EXHIBIT 10(y)
DATED 31st January, 1996
CUMMINS ENGINE COMPANY, INC.(1)
and
THE TORONTO-DOMINION BANK(2)
__________________________
GUARANTEE
__________________________
Norton Rose
London
CONTENTS
Clause Heading Page
1 Interpretation 1
(a) Defined expressions 1
(b) Definitions 1
(c) Headings 2
(d) Construction of certain terms 2
2 Guarantee 3
(a) Covenant to pay 3
(b) Guarantor as principal debtor; indemnity 3
(c) Statements of account conclusive 3
(d) No security taken by Guarantor 4
(e) Interest 4
(f) Continuing security and other matters 4
(g) New accounts 4
(h) Liability unconditional 5
(i) Collateral Instruments 5
(j) Waiver of Guarantor's rights 5
(k) Suspense accounts 6
(l) Settlements conditional 6
(m) Guarantor to deliver up certain property 6
(n) Retention of this Guarantee 7
(o) Total amount recoverable 7
3 Payments and Taxes 7
(a) No set-off or counterclaim; distribution to the Bank 7
(b) Grossing-up for Taxes 7
(c) Claw-back of Tax benefit 8
(d) Currency indemnity 8
4 Set-off 9
5 Benefit of this Guarantee 9
(a) Benefit and burden 9
(b) Changes in constitution or reorganisations of Bank 9
(c) No assignment by Guarantor 9
(d) Disclosure of information 10
6 Notices and other matters 10
(a) Notice 10
(b) No implied waivers, remedies cumulative 11
(c) Expenses 11
7 Governing Law and jurisdiction 11
(a) Law 11
(b) Submission to jurisdiction 11
(c) Inconvenient forum 12
(d) Service of process on the Guarantor 12
(e) Waiver of jury trial, etc. 12
THIS GUARANTEE is dated 31st January, 1996 and made BETWEEN:
(1) CUMMINS ENGINE COMPANY, INC., a corporation duly organised and
existing under the laws of the State of Indiana, with its
principal office at 500 Jackson Street, Box 3005, Columbus,
Indiana 47202-3005, as Guarantor; and
(2) THE TORONTO-DOMINION BANK of Triton Court, 14/18 Finsbury Square,
London EC2A 1DB as Bank.
WHEREAS:
(A) By an agreement (the "Agreement") dated 31st January, 1996 and
made between Cummins Finance Limited (1), the Guarantor (2) and
the Bank (3), the Bank has agreed, upon and subject to the terms
and conditions of the Agreement, to make available to the
Borrower a perpetual loan facility of UK
sterling .
(B) The execution and delivery of this Guarantee is one of the
conditions precedent to the Bank making its Commitment available
under the Agreement.
IT IS AGREED as follows:
1Interpretation
(a) Defined expressions
In this Guarantee, unless the context otherwise requires or
unless otherwise defined in this Guarantee, words and expressions
defined in the Agreement and used in this Guarantee shall have
the same meaning where used in this Guarantee.
(b) Definitions
In this Guarantee, unless the context otherwise requires:
"Collateral Instruments" means notes, bills of exchange,
certificates of deposit and other negotiable and non-negotiable
instruments, guarantees, and any other documents or instruments
which contain or evidence an obligation (with or without
security) to pay, discharge or be responsible directly or
indirectly for, any indebtedness or liabilities of the Borrower
or any other person liable and includes Security Documents;
"Guarantee" includes each separate or independent stipulation or
agreement by the Guarantor contained in this Guarantee;
"Guaranteed Liabilities" means all moneys, obligations and
liabilities expressed to be guaranteed by the Guarantor in
clause 2(a);
"Incapacity" means in relation to a person the death, bankruptcy,
unsoundness of mind, insolvency, liquidation, dissolution,
winding-up, administration, receivership, amalgamation,
reconstruction or other incapacity of that person whatsoever
(and, in the case of a partnership, includes the termination or
change in the composition of the partnership);
"Security Documents" means documents or instruments creating or
evidencing a mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, assignment, trust arrangement or
security interest of any kind.
(c) Headings
Clause headings are inserted for convenience of reference only
and shall be ignored in the interpretation of this Guarantee.
(d) Construction of certain terms
In this Guarantee, unless the context otherwise requires:
(i) references to clauses are to be construed as references to the clauses
of this Guarantee;
(ii) references to (or to any specified provision of) this Guarantee or any
other document shall be construed as references to this Guarantee, that
provision or that document as in force for the time being and as amended
from time to time in accordance with the terms thereof, or, as the case may
be, with the agreement of the relevant parties and (where such consent is,
by the terms of this Guarantee or the relevant document, required to be
obtained as a condition to such amendment being permitted) the prior written
consent of the Bank;
(iii) references to a "regulation" include any present or future
regulation, rule, directive, requirement, request, code of practice or
guideline (whether or not having the force of law, but if not having the
force of law compliance with which is customary by persons to whom the same
would normally relate) of any Governmental Authority;
(iv) words importing the plural shall include the singular and vice versa;
(v) references to a time of day are to London time;
(vi) references to a person shall be construed as including references to an
individual, firm, company, corporation, unincorporated body of persons or
any State or any agency thereof;
(vii) references to a "guarantee" include references to an indemnity or
other assurance against financial loss including, without limitation, an
obligation to purchase assets or services as a consequence of a default by
any other person to pay any Indebtedness and "guaranteed" shall be construed
accordingly; and
(viii) references to any enactment shall be deemed to include references
to such enactment as re-enacted, amended or extended.
2Guarantee
(a) Covenant to pay
In consideration of the Bank making the Loan available to the
Borrower pursuant to the Agreement the Guarantor hereby
guarantees to pay to the Bank, on demand by the Bank all moneys
and discharge all obligations and liabilities now or hereafter
due, owing or incurred by the Borrower to the Bank under or
pursuant to the Agreement and/or the Note prior to and including
the fourteenth Interest Payment Date when the same become due for
payment or discharge whether by acceleration or otherwise.
Notwithstanding any other provision of this Guarantee, the
Guarantor shall have no obligations hereunder following the
fourteenth Interest Payment Date save in respect of the
Guaranteed Liabilities then due and payable or obligations which
fall to be performed prior to such date but which remain to be
discharged in full.
(b) Guarantor as principal debtor; indemnity
As a separate and independent stipulation, the Guarantor agrees
that if any purported obligation or liability of the Borrower
which would have been the subject of this Guarantee had it been
valid and enforceable is not or ceases to be valid or enforceable
against the Borrower on any ground whatsoever whether or not
known to the Bank (including, without limitation, any irregular
exercise or absence of any corporate power or lack of authority
of, or breach of duty by, any person purporting to act on behalf
of the Borrower or any legal or other limitation, whether under
the Limitation Acts or otherwise or any disability or Incapacity
or any change in the constitution of the Borrower) the Guarantor
shall nevertheless be liable to the Bank in respect of that
purported obligation or liability as if the same were fully valid
and enforceable and the Guarantor were the principal debtor in
respect thereof. The Guarantor hereby agrees to keep the Bank
fully indemnified on demand against all damages, losses, costs
and expenses arising from any failure of the Borrower to perform
or discharge any such purported obligation or liability.
(c) Statements of account conclusive
Any statement of account of the Borrower, signed as correct by an
officer of the Bank, showing the amount of the Guaranteed
Liabilities shall be prima facie evidence as to that account.
(d) No security taken by Guarantor
The Guarantor warrants that it has not taken or received, and
undertakes that until all the Guaranteed Liabilities of the
Borrower have been paid or discharged in full, it will not take
or receive, the benefit of any security from the Borrower or any
other person in respect of its obligations under this Guarantee.
(e) Interest
The Guarantor agrees to pay interest on each amount demanded of
it under this Guarantee from the date of such demand until
payment (as well after as before judgment) at the rate one per
cent per annum above the aggregate of LIBOR and the Additional
Cost calculated on a day to day basis. Such interest shall be
compounded at the end of each period determined for this purpose
by the Bank in the event of it not being paid when demanded but
without prejudice to the Bank's right to require payment of such
interest provided that, to the extent that the Bank recovers from
the Borrower or the Guarantor interest at the rate referred to in
clause 6.2 of the Agreement on any unpaid sum under the Agreement
in respect of which demand is made on the Guarantor under this
Guarantee in relation to the period from the date of such demand
until payment, it shall not be entitled to recover under this
clause 2(e) interest on such unpaid sum so demanded.
(f) Continuing security and other matters
This Guarantee shall:
(i) secure the ultimate balance from time to time owing to the Bank by the
Borrower and shall be a continuing security, notwithstanding any settlement
of account or other matter whatsoever;
(ii) be in addition to any present or future Collateral Instrument, right or
remedy held by or available to the Bank; and
(iii) not be in any way prejudiced or affected by the existence of any
such Collateral Instrument, rights or remedies or by the same becoming
wholly or in part void, voidable or unenforceable on any ground whatsoever
or by the Bank dealing with, exchanging, varying or failing to perfect or
enforce any of the same or giving time for payment or indulgence or
compounding with any other person liable.
(g) New accounts
If this Guarantee ceases to be continuing for any reason
whatsoever the Bank may nevertheless continue any account of the
Borrower or open one or more new accounts and the liability of
the Guarantor under this Guarantee shall not in any manner be
reduced or affected by any subsequent transactions or receipts or
payments into or out of any such account.
