EXHIBIT 10.8
PERFORMANCE GUARANTEE
by
READING & XXXXX CORPORATION
in favour of
BP EXPLORATION OPERATING COMPANY LIMITED
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THIS PERFORMANCE GUARANTEE is made the 8TH day of September 1995 and given
BY:
(1) READING & XXXXX CORPORATION, a company organised under the laws of
Delaware whose principal place of business is at 000 Xxxxxxxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxx 0000-0000, Xxxxxx Xxxxxx of America ("the
Guarantor");
IN FAVOUR OF
(2) BP EXPLORATION OPERATING COMPANY LIMITED, (registered number 305943)
whose registered office is at Xxxxxxxxx Xxxxx, 0 Xxxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX ("the Company").
WHEREAS:
(A) The Company has entered into the Sale and Purchase Agreement with the
Purchaser of even date herewith;
(B) The Purchaser has certain actual and contingent liabilities in terms
of the Sale and Purchase Agreement to make payment of sums to the
Company and to perform certain other obligations in terms thereof;
(C) The Guarantor is the ultimate parent company of the Purchaser and the
Guarantor has agreed (it being in its best commercial interests to do
so) to enter into this Guarantee in respect of the Guaranteed
Obligations.
NOW THIS DEED WITNESSETH as follows:
1. INTERPRETATION
1.1 In this Guarantee, unless otherwise defined or provided for in this
Guarantee, words and expressions shall have the following meanings:-
"Guaranteed Obligations" has the meaning ascribed to it in Clause
2.1;
"the Purchaser" shall mean Reading & Xxxxx (Caledonia) Limited a
company registered in England (number 1591065) whose registered
office is at Xxxxxx House, 0 Xxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxx XX0
xXX;
"the Sale and Purchase Agreement" means the Sale and Purchase
Agreement dated of even date herewith and entered into between the
Company and the Purchaser in respect of the sale and purchase of the
Emergency Support Vessel Iolair;
"Tax" shall be construed so as to include all present and future
taxes, charges, imposts, duties, royalties, levies, deductions,
withholdings or fees of any kind whatsoever, or any amount payable on
account of or as security for any of the foregoing, payable at the
instance of or imposed by statutory, governmental, international,
state, federal, provincial, local or municipal authority, agency,
body or department whatsoever or monetary agency or European
Communities institution, in each case whether in the United Kingdom
or elsewhere, together with any penalties, additions, fines,
surcharges or interest relating thereto, and "Taxes" and "Taxation"
shall be construed accordingly.
1.2 In this Guarantee:
(a) references to Clauses are to be construed as references to the
Clauses of this Guarantee, references to sub-clauses shall
unless otherwise specifically stated be construed as references
to the sub-clauses of the Clause in which the reference appears;
(b) references to this Guarantee (or to any specified provisions of
this Guarantee) or to any other document shall be construed as
references to this Guarantee, that provision or that document as
in force for the time being and as amended or novated or
supplemented in accordance with its terms, or, as the case may
be, with the agreement of the relevant parties;
(c) words importing the plural shall include the singular and vice
versa;
(d) references to a person shall be construed as including
references to an individual, form or company;
(e) references to any statute or statutory provision include any
statute or statutory provision which amends, extends,
consolidates or replaces the same, or which has been amended,
extended, consolidated or replaced by the same, and shall
include any orders, regulations, instruments or other
subordinate legislation made under the relevant statute;
(f) Clause headings are for ease of reference only and shall not
affect the constuction of this Guarantee.
2. GUARANTEE
2.1 The Guarantor (as a primary obligor and not merely as a surety) at
the request of Purchaser hereby irrevocably and unconditionally
guarantees to the Company :
(a) the due and punctual payment to the Company by the Purchaser of
all amounts which the Purchaser is or shall become obliged to
pay to the Company pursuant to the Sale and Purchase Agreement
to the intent that if and whenever the Purchaser shall default
in providing on the due date any such amount to the Company the
Guarantor shall forthwith on first written demand therefor being
made by the Company for any such amounts unconditionally pay to
the Company the moneys in regard to which default shall have
been made (including interest thereron from the due date of such
payment until payment thereof both before and after any
judgement at the rates due in terms of the Sale and Purchase
Agreement) and otherwise on the terms provided for under the
Sale and Purchase Agreement; and
(b) the due and punctual performance by the Purchaser of all other
terms, covenants, stipulations and obligations contained in the
Sale and Purchase Agreement.
