DATED DECEMBER 14, 1999
THE CERPLEX GROUP, INC.
and
BURDALE FINANCIAL LIMITED
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GUARANTEE AND INDEMNITY
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THIS GUARANTEE is dated 1999
BETWEEN:
(1) THE CERPLEX GROUP, INC. a company incorporated under the laws
of Delaware in the United States of America (the "Guarantor")
and
(2) BURDALE FINANCIAL LIMITED (Registered in England and Wales No.
2656007) ("Burdale", which expression shall include its successors,
transferees and assigns).
BACKGROUND:
(A) At the request of the Guarantor, Burdale has agreed to provide
certain banking and financial accommodation to Cerplex Limited
(Registered in England and Wales No. 2953372) (the "PRINCIPAL").
(B) It is a condition of Burdale making such accommodation to the
Principal that certain security (including that constituted by this
Deed) be granted to Burdale.
(C) The execution of this Deed is for the commercial benefit of the
Guarantor and was approved as such pursuant to a board resolution on
or about today's date and by a unanimous resolution of its
shareholders also on or about today's date.
(D) The parties intend that this Deed take effect as a deed notwithstanding that
it may be executed under hand only.
IT IS AGREED as follows:
1. GUARANTEE
In consideration of Burdale providing banking and financial
accommodation from time to time to the Principal at the request of
the Guarantor, the Guarantor:
(a) guarantees to Burdale the due performance by the Principal of
its obligations to Burdale (whether actual or contingent and
whether owed jointly or severally or in any capacity
whatsoever) and promises to pay to Burdale on demand all sums
from time to time due and payable (but unpaid) by the
Principal pursuant to the Finance Documents entered into
between the Principal and Burdale; and
(b) agrees as a primary obligation to indemnify Burdale from time
to time on demand from and against any loss incurred by
Burdale as a result of any agreement between Burdale and the
Principal being or becoming void, voidable or unenforceable
for any reason whatsoever, whether or not known to Burdale,
the amount of such loss being the amount which Burdale would
otherwise have been entitled to recover from the Principal.
2. PRESERVATION OF RIGHTS
2.1 The obligations of the Guarantor contained in this Deed shall be in
addition to and not in substitution for any other guarantees or
security (together the "Security") which Burdale may at any time hold
in respect of any of the Principal's obligations and may be enforced
without Burdale first having recourse to any of the Security and
without Burdale first taking steps or proceedings against the
Principal or any third parties.
2.2 Neither the obligations of the Guarantor contained in this Deed, nor
the rights, powers and remedies conferred in respect of the Guarantor
upon Burdale by any agreement or by law shall be discharged, impaired
or otherwise affected by:
(a) the winding-up, dissolution, administration or
reorganisation of the Principal or any change in its status,
function, control or ownership;
(b) any of the obligations of the Principal to Burdale being
or becoming illegal, invalid or unenforceable in any respect;
(c) time or other indulgence being granted or agreed to be granted
by Burdale to, or any composition or other arrangement made
with or accepted from, the Principal in respect of its
obligations to Burdale or any person in respect of any of the
Security;
(d) any amendment of any of the Security or of any document
recording or evidencing the terms of any obligations owed by
the Principal to Burdale;
(e) any failure to realise or fully to realise the value of, or
any release, discharge, exchange or substitution of, any of
the Security;
(f) any failure (whether intentional or not) to take, or
fully to take, or perfect any of the Security; or
(g) any other act, event or omission which, but for this Clause
2.2, would or might operate to discharge, impair or otherwise
affect any of the obligations of the Guarantor contained in
this Deed or any of the rights, powers or remedies conferred
upon Burdale by any agreement or by law.
2.3 Any discharge given by Burdale to the Guarantor in respect of the
Guarantor's obligations under this Deed or any other agreement
reached between Burdale and the Guarantor in relation thereto shall
be, and be deemed always to have been, void if any act on the faith
of which Burdale gave the Guarantor that discharge or entered into
that agreement is subsequently avoided by or in pursuance of any
provision of law.
2.4 Burdale shall not be obliged before exercising any of the rights,
powers or remedies conferred upon it in respect of the Guarantor by
law:
(a) to make any demand other than a demand on the Principal
required by the terms of any agreement between the Principal
and Burdale;
(b) to take any action or obtain judgment in any court against the
Principal or any third party;
(c) to make or file any claim or proof in a winding-up,
receivership, administration, administrative receivership or
dissolution of the Principal; or
(d) to enforce or seek to enforce any Security.
