1
10.9.6
DATED 15th July, 1994 1994
HORIZON SEISMIC INC.
and
EXPLORATION HOLDINGS LIMITED
and
HORIZON EXPLORATION LIMITED
--------------------------------------------------------------------------------
DEED OF CONTINUING INTER-COMPANY
CROSS GUARANTEE AND INDEMNITY
--------------------------------------------------------------------------------
in favour of
SIMON-HORIZON LIMITED
SIMON PETROLEUM TECHNOLOGY LIMITED
and
SIMON ENGINEERING PLC
XXXXXXX & XXXXXXX
00 XXXXXXXX XXXXXX
XXXXXX XX0X 0XX
(Ref: 5A/P.37800/AZM/2566m)
2
T H I S D E E D is made the 15th day of July, 1994
-------------------------------
BETWEEN:
(1) THE COMPANIES whose names, registration numbers and registered offices
are specified in the Schedule hereto (the "Companies") of the one
part; and
(2) SIMON-HORIZON LIMITED, registration number 467924, a company
incorporated in England and Wales with registered office at Xxxxxxx
Xxxxx, Xxxxxx Xxxxx, Xxxxxxx, Xxxx, XX0 0XX SIMON PETROLEUM TECHNOLOGY
LIMITED registration number 2720413, a company incorporated in England
and Wales with registered office at Xx'x-x-Xxxx, Xxxxxxxx, Xxxxxxxxx,
Xxxxx Xxxxx; and SIMON ENGINEERING PLC registration number 52665, a
company incorporated in England and Wales with registered office at
Xxxxx Xxxxx, Xxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxx XX0 XXX (hereinafter
together called the "Beneficiaries" and each a "Beneficiary" which
expression shall include their respective successors and assigns) of
the other part.
WHEREAS:
(A) By an Agreement of even date herewith (the "Agreement") made between
the Beneficiaries and Horizon Exploration Limited ("HEL") HEL is to
enter into the Charterparty by way of sub-demise referred to in
Recital (B) below with Simon-Horizon Limited ("Simon") and certain
other arrangements with the Beneficiaries in relation to the m.v.
"SIMON LABRADOR" registered under the Bahamian flag at the port of
Nassau under Official Number 715224 (the "Ship") upon the terms and
conditions therein mentioned.
(B) By a Charterparty by way of Sub-Demise (the "Charterparty") of even
date herewith and made between Simon (1) and HEL (2) Simon has agreed
to let and DEL has agreed to take the Ship on demise charter upon the
terms and conditions therein mentioned.
(C) By the Agreement HEL has agreed with the Beneficiaries (inter alia) to
procure that certain works be carried out to the Ship and equipment be
installed thereon at the expense of HEL upon the terms and conditions
therein mentioned.
(D) The execution and delivery of this Deed of Inter-Company
Cross-Guarantee and Indemnity by the Companies is one of the
conditions precedent (inter alia) to Simon letting and demising the
Ship to HEL pursuant to the Charterparty.
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IT IS AGREED as follows:
1. INTERPRETATION
1.1 In this Deed of Continuing Inter-Company Cross Guarantee and
Indemnity, unless the context otherwise requires or unless otherwise
defined herein, words and expressions defined in the Charterparty and
used herein shall have the same meaning where used in this Deed.
1.2 In this Deed, unless the context otherwise requires:
"Deed" means this Deed of Continuing Inter-Company Cross Guarantee and
Indemnity;
"Guarantee" includes each separate or independent stipulation or
agreement by the Companies and each one of them contained in this
Deed;
"Guaranteed Indebtedness" means the Indebtedness of HEL to the
Beneficiaries guaranteed pursuant to Clause 2.1 and indemnified
pursuant to Clause 2.2;
"Guaranteed Liabilities" means the Liabilities of HEL to the
Beneficiaries, the discharge of which is guaranteed pursuant to Clause
2.1 and indemnified pursuant to Clause 2.2;
"Guarantors" means the Companies and each of them;
"Incapacity" means in relation to a person the death, bankruptcy,
unsoundness of mind, insolvency, liquidation, dissolution, winding-up,
administration, receivership, amalgamation, reconstruction or other
incapacity of that person whatsoever (and, in the case of a
partnership, includes the termination or change in the composition of
the partnership);
"Indebtedness" means any obligation for the payment or repayment of
money, whether as principal or as surety and whether present or
future, actual or contingent;
"Liabilities" means all obligations and liabilities whatsoever,
whether express or implied, whether as principal or surety, whether
present or future, actual or contingent, whether joint or several in
whatever style, name or form and in whatever currency denominated.
