THIS AGREEMENT is made on the January 2000
BETWEEN
(1) XXXXX.XXX LIMITED whose registered office is at
Xxxxxxxxx
Xxxxx, Xxxxxx Xxxxxx, Xx Xxxxxx, Xxxxxx, Xxxxxxx Xxxxxxx
(the
"Borrower"); and
(3) XX0XXX.XXX LIMITED whose registered office is at The
Old Chapel, Sacre Coeur, Rouge Bouillon, St Helier, Jersey,
Channel Islands (the "Lender").
NOW IT IS HEREBY AGREED as follows:
1. Interpretation
1.1 In this Agreement:
"Advance" means, save as otherwise provided herein, an
advance
(as from time to time reduced by repayment) made or to be
made
by the Lender hereunder. For the avoidance of doubt
"Advance"
shall include amounts remitted to the Borrower by the Lender
pursuant to Clause 5.1;
"Available Facility" means, at any time and save as
otherwise
provided herein, GBP10,000,000 (ten million pounds sterling)
less the amount of each Advance which has then been made
hereunder;
"Business Plan" means the Business Plan as defined in the
Investment Agreement as revised from time to time by the
Borrower (with the approval of the Lender) and such other
annual business plan as adopted and revised by the Borrower
from time to time;
"Debenture" means the debenture in the agreed form executed
by
the Borrower in favour of the Lender;
"Designated Account" means such bank account of the Borrower
as the Borrower may from time to time notify the Lender;
"Event of Default" means any of those events specified in
Clause 18;
"Exit Event" means either (i) the sale of the issued share
capital of the Borrower to a third party or parties acting
in
concert or (ii) the listing of any shares in the Borrower on
a recognised stock exchange;
"Facility" means the sterling loan facility granted to the
Borrower in this Agreement;
"Group" means the Borrower and its subsidiaries;
"Interest Period" means, save as otherwise provided herein,
any of those periods mentioned in Clause 6;
"Investment Agreement" means the agreement of even date
herewith described as such and made inter alia between the
parties hereto;
"Loan" means the aggregate principal amount for the time
being
outstanding hereunder;
"Notice of Drawdown" means a notice substantially in the
form
set out in the Second Schedule;
"Potential Event of Default" means any event which could
reasonably be expected to become (with the passage of time,
the giving of notice, the making of any determination
hereunder or any combination thereof) an Event of Default;
and
"Repayment Date" means the earlier of the tenth anniversary
of
this Agreement or the occurrence of an Exit Event.
1.2 Any reference in this Agreement to:
the "Lender" shall be construed so as to include its and any
subsequent successors and assigns in accordance with their
respective interests;
a "business day" shall be construed as a reference to a day
(other than a Saturday or Sunday) on which Lenders are
generally open for business in London;
a "Clause" shall, subject to any contrary indication, be
construed as a reference to a clause hereof;
an "encumbrance" shall be construed as a reference to a
mortgage, hypothec, contract mortgage, security interest,
charge, pledge, lien or other encumbrance securing any
obligation of any person or any other type of preferential
arrangement (including, without limitation, title transfer
and
retention arrangements) having a similar effect;
a "holding company" of a company or corporation shall be
construed as a reference to any company or corporation of
which the first-mentioned company or corporation is a
subsidiary;
"indebtedness" shall be construed so as to include any
obligation (whether incurred as principal or as surety) for
the payment or repayment of money, whether present or
future,
actual or contingent;
a "month" is a reference to a period starting on one day in
a
calendar month and ending on the numerically corresponding
day
in the next succeeding calendar month save that, where any
such period would otherwise end on a day which is not a
business day, it shall end on the next succeeding business
day, unless that day falls in the calendar month succeeding
that in which it would otherwise have ended, in which case
it
shall end on the immediately preceding business day Provided
that, if a period starts on the last business day in a
calendar month or if there is no numerically corresponding
day
in the month in which that period ends, that period shall
end
on the last business day in that later month (and references
to "months" shall be construed accordingly);
a "person" shall be construed as a reference to any person,
firm, company, corporation, government, state or agency of a
state or any association or partnership (whether or not
having
separate legal personality) of two or more of the foregoing;
"repay" (or any derivative form thereof) shall, subject to
any
contrary indication, be construed to include "prepay" (or,
as
the case may be, the corresponding derivative form thereof);
a "Schedule" shall, subject to any contrary indication, be
construed as a reference to a schedule hereto;
a "subsidiary" of a company or corporation shall be
construed
as a reference to any company or corporation:
(i) which is controlled, directly or
indirectly, by the
first-mentioned company or corporation;
(ii) more than half the issued share capital of
which is
beneficially owned, directly or indirectly, by the
first-mentioned company or corporation; or
(iii) which is a subsidiary of another
subsidiary of the
