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EXHIBIT 10.31.1
DATED THIS 1ST DAY OF DECEMBER,1996
BETWEEN
ANTAH DRILLING SDN. BHD. (Company No. 6831-D)
As Borrower
AND
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED
(OFF-SHORE BANKING UNIT, LABUAN) (Licence No. 910004C)
As Lender
***************************************
SUPPLEMENTAL AGREEMENT
(for principal sum of USD12,971,430.53)
****************************************
XXXXXX XXXXXXXX & CO.,
ADVOCATES & SOLICITORS,
XX. 0, XXXXXXX,
00000 XXXXX XXXXXX
AND AT
16TH FLOOR,
WISMA HAMZAH-XXXXX XXXX,
XX.0 XXXXX XXXXXX,
00000 XXXXX XXXXXX
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THIS SUPPLEMENTAL AGREEMENT is made the 1st day of December, 1996
BETWEEN:-
(1) ANTAH DRILLING SDN. BHD. (Company No. 6831-D) a company
incorporated in Malaysia with its registered office at 9th Floor,
Bangunan BNH, Off Xxxxx Xxxxxxxx, Xxxxxxxxx Xxxxxxx, 00000 Xxxxx
Xxxxxx (hereinafter called "the Borrower") of the one part;
AND
(2) THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED, (Licence
No. 910004C) a corporation constituted by the Hongkong and
Shanghai Bank Ordinance 1866 and continued by The Hongkong and
Shanghai Banking Corporation Limited Ordinance, Chapter 70 of the
Laws of Hong Kong and having its Off-Shore Banking Unit in Labuan
at Level 11(D), Xxxx Xxxxxx, Xxxxx Xxxxxxxxx Xxxx, Xxxxxx, Xxxxx
Xxxxxxx, 00000 Wilayah Persekutuan, Labuan, Malaysia (hereinafter
called "the Bank") of the other part.
WHEREAS:-
---------
1. By a Loan Agreement dated the 16th day of October, 1995
(hereinafter called "the Loan Agreement") made between the Bank
of the one part and the Borrower of the other part, the Bank
agreed to grant to the Borrower banking facilities up to the
principal sum of United States Dollars Twenty three million five
hundred thousand (USD23,500,000/-) (hereinafter called "the
Loan").
2. As security for the Loan the Borrower executed in favour of the
Bank the following:-
(a) the Loan Agreement;
(b) a Debenture dated the 16th day of October, 1995 creating a third
fixed charge (hereinafter called "the Third Charge") over the
Borrower's two (2) platform drilling/workover Rigs namely Rig 450
and Rig 488 (a replacement of Rig 448) more particularly
described in Schedule A attached to the said Debenture together
with all ancillary equipment, spare and replacement parts thereto
(hereinafter collectively called "the Property");
(c) an Assignment dated the 14th day of December, 1995 over the
Borrower's rights to payment under Contract No. 00285866 dated
the 30th day of November, 1995 made between ESSO AUSTRALIA LTD.,
of the one part and the Borrower of the other part (hereinafter
called "the Assignment");
(d) a Corporate Guarantee executed by Antah Holdings Berhad dated the
16th day of October, 1995
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(hereinafter called "the Corporate Guarantee");
(e) an Agreement to Guarantee executed by Pool Company dated the 16th
day of October, 1995 (hereinafter called "the Agreement to
Guarantee");
(hereinafter collectively called "the Security Documents").
3. The sum outstanding under the Loan as of the date of this Agreement
amounts to United States Dollars Twelve million nine hundred and seventy one
thousand four hundred and thirty and sen fifty three (USD12,971,430.53)
(hereinafter called "the Outstanding Loan").
4. At the request of the Borrower the Bank has agreed to revise the
security arrangements only in respect of the Loan in the terms set out in this
Supplemental Agreement.
