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EXHIBIT 10.24
BRIDGE FINANCING FACILITY AGREEMENT
BETWEEN
GENSEC IRELAND LIMITED
AND
UTI WORLDWIDE INC
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1. DEFINITIONS AND INTERPRETATION
IT IS AGREED AS FOLLOWS:
1.1 In this Agreement the following expressions bear the meanings assigned to
them below:
1.1.1 "ACQUIREE" means The Continental Group, incorporating Continental Air
Express (HK) Limited, Continental Container Lines Limited, Continental
Container Lines Inc., Continental Cargo Logistics Inc. (registered in New
York) and Continental Cargo Logistics Inc. (registered in California);
1.1.2 "ACQUISITION AGREEMENT" means the acquisition agreement (or, if more than
one) the acquisition agreements to be entered into between UTi (HK)
Limited and the Acquiree in terms of which UTi (HK) Limited acquires the
business and fixed assets of Continental Air Express (HK) Limited,
Continental Container Lines Limited and Continental Container Lines Inc,
and between Union-Transport Corporation and the Acquiree in terms of
which Union-Transport Corporation acquires the business and fixed assets
of Continental Container Logistics Inc (registered in New York) and
Continental Container Logistics Inc. (registered in California);
1.1.3 "ADVANCE" means any advance made or to be made by the Lender under the
Facility or, as the case may be, the outstanding principal amount of any
such advance;
1.1.4 "ASSIGNMENT OF RECEIVABLES" means the assignment of receivables of even
date in terms of which all receivables of the Guarantor are assigned to
the Lender;
1.1.5 "BORROWER" means UTi Worldwide Inc;
1.1.6 "BREAKING COSTS" means:
1.1.6.1 the amount of interest which the Lender should have received for the
period from the date of receipt of all or part of an Advance or unpaid
sum to the last day of the last current Interest Period in respect of
that Advance or unpaid sum had the principal amount or unpaid sum
received been paid on the last day of that interest period, less
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1.1.6.2 the amount which the Lender would be able to obtain by placing an
amount equal to the principal amount or unpaid sum received by the
Lender on deposit with a leading bank for a period starting on the
Business Day following receipt or recovery and ending on the last day
of the current Interest Period;
1.1.7 "BUSINESS DAY" means a day (other than Saturday or Sunday) on which
1.1.7.1 Dollar Deposits may be dealt on the London inter-bank market, and
1.1.7.2 commercial banks are open for business in London;
1.1.8 "CAPITAL ADEQUACY REQUIREMENT" means any present or future law or request
or requirement (whether legal or otherwise) the direct or indirect result
of which is:
1.1.8.1 to require the Lender to maintain a minimum level of capital or to
allocate capital resources to the Facility; or
1.1.8.2 to reduce the overall return on the Lender's capital; or
1.1.8.3 to impose on or apply to the Lender any other capital adequacy or
similar requirement;
1.1.9 "COMMITMENT TERMINATION DATE" means 15 SEPTEMBER 2000;
1.1.10 "DOLLARS" and "$" and "US$" mean lawful currency of the United States of
America;
1.1.11 "EVENT OF DEFAULT" means any one of the events mentioned in clause 15;
1.1.12 "FACILITY" means the Facility created hereunder;
1.1.13 "FACILITY AMOUNT" means US$ 5,000,000 (five million US$);
1.1.14 "FAIR PROPORTION" of any amount means that proportion of that amount
which the Lender determines to be fairly allocable to this Agreement, the
Facility and/or all or any part of any Advance or any overdue sum;
1.1.15 "FINANCE DOCUMENTS" means this Agreement, the Guarantee and the Security
Documents;
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4.
1.1.16 "GROUP" means at any particular time, the Borrower and the Guarantor and
every holding company, subsidiary company and subsidiary company of every
holding company of the Borrower and the Guarantor (and "member of the
Group" shall be construed accordingly) and for purposes of this
definition "subsidiary company" and "holding company" shall have the
meanings attributed to them in section 736 of the Companies Act, 1989 of
the United Kingdom;
1.1.17 "GUARANTEE" means a guarantee given by the Guarantor in respect of the
Borrower's payment obligations under this Agreement;
1.1.18 "GUARANTOR" means UTi (HK) LIMITED;
1.1.19 "INTEREST PERIOD" means a period by reference to which interest is
calculated on the amount due under the terms of this Facility;
1.1.20 "IPO" means an Initial Public Offering of the Borrower on the Nasdaq
national index;
1.1.21 "LENDER" means Gensec Ireland Limited (registered in the Republic of
Ireland with registration number 281370);
1.1.22 "LIBOR" means the offered rate for 1 (one) month deposits in Dollars, in
volume and duration equivalent to the amount in question as at 11:00 a.m.
on the 2nd (second) Business Day before the commencement of the period
for which the interest rate is to be determined, as such rate appears on
the display designated as page 3750 on the Telerate Monitor (or such
other page or service as may replace it for the purpose of displaying
London inter-bank offered rates of major banks for deposits in Dollars),
on the basis of such interest being calculated daily, compounded monthly
in arrear and calculated on a 360 (three hundred and sixty) day year, as
certified by any manager of the Lender (whose appointment and authority
and designation it shall not be necessary to prove) or, if no such
service is available, "LIBOR" shall mean the arithmetic mean (rounded, if
necessary to the nearest fifth decimal place) of the respective rates, as
quoted to the Lender, at its request, by Commerzbank Aktiengesellschaft,
Dresdner Bank Luxembourg S.A. and Nedcor Bank Limited (acting through its
London branch) ("THE REFERENCE
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BANKS") to prime banks in the ordinary course of business in the London
inter-bank market at or about 11:00 a.m. on the date two Business Days
prior to the commencement of the period for which the interest rate is to
be determined for the offering of dollar deposits in an amount equal or
approximately equal to the amount in question, provided that if any of
the Reference Banks shall be unable or otherwise fails to supply such
offered rate by 1:00 p.m. on the required date, "LIBOR" shall be
determined on the basis of the quotations of the remaining Reference
Banks;
1.1.23 "MARGIN" means 340 basis points;
1.1.24 "MONTH" means a period of 30 days terminating on any day in a calendar
month;
1.1.25 "POTENTIAL EVENT OF DEFAULT" means any event or circumstance which, if it
continued after the giving of any notice, the expiry of any grace period,
and/or the making of any determination by the Lender, provided for in
clause 15.1, would become an Event of Default;
1.1.26 "REPAYMENT DATE" means the earlier of a day falling 12 months from the
date of first draw down of the Facility or the date on which this
Agreement terminates for any reason;
1.1.27 "SECURITY DOCUMENTS" means the Assignment of Receivables and any other
security document that may at any time be executed in favour of the
Lender pursuant to or in connection with any Finance Document;
1.1.28 "SECURITY PROPERTY" means all rights, title and interests in, to and
under the Security Documents, including:
1.1.28.1 the benefit of the undertakings contained in the Security Documents and
1.1.28.2 all sums received or recovered by the Lender under or pursuant to any
Security Document and any assets representing the same.
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1.2 INTERPRETATION
In this Agreement and the schedules to this Agreement, except to the extent
that the context otherwise requires or as otherwise expressly stipulated, a
reference to:
1.2.1 the "ASSETS" of any Person means all or any part of its business,
undertaking, property, assets, revenues (including any right to receive
revenues) and uncalled capital, wherever situated;
1.2.2 "BORROWED MONEY" includes any Indebtedness -
(a) for or in respect of money borrowed or raised (whether or not for
cash), by whatever means (including acceptances, deposits,
discounting, factoring, finance leases, hire purchase,
sale-and-leaseback, sale-and-repurchase and any form of "off-balance
sheet" financing);
(b) for the deferred purchase price of Assets or services (other than
goods or services obtained on normal commercial terms in the
ordinary course of trading); and
(c) any guarantee in respect of any Indebtedness falling within (a) or
(b) above;
1.2.3 a "GUARANTEE" also includes an indemnity, and any other obligation
(whatever called) of any Person to pay, purchase, provide funds (whether
by the advance of money, the purchase of or subscription for shares or
other securities, the purchase of Assets or services, or otherwise) for
the payment of, indemnity against the consequences of default in the
payment of, or otherwise be responsible for, any Indebtedness of any
other Person;
1.2.4 "INDEBTEDNESS" includes, with respect to any Person, any obligation
(whether present or future, actual or contingent, secured or unsecured,
as principal, surety or otherwise) -
(a) of the relevant person for the payment or repayment of money; or
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(b) of any other Person for the payment or repayment of money secured by
Security on Assets of the relevant person, whether or not the
relevant person is liable in respect of any obligation so secured;
1.2.5 this "AGREEMENT" includes this agreement and all attachments as from time
to time amended, supplemented, assigned, novated, restated or replaced;
1.2.6 having a "MATERIAL ADVERSE EFFECT" on the Borrower or the Guarantor means
having a material adverse effect -
(a) on the Borrower's or Guarantor's financial condition or business or
on the consolidated financial condition or business of the Group,
(b) on the Borrower's or Guarantor's ability to perform and comply with
any of the Borrower's or the Guarantor's obligations under any
Finance Document; or
(c) on the validity, legally binding nature or enforceability of any
Security expressed to be created by the Borrower or the Guarantor by
or pursuant to any Security Document or on the priority and ranking
of that Security;
1.2.7 any "OBLIGATION" of any Person under any document shall be construed as a
reference to an obligation expressed to be assumed by or imposed on it
under that document (and "created", "due", "owing", "payable" and
"receivable" shall be similarly construed);
1.2.8 a "PERSON" includes any individual, company, corporation, firm,
partnership, joint venture, undertaking, association, organization,
trust, state or agency of a state (in each case, whether or not having
separate legal personality);
1.2.9 "SECURITY" includes any mortgage, pledge, lien, hypothecation, security
interest or other charge or encumbrance and any other agreement or
arrangement having substantially the same economic effect (including
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any "flawed asset" arrangement) (and "secured" shall be construed
accordingly);
1.2.10 "TAX(ES)" includes any present or future tax, levy, impost, duty, charge,
fee, deduction or withholding of any nature and whatever called, by
whomsoever, on whomsoever and wherever imposed, levied, collected,
withheld or assessed;
1.2.11 a time of the day is to London time unless otherwise stated;
1.2.12 the "WINDING-UP" of a Person also includes the amalgamation,
reconstruction, administration, dissolution, liquidation, merger or
consolidation of that Person, and any equivalent or analogous procedure
under the law of any jurisdiction.
