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EXHIBIT 4.3
COMMERCIAL VARIABLE RATE LOAN
AGREEMENT
We, NATIONAL WESTMINSTER BANK PLC and any person to whom we transfer our rights
or duties under this agreement agree to offer you a loan under the terms and
conditions set out below and on the attached appendix. The first part of the
appendix explains some of the words and phrases used in this agreement.
1 DATE OF OFFER:
2(a) YOUR NAME: Xxxxxxx International Holdings Limited (Company
No. 3407901) whose registered office is at XX Xxx
00, Xxxxxxx Xxxx, Xxxxxxx, Xxxx Xxxxxxxx XX00 0XX.
2(b) YOUR PARENT: Xxxx International (UK) Limited (Company No.
0516171) whose registered office is at c/o Touche
Xxxx & 6 Columbia Centre Market Street Brocknell
Berkshire RG 12 1 Pt.
0 XXXXXXX XXXXXX: Xxxxx Xxxx Xxxxxx Corporate Business Centre, XX
Xxx 0, 0 Xxxxx Xxxx, Xxxxxxxxx, Xxxxxx XXX 0XX.
4 AMOUNT: Up to L.2,550,000 (two million five hundred and
fifty thousand pounds).
5 PURPOSE OF THE LOAN: To fund the purchase of the whole of the issued
share capital of Klippan Limited and associated
costs.
6 PERIOD OF THE LOAN: To 31 March 2003.
7 INTEREST RATE: The rate of interest for each Fixture Period shall be
the aggregate (rounded up to the nearest one-sixteenth per cent) of:
(i) 1.25 per cent per annum;
(ii) LIBOR for such Fixture Period for a corresponding amount on
the first Business Day of such Fixture Period; and
(iii) MLA Costs.
(Please see paragraph 4 of the appendix.)
8 FEE: L.32,750 (thirty two thousand seven hundred and fifty pounds) due
on the date on which you draw the Loan to include our security fees
(but to exclude any out of pocket expenses or expenses incurred in
relation to legal due diligence) in accordance with the terms of this
agreement.
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COMMERCIAL VARIABLE RATE LOAN
9 DRAWING THE LOAN: You must draw the Loan in full in one amount. Any
amount not drawn within 24 hours of the Date of Offer will be cancelled.
10 REPAYMENT: You must have repaid the Loan in full on the last day of the
period shown in tern 6 of this agreement.
Subject always to our rights under paragraph 12 of the appendix, you
will repay the Loan by twenty equal instalments of principal in such
amount as we shall specify, payable every quarter starting on 30 June
1998. (The payment of the final instalment shall be paid together with
all other amounts then outstanding under the Loan).
From the date on which a drawing is first made under the Loan until such
date as you commence your instalments of principal hereunder, you will
pay interest on each Interest Payment Date. When you start making your
repayment instalment we will add on any interest which has accrued but
has not been paid since the last date on which you made an interest
payment.
11 SECURITY:
(a) mortgage debentures by your Parent, Hago Products Limited,
Sowester Limited and Beldray Limited;
(b) first legal mortgage over the freehold premises of Beldray
Limited at Xxxxxxx Xxx, Xxxxx Xxxxxxxx, Xxxxxxx, Xxxx Xxxxxxxx;
(c) first legal mortgage over Sowester's freehold land and warehouse
at Stinsford Road, Poole;
(d) mortgage debentures by you and Klippan Limited;
(e) a composite, cross guarantee by you, your Parent, Hago Products
Limited, Sowester Limited, Beldray Limited and Klippan
Limited;
(f) letters of negative pledge from each of the Overseas
Subsidiaries except Akba Barnsakert and Oy Xxxxxxx XX (except)
in respect of the assets financed by Hire Purchase or leasing to
be agreed with us on an annual basis);
together with any additional documentation in respect of the above
security as we may reasonably require and all in form and substance
satisfactory to us.*
(Items (a), (b) and (c) being the existing security granted in our
favour prior to the Agreement Date and items (d), (e) and (f) above the
"new security".)
12 FINANCIAL AGREEMENTS:
---------
* You undertake to prove that within a reasonable time after Oy Klippan AB
becomes a wholly-owned subsidiary of Klippan Limited, Oy Klippan AB will
execute a negative pledge in favour of us in a similar form to the negative
pledge executed in our favour by Klippan CmbH and Klippan SAKL.
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COMMERCIAL VARIABLE RATE LOAN
You agree to the following:
Please see paragraph 2 of the appendix for an explanation of the words
and phrases used below.
(a) You will not allow TANGIBLE NET WORTH to be less than
L.9,000,000.
(b) You will not allow TOTAL BORROWING to be more than 75% of
TANGIBLE NET WORTH.