5. This Agreement is supplemental to the Loan Agreement. NOW THIS
SUPPLEMENTAL AGREEMENT WITNESSETH as follows:-
REVISION OF SECURITY
--------------------
1) In consideration of the covenants and the mutual benefits to be
derived therefrom by the parties hereto, the Bank hereby agrees
at the request of the Borrower to revise the security
arrangements in respect of the Loan under the Loan Agreement in
the manner hereinafter set out.
2) RELEASE OF ANTAH HOLDINGS BERHAD FROM THE CORPORATE GUARANTEE AND
SUBSTITUTION WITH POOL COMPANY'S CORPORATE GUARANTEE
It is hereby agreed between the parties hereto that Antah
Holdings Berhad as Corporate Guarantor under the Corporate
Guarantee shall be released from its guarantee thereunder upon
execution by Pool Company a Corporate Guarantee in the format
annexed hereto (hereinafter called "the Guarantee") in favour of
the Bank guaranteeing the repayment to the Bank of the
Outstanding Loan of the principal sum of United States Dollars
Twelve million nine hundred and seventy one thousand four hundred
and thirty and sen fifty three (USD12,971,430.53) together with
interest thereon and all other moneys due to the Bank from the
Borrower under the Loan Agreement. Upon execution of the
Guarantee, the Agreement to Guarantee shall be deemed terminated
and be of no further force or effect. The Outstanding Loan shall
as from the date of execution of the Guarantee be secured by:-
(a) the Guarantee;
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(b) the Third Charge; and
(c) the Assignment.
INTERPRETATION
--------------
3) Except where the context otherwise requires, or unless this
Supplemental Agreement otherwise provides words and expressions
defined in the Loan Agreement when used or referred to in this
Supplemental Agreement shall have the same meaning as that
provided for in the Loan Agreement. In the event of conflict
between the provisions of the Loan Agreement and this
Supplemental Agreement the provisions of this Supplemental
Agreement shall prevail for the purpose of enforcement and
application hereof:-
"the Loan" The sum of United States Dollars Twelve
million nine hundred and seventy one
thousand four hundred and thirty and sen
fifty three (USD12,971,430.53) being the
Outstanding Loan.
"Guarantee" The guarantee executed by Pool Company in
favour of the Bank guaranteeing the
Outstanding Loan together with interest
thereon and all other moneys due to the Bank
from the Borrower in the format annexed
hereto.
"Letter of Offer" The Letter of Offer dated the 26th day of
October, 1996 addressed to the Borrower
setting out the terms and conditions of the
revised security arrangements, a copy of
which is annexed hereto.
"Security Documents" collectively the Loan Agreement, this
Supplemental Agreement, the Third Charge,
the Assignment and the Guarantee.
AMENDMENTS TO THE LOAN AGREEMENT
--------------------------------
4) All references to the words "this Agreement" in the Loan
Agreement shall be substituted with the words "this Agreement
and/or the Supplemental Agreement dated the 1st day of December,
1996." All references to the Agreement to Guarantee shall be
deleted and be no longer applicable.
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FURTHER CONDITIONS PRECEDENT
----------------------------
5) The obligation hereunder of the Bank in connection with the revised
facility is subject to the fulfilment in the manner satisfactory to the Bank of
the following conditions:-
(a) A certified true copy of the Borrower's Board of Directors'
Resolution authorising the acceptance of the revised facilities
and the execution of all documents pursuant thereto in accordance
with its Memorandum and Articles of Association;
(b) A certified true copy of the Guarantor's Board of Directors'
Resolution authorising the execution of the Guarantee in
accordance with its Memorandum and Articles of Association;
(c) This Agreement and the Guarantee shall have been executed and
stamped.
FURTHER PROVISIONS RELATING TO THE LOAN
---------------------------------------
6) Letter of Offer
---------------
It is hereby expressly agreed by the parties hereto that all the terms
and conditions in the Bank's Letter of Offer dated the 26th day of
October, 1996 with respect to the Security Documents shall be deemed
incorporated herein.
PRINCIPAL DOCUMENTS REMAIN IN FORCE
-----------------------------------
7) Save and except for the variations herein contained and any
consequential amendments as may be necessary, all the terms and
conditions of the Security Documents shall continue to be in full force
and effect.
