DEED OF GUARANTEE
Exhibit
10.62
THIS
DEED
OF GUARANTEE is made on 24th
October
2007
BY
AND
BETWEEN:
| (1) |
▇▇▇▇▇▇▇
▇▇▇ Clear,
born November
15, 1954 in
Port
▇▇▇▇▇▇▇▇▇, South Africa,
passport number ▇▇▇▇▇▇▇▇▇
issued on May
9, 2002
(the “Guarantor”),
and
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| (2) |
Tri
Star Capital Ventures Limited,
a
company organised and existing under the laws of the British Virgin
Islands with its registered address at ▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Cay 1, P.O. Box 362, Road Town,
Tortola, British Virgin Islands (the “Beneficiary”).
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WHEREAS:
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A.
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Tekoil
& Gas Corporation (the “Obligor”)
wishes to borrow certain monies from the Beneficiary under a Loan
Agreement between the Obligor and the Beneficiary dated on or about
the
date hereof (“Guaranteed
Agreement”);
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B.
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As
a condition to the Beneficiary agreeing to enter into the Guaranteed
Agreement and lend such monies, the Beneficiary requires this Guarantee;
and
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C.
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The
Guarantor expects to derive substantial benefit from the Beneficiary
agreeing to lend such monies to the
Obligor.
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IT
IS AGREED:
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1
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GUARANTEE
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| 1.1 |
The
Guarantor as primary obligor hereby unconditionally and irrevocably
guarantees to the Beneficiary the due and punctual payment by the
Obligor
of all monies that are or may become due from the Obligor under or
in
respect of the Guaranteed Agreement including without limitation
the
principal of and interest on the loan made under the Guaranteed Agreement
and any damages or other liability in respect of any breach of the
Guaranteed Agreement (the “Guaranteed
Amounts”).
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| 1.2 |
If
and whenever the Obligor defaults for any reason whatsoever in the
payment
of any Guaranteed Amount, the Guarantor shall forthwith upon demand
pay
(or procure the payment of) the Guaranteed Amount in regard to which
such
default has been made in the manner prescribed by the Guaranteed
Agreement
and so that the same benefits shall be conferred on the Beneficiary
as it
would have received if the Guaranteed Amounts had been duly paid
by the
Obligor.
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| 1.3 |
This
deed is in addition to and not in substitution for any other security
which the Beneficiary may at any time hold for payment of the Guaranteed
Amounts and may be enforced without first having recourse to any
such
security and without taking any steps or proceedings against the
Obligor.
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| 1.4 |
As
a separate and independent stipulation the Guarantor agrees that
any of
the Guaranteed Amounts which may not be recoverable from or enforceable
against the Obligor by reason of any legal limitation, disability
or
incapacity on or of the Obligor, the invalidity of the Guaranteed
Agreement, the Obligor not being legally bound by the Guaranteed
Agreement
for failure of it being properly executed and delivered, or any other
fact
or circumstance (other than proper payment or performance, binding
written
waiver by the Beneficiary, or any limitation imposed by the Guaranteed
Agreement) shall nevertheless be recoverable from the Guarantor as
though
the same had been owed by the Guarantor and the Guarantor were the
sole or
principal obligor in respect thereof and shall be paid by the Guarantor
forthwith upon demand.
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2
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NON-WAIVER
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Neither
the Guarantor’s liability under this deed nor the rights, powers and remedies
conferred upon the Beneficiary by this Deed or by law shall be released,
impaired or discharged by any matter or thing which might operate to affect
or
prejudice such rights, powers and remedies including without
limitation:
| 2.1 |
time
or any other concession, forbearance, forgiveness, indulgence or
arrangement being given to the Obligor by the Beneficiary or by anything
that the Beneficiary or the Obligor may do or omit or neglect to
do which,
but for this provision, might release or discharge the Guarantor’s
obligations hereunder;
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| 2.2 |
any
invalidity, unenforceability, illegality or voidability of any obligation
expressed to be assumed or owed by the Obligor under the Guaranteed
Agreement;
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| 2.3 |
the
existence of any claim, set-off or other rights which the Guarantor
may
have at any time against the Obligor, the Beneficiary, or any other
person
or which the Obligor may have against the Guarantor, whether in connection
with the Guaranteed Agreement or otherwise;
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| 2.4 |
any
payment or discharge under the Guaranteed Agreement which is avoided
or
repaid as a consequence of the amalgamation, reorganisation, liquidation,
dissolution, insolvency, receivership, administration or other similar
process against the Obligor; or
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| 2.5 |
any
compromise of any dispute with the Obligor, any failure of supervision
to
detect or prevent any fault by the Beneficiary or any assignment
of the
benefit of the Guaranteed
Agreement.