(c) You will, not allow CASH GENERATED during each period specified
in Column A below to be less than the percentage of DEBT SERVICE
COSTS specified in Column B below:
COLUMN A COLUMN B
-------- --------
(Minimum Level)
(Agreement date to 31 March 1998) (Not tested)
1 April 1.998 to 31 March 1999 110%
1 April 1,51,99 to 31 Much 2000
and for each successive period of
12 months, thereafter 120%
(d) You will not allow PBIT during each period specified in Column A
below to be less than the percentage of INTEREST PAID specified
in Column B below:
COLUMN A COLUMN B
-------- --------
(Minimum Level)
Financial year to 31 March 1998 350%
1 April 1998 to 31 March 1999 and
for each successive period of 12
months thereafter 375%
(e) You and your Parent will not and each of you will procure that
no other member of the Group will, without our prior written
consent, (such consent not to be unreasonably withheld) either
create, extend or increase any security interest on the whole or
any part of your or the Group's undertaking, property or assets
(including uncalled capital) whether present or future except
for security interests arising in the ordinary course of
trading. Security interest includes (without limitation) liens,
pledges, charges, mortgages or other encumbrances.
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COMMERCIAL VARIABLE RATE LOAN
(f) You will provide us with such financial and other information
relating to you or to the Group as we may reasonably require
including (without limitation) copies of:
(i) the consolidated audited accounts of the Group not later
than 120 days after the end of the financial year to
which they relate;
(ii) management information not later than 21 days after the
end of the quarter to which it relates (to include
profit and loss and balance sheet information on a
consolidated basis and for individual members of the
Group) together with calculations in respect of
financial covenants (where appropriate);
(iii) published quarterly and annual accounts relating to Xxxx
International Corp. not later than 60 and 90 days
respectively after the end of the quarter or financial
year to which they relate;
(iv) management accounts in respect of you and your
Subsidiary Undertakings not later than 21 days after the
end of each month (to include profit and loss and
balance sheet information for individual operating
companies with supporting management commentary
and updated capital expenditure budgets as
appropriate); and
(v) annual budgets and projections for the forthcoming 12
months (to include profit and loss, balance sheet and
cash flow forecasts) within 28 days of the end of the
financial year, for individual members of the Group
and on a consolidated basis.
In order to verify whether you are complying with these covenants, we
will refer to the consolidated, audited, interim or management accounts
of your Parent as we think appropriate. The financial covenant set out
in paragraph (c) shall be tested annually. that set out in paragraph (d)
shall be tested against interim and annual accounts, and those set out
in paragraphs (a) and (b) shall be tested on an ongoing basis.
13 OVERDUE PAYMENTS:
If you do not make any payment under this agreement on the date it is
due, then, without prejudice to our other rights, we will charge,
interest on the overdue amount from the date it was due to the date upon
which we receive payment (as well after as before judgement). This will
be calculated (and compounded in accordance with our normal practice) on
the basis of a year of 365 days and the actual number of days elapsed.
You will pay interest to us at a rate which is equal to the sum of:
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COMMERCIAL VARIABLE RATE LOAN
5% per year; and the costs to us of funding such overdue amount during
such period (as we shall determine in our discretion) expressed as an
annual percentage rate.
Any late payments may be debited to a separate account.
14 EARLY REPAYMENT:
Paragraph 7 of the appendix gives details of how you may ask to repay
the Loan before the specified repayment dates.
15 ENVIRONMENTAL LIABILITIES
Paragraph 21 of the appendix will apply.
APPENDIX
1 AGREEMENT
This appendix forms part of the agreement between us.
If we refer to a paragraph, this will mean a paragraph of this appendix.
If we refer to a term this will mean a term of the agreement.
2 MEANINGS OF WORDS AND PHRASES USED IN THIS AGREEMENT:
"AGREEMENT DATE" means the date on which our offer is accepted in the
way set out in paragraph 3 of the appendix.
"BUSINESS DAY" means a day on which banks in general are open in the
City of London for the transaction of business of the nature set out in
this agreement.
"EVENT OF DEFAULT" means any event specified in paragraph 12 of the
appendix.
"FACILITY ONE" means a facility letter dated 8 December 1994 from us to
your Parent and Beldray Limited offering a facility of L1,500,000 duly
accepted by the addressees on 7 March 1995.
"FACILITY TWO" means a facility letter dated 8 December 1994 from us to
your Parent and Sowester Limited offering a facility of L2,500.000 duly
accepted by the addressees on 7 March 1995.
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COMMERCIAL VARIABLE RATE LOAN
"FINANCE DOCUMENT" means this agreement, any Security, in the case of
any Group member party to Facility One and/or Two, Facilities One
and/or Two (as appropriate) and the side letters to them and any notice
of drawing and any other related document.
"FIXTURE PERIOD" means a period fixed for the calculation of the
applicable interest rate in accordance with paragraph 4.
"GROUP" means you, your Parent and any other Subsidiary Undertakings
from time to time of each of you taken as a whole (and, save where the
context does not admit, any of them individually); (if there are no
Subsidiary Undertakings for the time being, references to the Group
shall be taken to be references to you and the word consolidated in
relation to any accounts or other financial matters shall be ignored.)