2. THE FACILITY
2.1 Subject to the terms of this Agreement, the Lender agrees to make the
Facility available to the Borrower.
2.2 The aggregate US$ amount of all outstanding Advances shall not exceed the
Facility Amount. The Lender shall not be obliged to make an Advance if it
would cause the aggregate US$ amount of outstanding Advances to exceed the
Facility Amount.
3. PURPOSE
The Borrower shall be entitled to make drawings under this Facility to fund
a down payment by UTi (HK) Limited and/or Union-Transport Corporation, as
the case may be, for the purchase of the business and fixed assets of the
Acquiree in terms of the Acquisition Agreement, as more fully described in
1.1.2 and any Advance granted by the Lender to the Borrower shall be used
solely for this purpose. Without affecting the obligations of the Borrower
in any way, the Lender is not obliged to monitor or verify the application
of the Advance.
4. CONDITIONS PRECEDENT
The Borrower may not make a request for the Advance until the Lender or its
agent has received all of the documents listed in Schedule 1 to this
Agreement in form and substance satisfactory to the Lender.
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5. DRAWDOWN
5.1 DRAWDOWN CONDITIONS
The Lender will make the Advance to the Borrower if the following
additional conditions are fulfilled:
5.1.1 not later than 10 a.m. on the third Business Day prior to the proposed
date of the Advance (or, as the case may be, such later time as may be
acceptable to the Lender for the purpose of the relevant request), the
Lender has received from the Borrower a notice specifying the matters set
out in clause 5.2.;
5.1.2 all representations and warranties in clauses 13.1 to 13.10 and clause
13.14 of this Agreement and in clauses 4.1 to 4.11 and clause 3.13 of the
Guarantee(except to any extent waived in accordance with clause 17.4)
have been complied with and would be correct in all respects deemed by
the Lender to be material if repeated on the proposed date of the Advance
by reference to the circumstances then existing.
5.2 DRAWDOWN REQUEST TO SPECIFY
The following matters are to be specified in the notice requesting the
Advance:
5.2.1 the proposed date of the Advance must be a Business Day and must be on or
before the Commitment Termination Date; and
5.2.2 details of the bank in Jersey and account in the Borrower's name to which
the Borrower wishes the Lender to pay the proceeds of the Advance.
5.3 LIMIT ON NUMBER OF ADVANCES
There may not be more than one Advance.
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6. INTEREST
6.1 INTEREST PERIODS
Interest Periods shall be calculated on each Advance by reference to
successive Interest Periods (the first beginning on the proposed date of
that Advance and each subsequent one beginning on the last day of the
previous one) of 1 month duration except that the last Interest Period
shall end on the Repayment Date.
6.2 INTEREST RATE
6.2.1 The rate of interest applicable to an Advance as determined by the Lender
will be equal to the sum of:
6.2.1.1 the Margin; and
6.2.1.2 LIBOR.
6.2.2 The Margin will increase by 20 basis points per month from 27 February
2001, should the IPO not have occurred by 27 February 2001.
6.3 NOTIFICATION OF INTEREST RATE
The Lender will notify the Borrower promptly of the rate of interest
determined by the Lender under this Agreement.
6.4 CALCULATION AND PAYMENT OF INTEREST
All interest payable under any Finance Document shall accrue from day to
day, shall be calculated on the basis of the actual number of days elapsed
and a 360 day year and shall be paid in arrear on the last day of each
Interest Period (in the case of interest payable under this clause) or in
accordance with clause 15.2 (in the case of interest on overdue sums).
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7. REPAYMENT
7.1 FINAL REPAYMENT
7.1.1 The sum advanced under the Facility shall be repaid in twelve equal
monthly instalments of capital, payable monthly in arrears. The first
monthly repayment will be made on the date which is one month following
the date of advance and every successive payment shall be made on the
corresponding date in each succeeding month. The last payment shall be
made on the Repayment Date.
7.1.2 Interest payable in terms of clause 6 will be payable simultaneously with
the repayments of capital.
7.1.3 The Borrower may not repay or prepay all or any part of the sum advanced
under the Facility except as expressly provided in this Agreement and the
Borrower may not re-borrow any amount repaid.
7.2 MANDATORY PREPAYMENT
Within one month after the date of the IPO the Borrower shall prepay all
Advances, together with all unpaid accrued interest and fees (including the
fees referred to in 7.3) and any other sums then due under any Finance
Document to which the Borrower is a party. Simultaneously with such payment
the Facility under this Agreement will be cancelled.
7.3 VOLUNTARY PREPAYMENT CANCELLATION
The Borrower may, by giving not less than five Business Days' prior notice
(or such shorter period as the Lender may agree), prepay the Facility in
whole and all unpaid accrued interest on the amount prepaid from one month
after draw down, subject to the payment of the early cancellation fees set
out below which shall be paid simultaneously with the prepayment of the
Facility:
7.3.1 if the Facility is prepaid in full in month 1 after draw down, the
cancellation fee shall be US$ 80,000;
7.3.2 if the Facility is prepaid in full in month 2 after draw down, the
cancellation fee shall be US$ 75, 000;
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7.3.3 if the Facility is prepaid in full in month 3 after draw down, the
cancellation fee shall be US$ 70,000;
7.3.4 if the Facility is prepaid in full in month 4 after draw down, the
cancellation fee shall be US$ 65,000;
7.3.5 if the Facility is prepaid in full in month 5 after draw down, the
cancellation fee shall be US$ 60,000;
7.3.6 if the Facility is prepaid in full in month 6 after draw down, the
cancellation fee shall be US$ 50,000;
7.3.7 if the Facility is prepaid in full in month 7 after draw down, the
cancellation fee shall be US$ 40,000;
7.3.8 if the Facility is prepaid in full during months 8 and 9 after draw down,
the cancellation fee shall be US$ 30,000;
7.3.9 if the Facility is prepaid in full during months 10 and 11 after draw
down, the cancellation fee shall be US$ 10,000;
7.3.10 if the Facility is prepaid in full in month 12 after draw down, there
shall be no cancellation fee.
7.4 AUTOMATIC CANCELLATION
The undrawn amount of the Facility shall be automatically cancelled at the
close of business in London on the Commitment Termination Date.
8. FEES
8.1 FRONT END FEE
The Borrower shall pay the Lender a front end fee of 60 basis points flat
one month from the date of signing of the mandate letter (which letter was
signed on 11 August 2000). This fee shall be payable to the Lender,
notwithstanding the successful draw down of any Advances pursuant to this
Agreement or completion of the Acquisition Agreement.
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8.2 COMMITMENT FEE
The Borrower shall pay the Lender a commitment fee of 50 basis points
calculated for the period commencing one month from date of signing of the
mandate letter, being 11 August 2000 and terminating on the date of
drawdown, if after 11 September 2000, as follows:
50 bpt x US$5,000,000.00 x (number of days from 11 September 2000 to
the date of the Advance/360)
and will be payable on the date of the Advance.
8.3 LEGAL FEES
All legal fees and out of pocket expenses incurred in relation to this
agreement and in relation to the obtaining of Security, including those
fees incurred in preparing this agreement and any Security Documents, are
for the account of the Borrower.
9. TAXES
9.1 PAYMENTS TO BE FREE AND CLEAR
All sums payable by the Borrower under any Finance Document shall be paid
free of any restriction or condition and free and clear of and (except to
any extent required by law) without any deduction or withholding, whether
on account of tax, by way of set-off or otherwise.
9.2 INDEMNITY
If the Borrower or any other Person are obliged by law to make any
deduction or withholding from any such sum:
9.2.1 the Borrower shall notify the Lender of any such requirement (or any
change in any such requirement) as soon as the Borrower becomes aware of
it;
9.2.2 the Borrower agrees to indemnify the Lender against any such deduction or
withholding and against any tax for which the Lender may be liable in
respect of such sums and the Borrower agrees that any amounts payable
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by the Borrower under this indemnity are due and payable when the sums
subject to withholding or deduction are due and payable; and
9.2.3 within 30 days after making any deduction or withholding, the Borrower
shall provide the Lender with evidence satisfactory to the Lender of that
deduction or withholding and the remittance thereof to the relevant
authority.
