Date 7 January 2010 TBS INTERNATIONAL PUBLIC LIMITED COMPANY as Guarantor - and - THE ROYAL BANK OF SCOTLAND plc as Security Trustee GUARANTEE relating to a Loan Agreement dated 29 March 2007 as amended from time to time
TBS
INTERNATIONAL PLC & SUBSIDIARIES EXHIBIT
10.12
Date 7
January 2010
TBS
INTERNATIONAL PUBLIC LIMITED COMPANY
as
Guarantor
- and
-
THE
ROYAL BANK OF SCOTLAND plc
as
Security Trustee
________________________________________________
________________________________________________
relating
to a Loan Agreement
dated 29
March 2007 as amended from time to time
INDEX
| Clause | Page | |
THIS GUARANTEE is made
on 7 January 2010
BETWEEN
|
(1)
|
TBS INTERNATIONAL PUBLIC
LIMITED COMPANY, a company incorporated in Ireland with
registration number 476578 whose registered office at Xxxxxx Xxx Building,
Earlsfort Centre, Earlsfort Terrace, Dublin 2, Ireland (the “Guarantor”);
and
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|
(2)
|
THE ROYAL BANK OF SCOTLAND
plc, a company incorporated in Scotland, acting through its office
at Level 0, 000 Xxxxxxxxxxx, Xxxxxx XX0X 0XX (the “Security Trustee”, which
expression includes its successors and
assigns).
|
BACKGROUND
|
(A)
|
By
a loan agreement dated 29 March 2007 as amended and supplemented by a
supplemental letter agreement dated 26 March 2008, a supplemental
agreement dated 27 March 2009, a side letter dated 27 May 2009 and a side
letter dated 3 September 2009 and made between (i) Argyle Maritime Corp.,
Xxxxx Maritime Corp., Dorchester Maritime Corp., Longwoods Maritime Corp.,
XxXxxxx Maritime Corp. and Sunswyck Maritime Corp. as joint and several
Borrowers, (ii) the Lenders, (iii) the Agent, (iv) the Security Trustee,
(v) the Mandated Lead Arranger, (vi) the Bookrunner and (vii) the Swap
Bank, it was agreed that the Lenders would make available to the Borrowers
a term loan facility of up to
US$150,000,000.
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|
(B)
|
By
a supplemental agreement dated 7 January 2010 made between the same
parties to the Loan Agreement and the Corporate Guarantor, the Loan
Agreement was further amended (the “Supplemental
Agreement”).
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(C)
|
By
a master agreement dated 29 March 2007 and made between (i) the Borrowers
and (ii) the Swap Bank, the Swap Bank has agreed to hedge the Borrowers’
exposure under the Loan Agreement to interest rate
fluctuations.
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(D)
|
The
execution and delivery to the Security Trustee of this Guarantee is one of
the conditions to the continuing availability of the term loan facility
under the said Loan Agreement.
|
IT IS AGREED as
follows:
|
1
|
INTERPRETATION
|
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1.1
|
Defined
expressions. Words and expressions defined in the Loan
Agreement shall have the same meanings when used in this Guarantee unless
the context otherwise requires.
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|
1.2
|
Construction of certain
terms. In this
Guarantee:
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|
|
“bankruptcy” includes
a liquidation, receivership or administration and any form of suspension
of payments, arrangement with creditors or reorganisation under any
corporate or insolvency law of any
country;
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|
“Loan Agreement” means
the loan agreement referred to in Recital (A) as amended by the
Supplemental Agreement and includes any existing or future amendments or
supplements, whether made with the Guarantor's consent or
otherwise;
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|
“Master Agreement” means
the master agreement referred to in Recital (B) (including all
Transactions from time to time entered into and Confirmations from time to
time exchanged under such master
agreement).
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1.3
|
Application of construction and
interpretation provisions of Loan Agreement. Clauses 1.2
and 1.5 of the Loan Agreement apply, with any necessary modifications, to
this Guarantee.