CONTINUING SECURITY
-------------------
8) The Borrower and Pool Company hereby declare and agree that the
respective security afforded by them to the Bank pursuant to the
Security Documents and hereunder shall continue to be a continuing
security for and as the case may be, be charged in the manner specified
therein with the payment to the Bank of the Outstanding Loan, interest
thereon, fees and all other sums and costs, charges and expenses
covenanted to be paid by the Borrower under the Loan Agreement and this
Supplemental Agreement.
DECLARATION
-----------
9) IT IS HEREBY AGREED AND DECLARED that this Agreement is supplemental to
the Loan Agreement.
IN WITNESS WHEREOF the parties hereto have hereunto set
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their seal and hand the day and year first above written.
The Borrower
------------
ANTAH DRILLING SDN. BHD. (Company No. 6831-D)
Address for Notices: Admin. Building, Block C,
Third Floor, Door Xx. 00,
Xxxxxxx Xxxxxx Xxxx,
Xxxxxxxxxx
Xxxx Xxxxxxxx.
Telephone Number: 00-0-000-0000
Facsimile Number: 00-0-000-0000
The Common Seal of )
ANTAH DRILLING SDN. )
BHD. (Company No. 6831-D) )
was hereunto affixed in )
the presence of:- )
/s/ XXXXXXX X. XXXXXX /s/ YAM TUNKU IMRAN IBNI TUANKU JA'AFAR
--------------------- ----------------------------------------
Director Director/Secretary
The Bank
--------
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED
(Licence No. 910004C)
Address for Notices: 0, Xxxxx Xxxxxxx,
00000 Xxxxxx,
Xxxxxxxx.
Telex Number: 85014
Answerback: HSBLBU MA
Facsimile Number: 087-417169
SIGNED by )
for and on behalf of )
THE HONGKONG AND SHANGHAI )
BANKING CORPORATION ) /s/ XXXXX XXXXX FATT
LIMITED (Licence No. )
910004C) in the presence )
of:- )
This is the execution page of the Supplemental Agreement made
between Antah Drilling Sdn. Bhd. (Company No. 6831-D) as Borrower of the
one part and The Hongkong And Shanghai Banking Corporation Limited,
(Licence No. 910004C) as the Bank of the other part.
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DATED THIS 1ST DAY OF DECEMBER 1996
BETWEEN
THE HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED
(OFFSHORE BANKING UNIT, LABUAN) (Licence No. 910004C)
AND
POOL COMPANY
*************************************
GUARANTEE
(for principal sum of USD12,971,430.53)
*************************************
MESSRS. XXXXXX XXXXXXXX & CO.,
XXXXXX XXXXXXXX & CO.,
ADVOCATES & XXXXXXXXXX,
XX. 0 XXXXXXX,
00000 XXXXX XXXXXX.
AND AT
16TH FLOOR,
WISMA HAMZAH-XXXXX XXXX,
XX. 0 XXXXX XXXXXX,
00000 XXXXX XXXXXX.
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THIS AGREEMENT is made the 1st day of December, 1996, between THE
HONGKONG AND SHANGHAI BANKING CORPORATION LIMITED, (Licence No. 910004C) a
corporation constituted by the Hongkong and Shanghai Bank Ordinance 1866 and
continued by The Hongkong and Shanghai Banking Corporation Limited Ordinance,
Chapter 70 of the Laws of Hong Kong and having its Off-Shore Banking Unit in
Labuan at Level 11(D), Xxxx Xxxxxx, Xxxxx Xxxxxxxxx Xxxx, Xxxxxx, Xxxxx
Xxxxxxx, 00000 Wilayah Persekutuan, Labuan, Malaysia (hereinafter referred to
as "the Bank") of the one part and POOL COMPANY of 00000 Xxxxxxxx Xxxxxx,
Xxxxxxx, Xxxxx 00000, Xxxxxx Xxxxxx of America (hereinafter referred to as "the
Guarantor") of the other part.
