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EXHIBIT 10.6
DEED OF GUARANTEE AND INDEMNITY
BETWEEN
HUGO INTERNATIONAL TELECOM INCORPORATED
AND
FIVE ARROWS COMMERCIAL FINANCE LIMITED
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THIS DEED OF GUARANTEE AND INDEMNITY
is made on the date specified in the Schedule to this Deed
BETWEEN:
(1) "FIVE ARROWS" Five Arrows Commercial Finance Limited
AND
(2) "THE GUARANTOR" The Persons or Corporations executing this Deed.
W I T N E S S E T H that in consideration of Five Arrows at the request of the
Guarantor entering into or continuing with an agreement with the Supplier named
in the Schedule to this Deed for invoice discounting and/or other financial
accommodation ("the Agreement") and/or approving any Debt thereunder THE
GUARANTOR hereby:
1. AGREES unconditionally and irrevocably and as primary obligor
to pay Five Arrows on demand all sums now or at any future
date due to Five Arrows from the Supplier.
2. GUARANTEES unconditionally and irrevocably and as primary
obligor the due performance of all other obligations of the
Supplier to Five Arrows however arising.
3. INDEMNIFIES Five Arrows against all actions claims demands
liabilities losses costs interest and damages which Five
Arrows may sustain or incur as a result of the insolvency of
the Supplier or of any breach or non-observance or
non-performance by the Supplier of any of its obligations to
Five Arrows or of any invalidity or other defect in the
Agreement.
4. AGREES THAT:
(i) Variations may from time to time be made to the
Agreement without the consent of or notice to the
Guarantor even though the Guarantor's liability to
Five Arrows may be increased.
(ii) The giving of time or the failure by Five Arrows to
enforce any remedies against the Supplier or any
customer or any other guarantor indemnitor or grantor
of security shall in no way affect the Guarantor's
liability to Five Arrows.
(iii) The terms of this guarantee and indemnity shall
constitute a continuing security notwithstanding the
fulfillment from time to time of any of the
obligations of the Supplier to Five Arrows and shall
remain in force until all amounts due from the
Supplier to Five Arrows have been finally and
unconditionally discharged.
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(iv) Any acknowledgment or admission by or any Judgment
obtained by Five Arrows against the Supplier shall be
binding on the Guarantor.
(v) The Guarantor's obligations shall continue even
though Five Arrows may at any time relinquish in
whole or in part any charge lien or security taken
from the Supplier or any customer or any other
guarantor indemnitor or grantor of security.
(vi) Until all sums due hereunder have been paid to Five
Arrows the Guarantor shall not be entitled to the
benefit of nor claim to be subrogated to any charge
lien or security held by Five Arrows for the due
performance of the Supplier's obligations nor shall
Five Arrows be under any obligation to enforce them
for the Guarantor's benefit.
(vii) Any sums due hereunder to Five Arrows shall from the
due date for payment bear interest at the same rate
as the Discount Charge referred to in the Agreement.
(viii) In arriving at the amount due to Five Arrows by the
Supplier Five Arrows shall be entitled to take into
account all liabilities whether actual or contingent
and to make a reasonable estimate thereof.
5. DECLARES THAT this Guarantee and Indemnity:
(i) Shall be governed by English Law.
(ii) Shall be binding upon the Guarantor's Executors or
Administrators or upon any Committee Receiver or
other person acting on the Guarantor's behalf.
(iii) May be assigned by Five Arrows.
(iv) Shall be in addition to and not in substitution for
any other security taken by Five Arrows for the
Supplier's obligation.
(v) Shall not be discharged or prejudiced by any defect
in the Agreement or any other guarantee or indemnity
or security or in their respective executions or by
any other event, matter of circumstance which would
or might but for this clause have discharged or
prejudiced this Guarantee.
(vi) Shall remain binding notwithstanding any change in
the constitution of the Supplier or the death or
legal disability of any other guarantor to Five
Arrows of the Suppliers' obligations.
6. ACCEPTS THAT any notice or demand by Five Arrows shall be
deemed to be validly served or made if sent or delivered to
the Guarantor's address stated below or to the registered
office of the Guarantor (if applicable) or to any other
address at which the Guarantor may carry on business and if
sent by post shall be
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conclusively deemed to have been delivered to the Guarantor
within 72 hours of the time of posting.
7. AGREES THAT monies received by Five Arrows by virtue of or in
connection with the guarantee and indemnity may be placed to
the credit of a suspense account with a view to preserving the
right of Five Arrows to prove for the whole of its claim
against the Supplier in any proceedings in or analogous to
bankruptcy liquidation receivership composition or
arrangement.
8. CONFIRMS THAT if (a) this Guarantee is executed by more than
one person their obligations hereunder are joint and several,
and (b) any provision hereof shall be held invalid or
unenforceable it is hereby declared and confirmed that such
event shall not affect any other provisions all of which shall
remain in full force and effect. Where this Deed is executed
by more than one Guarantor and such execution shall be
defective this shall in no way affect the liability of the
remaining parties.
9. AGREES THAT definitions used in the Agreement shall bear the
same meaning in this Deed.
10. AGREES THAT this Guarantee and Indemnity shall be construed
according to English Law and the Guarantor submits to the
non-exclusive jurisdiction of the English Courts.
IN WITNESS thereof the Guarantor has caused this Deed to be sealed on the date
specified in the Schedule hereto.
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THE SCHEDULE
Date of Execution
of this Deed 20th April 2000
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Name of the Supplier HUGO INTERNATIONAL LIMITED
Name and Address of
The First Guarantor HUGO INTERNATIONAL TELECOM INCORPORATED of
1013 Centre Road
City of Wilmington
County of New Castle
Delaware 19805/1297
USA
EXECUTED )
by the FIRST GUARANTOR )
acting by: )
Director: /s/ D.W. Foden
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Director/Secretary: /s/ M. Christmas
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