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EXHIBIT 10.2
INVOICE DISCOUNTING AGREEMENT
(RECOURSE)
BETWEEN
LOMBARD NATWEST DISCOUNTING LIMITED
AND
KLIPPAN LIMITED
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INVOICE DISCOUNTING AGREEMENT
ORDER OF CLAUSES
1. Introduction 13. Your Undertakings to Us
2. Start and Length of Relationship 14. Warranties
Between Us
15. FacFlow
3. Our Ownership of Debts,
Offers and Client Advices 16. Information For Us
4. Purchase Price of Debts 17. Termination Events
5. Limits and Percentages 18. Power to Act in Your Name
6. Decisions 19. Contacting Other Parties
7. Disputes 20. Assignment, Delegation and
Force Majeure
8. Our Accounts 21. Service of Notices and Process
9. Charges and Indemnities 22. Law and Jurisdiction
10. Xxxxxxxxxx 00. Interpretation of this Agreement
11. Agency 24. General
12. Trusts and Other Rights
ANNEXES
SCHEDULE
CLIENT PARTICULARS
EXECUTION
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INVOICE DISCOUNTING AGREEMENT
THIS AGREEMENT IS MADE ON: the last date shown for the signatures of
the parties at the end of this document.
BETWEEN:
(1) LOMBARD NATWEST DISCOUNTING LIMITED ("We/Us")
and
(2) THE CLIENT NAMED IN THE CLIENT PARTICULARS ("You")
1. INTRODUCTION
1.1 This Agreement applies only to those Debts specified in the Schedule
at the end of this document created by you under whatever trading name
or style you may ever carry on business. We may later extend or reduce
the scope of this Agreement to such Debts as we agree in writing
signed by both you and us. Certain words used in this document have
special meanings which are explained in the Annexe of Definitions.
Their first letter is in capitals.
1.2 You will sell to us with full title guarantee and we will purchase
from you all Debts to which this Agreement applies which are created
after the date of this Agreement and until its termination. You will
also Offer to us all Debts to which this Agreement applies which are
Outstanding on the date this Agreement is made.
2. START AND LENGTH OF RELATIONSHIP BETWEEN US
2.1 This Agreement shall start on the date it is made and it will run for
the minimum period shown in the Schedule. After the end of the minimum
period our relationship with you will then continue until ended by
either you or us giving to the other notice of at least the minimum
shown in the Schedule. Such notice may be given at any time, even
during the minimum period, provided it runs out on or after the end of
the minimum period. During any period of notice you will continue to
comply with all your obligations to us.
2.2 Should this Agreement end within the minimum period shown in the
Schedule you must pay us a sum equal to the shortfall between the
amount of the minimum commission charge that would have been earned
had this Agreement continued for the minimum period, and the
commission charges actually earned.
2.3 Should you wish to end this Agreement but give us notice of less than
the minimum shown in the Schedule we may still agree to your request,
subject to an additional fee. For each month or part of a month that
your notice falls short of the minimum notice period the fee will be
the higher of:
2.3.1 the monthly average of the commission charges earned in the
six calendar months before we agree to accept your request;
or
2.3.2 one twelfth of the minimum commission charge for the twelve
calendar months before we agree to accept your request.
2.4 We can also immediately end this Agreement by giving you written
notice at any time after a Termination Event.
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3. OUR OWNERSHIP OF DEBTS, OFFERS AND CLIENT ADVICES
3.1 As soon as possible on or after the date of this Agreement you will
deliver an Offer in respect of each Initial Debt Outstanding together
with its Related Rights. If we wish to accept an Offer, this will be
done by crediting the Notified Value of each accepted Debt to the
Receivables Purchased Account. Upon doing so our ownership of such
accepted Debt shall be complete and the Debt thereby assigned to us.
3.2 You hereby transfer to us the ownership of all Debts and in addition
you hereby assign to us all Scottish Debts (in each case together with
their Related Rights) created after the date of this Agreement until
the ending of this Agreement. Our ownership of such Debts shall be
complete and they shall vest in us the moment they are created.
3.3 During the life of this Agreement you will enter the Debts and any
relative credits onto your Customers' accounts following Delivery of
the Goods and send us a Client Advice of them, unless they are
Non-Notifiable Debts. Immediately you make any Adjustments you will
send us details of them on a Client Advice.
4. PURCHASE PRICE OF DEBTS
4.1 The Purchase Price of the Debts covered by this Agreement is to be the
amount received by us towards the discharge of the Debts but less:
4.1.1 Customers' prompt settlement discounts later claimed; and
4.1.2 any other later claimed Customers' deductions, abatements or
set-offs; and
4.1.3 the discounting charges and commission charges; and
4.1.4 all other sums due to us.
5. LIMITS AND PERCENTAGES
5.1 The Limits (except Funding Limits) shall, to start with, be as stated
in the Schedule. We may at any time increase or decrease any or all of
the Limits with immediate effect.
5.2 We will tell you of any changes to the Limits (except Funding Limits).
We can tell you by written notice, oral advice or making the same
available through FacFlow, even if no enquiry be made.
5.3 We may also set up a Funding Limit for each Customer, and will tell
you of any balance which exceeds it.
5.4 No Prepayments will be available against Debts in excess of a Funding
Limit. If, following a reduction of a Funding Limit, the amount of
Prepayments already made exceeds your Availability, the excess must be
paid back immediately to us.
6. DECISIONS
6.1 We need not give reasons for any of our decisions and all decisions
and information given by us are confidential. You must treat any
information regarding Funding Limits as legally privileged and will
indemnify us against all claims arising from breach of your duty of
confidentiality. You must not take Funding Limits as our view of the
creditworthiness or otherwise of a Customer. We do not operate a
credit reference service.
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7. DISPUTES
7.1 If any Customer disputes a Debt or his liability to pay by its due
date or asserts any counterclaim or claim for reduction of or
retention or set-off against a Debt (except for a settlement discount
not exceeding 7.5%), then:
7.1.1 you must promptly give us full details; and
7.1.2 you must do your best to settle all such disputes and claims
promptly and directly with your Customers.
7.2 You must promptly raise a credit note if a Customer is entitled to
one. Unless we have brought clause 7.3 into effect you must
immediately deliver the credit note to the Customer and include its
details on your next Client Advice. The credit note will be debited to
the Receivables Purchased Account.
7.3 We may at any time write and tell you either that no credit notes can
be despatched to your Customers without our prior consent or that any
credit notes must be sent to us for our consent before we then
despatch them.
7.4 Clauses 7.1 to 7.3 shall not affect those rights which we may have
because this Agreement has been breached.
8. OUR ACCOUNTS
8.1 The Notified Value of all Debts will be credited to our account known
as the "Receivables Purchased Account". The balance on this account is
our record of the prospective Purchase Price of Debts before any of
the deductions used under clause 4.1 to calculate the Purchase Price.
8.2 You may also take Prepayments from us in respect of Debts credited to
the Receivables Purchased Account. These payments will be debited to
both the Receivables Purchased Account and to the Memorandum
Discounting Statement. The amount taken must not exceed either your
Availability or the Prepayment review level shown in the Schedule.
Your Availability will immediately be affected if any Debt later
becomes an Ineligible Debt.
8.3 We may debit the Receivables Purchased Account and the Memorandum
Discounting Statement with all other sums you owe us. If the debit
balance on the Memorandum Discounting Statement results in a negative
Availability you must immediately pay the excess to us without our
having to ask you.