1.3 Clause headings are inserted for convenience of reference only and
shall be ignored in the interpretation of this Deed.
1.4 In this Deed, unless the context otherwise requires:
(a) references to Clauses are to be construed as references to the
clauses of this Deed;
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(b) references to (or to any specifies provision of) this Deed or
any other document shall be construed as references to this
Deed, that provision or that document as in force for the time
being and as amended in accordance with the terms thereof, or,
as the case may be, with the agreement of the relevant parties
and (where such consent is, by the terms of this Deed or the
relevant document, required to be obtained as a condition to
such amendment being permitted) the prior written consent of
the Beneficiaries or any of them;
(c) words importing the plural shall include the singular and vice
versa;
(d) references to a person shall be construed as references to an
individual, firm, company, corporation, unincorporated body of
persons or any Government Entity; and
(e) references to statutory provisions shall be construed as
references to those provisions as replaced, amended or
reenacted from time to time.
2. GUARANTEE
In consideration of Simon chartering the Ship to HEL pursuant to the
Charterparty and of each of the Beneficiaries entering into the Agreement and
of other good and valuable consideration (the adequacy whereof is hereby
acknowledged by the Guarantors and each of them) the Guarantors jointly and
severally agree:
2.1 As a primary obligation and not merely as a surety, they hereby
guarantee:
(a) the full, due and punctual performance of all obligations of
HEL to the Beneficiaries howsoever arising, including, without
limitation, procuring the fulfillment of all the works and
supply of equipment to the Ship as contemplated by the
Agreement; and
(b) payment when due of all moneys due on any account whatsoever
by HEL to the Beneficiaries or to any of them, howsoever
arising, together with all other Indebtedness or Liabilities
whatsoever of HEL to the Beneficiaries or to any of them,
howsoever arising, whether under the Agreement the
Charterparty, any of the Relevant Documents or otherwise
so that in case of either (a) or (b), if HEL shall default, each of
the Guarantors shall itself be liable fully to perform the same or
make the relevant payment.
2.2 Unconditionally and irrevocably as a primary obligation to indemnify
the Beneficiaries on a full and unqualified indemnity basis and hold
the Beneficiaries harmless against any breach, default or failure by
HEL duly and punctually to perform and observe the terms,
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conditions, covenants or obligations on its part contained in the
Charterparty, the Agreement or any of the other Relevant Documents.
2.3 The Guarantee and the rights of the Beneficiaries under it shall not
be affected or prejudiced by the Beneficiaries or any of them holding
or taking any other or further securities or guarantees or by any
Beneficiary varying, releasing, exchanging, enforcing or omitting or
neglecting to enforce any such securities or guarantees (including
this Guarantee in whole or in part and against one Guarantor or more
than one Guarantor or by the introduction of any new Guarantor) or by
the Beneficiaries giving time for payment or granting any other
indulgence to or making any other arrangements with or accepting any
composition from the Guarantors or any of them or any person liable on
any securities or guarantees or indemnities held or to be held by the
Beneficiaries or by any other act or thing (including the invalidity
or unenforceability of any guarantee herein contained) which (apart
from this provision) would or might afford an equitable defense to a
surety. Each of the Guarantors agrees that the Beneficiaries shall
have no duty to any of the Guarantors in the enforcement or
realization of any such security, suretyship or indemnity and, in
particular, but without prejudice to the foregoing, the Beneficiaries
shall owe no duty to any of the Guarantors in the conduct of any
enforcement of any security over any of the assets of HEL or any other
Guarantor or any co-surety and each of the Guarantors' liability
hereunder shall not be reduced by the sale of any such assets at an
undervalue.
2.4 The Beneficiaries shall be at liberty but not bound to resort for
their own benefit to any other means of payment at any time and in any
order they think fit without thereby diminishing the liability of any
of the Guarantors and the Beneficiaries may enforce any of the
guarantees herein contained either for the payment of the ultimate
balance after resorting to other means of payment (including any other
of such guarantees) or for the balance due at any time notwithstanding
that any such other means of payment have not been resorted to and in
each case without entitling any of the Guarantors to any benefit from
such other means of payment so long as any Guaranteed Indebtedness or
Guaranteed Liabilities remain due or owing or payable or undischarged.