(h) Liability unconditional
The liability of the Guarantor shall not be affected nor shall
this Guarantee be discharged or reduced by reason of:
(i) the Incapacity or any change in the name, style or constitution of the
Borrower or any other person liable;
(ii) the Bank granting any time, indulgence or concession to, or compounding
with, discharging, releasing or varying the liability of, the Borrower or
any other person liable or renewing, determining, varying or increasing any
accommodation, facility or transaction or otherwise dealing with the same in
any manner whatsoever or concurring in, accepting or varying any compromise,
arrangement or settlement or omitting to claim or enforce payment from the
Borrower or any other person liable; or
(iii) any act or omission which would not have discharged or affected
the liability of the Guarantor had it been a principal debtor instead of a
guarantor or by anything done or omitted which but for this provision might
operate to exonerate the Guarantor.
(i) Collateral Instruments
The Bank shall not be obliged to make any claim or demand on the
Borrower or to resort to any Collateral Instrument or other means
of payment now or hereafter held by or available to them or it
before enforcing this Guarantee and no action taken or omitted by
the Bank in connection with any such Collateral Instrument or
other means of payment shall discharge, reduce, prejudice or
affect the liability of the Guarantor under this Guarantee nor
shall the Bank be obliged to apply any money or other property
received or recovered in consequence of any enforcement or
realisation of any such Collateral Instrument or other means of
payment in reduction of the Guaranteed Liabilities.
(j) Waiver of Guarantor's rights
Until all the Guaranteed Liabilities have been paid, discharged
or satisfied in full (and notwithstanding payment of a dividend
in any liquidation or under any compromise or arrangement) the
Guarantor agrees that, without the prior written consent of the
Bank, it will not:
(i) exercise its rights of subrogation, reimbursement and indemnity against
the Borrower or any other person liable;
(ii) demand or accept repayment in whole or in part of any indebtedness now
or hereafter due to the Guarantor from the Borrower or from any other person
liable or demand or accept any Collateral Instrument in respect of the same
or dispose of the same;
(iii) take any step to enforce any right against the Borrower or any
other person liable in respect of any Guaranteed Liabilities; or
(iv) claim any set-off or counterclaim against the Borrower or any other
person liable or claim or prove in competition with the Bank in the
liquidation of the Borrower or any other person liable or have the benefit
of, or share in, any payment from or composition with, the Borrower or any
other person liable or any other Collateral Instrument now or hereafter held
by the Bank for any Guaranteed Liabilities or for the obligations or
liabilities of any other person liable but so that, if so directed by the
Bank, it will prove for the whole or any part of its claim in the
liquidation of the Borrower on terms that the benefit of such proof and of
all money received by it in respect thereof shall be held on trust for the
Bank and applied in or towards discharge of the Guaranteed Liabilities in
such manner as the Bank shall deem appropriate.
(k) Suspense accounts
Any money received in connection with this Guarantee (whether
before or after any Incapacity of the Borrower or the Guarantor)
which do not fully discharge the Guarantor's obligations under
this Guarantee in respect of any Guaranteed Liabilities (actual
or contingent, present or future) may be placed to the credit of
a suspense account with a view to preserving the rights of the
Bank to prove for the whole of its claims against the Borrower or
any other person liable or may be applied in or towards
satisfaction of such of the Guaranteed Liabilities as the Bank
may from time to time conclusively determine in its absolute
discretion.
(l) Settlements conditional
Any release, discharge or settlement between the Guarantor and
the Bank shall be conditional upon no security, disposition or
payment to the Bank by the Borrower or any other person liable
being void, set aside or ordered to be refunded pursuant to any
enactment or law relating to bankruptcy, liquidation,
administration or insolvency or for any other reason whatsoever
and if such condition shall not be fulfilled the Bank shall be
entitled to enforce this Guarantee subsequently as if such
release, discharge or settlement had not occurred and any such
payment had not been made.
(m) Guarantor to deliver up certain property
If, contrary to clauses 2(d) or 2(j), the Guarantor takes or
receives the benefit of any security or receives or recovers any
money or other property, such security, money or other property
shall be held on trust for the Bank and shall be delivered to the
Bank on demand.
(n) Retention of this Guarantee
The Bank shall be entitled to retain this Guarantee after as well
as before the payment or discharge of all the Guaranteed
Liabilities for such period as the Bank may determine.
(o) Total amount recoverable
The total amount recoverable from the Guarantor under clauses
2(a) and (b) of this Guarantee shall not exceed an amount equal
to the principal sum of UK sterling payable pursuant to the
Agreement and/or the Note together with an amount equal to all
interest and all other sums payable pursuant to the Agreement
and/or the Note provided that such limit on recovery shall
automatically cease to have effect on the Bank confirming to the
Guarantor that the Borrower has complied with the undertaking set
out in clause 3.4(a) of the Agreement.
3Payments and Taxes
(a) No set-off or counterclaim; distribution to the Bank
The Guarantor acknowledges that, in performing its obligations
under the Agreement, the Bank will be incurring liabilities to
third parties in relation to the funding of amounts advanced to
the Borrower, such liabilities matching the liabilities of the
Borrower to the Bank, and that it is reasonable for the Banks to
be entitled to receive payments from the Borrower gross on the
due date in order that the Bank is put in a position to perform
their matching obligations to the relevant third parties.
Accordingly all payments to be made by the Guarantor under this
Guarantee shall be made in full, without any set-off or
counterclaim whatsoever unless a winding-up order or
administration order or an analogous order in the jurisdiction of
the Bank's incorporation or principal place of business has been
made in respect of the Bank and, subject as provided in
clause 3(b), free and clear of any deductions or withholdings, in
Sterling (except for costs, charges and expenses which shall be
payable in the currency in which they are incurred) on the due
date to the account of the Bank at such bank as the Bank may from
time to time specify for this purpose.
(b) Grossing-up for Taxes
If at any time the Guarantor is required to make any deduction or
withholding in respect of Taxes from any payment due under this
Guarantee for the account of the Bank (or if the Bank is required
to make any such deduction or withholding from a payment to a
Bank), the sum due from the Guarantor in respect of such payment
shall be increased to the extent necessary to ensure that, after
the making of such deduction or withholding, the Bank receives on
the due date for such payment (and retains, free from any
liability in respect of such deduction or withholding) a net sum
equal to the sum which it would have received had no such
deduction or withholding been required to be made and the
Guarantor shall indemnify the Bank against any losses or costs
incurred by any of them by reason of any failure of the Guarantor
to make any such deduction or withholding or by reason of any
increased payment not being made on the due date for such
payment. The Guarantor shall promptly deliver to the Bank any
receipts, certificates or other proof evidencing the amounts (if
any) paid or payable in respect of any deduction or withholding
as aforesaid.
(c) Claw-back of Tax benefit
If following any such deduction or withholding as is referred to
in clause 3(b) from any payment by the Guarantor, the Bank shall
receive or be granted a credit against or remission for any Taxes
payable by it, the Bank shall, subject to the Guarantor having
made any increased payment in accordance with clause 3(b) and to
the extent that the Bank can do so without prejudicing the
retention of the amount of such credit or remission and without
prejudice to the right of the Bank to obtain any other relief or
allowance which may be available to it, reimburse the Guarantor
with such amount as the Bank shall in its absolute discretion
certify to be the proportion of such credit or remission as will
leave the Bank (after such reimbursement) in no worse position
than it would have been in had there been no such deduction or
withholding from the payment by the Guarantor as aforesaid. Such
reimbursement shall be made forthwith upon the Bank certifying
that the amount of such credit or remission has been received by
it. Nothing contained in this Guarantee shall oblige the Bank to
rearrange its tax affairs or to disclose any information
regarding its tax affairs and computations. Without prejudice to
the generality of the foregoing, the Guarantor shall not, by
virtue of this clause 3(c), be entitled to enquire about the
Bank's tax affairs.
(d) Currency indemnity
(i) making or filing a claim or proof against the Guarantor, (ii) obtaining
an order or judgment in any court or other tribunal or (iii) enforcing any
order or judgment given or made in relation to this Guarantee, the Guarantor
shall indemnify and hold harmless the Bank from and against any loss
suffered as a result of any difference between (A) the rate of exchange used
for such purpose to convert the sum in question from the first currency into
the second currency and (B) the rate or rates of exchange at which the Bank
may in the ordinary course of business purchase the first currency with the
second currency upon receipt of a sum paid to it in satisfaction, in whole
or in part, of any such order, judgment, claim or proof. Any amount due
from the Guarantor under this clause 3(d) shall be due as a separate debt
and shall not be affected by judgment being obtained for any other sums due
under or in respect of this Guarantee and the term "rate of exchange"
includes any premium and costs of exchange payable in connection with the
purchase of the first currency with the second currency.
4Set-off
If an Event of Default shall have occurred and be continuing and
the Bank shall have declared the Loan, or the Loan shall have
become automatically, immediately due and payable pursuant to
clause 12.2 of the Agreement, the Bank and each bank which is an
Affiliate of the Bank are hereby authorised at any time and from
time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other
Indebtedness at any time owing by the Bank or any of its
Affiliates to or for the credit or account of the Guarantor
against any of and all the obligations of the Guarantor now or
hereafter existing under this Guarantee and the other Loan
Documents, irrespective of whether or not the Bank shall have
made demand under this Guarantee or such other Loan Document and
although such obligations may be unmatured. The rights of the
Bank under this clause 4 are in addition to such other rights and
remedies (including other rights of set-off) as the Bank may
have.
5Benefit of this Guarantee
(a) Benefit and burden
This Guarantee shall be binding upon the Guarantor and its
successors in title and shall ensure for the benefit of the Bank
and its successors in title and its Assignees. The Guarantor
expressly acknowledges and accepts the provisions of clause 16 of
the Agreement and agrees that any person in favour of whom an
assignment or a transfer is made in accordance with such clause
shall be entitled to the benefit of this Guarantee.
