EXHIBIT 10.18
DATED 6 November 1996
(1) TSW INTERNATIONAL LIMITED
(2) GREYROCK BUSINESS CREDIT
(a division of NationsCredit
Commercial Corporation)
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GUARANTEE
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Kennedys
Xxxxxxx Xxxxx
00-00 Xxxxxxxx Xxxxxx
XXXXXX
XX0X 0XX
REF: ERF KZD B409-1 JS
DRAFT: 03.10.96
JOB NO: JS-DOC10\B409-001
THIS GUARANTEE is made BY DEED on the 6th day of November 1996
BY:
(1) TSW INTERNATIONAL LIMITED a company incorporated under the laws of
England having its registered office at Xxxxxxxxx Xxxxx, Xxxxxxxx
Xxxx, Xxxxxx, Xxxxxx XX00 0XX ("the Guarantor")
IN FAVOUR OF:
(2) GREYROCK BUSINESS CREDIT a division of Nations Credit Commercial
Corporation of 00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxx Xxxxxxx,
Xxxxxxxxxx 00000 XXX ("the Creditor")
NOW THIS DEED WITNESSES and the Guarantor hereby agrees:
1. INTERPRETATION
1.1 Unless the context otherwise requires or unless otherwise defined in
this Guarantee, words and expressions shall have the same respective
meanings that are ascribed to them in the Facility Document.
1.2 In this Guarantee:
"FACILITY DOCUMENT" means the Loan and Security Agreement
between the Creditor and the Principal
Debtor dated 17 November 1995 as
amended as of 1 August 1996 and as
further amended from time to time
"INTEREST RATE" means the rate of interest specified in
the Facility Document
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"PRINCIPAL DEBTOR" means TSW International Inc of 0000
Xxxxx Xxxxx Xxxxxxx, Xxxxxxx,
XX00000
"RESERVATIONS" means (a) the principle that equitable
remedies are at the discretion of the
Court; (b) the limitation on enforcement
by laws relating to insolvency
liquidation, reorganisation, court
schemes, moratoria, administration and
other laws affecting the rights of
creditors generally; (c) the time
barring of claims and (d) similar
principles and rights
"OBLIGATIONS" means the obligations of the Principal
Debtor as defined and set out in the
Facility Document.
1.3 In this Guarantee:
(a) references to clauses are to be construed as references to the
clauses of this Guarantee;
(b) references to this Guarantee and any provisions of this Guarantee
or to any other document or agreement are to be construed as
references to this Guarantee, those provisions or that document
or agreement in force for the time being and as amended, varied,
supplemented, substituted or novated from time to time;
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(c) words importing the singular are to include the plural and vice
versa;
(d) 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;
(e) references to any person are to be construed to include that
person's permitted assigns or transferees or successors in title,
whether direct or indirect;
(f) references to any statutory provision are to be construed as
references to 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 or deriving validity from that statutory provision;
(g) the words "other" and "otherwise" are not to be construed EIUSDEM
GENERIS with any foregoing words where the context admits of a
wider construction;
(h) references to liability are to include any liability whether
actual, contingent, present or future; and
(i) clause headings are for ease of references only and are not to
affect the interpretation of this Guarantee.
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(j) each of the provisions shall be severable and distinct from one
another and if one or more of such provisions is invalid or
unenforceable the remaining provisions shall not be affected in
any way.
2. REPRESENTATIONS AND WARRANTIES BY THE GUARANTOR
2.1 The Guarantor hereby represents and warrants to the Creditor that:
(a) the Guarantor is duly incorporated under the laws of England, 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) the Guarantor has full power and authority to execute, deliver
and perform its obligations under this Guarantee and no
limitation on the powers of the Guarantor will be exceeded as a
result of the Guarantor entering into this Guarantee;
(c) the execution, delivery and performance by the Guarantor 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) the Guarantor's memorandum and articles of association;
or
(ii) any existing law, statute, rule or regulation or any
judgment, decree or permit to which the Guarantor is
subject; or
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(iii) the terms of any agreement or other document to which
the Guarantor is a party or which is binding upon it or
any of its assets; and
(d) subject to the Reservations, this Guarantee is the legal, valid
and binding obligation of the Guarantor and is enforceable
against the Guarantor in accordance with its terms.
2.2 The Guarantor 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 The Guarantor irrevocably and unconditionally undertakes the
obligations and liabilities set out herein.
3.2 Subject to Clause 3.5 the Guarantor irrevocably and unconditionally
guarantees 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 become due from and shall
not have been paid by, the Principal Debtor to or in favour of the
Creditor under or in connection with the Facility Document; and
3.3 Subject to Clause 3.5 the Guarantor, as a 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 all losses,
costs and expenses fees and charges suffered or reasonably incurred by
the Creditor arising from or in connection with the failure of the
Principal
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[PAGE 6 IS MISSING FROM ORIGINAL DOCUMENT]
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shall remain in operation until all the Obligations have been duly
performed.