first-mentioned company or corporation
and, for these purposes, a company or corporation shall be
treated as being controlled by another if that other company
or corporation is able to direct its affairs and/or to
control
the composition of its board of directors or equivalent
body;
"tax" shall be construed so as to include any tax, levy,
impost, duty or other charge of a similar nature (including,
without limitation, any penalty or interest payable in
connection with any failure to pay or any delay in paying
any
of the same);
"VAT" shall be construed as a reference to value added tax
including any similar tax which may be imposed in place
thereof from time to time;
a "wholly-owned subsidiary" of a company or corporation
shall
be construed as a reference to any company or corporation
which has no other members except that other company or
corporation and that other company's or corporation's
wholly-
owned subsidiaries or persons acting on behalf of that other
company or corporation or its wholly-owned subsidiaries; and
the "winding-up", "dissolution" or "administration" of a
company or corporation shall be construed so as to include
any
equivalent or analogous proceedings under the law of the
jurisdiction in which such company or corporation is
incorporated or any jurisdiction in which such company or
corporation carries on business including the seeking of
liquidation, winding-up, desastre, reorganisation,
dissolution, administration, arrangement, adjustment,
protection or relief of debtors.
1.3 "GPB" and "sterling" denote lawful currency of the United
Kingdom.
1.4 Save where the contrary is indicated, any reference in
this Agreement to:
(i) this Agreement or any other agreement or
document shall
be construed as a reference to this Agreement or, as
the
case may be, such other agreement or document as the
same
may have been, or may from time to time be, amended,
varied, novated or supplemented;
(ii) a statute shall be construed as a reference
to such
statute as the same may have been, or may from time to
time be, amended or re-enacted; and
(iii) a time of day shall be construed as a
reference
to London time.
1.5 Clause and Schedule headings are for ease of reference
only.
2. The Facility
The Lender grants to the Borrower, upon the terms and subject to
the conditions hereof, a loan facility in an aggregate amount of
up to GBP10,000,000 (ten million pounds sterling).
3. Purpose
3.1 The Facility is intended for general corporate and
working capital purposes of the Borrower and the Borrower shall
apply all amounts raised by it hereunder in or towards
satisfaction of the general corporate financing requirements set
out in
the Schedules to the Business Plan.
3.2 Without prejudice to the obligations of the Borrower
hereunder, the Lender shall not be obliged to concern itself
with the application of amounts raised by the Borrower
hereunder.
4. Conditions Precedent
Save as the Lender may otherwise agree, the Borrower may not
deliver any Notice of Drawdown hereunder and no drawings will
take
place under Clause 5.1 unless the Lender has confirmed to the
Borrower that it has received all of the documents listed in the
First Schedule and that each is, in form and substance,
satisfactory to the Lender.
5. Availability of the Facility
5.1 Upon completion of this Agreement not more than three
business
days after receipt of a Notice of Drawdown from the
Borrower, the Lender will, subject to clause 4, remit to the
Designated Account an Advance in the sum of GBP1,540,000 (one
million
five hundred and forty thousand pounds sterling).
5.2 The Lender will, subject to Clause 4, remit to the
Designated Account on the 23rd day of March 2000 and
thereafter on the
23rd day of the last month in each quarter (or if such day
is
not a business day, on the next following business day) the
amount (as rounded up to the nearest GBP100,000) of
negative
cash flow set against the following quarter in the Business
Plan, provided that no remittance may be made under Clause 5
which would cause the amount drawn under Clause 5 to exceed
the Available Facility.
5.3 Save as otherwise provided herein, an Advance will be
made by the Lender to the Borrower in respect of amounts in
excess
of those provided for in Clause 5.2 if:
(i) not less than three business days before
the proposed
date for the making of such Advance, the Lender has
received from the Borrower a Notice of Drawdown
therefor, receipt of which shall oblige the Borrower to
borrow
the amount therein requested on the date therein stated
upon the terms and subject to the conditions contained
herein;
(ii) the proposed date for the making of such
Advance is a business day;
(iii) the proposed date for the making of such
Advance is not less than five business days after the
date upon which the previous Advance (if any) was made
hereunder;
(iv) the proposed amount of such Advance is no
greater than GBP50,000 in any month and shall not cause the
aggregate
of Advances under Clause 5.2 made in any consecutive
period of twelve months to exceed GBP250,000 provided that if
such amount is greater than the Available Facility, the
amount of the Advance shall be limited to the Available Facility;
and
(v) either:
(a) no Event of Default or Potential Event of
Default has occurred; and
(b) the representations set out in Clause 14
are in all material respects true on and as of the proposed
date for the making of such Advance.