(b) Changes in constitution or reorganisations of Bank
For the avoidance of doubt and without prejudice to the
provisions of clause 5(a), this Guarantee shall remain binding on
the Guarantor notwithstanding any change in the constitution of
the Bank or its absorption in, or amalgamation with, or the
acquisition of all or part of its undertaking or assets by, any
other person, or any reconstruction or reorganisation of any
kind, to the intent that this Guarantee shall remain valid and
effective in all respects in favour of any assignee, transferee
or other successor in title of the Bank in the same manner as if
such assignee, transferee or other successor in title had been
named in this Guarantee as a party instead of, or in addition to,
the Bank.
(c) No assignment by Guarantor
The Guarantor may not assign or transfer any of its rights or
obligations under this Guarantee.
(d) Disclosure of information
The Bank may disclose to a prospective assignee or to any person
who may otherwise enter into contractual relations with the Bank
in relation to the Agreement or the Note (who is, in any such
case, permitted pursuant to clause 16.3 of the Agreement) such
information about the Guarantor as the Bank shall consider
appropriate, subject to such potential assignee or person having
first entered into a confidentiality undertaking in terms similar
to those of clause 16.9 of the Agreement.
6Notices and other matters
(a) Notice
Every notice, request, demand or other communication under this
Guarantee shall:
(i) be in writing delivered personally or by first-class prepaid letter
(airmail if available) or telefax;
(ii) be deemed to have been received, subject as otherwise provided in this
Guarantee, in the case of a letter when delivered personally or 3 days after
it has been put into the post, in the case of a telefax, when a complete and
legible copy is received by the addressee (provided that if the date of
despatch is not a business day in the country of the addressee or if the
time of despatch of any telefax is after the close of business in the
country of the addressee it shall be deemed to have been received at the
opening of business on the next such business day); and
(iii) be sent:
(A) to the Guarantor at:
500 Jackson Street,
Box 3005,
Columbus,
Indiana
47202-3005
Mail Code: 60903
Telefax: 00 1 812 377 3265
Attention: Assistant Treasurer
(B) to the Bank at:
Triton Court,
14/18 Finsbury Square,
London EC2A 1DB
Telefax: 0171-638 2551
Attention: Manager, Corporate Services
or to such other address or telefax number as is notified by
the Guarantor or the Bank to the other party to this
Guarantee provided that not less than two Banking Days'
notice shall have been given of such change failing which
such change shall be ineffective.
(b) No implied waivers, remedies cumulative
No failure or delay on the part of the Bank to exercise any
power, right or remedy under this Guarantee shall operate as a
waiver thereof, nor shall any single or partial exercise by the
Bank of any power, right or remedy preclude any other or further
exercise thereof or the exercise of any other power, right or
remedy. The remedies provided in this Guarantee are cumulative
and are not exclusive of any remedies provided by law.
(c) Expenses
The Guarantor agrees to reimburse the Bank on demand for all
legal and other costs, charges and expenses on a full and
unqualified indemnity basis which may be incurred by the Bank in
relation to the enforcement of this Guarantee against the
Guarantor.
7Governing Law and jurisdiction
(a) Law
This Guarantee is governed by and shall be construed in
accordance with English law.
(b) Submission to jurisdiction
The Guarantor agrees for the benefit of the Bank that any legal
action or proceedings arising out of or in connection with this
Guarantee against the Guarantor or any of its assets may be
brought in the English courts and the courts of the United States
of America, the State of New York, the State of Indiana and any
other Relevant Jurisdiction, irrevocably and unconditionally
submits to the jurisdiction of such courts and irrevocably
designates, appoints and empowers (i) Cummins Engine Company
Limited (No. 573951), attention: Gavin Sinclair (Assistant
General Counsel) at present of 46-50 Coombe Road, New Malden,
Surrey KT3 4QL to receive for it and on its behalf, service of
process issued out of the English courts in any such legal action
or proceedings and (ii) CT Corporation at present of 1633
Broadway, NY 10019, New York, United States of America to receive
for it and on its behalf, service of process issued out of the
State Courts of and the Federal Courts in, the State of New York
in any such legal action or proceedings. The submission to such
jurisdiction shall not (and shall not be construed so as to)
limit the right of the Bank to take proceedings against the
Guarantor in the courts of any other competent jurisdiction, nor
shall the taking of proceedings in any one or more jurisdictions
preclude the taking of proceedings in any other jurisdiction,
whether concurrently or not. The parties further agree that only
the courts of England and not those of any other place shall have
jurisdiction to determine any claim which the Guarantor may have
against the Bank arising out of or in connection with this
Guarantee.
(c) Inconvenient forum
The Guarantor irrevocably waives (and irrevocably agrees not to
raise) any objection which it may have now or hereafter to the
laying of the venue of any action or any claim that any such
action or proceedings has been brought in an inconvenient forum
and further irrevocably agrees that a judgment brought in any
court referred to in clause 7(b) shall be conclusive and binding
upon the Guarantor and may be enforced in the courts of any other
jurisdiction.
(d) Service of process on the Guarantor
If either agent referred to in clause 7(b) (or any replacement
agent appointed pursuant to this clause 7(d)) at any time ceases
for any reason to act as such, the Guarantor shall appoint either
a body corporate incorporated in England with an office in
England or a firm of solicitors with an office in England or a
body corporate with a place of business in the State of New York
or a firm of lawyers with an office in the State of New York (as
the case may be) as replacement agent to accept service of
process on behalf of the Guarantor and shall notify the Bank of
the name and address of the replacement agent together with its
declaration or acceptance; failing such appointment and
notification, the Bank shall be entitled by notice to the
Guarantor to appoint such a replacement agent to act on the
Guarantor's behalf.
(e) Waiver of jury trial, etc.
(i) Except as prohibited by law, each party hereto hereby waives
any right it may have to a trial by jury in the United
States of America or any state thereof in respect of any
litigation directly or indirectly arising out of, under or
in connection with this Guarantee, any document or agreement
entered into in connection herewith and any of the
transactions contemplated hereby or thereby.
(ii) Except as prohibited by law, each party hereto hereby waives
any right it may have to claim or recover in any litigation
referred to in clause 7(e)(i) any special, indirect,
exemplary, punitive or consequential damages or any damages
other than, or in addition to, actual damages.
(iii) Each party hereto (A) certifies that no
representative, agent or attorney of any other party has
represented to it, expressly or otherwise, that such other
party would not, in the event of litigation, seek to enforce
the foregoing waivers and (B) acknowledges that it and the
other parties hereto have been induced to enter into this
Guarantee by, among other things, the mutual waivers and
certifications in this clause 7(e).
IN WITNESS whereof the parties to this Guarantee have caused this
Guarantee to be duly executed on the date first above written.
SIGNED for and )
on behalf of) )
CUMMINS ENGINE COMPANY, INC. )
by )
SIGNED for and )
on behalf of )
THE TORONTO-DOMINION BANK )
by )
DATED 31st January, 1996
CUMMINS ENGINE COMPANY, INC. (1)
and
THE BANK OF NEW YORK(2)
____________________________
GUARANTEE
____________________________
Norton Rose
London
CONTENTS
Clause Heading Page
1 Interpretation 1
(a) Defined expressions 1
(b) Definitions 1
(c) Headings 2
(d) Construction of certain terms 2
2 Guarantee 3
(a) Covenant to pay 3
(b) Guarantor as principal debtor; indemnity 3
(c) Statements of account conclusive 3
(d) No security taken by Guarantor 4
(e) Interest 4
(f) Continuing security and other matters 4
(g) New accounts 4
(h) Liability unconditional 5
(i) Collateral Instruments 5
(j) Waiver of Guarantor's rights 5
(k) Suspense accounts 6
(l) Settlements conditional 6
(m) Guarantor to deliver up certain property 6
(n) Retention of this Guarantee 7
3 Payments and Taxes 7
a) No set-off or counterclaim; distribution to the Bank 7
(b) Grossing-up for Taxes 7
(c) Claw-back of Tax benefit 7
(d) Currency indemnity 8
4 Set-off 8
5 Benefit of this Guarantee 9
(a) Benefit and burden 9
(b) Changes in constitution or reorganisations of Bank 9
(c) No assignment by Guarantor 9
(d) Disclosure of information 9
6 Notices and other matters 10
(a) Notice 10
(b) No implied waivers, remedies cumulative 11
(c) Expenses 11
7 Governing Law and jurisdiction 11
(a) Law 11
(b) Submission to jurisdiction 11
(c) Inconvenient forum 11
(d) Service of process on the Guarantor 12
(e) Waiver of jury trial, etc. 12
THIS GUARANTEE is dated 31st January, 1996 and made BETWEEN:
(1) CUMMINS ENGINE COMPANY, INC., a corporation duly organised and
existing under the laws of the State of Indiana, with its
principal office at 500 Jackson Street, Box 3005, Columbus,
Indiana 47202-3005, as Guarantor; and
(2) THE BANK OF NEW YORK of 46 Berkeley Street, London W1X 6AA as
Bank.
WHEREAS:
(A) By an agreement (the "Agreement") dated 31st January, 1996 and
made between Cummins Finance Limited (1), the Guarantor (2) and
the Bank (3), the Bank has agreed, upon and subject to the terms
and conditions of the Agreement, to make available to the
Borrower a perpetual loan facility of UK sterling.
(B) The execution and delivery of this Guarantee is one of the
conditions precedent to the Bank making its Commitment available
under the Agreement.
IT IS AGREED as follows:
1Interpretation
(a) Defined expressions
In this Guarantee, unless the context otherwise requires or
unless otherwise defined in this Guarantee, words and expressions
defined in the Agreement and used in this Guarantee shall have
the same meaning where used in this Guarantee.
