GUARANTEE & INDEMNITY - CROSS BORDER (ALL MONIES)
Dated: 23 November 2000
In this deed:-
"the guarantor" is VARI-LITE INTERNATIONAL INC. (a company having IRS
identification number 00-0000000) of 000 Xxxxx Xxx,
Xxxxxx, Xxxxx, 00000 XXX
"the company" is BARCLAYS MERCANTILE BUSINESS FINANCE LIMITED (a
company registered in England, company number 898129)
whose registered office is at Xxxxxxxxx Xxxxx,
Xxxxxxxxx Xxx, Xxxxxxxxxxx, Xxxxxxxxx, XX00 0XX
"the customer" is VARI-LITE PRODUCTION SERVICES LIMITED (a company
registered in England, company number 2876045) of
00-00 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx XX0 0XX
1.1 In this deed the masculine includes the feminine and the neuter and the
singular includes the plural and vice versa.
1.2 Where there are two or more guarantors for the same obligation (whether
by this deed or otherwise) the liability of such guarantors shall be
joint and several.
1.3 If more than one person is specified or referred to above as the
customer, the word customer shall be construed in this deed as
referring to and including each such person.
1.4 The headings are for ease of reference and do not affect the
construction of this deed.
2.1 The guarantor unconditionally and irrevocably hereby undertakes to the
company that the guarantor will within seven days of demand in writing
made to the guarantor pay or discharge to the company all monies and
liabilities which shall for the time being (and whether on or at any
time after such demand) be due, owing or incurred to the company by the
customer whether actually or contingently and whether solely or jointly
with any other person and whether as principal or surety and including
interest thereon, and in respect thereof to pay the legal and other
costs and expenses of the company with value added tax (if any)
thereon.
2.2 In addition to and without prejudice to clause 2.1 above, the guarantor
unconditionally and irrevocably hereby undertakes to indemnify and keep
the company indemnified against any loss or damages and the legal and
other costs and expenses with value
added tax (if any) thereon suffered or incurred by the company as a
result of the failure of the customer to meet any of its liabilities
or perform any of its obligations to the company guaranteed hereunder.
2.3 The maximum amount ultimately enforceable under this deed shall not
exceed Four Million Pounds ((pound)4,000,000).
3.1 This deed shall not be considered as satisfied by any intermediate
payment or satisfaction of the whole or any part of any sum or sums of
money due, owing or incurred to the company, but shall be a continuing
security and shall extend to cover any sum or sums of money which shall
for the time being be comprised in the indebtedness of the customer to
the company hereby secured.
3.2 The guarantee and indemnity comprised in this deed shall be binding as
a continuing security on the guarantor until the date which is 30 days
after the company shall have received from the guarantor (or the
executor or administrator of a deceased guarantor) notice to
discontinue it in respect of contracts that may be entered into between
the customer and the company after such date of discontinuance, but,
notwithstanding such discontinuance, the guarantor shall remain liable
under this deed in respect of all contracts entered into between the
customer and the company dated prior to such date of discontinuance
until all obligations under or in respect of such contracts have been
performed.
3.3 The guarantor undertakes to give the company notice in respect of any
customer which is a subsidiary (as defined by Section 736 of the
Companies Xxx 0000 or any amendment or re-enactment thereof) of the
guarantor forthwith on such customer ceasing to be its subsidiary.
3.4 To be validly given any notice from the guarantor to the company must
be in writing and addressed to the company at its registered address
stated below, marked for the attention of the company secretary.
4. The liability hereunder of the guarantor shall be as a primary obligor
(as between the guarantor and the company) and not merely as a surety
and (without prejudice to the generality of the foregoing) shall not be
impaired or discharged by reason of any time or other indulgence
granted by the company to the customer or by reason of any arrangement
entered into or composition agreed by the company modifying (by
operation of law or otherwise) the rights and remedies of the company
or of any omission on the part of the company to enforce any of its
rights against the customer or by the withdrawal by the company of any
facilities from the customer.
5. The company shall be at liberty without thereby affecting its rights
under this deed at any time and from time to time, at its absolute
discretion, to release, discharge, compound with or otherwise vary or
agree to vary any other securities held or to be held by the company
for the liabilities or obligations of the customer or the liability of
the guarantor under this deed or to make any other arrangements with
any one or more guarantor and no such release, discharge, composition,
variation, agreement or arrangement shall prejudice or in any way
affect the rights and remedies of the company against any other
guarantor.
6. The guarantor shall rank in any insolvency in respect of any sum paid
hereunder by it and in respect of any other rights which may accrue
howsoever to it in respect of any sum so paid and be entitled to
enforce the same only after all sums hereby secured have been paid.
7. Any security for the time being held by the guarantor from the customer
in respect of this deed shall be held in trust for the company as
security for the liability of the guarantor hereunder.
8. This deed shall be in addition to any other guarantee or other security
for the customer which the company may now or hereafter hold.
