CONFORMED COPY
PRIVATE & CONFIDENTIAL
DATED 8th DECEMBER 1998
GLOBAL MARINE INC.
as guarantor
- and -
NELSTAR LEASING COMPANY LIMITED
as lessor
GUARANTEE AND INDEMNITY
relating to
Global Marine Leasing Corporation
and a Glomar Hull 456 class Deepwater Drillship with
▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇ number 1739
(t.b.n. "GLOMAR ▇.▇. ▇▇▇▇▇")
LIST OF CONTENTS
Clause Title Page Number
1. DEFINITIONS AND INTERPRETATION 1
1.1 DEFINITIONS 1
1.2 INTERPRETATION 3
2. GUARANTEE AND INDEMNITY 4
3 DEMANDS AND CERTIFICATES 5
4 TIME AND INDULGENCE 5
5 CONTINUING SECURITY 6
6. NO COMPETITION 7
7. GUARANTOR'S OBLIGATIONS 7
8. REPRESENTATIONS AND WARRANTIES 8
9. COVENANTS 11
9.1 General Covenants 11
10. PAYMENTS AND TAXES 12
10.1 PAYMENTS 12
10.2 Value Added Tax 14
11. ADDITIONAL SECURITY 15
12. ACKNOWLEDGEMENT AND DECLARATION 15
13. ASSIGNMENT 16
13.1 Assignment by Lessor 16
13.2 Assignment by ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇. COSTS AND EXPENSES 16
15. MISCELLANEOUS 17
15.1 Delay in Enforcement, Waivers etc. 17
15.2 Variation 17
15.3 Invalidity 17
15.4 Notices 17
15.5 Applicable Law 18
15.6 Counterparts 18
15.7 Further Assurances 18
15.8 Entire Agreement 18
16. SUBMISSION TO JURISDICTION 19
17. JUDGMENT CURRENCY 19
18. CONFIDENTIALITY 20
19. NATURE OF DOCUMENT 20
THIS GUARANTEE AND INDEMNITY dated 8th December 1998 is made
BETWEEN:
(1) GLOBAL MARINE INC., a company incorporated under the laws
of the State of Delaware in the United States of America
and having its principal place of business at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of
America (the "GUARANTOR"); and
(2) NELSTAR LEASING COMPANY LIMITED, a company incorporated
under the laws of England and Wales with company
registration number 1581384 whose registered office is at
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇
(the "LESSOR").
WHEREAS:
(A) Pursuant to the Shipbuilding Contract and the Head Lease,
the Lessor has agreed, inter alia, to purchase the Vessel
from the Builder and lease the same to the Lessee subject
to the terms and conditions therein contained.
(B) Pursuant to the Construction Supervision Agreement, the
Lessor's Agent has agreed to supervise the construction of
the Vessel for the Lessor upon the terms and conditions
therein contained.
(C) Pursuant to the Put Option Deed, GMCRL has agreed, inter
alia, to purchase the Lessor's rights and obligations
under the Shipbuilding Contract upon the occurrence of
certain events.
(D) Each of the Lessee, the Lessor's Agent and GMCRL is a
wholly owned Subsidiary (US) of the Guarantor.
(E) The Guarantor desires the Lessor to purchase the Vessel
from the Builder, to lease the same to the Lessee for the
purposes of the Lessee sub-leasing the same to the Sub-
Lessee and the Sub-Lessee entering into the Service
Contract with the Initial Service Contractor, and to enter
into the Relevant Lease Documents to which the Lessor is
or is to be a party.
(F) It is a condition precedent to the obligations of the
Lessor under the Head Lease that the Guarantor executes
and delivers this Guarantee and Indemnity to the Lessor.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
Save as otherwise expressly provided herein, words and
expressions used in this Guarantee and Indemnity shall
have the meanings, if any, respectively attributed thereto
in the Head Lease. In this Guarantee and Indemnity
(including the Recitals) the following words and
expressions shall have the meanings respectively
attributed to them below:
"GMCRL" means Global Marine ▇.▇. ▇▇▇▇▇ Limited, a company
incorporated under the laws of England and having its
registered office at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇;
"GROUP" means the Guarantor and its Holding Company (US)
and its subsidiaries (US) from time to time;
"GUARANTEED AGREEMENTS" means each of the Relevant Lease
Documents to which any of the lessee, the Lessor's Agent
and GMCRL is a party;
"GUARANTEED OBLIGATIONS" means any and all monies,
liabilities and obligations (whether actual or contingent,
whether now existing or hereafter arising, whether arising
in respect of or attributable to the period prior to the
date of this Guarantee and Indemnity or to any time
hereafter whether or not for the payment of money, and
including, without limitation, any obligation or liability
to pay damages and including any interest which, but for
the application of bankruptcy or insolvency laws, would
have accrued on the amounts in question) which are now or
which may at any time and from time to time hereafter be
due, owing, payable or incurred or be expressed to be due,
owing, payable or incurred from or by each of the Lessee,
the Lessor's Agent and GMCRL to the Lessor under or in
connection with the Guaranteed Agreements EXCEPT any
Excluded Obligations and references to "GUARANTEED
OBLIGATIONS" include references to any part thereof;
"HEAD LEASE" means the lease in respect of the Vessel
entered or to be entered into between the Lessor and the
Lessee;
"LESSEE" means Global Marine Leasing Corporation, a
company incorporated under the laws of the Commonwealth of
the Bahamas and having its registered office at c/o
McKinney, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇;
"LESSOR'S AGENT" means Global Marine International
Drilling Corporation, a company incorporated under the
laws of the Commonwealth of the Bahamas and having its
registered office at ▇/▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
▇▇▇▇▇▇ House, 4 ▇▇▇▇▇▇ Street, P.O. Box 3937, Nassau,
Bahamas;
"LIABILITY" means a liability, loss, charge, claim,
proceeding, damage, judgment, enforcement, penalty, fine,
fee, cost and expense of whatsoever nature and;
"LIABILITIES" shall be constructed accordingly;
"US GAAP" means generally accepted accounting principles
in the United States of America set forth in the opinions
and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other
entity as may be approved by a significant segment of the
accounting profession of the United States of America, as
in effect from time to time;
"VESSEL" means the ultra-deepwater drillship with the
Builder's hull number 1739 currently being construed by
the Builder and more particularly described in the Lease;
and
"YEAR 2000 ISSUE" means the failure of computer software,
hardware and firmware systems and equipment containing
embedded computer chips to properly receive, transmit,
process, manipulate, store, retrieve, re-transmit or in
any other way utilise data and information due to the
occurrence of the year 2000 or the inclusion of dates on
or after 1 January, 2000.
