Exhibit 10.23
Guaranty
Westcon Group
Exhibit 10.23
GUARANTY
TO: GE Commercial Distribution Finance Europe Limited
0 Xxxxxxx Xxxx
Xxxxxxxxx
Xxxxxx, Xxxxxx Xxxxxxx XX0 0XX
In consideration of financing provided or to be provided by you to Westcon
Group European Operations Limited, a United Kingdom company, with an address at
Xxxxxxxx'x House, Xxxxxxxxx Road, Cirencester, Xxxxxxxxxx XX0 0XX Xxxxxx
Xxxxxxx ("Borrower"), and for other good and valuable consideration received,
we jointly, severally, unconditionally and absolutely guaranty to you, from
property held separately, jointly or in community, the immediate payment when
due of all current and future liabilities owed by Borrower pursuant to the
following Agreements: (a) Deed of Charge dated October 10, 2003 between GE
Commercial Distribution Finance Europe Limited and Westcon Group European
Operations Limited, (b) Conditional Sale Agreement 23 December 1997 (as amended
from time to time) as novated by a Deed of Novation between (1) Comstor Limited
(2) Westcon Group European Operations Limited and (3) GE Commercial
Distribution Finance Europe Limited dated October 10, 2003, (c) Guarantee by
Westcon Group European Operations Limited dated 10 October 2003 of the
obligations of Comstor Limited, (d) Blocked Bank Account Agreement dated 10
October 2003 between HSBC Bank plc, GE Commercial Distribution Finance Europe
Limited and Westcon Group European Operations Limited ("Liabilities"). We will
pay you on demand an amount equal to of all Liabilities due from Westcon Group
European Operations Limited under the aforementioned Agreements, together with
all reasonable costs and expenses (including, without limitation, reasonable
attorneys' fees).
Our guaranty will not be released, discharged or affected by, and we
hereby irrevocably consent to, any: (a) change in the manner, place of payment
or performance of the Liabilities, or in any current or future agreement
between you and Borrower, the release, settlement or compromise of or with any
party liable for the payment or performance thereof or the substitution,
release, non-perfection, impairment, sale or other disposition of any
collateral thereunder; (b) change in Borrower's financial condition; (c)
interruption of relations between Borrower and you or us; (d) claim or action
by Borrower against you; and/or (e) increases or decreases in any credit you
may provide to Borrower. We will pay you even if you have not: (i) notified
Borrower that it is in default of the Liabilities, and/or that you intend to
accelerate or have accelerated the payment of all or any part of the
Liabilities, or (ii) exercised any of your rights or remedies against Borrower,
any other person or any current or future collateral. Notwithstanding the
foregoing, absent any default by Borrower in payment of the Liabilities,
Borrower may make payments to us in the ordinary course of business and such
payments will not be subject to any trust or repayment obligation from us to
you. However, if you notify us that Borrower is in default of its obligation to
pay the Liabilities, we agree not to demand, xxx for, take or receive payment
or security for all or any part of the obligations which Borrower owes to us
until and unless all of the Liabilities have been fully paid and discharged.
This Guaranty is assignable by you and will inure to the benefit of your
assignee.
We irrevocably waive: notice of your acceptance of this Guaranty,
presentment, demand, protest, nonpayment, nonperformance, notice of breach or
default, notice of intent to accelerate and notice of acceleration of any
indebtedness of Borrower, any right of contribution from other guarantors,
dishonor, the amount of indebtedness of Borrower outstanding at any time, and
any claim or action against Borrower; all other demands and notices required by
law; all rights of offset and counterclaims against you or Borrower; all
defenses to the enforceability of this Guaranty (including, without limitation,
fraudulent inducement). We further waive all defenses based on suretyship or
impairment of collateral, and defenses which the Borrower may assert on the
underlying debt, including but not limited to, failure of consideration, breach
of warranty, fraud, payment, statute of frauds, bankruptcy, lack of legal
capacity, statute of limitations, lender liability, accord and satisfaction
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and usury. We also waive all rights to claim, arbitrate for or xxx for any
punitive or exemplary damages. In addition, we hereby irrevocably subordinate
to you any and all of our present and future rights and remedies: (a) of
subrogation against Borrower to any of your rights or remedies against
Borrower, (b) of contribution, reimbursement, indemnification and restoration
from Borrower; and (c) to assert any other claim or action against Borrower
directly or indirectly relating to this Guaranty, such subordinations to last
until you have been paid in full for all Liabilities. All our waivers and
subordinations herein will survive any termination of this Guaranty.
We have made an independent investigation of the financial condition of
Borrower and give this Guaranty based on that investigation and not upon any
representation made by you. We have access to current and future Borrower
financial information which enables us to remain continuously informed of
Borrower's financial condition. We represent and warrant to you that we have
received and will receive substantial direct or indirect benefit by making this
Guaranty and incurring the Liabilities. We warrant and represent to you that
all financial statements and information relating to us which have been or may
hereafter be delivered by us to you are true and correct and have been and will
be prepared in accordance with generally accepted accounting principles
consistently applied and, with respect to previously delivered statements and
information, there has been no material adverse change in the financial or
business condition of us since the submission to you, either as of the date of
delivery, or if different, the date specified therein, and we acknowledge your
reliance thereon. This Guaranty will survive any bankruptcy or insolvency
action involving Borrower. We are solvent and our execution of this Guaranty
will not make us insolvent. If you are required in any action involving
Borrower to return or rescind any payment made to or value received by you from
or for the account of Borrower, this Guaranty will remain in full force and
effect and will be automatically reinstated without any further action by you
and notwithstanding any termination of this Guaranty or your release of us. Any
delay or failure by you, or your successors or assigns, in exercising any of
your rights or remedies hereunder will not waive any such rights or remedies.
Oral agreements or commitments to loan money, extend credit or to forbear from
enforcing repayment of a debt including promises to extend or renew such debt
are not enforceable. To protect us and you from misunderstanding or
disappointment, any agreements we reach covering such matters are contained in
this writing, which is the complete and exclusive statement of the agreement
between us, except as specifically provided herein or as we may later agree in
writing to modify it. Notwithstanding anything herein to the contrary: (a) you
may rely on any facsimile copy, electronic data transmission or electronic data
storage of this Guaranty, any agreement between you and Borrower, any billing
statement, invoice from a vendor, financial statements or other report, and (b)
such facsimile copy, electronic data transmission or electronic data storage
will be deemed an original, and the best evidence thereof for all purposes,
including, without limitation, under this Guaranty or any other agreement
between you and us, and for all evidentiary purposes before any arbitrator,
court or other adjudicatory authority. We may terminate this Guaranty by a
written notice to you, the termination to be effective sixty (60) days after
you receive and acknowledge it, but the termination will not terminate our
obligations hereunder for Liabilities arising prior to the effective
termination date. We have read and understood all terms and provisions of this
Guaranty. We acknowledge receipt of a true copy of this Guaranty and of all
agreements between you and Borrower. The meanings of all terms herein are
equally applicable to both the singular and plural forms of such terms.