(A) WHEREAS ANTAH DRILLING SDN. BHD. (Company No. 6831-D) is a company
incorporated in Malaysia with its registered office at 9th Floor, Bangunan BNH,
Off Xxxxx Xxxxxxxx, Xxxxxxxxx Xxxxxxx, 00000 Xxxxx Xxxxxx (hereinafter referred
to as "the Company").
(B) AND WHEREAS the Bank has agreed at the request of the Company and
the Guarantor to grant and make available to the Company banking facilities by
way of a Loan up to the limit of United States Dollars Twenty three million
five hundred thousand (USD23,500,000/-) (hereinafter referred to as "the Term
Loan") for principal only upon the terms and conditions set out in the Loan
Agreement dated the 16th day of October, 1995 (hereinafter referred to as "the
Loan Agreement") upon the security, inter alia, of an Agreement to Guarantee
executed by the Guarantor (hereinafter referred to as "the Agreement to
Guarantee") and a corporate guarantee executed by Antah Holdings Berhad in
favour of the Bank (hereinafter referred to as "the Corporate Guarantor").
(C) AND WHEREAS pursuant to the request made by the Guarantor, Antah
Holdings Berhad and the Company, the Bank has agreed to release Antah Holdings
Berhad from the Corporate Guarantee on condition that the Guarantor executes
this Guarantee for the repayment of the Term Loan up to the principal limit of
United States Dollars Twelve million nine hundred and seventy one thousand four
hundred and thirty and sen fifty three (USD12,971,430.53) being the sum as of
this date outstanding under the Loan Agreement together with interest thereon
and all other monies due to the Bank from the Company under the Loan Agreement.
(D) AND WHEREAS this Guarantee is given for good consideration and
pursuant to the Agreement to Guarantee.
NOW THIS AGREEMENT WITNESSETH AND IT IS HEREBY AGREED as follows:
1. DEFINITIONS
1.1 In this Agreement unless the context otherwise requires:
1.1.1 "the Bank" means THE HONGKONG AND SHANGHAI BANKING CORPORATION
LIMITED (Licence No. 910004C) and includes its
successors-in-title and assigns and persons deriving title
thereunder;
1.1.2 "Company" means ANTAH DRILLING SDN. BHD. (Company No. 6831-D )
and includes its successors-in-title and assigns and persons
deriving title thereunder;
1.1.3 "the Letter of Offer" means collectively the letter of offer
dated the 5th day of August, 1995 and the letter of offer dated
the 26th day of
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October, 1996;
1.1.4 "the Term Loan" means the term loan up to the limit of United
States Dollars Twenty three million five hundred thousand
(USD23,500,000/-) for principal only granted and made available
by the Bank to the Company pursuant to the Letter of Offer and on
the terms and conditions set out in the Loan Agreement as defined
herein.
1.1.5 "Loan Agreement" means the agreement dated the 16th day of
October, 1995 and the Supplemental Agreement dated the 1st day of
December, 1996 made between the Company of the one part and the
Bank of the other part.
1.1.6 "this Guarantee" means this Guarantee;
1.1.7 "Principal Sum" means the aggregate amount outstanding under the
Term Loan due from the Company to the Bank pursuant to the Loan
Agreement and for the time being from time to time and at any
time due and payable by the Company to the Bank and includes each
and every part thereof;
1.1.8 The expression "the HSBC Group" shall include HSBC Holding plc,
subsidiary companies and associates ("associates" being defined
to include companies in which HSBC Holding plc controls 20% or
more of the voting power) their assigns and all persons deriving
title under them.
1. 2 The headings in this Agreement are inserted for convenience only
and shall not be taken, read and construed as essential parts of this
Agreement. All references to provisions of statutes include such provisions as
amended, re-certified or re-enacted. Words importing the masculine gender shall
include the feminine and neuter genders and vice versa. Words importing the
singular number shall include the plural number and vice versa.
