EXECUTION
GUARANTY
(Subsidiary)
THIS GUARANTY (this “
Guaranty ”), dated as of July 11, 2008, is
made by QUEST EASTERN RESOURCE LLC, a Delaware limited liability
company (the “ Guarantor ”), in favor of
ROYAL BANK OF CANADA, as administrative agent for the “
Secured Parties ” as defined in the Credit Agreement
(hereinafter defined).
WITNESSETH :
WHEREAS, pursuant to that certain
Amended and Restated Credit Agreement dated of even date herewith
(as the same may hereafter be amended, supplemented and restated,
the “ Credit Agreement ”), among QUEST
RESOURCE CORPORATION, a Nevada corporation (the “
Borrower ”), the various financial institutions
that are, or may from time to time become, parties thereto
(individually a “ Lender ” and
collectively the “ Lenders ”) and Royal
Bank of Canada, as administrative agent and collateral agent (in
its capacity as administrative agent, the “
Administrative Agent ”), the Lenders have
agreed to make Term Loans for the account of the Borrower;
and
WHEREAS, as a condition precedent to
the making of Term Loans under and as defined in the Credit
Agreement, the Guarantor is required to execute and deliver this
Guaranty; and
WHEREAS, the Guarantor has duly
authorized the execution, delivery and performance of this
Guaranty; and
WHEREAS, the Guarantor is a wholly
owned subsidiary of the Borrower; and
WHEREAS, it is in the best interests
of the Guarantor to execute this Guaranty inasmuch as the Guarantor
will derive substantial direct and indirect benefits from the
extensions of credit made from time to time to or for the account
of the Borrower.
NOW THEREFORE, for good and valuable
consideration, the receipt of which is hereby acknowledged, and in
order to induce the Lenders to make Term Loans to the Borrower
pursuant to the Credit Agreement by fulfilling the requirements of
the Credit Agreement, the Guarantor agrees, for the benefit of each
Lender, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain
Terms . The following capitalized terms when used in this
Guaranty, including its preamble and recitals, shall have the
following meanings (such definitions to be equally applicable to
the singular and plural forms thereof):
“ Administrative
Agent ” is defined in the first recital.
“ Borrower
” is defined in the first recital.
“ Commitments
” means each Commitment as defined in the Credit
Agreement.
“ Guarantor
” is defined in the preamble.
SUBSIDIARY GUARANTY — QUESTEASTERN
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“ Guaranty
” is defined in the preamble.
“ Lenders ”
is defined in the first recital.
“ Loan Documents
” means the Loan Documents as defined in the Credit
Agreement.
“ Note ”
means each Term Note as defined in the Credit Agreement.
“ Obligations
” means the Obligations as defined in the Credit
Agreement.
“ Obligor ”
means the Borrower or any other Person (other than the
Administrative Agent or any Lender) obligated under any Loan
Document.
“ Required
Lenders ” means the Required Lenders as defined in
the Credit Agreement.
“ Subsidiary
Guarantors ” means Subsidiaries of Borrower that have
guaranteed all or any part of the Obligations, other than the
Guarantor.
“ Taxes ”
is defined in clause (a) of Section 2. 7.
“ UCC ”
means the Uniform Commercial Code as in effect in the State of New
York.
SECTION 1.2 Credit
Agreement Definitions . Unless otherwise defined herein or
the context otherwise requires, capitalized terms used in this
Guaranty, including its preamble and recitals, have the meanings
provided in the Credit Agreement,
SECTION 1.3 UCC
Definitions . Unless otherwise defined herein or the
context otherwise requires, terms for which meanings are provided
in the UCC are used in this Guaranty, including its preamble and
recitals, with such meanings.
ARTICLE II
GUARANTY PROVISIONS
SECTION 2.1
Guaranty . The Guarantor hereby absolutely,
unconditionally, and irrevocably (1) guarantees the full and
punctual payment when due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise, of all
Obligations of the Borrower and each other Obligor now or hereafter
existing under each of the Credit Agreement, the Notes and each
other Loan Document to which the Borrower or such other Obligor is
or may become a party, whether for principal, interest, fees,
expenses or otherwise (including all such amounts which would
become due but for the operation of the automatic stay under
Section 362(a) of the United States Bankruptcy Code, 11 U.S.C.