1.2 INTERPRETATION
(A) In this Guarantee and Indemnity references to:
(i) clauses, paragraphs, sub-paragraphs, or the
schedule are, unless otherwise specified,
references to clauses, paragraphs, sub-
paragraphs of, and the schedule to, this
Guarantee and Indemnity as from time to time
amended in accordance with the provisions of
this Guarantee and Indemnity;
(ii) any statute or other legislative provisions
shall, unless otherwise specified, be read
to include any statutory or legislative
modification or re-enactment thereof, or
substitution therefor;
(iii) this Guarantee and Indemnity or any other
agreement or instrument shall include this
Guarantee and Indemnity or such other
agreement or instrument as it may from time
to time be amended, novated, supplemented or
substituted with the agreement of the
parties thereto and, where such agreement
expressly so provides, the parties hereto;
(iv) "PERSON" shall include any individual,
company, corporation, firm, partnership,
joint venture, association, trust,
unincorporated organisation, government
(including any agency, department or
political sub-divisions thereof) state,
international organisation, European Union
institution, committee, department or
authority, whether having distinct legal
personality or not or any association or
partnership of two or more of the foregoing;
(v) "ASSIGNEE" or "ASSIGNS" of a person shall
include any person who has assumed all or
some of the rights and/or obligations of the
relevant person, whether by assignment,
novation or otherwise;
(vi) reference to any person shall include its
successors (whether of the same name or
another name) and permitted assignees;
(vii) the "ASSETS" of any person shall be
construed as a reference to the whole or any
part of its business, undertaking, property,
assets and revenue (including any right to
receive revenues);
(viii) words denoting the singular number shall
include the plural and vice versa;
(ix) the words "OTHER" and "OTHERWISE" shall not
be construed ejusdem generis with any
foregoing words where a wider construction
is possible;
(x) the "WINDING-UP" of a person also includes
the amalgamation, reconstruction,
reorganisation, administration, dissolution,
liquidation, merger or consolidation of that
person, and any equivalent or analogous
procedure under the law of any jurisdiction
in which that person is incorporated,
domiciled or resident or carries on business
or has assets; and
(xi) the words "INCLUDING" and "IN PARTICULAR"
shall be construed as being by way of
illustration or emphasis only and shall not
be construed as, nor shall they take effect
as, limiting the generality of the foregoing
words.
(B) Clause and other headings are for ease of reference
only and shall not affect the interpretation of
this Guarantee and Indemnity.
2. GUARANTEE AND INDEMNITY
2.1 In consideration of the Lessor, inter alia, entering, and
agreeing to enter, into the Head Lease and the other
Relevant Lease Documents to which it is or is to be a
party, the Guarantor:
2.1.1 as primary obligor and not as surety only, hereby
unconditionally and irrevocably guarantees to the
Lessor the due and punctual observance and
performance by each of the Lessee, the Lessor's
Agent and GMCRL of each and every one of the
Guaranteed Obligations;
2.1.2 hereby unconditionally and irrevocably covenants
with and undertakes with the Lessor that in the
event of a default by the Lessee, the Lessor's
Agent or GMCRL in the observance or performance for
whatever reason of any of the Guaranteed
Obligations, as and when the same shall be
expressed to be due to be observed or performed,
the Guarantor shall forthwith on demand by the
Lessor perform such Guaranteed Obligation or cause
such Guaranteed Obligation to be performed,
punctually as if such Guaranteed Obligation were
performed by the Lessee, the Lessor's Agent or
GMCRL, as the case may be; and
2.1.3 hereby irrevocably and unconditionally undertakes,
covenants and agrees with the Lessor as a primary
obligation to indemnify the Lessor and keep the
Lessor indemnified on demand and on a full
indemnity basis for and against any and all
Liabilities incurred or sustained by the Lessor in
relation to and arising out of the failure of the
Lessee, the Lessor's Agent or GMCRL duly and
punctually to perform the Guaranteed Obligations or
as a result of the whole or any part of the
Guaranteed Obligations being or becoming void,
voidable, unenforceable or ineffective as against
the Lessee, the Lessor's Agent or GMCRL, as the
case may be, for any reason whatsoever,
irrespective of whether such reason or any related
fact or circumstance was known or ought to have
been known to the Lessor or any of its officers,
employees, agents or advisers.
2.2 In addition to its liabilities under Clause 2.1 the
Guarantor shall pay or cause to be paid to the Lessor on
demand interest at the Default Rate (both before and after
judgment) accruing on a day to day basis, and on the basis
of a 365 day year (or a 360 day year or any other basis
when the amount in respect of which Default Rate interest
is payable under this Clause 2.2 is denominated in a
currency where it is customary for banks or financial
institutions to calculate interest on such a basis), on
each amount (or any part thereof) for the time being due
to the Lessor under this Guarantee and Indemnity and
unpaid from the date of demand on the Guarantor for
payment until payment is made (but excluding the day on
which value for any payment made is received by the
Lessor) PROVIDED THAT interest shall not be payable by the
Guarantor under this Clause 2.2 if and to the extent that
interest on the same monies continues to accrue at the
Default Rate under any of the Guaranteed Agreements and is
guaranteed hereunder.
2.3 The Guarantor hereby agrees that for the purposes of this
Guarantee and Indemnity, service by the Lessor on the
Lessee of a Termination Notice shall constitute a valid
and effective service of such notice and the Lessee shall
be conclusively deemed to have become liable to make the
payments expressed in Clause 21.5 of the Head Lease to be
payable by the Lessee to the Lessor upon service of such
notice notwithstanding that, as between the Lessee and the
Lessor, the Lessor is, by virtue of any laws of England
and Wales or any other applicable jurisdiction relating to
bankruptcy, insolvency or administration or any similar
laws, prohibited from serving such notice, repossessing
the Vessel or commencing or continuing any proceedings or
other legal process in England and Wales or such other
jurisdiction against the Lessee.
3. DEMANDS AND CERTIFICATES
3.1 In order to make any demand under this Guarantee and
Indemnity the Lessor shall serve upon the Guarantor a
notice in writing.
3.2 Any certificate from any director, officer or authorised
person of the Lessor or any agent of the Lessor contained
in any demand, notice or other communication given or made
by the Lessor under this Guarantee and Indemnity in
relation to the amount of the Guarantor's liability in
relation to the Guaranteed Obligations or any other amount
payable by the Guarantor under this Guarantee and
Indemnity shall be prima facie evidence that the facts
stated in such certificate are true and correct.
