Exhibit 10.3
Private & Confidential
DATED AUGUST 12, 2005
ELCOM INTERNATIONAL, INC. (1)
ELCOM, INC. (2)
AND
PA SHARED SERVICES LIMITED (3)
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PARENT COMPANY GUARANTEE
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Confidential
THIS DEED is made on 12 August 2005
BY
(1) ELCOM INTERNATIONAL, INC. whose registered office is at 00 Xxxxxx Xxx,
Xxxxxxx, XX 00000 AND
(2) ELCOM, INC. whose registered office is at 00 Xxxxxx Xxx, Xxxxxxx, XX
00000 (together the "GUARANTORS");
IN FAVOUR OF
(2) PA SHARED SERVICES LIMITED (registered number 05234104) whose
registered office is at 000 Xxxxxxxxxx Xxxxxx Xxxx, Xxxxxx XX0X 0XX; ("THE
BENEFICIARY")
BACKGROUND
(A) The Beneficiary and Elcom Systems Limited (registered number 2838561)
whose registered office is Xxxxxx Xxxxx,0-0 Xxxxxxxx Xxxx, Xxxxxxxxx, XX00
0XX; ("ELCOM") (the "PRINCIPAL DEBTOR") are contemplating entering into a
Sub-Framework Agreement (the "SUB-FRAMEWORK AGREEMENT") to assist in the
provision of services to build and maintain the Zanzibar System under a
framework agreement that the Beneficiary will sign with
XXXxxxxxx.xxxxxxxxx ("THE FRAMEWORK AGREEMENT").
(B) ELCOM, the Beneficiary and PA Consulting Services Limited (registered
number 00414220) whose registered office is at 000 Xxxxxxxxxx Xxxxxx Xxxx,
Xxxxxx XX0X 0XX; ("PACS") are also contemplating entering into a Revenue
Share Agreement ("THE REVENUE SHARE AGREEMENT") at the same time, which
will distribute subscription revenue that may be generated by the Zanzibar
System.
(C) PACS has agreed to provide a separate performance guarantee on behalf of
PASSL in favour of XXXxxxxxx.xxxxxxxxx for its obligations under the
Framework Agreement and other associated agreements.
(D) The Guarantors are the ultimate parent and direct parent company of the
Principal Debtor and have agreed to guarantee the Principal Debtor's
obligations under the Sub-Framework Agreement and the Revenue Share
Agreement (together "THE AGREEMENTS") in accordance with the terms and
conditions contained in this Deed.
IT IS AGREED that:
1 GUARANTEE
1.1 The Guarantors hereby guarantee to the Beneficiary that the Principal
Debtor shall observe and perform all the obligations, commitments,
undertakings, warranties and indemnities to be observed and/or performed
on the part of the Principal Debtor under or pursuant to such Agreements.
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2 LIABILITY UNCONDITIONAL
The Guarantors' liability under this Deed shall be joint and several and
shall not be discharged, reduced or otherwise affected in any way by
reason of (i) a Beneficiary giving the Principal Debtor time or any other
concession, (ii) any composition, discharge, release or other variation of
liability entered into with, or granted to, the Principal Debtor, (iii)
the Beneficiary taking, holding, varying, realising or not enforcing any
other security for the liabilities of the Principal Debtor under the
Agreements, (iv) any amendment, variation or waiver of any provisions of
any of the Agreements, (iv) any legal limitation or incapacity relating to
the Principal Debtor or (vi) the invalidity or unenforceability of the
obligations of the Principal Debtor under any of the Agreements. The
Guarantors shall have no greater liability under this Deed than it would
have had if the Guarantors had entered into the Agreements with the
Beneficiary in place of the Principal Debtor.
3 CONTINUING GUARANTEE
This Deed shall continue in effect notwithstanding any intermediate
payment or partial settlement until all the obligations hereunder have
been performed or fulfilled in full.
4 INDEMNITY
The Guarantors shall indemnify and keep indemnified the Beneficiary on
demand by the Beneficiary against all reasonable losses, actions, claims,
costs, charges, expenses and liabilities incurred by the Beneficiary
directly from the enforcement of any of the provisions of this Deed or
occasioned by any breach by the Guarantors of any of its obligations to
the Beneficiary under this Deed.
5 WAIVER OF GUARANTORS' RIGHTS
5.1 The Guarantors shall, not at any time during the validity of this Deed,
exercise (otherwise than in accordance with the Beneficiary's lawful and
timely instructions):
(a) its rights of subrogation, contribution and indemnity;
(b) its right to take the benefit of, share in or enforce any security
or other guarantee or indemnity for the Principal Debtor's
obligations held by the Beneficiary; and
(c) its right to prove or claim in the bankruptcy, liquidation,
administration or other insolvency proceedings of the Principal
Debtor.
Any amount recovered as a result of the exercise of such rights shall be
paid to the Beneficiary as soon as reasonably practicable following
demand.
6 ASSIGNMENT
The Beneficiary may assign or transfer any of its rights of obligations
under this Deed to PACS in its absolute discretion. The Guarantors may not
assign or transfer any of its rights or obligations under this Deed.
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7 CUMULATIVE
The Beneficiary's rights under this Deed are cumulative and not exclusive
of any rights provided by law and may be exercised from time to time and
as often as the Beneficiary deems expedient.
8 CHANGES IN OWNERSHIP OF PRINCIPAL DEBTOR
If at any time during the course of the Agreements the identity of the
shareholders in the Principal Debtor changes, the Guarantors shall give
notice in writing to the Beneficiary setting out the identity of all
shareholders in the Principal Debtor with their respective shareholdings
and whether shares are held beneficially or otherwise.
9 NOTICES AND DEMANDS
Any notice or demand for payment by the Beneficiary under this Deed shall
be in writing and shall be deemed to have been served on the Guarantors if
served in accordance with the notice provisions in the Agreements which
shall be deemed to be incorporated in this Deed mutatis mutandis, or to
such other address (and/or facsimile number) as the Guarantors may from
time to time notify the Beneficiary in writing.
10 INVALIDITY
If any provisions of this Deed become invalid, illegal or unenforceable in
any respect under any law, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired.
11 THIRD PARTIES
Any person, other than PACS, who is not a party to this Deed (including
any employee, officer, agent, representative or sub-contractor of any
party) shall not have the right to enforce any term of this Deed which
expressly or by implication confers a benefit on that person without the
express prior agreement in writing of the Guarantors and the Beneficiary,
which agreement must refer to this clause 11.
12 LAW AND JURISDICTION
This Deed is governed by English law and, for the benefit of the
Beneficiary, the Guarantors hereby irrevocably and unconditionally submits
to the exclusive jurisdiction of the courts of England.
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Confidential
IN WITNESS whereof this Deed has been executed and delivered as a deed by the
Guarantors on the date first specified above.
EXECUTED and DELIVERED)
as a DEED by )
ELCOM INTERNATIONAL, INC.)
/s/ Xxxxxx X. Xxxxxxx
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DIRECTOR
/s/ Xxxx X. Xxxxxx
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DIRECTOR/SECRETARY
EXECUTED and DELIVERED)
as a DEED by )
ELCOM, INC. )
/s/ Xxxxxx X. Xxxxxxx
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DIRECTOR
/s/ Xxxx X. Xxxxxx
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DIRECTOR/SECRETARY
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