"INTEREST PAYMENT DATE" means the last day of each Fixture Period (and
if any Fixture Period is for longer than six months, the day falling six
months after the first day of such Fixture Period).
"LIBOR" means the rate at which sterling deposits are offered to us in
the London Inter-Bank Market.
"LOAN" means the loan facility which we have agreed to provide under the
terms and subject to the, conditions of this agreement and, where
necessary, it will mean all amounts owed under this agreement.
"MLA COSTS" means such costs, if any, as we shall determine to be
necessary to compensate us for complying with any reserve asset and/or
any special deposit or liquidity requirements or other requirements
having the same or similar purpose of the Bank of England or other UK
Government Authority, whether or not such requirements have the force of
law.
"OFFER DATE" is the date shown in term 1 of the agreement. This is the
date on which we make the written offer of the Loan.
"OVERSEAS SUBSIDIARIES" means OY Klippan AB, AKTA Barnsakerhet AB,
Klippan GmbH, Klippan, SARL.
"SECURITY" means, the security shown in term 11 of the agreement.
"SUBSIDIARY UNDERTAKING" means a subsidiary undertaking (as defined by
S.258 of the Companies Act 1985).
"TRANSACTION DOCUMENTS" means the sale and purchase agreement relating
to the acquisition of whole of the issued share capital of Klippan
Limited and any other related document.
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COMMERCIAL VARIABLE RATE LOAN
The following definitions apply to the financial agreements in term 12
of the agreement:
"BORROWINGS" means at any time the aggregate (without double counting)
of the following
(i) the outstanding principal amount of any moneys borrowed by any
member of the Group and any outstanding overdraft debit
balance of any member of the Group, including for the
avoidance of doubt, the outstanding principal amount of any
hire purchase obligations;
(ii) the outstanding principal amount of any debenture, bond,
note, loan, stock or other security of any member of the
Group;
(iii) the outstanding principal amount of the acceptance
under any acceptance credit opened by a bank or other
financial institution in favour of any member of the Group;
(iv) the outstanding principal amount of all moneys owing to a member
of the Group in connection with the sale or discounting of
receivables (otherwise than on a non-recourse basis);
(v) the outstanding principal amount of any indebtedness of any
member of the Group arising from any advance or deferred payment
agreements arranged primarily as a method of raising finance or
financing the acquisition of the asset,
(vi) the capitalised element of indebtedness of any member of in
respect of a finance lease entered into primarily as a method of
raising finance or financing the acquisition of the asset
leased;
(vii) the outstanding principal amount of any indebtedness of any
person of a type referred to in sub-paragraphs (i) - (vi) above
which is the subject of a guarantee, indemnity and/or other form
of assurance against financial loss by any member of the Group.
"CAPITAL EXPENDITURE" means, in respect of any financial period, the
aggregate expenditure of the Group on the purchase of fixed assets (as
determined in accordance with generally accepted United Kingdom
accounting principles (consistently applied)
"CASH GENERATED" means, in relation to the Group, the aggregate of:
(i) PBIT; PLUS
(ii) the aggregate net value of non cash movements (including, but
not
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COMMERCIAL VARIABLE RATE LOAN
limited to, depreciation expense, other provisions and write
backs of a non-cash nature); plus
(iii) the aggregate value of any decrease in net working assets; PLUS
(iv) the proceeds received by any member of the Group from the issue
of new ordinary (or non-redeemable) equity capital;
LESS
(i) tax paid; PLUS
(ii) the aggregate value of any increase in net working assets; PLUS
(iii) an amount equal to the Capital Expenditure by the Group (but not
including the capital amounts of such expenditure funded by hire
purchase or finance leases) during such period less an amount
equal to the net proceeds of disposal of fixed assets during
such period; PLUS
(iv) investments, including acquisitions (and investments in/loans to
Xxxx International Corp. other than of a non-cash nature); PLUS
(v) dividends paid on shares of your Parent (other than redeemable
shares) or in respect of any minority interests; PLUS
(vi) any extraordinary items.
"DEBT SERVICE COSTS" (OR "BORROWING COSTS") means, in respect of any
financial period:
(i) all interest, commission, periodic fees, and other financial
charges payable by any member of the Group during such period in
relation to Borrowings (including the interest element payable
under hire purchase contracts and finance leases); PLUS
(ii) the aggregate amount of all dividend payments on ordinary and
redeemable preference shares (and other redeemable shares) paid;
PLUS
(iii) the aggregate amount of all repayments of Borrowings made by any
member of the Group or due from any member of the Group
(including redemption of any redeemable preference shares)
during such period.
"INTEREST PAID" means all interest, acceptance commission and all other
continuing, regular or periodic costs, charges and expenses in the
nature of interest (whether paid, payable, or capitalised) including,
for the avoidance of doubt, finance charges including, for the avoidance
of doubt, finance charges
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COMMERCIAL VARIABLE RATE LOAN
relating to finance leases and hire purchase obligations.
