EXHIBIT 10.3(c)
COLLATERALISED LIMITED RECOURSE GUARANTEE
To: Xxxxxxx Xxxxx International ("MLI")
00 Xxxxxxxxxx Xxxx
X.X. Xxx 000
Xxxxxx XX0X 0XX
1 GUARANTEE
In consideration of entering into a facilities agreement (as amended and
supplemented from time to time, the "Facilities Agreement", which shall
include each transaction entered into and each document issued or given
pursuant to the Facilities Agreement) constituted by a letter dated 23rd
June 1998 from MLI, to Constellation Verwaltungs Gmbh & Co Beteiligungen KG
(the "Customer") and (where relevant) of MLI entering into a custodian
agreement (as amended and supplemented from time to time, the "Custodian
Agreement" and, together with the Facilities Agreement, the "Agreements")
with the Customer, and of MLI making available to the Customer the
facilities and services provided for in the Agreements, we, Colfax Capital
Corporation (the "Guarantor"), a corporation duly incorporated or organised
under the laws of and having our principal place of business at
,hereby unconditionally and irrevocably:
1.1 guarantee that, if for any reason the Customer does not pay any sum payable
by it under the Agreements by the time, on the date and otherwise in the
manner required by the Agreements, whether on the normal due date, on
acceleration or otherwise (together the "Guaranteed Liabilities"), the
Guaran tor will pay that Guaranteed Liability on demand by MLI and
1.2 as separate, independent and alternative stipulations, agree:
1.2.1 that any Guaranteed Liability which, although expressed to be
payable by the Customer under the Agreements, is for any reason
(whether or not now existing and whether or not now known or
becoming known to MLI not recoverable from the Guarantor on the
basis of a guarantee
shall nevertheless be recoverable from it as if it were the sole
principal debtor and shall be paid by it to MLI on demand and
1.2.2 as a primary obligation to indemnify each of MLI against any loss
suffered by it as a result of any Guaranteed Liability expressed to
be payable by the Customer under the Agreements not being paid by
the time, on the date and otherwise in the manner required by the
Agree ments or any Guaranteed Liability being or becoming void,
voidable or unenforceable for any reason (whether or not now
existing and whether or not now known or becoming known to MLI, the
amount of that loss being the amount expressed to be payable by the
Customer in respect of the relevant Guaranteed Liability
PROVIDED ALWAYS that, although this Guarantee applies to all Guaran xxxx
Liabilities, it is agreed that the amount actually recoverable from the
Guarantor under this Guarantee is limited to whichever proves to be the
lower of the following:
(i) an amount equal to the Guaranteed Liabilities and
(ii) an amount equal to the Guarantor Proceeds (as defined in Clause
4).
2 CHARGING PROVISIONS
2.1 The Guarantor, as continuing security for the due payment of the Guaranteed
Liabilities and with full title guarantee, hereby (1) pledges and charges
by way of first fixed legal mortgage (in priority to all other security
whatsoever, whether fixed or floating) in favour of MLI all the Guarantor's
right, title and interest in and to all Securities and all related
documents from time to time held by or for the account or to the order of
MLI (whether in its capacity as Custodian or otherwise) or in or credited
to the Guarantor Collateral Account and the claims represented thereby
(together, the "Guarantor Charged Securi ties") and (2) pledges and
charges in favour of MLI all the Guarantor's right, title and interest in
and to all monies, debts, claims, Securities and other property whatsoever
from time to time deposited with or held by or for the account or to the
order of or owed or owing by MLI and/or any other member of the Xxxxxxx
Xxxxx Group, in whatever capacity. The security created by or pursuant to
this Guarantee shall affect and include all dividends, distributions
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and interest on and other proceeds of the Guarantor Charged Securities or
other property hereby pledged or charged, whether capital or income, and
all property distributed, paid, accruing or offered at any time on, to, in
respect of or in substitution for, any of the Guarantor Charged Securities
or other property hereby pledged or charged, and all of the foregoing which
relate to the Guarantor Charged Securities shall be promptly paid or
delivered to MLI for credit to the Guarantor Collateral Account.
