Hurco Europe Limited
c/o Hurco Companies, Inc.
Xxx Xxxxxxxxxx Xxx
Xxxxxxxxxxxx
Xxxxxxx 00000-0000
XXX
For the attention of: Xx Xxxxx X. Xxxx
January 15, 2004
Dear Sir
(pound)700,000 Revolving Credit Facility and (pound)300,000 Overdraft Facility
We, Bank One, NA (the "Bank", which expression includes our successors, assigns
and permitted transferees), are pleased to offer Hurco Europe Limited (the
"Borrower"), on the terms and conditions set out in this agreement:
(a) a revolving credit facility (the "Revolving Credit Facility") of up to
(pound)700,000; and
(b) an overdraft facility (the "Overdraft Facility") of up to (pound)300,000,
(together, the "Facilities") to be used for the Borrower's general working
capital and corporate requirements.
1 Definitions
In this agreement, unless the context otherwise requires:
"Additional Cost" means, in relation to any period for which a
calculation of LIBOR is to be made, a percentage calculated for such
period at an annual rate conclusively determined by the Bank to be the
cost to the Bank of complying with the Bank of England's reserve asset
special deposit and mandatory liquid assets requirements from time to
time;
"Advance" means each borrowing by way of an advance under the Revolving
Credit Facility or (as the context requires) the principal amount of that
borrowing outstanding at any relevant time;
"Affiliate" means in relation to a company (i) any company or body
corporate which is for the time being a holding company or a subsidiary
of that company or a subsidiary of any such holding company ("holding
company" and "subsidiary" having the meanings respectively given thereto
by Section 736 of the Companies Act 1985) and (ii) any person or group of
persons which, or which together, control (within the meaning of Section
840 of the Income and Corporation Taxes Act 1988) that company;
"Banking Day" means a day when dealings in Sterling are carried on in the
London interbank market and banks are open for business in London;
"Base Rate" means the Bank's base rate for Sterling as varied from time
to time;
"Borrowing Base" means, at any time, an amount equal to the aggregate of:
(a) 80 per cent of the Eligible Trade Debts;
(b) 50 per cent of the Eligible Finished Goods Inventory; and
(c) 40 per cent of the Eligible Unfinished Goods Inventory;
"Borrowing Base Certificate" means a certificate substantially in the
form of Appendix 1 or as commonly in use by the Bank or its affiliates;
"Collateral" means the Charged Assets as such term is defined in the
Debenture;
"Credit Documents" means the US Credit Agreement, the US Security
Documents, the Parent Guarantee and any other agreement, instrument or
documents designated as such by the Bank;
"Debenture" means the debenture dated on or about the date of this
agreement in form and substance satisfactory to the Bank in favour of the
Bank granting, inter alia, fixed charges over the Borrower's book debts,
inventory and plant, machinery and equipment and a floating charge over
all of the Borrower's undertaking, properties and assets to secure all
the Borrower's obligations, liabilities and indebtedness from time to
time hereunder;
"Default" means any Event of Default or any event or circumstance which
would upon the giving of a notice by the Bank and/or expiry of the
relevant period and/or fulfilment of any other condition (in each case as
specified in clause 14), constitute an Event of Default;
"Eligible Finished Goods Inventory" means the finished goods inventory of
the Borrower located in the United Kingdom in each case valued at the
book value given in the Borrower's latest monthly inventory listings
provided in each case that the Bank has not determined that such
inventory or goods are not acceptable for any reason having regard to its
age, type, category and/or quality;
"Eligible Unfinished Goods Inventory" means the raw material inventory
and parts inventory of the Borrower located in the United Kingdom,
excluding work in progress, in each case valued at the book value given
in the Borrower's latest monthly inventory listings provided in each case
that the Bank has not determined that such inventory or goods are not
acceptable for any reason having regard to its age, type, category and/or
quantity;
"Eligible Trade Debt" means a book debt of the Borrower:
(a) in relation to which the relevant debtor is domiciled in
the United States of America or European Union; and
(b) which is legally and beneficially owned (with full title
guarantee) by the Borrower; and
(c) which is not subject to any restrictions on assignment or
charge so that it can be charged or otherwise secured to
the Bank in accordance with the Debenture; and
(d) which the relevant debtor is bound to pay, and does not
dispute that it is bound to pay, in full on the due date;
and
(e) which is not and is not asserted by the relevant debtor to
be:
(i) subject of any set-off, counterclaim or other equity; or
(ii) subject to any discount (not already accounted for in the
Borrower's books) or attempt to vary the terms of its
payment; or
(iii) the subject of any action or attempted action for its
recovery; or
(iv) a debt in connection with a contract which has been
breached; or
(v) a debt in connection with any goods or services which have
been rejected for any reason whatsoever;
and
(f) in relation to which the relevant debtor has not suffered
an event which if it had occurred in relation to the
Borrower would have been an Event of Default under
clauses 14.1.5 to 14.1.8 (inclusive); and
(g) which, if such debt is subject to credit insurance
arrangements, is otherwise acceptable to the Bank, in its
sole discretion; and
(h) which either:
(i) (in the case of debts required to be paid within 30 days
from the invoice date) has not remained unpaid for a
period exceeding 90 days past due; or
(ii) (in the case of debts not required to be paid within 30
days from the invoice date) has not remained unpaid for
a period exceeding 60 days past due;
and
(i) which is not owed by an Affiliate of the Borrower; and
(j) which is not an Excluded Debt;
"Encumbrance" means any mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, standard security, assignment by way of
security or other security interest of any kind;
"Event of Default" means any of the events of default set out in clause
14;
"Excluded Debt" " means book debts of the Borrower:
(a) owing by debtors in connection with non-arms length transactions
which are connected with any member of the Borrower; or
(b) relating to stage payments or progress payments; or
(c) relating to amounts which are not or are alleged not to be fixed
for liquidated amounts; or
(d) owing by a debtor in respect of which 40 per cent. or more of the
aggregate amount of book debts owed by that debtor to the Borrower
do not constitute Eligible Trade Debts;
"Guaranteed Amount" means, at any time, the aggregate amount of the
Bank's maximum potential liability under all Undertakings issued and
outstanding at that time;
"Indebtedness" means:
(a) all indebtedness in respect of borrowed money or for the deferred
purchase price of property or services (other than current trade
liabilities incurred in the ordinary course of business and
payable in accordance with customary practices);
(b) any other indebtedness which is evidenced by a note, bond,
debenture or similar instrument;
(c) all capitalised lease obligations;
(d) all obligations in respect of outstanding letters of credit,
acceptances and similar obligations;
(e) all liabilities secured by any security interest, lien or other
