THIS GUARANTEE (hereinafter called "Guarantee") is made this
19 day of November 1999 by GLOBAL MARINE INC. a corporation
incorporated under the laws of the State of Delaware
(hereinafter called the "Guarantor") in favour of
Xxxxxxx and Xxxxx Shipbuilding and Heavy Industries Limited a
corporation incorporated under the laws of Northern Ireland
(hereinafter called the "Builder")
WHEREAS
(A) The Builder and Nelstar Leasing Company Limited (the "Owner")
are party to the Shipbuilding Contract in respect of Hull No.
1739 originally made between the Builder and Global Marine
International Drilling Corporation (formerly Global Marine
International Services Corporation) as novated to Global
Marine Leasing Corporation and as subsequently amended,
supplemented and novated in favour of the Owner (the
"Shipbuilding Contract").
(B) The Builder has made claims in excess of Pounds-Sterling 130,000,000
under the Shipbuilding Contract and the equivalent contract for Hull
No. 1740 in respect of:
(i) certain alleged breaches by the Owner and the owner of Hull No.
1740,
(ii) the cost associated with alleged changes to the
Specifications to the Shipbuilding Contract and the equivalent
contract for Hull No. 1740; and
(iii)increases in steel weight of the vessel and Hull No.
1740,
all of which claims are denied by the Owner and the owner of
Hull No. 1740.
(C) The Owner and the Builder has agreed that, to the extent that these
cannot be settled amicably, the aforesaid claims shall be determined
by arbitration proceedings in London in accordance with the provisions
of the Shipbuilding Contract and the equivalent contract for Hull No.
1740.
(D) The Owner and the Builder have entered into a Contract Amendment No.
Three to the Shipbuilding Contract of even date herewith (the
"Contract Amendment") pursuant to which the Owner has agreed, entirely
without prejudice to any issues of liability, to make a payment on
account of the portion of aforesaid claims inserted against it and
containing certain other agreements between the Owner and the Builder.
(E) It is a condition precedent to the effectiveness of the aforesaid
Contract Amendment No. Three that the Guarantor issues this Guarantee
in favour of the Builder.
1 In consideration of the Builder entering into the Contract Amendment
and other good and valuable consideration (the receipt and
sufficiency of which the Guarantor hereby acknowledges) the Guarantor
guarantees to the Builder the payment by the Owner of any and all
amounts from time to time or at any time payable by the Owner to the
Builder as determined by a final arbitration award or a final court
judgment (in either case, not subject to appeal or, in case of
appeal, upon final determination of the appeal) in favour of the
Builder in respect of the Shipbuilding Contract (including the
Contract Amendment and any other amendment thereto) and undertakes to
pay to the Builder any and all amounts which the Owner shall have
failed, now or in the future, to pay to the Builder as determined by
such final arbitration award or such final court judgment, subject to
Clause 2.1(a) of the Contract Amendment.
2 The Guarantor shall not be discharged or released from this Guarantee
by any arrangement made between the Owner and the Builder under the
Shipbuilding Contract or by any forbearance whether as to payment,
time, performance or otherwise even though such arrangement,
alteration or forbearance may be without the assent of the Guarantor,
or by the liquidation, bankruptcy or insolvency of the Owner.
3 This Guarantee shall be construed and governed in accordance with
English law and, for the exclusive benefit of the Builder, the
Guarantor hereby agrees to submit to the jurisdiction of the English
courts and hereby appoints WFW Legal Services Limited at its
registered office for the time being, presently at 00 Xxxxxx Xxxxxx,
Xxxxxx XX0X 0XX as its agent for service of process in England in
respect of any legal proceedings arising out of or in connection with
this Guarantee.
IN WITNESS WHEREOF this Guarantee has been executed and delivered as a Deed
by duly authorised representatives of the Guarantor and the Builder in
duplicate effective as of the date and year first above written.
EXECUTED AS A DEED )
by )
)
W. Xxxx Xxxxx ) /s/W. Xxxx Xxxxx
)
for and on behalf of )
GLOBAL MARINE INC. )
such execution being witnessed )
by: Xxxxxx X. Xxxxx )
)
)
SIGNED BY )
)
X. Xxxxxx ) /s/X. Xxxxxx
)
)
for and on behalf of )
XXXXXXX AND XXXXX )
SHIPBUILDING AND HEAVY )
INDUSTRIES LIMITED )