2.2 The Guarantor, as continuing security for the due payment of the Guaranteed
Liabilities and with full title guarantee, hereby charges by way of first
fixed legal mortgage (in priority to all other security whatsoever, whether
fixed or floating) in favour of MLI all monies (and all the Guarantor's
right, title and interest in and to such monies and the debt represented
thereby) from time to time standing to the credit of the Guarantor
Collateral Account, in whatever currency, and including any interest
accrued or accruing thereon.
2.3 None of the monies from time to time standing to the credit of the
Guarantor Collateral Account (nor the Guarantor's right, title and interest
in and to such monies) shall, during the continuance of the Facilities and
until the Guaranteed Liabilities have been duly and properly paid in full,
be capable of being withdrawn, assigned or otherwise disposed of or
encumbered except with MLI's prior written consent or as otherwise
specifically provided in this Guarantee. Any such consent of MLI (and any
payment whether with or without such consent) shall operate as a release of
the relevant monies and the provisions of this Guarantee shall continue to
apply to the Guarantor Collat eral Account and the monies from time to
time standing to the credit thereof.
2.4 The Guarantor hereby undertakes to MLI for itself that, at all times during
the continuance of the Facilities and until the Guaranteed Liabilities have
been properly and duly paid in full:
2.4.1 it will on demand duly pay any calls, subscription monies and/or
other monies payable on or in respect of any of the Guarantor
Charged Securities. If it does not do so, MLI may (but shall not be
obliged to) do so and, if MLI does so, the Guarantor shall on demand
indemnify MLI against such payment and
2.4.2 it will not (nor will it agree, conditionally or unconditionally,
to) create or have outstanding any call option, pledge, assignment,
trans-
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fer, hypothecation, mortgage, charge, encumbrance, security interest
or lien on or affecting any of the Guarantor Charged Securities
(except as contemplated by this Guarantee or with MLI's prior
written consent).
MLI acknowledges that the Guarantor may request consent to options,
assignments and transfers (including agreements therefor) on or of
Guarantor Charged Securities in the normal course of its trading operations
and MLI will consider any such request in good faith.
2.5 Without prejudice to Clause 2.3 or 4.2, MLI is authorised to debit the Guar
anteed Liabilities then due and owing to any account of the Guarantor with
MLI and MLI is authorised to combine or consolidate such account with the
Guarantor Collateral Account and/or set off, transfer or apply any monies
standing to the credit of the Guarantor Collateral Account in or towards
satisfaction of any of the Guaranteed Liabilities.
2.6 The security created by or pursuant to this Guarantee shall be a continuing
security notwithstanding any intermediate payment or settlement of account
and, without prejudice to the generality of the foregoing, shall continue
in full force and effect until MLI executes a formal release of such
security, which it may do in whole or from time to time in part, and any
withdrawal or other disposal of any of the property subject to the security
created by or pursuant to this Guarantee shall operate as a release of such
property, and the provi sions of this Guarantee shall continue to apply to
the remainder thereof. The security created by or pursuant to this
Guarantee shall be in addition to and shall not prejudice any other
security, guarantee, indemnity, right or remedy of whatever nature which
MLI may now or at any time have in respect of any of the Guaranteed
Liabilities.
2.7 In this Guarantee:
"CUSTODIAN" means such person (including MLI or any other member of the
Xxxxxxx Xxxxx Group) as may be notified by MLI to the Guarantor from time
to time for purposes of this Guarantee
"GUARANTOR COLLATERAL" means all Securities, including any certificates and
documents of or evidencing title to the same (and the claim represented
thereby), and cash balances (and the debt represented thereby) in or
credited
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to the Guarantor Collateral Account all right, title and interest in and to
which are, to the satisfaction of MLI, subject to the security created by
or pursuant to this Guarantee
"GUARANTOR COLLATERAL ACCOUNT" means the one or more accounts, having such
designations as MLI may determine, opened or to be opened by MLI pursuant
to, or used for the purposes of, this Guarantee for the Guarantor with the
Custodian or any other person (including any other member of the Xxxxxxx
Xxxxx Group) chosen by MLI in respect of Guarantor Collateral, all such
Guarantor Collateral Accounts to be maintained under the complete
discretion of MLI.