6. Interest Periods
6.1 The period for which an Advance is outstanding shall be
divided into successive periods each of which (other than
the
first) shall start on the last day of the preceding such
period provided that the first Interest period shall
commence
on the date falling six months after the date of this
Agreement and shall apply to all Advances then outstanding.
6.2 The duration of each Interest Period shall, save as
otherwise
provided herein, be one month.
6.3 The first Interest Period in respect of any Advance
other than
the first will terminate on the last day of the then current
Interest Period applicable to the first Advance.
7. Interest
7.1 During the first six (6) months from date of
signature of this Agreement no interest shall accrue on
amounts Advanced
during such first six (6) months. Thereafter, on the last
day of
each Interest Period, the Borrower shall pay accrued
interest on
the outstanding amount of the Facility, provided that no
such
payment shall be made until the earlier of the Repayment
Date
and the first Positive Cashflow Day.
7.2 For the purposes of this Clause a "Positive Cashflow
Day" shall be the last day of an Interest Period:
(i) falling on or after the second anniversary of this
Agreement and
(ii) in respect of which the Borrower's business
shall have shown a positive cash flow.
7.3 Accrued interest shall be payable on each Positive
Cashflow Day in an amount equal to the lower of:
(i) one half of the amount of positive cash flow of
the business of the Borrower during the Interest Period
ending on such Positive Cashflow Day; and
(ii) the amount of accrued interest unpaid.
7.4 For the avoidance of doubt unpaid interest shall
accrue and remain payable.
7.5 The rate of interest applicable to an Advance from
time to time shall be eight per cent per annum.
8. Repayment
Subject to any requirement to make early repayment in accordance
with clauses 13 and 18.1 the Loan together with accrued interest
shall be repayable by the Borrower on the Repayment Date.
9. Cancellation and Prepayment
9.1 The Borrower may, by giving to the Lender not less than
thirty days' prior notice to that effect, cancel the whole or any
part (being an amount or integral multiple of GBP100,000) of
the Available Facility.
9.2 The Borrower may, if it has given to the Lender not
less than thirty days' prior notice to that effect, prepay
without
penalty the whole of any Advance or any part of any Advance
(being an amount or integral multiple of GBP100,000) on the last
day of any Interest Period.
9.3 Any notice of cancellation or prepayment given by the
Borrower pursuant to Clause 9.1 or 9.2 shall be irrevocable,
shall
specify the date upon which such cancellation or prepayment is
to be made and the amount of such cancellation or prepayment
and, in the case of a notice of prepayment, shall oblige the
Borrower to make such prepayment on such date.
9.4 No principal shall be repaid until all outstanding
amounts
of interest have been paid.
9.5 The Borrower shall not repay all or any part of the
Loan except at the times and in the manner expressly provided for
in this Agreement and shall not be entitled to reborrow any
amount repaid.
10. Taxes
10.1 All payments to be made by the Borrower to the Lender
hereunder shall be made free and clear of and without
deduction for or on account of tax unless the Borrower is
required to make such a payment subject to the deduction or
withholding of tax, in which case the sum payable by the
Borrower in respect of which such deduction or withholding
is
required to be made shall be increased to the extent
necessary
to ensure that, after the making of the required deduction
or
withholding, the Lender receives and retains (free from any
liability in respect of any such deduction or withholding) a
net sum equal to the sum which it would have received and so
retained had no such deduction or withholding been made or
required to be made.
10.2 Without prejudice to the provisions of Clause 10.1,
if the
Lender is required to make any payment on account of tax
(not
being a tax imposed on the net income of the Lender by the
jurisdiction in which it is incorporated) or otherwise on or
in relation to any sum received or receivable by it
hereunder
(including, without limitation, any sum received or
receivable
under this Clause 10) or any liability in respect of any
such
payment is asserted, imposed, levied or assessed against the
Lender, the Borrower shall, upon demand of the Lender,
promptly indemnify the Lender against such payment or
liability, together with any interest, penalties and
expenses
payable or incurred in connection therewith.
10.3 If the Lender intends to make a claim pursuant to
Clause 10,
it shall notify the Borrower of the event by reason of which
it is entitled to make such claim Provided that nothing
herein
shall require the Lender to disclose any confidential
information relating to the organisation of its affairs.