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2.1
|
Guarantee and
indemnity. The Guarantor unconditionally and
irrevocably:
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(a)
|
guarantees
the due payment of all amounts payable by the Borrowers under or in
connection with the Loan Agreement and every other Finance Document
and any Designated Transaction under the Master
Agreement;
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(b)
|
undertakes
to pay to the Security Trustee, on the Security Trustee's demand, any such
amount which is not paid by the Borrowers or any of them when due and
payable; and
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(c)
|
fully
indemnifies the Security Trustee on its demand in respect of all claims,
expenses, liabilities and losses which are made or brought against or
incurred by the Security Trustee as a result of or in connection with any
obligation or liability guaranteed by the Guarantor being or becoming
unenforceable, invalid, void or illegal; and the amount recoverable under
this indemnity shall be equal to the amount which the Security Trustee
would otherwise have been entitled to
recover.
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2.2
|
No limit on number of
demands. The Security Trustee may serve more than one
demand under Clause 2.1.
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3
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LIABILITY
AS PRINCIPAL AND INDEPENDENT DEBTOR
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3.1
|
Principal and independent
debtor. The Guarantor shall be liable under this
Guarantee as a principal and independent debtor and accordingly it shall
not have, as regards this Guarantee, any of the rights or defences of a
surety.
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3.2
|
Waiver of rights and
defences. Without limiting the generality of Clause 3.1,
the Guarantor shall neither be discharged by, nor have any claim against
any Creditor Party in respect of:
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(a)
|
any
amendment or supplement being made to the Finance
Documents;
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(b)
|
any
arrangement or concession (including a rescheduling or acceptance of
partial payments) relating to, or affecting, the Finance
Documents;
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(c)
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any
release or loss (even though negligent) of any right or Security Interest
created by the Finance Documents;
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(d)
|
any
failure (even though negligent) promptly or properly to exercise or
enforce any such right or Security Interest, including a failure to
realise for its full market value an asset covered by such a Security
Interest; or
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(e)
|
any
other Finance Document or any Security Interest now being or later
becoming void, unenforceable, illegal or invalid or otherwise defective
for any reason, including a neglect to register
it.
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4
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EXPENSES
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4.1
|
Costs of preservation of
rights, enforcement etc. The Guarantor shall pay to the
Security Trustee on its demand the amount of all expenses incurred by the
Security Trustee or any other Creditor Party in connection with any matter
arising out of this Guarantee, including any advice, claim or proceedings
relating to this Guarantee.
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4.2
|
Fees and expenses payable under
Loan Agreement. Clause 4.1 is without prejudice to the
Guarantor's liabilities in respect of the Borrowers’ obligations under
clause 20 of the Loan Agreement (fees and expenses) and under similar
provisions of other Finance
Documents.
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5
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ADJUSTMENT
OF TRANSACTIONS
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5.1
|
Reinstatement of obligation to
pay. The Guarantor shall pay to the Security Trustee on
its demand any amount which any Creditor Party is required, or agrees, to
pay pursuant to any claim by, or settlement with, a trustee in bankruptcy
of a Borrower or of another Security Party (or similar person) on the
ground that the Loan Agreement or the Master Agreement, or a payment by a
Borrower or of another Security Party, was invalid or on any similar
ground.
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6
|
PAYMENTS
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6.1
|
Method of
payments. Any amount due under this Guarantee shall be
paid:
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(a)
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in
immediately available funds;
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(b)
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to
such account as the Security Trustee may from time to time notify to the
Guarantor;
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(c)
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without
any form of set-off, cross-claim or condition;
and
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(d)
|
free
and clear of any tax deduction except a tax deduction which the Guarantor
is required by law to make.
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6.2
|
Grossing-up for
taxes. If the Guarantor is required by law to make a tax
deduction, the amount due to the Security Trustee shall be increased by
the amount necessary to ensure that the Security Trustee and (if the
payment is not due to the Security Trustee for its own account) the
Creditor Party beneficially interested in the payment receives and retains
a net amount which, after the tax deduction, is equal to the full amount
that it would otherwise have
received.
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6.3
|
Tax
Credit. The provisions of Clause 22.4 of the Loan
Agreement shall apply to this Guarantee and in relation to any increased
payment made by the Guarantor under Clause 6.2 as if the same were set out
in full herein with the necessary
changes.
