EXHIBIT 10.7
COMMODORE HOLDINGS LIMITED
-and-
XXXXXX BANK PLC
-------------------------------
GUARANTEE AND INDEMNITY
relating to obligations of
Crown Cruises of Panama, Inc.
re USD6,720,000 bridge loan
-------------------------------
Xxxxxxxx Xxxxx & Temperley
Royex House
0 Xxxxxxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
Ref: GFS/242921
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INDEX OF CONTENTS
CLAUSE HEADING PAGE NO.
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1. DEFINITIONS AND CONSTRUCTION.............................................2
2. REPRESENTATIONS AND WARRANTIES...........................................3
3. GUARANTEE AND INDEMNITY..................................................4
4. EXPENSES.................................................................5
5. CONTINUING GUARANTEE.....................................................5
6. UNDERTAKINGS.............................................................6
7. ENFORCEMENT.............................................................12
8. CURRENCY INDEMNITY......................................................14
9. BENEFIT.................................................................15
10. MISCELLANEOUS...........................................................15
11. NOTICES.................................................................16
12. GOVERNING LAW AND JURISDICTION..........................................17
SCHEDULE A : FINANCIAL FIGURES, RATIOS AND PERCENTAGES........................18
FORM OF COMPLIANCE CERTIFICATE ...............................................20
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THIS GUARANTEE AND INDEMNITY is given the 24th day of January 2000
BY:-
(1) COMMODORE HOLDINGS LIMITED, a company incorporated and registered under
the laws of Bermuda whose registered office is at c/o Francis & Forest,
Corner House, 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxx XX00, Xxxxxxx (the
"Guarantor" which expression shall include the successors and permitted
assigns of the Guarantor) in favour of:-
(2) XXXXXX BANK PLC, a company incorporated under the laws of Finland
acting through its London branch having its principal place of business
at 00 Xxxxxx Xxxx Xxxxxx, Xxxxxx X0X 0XX (the "Trustee" which
expression shall include its successors and assigns) as trustee for the
Beneficiaries.
WHEREAS:
(A) By a loan agreement dated January 24, 2000 made between (1) the Lenders
(as therein defined), (2) Xxxxxx Bank Plc (the "Agent") as agent for
the Lenders, (3) Crown Cruises of Panama, Inc. (the "Borrower") and (4)
the Trustee the Lenders agreed to make available to the Borrower a loan
of six million seven hundred and twenty thousand United States Dollars
(USD6,720,000) pursuant to and subject to the terms and conditions
therein contained.
(B) In order to induce the Lenders to enter into the Agreement and to
advance the Loan to be advanced thereunder and as a condition precedent
thereto the Guarantor has agreed to give the guarantee and indemnity
herein contained.
(C) By a deed of agency and trust dated January 28, 2000 made between (1)
the Agent, (2) the Trustee and (3) the Lenders it has been agreed that
the benefit of this Guarantee and Indemnity shall be held by the
Trustee on trust for itself, the Agent and the Lenders and its and
their respective successors, assignees and transferees (together "the
Beneficiaries" and individually "Beneficiary").
NOW THIS DEED WITNESSETH as follows:-
1. DEFINITIONS AND CONSTRUCTION
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1.1 In this Guarantee and Indemnity unless the context otherwise requires:-
"AGREEMENT"
means the loan agreement referred to in Recital (A) above as
supplemented by any amendment or supplement thereto which may from time
to time be agreed to by the Trustee, the Beneficiaries and the
Borrower;
"DEFAULT RATE"
means the rate of interest calculated in accordance with clause 4.3 of
the Agreement;
"INDEBTEDNESS"
means the Loan together with all interest accrued thereon and all other
moneys, costs, fees and expenses whatsoever which from time to time may
be or become owing or due and payable to the Trustee or any one or more
of the Beneficiaries pursuant to the Agreement or any of the Security
Documents;
"LOSS"
means any and all losses, costs, expenses, damages, claims, demands,
rights of set-off and/or counterclaim incurred by the Trustee or any
one or more of the Beneficiaries in respect of or in connection with
the Agreement and/or the Security Documents or any liability arising
therefrom;
"SECURED OBLIGATIONS"
means all covenants, agreements, warranties, conditions and provisions
expressed or implied on the part of the Borrower to be performed,
observed or complied with under the Agreement including, without
limitation, the due and punctual payment of the principal sum and all
interest and other moneys expressed to be payable by the Borrower in
accordance with the terms of the Agreement;
"THIS GUARANTEE"
means this Guarantee and Indemnity.
