Dated 23 May 2005
(1) AEROFLEX INCORPORATED
(2) UBINETICS HOLDINGS LIMITED
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DEED OF GUARANTEE
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MAYER
BROWN
ROWE
& MAW
LONDON
CONTENTS
CLAUSE PAGE
1. Definitions and Interpretation........................................1
2. Guarantee.............................................................2
3. Guarantor's Warranties................................................3
4. General...............................................................4
THIS DEED is dated 23 May 2005 and made between:
(1) AEROFLEX INCORPORATED a company incorporated in the State of Delaware whose
registered office is at 35 South Service Road, Plainview, New York, 11803
(the "GUARANTOR"); and
(2) UBINETICS HOLDINGS LIMITED a company incorporated in England and Wales
(registered number 03936291) whose registered office is at Cambridge
Technology Centre, Back Lane, Melbourn, Royston, Hertfordshire SG8 6DP (the
"SELLER").
BACKGROUND:
(A) Pursuant to an agreement dated the same day as this Deed entered into
between Aeroflex Test Solutions Limited (the "PURCHASER") and the Seller
(the "SALE AGREEMENT"), the Seller has agreed to sell the Shares and the
Assets to the Purchaser on the terms and conditions set out in the Sale
Agreement.
(B) The Purchaser and the Guarantor are both members of the Purchaser's Group.
The Guarantor has agreed to guarantee certain obligations of the Purchaser
under the Sale Agreement on the terms and conditions set out in this Deed.
IT IS AGREED THAT:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Deed:
"PROCEEDINGS" means any proceedings, suit or action arising out of or
in connection with this Deed; and
"SERVICE DOCUMENT" means a claim form, summons, order, judgement or
other process issued out of the courts of England and Wales relating
to or in connection with any Proceedings.
1.2 CONTENTS PAGE AND HEADINGS
In this Deed, the contents page and headings are included for
convenience only and shall not affect the interpretation or
construction of this Deed.
1.3 MEANING OF REFERENCES
In this Deed, unless the context requires otherwise, any reference to:
(a) a CLAUSE is to a clause of this Deed;
(b) INDEMNIFY and to INDEMNIFYING any person against any Losses by
reference to a matter, event or circumstance includes
indemnifying and keeping him indemnified immediately on demand
against all Losses from time to time
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made, suffered or incurred by that person as a direct or indirect
result of that matter, event or circumstance;
(c) a PARTY or the PARTIES is to a party or the parties to this Deed
and shall include any permitted assignees of a party;
(d) a PERSON includes any individual, firm, company, corporation,
government, state or agency of state or any association, trust or
partnership (whether or not having a separate legal personality);
and
(e) a STATUTE or STATUTORY PROVISION includes any consolidation or
re-enactment, modification or replacement of the same, any
statute or statutory provision of which it is a consolidation,
re-enactment, modification or replacement and any subordinate
legislation in force under any of the same from time to time
except to the extent that any consolidation, re-enactment,
modification or replacement enacted after the date of this Deed
would extend or increase the liability of either party to the
other under this Deed.
1.4 NO RESTRICTIVE INTERPRETATION
In this Deed, general words shall not be given a restrictive
interpretation by reason of their being preceded or followed by words
indicating a particular class of acts, matters or things.
1.5 DEFINITIONS IN SALE AGREEMENT
Words and expressions used but not defined in this Deed shall have the
meanings given to them in the Sale Agreement.
2. GUARANTEE
2.1 GUARANTEE
If the Purchaser fails to comply with any obligation to pay any sum
when due to the Seller under the provisions of the Sale Agreement (a
"PAYMENT OBLIGATION") then, subject to the provisions of Clause 2.5
(Right to defences), the Guarantor guarantees that it shall (on
written demand by the Seller) immediately perform and discharge such
Payment Obligation.
2.2 CONTINUING GUARANTEE
The guarantee set out in Clause 2.1 (Guarantee):
(a) is a continuing guarantee and shall remain in force and effect
until the Purchaser has performed and discharged each Payment
Obligation under the Sale Agreement; and
(b) is additional to (and not in substitution for) any other security
or guarantee which is or may be held by the Seller from time to
time in respect of any Payment Obligation.
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2.3 NO RELEASE
The Guarantor's liability under Clause 2.1 (Guarantee) shall, subject
to Clause 2.5 (Right to defences), not be affected by any concession,
time, indulgence or release granted by the Seller to the Purchaser or
by any payment or other dealing or anything else (whether by or
relating to the Seller, any co-guarantor or any other person) which
would, but for this Clause 2.3, operate to discharge or reduce that
liability.
2.4 INVALIDITY OR UNENFORCEABILITY OF GUARANTEE
If anything (including any legal limitation, disability, liquidation
or other incapacity on the part of the Purchaser or any disclaimer by
a liquidator or trustee in bankruptcy) causes any Payment Obligation
and/or the guarantee set out in Clause 2.1 (Guarantee) to be or become
invalid or unenforceable, then, subject to Clause 2.5 (Right to
defences), the Guarantor shall perform and discharge such Payment
Obligation as if it was the primary obligation of the Guarantor.
