EXHIBIT 10.11
DATED 31 October 1996
GUARANTEE
UNIVERSAL INDEPENDENT
HOLDINGS LIMITED
as Beneficiary (1)
THE GUARANTORS named in the Schedule (2)
TABLE OF CONTENTS
PARTIES 1
OPERATIVE PROVISIONS 1
1 Definitions and Interpretation 1
2 Guarantee 2
3 The Beneficiary and the Principal 3
4 Payments 3
5 Variations, waivers etc. 4
6 New Account with the Principal 4
7 Set-off 4
8 Security from Principal 5
9 Subrogation etc. 5
10 Conditional discharge and retention of security 5
11 Joint and several obligations 6
12 Representations and warranties 6
13 Application of Proceeds, etc. 6
14 Benefit of Guarantee 7
15 Notices 8
16 Severability 8
17 Counterparts 8
18 Law and jurisdiction 8
THE SCHEDULE 9
The Guarantors 9
DATE
31 October 1996
PARTIES
(1) UNIVERSAL INDEPENDENT HOLDINGS LIMITED of PO Box 438, Tropic Isle
Building, Wickhams Cay, Rod Town, Tortola, British Virgin Islands (the
"Beneficiary")
(2) THE PARTIES named in the Schedule (together the "Guarantors" and singly
a "Guarantor")
OPERATIVE PROVISIONS
1 DEFINITIONS AND INTERPRETATION
1.1 In this Guarantee, (including the Introduction) the following
words and expressions shall have the following meanings:
agreed form in relation to any agreement
or document the form agreed between
the parties to the Guarantee and
initialled by the Guarantor and the
Beneficiary by way of identification
only.
Business Day a day (other than a Saturday or
Sunday) on which banks are generally
open for business in London and New
York.
Counter Indemnity a counter indemnity dated [ ]
and made between the Principal and
the Beneficiary
Currency of Account the currency in which any
Indebtedness is expressed.
Guarantee this Guarantee and Indemnity as
amended or supplemented from time to
time.
Indebtedness all the Principal's present or
future indebtedness whatever and
wherever to the Beneficiary under
the Counter Indemnity, whether
actual, contingent, present or
future and whether or not matured or
accrued due and whether incurred
solely, severally or jointly with
any other person in whatever
currency, together with interest,
commission, bank charges and any
other costs, charges and expenses
(on a full indemnity basis) charged
or incurred by the Beneficiary in
preparing, negotiating, perfecting,
protecting or enforcing or
attempting to enforce or protect
this Guarantee or any other security
(and its rights thereunder) held by
the Beneficiary from time to time.
Principal Capital Media (UK) Limited (No.
3025201) of 25 St. James Street,
London W1M 5HY and where more
than one person is comprised in the
term "Principal", reference to the
Principal shall (where the context
admits) take effect as a reference
to any of such persons and, where
the Principal is a firm, shall
include the person or persons from
time to time constituting the firm,
whether or not under the same style
or firm name and notwithstanding any
interim dissolution and
reconstruction. Where by any
agreement with the Principal and the
Beneficiary any person assumes all
or any part of the liability of the
Principal to the Beneficiary in
substitution for the Principal, the
Guarantors' liability shall not be
discharged, reduced or affected, but
this Guarantee shall take effect as
if the expression the "Principal"
included such person.
1.2 Clause headings are for ease of reference only. References to clauses
are to clauses of this Guarantee unless otherwise stated.
1.3 Words and expressions defined in the Facility Letter shall have the
same meaning in this Guarantee
2 GUARANTEE
2.1 In consideration of the Beneficiary now making available or continuing
to make available financial accommodation to the Principal pursuant to
arrangements in respect of a lease of a transponder by the Principal
from PTT Telecom B.V. at the request of the Guarantors, each of the
Guarantors unconditionally and irrevocably guarantees payment to the
Beneficiary on demand of all Indebtedness (subject to applicable law)
and, as primary obligor and not merely as a surety, agrees to indemnify
the Beneficiary on demand from and against any loss it may incur as a
result of or in connection with its having now or subsequently advanced
any moneys to the Principal or having now or subsequently incurred any
obligation on behalf of or at the request of the Principal.
