EXHIBIT 10.8
GUARANTY AGREEMENT
This GUARANTY AGREEMENT, dated as of July 7, 2004 (this "GUARANTY"), is
entered into by J. ARON & COMPANY, a general partnership organized under the
laws of the State of New York ("HEDGE COUNTERPARTY"), THE CANTON OIL & GAS
COMPANY, an Ohio corporation ("CANTON"), and WARD LAKE DRILLING, INC., a
Michigan corporation ("WARD LAKE" and, together with Canton, "GUARANTORS").
RECITALS:
WHEREAS, capitalized terms used herein but otherwise not defined herein
shall have the meanings ascribed to them in the Hedge Agreement (as defined
below);
WHEREAS, reference is made to that certain ISDA Master Agreement
(including the Schedules thereto, the Credit Support Annex thereto, and the
confirmations thereunder, the "HEDGE AGREEMENT"), dated as of June 30, 2004,
between Hedge Counterparty and Capital C Ohio, Inc. ("CAPITAL C OHIO"), an Ohio
corporation and wholly-owned subsidiary of Capital C Energy Operations, LP (the
"SPONSOR"), which agreement shall be assumed by Belden & Blake Corporation
("COMPANY") in the Acquisition, pursuant to which the parties thereto have
entered into certain gas and oil price swaps; and
WHEREAS, the Guarantors expect to receive substantial benefit from Company
becoming a party to the Hedge Agreement and Guarantors have agreed to guarantee
the obligations of Company under the Hedge Agreement and to secure their
respective obligations by granting to Hedge Counterparty, a second priority Lien
on their respective assets, including a pledge of all of the Capital Stock of
each of their respective Domestic Subsidiaries and 65% of all the Capital Stock
of each of their respective Foreign Subsidiaries.
DEFINITIONS:
"ACQUISITION" means the merger of Capital C Ohio with and into Company, with
Company as the surviving corporation, pursuant to the Agreement and Plan of
Merger, dated as of June 15, 2004, by and between Sponsor, Capital C Ohio and
Company.
"BANKRUPTCY CODE" means Title 11 of the United States Code entitled
"Bankruptcy," as now and hereafter in effect, or any successor statute.
"CAPITAL STOCK" means any and all shares, interests, participations or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation),
including, without limitation, partnership interests and membership interests,
and any and all warrants, rights or options to purchase or other arrangements or
rights to acquire any of the foregoing.
"COLLATERAL TRUST AGREEMENT" means the Collateral Trust Agreement, dated as of
July 7, 2004, among Wells Fargo Bank, N.A., as Collateral Trustee, Company,
Guarantors, Sponsor, Hedge Counterparty and BNY Midwest Trust Company, as
Indenture Trustee.
"DOMESTIC SUBSIDIARIES" means any Subsidiary organized under the laws of the
United States of America, any State thereof or the District of Columbia.
"FOREIGN SUBSIDIARIES" means any Subsidiary that is not a Domestic Subsidiary.
"SUBSIDIARY" means, with respect to any Person, any corporation, partnership,
limited liability company, association, joint venture or other business entity
of which more than 50% of the total voting power of shares of stock or other
ownership interests entitled (without regard to the occurrence of any
contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof; provided, that in determining the percentage of ownership interests of
any Person controlled by another Person, no ownership interest in the nature of
a "qualifying share" of the former Person shall be deemed to be outstanding.
"TERMINATION EVENT" means the designation by Hedge Counterparty of an Early
Termination Date pursuant to the terms of the Hedge Agreement.
SECTION I
1.1. GUARANTY OF THE OBLIGATIONS.
Subject to the provisions of Section 1.2, Guarantors jointly and
severally hereby irrevocably and unconditionally guaranty to Hedge Counterparty
the due and punctual payment in full of all obligations of Company to the Hedge
Counterparty under the Hedge Agreement when the same shall become due, whether
at stated maturity, by required prepayment, declaration, acceleration, demand or
otherwise (including amounts that would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. Section
362(a)) (collectively, the "GUARANTEED OBLIGATIONS").
