THIS GUARANTEE AND INDEMNITY is made BY DEED the
BY EACH OF:
THE COMPANIES whose name and registered office is set out in the First Schedule
(hereinafter together referred to as the `Guarantors')
IN FAVOUR OF
SX3 LIMITED (the `Creditor')
WHEREAS the Guarantors have requested and the Creditor has agreed to grant
and/or continue accommodation to Unicomp Holdings (UK) Limited upon the
Guarantors executing a Guarantee in favour of the Creditor on the terms and
conditions hereinafter appearing.
NOW THIS DEED WITNESSETH as follows:
1 INTERPRETATION
1.1 Unless the context otherwise requires or unless otherwise defined in this
Guarantee, words and expressions shall have the same meanings that are ascribed
to them in the Facility Documents.
1.2 In this Guarantee:
`Loan Agreement' means the Loan Agreement of even date and made between (1)
Sx3 Limited and (2) Unicomp Holdings (UK) Limited and any variation
amendment or extension thereof or supplement thereto from time to time in
force.
`Interest Rate' means the rates of interest referred to in the Loan
Agreement.
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`Principal Debtor' means Unicomp Holdings (UK) Limited.
1.3 In this Guarantee:
(a) references to this Guarantee are to include the indemnity in clause
3.3;
(b) references to Clauses are to be construed as references to the clauses
of this Guarantee and references to this Guarantee include the
Schedule;
(c) references to this Guarantee and to any provisions of this Guarantee
or to any other document or agreement shall be construed as references
to this Guarantee or that document or agreement in force for the time
being and as amended, varied, supplemented, substituted or novated
from time to time;
(d) words importing the singular are to include the plural and vice versa;
(e) references to a person are to be construed to include references to a
corporation, firm, company, partnership, joint venture, unincorporated
body of persons, individual or any state or any agency of a state,
whether or not a separate legal entity;
(f) references to any person are to be construed to include that person's
assigns or transferees or successors in title, whether direct or
indirect;
(g) references to any statutory provision means that statutory provision
as amended, supplemented, re-enacted or replaced from time to time
(whether before or after the date of this Guarantee) and are to
include any orders, regulations, instruments or other subordinate
legislation made under the relevant statutory provision;
(h) the words `other' and `otherwise' are not to be construed ejusdem
generis with any foregoing words where a wider construction is
possible;
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(i) references to liability are to include any liability whether actual,
contingent, present or future;
(j) references to this Guarantee are references to the guarantee and
indemnity given by each of the Guarantors under this Guarantee; and
(k) clause headings are for ease of reference only and are not to affect
the interpretation of this Guarantee.
2 REPRESENTATIONS AND WARRANTIES BY EACH OF THE GUARANTORS
2.1 Each of the Guarantors hereby represents and warrants to the creditor that:
(a) it is duly incorporated and is a validly existing company under the
laws of its place of incorporation, has the capacity to xxx or be sued
in its own name and has power to carry on its business as now being
conducted and to own its property and other assets;
(b) it has full power and authority to execute, deliver and perform its
obligations under this Guarantee and no limitation on its powers will
be exceeded as a result of its entering into this Guarantee;
(c) the execution, delivery and performance by it of this Guarantee and
the performance of its obligations under this Guarantee have been duly
authorised by all necessary corporate action and do not contravene or
conflict with:
(i) its memorandum and articles of association or other equivalent
constitutional documents;
(ii) any existing law, statute, rule or regulation or any judgment,
decree or permit to which it is subject; and
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(iii) the terms of any agreement or other document to which it is a
party or which is binding upon it or any of its assets; and
(d) this Guarantee is its legal, valid and binding obligation and is
enforceable against it in accordance with its terms.
2.2 Each of the Guarantors acknowledges that the Creditor has accepted this
Guarantee in full reliance on the representations and warranties set out in this
Clause 2.
3 GUARANTEE
3.1 Each of the Guarantors irrevocably and unconditionally undertakes the
obligations and liabilities set out in clause 3.2 and clause 3.3.
