EXECUTION COPY
CHARTER HIRE GUARANTEE
dated as of May 19, 1995
by
AMERICAN PRESIDENT COMPANIES, LTD.
(as Guarantor)
in favor of
M.V. PRESIDENT ▇▇▇▇▇▇▇, LTD.
(as Obligee)
CHARTER HIRE GUARANTEE, dated as of May 19, 1995, by AMERICAN
PRESIDENT COMPANIES, LTD., a Delaware corporation (the "Guarantor"), in
favor of M.V. PRESIDENT ▇▇▇▇▇▇▇, LTD., a Delaware corporation (the
"Obligee"). Capitalized terms used herein and not otherwise defined
herein shall have the meanings set forth in the Amended and Rested
Agreement to Acquire and Charter dated May 19, 1995 (the "Acquisition
Agreement"), by and among Kreditanstalt fur Wiederaufbau, a corporation
organized and existing under the laws of the Federal Republic of Germany
whose address is ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇, ▇▇▇▇▇▇▇▇ 11-11-41, D-60325
Frankfurt am Main ("KfW"), COMMERZBANK AG (HAMBURG), a banking
corporation incorporated in the Federal Republic of Germany whose
address is Ness 7-9, D-20457 Hamburg, (the "Syndicate Agent") and the
banks listed in Schedule 1 which is attached hereto (KfW, the Syndicate
Agent, and the banks listed in such Schedule 1 are hereinafter referred
to collectively as the "Banks"), the corporations listed as Transferees
therein (the "Transferees") and American President Lines, Ltd., a
Delaware corporation (the "Charterer").
W I T N E S S E T H:
WHEREAS, in accordance with the Acquisition Agreement, APL has
assigned its rights to receive delivery of the Vessel described below
from HDW to APL Newbuildings, Ltd. (the "Original Owner");
WHEREAS, the Obligee has accepted title to, and is currently the
registered owner of, The Republic of The ▇▇▇▇▇▇▇▇ Islands flag vessel
APL CHINA, Official Number MI 1092 (the "Vessel"), and the Obligee has
undertaken all of the payment and certain of the performance obligations
relating to Vessel Indebtedness in respect of the Vessel under the Loan
Agreement, (the "Owner Obligations");
WHEREAS, in accordance with that certain Exchange Agreement dated
as of the date hereof between the Obligee and the Original Owner (the
"Exchange Agreement"), the Obligee has acquired the Vessel described
below on the date hereof from the Original Owner; WHEREAS, the Obligee
has simultaneously herewith entered into a First Mortgage on the Vessel
in favor of KfW, as security for the Owner Obligations in respect of the
Vessel;
WHEREAS, the Obligee has let and demised the Vessel to the
Charterer and the Charterer has hired the Vessel from the Obligee on the
terms and conditions set forth in the Bareboat Charter Party, dated the
date hereof (the "Charter"), such charter of the Vessel being effective
upon the execution and delivery of the Charter;
WHEREAS, the Guarantor is entering into this Guarantee in
consideration of the Banks entering into the Acquisition Agreement and
purchasing the Notes.
Accordingly, the Guarantor hereby agrees with the Obligees as
follows:
SECTION 1.
Guarantee
Section 1.1 The Guarantee. The Guarantor hereby guarantees as
primary obligor and not as a surety the full and punctual payment of all
amounts payable by the Charterer under the Charter. Upon failure by the
Charterer to pay punctually any such payment required by it to be paid
within any applicable grace periods permitted under the Charter, the
Guarantor shall forthwith on demand pay the amount not so paid in
immediately available funds as specified therein. Upon payment by the
Guarantor of any obligation of the Charterer pursuant to this Section
1.1, such obligation with respect to such payment under the Charter
shall terminate.