2.5 The bankruptcy, winding-up, liquidation, dissolution administration,
receivership or insolvency of any one or more of the Guarantors shall
not affect or determine the liability of the other Guarantors or any
of them under this Deed. All dividends, compositions and moneys
received by the Beneficiaries or any of them from any Guarantor
subject to such Incapacity or from any other company, person or estate
capable of being applied by the Beneficiaries in reduction of the
indebtedness, liabilities or obligations of any of any such Guarantor
shall be regarded for all purposes as payments in gross and the
Beneficiaries shall be entitled to prove in the bankruptcy,
winding-up, liquidation, dissolution, receivership or insolvency of
any such Guarantor in respect of the whole of such Guarantor's
obligations to the Beneficiaries and without any right on the part of
any other Guarantor to be subrogated to the Beneficiaries or any of
them in respect of any such proof to the intent that this Guarantee
shall apply to and secure the whole of any ultimate
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balance which shall remain due to the Beneficiaries or any of them
from each of the Guarantors.
2.6 Any settlement or discharge between the Beneficiaries and any of the
Guarantors shall be subject to the condition that no security or
payment to the Beneficiaries by any of the Guarantors or any other
person shall be avoided, invalidated, reduced, repaid or surrendered
by virtue of any provisions or enactments relating to bankruptcy,
winding-up, liquidation, dissolution, administration, receivership or
insolvency for the time being in force and if any such security or
payment shall be so avoided or reduced the Beneficiaries shall be
entitled to recover the value or amount thereof from such Guarantor
subsequently just as if such settlement or discharge had not occurred.
2.7 The Guarantee shall take effect as a guarantee of the whole and every
part of the Guaranteed Indebtedness and the Guaranteed Liabilities and
none of the Guarantors shall be entitled as against the Beneficiaries
to any right of proof in the bankruptcy, winding-up, liquidation,
dissolution or insolvency of any other Guarantor or any other surety
or other right of a surety (including any right of contribution from
any other surety) discharging, in whole or in part, his liability in
respect of the principal debt or to share in any security, suretyship
or indemnity held or money received by any Beneficiary on account of
the obligations of such Guarantor or any other surety or to have or
exercise any rights as surety (including any such right of
contribution as aforesaid) in competition with the Beneficiaries
unless and until the whole of the Guaranteed Indebtedness and the
Guaranteed Liabilities shall have first been completely discharged and
satisfied nor until the Guaranteed Indebtedness and Guaranteed
Liabilities shall have been discharged and satisfied in full shall any
of the Guarantors take any step to enforce any right or claim against
any other Guarantor in respect of any moneys paid by such first
Guarantor to the Beneficiaries hereunder or to exercise any other
rights, claims or remedies of any kind which may accrue howsoever to
any of the Guarantors in respect either of the amount so payable or so
paid (including any such right of contribution as aforesaid) or of any
other moneys for the time being due or owing to any of the Guarantors
from any other Guarantor or any other surety or otherwise, provided
that in the event of the bankruptcy, winding-up, liquidation,
dissolution or insolvency of any of the Guarantors or any other surety
each other Guarantor shall, if so directed by the Beneficiaries, but
not otherwise, prove for (to the fullest extent permitted by law) the
whole or any part of the moneys due or owing to it from such other
Guarantor or any other surety as aforesaid on terms that the benefit
of such proof and of all moneys received by it in respect thereof
shall be held on trust for the Beneficiaries. Furthermore, for the
purpose of enabling the Beneficiaries to xxx any of the Guarantors or
any other surety or prove in the bankruptcy, winding-up, liquidation,
dissolution or insolvency of any of the Guarantors (the First
Guarantors) or any other surety in relation to or in respect of the
whole of the Guaranteed Indebtedness and the Guaranteed Liabilities,
or to preserve intact the liability of any other party, the
Beneficiaries may at any time place and keep, for such time as it may
think prudent, any moneys received, recovered or realized on account
of the obligations of the First Guarantor whether from any other
Guarantor hereunder or under any other guarantee or
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security to the credit either of such other Guarantor or of such other
person or transaction (if any) as the Beneficiaries may think fit,
without any intermediate obligation on the part of the Beneficiaries
to apply the same or any part thereof in or towards the discharge of
the Guaranteed Indebtedness and the Guaranteed Liabilities, or any
intermediate right on the part of such other Guarantor to xxx the
First Guarantor or any other surety or prove in the bankruptcy,
winding-up, liquidation, dissolution or insolvency of the First
Guarantor or any other surety in competition filth or so as to
diminish any dividend or other advantage that would or might come to
the Beneficiaries or to treat the liability of the First Guarantor as
diminished provided that any such moneys shall be held in an interest
bearing account with whichever bank the Beneficiary shall designate.