2.2 This Guarantee shall:
(a) be additional to any other guarantee or security now or
subsequently held by the Beneficiary in respect of all
Indebtedness;
(b) be a continuing security, shall remain in force until
determined by three months' notice in writing from the
Guarantors and shall extend to secure all Indebtedness
existing at the close of business on the day on which such
notice to determine expires;
(c) apply to the ultimate balance of the Indebtedness and shall
not be discharged or otherwise affected by any intermediate
payment or satisfaction of any part of the Indebtedness or
otherwise the Guarantors' obligations under this Guarantee;
(d) not be discharged or affected by any failure of, or defect or
informality in, any security given by or on behalf of the
Principal in respect of any Indebtedness, nor by any legal
limitation, disability, incapacity or lack of any borrowing or
other powers of the Principal or fraud of the Principal or any
other person or the non-existence of any matter which each of
the
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Guarantors considers expressly or impliedly or may be
deemed to consider a condition precedent to the giving of
their Guarantee (and where any such matter is considered a
condition precedent it is expressly waived by the Guarantors),
or lack of authority of any director or other person appearing
to be acting for the Principal in any matter in respect of any
Indebtedness or by any other fact or circumstances (whether
known or not to any of the Guarantors and/or the Beneficiary)
as a result of which any Indebtedness incurred or purported to
be incurred by or on behalf of the Principal is or may be
rendered invalid, illegal, void or unenforceable by the
Beneficiary against the Principal in whole or in part and
notwithstanding the non-existence of any matter as is referred
to above and so that:
(i) all such circumstances shall be disregarded as
between the Guarantors and the Beneficiary, and any
Indebtedness which would otherwise have arisen shall
be treated as Indebtedness due and owing to the
Beneficiary from the Principal for the purposes of
this Guarantee, whether the same is recoverable by the
Beneficiary from the Principal or not; and
(ii) if and so far as such moneys shall not be so
recoverable, the Guarantors shall be liable to the
Beneficiary as principal debtor and by way of
indemnity for the same amount as that for which the
Guarantors would have been liable by way of guarantee,
if valid and enforceable Indebtedness had been created
between the Beneficiary and the Principal; and
(e) remain the property of the Beneficiary.
2.3 A certificate signed on behalf of the Beneficiary of the amount
for the time being of any Indebtedness and/or the amounts due to the
Beneficiary shall be conclusive evidence for all purposes against the
Guarantors, unless manifestly incorrect.
3 THE BENEFICIARY AND THE PRINCIPAL
Before enforcing this Guarantee, the Beneficiary shall not be obliged
to take any action or obtain any judgment, nor make or file any claim
in the bankruptcy, dissolution or winding up of the Principal or any
other person, nor make any demand of the Principal, nor enforce any
other security held by it for any Indebtedness. The Beneficiary need
not advise the Guarantors of its dealings with the Principal or of any
default by the Principal of which the Beneficiary may have knowledge.
4 PAYMENTS
4.1 All payments by the Guarantors under this Guarantee shall be
made in the Currency of Account, without set-off or counter-claim and
without deduction for any taxes, duties, charges, fees, deductions,
withholdings, or restrictions whatever. If a Guarantor is obliged by
law to make any such deduction, the amount due from that Guarantor
shall be increased to the extent necessary to ensure that, after the
making of such deduction, the Beneficiary receives a net amount equal
to the amount it would have received had no such deduction been
required to be made.
4.2 Any payment made to or for the account of the Beneficiary in a
currency other than the Currency of Account shall only discharge the
Guarantors to the extent of the amount in the Currency of Account which
the Beneficiary is able in accordance with its normal practices, to
purchase on the date of receipt of such payment with the
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other currency so received. If the amount of the Currency of Account
which the Beneficiary is so able to purchase falls short of the amount
originally due to the Beneficiary under the relevant liability of the
Principal or under the Guarantee, the Guarantors shall indemnify the
Beneficiary on demand against any loss or damage arising as a result.
4.3 The indemnity in Clause 4.2 shall constitute an independent
obligation from the Guarantors' other obligations, shall give rise to
an independent cause of action, shall apply irrespective of any
indulgence granted by the Beneficiary from time to time and shall
continue in effect notwithstanding any judgment or order for a
liquidated sum or sums in respect of any Indebtedness or in respect of
amounts due under this Guarantee.