Headings shall be ignored in construing this Guarantee.
3 GUARANTOR COLLATERAL
3.1 The Guarantor, at its own expense, will execute or cause to be executed all
such documents, and will do or cause to be done all such things, which are
reasonably requested by MLI (1) to enable MLI to enjoy, exercise or enforce
its rights as a secured party under this Guarantee and (2) to evidence, and
to establish and maintain the perfection and first priority of, MLI's
security interest in the Guarantor Charged Securities and the Guarantor
Collateral Account (and the monies for the time being standing to the
credit thereof and the debt represented thereby) and the perfection of
MLI's security interest in the other property hereby pledged or charged.
Without limiting the generality of the foregoing, the Guarantor, at its own
expense, will execute and give or file, or both, all notices and documents
(including, but not limited to, notice of the security created by or
pursuant to this Guarantee) in such manner, to such persons and at such
places as may be reasonably requested by MLI to estab lish and maintain
the perfection and, as appropriate, first priority of MLI's said security
interest. The Guarantor irrevocably and by way of security authorises MLI,
if the Guarantor does not do so, to take any step contemplated by this
Clause 3.1 (but MLI shall have no obligation to do so).
3.2 Except as otherwise agreed by the Guarantor and MLI, MLI shall at all times
while any Guarantor Collateral remains credited to the Guarantor Collateral
Account use reasonable care in connection therewith but shall not thereby
be responsible for the value of the Guarantor Collateral or the other
property hereby pledged or charged or, except to the extent otherwise
specifically
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agreed, for the collection or payment of any dividends, distributions,
interest or other receipts in respect of Guarantor Charged Securities or
other property hereby pledged or charged nor to ensure the taking up of any
securities, rights, monies or other property distributed, paid, accruing or
offered at any time on, to, in respect of or in substitution for any of the
Guarantor Collateral or other property hereby pledged or charged.
3.3 The Guarantor hereby agrees that it will, immediately upon MLI at any time
making a request or delivering to the Guarantor (whether under this Guaran
tee or in its capacity as Custodian under this Guarantee or under the Custo
xxxx Agreement) a statement reflecting a shortfall in the margin referred
to below, deposit additional Securities acceptable to MLI and/or monies
with MLI for the credit of the Guarantor Collateral Account as MLI may
require in order to ensure that the aggregate of the market value of the
Guarantor Charged Securities, the monies standing to the credit of the
Guarantor Collat eral Account and any other Securities and monies (whether
provided by the Customer or any other person) will at all times exceed by a
margin satisfactory to MLI the Guaranteed Liabilities (all as determined by
MLI).
3.4 Until such time as an Event of Default as set out in Clause 10 of the
Facility Agreement (each an "Event of Default") occurs, and without
prejudice to any other requirements of MLI, the Guarantor may at any time
request MLI to release and reconvey to the Guarantor (or as it may direct)
Guarantor Charged Securities and/or monies standing to the credit of the
Guarantor Collateral Account and, provided that the market value of the
Guarantor Charged Securities, the monies standing to the credit of the
Guarantor Collat eral Account and any other Securities and monies (whether
provided by the Customer or any other person) securing the Guaranteed
Liabilities to MLI's satisfaction (all as determined by MLI) would after
any such release or reconveyance exceed the Guaranteed Liabilities by a
margin satisfactory to MLI, MLI will give effect to such request.
