EXHIBIT 10.46
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[LOGO] REVELATE
LIMITED
10 April, 2002
The Directors
Ignition Entertainment Limited
000-000 Xxxxxxx Xxxx
Xxxxxxx Xxxxx
Xxxxx XX0 0XX
Dear Sirs,
CONFIRMING AND TRADE FINANCE FACILITY
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We, Revelate Limited, ("Revelate") agree to make available to you IGNITION
ENTERTAINMENT LIMITED ("the Buyer"), a confirming facility subject to the terms
and conditions set out herein. Under the terms of this facility, Revelate will
act as agent for the buyer in the purchase of goods on the Buyer's behalf and
will provide its confirmation to the seller of payment of the purchase price of
the goods.
1 CONDITIONS PRECEDENT
The following Conditions shall be satisfied before the utilisation of the
facility
1.1 the Buyer shall enter into the security documents detailed in the
First Schedule hereto
1.2 the Buyer shall provide certified copies of
1.2.1 memorandum and articles of association or constitution documents (if
applicable);
1.2.2 board resolutions authorising the Buyer to enter into this Agreement
and all agreements and security documents mentioned herein;
1.2.3 its last audited account; and
1.2.4 its latest management accounts ;
1.3 the Buyer shall provide evidence of the trade credit insurance that it
has in place;
2 THE FACILITY
The facility is a revolving facility and the amount of the facility
available at any time, subject to the terms and conditions hereof, shall be up
to a maximum amount of (POUND)1,000,000. Such amount shall be calculated by
reference to amounts paid out or agreed to be paid out by Revelate to suppliers
of goods. This will be restricted to 60% of the order value of the product,
unless pre-agreed with Revelate.
3 PROCEDURE
3.1 When the Buyer wishes to use the facility, it shall give details of
the proposed transaction to Revelate. The details shall be given by written
notice ("the Buyer's Notice") and shall specify:
3.1.1 goods
3.1.2 supplier
3.1.3 terms for purchase
3.1.4 shipping instructions
3.1.5 insurance
3.1.6 copy of a confirmed order from the buyers customers
3.1.7 copy of approval from Sony, Nintendo (games platform manufacturer)
etc to publish a specific video game for which trade finance is required
and shall be sent to Revelate together with a proforma invoice.
3.2 If Revelate approves the transaction on the terms set out in the
Buyer's Notice, it shall notify the Buyer and confirm in writing its agreement
that the transaction will be entered into under this facility. Revelate will
then:
3.2.1 confirm the order for the goods in accordance with the Buyer's
Notice on the terms of the attached order form;
3.2.2 advise the Buyer thereof in writing;
3.2.3 be responsible for payment to the supplier of the purchase price for
the goods by opening a letter of credit or issuing an order confirmation.
3.3 The Buyer shall
3.3.1 be responsible for the selection of the goods; and
3.3.2 be responsible for obtaining all export licences and foreign
exchange approvals.
3.4 The Buyer agrees that Revelate will not be a party to or incur any
liability in respect of any contract between the Buyer and the supplier other
than procuring payment to the supplier and Revelate is not to be made a party to
any arbitration or litigation relating thereto.
4 PAYMENT, INTEREST COMMISSION AND OTHER CHARGES
4.1 The Buyer undertakes
4.1.1 to reimburse Revelate all sums expended by it under the terms
hereof, together with all fees, commission and other sums payable to it in
accordance with the terms thereof; and
4.1.2 to duly discharge and indemnify Revelate for all value added tax,
taxes, duties, commission and other payments whatsoever payable or claimed to be
payable by Revelate in relation to this facility, all goods purchased thereunder
and the services provided hereunder (other than corporation tax payable to
Revelate on its profits);
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4.2 The maximum repayment term from the date of Revelate's payment to any
supplier shall be Nil. Payment will be secured through DCD Factors Plc or by
promissory notes, bills of exchange drawn by Revelate in US Dollars or other
currencies as agreed between the Buyer and Revelate through the Buyer's bankers
namely
Barclays Bank Plc
P O Xxx 000
00 Xxxxxxx Xxxxxx
Xxxxxx, XX0X 0XX
4.3 Interest on all amounts outstanding hereunder will be payable by the
Buyer to Revelate at a rate of 3 % over UK Bank Base Rate.