5 VARIATIONS, WAIVERS ETC.
The Beneficiary may, without notice to, or consent from, the Guarantors
and without reducing or extinguishing the Guarantors' liability:
(a) renew, vary, determine or increase any accommodation or credit
given to the Principal;
(b) renew, modify, release or abstain from perfecting or enforcing
any security or guarantee now or subsequently held from the
Principal or any other person, including any Guarantor, in
respect of the Indebtedness;
(c) grant time or indulgence to or compound with the Principal or
any other person or Guarantor; and
(d) do or omit to do anything which but for this provision might
operate to exonerate or discharge the Guarantors or any of
them from any of their respective obligations and this
Guarantee shall not be discharged nor affected by anything
which would not have discharged or affected the Guarantors'
respective liability if the Guarantors had been principal
debtors to the Beneficiary instead of guarantors.
6 NEW ACCOUNT WITH THE PRINCIPAL
If this Guarantee is determined or called in by demand made by the
Beneficiary, the Beneficiary may in its discretion open a new account
or accounts with the Principal or any other person for whose
liabilities this Guarantee is available as security. If the Beneficiary
does not open a new account, it shall nevertheless be deemed to have
done so at the time of determination or calling in. As from that time,
all payments made to the Beneficiary shall be credited or be deemed to
be credited to the new account opened or deemed to have been opened and
shall not operate to reduce the amount for which this Guarantee is
available as security at that time.
7 SET-OFF
7.1 The Beneficiary shall, with the Guarantors' irrevocable authority and,
in addition to and without prejudice to any rights the Beneficiary may
have whether:
(a) arising by operation of law or otherwise in consequence of the
relationship between the parties to this Guarantee or any of
the Security Documents or the Facility Letter; or
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(b) by way of rights of general lien or set-off which may
otherwise exist,
be entitled without notice at any time and from time to time, set-off
any amounts due from the Beneficiary to any Guarantor of whatever
nature and in whatever currency denominated, in or towards satisfaction
of any sums due and payable from the Guarantors' to the Beneficiary
under this Guarantee or any of the Security Documents or the Facility
Letter.
7.2 In effecting any such set-off or transfer, the Beneficiary shall be
entitled to convert one currency into another currency using the spot
rate of exchange of Lloyds Bank PLC between such currencies prevailing
on the date of such set-off or transfer. If the liability in respect of
which the Beneficiary is exercising the Beneficiary's rights of set-off
is contingent, or not yet payable, it shall automatically be
accelerated, and shall accordingly be due and payable, before and as at
the time of such set-off. Provided that the Beneficiary shall not be
obliged to exercise any right given to the Beneficiary by Clause 7.
8 SECURITY FROM PRINCIPAL
Each of the Guarantors warrants that it does not hold and undertakes
that it will not take or hold without the Beneficiary's written consent
in connection with this Guarantee any security whatever from the
Principal. Any security so taken (whether with or without the consent
of the Beneficiary) shall be held in trust for the Beneficiary and as
security for the Guarantor's liability under this Guarantee. The
Guarantors shall deposit such security and any document relating to it
with the Beneficiary as soon as practicable which deposit shall be by
way of security.
9 SUBROGATION ETC.
Until all amounts due or to become due from the Guarantors under this
Guarantee have been paid and discharged in full, the Guarantors shall
not be entitled to share in any security held or money received or
receivable by the Beneficiary on account of that balance or to stand in
the place of the Beneficiary in respect of any security or money. Until
such balance has been discharged in full the Guarantors shall not take
any step to enforce any right or claim whatever against the Principal
in respect of any monies paid by the Guarantors to the Beneficiary
under this Guarantee or have or exercise any rights as surety in
competition with or in priority to any claim of the Beneficiary. Each
Guarantor will, if required by the Beneficiary, prove in a winding up
or bankruptcy on the basis that the Guarantors hold the benefits of
such claims on trust for the Beneficiary.