BINDING ARBITRATION. Except as otherwise specified below, all actions,
disputes, claims and controversies under common law, statutory law or in equity
of any type or nature whatsoever, whether arising before or after the date of
this Guaranty, and whether directly or indirectly relating to: (a) this
Guaranty and/or any amendments and addenda hereto, or the breach, invalidity or
termination hereof; (b) any previous or subsequent agreement between you and
us; (c) any act committed by you or by any parent company, subsidiary or
affiliated company of you (the "CDF Companies"), or by any employee, agent,
officer or director of a CDF Company, whether or not arising within the scope
and course of employment or other contractual representation of the CDF
Companies provided that such act arises under a relationship, transaction or
dealing between you and Borrower or you and us; and/or (d) any other
relationship, transaction, dealing or agreement between you and Borrower or
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you and us (collectively the "Disputes"), will be subject to and resolved by
binding arbitration. Notwithstanding the foregoing, the parties agree that
either party may pursue claims against the other that do not exceed Fifteen
Thousand Dollars ($15,000) in the aggregate in a court of competent
jurisdiction. Service of arbitration claims shall be acceptable if made by U.S.
mail or overnight delivery to the address for the party described herein.
All arbitration hereunder will be conducted in accordance with The
Commercial Arbitration Rules of either: (a) The American Arbitration
Association ("AAA") or (b) United States Arbitration & Mediation ("USA&M"). The
party first filing an arbitration claim shall designate which arbitration forum
and rules are to be applied for all disputes between the parties. The
arbitration rules are found at xxx.xxx.xxx for AAA, and at xxx.xxxx-xxxxxxx.xxx
for USA&M. AAA claims may be filed in any AAA office. Claims filed with USA&M
shall be filed in their Midwest office located at 000 Xxxxx Xxxxxx, Xxxxx 0000,
Xx. Xxxxx, Xxxxxxxx 00000. All arbitrator(s) selected will be attorneys with at
least five (5) years secured transactions experience. A panel of three
arbitrators shall hear all claims exceeding One Million Dollars ($1,000,000),
exclusive of interest, costs and attorneys' fees. The arbitrator(s) will decide
if any inconsistency exists between the rules of any applicable arbitral forum
and the arbitration provisions contained herein. If such inconsistency exists,
the arbitration provisions contained herein will control and supersede such
rules. The arbitrator shall follow the terms of this agreement and the
applicable law, including without limitation, the attorney-client privilege and
the attorney workproduct doctrine.
Each party hereby consents to a documentary hearing for all arbitration
claims, by submitting the dispute to the arbitrator(s) by written briefs and
affidavits, along with relevant documents. However, arbitration claims will be
submitted by way of an oral hearing, if any party requests an oral hearing
within forty (40) days after service of the claim, and that party remits the
appropriate deposit for AAA's fees and arbitrator compensation within ten (10)
days of making the request. The site of all oral arbitration hearings will be
in the Southern District of New York.
Discovery permitted in any arbitration proceeding commenced hereunder is
limited as follows: No later than forty (40) days after the filing and service
of a claim for arbitration, the parties in contested cases will exchange
detailed statements setting forth the facts supporting the claim(s) and all
defenses to be raised during the arbitration, and a list of all exhibits and
witnesses. No later than twenty-one (21) days prior to the oral arbitration
hearing, the parties will exchange a final list of all exhibits and all
witnesses, including any designation of any expert witness(es) together with a
summary of their testimony; a copy of all documents and a detailed description
of any property to be introduced at the hearing. Under no circumstances will
the use of interrogatories, requests for admission, requests for the production
of documents or the taking of depositions be permitted. However, in the event
of the designation of any expert witness(es), the following will occur: (a) all
information and documents relied upon by the expert witness(es) will be
delivered to the opposing party; (b) the opposing party will be permitted to
depose the expert witness(es); (c) the opposing party will be permitted to
designate rebuttal expert witness(es); and (d) the arbitration hearing will be
continued to the earliest possible date that enables the foregoing limited
discovery to be accomplished.
The Arbitrator(s) will not have the authority to award exemplary or
punitive damages.
All arbitration proceedings, including testimony or evidence at hearings,
will be kept confidential, although any award or order rendered by the
arbitrator(s) pursuant to the terms of this Guaranty may be confirmed as a
judgment or order in any state or federal court of competent jurisdiction
within the federal judicial district which includes the residence of the party
against whom such award or order was entered. This Guaranty concerns
transactions involving commerce among the several states. The Federal
Arbitration Act ("FAA") will govern all arbitration(s) and confirmation
proceedings hereunder.
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Nothing herein will be construed to prevent your or our use of bankruptcy,
receivership, injunction, repossession, replevin, claim and delivery,
sequestration, seizure, attachment, foreclosure, and/or any other prejudgment
or provisional action or remedy relating to any collateral for any current or
future debt owed by either party to the other. Any such action or remedy will
not waive your or our right to compel arbitration of any Dispute.
If either we or you bring any other action for judicial relief with
respect to any Dispute (other than those set forth in the preceding
paragraphs), the party bringing such action will be liable for and immediately
pay all of the other party's costs and expenses (including attorneys' fees)
incurred to stay or dismiss such action and remove or refer such Dispute to
arbitration. If either we or you bring or appeal an action to vacate or modify
an arbitration award and such party does not prevail, such party will pay all
costs and expenses, including attorneys' fees, incurred by the other party in
defending such action. Additionally, if we xxx you or institute any arbitration
claim or counterclaim against you in which you are the prevailing party, we
will pay all costs and expenses (including attorneys' fees) incurred by you in
the course of defending such action or proceeding.
Any arbitration proceeding must be instituted: (a) with respect to any
Dispute for the collection of any debt owed by either party to the other,
within two (2) years after the date the last payment by or on behalf of the
payor was received and applied in respect of such debt by the payee and (b)
with respect to any other Dispute, within two (2) years after the date the
incident giving rise thereto occurred, whether or not any damage was sustained
or capable of ascertainment or either party knew of such incident. Failure to
institute an arbitration proceeding within such period will constitute an
absolute bar and waiver to the institution of any proceeding with respect to
such Dispute. Except as otherwise stated herein, all notices, arbitration
claims, responses, requests and documents will be sufficiently given or served
if mailed or delivered: (i) to us at our address below; (ii) to you at 000
Xxxxxxxxx Xxxxxx Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000-0000, Attention: General
Counsel; or such other address as the parties may specify from time to time in
writing.
The agreement to arbitrate will survive the termination of this Guaranty.
IF THIS GUARANTY IS FOUND TO BE NOT SUBJECT TO ARBITRATION, ANY LEGAL
PROCEEDING WITH RESPECT TO ANY DISPUTE WILL BE TRIED IN A COURT OF COMPETENT
JURISDICTION BY A JUDGE WITHOUT A JURY. WE WAIVE ANY RIGHT TO A JURY TRIAL IN
ANY SUCH PROCEEDING.