2.5 After a demand has been made by Burdale under this Deed, so long
as the Principal is under any actual or contingent liability to
Burdale, the Guarantor shall not:
(a) exercise in respect of any amount paid by the Guarantor under
this Deed any right of subrogation or any other right or
remedy which the Guarantor may have in respect of such
payment; or
(b) except with Burdale' consent in writing, claim or receive
payment of any other monies for the time being due to the
Guarantor by the Principal or exercise any other right or
remedy which the Guarantor may have in respect of such monies;
or
(c) unless so required by Burdale, prove in a liquidation of the
Principal in competition with Burdale for any monies owing to
the Guarantor by the Principal on any account whatsoever.
Any monies obtained by the Guarantor from the Principal with such
consent or as required by or in breach of this Clause shall be held
by the Guarantor upon trust to pay the same to Burdale in or towards
discharge of the Guarantor's obligations under this Deed.
3. REPRESENTATIONS AND WARRANTIES
The Guarantor represents to Burdale that:
(a) The Guarantor is a corporation duly formed and existing under
the laws of the State of Delaware and has the power, capacity
and authority to own its property and conduct its business as
currently being carried on and to execute and deliver this
Deed and to enter into and exercise its rights and perform its
obligations under this Deed.
(b) All corporate and other action required to authorise the
execution and delivery by the Guarantor of this Deed and its
performance of obligations of the Guarantor under this Deed
has been duly taken.
(c) Under the laws of the State of Delaware in force at today's
date, the claims of Burdale against the Guarantor under this
Deed are direct, general and unconditional obligations of the
Guarantor which rank, or will when they arise rank, at least
pari passu with the claims of all its other unsecured and
unsubordinated creditors (present and future), save those
whose claims are preferred mandatorily by any bankruptcy,
insolvency, liquidation or other similar laws of general
application and all claims of the Guarantor against the
Principal from time to time will be subordinated to the claims
of Burdale against the Principal from time to time.
(d) All acts, conditions and things required to be done, fulfilled
and performed in order (i) to enable the Guarantor lawfully to
enter into and, as the case may be, exercise its rights under
and perform and comply with the obligations expressed to be
assumed by it in this Deed, (ii) to ensure that the
obligations expressed to be assumed by the Guarantor in this
Deed, are legal, valid and binding and (iii) to make this Deed
admissible in evidence in England and Wales and the State of
Delaware, have been or will be, done, and will (after they
have been done, fulfilled and performed) continue to be, done,
fulfilled and performed.
(e) All authorisations, approvals, consents, licences, exemptions,
filings, registrations and notarisations and payments of any
tax or any other actions required in connection with the entry
into, performance of, validity and enforceability of this Deed
have been, or will be, obtained and will be maintained in full
force and effect or have been made or taken by the Guarantor.
(f) All necessary filing, recording or enrolment of this Deed with
any court or other authority in the State of Delaware and any
stamp, registration or similar tax has been, or will be,
effected or paid in relation to or on this Deed.
(g) The obligations expressed to be assumed by the Guarantor in
this Deed are, subject to the application of insolvency laws
and equitable principles which limit the enforcement of
creditors' rights generally, its legal, valid and binding
obligations.
(h) In any proceedings taken in the State of Delaware in relation
to this Deed, the choice of English law as the governing law
of this Deed and any judgment obtained in England and Wales in
respect of this Deed will be recognised and enforced.
(i) The Guarantor has not taken any corporate action nor have any
other formal steps been taken or legal proceedings been
started or, so far as any of the Guarantor is aware to the
best of its knowledge and belief, threatened against the
Guarantor for its bankruptcy, winding-up, dissolution,
administration or re-organisation or for the appointment of a
receiver, administrator, administrative receiver, trustee or
similar officer of it or of any or all of its assets or
undertaking.
(j) The execution and delivery by the Guarantor of this Deed and
the performance by the Guarantor of its obligations under this
Deed will not:
(i) contravene any provision of any law, statute, rule or
regulation or any order or licence of any authority,
agency or court to which it or any of its assets or
revenues is subject; or
(ii) result in any breach of any of the terms, covenants
(including, without limitation, any limitation on
borrowing), conditions or provisions of, or constitute
a default under, any loan, security, agreement or any
other instrument or obligation to which it is a party;
or
(iii) violate any of its applicable constitutive documents.
(k) No litigation, arbitration or administrative proceedings are
current or, to its knowledge, pending or threatened against
the Guarantor which in any case would, if adversely
determined, result in a material adverse change.
(l) All of the written financial and other information relating to
the business and affairs of the Guarantor supplied by the
Guarantor or any person on its behalf to Burdale in connection
with any of the Documents is, as at the date to which it is
expressed to speak, true, complete and accurate in all
material respects and the Guarantor is not aware of any facts
or circumstances that have not been disclosed to Burdale and
which would, if disclosed, affect adversely the decision of a
person considering whether or not to provide finance to the
Principal.