3.3 The Guarantor acknowledges and agrees with the Lessor
that, whenever the Lessor cannot reasonably ascertain with
certainty the amount of any liability of the Lessee, the
Lessor's Agent or GMCRL to the Lessor under any of the
Guaranteed Agreements, the Lessor may make demand on the
Lessee, the Lessor's Agent or, as the case may be, GMCRL
on the basis of a provisional estimate thereof by the
Lessor, and if any such demand is not satisfied in full
the Lessor may make demand on the Guarantor under this
Guarantee and Indemnity in accordance with and subject to
Clause 2 for the sum so demanded from the Lessee, the
Lessor's Agent or, as the case may be, GMCRL. Without
prejudice to Clauses 2 and 3.2, the Guarantor agrees that
no such demand on the Guarantor shall be vitiated or
invalidated if it subsequently transpires that the amount
demanded from the Lessee, the Lessor's Agent or, as the
case may be, GMCRL or the Guarantor was less than or
greater than the amount which was properly due. If it
subsequently transpires that an amount (including
interest) paid by the Guarantor was greater than the
amount which was properly due from the Guarantor, the
Lessor shall refund the excess to the Guarantor together
with interest thereon at LIBOR from and including the date
upon which such refund should have been made under this
Clause 3.3 to and including the date of actual payment
(after as well as before judgment). Such interest shall
accrue on a day to day basis and be compounded quarterly.
3.4 Without prejudice to Clauses 3.1, 3.2 and 3.3, the Lessor
may at any time and from time to time issue further or
corrected demands on the Guarantor in respect of any
Guaranteed Obligation.
4. TIME AND INDULGENCE
4.1 The Lessor shall be at liberty at all times and from time
to time, whether before or after any demand for payment
under this Guarantee and Indemnity and without discharging
or in any way affecting the Guarantor's liability
hereunder, to do all or any of the following:
4.1.1 terminate, amend or novate or agree to the
termination, amendment or novation (in accordance
with the terms of the Guaranteed Agreements) any of
the Guaranteed Agreements in any manner whatsoever;
4.1.2 grant to the Lessee, the Lessor's Agent or GMCRL or
to any other person any time or indulgence;
4.1.3 terminate or cancel the Shipbuilding Contract
and/or the purchase of the Vessel thereunder in
accordance with its terms;
4.1.4 deal with, exchange, renew, vary, release, modify
or abstain from perfecting or enforcing any
securities, guarantees or rights which the Lessor
may now or hereafter have from or against the
Lessee, the Lessor's Agent or GMCRL or any other
person in respect of the respective obligations of
the Lessee, the Lessor's Agent or GMCRL or such
other person under or in respect of the Guaranteed
Agreements or the transactions contemplated
thereby;
4.1.5 compound with, discharge or vary the liability of
the Lessee, the Lessor's Agent or GMCRL or any
other person or guarantor to the Lessee, the
Lessor's Agent or GMCRL or concur in, accept or
vary any compromise, arrangement or settlement with
the Lessee, the Lessor's Agent or GMCRL or any
other person or guarantor or concur in or vary any
deed of arrangement or deed of assignment for the
benefit of creditors of any such person;
4.1.6 omit to prove or fail to maintain any right of
proof for or to claim or enforce payment of any
dividend or composition; and
4.1.7 take or omit to take any security from the Lessee,
the Lessor's Agent or GMCRL or any other person or
guarantor in respect of the obligations of the
Lessee, the Lessor's Agent or GMCRL under or in
respect of the Guaranteed Agreements or the
transactions contemplated thereby, whether
contemporaneously with this Guarantee and Indemnity
or otherwise.
5. CONTINUING SECURITY
5.1 This Guarantee and Indemnity shall be a continuing
security and accordingly:
5.1.1 shall be binding on the Guarantor and its
successors and assigns;
5.1.2 shall not be discharged by any partial payment by
the Lessee, the Lessor's Agent or GMCRL or any
other person under or in respect of any of the
Guaranteed Agreements;
5.1.3 shall extend to cover the balance due at any time
from the Lessee, the Lessor's Agent or GMCRL to the
Lessor under or in respect of the Guaranteed
Agreements or the transactions contemplated
thereby;
5.1.4 shall be in addition to and not in substitution for
or derogation of any other security which the
Lessor may at any time hold in respect of the
obligations of the Lessee, the Lessor's Agent or
GMCRL under or in respect of the Guaranteed
Agreements or the transactions contemplated
thereby;
5.1.5 except to the extent that the Lessor expressly
waives the Guarantor's obligations under this
Guarantee and Indemnity, shall not be discharged or
in any way affected by any action taken or not
taken by the Lessor; and
5.1.6 shall not be discharged or in any way affected by
any merger with any other person or persons or
restructuring of any nature whatsoever of, or any
change of name by, the Lessee, the Lessor's Agent
or GMCRL (whether or not the same is consented to,
or otherwise approved by, the Lessor).
6. NO COMPETITION
6.1 From the date or dates upon which any demand is properly
made against the Guarantor under this Guarantee and
Indemnity until such time as the Lessor has received, and
is entitled to retain, payment of the Guaranteed
Obligations in full, the Guarantor shall not:
6.1.1 claim any set-off or counterclaim against the
Lessee, the Lessor's Agent or GMCRL in respect of
any payment by the Guarantor hereunder or in
respect of any outstanding actual or contingent
liability between the Guarantor and the Lessee, the
Lessor's Agent or, as the case may be, GMCRL; or
6.1.2 make or enforce any claim or right (including a
right of subrogation or contribution) against the
Lessee, the Lessor's Agent or GMCRL or prove in
competition with the Lessor in the event of the
liquidation or bankruptcy of the Lessee, the
Lessor's Agent or GMCRL in respect of any payment
by the Guarantor hereunder or in respect of any
outstanding actual or contingent liability between
the Guarantor and the Lessee, the Lessor's Agent or
GMCRL; or
6.1.3 in competition with the Lessor claim the benefit of
any security or guarantee now or hereafter held by
the Lessor for any money or liabilities due or
incurred by the Lessee, the Lessor's Agent or GMCRL
to the Lessor or any share therein.
7. GUARANTOR'S OBLIGATIONS
7.1 The Guarantor's obligations under this Guarantee and
Indemnity are those of primary obligor and exist
irrespective of any total or partial invalidity,
illegality or unenforceability of any of the Guaranteed
Agreements. The Guarantor agrees as a separate and
independent stipulation that if any sum arising under any
liability under the guarantees or the indemnities
contained herein is not or would not be recoverable on the
footing of a guarantee or an indemnity, whether by reason
of any legal limitation, disability or incapacity on or of
the Lessee, the Lessor's Agent or GMCRL or any other act
or circumstance whether known to the Lessor or not
(including without limiting the generality of the
foregoing the bankruptcy, insolvency, winding up,
administration, liquidation or reorganisation of the
Lessee, the Lessor's Agent or GMCRL, the loss for any
reason whatsoever by the Lessee, the Lessor's Agent or
GMCRL of its corporate status or existence, or any other
fact or circumstance which would or might otherwise
constitute a legal or equitable discharge of or defence to
the Guarantor), such sum shall nevertheless be recoverable
from the Guarantor as a sole and principal debtor and
shall be paid or caused to be paid by the Guarantor upon
demand by the Lessor.