10. INCREASED COSTS
If at any time the introduction of or any change in, or in the
interpretation or application of, any law or request or requirement
(whether legal or otherwise) of any central bank or any agency of any state
directly or indirectly:
10.1 increases the cost to the Lender of agreeing to make, making, maintaining
and/or funding all or any part of any Advance or of any overdue sum
payable to the Lender under any Finance Document; and/or
10.2 reduces any sum received or receivable by the Lender under any Finance
Document or the effective return to the Lender under any Finance Document
or the overall return on the Lender's capital; and/or
10.3 requires the Lender to make any payment (except for such tax) or forgo
any interest or other return on or calculated by reference to the amount
of any such sum
the Borrower shall from time to time on demand (whenever made) pay to the
Lender the amount certified by the Lender to be necessary to indemnify the
Lender against that increased cost, reduction, payment or forgone interest
or other return. Under this clause, the Lender shall also be entitled to be
compensated not only for an increased cost, reduction, payment or forgone
interest or other return directly attributable to any Finance Document but
also for a Fair Proportion of any increased cost, reduction, payment or
forgone interest or other return directly or indirectly resulting from any
Capital Adequacy Requirement.
11. ILLEGALITY
If at any time it is or will become unlawful or contrary to any request or
requirement (whether legal or otherwise) of any central bank or any agency
of any state for the
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Lender to make, maintain, fund or have outstanding all or any part of any
Advance and/or to carry out all or any of the Lender's obligations under
any Finance Document then:
11.1 on the Lender's notifying the Borrower, the Lender's obligation to make
Advances will terminate (and the Available Commitment will be permanently
reduced to zero) and/or, as the case may be;
11.2 the Borrower shall repay any outstanding sum due under the terms of this
Facility on the date specified by the Lender, together with all unpaid
accrued interest and fees and any other sums then due under any Finance
Document.
12. PAYMENTS
12.1 BY BORROWER
Each payment by the Borrower under any Finance Document shall be made in
Dollars in same day funds by credit to the Lender's account, details of
which are as follows:
Correspondent Bank: Bankers Trust Co, New York
SWIFT Code: XXXXXX00
Chips Participant Number: 0103
Account Number: 044 11755
Sub Account: Deutsche International Custodial Service
(Ireland) Limited
A/C Gensec Ireland
Sub Account Number: 0000000 0000 USD 000 CUS
(or such other account and/or bank as the Lender may from time to time
designate) so as to be received by 11 a.m. London time on the due date.
12.2 NON-BUSINESS DAYS
If an Interest Period would otherwise end on a non-Business Day, it shall
instead end on the next Business Day in the same calendar month (if there
is
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one) or the preceding Business Day (if there is not). Any payment to be
made by the Borrower on a day which is not the last day of an Interest
Period and which would otherwise be due on a non-Business Day shall
instead be due on the next Business Day.
13. REPRESENTATIONS AND WARRANTIES
By signing this Agreement, the Borrower represents and warrants to the
Lender as follows:
13.1 STATUS
The Borrower is a limited liability company duly incorporated and validly
existing under the laws of the British Virgin Islands with power to enter
into, exercise its rights and perform its obligations under each Finance
Document.
13.2 AUTHORISATIONS AND CONSENTS
All action, conditions and things required to be taken, fulfilled and
done (including the obtaining of any necessary consents, the making of
registrations, and the like) in order:
13.2.1 to enable the Borrower lawfully to enter into, exercise its rights and
perform and comply with its obligations under each Finance Document;
13.2.2 to ensure that those obligations are valid, legally binding and
enforceable;
13.2.3 to ensure that those obligations rank and will at all times rank in
accordance with clause 14.1;
13.2.4 to enable the Borrower to create the Security to be created by the
Borrower by or pursuant to each Security Document and to ensure that
that Security has the priority and ranking which it is expressed to
have; and
13.2.5 to make each Finance Document admissible in evidence in the courts of
England; and
13.2.6 for the making of appropriate registrations of the Security Documents.
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13.3 NON-VIOLATION ETC
The Borrower's entry into, exercise of its rights and/or performance of
its obligations under any Finance Document do not and will not violate,
or exceed any borrowing or other power or restriction granted or imposed
by:
13.3.1 any law to which the Borrower is subject, including but not limited to
any laws which restrict or prohibit the giving by a company of financial
assistance for the purchase of its own shares; or
13.3.2 the Borrower's constitutional documents; or
13.3.3 any other agreement to which the Borrower, the Guarantor or any other
member of the Group is a party or which is binding on the Borrower or the
Borrower's Assets,
or (save as provided in the Security Documents) result in the existence
of, or oblige the Borrower to create, any Security over those Assets.
13.4 OBLIGATIONS BINDING
Subject, in the case of the enforceability of the Security Documents, to
the registrations referred to in clause 13.2.5 being made:
13.4.1 the Borrower's obligations under each Finance Document are valid, binding
and enforceable; and
13.4.2 the Guarantor's obligations under the Security Documents are valid,
binding and enforceable;
13.4.3 each Security Document creates (or, once entered into, will create) as
security for the obligations expressed to be secured by it, valid,
binding and enforceable Security over the assets expressed to be charged
by it in the Lender's favour and having the priority and ranking
expressed to be created by that Security Document.
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13.5 NO DEFAULT
No Event of Default or Potential Event of Default has occurred, or will
occur as a result of making any Advance, except for any waived in
accordance with clause 17.4.
13.6 EXISTING SECURITY
No Security exists on or over the Borrower's Assets except as permitted by
clause 14.2.
13.7 NO MATERIAL ADVERSE CHANGE
There has been no material adverse change in the financial condition or
operations of the Borrower or the Guarantor since the date of their most
recent published audited financial statements.
13.8 LITIGATION
No litigation, arbitration or administrative proceeding is current, pending
or threatened:
13.8.1 to restrain the Borrower's entry into, exercise of its rights under
and/or performance or enforcement of or compliance with its obligations
under any Finance Document; or
13.8.2 which has or could have a Material Adverse Effect on the Borrower or the
Guarantor.
13.9 WINDING UP
No meeting has been convened for the Borrower's Winding-up, no such step
is intended by the Borrower and, so far as the Borrower is aware, no
petition, application or the like is outstanding for the Borrower's
Winding-up.
13.10 TITLE
the Guarantor has good and marketable title to the assets expressed to be
charged by the Guarantor by or pursuant to the Security Documents free and
clear of all Security except the Security created by or pursuant to, or
permitted by, the Security Documents.
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13.11 DISCLOSURE
There are no material facts in relation to the Borrower and/or any member
of the Group and/or the Assets and affairs of the Borrower or those of any
member of the Group which have not been disclosed to the Lender before the
date of this Agreement and which, if disclosed, might reasonably be
expected adversely to affect the decision of a Person considering whether
to provide finance to the Borrower or the Guarantor.
13.12 GUARANTOR'S REPRESENTATIONS AND WARRANTIES
Each of the representations and warranties by the Guarantor in clause 4 of
the Guarantee is correct.
13.13 REPETITION
Each of the representations and warranties in clauses 13.1 to 13.12 and
13.14 will be correct and complied with so long as any sum remains to be
lent and/or remains payable under any Finance Document as if repeated then
by reference to the then existing circumstances.
13.14 THE SUM
The Advance available under the Facility will be used for the purposes
stated in clause 3 above and shall not be used for any other purpose.
13.15 ACCOUNTS
The most recent audited financial statements of the Borrower:
13.15.1 were prepared in accordance with International Accounting Standards;
13.15.2 make full disclosure of or make adequate provision for, all liabilities,
contingent or otherwise, of the Borrower at the relevant date, and there
are no unrealised or anticipated losses at that date arising from
commitments entered into by the Borrower which were not so disclosed or
provided for;
13.15.3 fairly reflect the financial affairs, operations and results of the
Borrower at the relevant date and for the period to which they relate.
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20.
14. UNDERTAKINGS
So long as any sum remains to be lent and/or remains payable under any
Finance Document:
14.1 RANKING OF OBLIGATIONS
Without prejudice to clause 13.2.4, the Borrower's payment obligations
under each Finance Document rank and will at all times rank at least
equally and rateably in all respects with all the Borrower's other
unsecured Indebtedness other than such Indebtedness as would, by virtue
only of the operation of law, be preferred in the event of the Borrower's
Winding-up.
14.2 NEGATIVE PLEDGE
The Borrower will not create or have outstanding any Security on or over
its assets except for:
14.2.1 the Security created by or pursuant to the Security Documents;
14.2.2 liens arising solely by operation of law (or by an agreement evidencing
the same) in the ordinary course of its business in respect of
indebtedness which either -
14.2.2.1 has been due for less than seven days; or
14.2.2.2 is being contested in good faith and by appropriate means;
14.2.3 pledges of goods, the related documents of title and/or other related
documents arising or created in the ordinary course of its business as
security only for indebtedness to a bank or financial institution
directly related to the goods or documents on or over which that pledge
exists;
14.2.4 any Security existing at the time of acquisition on or over any Asset
acquired by it (otherwise than from another member of the Group) after
the date of the Facility Agreement and not created in contemplation of
or in connection with that acquisition but, except with the prior
consent of the Lender, the principal, capital or nominal amounts
secured by any such Security and outstanding at the time of acquisition
may not be increased);
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21.