8.4 The value of any Remittance received by us will be credited to the
Memorandum Discounting Statement with an effective date for
calculating discounting charges as follows:
8.4.1 if in cleared funds by electronic means to the specific
account we tell you for such purpose - the same calendar day
that we receive the Remittance;
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8.4.2 other Remittances paid into our bank account - four calendar
days after the date of lodgement by you of such Remittance,
provided:
- for FacFlow users, you record the lodgement in
FacFlow on the same date it is made and tell us by
means of a FacFlow Transmission within such four
calendar day period. If your FacFlow Transmission
takes place later, the effective date for
calculating discounting charges will be the date of
this transmission; or
- for non FacFlow users, we receive a duplicate bank
paying-in slip, duly stamped by the receiving bank,
within the four calendar day period. If we receive
the paying-in slip later, the effective date for
calculating discounting charges will be the date of
such receipt.
8.5 The balance on the Memorandum Discounting Statement will reflect:
8.5.1 payments taken by you;
8.5.2 any sums owed by you to us; and
8.5.3 any Remittances received by us.
8.6 If the Memorandum Discounting Statement shows a credit balance we will
normally pay this to you without your asking us but, at our
discretion, we may withhold amounts equal to:
8.6.1 any credit balances on Customers' accounts; and
8.6.2 the amount of Your Responsibility.
8.7 We cannot let you take any credit balance from your Memorandum
Discounting Statement after we have been told of the issue of a
petition for your sequestration, bankruptcy or winding up. Provided
that we do not exercise any of our rights under clause 17 we shall
need to see a court order dismissing the petition before starting
payments again.
8.8 We may at any time add together the balances on all accounts recording
transactions between you and us. We may also at any time apply or
set-off any amounts owing by you to us and the amount of Your
Responsibility against any amounts owing by us to you. Where any
amounts due by you to us, including those prospectively and
contingently due, cannot immediately be found out we may make a
reasonable estimate.
8.9 We will provide you with statements of the Receivables Purchased
Account and the Memorandum Discounting Statement. These shall be
treated as correct and binding upon you, except for those errors which
shall be obvious or contrary to law or where we receive your written
notice within 10 days of our despatch of such statements to you.
8.10 You will accept a certificate signed by our Company Secretary or a
director of ours as to all or any of the following on the date
referred to in the certificate:
8.10.1 the balance on the Memorandum Discounting Statement;
8.10.2 the balance on the Receivables Purchased Account;
8.10.3 any loss or damage suffered by us;
8.10.4 the amount of Your Responsibility;
8.10.5 any other amount payable to us.
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In any proceedings such certificate shall be conclusive evidence as to
the balance, loss, damage or amount on the date so certified.
8.11 If we ask you to do anything you will pay all costs and expenses of
doing so. If you do not carry out anything which we have a right to
ask for then we may do it and you will pay all our costs and expenses.
8.12 All payments due from you to us shall be made in immediately available
funds free and clear of any right of retention, set-off or
counterclaim or any other withholding or deduction. If you are
required by law to make any withholding or deduction, you will pay
such additional sum needed so that we receive the full amount due to
us under this Agreement.
9. CHARGES AND INDEMNITIES
9.1 You will pay us the discounting charge which shall accrue from day to
day. It will be worked out at the rate shown in the Schedule on the
debit balance on the Memorandum Discounting Statement. Any payment to
you will be debited to the Memorandum Discounting Statement with an
effective date for calculating discounting charges as follows:
CHAPS - the same day as the payment is taken.
2 days BACS - two calendar days from the date that the
payment is initiated.
3 days BACS - three calendar days from the date that the
payment is initiated.
9.2 The discounting charge shall be debited daily to the Receivables
Purchased Account and to the Memorandum Discounting Statement. Any
debit to the Memorandum Discounting Statement shall be treated as a
Prepayment for the purpose of working out the discounting charge.
9.3 We shall be entitled to a commission charge at the rate shown in the
Schedule for each Notified Debt. We shall debit this to both the
Receivables Purchased Account and the Memorandum Discounting Statement
at the end of each calendar month. No refund of any commission charges
can be made either if a credit note is issued or if this Agreement
ends.
9.4 If the total of all commission charges in each period shown in the
Schedule falls short of the sum needed during that period to reach the
minimum commission charge you will pay us the shortfall. If we
consider such shortfall likely then we may debit it to the Receivables
Purchased Account and to the Memorandum Discounting Statement.
9.5 If this Agreement does not end on the last day of a period for the
calculation of the minimum commission charge then when the Agreement
does end you will pay us the minimum commission charge to the end of
such period.
9.6 Payments to you will be made by BACS or CHAPS or such other method we
may at any time advise you. Any administration charges to you for such
payments will be at the same rate as those of our bankers.
9.7 If our bankers charge us, you will repay to us their charges for:
9.7.1 dealing with dishonoured Remittances;
9.7.2 collecting any Remittances in a currency other than Sterling;
9.7.3 collecting Remittances in Sterling drawn on a bank outside
the United Kingdom.
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9.8 You will pay us an arrangement fee for any variation of this Agreement
requested by you or any additional service provided outside its scope.
If we permit payments in excess of your Availability, we may also make
an additional facility charge until the excess is repaid. This will
not affect any other rights we may have.
9.9 If we make special visits to your premises or anywhere else then you
will pay all our costs and expenses.
9.10 You will fully indemnify us against all losses, costs, demands,
disbursements, fees and expenses of:
9.10.1 obtaining the release of Debts from charges, trusts or other
encumbrances or enforcing such release;
9.10.2 assignments or reassignments of Debts or Related Rights or
giving notices of assignment or reassignment;
9.10.3 taking guarantees or indemnities from any person, including a
receiver;
9.10.4 enforcing either this Agreement or any guarantee or indemnity
given in respect of it;
9.10.5 all matters arising from any breach by you of this Agreement
or the occurrence of a Termination Event;
9.10.6 any Customer failing to pay a Debt at its full Notified
Value;
9.10.7 any solicitor or agent engaged to collect Debts or conduct
legal proceedings concerning Debts and all legal fees and
disbursements payable to any other party to such proceedings.
9.11 Changes to the discounting charge, the commission charge and the
minimum commission charge shall only be effective if in writing signed
by both you and us.
9.12 VAT, if applicable, will be added to all fees and charges quoted by us.
9.13 You will pay us immediately on demand any amount which we have to pay
to any Customer by way of refund claimed under a direct debit
guarantee given by us.
10. REPURCHASE
10.1 We may at any time require you to Repurchase an Ineligible Debt from
us.
10.2 Should we require you to Repurchase Debts from us we will continue to
own all such Debts until we receive the price for all Repurchases. At
this point we shall transfer them back to you. We shall then account
to you for any further sums received by us from your Customers in
respect of such Debts.
11. AGENCY
11.1 We alone shall have sole and absolute discretion as to how to collect
and enforce payment of Debts. We can do this in whatever way we see
fit. Until we exercise our rights under clause 11.5 you must, at your
expense, collect Debts and manage Customers' accounts for us as our
undisclosed agent. You are not our agent for any other purpose.
11.2 Throughout the term of this Agreement you must ensure that all Debts
are promptly and correctly recorded in your Accounting Records and
that your sales ledger control bears a conspicuous notation that Debts
have been sold and assigned to us.
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11.3 During your agency we may communicate in your name with Customers for
the purposes of Debt verification.
11.4 You must act promptly and efficiently when carrying out your duties as
our agent.
11.5 We may at any time vary the terms of your agency as we see fit. If we
request you will give notice to each Customer that we are the owner of
all your present and future Debts. We will tell you the wording of the
notice which we can also give on your behalf. Unless we state
otherwise, such request will act as a cancellation of your agency,
whereupon we alone shall be entitled to collect and enforce payment of
all Debts in whatever way we see fit, including by direct debits. You
will fully co-operate with us and, as we direct, will help us to
collect Debts.