As used in this Clause 2.7 and Clause 2.11 hereof the expression "any
other surety" includes, without prejudice to the generality of such
term, any other person constituting any of the Guarantors and any
party to any security, suretyship or indemnity or other person
referred to in Clause 2.3.
2.8 For all purposes, including any legal proceedings, a certificate
signed by any of the officers of any Beneficiary as to the sums,
obligations and liabilities for the time being due or incurred to it
by HEL and/or any other of the Guarantors shall be prima facie
evidence thereof against each Guarantor.
2.9 As a separate and independent stipulation each of the Guarantors
agrees, both severally and also jointly with every other Guarantor,
that any Indebtedness, Liability or obligation incurred or purported
to be incurred by any of the Guarantors or by any person purporting to
act on behalf of any of the Guarantors which may not be recoverable
from or enforceable against such Guarantor by reason of any legal
limitation, disability or incapacity on or of such Guarantor or any
other fact or circumstance and whether known to the Beneficiaries or
any of them or to any of the Guarantors or not, shall nevertheless be
recoverable from the other Guarantors as though the same had been
incurred or undertaken by the other Guarantors and the other
Guarantors were jointly and severally liable as sole or principal
debtors in respect thereof and shall be paid by the other Guarantors
on demand.
2.10 This Deed shall continue to bind the Guarantors and continue to apply
to future or subsequent Indebtedness, Liabilities and other
obligations incurred or undertaken or to be incurred or undertaken by
any of HEL and the other Guarantors to or in favour of the
Beneficiaries or any of them notwithstanding any amalgamation or
merger that may be effected by the Beneficiaries or any of them with
any other company and notwithstanding any reconstruction by any
Beneficiary involving the formation of and transfer of the whole or
any of its undertaking and assets to a new company and notwithstanding
the sale or transfer of all or any part of its undertaking to another
company whether the company with which the Beneficiary amalgamates or
merges or the company to which it transfers all or any part of its
undertaking and assets either on a reconstruction or sale or transfer
as aforesaid shall or shall not differ from such Beneficiary in its
objects, character or constitution and notwithstanding any transfer or
assignment of the benefit of the
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provisions herein contained and any rights conferred on the
Beneficiaries hereby to any other person, it being the intent of each
of the Guarantors that the Guarantee shall remain valid and effectual
in all respects in favour of, against and with reference to, and that
the benefit thereof and all rights conferred upon the Beneficiaries
hereby may be assigned to and enforced by, any such company or other
person and proceeded on in the same manner to all intents and purposes
as if such company or other person had been named herein instead of or
in addition to the Beneficiaries and the Beneficiaries shall be at
liberty (subject to the provisions of Clause 6, but otherwise without
liability to any of the Guarantors) to disclose any information
regarding the financial affairs of any of the Guarantors to any
transferee or assignee or proposed transferee or assignee or other
person entering into or proposing to enter into contractual
arrangements with the Beneficiaries in relation to this Deed and/or
the liabilities or obligations of any of the Guarantors to the
Beneficiaries.
2.11 While any amount from time to time remains payable under this Deed any
right of any of the Guarantors, arising whether by way of subrogation
or otherwise out of or in connection with the performance of any of
its duties and obligations, whether express or implied, under this
Deed, to be indemnified by HEL or any other Guarantor or to proceed
on, take the benefit of or enforce any other mortgage, security,
guarantee, indemnity or other right shall only be exercised or
enforced by such Guarantor with the previous written consent of the
Beneficiaries and subject to such terms and conditions as such consent
may specify. Any proceeds of or amounts received or recovered
pursuant to or in connection with any such exercise or enforcement
shall in any event and without prejudice to the provisions of Clause
2.7 hereof be paid and transferred immediately to the Beneficiaries or
as the Beneficiaries may otherwise direct and pending such payment and
transfer shall be held in trust absolutely for the benefit of the
Beneficiaries. Each of the Guarantors declares that it has not
received any mortgage, pledge, charge or other security from any of
HEL and the other Guarantors or any other surety for the giving of the
guarantee on its part herein contained and each of the Guarantors
agrees that it will not, so long as such guarantee remains in force,
take any mortgage, pledge, charge or other security in respect of its
liability hereunder or exercise any right of lien or set-off against
any of HEL and the other Guarantors or any other surety without first
obtaining the written consent of the Beneficiaries.