3.2 Each of the Guarantors irrevocably and unconditionally guarantees:
(a) to pay to the Creditor on demand, and in the currency in which the
same falls due for payment, all monies and liabilities which are now
or at any time hereafter shall have been advanced to, become due,
owing or incurred by each or any of the Principal Debtor to or in
favour of the Creditor under or in connection with any of the Loan
Agreement; and
(b) the due and punctual observance, performance and discharge by the
Principal Debtor of all of its obligations and liabilities under the
Loan Agreement;
3.3 Each of the Guarantors as principal obligor and as a separate and
independent obligation and liability from its obligations and liabilities under
clause 3.2, irrevocably and unconditionally agrees to indemnify the Creditor in
full on demand against any of losses, costs, and expenses suffered or incurred
by the Creditor arising from or in connection with any of:
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(a) the Creditor's making available any of the facilities under the Loan
Agreement;
(b) the Creditor's entering into the Loan Agreement;
(c) any of the provisions of any of the Loan Agreement being or becoming
void, voidable, invalid or unenforceable; or
(d) the failure of the Principal Debtor fully and promptly to perform and
discharge any of its obligations and liabilities under the Loan
Agreement.
3.4 Each of the Guarantors hereby agrees to indemnify and keep indemnified the
Creditor (to the extent not indemnified under the Loan Agreement or as otherwise
indemnified under this Guarantee) on demand by the Creditor against all losses,
actions, claims, costs, charges, expenses and liabilities suffered or incurred
by the Creditor in relation to this Guarantee (including the costs, charges and
expenses incurred in the enforcement of any of the provisions of this Guarantee
or occasioned by any breach by any of the Guarantors of any of its obligations
to the Creditor under this Guarantee).
4 CREDITOR PROTECTIONS
4.1 Each of the Guarantors acknowledges and agrees that this Guarantee is and
at all times shall be a continuing security and shall extend to cover the
ultimate balance due at any time from each and any of the Principal Debtor to
the Creditor under or in respect of the Loan Agreement and any of the
transactions contemplated thereby.
4.2 Each of the Guarantors acknowledges and agrees that none of its liabilities
under this Guarantee shall be reduced, discharged or otherwise adversely
affected by:
(a) any variation, extension, discharge, compromise, dealing with,
exchange or renewal of any right or remedy which the Creditor may now
or hereafter have from or against the Principal Debtor and any other
person
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in respect of any of the obligations and liabilities of the Principal
Debtor and any other person under and in respect of any of the Loan
Agreement;
(b) any act or omission by the Creditor or any other person in taking up,
perfecting or enforcing any security or guarantee from or against the
Principal Debtor and any other person;
(c) any termination, amendment, variation, novation or supplement of or to
any of the Loan Agreement;
(d) any grant of time, indulgence, waiver or concession to the Principal
Debtor and any other person;
(e) any of the administration, insolvency, bankruptcy, liquidation,
winding-up, incapacity, limitation, disability, the discharge by
operation of law and any change in the constitution, name and style of
the Principal Debtor and any other person;
(f) any invalidity, illegality, unenforceability, irregularity or
frustration of any actual or purported obligations of the Principal
Debtor and any other person;
(g) any claim or enforcement of payment from the Principal Debtor and any
other person; or
(h) any act or omission which would not have discharged or affected the
liability of any of the Guarantors had it been a principal debtor
instead of guarantor or indemnitor or by anything done or omitted by
any person which but for this provision might operate to exonerate or
discharge or otherwise reduce or extinguish any of the Guarantors'
liability under this Guarantee.
4.3 PRIMARY OBLIGATION
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(a) The obligations and liabilities expressed to be undertaken by each of
the Guarantors under this Guarantee are those of primary obligor and
not merely as a surety.
(b) The Creditor shall not be obliged before taking steps to enforce any
of its rights and remedies under this Guarantee:
(i) to take action or obtain judgment in any court against the
Principal Debtor and any other person;
(ii) to make or file any claim in a bankruptcy, liquidation
administration or insolvency of the Principal Debtor and any
other person; or
(iii) to make demand, enforce or seek to enforce any claim, right or
remedy against the Principal Debtor and any other person.