11.6 After the cancellation of your agency:
11.6.1 you must not say you are our agent;
11.6.2 you must immediately send us your Accounting Records to do
with Debts;
11.6.3 we will maintain your Customers' accounts in the form of a
sales ledger;
11.6.4 you must make sure Customers pay all their Debts to us or as
we direct;
11.6.5 in our absolute discretion we may settle, conduct or abandon
any collection activity and you will be bound by our actions
and decisions;
11.6.6 in our absolute discretion we can grant time or other
indulgence at any time to any Customer without discharging
you from your obligations to us, and compromise claims with
Customers or accept payment from a Customer which is less
than the Notified Value of the Debt;
11.6.7 in our absolute discretion we may start, defend or compromise
any legal proceedings and you will be bound by our actions
and decisions; the proceedings may be in our or your name;
you will give us all evidence we may at any time need,
whether before during or after any proceedings; you will make
sure that those witnesses we need will attend court; we may
use an alternative dispute resolution procedure involving
mediation or arbitration;
11.6.8 we can repay to a Customer any credit balance shown on their
account;
11.6.9 you will be responsible for paying all our charges, costs,
expenses and fees for collecting or attempting to collect any
Debt, including:
- our own internal costs, expenses and court fees;
- those of any solicitor or collection agent engaged
by us;
- those payable to any other party to the proceedings;
11.6.10 we may require you to give us security for the above costs
and expenses; we will credit the Receivables Purchased
Account and the Memorandum Discounting Statement with any
costs and expenses recovered.
12. TRUSTS AND OTHER RIGHTS
12.1 From the moment that you receive any Remittance, you will hold it
absolutely in trust for us. We may give notice to anyone that such
trust exists.
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12.2 When you receive a Remittance you must:
12.2.1 immediately pay it into our bank account, or into a trust
bank account in your name;
12.2.2 not pay it into any other account or deal with or negotiate
it.
12.3 A trust bank account must be run according to our instructions. This
means that we may irrevocably appoint our officers as the only people
who can authorise transactions on the account.
12.4 You must authorise and indemnify our bankers so that they can credit
our bank account with any transfers received from your bankers or your
Customers' bankers and so they can collect the proceeds of any
Remittances payable to you or your agents.
12.5 You must give us a letter addressed to your bankers instructing them
to transfer to our bankers any cheques, bank giro transfers, BACS,
CHAPS and other electronically transferred funds that may be received
by your bank from Customers. You will not be able to cancel such
instructions.
12.6 If we do not become the owner of any Debt or its Related Rights
covered by this Agreement for any reason then you will be treated as
holding such Debt or its Related Rights on trust for us free from all
encumbrances.
12.7 You must promptly tell us about all Returned Goods. We may require you
to set these aside marked with our name as the owner. You will then
deliver them to us, or deal with them as we direct. We can, without
notice, enter any premises where we believe Returned Goods or any
other items comprised in the Related Rights are kept. We can take
possession of or sell any Returned Goods on such terms and at such
prices as we consider appropriate. We shall credit the net proceeds
towards the discharge of the relative Debts. If we ask, you will
deliver to us or allow us to take away any other items included in the
Related Rights which we may deal with as we see fit.
13. YOUR UNDERTAKINGS TO US
13.1 Whilst this Agreement is in force and then until you have paid all
monies owing to us you undertake:
13.1.1 to make sure the payment and settlement discount terms for
each Debt and any rights of retention, abatement or rebate
are not more generous than those appearing in the Schedule
and that these appear on every invoice and all copies;
13.1.2 not to cancel or vary any Sale Contract or any payment terms
or settlement discounts after Delivery unless you have our
written consent;
13.1.3 to make sure that every Sale Contract shall:
- only be made in the ordinary course of your business
stated in the Client Particulars;
- be subject to English law or Scots law;
- provide for payment by the Customer in Sterling;
- not include any prohibition against assignment of the
Debt;
13.1.4 to make sure that neither you nor any Associate enters into
any other agreement for the factoring, charging, declaring in
trust or discounting of Debts with any other party or into
any arrangement prejudicial to our outright ownership of
Debts;
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13.1.5 to tell us immediately you know about the following:
- any change or contemplated change in the directors or
partners or the control or ownership of your company, firm or
business or of any guarantor or indemnifier of your
obligations to us;
- any threatened or pending Insolvency proceedings against you,
or against any guarantor, indemnifier or Associate;
- any changes in the status, address, or creditworthiness of a
Customer;
- any security holder taking any steps towards or actually
enforcing its security over any part of your assets or
undertaking;
- any floating charge given by you being crystallised or
becoming converted into a fixed charge;
- all retrospective or quantity discounts agreed with
Customers;
- any payment or settlement discount terms different from those
shown in the Schedule;
13.1.6 immediately we ask:
- to provide information about your Customers;
- to give evidence satisfactory to us of any order and the
completion of any Sale Contract;
- to exercise any reservation of title to Goods in the Sale
Contract;
- to deliver to us and not to your Customer the originals of
any of the items comprised in the Related Rights, together
with as many copies as we may require; we may forward these
to the Customer or other persons or organisations as
appropriate at your expense;
13.1.7 not to include in an Offer or a Client Advice, until we tell you, any
Debt which shall:
- be due by an Associate;
- be due by a Customer who also supplies goods or services to
you;
- arise from Goods supplied by you on approval, trial,
evaluation, consignment, sale or return or similar terms;
- be due by a Customer who has not purchased the Goods for his
business;
- be regulated by the Consumer Credit Xxx 0000;
- arise from the sale of your capital or fixed assets;
- be due under a Sale Contract in a currency other than
Sterling unless a Currency Annexe applies;
- be within the category of Non-Notifiable Debts detailed in
the Schedule, or such other Debts as we may specify;
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13.1.8 immediately to cease and desist from any contra accounting
arrangements with your Customers;
13.1.9 not to include in an Offer or a Client Advice any Debt until
the Goods have been Delivered;
13.1.10 to keep us advised of the identity of your Associates;
13.1.11 promptly to perform all your further and continuing
obligations to a Customer and, if we ask, to give evidence of
such performance;
13.1.12 to create such security in our favour on your undertaking and
assets as we may specify for your performance of this
Agreement, or in respect of Debts intended to be owned by us
but which for any reason fail to belong to us;
13.1.13 to sign any additional documents and do anything we may need
to exercise or enforce our rights, to sign assignments of
Debts or Related Rights or endorse or Assign any instrument
or security included in the Related Rights; any such
assignment of a Scottish Debt or any of its Related Rights
will support the assignment given in clause 3.2 but will not
prejudice that earlier assignment;
13.1.14 to follow our guidelines for the day to day efficient working
of this Agreement;
13.1.15 to make sure that your warranties about Debts are complied
with until they are discharged;
13.1.16 to take all steps we may require for the protection of our
interests under or arising out of this Agreement and in
mitigating any loss we may suffer.
14. WARRANTIES
14.1 By including a Debt in an Offer or a Client Advice you will be treated
as having given all of the following warranties to us:
14.1.1 all the particulars contained in the Offer or Client Advice
are correct and complete and the Debt has not been previously
Notified to us;
14.1.2 each Debt relates to an actual and bona fide sale and
Delivery in accordance with the Sale Contract;
14.1.3 the Debt is payable in the U.K. without any retention,
set-off or counterclaim by a Customer with an established
place of business in the U.K.;
14.1.4 you have the absolute right to transfer the Debt to us and,
except in our favour, it shall remain free from any security,
charge, trust, option, pledge, hypothecation, encumbrance,
lien or any tracing rights adversely affecting the Debt, the
Goods or the proceeds;
14.1.5 our ownership of the Debt will not violate any laws or
agreement affecting you;
14.1.6 the Notified Value of the Debt is the same as its Contracted
Value;
14.1.7 all sums due or obligations by you to the Customer have been
paid or performed and you will have no other obligations
towards the Customer which could reduce the amount payable to
us for the Debt;
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14.1.8 no right or claim of rescission, defence, adjustment or other
right or claim exists or will arise to reduce or extinguish
the Notified Value of the Debt or affect our ability to
collect the Debt;
14.1.9 the correct name and address of the Customer and any required
purchase order number appear on the invoice or credit note,
on any documents supplied evidencing the Debt and all
correspondence;
14.1.10 the Customer has obtained all the consents and certificates
necessary in order to pay the Debt;
14.1.11 the invoice or credit note identifies the currency for
payment as Sterling;
14.1.12 the Debt is one to which this Agreement applies;
14.1.13 where the Debt relates to a claim for interest:
- all legal criteria for your interest claim have been
fulfilled;
- the principal Debt to which your interest claim
relates has previously been Notified;
- your interest claim must be Notified to us within
three months of the date the principal Debt was
paid;
- no credit payment terms have been allowed for
discharging your interest claim.