(b) Definitions
In this Guarantee, unless the context otherwise requires:
"Collateral Instruments" means notes, bills of exchange,
certificates of deposit and other negotiable and non-negotiable
instruments, guarantees, and any other documents or instruments
which contain or evidence an obligation (with or without
security) to pay, discharge or be responsible directly or
indirectly for, any indebtedness or liabilities of the Borrower
or any other person liable and includes Security Documents;
"Guarantee" includes each separate or independent stipulation or
agreement by the Guarantor contained in this Guarantee;
"Guaranteed Liabilities" means all moneys, obligations and
liabilities expressed to be guaranteed by the Guarantor in
clause 2(a);
"Incapacity" means in relation to a person the death, bankruptcy,
unsoundness of mind, insolvency, liquidation, dissolution,
winding-up, administration, receivership, amalgamation,
reconstruction or other incapacity of that person whatsoever
(and, in the case of a partnership, includes the termination or
change in the composition of the partnership);
"Security Documents" means documents or instruments creating or
evidencing a mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, assignment, trust arrangement or
security interest of any kind.
(c) Headings
Clause headings are inserted for convenience of reference only
and shall be ignored in the interpretation of this Guarantee.
(d) Construction of certain terms
In this Guarantee, unless the context otherwise requires:
(i) references to clauses are to be construed as references to the clauses
of this Guarantee;
(ii) references to (or to any specified provision of) this Guarantee or any
other document shall be construed as references to this Guarantee, that
provision or that document as in force for the time being and as amended
from time to time in accordance with the terms thereof, or, as the case may
be, with the agreement of the relevant parties and (where such consent is,
by the terms of this Guarantee or the relevant document, required to be
obtained as a condition to such amendment being permitted) the prior written
consent of the Bank;
(iii) references to a "regulation" include any present or future
regulation, rule, directive, requirement, request, code of practice or
guideline (whether or not having the force of law, but if not having the
force of law compliance with which is customary by persons to whom the same
would normally relate) of any Governmental Authority;
(iv) words importing the plural shall include the singular and vice versa;
(v) references to a time of day are to London time;
(vi) references to a person shall be construed as including references to an
individual, firm, company, corporation, unincorporated body of persons or
any State or any agency thereof;
(vii) references to a "guarantee" include references to an indemnity or
other assurance against financial loss including, without limitation, an
obligation to purchase assets or services as a consequence of a default by
any other person to pay any Indebtedness and "guaranteed" shall be construed
accordingly; and
(viii) references to any enactment shall be deemed to include references
to such enactment as re-enacted, amended or extended.
2Guarantee
(a) Covenant to pay
In consideration of the Bank making the Loan available to the
Borrower pursuant to the Agreement the Guarantor hereby
guarantees to pay to the Bank, on demand by the Bank all moneys
and discharge all obligations and liabilities now or hereafter
due, owing or incurred by the Borrower to the Bank under or
pursuant to the Agreement and/or the Note prior to and including
the fourteenth Interest Payment Date when the same become due for
payment or discharge whether by acceleration or otherwise.
Notwithstanding any other provision of this Guarantee, the
Guarantor shall have no obligations hereunder following the
fourteenth Interest Payment Date save in respect of the
Guaranteed Liabilities then due and payable or obligations which
fall to be performed prior to such date but which remain to be
discharged in full.
(b) Guarantor as principal debtor; indemnity
As a separate and independent stipulation, the Guarantor agrees
that if any purported obligation or liability of the Borrower
which would have been the subject of this Guarantee had it been
valid and enforceable is not or ceases to be valid or enforceable
against the Borrower on any ground whatsoever whether or not
known to the Bank (including, without limitation, any irregular
exercise or absence of any corporate power or lack of authority
of, or breach of duty by, any person purporting to act on behalf
of the Borrower or any legal or other limitation, whether under
the Limitation Acts or otherwise or any disability or Incapacity
or any change in the constitution of the Borrower) the Guarantor
shall nevertheless be liable to the Bank in respect of that
purported obligation or liability as if the same were fully valid
and enforceable and the Guarantor were the principal debtor in
respect thereof. The Guarantor hereby agrees to keep the Bank
fully indemnified on demand against all damages, losses, costs
and expenses arising from any failure of the Borrower to perform
or discharge any such purported obligation or liability.
(c) Statements of account conclusive
Any statement of account of the Borrower, signed as correct by an
officer of the Bank, showing the amount of the Guaranteed
Liabilities shall be prima facie evidence as to that account.
(d) No security taken by Guarantor
The Guarantor warrants that it has not taken or received, and
undertakes that until all the Guaranteed Liabilities of the
Borrower have been paid or discharged in full, it will not take
or receive, the benefit of any security from the Borrower or any
other person in respect of its obligations under this Guarantee.
(e) Interest
The Guarantor agrees to pay interest on each amount demanded of
it under this Guarantee from the date of such demand until
payment (as well after as before judgment) at the rate one per
cent per annum above the aggregate of LIBOR and the Additional
Cost calculated on a day to day basis. Such interest shall be
compounded at the end of each period determined for this purpose
by the Bank in the event of it not being paid when demanded but
without prejudice to the Bank's right to require payment of such
interest provided that, to the extent that the Bank recovers from
the Borrower or the Guarantor interest at the rate referred to in
clause 6.2 of the Agreement on any unpaid sum under the Agreement
in respect of which demand is made on the Guarantor under this
Guarantee in relation to the period from the date of such demand
until payment, it shall not be entitled to recover under this
clause 2(e) interest on such unpaid sum so demanded.
(f) Continuing security and other matters
This Guarantee shall:
(i) secure the ultimate balance from time to time owing to the Bank by the
Borrower and shall be a continuing security, notwithstanding any settlement
of account or other matter whatsoever;
(ii) be in addition to any present or future Collateral Instrument, right or
remedy held by or available to the Bank; and
(iii) not be in any way prejudiced or affected by the existence of any
such Collateral Instrument, rights or remedies or by the same becoming
wholly or in part void, voidable or unenforceable on any ground whatsoever
or by the Bank dealing with, exchanging, varying or failing to perfect or
enforce any of the same or giving time for payment or indulgence or
compounding with any other person liable.
(g) New accounts
If this Guarantee ceases to be continuing for any reason
whatsoever the Bank may nevertheless continue any account of the
Borrower or open one or more new accounts and the liability of
the Guarantor under this Guarantee shall not in any manner be
reduced or affected by any subsequent transactions or receipts or
payments into or out of any such account.
(h) Liability unconditional
The liability of the Guarantor shall not be affected nor shall
this Guarantee be discharged or reduced by reason of:
(i) the Incapacity or any change in the name, style or constitution of the
Borrower or any other person liable;
(ii) the Bank granting any time, indulgence or concession to, or compounding
with, discharging, releasing or varying the liability of, the Borrower or
any other person liable or renewing, determining, varying or increasing any
accommodation, facility or transaction or otherwise dealing with the same in
any manner whatsoever or concurring in, accepting or varying any compromise,
arrangement or settlement or omitting to claim or enforce payment from the
Borrower or any other person liable; or
(iii) any act or omission which would not have discharged or affected
the liability of the Guarantor had it been a principal debtor instead of a
guarantor or by anything done or omitted which but for this provision might
operate to exonerate the Guarantor.
(i) Collateral Instruments
The Bank shall not be obliged to make any claim or demand on the
Borrower or to resort to any Collateral Instrument or other means
of payment now or hereafter held by or available to them or it
before enforcing this Guarantee and no action taken or omitted by
the Bank in connection with any such Collateral Instrument or
other means of payment shall discharge, reduce, prejudice or
affect the liability of the Guarantor under this Guarantee nor
shall the Bank be obliged to apply any money or other property
received or recovered in consequence of any enforcement or
realisation of any such Collateral Instrument or other means of
payment in reduction of the Guaranteed Liabilities.
(j) Waiver of Guarantor's rights
Until all the Guaranteed Liabilities have been paid, discharged
or satisfied in full (and notwithstanding payment of a dividend
in any liquidation or under any compromise or arrangement) the
Guarantor agrees that, without the prior written consent of the
Bank, it will not:
(i) exercise its rights of subrogation, reimbursement and indemnity against
the Borrower or any other person liable;
(ii) demand or accept repayment in whole or in part of any indebtedness now
or hereafter due to the Guarantor from the Borrower or from any other person
liable or demand or accept any Collateral Instrument in respect of the same
or dispose of the same;
(iii) take any step to enforce any right against the Borrower or any
other person liable in respect of any Guaranteed Liabilities; or
(iv) claim any set-off or counterclaim against the Borrower or any other
person liable or claim or prove in competition with the Bank in the
liquidation of the Borrower or any other person liable or have the benefit
of, or share in, any payment from or composition with, the Borrower or any
other person liable or any other Collateral Instrument now or hereafter held
by the Bank for any Guaranteed Liabilities or for the obligations or
liabilities of any other person liable but so that, if so directed by the
Bank, it will prove for the whole or any part of its claim in the
liquidation of the Borrower on terms that the benefit of such proof and of
all money received by it in respect thereof shall be held on trust for the
Bank and applied in or towards discharge of the Guaranteed Liabilities in
such manner as the Bank shall deem appropriate.
(k) Suspense accounts
Any money received in connection with this Guarantee (whether
before or after any Incapacity of the Borrower or the Guarantor)
which do not fully discharge the Guarantor's obligations under
this Guarantee in respect of any Guaranteed Liabilities (actual
or contingent, present or future) may be placed to the credit of
a suspense account with a view to preserving the rights of the
Bank to prove for the whole of its claims against the Borrower or
any other person liable or may be applied in or towards
satisfaction of such of the Guaranteed Liabilities as the Bank
may from time to time conclusively determine in its absolute
discretion.