10 CONDITIONAL DISCHARGE AND RETENTION OF SECURITY
10.1 Any settlement, discharge or release between the Guarantors and the
Beneficiary shall be conditional on no security given or payment made
to the Beneficiary by the Principal or any other person being avoided
or reduced by virtue of any enactments relating to bankruptcy or
liquidation or any other law for the time being in force. The
Beneficiary shall be entitled to recover the value or amount of any
such security or payment from the Guarantor subsequently as if such
settlement, discharge or release had not occurred. The Beneficiary may
exercise the rights created by Clause 7 in respect of the Guarantors'
liability under this Clause (whether actual or contingent).
10.2 The Beneficiary may retain any security held by it for the Guarantors'
liability under this Guarantee for the relevant period after repayment
of all sums due to the
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Beneficiary from the Principal. If within the relevant period after
such repayment a petition shall be presented for an order for the
winding-up of the Principal or the Principal shall commence to be wound
up, the Beneficiary may continue to retain such security or any part of
it for such further period as the Beneficiary shall determine in its
discretion. In this Clause 10.2, the "RELEVANT PERIOD" means the
relevant statutory period, extended by one month, within which any
payment or security made to or held by the Beneficiary may be avoided
or invalidated under any enactment relating to insolvency or otherwise.
11 JOINT AND SEVERAL OBLIGATIONS
11.1 Notwithstanding anything to the contrary in this Guarantee, each of the
Guarantors shall:
(a) be jointly and severally responsible for the payment of the
Indebtedness and other amounts as may from time to time be due
from the Guarantors under this Guarantee and shall otherwise
be joint and severally liable for each and every obligation
undertaken, or liability incurred, under this Guarantee; and
(b) remain so jointly and severally liable notwithstanding that
either of the Guarantors has not for any reason whatever
executed this Guarantee or is not for any reason whatever
effectually bound by the terms of this Guarantee and
notwithstanding that this Guarantee may be invalid or
unenforceable against either of the Guarantors (whether or not
the deficiency is known to the Beneficiary or either of the
Guarantors) or notwithstanding any fraud or non-existence of
any matter which either of the Guarantors may have considered
fundamental to their respective obligations under this
Guarantee or notwithstanding the discharge by the Beneficiary
of either of the Guarantors from their obligations under this
Guarantee.
11.2 This Guarantee shall not be revoked or impaired as to any of the
Guarantors by the incapacity or insolvency of any of the Guarantors.
All references to the Guarantors shall take effect as references to any
of such persons.
11.3 The Beneficiary may release or discharge any of such parties from their
obligations under this Guarantee or accept any composition from or make
any other arrangements with either of the Guarantors without releasing
or discharging the other(s) or otherwise prejudicing or affecting the
Beneficiary's rights and remedies against the other(s).
12 REPRESENTATIONS AND WARRANTIES
Each of the Guarantors represents and warrants to the Beneficiary (such
warranties and representations to continue so long as the Guarantee
remains subsisting and to be updated by reference to the subsisting
facts and circumstances) that so far as each Guarantor is aware of at
the date hereof:
(a) each are duly incorporated companies with limited liability
under their relevant jurisdictions, are validly existing and
no liquidator, receiver, administrator, administrative
receiver or similar or analogous official under any relevant
law has been appointed in respect of either of them or any
part of their respective assets and no action is currently
being taken with a view to appointing any such liquidator,
receiver, administrative receiver, administrator or similar or
analogous official under any relevant law;
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(b) the execution and delivery by each of the Guarantors of this
Guarantee, the performance and observance of each of them of
their respective obligations under this Guarantee does not and
will not violate or result in a breach of or, exceed any power
granted to either of the Guarantors or their respective
directors by:
(i) any law, rule or regulation to or by which any of the
Guarantors, their respective businesses, property or
assets is subject or bound; or
(ii) any judgment, order, injunction, determination, award
or ruling of any court or arbitrator or any judicial
administrative or governmental authority to or by
which either of the Guarantors is subject to or bound;
or
(iii) the Memorandum and Articles of Association or other
incorporating and constitutional documents of either
of the Guarantors; or
(iv) any deed, agreement, franchise, concession or other
instrument to which either of the Guarantors is a
party or which may be binding them or which may affect
its business or any of its properties or assets.
