EXHIBIT 10.3
ALMIRA ENTERPRISES, INC.
-and-
NORDBANKEN AB (PUBL)
GUARANTEE AND INDEMNITY
RELATING TO OBLIGATIONS OF
COMMODORE HOLDINGS LIMITED
Sinclair Roche & Temperley
Royex House
5 Aldermanbury Square
London EC2V 7LE
Tel: +44 (0)20 7452 4000
Fax: +44 (0)20 7452 4001
Ref: GFS/252680
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INDEX OF CONTENTS
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Clause Heading Page No.
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1. DEFINITIONS AND CONSTRUCTION................................................................1
2. REPRESENTATIONS AND WARRANTIES..............................................................3
3. GUARANTEE AND INDEMNITY.....................................................................4
4. EXPENSES....................................................................................4
5. CONTINUING GUARANTEE........................................................................5
6. UNDERTAKINGS................................................................................6
7. ENFORCEMENT.................................................................................8
8. CURRENCY INDEMNITY.........................................................................10
9. ASSIGNMENT.................................................................................11
10. MISCELLANEOUS..............................................................................11
11. NOTICES....................................................................................12
12. GOVERNING LAW AND JURISDICTION.............................................................13
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THIS GUARANTEE AND INDEMNITY is given the 20th day of June, 2000
BY:-
(1) ALMIRA ENTERPRISES, INC. a company incorporated and registered under
the laws of Panama whose registered office is at c/o Galindo Arias &
Lopez, Scotia Plaza, No 18 Avenida Federico Boyd & Calle 51, Piso 9, 10
& 11, Panama, Republic of Panama (the "Guarantor" which expression
shall include the successors and permitted assigns of the Guarantor) in
favour of:-
(2) NORDBANKEN AB (PUBL) a company incorporated under the laws of Sweden
acting through its office at Ostra Hamngatan 16, SE-405 09 Gothenburg,
Sweden (the "Lender" which expression shall include its successors and
assigns).
WHEREAS:
(A) By a loan agreement dated 2000 made between the Lender (1) and
COMMODORE HOLDINGS LIMITED (the "Borrower") (2) the Lender agreed to
lend the Borrower two million United States Dollars (USD2,000,000)
pursuant to and subject to the terms and conditions therein contained.
(B) In order to induce the Lender to enter into the Agreement and to
advance the loan to be advanced thereunder and as a condition precedent
thereto the Guarantor has agreed to give the guarantee and indemnity
herein contained and to secure its obligations hereunder in the manner
hereinafter specified.
NOW THIS DEED WITNESSETH as follows:-
1. DEFINITIONS AND CONSTRUCTION
1.1 In this Guarantee and Indemnity unless the context otherwise requires:-
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"Agreement"
means the loan agreement referred to in Recital (A) above as
supplemented by any amendment or supplement thereto which may from time
to time be agreed to by the Lender and the Borrower;
"Default Rate"
means the rate of interest calculated in accordance with clause 4.3 of
the Agreement;
"Indebtedness"
means the Loan together with all interest accrued thereon and all other
moneys, costs, fees and expenses whatsoever which from time to time may
be or become owing or due and payable to the Lender under or pursuant
to the Agreement or any of the Security Documents;
"Loss"
means any and all losses, costs, expenses, damages, claims, demands,
rights of set-off and/or counterclaim incurred by the Lender in respect
of or in connection with the Agreement and/or the Security Documents or
any liability arising therefrom;
"Secured Obligations"
means all covenants, agreements, warranties, conditions and provisions
expressed or implied on the part of the Borrower to be performed,
observed or complied with under the Agreement including, without
limitation, the due and punctual payment of the principal sum and all
interest and other moneys expressed to be payable by the Borrower in
accordance with the terms of the Agreement; and
"this Guarantee"
means this Guarantee and Indemnity.
1.2 Unless otherwise defined herein or the context otherwise requires,
words and expressions defined in the Agreement shall have the same
meanings herein. Clause headings are inserted for convenience only and
shall be ignored in the interpretation of this Guarantee.
