--------------------------
CORPORATE GUARANTEE
--------------------------
by
Invu Plc
Invu Services Limited
Invu International Holdings Limited
in favour of
THE BANK OF SCOTLAND
Bank of Scotland
Security Documentation Team
Specialist Functions Unit
Support Services Division
1st Floor
2 Robertson Avenue
Edinburgh EH11 1PZ
Tel: 0131-346-6109
Fax: 0131-346-6206
<PAGE>
CLAUSES
1. Guarantee
2. Security
3. Account
4. Box right of Set-off and Application of Funds and Currency
5. Release of Guarantor
6. Determination of Guarantor's Liability
7. Claims against Guarantor
8. Demand for Payment and Evidence of Sums Due
9. Waiver of Guarantor's Rights
10. Postponement of Claims
11. Payments without Set-off or Counterclaim
12. More than one Guarantor
13. Primary Obligation
14. Separate Provisions
15. Special Conditions
16. Power of Attorney to Group Parent Company to extend this Guarantee
17. Definitions
18. Governing Law
Schedule 1
Schedule 2
Schedule 3
<PAGE>
IMPORTANT NOTICE: We recommend that you consult your solicitor or other
independent legal adviser before executing this document.
CORPORATE GUARANTEE
To: The Governor and Company of the Bank of Scotland ("BoS")
Definitions are given in Clause 17.
1. Guarantee
1.1 In consideration of BoS granting time, credit and banking facilities
to the Principal, the Guarantor unconditionally guarantees the payment
or discharge of the Secured Liabilities and shall on demand in writing
pay or discharge them to BoS. This Guarantee shall continue until
determined in accordance with the terms of Clause 6.
1.2 The Guarantor's liability under this Guarantee shall not be discharged
or affected by anything that would not have discharged or affected it
if the Guarantor had been a principal debtor instead of a guarantor.
1.3 The Guarantor acknowledges and agrees that this Guarantee and the
rights of set off contained in it shall be a continuing security and
shall extend to cover the ultimate balance due at any time to BoS from
the Principal.
1.4 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 or held by BoS at any time for the discharge and
performance of the Secured Liabilities.
2. Security
2.1 On demand made by BoS at any time, the Guarantor shall secure the
performance of its obligations under this Guarantee by depositing with
BoS such amount, up to the minimum amount of the Secured Liabilities,
as BoS may specify.
2.2 BoS shall have a lien on all securities or other property deeds and
documents of the Guarantor which it bolds from time to time.
2.3 The Guarantor shall, on demand by BoS, execute whatever documents BoS
may require to perfect its security.
3. Account
3.1 If this Guarantee is determined or a demand is made by BoS, then BoS
may open a new account or accounts in the Principal's name. If BoS
does not in fact open a new account in these circumstances, it shall
nevertheless be treated as if it had done so at the time of
determination or demand, and from that time all payments made to BoS
shall be credited or be treated as having been credited to the new
account and shall not reduce the amount of the Secured Liabilities.
3.2 BoS may at any time credit to a separate or suspense account for a
period determined by it any money received from any person under or by
virtue of this Guarantee. If it does so BoS need not apply any of that
money towards the Secured Liabilities and shall remain entitled to
claim the Secured Liabilities in full from the Principal.
4. BoS right of Set-off and Application of Funds and Currency
----------------------------------------------------------
4.1 BoS may at any time, without prior notice to the Guarantor before or
after any demand has been made under this Guarantee:
4.1.1 exercise a right of set-off or retention in respect of all
money at any time standing to the credit of the Guarantor's
account(s) (of whatever nature and/or currency) against
payment of all money at any time owing from the Guarantor to
BoS on any account(s) and funds held following the exercise
of this right of set-off may be held as security for the
Secured Liabilities;
4.1.2 apply all money now or a any time standing to the credit of
the Guarantor's account(s) to a separate
suspense account(s);
4.1.3 apply all money so held in settlement of the Secured
Liabilities;
4.1.4 refuse payment of any cheque, bill or other document where
such payment would reduce the aggregate credit balances of
the Guarantor below the amount of the Secured Liabilities,
or
4.1.5 debit any account of the Guarantor with any money then due
and payable by the Guarantor to BoS under this Guarantee.