"PBIT" means, in respect of any period, the profits of the Group for
that period before the deduction of Interest Paid and corporation tax
on the income of the Group payable in respect of any financial year:
(i) excluding extraordinary items under FRS 3;
(ii) excluding interest of whatever nature received by the Group;
(iii) after deduction of any management charges levied by Xxxx
International Corp. or its subsidiaries or affiliates;
"TANGIBLE NET WORTH" means at any time the aggregate of:
(i) the amount paid up or credited as paid up on the issued share
capital of the Parent; and
(ii) the amount standing to the credit of the consolidated capital
and revenue reserves of the Group
based on the Balance Sheet but adjusted by:
(1) adding any amount standing to the credit of the profit and loss
account for the Group for the period ending on the date of the
Balance Sheet, to the extent not included in sub-paragraph (h)
above and to the extent the amount is not attributable to any
dividend or other distribution declared, recommended or made by
any member of the Group;
(2) deducting any amount standing to the debit of the profit and
loss account for the Group the period ending on the date of the
Balance Sheet;
(3) deducting any amount attributable to goodwill or any other
intangible asset;
(4) excluding any amount attributable to deferred taxation;
(5) excluding any amount attributable to minority interests; and
(6) deducting amounts attributable to the investment in Xxxx
International Corp. or owed to the Group by Xxxx International
Corp. by way of inter company Loan or other Borrowing
instrument.
3 AVAILABILITY OF LOAN
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COMMERCIAL VARIABLE RATE LOAN
From the Offer Date shown in term 1 of the agreement you will have 30 days in
which you can draw the Loan. However, you can only accept this offer and draw
the Loan if we have received the following items from you and are satisfied with
them:
(a) A copy of this agreement with the acceptance form signed on
your behalf and on behalf of your Parent.
(b) A certified copy of a resolution of your board of directors
showing that it:
* accepts the terms and conditions of the Loan;
* agrees to provide the new security to which it is party
set out in term 11 of the agreement;
* authorises a person or persons to sign/execute each such
document and take such other action on your behalf as
may be necessary for the purpose of the agreement.
(c) A copy of your Memorandum and Articles of Association (including
copies of all amending resolutions) certified in each case by
your secretary or a director as being up to date.
(d) The new security referred to in term 11 of the agreement duly
executed by the panics to it, together with a resolution of the
board of directors (in such form as we shall require) and a copy
of the Memorandum and Articles of Association (including copies
of all amending resolutions) certified in each case as being up
to date by its secretary or one of its directors, in respect of
each security provider (other than the Borrower).
(e) The fee referred to in term 8 of the agreement.
(f) A final due diligence report addressed to us by independent
accountants approved by us.
(g) Confirmation from our Solicitors that the Transaction Documents,
are, in all respects, satisfactory.
(h) Confirmation from our Solicitors that the statutory
declarations, auditors' reports and other documentation
necessary or desirable to ensure that the arrangements
evidenced by this agreement, the Security and the Transaction
Documents will not contravene Sections 151-158 of the Companies
Xxx 0000, are, in all respects satisfactory,
(i) Certified copies of each of the documents referred to in
paragraph (g)
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COMMERCIAL VARIABLE RATE LOAN
and (h) above duly signed or executed (as appropriate) by each
of the parties to them.
(j) Customer references as proposed in the draft due diligence
report.
(k) a copy of:
(i) a side letter from us to Beldray Limited and your Parent
amending the terms of Facility One; and
(ii) a side letter from us to your Parent and Sowester
Limited amending the terms of Facility Two;
with the acceptance signed on behalf of each of the addressees
in the letters.
(1) Evidence of the discharge of any security interest over any of
your property held by each company in the Group (except for such
security granted in our favour or as disclosed to and approved
by us). (If we, in our absolute discretion, permit drawdown
before this condition is satisfied, you will have 28 days in
which to satisfy this condition),
You must give us one day's notice of your intention to draw the Loan.
These days must be Business Days. We will credit your current account
with the amount of the Loan.
4. INTEREST
The rate of interest shall be fixed for successive period of 3, 6 or 12
months as selected by you in writing not later than 11:00 am on the
first day of the relevant Fixture Period, or such other Fixture Periods
as may be necessary to ensure that any repayment installment takes place
at the end of the Fixture Period (or, exceptionally, such other Fixture
Period as the Bank may agree). If any Fixture Period would end on a day
which is not a Business Day it shall be extended to the next succeeding
Business Day if you fail to select a Fixture Period, the period of 3
months (or such other period necessary as aforesaid) shall apply,
Interest, calculated on the basis of a year of 365 days and the actual
number of days elapsed, will be paid in arrears on each Interest Payment
Date. You authorise us (but without any obligation on us to do so, and
without prejudice to our rights in respect thereof) to debit any such
interest to a current account in your name at the Lending Branch on each
Interest Payment Date.