1.2. CONTRIBUTION BY GUARANTORS.
All Guarantors desire to allocate among themselves (collectively, the
"CONTRIBUTING GUARANTORS"), in a fair and equitable manner, their obligations
arising under this Guaranty. Accordingly, in the event any payment or
distribution is made on any date by a Guarantor (a "FUNDING GUARANTOR") under
this Guaranty such that its Aggregate Payments (as defined below) exceeds its
Fair Share (as defined below) as of such date, such Funding Guarantor shall be
entitled to a contribution from each of the other Contributing Guarantors in an
amount sufficient to cause each Contributing Guarantor's Aggregate Payments to
equal its Fair Share as of such date. "FAIR SHARE" means, with respect to a
Contributing Guarantor as of any date of determination, an
amount equal to (a) the ratio of (i) the Fair Share Contribution Amount (as
defined below) with respect to such Contributing Guarantor to (ii) the aggregate
of the Fair Share Contribution Amounts with respect to all Contributing
Guarantors, multiplied by (b) the aggregate amount paid or distributed on or
before such date by all Funding Guarantors under this Guaranty in respect of the
obligations Guaranteed. "FAIR SHARE CONTRIBUTION AMOUNT" means, with respect to
a Contributing Guarantor as of any date of determination, the maximum aggregate
amount of the obligations of such Contributing Guarantor under this Guaranty
that would not render its obligations hereunder or thereunder subject to
avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11
of the United States Code or any comparable applicable provisions of state law;
provided, that solely for purposes of calculating the "FAIR SHARE CONTRIBUTION
AMOUNT" with respect to any Contributing Guarantor for purposes of this Section
1.2, any assets or liabilities of such Contributing Guarantor arising by virtue
of any rights to subrogation, reimbursement or indemnification or any rights to
or obligations of contribution hereunder shall not be considered as assets or
liabilities of such Contributing Guarantor. "AGGREGATE PAYMENTS" means, with
respect to a Contributing Guarantor as of any date of determination, an amount
equal to (1) the aggregate amount of all payments and distributions made on or
before such date by such Contributing Guarantor in respect of this Guaranty
(including, without limitation, in respect of this Section 1.2), minus (2) the
aggregate amount of all payments received on or before such date by such
Contributing Guarantor from the other Contributing Guarantors as contributions
under this Section 1.2. The amounts payable as contributions hereunder shall be
determined as of the date on which the related payment or distribution is made
by the applicable Funding Guarantor. The allocation among Contributing
Guarantors of their obligations as set forth in this Section 1.2 shall not be
construed in any way to limit the liability of any Contributing Guarantor
hereunder. Each Guarantor is a third party beneficiary to the contribution
agreement set forth in this Section 1.2.
1.3. PAYMENT BY GUARANTORS.
Subject to Section 1.2, Guarantors hereby jointly and severally agree,
in furtherance of the foregoing and not in limitation of any other right which
Hedge Counterparty may have at law or in equity against any Guarantor by virtue
hereof, that upon the failure of Company to pay any of the Guaranteed
Obligations when and as the same shall become due, whether at stated maturity,
by required prepayment, declaration, acceleration, demand or otherwise
(including amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. Section 362(a)),
Guarantors will upon demand pay, or cause to be paid, in Cash, to Hedge
Counterparty, an amount equal to the sum of the unpaid principal amount of all
Guaranteed Obligations then due as aforesaid, accrued and unpaid interest on
such Guaranteed Obligations (including interest which, but for Company's
becoming the subject of a case under the Bankruptcy Code, would have accrued on
such Guaranteed Obligations, whether or not a claim is allowed against Company
for such interest in the related bankruptcy case) and all other Guaranteed
Obligations then owed to Hedge Counterparty as aforesaid.