1.2 Unless otherwise defined herein or the context otherwise requires,
words and expressions defined in the Agreement shall have the same
meanings herein. Clause headings are inserted for convenience only and
shall be ignored in the interpretation
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of this Guarantee.
2. REPRESENTATIONS AND WARRANTIES
2.1 The Guarantor hereby represents and warrants to the Trustee that as of
the date hereof and (save in respect of sub-paragraph (B)(ii) below) as
continuing warranties until all of the Indebtedness shall have been
paid and discharged in full:-
(A) The Guarantor has full power and authority to make and perform
this Guarantee and the same constitutes the legal, valid and
binding obligations of the Guarantor enforceable in accordance
with its terms;
(B) The making and performance by the Guarantor of this Guarantee
will in no way exceed the powers granted to the Guarantor by,
or violate in any respect any provision of (i) any mortgage,
charge, deed, contract or other undertaking or instrument to
which the Guarantor is a party or which is binding on the
Guarantor or any of the assets of the Guarantor; or (ii) any
law or regulation or any order or decree of any governmental
authority, agency or court; or (iii) the Memorandum and/or
Articles of Association (or equivalent corporate documents) of
the Guarantor;
(C) All consents, licences, approvals or authorisations which are
required in connection with the execution, validity,
performance or enforceability of this Guarantee have been
obtained and are and will continue to be valid and subsisting;
(D) Save as disclosed to the Trustee in writing, the Guarantor is
not in default under any agreement to which the Guarantor is a
party or by which the Guarantor may be bound, nor in respect
of any financial commitment or obligation;
(E) The Guarantor is not engaged in litigation or arbitration
before any court or before any tribunal which might if
determined against the Guarantor have a material adverse
effect on the financial condition of the Guarantor and there
is no claim against the Guarantor which, with the passage of
time might result in any such litigation or arbitration; and
(F) The Guarantor has received a copy of the Agreement and
approves of and
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agrees to the terms and conditions thereof.
3. GUARANTEE AND INDEMNITY
3.1 The Guarantor hereby unconditionally and irrevocably:-
(A) guarantees the due and punctual performance and observance of
and compliance with the Secured Obligations by the Borrower in
accordance with the terms of the Agreement and the Guarantor
hereby covenants that, if any amount of principal or interest
or other moneys payable by the Borrower under the Agreement
shall not be paid when the same shall be due and payable,
whether on maturity or otherwise, the Guarantor will,
forthwith on demand, make such payment, or cause such payment
to be made, to the Trustee (as trustee for the Beneficiaries)
in the manner specified by the Trustee together with all
interest expressed to accrue on any such amount pursuant to
the Agreement until the date of receipt by the Trustee; and
(B) without prejudice to (A) above and as a separate and
independent obligation thereto Indemnifies and agrees to
indemnify the Trustee and the Beneficiaries upon the written
demand of the Trustee in respect of any Loss which the Trustee
or any one or more of the Beneficiaries may suffer or incur in
good faith directly or indirectly as a result of or in
connection with any failure by the Borrower fully and
effectually to perform, observe and/or comply with the Secured
Obligations.
4. EXPENSES
4.1 The Guarantor further agrees to pay to the Trustee on demand on a full
indemnity basis all commissions, charges, costs and expenses of
whatsoever nature incurred by the Trustee and/or the Beneficiaries in
the administration, preservation and enforcement of any of the
Trustee's rights hereunder together with interest thereon (both before
and after judgment) at the Default Rate from the date of demand until
the date of receipt by the Trustee compounded on such days in the year
as the Trustee reasonably may select.