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2. REPRESENTATIONS AND WARRANTIES
2.1 The Guarantor HEREBY REPRESENTS AND WARRANTS to the Lender that as of
the date hereof and (save in respect of sub-paragraph (B)(ii) below) as
continuing warranties until all of the Indebtedness shall have been
paid and discharged in full:-
(A) the Guarantor has full power and authority to make and perform
this Guarantee and such of the Security Documents to which the
Guarantor is or will be a party and each of the Guarantee and the
relevant Security Documents constitutes (or will constitute when
executed) the legal, valid and binding obligations of the
Guarantor enforceable in accordance with its terms;
(1) the making and performance by the Guarantor of this Guarantee and
such of the Security Documents to which the Guarantor is or will
be a party will in no way exceed the powers granted to the
Guarantor by, or violate in any respect any provision of (i) any
mortgage, charge, deed, contract or other undertaking or
instrument to which the Guarantor is a party or which is binding
on the Guarantor or any of the assets of the Guarantor; or
(ii)any law or regulation or any order or decree of any
governmental authority, agency or court; or (iii) the Memorandum
and/or Articles of Association (or equivalent corporate
documents) of the Guarantor;
(2) all consents, licences, approvals or authorisations which are
required in connection with the execution, validity, performance
or enforceability of this Guarantee and such of the Security
Documents to which the Guarantor is or will be a party have been
obtained and are and will continue to be valid and subsisting;
(3) save as disclosed to the Lender in writing, the Guarantor is not
in default under any agreement to which the Guarantor is a party
or by which the Guarantor may be bound, nor in respect of any
financial commitment or obligation;
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(4) the Guarantor is not engaged in litigation or arbitration before
any court or before any tribunal which might if determined
against the Guarantor have a material adverse effect on the
financial condition of the Guarantor and there is no claim
against the Guarantor which, with the passage of time might
result in any such litigation or arbitration; and
(5) the Guarantor has received a copy of the Agreement and approves
of and agrees to the terms and conditions thereof.
3. GUARANTEE AND INDEMNITY
3.1 The Guarantor HEREBY UNCONDITIONALLY AND IRREVOCABLY:-
(A) GUARANTEES the due and punctual performance and observance of and
compliance with the Secured Obligations by the Borrower in
accordance with the terms of the Agreement and the Guarantor
HEREBY COVENANTS that, if any amount of principal or interest or
other moneys payable by the Borrower under the Agreement shall
not be paid when the same shall be due and payable, whether on
maturity or otherwise, the Guarantor will, forthwith on demand,
make such payment, or cause such payment to be made, to the
Lender in the manner specified by the Lender together with all
interest expressed to accrue on any such amount pursuant to the
Agreement until the date of receipt by the Lender; and
(1) without prejudice to (A) above and as a separate and independent
obligation thereto INDEMNIFIES and agrees to indemnify the Lender
upon written demand in respect of any Loss which the Lender may
suffer or incur in good faith directly or indirectly as a result
of or in connection with any failure by the Borrower fully and
effectually to perform, observe and/or comply with the Secured
Obligations.
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4. EXPENSES
4.1 The Guarantor further agrees to pay to the Lender on demand on a full
indemnity basis all commissions, charges, costs and expenses of
whatsoever nature incurred by the Lender in the administration,
preservation and enforcement of any of its rights hereunder or under
such of the Security Documents to which the Guarantor is or will be a
party together with interest thereon (both before and after judgment)
at the Default Rate from the date of demand until the date of receipt
by the Lender compounded on such days in the year as the Lender
reasonably may select.
5. CONTINUING GUARANTEE
5.1 This Guarantee shall:-
(1) be a continuing security and shall be construed and take effect
as security for all of the Secured Obligations until they shall
have been satisfied and discharged in full and the Guarantor
hereby waives any right of set-off or counter-claim which the
Guarantor may otherwise have had against the Lender;
(2) be in addition to any other guarantee, indemnity or other
security which the Lender may now or hereafter hold in respect of
all or any of the Secured Obligations whether from the Guarantor
or otherwise, and shall be binding on the Guarantor
notwithstanding that any other Security Party shall fail to give
the security to be provided by it or shall be released from any
such security or such security shall be varied;
(3) not be discharged by the granting to any Security Party of time
or any other indulgence or by compounding with any Security Party
or by any variation whatsoever of any of the Secured Obligations
or by any actual or alleged invalidity, irregularity or
unenforceability of or defect in any of the Secured Obligations
or in any of the provisions of the Agreement or any one or more
of the Security Documents or by the absence of any action to
enforce any of the rights of the Lender thereunder or by any act
or circumstance whatsoever whereby this Guarantee would or might
otherwise but for the provisions of this Clause have been so
discharged; and
(4) remain in full force and effect notwithstanding any change in the
name, constitution or otherwise of any Security Party or the
Lender or their respective successors and assigns or the
absorption or amalgamation of any thereof by or with any other
corporate entity.
