EXHIBIT 10.19
DEED OF GUARANTEE AND INDEMNITY
Date: 14 November 1996
GREYROCK BUSINESS CREDIT
a Division of NationsCredit Commercial Corporation
Beneficiary
TSW INTERNATIONAL PTY LTD
ACN 062 583 528
Guarantor
[LETTERHEAD]
DEED OF GUARANTEE AND INDEMNITY made at Brisbane on 14 November 1996
BETWEEN GREYROCK BUSINESS CREDIT, A DIVISION OF NATIONSCREDIT COMMERCIAL
CORPORATION of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America ("BENEFICIARY")
AND TSW INTERNATIONAL PTY LTD (ACN 062 583 528) incorporated in New
South Wales and having its Registered Office at ▇▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ("GUARANTOR")
RECITALS
A. The Guarantor has agreed on the following terms and conditions to
guarantee to the Beneficiary all of the Obligations (as hereinafter
defined) and to indemnify the Beneficiary against any loss arising
therefrom.
THIS DEED WITNESSES
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Guarantee and Indemnity unless the context indicates a contrary
intention:
"DEBTOR" means TSW International, Inc. of ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America.
"ENCUMBRANCE" means any mortgage, charge, pledge, lien, encumbrance,
assignment, hypothecation, security interest, title retention,
preferential right, trust arrangement and any other security agreement or
arrangement in favour of any person.
"EVENT OF DEFAULT" means any event which constitutes a breach of, or is
declared to be an event or default howsoever described by, any Transaction
Document.
"EVENT OF INSOLVENCY" in relation to a person means any of the following
events:
(a) in the case of a corporation:
(i) a liquidator, provisional liquidator, trustee, administrator,
manager, receiver and manager, controller or similar officer
is appointed in respect of the corporation or any of its
assets;
(ii) an application is made to a court for an order or an order is
made or a meeting is convened or a resolution is passed for
winding up the corporation or for implementing a scheme of
arrangement for the corporation or for placing the
corporation under official management;
(b) in the case of a natural person:
(i) an order is made for the bankruptcy of that person;
(ii) that person dies or becomes mentally or physically incapable
of managing his affairs or an order is applied for or made to
place the assets and affairs of that person under
administration pursuant to any law relating to mental health,
or under any other administration;
(iii) a receiver is appointed in respect of any of the person's
assets;
(c) in every case:
(i) a moratorium of any debts of the person or an official
assignment or a composition or an arrangement, formal or
informal, with the person's creditors or any similar
proceeding or arrangement by which the assets of that person
are submitted to the control of its creditors, is applied for,
ordered or declared;
(ii) the person becomes or is declared insolvent within the meaning
of any applicable law or is unable, or admits in writing its
inability, to pay its debts as these fall due;
(iii) any distress, execution, attachment or other process is made
or levied against any asset of the person.
"OBLIGATIONS" means all the liabilities of the Debtor to the Beneficiary
under or by reason of any Transaction Document and without limiting the
generality of the foregoing includes such liabilities which:
(d) are unliquidated;
(e) are present, prospective or contingent;
(f) are already in existence prior to or come into existence after the
date hereof;
(g) relate to the payment of money or the performance or omission of any
act;
(h) sound in damages only; or
(i) accrue as a result of any Event of Default.
"RELATED BODY CORPORATE" has the meaning given in section 9 of the
Corporations Law.
"RELEVANT PERSON" means a several reference to the Debtor, each Guarantor
and each Related Body Corporate of the Debtor or Guarantor and when used
in clause 3 shall be extended to include any person from whom a Guarantor,
but for any provision of this instrument, would be entitled to seek
contribution in respect of money paid or payable by virtue of the
guarantee contained herein.
"SECURITY" means each of the following at any time held by the Beneficiary
(whether during the currency of this Guarantee and Indemnity or
otherwise):
2.
(a) any guarantee, indemnity or contract of suretyship (other than this
Guarantee and Indemnity) for the performance of the whole or any
part of the Obligations; and
(b) any Encumbrance for the performance of the whole or any part of the
Obligations or of the liabilities and obligations to the Beneficiary
under this Guarantee and Indemnity or any abovementioned guarantee,
indemnity or contract of suretyship.
"SPECIFIED RATE" means such rate as the Beneficiary specifies from time to
time.
"SURETY" means each person, other than the Debtor or the Guarantor, who at
any time enters into or gives any Security.