1.4. LIABILITY OF GUARANTORS ABSOLUTE.
Each Guarantor agrees that its obligations hereunder are irrevocable,
absolute, independent and unconditional and shall not be affected by any
circumstance which constitutes a legal or equitable discharge of a guarantor or
surety other than payment in full of the Guaranteed Obligations. In furtherance
of the foregoing and without limiting the generality thereof, each Guarantor
agrees as follows:
(a) this Guaranty is a guaranty of payment when due and not of
collectability. This Guaranty is a primary obligation of each Guarantor and not
merely a contract of surety;
(b) Hedge Counterparty may enforce this Guaranty upon the occurrence
of a Termination Event notwithstanding the existence of any dispute between
Company and Hedge Counterparty with respect to the existence of such Termination
Event;
(c) the obligations of each Guarantor hereunder are independent of
the obligations of Company and the obligations of any other guarantor (including
any other Guarantor) of the obligations of Company, and a separate action or
actions may be brought and prosecuted against such Guarantor whether or not any
action is brought against Company or any of such other guarantors and whether or
not Company is joined in any such action or actions;
(d) payment by any Guarantor of a portion, but not all, of the
Guaranteed Obligations shall in no way limit, affect, modify or abridge any
Guarantor's liability for any portion of the Guaranteed Obligations which has
not been paid. Without limiting the generality of the foregoing, if Hedge
Counterparty is awarded a judgment in any suit brought to enforce any
Guarantor's covenant to pay a portion of the Guaranteed Obligations, such
judgment shall not be deemed to release such Guarantor from its covenant to pay
the portion of the Guaranteed Obligations that is not the subject of such suit,
and such judgment shall not, except to the extent satisfied by such Guarantor,
limit, affect, modify or abridge any other Guarantor's liability hereunder in
respect of the Guaranteed Obligations;
(e) Hedge Counterparty, upon such terms as it deems appropriate,
without notice or demand and without affecting the validity or enforceability
hereof or giving rise to any reduction, limitation, impairment, discharge or
termination of any Guarantor's liability hereunder, from time to time may (i)
renew, extend, accelerate, increase the rate of interest on, or otherwise change
the time, place, manner or terms of payment of the Guaranteed Obligations; (ii)
settle, compromise, release or discharge, or accept or refuse any offer of
performance with respect to, or substitutions for, the Guaranteed Obligations or
any agreement relating thereto and/or subordinate the payment of the same to the
payment of any other obligations; (iii) request and accept other guaranties of
the Guaranteed Obligations and take and hold security for the payment hereof or
the Guaranteed Obligations; (iv) release, surrender, exchange, substitute,
compromise, settle, rescind, waive, alter, subordinate or modify, with or
without consideration, any security for payment of the Guaranteed Obligations,
any other guaranties of the Guaranteed Obligations, or any other obligation of
any Person (including any other Guarantor) with respect to the Guaranteed
Obligations; (v) enforce
and apply any security now or hereafter held by or for the benefit of Hedge
Counterparty in respect hereof or the Guaranteed Obligations and direct the
order or manner of sale thereof, or exercise any other right or remedy that
Hedge Counterparty may have against any such security, in each case as Hedge
Counterparty in its discretion may determine consistent herewith and any
applicable security agreement, including foreclosure on any such security
pursuant to one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable, and even though such action
operates to impair or extinguish any right of reimbursement or subrogation or
other right or remedy of any Guarantor against Company or any security for the
Guaranteed Obligations; and (vi) exercise any other rights available to it under
the Hedge Agreement; and
(f) this Guaranty and the obligations of Guarantors hereunder shall
be valid and enforceable and shall not be subject to any reduction, limitation,
impairment, discharge or termination for any reason (other than payment in full
of the Guaranteed Obligations), including the occurrence of any of the
following, whether or not any Guarantor shall have had notice or knowledge of
any of them: (i) any failure or omission to assert or enforce or agreement or
election not to assert or enforce, or the stay or enjoining, by order of court,
by operation of law or otherwise, of the exercise or enforcement of, any claim
or demand or any right, power or remedy (whether arising under the Hedge
Agreement, at law, in equity or otherwise) with respect to the Guaranteed
Obligations or any agreement relating thereto, or with respect to any other
guaranty of or security for the payment of the Guaranteed Obligations; (ii) any
rescission, waiver, amendment or modification of, or any consent to departure
from, any of the terms or provisions (including provisions relating to events of
default) hereof, the Hedge Agreement or any agreement or instrument executed
pursuant thereto, or of any other guaranty or security for the Guaranteed
Obligations, in each case whether or not in accordance with the terms hereof or
the Hedge Agreement or any agreement relating to such other guaranty or
security; (iii) the Guaranteed Obligations, or any agreement relating thereto,
at any time being found to be illegal, invalid or unenforceable in any respect;
(iv) the application of payments received from any source (other than payments
received pursuant to the Hedge Agreement or from the proceeds of any security
for the Guaranteed Obligations, except to the extent such security also serves
as collateral for indebtedness other than the Guaranteed Obligations) to the
payment of indebtedness other than the Guaranteed Obligations, even though Hedge
Counterparty might have elected to apply such payment to any part or all of the
Guaranteed Obligations; (v) Hedge Counterparty consent to the change,
reorganization or termination of the corporate structure or existence of Company
or any of its Subsidiaries and to any corresponding restructuring of the
Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a
security interest in any collateral which secures any of the Guaranteed
Obligations; (vii) any defenses, set-offs or counterclaims which Company may
allege or assert against Hedge Counterparty in respect of the Guaranteed
Obligations, including failure of consideration, breach of warranty, payment,
statute of frauds, statute of limitations, accord and satisfaction and usury;
and (viii) any other act or thing or omission, or delay to do any other act or
thing, which may or might in any manner or to any extent vary the risk of any
Guarantor as an obligor in respect of the Guaranteed Obligations.