(l) Settlements conditional
Any release, discharge or settlement between the Guarantor and
the Bank shall be conditional upon no security, disposition or
payment to the Bank by the Borrower or any other person liable
being void, set aside or ordered to be refunded pursuant to any
enactment or law relating to bankruptcy, liquidation,
administration or insolvency or for any other reason whatsoever
and if such condition shall not be fulfilled the Bank shall be
entitled to enforce this Guarantee subsequently as if such
release, discharge or settlement had not occurred and any such
payment had not been made.
(m) Guarantor to deliver up certain property
If, contrary to clauses 2(d) or 2(j), the Guarantor takes or
receives the benefit of any security or receives or recovers any
money or other property, such security, money or other property
shall be held on trust for the Bank and shall be delivered to the
Bank on demand.
(n) Retention of this Guarantee
The Bank shall be entitled to retain this Guarantee after as well
as before the payment or discharge of all the Guaranteed
Liabilities for such period as the Bank may determine.
3Payments and Taxes
(a) No set-off or counterclaim; distribution to the Bank
The Guarantor acknowledges that, in performing its obligations
under the Agreement, the Bank will be incurring liabilities to
third parties in relation to the funding of amounts advanced to
the Borrower, such liabilities matching the liabilities of the
Borrower to the Bank, and that it is reasonable for the Banks to
be entitled to receive payments from the Borrower gross on the
due date in order that the Bank is put in a position to perform
their matching obligations to the relevant third parties.
Accordingly all payments to be made by the Guarantor under this
Guarantee shall be made in full, without any set-off or
counterclaim whatsoever unless a winding-up order or
administration order or an analogous order in the jurisdiction of
the Bank's incorporation or principal place of business has been
made in respect of the Bank and, subject as provided in
clause 3(b), free and clear of any deductions or withholdings, in
Sterling (except for costs, charges and expenses which shall be
payable in the currency in which they are incurred) on the due
date to the account of the Bank at such bank as the Bank may from
time to time specify for this purpose.
(b) Grossing-up for Taxes
If at any time the Guarantor is required to make any deduction or
withholding in respect of Taxes from any payment due under this
Guarantee for the account of the Bank (or if the Bank is required
to make any such deduction or withholding from a payment to a
Bank), the sum due from the Guarantor in respect of such payment
shall be increased to the extent necessary to ensure that, after
the making of such deduction or withholding, the Bank receives on
the due date for such payment (and retains, free from any
liability in respect of such deduction or withholding) a net sum
equal to the sum which it would have received had no such
deduction or withholding been required to be made and the
Guarantor shall indemnify the Bank against any losses or costs
incurred by any of them by reason of any failure of the Guarantor
to make any such deduction or withholding or by reason of any
increased payment not being made on the due date for such
payment. The Guarantor shall promptly deliver to the Bank any
receipts, certificates or other proof evidencing the amounts (if
any) paid or payable in respect of any deduction or withholding
as aforesaid.
(c) Claw-back of Tax benefit
If following any such deduction or withholding as is referred to
in clause 3(b) from any payment by the Guarantor, the Bank shall
receive or be granted a credit against or remission for any Taxes
payable by it, the Bank shall, subject to the Guarantor having
made any increased payment in accordance with clause 3(b) and to
the extent that the Bank can do so without prejudicing the
retention of the amount of such credit or remission and without
prejudice to the right of the Bank to obtain any other relief or
allowance which may be available to it, reimburse the Guarantor
with such amount as the Bank shall in its absolute discretion
certify to be the proportion of such credit or remission as will
leave the Bank (after such reimbursement) in no worse position
than it would have been in had there been no such deduction or
withholding from the payment by the Guarantor as aforesaid. Such
reimbursement shall be made forthwith upon the Bank certifying
that the amount of such credit or remission has been received by
it. Nothing contained in this Guarantee shall oblige the Bank to
rearrange its tax affairs or to disclose any information
regarding its tax affairs and computations. Without prejudice to
the generality of the foregoing, the Guarantor shall not, by
virtue of this clause 3(c), be entitled to enquire about the
Bank's tax affairs.
(d) Currency indemnity
(i) making or filing a claim or proof against the Guarantor, (ii) obtaining
an order or judgment in any court or other tribunal or (iii) enforcing any
order or judgment given or made in relation to this Guarantee, the Guarantor
shall indemnify and hold harmless the Bank from and against any loss
suffered as a result of any difference between (A) the rate of exchange used
for such purpose to convert the sum in question from the first currency into
the second currency and (B) the rate or rates of exchange at which the Bank
may in the ordinary course of business purchase the first currency with the
second currency upon receipt of a sum paid to it in satisfaction, in whole
or in part, of any such order, judgment, claim or proof. Any amount due
from the Guarantor under this clause 3(d) shall be due as a separate debt
and shall not be affected by judgment being obtained for any other sums due
under or in respect of this Guarantee and the term "rate of exchange"
includes any premium and costs of exchange payable in connection with the
purchase of the first currency with the second currency.
4Set-off
If an Event of Default shall have occurred and be continuing and
the Bank shall have declared the Loan, or the Loan shall have
become automatically, immediately due and payable pursuant to
clause 12.2 of the Agreement, the Bank and each bank which is an
Affiliate of the Bank are hereby authorised at any time and from
time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other
Indebtedness at any time owing by the Bank or any of its
Affiliates to or for the credit or account of the Guarantor
against any of and all the obligations of the Guarantor now or
hereafter existing under this Guarantee and the other Loan
Documents, irrespective of whether or not the Bank shall have
made demand under this Guarantee or such other Loan Document and
although such obligations may be unmatured. The rights of the
Bank under this clause 4 are in addition to such other rights and
remedies (including other rights of set-off) as the Bank may
have.
5Benefit of this Guarantee
(a) Benefit and burden
This Guarantee shall be binding upon the Guarantor and its
successors in title and shall ensure for the benefit of the Bank
and its successors in title and its Assignees. The Guarantor
expressly acknowledges and accepts the provisions of clause 16 of
the Agreement and agrees that any person in favour of whom an
assignment or a transfer is made in accordance with such clause
shall be entitled to the benefit of this Guarantee.
(b) Changes in constitution or reorganisations of Bank
For the avoidance of doubt and without prejudice to the
provisions of clause 5(a), this Guarantee shall remain binding on
the Guarantor notwithstanding any change in the constitution of
the Bank or its absorption in, or amalgamation with, or the
acquisition of all or part of its undertaking or assets by, any
other person, or any reconstruction or reorganisation of any
kind, to the intent that this Guarantee shall remain valid and
effective in all respects in favour of any assignee, transferee
or other successor in title of the Bank in the same manner as if
such assignee, transferee or other successor in title had been
named in this Guarantee as a party instead of, or in addition to,
the Bank.
(c) No assignment by Guarantor
The Guarantor may not assign or transfer any of its rights or
obligations under this Guarantee.
(d) Disclosure of information
The Bank may disclose to a prospective assignee or to any person
who may otherwise enter into contractual relations with the Bank
in relation to the Agreement or the Note (who is, in any such
case, permitted pursuant to clause 16.3 of the Agreement) such
information about the Guarantor as the Bank shall consider
appropriate, subject to such potential assignee or person having
first entered into a confidentiality undertaking in terms similar
to those of clause 16.9 of the Agreement.
6Notices and other matters
(a) Notice
Every notice, request, demand or other communication under this
Guarantee shall:
(i) be in writing delivered personally or by first-class prepaid letter
(airmail if available) or telefax;
(ii) be deemed to have been received, subject as otherwise provided in this
Guarantee, in the case of a letter when delivered personally or 3 days after
it has been put into the post, in the case of a telefax, when a complete and
legible copy is received by the addressee (provided that if the date of
despatch is not a business day in the country of the addressee or if the
time of despatch of any telefax is after the close of business in the
country of the addressee it shall be deemed to have been received at the
opening of business on the next such business day); and
(iii) be sent:
(A) to the Guarantor at:
500 Jackson Street,
Box 3005,
Columbus,
Indiana
47202-3005
Mail Code: 60903
Telefax: 00 1 812 377 3265
Attention: Assistant Treasurer
(A) to the Bank at:
46 Berkeley Street,
London W1X 6AA
Telefax: 0171-322 6032/6421
Attention: Manager, Loans Administration
or to such other address or telefax number as is notified by
the Guarantor or the Bank to the other party to this
Guarantee provided that not less than two Banking Days'
notice shall have been given of such change failing which
such change shall be ineffective.
(b) No implied waivers, remedies cumulative
No failure or delay on the part of the Bank to exercise any
power, right or remedy under this Guarantee shall operate as a
waiver thereof, nor shall any single or partial exercise by the
Bank of any power, right or remedy preclude any other or further
exercise thereof or the exercise of any other power, right or
remedy. The remedies provided in this Guarantee are cumulative
and are not exclusive of any remedies provided by law.
(c) Expenses
The Guarantor agrees to reimburse the Bank on demand for all
legal and other costs, charges and expenses on a full and
unqualified indemnity basis which may be incurred by the Bank in
relation to the enforcement of this Guarantee against the
Guarantor.
7Governing Law and jurisdiction
(a) Law
This Guarantee is governed by and shall be construed in
accordance with English law.