"TAXES" means all present and future taxes, levies, imposts, deductions,
charges, fees and withholdings whatsoever, together with interest thereon,
penalties with respect therefor and any charges, fees or other amounts in
respect thereof.
"TRANSACTION DOCUMENT" means:
(a) this document;
(b) Loan and Security Agreement entered into between the Beneficiary and
the Debtor on 17 November 1995 (as amended);
(c) each Security; and
(d) each other document to which the Debtor and/or any Guarantor (on the
one hand) and the Beneficiary (on the other hand) are parties at any
time that:
(i) relates to any money that is declared by that document to be
part of the Obligations; or
(ii) is expressed to be, or is agreed by the said parties to be, a
Transaction Document for the purposes hereof,
and any such document to which other persons are also parties or which is,
or which is expressed to be, collateral or supplemental to any other
document that is then a Transaction Document.
1.2 INTERPRETATION
In this Guarantee and Indemnity unless the context indicates a contrary
intention:
(a) if there is more than one person identified herein as the "DEBTOR",
such expression shall be construed to refer to each of them
severally and every 2 or more of them jointly;
(b) if there is more than one person identified herein as the
"GUARANTOR", such expression shall be construed to refer to, and to
bind, each of them severally and every 2 or more of them jointly;
3.
(c) the expression "THIS GUARANTEE AND INDEMNITY" means this Deed of
Guarantee and Indemnity;
(d) the expression "PERSON" includes an individual, the estate of an
individual, a body politic, corporation and a statutory or other
authority or association (incorporated or unincorporated);
(e) a reference to any party includes that party's executors,
administrators, successors, substitutes and assigns, including any
person taking by way of novation;
(f) a reference to this Guarantee and Indemnity, to a Security, to a
Transaction Document or to any other deed, agreement, document or
instrument includes, respectively, this Guarantee and Indemnity, the
Security, the Transaction Document or such other deed, agreement,
document or instrument as amended, novated, supplemented, varied or
replaced from time to time;
(g) words importing the singular include the plural (and vice versa) and
words denoting a given gender include all other genders;
(h) headings are for convenience only and do not affect interpretation;
(i) any agreement, undertaking, acknowledgment or other provision that
is made or given by the Guarantor herein shall be deemed to be a
covenant by the Guarantor in favor and for the benefit of the
Beneficiary;
2. GUARANTEE AND INDEMNITY
2.1 GUARANTEE
The Guarantor hereby irrevocably and unconditionally guarantees to the
Beneficiary the due and punctual performance by the Debtor of all the
Obligations.
2.2 INDEMNITY
The Guarantor as a separate, additional and primary liability hereby
irrevocably and unconditionally agrees to indemnify the Beneficiary and at
all times hereafter to keep the Beneficiary indemnified against any loss
or damage suffered by the Beneficiary arising out of:
(a) any failure by the Debtor to duly and punctually perform the
Obligations; or
(b) any obligation or liability that would otherwise form part of the
Obligations being void, violable or unenforceable against or
irrecoverable from the Debtor by the Beneficiary in full for any
reason whatsoever (whether or not the Beneficiary knew or ought to
have known of such reason), including without limiting the
generality of the foregoing, by reason of:
4.
(i) any legal limitation, disability or incapacity of the Debtor;
(ii) any improper exercise of a power or authority in relation to
the Debtor;
(iii) any right of the Beneficiary to enforce or recover such
obligation or liability or to exercise any remedy or right it
has for the recovery of such obligation or liability being
suspended or postponed by order of any court or otherwise; or
(iv) any Event of Insolvency occurring in respect of the Debtor.
2.3 LIMITATION OF LIABILITY
(a) This clause 2.3:
(i) overrides all other provisions of this Guarantee and
Indemnity;
(ii) survives the termination of this Guarantee and Indemnity; and
(iii) is not several from this Guarantee and Indemnity.
(b) The Beneficiary agrees that the Obligations of the Guarantor and the
Secured Money secured by this Guarantee and Indemnity are expressly
and strictly limited at all times to a maximum principal amount not
exceeding US $1,000,000 together with interest, fees, and
enforcement costs which the Guarantor is from time to time liable to
pay to the Beneficiary under a Transaction Document.