2. GUARANTEE AND INDEMNITY
-----------------------
Pursuant to the obligations of the Guarantor under the Agreement
to Guarantee and in further consideration of the Bank at the request of the
Guarantor agreeing to release Antah Holdings Berhad from its obligations under
the Corporate Guarantee the Guarantor HEREBY IRREVOCABLY AND UNCONDITIONALLY
AGREES WITH AND UNDERTAKES AND GUARANTEES the Bank and its successors-in-title
and assigns and each of them that it will pay upon an event of default by the
Company, which is continuing, or in the event the Contract No. 00285866 dated
the 30th day of November, 1995 made between ESSO AUSTRALIA LTD. and the
Borrower is terminated howsoever prior to the full repayment of the Loan and
all outstanding due to the Bank on demand as principal debtor and not merely as
surety the following:-
2.1 all sums lent to or advanced for the benefit of the Company by
the Bank as principal pursuant to upon or under the Term Loan or
remaining due and owing by the Company from time to time and at
any time pursuant to upon and under the Term Loan up to the
principal sum of United States Dollars Twelve million nine
hundred and seventy one thousand four hundred and thirty and sen
fifty three (USD12,971,430.53);
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2.2 interest due and owing from time to time and at any time, by the
Company on the Principal sum of United States Dollars Twelve
million nine hundred and seventy one thousand four hundred and
thirty and sen fifty three (USD12,971,430.53) (as well after as
before judgment) calculated at such rate as prescribed in the
Loan Agreement as varied by the Bank from time to time;
2.3 all costs charges damages and expenses which the Bank may incur
in the preparation of this Agreement or enforcing or seeking to
obtain payment of all or any part of the monies hereby guaranteed
or any part thereof or any breach or non-performance or non-
observance by the Company, of the obligations terms covenants and
agreements to be performed or observed by the Company in respect
of the Term Loan under the Loan Agreement and the security
documents executed by the Company in favour of the Bank pursuant
to the Loan Agreement.
AND the Guarantor HEREBY UNDERTAKES to indemnify the Bank of all
losses and expenses including legal costs on a full indemnity basis charges and
damages incurred or suffered by the Bank inconsequence of any failure by the
Company to pay any monies due and payable under the Loan Agreement as aforesaid
or resulting from any breach, non-performance or non-observance by the Company
of the obligations, terms, covenants and agreements to be performed or observed
by the Company in respect of the Term Loan.
3. GUARANTOR'S COVENANTS
The Guarantor hereby irrevocably and unconditionally agrees,
undertakes and covenants with the Bank and its successors-in-title and assigns
and each of them as follows:-
3.1 that its guarantee and indemnity herein shall not in any way be
discharged, diminished or affected by the granting of time or
indulgence to the Company or the effecting of any compromise
between the Bank and the Company or any agreement between the
Bank and the Company not to xxx the Company;
3.2 that its liability under its guarantee and indemnity herein shall
subsist even if the Bank has a legal right to claim against the
Company and/or any other surety and/or against any security the
Bank may now or at any time hereafter or from time to time have
from or against the Company or any other person for any sums,
loss or damage or whether or not the Bank has availed itself of
its legal remedies against the Company and/or any other surety
and/or against any security as aforesaid;
3.3 all sums payable by the Guarantor under its guarantee and
indemnity herein shall be paid in full without set-off, counter-
claim, condition or qualification of any nature whatsoever;
3.4 that its liability under its guarantee and indemnity herein shall
not be affected by the Bank granting any relaxation, forbearance
or indulgence to the Guarantor;
3.5 that the Bank may, at any time or times, at its absolute
discretion, without discharging, impairing or affecting the
liability of the