14.2.5 any Security created by a member of the Group (other than the Borrower,
or the Guarantor) in favour of the Borrower or the Guarantor, and vice
versa;
14.2.6 in the case of a Person which becomes a member of the Group after the
date of the Facility Agreement, any Security existing on or over its
Assets when it becomes a member of the Group and not created in
contemplation of or in connection with its becoming a member of the Group
(provided that, except with the prior consent of the Lender:
14.2.6.1 the principal or nominal amount secured by any such Security and
outstanding when the relevant Person becomes a member of the Group may
not be increased except by reason of any fluctuation in the amount
outstanding under, and within the limits and in accordance with the
terms of, facilities which exist and are secured by the relevant
Security when it becomes a member of the Group; and
14.2.6.2 no indebtedness may be secured by any such Security which is not
secured by the relevant Security when the relevant Person becomes a
member of the Group);
14.2.7 any Security created on any Asset acquired by it after the date of the
Facility Agreement for the sole purpose of financing or refinancing that
acquisition and securing a principal or nominal amount not exceeding 80%
of the cost of that acquisition;
14.2.8 any Security on credit balances with a bank or similar financial
institution as security for back-to-back or similar finance or net
overdraft facilities to be provided to the Borrower;
14.2.9 any other Security created or outstanding with the prior written consent
of the Lender;
14.2.10 any other Security created or outstanding on or over assets of the
Borrower provided that the aggregate outstanding principal, capital or
nominal amount secured by all Security created or outstanding under this
exception on or over Assets on the Borrower and the Guarantor must not at
any time exceed US$5,000,000 or its equivalent (as reasonably
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22.
determined by the Lender) in respect of any one asset or US$25,000,000
or its equivalent (as reasonably determined by the Lender) in the
aggregate.
14.3 DISPOSALS
The Borrower undertakes that it will not, and it shall ensure that the
Guarantor will not, (whether by a single transaction or a number of
related or unrelated transactions and whether at one time or over a period
of time) sell, transfer, exchange, or otherwise dispose of (whether
outright, by a sale-and-repurchase or sale-and-leaseback arrangement, or
otherwise) the whole or substantially the whole of their assets or
undertakings or business or substantially the whole of their assets if
such sale, transfer, exchange or disposal would have a Material Adverse
Effect on the Borrower or the Guarantor.
14.4 CHANGE OF BUSINESS
The Borrower will ensure that there is no material change in the nature or
strategy of its business (whether by a single transaction or a number of
related or unrelated transactions, whether at one time or over a period of
time and whether by disposal, acquisition or otherwise).
14.5 GUARANTEES
The Borrower will not give any guarantee of any of the Indebtedness of any
Person for or in respect of Borrowed Money. The Borrower will ensure that
(except for guarantee by the Guarantor of the Borrower's Indebtedness) no
Person gives any guarantee of or Security for any of the Borrower's
Indebtedness for or in respect of Borrowed Money.
14.6 CHANGE IN CONTROL
The Borrower will not do or omit to do anything which would or might
result in a change in its control.
14.7 EVENTS OF DEFAULT
The Borrower will notify the Lender of the occurrence of any Event of
Default or Potential Event of Default immediately upon becoming aware of
it and will
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23.
from time to time on request promptly deliver to the Lender a certificate
stating that, so far as it is aware, no Event of Default or Potential
Event of Default has occurred or setting out details of any Event of
Default or Potential Event of Default of which it is aware and the action
taken or proposed to be taken to remedy it.
14.8 ACCOUNTS
14.8.1 As soon as available and in any event within 90 days after the end of
each of the Borrower's financial years (beginning with the current one),
the Borrower will deliver to the Lender a copy of its annual report and
audited accounts (both consolidated and unconsolidated,) as at the end
of and for that financial year, together with copies of the related
directors' and auditors' reports.
14.8.2 As soon as available and in any event within 60 days after the end of
the first 6 months of each of the Borrower's financial years (beginning
with the current one), the Borrower will deliver to the Lender a copy of
its interim accounts (both consolidated and unconsolidated) as at the
end of and for that 6 month period (if interim accounts are prepared by
the Borrower in the ordinary course).
14.8.3 As soon as possible and in any event within 30 days after the end of
each month the Borrower will deliver to the Lender a copy of its profit
and loss accounts as at the end of and for that month.
14.8.4 As soon as possible and in any event within 60 days after the end of
each quarter the Borrower will deliver to the Lender a copy of its
financial ratios pertaining to balance sheet items as at the end of and
for that quarter as well as the accounts (whether or not they have been
audited) on which the financial ratios have been calculated;
14.8.5 as soon as possible and in any event within seven Business Days after
the end of each month following the month to which it relates the
Borrower will procure the delivery to the Lender of a report setting out
the particulars of the receivables assigned to the Lender in terms of
the Assignment of Receivables.
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24.
14.9 INFORMATION TO SHAREHOLDERS OR CREDITORS
At the same time as sent to its shareholders (or any class of its
shareholders) or creditors, the Borrower will deliver to the Lender a copy
of any circular, document or other written information sent to its
shareholders (or any class of its shareholders) or creditors as such.
14.10 LITIGATION
The Borrower will promptly deliver to the Lender details of any
litigation, arbitration or administrative proceeding which has rendered or
may render the representation and warranty in clause 13.8 incorrect.
14.11 INFORMATION
The Borrower will promptly deliver to the Lender such information relating
to its financial condition or business as it may from time to time
reasonably request.
14.12 FINANCIAL POSITION
14.12.1 The debt (interest bearing) / Equity NAV (net of intangible assets)
ratio shall not exceed 50%. The Borrower as soon as available and in any
event within 60 days after the end of each quarter in writing confirm
the above ratio. For purposes of this clause 14.12.1 -
14.12.1.1 "INTEREST BEARING DEBT" means all debt of an interest bearing nature
of the Borrower, including contingent liabilities, redeemable
preference shares, redeemable debentures and all and any interest
obligations or other obligations which are in substance of a
substantially similar nature to interest which are payable in terms of
any off balance sheet financing structure but in respect of which
positive cash balances will be offset (and, if there is a dispute as
to whether any obligation is in substance of a substantially similar
nature to interest, such dispute shall be referred to the Lender's
auditors for the time being, acting as experts and not as arbitrators
and whose decision shall be final and binding on the parties and who
shall determine the liability for their charges);
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25.
14.12.1.2 "SHAREHOLDERS FUNDS" means the sum of the issued share capital, share
premium, reserves (but excluding asset revaluation reserves), retained
income or LESS accumulated losses (as the case may be) plus any ceded
and/or subordinated shareholders' loans or subordinated compulsory
convertible debentures, LESS any amounts attributable to goodwill or
any other intangible assets appearing in the balance sheet from time
to time, and excluding any redeemable preference shares.
14.12.2 The Borrower shall maintain an interest cover ratio of five times being
EBIT/net interest paid for the preceding 6 month period during the
currency of the Facility. The Borrower's interest cover will be
calculated on a consolidated basis as follows:
14.12.2.1 "INTEREST COVER" means, in respect of an period, EBIT divided by net
interest paid for that period;
14.12.2.2 "EBIT" means, in respect of any period, income before net interest
paid, taxation and abnormal items, but excluding extraordinary items,
for that period;
14.12.2.3 "NET INTEREST PAID" means all the interest paid by the Borrower,
including all and any interest obligations or other obligations which
are in substance of a substantially similar nature to interest which
is payable in terms of any off balance sheet financing structure (and,
if there is a dispute as to whether any obligation is in substance of
a substantially similar nature to interest, such dispute shall be
referred to the Lender's auditors for the time being, acting as
experts and not as arbitrators and whose decision shall be final and
binding on the parties and who shall determine the liability for their
charges), less interest received by it.
14.12.3 The Borrower shall ensure that cash flow from operations after working
capital movements to net finance charges shall at all times provide 2,5
times cover for the preceding 6 months period. The cash flow ratio will
be calculated on a consolidated basis as follows:
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26.
14.12.3.1 "INTEREST CASH COVER" means in respect of any period EBITDA divided by
net interest paid for that reporting period;
14.12.3.2 "EBITDA" means income before interest paid (including interest paid in
terms of any off balance sheet financing structure), taxation,
depreciation and amortisation, after abnormal items, less any
extraordinary items for that reporting period;
14.12.3.3 "NET INTEREST PAID" means all the interest paid by the Borrower,
including all and any interest obligations or other obligations which
are in substance of a substantially similar nature to interest which
is payable in terms of any off balance sheet financing structure (and,
if there is a dispute as to whether any obligation is in substance of
a substantially similar nature to interest, such dispute shall be
referred to the Lender's auditors for the time being, acting as
experts and not as arbitrators and whose decision shall be final and
binding on the parties and who shall determine the liability for their
charges), less interest received by it.
14.13 SPECIAL COVENANT
Notwithstanding anything contained in this agreement the Borrower
undertakes that the value of the receivables assigned to the Lender
pursuant to the Assignment of Receivables shall at all times be equal to
or exceed 1,5 times the indebtedness of the Borrower to the Lender under
the Facility ("THE COVENANT"). The Borrower undertakes to procure that
the Covenant is maintained at all times, if necessary by the provision of
further security, or the procuring of further security, in a form
acceptable to the Lender. The Lender shall have the right to call for
additional security, up to an amount of two times the indebtedness of the
Borrower to the Lender under the Facility, if the IPO does not occur on
or before 30 November 2000.
15. DEFAULT
15.1 EVENTS OF DEFAULT
The Lender reserves the right (by sending notice to the Borrower) to
terminate its obligation to make any (or any further) Advance (whereupon
the Available Commitment will be permanently reduced to zero) and/or, as
the case may
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27.
be, to demand immediate repayment of any sum due under the Facility
(together with all unpaid accrued interest and fees and any other sums
then due under any Finance Document, including any amount payable under
7.3), at any time after any of the following Events of Default occurs (for
whatever reason and whether within or beyond the Borrower's or the
Lender's control and whether or not any Event of Default is continuing):
15.1.1 NON-PAYMENT
The Borrower does not pay any sum due under any Finance Document when due
and in the manner required by that Finance Document that non-payment is
not remedied within 4 Business Days after the date on which the Borrower
receives written notice from the Lender requiring it to make payment.