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7
|
INTEREST
|
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7.1
|
Accrual of
interest. Any amount due under this Guarantee shall
carry interest after the second Business Day following the date on which
the Security Trustee demands payment of it until it is actually paid,
unless interest on that same amount also accrues under the Loan Agreement
(or as the case may be) the Master
Agreement.
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|
7.2
|
Calculation of
interest. Interest under this Guarantee shall be
calculated and accrue in the same way as interest under clause 7 of the
Loan Agreement.
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7.3
|
Guarantee extends to interest
payable under Loan Agreement and Master Agreement. For
the avoidance of doubt, it is confirmed that this Guarantee covers all
interest payable under the Loan Agreement and the Master Agreement,
including that payable under clause 7 of the Loan Agreement and Section
2(e) of the Master Agreement.
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8
|
SUBORDINATION
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8.1
|
Subordination of rights of
Guarantor. All rights which the Guarantor at any time
has (whether in respect of this Guarantee or any other transaction)
against any Borrower, any other Security Party or their respective assets
shall be fully subordinated to the rights of the Creditor Parties under
the Finance Documents and in particular, the Guarantor shall
not:
|
|
(a)
|
claim,
or in a bankruptcy of a Borrower or any other Security Party prove for,
any amount payable to the Guarantor by a Borrower or any other Security
Party, whether in respect of this Guarantee or any other
transaction;
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(b)
|
take
or enforce any Security Interest for any such
amount;
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(c)
|
claim
to set-off any such amount against any amount payable by the Guarantor to
a Borrower or any other Security Party;
or
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(d)
|
claim
any subrogation or other right in respect of any Finance Document or any
sum received or recovered by any Creditor Party under a Finance
Document.
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9
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ENFORCEMENT
|
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9.1
|
No requirement to commence
proceedings against Borrowers. Neither the Security
Trustee nor any other Creditor Party will need to commence any proceedings
under, or enforce any Security Interest created by, the Loan Agreement or
any other Finance Document before claiming or commencing proceedings under
this Guarantee.
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9.2
|
Conclusive evidence of certain
matters. However, as against the
Guarantor:
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(a)
|
any
judgment or order of a court in England or the Xxxxxxxx Islands in
connection with the Loan Agreement and/or the Master Agreement;
and
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(b)
|
any
statement or admission of a Borrower in connection with the Loan Agreement
and/or the Master Agreement,
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|
|
shall
be binding and conclusive as to all matters of fact and law to which it
relates.
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9.3
|
Suspense
account. The Security Trustee and any Creditor Party
may, for the purpose of claiming or proving in a bankruptcy of any
Borrower or any other Security Party, place any sum received or recovered
under or by virtue of this Guarantee on a separate suspense or other
interest bearing nominal account without applying it in satisfaction of
the Borrowers’ obligations under the Loan Agreement or, as the case may
be, the Master Agreement.
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10
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REPRESENTATIONS
AND WARRANTIES
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10.1
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General. The
Guarantor represents and warrants to the Security Trustee as
follows.
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10.2
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Status. The
Guarantor is duly incorporated and validly existing under the laws of
Ireland.
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10.3
|
Corporate
power. The Guarantor has the corporate capacity, and has
taken all corporate action and obtained all consents necessary for
it:
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(a)
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to
execute this Guarantee; and
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(b)
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to
make all the payments contemplated by, and to comply with, this
Guarantee.
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10.4
|
Consents in
force. All the consents referred to in Clause 10.3
remain in force and nothing to the best of the Guarantor’s knowledge and
belief has occurred which makes any of them liable to
revocation.
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10.5
|
Legal
validity. This Guarantee constitutes the Guarantor's
legal, valid and binding obligations enforceable against the Guarantor in
accordance with its terms subject to any relevant insolvency laws
affecting creditors' rights generally and subject to any qualification as
to matters of law which are specifically referred to in any legal opinion
delivered to the Agent pursuant to the Supplemental
Agreement.