3. PRESERVATION OF GUARANTEE AND INDEMNITY
3.1 PRINCIPAL OBLIGATION
Each obligation of the Guarantor hereunder constitutes a principal and not
a secondary or ancillary obligation of the Guarantor to the intent that
any limitation on the liability of a Guarantor which would otherwise arise
by reason of its status as a guarantor or co-guarantor is hereby
negatived.
3.2 ABSOLUTE LIABILITY
The liability of the Guarantor hereunder shall be absolute and shall not
be subject to the execution of this Guarantee and Indemnity, any
Transaction Document (or any document that but for such execution would be
a Transaction Document) or any other instrument or document by any person,
and shall not be subject to the performance of any condition precedent or
subsequent between or amongst any person or persons including without
limiting the generality of the foregoing, between any Relevant Person and
the Beneficiary or amongst any 2 or more Relevant Persons.
3.3 UNCONDITIONAL LIABILITY
The liability of the Guarantor hereunder shall not be affected by any act,
omission, matter or thing whatsoever that would otherwise operate in law
or in equity to reduce or release the Guarantor from such liability,
including without limiting the generality of the foregoing, any of the
following:
5.
(a) (EVENT OF INSOLVENCY): the occurrence prior hereto or at any time
hereafter of any Event of Insolvency in relation to any Relevant
Person;
(b) (DISTRIBUTIONS): the receipt by the Beneficiary of any payment,
dividend or distribution after any Event of Insolvency in relation
to any Relevant Person;
(c) (EVENT OF DEFAULT): the occurrence of any Event of Default;
(d) (INVALIDITY, ETC.): this Guarantee and Indemnity, any Transaction
Document, any other instrument or transaction or any other
obligation or liability that would otherwise form part of the
Obligations being or becoming illegal, invalid, void, voidable or
unenforceable by reason of any past, present or future statute,
matter, act or omission by any person or by reason of the operation
of any past, present or future law or principle of equity;
(e) (NEW GUARANTORS): the Beneficiary accepting from any person any
guarantee, indemnity or contract of suretyship for the performance
of the whole or any part of the Obligations;
(f) (TIME OR INDULGENCE): the Beneficiary agreeing with any Relevant
Person to grant time, waiver or other indulgence or concession to,
or to make any composition or compromise with, that Relevant Person
or any other Relevant Person;
(g) (FORBEARANCE): the Beneficiary forbearing or neglecting to exercise
any remedy or right it has for the enforcement of this Guarantee and
Indemnity, any Transaction Document or any other obligation or
liability forming part of the Obligations;
(h) (LACHES, ETC.): any laches, acquiescence or other act, neglect,
default, omission or mistake by the Beneficiary;
(i) (REPUDIATION): the determination, rescission, repudiation or
termination, or the acceptance of any of the foregoing, by the
Beneficiary or any Relevant Person of this Guarantee and Indemnity,
any Transaction Document or any other obligation or liability
forming part of the Obligations;
(j) (VARIATION): any variation, whether by way of insertion, deletion,
modification, novation or otherwise to this Guarantee and Indemnity,
any Transaction Document or any other obligation or liability
forming part of the Obligations, whether or not such variation is
substantial or material or imposes any additional liability upon or
is onerous on any Relevant Person including, without limiting the
generality of the foregoing, any extension of the term or increase
in the limit for, or imposition of any condition or variation in the
rate of interest in respect of, advances or financial accommodation
to the Debtor;
(k) (RELEASE): the full, partial or conditional release or discharge,
whether before or after any demand has been made on the Guarantor
hereunder by the Beneficiary or by operation of law of any Relevant
Person or any other
6.