4.2 If BoS exercises any right of set-off in respect of any liability of
the Guarantor and that liability or any part of it is in a different
currency from any credit balance against which BoS seeks to set it
off. BoS may use the currency of the credit balance to purchase an
amount in the currency of the liability at the then prevailing spot
rate of exchange and to pay out of the credit balance all costs,
charges and expenses incurred by BoS in connection with that purchase.
5. Release of Guarantor
5.1 Any settlement, discharge or release granted by BoS to the Guarantor
shall be conditional upon no security or payment to BoS by the
Principal or any other person (including without limitation any other
Guarantor) or any other transaction with any such person being
terminated, avoided or reduced by virtue of any applicable law
relating to liquidation, administration or receivership for the time
being in force. If that happens, BoS shall be entitled to recover from
the Guarantor to the full extent of this Guarantee as if the release
had not been given.
5.2 Any liability of the Guarantor under this Clause (whether actual or
contingent) shall be one in respect of which BoS may exercise its
rights under Clause 4.
5.3 Where any security is held by BoS for the liability of the Guarantor
under this Guarantee, BoS will be entitled to retain that security for
such period as BoS in its absolute discretion shall determine after
repayment in full of the Secured Liabilities. If within that period a
petition is presented or a resolution is passed for the winding up or
administration of the Principal (or any Guarantor) BoS may retain its
security for as long as it requires in respect of any liability of the
Guarantor under this Guarantee.
5.4 This Guarantee shall continue to bind the Guarantor notwithstanding
any reconstruction of BoS, the Principal or Guarantor or any
amalgamation which may be effected by BoS, the Principal of Guarantor
with any other person.
6. Determination of Guarantor's Liability
This Guarantee shall be a continuing security for BoS until three months
after receipt by BoS of written notice from the Guarantor to determine this
Guarantee. On expiry of that notice period, the liability of the Guarantor
shall be fixed and the Guarantor shall remain liable for the amount
recoverable from the Principal at that date (including unascertained or
contingent liabilities).
7. Claims against Guarantor
7.1 Before enforcing this Guarantee, BoS shall not be obliged to take any
action or obtain any judgement nor make or file any claim in
bankruptcy, dissolution or winding up of the Principal, nor enforce
any other security held by it.
7.2 BoS need not advise the Guarantor of its dealings with the Principal
or of any default by the Principal of which BoS may have knowledge.
8. Demand for Payment and Evidence of Sums Due
8.1 A demand for payment or any other demand or notice under this
Guarantee may be made or given by any manager or officer of BoS by
letter addressed to the Guarantor and sent by first class post or by
fax transmission to or left at the registered office of the Guarantor
or the Guarantor's existing or last known place of business (or, if
more than one, any one of such places).
8.2 If a demand or notice is sent by post it shall be deemed to have been
made or given at noon on the day following the day the letter was
posted and if by fax will be deemed to have been made or given when
sent provided a transmission report is received.
8.3 In order to prove that a notice or demand has been, served, BoS need
only prove that the notice or demand was properly addressed and posted
or transmitted.
8.4 A certificate by any manager or officer of BoS as to the amount of the
Secured Liabilities or any part of them shall, in the absence of
manifest error, be conclusive and binding on the Guarantor.
9. Waiver of Guarantor's Rights
The Guarantor agrees that its liability under this Guarantee shall not be
reduced, discharged or mitigated by:
9.1 any variation, extension, discharge, compromise, dealing with.