15.1.2 BREACH OF REPRESENTATION
Any representation, warranty or statement by the Borrower or the
Guarantor in any Finance Document is not complied with or is or proves to
have been incorrect when made or deemed repeated.
15.1.3 BREACH OF UNDERTAKING
The Borrower or, as the case may be, the Guarantor does not perform or
comply with any one or more of the obligations assumed by the Borrower or
it in clause 14 of this Agreement or, as the case may be, clause 4 of the
Guarantee.
15.1.4 BREACH OF OTHER OBLIGATION
Any other obligation assumed by the Borrower or the Guarantor under any
Finance Document is not performed or complied with and, if that default
is capable of remedy within 3 Business days, that default is not remedied
within 3 Business days after the Lender has notified the Borrower or, as
the case may be, the Guarantor that the Lender requires it to be
remedied.
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28.
15.1.5 CROSS DEFAULT
Any other Indebtedness of the Borrower or the Guarantor or any other
member of the Group for or in respect of Borrowed Money is or is declared
to be or is capable of being rendered due and payable before its normal
maturity by reason of any actual or potential default, event of default
or the like (however described) or is not paid when due nor within any
applicable grace period in any agreement relating to that Indebtedness
or, as a result of any actual or potential default, event of default or
the like (however described) any facility relating to any such
Indebtedness is or is declared to be or is capable of being cancelled or
terminated before its normal expiry date or any Person otherwise entitled
to use any such facility is not so entitled.
15.1.6 INSOLVENCY
The Borrower or the Guarantor are deemed by law or a court to be
insolvent or unable to pay its or their debts, stop, suspend or threaten
to stop or suspend payment of all or a material part of (or of a
particular type of) its or their debts, begin negotiations or take any
other step with a view to the deferral, rescheduling or other
readjustment of all of (or all of a particular type of) its or their
debts (or of any part which it or they will or might otherwise be unable
to pay when due), propose or make a general assignment or an arrangement
or composition with or for the benefit of the relevant creditors or a
moratorium is agreed or declared in respect of or affecting all or a
material part of (or of a particular type of) the Borrower's Indebtedness
or that of the Guarantor.
15.1.7 ENFORCEMENT PROCEEDINGS
A distress, attachment, execution or other legal process is levied,
enforced or sued out on or against the Borrower's Assets or those of the
Guarantor and is not discharged or permanently stayed within 5 days.
15.1.8 SECURITY ENFORCEABLE
Any Security on or over the Borrower's Assets or those of the Guarantor
becomes enforceable, void or invalid and, except in the case of Security
created by or pursuant to any Security Document, any step (including the
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29.
taking of possession or the appointment of a receiver, manager or
similar) is taken to enforce that Security.
15.1.9 WINDING UP
Any step is taken by any Person with a view to the Borrower's
Winding-up or that of the Guarantor unless the Borrower or the
Guarantor as the case may be is contesting that action in good faith
and is able to show to the Lender's satisfaction that such action will
be struck out or dismissed within 5 days, or the Borrower or the
Guarantor cease or threaten to cease to carry on all or a material part
of its or their business (except for the purpose of and followed by a
reconstruction, amalgamation, reorganisation, merger or consolidation
on terms approved by the Lender before that step is taken) or, as the
case may be, before the relevant cessation or threat.
15.1.10 CHANGE OF CONTROL
Any step is taken by any one with a view to any change in the
Borrower's ownership and/or control and/or that of the Guarantor.
15.1.11 ILLEGALITY
It is or will become unlawful for the Borrower or the Lender to perform
their obligations under any Finance Document or, as the case may be,
for the Guarantor to perform its obligations under any Finance Document
to which they are party, either in whole or in part.
15.1.12 LITIGATION
Any litigation, arbitration or administrative proceeding is current
pending or threatened -
15.1.12.1 to restrain the entry into, exercise of any of the Borrower's rights
and/or the performance or enforcement of or compliance with any of
the Borrower's obligations under any Finance Document and/or those of
the Guarantor under any Finance Document to which they are a party;
or
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30.
15.1.12.2 which has or could have a Material Adverse Effect on the Borrower or
the Guarantor.
15.1.13 GUARANTEE
The Guarantee is not (or is claimed by the Borrower or the Guarantor
not to be) in full force and effect.
15.1.14 SECURITY DOCUMENTS
At any time after any Security Document has been entered into, that
Security Document is not in full force and effect or does not create,
as security for the obligations expressed to be secured by it, valid,
legally binding and enforceable Security over the assets expressed to
be charged by it and having the ranking and priority which it is
expressed to have.
15.1.15 MATERIAL ADVERSE CHANGE
Any event(s) occur(s) or circumstances arise which the Lender
reasonably determine to give grounds for believing that the Borrower
and/or the Guarantor will or may not (or will or may be unable to)
perform or comply with any one or more of the Borrower's obligations
under any Finance Document, or the Lender reasonably determines that a
material adverse change has occurred in the financial condition of the
Borrower or the Guarantor or the market conditions since the date of
this Agreement.
15.2 DEFAULT INTEREST
15.2.1 INTEREST ON OVERDUE SUMS
If the Borrower does not pay any sum due under any Finance Document
when due and in the manner required by that Finance Document, it shall
pay interest in accordance with this clause 15.2 on the amount from
time to time outstanding in respect of that overdue sum for the period
beginning on its due date and ending on the date of its receipt by the
Lender (both before and after judgment).
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31.
15.2.2 DEFAULT INTEREST PERIODS AND RATES
Under this clause 15.2 shall be calculated and payable by reference to
successive Interest Periods, each of which (other than the first, which
shall begin on the due date) shall begin on the last day of the previous
one. Each such Interest Period shall be of 1 month period or such
shorter period as the Lender may from time to time select and the rate
of interest applicable for a particular Interest Period or any part
thereof shall be the rate per annum equal to the sum of 2% and the rate
which would be applicable to that Interest Period under clause 6 if that
overdue sum was a principal amount which was not overdue.
15.2.3 PAYMENT AND COMPOUNDING OF DEFAULT INTEREST
Interest accrued under this clause 15.2 shall be due on demand but, if
not previously demanded, the interest accrued on an overdue sum during a
particular Interest Period shall be paid on the last day of that
Interest Period. Any such interest not paid when due shall be added to
the overdue sum and itself bear interest accordingly.
15.3 MISCELLANEOUS INDEMNITIES
The Borrower shall on demand indemnify the Lender against any funding or
other cost, loss, expense or liability (including loss of Margin) sustained
or incurred by the Lender as a result of:
15.3.1 an Advance not being made by reason of non-fulfillment of any of the
conditions precedent in any Finance Document, where compliance with such
conditions precedent is within the Borrower's control, or the Borrower's
purporting to revoke a notice requesting an Advance;
15.3.2 the occurrence or continuance of any Event of Default or Potential Event
of Default; or
15.3.3 the Lender's receipt or recovery of all or any part of an Advance or
overdue sum otherwise than on the last day of an Interest Period
relating to that overdue sum.
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32.
15.4 CURRENCY INDEMNITY
15.4.1 In respect of any sum payable by the Borrower under any Finance
Document (or any damages in relation thereto), Dollars shall be the sole
currency of account and payment.
15.4.2 Any amount received or recovered by the Lender in a currency other than
Dollars (whether as a result of, or the enforcement of, a judgment or
order of a court of any jurisdiction, in a Winding-up or otherwise) in
respect of any sum due to it under any Finance Document shall only
constitute a discharge to the Borrower and the Guarantor to the extent
of the amount in Dollars which the Lender is able, in accordance with
its usual practice, to purchase with the amount so received or recovered
in that other currency on the date of that receipt or recovery (or, if
it is not practicable to make that purchase on that date, on the first
date on which it is practicable to do so).
15.4.3 If that Dollar amount is less than the amount expressed to be due to the
Lender under any Finance Document, the Borrower shall indemnify the
Lender against any loss sustained by it as a result. In any event, the
Borrower shall indemnify the Lender against the cost of making any such
purchase. For the purpose of this clause 15.4, it shall be sufficient
for the Lender to show that it would have suffered a loss if it had made
such a purchase.
15.5 INDEMNITIES ADDITIONAL
Each indemnity in this Agreement constitutes a separate and independent
obligation from the other obligations in this Agreement and the Guarantee,
shall give rise to a separate and independent cause of action, shall apply
irrespective of any indulgence granted by the Lender and shall continue in
full force and effect despite any judgment, order, claim or proof for a
liquidated amount in respect of any sum due under this Agreement or the
Guarantee or any judgment or order.
15.6 BREAKING COSTS
If the Lender receives or recovers all or part of an Advance or overdue
sum otherwise than on the last day of an Interest Period relating to that
Advance or
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33.
overdue sum, the Borrower shall pay the Lender an amount equal to the
Breaking Cost (where the Breaking Cost is a positive number) and the
Lender shall pay the Borrower the Breaking Cost (where the Breaking Cost
is a negative number).
16. [DELETED PURSUANT TO LETTER AGREEMENT DATED SEPTEMBER 29, 2000.]
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34.