If at any time during the existence of the Loan any change takes place
in the operation or structure of the London Inter-Bank Market for
sterling deposits so as to make such deposits no longer available in the
said Market or so that the offered rate available in the said Market or
so that the offered rate
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COMMERCIAL VARIABLE RATE LOAN
of interest for such deposits is on a basis which is, in our opinion
unreasonable for the calculation of the rate of interest payable on the
Loan, then the provisions hereunder shall apply:
(a) We shall within a reasonable period notify you that such change
has taken place.
(b) On the next Interest Payment Date immediately following such
change we, in our absolute discretion, shall apply a rate of
interest to the Loan for a period of three months for such
interest payment date ("the negotiating period") but so that the
revised rate of interest shall not exceed the aggregate (rounded
up to the nearest one-sixteenth per cent) of:
(i) 25 per cent per annum;
(ii) the rate at which we shall be able at such time to
purchase sterling funds of a comparable amount and
tenor; and
(iii) the MLA Costs.
(c) During the negotiation period you and we shall by negotiation
attempt to agree a new basis for the calculation of the rate of
interest applicable to the Loan and if so agreed a rate
calculated on the said new basis shall apply from the first day
following the end of the negotiated period.
(d) In the event that we are not being able within the negotiating
period to agree on a basis for the calculation of the
interest rate, then all moneys outstanding advanced under the
Loan, together with all interest accrued due thereon (if any)
shall become repayable on the first day following the end of the
negotiated period during which agreement has not been reached
and the Loan shall be cancelled.
5 SECURITY
You must Provide to us (if not already provided) the security shown in
term 11 of the agreement. All security must be a continuing security for
the discharge on demand of all indebtedness and other liabilities to us
from time to time.
You and your Parent will forthwith notify us of any company which
becomes or ceases to be a Subsidiary Undertaking of either of you after
the Agreement Date and shall procure that such Subsidiary Undertaking
grants such security in our favour as we shall specify.
6 FEES AND COSTS
We have the right to debit your current account with the fees set out in
terms 8 and 14 of the agreement and any other costs and any other
expenses payable by you under
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this agreement.
7 EARLY REPAYMENT
We agree to let you repay the Loan early if you ask us in writing. You
must give us five days notice in writing to do this. This notice shall
be irrevocable and these days must be Business Days. If you repay the
Loan early, the prepayment will be on such terms as we may require
including (without limitation) you indemnifying us against any funding
or other costs, losses, expenses or liabilities (including loss of
profit) sustained or incurred by us as a result of such prepayment and
in the event of a Fixture Period being broken by any prepayment, you
will pay to us an additional amount calculated by reference to
prevailing London Inter-Bank Market rates of interest, to compensate us
for the loss (if any) we may incur in replacing the prepaid funds in the
Market for the remainder of the relative Fixture Period.
A certificate by one of our officers as to any of the amounts due from
you under this paragraph shall, save for manifest error, be conclusive
evidence (and admissible as such) against and binding on you.
You cannot re-borrow any amount you prepaid.
8 LIABILITY
If you are more than one person then the expression "you" shall mean all
of such persons and (save where the context does not so admit) any of
them and the obligation of those persons shall be joint and several.
Each such person irrevocably appoints each other person as his agent for
the service of any demand or notice under this agreement.
You shall indemnify us on demand against any loss or expense (including,
but not limited to loss of margin or any other loss or expense sustained
or incurred by us in liquidating or employing deposits acquired or
contracted for) suffered by us as a result of a drawing not being made
after you have given notice to us of your intention to draw the Loan for
any reason (except arising as a result of any failure on our part) or as
a result of your failure to make payment on the due date of any sum due
under the Finance Documents.
9 CURRENT ACCOUNTS
You agree to maintain a current account with us throughout the period of
the Loan.
10 PAYMENTS
WE MAY TRANSFER AMOUNTS FROM YOUR CURRENT ACCOUNT TO MEET THE REPAYMENTS
SET OUT IN TERM 10 OF THE AGREEMENT.
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COMMERCIAL VARIABLE RATE LOAN
We may use any repayment instalment (including instalments of
principal and interest) or amount prepaid (with our consent) or any
part of any such payment to:
* reduce the amount of principal outstanding on the Loan.
* pay interest accrued on the Loan.
* discharge any other payment due by you to us.
You must make all payments under this agreement in full in pounds
sterling without any deduction or withholding (whether in respect of
set-off, counterclaim, duties, taxes, charges or otherwise howsoever).
If you are compelled by law to make any deduction or withholding, you
will promptly pay to us such additional amounts as will make the net
amount received by us equal to the full amount payable by you had there
been no deduction or withholding.