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5. CONTINUING GUARANTEE
5.1 This Guarantee shall:-
(A) be a continuing security and shall be construed and take
effect as security for all of the Secured Obligations until
they shall have been satisfied and discharged in full and the
Guarantor hereby waives any right of set-off or counter-claim
which the Guarantor may otherwise have had against the Trustee
or any one or more of the Beneficiaries;
(B) be in addition to any other guarantee, indemnity or other
security which the Trustee and/or the Beneficiaries may now or
hereafter hold in respect of all or any of the Secured
Obligations whether from the Guarantor or otherwise, and shall
be binding on the Guarantor notwithstanding that any other
Security Party shall fail to give the security to be provided
by it or shall be released from any such security or such
security shall be varied;
(C) not be discharged by the granting to any Security Party of
time or any other indulgence or by compounding with any
Security Party or by any variation whatsoever of any of the
Secured Obligations or by any actual or alleged invalidity,
irregularity or unenforceability of or defect in any of the
Secured Obligations or in any of the provisions of the
Agreement or any one or more of the Security Documents or by
the absence of any action to enforce any of the rights of the
Trustee and/or the Beneficiaries thereunder or by any act or
circumstance whatsoever whereby this Guarantee would or might
otherwise but for the provisions of this Clause have been so
discharged;
(D) remain in full force and effect notwithstanding any change in
the name, constitution or otherwise of any Security Party or
the Trustee or any of the Beneficiaries or their respective
successors and assigns or the absorption or amalgamation of
any thereof by or with any other corporate entity.
6. UNDERTAKINGS
6.1 The Guarantor agrees with represents and undertakes to the Trustee
that:-
(A) If the Guarantor becomes liable to make any payment pursuant
to Clause 3 hereof, then the Guarantor will not thereafter
make demand for payment of
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any moneys for the time being due to the Guarantor from any
Security Party or exercise any other right or remedy to which
the Guarantor is entitled in respect of such moneys unless and
until all moneys whatsoever owing by all Security Parties to
the Trustee and the Beneficiaries have been irrevocably paid
in full;
(B) If any Security Party shall become insolvent or shall be wound
up or liquidated, the Guarantor shall not (unless so required
by the Trustee and then only on condition that the Guarantor
holds the benefit of any claim in such insolvency or
liquidation upon trust to pay any amounts recovered thereunder
to the Trustee) prove in such insolvency, winding-up or
liquidation until all moneys whatsoever owing by all Security
Parties to the Trustee and the Beneficiaries have been
irrevocably paid in full;
(C) The Guarantor has not taken and will not take from any
Security Party any security whatsoever for the moneys hereby
secured and, notwithstanding the foregoing, any such security
now or hereafter held by the Guarantor shall be held in trust
for the Trustee and the Beneficiaries and for their benefit in
respect of the obligations of the Guarantor hereunder;
(D) The Guarantor will not exercise any right to which the
Guarantor may be entitled as a surety until all moneys
whatsoever owing or due and payable by all Security Parties to
the Trustee and the Beneficiaries have been irrevocably paid
in full;
(E) The Guarantor hereby waives any right to require the Trustee
and/or the Beneficiaries to proceed first against any Security
Party and/or to give notice to or demand on any Security Party
whatsoever;
(F) All payments to be made hereunder shall be made in immediately
available funds without set-off or counter-claim and free and
clear of and without deduction for or on account of any
present or future taxes of any nature now or hereafter
imposed, levied, collected, withheld, deducted or assessed by
any taxing and/or governmental authority whatsoever or
wheresoever unless the Guarantor is compelled by law to deduct
such taxes. In that event all such taxes shall be borne by the
Guarantor or, if under the provisions of any
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applicable law this stipulation cannot be applied, then the
Guarantor shall increase the payments to the Trustee so that
the net amounts received by the Trustee shall be equal to the
full amounts which the Trustee would have received had payment
not been made subject to such taxes; provided that taxes
payable by the Trustee or any Beneficiary on its profits
arising by virtue of the transaction herein described in the
countries in which it carries on business shall not be
included in the foregoing. As used in this sub-clause the term
"taxes" includes all levies, imposts, duties, charges, fees,
deductions and withholdings whatsoever and any restriction or
condition resulting in a charge.
If the Guarantor is required to deduct taxes, the Guarantor
will promptly thereafter deliver all receipts and other
documents relating thereto to the Trustee.