7.2 The Lessor shall not be obliged before making demand under
or taking steps to enforce this Guarantee and Indemnity:
7.2.1 to take action or obtain judgment against the
Lessee, the Lessor's Agent or GMCRL or any other
person in any court or tribunal; or
7.2.2 to make or file any claim in a bankruptcy or
liquidation of the Lessee, the Lessor's Agent or
GMCRL or any other person; or
7.2.3 to exercise diligence against the Lessee, the
Lessor's Agent or GMCRL or any other person under
any of the Guaranteed Agreements or the
transactions contemplated thereby.
7.3 The Guarantor waives and agrees not to enforce or claim
the benefit of any and all rights it has or may from time
to time have as surety under any applicable law which is
or may be inconsistent with any of the provisions of this
Guarantee and Indemnity.
8. REPRESENTATIONS AND WARRANTIES
8.1 The Guarantor acknowledges that the Lessor has entered
into the Relevant Lease Documents in full reliance on
representations and warranties by the Guarantor in the
terms set out in this Clause 8 and the Guarantor now
represents and warrants to the Lessor that the following
statements are at the date hereof true and accurate,
namely that:
8.1.1 the Guarantor is a company duly incorporated and
validly existing under the laws of the State of
Delaware in the United States of America and has
the corporate power and authority to own its assets
and carry on its business as it is being presently
conducted and to enter into and perform its
obligations under this Guarantee and Indemnity and
the other Relevant Lease Documents to which it is
or is to be a party and to consummate the
transactions contemplated hereby;
8.1.2 the execution, delivery and performance by the
Guarantor of this Guarantee and Indemnity and the
other Relevant Lease Documents to which it is or is
to be a party and the consummation of the
transactions contemplated hereby have been duly
authorised by all necessary or appropriate
corporate action on the part of the Guarantor, do
not require any shareholder approval, or approval
or consent of any trustee or holders of any
indebtedness or obligations of the Guarantor except
such as have been duly obtained and are in full
force and effect, and do not contravene or
constitute a default under (aa) any law,
governmental rule, regulation or decree, directive,
convention, treaty, judgment, injunction or any
official or judicial order binding on the Guarantor
or any of its assets, (bb) its constitutional
documents or (cc) any agreement consent or
instruments to which it is a party or is binding
upon it or any of its assets nor result in the
creation or imposition of any Lien on any of its
assets pursuant to the provisions of any such
agreement, consent or instrument;
8.1.3 this Guarantee and Indemnity and the other Relevant
Lease Documents to which the Guarantor is or is to
be a party constitutes, or when executed and
delivered will constitute, the legal, valid and
binding obligations of the Guarantor enforceable in
accordance with its terms subject to general
principles of equity and the law affecting
creditors' rights generally;
8.1.4 no authorisation, approval, consent, licence,
exemption, registration, recording, filing or
notarisation and no payment of any duty or tax and
no other action whatsoever which has not been duly
and unconditionally obtained, made or taken is
necessary or desirable to ensure the validity,
enforceability or priority of the liabilities and
obligations of the Guarantor or the rights of the
Lessor under this Guarantee and Indemnity and the
other Relevant Lease Documents to which the
Guarantor is or is to be a party;
8.1.5 no event has occurred which constitutes, or which
with the giving of notice and/or the lapse of time
and/or a relevant determination would constitute a
contravention of, or a default under, any agreement
by which the Guarantor, its business or any of its
assets is bound or affected, being a contravention
or default which would be likely to either have a
material adverse effect on the business, assets or
financial or trading condition of the Guarantor or
materially and adversely affect its ability to
observe or perform its obligations under this
Guarantee and Indemnity and the other Relevant
Lease Documents to which the Guarantor is or is to
be a party;
8.1.6 no litigation, arbitration or administrative
proceedings or claim which would be likely to, by
itself or together with any other such proceedings
or claims, either have a material adverse effect on
its business, assets or financial or trading
condition or materially and adversely affect its
ability to observe or perform its obligations under
this Guarantee and Indemnity and the other Relevant
Lease Documents to which the Guarantor is or is to
be a party is presently in progress or, to the best
of the knowledge, information and belief of the
Guarantor, pending or threatened against the
Guarantor, its business or any of its assets;
8.1.7 No Termination Event has occurred and is continuing
and no Relevant Event has occurred and is
continuing;
8.1.8 the Guarantor has not taken any corporate action
nor, to the best of its knowledge and belief, have
any other steps been taken or legal proceedings
been started or threatened against it for its
winding up, dissolution, administration or re-
organisation or for the appointment of a receiver,
administrator, administrative receiver, trustee or
similar officer of it or of any or all of its
assets or revenues;
8.1.9 under applicable laws of the State of Delaware and
the federal laws of the United States of America in
force at the date hereof the Guarantor is not
required to deduct any Taxes from any payments that
it may be required to make under this Guarantee and
Indemnity or any of the other Relevant Lease
Documents to which the Guarantor is or is to be a
party;
8.1.10 the Guarantor is conducting its business in all
material respects in compliance with all applicable
laws, regulations and government directives and the
Guarantor has obtained all material licences,
permissions, authorisations and consents necessary
for the conduct of its business and to the best of
its knowledge and belief after due and proper
enquiry all such licences, permissions,
authorisations and consents are in full force and
effect;
8.1.11 the audited consolidated accounts of the Guarantor
for the period ending 31st December 1997 have been
prepared in accordance with US GAAP consistently
applied and fairly represent the financial
condition of the Group at that date and the results
of their operations for the accounting period ended
on that date, that there has been no material
adverse change in the consolidated financial
condition of the Group since that date nor have
there been any unrealised anticipated losses not
disclosed in such accounts or in the Guarantor's
other filings with the United States' Securities
and Exchange Commission;
8.1.12 all information furnished by the Guarantor to the
Lessor relating to the transactions contemplated by
the Guaranteed Agreements is true and accurate in
all material respects and there are no omissions of
material facts or misleading information contained
in such information;
8.1.13 neither the Guarantor nor any of its property or
assets is entitled to immunity on the grounds of
sovereignty or otherwise from any legal action,
suit or proceeding, attachment or other legal
process in any jurisdiction;
8.1.14 the Guarantor is the indirect legal and beneficial
owner of all of the issued share capital of the
Lessee, the Lessor's Agent and GMCRL;
8.1.15 the Guarantor is reviewing the effect of the Year
2000 Issue on the material computer software,
hardware and firmware systems and equipment
containing embedded mircrochips owned or operated
by or for itself, the Lessee and the Sub-Lessee
whether on board the Vessel, any other vessel owned
or operated and insured by a member of the
Guarantor's Group or ashore in the conduct of its
and the Lessee's and the Sub-Lessee's business.