encumbrance on any property owned by the Borrower even though the
Borrower has not assumed or otherwise become liable for the
payment thereof;
(f) any net liabilities under interest rate cap agreements, interest
rate swap agreements, foreign currency exchange agreements and
other hedging agreements or arrangements; and
(g) all guaranties, endorsements and other contingent obligations
whether direct or indirect in respect of Indebtedness of others,
including any obligation to supply funds to or in any manner to
invest in, directly or indirectly, the debtor, to purchase
Indebtedness, or to assure the owner of Indebtedness against loss,
through an agreement to purchase goods, supplies, or services for
the purpose of enabling the debtor to make payment of the
Indebtedness held by such owner or otherwise;
"LIBOR" means, in relation to any Advance:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the Term of that Advance) the
rate (rounded upwards to four decimal places) as supplied to the
Bank at its request quoted by the Reference Bank to leading
lenders in the London interbank market, as at 11 a.m. on the
first day of such period for the offering of deposits in
Sterling of that and for a period comparable to the Term for that
Advance;
"Margin" means the applicable rate of interest set out in the following
table:
------------------------------------------- ----------------------------------------
Total Funded Debt/EBITDA Ratio Margin (% per annum) in respect of the
Facilities
------------------------------------------- ----------------------------------------
------------------------------------------- ----------------------------------------
> 3.00:1 2.75%
------------------------------------------- ----------------------------------------
------------------------------------------- ----------------------------------------
> 2.50:1 and <= 3.00:1 2.00%
------------------------------------------- ----------------------------------------
------------------------------------------- ----------------------------------------
> 2.00:1 and <= 2.50:1 1.50%
------------------------------------------- ----------------------------------------
------------------------------------------- ----------------------------------------
<= 2.00:1 1.00%
------------------------------------------- ----------------------------------------
But so that:
(a) no adjustment to the Margin shall occur prior to 1 March 2004 and
prior to such date the Margin shall at all times be 2.00% per annum; and
(b) any adjustment to the Margin shall only be made on 1 March, 1
June, 1 September and 1 December in each year and, for such
purposes, the Total Funded Debt/EBITDA Ratio shall be determined
as of the last day of (and for the period of) each period of four
consecutive quarters ending on the preceding 31 October, 31
January, 30 April and 31 July respectively by reference to the
management accounts delivered to the Bank pursuant to Section 6.1
of the US Credit Agreement;
"Operating Account" means the account in the name of the Borrower opened
with the Bank, with account No. 0000000;
"Optional Currency" means any currency which is freely transferable,
freely convertible into Sterling and dealt in on the London interbank
market and for which the Bank provides overdraft facilities in the course
of its normal operations;
"Overdraft" means, at any relevant time, the debit balance of the
Operating Account;
"Parent" means Hurco Companies, Inc., an Indiana corporation whose
principal place of business is at Xxx Xxxxxxxxxx Xxx,
Xxxxxxxxxxxx, Xxxxxxx 00000-0000;
"Parent Guarantee" means the agreed form guarantee dated on or about the
date of this agreement entered into by the Parent in favour of the Bank;
"Permitted Disposal" means any sale, lease or other disposal of:
(a) obsolete assets on normal arm's length commercial terms where the
assets are no longer required for the purposes of the business of
the Borrower;
(b) assets where the disposal proceeds (net of Taxes and costs of
disposal) are used within six months of that disposal for the
purchase of an asset to replace the asset disposed;
(c) assets in exchange for assets of a substantially similar nature
and value in the ordinary course of business; and
(d) inventory in the ordinary course of business;
"Permitted Encumbrance" means an Encumbrance being any of the following:
(a) Encumbrances granted with the prior written consent of the Bank;
(b) liens and rights of set off arising by operation of law in the
normal course of business and any encumbrance arising by way of
retention of title of goods by the supplier of such goods where
such goods are supplied on credit and are acquired in the
Borrower's normal course of business;
(c) Encumbrances comprised in the Debenture;
(a) any other Encumbrance permitted to be entered into by a Subsidiary
(as such term is defined in the US Credit Agreement) under Section
6.15 of the US Credit Agreement (other than sub-paragraphs (vii),
(ix) and (x) thereof);
"Permitted Indebtedness" means:
(a) Indebtedness incurred under this agreement;
(b) unsecured debt incurred in the ordinary course of business;
(c) unsecured Indebtedness owing to the Parent or any Affiliate of the
Borrower;
(d) Indebtedness incurred under the UK Lease Liability (as such term
is defined in the US Credit Agreement); and
(e) Indebtedness (other than unsecured trade debt incurred in the
ordinary course of business) that is unsecured and fully
subordinated to the interests of the Bank on terms acceptable to
the Bank and only with the Bank's consent;
(f) any other Indebtedness permitted to be entered into by a
Subsidiary (as such term is defined in the US Credit Agreement)
under Section 6.11 of the US Credit Agreement;
"Qualifying Bank" means a person which (at the time the relevant interest
payment is made) is:
(a) beneficially entitled to the interest payable to it under this agreement;
and
(b) a UK Lender or a Treaty Lender;
"Reference Bank" means the principal London office of Bank One, NA;
"Screen Rate" means the British Bankers' Association Interest Settlement
Rate for the relevant period, displayed on the appropriate page of the
Telerate screen. If the agreed page is replaced or service ceases to be
available, the Bank may specify another page or service displaying the
appropriate rate after consultation with the Borrower;
"Spot Rate" means in respect of any date the Bank's spot rate of exchange
for the purchase of Dollars with Sterling at or about 11.00 a.m. on such
date;
"Sterling" and "(pound)" means the lawful currency for the time being of
the United Kingdom and in respect of all payments to be made under this
agreement in Sterling means immediately available, freely transferable
cleared funds;
"Taxes" includes all present and future taxes, levies, imposts, duties,
fees or charges of whatever nature together with interest thereon and
penalties in respect thereof and "Tax" and "Taxation" shall be construed
accordingly;
"Term" has the meaning given to that term in clause 4.1.2(c);
"Termination Date" means 31 January 2007;
"Total Funded Debt/EBITDA Ratio" has the meaning given to it in the US
Credit Agreement;
"Total Outstandings" means, at any relevant time, the aggregate of:
(a) all Advances;
(b) the Overdraft; and
(c) the Guaranteed Amount,
at such time;
"Transferee" has the meaning given to that term in clause 19.1;
"Treaty Lender" means a person which is resident (as such term is defined
in the appropriate double taxation treaty) in a country with which the
