DATED OCTOBER 24, 2001
(1) VERTICAL INVESTMENTS LIMITED
-and-
(2) INVU SERVICES LIMITED
-and-
(3) INVU INTERNATIONAL HOLDINGS LIMITED
-and-
(4) INVU PLC
-and-
(5) XXXXX XXXXXX, XXXX XXXXXXXX AND XXX XXXXXXXXX
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LOAN AGREEMENT
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Teacher Xxxxx Xxxxx
00-00 Xxxxxxx Xxx
Xxxxxx XX0X 0XX
Telephone: 000 0000 0000
Facsimile: 020 7242 1156
THIS AGREEMENT is delivered as a DEED this 24th day of October, 2001
BETWEEN:
(1) VERTICAL INVESTMENTS LIMITED (Company No. 71185) whose registered office is
at Xxxxx Xxxxx, Xxx Xxxx, Xx Xxxxxx, Xxxxxx, Xxxxxxx Xxxxxxx XX0 61
("Lender");
(2) INVU SERVICES LIMITED (Company No. 3319922) of The Beren, Xxxxxxxxx Xxxx
Xxxx, Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxxxxx XX0 0XX
("Borrower");
(3) INVU INTERNATIONAL HOLDINGS LIMITED (Company No. 3340939) whose registered
office is at The Beren, Xxxxxxxxx Xxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxxxxx, Xxxxxxxxxxxxxxxx XX0 0XX ("IIH");
(4) INVU PLC (Company No. 3375359) whose registered office is at The Beren,
Blisworth Hill Farm, Stoke Road, Blisworth, Xxxxxxxxxxx, Xxxxxxxxxxxxxxxx
XX0 0XX ("IPLC"); and
(5) XXXXX XXXXXX of [insert address], XXXX XXXXXXXX of [insert address] and XXX
XXXXXXXXX of [insert address] (the "Executive Directors").
RECITAL
The Lender is prepared to make available a loan to the Borrower on the terms and
conditions set out below:-
1. Operative Provisions
1.1 The following words and phrases shall have the following meanings unless
they are inconsistent with the context:
"Advance" US$500,000 or, as the context may require, the
principal amount thereof from time to time
outstanding;
"Agreement" this Agreement together with the Schedules;
"Business Day" a day on which banks are generally open for
business in London other than a Saturday or
Sunday;
"Debenture" the debenture to be entered into by each of the
Guarantors in favour of the Lender in the form set
out in the schedule to the Secured Guarantee;
"Event of Default" the events listed in Schedule 2;
"Guarantors" together IIH and IPLC;
"Loan" the aggregate principal amount of Advance for the
time being outstanding under this Agreement
together with all capitalised and accrued interest
thereon;
"Repayment Date" the expiry of three calendar months from the date
of this Agreement; and
"Secured Guarantee" the secured guarantee to be entered into by each
of the Guarantors in favour of the Lender in the
form set out in Schedule 1;
1.2 All the provisions of this Agreement are severable and distinct from one
another and the illegality, invalidity or unenforceability of any provision
shall not affect the validity or enforceability of any other provision.
1.3 This Agreement supersedes any other agreement between the Borrower and the
Lender whether written, oral, expressed or implied in relation to the
subject matter contained herein.
1.4 Except where the context otherwise requires words denoting the singular
shall include the plural and vice-versa; words denoting any gender shall
include all genders; words denoting the whole include any part thereof.
1.5 Unless the context otherwise requires, a reference to a Clause or a
Schedule is to a clause of or a schedule to this Agreement.
1.6 Clause headings are for ease of reference only and do not affect the
construction of this Agreement.
1.7 Reference to any statute or statutory provision includes a reference to
that statute or statutory provision as from time to time amended, extended
or re-enacted, with or without amendment.
2. The Advance
Subject to the terms and conditions of this Agreement the Lender shall from
the date hereof make available to the Borrower the Advance.
3. Purpose
3.1 The Advance shall be used by the Borrower firstly in reducing the amount
outstanding on the Borrowers overdraft facility with the Bank of Scotland,
(Birmingham branch) to the limit authorised by the bank (being
(pound)800,000) and any balance shall be used for working capital purposes
only.