1.5. WAIVERS BY GUARANTORS.
Each Guarantor hereby waives, for the benefit of Hedge Counterparty: (a)
any right to require Hedge Counterparty, as a condition of payment or
performance by such Guarantor, to (i) proceed against Company, any other
guarantor (including any other Guarantor) of the Guaranteed Obligations or any
other Person, (ii) proceed against or exhaust any security held from Company,
any such other guarantor or any other Person, (iii) proceed against or have
resort to any balance of any Deposit Account or credit on the books of Hedge
Counterparty in favor of Company or any other Person, or (iv) pursue any other
remedy in the power of Hedge Counterparty whatsoever; (b) any defense arising by
reason of the incapacity, lack of authority or any disability or other defense
of Company or any other Guarantor including any defense based on or arising out
of the lack of validity or the unenforceability of the Guaranteed Obligations or
any agreement or instrument relating thereto or by reason of the cessation of
the liability of Company or any other Guarantor from any cause other than
payment in full of the Guaranteed Obligations; (c) any defense based upon any
statute or rule of law which provides that the obligation of a surety must be
neither larger in amount nor in other respects more burdensome than that of the
principal; (d) any defense based upon Hedge Counterparty's errors or omissions
in the administration of the Guaranteed Obligations, except behavior which
amounts to bad faith; (e) (i) any principles or provisions of law, statutory or
otherwise, which are or might be in conflict with the terms hereof and any legal
or equitable discharge of such Guarantor's obligations hereunder, (ii) to the
extent permitted by law, the benefit of any statute of limitations affecting
such Guarantor's liability hereunder or the enforcement hereof, (iii) any rights
to set-offs, recoupments and counterclaims, and (iv) promptness, diligence and
any requirement that Hedge Counterparty protect, secure, perfect or insure any
security interest or lien or any property subject thereto; (f) notices, demands,
presentments, protests, notices of protest, notices of dishonor and notices of
any action or inaction, including acceptance hereof, notices of default
hereunder, the Hedge Agreement or any agreement or instrument related thereto,
notices of any renewal, extension or modification of the Guaranteed Obligations
or any agreement related thereto, notices of any extension of credit to Company
and notices of any of the matters referred to in Section 1.4 and any right to
consent to any thereof; and (g) any defenses or benefits that may be derived
from or afforded by law which limit the liability of or exonerate guarantors or
sureties, or which may conflict with the terms hereof.
Notwithstanding anything herein to the contrary, nothing in Sections 1.4, 1.5 or
1.6 shall affect the obligations of Hedge Counterparty and Company with respect
to the netting of transactions provided for in Section 2(c) of the Hedge
Agreement.
1.6. GUARANTORS' RIGHTS OF SUBROGATION, CONTRIBUTION, ETC.
Until the Guaranteed Obligations shall have been indefeasibly paid in
full, each Guarantor hereby waives any claim, right or remedy, direct or
indirect, that such Guarantor now has or may hereafter have against Company or
any other Guarantor or any of its assets in connection with this Guaranty or the
performance by such Guarantor of its obligations hereunder, in each case whether
such claim, right or remedy arises in equity, under contract, by statute, under
common law or otherwise and including without limitation (a) any right of
subrogation, reimbursement or indemnification that such
Guarantor now has or may hereafter have against Company with respect to the
Guaranteed Obligations, (b) any right to enforce, or to participate in, any
claim, right or remedy that Hedge Counterparty now has or may hereafter have
against Company, and (c) any benefit of, and any right to participate in, any
collateral or security now or hereafter held by Hedge Counterparty. In addition,
until the Guaranteed Obligations shall have been indefeasibly paid in full, each
Guarantor shall withhold exercise of any right of contribution such Guarantor
may have against any other guarantor (including any other Guarantor) of the
Guaranteed Obligations, including, without limitation, any such right of
contribution as contemplated by Section 1.2. Each Guarantor further agrees that,
to the extent the waiver or agreement to withhold the exercise of its rights of
subrogation, reimbursement, indemnification and contribution as set forth herein
is found by a court of competent jurisdiction to be void or voidable for any
reason, any rights of subrogation, reimbursement or indemnification such
Guarantor may have against Company or against any collateral or security, and
any rights of contribution such Guarantor may have against any such other
guarantor, shall be junior and subordinate to any rights Hedge Counterparty may
have against Company, to all right, title and interest Hedge Counterparty may
have in any such collateral or security, and to any right Hedge Counterparty may
have against such other guarantor. If any amount shall be paid to any Guarantor
on account of any such subrogation, reimbursement, indemnification or
contribution rights at any time when all Guaranteed Obligations shall not have
been finally and indefeasibly paid in full, such amount shall be held in trust
for Hedge Counterparty and shall forthwith be paid over to Hedge Counterparty to
be credited and applied against the Guaranteed Obligations, whether matured or
unmatured, in accordance with the terms hereof.