exchange or renewal of any right or remedy which BoS may have now or
in the future from or against the Principal or any other person in
respect of any of the Secured Liabilities;
9.2 any act or omission by BoS or any other person in taking up,
perfecting or enforcing any security or guarantee from or against the
Principal or any other person or the invalidity or unenforceability of
any such security or guarantee;
9.3 any termination, amendment variation, novation or supplement of or to
any document relating to the Secured Liabilities or any exercise by
BoS at its absolute discretion of its rights to refuse, grant,
continue, vary, review, determine or increase any credit or facilities
to the Principal;
9.4 any grant of time. indulgence, waiver or concession to the Principal
or any other person;
9.5 the administration, insolvency, bankruptcy, liquidation, winding-up,
incapacity, limitation, disability, discharge by operation of law or
any change in the constitution, name and style of the Principal or any
Guarantor;
9.6 invalidity, illegality, unenforceability, irregularity or frustration
of the Secured Liabilities or the
obligations of any Guarantor;
9.7 any claim or enforcement of payment from the Principal; or
9.8 any ad or omission which would not have discharged or affected the
liability of the Guarantor had it been a principal instead of a
guarantor or by anything done or omitted by any person which but for
this provision might operate to exonerate or discharge or otherwise
reduce or extinguish any of the Guarantor's liability under this
Guarantee.
10. Postponement of Claims
10.1 This Guarantee shall apply to the ultimate balance of the Secured
Liabilities and until that balance has been discharged in full the
Guarantor shall not be entitled to share in any security held or money
received by BoS on account of the Secured Liabilities.
10.2 Until the Secured Liabilities are discharged in full, the Guarantor
waives all of its rights of subrogation.
10.3 In the event of (1) the winding up, liquidation, administration or
dissolution of the Principal or (2) the enforcement of any security
held by BoS or (3) the appointment of a receiver or administrative
receiver over all or any part of the Principal's undertaking or
assets, the Secured Liabilities shall be deemed outstanding until
actually met in full. BoS will be entitled to claim in the Principal's
winding up, administration or receivership for the full amount of the
Secured Liabilities and to retain the whole of the dividends to the
exclusion of any rights of the Guarantor in competition with BoS until
a claim by BoS is satisfied in full.
10.4 The Guarantor agrees that it shall not without the prior written
consent of BoS take any steps to enforce any right or claim against
the Principal for any money paid by the Guarantor to BoS under this
Guarantee or to prove in the Principal's liquidation for the same or
receive any payment, guarantee, indemnity or security for any rights
the Guarantor may have against the Principal which do not arise from
the giving of this Guarantee, If the Guarantor acts in contravention
of this Clause any benefit received by the Guarantor as a result of
that contravention shall (without prejudice to any other rights BoS
may have against the Guarantor in respect of that breach) be held in
trust for BoS as a continuing security for the Secured Liabilities.
11. Payments without Set-off or Counterclaim
All payments to be made by the Guarantor under this Guarantee shall be
made without set-off or counterclaim and free from any deduction or
withholding for taxation or like charges. If any deduction or
withholding is required by law the Guarantor shall pay to BoS the
additional amount necessary to ensure that BoS receives full payment as
if there bad been no deduction or withholding.
12. More than one Guarantor
12.1 When this Guarantee is executed for two or more parties as Guarantor
the liability of each of them to BoS shall be joint and several.
12.2 BoS may release or discharge any party from this (or any other)
Guarantee or accept any composition from or make any arrangements with
any of them without releasing or discharging any other party.
12.3 Where two or more parties are Guarantor, any notice of determination
under Clause 6 from one of the parties shall not affect the liability
of any other(s) under this Guarantee.
12.4 For the avoidance of doubt, the incapacity or insolvency of any party
shall not discharge or affect the liability of any other(s).
12.5 Until the Secured Liabilities are discharged in full the Guarantor
waves all of its rights of contribution from any co-guarantor.
13. Primary Obligation
As a separate and independent stipulation all sums of money which may not
be recoverable from the Guarantor on the footing of a guarantee whether by
reason of any legal limitation, disability or incapacity on or of the
Principal or any other fact or circumstance and whether known to BoS or not
shall nevertheless be recoverable from the Guarantor as sole or principal
debtor and shall be paid by the Guarantor on demand in writing by BoS.
14. Separate Provisions
14.1 Every provision contained in this Guarantee shall be severable and
distinct from every other provision and if any of the provisions of
this Guarantee or the application of it to any person or circumstance
shall to any extent be or become invalid or unenforceable under the
law of any applicable jurisdiction:
14.1.1 the validity and enforceability of the remaining provisions
of this Guarantee and of the application of that provision
to any other person or circumstance;
14.1.2 the validity and enforceability of that provision and of its
application to that person or circumstance under the law of
any other jurisdiction; and shall not in any way be affected
or impaired thereby;
14.2 This Guarantee shall continue to bind the Guarantor notwithstanding
any reconstruction of BoS or any amalgamation which may be effected by
BoS with any other company or person.
