EXHIBIT 10.12
GUARANTEE & INDEMNITY
BETWEEN
XCEL POWER SYSTEMS LIMITED
PASCALL ELECTRONICS LIMITED
PASCALL ELECTRONIC (HOLDINGS) LIMITED
BELIX WOUND COMPONENTS LIMITED
AND
LLOYDS TSB COMMERCIAL FINANCE LIMITED
GUARANTEE AND INDEMNITY
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To LLOYDS TSB Commercial Finance Limited
Boston House
The Little Green
Richmond
Surrey TW9 1QE
1. We, the Guarantors and Indemnifiers, whose names appear in the schedule
hereto have agreed to give you as contained in the succeeding clauses
hereof, as many separate and independent guarantees and indemnities as
there are parties hereto (other than you) whereby the liabilities to
you of each and every one of us are guaranteed by the others of us and
whereby each one of us indemnifies you against any losses (as defined
herein) arising from transactions between you and any other of us.
2. Accordingly 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;
(2) the expression "Principal" shall mean and apply to any one of
us for whose liabilities any such guarantee is given and in
respect of whose transactions with you any such indemnity is
given;
(3) the following expressions shall have the meanings assigned to
them below:
"Agreement"
any agreement between the Principal and you for the factoring,
discounting and/or financing of book debts and/or receivables,
"Indulgence"
any indulgence, agreement not to sue or release of any charge
lien or other security or any part thereof,
"Losses"
losses, costs, damages, claims, interest and expenses and
(4) any other expression used in the Agreement shall have the
meaning attributed to it therein.
3. We hereby guarantee:
(i) the due performance of all the obligations 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.
4. Without prejudice to the provisions of paragraph 3 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.
5. The guarantee given herein shall be a continuing guarantee, shall apply
to the ultimate amount payable by the Principal and shall not be
discharged by any intermediate payment or satisfaction by the
Principal.
6. Our liability under this guarantee and indemnity shall not be affected
by:
(i) any time or indulgence granted by you to the Principal or any
other person,
(ii) any compromise made by you with the Principal or any other
person,
(iii) 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, or
(iv) any change in the constitution of the Principal.
and we shall be liable hereunder in every respect as principal debtors.
7. 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 taken or to be taken by you in respect of the
Principal's obligations to you, we shall be bound by any
acknowledgement or admission by the Principal and by any judgment in
your favour against the Principal. For the purpose of determining the
amount of any losses we shall accept and be bound by a certificate
signed by your company secretary in arriving at the amount payable by
the Principal to you you shall be entitled to take into account all
liabilities (whether actual or contingent) and to make a reasonable
estimate of any contingent liability.
8. Any notice or demand on any of us shall be validly given if handed to
any one of its officials or if delivered to or sent by post to its
address stated herein or its registered office or its address last
known to you and if sent by post shall be deemed to be received within
seventy-two hours of posting.
9. We shall be liable to pay you interest calculated from day to day and
compounded monthly at a rate equivalent to the discount charge for
which provision is made in the Agreement 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 judgment.
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10. Each one of us assigns to you, as security for the due performance of
our obligations hereunder any right of proof, in consequence of any
winding up of the Principal, in respect of any indebtedness of the
Principal to that one of us; and each one of us irrevocably appoints
you and your directors and secretary for the time being jointly and
each one of you and them severally to be his attorney to execute in his
name such documents 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.
11. Our liability hereunder shall be joint and several and you may release,
grant indulgence to or compromise with any one of us without affecting
the obligations of the other or others. The liability of any one of us
hereunder shall not be affected 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 or
(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.
12. 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.
13. This guarantee and indemnity shall remain in full force and effect
until the termination of the Agreement and the discharge in full of all
the Principal's obligations thereunder and after such full discharge
until the expiry of not less than three months notice of termination
delivered by any one of us to your registered office but such
termination shall not affect our liability as regards any liability of
the Principal existing or known to be contingent before the expiry of
the period of the said notice with effect from the date of the receipt
of' it by you.
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 he 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
Guarantors and Indemnifiers:
(1) Xcel Power Systems Limited (name)
Brunswick Road, Cobbs Wood, Ashford, Kent (address)
TN23 1EB
England & Wales (country or registration)
00575679 (number)
(2) Pascall Electronics Limited (name)
Brunswick Road, Cobbs Wood, Ashford, Kent (address)
TN23 1EH
England & Wales (country of registration)
01316674 (number)
(3) Pascall Electronic (Holdings) Limited (name)
Brunswick Road, Cobbs Wood, Ashford, Kent (address)
TN23 1EH
England & Wales (country of registration)
01756274 (number)
(4) Belix Wound Components Limited (name)
Brunswick Road, Cobbs Wood, Ashford, Kent (address)
TN23 1EH
England & Wales (country of registration)
01537636 (number)
This document has been executed as a deed by or on behalf of each of us to
indicate our binding agreement to its terms.
SIGNED and DELIVERED as a deed on )
21st day of June 2005 by you )
XCEL POWER SYSTEMS LIMITED
acting by )
)
(a Director ) and Signature of Director
)
(a Director / its Company Secretary ) Signature of Director/
) Company Secretary
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SIGNED and DELIVERED as a deed on )
day of by you )
PASCALL ELECTRONICS LIMITED
acting by
)
(a Director) and Signature of Director
)
(a Director / its Company Secretary ) Signature of Director/
) Company Secretary
SIGNED and DELIVERED as a deed on )
21st day of June 2005 by you )
PASCALL ELECTRONIC (HOLDINGS) LIMITED
acting by
)
(a Director) and Signature of Director
)
(a Director / its Company Secretary ) Signature of Director/
) Company Secretary
SIGNED and DELIVERED us it deed on )
21st day of June 2005 by you )
BELIX WOUND COMPONENTS LIMITED
acting by
)
(a Director) and Signature of Director
)
(a Director /its Company Secretary ) Signature of Director/
) Company Secretary
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