The obligations on the part of the Purchaser under the Sale and
Purchase Agreement to pay such sums and to perform such terms,
covenants, stipulations and obligations are referred to as
"Guaranteed Obligations" in this Guarantee.
2.2 Payment under this Guarantee will (where appropriate) be made in the
currency in which the relevant Guaranteed Obligation shall become
payable in terms of the Sale and Purchase Agreement.
3. CONTINUING AND ADDITIONAL SECURITY
3.1 This Guarantee is a continuing security and shall remain in full
force and effect until all the Guaranteed Obligations have been
discharged or satisfied in full notwithstanding the liquidation or
other incapacity or any change in the constitution of the Purchaser
or of the Guarantor or in the name and style of either of them or any
settlement of account or other matter whatsoever.
3.2 This Guarantee is in addition to and shall not merge with or
otherwise prejudice or affect or be prejudiced by any other right,
remedy, guarantee, indemnity or security and may be enforced without
first having recourse to the same or any other xxxx, note, mortgage,
charge, pledge or lien now or hereafter held by or available to the
Company.
4. MATTERS NOT TO REDUCE THE GUARANTOR'S LIABILITY
4.1 If any purported obligation or liability of the Purchaser under the
Sale and Purchase Ageement which, if valid, would have been the
subject of this Guarantee is not or ceases to be valid or enforceable
on any ground whatsoever (whether or not known to the Company)
(including, but not limited to, any defect in or want of powers of
the Purchaser or irregular exercise thereof or lack of authority by
any person apparently authorised to act on behalf of the Purchaser or
any legal or other limitation (whether under the Limitation Xxx 0000
or otherwise), disability, incapacity or any change in the
constitution of or any amalgamation, reconstruction or liquidation of
the Purchaser), the Guarantor shall nevertheless be liable in respect
of that purported obligation or liability as if the same were fully
valid and enforceable and as if the Guarantor were the principal
debtor in respect thereof. The Guarantor hereby agrees to keep the
Company fully indemnified in accordance with the terms of this
Guarantee in the relevant currency as specified in Clause 2.2 or in
the case of a non-monetary obligation or liability, in British Pounds
Sterling against all damages, losses, costs and expenses arising from
any failure of the Purchaser to carry out any such purported
obligation or liability.
4.2 The liability of the Guarantor shall not be affected nor shall this
Guarantee be discharged or diminished by reason of:
(a) any time being given by the Company to the Purchaser or to any
surety, or by any other indulgence or concession granted by the
Company to the Purchaser or to any surety in respect of (or any
variation or waiver of) any of the Guaranteed Obligations or any
obligations of any surety (whether the same be made with the
Guarantor's consent or not); or
(b) the taking, holding, varying, non-enforcement or release by the
Company of any present or future guarantee, indemnity or
security; or
(c) any present or future guarantee, indemnity or security being or
becoming wholly or partially void, voidable or unenforceable on
any ground whatsoever, or
(d) any act or omission which would not have discharged or affected
the liability of the Guarantor had it been a principal debtor
instead of guarantor or by anything done or omitted which but
for the provision might operate to exonerate the Guarantor; or
(e) any other act or thing whatsoever done or omitted or neglected
to be done by Company in relation to the Guaranteed Obligations.