15. Special Conditions
Where Schedule 3 of this Guarantee has been completed the provisions of
that Schedule shall have effect as if they were incorporated in this
Guarantee.
16. Power of Attorney to Group Parent Company to extend this Guarantee
------------------------------------------------------------------
By way of security, the Guarantor irrevocably appoints the first company
named in Schedule 1 to be its attorney in relation to this Guarantee.
17. Definitions
In the interpretation of this Guarantee:
17.1 "Acceding Company" means each company which executes and delivers an
Acceding Guarantee to BoS;
17.2 "Acceding Guarantee" means any Guarantee or Guarantees executed and
delivered to BoS after the date of this Guarantee by any holding
company or subsidiary of a Principal on account of the Secured
Liabilities;
17.3 "BoS" means The Governor and Company of the Bank of Scotland and its
successors and assignees;
17.4 "Guarantee" means this Guarantee which term includes and extends to
any separate or independent stipulation or agreement contained in this
Guarantee, including, for the avoidance of doubt and without
limitation the provisions set in Clause 4 relating to set off;
17.5 "Guarantor" means each company whose name is listed in Schedule 2 and
where any such company is also a Principal the liability under this
Guarantee of such party as Guarantor shall have effect only in
relation to the moneys and liabilities due or incurred to BoS by the
other party or parties comprising the Principal;
17.6 "Principal" means each company (other than a Released Principal) whose
name is listed in paragraph (1) of Schedule 1 or who is or becomes a
Principal in terms of paragraph (2) of Schedule 1 by being an Acceding
Company. Where more than one company is comprised in the term
"Principal" reference to the Principal shall (where the context
admits) mean each and every such company and, where by any agreement
with the Principal and BoS any person assumes all or any part of the
liability of the Principal to BoS in substitution for the Principal,
the Guarantor's liability under this Guarantee shall not be
discharged, reduced or affected, but this Guarantee shall take effect
as if the expression "Principal" included such person;
17.7 "Released Principal" means a Principal released from the Secured
Liabilities by BoS in writing
17.8 "Schedules" means the schedules annexed to and which form part of this
Guarantee.
17.9 "Secured Liabilities" means all or any monies and liabilities which
shall for the time being (and whether on or at any time after demand)
be due, owing or incurred in whatsoever manner by the Principal to BoS
whether actually or contingently and whether incurred solely,
severally or jointly and whether as principal or surety and whether on
account of money advanced, bills of exchange, promissory notes,
guarantees, indemnities or otherwise, including interest, discount,
commission and other lawful charges or expenses which BoS may in the
course of its business charge or incur (including for any advances
made by BoS during the three months' period of notice referred to in
Clause 6 or in relation to any other liability of the Principal to
BoS), together with:
(1) (on a full indemnity basis) all costs and expenses (including
without limitation legal costs) recoverable by BoS from the
Principal;
(2) (on a full indemnity basis) all costs and expenses (including
without limitation legal costs) charged or incurred by BoS in
perfecting or in or about the recovery or attempted recovery of
money due to BoS under this Guarantee, and
(3) interest calculated and accruing daily from demand in accordance
with the usual BoS rates and practice on (1) and (2) above;
17.10 The expressions "holding company", "subsidiary" and "wholly owned
subsidiary" shall have the meanings given to them in Section 736 of
the Companies Act 1985;
17.11 References to this Guarantee and to any provisions of this Guarantee
shall be construed as references to this Guarantee in force for the
time being and as amended, varied, supplemented, substituted or
novated from time to time;
17.12 References to statutes, statutory provisions and other legislation
shall include all amendments, modifications and re-enactments for the
time being in force;
17.13 Words importing the singular are to include the plural and vice
versa;
17.14 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 any state,
whether or not a separate legal entity;
17.15 References to any person are to be construed to include that person's
assignees or transferees or successors in title, whether direct or
indirect;
17.16 Clause headings are for ease of reference only and are not to affect
the interpretation of this Guarantee.