(c) it is not necessary to ensure the legality, validity,
enforceability or admissability in evidence of this Guarantee
that it or any other document be stamped, registered, filed,
notarised or recorded in the United Kingdom or the
jurisdiction of their respective incorporation or residence
(if different) and this Guarantee is in proper form for its
enforcement in the relevant jurisdiction of each of the
Guarantors;
(d) neither of the Guarantors is in default in respect of any
material financial commitment or obligation, including, but
not limited to, any guarantee, indemnity, bond or like
obligation or in breach of any agreement or arrangement or
statutory or other legal requirement to an extent or in a
manner which might have a material adverse effect on the
business assets or financial condition of the Guarantors or
either of them; and
(e) no taxes, levies, imports or duties of whatever nature are
imposed by withholding or otherwise on any payment to be made
by any of them under this Guarantee or are imposed on or by
virtue of the execution or delivery by either of them of this
Guarantee.
13 BENEFIT OF GUARANTEE
This Guarantee shall be binding on the Guarantors and their respective
successors and permitted assigns and shall enure to the benefit of and
be enforceable by the Beneficiary and its successors and assigns, but
so that each of the Guarantors may not assign or otherwise transfer any
of their respective rights or obligations under this Guarantee.
14 NOTICES
14.1 Any demand or notice by the Beneficiary may be delivered personally to
the Guarantors or sent to the Guarantors by post, telemessage, cable,
telex or telecopier at their respective addresses set out in the
Schedule or such other address(es) notified in writing to the
Beneficiary.
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14.2 Any such notice, demand or other correspondence required to be sent or
given for any purpose of this Guarantee shall be given, made or served
by sending it by recorded delivery, facsimile or telex or by delivering
it by hand. Proof of posting or despatch of any notice or communication
shall be deemed to be proof of receipt:
(a) in the case of a letter, on the second Business Day after
posting;
(b) in the case of a facsimile or telex, immediately on the date
of sending.
14.3 Any party may change its address for the receipt of notices by sending
written notice of such change in the manner set out in this clause 15.
165 SEVERABILITY
Each of the provisions of this Guarantee is severable and distinct from
the others and if at any time one or more of the provisions is or
becomes invalid, illegal or unenforceable, the validity, legality
and/or enforceability of the remaining provisions of this Guarantee
shall not in any way be affected or impaired by it.
16 COUNTERPARTS
This Guarantee and any amendment or addition to it may be executed in
any number of counterparts each of which taken together shall be deemed
to constitute one and the same agreement and each of which individually
shall be deemed to be an original, with the same effect as if the
signature on each counterpart were on the same original.
17 LAW AND JURISDICTION
17.1 This Guarantee shall be governed by and construed in accordance with
English law.
17.2 For the exclusive benefit of the Beneficiary, each of the Guarantors
irrevocably submits to the exclusive jurisdiction of the English
courts. Any writ, judgment or other legal process shall be sufficiently
served on the Guarantors and each of them if delivered to the process
agent named by it in column (3) of the Schedule.
17.3 Nothing in Clause 18.2 shall prejudice or be construed as to prejudice
the Beneficiary's right to bring any action in any other such country
having or claiming jurisdiction (whether concurrently or not).
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THE SCHEDULE
THE GUARANTORS
(1) (2) (3)
NAME ADDRESS PROCESS AGENT
(INCLUDING TELEX AND
FACSIMILE NUMBERS)
Capital Media Group Limited
Onyx Television GmbH
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ATTESTATIONS
Executed and unconditionally delivered as a deed.
EXECUTED as a Deed on behalf )
of CAPITAL MEDIA GROUP )
LIMITED a company )
incorporated in the State of )
Nevada United States of )
America by C.R. Koppel ) /s/ CHARLES KOPPEL
and Barry Llewellyn ) /s/ BARRY LLEWELLYN
being a person/persons who in )
accordance with the laws of that )
territory is/are empowered to )
sign this document on behalf )
of the Company )
EXECUTED as a Deed on behalf )
of ONYX TELEVISION GMBH a company )
incorporated in the State of )
Germany by Roland M. Mueller ) /s/ ROLAND M. MUELLER
and )
being a person/persons who in )
accordance with the laws of )
that territory is/are empowered )
to sign the document on behalf )
of the Company )
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