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3
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VARIATIONS.
NO INCREASE WITHOUT GUARANTOR’S
CONSENT.
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The
Guarantor hereby authorises the Obligor and the Beneficiary to make any addendum
or variation to the Guaranteed Agreement, and the Guarantor hereby guarantees
the due and punctual payment by the Obligor of all monies that are or may become
due from the Obligor under or in respect of the amended Guaranteed Agreement
under the terms of this deed; provided
that
if any
such addendum or variation increases the principal amount of the loan under
the
Guaranteed Agreement (otherwise than as a result of compounding interest as
provided therein), then unless it is made with the Guarantor’s express written
consent, such addendum or variation shall not increase the extent of the
Guarantor’s obligations and liabilities hereunder and this Deed and the
guarantees and undertakings in this Deed shall apply and extend only to such
monies as were due under the Guaranteed Agreement prior to such addendum or
variation and shall not apply to any monies due in respect of any drawdowns
made
pursuant to, or after, such addendum or variation.
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4
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DURATION
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This
deed
shall be effective at the date of its execution and shall remain in force for
the duration of the Guaranteed Agreement.
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5
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DISPUTED
CLAIMS
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If
the
Obligor defaults in the payment of any Guaranteed Amount, the Beneficiary shall
have the right to proceed against the Guarantor under this deed without
proceeding against or exercising or exhausting any other remedy against the
Obligor. The Guarantor may exercise all defences, set-offs, counterclaims and
other rights to which the Obligor is or may in respect of mature obligations
be
entitled under the Guaranteed Agreement and in any action brought by the
Beneficiary against the Guarantor under this deed the Guarantor may assert
any
such defence, set-off, counterclaim or other right as if the action had been
brought by the Beneficiary against the Obligor under the Guaranteed
Agreement.
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6
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REPRESENTATIONS
AND WARRANTIES
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The
Guarantor represents and warrants to the Beneficiary that:-
| 6.1 |
it
has the legal capacity and power to enter into, execute, deliver
and
perform this Deed;
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| 6.2 |
the
execution, delivery and performance by it of this Deed do not violate
or
conflict in any material way with any law applicable to it, any order
or
judgment of any court or other agency of government applicable to
it or
any of its assets or any contractual restriction binding on or affecting
it or any of its assets; and
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| 6.3 |
its
obligations under this Deed constitute its legal, valid and binding
obligations, enforceable in accordance with their respective terms
(subject to applicable bankruptcy, insolvency, moratorium or similar
laws
affecting creditors' rights generally and subject, as to enforceability,
to equitable principles of general
application).
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7
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SECURITY
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| 7.1 |
The
Guarantor represents and warrants that it has not taken or received
and
will not take or receive any security from the Obligor for or in
respect
of the Guarantor’s obligations under this
Deed.
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| 7.2 |
If
at any time the Guarantor has the benefit of any security in breach
of
this Clause 7, it shall hold such security on trust for the Beneficiary
and shall upon request by the Beneficiary, transfer or assign such
security to the Beneficiary as security for the Guarantor’s obligations
under this deed.
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8
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NON-DUPLICATION
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The
Beneficiary shall not be entitled to recover its loss more than once from the
Guarantor or the Obligor or any other guarantor. Nothing in this Deed shall
affect the obligation of the Beneficiary to mitigate its loss.
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9
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ASSIGNMENT
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| 9.1 |
The
Beneficiary may not assign or transfer any of its rights or obligations
under this Deed without the Guarantor’s
consent.
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| 9.2 |
The
Guarantor may not assign or transfer any of its rights or obligations
under this Deed without the Beneficiary’s
consent.