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Guarantor under its guarantee and indemnity herein and without
giving any notice whatsoever to the Guarantor and without
obtaining the assent of the Guarantor, vary, add to, or alter the
obligations undertaken by the Company;
3.6 that its guarantee and indemnity herein shall be in addition to
any other guarantee and/or other security held by the Bank in
respect of the repayment of the monies and liabilities from time
to time at any time due and owing by the Company to the Bank in
respect of the Term Loan and the due performance and observance
by the Company of the terms, provisions, covenants, agreements
and obligations on the part of the Company to be performed and
observed in respect of or under the Term Loan and whether such
guarantee and/or other security shall be given to the Bank by the
Guarantor or otherwise and no renewal, variation, exchange,
release, modification of or other dealing with or forbearance
from perfecting or enforcing any such other guarantee and/or
other security by the Bank shall affect the liability of the
Guarantor under its guarantee and indemnity herein and whether or
not the Guarantor shall have notice of or given its assent to
such renewal, variation, exchange, release, modification of or
other dealing with or forbearance from perfecting or enforcing
such other guarantee and/or other security;
3.7 that its guarantee and indemnity herein shall be binding as a
continuing guarantee on the Guarantor and on its successor-in-
title for all purposes and no change whatsoever in the
constitution of the Bank whether by amalgamation, reconstruction
or otherwise shall affect or impair the liability of the
Guarantor under its guarantee and indemnity herein;
3.8 that all sums of monies not recovered or recoverable from the
Guarantor on the basis of a guarantee whether by reason of any
legal limitation, disability or incapacity on or of the company
or any other fact and circumstance and, whether know to the Bank
or not, shall nevertheless be recoverable from the Guarantor as
principal debtor in respect thereof and shall be repaid by the
Guarantor upon demand on the Guarantor made by the Bank or on
behalf of the Bank subject always to its liability hereunder;
3.9 that any accounts settled or stated by or between the Bank and
the Company or admitted by or on behalf of the Company and duly
certified by one of the officers of the Bank may be adduced by
the Bank and shall in that case be accepted by the Guarantor as
conclusive evidence that the balance or amount thereby appearing
is due from the Company to the Bank and payable on demand to the
Bank by the Guarantor save for manifest error;
3.10 that should the Company become insolvent or if an order is made
or legislation or an effective resolution passed for winding up
or a receiver is appointed for the debenture or debenture
stockholders of the Company, the Bank may prove in the winding up
of the Company for the whole amount owing or remaining due and
unpaid to the Bank and no money or dividend received by the Bank
shall be treated as received in respect of the Guarantor's
guarantee and indemnity herein but the full amount hereby
guaranteed shall be payable by the Guarantor until the Bank shall
have received from all
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sources one hundred per cent (100%) of the ultimate balance owing
and remaining due and unpaid to the Bank by the Company;
3. 11 that if the Bank has received such ultimate balance in full, any
claim on any part to any excess or any securities remaining in
the Bank's hand shall be a matter of adjustment between the Bank
and the Guarantor and any other person or persons laying claim
thereto;
3.12 that all payments received by the Bank from the Company or from
its liquidators or otherwise shall be taken and applied by the
Bank as payments in gross and the right of the Guarantor to be
subrogated to the Bank in respect thereto shall not arise until
the Bank shall have received the full amount of all claims of the
Bank against the Company;
3.13 that other than the debentures dated the 28th day of April, 1995
and the 16th day of October, 1995, over Rig No. 488 and Rig No.