United Kingdom has a double taxation treaty giving the Borrower complete
exemption from the imposition of any withholding or deduction for or on
account of Taxes on interest (and which does not carry on business in
that jurisdiction through a permanent establishment with which the
Facilities in respect of which the interest is paid is effectively
connected) and which has (or will have prior to the first date on which
the relevant payment is to be made) delivered to the Bank for
transmission to the Borrower, all necessary forms, claims, certificates
and other documentation duly executed by such person necessary to
establish that such person is entitled to receive payments by the
Borrower under this agreement without any deduction for, or on account
of, Taxes imposed and provided that if written authority from the
relevant Tax authority is required to be obtained, prior to the making of
any payments of interest by the Borrower, to make such payment without
any such deduction, such authority has been received by the Borrower (and
remains valid and outstanding) prior to the first date on which the
Borrower is required to make any such payment to such person and the
Borrower undertakes to use all reasonable endeavours to request such
authority;
"UK GAAP" means generally accepted accounting principles and practices in
the United Kingdom;
"UK Lender" means a person which is:
(a) a company which is resident in the UK for tax purposes; or
(b) partnership each of whose members is a company so resident; or
(c) a company which is not resident in the UK for tax purposes, but
which carries on a trade in the UK through a branch or agency and
is subject to corporation tax on interest paid to it under this
agreement under section 11(1) of the Income and Corporation Taxes
Xxx 0000;
"Undertakings" means VAT Guarantees, standby letters of credit or
guarantees issued by the Bank on behalf of the Borrower in accordance
with clause 5 and "Undertaking" shall be construed accordingly;
"US Credit Agreement" means the Third Amended and Restated Credit
Agreement and Amendment to Reimbursement Agreement as of December 1,
2003, entered into between the Parent and the Bank (as the same may be
amended and/or restated from time to time);
"US Credit Documents" means the US Credit Agreement and the US Security
Documents;
"US Security Documents" means (collectively, as the same may be amended
and/or restated from time to time):
(a) a patents and licences security agreement entered into by the
Parent in favour of the Bank, dated October 24, 2002 and confirmed
on December 1, 2003;
(b) a pledge and security agreement entered into by the Parent in favour
of the Bank dated October 31, 2001 and
confirmed on December 1, 2003;
(c) the subsidiary guarantee by the Parent in favour of the Bank,
dated December 1, 2003; and
(d) any other documents evidencing any security interest or guarantee
or indemnity entered into by the Parent in favour of the Bank,
pursuant to the US Credit Agreement;
"VAT Guarantee" means each guarantee issued by the Bank in favour of H.M.
Customs and Excise in relation to the deferred payment of import duty in
accordance with clause 5.
2 Conditions
2.1 The Bank shall not be obliged to make the Facilities available under this
agreement unless it shall have received the following documents in form
and substance satisfactory to it:
2.1.1 a director's certificate in the form of Appendix 2, attaching the
following documents:
(a) a copy of the Certificate of Incorporation and Memorandum and
Articles of Association of the Borrower;
(b) a copy of the resolutions of the Board of Directors of the
Borrower approving the terms of this agreement and the Debenture
and authorising its appropriate officers to accept this
agreement and to enter into the Debenture and to give all
notices hereunder or thereunder on behalf of the Borrower; and
(c) specimen signatures, authenticated by the secretary or a
director of the Borrower of the persons authorised in the
resolutions referred to in (b) above;
2.1.2 the Debenture duly executed by the Borrower;
2.1.3 the Parent Guarantee duly executed by the Parent; and
2.1.4 a copy of the US Credit Agreement duly executed by the parties
thereto together with evidence that each of the other US Credit
Documents has become in all respects unconditional in accordance with
their respective terms;
2.1.5 a copy, certified as being true, complete and up-to-date by a
Director or the Secretary of the Parent or its solicitors, of:
(a) the Certificate of Incorporation and By-Laws of the Parent;
(b) resolutions of the Board of Directors of the Parent approving
the terms of the Parent Guarantee and authorising its
appropriate officers to enter into the Parent Guarantee; and
2.1.6 specimen signatures, authenticated by the secretary or a director of
the Parent of the persons authorised in the resolutions referred to
in 2.1.5(b) above.
2.2 In addition no utilisation of the Facilities may be made if, at the time
that utilisation is due to be made (i) the representations and warranties
set out in clause 12 (for which purpose clause 12.1.5 shall refer to the
latest audited financial statements of the Borrower delivered to the Bank
under clause 13.7) are untrue or misleading or incorrect in any respect
as if made with respect to the facts and circumstances existing at such
time or (ii) a Default has occurred and is continuing or would result
from the making of that utilisation.
3 The Facilities
3.1 The Bank, relying on each of the representations and warranties in
clause 12 agrees to make available to the Borrower the Facilities.
3.2 The Revolving Credit Facility may be utilised by the Borrower prior
to the Termination Date on the terms and conditions set out in this
agreement by:
3.2.1 the drawing of Advances in Sterling by the Borrower; or
3.2.2 the issue of Undertakings.
3.3 The Overdraft Facility may be utilised by the Borrower prior to the
Termination Date on the terms and conditions set out in this agreement by
debits to the Operating Account.
3.4 No utilisation of the Facilities shall be permitted if, as a result:
3.4.1 the Total Outstandings would exceed the lower of (A) the Borrowing Base
and (B)(pound)1,000,000 at that time; or
3.4.2 the Guaranteed Amount would exceed(pound)200,000; or
3.4.3 the aggregate of the Advances and the Guaranteed Amount would exceed
(pound)700,000; or
3.4.4 the amount of the Overdraft would exceed(pound)300,000.
4 Advances and the Overdraft
4.1 Advances
4.1.1 The Borrower may at any time prior to the Termination Date request
the Bank by notice in writing to make Advances to the Borrower on the
terms and conditions set out in this agreement.
4.1.2 Such notice shall specify:
(a) the amount of the proposed Advance (which shall be in a minimum
amount of(pound)50,000 or an integral multiple of pound)50,000);
(b) the proposed date of drawing (which shall be a Banking Day); and
(c) the period (the "Term") during which the Advance is to remain
outstanding (which shall be 30, 60, 90 or 180 days or such other
period as the Bank and the Borrower may agree expiring not later
than the Termination Date),
and shall be received by the Bank not later than 11.00.a.m. on the
proposed date of drawing.
4.1.3 Every such notice shall be irrevocable by the Borrower.
4.2 Overdraft
4.2.1 The Overdraft Facility may be used by the Borrower by debits to the
Operating Account.
4.2.2 The Overdraft is repayable by the Borrower on demand by the Bank
which may be made by the Bank in its sole discretion at any time.