2.12 No assurance, security, guarantee or payment which may be avoided
under any law relating to bankruptcy, insolvency, administration or
winding-up (including without limitation sections 238, 239, 242, 243,
or 245 of the Insolvency Act 1986), and no release, settlement,
discharge or arrangement given or made by the Beneficiaries on the
faith of any such assurance, security, guarantee or payment, shall
prejudice or affect the right of the Beneficiaries to enforce this
security to the full extent of the indebtedness, liabilities and
obligations referred to in Clause 2 hereof. The Beneficiaries may in
their absolute discretion retain the security so created for a period
of one month plus such statutory period within which any assurance,
security, guarantee or payment can be avoided or invalidated after all
financial accommodation from time to time made available
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to any Guarantor by the Beneficiaries shall have ceased to be
available or (if longer) all such liabilities and obligations shall
have been paid and discharged in full, notwithstanding any release,
settlement, discharge or arrangement given or made by the
Beneficiaries on, or as a consequence of, such cessation or, as the
case may be, payment. If at any time within such period a petition
shall be presented to a competent court for an order for the
bankruptcy, insolvency or winding-up of any of the Guarantors or any
of the Guarantors shall commence to be wound up voluntarily, or an
application for an administration order shall be made to a competent
court in respect of that Guarantor the Beneficiaries may,
notwithstanding as aforementioned, continue to retain the security or
any part thereof for and during such further period as the
Beneficiaries in their absolute discretion shall determine. Each
Guarantor agrees that such security shall be deemed to have been and
to have remained held by the Beneficiaries as and by way of security.
In the event that any Beneficiary shall be required under section 234
of the Insolvency Xxx 0000 to pay any sum to an office-holder (as
defined in the said section) of any of the Guarantors, then such sum
when paid by the Beneficiary shall be deemed to form part of the
liabilities hereby secured and any release, settlement, discharge or
arrangement given or made by the Beneficiary on the faith of any
payment on account of such liabilities which the Beneficiary shall be
so required to pay to the said office-holder shall be treated as
having been given or made by the Beneficiary, and accepted by such
Guarantor, upon the express condition that the same shall be subject
and without prejudice to the Beneficiary's right to recover the same
under this Deed.
3. PAYMENTS
3.1 The obligations of each of the Guarantors hereunder shall be to make
payment to the Beneficiaries in the currency in which the applicable
obligation ought to have been or ought to be discharged by the party
concerned, strictly in accordance with the terms and provisions of the
relevant agreement, express or implied, between the relevant
Beneficiary or Beneficiaries and such party applicable to each
respective obligation of such party, regardless of any law, regulation
or decree, now or hereafter in effect, which affects or might in any
manner affect any of such terms or provisions or the rights of the
Beneficiaries as against such party.
3.2 Each payment to be made by any of the Guarantors hereunder shall be
made to the Beneficiaries, in the appropriate currency in accordance
with the terms hereof, to the credit of the relevant Beneficiary's
account with whichever bank or banks located in the country of such
currency as shall be designated by such Beneficiary. All such
payments shall be made without set-off or counterclaim and free and
clear of and without deduction or withholding for any tax of any
nature now or hereafter imposed by any country or any sub-division or
taxing authority thereof or therein or any federation or organization
of which such country is a member. If any such payment shall be
subject to any such tax or if any of the Guarantors shall be required
to make any such seduction or withholding, such Guarantor shall pay to
the relevant Beneficiary such additional amount as may be necessary to
enable the Beneficiary to receive and retain, after all deductions and
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withholdings, a net amount equal to the full amount payable hereunder.
As used in this Clause the term "tax" includes all levies, imposts,
duties, charges, fees, deductions, withholdings, turnover tax,
transaction tax, stamp tax, stamp duty and any restrictions or
conditions of any nature resulting in a charge.