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10.6
|
No
conflicts. The execution by the Guarantor of this
Guarantee and its compliance with this Guarantee will not involve or lead
to a contravention of:
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(a)
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any
law or regulation in force at the date of the Guarantee;
or
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(b)
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the
constitutional documents of the Guarantor;
or
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(c)
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any
contractual or other obligation or restriction which is binding on the
Guarantor or any of its assets.
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10.7
|
No withholding
taxes. No tax is imposed in any jurisdiction in which
the Guarantor is ordinarily resident for tax by way of withholding or
deduction or otherwise on any payment to be under this
Agreement.
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10.8
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No
default. To the knowledge of the Guarantor, no Event of
Default or Potential Event of Default has occurred and is
continuing.
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10.9
|
Information. All
information which has been provided in writing by or on behalf of the
Guarantor to the Security Trustee or any other Creditor Party in
connection with any Finance Document was to the best of the Guarantor’s
knowledge and belief true and not misleading as at the time it was given;
all audited and unaudited accounts which have been so provided satisfied
the requirements of Clause 11.4; and there has been no material adverse
change in the financial position or state of affairs of the Guarantor from
that disclosed in the latest of those
accounts.
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10.10
|
No
litigation. No legal or administrative action involving
the Guarantor has been commenced or taken or, to the Guarantor's
knowledge, is likely to be commenced or taken which, in either case, would
be likely to have a material adverse effect on the Guarantor's financial
position or profitability.
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11
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UNDERTAKINGS
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11.1
|
General. The
Guarantor undertakes with the Security Trustee to comply with the
following provisions of this Clause 11 at all times during the Security
Period, except as the Agent may, with the authority of the Majority
Lenders, otherwise permit.
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11.2
|
Information provided to be
accurate. All financial and other information which is
provided in writing by or on behalf of the Guarantor under or in
connection with this Guarantee will, to the best of the Guarantor’s
knowledge and belief, be true and not misleading and will not omit any
material fact or consideration which if disclosed would reasonably be
expected to adversely affect the decision of a person considering whether
to enter into the Supplemental
Agreement.
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11.3
|
Provision of financial
statements. The Guarantor will send to the Security
Trustee:
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(a)
|
as
soon as possible, but in no event later than 120 days after the end of
each financial year of the Guarantor, the annual audited accounts of the
Guarantor and its consolidated
subsidiaries;
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(b)
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as
soon as possible, but in no event later than 30 days after the end of each
quarter in each financial year of the Guarantor the unaudited consolidated
accounts of the Guarantor and its consolidated subsidiaries which are
certified as to their correctness by its chief financial officer;
and
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(c)
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together
with the accounts specified in paragraph (b) above, a compliance
certificate in the form set out in Schedule 9 of the Loan Agreement
executed by the chief financial officer of the Guarantor confirming the
Financial Covenants set out in Schedule 8 of the Loan Agreement have been
complied with during each financial
quarter.
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11.4
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Form of financial
statements. All accounts (audited and unaudited)
delivered under Clause 11.3 will:
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(a)
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be
prepared in accordance with all applicable laws and generally accepted
accounting principles of the U.S.A. consistently
applied;
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(b)
|
give
a true and fair view of the financial condition of the Guarantor and its
subsidiaries at the date of those accounts and of their profit for the
period to which those accounts relate;
and
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(c)
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fully
disclose or provide for all significant liabilities of the Guarantor and
its subsidiaries.
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11.5
|
Shareholder and creditor
notices. The Guarantor will send the Security Trustee,
at the same time as they are despatched, copies of all communications
which are despatched to the Guarantor's shareholders or creditors or any
class of them.
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11.6
|
Consents. The
Guarantor will maintain in force and promptly obtain or renew, and will
promptly send certified copies to the Security Trustee of, all consents
required:
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(a)
|
for
the Guarantor to perform its obligations under this
Guarantee;
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(b)
|
for
the validity or enforceability of this
Guarantee;
|
and the
Guarantor will comply with the terms of all such consents.