5. NO COMPETITION
Until all the Guaranteed Obligations have been paid, discharged or
satisfied in full, the Guarantor waives all rights of subrogation and
indemnity against the Purchaser in respect of Guaranteed Obligations
and agrees not to share in any security held or monies received by
the Company on account of such liabilities or to claim or prove in
competition with the Company in the liquidation of the Purchaser (or
its equivalent in any relevant jurisdiction) in respect of any monies
paid by the Guarantor to the Company under this Guarantee. If the
Guarantor receives any payment or other benefit or exercises any set-
off or counterclaim or otherwise acts in breach of this Clause,
anything so received and any benefit derived directly or indirectly
by the Guarantor therefrom shall be held in trust for the Company.
6. DISCHARGE TO BE CONDITIONAL
Any release, dischage or settlement between the Guarantor and the
Company shall be conditional upon no security, disposition or payment
to the Company by the Purchaser or any other person in respect of the
Guaranteed Obligations being void, set aside or ordered to be
refunded pursuant to any enactment or law in relation to bankruptcy,
liquidation or insolvency (or its equivalent in any relevant
jurisdiction) or for any reason whatever, and if such condition shall
not be fulffied the Company shall be entitled to enforce this
Guarantee as if such release, discharge or settlement had not
occurred and any such payment had not been made.
7. ENFORCEMENT
7.1 The Company shall not be obliged before taking steps to enforce this
Guarantee:
(a) to take any action or obtain judgement in any court against the
purchaser or any other person;
(b) to make or file any claim in any bankruptcy or liquidation (or
its equivalent in an relevant jurisdiction) of the Purchaser or
of any other person;
(c) to make, enforce or seek to enforce any claim against the
Purchaser or any other person under any security or other
document, agreement or arrangement; or
(d) to enforce against and/or realise (or seek so to do) any
security that it may have in respect of all or any part of the
Guaranteed Obligations.
8 PAYMENT AND WITHHOLDINGS
8.1 All sums due and payable by the Guarantor under this Guarantee shall
be made in full without set-off or counterclaim and free and clear of
and (subject as provided in Clause 8.2) without deduction for or on
account of any future or present Taxes.
8.2 If:
(a) the Guarantor is required by any law to make any deduction or
withholding from any sum payable by the Guarantor to the Company
hereunder, or
(b) the Company is required by law to make any payment on account of
Tax (other than Tax on its overall net income) or otherwise on
or in relation to any amount received or receivable by the
Company hereunder;
then the sum payable by the Guarantor in respect of which such
deduction, withholding or payment is required to be made shall be
increased to the extent necessary to ensure that, after the making of
such deduction, withholding or payment (and after taking account of
any deduction, withholding or payment which is required to be made as
a result of their increase) the Company receives and retains a net
sum equal to the sum which it would have received and so regained had
no such deduction, withholding or payment had been made.
9. WAIVER
No failure on the part of the Company to exercise, or delay on its
part in exercising, any of its rights, powers and remedies provided
by this Guarantee or by law shall operate as a waiver thereof, nor
shall any single or partial exercise of any such rights, powers and
remedies preclude any further or other exercise of such rights,
powers, and remedies.
10. INDEMNITY
The Guarantor hereby agrees to indemnify (save insofar as otherwise
indemnified hereunder) the Company on demand against all losses,
actions, claims, costs, charges, expenses and liabilities incurred or
sustained by the Company in any enforcement of this Guarantee or
occasioned by any breach by the Guarantor of any of its covenants or
obligations to the Company under this Guarantee.
11. PROVISIONS SEVERAGLE
Every provision contained in this Guarantee shall be severable and
distinct from every other such provision and if at any time any one
or more of such provisions is or becomes invalid, illegal or
unenforceable, the validity, legality and enforceability of the
remaining such provisions shall not in any way be affected thereby.
