GUARANTEE
To: ABN
AMRO Bank N.V., Tokyo Branch (the "Bank")
Xxxxxx
Xxxxxx International Inc. (the "Guarantor"), in consideration
of, amongst other things, the Bank granting or continuing to make available
banking facilities or other accommodation or granting time to or on account of
Xxxxxx Xxxxxx Japan Inc. (the "Borrower"), hereby irrevocably
and unconditionally guarantees to and agrees with the Bank as
follows:
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1.
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1.1
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The
Guarantor irrevocably and
unconditionally:
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(a)
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guarantees
to the Bank each and every obligation and liability the Borrower may now
or hereafter have to the Bank (whether solely or jointly with one or more
persons and whether as principal or as surety or in some other capacity)
arising out of the Amended and Restated Facility Agreement dated as of
February 28, 2009 between the Borrower and the Bank (the "Facility
Agreement') and promises to pay to the Bank on first demand the unpaid
balance of every sum (of principal, interest or otherwise) now or
hereafter owing, due and not otherwise paid under the Facility Agreement
by the Borrower to the Bank in respect of any such
liability; and
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(b)
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agrees
as a primary obligation to indemnify the Bank on first demand from and
against any loss incurred by the Bank as a result of any such obligation
or liability referred to in Section 1.1(a) being or becoming void,
voidable, unenforceable or ineffective or being or becoming suspended
(whether pursuant to any rehabilitation, reorganization or moratorium
proceedings or otherwise) as against the Borrower for any reason
whatsoever, whether or not known to the Bank, the amount of such loss
being the amount which the Bank would otherwise have been entitled to
recover from the Borrower.
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1.2
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The
guarantee and indemnity contained in Clause 1.1 are in respect of all of
the obligations and liabilities of the Borrower to the Bank (the "Liabilities").
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2.
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PRESERVATION
OF RIGHTS
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2.1
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The
obligations of the Guarantor contained in this Guarantee shall be in
addition to and independent of every other security which the Bank may at
any time hold in relation to any of the
Liabilities.
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2.2
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(a)
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the
bankruptcy, winding-up, dissolution, administration or reorganisation
(where applicable) of the Borrower or any other person or any change in
its status, function, control or
ownership;
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(b)
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any
of the Liabilities or any of the obligations of the Borrower or any other
person under any security relating to any of the Liabilities being or
becoming illegal, invalid, unenforceable or ineffective or being or
becoming suspended (whether pursuant to any rehabilitation, reorganization
or moratorium proceedings or otherwise) in any
respect;
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(c)
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any
time or other indulgence being granted or agreed to be granted to the
Borrower or any other person in respect of any of the Liabilities or under
any other security;
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(d)
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any
amendment to, or any variation, renewal, waiver or release of, any of the
Liabilities or of any person under any other
security;
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(e)
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any
failure to take, or fully to take, any security agreed to be taken in
relation to any of the
Liabilities;
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(f)
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any
failure to realise or fully to realise the value of, or any release,
discharge, exchange or substitution of, any security taken in respect of
any of the Liabilities;
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(g)
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any
abstaining from proving or maintaining any right of proof or from claiming
or enforcing payment of any dividend or composition;
or
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2.3
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Any
settlement or discharge given by the Bank to the Guarantor in respect of
the Guarantor's obligations under this Guarantee or any other agreement
reached between the Bank and the Guarantor in relation to it shall be, and
be deemed always to have been, void if any act on the faith of which the
Bank gave the Guarantor that discharge or entered into that settlement or
other agreement is subsequently avoided by or in pursuance of any
provision of law.
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2.4
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The
Bank shall not be obliged before exercising any of the rights, powers or
remedies conferred upon it in respect of the Guarantor by this Guarantee
or by law:
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(a)
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to
make any demand of the
Borrower;
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(b)
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to
take any action or obtain judgment in any court against the
Borrower;
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(c)
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to
make or file any claim or proof in a winding-up or dissolution of the
Borrower; or
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(d)
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to
enforce or seek to enforce any security taken in respect of any of the
obligations of the Borrower in respect of the
Liabilities.