11. Tax Receipts
11.1 If, at any time, the Borrower is required by law to
make any
deduction or withholding from any sum payable by it
hereunder
(or if thereafter there is any change in the rates at which
or
the manner in which such deductions or withholdings are
calculated), the Borrower shall promptly notify the Lender.
11.2 If the Borrower makes any payment hereunder in
respect of
which it is required to make any deduction or withholding,
it
shall pay the full amount required to be deducted or
withheld
to the relevant taxation or other authority within the time
allowed for such payment under applicable law and shall
deliver to the Lender, promptly upon receipt of the same, an
original receipt (or a certified copy thereof) issued by
such
authority evidencing the payment to such authority of all
amounts so required to be deducted or withheld in respect of
such payment.
12. Increased Costs
12.1 If, by reason of any change in law or in its
interpretation or
administration:
(a) there is any increase in the cost to the Lender
of
funding or maintaining all or any of the advances
comprised in a class of advances formed by or including
the Advances; or
(b) the Lender becomes liable to make any payment on
account
of tax or otherwise (not being a tax imposed on the net
income of the Lender by the jurisdiction in which it is
incorporated) on or calculated by reference to the
amount
of the Advances and/or to any sum received or
receivable
by it hereunder,
then the Borrower shall, from time to time on demand of
the
Lender, promptly pay to the Lender amounts sufficient to
indemnify it or any such holding company against, as the
case
may be, (1) such increased cost (or such proportion of such
increased cost as is, in the opinion of the Lender,
attributable to its funding or maintaining Advances) or (2)
such liability.
12.2 If the Lender intends to make a claim pursuant to
Clause 12.1,
it shall notify the Borrower of the event by reason of which
it is entitled to do so Provided that nothing herein shall
require the Lender to disclose any confidential information
relating to the organisation of its affairs.
13. Illegality
If, at any time, it is unlawful for the Lender to make, fund or
allow to remain outstanding all or any of the Advances, then the
Lender shall, promptly after becoming aware of the same, deliver
to
the Borrower a certificate to that effect and:
(i) the Lender shall not thereafter be obliged
to make any
Advances and the amount of the Available Facility shall
be immediately reduced to zero; and
(ii) if the Lender so requires, the Borrower
shall on such
date as the Lender shall have specified repay each
outstanding Advance together with accrued interest
thereon and all other amounts owing to the Lender
hereunder.
14. Representations
The Borrower represents that:
(i) it is a corporation duly organised under the
laws of
Jersey with power to enter into this Agreement and to
exercise its rights and perform its obligations
hereunder
and all corporate and other action required to
authorise
its execution of this Agreement and its performance of
its obligations hereunder has been duly taken;
(ii) under the laws of Jersey in force at the date
hereof, it
will not be required to make any deduction or
withholding
from any payment it may make hereunder;
(iii) under the laws of Jersey in force at the date
hereof,
the claims of the Lender against the Borrower under
this
Agreement will rank at least pari passu with the claims
of all its other unsecured creditors save those whose
claims are preferred solely by any bankruptcy,
desastre,
insolvency, liquidation or other similar laws of
general
application;
(iv) in any proceedings taken in its jurisdiction of
incorporation in relation to this Agreement, it will
not
be entitled to claim for itself or any of its assets
immunity from suit, execution, attachment or other
legal
process;
(v) all acts, conditions and things required to be
done,
fulfilled and performed in order (a) to enable it
lawfully to enter into, exercise its rights under and
perform and comply with the obligations expressed to be
assumed by it in this Agreement and the Debenture and
(b) to ensure that the obligations expressed to be
assumed by
it in this Agreement and the Debenture are legal, valid
and binding;
(vi) it has not taken any corporate action nor have
any other
steps been taken or legal proceedings been started or
(to
the best its knowledge and belief) threatened against
the
Borrower for its winding-up, dissolution,
administration
or re-organisation or for the appointment of a
liquidator, viscount, receiver, administrator,
administrative receiver, trustee or similar officer of
it
or of any or all of its assets or revenues;
(vii) it is not in breach of or in default under any
agreement to which it is a party or which is binding on
it or any of its assets to an extent or in a manner
which
might have a material adverse effect on the business or
financial condition of the Group;
(viii) no action or administrative proceeding of or
before
any court or agency which might have a material adverse
effect on the business or financial condition of the
Borrower has been started or threatened;
(ix) all of the written information supplied by the
Borrower
to the Lender in connection herewith is true, complete
and accurate in all material respects and it is not
aware
of any material facts or circumstances that have not
been
disclosed to the Lender and which might, if disclosed,
adversely affect the decision of a person considering
whether or not to provide finance to the Borrower;
(x) save as permitted hereunder, no encumbrance
exists over
all or any of the present or future revenues or assets
of
the Borrower;
(xi) the execution by the Borrower of this Agreement
or the
Debenture and the Borrower's exercise of its rights and
performance of its obligations hereunder or thereunder
will not result in the existence of nor oblige the
Borrower to create any encumbrance over all or any of
its
present or future revenues or assets (other than as
created by the Debenture);
(xii) the execution by the Borrower of this Agreement
and
the Debenture and the Borrower's exercise of its rights
and performance of its obligations hereunder or
thereunder do not and will not:
(a) conflict with any agreement, mortgage, hypothec,
contract mortgage, security interest, bond or
other
instrument or treaty to which such party is a
party
or which is binding upon it or any of its assets;
(b) conflict with the such party's constitutional
documents and rules and regulations; or
(c) conflict with any applicable law, regulation or
official or judicial order.