9. For purposes of the liability of the guarantor under this deed every
sum of money which may now be or which hereafter may become due or
owing to the company by the customer or would have become so due or
owing were it not for the appointment of an administrator, receiver,
administrative receiver or liquidator of the business or assets of the
customer or any part thereof or is deemed to become so due on such
appointment shall be deemed to continue due and owing until actually
paid to the company notwithstanding the intervening insolvency or
winding up of the customer.
10. Any money received hereunder may be placed and kept to the credit of a
suspense account for so long as the company thinks fit without any
obligation in the meantime to apply the same or any part thereof in or
towards discharge of any moneys or liabilities due, owing or incurred
by the customer to it. Notwithstanding any such payment in the event of
any proceedings in or analogous to bankruptcy, liquidation, composition
or arrangement the company may prove for and agree to accept any
dividend or composition in respect of the whole or any part of such
money and liabilities in the same manner as if this deed had not been
executed.
11.1 The execution of this deed by any body corporate named as guarantor
shall constitute a warranty that the execution of and performance of
this deed is within the powers of such body corporate and constitutes
an enforceable liability of that body corporate.
11.2 No defect in the execution of this deed by any guarantor shall affect
the liability of any other guarantor.
12. A certificate by the Secretary or other officer of the company as to
the monies and liabilities for the time being due and not paid or
discharged on first demand made by the company on the customer shall,
in the absence of manifest error, be conclusive evidence against the
guarantor and the customer in any legal proceedings.
13.1 If under any applicable law and whether pursuant to a judgement being
made or registered against the guarantor or for any other reason, any
payment under or in connection with this deed is made or falls to be
satisfied in a currency (the "other currency") other than sterling,
then to the extent that the payment (when converted into sterling at
the rate of exchange on the date of payment or, if it is not
practicable for the company to purchase sterling with the other
currency on the date of payment, at the rate of exchange as soon
thereafter as it is practicable for the company to do so
or, in the case of the guarantor's liquidation, bankruptcy or
analogous process at the rate of exchange on the latest date permitted
by applicable law for the determination of liabilities in such
liquidation, bankruptcy or analogous process) actually received by the
company falls short of the amount due under the terms of this deed the
guarantor shall, as a separate and independent obligation, indemnify
and hold the company harmless against the amount of such shortfall.
13.2 For the purpose of this clause "rate of exchange" means the rate at
which the company is able on the relevant date to purchase sterling
with the other currency, and shall take into account any premium and
other costs of exchange.
14. All payments hereunder shall be made without set-off or counter-claim
and free and clear of and without deduction or withholding for or on
account of any present or future taxes, levies, imposts, duties or
other charges of any nature whatsoever. If the guarantor should be
compelled by law to deduct or withhold such taxes, it shall pay such
additional amounts to the company as may be necessary in order that the
actual amount received by the company after deduction or withholding
(and after deduction of an amount equal to any additional taxes or
other charges required to be deducted or withheld as a consequence of
the payment of such additional amount) shall equal the amount that
would have been received if such deduction or withholding were not
required. If the guarantor shall make any deduction or withholding from
any amount paid hereunder, it shall upon request forthwith supply the
company with official receipts or other evidence acceptable to the
company establishing payment of such deducted or withheld amounts by
the guarantor to the appropriate taxing or other authority.
15. Each provision in this deed shall be construed as a separate provision
and, if part or the entirety of any provision is held by any court of
competent jurisdiction to be unenforceable or unenforceable in respect
of one or more of several customers, such unenforceability shall have
no effect upon and shall not impair the validity, enforceability or
legality of the remaining parts of such provision or of any other
provision contained in this deed or its validity, enforceability or
legality in respect of any other customer.
16.1 This deed shall be governed by and construed in accordance with the law
of England.
16.2 The guarantor hereby submits to the non-exclusive jurisdiction of the
High Court of Justice in London and, without prejudice to the
generality of the foregoing, agrees that the company may take
proceedings against the guarantor in any jurisdiction it considers fit.
16.3 The taking of proceedings in any one jurisdiction shall not preclude
the taking of proceedings in any other jurisdiction whether
concurrently or not.
16.4 The guarantor waives any objection which it may have now or at any time
in the future to the taking of proceedings in any jurisdiction or that
such proceedings are brought in an inconvenient forum.
17. The guarantor hereby appoint the customer to be the guarantor's agent
to accept on the
guarantor's behalf any demand under this deed or service of
proceedings commenced in England and will at all times maintain an
agent in England to accept service of demands and/or proceedings on
the guarantor's behalf.
IN WITNESS whereof this deed was entered into the day and year first before
written.
EITHER
The Common Seal of
Vari-Lite International Inc
has been affixed to this deed
in the presence of:-
Director
Secretary
-----------------------------
Signature(s) confirmed by
OR
Signed by............................
and ................................. for and on
behalf of Vari-Lite International Inc
pursuant to a resolution of the Board of
Directors (a certified copy of which is
annexed hereto)
I/we/each of us hereby acknowledge(s) receipt of a copy of the above guarantee.
............................. ..............................