If at any time we receive any payment by or on behalf of you, your
Parent or any other member of the Group (including any receipt by us as
a result of enforcement of this agreement or any of the Security) other
than in the appropriate payment currency (the "Appropriate Payment
Currency") then such a payment shall take effect as the payment to us of
the amount in the Appropriate Payment Currency which we are able to
purchase (after deduction of any relevant costs) with the amount of the
payment so received in accordance with our usual practice.
To the extent that any payment to us under any judgement or court order
in relation to this agreement or the Security is in a currency other
than the Appropriate Payment Currency and on actual conversion into the
Appropriate Payment Currency (after deduction of any relevant costs)
falls short of the relevant liability expressed in the Appropriate
Payment Currency, you as a separate and independent obligation will
indemnify us against such a shortfall and will pay interest on such a
shortfall from the date of such payment to the date the shortfall is
paid. Such interest will be calculated under term 13 of this agreement
as if the shortfall were an overdue amount.
11 SET OFF
We shall be entitled to set-off against any of your liabilities to us
under this agreement (whether present, future, actual or contingent) any
of your credit balances on any of your accounts with us or in your name.
We do not have to give you any prior notice to do this.
12 DEFAULT
If any of the following events occur, we may, by giving you written
notice, cancel our outstanding commitments to you (including the
availability of the Loan if you have not drawn it) and demand immediate
repayment of your indebtedness to us and
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COMMERCIAL VARIABLE RATE LOAN
exercise our rights under any Security.
(a) If any member of the Group breaches any term or condition
(including any covenant) of any Finance Document to which it is
which a party.
(b) If any member of the Group does not make any payment on the date
it is due under any Finance Documents or otherwise to us or any
other member of the National Westminster Group and whether by
way of principal, interest or otherwise when such default
extends two days beyond the due date for such payment.
(c) If you do not use the Loan for the purpose set out in term 5 of
the agreement.
(d) If the Security or any part of the Security shall cease to be
fully enforceable in accordance with its terms, the continuing
nature of any Security is determined (whether such determination
be by actual or constructive notice or be deemed to have
occurred) or any undertaking provided in the Security or any
part of the Security shall be breached or any member of the
Group does anything evidencing an intention to repudiate, cancel
or terminate any Finance Document.
(e) If any member of the Group sells or disposes of any asset
subject to a fixed security interest created by the Security
listed in term 11 of the agreement or it ceases to be in such
member's sole possession.
(f) If your current account becomes overdrawn after the debiting of
any payment due from you under the Loan or it becomes overdrawn
in excess of any limit agreed with us and you do not offer
payment in cash to us when we inform you of this.
(g) If any representation, warranty or statement made to in
connection with the Loan or any Finance Documents is breached or
is false or if you fail, your Parent or any member of the Group
fails to tell us anything which in our opinion is material to
the Loan.
(h) If you or any member of the Group makes any default in the
performance of any other agreement for borrowed money whether
with us or any other lender whereby the due date of repayment
thereunder is rendered capable of acceleration; or
If any of our indebtedness or the indebtedness in respect of
borrowed money of any member of the Group becomes or is
declared by the holder or the lender thereof to be due and
payable prior to its stated maturity or such indebtedness is not
repaid in full at its stated maturity; or
If your indebtedness or the indebtedness in respect of borrowed
monies of any member of the Group is repayable on demand and is
not repaid in full
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immediately upon demand being made or if any guarantee or
indemnity given by any giver of security in connection with any
of your liabilities to us or the liabilities of any member of
the Group to us or any other lender is not honoured when due and
called upon.
(i) If a petition is presented or a resolution passed for your
winding up or that of any member of the Group or a petition is
presented for an administration order to be made in relation to
you or any member of the Group; or Your directors or the
directors of any member of the Group make a proposal for a
voluntary arrangement with your or its creditors; or You are
unable to pay your debts within the meaning of Section 123 of
the Insolvency Xxx 0000 or any member of the Group is unable to
pay its debts within the meaning of such section or an
encumbrancer takes possession, of or a receiver, an
administrator, an administrative receiver, trustee or similar
officer is appointed over any of, your assets or over the assets
of any member of the Group.
(j) If there shall occur in our opinion a material effective change
of control (as defined by Section 840 of the Income and
Corporation Taxes Act 1988) of any member of the Group.
(k) If there has occurred any change which in our reasonable
opinion is a material adverse change in your business, assets or
financial condition or in the business, assets or financial
condition of the Group or any member of the Group which, in our
reasonable opinion, may affect your ability or the ability of
any member of the Group to comply with your or its obligations
under any Finance Document.
(1) If any judgement, distress, warrant of attachment, writ of
execution or similar process is issued, levied or enforced upon
any of your assets or the assets of any member of the Group or
if any asset held by the Bank as security for the Loan is
charged or becomes encumbered elsewhere.
(m) If you or any member of the Group ceases or threatens to cease
to carry on its business or sells, transfers or otherwise
disposes of in any one transaction or series of related
transactions any substantial part of its assets.