3.3 It is further agreed by each of the Guarantors, both severally and
also jointly with every other Guarantor, that the Guarantors will
indemnify each Beneficiary against any loss incurred as a result of
any judgment or order being given or made for the payment of any
amount due hereunder and such judgment or order being expressed in a
currency other than that in which such amount is payable by the
Guarantors hereunder and as a result of any variation having occurred
in rates of exchange between the date as at which such amount is
converted into such other currency for the purposes of such judgment
or order and the date of actual payment pursuant thereto. The
foregoing indemnity shall constitute a separate and independent
obligation of the Guarantors and shall apply irrespective of any
indulgence granted to any of the Guarantors from time to time and
shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid.
4. REPRESENTATIONS AND WARRANTIES
4.1 The Guarantors jointly and severally represent and warrant to the
Beneficiaries and to each of them that:
(a) each Guarantor is duly incorporated and validly existing in
good standing under the laws of England or the State of Texas
as the case may be, as limited company and has power to carry
on its businesses as now being conducted and to own its
property and other assets;
(b) each Guarantor has power to execute, deliver and perform its
obligations under this Deed, and all necessary corporate,
shareholder and other action has been taken to authorize its
execution, delivery and performance of the same and no
limitation on the power of any Guarantor to borrow or give
guarantees will be exceeded as a result of this Deed;
(c) this Guarantee constitutes valid, binding and enforceable
obligations of each Guarantor;
(d) the execution and delivery of this Deed, the performance of
its obligations hereunder, and compliance with the provisions
of this Deed by each of the Guarantors will not (i) contravene
any existing applicable law, statute, rule or regulation or
any judgment, decree or permit to which such Guarantor is
subject, or (ii) contravene or conflict with any provision of
any Guarantor's respective Memorandum and Articles of
Association, By-Laws, Statutes or other constitutional
documents;
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(e) it is not necessary to ensure the legality, validity,
enforceability or admissibility in evidence of this Deed that
it or any other instrument be notarized, filed, recorded,
registered or enrolled in any court, public office or
elsewhere in England or in any other Jurisdiction or that any
stamp, registration or similar tax or charge be paid in
England or in any other Jurisdiction on or in relation to this
Deed and this Deed is in proper form for its enforcement in
the courts of England, the State of Texas and the Federal
Courts of the United States of America;
(f) neither is any Guarantor or any of its assets entitled to
immunity on the grounds of sovereignty or otherwise from any
legal action or proceeding (which shall include, without
limitation, suit, attachment prior to judgment, execution or
other enforcement).
4.2 Each Guarantor further represents and warrants that:
(a) every consent, authorization, license or approval of, or
registration with or declaration to, governmental or public
bodies or authorities or courts required by the Guarantor to
authorize, or required by the Guarantor in connection with,
the execution, delivery, validity, enforceability or
admissibility in evidence of this Deed or the performance by
the Guarantor of its obligations under this Deed has been
obtained or made and is in full force and effect and there has
been no default in the observance of the conditions or
restrictions (if any) imposed in, or in connection with, any
of the same;
(b) the obligations of the Guarantor under this Deed are direct,
general and unconditional obligations of the Guarantor and
rank at least pari passu with all other present and future
unsecured and unsubordinated Indebtedness of the Guarantor
with the exception of any obligations which are mandatorily
preferred by law and not by contract;
(c) as at the date of this Deed, Exploration Holdings Limited is
the holding company (and "holding company" shall have the
meaning ascribed thereto pursuant to section 736 of the
Companies Act 1985) and is, directly or indirectly, the
beneficial owner of all of the issued share capital of HEL;
(d) no Relevant Event has occurred and is continuing; and
(e) save as disclosed, no action, suit, proceeding, litigation or
dispute against the Guarantor is taking place or pending or to
the Guarantors's knowledge threatened before any court, board
of arbitration or other body nor is there subsisting any
judgment or award given against the Guarantor which in each
case would or might result in any material adverse change in
the business or condition (financial or otherwise) of the
Guarantor.
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4.3 The representations and warranties in Clauses 4.1 and 4.2 shall be
deemed to be repeated by the Guarantors on and as of each day from the
date of this Deed until all the Guaranteed Indebtedness and Guaranteed
Liabilities shall have been fully and finally paid and discharged
whether by HEL and/or by the Guarantors or any of them pursuant to
this Deed as if made with reference to the facts and circumstances
existing on each such day.