4.2 The Guarantor 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 or any right or remedy which the Creditor may
now or hereafter have from or against any of the Principal Debtor
and any other person in respect of any of the obligations and
liabilities of any of the Principal Debtor and any other person
under and in respect of the Facility Document;
(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 any of the Principal Debtor and any other person;
(c) any termination, amendment, variation, novation or supplement of
or to the Facility Document;
(d) any grant of time, indulgence, waiver or concession to the
Principal Debtor and any other person;
(e) any of the insolvency, bankruptcy, liquidation, administration,
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;
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(f) any invalidity, illegality, unenforceability, irregularity or
frustration of any actual or purported obligation of the
Principal Debtor and of 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 the Guarantor 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 the Guarantor or otherwise reduce or
extinguish its liability under this Guarantee.
4.3 PRIMARY OBLIGATION
(a) The obligations and liabilities expressed to be undertaken by the
Guarantor 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; or
(ii) to make or file any claim in a bankruptcy, liquidation,
administration or insolvency of the Principal Debtor
and any other person; or
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(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) The Guarantor 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 such 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 the Guarantor under this Guarantee or otherwise in
connection with this Guarantee.
(b) If any such Rights is taken, exercised or received by the
Guarantor, the Guarantor declares that such Rights and all monies
at any time received or held in respect of such Rights shall be
held by the Guarantor on trust for the Creditor for application
in or towards the discharge of the liabilities of the Guarantor
to the Creditor under this Guarantee.
(c) The Guarantor agrees that all other Rights and all monies from
time to time held on trust by the Guarantor 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
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or held by the Creditor from time to time for the discharge and
performance of any of the liabilities and obligations of the Principal
Debtor to the Creditor.
5. INTEREST
5.1 The Guarantor 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 until, but excluding, the date
of actual payment.
5.2 The Guarantor agrees to pay interest to the Creditor at the Interest
Rate after as well as before judgment until the date of actual
payment.
5.3 The Creditor shall be entitled to recover any amount in respect of
interest both under this Guarantee and the Facility Document in
respect of any failure to pay any sum under the Facility Document.
6. SUSPENSE ACCOUNT
6.1 The Creditor shall place to the credit of an interest bearing 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 the Principal Debtor and any other
person.
6.2 The Creditor may, at any time, apply any of the monies referred to in
Clause 6.1 in or towards satisfaction and discharge of any of the
monies, obligations and liabilities the subject of this Guarantee as
the Creditor, in its absolute discretion, may from time to time
conclusively determine.
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7. APPROPRIATION
The Guarantor shall not and may not direct the application by the
Creditor of any sums received by the Creditor from the Guarantor
under, or pursuant to, any of the terms of this Guarantee.
8. NEW ACCOUNTS
8.1 If this Guarantee ceases to be continuing for any reason whatsoever,
then the Creditor may open a new account or accounts in the name of
the Principal Debtor.
8.2 If the Creditor does not open a new account or accounts pursuant to
Clause 8.1, it shall nevertheless be treated as if it had done so at
the time that this Guarantee ceases to be continuing (whether by
determination, calling in or otherwise) in relation to the Principal
Debtor.
8.3 As from that time, all payments made to the Creditor by or on behalf
of the Principal Debtor shall be credited or be treated as having been
credited to the new account or accounts and shall not operate to
reduce the amount for which this Guarantee is available at that time
nor shall the liability of the Guarantor under this Guarantee in any
manner be reduced or affected by any subsequent transactions, receipts
or payments into or out of any such accounts.
9. DISCHARGE TO BE CONDITIONAL
9.1 Any release, discharge or settlement between the Guarantor and the
Creditor in relation to this Guarantee shall be conditional upon no
right, security, disposition or payment to the Creditor by the
Guarantor and any other person being void, set aside or ordered to
be refunded
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pursuant to any enactment or law relating to breach of duty by any
person, bankruptcy, liquidation, administration, protection from
creditors generally or insolvency or for any other reason.
9.2 If any such right, security, disposition or payment is void or is at
any time so set aside or ordered to be refunded, the Creditor shall be
entitled subsequently to demand payment under and to enforce this
Guarantee against the Guarantor as if such release, discharge or
settlement had not occurred and any such security, disposition or
payment had not been made.
10. PAYMENTS AND TAXES
10.1 All sums payable by the Guarantor under this Guarantee shall be
payable in such currency as is reasonably specified by the
Creditor and shall be paid to the Creditor in full without:
(a) any set-off, condition or counterclaim whatsoever; and
(b) free and clear from all deductions or withholdings whatsoever
save only as may be required by law or regulation which in either
case is binding on it.
10.2 If any deduction or withholding is required by any law or
regulation in respect of any payment due from the Guarantor
under this Guarantee or is in any event made, the relative sum
payable by the Guarantor shall be increased so that, after
making the minimum deduction or withholding so required, the
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.