If and when the Trustee or any Beneficiary shall receive (in
its reasonable opinion) a credit in respect of any taxes
deducted by the Guarantor and to which this sub-clause refers,
it shall allow the Guarantor a credit against amounts due or
to become due under the Agreement or any one or more of the
Security Documents (the "Guarantor's Credit") of such amount
as shall be fair and reasonable in the opinion of the Trustee
or that Beneficiary in respect of any such credit as is
received by the Trustee or that Beneficiary or, if all of the
Indebtedness shall have been repaid in full, shall make a
payment to the Guarantor equal to the amount of the
Guarantor's Credit. Neither the Trustee nor any Beneficiary
shall be under any obligation to discuss or reveal its tax
affairs with the Guarantor;
(G) The Guarantor shall give to the Trustee all such information
as the Trustee may request with regard to the performance by
the Security Parties of their respective obligations under the
Agreement and the Security Documents;
(H) The Guarantor shall not without the prior written consent of
the Trustee (such consent not to be unreasonably withheld)
sell, convey, transfer or otherwise dispose (whether by a
single transaction or in a series of transactions, related or
not) of any assets;
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(I) All the authorised and issued share capital of the Borrower is
and will remain wholly owned and controlled by the Guarantor;
(J) The Guarantor shall prepare or cause to be prepared, in
accordance with GAAP, and deliver to the Trustee annual
audited financial statements of the Guarantor within ninety
five (95) days of the end of the annual accounting periods of
the Guarantor and quarterly unaudited accounts of the
Guarantor within fifty (50) days of the end of each quarter
together with copies of all notices sent to shareholders or
any class of shareholders and such financial and other
information concerning the Guarantor as the Trustee shall
reasonably require;
(K) The Guarantor shall not make any single acquisition or
investment costing more than one million United States Dollars
(USD1,000,000) without the prior written consent of the
Trustee (such consent not to be unreasonably withheld);
(L) The Guarantor shall not incur any liability in respect of
Borrowed Money or guarantee endorse or otherwise become or
remain liable in respect of the obligations of any person firm
or corporation without the prior written consent of the
Trustee (such consent not to be unreasonably withheld);
(M) The Guarantor shall not pay any dividend for any shares except
preferred shares on the following terms:-
(i) no covenant or undertaking binding upon the Guarantor
is or would be breached by the payment of such
dividend; and
(ii) the aggregate amount of any such dividends paid in
any one period of twelve (12) months does not exceed
four hundred thousand United States Dollars
(USD400,000),
Provided That, in respect of any preferred share issued by the
Guarantor prior to the date of the Agreement, the Guarantor
(subject only to (i) above) shall be entitled to pay dividends
in the maximum amount of twelve per cent (12%) per annum of
the price at which the relevant preferred share was issued;
(N) The Guarantor shall procure that it has cash which is freely
available, which is not subject to any Encumbrance and which
amounts to not less than the
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amount specified in item 1 in schedule A hereto on the
Drawdown Date and not less than the amount specified in item 2
in schedule A hereto at all times thereafter Provided that all
sums standing to the credit of the Earnings Account after all
the applications have been made in accordance with clause 10.2
of the Agreement shall be deemed for the purposes of this
clause to be cash which is freely available to the Guarantor
and not subject to any Encumbrance;
(O) The Guarantor shall procure that its Debt Service Coverage
Ratio (calculated at three (3) monthly intervals as set out
below) shall not be less than the ratio specified in item 3 in
schedule A hereto (for the period from the Drawdown Date to 30
September 2002) and the ratio specified in item 4 in schedule
A hereto (for any period after 30 September 2002) and for this
purpose the Debt Service Coverage Ratio shall be calculated on
a consolidated basis in accordance with the following
formula:-
EBITDA
------------------
Financial Expenses
where
"EBITDA" means, for the previous period of twelve (12) months,
the aggregate of:
(i) Net Income (but excluding gains and losses from the
sale of assets or reserves relating thereto and items
classified as extraordinary or non-recurring) from
the Guarantor's operations for such period and for
this purpose Net Income means the consolidated net
income of the Guarantor as determined in accordance
with GAAP; and
(ii) the aggregate amounts deducted in determining Net