§362(a), and the operation of Sections 502(b) and 506(b) of
the United States Bankruptcy Code, 11 U.S.C. §502(b) and
§506(b)), and (2) indemnifies and holds harmless each
Lender and each holder of a Note for any and all costs and expenses
(including reasonable attorney’s fees and expenses) incurred
by such Lender or such holder, as the case may be, in enforcing any
rights under this Guaranty; provided however, that the
Guarantor shall be liable under this Guaranty for the maximum
amount of such liability that can be hereby incurred without
rendering this Guaranty, as it relates to the Guarantor, voidable
under applicable law relating to fraudulent conveyance or
fraudulent transfer, and not for any greater amount. This Guaranty
constitutes a guaranty of payment when due and not of collection,
and Guarantor specifically agrees that it shall not be necessary or
required that any Lender or any holder of any Note exercise any
right, assert any claim or demand or enforce any remedy whatsoever
against the Borrower or
SUBSIDIARY GUARANTY — QUESTEASTERN
2
any
other Obligor (or any other Person) before or as a condition to the
obligations of the Guarantor hereunder.
SECTION 2.2
Acceleration of Guaranty . Guarantor agrees that, in
the event of the occurrence of any event of the type described in
Section 8. 01(f) of the Credit Agreement, with
respect to the Borrower, any other Obligor or the Guarantor, and if
such event shall occur at a time when any of the Obligations may
not then be due and payable, the Guarantor will pay to the Lenders
forthwith the full amount which would be payable hereunder by the
Guarantor if all such Obligations were then due and payable.
SECTION 2.3 Guaranty
Absolute, etc . This Guaranty shall in all respects
be a continuing, absolute, unconditional and irrevocable guaranty
of payment, and shall remain in full force and effect until all
Obligations (other than contingent indemnity obligations) of the
Borrower and each other Obligor have been paid in full (or, in the
case of L/C Obligations, Cash Collateralized), all obligations of
the Guarantor hereunder shall have been paid in full, all
Commitments shall have terminated and, except as provided in
Section 10. 01(e) of the Credit Agreement, all
Lender Hedging Agreements have terminated. The Guarantor may not
rescind or revoke its obligations hereunder. The Guarantor
guarantees that the Obligations of the Borrower and each other
Obligor will be paid strictly in accordance with the terms of the
Credit Agreement and each other Loan Document under which they
arise, regardless of any law, regulation or order now or hereafter
in effect in any jurisdiction affecting any of such terms or the
rights of any Lender or any holder of any Note with respect
thereto. The liability of the Guarantor under this Guaranty shall
be absolute, unconditional and irrevocable irrespective of:
(1) any lack of validity, legality or enforceability of the
Credit Agreement, any Note or any other Loan Document; (2) the
failure of any Lender or any holder of any Note (a) to assert
any claim or demand or to enforce any right or remedy against the
Borrower, any other Obligor or any other Person (including any
other guarantor) under the provisions of the Credit Agreement, any
Note, any other Loan Document or otherwise, or (b) to exercise
any right or remedy against any other guarantor of, or collateral
securing, any Obligations of the Borrower or any other Obligor;
(3) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of the Borrower
or any other Obligor, or any other extension, compromise or renewal
of any Obligations of the Borrower or any other Obligor;
(4) any reduction, limitation, impairment or termination of
any Obligations of the Borrower or any other Obligor for any
reason, including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to (and the
Guarantor hereby waives any right to or claim of) any defense or
setoff, counterclaim, recoupment or termination whatsoever by
reason of the invalidity, illegality, nongenuineness, irregularity,
compromise, unenforceability of, or any other event or occurrence
affecting, any Obligations of the Borrower, any other Obligor or
otherwise; (5) any amendment to, rescission, waiver, or other
modification of, or any consent to departure from, any of the terms
of the Credit Agreement, any Note or any other Loan Document; (6)
any addition, exchange, release, surrender or non-perfection of any
collateral, or any amendment to or waiver or release or addition
of, or consent to departure from, any other guaranty, held by any
Lender or any holder of any Note securing any of the Obligations of
the Borrower or any other Obligor; (7) the insolvency or
bankruptcy of, or similar event affecting, the Borrower or any
other Obligor; or (8) any other circumstance which might
otherwise constitute a defense available to, or a legal or
equitable discharge of, the Borrower, any other Obligor, any surety
or any guarantor. The Guarantor waives all rights and defenses
which may arise with respect to any of the foregoing, and the
Guarantor waives any right to revoke this Guaranty with respect to
future indebtedness.
SECTION 2.4
Reinstatement . The Guarantor agrees that this
Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment (in whole or in part) of
any of the Obligations is rescinded or must otherwise be restored
by any Lender or any holder of any Note, upon
SUBSIDIARY GUARANTY — QUESTEASTERN
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the
insolvency, bankruptcy or reorganization of the Borrower, any other
Obligor or otherwise, all as though such payment had not been
made.
SECTION 2.5 Waiver,
etc. The Guarantor hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of
the Obligations of the Borrower or any other Obligor and this
Guaranty and any requirement that the Administrative Agent, any
other Lender or any holder of any Note protect, secure, perfect or
insure any security interest or Lien, or any property subject
thereto, or exhaust any right or take any action against the
Borrower, any other Obligor or any other Person (including any
other guarantor) or entity or any collateral securing the
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