489 (formerly known as Rig No. 450) executed by the Company in
favour of the Bank, the Guarantor has not taken and shall not
without prior consent of the Bank in writing take, directly or
indirectly in respect of the liability undertaken pursuant to the
guarantee and indemnity herein by the Guarantor on behalf of the
Company any counter security, whether involving a charge on any
property whatsoever of the Company or otherwise, whereby the
Guarantor or any person or persons claiming through the Guarantor
would, or might, on the insolvency or liquidation of the Company
and to the prejudice of the Bank, increase the proof in such
insolvency or liquidation or diminish the property distributable
among the creditors of the Company and, as regards any such
counter security taken by the Guarantor with consent of the Bank
as aforesaid, the same shall be a security to the Bank for the
fulfilment of the Guarantor's obligation under its guarantee and
indemnity herein;
3.14 that the Bank shall, so long as any money remain owing under the
guarantee and indemnity herein, have a lien therefor on all money
now or hereafter standing to the credit of the Guarantor with the
Bank, whether on current or other account. The Bank shall further
be entitled (as well before as after demand hereunder) to set-off
any credit balance in any of the Guarantor's accounts with the
Bank (whether current deposit loan or of any other nature and
whether subject to notice or not) the liability to the Bank
hereunder and the Guarantor irrevocably authorises the Bank until
this Guarantee is released and/or discharged that the Bank may at
any time without notice after an event of default which is
continuing by the Company or in making demand debit combine or
consolidate all or any of the Guarantor's then existing
account(s) whatsoever whether subject to notice or not and
whether in United States Dollars or in any other currency in any
of the Bank's branches wheresoever situated and set-off of
transfer any sums standing to the credit of any one or more
accounts in or towards satisfaction of the Guarantor's
liabilities hereunder whether they be present future actual
contingent primary or collateral. Where such set-off combination
or transfer requires the conversion of one currency into another
such conversion shall be calculated at the Bank's spot buying
rate of exchange (as conclusively determined by the Bank save for
manifest error) for purchasing the currency for which the
Guarantor is liable with the
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existing currency so converted;
3.15 that the certificate by an officer of the Bank as to the money
and liabilities for the time being due or incurred from or by the
Company to the Bank shall be conclusive evidence save for
manifest error in any legal proceedings against the Guarantor;
3.16 that any sums or security paid or given to the Bank by or on
behalf of the Company and/or the Guarantor shall not constitute a
valid settlement or discharge of the liability hereunder or the
Guarantor under this Guarantee and indemnity herein or any part
thereof if the payment of such sums or the giving of such
security shall be avoided or reduced under the provisions of any
law relating to insolvency or liquidation for the time being in
force and the Bank shall be entitled to claim against the
Guarantor in the case of avoidance, the full amount or value of
the aforesaid sums or security and, in the case of reduction, the
amount or value by which the aforesaid sums or security shall be
reduced;
3.17 (a) that this Guarantee 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 owing as aforesaid but shall be
continuing security and shall extend to cover any sum or sums of
money which shall for the time being constitute the balance due
for the Company to the Bank upon any such account or accounts as
herein mentioned.
(b) that the Guarantor's obligations under this Guarantee shall not
in any manner be discharged except by complete performance
thereof and until all sums due from the Company under the Term
Loan shall have been paid in full and no sum remains payable in
respect of or in connection with the Term Loan under the Loan
Agreement and security documents executed by the Company pursuant
thereto.
3.18 that the Bank shall be entitled to recover from the Guarantor all
sums payable by the Guarantor hereunder without first availing
itself of its legal remedies against the Company and/or any other
surety and/or against any security the Bank may now or at any
time hereafter or from time to time have from or against the
Company or any other person;
3.19 that the monies received by the Bank from the Guarantor or the
Company or any other person or persons liable to pay the same may
be applied by the Bank to any account or items of account or to
any transaction to which the same may be applicable;
3.20 that although the Guarantor's ultimate liability hereunder cannot
exceed the limit mentioned in the Guarantee, yet this Guarantee
shall be construed and take effect as a guarantee of the whole
and every part of the Term Loan and interest owing and to become
owing and accordingly the Guarantor is not to be entitled as
against the Bank to any right of proof in the bankruptcy or
insolvency of the Company or other right of a surety discharging
its liability in respect of the principal debt unless and until
the whole of the principal sum, interest and other sums
outstanding under the Term Loan pursuant to the Loan Agreement
shall have first been completely discharged and satisfied. And
further for the purpose
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of enabling the Bank to xxx the Company or prove against its
estate for the whole of the money owing as aforesaid or to
preserve intact the liability of any other part the Bank may at
any time place and keep for such time as the Bank may think
prudent any money received recovered and realised hereunder to
and at a separate or suspense account to the credit either of the
Guarantor or of any such person or persons or transaction if any
as the Bank shall think fit without any intermediate obligation
on the Bank's part to apply the same or any part thereof in or
towards the discharge of the money owing as aforesaid or any
intermediate right on the Guarantor's part to xxx the Company or
prove against its estate in competition with or so as to diminish
any dividend or other advantage that would or might come to the
Bank or to treat the liability of the Company as diminished;
3.21 that any notice demand or request required or permitted to be
given or made under the guarantee and indemnity herein shall be
in writing and shall be sufficiently made or given to the
Guarantor if left by hand or sent by telegram telex or registered
post addressed to the Guarantor at its address above written or
its last know place of business or residence or at such other
addresses as the Guarantor shall notify in writing to the Bank
and shall in the case of a notice demand or request sent by
telegram telex or registered post be deemed to have been served
on and duly received by the Guarantor at the time when the same
would in the ordinary course of transmission or post be received;
3.22 that all costs and disbursements of and incidental to the
guarantee and indemnity herein and the collection of any money
due or to become due hereunder including the Bank's legal costs
(including fees on a solicitor-client basis) on a full indemnity
basis shall be borne by the Guarantor.