Section 1.2 Guarantee Unconditional. The obligations of the
Guarantor hereunder shall be irrevocable, unconditional and absolute
without regard to:
(a) any amendment, consent or release in respect of
any of the terms of the Charter or of the obligations under any
thereof of any Person (provided only that such amendment,
consent or release is effected in accordance with the terms of
the Charter); or
(b) any taking, holding, exchange, release,
nonperfection or invalidity of any direct or indirect security
for any obligation of the Charterer under the Charter; or
(c) any change in the corporate existence, structure
or ownership of the Charterer, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the
Charterer or its assets; or
(d) the existence of any claim, setoff or other rights
which the Guarantor may have at any time against the Charterer;
or
(e) any defense arising by reason of any invalidity,
unenforceability or other defense of the Charterer, or other
defense of the Guarantor or by reason of the cessation from any
cause whatsoever of the liability either in whole or in part of
the Charterer to pay any amount payable by it under the Charter;
or
(f) any consent, release, renewal, refinancing,
refunding, amendment or modification of or addition or
supplement to or waiver of any of the terms of the Charter or of
any other agreement which may be made relating to the Charter or
of the obligations under any thereof of any Person (provided
only that such consent, release, renewal, refinancing,
refunding, amendment or modification of or addition or
supplement to or waiver is effected in accordance with the terms
of the Charter); or
(g) any exercise or non-exercise of any right, power,
privilege or remedy under or in respect of this Guarantee or the
Charter, or any waiver of any such right, power, privilege or
remedy or of any default in respect of the Charter, or any
receipt of any collateral security or any sale, exchange,
surrender, release, discharge, failure to perfect or to continue
perfected, loss, abandonment or alteration of, or other dealing
with, any collateral security by whomsoever at any time pledged
or mortgaged to secure, or however securing, any of the
Guarantor's obligations or any liabilities (including
liabilities of the Guarantor hereunder) incurred directly or
indirectly in respect thereof.
Section 1.3 Discharge Only Upon Payment in Full: Reinstatement
in Certain Circumstances. The Guarantor's obligations hereunder shall
remain in full force and effect until the amounts payable by the
Charterer under the Charter shall have been paid in full or the
obligations of the Charterer thereunder have otherwise terminated,
whichever is earlier. If at any time any amount payable by the
Charterer under the Charter is rescinded or must be otherwise restored
or returned upon the insolvency, bankruptcy or reorganization of the
Charterer or otherwise, the Guarantor's obligations hereunder with
respect to such payment shall be reinstated at such time as though such
payment had not been made.
Section 1.4 Waiver. The Guarantor irrevocably waives
acceptance of this Guarantee, presentment, demand except as required
pursuant to Section 1.1 hereof, protest, and notice, as well as any
requirement that at any time any action be taken by any Person against
the Charterer or any other Person.
Section 1.5 Subrogation. Upon making any payment hereunder,
the Guarantor shall be subrogated to the rights of the Obligee under the
Charter against the Charterer with respect to such payment; provided
that the Guarantor shall have no right of subrogation and waives, to the
fullest extent permitted by applicable law, any right to any security in
the Vessel which is the subject of the Charter and to exercise any
remedy which the Obligee has or may hereafter have against the Charterer
for payment of money until all amounts payable by the Charterer under
the Charter have been paid in full or the obligations of the Charterer
thereunder have otherwise terminated, whichever is earlier. Nothing
contained in this Guarantee shall preclude the Guarantor from causing
the Charterer to make payments required by the Charterer under the
Charter.
Section 1.6 Payment Guarantee: No Set-Off or Deductions: No
Waiver. The Guarantor hereby agrees that (a) this Guarantee is a
guarantee of payment and not of collection, and shall continue in full
force and effect and be binding upon the Guarantor, its successors and
assigns; and (b) amounts payable hereunder shall be paid when due
without set-off or reduction for any reason whatsoever; provided,
however, that nothing contained in this Section shall be construed to be
a waiver, modification, alteration or release of any claims which the
Guarantor may have for damages or equitable relief for any breach by the
Obligee of any provision of the Charter or for any loss due to any acts
taken by the Obligee thereunder.
Section 1.7 Obligations Unaffected. The Obligee may, at any
time and from time to time, without the consent of, or notice to, the
Guarantor, without incurring responsibility to the Guarantor and without
impairing, diminishing, or discharging, releasing, suspending,
prejudicing or terminating the obligations of the Guarantor hereunder,
in accordance with the terms and conditions of the charter and in whole
or in part, take or refrain from taking (either directly or indirectly)
any and all actions with respect to the Guarantor's obligations, this
Guarantee, the Charter, any collateral security at any time granted or
received for any of the Guarantor's obligations, or any Person
(including any Guarantor) that the Obligee determines in its sole
discretion to be necessary or appropriate, whether or not such action or
refraining from action varies or increases the risk of, the Guarantor;
provided, however, that any amount received by the Obligee as a result
of any such action shall correspondingly reduce the Guarantor's
obligations hereunder.