1.7. SUBORDINATION OF OTHER OBLIGATIONS.
Any Indebtedness of Company or any Guarantor now or hereafter held by
any Guarantor (the "OBLIGEE GUARANTOR") is hereby subordinated in right of
payment to the Guaranteed Obligations, and any such indebtedness collected or
received by the Obligee Guarantor after a Termination Event has occurred and is
continuing shall be held in trust for Hedge Counterparty and shall forthwith be
paid over to Hedge Counterparty to be credited and applied against the
Guaranteed Obligations but without affecting, impairing or limiting in any
manner the liability of the Obligee Guarantor under any other provision hereof.
1.8. CONTINUING GUARANTY.
This Guaranty is a continuing guaranty and shall remain in effect until
all of the Guaranteed Obligations shall have been paid in full. Each Guarantor
hereby irrevocably waives any right to revoke this Guaranty as to future
transactions giving rise to any Guaranteed Obligations.
1.9. AUTHORITY OF GUARANTORS OR COMPANY.
It is not necessary for Hedge Counterparty to inquire into the capacity
or powers of any Guarantor or Company or the officers, directors or any agents
acting or purporting to act on behalf of any of them.
1.10. FINANCIAL CONDITION OF COMPANY.
Additional Confirmations or Transactions may be entered into from time
to time under the Hedge Agreement, in each case without notice to or
authorization from any Guarantor regardless of the financial or other condition
of Company at the time of any such grant or continuation or at the time such
Confirmations or Transactions under the Hedge Agreement is entered into, as the
case may be. Hedge Counterparty shall not have any obligation to disclose or
discuss with any Guarantor its assessment, or any Guarantor's assessment, of the
financial condition of Company. Each Guarantor has adequate means to obtain
information from Company on a continuing basis concerning the financial
condition of Company and its ability to perform its obligations under the Hedge
Agreement, and each Guarantor assumes the responsibility for being and keeping
informed of the financial condition of Company and of all circumstances bearing
upon the risk of nonpayment of the Guaranteed Obligations. Each Guarantor hereby
waives and relinquishes any duty on the part of Hedge Counterparty to disclose
any matter, fact or thing relating to the business, operations or conditions of
Company now known or hereafter known by Hedge Counterparty.
1.11. BANKRUPTCY, ETC.
(a) So long as any Guaranteed Obligations remain outstanding, no
Guarantor shall, without the prior written consent of Hedge Counterparty,
commence or join with any other Person in commencing any bankruptcy,
reorganization or insolvency case or proceeding of or against Company or any
other Guarantor. The obligations of Guarantors hereunder shall not be reduced,
limited, impaired, discharged, deferred, suspended or terminated by any case or
proceeding, voluntary or involuntary, involving the bankruptcy, insolvency,
receivership, reorganization, liquidation or arrangement of Company or any other
Guarantor or by any defense which Company or any other Guarantor may have by
reason of the order, decree or decision of any court or administrative body
resulting from any such proceeding.
(b) Each Guarantor acknowledges and agrees that any interest on any
portion of the Guaranteed Obligations which accrues after the commencement of
any case or proceeding referred to in clause (a) above (or, if interest on any
portion of the Guaranteed Obligations ceases to accrue by operation of law by
reason of the commencement of such case or proceeding, such interest as would
have accrued on such portion of the Guaranteed Obligations if such case or
proceeding had not been commenced) shall be included in the Guaranteed
Obligations because it is the intention of Guarantors and Hedge Counterparty
that the Guaranteed Obligations which are guaranteed by Guarantors pursuant
hereto should be determined without regard to any rule of law or order which may
relieve Company of any portion of such Guaranteed Obligations. Guarantors will
permit any trustee in bankruptcy, receiver, debtor in possession, assignee for
the benefit of creditors or similar person to pay Hedge Counterparty, or allow
the claim of Hedge Counterparty in respect of, any such interest accruing after
the date on which such case or proceeding is commenced.