This Guaranty and all agreements between Borrower and you have been
substantially negotiated, and will be substantially performed, in the state of
New York. Accordingly, all Disputes will be governed by, and construed in
accordance with, the laws of such state, except to the extent inconsistent with
the provisions of the FAA which will control and govern all arbitration
proceedings hereunder.
THIS GUARANTY CONTAINS BINDING ARBITRATION, JURY WAIVER AND PUNITIVE
DAMAGES WAIVER PROVISIONS.
Westcon Group, Inc.
000 Xxxxx Xxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
By: /s/ Xxxx Xxxx Xxxxx
--------------------------------
Name/Title: Xxxx Xxxx Xxxxx,
President/CEO
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Guaranty
Comtor Networks
GUARANTEE
Comstor Networks GmbH, Kaiserin-Augusta-Allee 113, 10553 Berlin (the
"Guarantor")
has herewith entered into on behalf of
Westcon Group European Operations Limited [business address] [(hereinafter
referred to as the "Dealer")
the following Guarantee in favour of
GE Commercial Distribution Finance Europe Limited, 0 Xxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxx, XX0 0XX, Great Britain (hereinafter referred to as "CDF")
(1) CDF supplies the Dealer pursuant to the Conditional Sale Agreement of
23.12.1997 between CDF (formerly Deutsche Financial Services (UK) Limited)
and Comstor Limited (as novated to the Dealer pursuant to a deed of
novation and financial undertaking dated 10 October 2003) on a continuing
basis with goods which are subject to an extended reservation of title.
The Guarantor is aware of the above agreement, deed of novation and
financial undertaking, an all assets debenture , a Guarantee and Indemnity
and a blocked account agreement entered into between CDF and the Dealer
(and others as the case may be) (together "Financing Documents").
(2) The Guarantor hereby guarantees that the Dealer shall fulfil all present
and future, conditional and unconditional obligations arising out of the
Financing Documents mentioned in paragraph (1) in due time. The Guarantor
undertakes irrevocably and unconditionally to pay CDF an amount of up to
US$130,000,000 - (one hundred and thirty million US dollars) plus all
interests and costs in the event that the Dealer does not fulfil his
obligations arising out of the Financing Documents mentioned in paragraph
(1) above in due time. This Guarantee shall also encompass all obligations
to pay damages for which the Dealer may be liable as a result of breaching
any terms of the Financing Documents.
(3) This Guarantee creates an independent payment obligation on the part of
the Guarantor which is independent of the validity and enforceability of
the Financing Documents as well as all defences and obligations the Dealer
may have arising out of such documents. CDF is not under a duty to bring
legal proceedings against the Dealer or any third party, bring enforcement
proceedings against the Dealer or a third party or realise any security
provided by the Dealer or a third party prior to making a claim under this
Guarantee.
(4) The Guarantor shall make all payments under this Guarantee without
deduction or withholding of any taxes or other fees. Where the Guarantor is
required by law to deduct or withhold any taxes on any amounts payable
hereunder, the Guarantor shall promptly pay CDF such additional amount as
is necessary to ensure that the net amount received by CDF after the
required deduction or withholding is equal to the amount that it would have
received had no such deduction or withholding been made. If it is not
permissible to make a payment in the event of a claim being made hereunder
for currency reasons, then the Guarantor shall be entitled to free itself
from its obligations pursuant to this Guarantee by making a deposit of
money. The Guarantor shall only have a right of retention or set-off in
relation to its own claims and rights, if these have been declared final
and absolute by a court or expressly recognised by CDF.
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(5) CDF shall be entitled to release any securities which the Dealer or a
third party has provided to secure the Dealer's obligations arising out of
the Finance Documents.
(6) Claims that CDF has against the Dealer pursuant to the Finance Documents
shall have priority over any claims that the Guarantor may have against
the Dealer in connection with the fulfilment of the Guarantor's
obligations under this Guarantee. The Guarantor shall make any claim that
it has in connection with any claim that has been made under this
Guarantee only when all claims that CDF has against the Dealer pursuant
the Finance Documents have been satisfied, [provided however that absent
any default by Dealer under the Finance Documents, the Dealer may make
payments to the Guarantor in the ordinary course of business and such
payments will not be subject to any repayment obligation to CDF unless
such default occurs].
(7) The obligations arising under this Guarantee shall continue in force even
if the Dealer's undertaking is wound up, dissolved or it changes its legal
form.
(8) This Guarantee shall come in force on the day that it is issued. Except as
otherwise provided herein, the Guarantee shall terminate after the Dealer
has fully satisfied all its obligations arising out of the Finance
Documents. The Guarantor may terminate this Guarantee by written notice to
CDF, the termination to be effective sixty (60) days after CDF receives
it, but the termination will not terminate Guarantor's obligations
hereunder arising prior to the effective termination date. As soon as the
Guarantee has terminated and such obligations have been supplied, CDF
shall return the original Guarantee document without delay to the
Guarantor.
(9) This Guarantee shall be subject to the laws of the Federal Republic of
Germany.
(10) Non-exclusive jurisdiction for all disputes arising out of or in
connection with this Guarantee is Dusseldorf, Federal Republic of Germany.
CDF shall also be entitled to bring a cause of action at the jurisdiction
of the principal place of business or a branch of the Guarantor.
(11) If any provisions of this Guarantee are or become invalid, the validity of
the remaining provisions hereof shall remain unaffected. In lieu of the
invalid provision a provision shall apply which as far as legally
permissible comes as close as possible to that which the parties would
have wanted had they realised that the provision was invalid. The same
shall apply in the event of an omission.
(12) Any changes to this Guarantee including this provision must be in writing
unless compulsory law provides for a stricter form requirement.
By: Xxxx Xxxx Xxxxx, Director
/s/ Xxxx Xxxx Xxxxx
...............................
Comstor Networks GmbH
as Guarantor
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Deed of Guarantee and Indemnity
Comstor Group Limited
DEED OF GUARANTEE AND INDEMNITY
(Corporate)
To: GE Commercial Distribution Finance Europe Limited
(a company registered in England
with the number 2549477)
0 Xxxxxxx Xxxx
Xxxxxxxxx
Xxxxxx XX0 0XX
1 In this Deed except where the context otherwise requires:
(a) the following expressions shall have the meanings assigned to them
below:
"Agreement"
the agreement or agreements specified in section 3 of the Schedule;
"Client"
the person whose name and address appears in section 1 of the
Schedule;
"Co-surety"
any person (other than the persons named in section 2 of the
Schedule) who has given or proposes to give a guarantee or indemnity
in respect of any Obligations;
"Indulgence"
the grant of any time or indulgence or the conclusion of any
agreement not to xxx or of any compromise or composition or the
release of any charge lien or other security or any part thereof;
"Losses"
losses costs damages claims interest and expenses;
"Obligations"
all present and future monetary and other liabilities and obligations
now or at any time owed or incurred by the Client to you or in your
favour whether (i) actual or contingent (ii) liquidated or
unliquidated (iii) arising in or by contract tort restitution
assignment or breach of statutory duty (iv) arising under the
Agreement;
"Schedule"
the schedule annexed to and forming part of this Deed;
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"Variation"
any variation, amendment, supplement or other modification whatsoever
of or to the Agreement whether written (by correspondence or other
communication), oral or otherwise;
(b) reference to "you" and "your" shall include reference to your
successors and assigns;
(c) the singular shall include the plural and vice versa; and
(d) the meaning of general words introduced by the word "other" shall not
be limited by reference to any preceding word or enumeration
indicating a particular class of acts matters persons or things.