(b) Submission to jurisdiction
The Guarantor agrees for the benefit of the Bank that any legal
action or proceedings arising out of or in connection with this
Guarantee against the Guarantor or any of its assets may be
brought in the English courts and the courts of the United States
of America, the State of New York, the State of Indiana and any
other Relevant Jurisdiction, irrevocably and unconditionally
submits to the jurisdiction of such courts and irrevocably
designates, appoints and empowers (i) Cummins Engine Company
Limited (No. 573951), attention: Gavin Sinclair (Assistant
General Counsel) at present of 46-50 Coombe Road, New Malden,
Surrey KT3 4QL to receive for it and on its behalf, service of
process issued out of the English courts in any such legal action
or proceedings and (ii) CT Corporation at present of 1633
Broadway, NY 10019, New York, United States of America to receive
for it and on its behalf, service of process issued out of the
State Courts of and the Federal Courts in, the State of New York
in any such legal action or proceedings. The submission to such
jurisdiction shall not (and shall not be construed so as to)
limit the right of the Bank to take proceedings against the
Guarantor in the courts of any other competent jurisdiction, nor
shall the taking of proceedings in any one or more jurisdictions
preclude the taking of proceedings in any other jurisdiction,
whether concurrently or not. The parties further agree that only
the courts of England and not those of any other place shall have
jurisdiction to determine any claim which the Guarantor may have
against the Bank arising out of or in connection with this
Guarantee.
(c) Inconvenient forum
The Guarantor irrevocably waives (and irrevocably agrees not to
raise) any objection which it may have now or hereafter to the
laying of the venue of any action or any claim that any such
action or proceedings has been brought in an inconvenient forum
and further irrevocably agrees that a judgment brought in any
court referred to in clause 7(b) shall be conclusive and binding
upon the Guarantor and may be enforced in the courts of any other
jurisdiction.
(d) Service of process on the Guarantor
If either agent referred to in clause 7(b) (or any replacement
agent appointed pursuant to this clause 7(d)) at any time ceases
for any reason to act as such, the Guarantor shall appoint either
a body corporate incorporated in England with an office in
England or a firm of solicitors with an office in England or a
body corporate with a place of business in the State of New York
or a firm of lawyers with an office in the State of New York (as
the case may be) as replacement agent to accept service of
process on behalf of the Guarantor and shall notify the Bank of
the name and address of the replacement agent together with its
declaration or acceptance; failing such appointment and
notification, the Bank shall be entitled by notice to the
Guarantor to appoint such a replacement agent to act on the
Guarantor's behalf.
(e) Waiver of jury trial, etc.
(i) Except as prohibited by law, each party hereto hereby waives
any right it may have to a trial by jury in the United
States of America or any state thereof in respect of any
litigation directly or indirectly arising out of, under or
in connection with this Guarantee, any document or agreement
entered into in connection herewith and any of the
transactions contemplated hereby or thereby.
(ii) Except as prohibited by law, each party hereto hereby waives
any right it may have to claim or recover in any litigation
referred to in clause 7(e)(i) any special, indirect,
exemplary, punitive or consequential damages or any damages
other than, or in addition to, actual damages.
(iii) Each party hereto (A) certifies that no representative,
gent or attorney of any other party has represented to it,
expressly or otherwise, that such other party would not, in
the event of litigation, seek to enforce the foregoing
waivers and (B) acknowledges that it and the other parties
hereto have been induced to enter into this Guarantee by,
among other things, the mutual waivers and certifications in
this clause 7(e).
IN WITNESS whereof the parties to this Guarantee have caused this
Guarantee to be duly executed on the date first above written.
SIGNED for and )
on behalf of )
CUMMINS ENGINE COMPANY, INC.)
by )
SIGNED for and )
on behalf of )
THE BANK OF NEW YORK )
by )
DATED 31st January, 1996
CUMMINS ENGINE COMPANY, INC.(1)
and
SOCIETE GENERALE (2)
___________________________
GUARANTEE
___________________________
Norton Rose
London
CONTENTS
Clause Heading Page
1 Interpretation 1
(a) Defined expressions 1
(b) Definitions 2
(c) Headings 2
(d) Construction of certain terms 2
2 Guarantee 3
(a) Covenant to pay 3
(b) Guarantor as principal debtor; indemnity 3
(c) Statements of account conclusive 3
(d) No security taken by Guarantor 4
(e) Interest 4
(f) Continuing security and other matters 4
(g) New accounts 4
(h) Liability unconditional 5
(i) Collateral Instruments 5
(j) Waiver of Guarantor's rights 5
(k) Suspense accounts 6
(l) Settlements conditional 6
(m) Guarantor to deliver up certain property 6
(n) Retention of this Guarantee 7
3 Payments and Taxes 7
(a) No set-off or counterclaim; distribution to the Bank 7
(b) Grossing-up for Taxes 7
(c) Claw-back of Tax benefit 7
(d) Currency indemnity 8
4 Set-off 8
5 Benefit of this Guarantee 9
(a) Benefit and burden 9
(b) Changes in constitution or reorganisations of Bank 9
(c) Assignment by Guarantor 9
(d) Disclosure of information 9
6 Notices and other matters 10
(a) Notice 10
(b) No implied waivers, remedies cumulative 10
(c) Expenses 11
7 Governing Law and jurisdiction 11
(a) Law 11
(b) Submission to jurisdiction 11
(c) Inconvenient forum 11
(d) Service of process on the Guarantor 12
(e) Waiver of jury trial, etc. 12
THIS GUARANTEE is dated 31st January, 1996 and made BETWEEN:
(1) CUMMINS ENGINE COMPANY, INC., a corporation duly organised and
existing under the laws of the State of Indiana, with its
principal office at 500 Jackson Street, Box 3005, Columbus,
Indiana 47202-3005, as Guarantor; and
(2) SOCIETE GENERALE of Exchange House, Primrose Street, London EC2A
2HT as Bank.
WHEREAS:
(A) By an agreement (the "Agreement") dated 31st January, 1996 and
made between Cummins Finance Limited (1), the Guarantor (2) and
the Bank (3), the Bank has agreed, upon and subject to the terms
and conditions of the Agreement, to make available to the
Borrower a perpetual loan facility of UK sterling.
(B) The execution and delivery of this Guarantee is one of the
conditions precedent to the Bank making its Commitment available
under the Agreement.
IT IS AGREED as follows:
1Interpretation
(a) Defined expressions
In this Guarantee, unless the context otherwise requires or
unless otherwise defined in this Guarantee, words and expressions
defined in the Agreement and used in this Guarantee shall have
the same meaning where used in this Guarantee.
(b) Definitions
In this Guarantee, unless the context otherwise requires:
"Collateral Instruments" means notes, bills of exchange,
certificates of deposit and other negotiable and non-negotiable
instruments, guarantees, and any other documents or instruments
which contain or evidence an obligation (with or without
security) to pay, discharge or be responsible directly or
indirectly for, any indebtedness or liabilities of the Borrower
or any other person liable and includes Security Documents;
"Guarantee" includes each separate or independent stipulation or
agreement by the Guarantor contained in this Guarantee;
"Guaranteed Liabilities" means all moneys, obligations and
liabilities expressed to be guaranteed by the Guarantor in
clause 2(a);
"Incapacity" means in relation to a person the death, bankruptcy,
unsoundness of mind, insolvency, liquidation, dissolution,
winding-up, administration, receivership, amalgamation,
reconstruction or other incapacity of that person whatsoever
(and, in the case of a partnership, includes the termination or
change in the composition of the partnership);
"Security Documents" means documents or instruments creating or
evidencing a mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, assignment, trust arrangement or
security interest of any kind.
(c) Headings
Clause headings are inserted for convenience of reference only
and shall be ignored in the interpretation of this Guarantee.
(d) Construction of certain terms
In this Guarantee, unless the context otherwise requires:
(i) references to clauses are to be construed as references to the clauses
of this Guarantee;
(ii) references to (or to any specified provision of) this Guarantee or any
other document shall be construed as references to this Guarantee, that
provision or that document as in force for the time being and as amended
from time to time in accordance with the terms thereof, or, as the case may
be, with the agreement of the relevant parties and (where such consent is,
by the terms of this Guarantee or the relevant document, required to be
obtained as a condition to such amendment being permitted) the prior written
consent of the Bank;
(iii) references to a "regulation" include any present or future
regulation, rule, directive, requirement, request, code of practice or
guideline (whether or not having the force of law, but if not having the
force of law compliance with which is customary by persons to whom the same
would normally relate) of any Governmental Authority;
(v) references to a time of day are to London time;
(vi) references to a person shall be construed as including references to an
individual, firm, company, corporation, unincorporated body of persons or
any State or any agency thereof;
(vii) references to a "guarantee" include references to an indemnity or
other assurance against financial loss including, without limitation, an
obligation to purchase assets or services as a consequence of a default by
any other person to pay any Indebtedness and "guaranteed" shall be construed
accordingly; and
(viii) references to any enactment shall be deemed to include references
to such enactment as re-enacted, amended or extended.
2Guarantee
(a) Covenant to pay
In consideration of the Bank making the Loan available to the
Borrower pursuant to the Agreement the Guarantor hereby
guarantees to pay to the Bank, on demand by the Bank all moneys
and discharge all obligations and liabilities now or hereafter
due, owing or incurred by the Borrower to the Bank under or
pursuant to the Agreement and/or the Note prior to and including
the fourteenth Interest Payment Date when the same become due for
payment or discharge whether by acceleration or otherwise.
Notwithstanding any other provision of this Guarantee, the
Guarantor shall have no obligations hereunder following the
fourteenth Interest Payment Date save in respect of the
Guaranteed Liabilities then due and payable or obligations which
fall to be performed prior to such date but which remain to be
discharged in full.