In addition, the Guarantor is reviewing the effect
of the Year 2000 Issue on the material interfaces
between its systems and the systems of its major
suppliers. The costs of any reprogramming and
testing required as a result of the Year 2000 Issue
to permit the proper functioning of the material
systems and equipment of itself, the Lessee and the
Sub-Lessee and the material interfaces between its
systems and the systems of its major suppliers and
the proper processing of data are not reasonably
expected to result in a default by the Guarantor of
its obligations under this Guarantee and Indemnity
or to have a material adverse effect on the
business, assets, operations, prospects or
condition (financial or otherwise) of the
Guarantor;
8.1.16 each member of the Group has complied with all
Taxation laws in all jurisdictions in which it is
subject to Taxation and has paid all Taxes due and
payable by it and no material claims are being
asserted against it with respect to Taxes which
would be likely either to have a material adverse
effect on the business, assets, operations,
prospects or condition (financial or otherwise) of
the guarantor or materially and adversely affect
its ability to observe or perform its obligations
under this Guarantee and Indemnity and the other
Relevant Lease Documents to which the Guarantor is
or is to be a party;
8.1.17 no stamp or registration duty or similar taxes or
charges are payable in the State of Delaware or
Texas in respect of this Guarantee and Indemnity or
any of the other Relevant Lease Documents; and
8.1.18 subject to any qualifications contained in the
legal opinions addressed to the Lessor described in
paragraph 5 of Part 1 of Schedule 5 to the Head
Lease, the choice of English law to govern this
Guarantee and Indemnity and the other Relevant
Lease Documents to which the Guarantor is or is to
be a party is a valid choice of law and English law
will accordingly be applied by the courts in the
States of Delaware and Texas and the federal courts
of the United States of America if this Guarantee
and Indemnity or such other Relevant Lease
Documents or any claim hereunder or thereunder
comes under their jurisdiction upon proof of the
relevant provisions of English law. The submission
hereunder by the Guarantor to the jurisdiction of
the courts of England and the appointment by the
Guarantor of process agents in England to accept
service of process in respect of the jurisdiction
of such courts is valid and binding upon the
Guarantor.
8.2 The representations and warranties by the Guarantor
contained in Clause 8.1 (other than Clauses 8.1.9 and
8.1.11) shall be deemed to be repeated on and as of each
Instalment Date as if made with reference to the facts and
circumstances existing at such date (but so that the
representation and warranty in Clause 8.1.11 shall for
this purpose refer to the then latest audited consolidated
financial accounts of the Guarantor).
8.3 The representations and warranties contained in this
Clause 8 and the rights of the Lessor in respect thereof
shall survive the execution and delivery of this Guarantee
and Indemnity.
9. COVENANTS
9.1 GENERAL COVENENTS
The Guarantor hereby covenants with the Lessor that, so
long as it remains under any liability, actual or
contingent, under this Guarantee and Indemnity:
9.1.1 it will provide to the Lessor such financial and
other information relating to the Group as is
publicly available or as the Guarantor makes
available to its creditors generally including,
without limitation, copies of the quarterly and
annual consolidated audited accounts of the Group
no later than 60 days after the end of the
quarterly period or 120 days after the end of the
annual period (as the case may be) to which they
relate;
9.1.2 it will provide to the Lessor promptly, such
further information as is reasonably available to
the Guarantor or any other member of the Group
regarding the financial condition and operations of
the Guarantor or any other member of the Group, as
the Lessor may reasonably request;
9.1.3 it will at all times, and from time to time,
obtain, maintain, preserve and keep in full force
and effect any permits, consents, licences and
other authorisations governmental or otherwise as
are from time to time necessary for the performance
of its obligations under this Guarantee and
Indemnity and comply with any conditions attached
thereto;
9.1.4 except with the prior written consent of the
Lessor, it will not take or accept any Lien from
the Lessee, the Lessor's Agent or GMCRL or any
other person in respect of the Guarantor's
liability under this Guarantee and Indemnity
PROVIDED HOWEVER THAT any such Lien taken with or
without such consent shall be held by the Guarantor
for the benefit of and on trust for the Lessor so
long as the Guarantor remains under any actual or
contingent liability under this Guarantee and
Indemnity;
9.1.5 forthwith notify the Lessor if the Guarantor
becomes aware of the occurrence of any Termination
Event or Relevant Event;
9.1.6 each of the Lessee and, whilst and for so long as
the Lessor's Agent and GMCRL have any duties,
liabilities or obligations to the Lessor under the
Relevant Lease Documents, the Lessor's Agent and
GMCRL will remain a Subsidiary (US);
9.1.7 it shall take all commercially reasonable action to
complete in all material respects by 31st September
1999, the reprogramming and testing of all material
computer software, hardware and firmware systems,
computer interfaces and equipment containing
embedded microchips owned or operated by/or for
itself, the Lessee or the Sub-Lessee whether on
board the Vessel, any other vessel owned or
operated and insured by a member of the Guarantor's
Group or ashore in the conduct of its and the
Lessee's and the Sub-Lessee's business required as
a result of the Year 2000 Issue to permit the
proper functioning of such computer systems,
interfaces and other equipment. At the request of
the Lessor, the Guarantor shall provide to the
Lessor reasonable assurance of its compliance with
this Clause 9.1.7. Any information so provided by
the Guarantor shall be subject to the provisions of
Clause 18 of this Guarantee and Indemnity; and
9.1.8 its obligations hereunder do and will rank at least
pari passu with all other present and future
unsecured unsubordinated obligations of the
Guarantor other than obligations preferred by laws
applicable to corporations generally in the States
of Delaware and Texas and the federal laws of the
United States of America.
10. PAYMENTS AND TAXES
10.1 PAYMENTS
10.1.1 All sums payable to the Lessor pursuant to or in
connection with this Guarantee and Indemnity or any
document contemplated by or entered into pursuant
hereto, shall be paid in full without any set-off
or counterclaim whatsoever and free and clear of
all deductions or withholdings whatsoever save only
as may be required by law.