4 ENFORCEMENT
If the Guarantor fails or is unable to ML's satisfaction duly to comply
with any demand under Clause 1:
4.1 MLI may at any time thereafter, without notice to the Guarantor and without
prejudice to any other right or remedy, dispose or procure the disposal, by
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sale or otherwise, of all or from time to time part of the Guarantor
Charged Securities or other property hereby pledged or charged or otherwise
realise or procure the realisation of the same, in such manner and at such
price or prices (whether payable or deliverable immediately, on a deferred
basis or by instal ments) without being responsible for any loss or
diminution in price, as it may think fit, close out or liquidate any
option, future, long position or short position which the Guarantor may
have (by sale, purchase or otherwise howsoever), take possession of all or
from time to time of part of the Guaran tor Charged Securities or other
property hereby pledged or charged and proceed forthwith to sell, assign,
give options to purchase, contract to sell or otherwise dispose of and
deliver the Guarantor Charged Securities or other property hereby pledged
or charged or any part thereof in one or more parts at public or private
sale at any exchange, broker's board or at any of MLI's offices or
elsewhere at such prices and on such terms as MLI deems appropri ate, all
without demand for performance, advertisement or other notice of any kind,
and apply the proceeds thereof and all cash balances in the Guarantor
Collateral Account or otherwise hereby pledged or charged (together, the
"Guarantor Proceeds") as follows:
4.1.1 first, in or towards payment of all amounts (including costs,
expenses, commissions and taxes) arising as a result thereof
4.1.2 secondly, in or towards payment and satisfaction of the Guaranteed
Liabilities in such order and manner as MLI may determine
4.1.3 thirdly, in payment of any surplus to the Guarantor or other person
entitled thereto.
Provided always that MLI shall not be obliged to apply any part of such
proceeds in accordance with sub-clause 4.1.3 until all the Guaranteed
Liabili ties (including future and contingent Guaranteed Liabilities) have
been dis charged to the satisfaction of MLI and until MLI has exercised
all set-offs and other rights which it is expressed to be entitled to make
or exercise under this Guarantee and/or the Facilities Agreement. Until
such time the proceeds shall be held in or credited to the Guarantor
Collateral Account or such other account with MLI as MLI may (in its
absolute discretion) decide.
Upon disposal of any Guarantor Charged Securities or other property hereby
pledged or charged made or purported to be made under the provisions of
this
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Clause, a certificate of any officer or employee of MLI that a default
has occurred and that the power of disposal has become exercisable shall be
conclusive evidence of that fact in favour of any purchaser or other person
to whom any of the Guarantor Charged Securities or other property hereby
pledged or charged may be transferred under such disposal and the Guarantor
agrees to indemnify MLI (on a full indemnity basis) against any claim which
may be made against it by such purchaser or person by reason of any defect
in title to such Guarantor Charged Securities or other property hereby
pledged or charged unless such claim has arisen as a result of the
negligence or wilful misconduct of MLI
4.2 In addition to any general lien, right to combine or consolidate accounts,
set-off or similar right to which it may be entitled at law, by contract,
or other wise, MLI may at any time, without notice to the Guarantor, debit
any of the Guaranteed Liabilities to any account of the Guarantor with
either of them (including without limitation the Guarantor Collateral
Account) and combine or consolidate all or any one or more of the
Guarantor's then existing ac counts (including without limitation the
Guarantor Collateral Account) with, and liabilities of the Guarantor to,
it and/or set off, transfer or apply any sum(s) standing to the credit of
any one or more of the Guarantor's accounts with it (including without
limitation the Guarantor Collateral Account) in or towards satisfaction of
any of the liabilities of the Guarantor to MLI, whether present or future,
actual or contingent
4.3 MLI may do all such other acts and things as it may consider necessary or
desirable in connection with the realisation of the security created by or
pursuant to this Guarantee.
MLI shall have authority to purchase one currency with another for purposes
of this Clause 4.
5 GUARANTOR AS PRINCIPAL DEBTOR
As between the Guarantor and MLI but without affecting the Customer's
obligations, the Guarantor shall be liable under this Guarantee as if it
were the sole principal debtor and not merely a surety. Accordingly, it
shall not be discharged, nor shall its liability be affected, by anything
which would not discharge it or affect its liability if it were the sole
principal debtor (including (1) any time, indulgence, concession, waiver or
consent at any time given to
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the Customer or any other person, (2) any amendment or supplement to the
Agreements or to any other security or guarantee, (3) the making or absence
of any demand on the Customer or any other person for payment, (4) the
enforcement or absence of enforcement of the Agreements or of any other
security or guarantee, (5) the taking, existence or release of any other
security or guarantee, (6) the winding-up or dissolution of the Customer or
any other person or (7) the illegality, invalidity or unenforceability of
or any defect in any provision of the Agreements or any of the Customer's
obligations under them).