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6. UNDERTAKINGS
6.1 The Guarantor AGREES WITH REPRESENTS AND UNDERTAKES to the Lender
that:-
(A) if the Guarantor becomes liable to make any payment pursuant to
Clause 3 hereof, then the Guarantor will not thereafter make
demand for payment of any moneys for the time being due to the
Guarantor from any Security Party or exercise any other right or
remedy to which the Guarantor is entitled in respect of such
moneys unless and until all moneys whatsoever owing by all
Security Parties to the Lender have been irrevocably paid in
full;
(1) if any Security Party shall become insolvent or shall be wound up
or liquidated, the Guarantor shall not (unless so required by the
Lender and then only on condition that the Guarantor holds the
benefit of any claim in such insolvency or liquidation upon trust
to pay any amounts recovered thereunder to the Lender) prove in
such insolvency, winding-up or liquidation until all moneys
whatsoever owing by all Security Parties to the Lender have been
irrevocably paid in full;
(2) the Guarantor has not taken and will not take from any Security
Party any security whatsoever for the moneys hereby secured and,
notwithstanding the foregoing, any such security now or hereafter
held by the Guarantor shall be held in trust for the Lender and
for its benefit in respect of the obligations of the Guarantor
hereunder;
(3) the Guarantor will not exercise any right to which the Guarantor
may be entitled as a surety until all moneys whatsoever owing or
due and payable by all Security Parties to the Lender have been
irrevocably paid in full;
(4) the Guarantor hereby waives any right to require the Lender to
proceed first against any Security Party and/or to give notice to
or demand on any Security Party whatsoever;
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(5) all payments to be made hereunder shall be made in immediately
available funds without set-off or counter-claim and free and
clear of and without deduction for or on account of any present
or future taxes of any nature now or hereafter imposed, levied,
collected, withheld, deducted or assessed by any taxing and/or
governmental authority whatsoever or wheresoever unless the
Guarantor is compelled by law to deduct such taxes. In that event
all such taxes shall be borne by the Guarantor or, if under the
provisions of any applicable law this stipulation cannot be
applied, then the Guarantor shall increase the payments to the
Lender so that the net amounts received by the Lender shall be
equal to the full amounts which the Lender would have received
had payment not been made subject to such taxes; PROVIDED THAT
taxes payable by the Lender on its profits arising by virtue of
the transaction herein described in the countries in which it
carries on business shall not be included in the foregoing. As
used in this sub-clause the term "taxes" includes all levies,
imposts, duties, charges, fees, deductions and withholdings
whatsoever and any restriction or condition resulting in a
charge.
If the Guarantor is required to deduct taxes, the Guarantor will
promptly thereafter deliver all receipts and other documents
relating thereto to the Lender.
If and when the Lender shall receive (in its reasonable opinion)
a credit in respect of any taxes deducted by the Guarantor and to
which this sub-clause refers, it shall allow the Guarantor a
credit against amounts due or to become due under the Agreement
or any one or more of the Security Documents (the "Guarantor's
Credit") of such amount as shall be fair and reasonable in the
opinion of the Lender in respect of any such credit as is
received by the Lender or, if all of the Indebtedness shall have
been repaid in full, shall make a payment to the Guarantor equal
to the amount of the Guarantor's Credit. The Lender shall be
under no obligation to discuss or reveal its tax affairs with the
Guarantor;
(6) the Guarantor shall give to the Lender all such information as
the Lender may request with regard to the performance by the
Security Parties of their respective obligations under the
Agreement and the Security Documents;
(7) all the authorised and issued share capital of the Guarantor is
and will remain wholly and beneficially owned and controlled by
the Borrower;
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(8) as security for the due performance and observance of the
obligations of the Guarantor under this Guarantee the Guarantor
shall provide the Lender with the Mortgage and the Insurance
Assignment in respect of the Vessel as provided in the Agreement;
and
(9) the Guarantor shall observe and perform all those covenants and
undertakings in the Agreement whose observance and performance by
the Guarantor the Borrower has undertaken to procure.
