Date 15 April 2008 EXCEL MARITIME CARRIERS LTD. as Guarantor - and - FORTIS BANK (NEDERLAND) N.V. as Bank GUARANTEE relating to a Master Agreement dated 19 July 2006 (as amended) CONSTANT & CONSTANT 2, Defteras Merarchias Greece
Exhibit 4.9
Date 15
April 2008
EXCEL
MARITIME CARRIERS LTD.
as Guarantor
as Guarantor
- and
-
FORTIS
BANK (NEDERLAND) N.V.
as Bank
as Bank
relating
to a Master Agreement
dated 19
July 2006
(as
amended)
CONSTANT
& CONSTANT
2,
Defteras ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
INDEX
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INTERPRETATION
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1
|
|
2.
|
2
|
|
3.
|
LIABILITY
AS PRINCIPAL AND INDEPENDENT DEBTOR
|
3
|
|
4.
|
EXPENSES
|
3
|
|
5.
|
ADJUSTMENT
OF TRANSACTIONS
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3
|
|
6.
|
PAYMENTS
|
4
|
|
7.
|
INTEREST
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4
|
|
8.
|
SUBORDINATION
|
4
|
|
9.
|
ENFORCEMENT
|
4
|
|
10.
|
REPRESENTATIONS
AND WARRANTIES
|
5
|
|
11.
|
UNDERTAKINGS
|
6
|
|
12.
|
JUDGMENTS
AND CURRENCY INDEMNITY
|
7
|
|
13.
|
SET-OFF
|
7
|
|
14.
|
SUPPLEMENTAL
|
8
|
|
15.
|
ASSIGNMENT
|
9
|
|
16.
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NOTICES
|
9
|
|
17.
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INVALIDITY
OF MASTER AGREEMENT
|
9
|
|
18.
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GOVERNING
LAW AND JURISDICTION
|
10
|
|
18.
|
EXECUTION
PAGE
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11
|
THIS
GUARANTEE is made on 15 April 2008
1
BETWEEN
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(1)
|
EXCEL
MARITIME CARRIERS LTD., a company incorporated in Liberia whose registered
office is at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ (the “Guarantor”);
and
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|
(2)
|
FORTIS
BANK (NEDERLAND) N.V., acting through its office at ▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (the “Bank” which expression includes its
successors and assigns).
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‘BACKGROUND
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(A)
|
By
a master agreement (on the 1992 1SDA Master Agreement
(MulticurrencyCrossborder) form and including the Schedule thereto)
dated 19 July 2006 (as amended by a supplement thereto dated 15 April
2008, together the “Master Agreement”) entered into between (i) the
companies named therein (together, the “Companies”) and (ii) the Bank, it
was agreed that the Bank would enter into Transactions (as defined
therein) with the Companies from time to time to (inter alia) hedge the
Companies’ exposure to interest rate fluctuations under a loan agreement
dated 19 July 2006 (as amended) made between (i) the Companies as joint
and several borrowers, (ii) the banks and financial institutions named
therein as lenders, (iii) the Bank as agent and security trustee and (iv)
the entities named therein as lead arrangers, co-arrangers, underwriter
and sole bookrunner. As of the date hereof, the Companies are
indebted to the Bank under the Master Agreement in the principal amount of
US$90,000,000.
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|
(B)
|
Pursuant
to a merger and acquisition agreement dated 29 January 2008 (and amended
on 7 February 2008), the Companies have become wholly owned Subsidiaries
of the Guarantor.
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(C)
|
The
Guarantor has agreed to execute this Guarantee as security for the
obligations of the Companies under the Master
Agreement.
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IT IS
AGREED as follows:
1. INTERPRETATION
|
1.1
|
Defined
expressions. Words and expressions defined in the Master
Agreement shall have the same meanings when used in this Guarantee unless
the context otherwise requires.