Income for such period in respect of depreciation,
amortisation, taxes, deferred income and interest
expense of the Guarantor; and
"Financial Expenses" means, for the previous period of twelve
(12) months,
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the sum of:
(i) the aggregate principal payable or paid during such
period on any Borrowed Money of the Guarantor (other
than the scheduled principal repayment in respect of
the Loan and principal repayments under the Revolving
Loan Facility Agreement to the extent that they were
redrawn during the same period);
(ii) aggregate interest expense (including, without
limitation, capitalised interest accrued during such
period) of the Guarantor for such period; and
(iii) all rent and any capital lease obligations or
operating lease obligations by which the Guarantor is
bound which are payable or paid during such period as
calculated in accordance with GAAP and derived from
the then latest accounts of the Guarantor;
(P) The Guarantor shall procure that its Capital (Solvency) Ratio
(calculated as set out below) shall not be less than the
percentage specified in item 5 in schedule A
hereto (for the period from the Drawdown Date to 30 September
2001), the percentage specified in item 6 in schedule A hereto
(for the period from 1 October 2001 to 30 September 2002) and
the percentage specified in item 7 in schedule A hereto (for
any period after 30 September 2002) and for this purpose the
Capital (Solvency) Ratio shall be calculated on a consolidated
basis in accordance with the following formula:-
x
------------------
y
where
"x"
means the Guarantor's Book Tangible Net Worth (calculated in
accordance with clause 6.1(Q) hereof); and
"y"
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means the book value of all the assets of the Guarantor
(calculated in accordance with GAAP);
(Q) The Guarantor shall procure that its Book Tangible Net Worth
(calculated as set out below) shall not be less than the
amount specified in item 8 in schedule A hereto (during the
period from the Drawdown Date to 30 September 2000) and the
amount specified in item 9 in schedule A hereto (after 30
September 2000) and for this purpose the Book Tangible Net
Worth shall be the book value of all assets calculated in
accordance with GAAP (excluding goodwill but including all
proceeds from any interest only loans which have been approved
in advance by the Agent as at the date of this Guarantee and
the proceeds of any preferred share issue made prior to the
date of this Guarantee) less total liabilities calculated in
accordance with GAAP (including without limitation the net
present value of financial lease commitments, estimated
compensation to third parties in the event of termination of
contracts, contingent tax liabilities and guarantee
obligations for the benefit of third parties but excluding any
debt of the Guarantor existing as at the date of this
Guarantee and subordinated by its terms to the Secured
Obligations);
(R) The Guarantor shall provide the Trustee with compliance
certificates in relation to the relevant financial covenants
contained in this Guarantee in the form attached hereto on or
before the Drawdown Date and at three (3) monthly intervals
after the Drawdown Date.
7. ENFORCEMENT
7.1 The Guarantor agrees, acknowledges and declares that:-
(A) In order to give effect to this Guarantee the Trustee and the
Beneficiaries shall be at liberty to act as though the
Guarantor were the principal debtor and obligor in respect of
the Secured Obligations and in the event of the winding-up,
dissolution, reconstruction or amalgamation in which or as a
consequence of which any Security Party loses its separate
corporate identity the Guarantor shall become liable to the
Trustee and the Beneficiaries for the payment of all moneys
expressed to be payable by the Security Parties to the Trustee
and/or
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the Beneficiaries pursuant to the Agreement and the Security
Documents and the performance and observance of and compliance
with all the Secured Obligations;
(B) Any release, settlement or discharge in relation to the
obligations of the Guarantor hereunder shall be conditional
upon no security, disposition or payment to the Trustee or the
Beneficiaries in respect of any of the Indebtedness being
avoided or reduced by virtue of any provisions or enactments
relating to bankruptcy, insolvency or liquidation and if any
such security, disposition or payment be avoided or reduced as
aforesaid, this Guarantee shall continue to apply in respect
of the amount of such security, disposition or payment and the
Guarantor shall indemnify the Trustee and the Beneficiaries in
respect thereof;
(C) The Trustee and the Beneficiaries may take such action as the
Trustee and the Beneficiaries in their own discretion may
consider appropriate against any other Security Party or