7. ENFORCEMENT
7.1 The Guarantor AGREES, ACKNOWLEDGES AND DECLARES that:-
(1) in order to give effect to this Guarantee the Lender shall be at
liberty to act as though the Guarantor were the principal debtor
and obligor in respect of the Secured Obligations and in the
event of the winding-up, dissolution, reconstruction or
amalgamation in which or as a consequence of which any Security
Party loses its separate corporate identity the Guarantor shall
become liable to the Lender for the payment of all moneys
expressed to be payable by the Security Parties to the Lender
pursuant to the Agreement and the Security Documents and the
performance and observance of and compliance with all the Secured
Obligations;
(2) any release, settlement or discharge in relation to the
obligations of the Guarantor hereunder shall be conditional upon
no security, disposition or payment to the Lender in respect of
any of the Indebtedness being avoided or reduced by virtue of any
provisions or enactments relating to bankruptcy, insolvency or
liquidation and if any such security, disposition or payment be
avoided or reduced as aforesaid, this Guarantee shall continue to
apply in respect of the amount of such security, disposition or
payment and the Guarantor shall indemnify the Lender in respect
thereof;
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(3) the Lender may take such action as the Lender in its own
discretion may consider appropriate against any other Security
Party or Parties to recover moneys due and payable in respect of
the Secured Obligations, the Guarantor, however, remaining liable
under this Guarantee for payment and discharge of all moneys
payable in respect thereof;
(B) the Lender shall be entitled (after a demand for payment has been
made hereunder but without further notice) to procure the
setting-off of any liability of the Guarantor hereunder against
any moneys standing to the credit of any account or accounts
which the Guarantor may now or hereafter have with the Lender at
any of the Lender's offices or with any subsidiary or parent
company of the Lender (whether or not those moneys are then due
to the Guarantor) and, for this purpose, to combine any and all
such accounts and to use all or part of those moneys to buy such
other currency or currencies as may be required to enable the
Lender to effect that setting-off. The Lender shall also be
entitled to retain as security for the discharge of the liability
of the Guarantor hereunder all securities or other property of
the Guarantor held by the Lender at any of the Lender's offices
and/or by any subsidiary or parent company of the Lender (whether
for safe custody or otherwise);
(4) notwithstanding that the Secured Obligations and any moneys due
from the Guarantor hereunder shall have been complied with, paid
or discharged, the Lender shall be entitled to retain this
Guarantee and refrain from releasing the Guarantor from this
Guarantee for such period thereafter as the Lender may determine
in the event of bankruptcy, winding-up or any similar proceedings
being commenced in respect of any Security Party or any other
person as may have performed, paid or discharged any of the
Secured Obligations within such period as aforesaid;
(5) for the purpose of enabling the Lender to sue any other Security
Party or to prove in its winding-up, liquidation or bankruptcy or
in any similar proceedings for any moneys due and unpaid by the
Borrower to the Lender, the Lender may at any time place and keep
for such time as it may think fit any moneys received hereunder
to the credit of an interest bearing suspense account without any
obligation on the part of the Lender to apply the same or any
part thereof in or towards the discharge of the Indebtedness; and
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(6) the certificate of the Lender as to the sum of money owed by any
Security Party to the Lender shall, in the absence of manifest
error, be conclusive for any purpose and binding on the
Guarantor.
8. CURRENCY INDEMNITY
8.1 Any amount received by the Lender in connection herewith in a currency
(the "Relevant Currency") other than the currency in which the same
should be received pursuant to the terms hereof (the "Agreed Currency")
whether pursuant to a judgment or order of a court or tribunal of any
jurisdiction or any enforcement proceedings or otherwise howsoever in
connection herewith or otherwise shall only constitute a discharge to
the Guarantor to the extent of the amount of the Agreed Currency which
the Lender is able, promptly on receipt, to purchase in such foreign
exchange market as the Lender may select with the amount of the
Relevant Currency so received. If:-
(1) the amount of the Agreed Currency which the Lender is so able to
purchase is less than the amount of the Agreed Currency due to
the Lender hereunder; and/or
(2) any condition imposed in relation to the conversion of any amount
paid in the Relevant Currency into the Agreed Currency including,
without limitation, any condition imposed by any exchange control
authority, reduces the amount in the Agreed Currency which the
Lender actually receives for the amount of such payment in the
Relevant Currency below that amount which it would have received
had such condition not been imposed;
the Guarantor will indemnify and hold the Lender harmless against any
loss, damage, costs and/or expenses arising as a result.