15. Financial Information
15.1 The Borrower shall:
(i) as soon as the same become available,
but in any event
within 120 days after the end of each of its financial
years, deliver to the Lender its consolidated financial
statements for such financial year;
(ii) as soon as the same become available,
but in any event
within 90 days after the end of each half of each of
its
financial years, deliver to the Lender its consolidated
financial statements for such period; and
(iii) from time to time on the request of the
Lender, furnish the Lender with such information about
the business and financial condition of the Group as
the
Lender may reasonably require.
15.2 The Lender shall ensure that:
(i) each set of financial statements delivered by it
pursuant
to Clause 15.1 is prepared on the same basis as was
used
in the preparation of any financial statements
previously
prepared and in accordance with accounting principles
generally accepted in England and consistently applied;
and
(ii) each set of financial statements delivered by it
pursuant
to paragraph (i) of Clause 15.2 is audited by auditors
reasonably acceptable to the Lender as soon as
reasonably
practicable following preparation of such accounts.
16. Financial Covenant
The Borrower undertakes that it shall conduct its business in
accordance with the provisions of the Business Plan. The
Borrower further undertakes to use its reasonable endeavours to
ensure
that sales levels achieved on a monthly basis shall be at least
as
favourable as those shown in the Schedules to the Business Plan,
provided that during any consecutive period of twelve months such
sales levels may fall by 25% below the levels shown in the
Schedules to the Business Plan (as the same may from time to time
be revised with the approval of the Lender).
17. Covenants
17.1 The Borrower shall:
(i) obtain, comply with the terms of and do all that
is
necessary to maintain in full force and effect all
material authorisations, approvals, licences and
consents
required in or by the laws and regulations of its
jurisdiction of incorporation to enable it lawfully to
enter into and perform its obligations under this
Agreement or to ensure the legality, validity,
enforceability or admissibility in evidence in its
jurisdiction of incorporation of this Agreement;
(ii) maintain insurances on and in relation to its
business
and material assets with reputable underwriters or
insurance companies against such risks and to such
extent
as is usual for companies carrying on a business such
as
that carried on by the Group;
(iii) after the delivery of any Notice of Drawdown and
before the proposed making of the Advance requested
therein, notify the Lender of the occurrence of any
event
which results in or may reasonably be expected to
result
in any of the representations contained in Clause 14
being untrue in any material respect at or before the
time of the proposed making of such Advance;
(iv) promptly inform the Lender of the occurrence of
any Event
of Default or Potential Event of Default and, upon
receipt of a written request to that effect from the
Lender, confirm to the Lender that, save as previously
notified to the Lender or as notified in such
confirmation, no Event of Default or Potential Event of
Default has occurred; and
(v) ensure that at all times the claims of the
Lender against
it under this Agreement rank at least pari passu with
the
claims of all its other unsecured creditors save those
whose claims are preferred by any bankruptcy, desastre,
insolvency, liquidation or other similar laws of
general
application.
17.2 No member of the Group shall, without the prior
written
consent of the Lender (which shall not unreasonably be
withheld):
(i) pay, make or declare any dividend or other
distribution
in respect of any financial year;
(ii) create or permit to subsist any encumbrance
over all or
any of its present or future revenues or assets other
than (1) the Debenture or (2) an encumbrance which has
been disclosed in writing to the Lender prior to the
execution hereof and secures only indebtedness
outstanding at the date hereof or (3) such encumbrance
necessary to obtain the invoice discounting facility,
details of which have been disclosed to the Lender;
(iii) make any loans, grant any credit (save in the
ordinary course of business) or give any guarantee or
indemnity (except as required hereby) to or for the
benefit of any person or otherwise voluntarily assume
any
liability, whether actual or contingent, in respect of
any obligation of any other person;
(iv) issue any further shares (save to the trust
for the
benefit of the Borrower's employees, details of which
have been disclosed to the Lender) or alter any rights
attaching to its issued shares in existence at the
date hereof; or
(v) (disregarding sales of stock in trade in the
ordinary
course of business) sell, lease, transfer or otherwise
dispose of, by one or more transactions or series of
transactions (whether related or not), the whole or any
part of its revenues or its assets.