6 GUARANTEE CONTINUING
The Guarantor's obligations under this Guarantee are and will remain in
full force and effect by way of continuing security until the Facilities
have termi nated and MLI has irrevocably received or recovered all sums
payable under the Agreements. Furthermore, those obligations of the
Guarantor are addi tional to, and not instead of, any other security or
guarantee at any time existing in favour of MLI, whether from the Guarantor
or otherwise, and may be enforced without first having recourse to the
Customer, any other person or any other security or guarantee. The
Guarantor irrevocably waives all notices and (except as required by Clause
1) demands of any kind.
7 ACCOUNTS
If this Guarantee ceases for any reason to be binding on the Guarantor as a
continuing security in relation to the Customer, or if MLI becomes aware of
any other mortgage, charge, pledge, lien or other encumbrance or security
of any kind on or over the Guarantor Collateral or any part thereof, then
MLI may break any account or accounts of the Customer with it and open a
new account for the Customer. If that is done, no monies then or
subsequently credited to such new account shall have the effect of reducing
the amount due to MLI on the original account. If that is not done, MLI
shall still be treated as if it had done so at the time of such cessation
or, as the case may be, of the creation of the other mortgage, charge,
pledge, lien or other encumbrance or security, and as if all payments then
or subsequently made by or on behalf of the Customer to it had been
credited to such new account with the same result.
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8 EXERCISE OF GUARANTOR'S RIGHTS
So long as the Facilities are outstanding or any sum remains payable under
the Agreements:
8.1 any right of the Guarantor, by reason of the performance of any of its
obliga tions under this Guarantee, to be indemnified by the Customer or to
take the benefit of or enforce any other security or guarantee shall be
exercised and enforced only in such manner and on such terms as MLI may
require and
8.2 any amount received or recovered by the Guarantor (a) as a result of any
exercise of any such right or (b) in the winding-up or dissolution of the
Customer shall be held in trust for MLI and immediately paid to MLI.
9 AVOIDANCE OF PAYMENTS
The Guarantor shall on demand by MLI indemnify MLI against any funding or
other cost, loss, expense or liability (including loss of profit) sustained
or incurred by it as a result of its being required for any reason
(including any bankruptcy, insolvency, winding-up, dissolution or similar
law of any jurisdic tion) to refund all or part of any amount received or
recovered by it in respect of any Guaranteed Liability and shall in any
event pay to it on demand by MLI the amount so refunded by it.
10 SUSPENSE ACCOUNTS
For the purpose of enabling MLI to maximise its recoveries in any actual or
potential winding-up or dissolution, any amount received or recovered by
MLI (otherwise than as a result of a payment to it by the Customer) in
respect of any Guaranteed Liability may be placed by the recipient in a
suspense account. That amount may be kept there unless and until MLI is
satisfied that it is not obliged to pay any further sums under the
Agreements and that it has irrevocably received or recovered all sums
payable to it under the Agreements.
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11 CERTIFICATES CONCLUSIVE
The certificate of an officer or employee of MLI as to any amount payable
to MLI under this Guarantee shall, save for manifest error, be final,
conclusive and binding on the Guarantor.
12 PAYMENTS, TAXES
All payments by the Guarantor shall be made free and clear of any
restrictions or conditions, without set-off or counterclaim, and free and
clear of, and (subject as hereinafter provided) without deduction for, any
taxes, deductions or withholdings of any nature. If any deduction or
withholding on account of any such tax or other amount is required by law
to be made from any pay ment, the Guarantor shall pay in the same manner
and at the same time such additional amounts as will result in receipt by
MLI free from any liability in respect of any such deduction or
withholding, of such amount as would have been received by it had no such
deduction or withholding been required to be made.