10.1.2 If any deduction or withholding is required by law
in respect of any payment due to the Lessor
pursuant to or in connection with this Guarantee
and Indemnity or any document contemplated by or
entered into pursuant hereto, the Guarantor shall:
(a) ensure or procure that the deduction or
withholding is made and that it does not
exceed the minimum legal requirement
therefor;
(b) pay, or procure the payment of, the full
amount deducted or withheld to the relevant
Taxation or other authority in accordance
with the applicable law;
(c) increase the payment in respect of which the
deduction or withholding is required so that
the net amount received by the Lessor after
the deduction or withholding (and after
taking account of any further deduction or
withholding which is required to be made
which arises as a consequence of the
increase) shall be equal to the amount which
the Lessor would have been entitled to
receive in the absence of any requirement to
make a deduction or withholding; and
(d) promptly deliver or procure the delivery to
the Lessor of appropriate receipts
evidencing the deduction or withholding
which has been made;
PROVIDED THAT if the Lessor determines, in its
absolute discretion, that it has received,
realised, utilised and retained a Tax benefit by
reason of any deduction or withholding in respect
of which the Guarantor has made an increased
payment under this Clause 10.1.2, the Lessor
shall, provided it has received all amounts which
are then due and payable by the Guarantor under any
of the provisions of this Guarantee and Indemnity,
pay to the Guarantor (to the extent that the Lessor
can do so without prejudicing the amount of that
benefit and the right of the Lessor to obtain any
other benefit, relief or allowance which may be
available to it) such amount, if any, as the Lessor
in its absolute discretion, shall determine will
leave the Lessor in no better and no worse position
than the Lessor would have been in if the deduction
or withholding had not been required;
PROVIDED FURTHER THAT:
(i) the Lessor shall have an absolute discretion
as to the time at which and the order and
manner in which it realises or utilises any
Tax benefit;
(ii) the Lessor shall not be obliged to disclose
any information regarding its business, Tax
affairs or Tax computation or those of any
member of the Lessor's Group;
(iii) if the Lessor has made a payment to the
Guarantor pursuant to this Clause 10.1.2 on
account of any Tax benefit and it
subsequently transpires that the Lessor did
not receive that Tax benefit, or received a
lesser Tax benefit, the Guarantor shall pay
on demand to the Lessor such sum as the
Lessor may determine being necessary to
restore the after-Tax position of the Lessor
to that which it would have been had no
adjustment under this proviso (iii) been
necessary;
(iv) the Lessor shall not be obliged to make any
payment under this Clause 10.1.2 if, by
doing so, it would contravene the terms of
any applicable law or any notice, direction
or requirement of any governmental or
regulatory authority (whether or not having
the force of law).
(v) if the Guarantor requests the Lessor, in writing,
to make an application pursuant to the provisions
of a double tax treaty for relief (whether in whole
or in part) in respect of any deduction or
withholding required by law, the Lessor shall (at
the cost of the Guarantor) take such action as the
Guarantor shall reasonably request to make such
application to an applicable Tax authority. If the
Lessor subsequently obtains a repayment (whether in
whole or in part) of such deduction or withholding
from that Tax authority in circumstances where the
Lessee has made an increased payment under this
Clause 10.1 the Lessor shall, provided that the
Lessor has received all amounts which are then due
and payable by the Guarantor under any of the
provision of this Guarantee and Indemnity pay to
the Guarantor as great an amount of the repayment
as possible as will leave the Lessor in no worse
position than the Lessor would have been in if the
deduction or withholding had not been required.
10.2 VALUE ADDED TAX
10.2.1 If the Lessor makes any supply for Value Added Tax
purposes pursuant to or in connection with this
Guarantee and Indemnity or any transaction or
document contemplated herein or therein, the
Guarantor shall (save to the extent that the Lessor
is entitled to be indemnified in respect of that
Value Added Tax by an increased payment under
Clause 10.2.2 below) at such time as the Lessor
certifies to the Guarantor that any amount of VAT
payable in respect of that supply has not been paid
to the Lessor and having duly accounted for such
VAT to Customs and Excise at the correct time and
having duly claimed bad debt relief in respect of
that VAT the Lessor either has or has not received
such relief, pay on demand to the Lessor an amount
equal to the aggregate of any Value Added Tax which
is payable in respect of that supply and has not
been the subject of bad debt relief and interest on
an amount equal to any Value Added Tax payable in
respect of the supply at LIBOR ascertained in
respect of the date on which such VAT was accounted
for to Customs and Excise for the period from that
date until the date of the Lessor's certificate or
the date upon which bad debt relief is received.
10.2.2 Save where expressly provided to the contrary, all
payments made under this Guarantee and Indemnity
are calculated without regard to Value Added Tax.
If any such payment constitutes the whole or any
part of the consideration for a taxable or deemed
taxable supply (whether that supply is taxable
pursuant to the exercise of an option or
otherwise), the amount of that payment shall be
increased by an amount equal to the amount of Value
Added Tax which is chargeable in respect of the
taxable supply in question PROVIDED THAT the Lessor
shall not be liable to pay an amount in respect of
Value Added Tax until such time as, and to the
extent that it receives a credit for such VAT as
"INPUT TAX", as defined in sub-section (1) of
section 24 of VATA, under sections 25 and 26 of
VATA, in which case such payment shall be made as
soon as practicable after the credit is received.
10.2.3 If any amount or Value Added Tax paid by the Lessor
pursuant to this Guarantee and Indemnity shall be
Irrecoverable VAT, the Guarantor shall forthwith on
demand by the Lessor indemnify the Lessor and keep
the Lessor fully indemnified at all times against
such Irrevocable VAT PROVIDED THAT if the Lessor
determines that such Irrecoverable VAT subsequently
proves to be recoverable, the Lessor shall pay to
the Guarantor such amount, if any, as the Lessor in
its absolute discretion shall determine will leave
the Lessor in no better and no worse a position
than the Lessor would have been in if no payment
had been made by the Guarantor to the Lessor under
this Clause 10.2.3.
11. ADDITIONAL SECURITY
This Guarantee and Indemnity is in addition to and is not
to prejudice, or be prejudiced by, any other guarantee or
security for the obligations of the Lessee, the Lessor's
Agent or GMCRL or any other person under the Guaranteed
Agreements or otherwise now or hereafter held by the
Lessor and it shall not be necessary for the Lessor before
claiming payment under this Guarantee and Indemnity to
resort to or seek to enforce any other guarantee or
security in respect of the said obligations of the Lessee,
the Lessor's Agent or GMCRL or any other person.