2 We the Guarantors and Indemnifiers whose name(s) appear in section 2 of
the Schedule hereby:
(a) unconditionally guarantee the due performance of all of the
Obligations and
(b) undertake upon your demand in writing to pay to you all amounts
payable or which may at any time hereafter become payable to you by
the Client whether arising under the Agreement or otherwise so that
you may enforce against us our obligations under this provision at
any time without prior demand on the Client.
3 Without prejudice to the provisions of clause 2 hereof we hereby agree to
indemnify you and hold you harmless against all Losses you may suffer or
incur by reason of any failure of the Client to comply with any term of
the Agreement and against all Losses arising out of or in connection with
the recovery by you of any monies due to you under this Guarantee and
Indemnity.
4 The guarantee given herein shall be a continuing guarantee and shall apply
to the ultimate amount payable by the Client and shall not be discharged
by an intermediate payment or satisfaction by the Client or any other
person.
5 Our liability under this Guarantee and Indemnity shall not be affected by:
(a) any Indulgence granted Or made by you to or with the Client or any
Co-surety;
(b) any Variation in the Agreement or in any other agreement between the
Client and you (whether or not our liability to you may be increased
thereby) or by any defect therein or in its execution;
(c) any defect in any other guarantee or indemnity or other security held
by you in respect of the Obligations to you or in the execution
thereof;
(d) any failure by you to take perfect or hold unencumbered any security
from the Client or any other person or to take any guarantee or
indemnity from a Co-surety or any defect in any such guarantee or
indemnity or in its execution; or
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(e) any change in the constitution of the Client
and we shall be liable hereunder in every respect as principal debtors.
6 Where two or more persons are named in section 2 of the Schedule our
liability hereunder shall be joint and several and the liability of each
one of us hereunder shall not be affected by any Indulgence granted or
made by you to or with any other of us nor by:
(a) any defect in or the absence of the execution of this Deed by the
other of us; or
(b) any notice of termination hereof by any other of us;
and you may at your discretion (but shall not be obliged to) treat any
notice by anyone of us as notice by all of us.
7 We shall be liable to pay you interest calculated from day to day and
compounded and payable monthly at the rate per annum specified in section
4 of the Schedule on all sums demanded by you from us hereunder from the
date of your demand to the date when payment is received by you both
before and after any judgement in so far as such interest is not due
pursuant to the provisions of the Agreement.
8 Except as otherwise provided herein, we warrant to you that we .have not
taken, and we agree not to take, exercise or receive the benefit of any
security or other right or benefit (whether by set off, counterclaim,
subrogation, indemnity, withdrawal of monies payable to us 'by the Client,
proof in liquidation or bankruptcy or otherwise) from or against the
Client or any other person until all liabilities that we may have to you
under this Guarantee and Indemnity shall have been discharged to your
satisfaction. We further undertake that if any such security right or
benefit is taken the same and all monies and proceeds of the same at any
time received or held in respect thereof shall be held by us on trust for
you for application in or towards discharge of our liabilities to you
under this Guarantee and Indemnity, and that such proceeds or monies shall
be paid by us to you forthwith upon demand. For the avoidance of any
doubt, this clause shall not prevent us from purchasing goods from or
selling goods to the Client provided such purchase or sale takes place in
the ordinary course of business of us and the Client and against such
terms and conditions as a purchase from or sale to a third party would
take place.
9 Any monies which you receive by virtue of or in connection with this
Guarantee and Indemnity may be placed by you to the credit of a suspense
account with a view to your preserving your right to prove for the whole
of your claim against the Client in the event of its winding up.
10 For the purpose of determining our liability under this Guarantee and
Indemnity (which shall be additional to and not in substitution for any
other security taker: or to be taken by you in respect of the Obligations
to you) we shall be bound by any acknowledgement or admission by the
Client. For the purpose of determining the amount of any Losses we shall
accept and be bound by a certificate signed by your company secretary
(save for the manifest error or error of law). In arriving at the amount
payable to you by the Client you shall be entitled to take into account
all liabilities (whether actual or contingent) and to make a reasonable
estimate of any liability the amount of which cannot be immediately
ascertained.
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11 Any discharge given by you to us or any of us in respect of our
obligations under the Guarantee and Indemnity shall be deemed to have been
void and of no effect if any security taken from or payment made by the
Client or any other person which had been taken into account by you in
giving the discharge is subsequently avoided or reduced by or in pursuance
of any provision of law. The paper on which this Deed is written shall
remain your property notwithstanding any such discharge.
12 This Guarantee and Indemnity shall remain in full force and effect until
all Obligations guaranteed, Losses indemnified and any other liabilities
that we may have to you, whether actual, contingent or otherwise, shall
have been discharged to your satisfaction.
13 Any notice or demand on any of us shall be validly given or made if
delivered to or sent by post to the address stated in section 2 of the
Schedule or the address last known to you or our registered office and if
sent by post shall be deemed to be received within seventy-two hours of
posting.
14 This Guarantee and Indemnity shall be construed and take effect according
to English law and we accept the non-exclusive jurisdiction of the English
Courts. If any provision hereof shall be held invalid or unenforceable no
other provisions hereof shall be affected and all such other provisions
shall remain in full force and effect.
IN WITNESS WHEREOF the above named Guarantors and Indemnifiers have executed
these presents as a deed on the 10 day of October 2003.
SIGNED AND DELIVERED AS A DEED
By: Comstor Group Limited
/s/ Xxxx Xxxx Xxxxx
---------------------------------
acting by Xxxx Xxxx Xxxxx Signature of Director
a Director and
Xxxxxxxxx Xxxxxxx
the Company Assistant Secretary /s/ Xxxxxxxxx Xxxxxxx
---------------------------------
Signature of Company Secretary
SIGNED AND DELIVERED AS A DEED
by ................................. .................................
acting by .......................... Signature of Director
a Director and .....................
a Director/the Company Secretary .................................
a Director/the Company Secretary
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THE SCHEDULE
1. Client
Westcon Group European Operations Limited (Name)
Xxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx
Xxxxxxxxxxx
Xxxxxxxxxxxxxxx XX0 0XX (Address)
ENGLAND (Country of registration)
044411285 (Number)
2. Guarantors and Indemnifiers:
Corporate:
Comstor Group Limited (Name)
Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxx
Xxxxxxxxxxx
Xxxxxxxxxx, XX0 0XX (Address)
ENGLAND (Country of registration)
32577722 (Number)
3. Agreements:
- Deed of Novation and Financial Undertaking dated 10 October 2003
between (1) Westcon Group European Operations Limited (2) Comstor
Limited and (3) GE Commercial Distribution Finance Europe Limited
- Deed of Charge dated 10 October 2003
- Conditional Sale Agreement 23 December 1997 (as amended from time to
time) as novated by the Deed of Novation
- Blocked Bank Account Agreement dated 10 October 2003
4. Rate of Interest: 5% over the base rate for the time being in force of
National Westminster Bank p.l.c.