person from this Guarantee and Indemnity, any Transaction Document
or any other obligation or liability forming part of the
Obligations;
(l) (SECURITY PROPERTY): the release of any property from any Security
or the substitution of any property in place of any other property
now or hereafter the subject of a Security;
(m) (SECURITIES): the Beneficiary wasting, destroying, abandoning,
prejudicing or not perfecting, maintaining, preserving, enforcing or
realising or negligently or not bona fide enforcing or realising any
Security;
(n) (LOSS OF SECURITIES): the failure to obtain any Security or the
loss or impairment of any Security by operation of law or otherwise
(whether or not the same is in breach of an express or implied
condition to obtain or preserve such Security or in breach of any
equitable duty which might otherwise have been imposed upon the
Beneficiary);
(o) (PRIORITY OF SECURITIES): the Beneficiary agreeing to any order of
priorities with respect to any Security or to any variation or
surrender of any then previously agreed order of priority;
(p) (ACCOUNTS): the opening or operation of any new account with the
Beneficiary by any Relevant Person;
(q) (CHANGE OF CONSTITUTION): any change in membership, whether by
death or retirement of an existing member, admission of a new member
or otherwise, in the place of business or in the name of, any
partnership, firm or association in which any Relevant Person is a
member;
(r) (TRANSFER): the transfer or assignment of the benefit of any
Transaction Document or any other obligation or liability forming
part of the Obligations; or
(s) (DISCLOSURE): any failure by the Beneficiary to disclose to the
Guarantor any fact, circumstance, event or thing known to, or which
ought to have been known by, the Beneficiary relating to or
affecting any Relevant Person at any time prior to or during the
currency of this Guarantee and Indemnity, whether prejudicial or not
to the rights and liabilities of the Guarantor hereunder or under
any Transaction Document and whether or not the Beneficiary was
under a duty to disclose such circumstance, event or thing to the
Guarantor or any other Relevant Person.
(t) (ADMINISTRATION): the provisions of section 440J of the Corporations
Law so operating as to prevent or delay;
(i) the enforcement of this Guarantee against any Guarantor other
than a Guarantor in respect of whose liability the section
applies; and/or
(ii) any claim for contribution against any Guarantor.
7.
3.4 NO OBLIGATION TO GAIN CONSENT
Nothing herein shall be construed as a requirement that the Guarantor
consent to or be made aware of any event referred to in clause 3.3, any
transaction between the Beneficiary and any one or more Relevant Persons
or any particulars concerning any obligation or liability that forms part
of the Obligations.
3.5 NO MARSHALLING
The Beneficiary shall be under no obligation to marshal or appropriate in
favour of any Guarantor or to exercise, apply, transfer or recover in
favour of any Guarantor any Security or any funds or assets that the
Beneficiary holds, has a claim upon, or is entitled to receive.
3.6 VOID OR VOIDABLE TRANSACTIONS
If any claim is upheld, conceded or compromised such that a transaction
affecting in any way the Obligations is void or voidable under any law
relating to bankruptcy, insolvency or liquidation:
(a) (RESTITUTION OF RIGHTS): the Beneficiary shall forthwith upon such
claim being upheld, conceded or compromised become entitled against
the Guarantor to all such rights in respect of the Obligations as it
would have had if the transaction or so much thereof as is held or
conceded to be void or voidable or is foregone on compromise had not
taken place;
(b) (RESTORE BENEFICIARY'S POSITION): the Guarantor shall upon such
claim being upheld, conceded or compromised take all steps and sign
all such documents as may be necessary or convenient to restore to
the Beneficiary any Security held by it from the Guarantor
immediately prior to such transaction;
(c) (COSTS AND EXPENSES): in any such case, notwithstanding anything
herein contained, there shall be recoverable by the Beneficiary from
the Guarantor all costs and expenses (including legal costs and
expenses as between solicitor and own client) incurred by the
Beneficiary in or in connection with any negotiations or proceedings
relating to any such claims as aforesaid; and
(d) (INDEMNITY): the Guarantor shall indemnify and keep indemnified the
Beneficiary against any failure by the Debtor to pay all or any part
of the Obligations at the time or times such Obligations should have
been paid apart from the upholding, concession or compromise of such
claim.
3.7 INSOLVENCY
The Guarantor shall not lodge any proof of debt or similar claim on the
occurrence of an Event of Insolvency in relation to any Relevant Person in
competition with the Beneficiary and the Guarantor irrevocably authorises
the Beneficiary to prove as its attorney for all money howsoever arising
which it may be entitled to from that Relevant Person and to retain and to
carry to a suspense account and appropriate at the discretion of the
Beneficiary any amounts so received until with the aid thereof the
8.
Beneficiary has been paid 100 cents in the dollar in respect of the
indebtedness of the Debtor or the Guarantor (as the case may be).
3.8 NO SET-OFF, COUNTERCLAIM, ETC.
The liability of the Guarantor hereunder shall not be reduced or avoided
by any defence, set-off or counterclaim available to any other Relevant
Person against the Beneficiary.