14.2 You warrant that prior to entering into this Agreement you have
disclosed to us every fact or matter known to you or which you should
have reasonably known might influence us in our decision whether or
not:
14.2.1 to enter into this Agreement on these terms; or
14.2.2 to accept any person as a guarantor or indemnifier of your
obligations to us.
14.3 You will immediately tell us of anything which might reasonably
influence our decision to continue with this Agreement on these terms.
15. FACFLOW
15.1 We will provide you with FacFlow. You will provide all computer
equipment required at your premises and will keep this equipment virus
free and suitable for use. We shall have no responsibility for any
damage, loss or corruption of your data, software or equipment caused
through the loading or operation of our Software.
15.2 You undertake:
15.2.1 to use your best endeavours to keep such equipment free from
any Equipment Defect or Transmission Defect and to make
suitable contingency arrangements to cover any such defect or
the withdrawal or suspension of FacFlow;
15.2.2 immediately to load and use any Software updates which we may
provide;
15.2.3 to keep secret and confidential the method of operation of
FacFlow, the Software and all access data and security
procedures and to tell us promptly if any contravention is
known or suspected;
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15.2.4 on a weekly basis or more frequently if we tell you, to make
back up copies on disk of your sales ledger records,
including invoices and credit notes, and to securely store
such copies away from your premises for at least 4 months,
and to advise us of their location.
15.3 You will have a non-transferable licence to use the Software.
15.4 We own all rights in the Software. You may not copy it without our
prior written consent, except one copy solely for back-up purposes.
15.5 You and we undertake to each other:
15.5.1 to use all reasonable endeavours to ensure that each FacFlow
Transmission is completely and correctly sent;
15.5.2 to tell the other promptly if either is aware of any
Equipment Defect or Transmission Defect and to co-operate
with the other to remedy it;
15.5.3 to maintain appropriate records in support of FacFlow
Transmissions and to ensure that FacFlow is not accessible to
unauthorised persons.
15.6 We will maintain a Transmissions Log which shall, in the absence of
manifest error, be conclusive proof and evidence of the FacFlow
Transmissions sent or received by us.
15.7 We may rely upon any FacFlow Transmission ostensibly sent by you even
though it may be sent without your authority. We may also rely upon
any FacFlow Transmission sent through your agent or intermediary.
15.8 We may without notice suspend, withdraw or reactivate the operation of
FacFlow.
15.9 We shall have no responsibility to you for any loss or damage as a
result of any failure or delay in complying with our obligations in
connection with FacFlow, including that arising from any:
15.9.1 Equipment Defect or Transmission Defect;
15.9.2 suspension or withdrawal of FacFlow;
15.9.3 act or omission of any third party or abnormal operating
conditions;
15.9.4 failure to process any FacFlow Transmission to our internal
systems, even though accepted by FacFlow.
15.10 Upon withdrawal of FacFlow you will immediately return to us any
property of ours in your possession or under your control.
15.11 You will indemnify us against all losses and damages that we may incur
if you breach your obligations in respect of FacFlow.
15.12 FacFlow does not operate on a real time basis. Please note any
information is only accurate to an earlier point in time. In particular
any request by you for a payment based upon any Availability shown may
be varied by us as further information becomes available.
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15.13 Subject to clause 15.12, you and we will give each FacFIow
Transmission the same status as if it had been in writing, signed on
behalf of the sender and physically delivered to the recipient, unless
the FacFlow Transmission can be shown to have been corrupted as a
result of technical failure. FacFlow Transmissions shall be treated as
satisfying any legal requirement for a communication to be in writing.
You waive any rights to challenge the validity of any FacFlow
Transmission on the ground that it was prepared and/or sent and/or
received only in electronic form.
15.14 A FacFlow Transmission regarding Initial Debts shall be treated as
including the following words:
"In accordance with the Invoice Discounting Agreement between Lombard
NatWest Discounting Ltd and ourselves the Debts referred to in this
FacFlow Transmission shall be considered as being subject to an
Offer".
16. INFORMATION FOR US
16.1 You must give us a signed copy of your full set of accounts, including
your directors' and auditor's report or such other financial reports
as we request, for each of your accounting reference periods (as
defined in the Companies Act 1985). You must give us these items as
soon as you have them, which must be no later than six months from the
end of each accounting period.
16.2 You must give us your management profit and loss account and balance
sheet at such intervals as we tell you. You will also give us such
other financial reports that we may ask for and you will ensure that
your auditors or external accountants report to us directly any
information that we require.
16.3 You will provide to us by the monthly returns due date specified in
the Schedule:
16.3.1 an aged analysis of Debts on the basis specified in the
Schedule and correct to the last day of the preceding month.
The ageing must also identify those Customers' accounts which
are either in dispute or have been passed to solicitors, debt
collectors or other third parties for collection;
16.3.2 copy Customers' statements for the same period as in clause
16.3.1;
16.3.3 a sales ledger control in the format we tell you reconciled to
the aged analysis of Debts in clause 16.3.1;
16.3.4 any other information we may ask for.
16.4 You will let any employee, representative or agent of ours enter any
of your business premises or locations under your control in order to:
16.4.1 inspect Goods, stocks, Sale Contracts and evidence of their
performance;
16.4.2 verify, check, remove or be provided with copies of all
Accounting Records.
16.5 We may at all times rely upon any signature, act or communication of
any person purporting to act on your behalf and the same shall be
binding upon you.
17. TERMINATION EVENTS
17.1 In addition to the right of either you or us to give notice to the
other to end this Agreement under clause 2.1, we may immediately end
it at any time after any of the following events:
17.1.1 any breach or threatened breach by you of this Agreement;
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17.1.2 the breach or threatened breach or the termination of any
contract between us and any of your Associates;
17.1.3 any application by any creditor of yours for a court order
that we must pay money to your creditor or must stop paying
any monies to you;
17.1.4 if you have an obligation to a third party for repayment of
borrowed money which is declared due prior to its stated
maturity date or you do not pay it when due;
17.1.5 any change in your ownership, control, constitution or
composition reasonably considered by us to prejudice our
position;
17.1.6 breach or termination by you or a third party of any
representation, warranty or undertaking given to us;
17.1.7 the termination of any waiver, consent, ranking or priority
arrangement in our favour;
17.1.8 your ceasing or threatening to cease to carry on your
business referred to in the Schedule;
17.1.9 your Insolvency;
17.1.10 the Insolvency or death of any person who has given a
guarantee or indemnity for your obligations to us, or the
service of a notice of intention to end such guarantee or
indemnity or the legal disability of that person;
17.1.11 if any Associate factors or discounts its debts with another
party or is threatened with Insolvency proceedings or becomes
Insolvent;
17.1.12 your failure to comply with the minimum notification
requirements shown in the Schedule.