4. RESTRICTION AGAINST TRANSFER OF SHARES IN THE COMPANY
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The Guarantor being the beneficial owner of seventy per cent
(70%) of the issued share capital in the Company hereby undertakes not to
effect any change in the shares held by it during the period this Guarantee
shall be in force without the prior written consent of the Bank.
5. LAW AND JURISDICTION
--------------------
This Guarantee shall be governed by, and construed in accordance
with the laws of Malaysia.
(B) In relation to any legal action or proceedings arising out of or
in connection with this Guarantee ("Proceedings"), each of the Guarantor
irrevocably submits to the jurisdiction of the courts of Malaysia, and waives
any objection to Proceeding in any such court on the grounds of venue or on the
grounds that the Proceedings have been brought in an inconvenient forum.
(C) That submission shall not affect the right of the Bank to take
Proceedings in any other jurisdiction nor shall the taking of Proceedings in
any jurisdiction preclude the bank from taking Proceedings in any other
jurisdiction.
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8
(D) Pursuant to Clause 5(B) the Guarantor irrevocable appoints Messrs
Xxxxxx & Ariff, Advocated & Solicitor, of 39 court, 00, Xxxxx Xxx Xxxx Xxxx,
00000 Xxxxx Xxxxxx to receive, for in and on its behalf, services of process in
any Proceedings in Malaysia. Such service shall be deemed completed on delivery
to the process agent (whether or not it is forwarded to and received by Pool
Company). If for any reason the process agent ceases to be able to act as such
or no longer has an address in Malaysia, Pool Company irrevocably agrees to
appoint a substitute process agent acceptable to the Bank, and to deliver to
the Bank a copy of the new agent's acceptance of that appointment, within
fourteen (14) days of such acceptance.
7. TIME
----
Time wherever mentioned shall be of the essence of this Agreement.
8. SUCCESSORS BOUND
----------------
(a) This Guarantee shall be binding upon the successor-in-title of the
Guarantor.
(b) This Guarantee which is provided to the Bank will remain valid
to any successor-in-title or assignee including any Malaysian incorporated
company to which the Bank's Malaysian operations may from time to time
be transferred to the extent of any debt or liability outstanding now
and in the future under the Term Loan or in respect of which this
Guarantee is given whether the Term loan is now or in the future
provided by the Bank, its successors-in-title or assignee or any other
party on the Bank's behalf notwithstanding that the party receiving the
Guarantee is not also the provider of the Term Loan.
IN WITNESS WHEREOF the parties hereto have hereunto set their
hands the day and year first above written.
SIGNED by )
The Attorney for and on behalf THE )
HONGKONG AND SHANGHAI BANKING ) /s/ XXXXX XXXXX FATT
CORPORATION LIMITED (Licence No. )
910004C in the presence of:- )
SIGNED by )
for and on behalf of POOL COMPANY ) /s/ X.X. XXXX
in the presence of:- )