4.4 NO SECURITY
(a) Each of the Guarantors warrants to the Creditor that it has not taken
or received, and agrees not to take, exercise or receive the benefit
of any security or other right or benefit (whether by set-off,
counterclaim, subrogation, indemnity, proof in liquidation or
otherwise and whether from contribution or otherwise, all together
`Rights') from or against the Principal Debtor and any other person in
respect of any liability of or payment by any of the Guarantors under
this Guarantee or otherwise in connection with this Guarantee.
(b) If any of such Rights is taken, exercised or received by any
Guarantor, each Guarantor declares that its Rights and all monies at
any time received or held by it in respect of such Rights shall be
held by it on trust for the Creditor for application in or towards the
discharge of the liabilities of that Guarantor to the Creditor under
this Guarantee.
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(c) Each of the Guarantors agrees that all other Rights and all monies
from time to time held on trust by it for the Creditor under or
pursuant to Clause 4.4(b) shall be transferred, assigned or, as the
case may be, paid to the Creditor, promptly following the creditor's
demand.
4.5 This Guarantee shall be in addition to and shall not affect or be affected
by or merge with any other judgment, security, right or remedy obtained or held
by the Creditor from time to time for the discharge and performance of any of
the liabilities and obligations of each of the Principal Debtors to the
Creditor.
5 INTEREST
(a) Each of the Guarantors agrees to pay interest to the Creditor at the
Interest Rate on all sums demanded under this Guarantee from the date
of the Creditor's demand under this Guarantee or, if earlier, the date
on which the relevant damages, losses, costs or expenses arose in
respect of which such demand has been made, in each case until, but
excluding the date of actual payment.
(b) Each of the Guarantors agrees to pay interest to the Creditor at the
Interest Rate after as well as before judgment.
All such interest shall accrue on a day-to-day basis and be calculated by the
Creditor on the basis of a 365 days' year and interest shall be compounded in
accordance with the usual practice of the Creditor.
(c) The Creditor shall not be entitled to recover any amount in respect of
interest both under this Guarantee and any of the Loan Agreement in
respect of any failure to pay any sum under any of the Loan Agreement.
6 SUSPENSE ACCOUNT
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(a) The Creditor may place to the credit of a suspense account any monies
received under or in connection with this Guarantee in order to
preserve the rights of the Creditor to prove for the full amount of
all of its claims against any and each of the Principal Debtors and
any other person.
(b) The Creditor may, at any time, apply any of the monies referred to in
clause 6(a) in or towards satisfaction of any of the monies,
obligations and liabilities and the subject of this Guarantee as the
Creditor, in its absolute discretion, may from time to time
conclusively determine.
7 APPROPRIATION
None of the Guarantors shall and none of the guarantors may direct the
application by the Creditor of any sums received by the Creditor from any of the
Guarantors under, or pursuant to, any of the terms of this Guarantee.
8 DISCHARGE TO BE CONDITIONAL
Any release, discharge or settlement between any of the Guarantors and the
Creditor in relation to this Guarantee shall be conditional upon no right,
security, disposition or payment to the Creditor by any of the Guarantors and
the Principal Debtor and any other person being void, set aside or ordered to be
refunded pursuant to any enactment or law relating to breach of duty by any
person, bankruptcy, liquidation, administration, the protection from creditors
generally or insolvency or for any other reason.
If any such right, security, disposition or payment is void or at any time so
set aside or ordered to be refunded, the Creditor shall be entitled subsequently
to enforce this Guarantee against any of the Guarantors as if such release,
discharge or settlement had not occurred and any such security, disposition or
payment had not been made.
9 PAYMENTS AND TAXES
(a) All sums payable by each and any of the Guarantors under this
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Guarantee shall be paid to the Creditor in full without:
(i) any set-off, condition or counterclaim whatsoever; and
(ii) free and clear of any deduction or withholding whatsoever save
only as may be required by law or regulation which in either
case is binding on it.