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11.7
|
Further
Assurance. The Guarantor
will:
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(a)
|
at
its own cost, do all that it reasonably can to ensure that this Guarantee
creates the obligations which it purports to create;
and
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(b)
|
without
limiting the generality of paragraph (a) above, at its own cost, promptly
register, file, record or enrol this Guarantee with any applicable court
or authority, pay any applicable stamp, registration or similar tax in
respect of this Guarantee, give any notice or take any other step which in
the reasonable opinion of the Majority Lenders, is or has become necessary
or desirable for this Guarantee to be valid, enforceable or admissible in
evidence.
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11.8
|
Notification of
litigation. The Guarantor will provide the Security
Trustee with details of any legal or administrative action involving the
Guarantor promptly upon becoming aware of the same where such legal or
administrative action might, if adversely determined, have a material
adverse effect on the ability of the Guarantor to perform its obligations
under this Guarantee.
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11.9
|
Notification of
default. The Guarantor will notify the Security Trustee
as soon as the Guarantor becomes aware
of:
|
|
(a)
|
the
occurrence of an Event of Default or a Potential Event of Default;
or
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(b)
|
any
matter which indicates that an Event of Default or a Potential Event of
Default may have occurred and is
continuing;
|
and will
thereafter keep the Security Trustee fully up-to-date with all
developments.
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11.10
|
Maintenance of
status. The Guarantor will maintain its separate
corporate existence under the laws of
Ireland.
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11.11
|
No disposal of assets, change
of business. The Guarantor will
not:
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(a)
|
transfer,
lease or otherwise dispose of all or a substantial part of its assets,
whether by one transaction or a number of transactions, whether related or
not except in the usual course of its trading operations;
or
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(b)
|
make
any substantial change to the nature of its business from that existing at
the date of this Guarantee.
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11.12
|
No merger
etc. The Guarantor shall not, and shall procure that
none of its subsidiaries will, enter into any form of merger,
sub-division, amalgamation or other
reorganisation.
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11.13
|
Chief Executive
Office. The Guarantor will maintain its chief executive
office, and keep its corporate documents and records, at Xxxxxx Xxx
Building, Earlsfort Centre, Earlsfort Terrace, Dublin 2,
Ireland.
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12
|
JUDGMENTS
AND CURRENCY INDEMNITY
|
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12.1
|
Judgments relating to Loan
Agreement or Master Agreement. This Guarantee shall
cover any amount payable by the Borrowers under or in connection with any
judgment relating to the Loan Agreement or the Master
Agreement.
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12.2
|
Currency
indemnity. In addition, clause 21.4 (currency indemnity)
of the Loan Agreement shall apply, with any necessary adaptations, in
relation to this Guarantee.
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13
|
SET-OFF
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13.1
|
Application of credit
balances. Each Creditor Party may without prior notice
following the occurrence of an Event of Default which is
continuing:
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(a)
|
apply
any balance (whether or not then due) which at any time stands to the
credit of any account in the name of the Guarantor at any office in any
country of that Creditor Party in or towards satisfaction of any sum then
due from the Guarantor to that Creditor Party under this Guarantee;
and
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(b)
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for
that purpose:
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(i)
|
break,
or alter the maturity of, all or any part of a deposit of the
Guarantor;
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(ii)
|
convert
or translate all or any part of a deposit or other credit balance into
Dollars;
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(iii)
|
enter
into any other transaction or make any entry with regard to the credit
balance which the Creditor Party concerned considers
appropriate.
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13.2
|
Existing rights
unaffected. No Creditor Party shall be obliged to
exercise any of its rights under Clause 13.1; and those rights shall be
without prejudice and in addition to any right of set-off, combination of
accounts, charge, lien or other right or remedy to which a Creditor Party
is entitled (whether under the general law or any
document).
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13.3
|
Sums deemed due to a
Lender. For the purposes of this Clause 13, a sum
payable by the Guarantor to the Agent or the Security Trustee for
distribution to, or for the account of, a Lender shall be treated as a sum
due to that Lender; and each Lender's proportion of a sum so payable for
distribution to, or for the account of, the Lenders shall be treated as a
sum due to that Lender.
