that if the Guarantor shall at any time be required by
law to withhold or deduct any such Taxes from any amounts payable to the
Lenders hereunder, then the Guarantor shall (1) pay directly to the
relevant taxing authority the full amount required to be deducted or
withheld, (2) pay to the Agent for the account of the Lenders such
additional amounts in Dollars as may be necessary to ensure that the net
amounts received by each Lender shall equal the full amounts such Lender
would have received if such withholding or deduction were not required,
and (3) promptly send to the Agent an official receipt or other
documentary evidence satisfactory to the Agent evidencing such payment to
such authority. The Guarantor covenants and agrees that it will take all
action necessary or appropriate to obtain any license or consent which may
be or become necessary in order to assure the availability of United
States Dollars for all payments of the obligations of the Guarantor under
this Guarantee.
9. No failure to exercise and no delay in exercising on the part
of the Agent of any right, power or privilege hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right,
power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. All
rights and remedies of the Agent hereunder and under the Credit Agreement
and any collateral security, document or guarantee therefor shall be
cumulative and may be exercised singly or concurrently and are not
exclusive of any rights or remedies permitted
by law.
10. None of the terms or provisions of this Guarantee may be
waived, altered, modified or amended except by an instrument in writing,
duly executed by the Agent, and this Guarantee and the rights, obligations
and liabilities of the parties hereunder shall be governed by, and shall
be construed and interpreted in accordance with, the internal laws of the
State of New York, without reference to principles of conflicts of law.
11. If for the purpose of obtaining judgment in any court in any
country it becomes necessary to convert into any other currency
(hereinafter called a "Judgment Currency") any amount payable under this
Guarantee, then such conversion shall be made at the Rate of Exchange (as
hereinafter defined) prevailing one Banking Day (as hereinafter defined)
before the day on which judgment is given. For this purpose "Rate of
Exchange" means the rate at which the Agent is able on the relevant date
of conversion to purchase the relevant amount payable under this Guarantee
with the Judgment Currency. "Banking Day" means a day on which commercial
banks are open for business in Xxx Xxxx, Xxx Xxxx, Xxxx, Xxxxxx xxx
Xxxxxx, Xxxxxxx. In the event that there is a change in the Rate of
Exchange prevailing between the Banking Day before the day on which the
judgment is given and the actual date of payment of the amount due, the
Guarantor shall pay such additional and/or lesser amounts as the case may
be (if any) as may be necessary to ensure that the amount thus paid on
such date is the amount in the Judgment Currency which when computed at
the Rate of Exchange prevailing on the date of payment is the amount then
due and payable under this Guarantee in United States Dollars before
conversion into the Judgment Currency was made. Any amount due from the
Guarantor under this paragraph shall be due and payable as a separate debt
and shall not be affected by judgment being obtained for any other sums
due under or in respect of this Guarantee.
12. The Guarantor hereby agrees that any legal action or
proceeding with respect to this Guarantee, or to enforce any judgment
obtained against the Guarantor may be brought by the Agent in the courts
of the State of New York located in New York, New York or in the United
States Federal courts sitting in the Southern District of New York, as the
Agent may elect; and by execution and delivery of this Guarantee, the
Guarantor irrevocably submits to each such jurisdiction and service of
process may be made as provided by law.
With respect to any such action or proceeding within the
jurisdictions of the courts of the State of New York located in New York,
New York and of the United States Federal courts sitting in the Southern
District of New York, the Guarantor hereby irrevocably consents to the
service of process out of said New York or United States courts in any
such action or proceeding by the mailing thereof by United States
registered mail to the Guarantor at c/o Prentice Hall Corporation, 000
Xxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000-0000. Final judgment against the
Guarantor (a certified or exemplified copy of which shall be conclusive
evidence of the fact and of the amount of any indebtedness of the
Guarantor) in any such action or proceeding shall be conclusive and may be
enforced in any other jurisdiction by suit on such judgment.
Nothing herein shall be deemed to preclude or in any way limit the
right of the Agent to xxx or take any action against the Guarantor in any
tribunal wherever located having jurisdiction over the Guarantor or any of
its assets.
IN WITNESS WHEREOF, the Guarantor has duly executed and delivered
this Guarantee this ___ day of November, 1995.
READING & XXXXX CORPORATION
By ______________________
Its:
The undersigned hereby accepts
the foregoing Guarantee.
CHRISTIANIA BANK OG KREDITKASSE
acting through its New York branch,
as Agent
By ______________________________________
Name:
Title:
By ______________________________________
Name:
Title:
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ACKNOWLEDGEMENT OF GUARANTEE
STATE OF NEW YORK )
) s.s.
COUNTY OF NEW YORK )
On this 28 day of November, 1995, before me personally came Xxx X.
Xxxxx to me known who being by me duly sworn did depose and say that he
resides at 00000 Xxxxx, Xxxxxxx, Xxxxx, that he is the Executive Vice
President, Finance and Administration for the corporation described in and
which executed the foregoing instrument; and that he signed his name
thereto by order of the Board of Directors of Reading & Xxxxx Corporation.
_________________________
Notary Public