12. REPRESENTATIONS AND WARRANTIES
12.1 The Guarantor hereby represents and warrants to the Company that:
(a) the Guarantor is a company incorporated under the laws of the
State Delaware, United States of America and possesses the
capacity to xxx and be sued in its own name and has the power to
carry on its business and to own its property and other assets;
(b) the Guarantor has power to execute, deliver and perform its
obligations under this Guarantee and to carry out the
transactions contemplated hereby, and all necessary corporate,
shareholder and other action has been taken to authorise the
execution, delivery and performance of the same;
(c) the obligations of the Guarantor under this Guarantee constitute
its legal, valid and binding obligations and are in full force
and effect in accordance with their terms;
(d) the execution, delivery and performance by the Guarantor of this
Guarantee does not and will not:
(i) contravene any applicable law or regulation or any order
of any competent governmental or other official
authority, body or agency any judgement, order or decree
of any court having jurisdiction over the Guarantor;
(ii) conflict with, or result in any breach of any of the
terms of, or constitute a default under, any agreement or
other instrument to which the Guarantor is a party or any
licence or other authorisation to which the Guarantor is
subject or by which the Guarantor or any of its property
is bound; or
(iii) contravene or conflict with the provision of the
Guarantor's Restated Certificate of Incorporation and By-
laws.
13. AMENDMENTS
No amendments or waiver of any provision of this Guarantee and no
consent to any departures by the Guarantor therefrom shall be
effective unless the same shall be in writing and signed or approved
in writing by the Company, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose
for which given.
14. CONTINUATION OF GUARANTEE
14.1 Subject to Clause 14.2, this Guarantee shall remain in full force and
effect notwithstanding the termination of the Sale and Purchase
Agreement or any amendments or variations from time to time thereto.
14.2 This Guarantee may be terminated by the Guarantor serving a notice to
such effect on the Company at any time after the fulfilment by the
Purchaser of the Guaranteed Obligations.
15. EVIDENCE
A certificate by an officer of the Company:
(i) as to the amount for the time being due to the Company from
the Purchaser, and
(ii) as to any sums payable to the Company hereunder;
shall (save in the case of manifest error) be conclusive and
binding upon the Guarantor for all purposes.
16. NOTICES
16.1 A demand or notice hereunder shall be made in writing and may be
made by letter, recorded delivery or facsimile.
16.2 Any such demand or notice shall (unless the Guarantor or the
Company has, by seven (7) days' written notice received by Company
cr the Guarantor respectively as the case may be, specified another
address) be delivered by hand or shall be sent by letter, delivery,
telex or facsimile addressed to the Guarantor or the Company as the
case may be at the address set out below:-
Reading & Xxxxx Corporation
000 Xxxxxxxxxxxx
Xxxxx 000
Xxxxxxx
Xxxxx 00000
XXX
Attention: President
Facsimile: 000-000 000 0000
BP Exploration Operating Company Limited
Britannic House
I Finsbury Circus
London EC2MM 7BA
Attention: Manager, Commercial
Facsimile: 0171 496 4630
16.3 All notices delivered by recorded delivery or hand or sent by telex
or facsimile shall be effective, when received at the recipient's
address as aforesaid.
16.4 Any notice given by telefax or facsimile transmission shall (unless
already acknowledged) be subsequently confirmed by letter sent by
recorded delivery or by hand but without prejudice to the
of the validity of the original notice if received.
17. GOVERNING LAW
17.1 Guarantee shall be governed by and construed in accordance with
English law.
17.2 To the extent that (if at all) the Guarantor may in any
jurisdiction in which proceedings may at any time be taken for the
enforcement of this Guarantee claim for itself or its assets
immunity from suit, execution, attachment (whether in aid of
execution, before judgement or otherwise) or other legal process
and to the extent (if at all) that in any such jurisdiction there
may be attributed to the Guarantor or its assets any such immunity
(whether or not claimed), the Guarantor irrevocably agrees not to
claim and irrvocably and unconditionally waives such immunity to
the fullest extent permitted by the laws of such jurisdiction and
consents in respect of each jurisdiction in which proceedings may
at any time be taken for enforcement of this Guarantee to the
enforcement or execution or any order or judgemnt that may be made
or given against it in any such proceedings.
IN WITNESS WHEREOF the Guarantor has executed and delivered this Guarantee
as a deed the day and year first above written.
EXECUTED and DELIVERED as a DEED BY
READING & XXXXX CORPORATION
acting by its authorised Attorney
in the presence of:-