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1.2
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Construction
of certain terms. In this
Guarantee:
|
“bankruptcy”
includes a liquidation, receivership or administration and any form of
suspension of payments, arrangement with creditors or reorganisation under any
corporate or insolvency law of any country;
“Event of
Default” and “Termination Event” shall have the meanings given to them in the
Master Agreement;
“Equity
Interests” means, with respect to any Person, shares of equity interests of (or
of membership interests or other ownership or profit interests in) such Person,
warrants, options or other rights for the purchase or other acquisition from
such Person of shares of equity interests of (or of membership interests or
other ownership or profit interests in) such Person, securities convertible into
or exchangeable for shares of equity interests of (or of membership interests or
other ownership or profit interests in) such Person or warrants, rights or
options for the purchase or other acquisition from such Person of such shares
(or of membership interests or such other interests), and other ownership or
profit interests in such Person (including, without limitation, partnership,
member or trust interests therein), whether voting or nonvoting, and whether or
not such shares, warrants, options, rights or other interests are authorized or
otherwise existing on any date of determination;
“Master
Agreement” means the master agreement dated 19 July 2006 (as amended) referred
to in Recital (A) and includes any existing or future amendments or supplements,
whether made with the Guarantor’s consent or otherwise;
“Person”
means an individual, partnership, corporation (including a business trust),
joint stock company, trust, unincorporated association, joint venture, limited
liability company or other entity of whatever nature, or a governmental
authority;
“Security
Interest” means:
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(a)
|
a
mortgage, charge (whether fixed or floating) or pledge, any maritime or
other lien or any other security interest of any
kind;
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(b)
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the
rights of the plaintiff under an action in rem in which the
vessel concerned has been arrested or a writ has been issued or similar
step taken; and
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(c)
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any
arrangement entered into by a person (A) the effect of which is to place
another person (B) in position which is similar, in economic terms, to the
position in which B would have been had he held a security interest over
an asset of A; but (c) does not apply to a right of set off or combination
of accounts conferred by the standard terms of business of a bank or
financial institution; and
|
“Subsidiaries”_
means any corporation, partnership, joint venture, limited liability company,
trust or estate or other entity of which (or in which) more than 50% of (a) the
issued and outstanding Equity Interests or other ownership interests having
ordinary voting power to elect a majority of the board of directors or a
majority of other equivalent managers of such corporation, partnership or other
entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person (irrespective of whether at the time Equity Interests of any
other class or classes of such corporation shall or might have voting power upon
the occurrence of any contingency), or (b) the interest in the capital or
profits of such limited liability company, partnership or joint venture, or (c)
the beneficial interest in such trust or estate, is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or more of
its other Subsidiaries or by one or more of such Person’s other
Subsidiaries.
2. GUARANTEE
|
2.1
|
Guarantee
and indemnity. The Guarantor unconditionally and
irrevocably:
|
|
(a)
|
guarantees
the due payment of all amounts payable by the Companies (or any of them)
under or in connection with the Master
Agreement;
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|
(b)
|
undertakes
to pay to the Bank, on the Bank’s demand, any such amount which is not
paid by the Companies (or any of them) when payable;
and
|
|
(c)
|
fully
indemnifies the Bank on its demand in respect of all claims, expenses,
liabilities and losses *hich are made or brought against or incurred by
the Bank as a result of or in connection with any obligation or liability
guaranteed by the Guarantor being or becoming unenforceable, invalid, void
or illegal; and the amount recoverable under this indemnity shall be equal
to the amount which the Bank would otherwise have been entitled to
recover.
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|
2.2
|
No
limit on number of demands. The Bank may serve more than one
demand under Clause 2.1.
|
3. LIABILITY
AS PRINCIPAL AND INDEPENDENT DEBTOR
|
3.1
|
Principal
and independent debtor. The Guarantor shall be liable under
this Guarantee as a principal and independent debtor and accordingly it
shall not have, as regards this Guarantee, any of the rights or defences
of a surety.
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|
3.2
|
Waiver
of rights and defences. Without limiting the generality of
Clause 3.1, the Guarantor shall neither be discharged by, nor have any
claim against the Bank in respect
of:
|
|
(a)
|
any
amendment or supplement being made to the Master
Agreement;
|
|
(b)
|
any
arrangement or concession (including a rescheduling or acceptance of
partial payments) relating to, or affecting, the Master
Agreement;
|
|
(c)
|
any
release or loss (even though negligent) of any right created by the Master
Agreement;
|
|
(d)
|
any
failure (even though negligent) promptly or properly to exercise or
enforce any such right; or
|
|
(e)
|
the
Master Agreement now being or later becoming void, unenforceable, illegal
or invalid or otherwise defective for any
reason.