(b) If any deduction or withholding is required by any law, practice or
regulation (whether or not such practice or regulation has the force
of law) in respect of any payment due from any of the Guarantors under
this Guarantee or is in any event made, the relative sum payable by
any Guarantor shall be increased so that, after making the minimum
deduction or withholding so required, that Guarantor shall pay to the
Creditor and the Creditor shall receive and be entitled to retain on
the due date for payment a net sum at least equal to the sum which it
would have received had no such deduction or withholding been required
to be, or had in fact been, made.
(c) Each of the Guarantors shall promptly deliver or procure the delivery
to the Creditor of all receipts issued to it evidencing each deduction
and withholding which it has made.
and, in either case, the increased payment would not have become payable if
the Creditor had been a Qualifying Bank.
10 DEMANDS AND NOTIFICATION BINDING
Any demand, notification or certificate given by the Creditor specifying amounts
due and payable under or in connection with any of the provisions of this
Guarantee shall, in the absence of manifest error, be conclusive and binding on
each of the Guarantors.
11 COSTS
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Each of the Guarantors shall, on demand and on a full indemnity basis, pay to
the Creditor the amount of all costs and expenses (including legal and
out-of-pocket expenses and any Value Added Tax on such costs and expenses) which
the Creditor incurs in connection with:
(a) the preparation, negotiation, execution and delivery of this
Guarantee;
(b) any actual or proposed amendment, variation, supplement, waiver
or consent under or in connection with this Guarantee;
(c) any discharge or release of this Guarantee; and
(d) the preservation or exercise (or attempted preservation or
exercise), and the enforcement (or attempted enforcement) of any
rights under or in connection with, this Guarantee;
12 COMMUNICATIONS
Any demand or notice under this Guarantee shall be in writing signed by an
officer or agent of the Creditor and (without prejudice to any other effective
means of serving it) may be served on the relative Guarantor personally or by
post and either by delivering it to any officer of that Guarantor at any place
or by despatching it addressed to that Guarantor at the Guarantor's registered
or principal office for the time being or a place of business of that Guarantor
last known to the Creditor. Any such demand or notice delivered personally shall
be deemed to have been received immediately upon delivery. Any such demand or
notice sent by post shall be deemed to have been received at the opening of
business in the intended place of receipt on the business day following the day
on which it was posted, even if returned undelivered.
13 TRANSFERS
13.1 This Guarantee is freely assignable or transferable by the Creditor.
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13.2 None of the Guarantors may assign any of its rights and may not transfer
any of its obligations under this Guarantee or enter into any transaction which
would result in any of those rights or obligations passing to another person.
13.3 The Creditor may disclose to any person related to the Creditor and/or any
person to whom it is proposing to transfer or assign or has transferred or
assigned any of its rights under this Guarantee any information about any of the
Guarantors and any person connected or associated with it. Each of the
Guarantors represents and warrants that it has (and, subject to any contrary
requirement of law, will maintain) any necessary authority by or on behalf of
any such person to agree to the provisions of this Clause.
14 CURRENCY INDEMNITY
If, under any applicable law or regulation or pursuant to a judgment or order
being made or registered against any Guarantor or the liquidation of that
Guarantor or without limitation for any other reason, any payment under or in
connection with this Guarantee is made or falls to be satisfied in a currency
(the `payment currency') other than the currency in which such payment is
expressed to be due under or in connection with this Guarantee (the `contractual
currency') then, to the extent that the amount of such payment actually received
by the Creditor, when converted into the contractual currency at the rate of
exchange, falls short of the amount due under or in connection with this
Guarantee, that Guarantor, as a separate and independent obligation, shall
indemnify and hold harmless the Creditor against the amount of such shortfall.
For the purposes of this Clause, `rate of exchange' means the rate at which the
Creditor is able on or about the date of such payment to purchase, in accordance
with its normal practice, the contractual currency with the payment currency and
shall take into account (and that Guarantor shall be liable for) any premium and
other costs of exchange including any taxes or duties incurred by reason of any
such exchange.