3.9 RESTRICTION ON GUARANTOR'S DEALINGS
The Guarantor shall not without the Beneficiary's prior written consent
(which need not be given until, inter alia, the Guarantor has directed
payment of the proceeds therefrom to the Beneficiary in reduction of the
Guarantor's actual or contingent liability hereunder):
(a) (NO PROCEEDINGS): institute any proceedings against any other
Relevant Person; or
(b) (NO ENFORCEMENT OF ENCUMBRANCES): enforce any Encumbrance now or
hereafter held by it either alone or with others in respect of any
such liability as aforesaid.
3.10 RELEASE OF RELEVANT PERSON
Notwithstanding any presumption or principle of law to the contrary, the
Beneficiary may, in relation to any Relevant Person, enter into a covenant
not to ▇▇▇, issue process, sign judgment and execute or commence
proceedings for the bankruptcy or liquidation of any one or more of such
resultant judgment debtors, participate in any official management scheme
of arrangement or reconstruction, prove in any bankruptcy or liquidation
and do any other act, matter or thing in respect of that Relevant Person's
liability without thereby in any way impairing or reducing the liability
of any Guarantor or other Guarantor (as the case may be) to the
Beneficiary under this Guarantee and Indemnity.
3.11 CONDITIONS PRECEDENT UNDER TRANSACTION DOCUMENT
The Beneficiary may, in its absolute discretion, waive, dispense with or
accept such evidence as it sees fit in relation to the satisfaction of any
condition precedent contained in any Transaction Document or otherwise for
the grant of any advances or financial accommodation to or for the account
of, the Debtor, and the Guarantor's liability to the Beneficiary hereunder
shall not be affected or in any way impaired by any exercise by the
Beneficiary of such discretion.
3.12 CLAIM ON THE GUARANTOR
The Beneficiary shall not be required to make any claim or demand on the
Debtor or on any other Relevant Person or to enforce any Transaction
Document or any other right, power or remedy against any Relevant Person
before making any demand or claim upon any Guarantor hereunder.
9.
3.13 SUBROGATION
The Guarantor will not seek the transfer to it of any Security which is
subject to an agreed order of priority in the Beneficiary's hands pursuant
to any right of subrogation, unless and until it has entered into a deed
under which it undertakes to be bound by the priority affecting such
Security with the other parties to such agreed order of priority.
3.14 NO REPRESENTATION BY BENEFICIARY ETC.
The Guarantor acknowledges that it has not entered into this Guarantee and
Indemnity as a result of any representation, promise, statement or
inducement to the Guarantor by or on behalf of the Beneficiary, any
Relevant Person or any other person.
3.15 GENERAL WAIVER BY GUARANTOR
The Guarantor waives all rights inconsistent with the provisions of this
Guarantee and Indemnity, including all rights as to contribution,
indemnity or subrogation which it might otherwise be entitled to claim and
enforce.
4. REPRESENTATIONS AND WARRANTIES
4.1 CORPORATE REPRESENTATIONS AND WARRANTIES
The Guarantor or, if there is more than one Guarantor, each Guarantor that
is or purports to be a body corporate hereby further represents and
warrants to the Beneficiary that:
(a) (DUE INCORPORATION): it is duly incorporated and has the corporate
power to own its property and to carry on its business as is now
being conducted;
(b) (MEMORANDUM AND ARTICLES): the execution, delivery and performance
of this Guarantee and Indemnity does not violate the Memorandum and
Articles of Association of the Guarantor and, if the Guarantor is
listed on the Australian Stock Exchange Limited or its subsidiaries
or on any other stock exchange, the listing (or equivalent)
requirements thereof;
(c) (CORPORATE POWER): it has the power, and has taken all corporate
and other action required, to enter into this Guarantee and
Indemnity and to authorise the execution and delivery of this
Guarantee and Indemnity and the performance of its obligations
hereunder; and
(d) (FILINGS): it has filed all corporate notices and effected all
registrations with the Australian Securities Commission or similar
office in its jurisdiction of incorporation and in any other
jurisdiction as required by law and all such filings and
registrations are current, complete and accurate.
4.2 REPRESENTATIONS AND WARRANTIES REPEATED
Each representation and warranty contained in the preceding clauses of
this clause 4 shall be repeated on each day whilst any money the payment
or repayment of which form part of the Obligations remain outstanding
(whether or not then due for payment)
10.
with reference to the facts and circumstances then subsisting, as if made
on each such day.
5. PAYMENTS
5.1 ON DEMAND
Unless otherwise provided herein, all money payable hereunder by the
Guarantor shall be paid on demand from the Beneficiary in immediately
available funds to the account, and in the manner, notified from time to
time by the Beneficiary to the Guarantor.