(m) The Guarantor shall not, by reason of its execution of this
Deed, become obliged to create in favour of any person, any
Encumbrance over any of its property, revenues or assets.
4. PAYMENTS
4.1 All payments to be made by the Guarantor to Burdale under this
Deed shall
be:
(a) paid on the due date for such payment in freely available
funds and in the currency in which the liabilities of the
Principal, in respect of which such payments are made, were
expressed to be payable;
(b) made without set-off or counterclaim; and
(c) made free and clear of all and without deduction for or on
account of any tax, save to the extent that the Guarantor is
compelled by law to make such payment subject to any tax (a
"Required Tax")
4.2 The Guarantor will indemnify Burdale against any Required Tax imposed
on any payment by the Guarantor under this Deed. If any such Required
Tax (or any amount in respect of any Required Tax) must be deducted
from any such payment or any other deductions must be made from any
amounts paid by the Guarantor under this Deed, the Guarantor shall
pay to Burdale such additional amounts as may be necessary to ensure
that Burdale receives a net amount equal to the full amount which it
would have received had the payment not been made subject to the
Required Tax.
5. CURRENCY OF ACCOUNT
Moneys received or recovered by Burdale from the Guarantor in a
currency other than that in which the said sums are due and payable
from the Principal or under Clause 1 shall be converted into the
latter currency at the rate at which Burdale, acting reasonably,
would have sold the latter currency for the former at 11 a.m. on the
latest day before Burdale' receipt or recovery on which Burdale
quoted generally a rate of exchange for such a sale.
6. CONTINUING SECURITY
The security constituted by this Deed shall be a continuing security
to Burdale in respect of each and every one of the obligations owed
by the Principal to Burdale and shall not be (or be construed so as
to be) discharged by any intermediate discharge or payment of or on
account of the obligations of the Principal or any of them or any
settlement of accounts between Burdale and the Principal or anyone
else other than any settlement or discharge in full and finally by
the Guarantor of the obligations of the Principal to Burdale.
7. SET-OFF
Burdale may at any time after demand has been made set-off or combine
any account in its books in the name of the Guarantor (at whatever
branch and in whatever currency denominated) with any other such
account.
8. NOTICES
8.1 Each communication to be made under this Deed shall be made in
writing and shall be made by letter or facsimile.
8.2 Any communication or document to be made or delivered by one person
to another pursuant to this Deed shall (unless that other person has
by five Business Days' written notice to the other specified another
address) be made or delivered to that other person at the address
identified with its signature below and shall be deemed to have been
made or delivered, when received (as evidenced by a facsimile
transmission report, in the case of any communications made by
facsimile) or (in the case of any communication made by letter) when
delivered to that address provided that any communication or document
to be made or delivered to Burdale shall be effective only if the
same is expressly marked for the attention of the department or
officer identified with Burdale's signature below (or such other
department or officer as Burdale shall from time to time specify for
this purpose).
9. GOVERNING LAW
This Deed shall be governed by and construed in accordance with
English law.
10. JURISDICTION
10.1 For the benefit of Burdale, the Guarantor agrees that the courts of
England have jurisdiction to settle any disputes in connection with
this Deed and accordingly submits to the jurisdiction of the English
courts.
10.2 Without prejudice to any other mode of service, the Guarantor:
(a) irrevocably appoints the Principal (at its address for notices
as set out in the facility agreement dated today's date
between the Principal and Burdale) as its agent for service of
process relating to any proceedings before the English courts
in connection with this Deed;
(b) agrees that failure by a process agent to notify the Guarantor
of the process will not invalidate the proceedings concerned;
and
(c) consents to the service of process relating to any such
proceedings by prepaid posting of a copy of the process to its
address for the time being applying under Clause 8.2.
10.3 The Guarantor:
(a) waives objection to the English courts on grounds of
inconvenient forum or otherwise as regards proceedings in
connection with this Deed; and
(b) agrees that a judgement or order of an English court in
connection with this Deed is conclusive and binding on it and
may be enforced against it in the courts of any other
jurisdiction.
10.4 Nothing in this Clause 10 limits the right of Burdale to bring
proceedings against the Guarantor in connection with this Deed:
(a) in any other court of competent jurisdiction; or
(b) concurrently in more than one jurisdiction.
IN WITNESS of which this Deed has been duly executed as a deed the day and year
first above
EXECUTED as a deed by
THE CERPLEX GROUP, INC.
By: /S/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President and Chief Operating Officer
Address: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Facsimile No:
For the attention of:
Accepted and agreed:
BURDALE FINANCIAL LIMITED
By:
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
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Facsimile No: 0171 486 3513
For the attention of: Company Secretary