4.2.3 The Bank shall deliver to the Borrower as soon as reasonably
practicable after the 24th day of each month an interest statement
itemising the daily interest accruing to the Operating Account on
each day during the period commencing on the 24th day of the previous
month and ending on the 23rd day of the current month.
5 Undertakings
5.1 The Borrower may make drawings under the Revolving Credit Facility by
requesting the Bank by notice in writing to issue standby letters of
credit and/or guarantees on its behalf in favour of such persons as the
Borrower may specify to the Bank and/or VAT Guarantees on its behalf in
favour of H.M. Customs and Excise.
5.2 Each request shall be received by the Bank no later than 10.00 a.m.
on the second Banking Day before the proposed date of issuance of the
relevant undertaking.
5.3 Each Undertaking shall be in Sterling or any other Optional Currency
agreed by the Bank and in a form and substance approved by the Bank. The
express expiry date of each Undertaking shall be satisfactory to the Bank
and no Undertaking shall have an express expiry date later than the
Termination Date. Without prejudice to the generality of the foregoing,
each VAT Guarantee shall provide for expiry of the Bank's liability on
receipt by H.M. Customs and Excise of seven days' notice of termination
in writing from the Bank.
5.4 The Bank's issuance of any Undertaking shall be deemed, for the purpose
of clause 3.4, to be a utilisation of the Revolving Credit Facility to
the extent of the Bank's maximum potential liability under that
Undertaking.
5.5 Each Undertaking issued by the Bank shall be a guarantee of payment only
and shall contain no obligations by the Bank other than to make payment
to the beneficiary/ies of the Undertaking on demand.
5.6 The Borrower shall indemnify the Bank against all losses, costs, damages
expenses and demands which the Bank may suffer, incur, sustain or receive
under or by reason of or in connection with the Undertakings and the
Borrower shall pay to the Bank forthwith all moneys whatsoever which may
from time to time be claimed or demanded from the Bank or which the Bank
shall pay under or in connection with the Undertakings. This indemnity
shall be a continuing indemnity and shall be in addition to any security
or other right the Bank may have against the Borrower and shall not be
wholly or partly discharged, varied or affected by any time or indulgence
granted to or by the Bank or any other party or by any variation of any
Undertakings or of this agreement or by anything done or omitted which
would but for this provision operate to exonerate the Borrower.
5.7 The Borrower irrevocably authorises the Bank to pay immediately any
amounts from time to time demanded or claimed or which the Bank may
become liable to pay under or by reason of the Undertakings without
reference to or further authority from the Borrower and notwithstanding
that the Borrower may dispute the validity of such claim or demand.
5.8 The Bank's maximum actual and/or potential liability or risk in respect
of an Undertaking shall not be treated as reduced for the purposes of
this agreement unless (and to the relevant extent):
5.8.1 the Bank has received a written confirmation from the beneficiary of
the relevant Undertaking of the amount of such reduction; or
5.8.2 such Undertaking has, under or in accordance with its terms, expired; or
5.8.3 a payment has been made under such an Undertaking.
5.9 Without prejudice to clause 14, upon the occurrence of an Event of
Default and while the same is continuing the Borrower shall use all
endeavours to procure the Bank's release from its liability thereunder by
the relevant beneficiary.
5.10 The Borrower agrees that a certificate signed by an officer of the Bank
to the effect that a sum has become due from the Bank in connection with
an Undertaking shall (in the absence of manifest error) be conclusive as
to the amount then due.
6 Borrowing Base Certificate
6.1 The Borrower shall monthly prepare and deliver to the Bank a Borrowing
Base Certificate signed by a director or a secretary of the Borrower
setting out:
6.1.1 the details of the Eligible Trade Debts and stating the aggregate of
those Eligible Trade Debts at the end of the preceding month;
6.1.2 the value of its Eligible Finished Goods Inventory at the end of the
preceding month; and
6.1.3 the value of its Eligible Unfinished Goods Inventory at the end of the
preceding month,
such certificate to be delivered to the Bank within 30 days of the end of
each calendar month.
6.2 The Borrower shall ensure that the aggregate of the Total
Outstandings at any time shall not exceed the Borrowing Base at that
time.
6.3 If by reason of the reduction in the Borrowing Base the foregoing is not
complied with, the Borrower shall within 5 Banking Days reduce the Total
Outstandings to ensure such compliance.
7 Repayment
7.1 Each Advance shall be repaid in full together with accrued interest and
all other moneys outstanding in connection with such Advance on the last
day of its Term.
7.2 Notwithstanding the foregoing, if a new Advance is to be made on a day on
which an outstanding Advance is due to be repaid then, unless the
Borrower and the Bank otherwise agree, the Bank shall apply the proceeds
of the new Advance in meeting the Borrower's obligation to repay the
maturing Advance.
7.3 All outstanding Advances (if any) together with accrued interest and all
other moneys outstanding in connection with such Advances shall be repaid
or paid in full on the Termination Date.
8 Interest and Guarantee Fees
8.1 Interest on Advances
Interest shall be paid by the Borrower on each Advance at the rate per
annum equal to the aggregate of (i) the applicable Margin; (ii) LIBOR;
and (iii) the Additional Cost and shall be debited to the Operating
Account on the last day of its Term.
8.2 Interest on the Overdraft
The Borrower shall pay interest on the Overdraft monthly in arrears on
the 24th day of each month at the rate per annum determined by the Bank
to be the aggregate of (i) the applicable Margin and (ii) the Base Rate.
The accrued interest on the Overdraft shall be debited to the Operating
Account monthly.
8.3 Guarantee fee
A guarantee fee shall be payable by the Borrower on the Guaranteed Amount
from time to time at the annual rate per annum of the applicable Margin.
Such fee shall be payable quarterly in arrears and the first payment to
be made three months from the date of the first Undertaking and quarterly
thereafter.
8.4 Default interest
Interest shall be paid on any overdue amount under this agreement (both
before and after judgment) or on the occurrence of any other Default by
the Borrower or the Parent under this agreement or the Parent Guarantee
at the annual rate determined by the Bank to be the aggregate of (i) 2
per cent. per annum, (ii) LIBOR (in the case of the Advances) or the Base
Rate (in the case of the Overdraft); (iii) the applicable Margin; and
(iv) the Additional Cost (in the case of the Advances). Such rate shall
be determined daily or two Banking Days before any period selected by the
Bank. As long as the amount continues to be overdue such rate shall be
recalculated on the same basis at the end of each period selected by the
Bank and such interest shall be compounded at the end of each such
period.