8.2 The above indemnity shall constitute a separate and independent
obligation from the other obligations contained herein shall give rise
to a separate and independent cause of action and shall continue in
full force and effect notwithstanding any judgment or order for amounts
due hereunder.
<PAGE>
9. ASSIGNMENT
9.1 This Guarantee shall be binding upon and inure to the benefit of and be
enforceable by the successors and permitted assigns of the Lender. The
Guarantor may not assign or transfer rights or obligations hereunder
without the prior written consent of the Lender (which may be
withheld).
9.2 A person (including any body of persons) who is not a party to this
Guarantee has no right under the Contracts (Rights of Third Parties)
Act 1999 to enforce any term of this Guarantee but this does not affect
any right or remedy of a third party which exists or is available apart
from that Act.
10. MISCELLANEOUS
10.1 The Guarantor HEREBY AGREES that at any time and from time to time,
upon the request of the Lender, the Guarantor will promptly and duly
execute and deliver and/or procure the execution and delivery of any
and all such further instruments and documents as may be deemed
desirable by the Lender for the purpose of obtaining for the Lender the
full benefits hereof and of the rights and powers herein granted.
10.2 Any provisions contained herein prohibited by or unlawful or
unenforceable under any applicable law shall, to the extent required by
such law, be ineffective without modifying the remaining provisions
hereof. Where however the provisions of any such applicable law may be
waived, they are hereby waived by the Guarantor to the fullest extent
permitted by such law with the intent that this Guarantee shall be
valid, binding and enforceable in accordance with its terms.
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10.3 Time is of the essence of this Guarantee but no failure or delay by the
Lender in exercising any right, power or privilege hereunder and no
course of dealing between any Security Party and the Lender shall
operate as a waiver thereof, nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein
are cumulative and not exclusive of any rights or remedies which the
Lender would otherwise have. No notice to or demand on the Guarantor
shall entitle the Guarantor to any other or further notice or demand in
similar or other circumstances or constitute a waiver of the rights of
the Lender to any other or further action in any circumstances without
notice or demand.
11. NOTICES
11.1 Any demand or notice to be given hereunder shall be in writing and sent
by prepaid first class or airmail letter post or telex or facsimile or
delivered by hand addressed to the Guarantor as follows:-
c/o Commodore Holdings Limited
4000 Hollywood Boulevard
Suite 385-S
Hollywood
Fl 33021
U.S.A.
Attention Chief Financial Officer
Facsimile No: + 954 967 2135)
with a copy to:-
Kathleen L Deutsch, P.A.
Broad and Cassel
Miami Center - Suite 3000
201 S. Biscayne Boulevard
Miami
Fl 33131
U.S.A.
Facsimile no. + 305 373 9443
or to such other person or address as the Guarantor may notify in
writing to the other party hereto.
11.2 Any such notice shall be deemed to have been validly given and received
on the date of despatch if sent by telex and five (5) days after having
been posted if sent by prepaid first class or airmail post.
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12. GOVERNING LAW AND JURISDICTION
12.1 This Guarantee and all agreements entered into pursuant or supplemental
hereto shall be governed by and construed in accordance with English
law.
12.2 The Guarantor HEREBY SUBMITS for the exclusive benefit of the Lender to
the jurisdiction of the English Courts and appoints Consult Marine
whose registered office is for the time being at 58 London Fruit
Exchange, Brushfield Street, London E1 6EP or such other person as the
Guarantor may with the prior written approval of the Lender from time
to time appoint to be the attorney of the Guarantor for the purpose of
accepting service on behalf of the Guarantor of any writ, notice,
order, judgment or other legal process with respect hereto or any
matter arising hereout and agrees that failure by any such process
agent to give notice of such service of process to the Guarantor shall
not impair or affect the validity of such service or of any judgment
based thereon. The aforesaid submission shall not limit the right of
the Lender to commence proceedings against the Guarantor in any
jurisdiction it may think fit or in two or more jurisdictions.
IN WITNESS whereof this Guarantee has been executed as a deed the day and year
first before written.
SIGNED SEALED and DELIVERED )
as a DEED )
by ALMIRA ENTERPRISES, INC. )
)
acting by Frederick A. Mayer ) /s/Frederick A. Mayer
)
)
its duly appointed attorney-in-fact )
in the presence of :- )
Louise M. Batista
/s/ Louise M. Batista