17.2 Upon your Insolvency, ceasing to trade, failure to repay the entire
Repurchase price under clause 17.4.1 or our cancelling your agency
referred to in clause 11.5, we may:
17.2.1 immediately debit your Receivables Purchased Account and
Memorandum Discounting Statement with an additional
commission charge of five per cent of the Notified Value of
the Debts then Outstanding or Notified to us thereafter in
order to cover our additional administrative work; and
17.2.2 immediately increase the discounting charge by two per cent.
17.3 Upon or at any time after a Termination Event (whether or not we use
our right immediately to end this Agreement), we may, with or without
notice to you, do any or all of the following:
17.3.1 reduce the Prepayment percentage to zero or such other
figure as we may decide;
17.3.2 designate all or any Outstanding Debts as Ineligible Debts;
17.3.3 create a special reserve against the Receivables Purchased
Account to cover Your Responsibility;
17.3.4 add together the balances on all accounts recording
transactions between you and us;
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17.3.5 demand that you pay us immediately any debit balance arrived
at under clause 17.3.4 plus commission charges and
discounting charges accrued but not yet debited and an amount
equal to all credit balances on Customers' accounts;
17.3.6 require you to Repurchase any Debts then Outstanding;
17.3.7 delay at least ten calendar days, to allow for cheque
clearances, before paying to you any credit balance on the
Memorandum Discounting Statement.
17.4 Upon the ending of this Agreement, for whatever reason:
17.4.1 you must Repurchase all Outstanding Debts from us at a price
equivalent to the debit balance on the Memorandum Discounting
Statement and all other sums due to us;
17.4.2 you will not attempt to cancel any notices of assignment
given to Customers or attempt to collect Debts until you have
paid the Repurchase price under clause 17.4.1 and we shall
continue to own all Debts until so paid;
17.4.3 you will be responsible for all credit balances on Customers'
accounts and indemnify us in respect of all claims for them;
17.4.4 you will not Notify us of any Debts arising after the date on
which this Agreement ends; and
17.4.5 we shall pay you any credit balance on the Memorandum
Discounting Statement less the amount of Your Responsibility
but allowing at least ten calendar days for cheque
clearances.
17.5 Except as otherwise provided, the ending of this Agreement shall not
affect our respective rights and obligations in respect of:
17.5.1 any Debts which shall have come into existence prior to such
termination; and
17.5.2 all transactions or events having their inception prior to
such termination, including the continued running of the
discounting charge and our rights to set-off monies or
combine accounts.
Such rights and obligations shall remain in full force and effect
until all monies due from you shall have been received by us and all
monies due from us to you shall have been paid.
17.6 Any discharge of your obligations to us shall be of no effect
to the extent that any receipt by us shall later be set aside
under insolvency law.
18. POWER TO ACT IN YOUR NAME
18.1 To ensure that you carry out your obligations to us and as
security for all sums which shall become due to us, you
irrevocably appoint us and our directors, Company Secretary
and officers, at any time, jointly and each of them severally
to act as your attorneys as we or they think fit in order to
do all or any of the following:
18.1.1 complete and perfect our title to or deal with any
Debt, Related Rights or Returned Goods;
18.1.2 obtain payment of and give valid discharges for any
Debt;
18.1.3 secure performance of any of your obligations to us
or to any Customer.
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18.2 For these purposes, your attorneys may do any of the following:
18.2.1 sign all documents;
18.2.2 endorse and/or negotiate all Remittances;
18.2.3 conduct, defend or compromise any legal proceedings and
settle any indebtedness;
18.2.4 take all other steps they consider necessary.
18.3 These powers shall continue both during and after the ending of this
Agreement and during any disability on your part until all sums due to
us have been paid. You will ratify and confirm whatever shall be
lawfully done under these powers.
18.4 You also irrevocably appoint any assignee of ours or any person to
whom we may novate this Agreement to perform any of the acts set out
above. We may also appoint or remove a substitute attorney.
19. CONTACTING OTHER PARTIES
19.1 We may:
19.1.1 provide your bank, auditors, accountants and other
professional advisers with such information about your
accounts with us as they may ask;
19.1.2 obtain from your bank, auditors, accountants and other
professional advisers such information as we may request.
19.2 You confirm that you have authorized the persons referred to in 19.1.2
to give us such information.
19.3 We may disclose this Agreement and any information which we have
obtained:
19.3.1 to any actual or potential assignee, transferee or
sub-participant;
19.3.2 to any agency, security trustee, agent and/or arranger in
connection with any financing of any such assignee,
transferee or sub-participant;
19.3.3 in any listing particulars, prospectus or offering circular.
20. ASSIGNMENT, DELEGATION AND FORCE MAJEURE
20.1 You consent to our novating to any other party any or all of our
obligations, rights and remedies. This Agreement shall bind and enure
to the benefit of our successors and assignees.
20.2 Except where the context otherwise requires, references to "we" or
"us" shall include our successors, assignees and transferees in
clauses conferring benefits and/or rights on us; in clauses imposing
obligations on us, such references shall extend to such successors,
assignees and transferees only if they shall specifically assume such
obligations.
20.3 You will not, without our prior written consent:
20.3.1 assign, grant security over or charge any of your rights or
benefits or delegate any of your duties under this Agreement;
20.3.2 dispose of any part of your business, assets or undertaking,
except in the ordinary course of your business;
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20.3.3 create any securities, mortgages or charges on or over your
assets or undertaking.
20.4 We shall not be liable to you for any consequential, secondary or
indirect loss, injury or damage or any loss of or damage to goodwill,
profits or anticipated savings. However nothing shall operate to
excuse us from liability caused by the fraud of any of our officers.
20.5 We shall have no liability to you if we are delayed in or unable to
perform our duties directly or indirectly because of an event of Force
Majeure.
20.6 Any waiver or apparent waiver by us of any breach of any obligation or
provision in this Agreement cannot be treated as a general waiver or
be construed as implying or establishing consent to any subsequent
breach.
21. SERVICE OF NOTICES AND PROCESS
21.1 Except as otherwise stated, any written notice from us to you and any
proceedings issued by us requiring service on you may be given or
served by delivering it at or posting it to:
21.1.1 your address stated in the client particulars or such other
address advised to and acknowledged by us as being effective
for the purposes of this clause; or
21.1.2 your registered office; or
21.1.3 any address last known to us at which you carried on
business.
It may also be handed to any officer of yours or be given by facsimile
transmission or electronic medium to your number or address last known
to us for communication by such means.
21.2 Any notice or process shall be considered served if:
21.2.1 delivered - at the time of delivery; or
21.2.2 sent by post - 48 hours from the time of posting; or
21.2.3 sent by facsimile transmission or electronic medium - at the
time of transmission; or
21.2.4 handed over - at the time of handing over.
21.3 Any notice in writing by you to us under this Agreement shall take
effect at the time it is received by us at our registered office.
22. LAW AND JURISDICTION
22.1 Our relationship with you is to be governed and interpreted by English
law. You submit to the jurisdiction of the English courts. We may,
however, use the courts of any other jurisdiction.
23. INTERPRETATION OF THIS AGREEMENT
23.1 Any reference to a statute includes any amendment or replacement or
re-enactment of that statute for the time being and any order and any
subordinate legislation made under it.
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23.2 The singular includes the plural and vice versa. Reference to any
gender shall include any other gender. References to a person or party
shall be construed as references to any person, firm, company,
corporation, association, partnership, government, whether local,
national or supra-national or other official body.
23.3 The meaning of general words introduced by the word "other" is not to
be limited by reference to any preceding words.
23.4 Where the meaning of a word or expression in this Agreement has to be
considered in relation to any place outside England and such word or
expression has no exact counterpart in that place, it is to have the
meaning of its closest equivalent as conclusively determined by us.