13 CURRENCY
The Guarantor shall pay all amounts hereby guaranteed to such account as
MLI may notify to the Guarantor and in the same currency and funds as such
amounts are payable by the Customer under the Agreements (the "Currency of
Account"). Any amount received or recovered by MLI in a currency other
than the appropriate Currency of Account (whether as a result of, or of the
enforcement of, a judgment or order of any court of any jurisdiction, in
the winding-up or dissolution of the Customer, the Guarantor, or otherwise)
in respect of any sum due to it from the Guarantor under this Guarantee
shall only constitute a discharge to the Guarantor to the extent of the
amount in that Currency of Account which MLI is able, in accordance with
its usual practice, to purchase with the amount so received or recovered in
that other currency on the date of that receipt or recovery (or, if it is
not practicable to make that purchase on that date, on the first date on
which it is practicable to do so). If that amount in that Currency of
Account is less than the amount expressed to be due to MLI under this
Guarantee, the Guarantor shall indem nify it against any loss sustained by
it as a result. In any event, the Guarantor shall indemnify it against the
cost of making any such purchase.
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14 REPRESENTATIONS AND WARRANTIES
The Guarantor represents and warrants to and for the benefit of each of
MLI that:
14.1 it is a corporation or limited partnership duly organised or incorporated
and validly existing under the laws of the jurisdiction of its
establishment and has the power and authority to own its assets and to
conduct the business which it conducts
14.2 its entry into and/or performance of or compliance with its obligations
under this Guarantee do not and will not violate or exceed any
guaranteeing, charg ing or other powers or restrictions granted or imposed
under any law to which it is subject, its constitutional documents or any
agreement to which it is a party or which is binding on it or its assets
14.3 all acts, conditions and things required to be done, fulfilled and
performed in order to enable it lawfully to execute and perform its
obligations under this Guarantee and to ensure that its obligations are
legal, valid and binding have been done, fulfilled and performed
14.4 it has the power to enter into and perform and comply with its obligations
under this Guarantee and has taken all necessary action to authorise such
execution and performance
14.5 it will obtain and maintain in effect and comply with the terms of all
necessary consents, registrations and the like of or with any governmental
or other regulatory body or authority applicable to this Guarantee
14.6 its obligations under this Guarantee are binding and enforceable at law
14.7 it is not in default under any agreement to which it is a party or by
which it or its assets is or are bound and no litigation, arbitration or
administrative proceedings are current or pending, which default,
litigation, arbitration or administrative proceedings are material in the
context of this Guarantee
14.8 it is not necessary or advisable in order to ensure the validity,
effectiveness, performance or enforceability of this Guarantee or the
perfection of the
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security created by or pursuant to this Guarantee that any document be
filed, registered or recorded in any public office or elsewhere
14.9 except by this Guarantee, it has not assigned, transferred or otherwise
dis posed of the Guarantor Collateral (or its rights, title and interest
to and in the Guarantor Collateral), either in whole or in part, nor
agreed to do so, and will not at any time do so or agree to do so, and it
will at all times be the sole beneficial owner of and fully guarantee
title to all Guarantor Collateral which is now or may at any time
hereafter become subject to the security created by or pursuant to this
Guarantee
14.10 except for the security created by or pursuant to this Guarantee, no
mortgage, charge, pledge, lien or other encumbrance or security of any
kind exists on or over the Guarantor Collateral (or its right, title and
interest in and to the Guarantor Collateral), either in whole or in part,
nor has it agreed to create any such other security nor will it at any
time do so or agree to do so and
14.11 each of the above representations and warranties will be correct and
complied with in all respects during the continuance of the Facilities and
so long as any sum remains payable under the Agreements, as if repeated
then by reference to the then existing circumstances.
15 INFORMATION
During the continuance of the Facilities and for so long as any sum remains
payable under the Agreements, the Guarantor shall furnish to MLI such
financial and other information as to its affairs and, as the case may be,
its subsidiaries as MLI may reasonably request from time to time.