18. Events of Default
18.1 If:
(i) the Borrower shall fail to pay, within three
business
days (or twenty business days in the case of interest
payments due under Clause 7) of the due date, any sum
due
from it hereunder at the time, in the currency and in
the
manner specified herein; or
(ii) any representation or statement made by the
Borrower in
this Agreement or in any notice or other document,
certificate or statement delivered by it pursuant
hereto
or in connection herewith is or proves to have been
misleading or materially incorrect when made; or
(iii) the Borrower fails duly to perform or comply
with any
of the obligations expressed to be assumed by it in
Clause 15 or 16; or
(iv) the Borrower fails duly to perform or comply
with any
other obligation expressed to be assumed by it in this
Agreement or the Debenture and such failure, if capable
of remedy, is not remedied within fourteen days after
the
Lender has given notice thereof to such party; or
(v) any indebtedness of any member of the Group
being in
aggregate in excess of GBP25,000 is declared to be or
otherwise becomes due and payable prior to its
specified
maturity or any creditor or creditors of the any member
of the Group become entitled to declare any
indebtedness
of such party due and payable prior to its specified
maturity; or
(vi) any member of the Group is unable to pay its
debts as
they fall due, commences negotiations with any one or
more of its creditors with a view to the general
readjustment or rescheduling of its indebtedness or
makes
a general assignment for the benefit of or a
composition
with its creditors; or
(vii) any member of the Group takes any corporate
action or
other steps are taken or legal proceedings are started
for its winding-up, desastre, dissolution,
administration
or re-organisation or for the appointment of a
liquidator, viscount, receiver, administrator,
administrative receiver, trustee or similar officer of
it
or of any or all of its revenues and assets save that
this clause will not apply in respect of any action
taken
vexatiously or without cause; or
(viii) any execution or distress is levied against,
or an
encumbrancer takes possession of the whole or any
material part of, the property, undertaking or assets
of
any member of the Group; or
(ix) by or under the authority of any government,
(a) the
management of any member of the Group is wholly or
partially displaced or the authority of any member of
the
Group in the conduct of its business is wholly or
partially curtailed or (b) all or a majority of the
issued
shares of the Borrower or the whole or any part
(the book value of which is twenty per cent. or moreof
the book value of the whole) of the revenues or assets
of
the Group is seized, nationalised, expropriated or
compulsorily acquired; or
(x) the Borrower repudiates this Agreement or the
Debenture
or does or causes to be done any act or thing
evidencing
an intention to repudiate this Agreement or the
Debenture; or
(xiii) at any time any act, condition or thing
required to
be done, fulfilled or performed in order (a) to enable
the Borrower lawfully to enter into, exercise its
rights
under and perform the obligations expressed to be
assumed
by it in this Agreement or the Debenture, (b) to ensure
that the obligations expressed to be assumed by the
Borrower in this Agreement or the Debenture are legal,
valid and binding or (c) to make this Agreement or the
Debenture admissible in evidence in Jersey is not done,
fulfilled or performed; or
(xi) at any time it is or becomes unlawful for the
Borrower to
perform or comply with any or all of its obligations
hereunder or the Debenture or any of the obligations of
the Borrower hereunder or thereunder are not or cease
to
be legal, valid and binding which would have a material
adverse effect on the lender; or
(xii) any circumstances arise which in the
reasonable
opinion of the Lender constitute a material adverse
change in the business, assets or financial condition
of
the Borrower;
then, and in any such case and at any time thereafter, the
Lender may by written notice to the Borrower:
(a) declare the Advances to be immediately due and
payable
(whereupon the same shall become so payable together
with
accrued interest thereon and any other sums then owed
by
the Borrower hereunder) or declare the Advances to be
due
and payable on demand of the Lender; and/or
(b) declare that any undrawn portion of the Facility
shall be
cancelled, whereupon the same shall be cancelled and
the
Available Facility shall be reduced to zero.