5
Deed of Gurantee and Indemnity
Comstor Limited
DEED OF GUARANTEE AND INDEMNITY
(Corporate)
To: GE Commercial Distribution Finance Europe Limited
(a company registered in England
with the number 2549477)
0 Xxxxxxx Xxxx
Xxxxxxxxx
Xxxxxx XX0 0XX
1 In this Deed except where the context otherwise requires:
(a) the following expressions shall have the meanings assigned to them
below:
"Agreement"
the agreement or agreements specified in section 3 of the Schedule;
"Client"
the person whose name and address appears in section 1 of the
Schedule;
"Co-surety"
any person (other than the persons named in section 2 of the
Schedule) who has given or proposes to give a guarantee or indemnity
in respect of any Obligations;
"Indulgence"
the grant of any time or indulgence or the conclusion of any
agreement not to xxx or of any compromise or composition or the
release of any charge lien or other security or any part thereof;
"Losses"
losses costs damages claims interest and expenses;
"Obligations"
all present and future monetary and other liabilities and obligations
now or at any time owed or incurred by the client to you or in your
favour whether (i) actual or contingent (ii) liquidated or
unliquidated (iii) arising in or by contract tort restitution
assignment or breach of statutory duty (iv) arising under the
Agreement;
"Schedule"
the schedule annexed to and forming part of this Deed;
1
"Variation"
any variation, amendment, supplement or other modification whatsoever
of or to the Agreement whether written (by correspondence or other
communication), oral or otherwise;
(b) reference to "you" and "your" shall include reference to your
successors and assigns;
(c) the singular shall include the plural and vice versa; and
(d) the meaning of general words introduced by the word "other" shall not
be limited by reference to any preceding word or enumeration
indicating a particular class of acts matters persons or things.
2 We the Guarantors and Indemnifiers whose name(s) appear in section 2 of
the Schedule hereby:
(a) unconditionally guarantee the due performance of all of the
Obligations and
(b) undertake upon your demand in writing to pay to you all amounts
payable or which may at any time hereafter become payable to you by
the Client whether arising under the Agreement or otherwise so that
you may enforce against us our obligations under this provision at
any time without prior demand on the Client.
3 Without prejudice to the provisions of clause 2 hereof we hereby agree to
indemnify you and hold you harmless against all Losses you may suffer or
incur by reason of any failure of the Client to comply with any term of
the Agreement and against all Losses arising out of or in connection with
the recovery by you of any monies due to you under this Guarantee and
Indemnity.
4 The guarantee given herein shall be a continuing guarantee and shall apply
to the ultimate amount payable by the Client and shall not be discharged
by an intermediate payment or satisfaction by the Client or any other
person.
5 Our liability under this Guarantee and Indemnity shall not be affected by:
(a) any Indulgence granted Or made by you to or with the Client or any
Co-surety;
(b) any Variation in the Agreement or in any other agreement between the
Client and you (whether or not our liability to you may be increased
thereby) or by any defect therein or in its execution;
(c) any defect in any other guarantee or indemnity or other security held
by you in respect of the Obligations to you or in the execution
thereof;
(d) any failure by you to take perfect or hold unencumbered any security
from the Client or any other person or to take any guarantee or
indemnity from a Co-surety or any defect in any such guarantee or
indemnity or in its execution; or
(e) any change in the constitution of the Client
and we shall be liable hereunder in every respect as principal debtors.
2
6 Where two or more persons are named in section 2 of the Schedule our
liability hereunder shall be joint and several and the liability of each
one of us hereunder shall not be affected by any Indulgence granted or
made by you to or with any other of us nor by:
(a) any defect in or the absence of the execution of this Deed by the
other of us; or
(b) any notice of termination hereof by any other of us;
and you may at your discretion (but shall not be obliged to) treat any
notice by anyone of us as notice by all of us.
7 We shall be liable to pay you interest calculated from day to day and
compounded and payable monthly at the rate per annum specified in section
4 of the Schedule on all sums demanded by you from us hereunder from the
date of your demand to the date when payment is received by you both
before and after any judgement in so far as such interest is not due
pursuant to the provisions of the Agreement.
8 Except as otherwise provided herein, we warrant to you that we .have not
taken, and we agree not to take, exercise or receive the benefit of any
security or other right or benefit (whether by set off, counterclaim,
subrogation, indemnity, withdrawal of monies payable to us 'by the Client,
proof in liquidation or bankruptcy or otherwise) from or against the
Client or any other person until all liabilities that we may have to you
under this Guarantee and Indemnity shall have been discharged to your
satisfaction. We further undertake that if any such security right or
benefit is taken the same and all monies and proceeds of the same at any
time received or held in respect thereof shall be held by us on trust for
you for application in or towards discharge of our liabilities to you
under this Guarantee and Indemnity, and that such proceeds or monies shall
be paid by us to you forthwith upon demand. For the avoidance of any
doubt, this clause shall not prevent us from purchasing goods from or
selling goods to the Client provided such purchase or sale takes place in
the ordinary course of business of us and the Client and against such
terms and conditions as a purchase from or sale to a third party would
take place.
9 Any monies which you receive by virtue of or in connection with this
Guarantee and Indemnity may be placed by you to the credit of a suspense
account with a view to your preserving your right to prove for the whole
of your claim against the Client in the event of its winding up.
10 For the purpose of determining our liability under this Guarantee and
Indemnity (which shall be additional to and not in substitution for any
other security taker: or to be taken by you in respect of the Obligations
to you) we shall be bound by any acknowledgement or admission by the
Client. For the purpose of determining the amount of any Losses we shall
accept and be bound by a certificate signed by your company secretary
(save for the manifest error or error of law). In arriving at the amount
payable to you by the Client you shall be entitled to take into account
all liabilities (whether actual or contingent) and to make a reasonable
estimate of any liability the amount of which cannot be immediately
ascertained.
11 Any discharge given by you to us or any of us in respect of our
obligations under the Guarantee and Indemnity shall be deemed to have been
void and of no effect if any security taken from or payment made by the
Client or any other person which had been taken into account by you in
giving the discharge is subsequently avoided or reduced by or in pursuance
of any provision of law. The paper on which this Deed is written shall
remain your property notwithstanding any such discharge.
3
12 This Guarantee and Indemnity shall remain in full force and effect until
all Obligations guaranteed, Losses indemnified and any other liabilities
that we may have to you, whether actual, contingent or otherwise, shall
have been discharged to your satisfaction.