(c) In the event that all or any portion of the Guaranteed
Obligations are paid by Company, the obligations of Guarantors 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 Hedge
Counterparty as a preference, fraudulent transfer or otherwise, and any such
payments which are so rescinded or recovered shall constitute Guaranteed
Obligations for all purposes hereunder.
1.12. DISCHARGE OF GUARANTY UPON SALE OF GUARANTOR.
If all of the Capital Stock of any Guarantor or any of its successors in
interest hereunder shall be sold or otherwise disposed of (including by merger
or consolidation) in accordance with the terms and conditions OF SECTION
4.1(a)(2) OR SECTION 4.1(a)(3) of the Collateral Trust Agreement, the Guaranty
of such Guarantor or such successor in interest, as the case may be, hereunder
shall automatically be discharged and released without any further action by
Hedge Counterparty or any other Person effective as of the time of such sale or
disposition.
Notwithstanding anything herein to the contrary, each Guarantor confirms that it
is its intention that the guaranty by such Guarantor pursuant to this Guaranty
not constitute a fraudulent transfer or conveyance for purposes of any federal,
state or foreign law. To effectuate the foregoing intention, each Guarantor
hereby irrevocably agrees that the obligations of each Guarantor under this
Guaranty shall be limited to the maximum amount as will, after giving effect to
all other contingent and fixed liabilities of such Guarantor and after giving
effect to any collections from payments made by or on behalf of any other
Guarantor in respect of the obligations of such other Guarantor under its
Guaranty, result in the obligations of such Guarantor under this Guaranty not
constituting a fraudulent conveyance or fraudulent transfer under federal, state
or foreign law.
SECTION II. MISCELLANEOUS
2.1 NOTICES. Unless otherwise specifically provided herein, any notice or
other communication herein required or permitted to be given to Hedge
Counterparty, Company or a Guarantor, shall be sent to such Person's address as
set forth in the Hedge Agreement and in the manner permitted therein.
2.2. GOVERNING LAW. This Agreement, each Transaction entered into hereunder,
and all matters arising in connection with this Agreement will be governed by,
and construed and enforced in accordance with, the law of the State of New York.
2.3. SEVERABILITY. If any term, provision, covenant, or condition of this
Guaranty, or the application thereof to any party or circumstance, shall be held
to be invalid or unenforceable (in whole or in part) for any reason, the
remaining terms, provisions, covenants, and conditions hereof shall continue in
full force and effect as if this Guaranty had been executed with the invalid or
unenforceable portion eliminated, so long as this Guaranty as so modified
continues to express, without material change, the original intentions of the
parties as to the subject matter of this Guaranty and the deletion of such
portion of this Guaranty will not substantially impair the respective benefits
or expectations of the parties to this Guaranty.
2.4. WAIVER OF TRIAL BY JURY. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY PROCEEDING.
2.5. CONSENT TO JURISDICTION.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY PARTY HERETO ARISING OUT OF OR
RELATING HERETO, OR ANY OF THE OBLIGATIONS, MAY BE BROUGHT IN ANY STATE OR
FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW
YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH PARTY HERETO, FOR ITSELF
AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY (a) ACCEPTS GENERALLY AND
UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (b)
WAIVES ANY DEFENSE OF FORUM NON CONVENIENS; (c) AGREES THAT SERVICE OF ALL
PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR
CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO THE APPLICABLE PARTY HERETO AT ITS
ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 2.1; (d) AGREES THAT SERVICE AS
PROVIDED IN CLAUSE (c) ABOVE IS SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER
THE APPLICABLE PARTY HERETO IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND
OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT; AND (e)
AGREES AGENTS AND LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST ANY PARTY HERETO IN THE COURTS
OF ANY OTHER JURISDICTION.
IN WITNESS WHEREOF, the parties hereto have caused this Guaranty to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
J. ARON & COMPANY, as Hedge
Counterparty
By: /s/ L. Peter O'Hagan
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Name: L. Peter O'Hagan
Title:
THE CANTON OIL & GAS COMPANY
By: /s/ Frost W. Cochran
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Name: Frost W. Cochran
Title: President
WARD LAKE DRILLING, INC.
By: /s/ Frost W. Cochran
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Name: Frost W. Cochran
Title: Chief Executive Officer