4.4 Any amounts remaining unpaid after the due date for payment will be
subject to default interest payable by the Buyer to Revelate at the rate
referred to in 4.3.
4.5 The Buyer will pay to Revelate a facility fee of(pound)500.00.
4.6 The Buyer will pay to Revelate a confirming commission calculated at a
rate of 2.0% of the total disbursements made on behalf of the buyer.
4.7 All the following charges will be made for the buyer's account and
will be included in the bills of exchange drawn by Revelate
4.7.1 bank charges;
4.7.2 letter of credit fees;
4.7.3 postage and all other xxxxx disbursements.
4.8 All legal costs incurred by the Buyer and Revelate in relation to this
facility shall be payable by the Buyer.
4.9 All payments to Revelate shall be made without set off or counterclaim
and without deduction for and free from any taxes or other deductions whatsoever
unless the Buyer is compelled by law to make any such deduction. In that event,
the Buyer shall pay such additional amounts as may be necessary in order that
the net amounts received by Revelate after such deduction shall equal the
amounts which would have been received in the absence of such deduction or
withholding.
5 GENERAL CONDITIONS
5.1 The Buyer shall be deemed on the date hereof and at the time of
service on Revelate of any notice under Clause 3.1 above hereunder to have
represented and/or warranted to Revelate in the terms set out in the Second
Schedule hereto.
5.2 The Buyer shall provide to Revelate within 6 months of each of its
financial year ends a full set of its annual accounts.
5.3 The Buyer hereby undertakes to indemnify and keep indemnified Revelate
and its employees, successors and assigns from and against any and all loss,
damage or liability, whether criminal or civil, and legal fees and costs
incurred by Revelate in the course of acting for the Buyer hereunder unless
directly resulting from the wilful or negligent failure of Revelate to perform
its obligations under this Agreement.
5.4 This facility can be terminated immediately upon written notice by
either party. On termination Revelate reserves the right by notice in writing to
require immediate repayment of all sums payable to it by the Buyer, but subject
thereto termination shall not affect any transaction which Revelate has agreed
will be entered into under this facility and the facility shall continue in
relation thereto.
5.5 Each party shall from time to time upon the request of the other party
execute any additional document and do any other acts or things which may
reasonably be required to give effect to the purposes of this Agreement.
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5.6 The waiver, forbearance or failure of a party in insisting in any one
or more instances upon the performance of any provision of this Agreement shall
not be construed as a waiver or relinquishment of that party's rights to future
performance of such provision and the other party's obligation in respect of
each performance shall continue in full force and effect.
5.7 The parties acknowledge that this Agreement and the agreements
referred to herein contain the whole agreement between the parties and that any
prior agreements are cancelled.
5.8 The terms and conditions of this Agreement may not be amended or
modified except with written agreement between the Buyer and Revelate.
5.9 Neither party shall be liable for delay in performing of failure to
perform obligations if the delay or failure results from events or circumstances
outside its reasonable control. Such delay or failure shall not constitute a
breach of this agreement and the time for performance shall be extended by a
period equivalent to that during which performance is so prevented provided that
nothing else in this clause shall be taken to limit or prevent the exercise by
either party of its rights of termination hereunder.
5.10 This facility is personal to the Buyer and the Buyer may not assign
its rights or obligations hereunder within the prior written consent of
Revelate. Revelate may freely assign all or any of its rights hereunder without
first obtaining the consent of the Buyer.