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2.5
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So
long as the Borrower is under any actual or contingent obligations in
respect of any of the Liabilities, the Guarantor shall not exercise any
rights which the Guarantor may at any time have by reason of performance
by it of its obligations under this Guarantee or by any other means or on
any other ground:
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(a)
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to
be indemnified by the Borrower or to receive any payment or collateral
from the Borrower; and/or
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(b)
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to
claim any contribution from any other guarantor of any of the
Liabilities; and/or
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(c)
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to
make or enforce any claim or right against the Borrower or prove in
competition with the Bank, whether in respect of any payment under this
Guarantee by the Guarantor or otherwise;
and/or
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(d)
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to
claim, or have the benefit of, any set-off, counterclaim or proof against,
or dividend, composition or payment by, the Borrower or the Borrower's
estate; and/or
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(e)
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to
take the benefit (in whole or in part and whether by way of subrogation or
otherwise) of any rights of the Bank in respect of any of the Liabilities
or any other security taken pursuant to, or in connection with, any of the
Liabilities by the Bank.
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3.
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REPRESENTATIONS
AND WARRANTIES
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The
Guarantor represents and warrants as set out in Clause 10.2 of the Facility
Agreement..
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4.
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PAYMENTS
AND INTEREST
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4.1
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All
payments to be made by the Guarantor to the Bank under this Guarantee
shall be made without set-off or counterclaim and without any deduction or
withholding whatsoever. If the Guarantor is obliged by law to
make any deduction or withholding from any such payment, the sum due from
the Guarantor in respect of such payment shall be increased to the extent
necessary to ensure that, after the making of such deduction or
withholding, the Bank receives a net sum equal to the sum the Bank would
have received had no such deduction or withholding been required to be
made.
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4.2
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If
the Guarantor fails to pay any sum payable by it under this Guarantee on
demand, to the extent that interest at a default rate is not otherwise
accruing in respect of such sum(s), interest shall accrue on the overdue
sum from the date of demand up to the date of actual payment (both before
and after judgment)
at 4% over the Bank's costs of funds. Any interest
accruing under this Clause 4.2 shall be immediately payable by the
Guarantor on demand by the Bank.
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4.3
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If
default interest is overdue, such overdue default interest shall be added
to any other overdue sum and the whole shall bear interest at the default
interest rate as provided in Clause
4.2.
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5
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CURRENCY
CONVERSION AND INDEMNITY
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5.1
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The
Bank may convert any money received or realised by it under or pursuant to
this Guarantee which is not in the currency in which such sum is due and
payable by the Guarantor under this Deed from that currency into the
currency in which such sum is due, at the Bank's spot rate of exchange for
the time being for the relevant
conversion.
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5.2
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The
Guarantor shall, as an independent obligation, indemnify the Bank upon
demand against any cost, loss or liability arising out or as a result of
the conversion referred to in Clause
5.1.
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6
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CONTINUING
SECURITY
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6.1
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The
guarantee constituted by this Guarantee shall be continuing and shall
extend to the ultimate balance of the Liabilities and to the performance
in full of all obligations guaranteed hereunder, regardless of any
intermediate payment or discharge in whole or in part or performance in
part and shall continue in full force and effect until final payment in
full of all amounts owing by the Borrower in respect of the Liabilities
and total satisfaction of all the Borrower's actual and contingent
obligations in relation to the
Liabilities.
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6.2
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If
for any reason this Guarantee ceases to be a continuing security, the Bank
may either continue any then existing account(s) or open new account(s)
for the Borrower, but in any case the Guarantor's obligations under this
Guarantee shall be unaffected by, and shall be calculated without regard
to, any payment into or out of any such account after this Guarantee has
ceased to be a continuing security.
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7
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SUSPENSE
ACCOUNT
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All
monies received, recovered or realised by the Bank under or pursuant to this
Guarantee (including the proceeds of any conversion of currency) may in its
discretion be credited to and held in any suspense or impersonal account pending
their application from time to time in or towards the discharge of this
Guarantee. The Guarantor shall not and may not direct the application
by the Bank of any sums received or recovered by the Bank from the Guarantor
under or pursuant to any of the terms of this Guarantee.
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8
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SET-OFF
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The Bank
may at any time apply any credit balance to which the Guarantor is entitled, on
any account maintained (whether in its own name or in joint names) with the head
office and/or any branch of the Bank wheresoever situated in any currency, in
satisfaction of any sum due and payable from the Guarantor to the Bank but
unpaid.
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9
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NOTICES
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Any
notice or demand to be made by one person to another in respect of this
Guarantee may be served by leaving it at the address set out in Clause 24
of the Facility Agreement.