Parties to recover moneys due and payable in respect of the
Secured Obligations, the Guarantor, however, remaining liable
under this Guarantee for payment and discharge of all moneys
payable in respect thereof;
(D) The Trustee and each of the Beneficiaries shall be entitled
(after a demand for payment has been made hereunder but
without further notice) to procure the setting-off of any
liability of the Guarantor hereunder against any moneys
standing to the credit of any account or accounts which the
Guarantor may now or hereafter have with the Trustee or any of
the Beneficiaries at any of their respective offices or with
any subsidiary or parent company of any one of them (whether
or not those moneys are then due to the Guarantor) and, for
this purpose, to combine any and all such accounts and to use
all or part of those moneys to buy such other currency or
currencies as may be required to enable the Trustee or any of
the Beneficiaries to effect that setting-off. The Trustee and
the Beneficiaries shall also be entitled to retain as security
for the discharge of the liability of the Guarantor hereunder
all securities or other property of the Guarantor held by the
Trustee or any one or more of the Beneficiaries at any of
their respective offices and/or by any subsidiary or parent
company of any one of them (whether for safe custody or
otherwise);
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(E) Notwithstanding that the Secured Obligations and any moneys
due from the Guarantor hereunder shall have been complied
with, paid or discharged, the Trustee shall be entitled to
retain this Guarantee and refrain from releasing the Guarantor
from this Guarantee for such period thereafter as the Trustee
may determine and in the event of bankruptcy, winding-up or
any similar proceedings being commenced in respect of any
Security Party or any other person as may have performed, paid
or discharged any of the Secured Obligations within such
period as aforesaid, the Trustee shall be at liberty to retain
this Guarantee and any security held for the obligations of
the Guarantor hereunder and refrain from releasing the
Guarantor from this Guarantee and may retain such security for
and during such period as the Trustee may determine;
(F) For the purpose of enabling the Trustee and/or the
Beneficiaries to sue any other Security Party or to prove in
its winding-up, liquidation or bankruptcy or in any similar
proceedings for any moneys due and unpaid by the Borrower, the
Trustee may at any time place and keep for such time as it may
think fit any moneys received hereunder to the credit of an
interest bearing suspense account without any obligation on
the part of the Trustee to apply the same or any part thereof
in or towards the discharge of the Indebtedness;
(G) The certificate of the Trustee as to the sum of money owed by
any Security Party shall, in the absence of manifest error, be
conclusive for any purpose and binding on the Guarantor.
8. CURRENCY INDEMNITY
8.1 Any amount received by the Trustee or any Beneficiary in connection
herewith in a currency (the "Relevant Currency") other than the
currency in which the same should be received pursuant to the terms
hereof (the "Agreed Currency") whether pursuant to a judgment or order
of a court or tribunal of any jurisdiction or any enforcement
proceedings or otherwise howsoever in connection herewith or otherwise
shall only constitute a discharge to the Guarantor to the extent of the
amount of the Agreed Currency which the Trustee or the relevant
Beneficiary is able, promptly on receipt, to purchase in such foreign
exchange market as the Trustee or the relevant Beneficiary may select
with the amount of the Relevant Currency so received.
If:-
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(A) the amount of the Agreed Currency which the Trustee or the
relevant Beneficiary is so able to purchase is less than the
amount of the Agreed Currency due to the Trustee or the
relevant Beneficiary hereunder; and/or
(B) any condition imposed in relation to the conversion of any
amount paid in the Relevant Currency into the Agreed Currency
including, without limitation, any condition imposed by any
exchange control authority, reduces the amount in the Agreed
Currency which the Trustee or the relevant Beneficiary
actually receives for the amount of such payment in the
Relevant Currency below that amount which it would have
received had such condition not been imposed;
the Guarantor will indemnify and hold the Trustee or the relevant
Beneficiary harmless against any loss, damage, costs and/or expenses
arising as a result.
8.2 The above indemnity shall constitute a separate and independent
obligation from the other obligations contained herein shall give rise
to a separate and independent cause of action and shall continue in
full force and effect notwithstanding any judgment or order for amounts
due hereunder.