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10.3 The Guarantor 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 the event
that the Creditor is able to recover any amounts in respect of
the deductions or withholdings referred to in Clause 10.2, it
shall forthwith credit the Guarantor's account in the relevant
amount and the Guarantor's liability hereunder shall be
accordingly reduced.
11. DEMANDS AND NOTIFICATION BINDING
11.1 Any demand, notification or certificate given by a duly
authorised officer of 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
prima facie evidence of the amounts so due and payable.
12. SET-OFF
12.1 The Creditor may, without notice to the Guarantor, apply any
credit balance which is at any time held by any office or
branch of the Creditor for the account of the Guarantor in or
towards satisfaction of any sum then due and payable from the
Guarantor under this Guarantee.
12.2 For the purposes of exercising any rights under this clause, or
any rights under the general law, the Creditor may convert or
translate all or any part of such credit balance into another
currency United States Dollars, Australian Dollars or Pounds
Sterling as appropriate applying a rate which in the Creditor's
reasonable opinion fairly reflects the relative prevailing
rates of exchange.
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12.3 The Creditor is not obliged to exercise any of its rights under
this clause, which shall be without prejudice and in addition
to any rights under the general law.
12.4 In this clause "rights under the general law" means any rights
of set-off, combination or consolidation of accounts, lien or
similar right which the Creditor has under any applicable law.
13. SERVICE OF DEMAND
13.1 A demand for payment or any other demand or notice to the
Guarantor on behalf of the Creditor under this Guarantee may be
made or given by any duly authorised manager or officer of the
Creditor in writing or facsimile transmission addressed to the
Guarantor at its address specified at the head of this
Guarantee or such other address(es) or facsimile number as may
be notified in writing from time to time by the Guarantor to
the Creditor in accordance with this clause.
13.2 Any demand, notice or communication shall be deemed to have been
duly served:
(a) If delivered by hand, when left at the proper address for
service;
(b) If given or made by pre-paid first class post by recorded
delivery, at the commencement of business hours on the
second business day after posting; and
(c) If given or made by facsimile equipment, at the time
acknowledged as received by the Guarantor's facsimile
equipment;
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PROVIDED that where in the case of delivery by hand or transmission by
facsimile, such delivery or transmission occurs outside business
hours, service shall be deemed to occur on the commencement of the
business hours on the next following business day.
14. TRANSFERS
14.1 This Guarantee is freely assignable or transferable by the
Creditor to any assignee of its rights under the Facility
Document but not otherwise.
14.2 The Guarantor may not 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.
15. CURRENCY AND GENERAL INDEMNITY
If, under any applicable law or regulation or pursuant to a judgment
or order being made or registered against the Guarantor or the
liquidation of the 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 reasonably expressed by the
Creditor 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, the 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
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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 the Guarantor shall be liable for)
any premium and other costs of exchange including any taxes or duties
incurred by reason of any such exchange.
16. MISCELLANEOUS
16.1 No delay or omission on the part of the Creditor in exercising
any right or remedy 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.
16.2 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.
16.3 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.
16.4 If at any time any one or more of the provisions of the
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.
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16.5 Any certificate or determination of the Creditor as to any
matter provided for in this Guarantee shall in the absence of
manifest error, be prima facie evidence of such matter.
16.6 This Guarantee is and will remain the property of the Creditor.
17. LANGUAGE
17.1 All notices, demands or communications under or in connection
with this Guarantee shall be in English.
18. LAW AND JURISDICTION
18.1 This Guarantee is governed by and shall be construed in
accordance with English law.
18.2 The Creditor shall be at liberty to enforce this Guarantee by
taking action or proceedings against the Guarantor in the High
Court of Justice of England and Wales or elsewhere in its
absolute discretion. If such proceedings are commenced in the
High Court of Justice aforesaid the Guarantor agrees to submit
to the jurisdiction of the said court in respect of all matters
concerned with its obligations and liabilities under or arising
out of or otherwise connected with this Guarantee.
18.3 Subject to Clause 18.2 above, any dispute or difference arising
under or otherwise in connection with this Guarantee shall be
referred to the exclusive jurisdiction of the High Court of
Justice of England and Wales.
IN WITNESS whereof this document has been duly executed and has been duly
delivered on the day and year first before within.
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EXECUTED as a DEED by )
TSW INTERNATIONAL LIMITED )
)
acting by: Xxxxx Xxxx and )
Xxxxxxxx Xxxxxx in the presence
of: /s/ (illegible)
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Xxxxx Xxxxx Director
[illegible]
Four Elms
Grosvenor Road /s/ (illegible)
Goldalming, Sy. ---------------------
V.P. Development, TSW Secretary
Executed as a Deed by )
GREYROCK BUSINESS CREDIT )
A DIVISION OF NATIONSCREDIT )
COMMERCIAL CORPORATION )
)
acting by )
)
under its authority ) /s/ (illegible)
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Authorised Signatory