23.5 The interpretation and construction of this Agreement shall not be
affected by any headings, which are for convenience only.
24. GENERAL
24.1 The whole agreement between you and us consists of only this document,
including any annexes referred to in the Schedule (and any document
referred to in such annexes). References to "the Agreement" or "this
Agreement" include all the annexes and all subsequent amendments,
variations or extensions. All earlier agreements, prior negotiations,
quotations, warranties, advertisements and representations shall be of
no effect. You have not relied upon any representation made to you by
us or on our behalf or been influenced, induced or persuaded to enter
into this Agreement by any representation.
24.2 We may use all or any of the rights and remedies contained in this
Agreement. They are not exclusive of each other or of any rights or
remedies given to us by law. If we choose not to enforce or cannot
enforce any term or condition, this will not affect our right to
enforce the rest of the Agreement or to enforce that term or condition
at a later date. Also, such rights and remedies shall not be affected
if we compromise with any Customer.
24.3 This Agreement is considered by both you and us to be reasonable.
Should any part of it be valid only if some other part were deleted
then the Agreement will apply as if it were so deleted. The remainder
of this Agreement will not be affected by such deletion.
24.4 Except where clauses 5.1 (where we may change Limits at our complete
discretion) and 9.11 apply, changes to the Agreement can be made
between you and us in any way but will only come into effect on the
date stated in our written confirmation to you of such change or if no
such date is stated upon despatching such confirmation.
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ANNEXE OF DEFINITIONS
In the attached Agreement the following expressions have the meanings set out
below against each of them.
Accounting Records Force Majeure Related Rights
Adjustments Funding Limit Remittances
Assign Funding Period Repurchase
Associate Goods Retention Percentage
Availability Ineligible Debt Returned Goods
BACS Initial Debt Sale Contract
Base Rate Insolvent Schedule
CHAPS Limits Scottish Debts
Client Advice Memorandum Discounting Statement Software
Concentration Limit Percentage Non-Notifiable Debt Sterling
Contracted Value Notified/Notify/Notifying Termination Event
Customer Notified Value Transmission Defect
Debt Offer Terminations Log
Delivered Outstanding United Kingdom/U.K.
Equipment Defect Prepayment U.K. Debt
FacFlow Purchase Price VAT
FacFlow Transmission Receivables Purchased Account Your Responsibility
"ACCOUNTING Any of the following:
RECORDS"
(1) accounting books, records and ledgers, financial and
management accounts;
(2) computer data or materials about your financial
position, purchases and sales;
(3) all invoices, credit notes or documents evidencing
entries in such books of accounts, records and
computer data and any other documents we require.
"ADJUSTMENTS" Any entry on your Customers' accounts which changes the
Notified Value of Debts.
"ASSIGN" The transfer of ownership which includes in Scotland the
giving of an assignation.
"ASSOCIATE" (1) Any subsidiary or holding company of yours as
defined in sections 736 and 736A of the Companies
Acts 1985 to 1989; or
(2) any other form of associate of yours as defined in
section 184 of the Consumer Credit Xxx 0000; or
(3) a director, partner, shareholder or employee of
yours or the spouse of any of them; or
(4) any company in which you or any of them have an
interest other than purely for investment purposes
in a publicly quoted company.
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"AVAILABILITY" Your entitlement to Prepayment calculated by taking
the credit balance on the Receivables Purchased
Account and deducting:
(1) the value of all Ineligible Debts;
(2) the amount of Your Responsibility; and
(3) the standard retention.
The standard retention is arrived at by:
(1) taking the balance on the sales ledger
control; and then
(2) deducting the value of all Ineligible
Debts; and then
(3) multiplying the resultant sum by the
Retention Percentage.
"BACS" The Bankers Automated Clearing System.
"BASE RATE" The Sterling Base Rate per annum quoted, from
time to time, by National Westminster Bank Plc or
its successors or such other bank as we may tell
you.
"CHAPS" The Clearing Houses Automated Payments System.
"CLIENT ADVICE" Your notification to us, in such way as we may
specify, including in a FacFlow Transmission, of
Debts, credit notes and Adjustments which have not
previously been Notified to us together with such
evidence of the performance of the Sale Contract or
reasons for a credit note as we may specify.
"CONCENTRATION A percentage established by us of the balance of all
LIMIT PERCENTAGE" Outstanding Notified Debts.
"CONTRACTED VALUE" The amount of a Debt payable by a Customer in
accordance with the Sale Contract after taking into
account any deduction, discount, claim or allowance.
"CUSTOMER" A person who incurs or may incur any indebtedness
under a Sale Contract.
"DEBT" Any present, future or contingent obligation of a
Customer to make payment under a Sale Contract
together with its Related Rights or where the
context allows a part of such obligation or its
Related Rights, including:
(1) the future right to recover sums due
following the determination, assessment or
agreement of the amount of the obligation;
and
(2) VAT; and
(3) all duties and charges.
"DELIVERED" In relation to Goods:
(1) their removal from your control and from
your premises, carriers and agents; and
(2) their physical delivery to the Customer in
the United Kingdom or to the Customer's
order; and
(3) the assumption of risk therein by the
Customer; and
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(4) complete performance of the Sale Contract.
In relation to services: fully performed.
"Deliver" and "Delivery" are to be similarly
construed.
"EQUIPMENT Any malfunction, failure, defect, downtime or
unavailability of computer equipment
or
DEFECT" software or any ancillary service or link including
telephone or other communication systems.
"FACFLOW" A computerised data enquiry and transmission system
between you and us as updated from time to time.
"FACFLOW Any item of data transmitted between you and us
TRANSMISSION" using FacFlow.
"FORCE MAJEURE" Any circumstances outside our or a Customer's
reasonable control, including an act of God, any
exchange control, governmental or other official
regulations or requirements, the outbreak of war,
any terrorist act, revolution, civil insurrection,
strike, lockout, industrial action or failure or
non-operation of postal, banking or communication
services.
"FUNDING LIMIT" A monetary limit established by us in respect of
each Customer against which the Prepayment
percentage will be applied.
"FUNDING PERIOD" The period initially as specified in the Schedule,
after which Debts will rank as Ineligible Debts.
"GOODS" Any merchandise or services the subject of a Sale
Contract.
"INELIGIBLE DEBT" A Debt:
(1) which is disputed or in respect of which
the Customer shall dispute their liability
to pay or pay it by its due date for
payment; or
(2) in respect of which you shall be in breach
of any undertaking or warranty given to us
about it or any other obligations of yours
to us arising from it; or
(3) which remains Outstanding beyond the end of
the Funding Period; or
(4) in excess of our Funding Limit; or
(5) owing by any Customer in excess of the
Concentration Limit Percentage; or
(6) in respect of which legal proceedings have
been threatened against the Customer; or
(7) where the Customer is Insolvent; or
(8) specified by us at any other time.
"INITIAL DEBT" A Debt Outstanding at the date of this Agreement.
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"INSOLVENT"
(A) In relation to you or any guarantor or
indemnifier of your obligations to us - any
of or the occurrence of any of the
following:
(1) the issue of a petition or application, the
calling of a meeting or making proposals,
for any of the matters listed in sub
section 'B' below;
(2) any part of your or their income or assets
being subject to any of the following:
- seizure, distress, diligence or
lien;
- enforcement of security rights;
- execution of legal process;
- sequestration;
- an injunction or interdict;
- attachment;
- other legal process;
(3) the service of any statutory demand under
the Insolvency Xxx 0000;
(4) the entry or making of any judgment, order,
decree or award which shall remain
unsatisfied or whose terms shall not be
complied with for seven days (except
pending any appeal);
(5) an application for a garnishee order;
(6) giving notice of the intended suspension of
payments of debts;
(7) becoming apparently insolvent;
and the taking of any steps for the commencement of
any proceedings in respect of any of the above
matters.
