EXHIBIT 10.32
DEED OF GUARANTEE AND INDEMNITY
To Venture Finance PLC
Sussex House
Perrymount Road
Haywards Heath
West Sussex RH16 1DN
1 In this deed except where the context otherwise requires:
(1) words implying the singular shall include the plural and words
implying any of the three genders shall include either of the
other two; and
(2) the following expressions shall have the meanings assigned to
them below:
"Agreement" any agreement between the Principal and you
for the sale and purchase or factoring or
discounting of debts;
"Co-surety" any person (other than a person named in
section 2 of the Schedule) who has given a
guarantee or indemnity in respect of any
obligations of the Principal to you:
"Indulgence" the grant of any time or indulgence or the
conclusion of any agreement not to sue 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;
"Principal" the person whose name and address appears in
section 1 of the Schedule;
"Schedule" the schedule annexed to and forming part of
this deed.
2 We the Guarantors and Indemnifiers whose names appear in section 2 of
the Schedule hereby guarantee:
(i) the due performance of all the obligations to you of the
Principal under the Agreement and any other agreement and
(ii) upon your demand in writing the due payment of all amounts
payable or which may at any time hereafter become payable to
you by the Principal whether arising under the Agreement or
otherwise.
3 Without prejudice to the provisions of paragraph 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 Principal to comply
with any term of the Agreement or of any other agreement between the
Principal and you.
4 The guarantee given herein shall be a continuing guarantee and shall
apply to the ultimate amount payable by the Principal and shall not be
discharged by any intermediate payment or satisfaction by the
Principal.
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5 Our liability under this guarantee and indemnity shall not be affected
by:
(i) any Indulgence granted or made by you to or with the Principal
or any Co-surety;
(ii) any variation in the Agreement or in any other agreement
between the Principal and you (whether or not our liability to
you may be increased thereby) or by any defect therein or in
its execution;
(iii) any failure by you to take perfect or hold unencumbered any
security from the Principal or any other person;
(iv) any change in the constitution of the Principal; or
(v) any other matter or circumstance that might, but for the
operation of this paragraph, operate to release or reduce our
liability hereunder,
and we shall be liable hereunder in every respect as principal debtors.
6 If two or more persons are named as Guarantors and Indemnifiers in
section 2 of the Schedule our liability hereunder shall be joint and
several and the liability of each one of us shall not be affected by
any Indulgence granted or made by you to or with any other of us nor
by:
(i) any defect in the execution of this deed by any other of us:
(ii) any defect in any other guarantee or indemnity or other
security held by you in respect of the Principal's obligations
to you or in the execution thereof:
(iii) any notice of termination hereof by any other of us;
you may at your discretion (but shall not be obliged to) treat any
notice by any one of us as notice by all of us.
7 We shall be liable to pay you interest calculated from day to day and
compounded monthly at four per cent over the base rate of HSBC Bank plc
on all sums demanded by you hereunder from the date of your demand to
the date when payment is received by you both before and after any
judgement.
8 As security for the due performance of our obligations hereunder:
(i) Each one of us that is a corporate body hereby assigns to you
any right of proof (in consequence of the winding up of the
principal) in respect of any indebtedness of the Principal to
each one of us; and
(ii) Each one of us that is not a corporate body hereby assigns to
you any amount which is now or may hereafter become owing to
that one of us by the Principal together with any security
taken or to be taken to secure that indebtedness.
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(iii) Each one of us irrevocably appoints you and your directors and
company secretary for the time being jointly and each one of
you and them severally to be his attorney to execute in his
name such document and to do such other things as you may
consider requisite to effect collection of any dividend or to
vote at any meeting in respect of such right of proof or to
perfect your ownership of and to collect any such indebtedness
and to realise any such security as the case may be.
9 Any monies received by you 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 Principal in the event of its
winding up.
10 We agree to pay you all costs and expenses (on a full indemnity basis)
arising out of or in connection with the recovery by you of the monies
due to you herein.
11 Any discharge given by you to us in respect of our obligations under
this guarantee and indemnity shall be deemed to have been void and of
no effect if any security taken from or payment made by the Principal
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 be additional to and not in
substitution for any other security taken or to be taken by you in
respect of the Principal's obligations to you. In arriving at the
amount payable to you by the Principal you shall be entitled to take
into account all liabilities (whether actual or contingent) and to make
a reasonable estimate of any contingent liability. This guarantee and
indemnity shall remain in full force and effect until the expiry of not
less than three months notice of its termination given by us by
delivery of it to your registered office not earlier than the
termination of the Agreement (and if the Agreement comprises more than
one agreement until the last such termination); but such termination of
this guarantee and indemnity shall not affect our liability as regards
any liability of the Principal arising out of any transaction having
its inception before the expiry of the period of such notice.
13 Any notice or demand on any of us shall be validly given or made if
delivered to or sent by post to its address stated in section 2 of the
Schedule or its address last known to you (or in the case of a
corporate body to its registered office or if handed to one of its
officials) 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.
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THE SCHEDULE
1 PRINCIPAL: Xcel Power Systems Limited
Brunswick Road
Cobbs Wood
Ashford
Kent
TN231EB
Country of registration: England
Registered number: 00575679
2 GUARANTOR AND
INDEMNIFIER: Microtel International Inc.
9485 Haven Avenue
Suite 100
Rancho Cucamonga
CA 91730
Country of registration: United States of America
Registered number:
IN WITNESS whereof such of the parties have executed this Deed in the manner
described below
Signed as a Deed by MICROTEL INTERNATIONAL INC.
)
)
on the 12 day of November 2002 )
Acting by:
/S/ CARMINE T. OLIVA Director ) /S/ CARMINE T. OLIVA
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Carmine T. Oliva )
/S/ ROBERT B. RUNYON Director/Secretary ) /S/ ROBERT B. RUNYON
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Robert B. Runyon
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IN WITNESS whereof such of the parties have executed this Deed in the manner
described below
Signed as a Deed by XCEL CORPORATION LIMITED
)
)
on the 23 day of October 2002 )
Acting by:
/S/ C.T. OLIVA Director ) /S/ CARMINE T. OLIVA
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)
/S/ GRAHAM JEFFERIES Director/Secretary ) /S/ GRAHAM JEFFERIES
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Signed as a Deed by BELIX POWER CONVERSION LIMITED
)
)
on the 23 day of October 2002 )
Acting by:
/S/ C.T. OLIVA Director ) /S/ CARMINE T. OLIVA
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)
/S/ GRAHAM JEFFERIES Director/Secretary ) /S/ GRAHAM JEFFERIES
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Signed as a Deed by BELIX WOUND COMPONENTS LIMITED
)
)
on the 23 day of October 2002 )
Acting by:
/S/ C.T. OLIVA Director ) /S/ CARMINE T. OLIVA
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)
/S/ GRAHAM JEFFERIES Director/Secretary ) /S/ GRAHAM JEFFERIES
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