9. BENEFIT
9.1 The Guarantor hereby acknowledges and agrees that the benefit of this
Guarantee and Indemnity shall be held by the Trustee on trust for the
Beneficiaries and the Guarantor hereby covenants that this Guarantee
and Indemnity shall remain in full force and effect and shall fully
secure all the Beneficiaries. The Guarantor may not assign or transfer
rights or obligations hereunder without the prior written consent of
the Trustee (which may be withheld).
10. MISCELLANEOUS
10.1 The Guarantor hereby agrees that at any time and from time to time,
upon the request of the Trustee, the Guarantor will promptly and duly
execute and deliver and/or procure the execution and delivery of any
and all such further instruments and documents as may be deemed
desirable by the Trustee for the purpose of obtaining for the Trustee
and the Beneficiaries the full benefits hereof and of the rights and
powers herein granted.
10.2 Any provisions contained herein prohibited by or unlawful or
unenforceable under
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any applicable law shall, to the extent required by such law, be
ineffective without modifying the remaining provisions hereof. Where
however the provisions of any such applicable law may be waived, they
are hereby waived by the Guarantor to the fullest extent permitted by
such law with the intent that this Guarantee shall be valid, binding
and enforceable in accordance with its terms.
10.3 Time is of the essence of this Guarantee but no failure or delay by the
Trustee or the Beneficiaries in exercising any right, power or
privilege hereunder and no course of dealing between any Security Party
and the Trustee or the Beneficiaries shall operate as a waiver thereof,
nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein are cumulative and not
exclusive of any rights or remedies which the Trustee and/or the
Beneficiaries would otherwise have. No notice to or demand on the
Guarantor shall entitle the Guarantor to any other or further notice or
demand in similar or other circumstances or constitute a waiver of the
rights of the Trustee or the Beneficiaries to any other or further
action in any circumstances without notice or demand.
11. NOTICES
11.1 Any demand or notice to be given hereunder shall be in writing and sent
by prepaid first class or airmail letter post or telex or facsimile or
delivered by hand addressed to the Guarantor as follows:-
Commodore Holdings Limited
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000-X
Xxxxxxxxx
Xx 00000
XXX
Attention Chief Financial Officer
Facsimile No: + 000 000 0000)
with a copy to:-
Xxxxxxxx X Xxxxxxx, P.A.
Broad and Xxxxxx
Miami Center - Suite 3000
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000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx
Xx 00000
XXX
Facsimile no. + 000 000 0000
or to such other person or address as the Guarantor may notify in
writing to the other party hereto.
11.2 Any such notice shall be deemed to have been validly given and received
on the date of despatch if sent by telex and five (5) days after having
been posted if sent by post.
12. GOVERNING LAW AND JURISDICTION
12.1 This Guarantee and all agreements entered into pursuant or supplemental
hereto shall be governed by and construed in accordance with English
law.
12.2 The Guarantor hereby Submits for the exclusive benefit of the Trustee
and the Beneficiaries to the jurisdiction of the English Courts and
appoints Consult Marine whose registered office is for the time being
at 00 Xxxxxx Xxxxx Xxxxxxxx, Xxxxxxxxxx Xxxxxx, Xxxxxx X0 0XX or such
other person as the Guarantor may with the prior written approval of
the Trustee from time to time appoint to be the attorney of the
Guarantor for the purpose of accepting service on behalf of the
Guarantor of any writ, notice, order, judgment or other legal process
with respect hereto or any matter arising hereout and agrees that
failure by any such process agent to give notice of such service of
process to the Guarantor shall not impair or affect the validity of
such service or of any judgment based thereon. The aforesaid submission
shall not limit the right of the Trustee and the Beneficiaries to
commence proceedings against the Guarantor in any jurisdiction they may
think fit or in two or more jurisdictions.
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IN WITNESS whereof this Guarantee has been executed as a deed the day and year
first before written.
SIGNED SEALED and DELIVERED )
as a DEED )
by COMMODORE HOLDINGS LIMITED )
acting by )
/s/ Xxxxxxx X. Xxxxxx )
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its duly appointed )
Chairman of the Board )
in the presence of:- )