13 Any notice or demand on any of us shall be validly given or made if
delivered to or sent by post to the address stated in section 2 of the
Schedule or the address last known to you or our registered office and if
sent by post shall be deemed to be received within seventy-two hours of
posting.
14 This Guarantee and Indemnity shall be construed and take effect according
to English law and we accept the non-exclusive jurisdiction of the English
Courts. If any provision hereof shall be held invalid or unenforceable no
other provisions hereof shall be affected and all such other provisions
shall remain in full force and effect.
IN WITNESS WHEREOF the above named Guarantors and Indemnifiers have executed
these presents as a deed on the day of 2003.
SIGNED AND DELIVERED AS A DEED
By: Comstor Limited /s/ Xxxx Xxxx Xxxxx
--------------------------------
acting by Xxxx Xxxx Xxxxx Signature of Director
a Director and
Xxxxxxxxx Xxxxxxx
the Company Assistant Secretary /s/ Xxxxxxxxx Xxxxxxx
--------------------------------
Signature of Company Secretary
SIGNED AND DELIVERED AS A DEED
by ................................. ................................
acting by .......................... Signature of Director
a Director and .....................
a Director/the Company Secretary ................................
a Director/the Company Secretary
1. Insert complete corporate name
2. Type or print name of Director
3. Type or print name of Director or Company Secretary
4. Delete inapplicable title
5. Signatures of Directors or Company Secretary (as applicable)
4
THE SCHEDULE
1. Client
Westcon Group European Operations Limited (Name)
Xxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx
Xxxxxxxxxxx
Xxxxxxxxxxxxxxx
XX0 0XX (Address)
ENGLAND (Country of registration)
04411285 (Number)
2. Guarantors and Indemnifiers:
Corporate:
Comstor Limited (Name)
Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxx
Xxxxxxxxxxx
Xxxxxxxxxx,XX00XX (Address)
ENGLAND (Country of registration)
2898318 (Number)
3. Agreements:
- Deed of Charge dated 10 October 2003
- Deed of Novation and Financial Undertakings between (1) Comstor
Limited (2) Westcon Group European Operations Limited and (3) GE
Commercial Distribution Finance Europe Limited dated 10 October 2003
("Deed of Novation").
- Conditional Sale Agreement 23 December 1997 (as amended from time to
time) as novated by the Deed of Novation between Blocked Bank Account
Agreement dated 10 October 2003
4. Rate of Interest: 5% over the base rate for the time being in force of
National Westminster Bank p.l.c.
5
Deed of Guarantee and Indemnity
Westcon (UK) Limited
DEED OF GUARANTEE AND INDEMNITY
(Corporate)
To: GE Commercial Distribution Finance Europe Limited
(a company registered in England
with the number 2549477)
0 Xxxxxxx Xxxx
Xxxxxxxxx
Xxxxxx XX0 0XX
1 In this Deed except where the context otherwise requires:
(a) the following expressions shall have the meanings assigned to them
below:
"Agreement"
the agreement or agreements specified in section 3 of the Schedule;
"Client"
the person whose name and address appears in section 1 of the
Schedule;
"Co-surety"
any person (other than the persons named in section 2 of the
Schedule) who has given or proposes to give a guarantee or indemnity
in respect of any Obligations;
"Indulgence"
the grant of any time or indulgence or the conclusion of any
agreement not to xxx or of any compromise or composition or the
release of any charge lien or other security or any part thereof;
"Losses"
losses costs damages claims interest and expenses;
"Obligations"
all present and future monetary and other liabilities and obligations
now or at any time owed or incurred by the client to you or in your
favour whether (i) actual or contingent (ii) liquidated or
unliquidated (iii) arising in or by contract tort restitution
assignment or breach of statutory duty (iv) arising under the
Agreement;
"Schedule"
the schedule annexed to and forming part of this Deed;
1
"Variation"
any variation, amendment, supplement or other modification whatsoever
of or to the Agreement whether written (by correspondence or other
communication), oral or otherwise;
(b) reference to "you" and "your" shall include reference to your
successors and assigns;
(c) the singular shall include the plural and vice versa; and
(d) the meaning of general words introduced by the word "other" shall not
be limited by reference to any preceding word or enumeration
indicating a particular class of acts matters persons or things.
2 We the Guarantors and Indemnifiers whose name(s) appear in section 2 of
the Schedule hereby:
(a) unconditionally guarantee the due performance of all of the
Obligations and
(b) undertake upon your demand in writing to pay to you all amounts
payable or which may at any time hereafter become payable to you by
the Client whether arising under the Agreement or otherwise so that
you may enforce against us our obligations under this provision at
any time without prior demand on the Client.
3 Without prejudice to the provisions of clause 2 hereof we hereby agree to
indemnify you and hold you harmless against all Losses you may suffer or
incur by reason of any failure of the Client to comply with any term of
the Agreement and against all Losses arising out of or in connection with
the recovery by you of any monies due to you under this Guarantee and
Indemnity.
4 The guarantee given herein shall be a continuing guarantee and shall apply
to the ultimate amount payable by the Client and shall not be discharged
by an intermediate payment or satisfaction by the Client or any other
person.
5 Our liability under this Guarantee and Indemnity shall not be affected by:
(a) any Indulgence granted Or made by you to or with the Client or any
Co-surety;
(b) any Variation in the Agreement or in any other agreement between the
Client and you (whether or not our liability to you may be increased
thereby) or by any defect therein or in its execution;
(c) any defect in any other guarantee or indemnity or other security held
by you in respect of the Obligations to you or in the execution
thereof;
(d) any failure by you to take perfect or hold unencumbered any security
from the Client or any other person or to take any guarantee or
indemnity from a Co-surety or any defect in any such guarantee or
indemnity or in its execution; or
(e) any change in the constitution of the Client
and we shall be liable hereunder in every respect as principal debtors.
2
6 Where two or more persons are named in section 2 of the Schedule our
liability hereunder shall be joint and several and the liability of each
one of us hereunder shall not be affected by any Indulgence granted or
made by you to or with any other of us nor by:
(a) any defect in or the absence of the execution of this Deed by the
other of us; or
(b) any notice of termination hereof by any other of us;
and you may at your discretion (but shall not be obliged to) treat any
notice by anyone of us as notice by all of us.
7 We shall be liable to pay you interest calculated from day to day and
compounded and payable monthly at the rate per annum specified in section
4 of the Schedule on all sums demanded by you from us hereunder from the
date of your demand to the date when payment is received by you both
before and after any judgement in so far as such interest is not due
pursuant to the provisions of the Agreement.