9 Expenses
The Borrower shall pay to the Bank (whether or not any of the Facilities
is utilised) on demand an amount equal to all fees, costs, charges and
expenses (including, but not limited to, reasonable legal expenses,
stamp, registration or other duties) incurred by the Bank in connection
with the preparation and execution of this agreement, the Debenture, the
Parent Guarantee and the documentation contemplated hereby and all costs,
charges and expenses (including, but not limited to, reasonable legal
expenses on a full indemnity basis) of the Bank in connection with the
enforcement or preservation of any of its rights under this agreement,
the Debenture and the Parent Guarantee or otherwise in connection with
the Facilities. The Borrower shall also pay an amount equal to any value
added tax payable by the Bank in respect of such costs, charges and
expenses.
10 Payments and Indemnity
10.1 All sums payable in connection with the Facilities shall be paid to the
Bank on the due date no later than 12 noon in Sterling in same day funds
to such account as the Bank shall have notified to the Borrower by not
less than 3 Banking Days' notice free and clear of any present or future
taxes duties charges fees or withholdings and without any set-off or
counterclaim or any condition or deduction whatsoever.
10.2 If the Borrower repays or prepays all or any part of the outstanding
Advances before the expiry of the relevant Term (whether following the
occurrence of an Event of Default or otherwise), the Borrower will
indemnify the Bank against all loss or expense (including, but not
limited to, reasonable legal expenses on a full indemnity basis) and all
loss of profit the Bank may incur or sustain (including but not limited
to all costs and losses resulting from the relevant payment not being
made on the last day of the relevant Term). The Bank's certificate as to
the amount of such loss or expense and interest shall be conclusive and
binding on the Borrower save for manifest error.
10.3 Interest and any other payments under this agreement of an annual nature
shall be calculated on a day to day basis and on the basis of the actual
number of days elapsed and on the basis of: (i) a 365 day year (in the
case of Sterling) and (ii) a 360 day year (in the case of currencies
other than Sterling).
10.4 Any certificate or determination of the Bank as to any rate of interest,
rate of exchange or any amount payable hereunder shall be prima facie
evidence of the relevant rate or amount payable.
10.5 When any payment under this agreement would otherwise be due on a day
which is not a Banking Day, the due date for payment shall be postponed
to the next following Banking Day unless such Banking Day falls in the
next calendar month in which case payment shall be made on the
immediately preceding Banking Day.
11 Facility Fee
The Borrower shall pay to the Bank (i) on the date of this agreement and
(ii) on each anniversary of the date of this agreement until the
Termination Date, a fee in the amount of US $6,000.
12 Representations and warranties
The Borrower represents, warrants and undertakes to the Bank on (i) the
date of this agreement, (ii) each occasion on which the Borrower draws or
otherwise requests a utilisation under the Facilities and (iii) each
occasion an Advance is renewed for a further Term that:
12.1.1 the Borrower is duly incorporated and validly existing under the laws
of England and Wales and has power to execute, deliver and perform
its obligations under this agreement and the Debenture; all necessary
action has been taken by it to authorise the execution, delivery and
performance of this agreement and the Debenture, no limitation on its
powers will be exceeded as a result of transactions under this
agreement or the Debenture and this agreement and (subject to
applicable insolvency laws and general principles of equity) the
Debenture, when executed, will constitute valid and legally binding
obligations of the Borrower enforceable in accordance with their
respective terms;
12.1.2 the execution, delivery and performance of this agreement and the
Debenture by the Borrower will not contravene any existing law,
regulation or authorisation to which it is subject, result in any
material breach of or default under any agreement or other instrument
to which the Borrower is a party or is subject or contravene any
provision of the Borrower's Memorandum or Articles of Association;
12.1.3 every authorisation of, or registration with, governmental or public
bodies or courts required by the Borrower in connection with the
execution, delivery, performance, validity, enforceability or
admissibility in evidence of this agreement and the Debenture has
been obtained or made and is in full force and effect and there has
been no default in the observance of any conditions imposed in
connection therewith;
12.1.4 (save as disclosed to the Bank in writing prior to the date of this
agreement) no litigation, alternative dispute resolution,
arbitration, administrative proceeding or labour dispute is taking
place, pending or, to its knowledge, threatened against the Borrower
or any of its assets which, if adversely determined, could be
reasonably expected to result in a liability of the Borrower in
excess of (pound)50,000;
12.1.5 the audited financial statements of the Borrower provided to the Bank
pursuant to clause 13.7 (if any) have been prepared in accordance
with UK GAAP which have been consistently applied and give a true and
fair view of the financial position of the Borrower as at the date to
which they were prepared and the results of the operations of the
Borrower for the financial year ended on such date;
12.1.6 there has been no material adverse change in the financial position
of the Borrower from that set forth in its most recent financial
statements (if any) provided pursuant to clause 13.7;
12.1.7 no event or circumstance which constitutes or which with the giving
of notice or lapse of time or both would constitute an Event of
Default has occurred and is continuing; and
12.1.8 the Borrower has not sold, transferred, lent or otherwise disposed of
or ceased to exercise direct control over all or any part of its
present or future undertaking, assets, rights or resources or agreed
to do so (other than by way of a Permitted Disposal).