5.2 PAYMENT IN GROSS
All money received or recovered by the Beneficiary on account of the
Obligations shall be treated as payments in gross.
5.3 APPROPRIATION OF PAYMENTS
The Beneficiary may appropriate any money paid to it by any Relevant
Person under this Guarantee and Indemnity or any Transaction Document in
such manner and at such times as the Beneficiary in its absolute
discretion determines.
5.4 INTEREST
(a) The Guarantor shall pay to the Beneficiary interest on any moneys
owing hereunder for the period that such moneys remain unpaid:
(i) at the rate designated in the Loan and Security Agreement
entered into between the Beneficiary and the Debtor on 17
November 1995 (as amended); or
(ii) if such rate cannot be ascertained, at the Specified Rate.
(b) Any interest payable shall be calculated on daily balances and shall
accrue from day to day and be payable on the earlier of demand by
the Beneficiary and the last day of each calendar month and if
unpaid shall itself attract interest as herein provided.
5.5 MERGER
If the liability of the Guarantor to pay to the Beneficiary any money
hereunder becomes merged in any judgment or order then as an independent
obligation the Guarantor shall pay interest on the amount of such money at
the rate which is the higher of that payable hereunder and that fixed by
or payable under such judgment or order.
5.6 NO SET-OFF OR DEDUCTION
All payments by the Guarantor under this Guarantee and Indemnity shall be
free of any set-off or counterclaim and without deduction or withholding
for any present or future Taxes unless the Guarantor is compelled by law
to deduct or withhold the
11.
same, in which event the Guarantor shall pay to the Beneficiary such
additional amounts necessary to enable the Beneficiary to receive, after
all deductions and withholdings for such Taxes, a net amount equal to the
full amount which would otherwise have been payable hereunder had no such
deduction or withholding been required to be made.
5.7 CURRENCY
Each amount payable hereunder:
(a) if it relates to given Obligations, is payable in the currency in
which such given Obligations are denominated; and
(b) otherwise is payable in the lawful currency from time to time of the
Commonwealth of Australia.
5.8 CURRENCY INDEMNITY
If a judgment or an order is rendered by any court or tribunal for the
payment of any amount owing to the Beneficiary pursuant to this Guarantee
and Indemnity or in relation to any other instrument or transaction
incidental to or contemplated by this Guarantee and Indemnity or for the
payment of damages in respect to any breach of this Guarantee and
Indemnity, and such judgment or order is expressed in a currency
("JUDGMENT CURRENCY") other than in the currency payable by the Guarantor
hereunder ("AGREED CURRENCY"), the Guarantor shall indemnify and keep
indemnified the Beneficiary against any deficiency in the amount received
by the Beneficiary in the Agreed Currency arising or resulting from any
variation as between:
(a) the rate of exchange at which the Agreed Currency is converted to
the Judgment Currency for the purposes of such judgment or order;
and
(b) the rate of exchange at which the Beneficiary is able to purchase
the Agreed Currency with the amount of the Judgment Currency
actually received by the Beneficiary,
and such indemnity shall constitute a separate and independent obligation
of the Guarantor and shall continue in full force and effect
notwithstanding any such judgment or order.
6. EXPENSES AND STAMP DUTY
6.1 EXPENSES
The Guarantor shall on demand reimburse the Beneficiary for, and keep the
Beneficiary indemnified against, all expenses including reasonable legal
costs and disbursements (on a solicitor/own client) basis incurred by the
Beneficiary in connection with:
(a) (PREPARATION): the preparation and execution of this Guarantee and
Indemnity and any subsequent consent, agreement, approval or waiver
hereunder or amendment hereto; and
12.
(b) (ENFORCEMENT): the enforcement, attempted enforcement or
preservation of any rights under this Guarantee and Indemnity, any
Transaction Document, or arising in respect of any other obligations
or liabilities forming part of the Obligations, including without
limitation, any expenses incurred in the evaluation of any matter of
material concern to the Beneficiary.
6.2 STAMP DUTIES
The Guarantor shall:
(a) (PAYMENT OF ALL DUTIES): pay all stamp, loan transaction,
registration and similar Taxes, including fines and penalties,
financial institutions duty and debits tax, which may be payable to
or required to be paid by any appropriate authority or determined to
be payable in connection with the execution, delivery, performance
or enforcement of this Guarantee and Indemnity or any payment,
receipt or other transaction contemplated herein; and
(b) (INDEMNITY): indemnify and keep indemnified the Beneficiary against
any loss or liability incurred or suffered by it as a result of the
delay or failure by the Guarantor to pay such Taxes.