2.5 RIGHT TO DEFENCES
The Guarantor shall be entitled to raise as a defence to any payments
due from it under this Clause 2, any defences which are or may be
raised by the Purchaser against the Seller under the Sale Agreement or
in respect of any other matter or thing and shall be entitled to
deduct or withhold in respect of any such claim (whether by way of
set-off, counterclaim or otherwise) any amount which is or may be
claimed from time to time by the Purchaser against the Seller under
the Sale Agreement or in respect of any other matter or thing.
2.6 NO EXERCISE OF SET OFF-RIGHTS
The Guarantor shall not exercise any rights which it may have against
the Purchaser arising from or otherwise relating to its guarantee
under Clause 2.1 (Guarantee) or its other obligations under this
Clause 2 unless and until each Payment Obligation and all of the
obligations of the Guarantor under this Deed have been performed and
discharged.
2.7 ENFORCEMENT
The Seller may claim under the guarantee set out in Clause 2.1
(Guarantee) without first making demand of the Purchaser or taking any
action to claim under or enforce any other right, security or other
guarantee which it may hold from time to time in respect of any
Payment Obligation.
2.8 UNCONDITIONAL AND IRREVOCABLE GUARANTEE
The Guarantor's obligations under this Clause 2, including its
guarantee under Clause 2.1 (Guarantee) are unconditional and
irrevocable.
3. GUARANTOR'S WARRANTIES
The Guarantor warrants to the Seller that:
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(a) the Guarantor has full power to enter into and perform this Deed
this Deed will on execution by the Guarantor constitute valid and
binding obligations on the Guarantor in accordance with its
terms; and
(b) the execution and delivery of, and the performance by the
Guarantor of its obligations under this Deed will not:
(i) result in a breach of any provision of its memorandum or
articles of association;
(ii) result in a breach of any order, judgment or decree of any
court or government agency to which the Guarantor is a party
or by which the Guarantor is bound; or
(iii)require the Guarantor to obtain any consent or approval of
its shareholders or any other material third party consent.
4. GENERAL
4.1 COUNTERPARTS
This Deed may be executed in any number of counterparts, and by the
parties on separate counterparts, but shall not be effective until
each of the parties has executed at least one counterpart. Each
counterpart shall constitute an original of this Deed but all the
counterparts together shall together constitute but one and the same
instrument.
4.2 NO RIGHTS OF THIRD PARTIES
A person who is not party to this Deed has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of
this Deed.
4.3 NOTICES
Subject to Clause 4.4 (Agent for service of process) all
communications relating to this Deed shall be in writing and delivered
by hand or sent by post or facsimile to the party concerned at the
relevant address shown at the start of this Deed (or such other
address as may be notified from time to time in accordance with this
clause by the relevant party to the other party). Any communication
shall take effect if delivered, upon delivery; if posted, at the
earlier of delivery and, if sent by first class registered post, 10.00
a.m. on the second Business Day after posting and if sent by
facsimile, when a complete and legible copy of the communication,
whether that sent by facsimile or a hard copy sent by post or
delivered by hand, has been received at the appropriate address.
4.4 AGENT FOR SERVICE OF PROCESS
The Guarantor irrevocably agrees that any Service Document may be
sufficiently and effectively served on it in connection with
Proceedings in England by service on Aeroflex Test Solutions Limited
(the "GUARANTOR'S AGENT") at Longacres House, Six Hills Way, Stevenage
SG1 2AN in accordance with the provisions of Clause 4.3 (Notices) with
a copy to Aeroflex Incorporated, P.O. Box 6022, 35 South Service Road,
Plainview, New York 11803 Attention: Michael Gorin, Vice Chairman. In
the
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event of the Guarantor's Agent (or any replacement agent) ceasing so
to act or ceasing to have an address in England, the Guarantor
undertakes to promptly appoint another person as its agent for that
purpose and to procure that notice of that appointment is given to the
Seller in accordance with the provisions of Clause 4.3 (Notices).
4.5 GOVERNING LAW AND JURISDICTION
This Deed shall be governed by and construed in accordance with
English law. Each party irrevocably submits to the non-exclusive
jurisdiction of the English courts to settle any dispute which may
arise under or in connection with this Deed.
EXECUTION:
The parties have shown their acceptance of the terms of this Deed by executing
it below:
SIGNED by Charles Badlato, Vice President ) /s/Charles Badlato
AEROFLEX INCORPORATED )
SIGNED by James Mclaurin , Director, ) /s/James Mclaurin
and Christopher Edwards Director/Secretary, ) /s/Christopher Edwards
duly authorised for and on behalf of )
UBINETICS HOLDINGS LIMITED )
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