No right of the Obligee hereunder, and no obligation of the
Guarantor hereunder, shall be in any way limited or otherwise impaired
by the failure of the Obligee (i) to commence any action or obtain any
judgment against the Charterer; (ii) to seek recourse against, or to
perfect or enforce any rights in and to, any collateral; (iii) to
proceed against any other guarantee relating to all or any of the
obligations guaranteed hereunder or (iv) to exercise any other right,
remedy, power or privilege hereunder or otherwise. The Guarantor waives
and agrees not to assert (a) any right to require the Obligee to take
any action described in clauses (i) to (iv) of the immediately preceding
sentence and (b) any defense based upon an election of remedies which
destroys or impairs the subrogation rights of the Obligee or the right
of the Obligee to proceed against the Guarantor hereunder or the
Charterer in respect of the obligations guaranteed hereunder.
SECTION 2.
Representations and Warranties of_the Guarantor.
The Guarantor represents and warrants to the Obligee that:
Section 2.1 the Guarantor is a corporation duly organized and
validly existing in good standing under the laws of the jurisdiction of
its incorporation with full corporate power and authority to conduct its
business as the same is presently conducted;
Section 2.2 the Guarantor has : legal power and authority to
enter into and carry out the terms of this Guarantee;
Section 2.3 this Guarantee has been duly authorized by all
necessary action, corporate or other, on the part of the Guarantor, and
this Guarantee constitutes in accordance with its terms, a legal, valid
and binding instrument enforceable against the Guarantor, except to the
extent limited by applicable bankruptcy, reorganization, insolvency,
moratorium or other laws of general application relating to or affecting
the enforcement of creditors' rights from time to time in effect;
Section 2.4 except as previously disclosed to the Syndicate
Agent and the Agent in writing, there are no actions, suits or
proceedings pending or, to the Guarantor's knowledge, threatened against
the Guarantor, which question the validity of this Guarantee or action
taken or to be taken by the Guarantor pursuant to this Guarantee which
would, if adversely determined, materially and adversely affect the
performance by the Guarantor of its obligations hereunder;
Section 2.5 the execution and delivery of this Guarantee by
the Guarantor and the performance by the Guarantor of its obligations
under this Guarantee will not violate any provisions of the Certificate
of Incorporation or Bylaws of the Guarantor and will not result in a
breach of the terms and provisions of, or constitute a default under,
any other agreement or undertaking by the Guarantor or by which it or
any of its property is bound or any order of any court or administrative
agency entered in any proceedings binding on the Guarantor, or violate
any applicable statute, rule or regulation;
Section 2.6 the Guarantor is not in default and no Incipient
Default has occurred, in any respect which would materially and
adversely affect the ability of the Guarantor to perform its obligations
under this Guarantee, under any mortgage, loan agreement, deed of trust,
indenture or other agreement with respect thereto or evidence of
indebtedness to which it is a party or by which it is bound, and is not
in violation of or in default, in any respect which would materially and
adversely affect the ability of the Guarantor to perform its obligations
under this Guarantee, under any order, writ, judgment or decree of any
court, arbitrator or governmental authority, commission, board, agency
or instrumentality, domestic or foreign;
Section 2.7 the Guarantor has more than one place of business
and the present location of the place of business which is its chief
executive office is ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
Section 2.8 the Guarantor has no knowledge of any actual or
proposed deficiency or additional assessment in connection with any
Taxes which either in any case or in the aggregate would be materially
adverse to the Guarantor and which would materially and adversely affect
the ability of the Guarantor to perform its obligations hereunder;
Section 2.9 all Taxes (other than taxes based on or measured
by income and withholding taxes), liability for the payment of which has
been incurred by the Guarantor in connection with the execution,
delivery and performance by it of each Loan Document to which it is or
will be a party, have been paid (or provided for in its accounts if not
payable on or prior to the delivery date of the respective Vessel);
Section 2.10 all governmental consents, licenses, permissions,
approvals, registrations or authorizations or declarations required (i)
to enable it lawfully to enter into and perform its payment obligations
under this Guarantee and to require the Charterer to perform its other
obligations under the Charter, (ii) to ensure that its respective
obligations under clause (i) hereunder are legal, valid and enforceable
and (iii) to make this Guarantee admissible in evidence have been
obtained or made and are in full force and effect;
Section 2.11 it has not taken any corporate action nor to its
knowledge have any other steps been taken or legal proceedings been
started or threatened against it for its winding-up, dissolution or
reorganization or for the appointment of a receiver, administrative
receiver, administrator, trustee or similar officer of it or of any or
all of its respective assets and revenues;
Section 2.12 (i) no written representation, warranty or