12. ACKNOWLEDGEMENT AND DECLARATION
12.1 The Guarantor agrees, acknowledges and declares that:
12.1.1 if any payment received by the Lessor in respect of
monies owing or due and payable by the Lessee, the
Lessor's Agent or GMCRL shall on the subsequent
insolvency or liquidation of the Lessee, the
Lessor's Agent or, as the case may be, GMCRL be
avoided under any laws relating to insolvency or
liquidation, such payment shall not be considered
as discharging or diminishing the liability of the
Guarantor under this Guarantee and Indemnity and
this Guarantee and Indemnity shall continue to
apply as if such payment had at all times remained
owing by the Lessee, the Lessor's Agent or, as the
case may be, GMCRL;
12.1.2 this Guarantee and Indemnity shall remain the
property of the Lessor and notwithstanding that all
monies and liabilities due or incurred by the
Lessee, the Lessor's Agent and GMCRL to the Lessor
which are guaranteed hereunder shall have been paid
or discharged the Lessor shall be entitled not to
discharge this Guarantee and Indemnity or any
security held by the Lessor for the obligations of
the Guarantor hereunder until the Lessor has
received, at the Guarantor's expense, such legal
opinions as the Lessor shall reasonably require in
terms satisfactory to the Lessor relating to those
aspects of the laws of any relevant jurisdictions
concerning the ability to set aside any such
payment or discharge and in the event of
bankruptcy, winding-up or any similar proceedings
being commenced in respect of the Lessee, the
Lessor's Agent or, as the case may be, GMCRL the
Lessor shall be at liberty not to discharge this
Guarantee and Indemnity or any security held by the
Lessor for the obligations of the Guarantor
hereunder for and during such further period as the
Lessor may reasonably determine;
12.1.3 if the Guarantor has not paid to the Lessor the
full amount of all sums then due under this
Guarantee and Indemnity the Lessor shall be
entitled, for the purpose of enabling the Lessor to
▇▇▇ the Lessee, the Lessor's Agent or, as the case
may be, GMCRL and/or any other guarantor of the
liabilities which are guaranteed by this Guarantee
and Indemnity or for proving in its or their
liquidation or in any similar proceedings for any
monies due and unpaid by the Lessee, the Lessor's
Agent or, as the case may be, GMCRL to the Lessor,
at any time place and keep for such time as it may
think fit any monies received hereunder, or under
any of such other guarantees or from any other
person, to the credit of an interest bearing
securities realised account or accounts (the rate
of interest being earned on such monies in such
account or accounts being the rate of interest
extended at that time to the other customers of the
Lessor of similar creditworthiness at that time as
the Guarantor) without any obligation on the part
of the Lessor to apply the same or any part
thereof in or towards the discharge of the
indebtedness and liabilities of the Lessee, the
Lessor's Agent or, as the case may be, GMCRL to the
Lessor;
12.1.4 it has received executed copies of, and is aware of
the terms of, the Guaranteed Agreements; and
12.1.5 in respect of the Guarantor's liability hereunder
after the Lessor has made any demand for payment,
the Lessor shall be entitled upon giving notice to
the Guarantor to set off the Guarantor's liability
hereunder against any credit balance to which the
Guarantor is beneficially entitled on any account
or accounts which the Guarantor may have at any of
the offices or branches of any member of Lloyds/TSB
Group plc and to retain as security for the
discharge of the Guarantor's liabilities all
securities or other property of the Guarantor held
by the Lessor (whether for safe custody or
otherwise) PROVIDED THAT nothing herein contained
shall apply to create any charge which depends for
its validity on being duly recorded in any public
registry and PROVIDED FURTHER THAT the failure by
the Lessor to give the notice to the Guarantor
under this Clause 12.1.5 shall in no way prejudice
its rights under this Clause 12.1.5.
13. ASSIGNMENT
13.1 ASSIGNMENT BY LESSOR
The Guarantor acknowledges and agrees that the Lessor
shall be entitled at any time and from time to time to
assign, transfer or otherwise dispose of all of its
interest in the Vessel together with this Guarantee and
Indemnity and the Relevant Lease Documents to which it is
a party to any person to whom the Lessor may assign,
transfer or otherwise dispose of all of its interest in
the Vessel and the benefit and burden of the Relevant
Lease Documents to which it is a party pursuant to
clause 28 of the Head Lease provided that, as at the time
of such assignment, transfer or other disposal (in the
case of an assignment by the Lessor to any person
described in clause 28.1(a) of the Head Lease) or, as the
case may be, at any time thereafter (in the case of an
assignment by the Lessor to any person described in clause
28.1(b) of the Head Lease), the Guarantor shall not be
required to suffer or incur any greater cost under this
Guarantee and Indemnity than would have been the case but
for such assignment.
13.2 ASSIGNMENT BY GUARANTOR
The Guarantor may not assign, transfer or part with any of
its rights or obligations under this Guarantee and
Indemnity or any of the Relevant Lease Documents without
the prior written consent of the Lessor.
14. COSTS AND EXPENSES
The Guarantor shall indemnify the Lessor, on a full
indemnity basis, from and against, and on demand reimburse
the Lessor for, all costs, charges and expenses, properly
(and prior to the occurrence of a Termination Event,
reasonably) incurred by the Lessor in connection with or
incidental to the protection and preservation of the
security hereby constituted or the exercise or
enforcement of, or in endeavouring to exercise or enforce,
any right or remedy conferred upon the Lessor hereunder or
by law including in connection with any action brought by
the Lessor to recover any payment due hereunder, or
relating to any breach of any covenant or obligation in
this Guarantee and Indemnity, whether or not any such
action progresses to judgment.
15. MISCELLANEOUS
15.1 DELAY IN ENFORCEMENT, WAIVERS ETC.
All waivers of any right, power or privilege by either
party hereto shall be in writing signed by such party. No
failure or delay on the part of either party in exercising
any power or right hereunder shall operate as a waiver
thereof nor shall any single or partial exercise of any
such right or power preclude any other or further exercise
of any such right or power. The rights and remedies
herein provided are cumulative and not exclusive of any
rights or remedies provided by law or in equity.
15.2 VARIATION
This Guarantee and Indemnity shall only be amended,
modified or varied by an instrument in writing executed by
or on behalf of the parties hereto.
15.3 INVALIDITY
If any term or provision of this Guarantee and Indemnity
or the application thereof to any person or circumstance
shall to any extent be invalid or unenforceable under any
applicable law neither the remainder of this Guarantee and
Indemnity or application of such term or provision to
persons or circumstances other than those as to which it
is already invalid or unenforceable shall be affected
thereby nor shall the validity, legality and
enforceability of such term or provision under the laws of
any other jurisdiction be in any way affected or impaired.
15.4 NOTICES
15.4.1 Any demand, consent, record, election or notice (a
"NOTICE") required or permitted to be given by
either party to the other under this Guarantee and
Indemnity shall be in writing and sent by first
class prepaid airmail post or by facsimile
transmission or delivered by hand addressed as
follows:
(i) if to the Guarantor to:
Global Marine Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: + (▇) ▇▇▇ ▇▇▇ ▇▇▇▇
(ii) if to the Lessor to:
Nelstar Leasing Company Limited
Great Surrey House
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Attention: The Managing Director
Facsimile: + (▇▇) ▇▇▇ ▇▇▇ ▇▇▇▇
or in each case to such other person or address or
facsimile number as one party may, by not less than
three (3) Business Days' notice, notify in writing
to the other party hereto.
15.4.2 Any notice shall be deemed to have been given or
received to or by the party to whom it is addressed
ten (10) days following posting, if posted by first
class prepaid airmail post and on delivery, if
delivered by hand and, in the case of a facsimile
transmission, upon receipt by the sender of a
transmission report showing the Notice has been
sent in its entirety. The sender of a Notice by
facsimile shall despatch an original of such Notice
in the first class airmail post with postage
prepaid in an envelope addressed to the recipient
of the facsimile at its address stated in Clause
15.4.1 but the facsimile Notice shall be the
definitive Notice for the purposes of this
Guarantee and Indemnity.
15.5 APPLICABLE LAW
This Guarantee and Indemnity shall be governed by and
construed, and performance thereof shall be determined, in
accordance with the laws of England.