8 Except as otherwise provided herein, we warrant to you that we .have not
taken, and we agree not to take, exercise or receive the benefit of any
security or other right or benefit (whether by set off, counterclaim,
subrogation, indemnity, withdrawal of monies payable to us 'by the Client,
proof in liquidation or bankruptcy or otherwise) from or against the
Client or any other person until all liabilities that we may have to you
under this Guarantee and Indemnity shall have been discharged to your
satisfaction. We further undertake that if any such security right or
benefit is taken the same and all monies and proceeds of the same at any
time received or held in respect thereof shall be held by us on trust for
you for application in or towards discharge of our liabilities to you
under this Guarantee and Indemnity, and that such proceeds or monies shall
be paid by us to you forthwith upon demand. For the avoidance of any
doubt, this clause shall not prevent us from purchasing goods from or
selling goods to the Client provided such purchase or sale takes place in
the ordinary course of business of us and the Client and against such
terms and conditions as a purchase from or sale to a third party would
take place.
9 Any monies which you receive by virtue of or in connection with this
Guarantee and Indemnity may be placed by you to the credit of a suspense
account with a view to your preserving your right to prove for the whole
of your claim against the Client in the event of its winding up.
10 For the purpose of determining our liability under this Guarantee and
Indemnity (which shall be additional to and not in substitution for any
other security taker: or to be taken by you in respect of the Obligations
to you) we shall be bound by any acknowledgement or admission by the
Client. For the purpose of determining the amount of any Losses we shall
accept and be bound by a certificate signed by your company secretary
(save for the manifest error or error of law). In arriving at the amount
payable to you by the Client you shall be entitled to take into account
all liabilities (whether actual or contingent) and to make a reasonable
estimate of any liability the amount of which cannot be immediately
ascertained.
11 Any discharge given by you to us or any of us in respect of our
obligations under the Guarantee and Indemnity shall be deemed to have been
void and of no effect if any security taken from or payment made by the
Client or any other person which had been taken into account by you in
giving the discharge is subsequently avoided or reduced by or in pursuance
of any provision of law. The paper on which this Deed is written shall
remain your property notwithstanding any such discharge.
3
12 This Guarantee and Indemnity shall remain in full force and effect until
all Obligations guaranteed, Losses indemnified and any other liabilities
that we may have to you, whether actual, contingent or otherwise, shall
have been discharged to your satisfaction.
13 Any notice or demand on any of us shall be validly given or made if
delivered to or sent by post to the address stated in section 2 of the
Schedule or the address last known to you or our registered office and if
sent by post shall be deemed to be received within seventy-two hours of
posting.
14 This Guarantee and Indemnity shall be construed and take effect according
to English law and we accept the non-exclusive jurisdiction of the English
Courts. If any provision hereof shall be held invalid or unenforceable no
other provisions hereof shall be affected and all such other provisions
shall remain in full force and effect.
IN WITNESS WHEREOF the above named Guarantors and Indemnifiers have executed
these presents as a deed on the 10 day of October 2003.
SIGNED AND DELIVERED AS A DEED
By: Westcon (UK) Limited /s/ Xxxx Xxxx Xxxxx
--------------------------------
acting by Xxxx Xxxx Xxxxx Signature of Director
a Director and
Xxxxxxxxx Xxxxxxx
the Company Assistant Secretary /s/ Xxxxxxxxx Xxxxxxx
--------------------------------
Signature of Company Secretary
SIGNED AND DELIVERED AS A DEED
by ................................. ................................
acting by........................... Signature of Director
a Director and .....................
a Director/the Company Secretary ................................
a Director/the Company Secretary
1. Insert complete corporate name
2. Type or print name of Director
3. Type or print name of Director or Company Secretary
4. Delete inapplicable title
5. Signatures of Directors or Company Secretary (as applicable)
- Please attach a certified extract of the minutes of each Board Meeting
at which each company agreed to execute the Guarantee and Indemnity,
[draft to follow]
- Please also attach a copy of the latest annual report and accounts of
each company signing this Deed.
4
THE SCHEDULE
1. Client
Westcon Group European Operations Limited (Name)
Xxxxxxxxx Xxxxx
Xxxxxxxxxx Xxxx
Xxxxxxxxxxx
Xxxxxxxxxxxxxxx
XX0 0XX (Address)
ENGLAND (Country of registration)
04411285 (Number)
2. Guarantors and Indemnifiers:
Corporate:
Westcon (UK) Limited (Name)
000 Xxxxxxxxx Xxxxxx
Xxxxxx Xxxxxxx Xxxxxx
Xxxxxx
Xxxxxxxxx XX0 0XX (Address)
ENGLAND (Country of registration)
3668409 (Number)
3. Agreements:
- Deed of Charge dated 10 October 2003
- Deed of Novation and Financial Undertakings dated 10 October
2003 between (1) Westcon Group European Operations Limited (2)
Comstor Limited and (3) GE Commercial Distribution Finance
Limited ( the "Deed of Novation")
- Conditional Sale Agreement 23 December 1997 (as amended from time to
time) as novated by the Deed of Novation
- Blocked Bank Account Agreement dated 10 October 2003
4. Rate of Interest: 5% over the base rate for the time being in force of
National Westminster Bank p.l.c.
5
Deed of Guarantee and Indemnity
Westcon Group European Operations Limited
DEED OF GUARANTEE AND INDEMNITY
(Corporate)
To: GE Commercial Distribution Finance Europe Limited
(a company registered in England
with the number 2549477)
0 Xxxxxxx Xxxx
Xxxxxxxxx
Xxxxxx XX0 0XX
1 In this Deed except where the context otherwise requires:
(a) the following expressions shall have the meanings assigned to them
below:
"Agreement"
the agreement or agreements specified in section 3 of the Schedule;
"Client"
the person whose name and address appears in section 1 of the
Schedule;
"Co-surety"
any person (other than the persons named in section 2 of the
Schedule) who has given or proposes to give a guarantee or indemnity
in respect of any Obligations;
"Indulgence"
the grant of any time or indulgence or the conclusion of any
agreement not to xxx or of any compromise or composition or the
release of any charge lien or other security or any part thereof;
"Losses"
losses costs damages claims interest and expenses;
"Obligations"
all present and future monetary and other liabilities and obligations
now or at any time owed or incurred by the Client to you or in your
favour whether (i) actual or contingent (ii) liquidated or
unliquidated (iii) arising in or by contract tort restitution
assignment or breach of statutory duty (iv) arising under the
Agreement;
"Schedule"
the schedule annexed to and forming part of this Deed;
"Variation"
any variation, amendment, supplement or other modification whatsoever
of or to the Agreement whether written (by correspondence or other
communication), oral or otherwise;
(b) reference to "you" and "your" shall include reference to your
successors and assigns;
(c) the singular shall include the plural and vice versa; and
1
(d) the meaning of general words introduced by the word "other" shall not
be limited by reference to any preceding word or enumeration
indicating a particular class of acts matters persons or things.
2 We the Guarantors and Indemnifiers whose name(s) appear in section 2 of
the Schedule hereby:
(a) unconditionally guarantee the due performance of all of the
Obligations and
(b) undertake upon your demand in writing to pay to you all amounts
payable or which may at any time hereafter become payable to you by
the Client whether arising under the Agreement or otherwise so that
you may enforce against us our obligations under this provision at
any time without prior demand on the Client.