5.11 All notices and other communications hereunder shall be deemed to
have been duly given when delivered, if delivered by messenger during normal
business hours of the recipient when sent, if transmitted by facsimile
transmission (receipt confirmed) during normal business hours of the recipient
or on the third business day following mailing if mailed by certified or
registered mail, postage pre-paid, in each case addressed as follows:
Address : IGNITION ENTERTAINMENT LIMITED, 000-000 XXXXXXX XXXX, XXXXXXX
XXXXX, XXXXX XX0 0XX
Facsimile No.: TO BE ADVISED
5.12 The Buyer hereby irrevocably appoints [name & address of UK service
agents] as its agent for service of process in England in connection with this
Agreement, service upon whom shall be deemed completed whether or not forwarded
to or received by the Buyer. Nothing contained in this Agreement shall affect
the right to serve process in any other manner permitted by law, nor affect the
right to bring proceedings in any other jurisdiction whether in connection with
this Agreement or for the purpose of the enforcement or execution of any
judgements or other rewards obtained against the Buyer in the courts of England,
or as a result of' arbitration proceedings conducted in England.
5.13.1 This Agreement shall be governed by English Law and every
particular, including formation and interpretation and shall be deemed to have
been made in England.
5.13.2 Any proceedings arising out of or in connection with this Agreement
may be brought in any court of competent jurisdiction in London.
5.13.3 The submission by the parties to such jurisdiction shall not limit
the right of Revelate to commence any proceedings arising out of this Agreement
in any other jurisdiction it may consider appropriate.
5.13.4 Any notice or proceedings or other notices in connection with or
which would give effect to any such proceedings may, without prejudice to any
other method of service, be served on any party in accordance with Clause
5.13..3
Please confirm your agreement to the terms hereof by signing the attached
copy of this letter.
Yours faithfully,
_____________________________
AUTHORISED SIGNATORY
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for and on behalf of
REVELATE LIMITED
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We confirm our agreement to the terms set out in this Facility Letter.
Executed as a Deed by
IGNITION ENTERTAINMENT LIMITED
ACTING BY
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/S/ XXXXX XXXXXX
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Name: Xxxxx Xxxxxx Managing Director
/S/ XXXXXX MONNICKDENDAM
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Name: Xxxxxx Monnickendam Director
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FIRST SCHEDULE
SECURITY DOCUMENTS REQUIRED:
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Warranty signed by XXXXXX MONNICKENDAM, XXXXX XXXXXX AND XXXX XXXXXX.
Credit balances maintained on its accounts with DCD Factors Plc held to
the order of Revelate Limited
Debenture registered over the company.
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SECOND SCHEDULE
A The Buyer is a corporation duly organised and existing under the laws of
England with full power to enter into this facility and to accept the financing
hereunder and the Buyer has taken all necessary corporate action to enable it to
execute this facility and to execute or cause to be executed all documents
contemplated herein.
B The Buyer will obtain all necessary import licences, exchange control or
other approvals or authorisations, if any, as are necessary or desirable for the
validity and performance of the transactions to be conducted under this
facility.
C The Buyer's last execution and performance of its obligations hereunder
will not in any way infringe any applicable law, the provisions of its
memorandum and articles of association or constitution or the terms of any other
obligations of the Buyer.
D The Buyer's last published audited accounts present a true and fair view
of its financial condition for the period thereof and there has been no material
adverse change in its business assets or financial conditions since that period.
E There is no litigation or administrative proceedings pending or
threatened before any court or tribunal which might adversely affect the Buyer's
financial condition or operations or its ability to perform its obligations
herein.
F The Buyer's obligation under this facility and any transactions entered
into pursuant to this facility constitute legally valid and binding obligations
of the Buyer enforceable against it according to their terms.
G It is not necessary or advisable under the laws of the countries of
incorporation, residence or commercial operations of the Buyer in order to
ensure the validity, effectiveness, performance and enforceability of this
facility, that the same be filed, registered or recorded in any public office or
elsewhere or that any other instrument relating thereto be filed, registered or
recorded.
H The Buyer is subject generally to suit in the courts of England and
elsewhere and does not have the benefit of immunity on the grounds of
sovereignty or otherwise from suit, judgement, execution or attachment of
property.
I The Buyer will at all times comply and observe all regulations and
restrictions affecting its business and the terms and conditions of any licence,
consent, authorisation or approval in respect thereof and further that it will
at all times comply with any applicable exchange, control and other legislation
and any conditions of any exchange control or other consent, licence, approval
or authorisation relating to the borrowing hereunder.
J The Buyer will form time to time give such information regarding its
trading or business or financial position as Revelate may require.
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