17. MISCELLANEOUS
17.1 EXPENSES AND STAMP DUTY
The Borrower shall reimburse the Lender on demand for:
17.1.1 all reasonable expenses (including taxes thereon and legal fees)
incurred by the Lender in connection with the preparation, negotiation,
entry into or registration of each Finance Document and/or any
amendment, supplement, waiver or consent to or in respect of any Finance
Document requested by or on behalf of the Borrower or the Guarantor
(whether or not entered into or given) or in protecting, realising or
enforcing, or any consideration by the Lender as to whether to realise
or enforce the same,
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35.
any of the Lender's rights under or in connection with any Finance
Document and/or any such amendment, supplement, waiver or consent; and
17.1.2 any stamp, documentary, registration or similar taxes payable in
connection with this Agreement and/or the Guarantee and any penalty for
late payment or non-payment thereof.
17.2 LOAN ACCOUNTS
The entries in the Lender's books shall be prima fade evidence of the
existence and amounts of the Borrower's obligations recorded in them. The
Lender's certificate as to any other sum payable to the Lender under any
Finance Document, and any other certificate, determination, notification,
opinion or the like of the Lender's provided for in any Finance Document
shall be conclusive save for manifest error.
17.3 NOTICES
17.3.1 Each notice or other communication under any Finance Document shall be
by fax or letter and shall be sent:
17.3.1.1 to the Borrower at fax no.(0000) 000-0000 or the Borrower's address
set out below (in each case, marked for the attention of Xx X X
Xxxxxxx); or
17.3.1.2 to the Lender at fax no. (000) 0 000 0000 or at the Lender's address
set out below (in each case, marked for the attention of Xxxxx Xxxxxx
X'Xxxxx, Managing Director and Xxxxxxxx Xxxxxxx Xxxxxxxx, Financial
Manager), with a copy to Gensec Bank Limited at fax number (2711) 778
6906 or at the address of Gensec Bank Limited set out below (in each
case marked for the attention of the General Manager, Credit).
or to such other fax number or address or marked for such other
attention as the relevant party may from time to time notify the other
for the purpose of any Finance Document.
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36.
17.3.2 Any such notice or communication from the Lender to the Borrower shall
be conclusively deemed received by the Borrower when sent (if by fax),
or when delivered (if by letter), to the appropriate number or address
and shall be effective notwithstanding any change of fax number or
address or that it be returned undelivered.
17.3.3 Any notice or communication to the Lender shall be conclusively deemed
received by the Lender when actually received by the Lender (except
that, if received by the Lender on a non-Business Day or after the
Lender's normal banking hours, it shall be deemed received at the
beginning of the Lender's normal banking hours on the next Business Day
after such actual receipt).
17.3.4 Any notice or other communication shall be irrevocable.
17.3.4.1 Borrower's address:
Xxxxxxxxx Xxxxx
X'Xxxxx
Xx Xxxxxxxx
Xxxxxxxx
Xxxxxxx Xxxxxxx
17.3.4.2 Lender's address:
0 Xxxxxxxxxxx Xxxxxx
Xxxxx Xxxxx Xxxx
Xxxxxx 0
Xxxxxxx
17.3.4.3 Gensec Bank Limited's address:
0X Xxxxxx Xxxx
Xxxxxxx Xxxx
Xxxxxxxxxxxx
0000
17.4 WAIVERS AND REMEDIES
No failure by the Lender to exercise, or delay by the Lender in exercising
any right or remedy under any Finance Document, will operate as a waiver
thereof, nor will any single or partial exercise by the Lender of any
right or
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37.
remedy preclude any other or further exercise of that or any other right
or remedy. The rights and remedies provided for in any Finance Document
are cumulative and not exclusive of any other rights or remedies which the
Lender may at any time have (whether provided by law or otherwise).
17.5 AMENDMENTS
Any provision of any Finance Document and any Event of Default or
Potential Event of Default may be amended, supplemented or waived only if
the Lender (and, in the case of an amendment or supplement, the Borrower
or, as the case may be, the Guarantor) so agree in writing. Any such
waiver, and any consent by the Lender under any provision of any Finance
Document, must be in writing and may be given subject to any conditions
thought fit by the Lender. Any waiver or consent shall be effective only
in the instance and for the purpose for which it is given.
17.6 PARTIAL INVALIDITY
The illegality, invalidity or unenforceability of any provision of any
Finance Document under the law of any jurisdiction shall not affect its
legality, validity or enforceability under the law of any other
jurisdiction nor the legality, validity or enforceability of any other
provision of that or any other Finance Document.
17.7 ASSIGNMENT
Each Finance Document to which the Borrower is party shall benefit and
bind the Borrower, the Lender and the Borrower's and the Lender's
respective successors and permitted assignees. The Borrower may not assign
or transfer all or any of its rights or obligations under any Finance
Document. The Lender may at any time(s) assign or transfer all or any of
its rights and obligations under any Finance Document without the
Borrower's consent. Any reference to the Lender in any Finance Document
shall be read and construed accordingly.
17.8 DISCLOSURE OF INFORMATION
The Lender may disclose to any actual or potential assignee,
sub-participant or the like such information about the Borrower, the
Guarantor or any other Person as the Lender thinks fit.
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38.
17.9 SET-OFF
By signing this Agreement, the Lender will authorise the Borrower to apply
(without prior notice) any credit balance (whether or not then due) to
which the Borrower are at any time beneficially entitled on any account
at, any sum held to the Borrower's order by and/or any liability to the
Lender of, any of the Lender's offices in or towards satisfaction of any
sum then due from the Borrower to the Lender under any Finance Document
and unpaid and, for that purpose, to convert one currency into another
(but so that nothing in this clause 16.9 shall be effective to create a
charge). The Lender shall not be obliged to exercise any right given to it
by this provision.
17.10 GOVERNING LAW
This Agreement, and the Borrower's agreement to be bound by it, shall be
governed by and construed in accordance with the laws of England.
17.11 JURISDICTION
17.11.1 The courts of England are to have jurisdiction to settle any disputes
which may arise out of or in connection with any Finance Document and,
accordingly, any legal action or proceedings arising out of or in
connection with any Finance Document ("PROCEEDINGS") may be brought in
those courts. The Borrower irrevocably submits to the jurisdiction of
those courts and waive any objection to Proceedings in such courts,
whether on the ground of venue or on the ground that the Proceedings
have been brought in an inconvenient forum. This submission is made for
the Lender's benefit and shall not limit its right to take Proceedings
in any other court of competent jurisdiction nor shall the taking of
Proceedings in one or more jurisdictions preclude it from taking
Proceedings in any other jurisdiction, whether concurrently or not.
17.11.2 The Borrower irrevocably appoints Xxxxxxxx Xxxxxxx as its authorised
agent for service of process in England. If for any reason any process
agent shall cease to act as such or no longer has an address in England,
the Borrower shall appoint a new agent for service of process in
England, and deliver to the Lender a copy of the new agent's acceptance
of that appointment, within 30 days. Nothing shall affect the Lender's
right to serve process in any other manner permitted by law.
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17.12 COUNTERPARTS
This Agreement may be executed in one or more counterparts, any one of
which need not contain the signatures of more than one party, but all
such counterparts taken together shall constitute one and the same
instrument.
IN WITNESS whereof this document has been executed by the parties
on 25 August 2000.
WITNESS: for and on behalf of UTi WORLDWIDE INC
/s/ XXXX XXXXXXXX by /s/ X. X. XXXXXXX
------------------------------------
who warrants that he is duly authorised
WITNESS: for and on behalf of GENSEC IRELAND
LIMITED
/s/ S. SPARTANOS
by /s/ X. X. X'XXXXX /s/ X. X. XXXXXXXX
------------------------------------
who warrants that he is duly authorised
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SCHEDULE 1
CONDITION PRECEDENT DOCUMENTS
1. The Guarantee duly signed by the Guarantor substantially in the form of
Schedule 2.
2. Written confirmation from the Borrower supported by cash flow forecasts for
the next year, that there will be sufficient cash flow to service the
Facility and that the Facility shall be repaid within 12 months from draw
down.
3. Each Security Document, duly executed by the parties to it.
4. Certified copies of the constitutional documents of the Borrower and of the
Guarantor.
5. Certified copies of the resolutions passed by the board of directors of the
Guarantor authorizing each Finance Document to which it is a party and
authorizing named persons to sign all relevant notices or other documents on
their behalf and including, where appropriate, authorization to sign or seal
such Finance Document as a deed.
6. Certified specimens of the signatories for the Guarantor to each Finance
Document to which they are a party and of any other person authorized by any
such resolutions to sign any such notice or other document.
7. Certified copies of resolutions passed by the shareholders of the Guarantor.
8. A legal opinion from Xxxxx & XxXxxxxx, substantially in agreed form, in
respect of this Agreement.
9. A legal opinion from Xxxxx & XxXxxxxx, substantially in agreed form, in
respect of the Guarantee and the Assignment of Receivables.
10. A legal opinion from Xxxxxx Westwood & Riegels, substantially in agreed
form, in respect of this agreement.
11. Execution by the relevant parties of the Acquisition Agreement and that
Agreement becoming unconditional in accordance with its terms (except
insofar as those terms relate to this agreement). Copies of that Agreement
must be supplied to the Lender.
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12. Evidence of the acceptance by the process agent of its appointment in clause
17.11.2 of the Agreement.
13. Written confirmation by the Borrower of the expected date of the IPO. A
final copy of the prospectus shall be forwarded to the Lender.
14. There being no material adverse changes in law, tax or capital adequacy
regulations in any relevant jurisdiction nor any material change in any
relevant guidelines in respect of equivalent loan transactions between the
date of this Agreement and drawdown, nor any material adverse change with
respect to the Borrower which could reasonably be expected to affect
materially and adversely the ability of the Borrower to perform its
obligations under this Agreement.