3 Without prejudice to the provisions of clause 2 hereof we hereby agree
to indemnify you and hold you harmless against all Losses you may
suffer or incur by reason of any failure of the Client to comply with
any term of the Agreement and against all Losses arising out of or in
connection with the recovery by you of any monies due to you under
this Guarantee and Indemnity. We will however not hold you harmless or
indemnify you against Losses you may suffer solely due to a breach by
the Client of its obligations under Clause 2(i), 2(iii), 2(iv) and
2(v) of the Supplier Agreement dated December 23, 1997 between you and
the Client.
4 The guarantee given herein shall be a continuing guarantee and shall
apply to the ultimate amount payable by the Client and shall not be
discharged by an intermediate payment or satisfaction by the Client or
any other person.
5 Our liability under this Guarantee and Indemnity shall not be affected by:
(a) any Indulgence granted Or made by you to or with the Client or any
Co-surety;
(b) any Variation in the Agreement or in any other agreement between the
Client and you (whether or not our liability to you may be increased
thereby) or by any defect therein or in its execution;
(c) any defect in any other guarantee or indemnity or other security held
by you in respect of the Obligations to you or in the execution
thereof;
(d) any failure by you to take perfect or hold unencumbered any security
from the Client or any other person or to take any guarantee or
indemnity from a Co-surety or any defect in any such guarantee or
indemnity or in its execution; or
(e) any change in the constitution of the Client
and we shall be liable hereunder in every respect as principal debtors.
6 Where two or more persons are named in section 2 of the Schedule our
liability hereunder shall be joint and several and the liability of
each one of us hereunder shall not be affected by any Indulgence
granted or made by you to or with any other of us nor by:
(a) any defect in or the absence of the execution of this Deed by the
other of us; or
(b) any notice of termination hereof by any other of us;
and you may at your discretion (but shall not be obliged to) treat any
notice by anyone of
2
us as notice by all of us.
7 We shall be liable to pay you interest calculated from day to day and
compounded and payable monthly at the rate per annum specified in section
4 of the Schedule on all sums demanded by you from us hereunder from the
date of your demand to the date when payment is received by you both
before and after any judgement in so far as such interest is not due
pursuant to the provisions of the Agreement.
8 Except as otherwise provided herein, we warrant to you that we .have not
taken, and we agree not to take, exercise or receive the benefit of any
security or other right or benefit (whether by set off, counterclaim,
subrogation, indemnity, withdrawal of monies payable to us 'by the Client,
proof in liquidation or bankruptcy or otherwise) from or against the
Client or any other person until all liabilities that we may have to you
under this Guarantee and Indemnity shall have been discharged to your
satisfaction. We further undertake that if any such security right or
benefit is taken the same and all monies and proceeds of the same at any
time received or held in respect thereof shall be held by us on trust for
you for application in or towards discharge of our liabilities to you
under this Guarantee and Indemnity, and that such proceeds or monies shall
be paid by us to you forthwith upon demand. For the avoidance of any
doubt, this clause shall not prevent us from purchasing goods from or
selling goods to the Client provided such purchase or sale takes place in
the ordinary course of business of us and the Client and against such
terms and conditions as a purchase from or sale to a third party would
take place.
9 Any monies which you receive by virtue of or in connection with this
Guarantee and Indemnity may be placed by you to the credit of a suspense
account with a view to your preserving your right to prove for the whole
of your claim against the Client in the event of its winding up.
10 For the purpose of determining our liability under this Guarantee and
Indemnity (which shall be additional to and not in substitution for any
other security taker: or to be taken by you in respect of the Obligations
to you) we shall be bound by any acknowledgement or admission by the
Client. For the purpose of determining the amount of any Losses we shall
accept and be bound by a certificate signed by your company secretary
(save for the manifest error or error of law). In arriving at the amount
payable to you by the Client you shall be entitled to take into account
all liabilities (whether actual or contingent) and to make a reasonable
estimate of any liability the amount of which cannot be immediately
ascertained.
11 Any discharge given by you to us or any of us in respect of our
obligations under the Guarantee and Indemnity shall be deemed to have been
void and of no effect if any security taken from or payment made by the
Client or any other person which had been taken into account by you in
giving the discharge is subsequently avoided or reduced by or in pursuance
of any provision of law. The paper on which this Deed is written shall
remain your property notwithstanding any such discharge.
12 This Guarantee and Indemnity shall remain in full force and effect until
all Obligations guaranteed, Losses indemnified and any other liabilities
that we may have to you, whether actual, contingent or otherwise, shall
have been discharged to your satisfaction.
13 Any notice or demand on any of us shall be validly given or made if
delivered to or sent by post to the address stated in section 2 of the
Schedule or the address last known to you or our registered office and if
sent by post shall be deemed to be received within seventy-two hours of
posting.
3
14 This Guarantee and Indemnity shall be construed and take effect according
to English law and we accept the non-exclusive jurisdiction of the English
Courts. If any provision hereof shall be held invalid or unenforceable no
other provisions hereof shall be affected and all such other provisions
shall remain in full force and effect.
IN WITNESS WHEREOF the above named Guarantors and Indemnifiers have executed
these presents as a deed on the 10 day of October 2003.
SIGNED AND DELIVERED AS A DEED
By: Westcon Group European Operations Limited
/s/ Xxxx Xxxx Xxxxx
--------------------------------
acting by Xxxx Xxxx Xxxxx Signature of Director
a Director and
Xxxxxxxxx Xxxxxxx
the Company Assistant Secretary /s/ Xxxxxxxxx Xxxxxxx
--------------------------------
Signature of Company Secretary
SIGNED AND DELIVERED AS A DEED
by ................................. ................................
acting by .......................... Signature of Director
a Director and .....................
a Director/the Company Secretary ................................
a Director/the Company Secretary
4
THE SCHEDULE
1. Client
Comstor Limited (Name)
Xxxxxxxxx Xxxxx
Xxxxxxxxx Xxxx
Xxxxxxxxxxx
Xxxxxxxxxx,XX00XX (address)
ENGLAND (Country of registration)
2898318 (Number)
2. Guarantors and Indemnifiers:
Corporate:
Westcon Group European Operations Limited (name)
Chandlers House
Xxxxxxxxx Road
Cirencester
Gloucester,GL71YT (address)
ENGLAND (Country of registration)
04411285 (Number)
3. Agreement(s):
- All Assets Debenture 15 June 1998
- Supplier Agreement 23 December 1997
- Debt Subordination Agreement 25 January 1999 and amended 8 March 1999
- Guarantee by Comstor Ltd for the obligations of Comstor GmbH 30
November 1999
- Master Facilities Agreement 13 October 2000
- Overdraft Facility Agreement 13 October 2000
- Indemnity 13 July 2000
- Blocked Bank Account Agreement 13 July 2000
- Financial Undertaking Agreement May 2000
- All Assets Debenture 30 January 2002 (as amended by a Supplemental
Deed dated 10 October 2003)
4. Rate of Interest: 5% over the base rate for the time being in force of
National Westminster Bank p.l.c.
5