7. ASSIGNMENTS
7.1 ASSIGNMENTS BY THE BENEFICIARY
The Beneficiary may at any time assign or otherwise transfer all or any
part of its rights hereunder to any other bank or financial institution
and may disclose to a proposed assignee or transferee any information in
the possession of the Beneficiary relating to the Guarantor.
7.2 ASSIGNMENTS BY THE GUARANTOR
The Guarantor shall not assign any of its rights hereunder without the
prior written consent of the Beneficiary.
8. GOVERNING LAW AND JURISDICTION
8.1 GOVERNING LAW
This Guarantee and Indemnity shall be governed by and construed in
accordance with the laws of Queensland.
8.2 JURISDICTION
(a) (ACCEPTANCE OF JURISDICTION): The Guarantor irrevocably submits to
and accepts, generally and unconditionally, the non-exclusive
jurisdiction of the courts and appellate courts of Queensland with
respect to any legal action or proceedings which may be brought at
any time relating in any way to this Guarantee and Indemnity.
13.
(b) (NO OBJECTION TO INCONVENIENT FORUM): The Guarantor irrevocably
waives any objection it may now or in the future have to the venue
of any such action or proceedings and any claim it may now or in the
future have that any such action or proceedings have been brought in
an inconvenient forum.
9. MISCELLANEOUS
9.1 CERTIFICATE OF BENEFICIARY
A certificate in writing signed by an officer of the Beneficiary
certifying the amount payable by the Debtor or the Guarantor to the
Beneficiary or stating any other act, matter or thing relating to this
Guarantee and Indemnity, any Transaction Document or any other obligations
or liabilities forming part of the Obligations, shall be conclusive and
binding on the Guarantor in the absence of manifest error on the face of
the certificate.
9.2 NOTICES
Every notice or other communication of any nature whatsoever required to
be given, served or made under or arising from this Guarantee and
Indemnity;
(a) shall be in writing in order to be valid;
(b) shall be sufficient if executed by the party giving, serving or
making the same or on its behalf by any attorney, director,
secretary, other duly authorized officer or solicitor of such party;
(c) shall be deemed to have been duly given, served or made in relation
to a person if it is delivered or posted by prepaid post to the
address, or sent by telex or facsimile to the number of that person
set out herein (or at such other address or number as may be
notified in writing by that person to the other parties from time to
time); and
(d) shall be deemed to be given, served or made:
(i) (in the case of prepaid post) on the fifth day after the date
of posting;
(ii) (in the case of telex) on receipt by the sender of the
recipient's answer back code and number;
(iii) (in the case of facsimile) on receipt of a transmission report
confirming successful transmission; and
(iv) (in the case of delivery by hand) on delivery.
9.3 CONTINUING OBLIGATION
This Guarantee and Indemnity shall be a continuing obligation
notwithstanding any termination by the Guarantor, settlement of account,
intervening payment, express or implied revocation or any other matter or
thing whatsoever, and shall continue to entitle the Beneficiary to the due
and punctual performance of all the Obligations and any contingent
liability for advances or other financial accommodation to or for the
account of the Debtor made after such termination, settlement of account,
payment,
14.
revocation or other matter or thing until a final discharge thereof has
been given to the Guarantor.
9.4 DISCHARGE
Any settlement or discharge between the Guarantor and the Beneficiary
shall be conditional upon any security or payment given or made to the
Beneficiary by any Relevant Person or any other person in relation to the
Obligations not being avoided, repaid or reduced by virtue of any
provision or enactment relating to bankruptcy, insolvency or liquidation
for the time being in force. If any such security or payment is so
avoided, repaid, or reduced, the Beneficiary shall be entitled to recover
the value or amount of such security or payment avoided, repaid or reduced
from the Guarantor subsequently as if such settlement or discharge had not
occurred.
9.5 FURTHER ASSURANCE
The Guarantor shall immediately on demand by the Beneficiary and at the
entire cost and expense of the Guarantor perform all such acts and execute
all such agreements, assurances and other documents and instruments as the
Beneficiary reasonably requires to perfect or improve the rights and
powers afforded, created, or intended to be afforded or created, by this
Guarantee and Indemnity.