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4. EXPENSES
|
4.1
|
Costs
of preservation of rights, enforcement etc. The Guarantor shall
pay to the Bank on its demand the amount of all expenses incurred by the
Bank in connection with any matter arising out of this Guarantee or any
Security Interest connected with it, including any advice, claim or
proceedings relating to this Guarantee or such a security
interest.
|
|
4.2
|
Fees
and expenses payable under Master Agreement. Clause 4.1 is
without prejudice to the Guarantor’s liabilities in respect of the
Companies’ obligations under clause 11 of the Master Agreement
(Expenses).
|
5. ADJUSTMENT
OF TRANSACTIONS
|
5.1
|
Reinstatement
of obligation to pay. The Guarantor shall pay to the Bank on
its demand any amount which the Bank is required, or agrees, to pay
pursuant to any claim by, or settlement with, a trustee in bankruptcy (or
similar person) of the Companies (or any of them) on the ground that the
Master Agreement, or a payment by the Companies (or any of them), was
invalid or on any similar ground.
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6. PAYMENTS
|
6.1
|
Method
of payments. Any amount due under this Guarantee shall be
paid:
|
|
(a)
|
in
immediately available funds;
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|
(b)
|
to
such account as the Bank may from time to time notify to the
Guarantor;
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(c)
|
without
any form of set-off, cross-claim or condition;
and
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(d)
|
free
and clear of any tax deduction except a tax deduction which the Guarantor
is required by law to make.
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6.2
|
Grossing-up
for taxes. If the Guarantor is required by law to make a tax
deduction, the amount due to the Bank shall be increased by the amount
necessary to ensure that the Bank receives and retains a net amount which,
after the tax deduction, is equal to the full amount that it would
otherwise have received.
|
7. INTEREST
|
7.1
|
Accrual
of interest. Any amount due under this Guarantee shall carry
interest after the second business day following the date on which the
Bank demands payment of it until it is actually paid, unless interest on
that same amount also accrues under the Master
Agreement.
|
|
7.2
|
Calculation
of interest. Interest under this Guarantee shall be calculated
and accrue in the same way as interest under the Master Agreement, and for
the avoidance of doubt it is confirmed that this Guarantee covers all
interest payable under the Master
Agreement.
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8. SUBORDINATION
|
8.1
|
Subordination
of rights of Guarantor. All rights which the Guarantor at any
time has (whether in respect of this Guarantee or any other transaction)
against the Companies (or any of them) or their respective assets shall be
fully subordinated to the rights of the Bank under the Master Agreement;
and in particular, the Guarantor shall
not:
|
|
(a)
|
claim,
or in a bankruptcy of the Companies (or any of them) prove for, any amount
payable to the Guarantor by the Companies (or any of them), whether in
respect of this Guarantee or any other
transaction;
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(b)
|
take
or enforce any Security Interest for any such
amount;
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|
(c)
|
claim
to set-off any such amount against any amount payable by the Guarantor to
the Companies (or any of them); or
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(d)
|
claim
any subrogation or other right in respect of the Master Agreement or any
sum received or recovered by the Bank under the Master
Agreement.
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9. ENFORCEMENT
|
9.1
|
No
requirement to commence proceedings against Companies. The Bank
will not need to commence any proceedings under, or enforce any Security
Interest created by, the Master Agreement before claiming or commencing
proceedings under this Guarantee.
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|
9.2
|
Conclusive
evidence of certain matters. However, as against the
Guarantor:
|
|
(a)
|
any
judgment or order of a court in England or the ▇▇▇▇▇▇▇▇ Islands in
connection with the Master Agreement;
and
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(b)
|
any
statement or admission of the Companies (or any of them) in connection
with the Master Agreement,
|
shall be
binding and conclusive as to all matters of fact and law to which it
relates.
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9.3
|
Suspense
account. The Bank may, for the purpose of claiming or proving
in a bankruptcy of the Companies (or any of them), place any sum received
or recovered under or by virtue of this Guarantee or any Security Interest
connected with it on a separate suspense or other nominal account without
applying it in satisfaction of the obligations of the Companies (or any of
them) under the Master Agreement.
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10. REPRESENTATIONS
AND WARRANTIES
|
10.1
|
General. The
Guarantor represents and warrants to the Bank as
follows.
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10.2
|
Status. The
Guarantor is duly incorporated and validly existing and in good standing
under the laws of the Republic of
Liberia.
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10.3
|
Corporate
power. The Guarantor has the corporate capacity, and has taken
all corporate action and obtained all consents necessary for
it:
|
|
(a)
|
to
execute this Guarantee; and
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(b)
|
to
make all the payments contemplated by, and to comply with, this
Guarantee.