18. Governing Law
This Guarantee shall be governed by and construed according to English law
and the Guarantor submits to the exclusive jurisdiction of the English
courts.
IN WITNESS WHEREOF this Guarantee consisting of this and the six preceding pages
together with the Schedules are executed as follows:
/s/
-----------------------------------
SUBSCRIBED for and on behalf of the said
Invu Plc
Signed by BoS for identification purposes by
David Morgan Director /s/ David Morgan Director
------------------------------ ------------------------------
(Print Full Name). (Signature)
John Agostini. Director/ /s/ J.C. Agostini Director/
------------------------------ -----------------------------
(Print Full Name). Secretary (Signature) Secretary
all together at The Beren, Blisworth Hill Farm, Stoke Road, Blisworth,
Northampton NN7 3D8 on the 18th day of July 2000.
SUBSCRIBED for and on behalf of the said
Invu Services Limited
by
David Morgan Director /s/ David Morgan Director
------------------------------- -----------------------------
(Print Full Name). (Signature)
John Agostini Director/ /s/ J.C. Agostini Director/
------------------------------- ----------------------------
(Print Full Name). Secretary (Signature) Secretary
all together at The Beren, Blisworth Hill Farm, Stoke Road, Blisworth,
Northampton NN7 3D8 on the 18th day of July 2000.
<PAGE>
SUBSCRIBED for and on behalf of the said
Invu International Holdings Limited
by
Director Director
----------------------------- -------------------------------
(Print Full Name). (Print Full Name)
Director/ Director/
----------------------------- -------------------------------
(Print Full Name). Secretary (Print Full Name) Secretary
all together at The Beren, Blisworth Hill Farm, Stoke Road, Blisworth,
Northampton NN7 3D8 on the 18th day of July 2000.
<PAGE>
This is the Schedule 1 referred to in the preceding Corporate Guarantee in
favour of BoS dated 18th July 2000.
<TABLE>
<CAPTION>
SCHEDULE 1
The Principal
---------- ----------------------------- ----------------------------------------------------------- -----------------
<S> <C> <C> <C>
(i) Name of Principal Registered Office Registered
Number
---------- ----------------------------- ----------------------------------------------------------- -----------------
Invu Plc The Beren, Blisworth Hill Farm, Stoke Road, Blisworth, 03375359
Northampton
---------- ----------------------------- ----------------------------------------------------------- -----------------
Invu Services Limited The Beren, Blisworth Hill Farm, Stoke Road, Blisworth, 03319922
Northampton
---------- ----------------------------- ----------------------------------------------------------- -----------------
Invu International Holdings The Beren, Blisworth Hill Farm, Stoke Road, Blisworth, 3340939
Limited Northampton
---------- ----------------------------- ----------------------------------------------------------- -----------------
(ii) and each company which grants an Acceding Guarantee.
---
</TABLE>
<PAGE>
This is the Schedule 2 referred to in the preceding Corporate Guarantee in
favour of BoS dated 18th July 2000.
<TABLE>
<CAPTION>
SCHEDULE 2
The Guarantor
---------- ----------------------------- ----------------------------------------------------------- -----------------
<S> <C> <C> <C>
(i) Name of Guarantor Registered Office Registered
Number
---------- ----------------------------- ----------------------------------------------------------- -----------------
Invu Plc The Beren, Blisworth Hill Farm, Stoke Road, Blisworth, 03375359
Northampton
---------- ----------------------------- ----------------------------------------------------------- -----------------
Invu Services Limited The Beren, Blisworth Hill Farm, Stoke Road, Blisworth, 03319922
Northampton
---------- ----------------------------- ----------------------------------------------------------- -----------------
Invu International Holdings The Beren, Blisworth Hill Farm, Stoke Road, Blisworth, 3340939
Limited Northampton
---------- ----------------------------- ----------------------------------------------------------- -----------------
</TABLE>
<PAGE>
This is the Schedule 3 referred to in the preceding Corporate Guarantee in
favour of BoS dated 18th July 2000.
SCHEDULE 3
Special Conditions