15 MISCELLANEOUS
15.1 No delay or omission on the part of the Creditor in exercising any right or
remedy
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under this Guarantee shall impair that right or remedy or operate as or be taken
to be a waiver of it; nor shall any single partial or defective exercise of any
such right or remedy preclude any other or further exercise under this Guarantee
of that or any other right or remedy.
15.2 The Creditor's rights under this Guarantee are cumulative and not exclusive
of any rights provided by law and may be exercised from time to time and as
often as the Creditor deems expedient.
15.3 Any waiver by the Creditor of any terms of this Guarantee, or any consent
or approval given by the Creditor under it, shall only be effective if given in
writing and then only for the purpose and upon the terms and conditions, if any,
on which it is given.
15.4 If at any time any one or more of the provisions of this Guarantee is or
becomes illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity and enforceability of the remaining
provisions of this Guarantee nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction shall be in any way
affected or impaired as a result.
16 LANGUAGE
All notices demands or communications under or in connection with this Guarantee
shall be in English.
17 LAW AND JURISDICTION
17.1 This Guarantee is governed by and shall be construed in accordance with
Northern Ireland law.
17.2 Each of the Guarantors irrevocably agrees for the exclusive benefit of the
Creditor that the courts of Northern Ireland shall have jurisdiction to hear and
determine any suit action or proceeding, and to settle any dispute, which may
arise out of or in connection with the Guarantee and for such purposes hereby
irrevocably submits to the
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jurisdiction of such courts.
17.3 Nothing contained in this Clause shall limit the right of the Creditor to
take proceedings against any of the Guarantors in any other court of competent
jurisdiction, nor shall the taking of any such proceedings in one or more
jurisdictions preclude the taking of proceedings in any other jurisdiction,
whether concurrently or not (unless precluded by applicable law).
17.4 Each of the Guarantors irrevocably waives any objection which it may have
now or in the future to the courts of Northern Ireland being nominated for the
purpose of this Clause on the ground of venue or otherwise and agrees not to
claim that any such court is not a convenient or appropriate forum.
FIRST SCHEDULE
The Guarantors
UNICOMP INC OF 0000 XXXXXXX XXXXX, XXXXX 000, XXXXXXXX XX 00000
ICS UNICOMP LIMITED, UNIBOL LIMITED ICS COMPUTING GROUP LIMITED XX
XXXX XXXXX, 00-00 XXXXXXX XXXX, XXXXXX, XX0 0XX
AURORA UNICOMP LIMITED OF XXXXXXX XXXXX, XXXXXXX XXXX,
XXXXXXXXXXXX, XX00 0XX
EXECUTED as a Deed by
UNICOMP INC in the presence of: :
:
-------------------- :
Director :
:
-------------------- :
Director/Secretary :
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EXECUTED as a Deed by ICS UNICOMP :
LIMITED in the presence of: :
:
-------------------- :
Director :
:
-------------------- :
Director/Secretary :
EXECUTED as a Deed by UNIBOL LIMITED :
in the presence of: :
:
-------------------- :
Director :
:
-------------------- :
Director/Secretary :
EXECUTED as a Deed by :
ICS COMPUTING GROUP LIMITED in the :
presence of: :
:
-------------------- :
Director :
:
-------------------- :
Director/Secretary :
15
EXECUTED as a Deed by AURORA :
UNICOMP LIMITED in the presence of: :
:
-------------------- :
Director :
:
-------------------- :
Director/Secretary :
16
DATED THIS DAY OF 199
UNICOMP GROUP OF COMPANIES
-to-
SX3 LIMITED
-------------------------------------
GUARANTEE and INDEMNITY
-------------------------------------
Messrs Xxxxxx & XxXxxxxx
Solicitors
Xxxxxx Xxxxx
0/0 Xxxxxx Xxxxxx
XXXXXXX
XX0 0XX
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