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14
|
SUPPLEMENTAL
|
|
14.1
|
Continuing
guarantee. This Guarantee shall remain in force as a
continuing security at all times during the Security
Period.
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14.2
|
Rights cumulative,
non-exclusive. The Security Trustee's rights under and
in connection with this Guarantee are cumulative, may be exercised as
often as appears expedient and shall not be taken to exclude or limit any
right or remedy conferred by law.
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14.3
|
No impairment of rights under
Guarantee. If the Security Trustee omits to exercise,
delays in exercising or invalidly exercises any of its rights under this
Guarantee, that shall not impair that or any other right of the Security
Trustee under this Guarantee.
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14.4
|
Severability of
provisions. If any provision of this Guarantee is or
subsequently becomes void, illegal, unenforceable or otherwise invalid,
that shall not affect the validity, legality or enforceability of its
other provisions.
|
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14.5
|
Guarantee not affected by other
security. This Guarantee shall not impair, nor be
impaired by, any other guarantee, any Security Interest or any right of
set-off or netting or to combine accounts which the Security Trustee or
any other Creditor Party may now or later hold in connection with the Loan
Agreement or the Master Agreement.
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14.6
|
Guarantor bound by Loan
Agreement. The Guarantor agrees with the Security
Trustee to be bound by all provisions of the Loan Agreement which are
applicable to the Security Parties in the same way as if those provisions
had been set out (with any necessary modifications) in this
Guarantee.
|
|
14.7
|
Applicability of provisions of
Guarantee to other rights. Clauses 3 and 17 shall also
apply to any right of set-off or netting or to combine accounts which the
Guarantor creates by an agreement entered into at the time of this
Guarantee or at any later time (notwithstanding that the agreement does
not include provisions similar to Clauses 3 and 17), being an agreement
referring to this Guarantee.
|
|
14.8
|
Third party
rights. A person who is not a party to this Guarantee
has no right under the Contracts (Rights of Third Parties) Act 1999 to
enforce or to enjoy the benefit of any term of this
Guarantee.
|
|
15
|
ASSIGNMENT
|
|
15.1
|
Assignment by Security
Trustee. The Security Trustee may assign its rights
under and in connection with this Guarantee to the same extent as it may
assign its rights under the Loan
Agreement.
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16
|
NOTICES
|
|
16.1
|
Notices to
Guarantor. Any notice or demand to the Guarantor under
or in connection with this Guarantee shall be given by letter or fax
at:
|
Xxxxxx
Xxx Building
Earlsfort
Centre
Earlsfort
Terrace
Dublin 2,
Ireland
|
|
Fax
No: + 000 0 000 0000
|
with a copy to:
c/o TBS Shipping Services
Inc.
000 X. Xxxxxx Xxxxxx Xxxx
Yonkers, NY 10710
USA
Fax No: + 0 000 000 0000
or to such other address which the
Guarantor may notify to the Security Trustee.
|
16.2
|
Application of certain
provisions of Loan Agreement. Clauses 28.3, 28.4 and
28.5 of the Loan Agreement apply to any notice or demand under or in
connection with this Guarantee.
|
|
16.3
|
Validity of
demands. A demand under this Guarantee shall be valid
notwithstanding that it is served:
|
|
(a)
|
on
the date on which the amount to which it relates is payable by the
Borrowers under the Loan Agreement or, as the case may be, the Master
Agreement;
|
|
(b)
|
at
the same time as the service of a notice under clause 19.2 (events of
default) of the Loan Agreement;
|
and a
demand under this Guarantee may refer to all amounts payable under or in
connection with the Loan Agreement and the Master Agreement without specifying a
particular sum or aggregate sum.
|
16.4
|
Notices to Security
Trustee. Any notice to the Security Trustee under or in
connection with this Guarantee shall be sent to the same address and in
the same manner as notices to the Security Trustee under the Loan
Agreement.