9.6 SEVERABILITY OF PROVISIONS
Any provision of this Guarantee and Indemnity which is illegal, void or
unenforceable shall be ineffective to the extent only of such illegality,
voidness or unenforceability without invalidating the remaining
provisions.
9.7 REMEDIES CUMULATIVE
The rights and remedies conferred by this Guarantee and Indemnity upon the
Beneficiary are cumulative and in addition to all other rights or remedies
available to the Beneficiary by law or by virtue of any Transaction
Document.
9.8 WAIVER
A failure to exercise or enforce or a delay in exercising or enforcing or
the partial exercise or enforcement of any right, remedy, power or
privilege hereunder by the Beneficiary shall not in any way preclude or
operate as a waiver of any further exercise or enforcement thereof or the
exercise or enforcement of any other right, remedy, power or privilege
hereunder or provided by law.
9.9 CONSENTS AND APPROVALS
Where any act, matter or thing hereunder depends on the consent or
approval of the Beneficiary, then unless expressly provided otherwise
herein, such consent or approval may be given or withheld in the absolute
and unfettered discretion of the Beneficiary and may be given subject to
such conditions as the Beneficiary thinks fit in its absolute and
unfettered discretion.
15.
9.10 WRITTEN WAIVER, CONSENT AND APPROVAL
Any waiver, consent or approval given by the Beneficiary under this
Guarantee and Indemnity shall only be effective and shall only bind the
Beneficiary if it is given in writing, or given verbally and subsequently
confirmed in writing, and executed by the Beneficiary or on its behalf by
an officer for the time being of the Beneficiary.
9.11 TIME OF ESSENCE
Time is of the essence in respect of the Guarantor's obligations
hereunder.
9.12 MORATORIUM LEGISLATION
To the fullest extent permitted by law, the provisions of all legislation
whether existing now or in the future operating directly or indirectly:
(a) to lessen or otherwise to vary or affect in favour of the Guarantor
any obligation under this Guarantee and Indemnity; or
(b) to delay or otherwise prevent or prejudicially affect the exercise
of any rights or remedies conferred on the Beneficiary under this
Guarantee and Indemnity,
are hereby expressly waived, negatived and excluded.
9.13 DEBIT ACCOUNTS AND SET-OFF
The Guarantor authorises the Beneficiary to apply without prior notice any
credit balance whether or not then due to which the Guarantor or Related
Body Corporate is at any time entitled on any account at any office of the
Beneficiary, in or towards satisfaction of any sum then due and unpaid
from the Guarantor to the Beneficiary under this Guarantee and Indemnity,
or on any other account whatsoever. The Guarantor further authorises the
Beneficiary without prior notice to set-off any amount owing whether
present or future, actual, contingent or prospective and on any account
whatsoever by the Beneficiary to the Guarantor or Related Body Corporate
against any liability whether present, future, actual, contingent or
prospective of the Guarantor to the Beneficiary hereunder or on any other
account whatsoever. The Beneficiary shall not be obliged to exercise any
of its rights under this clause 10.13, which shall be without prejudice
and in addition to any right of set-off, combination of accounts, lien or
other right to which it is at any time otherwise entitled whether by
operation of law, contract or otherwise.
9.14 BINDING ON EACH SIGNATORY
This Guarantee and Indemnity shall bind each of the signatories hereto
notwithstanding that any one or more of the named parties hereto does not
execute this Guarantee, that there is any invalidity, forgery or
irregulatory touching any execution hereof or that this Guarantee and
Indemnity is or becomes unenforceable, void or voidable against any such
named party.
16.
9.15 COUNTERPARTS
This Guarantee and Indemnity may be executed in a number of counterparts
and all such counterparts taken together shall be deemed to constitute one
and the same instrument.
EXECUTED as a deed.
THE COMMON SEAL of )
TSW INTERNATIONAL PTY LTD ) [SEAL]
ACN 062 583 528 was affixed by the )
authority of the Board of Directors in the )
presence of:
/s/ Bronwyn ▇▇▇▇▇▇▇▇ Heffensetz-▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------- --------------------------------
(Signature of Secretary/Director) (Signature of Director)
Bronwyn ▇▇▇▇▇▇▇▇ Heffensetz-▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------- --------------------------------
(Name of Secretary/Director in Full) (Name of Director in Full)
17.