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SCHEDULE 2
GUARANTEE
This Deed of Guarantee is given on ________________________________ by UTi (HK)
Limited (the "Guarantor") in favour of Gensec Ireland Limited (the "Lender") and
its assignees and successors as provided in clause 6.1 of this Guarantee.
AND WITNESSES as follows:
1. INTRODUCTION
By an Agreement dated today (the "FACILITY AGREEMENT") between the Lender
and UTi Worldwide Inc. (the "BORROWER"), the Lender has agreed to make
available to the Borrower a US Dollar bridge financing facility on the terms
and conditions set out in the Facility Agreement. It is a condition
precedent to the Facility becoming available that the Guarantor gives this
Guarantee.
2. INTERPRETATION
Terms defined and references construed in the Facility Agreement (including
the construction of references to the Facility Agreement) have the same
meaning and construction in this Guarantee except to the extent that the
context requires otherwise:
3. GUARANTEE AND INDEMNITY
3.1 The Guarantor unconditionally and irrevocably guarantees to the Lender
that, if for any reason the Borrower does not pay any sum payable by it
under any Finance Document by the time, on the date and otherwise in the
manner specified in that Finance Document (whether on the normal due date,
on acceleration or otherwise), the Guarantor will pay that sum on demand by
the Lender.
3.2 As between the Guarantor and the Lender (without affecting the Borrower's
obligations) the Guarantor shall be liable under this Guarantee as if it
were the sole principal debtor and not merely a surety. Accordingly, the
Guarantor shall not be discharged, nor shall its liability be affected, by
anything which would not discharge it or affect its liability if it were
the sole principal debtor, including:
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3.2.1 any time, indulgence, concession, waiver or consent at any time given to
the Borrower or any other Person;
3.2.2 any amendment or supplement to any provision of any Finance Document or
to any Security or other guarantee;
3.2.3 the making or absence of any demand on the Borrower or any other Person
for payment;
3.2.4 the enforcement or absence of enforcement of any Finance Document or of
any Security or other guarantee;
3.2.5 the taking, existence or release of any Security or other guarantee;
3.2.6 the Winding-up of the Borrower or any other Person, or any step being
taken for any such Winding-up; or
3.2.7 the illegality, invalidity or unenforceability of, or any defect in, any
provision of any Finance Document or any Security or other guarantee or
any of the obligations of any of the parties under or in connection with
any Finance Document or any Security or other guarantee.
3.3 The Guarantor's obligations under this Guarantee are and will remain in
full force and effect by way of continuing security until no sum remains to
be lent under any Finance Document and the Lender has irrevocably received
or recovered all sums payable under any Finance Document. Furthermore,
those obligations of the Guarantor are additional to, and not instead of,
any Security or other guarantee at any time existing in favour of any
Person, whether from the Guarantor or otherwise, and may be enforced
without first having recourse to the Borrower, any other Person, any
Security or any other guarantee. The Guarantor irrevocably waives all
notices and demands of any kind.
3.4 So long as any sum remains to be lent or remains payable under any Finance
Document:
3.4.1 any right of the Guarantor, by reason of the performance of any of its
obligations under this Guarantee, to be indemnified by the Borrower, to
prove in respect of any liability in the Winding-up of the Borrower or to
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take the benefit of or enforce any Security or other guarantee shall (and
shall only) be exercised and enforced in such manner and on such terms as
the Lender may require; and
3.4.2 any amount received or recovered by the Guarantor -
3.4.2.1 as a result of any exercise of any such right; or
3.4.2.2 in the Winding-up of the Borrower
shall be held in trust for the Lender and immediately paid to the Lender.
3.5 The Guarantor shall on demand indemnify the Lender against any funding or
other cost, loss, expense or liability (including loss of Margin) sustained
or incurred by the Lender as a result of it being required for any reason
(including any bankruptcy, insolvency, Winding-up or similar law of any
jurisdiction) to refund all or part of any amount received or recovered by
it in respect of any sum payable by the Borrower under the Facility
Agreement and shall in any event pay to the Lender on demand the amount so
refunded by it.
3.6 For the purpose of enabling the Lender to maximize its recoveries in any
actual or potential Winding-up, any amount received or recovered by the
Lender (otherwise than as a result of a payment by the Borrower to the
Lender) in respect of any sum payable by the Borrower under any Finance
Document may be placed by the Lender in an interest bearing suspense
account. That amount may be kept there (with any interest earned being
credited to that account) unless and until the Lender is satisfied that it
is not obliged to pay any further sum under any Finance Document and that
it has irrevocably received or recovered the Advances, all interest accrued
thereon and any other sums payable to it under any Finance Document.
3.7 As separate, independent and alternative stipulations, the Guarantor
unconditionally and irrevocably agrees:
3.7.1 that any sum which, although expressed to be payable by the Borrower
under any Finance Document, is for any reason (whether or not now
existing and whether or not now known or becoming known to the Borrower,
the Guarantor or the Lender) not recoverable from the
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45.
Guarantor on the basis of a guarantee shall nevertheless be recoverable
from it as if it were the sole principal debtor and shall be paid by it
to the Lender on demand and
3.7.2 as a primary obligation to indemnify the Lender against any loss suffered
by it as a result of any sum expressed to be payable by the Borrower
under any Finance Document not being paid by the time, on the date and
otherwise in the manner specified in that Finance Document or any payment
obligation of the Borrower under any Finance Document being or becoming
void, voidable or unenforceable for any reason (whether or not now
existing and whether or not now known or becoming known to the Borrower,
the Guarantor or the Lender), the amount of that loss being the amount
expressed to be payable by the Borrower in respect of the relevant sum.
4. REPRESENTATIONS AND WARRANTIES
The Guarantor represents and warrants to the Lender as follows:
4.1 The Guarantor is a limited liability company duly incorporated and validly
existing under the laws of Hong Kong with power to enter into, exercise any
rights and perform its obligations under each Finance Document to which it
is party.
4.2 All actions, conditions and things required to be taken, fulfilled and done
(including the obtaining of any necessary consents, the making of
registrations and the like) in order:
4.2.1 to enable it lawfully to enter into, exercise any rights and perform and
comply with its obligations under each Finance Document to which it is
party;
4.2.2 to ensure that those obligations are valid, legally binding and
enforceable;
4.2.3 to ensure that those obligations rank and will at all times rank in
accordance with clause 5.2;
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4.2.4 to enable it to create the Security to be created by it by or pursuant to
each Security Document to which it is party and to ensure that that
Security has the priority and ranking which it is expressed to have; and
4.2.5 to make each Finance Document admissible in evidence in the courts of
England have been taken, fulfilled and done.
4.3 Its entry into, exercise of any rights and/or performance of its
obligations under any Finance Document do not and will not violate, or
exceed any guaranteeing or other power or restriction granted or imposed
by:
4.3.1 any law to which it is subject; or
4.3.2 its constitutional documents; or
4.3.3 any other agreement to which the Guarantor, the Borrower or any other
member of the Group is a party or which is binding on either of them or
their respective Assets;
or (save as provided in the Security Documents) result in the existence of,
or oblige either of them to create, any Security over those Assets.
4.4 The Guarantor's obligations under each Finance Document to which it is
party are valid, binding and enforceable and each Security Document to
which it is party creates (or, once entered into, will create) as security
for the obligations expressed to be secured by it, valid, binding and
enforceable Security over the assets expressed to be charged by it in
favour of the Lender and having the priority and ranking expressed to be
created by that Security Document.
4.5 No Event of Default or Potential Event of Default has occurred, or will
occur as a result of making any Advance, except for any waived in
accordance with clause 16.4 of the Facility Agreement.
4.6 No Security exists on or over the Assets of the Guarantor or any other
member of the Group except as permitted by clause 4.2.
4.7 Its audited financial statements as at 31 January 2000 and for the year
then ended and as delivered to the Lender (with copies of the related
directors' and auditors' reports):
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47.
4.7.1 include such financial statements as are required by the laws of Hong
Kong and accounting standards, principles and practices generally
accepted in Hong Kong;
4.7.2 save as stated in the notes thereto, were prepared and audited in
accordance with the laws of Hong Kong and International Accounting
Standards, principles and practices generally accepted in Hong Kong and
consistently applied; and
4.7.3 together with those notes, give a true and fair view of its financial
condition and operations (or, in the case of consolidated accounts, the
consolidated financial condition and operations of the Guarantor as at
that date and for the year then ended.
4.8 There has been no material adverse change in the Guarantor's financial
condition or operations since 31 January 2000, nor in the consolidated
financial condition or operations of the Group since that date.
4.9 So far as it is aware, after having made due and careful enquiry, no
litigation, arbitration or administrative proceeding is current, pending or
threatened:
4.9.1 to restrain its entry into, exercise of any rights under and/or
performance or enforcement of or compliance with its obligations under
each Finance Document to which it is party; or
4.9.2 which has or could have a Material Adverse Effect on it or the Borrower.
4.10 No meeting has been convened for its Winding-up, no such step is intended
by it and, so far as it is aware, no petition, application or the like is
outstanding for its Winding-up.
4.11 The Guarantor has good and marketable title to the assets expressed to be
charged by it by or pursuant to the Security Documents free and clear of
all Security except the Security created by or pursuant to, or permitted
by, the Finance Documents.
4.12 There are no material facts in relation to the Guarantor and/or the Group
and/or the Assets and affairs of the Guarantor and/or the Group which have
not been disclosed to the Lender before the date of the Facility Agreement
and which, if disclosed, might reasonably be expected adversely to affect
the decision of a Person considering whether to provide finance to the
Borrower or the Guarantor.