|
|
17
|
INVALIDITY
OF LOAN AGREEMENT OR MASTER
AGREEMENT
|
|
17.1
|
Invalidity of Loan
Agreement. In the event
of:
|
|
(a)
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the
Loan Agreement now being or later becoming, with immediate or
retrospective effect, void, illegal, unenforceable or otherwise invalid
for any other reason whatsoever, whether of a similar kind or not;
or
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(b)
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without
limiting the scope of paragraph (a), a bankruptcy of a Borrower, the
introduction of any law or any other matter resulting in a Borrower being
discharged from liability under the Loan Agreement, or the Loan Agreement
ceasing to operate (for example, by interest ceasing to
accrue);
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this
Guarantee shall cover any amount which would have been or become payable under
or in connection with the Loan Agreement if the Loan Agreement had been and
remained entirely valid, legal and enforceable, or that Borrower had not
suffered bankruptcy, or any combination of such events or circumstances, as the
case may be, and that Borrower had remained fully liable under it for
liabilities whether invalidly incurred or validly incurred but subsequently
retrospectively invalidated; and references in this Guarantee to
amounts payable by the Borrowers under or in connection with the Loan Agreement
shall include references to any amount which would have so been or become
payable as aforesaid.
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17.2
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Invalidity of Finance
Documents. Clause 17.1 also applies to each of the other
Finance Documents to which the Borrowers are a
party.
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18
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GOVERNING
LAW AND JURISDICTION
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18.1
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English
law. This Guarantee and any non-contractual obligations
arising out of or in connection with it shall be governed by, and
construed in accordance with, English
law.
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18.2
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Exclusive English
jurisdiction. Subject to Clause 18.3, the courts of
England shall have exclusive jurisdiction to settle any disputes which may
arise out of or in connection with this
Guarantee.
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18.3
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Choice of forum for the
exclusive benefit of the Security Trustee. Clause 18.2
is for the exclusive benefit of the Security Trustee, which reserves the
rights:
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(a)
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to
commence proceedings in relation to any matter which arises out of or in
connection with this Guarantee in the courts of any country other than
England and which have or claim jurisdiction to that matter;
and
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(b)
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to
commence such proceedings in the courts of any such country or countries
concurrently with or in addition to proceedings in England or without
commencing proceedings in England.
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The
Guarantor shall not commence any proceedings in any country other than England
in relation to a matter which arises out of or in connection with this
Guarantee.
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18.4
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Process
agent. The Guarantor irrevocably appoints Xxxxxx Xxxxx
Xxxxxxx LLP at its registered office for the time being, presently at
Waterview House, Roundwood Avenue, Stockley Park, Uxbridge UB11 1AU, to
act as its agent to receive and accept on its behalf any process or other
document relating to any proceedings in the English courts which are
connected with this Guarantee.
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18.5
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Creditor Parties' rights
unaffected. Nothing in this Clause 18 shall exclude or
limit any right which any Creditor Party may have (whether under the law
of any country, an international convention or otherwise) with regard to
the bringing of proceedings, the service of process, the recognition or
enforcement of a judgment or any similar or related matter in any
jurisdiction.
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18.6
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Meaning of
“proceedings”. In this Clause 18, “proceedings” means
proceedings of any kind, including an application for a provisional or
protective measure.
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THIS GUARANTEE has been
executed and delivered as a deed on the date stated at the beginning of this
Guarantee.
26329919
v4
EXECUTION
PAGE
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GUARANTOR
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||
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SIGNED and DELIVERED as a DEED
|
)
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|
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by:
Xxxxxxxxxxx X. Xxxxxx
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)
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/s/
Xxxxxxxxxxx X. Xxxxxx
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acting
as lawfully appointed attorney of
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)
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TBS
INTERNATIONAL PUBLIC
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)
|
|
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LIMITED
COMPANY
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)
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|
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in
the presence of: Xxxxxxxx Xxxxx
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)
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/s/
Xxxxxxxx Xxxxx
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SECURITY
TRUSTEE
|
||
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SIGNED by Xxxxxx Xxxxxx
Xxxxxx
|
)
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/s/
G A Stares
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for
and on behalf of
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)
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|
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THE
ROYAL BANK OF SCOTLAND plc
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)
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in
the presence of: X.X. Xxxxxxx
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)
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/s/
X X
Xxxxxxx
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