18.2 If, pursuant to Clause 18.1, the Lender declares the
Advances
to be due and payable on demand of the Lender, then, and at
any time thereafter, the Lender may by written notice to the
Borrower:
(i) call for repayment of the Advances on such
date as it may
specify in such notice (whereupon the same shall become
due and payable on such date together with accrued
interest thereon and any other sums then owed by the
Borrower hereunder) or withdraw its declaration with
effect from such date as it may specify in such notice;
and/or
(ii) select as the duration of any Interest Period
which
begins whilst such declaration remains in effect a
period
of one month or less.
19. Default Interest and Indemnity
19.1 If any sum due and payable by the Borrower hereunder
is not
paid on the due date or if any sum due and payable by the
Borrower under any judgement of any court in connection
herewith is not paid on the date of such judgement, the
period
beginning on such due date or, as the case may be, the date
of
such judgement and ending on the date upon which the
obligation of the Borrower to pay such sum (the balance
thereof for the time being unpaid being herein referred to
as
an "unpaid sum") is discharged shall be divided into
successive periods, each of which (other than the first)
shall
start on the last day of the preceding such period and the
duration of each of which be selected by the Lender.
19.2 During each such period relating thereto as is
mentioned in
Clause 19.1 an unpaid sum shall bear interest at the rate
per
annum which is the sum from time to time of two per cent,
the
Margin and the Base Rate from time to time applicable
thereto.
19.3 Any interest which shall have accrued under Clause 19
in
respect of an unpaid sum shall be due and payable and shall
be
paid by the Borrower at the end of the period by reference
to
which it is calculated or on such other date or dates as the
Lender may specify by written notice to the Borrower.
19.4 The Borrower undertakes to indemnify the Lender against:
(i) any cost, claim, loss, expense (including legal
fees) or
liability together with any VAT thereon, which it may
sustain or incur as a consequence of the occurrence of
any Event of Default or any default by the Borrower in
the performance of any of the obligations expressed to
be
assumed by it in this Agreement; and
(ii) any loss it may suffer as a result of its
funding an
Advance requested by the Borrower hereunder but not
made
by reason of the operation of any one or more of the
provisions hereof.
20. Payments
20.1 On each date on which this Agreement requires an
amount
denominated in sterling to be paid by the Borrower, the
Borrower shall make the same available to the Lender by
payment in sterling and in immediately available, freely
transferable, cleared funds to such account or bank as the
Lender may have specified for this purpose).
20.2 On each date on which this Agreement requires an
amount
denominated in sterling to be paid by the Lender to the
Borrower hereunder, the Lender shall make the same available
to the Borrower by payment in sterling and in immediately
available, freely transferable, cleared funds to the
Borrower's Designated Account.
20.3 All payments required to be made by the Borrower
hereunder
shall be calculated without reference to any set-off or
counterclaim and shall be made free and clear of and without
any deduction for or on account of any set-off or
counterclaim.
21. Set-Off
The Borrower authorises the Lender to apply any credit balance to
which the Borrower is entitled on any account of the Borrower
with the Lender in satisfaction of any sum due and payable from
the
Borrower to the Lender hereunder but unpaid; for this purpose,
the Lender is authorised to purchase with the moneys standing to
the
credit of any such account such other currencies as may be
necessary to effect such application. The Lender shall not be
obliged to exercise any right given to it by this Clause 21.
22. Costs and Expenses
22.1 The Borrower shall, from time to time on demand of
the
Lender, reimburse the Lender for all costs and expenses
(including legal fees) together with any VAT thereon
incurred
in or in connection with the preservation and/or enforcement
of any of its rights under this Agreement.
22.2 The Borrower shall pay all stamp, registration and
other taxes
to which this Agreement or any judgement given in connection
herewith is or at any time may be subject and shall, from
time
to time on demand, indemnify the Lender against any
liabilities, costs, claims and expenses resulting from any
failure to pay or any delay in paying any such tax.
23. Benefit of Agreement
This Agreement shall be binding upon and enure to the benefit of
each party hereto and its or any subsequent successors and
assigns.
24. Assignments
24.1 The Borrower shall not be entitled to assign or
transfer all
or any of its rights, benefits and obligations hereunder.
24.2 The Lender shall be entitled to assign the benefit of
this
Agreement, but not its obligations hereunder, to a member of
the Lender Group Provided That if an assignee ceases to be a
member of the Lender Group, the Lender shall without delay
notify the Borrower that such event has occurred and shall
procure the assignment of the benefit of this Agreement back
to the Lender or another member of the Lender Group. In
this
Sub-clause, "Lender Group" shall mean any holding company or
subsidiary of the Lender or any subsidiary of any holding
company of the Lender, and "subsidiary" and "holding
company"
shall have the respective meanings ascribed thereto by
Section
736 of the Companies Xxx 0000
25. Calculations and Evidence of Debt
25.1 Interest shall accrue from day to day and shall be
calculated
on the basis of a year of 365 days and the actual number of
days elapsed.