13 Covenants
It is a term of the Facilities that at all times during their continuance
and until repayment of all Advances and the Overdraft and the discharge
of all Undertakings and payment of all other moneys payable (whether
actually or contingently) hereunder that the Borrower will:
13.1 not, without the Bank's prior written consent, create or allow to exist
any Encumbrance (save for a Permitted Encumbrance) over any of its
present or future assets, rights or revenues to secure obligations of
itself or of any other person;
13.2 not, without the Bank's prior written consent, sell, transfer, lend,
lease or otherwise dispose of or cease to exercise direct control over
all or any part of its present or future undertaking, assets, rights or
revenues (other than by way of a Permitted Disposal) whether by one or a
series of transactions related or not other than by way of a Permitted
Disposal;
13.3 not permit any of the Borrower's liabilities to have the benefit of any
guarantee, indemnity, bond or comfort letter unless the party giving the
same similarly guarantees the outstanding Advances and all other moneys
payable hereunder;
13.4 not make any material change in the nature of the Borrower's
business, as carried on at the date of this agreement;
13.5 obtain, maintain in full force and effect and comply in all material
respects with any conditions imposed in connection with, every
authorisation of governmental or public bodies or courts and do, or cause
to be done, all other acts and things, which may from time to time be
necessary under applicable law for the continued due performance of its
obligations under this agreement;
13.6 inform the Bank of any Event of Default or any event which with the
giving of notice or lapse of time or both would constitute an Event of
Default forthwith upon becoming aware thereof;
13.7 send to the Bank:
13.7.1 within 110 days of each fiscal year end, a copy of the Borrower's annual
audited financial statements;
13.7.2 within 30 days of the end of each calendar month, monthly management
accounts with such other information, certificates and forecasts as
the Bank may from time to time reasonably require;
13.7.3 within 30 days of the end of each calendar month, a statement of aged
accounts receivable; and
13.7.4 all other financial and other information concerning the Borrower and
its business affairs as the Bank may from time to time reasonably
require upon reasonable notice;
13.8 not, without the prior written consent of the Bank, incur or permit to
exist on its behalf any obligations in respect of Indebtedness to any
person other than Permitted Indebtedness;
13.9 not acquire or merge with any company;
13.10 file or cause to be filed all tax returns required to be filed in all
jurisdictions in which it is situated or carries on business or is
otherwise subject to taxation and pay all taxes shown to be due and
payable on such returns or any assessments made against it prior to
penalties being incurred unless the liability to pay such taxes is the
subject of a bona fide dispute and it is maintaining adequate reserves in
respect of such liability;
13.11 obtain or cause to be obtained, maintain in full force and effect and
comply in all material respects with the conditions and restrictions (if
any) imposed in, or in connection with, every authorisation material to
the carrying on of its business;
13.12 ensure that its obligations under this agreement and the Debenture shall
at all times rank at least pari passu with all its other present and
future unsecured and unsubordinated Indebtedness with the exception of
any obligations which are mandatorily preferred by law and not by
contract;
13.13 ensure that the levels of contribution to the pension schemes for the
time being operated by it are and continue to be sufficient to comply
with applicable law;
13.14 maintain and keep up to date adequate insurance over all its present and
future assets, including its employees, in form and substance
satisfactory to the Bank;
13.15 not change the nature of its business as conducted on the date of this
agreement; and
13.16 ensure that, by no later than the date falling 6 months after the date of
this agreement, all primary clearing, depository and other banking
facilities required by the Borrower are maintained with the Bank.
14 Events of Default
Without prejudice to the on demand nature of the Overdraft and without
prejudice to the Bank's other rights, the Bank may terminate the Bank's
obligation to make the Facilities available and demand immediate
repayment of all outstanding Advances together with all accrued interest
thereon and payment of cash cover equal to the Guaranteed Amount and of
all other moneys payable to the Bank under this agreement or otherwise at
any time after any of the following events shall have occurred:
14.1.1 the Borrower fails to pay any sum payable by it under this agreement
in the currency, at the time and in the manner specified in this
agreement (or within 3 Banking Days thereafter where the failure to
pay is due solely to an administrative or systems error arising in
the transmission of funds); or
14.1.2 the Borrower defaults in the due performance or observance of any
other of its obligations under this agreement or the Parent default
in the due performance or observance of any of its obligations under
the Parent Guarantee and (if such default is in the opinion of the
Bank capable of remedy) such default shall not have been remedied
within 10 days of the Bank notifying the Borrower or the Parent, as
the case may be of such default; or
14.1.3 any representation or warranty made or deemed to be made or repeated
by the Borrower in or pursuant to this agreement or by the Parent in
or pursuant to the Parent Guarantee is or proves to have been
incorrect in any material respect; or
14.1.4 any obligation (including a contingent obligation) of the Borrower in
respect of Indebtedness is not paid when due or becomes due or
capable of being declared due prior to its stated maturity by reason
of default; or
14.1.5 any judgment or order of a court of competent jurisdiction made
against the Borrower which, if taken together with the amount of all
other outstanding judgments or orders against the Borrower at such
time, is in the aggregate sum of the Sterling Equivalent of $100,000,
is not stayed or complied with within 7 days or an encumbrancer takes
possession of the whole or any part of the assets, rights or revenues
of the Borrower, or
14.1.6 a distress or other legal process is levied or enforced upon any of
the assets, rights or revenues of the Borrower and is not discharged
within 7 days; or
14.1.7 the Borrower stops or suspends payment of its debts or is, or is
deemed to be, unable to, or admits inability to, pay its debts as
they fall due or commences negotiations with one or more of its
creditors with a view to the general rescheduling of all or any of
its debts or proposes or enters into any composition or other
arrangement for the benefit of its creditors generally or any class
thereof; or
14.1.8 the Borrower is adjudicated or found bankrupt or insolvent or any
step is taken or proceedings are commenced for the winding-up,
administration or dissolution of the Borrower or for the appointment
of a liquidator, administrator, receiver or similar officer in
respect of the Borrower or of the whole or any part of its assets,
rights or revenues (and, in the case of a petition for winding-up of
the Borrower, such petition is not discharged within 7 days from its
presentation); or
14.1.9 any event occurs or proceeding is taken with respect to the Borrower
in any jurisdiction to which it is subject which has an effect
equivalent or similar to any of the events mentioned in clauses
14.1.5, 14.1.7 or 14.1.8; or
14.1.10 it becomes unlawful for the Borrower to perform all or any of its
obligations under this agreement or the Debenture or for the Parent
to perform any of its obligations under the Parent Guarantee; or
14.1.11 the Borrower ceases to be a subsidiary of the Parent; or
14.1.12 the Debenture ceases for any reason to be the valid and legally
binding obligations of the Borrower; or
14.1.13 the Parent Guarantee ceases for any reason to be the valid and
legally binding obligations of the Parent; or
14.1.14 any of the Credit Documents ceases for any reason to be the
valid and legally binding obligation of the
Borrower or the Parent; or
14.1.15 a Default (as such term is defined in any Credit Document) occurs
under any of the Credit Documents or, if any Credit Document has been
terminated, an event occurs which, but for such termination, would
have been such a Default; or
14.1.16 any of the events mentioned in clauses 14.1.1 and 14.1.4 to 14.1.9
occurs in relation to the Parent; or 14.1.17 any other event occurs
or circumstance arises which, in the reasonable opinion of the Bank,
is likely materially and adversely to affect the ability of the
Borrower or the Parent to perform all or any of their respective
obligations under or otherwise to comply with the terms of this
agreement or the Debenture (in the case of the Borrower) or the
Parent Guarantee (in the case of the Parent).
15 Set-off
The Bank may apply any credit balance to which the Borrower is entitled
on any of the Borrower's accounts with the Bank at any of the Bank's
branches in or towards satisfaction or any sum then due and payable by
the Borrower hereunder. For this purpose, the Bank is authorised to
purchase with the moneys standing to the credit of such account such
other currencies as may be necessary to effect such application.
16 Indemnity
16.1 The Borrower shall indemnify the Bank on demand against any loss or
expense which the Bank shall incur as a consequence of the occurrence of
any Event of Default.