15.6 COUNTERPARTS
This Guarantee and Indemnity may be executed in several
counterparts and any single counterpart or set of
counterparts, signed in either case by all of the parties,
shall be deemed to be an original, and all taken together
shall constitute one and the same instrument.
15.7 FURTHER ASSURANCES
The Guarantor agrees from time to time, and at the
Guarantor's expense, to do and perform such other and
further acts and execute and deliver any and all such
other instruments as may be required by law or reasonably
requested by the Lessor to establish, maintain and protect
the rights and remedies of the Lessor and to carry out and
effect the intent and purpose of this Guarantee and
Indemnity and the other Relevant Lease Documents,
including those required by the Lessor in connection with
the rights granted to it under Clause 12.1.5.
15.8 ENTIRE AGREEMENT
This Guarantee and Indemnity, in conjunction with the
Relevant Lease Documents and any letter agreements of even
date herewith between the Guarantor and the Lessor,
constitutes the entire agreement between the parties
hereto in relation to this Guarantee and Indemnity and
supersedes all previous proposals, agreements and other
written and oral communications in relation thereto.
16. SUBMISSION TO JURISDICTION
16.1 For the exclusive benefit of the Lessor, the Guarantor
hereby submits to the non-exclusive jurisdiction of the
courts of England with regard to this Guarantee and
Indemnity. Any legal action or proceedings with respect
to this Guarantee and Indemnity may be brought in the
courts of England or such other jurisdiction, as the
Lessor may elect. By its execution and delivery of this
Guarantee and Indemnity, the Guarantor:
(i) hereby accepts for itself and in respect of its
property, generally and unconditionally, the non-
exclusive jurisdiction of the aforesaid courts with
respect to this Guarantee and Indemnity;
(ii) waives any objections on the grounds of venue or
forum non conveniens or any similar grounds and
agrees that legal proceedings in any one or more
jurisdictions shall not preclude legal proceedings
in any other jurisdiction with respect to this
Guarantee and Indemnity;
(iii) agrees that final judgment against it in any action
or proceedings shall be conclusive and may be
enforced in any other jurisdiction with respect to
this Guarantee and Indemnity within or outside
England by suit on the judgment, a certified copy
of which shall be conclusive evidence of the fact
and of the amount of its indebtedness; and
(iv) hereby consents generally in respect of any legal
action or proceeding arising out of or in
connection with this Guarantee and Indemnity to the
giving of any relief or the issue of any process in
connection with such action or proceeding
including, without limitation, the making,
enforcement or execution against any property
whatsoever (irrespective of its use or intended
use) of any order or judgment which may be made or
given in such action or proceeding.
16.2 The Guarantor, in the case of the courts of England,
hereby designates, appoints and empowers WFW Legal
Services Limited (ref. CALP/DNO 2628.16002) at the address
of its registered office for the time being (presently ▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇) to receive, for and on
behalf of it, service of process in such jurisdiction in
any legal action or proceedings with respect to this
Guarantee and Indemnity. The Guarantor undertakes to
maintain an agent for the service of process in England at
all times whilst the Guarantor has any liability, actual
or contingent, under this Guarantee and Indemnity and if,
for any reason such agent named above or its successor
shall no longer serve as agent of the Guarantor to receive
service of process in England the Guarantor shall promptly
appoint a successor in England and advise the Lessor
thereof. It is understood that a copy of any process
served as above will be promptly forwarded (if necessary)
by first class prepaid mail to the Guarantor, but the
failure of the Guarantor to receive such copy shall not
affect in any way the service of such process on the said
person as the agent of the Guarantor.
17. JUDGMENT CURRENCY
If, under any applicable law, whether as a result of a
judgment against the Guarantor or the liquidation of the
Guarantor or for any other reason, any payment under or in
connection with this Guarantee and Indemnity is made or is
recovered in a currency (the "OTHER CURRENCY") other than
that in which it is required to be paid hereunder (the
"ORIGINAL CURRENCY") then, to the extent that the payment
(when converted at the rate of exchange and after
deducting commission on the date of payment or, in the
case of a liquidation, the latest date for the
determination of liabilities permitted by the applicable
law) falls short of the amount which is required to be
paid under or in connection with this Guarantee and
Indemnity as aforesaid, the Guarantor shall as a separate
and independent obligation fully indemnify the Lessor on
demand against the amount of the shortfall; and for the
purposes of this Clause 17 "RATE OF EXCHANGE" means the
rate at which the Lessor is able as at 11.00 a.m. (London
time) on the relevant date to purchase the Original
Currency with the Other Currency.
18. CONFIDENTIALITY
18.1 At all times during the Pre-Lease Period and the Lease
Period, each of the parties hereto shall keep confidential
and shall not, without the prior written consent, in the
case of the Guarantor, of the Lessor and, in the case of
the Lessor, of the Guarantor, issue any press release in
relation to the transactions evidenced by the Lease
Documents, or disclose to any other person the financial
details of any of the Lease Documents and the transactions
contemplated hereby or thereby or any other agreement
entered into after the date hereof by the Lessor and the
Guarantor in connection with any of the Lease Documents,
or release copies or drafts of any such document which
disclose or reveal the identity of the parties (or any of
them) provided that (i) the Lessor will not unreasonably
withhold or delay its consent to any proposed press
release and (ii) the parties hereto shall be entitled,
without any such consent, to disclose the same:
18.1.1 in connection with any proceedings arising out of
or in connection with this Guarantee and Indemnity
or any of the other Lease Documents; or
18.1.2 if required to do so by an order of a court of
competent jurisdiction whether in pursuance of any
procedure for discovery of documents or otherwise;
or
18.1.3 pursuant to any law or regulation having the force
of law; or
18.1.4 to any fiscal, monetary, tax, governmental or other
competent authority; or
18.1.5 to the auditors, legal or other professional
advises, insurance brokers or underwriters of any
member of either the Group or the Lessor's Group;
or
18.1.6 if any of the same is or shall become publicly
known otherwise than as a result of a breach by
such party of this Clause 18; or
18.1.7 in any manner contemplated by any of the Lease
Documents; or
18.1.8 to any other party to the Lease Documents or any
Additional Security Provider to the extent that
such Additional Security Provider has executed a
confidentiality undertaking in favour of the Lessor
in form and content reasonably acceptable to the
Lessor.
19. NATURE OF DOCUMENT
This Guarantee and Indemnity is a deed.
IN WITNESS whereof the Guarantor and the Lessor have caused this
Guarantee and Indemnity to be duly executed and delivered, in the
case of the Guarantor as its deed the day and year first above
written.
EXECUTED AND DELIVERED )
as a DEED by ) ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
GLOBAL MARINE INC. )
in the presence of: ▇▇▇▇ ▇. ▇▇▇▇▇ )
SIGNED BY )
for and on behalf of )
NELSTAR LEASING COMPANY LIMITED ) ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
in the presence of: ▇▇▇▇ ▇. ▇▇▇▇▇ )