25.2 The Lender shall maintain in accordance with its
usual
practice accounts evidencing the amounts from time to time
lent by and owing to it (including interest) hereunder.
26. Remedies and Waivers
No failure by the Lender to exercise, nor any delay by the Lender
in exercising, any right or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any
right or remedy prevent any further or other exercise thereof or
the exercise of any other right or remedy. The rights and
remedies herein provided are cumulative and not exclusive of any
rights or
remedies provided by law.
27. Partial Invalidity
If, at any time, any provision hereof is or becomes illegal,
invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of
the remaining provisions hereof nor the legality, validity or
enforceability of such provision under the law of any other
jurisdiction shall in any way be affected or impaired thereby.
28. Notices
28.1 Each communication to be made hereunder shall be made
in
writing but, unless otherwise stated, may be made by telex
or
letter.
28.2 Any communication or document to be made or delivered
by one
person to another pursuant to this Agreement shall (unless
that other person has by fifteen days' written notice to the
one specified another address) be made or delivered to that
other person at the address identified with its signature
below and shall be deemed to have been made or delivered at
the opening of business on the business day following the
date
of despatch (in the case of any communication made by
telefax)
or (in the case of any communication made by delivery of
letter) when left at that address or (as the case of any
communication made by postage of letter) ten days after
being
deposited in the post postage prepaid in an envelope
addressed
to it at that address.
29. Law
This Agreement shall be governed by, and shall be construed in
accordance with, English law.
30. Jurisdiction
Each of the parties hereto irrevocably agrees that the courts of
Jersey shall have non-exclusive jurisdiction to hear and
determine
any suit, action or proceeding, and to settle any disputes, which
may arise out of or in connection with this Agreement and, for
such purposes, irrevocably submits to the non-exclusive
jurisdiction
of such courts.
AS WITNESS the hands of the duly authorised representatives of
the parties hereto on the date set out above.
The Borrower
XXXXX.XXX LIMITED
By: Xxxxxxxxxxx Xxxxxxx Xxxxx Xxxxxxx
Address: Xxxxxxxxx House, Castle Street, St Helier,
Jersey,
Channel Islands
The Lender
XX0XXX.XXX LIMITED
By: Xxx Xxxx Xxxx X.X.Xxxx
Address: The Old Chapel, Sacre Coeur, Rouge Bouillon, St
Helier, Jersey, Channel Islands
THE FIRST SCHEDULE
Condition Precedent Documents
(i) a copy, certified a true copy by a duly authorised
officer of
the Borrower, of its Memorandum and Articles of Association;
(ii) a copy, certified a true copy by a duly authorised
officer of
the Borrower, of a Board Resolution of the Borrower
approving
the execution, delivery and performance of this Agreement
and
the Debenture and the terms and conditions hereof and
thereof
and authorising a named person or persons to sign this
Agreement and any documents to be delivered by the Borrower
pursuant hereto;
(iii) a certificate of a duly authorised officer of the
Borrower
setting out the names and signatures of the persons
authorised
to sign, on behalf of the Borrower, this Agreement, the
Debenture and any documents to be delivered by the Borrower
pursuant hereto or thereto; and
(iv) the Debenture to be executed by the Borrower.
THE SECOND SCHEDULE
Notice of Drawdown
From: Xxxxx.xxx Limited
To: XX0Xxx.xxx Limited
Dated:
Dear Sirs,
1. We refer to the agreement (the "Facility Agreement")
dated January, 2000 and made between ourselves as Borrower,and
yourselves as Lender. Terms defined in the Facility Agreement
shall have the same meaning in this notice.
2. We hereby give you notice that, pursuant to the
Facility Agreement and on [date of proposed Advance], we wish to
borrow an Advance in the amount of GBP[ ] upon the terms and
subject
to the conditions contained therein.
3. We confirm that, at the date hereof, the
representations set
out in Clause 14 of the Facility Agreement are true and no
Event of Default or Potential Event of Default has occurred.
4. We confirm that the Advance is to provide working
capital for the month of [ ] in excess of that set out
in the
Business Plan.
5. The proceeds of this drawdown should be credited to
[insert
account details].
Yours faithfully
.............................
for and on behalf of
Xxxxx.xxx Limited
___________________________________________________________.