(B) In relation to a Customer - any of
following:
(1) in relation to an individual -
bankruptcy, apparent insolvency or
sequestration or the granting of a trust
deed for the benefit of creditors;
(2) in relation to a company - a resolution for
voluntary winding up by reason of
insolvency, a winding up order, the
appointment of an administrator under the
Insolvency Xxx 0000 or the appointment of a
provisional liquidator or receiver (whether
in or out of court) or an administrative
receiver of any of its assets or income or
a judicial factor;
(3) in relation to a partnership - its
bankruptcy, apparent insolvency or
sequestration or its winding up or the
appointment to it of an administrator under
the Insolvency Xxx 0000 or the appointment
of a judicial factor or an order for the
bankruptcy or sequestration of any partner
or the apparent insolvency of any partner
or the grant by a partner of a trust deed
for creditors;
(4) in relation to any person - entry into a
voluntary arrangement under the Insolvency
Xxx 0000 or apparent insolvency or any
formal or informal arrangement generally
for the benefit of creditors;
"Insolvency" shall be construed accordingly.
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"LIMITS" Any of:
- the Prepayment percentage;
- Funding Limits;
- Funding Period;
- the Prepayment review level initially shown
in the Schedule;
- the Concentration Limit Percentage.
"MEMORANDUM An account operated by us to calculate discounting
DISCOUNTING charges.
STATEMENT"
"NON-NOTIFIABLE A Debt, owned by us under this Agreement, which must
DEBT" not be Notified to us until we tell you, including
specifically those referred to in the Schedule and
in clause 13.1.7.
"NOTIFIED/NOTIFY Inclusion of a Debt in an Offer or Client Advice.
NOTIFYING"
"NOTIFIED VALUE" The amount of the Debt as shown in an Offer or Client
Advice.
"OFFER" An unconditional offer to sell us a Debt with full
title guarantee to be made in such form and with
such evidence of the performance of the Sale
Contract as we may specify. Where more than one Debt
is at the same time subject to an Offer it shall be
treated as an independent offer to sell us each Debt
so offered which may be accepted or rejected by us
entirely at our discretion.
"OUTSTANDING" A Debt unpaid by the Customer or a third party.
"PREPAYMENT" A payment on account of the Purchase Price of Debts
calculated by applying the Prepayment percentage
initially specified in the Schedule to their Notified
Value.
"PURCHASE PRICE" The price payable by us for a Debt calculated in
accordance with clause 4.1.
"RECEIVABLES An account reflecting the prospective Purchase Price
PURCHASED of Debts.
ACCOUNT"
"RELATED RIGHTS" Any of the following in relation to any Debt or
Returned Goods:
(1) all your rights by law as an unpaid vendor
or under the Sale Contract but without any
obligation on us to complete the Sale
Contract;
(2) all evidence of the Sale Contract or its
performance or any disputes arising;
(3) documents of title to goods, warehouse
keepers receipts, bills of lading, shipping
documents, airway bills, certificates of
origin, customs forms, commercial and
consular invoices, insurance documents or
similar;
(4) the benefit of all insurances;
(5) all Remittances, securities, bonds,
guarantees and indemnities;
(6) all Accounting Records to do with the Debt;
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(7) the right to call for the ownership of all
Returned Goods;
(8) interest.
"REMITTANCES" Cash, cheques, bills of exchange, negotiable and non
negotiable instruments, letters of credit, orders,
drafts, promissory notes, electronic payments and
any other instruments, methods or forms of payment
or engagement received by us, you or your agents
towards a Debt.
"REPURCHASE" Our right to require you to buy back and in respect
of a Scottish Debt to take a reassignment from us of
an Outstanding Debt at a price equivalent to its
Notified Value or the Prepayment paid in respect of
it.
"RETENTION 100% less the Prepayment percentage from time to
PERCENTAGE" time.
"RETURNED GOODS" Any Goods relating to or purporting to comply with a
Sale Contract which any Customer shall for any
reason:
(1) reject or give notice of rejection; or
(2) return or attempt to or wish to return to
you or us; or
(3) which you or we recover from a Customer.
"SALE CONTRACT" A contract in any form, including a purchase order,
between you and a Customer for the sale or hire of
Goods or the provision of services or work done and
materials supplied.
"SCHEDULE" The Schedule to this Agreement.
"SCOTTISH DEBTS" Debts arising under Sale Contracts where either
those Sale Contracts are governed by Scots law or
the invoices for the Debts are addressed to
Customers in Scotland.
"SOFTWARE" The software provided by us to enable you to use
FacFlow.
"STERLING" The lawful currency from time to time of the U.K.
"TERMINATION EVENT" Any event listed in clause 17.1.
"TRANSMISSION Any programming error, corruption or other defect,
DEFECT" or any delay or failure or breach of security in a
FacFlow Transmission.
"TRANSMISSIONS A record maintained by us of FacFlow Transmissions.
LOG"
"UNITED KINGDOM/ The United Kingdom of Great Britain and Northern
U.K." Ireland, the Channel Islands and the Isle of Man.
"U.K. DEBT" A Debt evidenced by an invoice addressed to a
Customer in the United Kingdom.
"VAT" Value Added Tax.
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"YOUR Monies payable or possibly payable to us in the
RESPONSIBILITY" future including liability:
(1) arising from debts transferred to us by any
of your suppliers; or
(2) as a guarantor or indemnifier of another
client of ours; or
(3) for the breach of your obligations to us;
or
(4) for legal costs and expenses;
and our reasonable estimate of such monies where the
amount cannot be immediately found out.
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EXPORT DEBTS ANNEXE - INVOICE DISCOUNTING
EX 1 Where the Schedule to the Agreement shows that this annexe is to be
incorporated into the Agreement then you will also Notify us of Export
Debts and the terms of this annexe shall additionally apply.
EX 2 In this annexe the following expressions have the meanings set out
against each of them:
"APPROVED A country, territory, region or continent referred
TERRITORY" to in the list at the end of this annexe or as we
may tell you in writing or by making the same
available through FacFlow, even if no enquiry be
made.
"EXPORT A Debt where the invoice is addressed to a Customer
DEBT" outside the United Kingdom and/or in respect of
which payment is to originate from outside the
United Kingdom.
EX 3 The definition of a "Non-Notifiable Debt" in the Agreement is
extended to include:
(1) all Debts, which under the Sale Contract are to be
discharged, wholly or in part, by letters of credit; and
(2) all Debts where the invoice is addressed to a Customer
outside an Approved Territory.
EX 4 The definition of "Delivered" in relation to Export Debts shall be
treated as if item 2 of such definition were deleted.
EX 5 When you Notify us of an Export Debt you will be treated as
additionally warranting to us that:
(1) the Debt is payable by a Customer with an established place
of business in the country to which the invoice is addressed,
such country being an Approved Territory, and without any
set-off or counterclaim;
(2) the Customer has all unconditional authorities, licences and
permits necessary for him lawfully to purchase and import the
Goods and to pay for them by their due date for payment;
(3) the exportation of the Goods does not breach the laws of the
United Kingdom or any other country or territory.
EX 6 We may at any time remove any country, territory, region or continent
from the definition of Approved Territory by written notice to you or
by making the same available through FacFlow, even if no enquiry be
made, but this shall not affect Debts Notified to us prior to our
despatch of such notice.
EX 7 Where there is any conflict between the terms of this annexe and the
remainder of the Agreement then the terms of this annexe shall
prevail.
EXP1
29
LIST OF APPROVED TERRITORIES
1. The following countries of the European Union - Austria, Belgium,
Denmark, Republic of Ireland, Finland, France, Germany, Greece, Italy,
Luxembourg, The Netherlands, Portugal, Spain, Sweden.