16 UTILISATION OF COLLATERAL BY MLI
16.1 The Guarantor hereby authorises MLI from time to time to utilise
Securities comprised in the Guarantor Collateral for MLI's own purposes or
the pur poses of any third party. To enable MLI so to utilise Securities
comprised in the Guarantor Collateral the following provisions of this
Clause 16 shall have effect.
16.2 Where MLI wishes to use Securities comprised in the Guarantor Collateral
for any purpose the Securities in question shall be simultaneously
released
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from the security created by or pursuant to this Guarantee and transferred
by the Guarantor to MLI in accordance with the provisions of this Clause
16.2. The Guarantor authorises MLI to take such steps to deliver or credit
the relevant Securities to MLI (or, as appropriate, the third party in
question) and execute such instruments of transfer or the like as MLI
considers necessary or xxxxx able to vest the full legal and beneficial
right, title and interest in and to those Securities in MLI (or, as the
case may be, that third party).
16.3 Where Securities have been utilised by MLI for any purpose and those
Securities cease to be required for that purpose, MLI shall thereupon
return or procure redelivery of those Securities or of Equivalent
Securities to the Guarantor by redelivering or crediting those Securities
or Equivalent Securi ties to the Collateral Account, whereupon those
Securities or Equivalent Securities shall automatically be subject to the
security created by or pursuant to this Guarantee. All returns and
redeliveries of Securities or Equivalent Securities must be made together
with any appropriate instruments of transfer or the like, and so that all
right, title and interest in and to those Securities or Equivalent
Securities shall vest in the Guarantor, free from all liens, charges and
encumbrances, other than the security created by or pursuant to this
Guarantee.
16.4 MLI shall be obliged to return or procure redelivery of Equivalent
Securities not necessarily the original Securities and it is agreed in
relation to legal proceedings that neither party will seek specific
performance of the other's obligation to deliver, redeliver, credit or
return Securities or Equivalent Securities, but without prejudice to any
other rights it may have.
16.5 Where any Securities have been transferred by the Guarantor under this
Clause 16 and have not been returned or redelivered to the Guarantor
before an applicable income payment date or record date in respect of
those Securi ties, MLI shall, on the date of payment of any dividend,
interest or other distribution on or with respect to the Securities in
question or on such other date as MLI and the Guarantor may agree, pay to
the Guarantor such amount in relation to such dividend, interest or
distribution and deliver such tax vouchers as may be available or
appropriate as shall ensure that the Guarantor is placed in the same
after-tax position (but ignoring for these purposes any tax by reference
to the general income or profits of the Guarantor or other similar
reference) as if it had been the Holder of the relevant Securities at all
relevant times.
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16.6 If on the due date for return or redelivery thereof MLI shall for any
reason be unable to return or redeliver any Securities or Equivalent
Securities in connec tion with any transfer of Securities to MLI under
this Clause 16, MLI's obligation to return or redeliver those Securities
or Equivalent Securities shall be replaced by an obligation to pay to the
Guarantor an amount in cash equal to the market value of those Securities
or Equivalent Securities derived from rates offered by a dealer reasonably
chosen by MLI. Any such amount shall be paid or credited to the Guarantor
Collateral Account.
16.7 The Guarantor shall, subject as otherwise provided in this Guarantee and
in particular to the security created by or pursuant to this Guarantee,
have all the incidents of ownership of Securities transferred under this
Clause 16, includ ing the right to transfer them to others, and such
Securities shall continue to be taken into account for the purpose of
Clause 3.3.
16.8 For the purposes of this Clause 16:
"EQUIVALENT SECURITIES" or "SECURITIES EQUIVALENT TO" means securities of
an identical type, nominal value, description and amount to particular
Securities the subject of a utilisation under this Clause 16 (including
any certificates and other documents of or evidencing title to the same).
If and to the extent that such Securities are partly paid and a call is
made or have been converted, subdivided, consolidated, redeemed, made the
subject of a takeover, merger, capitalisation issue, rights issue or
similar, the Equivalent Securities shall be as accordingly determined by
MLI
"HOLDER" in relation to registered securities means the person whose name
or whose nominee is shown on the relevant register of ownership and in
relation to bearer Securities means the bearer thereof.