16.2 No payment to the Bank under this agreement pursuant to any judgment or
order of any court or otherwise shall operate to discharge the obligation
of the Borrower in respect of which it was made unless and until payment
in full shall have been received in the currency in which it is payable
and to the extent that the amount of any such payment shall on actual
conversion into the currency in which it is payable fall short of the
amount of the obligation expressed in the currency in which it is payable
the Bank shall have a further and separate cause of action against the
Borrower for the recovery of such sum as shall after conversion into the
currency in which it is payable be equal to the amount of the shortfall.
17 Illegality and increased costs
17.1 If at any time it is unlawful or contrary to any regulation for the Bank
to make, fund or allow to remain outstanding any Advances or Undertakings
under this agreement then the Bank's obligation to make the Facilities
available shall cease and, if the Bank so requires, the Borrower shall
forthwith repay all amounts outstanding under this agreement together
with accrued interest thereon and all other moneys owing hereunder and
pay to the Bank an amount equal to the face amount of each Undertaking.
17.2 If the result of (i) any change in, or in the interpretation or
application of any law or regulation or (ii) the introduction of any law
or regulation (in each case which occurs after the date of this
agreement) is to:
17.2.1 subject the Bank to Taxes or change the basis of Taxation with
respect to any payment under this agreement (other than Taxes or
Taxation on the overall net income, profits or gains of the Bank
imposed in the jurisdiction in which its principal or lending office
under this agreement is located); and/or
17.2.2 increase the cost to, or impose an additional cost on, the Bank in
making the Facilities available or maintaining or funding any
Advances or the Overdraft or providing any Undertaking; and/or
17.2.3 reduce the amount payable or the effective return to the Bank under
this agreement; and/or
17.2.4 reduce the Bank's rate of return on its capital by reason of a change
in the manner in which it is required to allocate capital resources
to its obligations under this agreement; and/or
17.2.5 require the Bank to make a payment or forgo a return on or calculated
by reference to any amount received or receivable by it under this
agreement,
then and in each such case (unless the increased cost or reduction in
return would not have arisen but for any assignment by the Bank to a
Transferee under clause 19.1 or the movement by the Bank of its
facility office):
(i) the Bank shall notify the Borrower in writing of such event
promptly upon its becoming aware of the same; and
(ii) the Borrower shall on demand, made at any time whether or not
the amounts outstanding under this agreement have been repaid,
pay to the Bank the amount which the Bank specifies (in a
certificate setting forth the basis of the computation of such
amount but not including any matters which the Bank regards as
confidential in relation to its funding arrangements) is
required to compensate the Bank for such increased cost,
reduction, payment or foregone return.
17.3 In the event that the Borrower is obliged to repay any amounts
outstanding under this agreement under clause 17.2, the Borrower may
within sixty days from the date of the demand referred to in clause
17.2.5(ii) prepay the Facilities in full, together with all other amounts
then payable under this agreement.
18 Taxes
18.1 If at any time the Borrower is required to make any deduction or
withholding in respect of Taxes from any payment due under this agreement
for the account of the Bank, the sum due from the Borrower in respect of
such payment shall be increased to the extent necessary to ensure that,
after the making of such deduction or withholding, the Bank receives on
the due date for such payment (and retains, free from any liability in
respect of such deduction or withholding) a net sum equal to the sum
which it would have received had no such deduction or withholding been
required to be made. The Borrower shall promptly upon request deliver to
the Bank any receipts, certificates or other proof evidencing the amounts
(if any) paid or payable in respect of any such deduction or withholding.
18.2 If following any such deduction or withholding as is referred to in
clause 18.1 the Bank shall receive or be granted a credit against or
remission for any Taxes payable by it, the Bank shall, subject to the
Borrower having made any increased payment in accordance with clause 18.1
and to the extent that the Bank can do so without prejudicing the
retention of the amount of such credit or remission and without prejudice
to the right of the Bank to obtain any other relief or allowance which
may be available to it, reimburse the Borrower with such amount as the
Bank shall in its absolute discretion certify to be the proportion of
such credit or remission as will leave the Bank (after such
reimbursement) in no worse position than it would have been in had there
been no such deduction or withholding from the payment by the Borrower as
aforesaid. Such reimbursement shall be made forthwith upon the Bank
certifying that the amount of such credit or remission has been received
by it. Nothing contained in this agreement shall oblige the Bank to
rearrange its tax affairs or to disclose any information regarding its
tax affairs and computations. Without prejudice to the generality of the
foregoing, the Borrower shall not by virtue of this clause 18.2, be
entitled to enquire about the Bank's tax affairs.
18.3 The Bank hereby confirms to the Borrower that, on the date of this
agreement, it is a Qualifying Bank.
18.4 The Bank shall, upon becoming aware in the context of this agreement that
it has ceased to be a Qualifying Bank, promptly notify the Borrower.
19 Assignment
19.1 This agreement shall be binding upon, and enure for the benefit of, the
Bank and the Borrower and their respective successors. The Borrower may
not assign or transfer any of its rights or obligations under this
agreement. The Bank may, without the consent of the Borrower, assign or
transfer all or any part of its rights or transfer all or any part of its
obligations under this agreement to any one or more purchasers whether or
not they are related to the Bank (a "Transferee") unless such Transferee
is not a Qualifying Bank in which event the Borrower's prior written
consent to such assignment or transfer shall be required. If the Bank
transfers all or any part of its rights or transfers all or any part of
its obligations as provided in this clause 19.1 all relevant references
in this agreement to the Bank shall thereafter be construed as a
reference to the Bank and/or its assignee(s) or transferee(s) (as the
case may be) to the extent of their respective interests and, in the case
of a transfer, the Borrower shall look solely to the Transferee for the
performance of the obligations so transferred to it.
19.2 The Bank may disclose to a potential assignee or transferee or to any
other person who is proposing to enter into contractual relations with
the Bank in relation to this agreement such information about the
Borrower as the Bank shall consider appropriate provided that any such
potential assignee or transferee or other person has first agreed to keep
that information confidential.