statement made or other document provided by the Guarantor in connection
with the negotiation of this Guarantee at the time when given is or was
untrue or contains or contained any misrepresentation of a material fact
or omits or omitted to state any material fact necessary to make any
such statement herein or therein not misleading and (ii) all financial
projections, if any, prepared by the Guarantor and made available to the
Obligee have been prepared in good faith based upon reasonable
assumptions (it being understood that such projections are subject to
significant uncertainties and contingencies, many of which are beyond
the Guarantor's control, and that no assurances can be given that any
such projections will be realized);
Section 2.13 ERISA. To the best knowledge of the Guarantor (i)
each Plan maintained by the Guarantor and each ERISA Affiliate is in
substantial compliance in all material respects with ERISA; (ii) no Plan
maintained by the Guarantor or any ERISA Affiliate is insolvent or in
reorganization; (iii) no Insufficiency or Termination Event has occurred
or is reasonably expected to occur, and no "accumulated funding
deficiency" exists and no "variance" from the "minimum funding standard"
has been granted (each such term as defined in Part III, Subtitle B, of
Title I of ERISA) with respect to any Plan in which the Guarantor or any
of its Subsidiaries, or any ERISA Affiliate is a participant; (iv)
neither the Guarantor nor any ERISA Affiliate has incurred, or is
reasonably expected to incur, any Withdrawal Liability to any
Multiemployer Plan; (v) neither the Guarantor, its Subsidiaries, nor any
ERISA affiliate has received any notification that any Multiemployer
Plan in which it is a participant is in reorganization or has been
terminated, within the meaning of Title IV of ERISA and no such
Multiemployer Plan is reasonably expected to be in reorganization or
terminated within the meaning of Title IV of ERISA; (vi) no lien imposed
under the Code or ERISA on the assets of the Guarantor or any Subsidiary
or any ERISA Affiliate exists or is reasonably expected to arise on
account of any Plan; (vii) no material liability will be incurred by the
Guarantor, its Subsidiaries, or any ERISA Affiliate if any of them
should terminate contributions to any other employee benefit plan
maintained by them;
Section 2.14 it is not an "investment company" or a company
"controlled" by an "investment company" (as each of such terms is
defined or used in the Investment Company Act of 1940, as amended).
SECTION 3.
Covenants of the Guarantor
The Guarantor covenants to the Obligee that:
Section 3.1 The Guarantor will not consolidate or amalgamate
with, or merge into, any other entity, or sell, convey, transfer, lease,
or otherwise dispose of all or substantially all of its assets,
including, but not limited to, by dividend (whether by one transaction
or a series of transactions and whether related or not); provided,
however, that it may consolidate or amalgamate with, or merge into, any
other entity, or sell, convey, transfer, lease, or otherwise dispose of
all or substantially all of its assets if the buyer, assignee or
transferee corporation the "Assignee") shall be a solvent corporation
organized and existing under the laws of the United States of America or
any state thereof following such transaction and shall have executed and
delivered an agreement, in form and substance reasonably satisfactory to
the Obligees, containing an assumption by the Assignee of the due and
punctual performance and observance of all covenants and obligations of
the Guarantor hereunder, and confirming the accuracy of any
representations and warranties made herein as of the date hereof
required with respect to such Assignee; and provided further that
immediately following such transaction, no Incipient Default or Event of
Default shall have occurred and be continuing.
SECTION 4.
Financial Statements.
Section 4.1 The Guarantor shall, as soon as possible, provide
to the Agent and the Syndicate Agent (a) but in no event later than one
hundred twenty (120) days after the end of each fiscal year, its
consolidated audited accounts of all consolidated financial statements
of the Guarantor, such financial statements to be prepared in accordance
with generally accepted United States of America accounting principles
at such time consistently applied and a report thereon by ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & Co. or other independent public auditors of internationally
recognized standing as may be acceptable to the Agent and the Syndicate
Agent, (b) copies of all quarterly reports filed with the Securities and
Exchange Commission and, within seventy-five (75) days after the end of
the first three (3) quarters of its fiscal year, unaudited consolidated
statements of income and changes in financial position of the Guarantor
and related balance sheets for each such period, all certified as true
and correct by a financial officer of the Guarantor, (c) as soon as the
same is instituted (or, to the knowledge of the Guarantor threatened),
details of any litigation, arbitration or administrative proceedings
against or involving the Guarantor, the Charterer or the Vessel which if
adversely determined would have a material adverse effect on the
Guarantor, any Charterer and any of its subsidiaries on a consolidated
basis, or construction of the Vessel, and (d) from time to time, and on
demand, such additional financial or other information relating to the
Guarantor as may be reasonably requested by the Agent or the Syndicate
Agent.