17 ASSIGNMENTS
MLI may at any time assign all or part of its rights under this Guarantee.
MLI shall after any such assignment and to the extent (if at all)
appropriate or required hold the security created by or pursuant to this
Guarantee for itself and each assignee. Any reference in this Guarantee to
MLI shall be construed accordingly and shall also include their respective
successors. Any such assignee shall be entitled to the full benefit of
this Guarantee to the same
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extent as if it were an original party in respect of the rights assigned
to it. MLI may disclose to each other and to any potential assignee or any
other person who has entered or proposes to enter into contractual
arrangements with it in relation to or concerning the Agreements or this
Guarantee such information about the Customer, the Guarantor, the
Agreements and this Guarantee as it may think fit.
18 [LEFT BLANK INTENTIONALLY]
19 THE AGREEMENTS
19.1 Terms defined in the Agreements (and not defined in this Guarantee) shall
have the same meanings in this Guarantee.
19.2 This Guarantee is a Performance Assurance Agreement for the purposes of
the Facilities Agreement.
20 PARTIES
This Guarantee shall not be discharged nor shall the liability of the
Guarantor be affected by any amalgamation or merger of MLI, or the
Guarantor with any other company, or any reconstruction or change in the
constitution of MLI, or the Guarantor, or any change in the name, style or
constitution of MLI, or the Guarantor or, as the case may be, in the
persons who from time to time constitute the general and/or limited
partners in the Guarantor, and this Guarantee shall be binding on the
Guarantor and on all such persons.
21 COMMUNICATIONS
Any demand or other notice under this Guarantee shall be made in writing
by MLI acting by one of its officers or employees and may be sent by post
or hand delivered to the address of the Guarantor specified below, or sent
by facsimile to the facsimile number specified below, or in each case to
such other address and/or facsimile number as the Guarantor has from time
to time notified to MLI in writing. Notices shall be deemed to have been
received seven days after being posted and immediately in the case of hand
delivered or facsimile communication.
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22 REMEDIES AND WAIVERS
No failure by MLI to exercise, and no delay by MLI in exercising any right
or remedy will operate as a waiver thereof, nor will any single or partial
exercise of any such right or remedy preclude any other or further exercise
thereof or the exercise of any other right or remedy. The authority to
debit, charge and pledge and the right of set-off and other rights and
remedies provided in this Guarantee are separate, independent and
cumulative and not exclusive of any rights or remedies (including any other
security, right of set-off, lien, right to combine or consolidate accounts
or similar right) to which MLI is at any time entitled anywhere, whether by
operation of law or otherwise.
23 PARTIAL INVALIDITY
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 Guaran tee, nor the legality, validity or
enforceability of such provisions under the law of any other jurisdiction
shall in any way be affected or impaired thereby. If and to the extent
that the security expressed to be created by or pursuant to this Guarantee
is at any time and for any reason not effective as a fixed charge, it shall
instead take effect as a floating charge.
24 COUNTERPART EXECUTION
This Guarantee may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument.
25 GOVERNING LAW
This Guarantee shall be governed by and construed in accordance with
English law.
26 PROCEEDINGS
In relation to any legal action or proceedings arising out of or in
connection with this Guarantee ("PROCEEDINGS") the Guarantor, for the
benefit of MLI, irrevocably submits to the jurisdiction of the courts of
England and any New York State or United States Federal court sitting in
New York City, and
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waives any objection to Proceedings in such courts on
the grounds of venue or on the grounds that the Proceedings have been
brought in an inconvenient forum. Those submissions shall not affect MLI's
right to take Proceedings in any other court of competent jurisdiction, nor
shall the taking of Proceedings in any court of competent jurisdiction
preclude MLI from taking Proceedings in any other court of competent
jurisdiction (whether concurrently or not).
Dated
COLFAX CAPITAL CORPORATION
By:
Address:
Facsimile No.:
XXXXXXX XXXXX INTERNATIONAL
By:
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