5. UNDERTAKINGS
5.1 Each of the Guarantors undertakes that as from the date of this Deed
until all the Guaranteed Indebtedness and Guaranteed Liabilities shall
have been fully and finally paid and discharged, it will:
(a) promptly inform the Beneficiaries of any occurrence of which
it becomes aware which might adversely affect its ability to
perform its obligations under this Deed forthwith upon
becoming aware thereof;
(b) without prejudice to Clause 4.2, obtain or cause to be
obtained, maintain in full force and effect and comply in all
material respects with the conditions and restrictions (if
any) imposed in or in connection with, every consent,
authorization, license or approval of governmental or public
bodies or authorities or courts and do, or cause to be done,
all other acts and things which may from time to time be
necessary or desirable under applicable law for the continued
due performance of all its obligations under this Deed; and
(c) prepare financial statements in accordance with generally
accepted accounting principles and practices in England or the
United States, as appropriate, consistently applied in respect
of each financial year and cause the same to be reported on by
its auditors and deliver copies of the same to Simon as soon
as practicable but not later than 180 days after the end of
the financial period to which they relate.
5.2 Each Guarantor further undertakes with the Beneficiaries that it will:
(a) pay to the Beneficiaries on demand (whether any such
Indebtedness, Liabilities or obligations shall be its sole
Indebtedness, Liabilities or obligations or shall be joint
with any person, firm or company) all of its present and
future Indebtedness to the Beneficiaries on any account
whatsoever, all of its other Liabilities whatsoever to the
Beneficiaries, present or future, actual or contingent,
howsoever arising (including, but without prejudice to the
provisions of Clause 2 hereof, liabilities and obligations as
surety or guarantor whether pursuant to this Deed or
otherwise) and that it will fully and faithfully perform and
discharge all of its other obligations to the Beneficiaries,
howsoever arising; and
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(b) it will (except in the case of HEL which shall itself so
perform and discharge all of such obligations) use its best
endeavors to procure that HEL shall fully and faithfully
perform and discharge all of its obligations to the
Beneficiaries pursuant to the Agreement and the Relevant
Documents.
6. BENEFIT OF THIS DEED AND ASSIGNMENT
6.1 This Deed shall be binding upon the Guarantors and their respective
successors in title and shall enure for the benefit of the
Beneficiaries and their respective successors in title, assignees and
transferees.
6.2 The Guarantors may not assign or transfer any of their respective
rights or obligations under this Deed. The Beneficiaries or any of
them may at any time transfer all or any part of their or its rights,
benefits and obligations under this Deed by assigning to any other of
them or to any third party (each of which is hereinafter in this
Clause called an "Assignee") which is not a Business Competitor of HEL
(as such term is defined in and for the purposes of the Agreement) all
or any part of its respective rights and benefits hereunder in
consideration (except in the case of any assignment to Royal Bank of
Scotland (Industrial Leasing) Limited or any other company within the
Royal Bank of Scotland plc group of companies when no such
consideration shall be required) of the agreement of each such
Assignee to perform, or to reimburse the assignor for having
performed, the assignor's obligations hereunder as so assigned to such
Assignee. If any such third party is a Business Competitor of HEL the
Beneficiaries shall not, without the prior written consent of HEL
(such consent not to be unreasonably withheld or delayed), so transfer
all or any part of its respective rights, benefits and obligations.
If any of the Beneficiaries does so transfer its rights, benefits and
obligations in accordance with the provisions of this Clause 6, all
references in this Deed to it shall thereafter be construed as a
reference to the Assignee.
6.3 The Beneficiaries may not disclose to a potential assignee or any
other person proposing to enter into contractual arrangements with any
of them in relation to the HEL Documents (as such term is defined in
and for the purposes of the Agreement) information about the HEL, the
Guarantors, the m.v. "Simon Labrador" and the HEL Documents except
with the prior written consent of HEL (such consent not to be
unreasonably withheld or delayed).