2. Norway, Switzerland, Canada and The United States of America.
SPECIAL CONDITIONS
1. You will obtain loss of book debt records insurance with our interest
noted therein, or alternatively sales ledger to be backed up at least
weekly and copy disk stored offsite.
2. You will give all Customers paying by BACS, CHAPS or any other form of
electronic transfer our nominated bank account details.
3. You will retain Customer Remittance Advices and make these available
to us upon request, where a Remittance Advice is not received you will
retain a copy of the cheque.
4. You must not include in an Offer or Notification any Debt until the
Goods have been delivered in accordance with this Agreement.
5. You will obtain proof of Delivery in all cases and make these
available to us upon request.
EXP2
30
THE SCHEDULE
(RECOURSE - DOMESTIC AND EXPORT)
1. ANNEXE(S) INCORPORATED IN THIS AGREEMENT: DEFINITIONS.
(clause 24.1)
Export Debts.
2. (A) MINIMUM PERIOD OF THIS AGREEMENT:
(clause 2.1) 12 months from
the date this Agreement is made.
(B) MINIMUM NOTICE PERIOD:
(clause 2.1) 3 months.
3. DEBTS TO WHICH THIS AGREEMENT APPLIES:
(clause 1.1) All U.K. Debts.
All Export Debts.
4. MONTHLY RETURNS DUE DATE:
(clause 16.3) 15th day of month following.
5. BASIS ON WHICH ANALYSIS OF DEBTS IS TO BE AGED:
(clause 16.3.1) From each invoice date, separately identifying
the amounts of Outstanding Debts by
Customer showing Customer balances as
follows: total, up to 30 days old, 00 - 00
xxxx xxx, 00 - 00 days old, and beyond 90
days old, plus a summary ageing of the
totals of each of these categories.
N.B. In paragraphs 6 to 14 below:
- the provisions in the column headed U.K. Debts shall only
apply to U.K. Debts and the provisions in the column headed
Export Debts shall only apply to Export Debts;
- if we keep the Receivables Purchased Account and the
Memorandum Discounting Statement in respect of Debts in
currencies other than Sterling then any sum expressed in
Sterling shall be treated as if the words "or its currency
equivalent" were also added.
U.K. DEBTS EXPORT DEBTS
6. MINIMUM NOTIFICATION We must receive a Client We must receive a Client
REQUIREMENTS: Advice from you at least Advice from you at least
(clause 17.1.12) once every 4 weeks. once every 4 weeks.
7. PREPAYMENT PERCENTAGE: 70%. 70%.
(definition of "Prepayment")
8. FUNDING PERIOD: 90 days from end of month 90 days from end of month
(definition of "Ineligible of invoice. of invoice.
Debt" and "Funding
Period")
SCH1
31
U.K. DEBTS EXPORT DEBTS
9. PREPAYMENT REVIEW To be determined by us. To be determined by us.
LEVEL:
(clause 8.2)
10. DISCOUNTING CHARGE: 1.50% above Base Rate. 1.50% above Base Rate.
(clause 9.1)
11. COMMISSION CHARGE: 0.08% of the Notified Value 0.08% of the Notified Value
(clause 9.3) of each Debt. of each Debt.
12. MINIMUM COMMISSION In any period of 12 In any period of 12
CHARGE: month(s) (pound) 6000. month(s) (pound) 6000.
(clause 9.4)
Where both U.K. Debts and Export Debts are subject to this Agreement,
the minimum commission charge in respect of all Debts shall be (pound)
6000.
13. YOUR PAYMENT AND 30 days from date of 30 days from date of
SETTLEMENT DISCOUNT invoice with a settlement invoice with a settlement
TERMS: discount not exceeding n/a discount not exceeding n/a
(clause 13.1.1) %. %.
14. ADDITIONAL NON-NOTIFIABLE Sales to associated Sales to associated
DEBTS: companies, cash and credit companies, cash and credit
(clause 13.1.7) card sales. card sales.
15. CONDITIONS TO BE COMPLIED WITH BEFORE WE START MAKING PREPAYMENTS:
1. We are to receive the corporate guarantee and indemnity of Xxxx
International (UK) Ltd, Hago Products Limited, Beldray Limited and
Xxxxxxx International Holdings Limited.
2. We are to be satisfied with a statement of your millennium compliance.
3. We are to receive and be satisfied with a copy of your Certificate of
Incorporation and Memorandum & Articles and Association.
4. We require an all assets mortgage debenture, the cost of which will be
borne by you.
5. We require a deed of priority from National Westminster Bank Plc in
respect of LND'S mortgage debenture.
6. We are to receive a letter of waiver from National Westminster Bank
Plc, in our standard form to allow us to purchase your Debts.
7. The practice of accepting on account payments is to cease from
commencement. All receipts are to be correctly allocated.
XXX0
00
00. SPECIAL CONDITIONS:
1. We are to receive a copy of your quarterly management accounts within 6
weeks of quarter end, commencing with quarter ending 30th September 1999.
2. You will obtain loss of book debt records insurance with our interest
noted therein, or alternatively sales ledger to be backed up at least
weekly and copy disk stored offsite.
3. You will give all Customers paying by BACS, CHAPS or any other form of
electronic transfer our nominated bank account details.
4. You will retain Customer Remittance Advices and make these available to us
upon request, where a Remittance Advice is not received you will retain a
copy of the cheque.
5. You must not include in an Offer or Notification any Debt until the Goods
have been delivered in accordance with this Agreement.
6. You will obtain proof of Delivery in all cases and make these available to
us upon request.
7. Collecting drivers are to sign despatch notes in all cases.
8. Argos is to be ledgered separately and a prepayment percentage of 50% will
apply to this ledger.
9. Accrual in respect of retrospective rebates is to be advised to LND at
commencement. A reserve will be maintained and updated at audit or more
regularly at LND's discretion.
33
CLIENT PARTICULARS
CORPORATE CLIENT
NAME: Klippan Limited
COMPANIES REGISTRY NO: 02264274
ADDRESS: Xxxxx Xxxxxx, Xxxxxxxx
Xxxxxxx
XX0 0XX
NATURE OF YOUR BUSINESS: Manufacturer of child safety equipment
EXECUTION
To confirm the respective consent of each party to this Agreement and to
acknowledge having had the opportunity to take independent legal advice both
parties have executed and delivered this agreement as indicated below on the
Twenty Seventh day of September 1999.
SIGNED and DELIVERED as a deed on )
behalf of LOMBARD NATWEST DISCOUNTING )
LIMITED by * Xxxxxxx Xxxxxx ) /s/ Xxxxxxx Xxxxxx
--------------------------- ) ----------------------------
duly appointed Attorney in the presence ) Attorney for Lombard NatWest
of this Witness: Discounting Limited
Witness' Signature: /s/ Xxxx Xxxx
--------------------------------------
Witness' Full Names: Xxxx Xxxx
--------------------------------------
Witness' Address: x/x Xxxxx Xxxxx, XX XXX 00 Xxxxxxx Ave
--------------------------------------
Feltham, Middlesex TW137QD
--------------------------------------
Witness' Occupation: Account Manager's Assistant
--------------------------------------
CORPORATE CLIENT
SIGNED and DELIVERED as a deed on behalf of )
)
KLIPPAN LIMITED )
------------------------------------------- )
)
by * Xxxxxx X Xxxxxxxx Xx. ) /s/ Xxxxxx X Xxxxxxxx Xx.
--------------------------------------- ) ---------------------------------
Director ) Signature of Director
)
and * Xxxxx Xxxxxx ) /s/ Xxxxx Xxxxxx
-------------------------------------- ) ---------------------------------
**Director Signature of **Director
Key
* Insert full names.
** Delete as applicable.