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10.4
|
Consents
in force. All the consents referred to in Clause 10.3 remain in
force and nothing has occurred which makes any of them liable to
revocation.
|
|
10.5
|
Legal
validity. This Guarantee constitutes the Guarantor’s legal,
valid and binding obligations enforceable against the Guarantor in
accordance with its terms subject to any relevant insolvency laws
affecting creditors’ rights
generally.
|
|
10.6
|
No
conflicts. The execution by the Guarantor of this Guarantee and
its compliance with this Guarantee will not involve or lead to a
contravention of:
|
|
(a)
|
any
law or regulation; or
|
|
(b)
|
the
constitutional documents of the Guarantor;
or
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(c)
|
any
contractual or other obligation or restriction which is binding on the
Guarantor or any of its assets.
|
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10.7
|
No
withholding taxes. All payments which the Guarantor is liable
to make under this Guarantee may be made without deduction or withholding
for or on account of any tax payable under any law of any pertinent
jurisdiction.
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|
10.8
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No
default. To the knowledge of the Guarantor, no Event of Default
or Termination Event has occurred and is
continuing.
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10.9
|
Information. All
information which has been provided in writing by or on behalf of the
Guarantor to the Bank in connection with this Guarantee satisfied the
requirements of Clause 11.2; all audited and unaudited accounts which have
been so provided satisfied the requirements of Clause 11.4; and there has
been no material adverse change in the financial position or state of
affairs of the Guarantor from that disclosed in the latest of those
accounts.
|
|
10.10
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No
litigation. No legal or administrative action involving the
Guarantor has been commenced or taken or, to the Guarantor’s knowledge, is
likely to be commenced or taken which, in either case, would be likely to
have a material adverse effect on the Guarantor’s financial position or
profitability.
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11. UNDERTAKINGS
|
11.1
|
General. The
Guarantor undertakes with the Bank to comply with the following provisions
of this Clause II at all times whilst any moneys remain outstanding under
the Master Agreement, except as the Bank may otherwise
permit.
|
|
11.2
|
Information
provided to be accurate. All financial and other information
which is provided in writing by or on behalf of the Guarantor under or in
connection with this Guarantee will be true and not misleading and will
not omit any material fact or
consideration.
|
|
11.3
|
Provision
of financial statements. The Guarantor will send to the
Bank:
|
|
(a)
|
As
soon as available and in any event within 120 days after the end of each
fiscal year of the Guarantor, the audited consolidated accounts of the
Guarantor and its Subsidiaries and audited individual accounts of the
Guarantor;
|
|
(b)
|
As
soon as available and in any event within 60 days after the end of each
quarter during each fiscal year of the Guarantor unaudited consolidated
accounts of the Guarantor and its Subsidiaries and unaudited individual
accounts of the Guarantor certified as to their correctness by the chief
financial officer of the Guarantor.
|
The
delivery requirements of the Guarantor under Clauses 11.3(a) and (b) shall be
deemed satisfied to the extent filings satisfying such requirement are made with
the SEC.
|
11.4
|
Form
of financial statements. All accounts (audited and unaudited)
delivered under Clause 11.3 will:
|
|
(a)
|
be
prepared in accordance with all applicable laws and generally accepted
accounting principles consistently
applied;
|
|
(b)
|
give
a true and fair view of the state of affairs of the Guarantor and its
Subsidiaries at the date of those accounts and of their profit for the
period to which those accounts relate;
and
|
|
(c)
|
fully
disclose or provide for all significant liabilities of the Guarantor and
its Subsidiaries.
|
|
11.5
|
Consents. The
Guarantor will maintain in force and promptly obtain or renew, and will
promptly send certified copies to the Bank of, all consents
required:
|
|
(a)
|
for
the Guarantor to perform its obligations under this
Guarantee;
|
|
(b)
|
for
the validity or enforceability of this Guarantee; and
the
|
Guarantor
will comply with the terms of all such consents.
|
11.6
|
Notification
of litigation. The Guarantor will provide the Bank with details
of any legal or administrative action involving the Guarantor as soon as
such action is instituted or it becomes apparent to the Guarantor that it
is likely to be instituted, unless it is clear that the legal or
administrative action cannot be considered material in the context of this
Guarantee.
|
|
11.7
|
Notification
of default. The Guarantor will notify the Bank as soon as the
Guarantor becomes aware of:
|
|
(a)
|
the
occurrence of an Event of Default or a Termination Event;
or
|
|
(b)
|
any
matter which indicates that an Event of Default or a Termination Event may
have occurred;
|
and will
thereafter keep the Bank fully up-to-date with all developments.
|
11.8
|
Maintenance
of status. The Guarantor will maintain its separate corporate
existence and remain in good standing under the laws of the Republic of
Liberia.