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10
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APPROVALS,
CONSENTS AND AUTHORISATIONS
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The
Guarantor shall obtain and maintain at its own expense any approval, consent,
authorisation, licence or permission which may be required in order to enable
the Bank to have the full benefit of this Guarantee.
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11
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CALCULATIONS
AND CERTIFICATES
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Any
certification or determination by the Bank of a rate or any sum relating to the
Liabilities or the Guarantor's liability under this Guarantee is, in the absence
of manifest error, conclusive evidence of the matter to which it
relates.
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12
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COSTS
AND EXPENSES
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All the
Bank's reasonable out-of-pocket costs and expenses (including legal fees, stamp
duties and any value added tax) incurred in connection with the execution or
enforcement of this Guarantee or otherwise in relation to it shall be reimbursed
by the Guarantor on demand on a full indemnity basis together with interest from
the date such costs and expenses were incurred to the date of payment at such
rates as the Bank may reasonably determine.
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13
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ASSIGNMENTS
AND SUCCESSORS
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13.1
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The
Bank may at any time assign all or any of its rights and benefits under
this Guarantee.
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13.2
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This
Guarantee shall remain in effect and binding on the Guarantor
despite:
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(a)
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any
amalgamation or merger that may be effected by the Bank with any other
person;
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(a)
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any
reconstruction by the Bank involving the formation and transfer of the
whole or any part of its undertaking and assets to any other person;
or
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(c)
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any
sale or transfer of all or any part of its undertaking and assets to any
other person,
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notwithstanding
that such other person (with which the Bank amalgamates or merges or to which
the Bank transfers all or any part of its undertaking and assets either by way
of reconstruction, sale or transfer or otherwise) may differ from the Bank in
its objects, character or construction.
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13.3
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The
Guarantor may not assign any of its rights or transfer any of its rights
and/or obligations under this
Guarantee.
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13.4
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The
Bank may disclose, to any person related to the Bank and/or any person to
whom it is proposing to transfer or assign or has transferred or assigned
any of its rights under this Guarantee, this Guarantee and any information
relating to this Guarantee and/or the
Guarantor.
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14
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PARTIAL
INVALIDITY
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If at any
time any provision of this Guarantee is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither the
legality, validity or enforceability of the remaining provisions of this
Guarantee nor of such provision under the law of any other jurisdiction shall in
any way be affected or impaired thereby.
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15
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REMEDIES
AND WAIVERS
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No
failure to exercise, nor any delay in exercising, on the part of the Bank, any
right or remedy under this Guarantee shall operate as a waiver thereof, nor
shall any single or partial exercise of any right or remedy prevent any further
or other exercise thereof or the exercise of any other right or
remedy. The rights and remedies provided in this Guarantee are
cumulative and not exclusive of any rights or remedies provided by
law.
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16
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LAW
AND JURISDICTION
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16.1
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This
Guarantee is governed by the laws of
Japan.
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16.2
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The
parties hereto submit to the exclusive jurisdiction of the Tokyo District
Court in connection with any disputes that may arise
hereunder.
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17
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INTERPRETATION
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Any
reference in this Guarantee to:
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(a)
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"Bank" includes (i) the
head office and all the branches, wheresoever situated, of the Bank; and
(ii) any assignee or successor in title of the Bank (including, without
limitation, any person referred to in Clause 14.2 with which the Bank
amalgamates or merges or to which the Bank transfers all or any part of
its undertaking and assets either by way of reconstruction, sale or
transfer or otherwise) and any person who, under the laws of its
jurisdiction of incorporation or domicile, has assumed the rights and
obligations of the Bank under this Guarantee or to which under such laws
the same have been
transferred;
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(b)
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"Guarantor" means Xxxxxx
Xxxxxx International Inc. and includes its successors in title and any
receiver;
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(c)
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a
"person" includes
any individual, firm, company, corporation, government, state or agency of
a state or any association, trust or partnership (whether or not having
separate legal personality) of two or more of the foregoing;
and
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(d)
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an
agreement or a document is a reference to that agreement or document as
amended or novated.
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IN WITNESS WHEREOF, the
Guarantor has caused this Guarantee to be executed by its officers thereinto
duly authorised, as of the date indicated.
XXXXXX
XXXXXX INTERNATIONAL INC.
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By:
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Date:
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Name:
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Title:
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