SECTION 5.
Miscellaneous
Section 5.1 No failure on the part of any Obligee to exercise,
no delay in exercising, and no course of dealing with respect to, any
right or remedy hereunder will operate as a waiver thereof; nor will any
single or partial exercise of any right or remedy hereunder preclude any
other further exercise of any other right or remedy. This Guarantee may
not be amended or modified except by written agreement of the Guarantor
and the Obligee.
Section 5.2 All notices or other communications required under
the terms and provisions hereof shall be made in the manner provided in
Section 15.04 of the Loan Agreement addressed as follows: to (i)
Kreditanstalt fur Wiederaufbau at: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇, ▇-▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ (▇▇ by hand), ▇▇▇▇▇▇▇▇ ▇▇-▇▇-▇▇, ▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇ (▇▇ by mail), Federal Republic of Germany, Telefax No.: 7431-2944
or 7431-2198; (ii) to Commerzbank AG at: Ness 7-9, ▇-▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Germany, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Telefax No.: 49-
▇▇-▇▇▇▇-▇▇▇▇; (iii)-to the Guarantor at: ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; Attention: Treasurer, Telefax No.: (▇▇▇) ▇▇▇-▇▇▇▇; and
(iv) to the Obligee at: ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇;
Attention: Treasurer, Telefax No.: (▇▇▇) ▇▇▇-▇▇▇▇.
Section 5.3 The terms of this Guarantee shall be binding upon,
and inure to the benefit of, the Guarantor and the Obligee and their
respective successors and assigns.
Section 5.4 No recourse shall be had for the payment of any
amount payable hereunder against any incorporator, stockholder, officer
or director, as such, past, present or future, of the Guarantor or of
any successor corporation, either directly or through the Guarantor or
any successor corporation, whether by virtue of any constitutional
provision, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly agreed and
understood that this Guarantee is solely a corporate obligation, and
that no personal liability whatsoever shall attach to, or be incurred
by, any incorporator, stockholder, officer or director, as such, past,
present or future, of the Guarantor or of any successor corporation,
because of the incurring of the indebtedness hereby authorized or under
or by reason of any of the obligations, covenants, promises or
agreements contained in this Guarantee or to be implied herefrom, and
that all liability, if any, of that character against every such
incorporator, stockholder, officer and director is, by the acceptance of
this Guarantee and as a condition of, and as part of the consideration
for, the execution of this Guarantee, expressly waived and released.
Section 5.5 This Guarantee shall be construed in accordance
with and governed by the laws of the State of New York (other than the
law of the State of New York governing choice of law).
Section 5.6 The Guarantor (a) hereby irrevocably submits
itself to the jurisdiction of the Supreme Court of the State of New
York, New York County and to the jurisdiction of the United States
District Court for the Southern District of New York for the purposes of
any suit, action or other proceeding arising out of this Guarantee or
the Charter, or the subject matter hereof or thereof or any of the
transactions contemplated hereby or thereby, brought by the Obligee or
its successors, subrogees or assigns, (b) hereby irrevocably agrees that
all claims in respect of such action or proceeding may be heard and
determined, in such New York State or Federal court, and (c) to the
extent that it has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process, hereby waives such
immunity, and agrees not to assert, by way of motion, as a defense, or
otherwise, in any such suit, action or proceeding, (i) any claim that it
is not personally subject to the jurisdiction of the above-named New
York State or Federal courts, (ii) that the suit, action or proceeding
is brought in an inconvenient forum, that the venue of the suit, action
or proceeding is improper, or (iii) that this Guarantee or the subject
matter hereof may not be enforced in or by such courts or under any
applicable law. The Guarantor hereby consents to service of process in
any suit, action or other proceeding arising out of this Guarantee or
the subject matter hereof or any of the transactions contemplated hereby
and hereby appoints the Person set forth in Schedule 7 of the Loan
Agreement as Process Agent for the Borrower (the "Process Agent") as its
attorneys-in-fact to receive service of process in such action, suit or
proceeding, it being agreed that service upon the Process Agent shall
constitute valid service upon the Guarantor and its successors and
assigns. The Guarantor agrees that (x) the sole responsibilities of the
Process Agent shall be (i) to receive such process, (ii) to send a copy
of any such process so received to the Guarantor, by registered airmail,
return receipt requested, at its address set forth in Section 5.2
hereof, or at the last address filed in writing by it with the Process