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10
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REMEDIES
AND WAIVERS
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| 10.1 |
No
delay or omission on the part of the Beneficiary in exercising any
right,
power or remedy provided by law or under this Deed shall impair such
right, power or remedy or operate as a waiver thereof or of any other
right, power or remedy.
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| 10.2 |
The
single or partial exercise by the Beneficiary of any right, power
or
remedy provided by law or under this deed shall not preclude any
other or
further exercise thereof or the exercise of any other right, power
or
remedy.
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| 10.3 |
The
rights, powers and remedies provided by this Deed are cumulative
with, and
not exclusive of, any rights, powers and remedies provided by
law.
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11
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PROPER
LAW AND JURISDICTION
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| 11.1 |
This
Deed shall be governed by, and shall be construed and interpreted
in
accordance with, the laws of England and Wales, without regard to
its
conflict of law principles.
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| 11.2 |
The
English courts have exclusive jurisdiction to settle any dispute
in
connection with this Agreement.
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| 11.3 |
The
English courts are the most appropriate and convenient courts to
settle
any such dispute.
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| 11.3.1 |
Notwithstanding
the foregoing provisions of this Clause, the parties agree that if
the
Beneficiary so requires, any dispute arising out of this Agreement
(including any question regarding its existence, validity or termination)
shall be referred to and finally resolved by arbitration under the
Rules
of Arbitration of the London Court of International Arbitration (the
Rules)
by one arbitrator appointed in accordance with the said Rules, which
Rules
are deemed to be incorporated by reference into this Clause
17.
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| 11.3.2 |
The
seat of arbitration shall be London. The applicable law shall be
English
law.
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| 11.3.3 |
The
parties agree that the language of the arbitration, including oral
hearings, written evidence and correspondence, shall be
English.
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| 11.3.4 |
A
duly rendered arbitration award shall be final and binding on the
parties
to the dispute.
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| 11.3.5 |
This
arbitration clause shall be separately
enforceable.
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12
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SERVICE
OF PROCESS
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| 12.1 |
The
Guarantor hereby irrevocably appoints Trident Corporate Services
(UK)
Limited, ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, as its agent under
this
Agreement for service of process in any proceedings before the English
courts.
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| 12.2 |
If
any person appointed as process agent is unable for any reason to
act as
agent for service of process, the Guarantor must immediately appoint
another agent on terms acceptable to the Beneficiary. Failing this,
the
Beneficiary may appoint another agent for this
purpose.
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| 12.3 |
The
Guarantor agrees that failure by a process agent to notify it of
any
process will not invalidate the relevant
proceedings.
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| 12.4 |
This
Clause does not affect any other method of service allowed by
law.
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13
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NOTICES
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| 13.1 |
Any
notice required to given to the Guarantor under this Deed shall be
in
writing and delivered personally or sent by commercial courier to
the
address included for Guarantor on the signature page hereof or to
such
other address as the Guarantor may from time to time specify in writing
to
the Beneficiary. Any notice shall be deemed to have been served when
actually delivered.
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4
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In
witness whereof, this deed has been executed and delivered as a deed on the
date
first mentioned above.
Signed
and delivered as a deed by
▇▇▇▇▇▇▇
▇▇▇ CLEAR
Signature:
/s/
▇▇▇▇▇▇▇ ▇▇▇ Clear
Address
for Notice Purposes:
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile:
281-364-8007
in
the
presence of:
Witness
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Signature
of witness:
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/s/
▇▇▇▇ ▇. ▇▇▇
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Name
of witness:
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▇▇▇▇
▇. ▇▇▇
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Address
of witness:
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▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
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Signed
and delivered as a deed by
TRI
STAR CAPITAL VENTURES LIMITED
By
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Director
in
the
presence of:
Witness
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Signature
of witness:
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/s/
▇. ▇. ▇▇▇▇▇
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Name
of witness:
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▇.
▇. ▇▇▇▇▇
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Address
of witness:
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▇▇▇
▇▇▇▇▇, ▇▇▇
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▇▇▇▇▇▇▇▇
▇▇▇▇▇▇
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▇▇▇▇▇▇
▇▇▇▇
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▇▇▇▇▇▇
▇▇▇ ▇▇▇
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