EXHIBIT 10.9
PERFORMANCE GUARANTEE
by
READING & XXXXX CORPORATION
in favour of
BRITOIL plc
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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 Xxxxxxxxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxx 0000-0000, Xxxxxx Xxxxxx of America ("the
Guarantor");
IN FAVOUR OF
(2) BRITOIL plc, (registered number 77750) whose registered office is at
Xxxxxxxx Xxxx, Xxxxxxx Xxxxxxxxxx Xxxxxx, Xxxx, Xxxxxxxx XX0 OPB
("the Company").
WHEREAS:
(A) The Company has entered into the Services Agreements with the
Contractor of even date herewith,
(B) The Contractor has certain actual and contingent liabilities in
terms of the Services Agreements 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 Contractor 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 Contractor" shall mean Reading & Xxxxx (Caledonia) Limited a
company registered in England (number 1591065) whose registered
office is at Xxxxxx House, 0 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxx XX0
xXX;
"the Initial Services Agreement" means the initial Services
Agreement (number 101237) between the Company and the Contractor
dated of even date herewith in respect of the provision of
construction support vessel services for Foinaven Development to the
Company as the same shall from time to time be amended;
"the Long Term Services Agreement" means the Heads of Agreement for
the provision of vessel services dated of even date herewith between
the Company, the Contractor and the Guarantor and the agreement
between the Company, the Contractor and the Guarantor to be entered
into pursuant to the said Heads of Agreement in replacement thereof,
as the same shall from time to time be amended;
"the Services Agreements" means the Initial Services Agreement and
the Long Term Services Agreement;
"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 Kmgdom
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 the Contractor hereby irrevocably and unconditionally
guarantees to the Company:
(a) the due and punctual payment to the Company by the Contractor
of all amounts which the Contractor is or shall become obliged
to pay to the Company pursuant to the Services Agreements to
the intent that if and whenever the Contractor 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 thereon from the due date of such
payment until payment thereof both before and after any
judgement at the rates due in terms of the Services Agreements)
and otherwise on the terms provided for under the Services
Agreements: Provided that the maximum liability of the
Guarantor under this Guarantee in relation to the payment of
liquidated damages in terms of:
(i) Clause 32 of the Initial Services Agreement shall be
restricted to an aggregate of five hundred thousand US
Dollars ($500,000); or
(ii) following termination of the Initial Services Agreement
Clause 15 of the Long Term Services Agreement (and the
equivalent clause in the agreement to follow thereon)
shall be restricted to an aggregate of three million US
Dollars ($3,000,000); and
(b) the due and punctual performance by the Contractor of all other
terms, covenants, stipulations and obligations contained in the
Services Agreements but only to the extent that the liquidated
damages referred to in Clause 2. 1 (a) above have not been made
to the Company by the Guarantor.
The obligations on the part of the Contractor under the Services
Agreements 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 Services Agreements.
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 Contractor
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 Contractor under the
Service Agreements 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
Contractor or irregular exercise thereof or lack of authority by any
person apparently authorised to act on behalf of the Contractor 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 Contractor), 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 Contractor to carry out any such
purported obligation or liability save in respect of the liquidated
damages referred to in Clause 2.1 (a) above which shall be payable
in US Dollars.
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 Contractor or to any
surety, or by any other indulgence or concession granted by the
Company to the Contractor 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, 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 the 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 Contractor 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
Contractor (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 CONFIDENTIAL
Any release, discharge or settlement between the Guarantor and the
Company shall be conditional upon no security, disposition or
payment to the Company by the Contractor 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 fulfilled 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
Contractor 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 Contractor
or of any other person;
(c) to make, enforce or seek to enforce any claim against the
Contractor 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 SEVERABLE
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 of 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 or 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 Services
Agreements 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 Contractor 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
Contractor;
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 the Company or
the Guarantor respectively as the case may be, specified another
address) be delivered by hand or shall be sent by letter, recorded
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
Britoil plc
Xxxxxxxx Xxxx
Xxxxxxx Xxxxxxxxxx Xxxxxx
Xxxx
Xxxxxxxx XX0 0XX
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 validity
of the original notice if received.
17. GOVERNING LAW
17.1 This 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 irrevocably 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 judgement 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 wntten.
EXECUTED and DELIVERED as a DEED BY
READING & XXXXX CORPORATION
acting by its authorised Attorney
in the presence of:-