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12. JUDGMENTS
AND CURRENCY INDEMNITY
|
12.1
|
Judgments
relating to Master Agreement. This Guarantee shall cover any
amount payable by the Companies (or any of them) under or in connection
with any judgment relating to the Master
Agreement.
|
|
12.2
|
Currency
indemnity. In addition, clause 8 (Contractual Currency) of the
Master Agreement shall apply, with any necessary adaptations, in relation
to this Guarantee.
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13. SET-OFF
|
13.1
|
Application
of credit balances. The Bank may without prior
notice:
|
|
(a)
|
apply
any balance (whether or not then due) which at any time stands to the
credit of any account in the name of the Guarantor at any office in any
country of the Bank in or towards satisfaction of any sum then due from
the Guarantor to the Bank under this Guarantee;
and
|
|
(b)
|
for
that purpose:
|
|
(i)
|
break,
or alter the maturity of, all or any part of a deposit of the
Guarantor;
|
|
(ii)
|
convert
or translate all or any part of a deposit or other credit balance into
Dollars;
|
|
(iii)
|
enter
into any other transaction or make any entry with regard to the credit
balance which the Bank considers
appropriate.
|
|
13.2
|
Existing
rights unaffected. The Bank shall not be obliged to exercise
any of its rights under Clause 13.1; and those rights shall be without
prejudice and in addition to any right of set-off, combination of
accounts, charge, lien or other right or remedy to which the Bank is
entitled (whether under the general law or any
document).
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14. SUPPLEMENTAL
|
14.1
|
Continuing
guarantee. This Guarantee shall remain in force as a continuing
security at all times whilst any moneys remain outstanding under the
Master Agreement
|
|
14.2
|
Rights
cumulative, non-exclusive. The Bank’s rights under and in
connection with this Guarantee are cumulative, may be exercised as often
as appears expedient and shall not be taken to exclude or limit any right
or remedy conferred by law.
|
|
14.3
|
No
impairment of rights under Guarantee. If the Bank omits to
exercise, delays in exercising or invalidly exercises any of its rights
under this Guarantee, that shall not impair that or any other right of the
Bank under this Guarantee.
|
|
14.4
|
Severability
of provisions. If any provision of this Guarantee is or
subsequently becomes void, illegal, unenforceable or otherwise invalid,
that shall not affect the validity, legality or enforceability of its
other provisions.
|
|
14.5
|
Guarantee
not affected by other security. This Guarantee shall not
impair, nor be impaired by, any other guarantee, any Security Interest or
any right of set-off or netting or to combine accounts which the Bank may
now or later hold in connection with the Master
Agreement.
|
|
14.6
|
Guarantor
bound by Master Agreement. The Guarantor agrees with the Bank
to be bound by all provisions of the Master Agreement which are applicable
to the Companies in the same way as if those provisions had been set out
(with any necessary modifications) in this
Guarantee.
|
|
14.7
|
Applicability
of provisions of Guarantee to other Security Interests. Any
Security Interest which the Guarantor creates (whether at the time at
which it signs this Guarantee or at any later time) to secure any
liability under this Guarantee shall be a principal and independent
security, and Clauses 3 and 17 shall, with any necessary modifications,
apply to it, notwithstanding that the document creating the Security
Interest neither describes it as a principal or independent security nor
includes provisions similar to Clauses 3 and
17.
|
|
14.8
|
Applicability
of provisions of Guarantee to other rights. Clauses 3 and 17
shall also apply to any right of set-off or netting or to combine accounts
which the Guarantor creates by an agreement entered into at the time of
this Guarantee or at any later time (notwithstanding that the agreement
does not include provisions similar to Clauses 3 and 17), being an
agreement referring to this
Guarantee.
|
|
14.9
|
Third
party rights. A person who is not a party to this Guarantee has
no right under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce
or to enjoy the benefit of any term of this
Guarantee.
|
15. ASSIGNMENT
|
15.1
|
Assignment
by Bank. The Bank may assign its rights under and in connection
with this
|
|
|
Guarantee
to the same extent as it may assign its rights under the Master
Agreement.