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48.
4.13 To the best of its knowledge each of the Borrower's representations and
warranties in clause 13 of the Facility Agreement is correct.
4.14 Each of the representations and warranties in clauses 4.1 to 4.13 will be
correct and complied with so long as any sum remains to be lent and/or
remains payable under any Finance Document as if repeated then by reference
to the then existing circumstances.
5. UNDERTAKINGS
5.1 The Guarantor gives the undertakings set out in this clause 5 which will
apply for as long as any sum remains to be lent and/or remains payable
under any Finance Document.
5.2 Without prejudice to any other provision of this Guarantee, the Guarantor's
payment obligations under each Finance Document to which it is party rank
and will at all times rank at least equally and ratably in all respects
with all its other unsecured Indebtedness other than such Indebtedness as
would, by virtue only of the operation of law, be preferred in the event of
its Winding-up.
5.3 The Guarantor will not, and will use its best endeavours to ensure that no
other member of the Group will, create or have outstanding any Security on
or over its Assets except for:
5.3.1 liens arising solely by operation of law (or by an agreement evidencing
the same) in the ordinary course of its business in respect of
Indebtedness which either -
5.3.1.1 has been due for less than 7 days; or
5.3.1.2 is being contested in good faith and by appropriate means;
5.3.2 pledges of goods, the related documents of title and/or other related
documents arising or created in the ordinary course of its business as
security only for Indebtedness to a bank or financial institution
directly relating to the goods or documents on or over which that pledge
exists;
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5.3.3 the Security detailed in the Exhibit to this Guarantee (but, except with
the prior consent of the Lender, the principal, capital or nominal amount
secured by any such Security may not be increased beyond the maximum such
amount which may be secured by the relevant Security at the date of the
Facility Agreement as detailed in that Exhibit);
5.3.4 any Security existing at the time of acquisition on or over any Asset
acquired by it (otherwise than from another member of the Group) after
the date of the Facility Agreement and not created in contemplation of or
in connection with that acquisition (but, except with the prior consent
of the Lender, the principal, capital or nominal amount secured by any
such Security and outstanding at the time of acquisition may not be
increased);
5.3.5 any Security created by a member of the Group (other than the Borrower,
or the Guarantor) in favour of the Borrower or the Guarantor;
5.3.6 in the case of a Person which becomes a member of the Group after the
date of the Facility Agreement, any Security existing on or over its
Assets when it becomes a member of the Group and not created in
contemplation of or in connection with it becoming a member of the Group
(provided that, except with the prior consent of the Lender,
5.3.6.1 the principal, capital or nominal amount secured by any such Security
and outstanding when the relevant Person becomes a member of the Group
may not be increased except by reason of any fluctuation in the amount
outstanding under, and within the limits and in accordance with the
terms of, facilities which exist and are secured by the relevant
Security when it becomes a member of the Group; and
5.3.6.2 no Indebtedness may be secured by any such Security which is not
secured by the relevant Security when the relevant Person becomes a
member of the Group;
5.3.7 any Security created on any Asset acquired by it after the date of the
Facility Agreement for the sole purpose of financing or re-financing that
acquisition and securing a principal, capital or nominal amount not
exceeding 80% of the cost of that acquisition;
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5.3.8 any Security on credit balances with a bank or similar financial
institution as security for back-to-back or similar finance or net
overdraft facilities to be provided to the Guarantor;
5.3.9 any other Security created or outstanding with the prior written consent
of the Lender;
5.3.10 any other Security created or outstanding on or over Assets of the
Guarantor provided that the aggregate outstanding principal, capital or
nominal amount secured by all Security created or outstanding under this
exception on or over Assets of the Borrower and the Guarantor must not at
any time exceed US$5,000,000 or its equivalent (as reasonably determined
by the Lender) in respect of any one Asset or US$25,000,000 or its
equivalent (as reasonably determined by the Lender) in the aggregate.
5.4 DISPOSALS
5.4.1 The Guarantor will not and will ensure that no other member of the Group
will (whether by a single transaction or a number of related or unrelated
transactions and whether at one time or over a period of time) sell,
transfer, lease out, lend or otherwise dispose of (whether outright, by a
sale-and-repurchase or sale-and-leaseback arrangement, or otherwise) its
Assets.
5.4.2 The following disposals shall not be taken into account under this clause
5.4, except in the case of Assets expressed to be subject to a fixed
Charge or assignment under or pursuant to any Security Document:
5.4.2.1 disposals in the ordinary course of trading;
5.4.2.2 disposals at arm's length and on normal commercial terms of obsolete
Assets;
5.4.2.3 the payment of cash as consideration for the acquisition of any Asset
at arm's length and on normal commercial terms;
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5.4.2.4 the temporary application of funds not immediately required in the
relevant Person's business in the purchase or making of short-term
investments, or the realisation of such investments;
5.4.2.5 any disposal which the Lender shall have agreed in writing shall not be
taken into account.
5.4.3 It will ensure that there is no material change in the nature of its
business, or the business of the Borrower (whether by a single
transaction or a number of related or unrelated transactions, whether at
one time or over a period of time and whether by disposal, acquisition or
otherwise).
5.4.4 It will not do or omit to do anything which would. or might result in a
change in control of itself or the Borrower.
5.4.5 It will notify the Lender of the occurrence of any Event of Default or
Potential Event of Default immediately upon becoming aware of it and will
from time to time on request promptly deliver to the Lender a certificate
stating that, so far as it is aware, no Event of Default or Potential
Event of Default has occurred or setting out details of any Event of
Default or Potential Event of Default of which it is aware and the action
taken or proposed to be taken to remedy it.
5.5 ACCOUNTS
5.5.1 As soon as available and in any event within 90 days after the end each
of its financial years (beginning with the current one), it will deliver
to the Lender a copy of its annual report and audited accounts (both
consolidated and unconsolidated) as at the end of and for that financial
year, together with copies of the related directors' and auditors'
reports.
5.5.2 At the same time as sent to its shareholders (or any class of its
shareholders) or creditors, it will deliver to the Lender a copy of any
circular, document or other written information sent to its shareholders
(or any class of its shareholders) or creditors as such.
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5.5.3 With each set of accounts delivered under clause 5.5.1, it will deliver
to the Lender a certificate listing its subsidiaries and subsidiary
undertakings as at the end of the relevant financial year.
5.5.4 It will promptly deliver to the Lender details of any litigation,
arbitration or administrative proceeding which has rendered or may render
the representation and warranty in clause 4.7 incorrect.
5.5.5 It will promptly deliver to the Lender such information relating to its
financial condition or business as the Lender may from time to time
reasonably request.
6. MISCELLANEOUS
6.1 ASSIGNMENT
6.1.1 Each Finance Document to which it is party shall be binding on the
Guarantor and its successors and shall benefit the Lender, its assignees
and their respective successors. Any reference in this Guarantee to the
Lender shall be construed accordingly. The Guarantor may not transfer all
or part of its obligations under any Finance Document.
6.1.2 Any assignment or transfer by the Lender in accordance with clause 16.7
of the Facility Agreement of all or part of its rights under the Facility
Agreement will assign or, as the case may be, transfer all or, as the
case may be, the corresponding part of its rights under this Guarantee.
No consent shall be required from the Guarantor to any such assignment or
transfer.
6.1.3 Each notice or other communication under this Guarantee shall be made as
provided in clause 17.3 of the Facility Agreement (which clause, with any
necessary consequential amendments, shall apply to the Guarantor and this
Guarantee). The initial fax number, address and marking (if any)
designated by the Guarantor for the purpose of this Guarantee are as
follows:
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Fax No: (000) 0000 0000
Address: 00/X, XXX Xxxxx
Xxxxx Xxxxx Xxxxxx
123 Hoi Bun Road
Xxxx Xxxx
Kowloon
Hong Kong
Attention: Xx Xxxxx Xxxxxxxxxxx
6.1.4 General: Paragraphs 9 (Taxes), 12 (Payments), 15.4 (Currency Indemnity),
15.5 (Indemnities Additional), 17.2 (Loan Accounts), 17.4 (Waivers and
Remedies), 17.6 (Partial Invalidity), 17.8 (Disclosure of Information)
and 17.9 (Set-off) of the Facility Agreement shall apply, with any
necessary consequential amendments, to the Guarantor and this Guarantee.
The Guarantor is aware of and accepts the provisions of clause 17.5
(Amendments) of the Facility Agreement.
6.1.5 Governing Law: This Guarantee shall be governed by and construed in
accordance with the laws of Hong Kong.
6.2 JURISDICTION
The courts of Hong Kong are to have jurisdiction to settle any disputes
which may arise out of or in connection with any Finance Document and,
accordingly, any legal action or proceedings arising out of or in
connection with any Finance Document ("Proceedings") may be brought in
those courts. The Guarantor irrevocably submits to the jurisdiction of
those courts and waives any objection to Proceedings in such courts,
whether on the ground of venue or on the ground that the Proceedings have
been brought in an inconvenient forum. This submission is made for the
benefit of the Lender and shall not limit the right of the Lender to take
Proceedings in any other court of competent jurisdiction nor shall the
taking of Proceedings in one or more jurisdictions preclude the Lender from
taking Proceedings in any other jurisdiction, whether concurrently or not.
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IN WITNESS whereof this Deed has been executed by the parties and is intended to
be and is hereby delivered on the day and year first above written.
THE GUARANTOR
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was affixed to this }
guarantee in the }
presence of }