20 Notices
20.1 Every notice, request, demand or other communication under this agreement
shall:
20.1.1 be in writing delivered personally or by first-class prepaid letter or
telefax;
20.1.2 be deemed to have been received, subject as otherwise provided in
this agreement, in the case of a letter, when delivered and, in the
case of a telefax, when a complete and legible copy is received by
the addressee (unless the time of despatch of any telefax is after
close of business in which case it shall be deemed to have been
received at the opening of business on the next business day); and
20.1.3 be sent:
(a) to the Borrower at:
Hurco Europe Limited
Halifax Road
Cressex Business Park
Xxxx Xxxxxxx
Xxxxxxxxxxxxxxx, Xx00 0XX
Telefax: x00 (0) 0000 000000
Attention: Xxxxx Xxxxxxx, Managing Director;
Xxx Xxxx, Financial Controller and Company Secretary;
with a copy to:
Hurco Companies, Inc
Xxx Xxxxxxxxxx Xxx
Xxxxxxxxxxxx
XX 00000-0000
Telefax: 00 1 317 347 6201
Attention: Xx Xxxxx X. Xxxx, Senior Vice President &
Chief Financial Officer
(b) to the Bank at:
Xxxx Xxx, XX
0 Xxxxxx Xxxxxx
Xxxxxx XX0 0XX
Telefax: 020 7903 4889
Attention: Xxxx Xxxxxxxx, Associate Director;
Xxxx Xxxxx, Associate;
with a copy to
Bank One, NA
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx
XX 00000-0000
Telefax: 00 1 317 321 6771
Attention: Xxxxx X Xxxxx, First Vice President.
or to such other address or telefax number as is notified by the
relevant party to the other party to this agreement.
21 Law and jurisdiction
21.1 This agreement shall be governed by and construed in accordance with
English law.
21.2 The parties to this agreement agree for the benefit of the Bank that:
21.2.1 if any party has any claim against any other arising out of or in
connection with this agreement such claim shall be referred to the
High Court of Justice in England, to the jurisdiction of which each
of the parties irrevocably submits; and
21.2.2 nothing in this clause 21.2 shall limit the right of the Bank to
refer any such claim against the Borrower to any other court of
competent jurisdiction outside England, to the jurisdiction of which
the Borrower hereby irrevocably agrees to submit, nor shall the
taking of proceedings by the Bank before the courts in one or more
jurisdictions preclude the taking of proceedings in any other
jurisdiction whether concurrently or not.
21.3 No term of this agreement is enforceable under the Contracts
(Rights of Third Parties) Xxx 0000 by a person who is not party to this
agreement
We enclose a copy of this letter which we request the Borrower to sign and
return to us signifying the Borrower's acceptance of the Facilities and the
Borrower's agreement with all the above terms and conditions. If we do not
receive such signed copy by 5.30 p.m. on 31 January 2004 the offer of the
Facilities contained in this letter shall thereupon be deemed automatically to
be withdrawn.
Yours faithfully
/s/ Xxxx Xxxxxxxx
............................................................
For and on behalf of
Bank One, NA
To: Bank One, NA
0 Xxxxxx Xxxxxx
Xxxxxx XX0 0XX
January 15, 2004
Dear Sirs
(pound)700,000 Revolving Credit Facility and (pound)300,000 Overdraft Facility
We are pleased to confirm our acceptance of the Facilities which you have placed
at our disposal on the terms and conditions set out in your letter of 15 January
2004 of which the above is a copy.
/s/ Xxxxx X. Xxxx
............................................................
For and on behalf of
Hurco Europe Limited
Appendix 1
Form of Borrowing Base Certificate
To: the Bank
From: the Borrower
(pound)700,000 Revolving Credit Facility and
(pound)300,000 Overdraft Facility Agreement
dated [o]January 2004
(the "Agreement")
We hereby certify that as at [specify relevant month end] the amount of Eligible
Trade Debts, Eligible Finished Goods Inventory, Eligible Unfinished Goods
Inventory and the Borrowing Base were:
1 Eligible Trade Debts
(a) total Eligible Trade Debts (pound)[o]
(b) 80 per cent of total Eligible Trade Debts
2 Eligible Finished Goods Inventory
(a) total Eligible Finished Goods Inventory (pound)[o]
(b) 50 per cent of total Eligible Finished Goods Inventory
3 Eligible Unfinished Goods Inventory
(a) total Eligible Unfinished Goods Inventory (pound)[o]
(b) 40 per cent of total Eligible Unfinished Goods Inventory
4 Borrowing Base
Borrowing Base
(being the aggregate of:
(a) the amount set out in 1(b);
(b) the amount set out in 2(b); and
(c) the amount set out in 3(b)).
We confirm that:
1 no event or circumstance has occurred and is continuing which constitutes
an Event of Default;
2 the representations and warranties contained in clause 12 of the
Agreement are true and correct at the date of this certificate as if made
with respect to the facts and circumstances existing at the date of this
certificate.
Words and expressions defined in the Agreement shall have the same meaning where
used in the certificate.
........................................................
For and on behalf of
Hurco Europe Limited
Appendix 2
[DIRECTOR'S/SECRETARY'S] CERTIFICATE
I, Xxxxx X. Xxxx, being a Director of Hurco Europe Limited (the "Company"),
HEREBY CERTIFY on behalf of the Company and without personal liability as
follows:
1. Private company
The Company is a private limited company incorporated in England and Wales with
company number 0162880 and registered office at Halifax Road, Cressex Business
Park, Xxxx Xxxxxxx, Xxxxxxxxxxxxxxx XX00 0XX.
2. Constitutional documents of the Company
The documents annexed to this certificate as annexure "A" constitute a true and
up to date copy of the certificate of incorporation, each certificate of
incorporation on change of name of the Company, the certificate of
re-registration as a public or private company and the memorandum and articles
of association of the Company containing all modifications thereto, and there
are no other constitutional documents of the Company.
3. Board resolutions of the Company
The documents annexed to this certificate as annexure "B" are true copies of the
minutes of a meeting of the board of directors of the Company duly convened and
held on [?] January 2004. The resolutions set out therein were duly passed and
have not been amended or revoked. No borrowing restrictions (or lack of power)
in relation to the giving of guarantees or security or otherwise of the Company
will be exceeded as a result of the Company entering into the [Documents] (as
defined in the minutes referred to above) (the "Documents"), borrowing moneys
thereunder or giving the guarantees or security thereunder or incurring or
performing the obligations expressed to be assumed by it thereunder.
4. Authorised signatories
Set out below are true signatures of those persons authorised by the
resolutions of the board of directors of the Company referred to in paragraph 3
above to sign the Documents and to execute all such undertakings, statements,
certificates, notices (including, without limitation, any Borrowing Base
Certificate), acknowledgements and other documents as may be required to be
done, signed and executed by or on behalf of the Company in connection with the
Documents and otherwise in relation to or ancillary to the same.
Xxxxx X. Xxxx, Director
Xxxxx X. Xxxxxxx, Director
Xxxxxxx Xxxx, Secretary
SIGNED [DATE]
..................................
Xxxxx X. Xxxx, Director