(n) If anything analogous to or having a substantially similar
effect to any of the events specified in paragraphs (i) or (1)
occurs under the laws of any applicable jurisdiction.
13 DELAY IN EXERCISING OUR RIGHTS
No failure or delay by us in giving any notice or exercising any of our
rights powers or privileges under this agreement this should not be
construed as a waiver of any of
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our rights nor shall any single or partial exercise of any right, power
or privilege preclude any other or further exercise thereof or of any
other the right, power or privilege. The rights and remedies provided in
this agreement are cumulative and not exclusive of any provided by law.
14 DEMANDS AND NOTICES
Any demand or notice to you will be made in writing and be signed by one
of our officers and served either by personal delivery on you at any
place or by post addressed to you at your place of business last known
to us. Service by post on you shall be deemed to be effective on the
next Business Day after the date of posting even if it is returned
undelivered. Any notice to us under this agreement must be made in
writing and signed by a duly authorised on your behalf. It must be
delivered by hand or by post to the lending branch specified in term 3
of the agreement.
15 COSTS AND EXPENSES
You will pay all costs, charges and expenses (including, without
limitation, all legal and other professional fees) arising in connection
with the Loan and the Security including the negotiation and preparation
of this agreement, the Security and any supporting documentation and in
connection with any confirmation to be given to us by our Solicitors
under this agreement, and all costs, charges and expenses arising in
connection with the preservation and/or enforcement of our rights under
this agreement or under the Security and will indemnify us for any and
all losses, costs, and expenses occasioned by the occurrence of an Event
of Default.
16 INCREASED COSTS AND ILLEGALITY
(a) If we determine in our sole opinion that as a result of any law,
regulation, directive or official request (whether or not having
the force of law) ("Requirement") or compliance by us with any
Requirement (including compliance by us with any change in any
Requirement or change in the interpretation of any Requirement)
the cost to us of funding, maintaining or making available the
Loan (or any undrawn amount of the Loan) is increased or the
effective return to us on the Loan is reduced then you shall pay
to us on demand such sum as may be certified to you by us as
shall compensate us for such increased cost or such reduction.
(b) If the effect of the introduction of or any change in applicable
law or directive or the interpretation of such law or directive
is to make or purport to make the Loan unlawful then our
obligations under this agreement shall cease and you will on
demand pay to us all amounts outstanding under the Loan.
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17 GENERAL POINTS
(a) If at any time any one or more of the provisions in this
agreement is or becomes invalid, illegal or unenforceable in any
respect, the validity, legality or enforceability of the
remaining provisions of this agreement shall not in any way be
affected or impaired.
(b) Unless we expressly agree to do so in writing we do not hold
ourselves out as providing advice on or considering the general
suitability of this Loan for your particular circumstances
(including tax circumstances) and neither we nor our employees
shall be liable for any indications given as to such
suitability. We make no warranties or representations about the
advisability of any underlying transaction entered into by you
or any other member of the Group. Each member of the Group
should obtain independent professional advice on such matters,
and upon any Security required by us.
(c) This Agreement is governed by the laws of England.
(d) All expressions in this letter bearing a plural meaning shall
(where the context so admits) also bear the singular meaning
and vice versa.
(e) All references in this letter to any statutory provision shall
be deemed to include any statutory modification or re-enactment
of such provision.
(f) Any document or agreement (including this agreement) shall be
deemed to include references to those documents as amended,
supplemented, substituted, varied or replaced from time to time.
(g) "YOU" means Xxxxxxx International Holdings Limited and "WE" and
"US" means National Westminster Bank Plc.
18 REPRESENTATIONS AND WARRANTIES
You and your Parent each represent and warrant that each of you have
full power to accept and be bound by the terms and conditions set out in
this agreement and in the Security to which each of you are party and
that you have full power to draw the Loan and that each member of the
Group has full power to enter into and grant the Security or other
Finance Documents to which it is or they are party and that all
necessary steps have been taken and necessary consents and
authorisations obtained to do so and that accordingly this agreement and
the Security constitutes the legal, valid and binding obligations of the
parties to such documents, fully enforceable against each such party.
You and your Parent also represent and warrant as follows:-
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COMMERCIAL VARIABLE RATE LOAN
(a) Each of you are duly incorporated and validly existing under the
laws of England.
(b) No Event of Default has occurred or is outstanding and no event
has occurred which, with the giving of notice or the lapse of
time, would constitute an Event of Default.
(c) All information, exhibits and reports furnished to us in
connection with this agreement and the Security were and remain
true and accurate in all respects and do not omit any facts
thereby rendering misleading any statement contained therein.
(d) The latest audited accounts (consolidated, where applicable)
have been prepared in accordance with generally accepted
accounting principles and practices consistently applied and
fairly represent your financial condition (or, where applicable,
the financial condition of the Group) at that date and the
results of its operations for the accounting period ended on
that date, and there have been no adverse change in such
conditions since that date which would materially affect your
ability or the ability of any other member of the Group to
perform and observe the obligations and provisions binding on it
in any Finance Document.