7. NOTICES
Any demand or notice by the Beneficiaries hereunder shall be in writing and may
be served on the Guarantor on whom the demand is to be made by leaving the
same, or sending it through the post or by telex or facsimile transmission
addresses to such Guarantor, at the address set out opposite its name in the
Schedule to this Deed or at the address last known to the Beneficiaries as the
registered or principal office or, as the case may be, place of business of
such Guarantor, and a demand or notice so served shall be effective
notwithstanding that it may later be returned
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14
undelivered if left at such address, at the time it was so left or, if sent by
post, 48 hours after the time it was posted and in proving such service by post
it shall be sufficient to prove that the envelope containing the demand or
notice was properly addressed, stamped and posted. Any such demand or notice
by telex or facsimile transmission shall be deemed to have been duly served at
the time when in the ordinary course of transmission it would have been
received.
8. OTHER MATTERS
8.1 No delay or omission of the Beneficiary in exercising any right, power
or privilege hereunder shall impair such right, power or privilege or
be construed as a waiver of such right, power or privilege nor shall
any single or partial exercise of any such right, power or privilege
preclude any further exercise thereof or the exercise of any other
right, power or privilege. The rights and remedies of the Beneficiary
herein provided are cumulative and not exclusive of any rights or
remedies provided by law.
8.3 The illegality, invalidity or unenforceability of any provision of
this Deed under the law of any Jurisdiction shall not affect its
legality, validity or enforceability under the law of any other
jurisdiction or the legality, validity, or enforceability of any other
provision of this Deed.
8.4 This Deed may be executed in one or more parts or counterparts and all
such parts or counterparts shall be construed and read together as one
Deed.
8.5 This Deed shall be governed by and construed in accordance with
English law and each of the Guarantors hereby irrevocably agrees for
the benefit of the Beneficiaries that the English Courts are to have
jurisdiction to settle any suit, action or proceeding which may arise
out of or in connection with this Deed and accordingly any suit,
action or proceeding so arising (in this Clause referred to as
"Proceedings") may be brought in such court. Without prejudice to the
foregoing, the parties hereto further irrevocably agree that any
Proceedings may be brought in the Courts of such other jurisdiction or
jurisdictions as the relevant Beneficiary may from time to time select
and each of the Guarantors hereby waives absolutely any immunity to
which it is or may be entitled in any Jurisdiction. Horizon Seismic
Inc. hereby irrevocably appoints Exploration Holdings Limited at its
address set out in the Schedule hereto as its agent for service of
process in England.
IN WITNESS whereof each of the Companies has caused this Continuing
Inter-Company Cross Guarantee and Indemnity to be executed as its deed, and the
Companies and the Beneficiaries have (with the intention of giving full effect
to any provision of this Continuing Inter-Company Cross Guarantee and Indemnity
which may for any reason not be made fully effective and binding on each of the
Companies by its execution of this Continuing Inter-Company Cross Guarantee and
Indemnity as its deed) caused this Continuing Inter-Company Cross Guarantee and
Indemnity to be signed, on their respective behalves on the day and year first
before written.
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15
SIGNED by )
and ) /s/ Xxxx A.M. Xxxxxxxx
and thereby executed by ) /s/ X.X. Xxxxxxxx
HORIZON SEISMIC INC. )
as its deed )
SIGNED by )
and ) /s/ Xxxx A.M. Xxxxxxxx
and thereby executed by ) /s/ X.X. Xxxxxxxx
EXPLORATION HOLDINGS )
LIMITED as its deed )
SIGNED by )
and ) /s/ Xxxx A.M. Xxxxxxxx
and thereby executed by ) /s/ X.X. Xxxxxxxx
HORIZON EXPLORATION )
LIMITED as its deed )
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16
THE SCHEDULE
REG OFFICE/
ADDRESS
COMPANY REG NO. FOR NOTICES
------- ------- -----------
Exploration 2812999 0 Xxxxxxxx Xxxx
Xxxxxxxx Xxxxxxx Xxxxxxxxx
Xxxx XX00 0XX
Attn: The Company Secretary
Telex: 957840 EXPLOR G
Fax: 0000 000000
Horizon Seismic Inc. 00000 Xxxxxxxxxx
Xxxxx 000
Xxxxxxx
Xxxxx 00000
Attn: The Senior
Vice-President
Fax: (0000) 000 000 0000
Horizon Exploration 2804983 0 Xxxxxxxx Xxxx
Xxxxxxx Xxxxxxxxx
Xxxx XX00 0XX
Attn: The Company Secretary
Telex: 957840 EXPLOR G
Fax: 0000 000000
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