(b) Guarantor as principal debtor; indemnity
As a separate and independent stipulation, the Guarantor agrees
that if any purported obligation or liability of the Borrower
which would have been the subject of this Guarantee had it been
valid and enforceable is not or ceases to be valid or enforceable
against the Borrower on any ground whatsoever whether or not
known to the Bank (including, without limitation, any irregular
exercise or absence of any corporate power or lack of authority
of, or breach of duty by, any person purporting to act on behalf
of the Borrower or any legal or other limitation, whether under
the Limitation Acts or otherwise or any disability or Incapacity
or any change in the constitution of the Borrower) the Guarantor
shall nevertheless be liable to the Bank in respect of that
purported obligation or liability as if the same were fully valid
and enforceable and the Guarantor were the principal debtor in
respect thereof. The Guarantor hereby agrees to keep the Bank
fully indemnified on demand against all damages, losses, costs
and expenses arising from any failure of the Borrower to perform
or discharge any such purported obligation or liability.
(c) Statements of account conclusive
Any statement of account of the Borrower, signed as correct by an
officer of the Bank, showing the amount of the Guaranteed
Liabilities shall be prima facie evidence as to that account.
(d) No security taken by Guarantor
The Guarantor warrants that it has not taken or received, and
undertakes that until all the Guaranteed Liabilities of the
Borrower have been paid or discharged in full, it will not take
or receive, the benefit of any security from the Borrower or any
other person in respect of its obligations under this Guarantee.
(e) Interest
The Guarantor agrees to pay interest on each amount demanded of
it under this Guarantee from the date of such demand until
payment (as well after as before judgment) at the rate one per
cent per annum above the aggregate of LIBOR and the Additional
Cost calculated on a day to day basis. Such interest shall be
compounded at the end of each period determined for this purpose
by the Bank in the event of it not being paid when demanded but
without prejudice to the Bank's right to require payment of such
interest provided that, to the extent that the Bank recovers from
the Borrower or the Guarantor interest at the rate referred to in
clause 6.2 of the Agreement on any unpaid sum under the Agreement
in respect of which demand is made on the Guarantor under this
Guarantee in relation to the period from the date of such demand
until payment, it shall not be entitled to recover under this
clause 2(e) interest on such unpaid sum so demanded.
(f) Continuing security and other matters
This Guarantee shall:
(i) secure the ultimate balance from time to time owing to the Bank by the
Borrower and shall be a continuing security, notwithstanding any settlement
of account or other matter whatsoever;
(ii) be in addition to any present or future Collateral Instrument, right or
remedy held by or available to the Bank; and
(iii) not be in any way prejudiced or affected by the existence of any
such Collateral Instrument, rights or remedies or by the same becoming
wholly or in part void, voidable or unenforceable on any ground whatsoever
or by the Bank dealing with, exchanging, varying or failing to perfect or
enforce any of the same or giving time for payment or indulgence or
compounding with any other person liable.
(g) New accounts
If this Guarantee ceases to be continuing for any reason
whatsoever the Bank may nevertheless continue any account of the
Borrower or open one or more new accounts and the liability of
the Guarantor under this Guarantee shall not in any manner be
reduced or affected by any subsequent transactions or receipts or
payments into or out of any such account.
(h) Liability unconditional
The liability of the Guarantor shall not be affected nor shall
this Guarantee be discharged or reduced by reason of:
(i) the Incapacity or any change in the name, style or constitution of the
Borrower or any other person liable;
(ii) the Bank granting any time, indulgence or concession to, or compounding
with, discharging, releasing or varying the liability of, the Borrower or
any other person liable or renewing, determining, varying or increasing any
accommodation, facility or transaction or otherwise dealing with the same in
any manner whatsoever or concurring in, accepting or varying any compromise,
arrangement or settlement or omitting to claim or enforce payment from the
Borrower or any other person liable; or
(iii) any act or omission which would not have discharged or affected
the liability of the Guarantor had it been a principal debtor instead of a
guarantor or by anything done or omitted which but for this provision might
operate to exonerate the Guarantor.
(i) Collateral Instruments
The Bank shall not be obliged to make any claim or demand on the
Borrower or to resort to any Collateral Instrument or other means
of payment now or hereafter held by or available to them or it
before enforcing this Guarantee and no action taken or omitted by
the Bank in connection with any such Collateral Instrument or
other means of payment shall discharge, reduce, prejudice or
affect the liability of the Guarantor under this Guarantee nor
shall the Bank be obliged to apply any money or other property
received or recovered in consequence of any enforcement or
realisation of any such Collateral Instrument or other means of
payment in reduction of the Guaranteed Liabilities.
(j) Waiver of Guarantor's rights
Until all the Guaranteed Liabilities have been paid, discharged
or satisfied in full (and notwithstanding payment of a dividend
in any liquidation or under any compromise or arrangement) the
Guarantor agrees that, without the prior written consent of the
Bank, it will not:
(i) exercise its rights of subrogation, reimbursement and indemnity against
the Borrower or any other person liable;
(ii) demand or accept repayment in whole or in part of any indebtedness now
or hereafter due to the Guarantor from the Borrower or from any other person
liable or demand or accept any Collateral Instrument in respect of the same
or dispose of the same;
(iii) take any step to enforce any right against the Borrower or any
other person liable in respect of any Guaranteed Liabilities; or
(iv) claim any set-off or counterclaim against the Borrower or any other
person liable or claim or prove in competition with the Bank in the
liquidation of the Borrower or any other person liable or have the benefit
of, or share in, any payment from or composition with, the Borrower or any
other person liable or any other Collateral Instrument now or hereafter held
by the Bank for any Guaranteed Liabilities or for the obligations or
liabilities of any other person liable but so that, if so directed by the
Bank, it will prove for the whole or any part of its claim in the
liquidation of the Borrower on terms that the benefit of such proof and of
all money received by it in respect thereof shall be held on trust for the
Bank and applied in or towards discharge of the Guaranteed Liabilities in
such manner as the Bank shall deem appropriate.
(k) Suspense accounts
Any money received in connection with this Guarantee (whether
before or after any Incapacity of the Borrower or the Guarantor)
which do not fully discharge the Guarantor's obligations under
this Guarantee in respect of any Guaranteed Liabilities (actual
or contingent, present or future) may be placed to the credit of
a suspense account with a view to preserving the rights of the
Bank to prove for the whole of its claims against the Borrower or
any other person liable or may be applied in or towards
satisfaction of such of the Guaranteed Liabilities as the Bank
may from time to time conclusively determine in its absolute
discretion.
(l) Settlements conditional
Any release, discharge or settlement between the Guarantor and
the Bank shall be conditional upon no security, disposition or
payment to the Bank by the Borrower or any other person liable
being void, set aside or ordered to be refunded pursuant to any
enactment or law relating to bankruptcy, liquidation,
administration or insolvency or for any other reason whatsoever
and if such condition shall not be fulfilled the Bank shall be
entitled to enforce this Guarantee subsequently as if such
release, discharge or settlement had not occurred and any such
payment had not been made.
(m) Guarantor to deliver up certain property
If, contrary to clauses 2(d) or 2(j), the Guarantor takes or
receives the benefit of any security or receives or recovers any
money or other property, such security, money or other property
shall be held on trust for the Bank and shall be delivered to the
Bank on demand.
(n) Retention of this Guarantee
The Bank shall be entitled to retain this Guarantee after as well
as before the payment or discharge of all the Guaranteed
Liabilities for such period as the Bank may determine.
3Payments and Taxes
(a) No set-off or counterclaim; distribution to the Bank
The Guarantor acknowledges that, in performing its obligations
under the Agreement, the Bank will be incurring liabilities to
third parties in relation to the funding of amounts advanced to
the Borrower, such liabilities matching the liabilities of the
Borrower to the Bank, and that it is reasonable for the Banks to
be entitled to receive payments from the Borrower gross on the
due date in order that the Bank is put in a position to perform
their matching obligations to the relevant third parties.
Accordingly all payments to be made by the Guarantor under this
Guarantee shall be made in full, without any set-off or
counterclaim whatsoever unless a winding-up order or
administration order or an analogous order in the jurisdiction of
the Bank's incorporation or principal place of business has been
made in respect of the Bank and, subject as provided in
clause 3(b), free and clear of any deductions or withholdings, in
Sterling (except for costs, charges and expenses which shall be
payable in the currency in which they are incurred) on the due
date to the account of the Bank at such bank as the Bank may from
time to time specify for this purpose.
(b) Grossing-up for Taxes
If at any time the Guarantor is required to make any deduction or
withholding in respect of Taxes from any payment due under this
Guarantee for the account of the Bank (or if the Bank is required
to make any such deduction or withholding from a payment to a
Bank), the sum due from the Guarantor in respect of such payment
shall be increased to the extent necessary to ensure that, after
the making of such deduction or withholding, the Bank receives on
the due date for such payment (and retains, free from any
liability in respect of such deduction or withholding) a net sum
equal to the sum which it would have received had no such
deduction or withholding been required to be made and the
Guarantor shall indemnify the Bank against any losses or costs
incurred by any of them by reason of any failure of the Guarantor
to make any such deduction or withholding or by reason of any
increased payment not being made on the due date for such
payment. The Guarantor shall promptly deliver to the Bank any
receipts, certificates or other proof evidencing the amounts (if
any) paid or payable in respect of any deduction or withholding
as aforesaid.