(e) No member of the Group is in default under any agreement to
which it is party or by which it may be bound nor of any statute
or legal requirement binding upon it and no litigation,
arbitration or administrative proceedings are presently current
or pending or, to the best of its knowledge, threatened which
would materially affect your ability or the ability of any other
member of the Group to perform and observe the obligations and
provisions binding on it under any Finance Document.
The representations and warranties set out above shall survive your
acceptance of this agreement and the drawing of the Loan and shall be
deemed to be repeated on each day throughout the period of the Loan with
reference to the facts and circumstances existing at that time.
19 COVENANTS
You covenant and undertake that you shall notify us of the occurrence of
any Event of Default or any such event which, with the giving of notice
or lapse of time, could constitute an Event of Default.
20 ASSIGNMENT AND TRANSFER
(a) Neither you nor your Parent or any other member of the Group may
assign/transfer all or any part of your obligations and/or
rights under any
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COMMERCIAL VARIABLE RATE LOAN
Finance Document to which you are or it is party.
(b) You hereby give your irrevocable consent to any
assignment/transfer of any one or more of our rights/obligations
under any Finance Document and "we" and "us'" shall be
construed to include any assignee or transferee of our rights
and obligations.
21 ENVIRONMENTAL MATTERS
(a) You must notify us immediately if you receive any claim, notice
or other communication in respect of any alleged breach of
Environmental Law.
(b) You undertake to notify us immediately if any Environmental
Licence is withdrawn or is not renewed.
(c) You represent and warrant to us that you have obtained all
necessary Environmental Licences and have at all times complied
in all material respects with the terms and conditions of all
applicable Environmental Licences and all other applicable
Environmental Law.
You also confirm that no Hazardous Materials (other than those
incidental to your business and which are stored in full
compliance with Environmental Licence(s)) have been used,
disposed of, generated, stored, transported, deposited, buried
or emitted at, on, from or under any premises (whether or not
owned, leased, occupied or controlled by you) in circumstances
where this might result in a liability on you.
(d) You will indemnify and hold us and our respective officers,
directors, employees and agents (the "Indemnified Parties") free
and harmless from and against any and all actions, causes of
action, losses, costs, liabilities and damages of any kind and
every kind of character known or unknown, fixed or contingent,
out of pocket or consequential and all expenses incurred in
connection therewith including reasonable legal fees and
disbursements (the "Indemnified Environmental Liabilities")
incurred by the Indemnified Parties or any of them as a result
of or arising out of or relating to:-
(i) The imposition or recording of any liens, pledges,
charges or mortgages on or over any of your assets by
any government agency or local governmental agency or
authority pursuant to any Environmental Law or the
removal of any such liens, pledges, charges or
mortgages over your assets.
(ii) The claims of any private parties or local government or
government agency or authority regarding violations of
Environmental Law in connection with your operations or
the effect of the presence of any
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COMMERCIAL VARIABLE RATE LOAN
Hazardous Material on the value of your assets or in
connection with compliance by yourself or the
Indemnified Parties with any regulation or order issued
pursuant to Environmental Law. For the purposes of this
agreement:
"Environmental Law" shall mean any law, regulation, code of practice, circular,
guidance notes or the like (whether in the United Kingdom or elsewhere and
whether now existing or subsequently enacted or promulgated) or any judicial or
administrative interpretation thereof concerning the protection of human health
or the environment or the conditions of the work place or, the generation,
transportation, storage, treatment and disposal of hazardous materials.
"Hazardous Materials" shall mean any radioactive emissions and any natural or
artificial substance (whether in solid or liquid form or in the form of a gas or
vapour and whether alone or in combination with any other substance) which are
defined, determined identified prohibited, limited or regulated by
Environmental Law or any other chemical, material, substance or element existing
now or in the future and which is capable of causing harm to man or any other
living organism which is capable of damaging the environment or public health or
welfare including any controlled, special, dangerous, toxic, radioactive or
hazardous waste.
"Environmental Licence" shall mean any permit, licence or authorisation, consent
or other approval required by Environmental Law.
/s/ X. Xxxx
For and on behalf of
National Westminster Bank Plc
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COMMERCIAL VARIABLE RATE LOAN
FORM OF ACCEPTANCE
We accept the Loan on the terms and conditions set out in this letter
Date: 2 October 1997
---------------------
By: /s/ M. DELL
-----------------------
For and on behalf of Xxxxxxx International Holdings Limited
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COMMERCIAL VARIABLE RATE LOAN
FORM OF ACCEPTANCE
We accept the Loan on the terms and conditions set out in this letter
Date: 2 October 1997
---------------------
By: /s/ X.X. XXXXXX
-----------------------
For and on behalf of Xxxx International (UK) Limited
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