Agent and (iii) to give prompt telegraphic notice of receipt thereof to
the Guarantor at such address and (y) the Process Agent shall have no
responsibility for the receipt or nonreceipt by the Guarantor of such
process, nor for any performance or nonperformance by it or its
respective successors or assigns. The Guarantor hereby agrees to pay to
the Process Agent such compensation as shall be agreed upon from time to
time by it and the Process Agent for the Process Agent's services
hereunder. The Guarantor hereby agrees that its submission to
jurisdiction and its designation of the Process Agent set forth above is
made for the express benefit of the Obligee and its successors,
subrogees and assigns. The Guarantor agrees that it will at all times
continuously maintain a Process Agent to receive service of process in
the City of New York or San Francisco, California on behalf of itself
and its properties with respect to this Agreement, and in the event
that, for any reason, the Process Agent named pursuant to this Section
5.6 shall no longer serve as Process Agent to receive service of process
on the Guarantor's behalf, the Guarantor shall promptly appoint a
successor Process Agent. The Guarantor further agrees that a final
judgment against the Guarantor in any such action or proceeding shall be
conclusive, and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law, a certified or true
copy of which final judgment shall be conclusive evidence of the fact
and of the amount of any indebtedness or liability of the Guarantor
therein described; provided that nothing in this Section 5.6 shall
affect the right of the Guarantor or the Obligee or their respective
successors, subrogees or assigns to serve legal process in any other
manner permitted by law or affect the right of the Guarantor or the
Obligee or their respective successors, subrogees or assigns to bring
any action or proceeding against the Guarantor or the Obligee, as the
case may be, or its property in the courts of other jurisdictions. In
the event of the transfer of all or substantially all the assets and
business of the Process Agent to any other corporation, by
consolidation, merger, sale of assets or otherwise, such other
corporation shall be substituted hereunder for the Process Agent with
the same effect as if named herein in place of the Process Agent. THE
GUARANTOR HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING TO
WHICH IT IS A PARTY INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER
(WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT
OF, RELATED TO, OR CONNECTED WITH THIS GUARANTEE, THE CHARTER, OR THE
RELATIONSHIP ESTABLISHED HEREUNDER AND WHETHER ARISING OR ASSERTED
BEFORE OR AFTER THE DATE HEREOF OR BEFORE OR AFTER THE PAYMENT,
OBSERVANCE AND PERFORMANCE IN FULL OF THE GUARANTOR'S OBLIGATIONS UNDER
THIS GUARANTEE.
Section 5.7 Currency of Account.
(a) The Dollar is the currency of account or each and
every sum due from the Guarantor to the Obligee under this
Guarantee in respect of any of the obligations guaranteed
hereunder.
(b) If after the occurrence of any Event of Default,
any sum is due from the Guarantor under this Guarantee or if any
order or judgment given or made in relation hereto has to be
converted from the currency (the "first currency") in which the
same is payable hereunder or under such order or judgment into
another currency (the "second currency") for the purpose of:
(i) making or filing a claim or proof against the
Guarantor;
(ii) obtaining an order or judgment in any court or
tribunal; or
(iii) enforcing any order or judgment given or made in
relation hereto.
(c) The Guarantor shall indemnify and hold harmless
the Obligee from and against any damages or losses suffered as a
result of any discrepancy between (A) the rate of exchange used
for such purpose to convert the sum in question from the first
currency into the second currency and (B) the rate or rates of
exchange at which the Obligee may in the ordinary course of
business purchase the first currency with the second currency in
the Frankfurt foreign exchange market upon receipt of a sum paid
to it in satisfaction, in whole or in part, of any such order,
judgment, claim or proof. The above indemnity shall constitute a
separate and independent obligation of the Guarantor from its
other obligations and shall apply irrespective of any indulgence
granted by the Obligee.
Section 5.8 If any term of this Guarantee and any other
application thereof shall be invalid or unenforceable, the remainder of
this Guarantee and any other application of such terms shall not be
affected thereby.
Section 5.9 This Guarantee shall be binding upon, inure to the
benefit of, and be enforceable by, the Guarantor and the Obligee and
their respective successors and assigns.
Section 5.10 The Guarantor hereby acknowledges and consents to
the assignment of this Guarantee pursuant to the terms of the Charter
Assignment dated the date hereof between the Obligee and KfW.
IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be
duly executed as of the date first set forth herein.
AMERICAN PRESIDENT COMPANIES, LTD.
By: /s/ ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇
Title: Assistant Secretary