|
16. NOTICES
|
16.1
|
Notices
to Guarantor. Any notice or demand to the Guarantor under or in
connection with this Guarantee shall be given by letter or fax
at:
|
▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇-▇▇-▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇
Bermuda
Attn: Elefterios Papatriphon
Fax No: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
▇▇ ▇▇▇-▇▇-▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇
Bermuda
Attn: Elefterios Papatriphon
Fax No: ▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇
or to
such other address which the Guarantor may notify to the Bank.
|
16.2
|
Validity
of demands. A demand under this Guarantee shall be valid
notwithstanding that it is served:
|
|
(a)
|
on
the date on which the amount to which it relates is payable by the
Companies (or any of them) under the Master
Agreement;
|
|
(b)
|
at
the same time as the service of a notice under the Master
Agreement;
|
and a
demand under this Guarantee may refer to all amounts payable under or in
connection with the Master Agreement without specifying a particular sum or
aggregate sum.
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16.3
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Notices
to Bank. Any notice to the Bank under or in connection with
this Guarantee shall be sent to the same address and in the same manner as
notices to the Bank under the Master
Agreement.
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17. INVALIDITY
OF MASTER AGREEMENT
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17.1
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Invalidity
of Master Agreement. In the event
of:
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(a)
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the
Master Agreement now being or later becoming, with immediate or
retrospective effect, void, illegal, unenforceable or otherwise invalid
for any other reason whatsoever, whether of a similar kind or not;
or
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(b)
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without
limiting the scope of paragraph (a), a bankruptcy of the Companies (or any
of them), the introduction of any law or any other matter resulting in the
Companies (or any of them) being discharged from liability under the
Master Agreement, or the Master Agreement ceasing to operate (for example,
by interest ceasing to accrue);
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this
Guarantee shall cover any amount which would have been or become payable under
or in connection with the Master Agreement if the Master Agreement had been and
remained entirely valid, legal and enforceable, or the Companies (or any of
them) had not suffered bankruptcy, or any combination of such events or
circumstances, as the case may be, and the Companies (or any of them) had
remained fully liable under it for liabilities whether invalidly incurred or
validly incurred but subsequently retrospectively invalidated; and references in
this Guarantee to amounts payable by the Companies (or any of them) under or in
connection with the Master Agreement shall include references to any amount
which would have so been or become payable as aforesaid.
18. GOVERNING
LAW AND JURISDICTION
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18.1
|
English
law. This Guarantee shall be governed by, and construed in
accordance with, English law.
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18.2
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Exclusive
English jurisdiction. Subject to Clause 18.3, the courts of
England shall have exclusive jurisdiction to settle any disputes which may
arise out of or in connection with this
Guarantee.
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18.3
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Choice
of forum for the exclusive benefit of the Bank. Clause 18.2 is
for the exclusive benefit of the Bank, which reserves the
rights:
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(a)
|
to
commence proceedings in relation to any matter which arises out of or in
connection with this Guarantee in the courts of any country other than
England and which have or claim jurisdiction to that matter;
and
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(b)
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to
commence such proceedings in the courts of any such country or countries
concurrently with or in addition to proceedings in England or without
commencing proceedings in England.
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The
Guarantor shall not commence any proceedings in any country other than England
in relation to a matter which arises out of or in connection with this
Guarantee.
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18.4
|
Process
agent. The Guarantor irrevocably appoints ▇▇▇▇▇▇▇ & Co. at
its registered office for the time being, presently at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, to act as its agent to receive and accept on its
behalf any process or other document relating to any proceedings in the
English courts which are connected with this
Guarantee.
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18.5
|
Bank’s
rights unaffected. Nothing in this Clause 18 shall exclude or
limit any right which the Bank may have (whether under the law of any
country, an international convention or otherwise) with regard to the
bringing of proceedings, the service of process, the recognition or
enforcement of a judgment or any similar or related matter in any
jurisdiction.
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18.6
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Meaning
of “proceedings”. In this Clause 18, “proceedings” means
proceedings of any kind, including an application for a provisional or
protective measure.
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THIS
GUARANTEE has been entered into on the date stated at the beginning of this
Guarantee.
EXECUTION
PAGE
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GUARANTOR
|
|
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SIGNED
by
)
for
and on behalf
of )
EXCEL
MARITIME )
CARRIERS
LTD. )
in
the presence
of: )
|
|
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BANK
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|
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SIGNED
by
for
and on behalf of
FORTIS
BANK
(NEDERLAND)
N.V.
In
the presence of:
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SK 02545
0001 884630