(c) Claw-back of Tax benefit
If following any such deduction or withholding as is referred to
in clause 3(b) from any payment by the Guarantor, the Bank shall
receive or be granted a credit against or remission for any Taxes
payable by it, the Bank shall, subject to the Guarantor having
made any increased payment in accordance with clause 3(b) and to
the extent that the Bank can do so without prejudicing the
retention of the amount of such credit or remission and without
prejudice to the right of the Bank to obtain any other relief or
allowance which may be available to it, reimburse the Guarantor
with such amount as the Bank shall in its absolute discretion
certify to be the proportion of such credit or remission as will
leave the Bank (after such reimbursement) in no worse position
than it would have been in had there been no such deduction or
withholding from the payment by the Guarantor as aforesaid. Such
reimbursement shall be made forthwith upon the Bank certifying
that the amount of such credit or remission has been received by
it. Nothing contained in this Guarantee shall oblige the Bank to
rearrange its tax affairs or to disclose any information
regarding its tax affairs and computations. Without prejudice to
the generality of the foregoing, the Guarantor shall not, by
virtue of this clause 3(c), be entitled to enquire about the
Bank's tax affairs.
(d) Currency indemnity
(i) making or filing a claim or proof against the Guarantor, (ii) obtaining
an order or judgment in any court or other tribunal or (iii) enforcing any
order or judgment given or made in relation to this Guarantee, the Guarantor
shall indemnify and hold harmless the Bank from and against any loss
suffered as a result of any difference between (A) the rate of exchange used
for such purpose to convert the sum in question from the first currency into
the second currency and (B) the rate or rates of exchange at which the Bank
may in the ordinary course of business purchase the first currency with the
second currency upon receipt of a sum paid to it in satisfaction, in whole
or in part, of any such order, judgment, claim or proof. Any amount due
from the Guarantor under this clause 3(d) shall be due as a separate debt
and shall not be affected by judgment being obtained for any other sums due
under or in respect of this Guarantee and the term "rate of exchange"
includes any premium and costs of exchange payable in connection with the
purchase of the first currency with the second currency.
4Set-off
If an Event of Default shall have occurred and be continuing and
the Bank shall have declared the Loan, or the Loan shall have
become automatically, immediately due and payable pursuant to
clause 12.2 of the Agreement, the Bank and each bank which is an
Affiliate of the Bank are hereby authorised at any time and from
time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other
Indebtedness at any time owing by the Bank or any of its
Affiliates to or for the credit or account of the Guarantor
against any of and all the obligations of the Guarantor now or
hereafter existing under this Guarantee and the other Loan
Documents, irrespective of whether or not the Bank shall have
made demand under this Guarantee or such other Loan Document and
although such obligations may be unmatured. The rights of the
Bank under this clause 4 are in addition to such other rights and
remedies (including other rights of set-off) as the Bank may
have.
5Benefit of this Guarantee
(a) Benefit and burden
This Guarantee shall be binding upon the Guarantor and its
successors in title and shall ensure for the benefit of the Bank
and its successors in title and its Assignees. The Guarantor
expressly acknowledges and accepts the provisions of clause 16 of
the Agreement and agrees that any person in favour of whom an
assignment or a transfer is made in accordance with such clause
shall be entitled to the benefit of this Guarantee.
(b) Changes in constitution or reorganisations of Bank
For the avoidance of doubt and without prejudice to the
provisions of clause 5(a), this Guarantee shall remain binding on
the Guarantor notwithstanding any change in the constitution of
the Bank or its absorption in, or amalgamation with, or the
acquisition of all or part of its undertaking or assets by, any
other person, or any reconstruction or reorganisation of any
kind, to the intent that this Guarantee shall remain valid and
effective in all respects in favour of any assignee, transferee
or other successor in title of the Bank in the same manner as if
such assignee, transferee or other successor in title had been
named in this Guarantee as a party instead of, or in addition to,
the Bank.
(c) No assignment by Guarantor
The Guarantor may not assign or transfer any of its rights or
obligations under this Guarantee.
(d) Disclosure of information
The Bank may disclose to a prospective assignee or to any person
who may otherwise enter into contractual relations with the Bank
in relation to the Agreement or the Note (who is, in any such
case, permitted pursuant to clause 16.3 of the Agreement) such
information about the Guarantor as the Bank shall consider
appropriate, subject to such potential assignee or person having
first entered into a confidentiality undertaking in terms similar
to those of clause 16.9 of the Agreement.
6Notices and other matters
(a) Notice
Every notice, request, demand or other communication under this
Guarantee shall:
(i) be in writing delivered personally or by first-class prepaid letter
(airmail if available) or telefax;
(ii) be deemed to have been received, subject as otherwise provided in this
Guarantee, in the case of a letter when delivered personally or 3 days after
it has been put into the post, in the case of a telefax, when a complete and
legible copy is received by the addressee (provided that if the date of
despatch is not a business day in the country of the addressee or if the
time of despatch of any telefax is after the close of business in the
country of the addressee it shall be deemed to have been received at the
opening of business on the next such business day); and
(iii) be sent:
(A) to the Guarantor at:
500 Jackson Street,
Box 3005,
Columbus,
Indiana
47202-3005
Mail Code: 60903
Telefax: 00 1 812 377 3265
Attention: Assistant Treasurer
(B) to the Bank at:
Exchange House,
Primrose Street,
London EC2A 2HT
Telefax: 0171-638 6504
Attention: Cathy Byrne, Loans Administration Department
or to such other address or telefax number as is notified by
the Guarantor or the Bank to the other party to this
Guarantee provided that not less than two Banking Days'
notice shall have been given of such change failing which
such change shall be ineffective.
(b) No implied waivers, remedies cumulative
No failure or delay on the part of the Bank to exercise any
power, right or remedy under this Guarantee shall operate as a
waiver thereof, nor shall any single or partial exercise by the
Bank of any power, right or remedy preclude any other or further
exercise thereof or the exercise of any other power, right or
remedy. The remedies provided in this Guarantee are cumulative
and are not exclusive of any remedies provided by law.
(c) Expenses
The Guarantor agrees to reimburse the Bank on demand for all
legal and other costs, charges and expenses on a full and
unqualified indemnity basis which may be incurred by the Bank in
relation to the enforcement of this Guarantee against the
Guarantor.
7Governing Law and jurisdiction
(a) Law
This Guarantee is governed by and shall be construed in
accordance with English law.
(b) Submission to jurisdiction
The Guarantor agrees for the benefit of the Bank that any legal
action or proceedings arising out of or in connection with this
Guarantee against the Guarantor or any of its assets may be
brought in the English courts and the courts of the United States
of America, the State of New York, the State of Indiana and any
other Relevant Jurisdiction, irrevocably and unconditionally
submits to the jurisdiction of such courts and irrevocably
designates, appoints and empowers (i) Cummins Engine Company
Limited (No. 573951), attention: Gavin Sinclair (Assistant
General Counsel) at present of 46-50 Coombe Road, New Malden,
Surrey KT3 4QL to receive for it and on its behalf, service of
process issued out of the English courts in any such legal action
or proceedings and (ii) CT Corporation at present of 1633
Broadway, NY 10019, New York, United States of America to receive
for it and on its behalf, service of process issued out of the
State Courts of and the Federal Courts in, the State of New York
in any such legal action or proceedings. The submission to such
jurisdiction shall not (and shall not be construed so as to)
limit the right of the Bank to take proceedings against the
Guarantor in the courts of any other competent jurisdiction, nor
shall the taking of proceedings in any one or more jurisdictions
preclude the taking of proceedings in any other jurisdiction,
whether concurrently or not. The parties further agree that only
the courts of England and not those of any other place shall have
jurisdiction to determine any claim which the Guarantor may have
against the Bank arising out of or in connection with this
Guarantee.
(c) Inconvenient forum
The Guarantor irrevocably waives (and irrevocably agrees not to
raise) any objection which it may have now or hereafter to the
laying of the venue of any action or any claim that any such
action or proceedings has been brought in an inconvenient forum
and further irrevocably agrees that a judgment brought in any
court referred to in clause 7(b) shall be conclusive and binding
upon the Guarantor and may be enforced in the courts of any other
jurisdiction.
(d) Service of process on the Guarantor
If either agent referred to in clause 7(b) (or any replacement
agent appointed pursuant to this clause 7(d)) at any time ceases
for any reason to act as such, the Guarantor shall appoint either
a body corporate incorporated in England with an office in
England or a firm of solicitors with an office in England or a
body corporate with a place of business in the State of New York
or a firm of lawyers with an office in the State of New York (as
the case may be) as replacement agent to accept service of
process on behalf of the Guarantor and shall notify the Bank of
the name and address of the replacement agent together with its
declaration or acceptance; failing such appointment and
notification, the Bank shall be entitled by notice to the
Guarantor to appoint such a replacement agent to act on the
Guarantor's behalf.
(e) Waiver of jury trial, etc.
(i) Except as prohibited by law, each party hereto hereby waives
any right it may have to a trial by jury in the United
States of America or any state thereof in respect of any
litigation directly or indirectly arising out of, under or
in connection with this Guarantee, any document or agreement
entered into in connection herewith and any of the
transactions contemplated hereby or thereby.
(ii) Except as prohibited by law, each party hereto hereby waives
any right it may have to claim or recover in any litigation
referred to in clause 7(e)(i) any special, indirect,
exemplary, punitive or consequential damages or any damages
other than, or in addition to, actual damages.
(iii) Each party hereto (A) certifies that no representative,
agent or attorney of any other party has represented to it,
expressly or otherwise, that such other party would not, in
the event of litigation, seek to enforce the foregoing
waivers and (B) acknowledges that it and the other parties
hereto have been induced to enter into this Guarantee by,
among other things, the mutual waivers and certifications in
this clause 7(e).
IN WITNESS whereof the parties to this Guarantee have caused this
Guarantee to be duly executed on the date first above written.
SIGNED for and )
on behalf of )
CUMMINS ENGINE COMPANY, INC. )
by )
SIGNED for and )
on behalf of )
SOCIETE GENERALE )
by )