3.2 The Borrower shall not use any of the Advance for any purpose except that
permitted in this Clause 3. Failure by the Borrower to comply with this
Clause shall not prejudice any rights of the Lender, who shall not be
responsible for monitoring or ensuring the use or application by the
Borrower of any part of the Advance.
4. Repayment
Subject to Clause 9 (Event of Default) the Borrower shall repay to the
Lender the Loan in full together with all accrued and outstanding interest
and free from any legal or equitable right of set off, at such time as it
is able to do so but in any event not later than the Repayment Date.
5. Prepayment
5.1 Notwithstanding (and without prejudice to) Clause 4, the Borrower (provided
that it shall have given to the Lender not less than 5 Business Days prior
notice specifying the date and intended amount of the payment) may prepay
the whole or any part of the Advance.
5.2 Prepayments under this Agreement shall be made together with accrued
interest thereon and all other amounts payable under and in relation to
this Agreement in respect of such Advance.
5.3 No amount prepaid under this Agreement may be redrawn by the Borrower.
5.4 Any notice of prepayment given by the Borrower under this Agreement shall
be irrevocable and the Borrower shall be bound to prepay the relevant
amount(s) in accordance with such notice. The Borrower may not prepay all
or any part of any Advance except in accordance with the express terms of
this Agreement.
5.5 Any prepayment shall be applied against and shall reduce the Loan.
6. Interest
6.1 The Borrower shall pay to the Lender interest on the Advance at the rate of
12% per annum from the date of this Agreement.
6.2 Interest on the Loan shall accrue daily and shall be payable on the
Repayment Date or, if any prepayment is made, at the same time as the
prepayment.
6.3 The Borrower shall, on demand by the Lender, pay to the Lender interest on
sums not paid on their respective due dates under this Agreement from the
due date up to the date of actual payment (as well after as before
judgment) at a rate of 3% per annum above the base rate from time to time
of Barclays Bank plc.
6.3.1 If any interest payable under this Agreement is not paid within 5
Business Days after the due date for payment it shall be
capitalised and added to the Advance and bear interest from the
due date for payment at the rate of 3% per annum above the base
rate from time to time of Barclays Bank plc per annum;
6.3.2 The capitalisation of arrears of interest will be without
prejudice to the Lenders right at any time to enforce payment of
the sums concerned as interest in arrears;
6.3.3 Otherwise all undertakings and provisions contained in this
Agreement and all powers and remedies conferred by law or by this
Agreement and all rules of law or equity relating to the Advance
and interest on it shall equally apply to capitalised arrears of
interest and to interest on them.
7. Payments
7.1 All sums payable pursuant to this Agreement shall:
7.1.1 be paid without set off, counterclaim, withholding or deduction
of any kind whatsoever unless required by law in which case the
Borrower will pay to the Lender such additional amount as will
result in the Lender receiving the full amount which it would
have received had there been no such set off, counterclaim,
withholding or deduction;
7.1.2 be made in US dollars and if payment falls to be made on a day
which is not a Business Day it shall be made on the next Business
Day;
7.1.3 unless received by the Lender by 1.p.m. on a Business Day shall
be deemed to have been received on the next Business Day for all
purposes under this Agreement including the calculation of the
final amount due; and
7.1.4.1 be made in such manner as reasonably specified by the Lender from
time to time.
7.2 Account(s) maintained by the Lender in connection with the Advance shall be
conclusive and prima facie evidence of the amounts from time to time owing
by the Borrower to the Lender under this Agreement save in the event of
manifest error.
8. Indemnity
8.1 The Borrower shall pay to the Lender on demand, on a full indemnity basis
all expenses (including but not limited to legal and out of pocket
expenses) properly incurred in connection with the preparation of this
Agreement.
8.2 The Borrower shall fully indemnify the Lender from and against any loss,
damage or liability which they may incur as a consequence of the occurrence
of any Event of Default.
8.2 The Borrower shall pay all stamp, documentary, registration or other
similar duties or taxes (including any payable by the Lender) imposed in or
by the United Kingdom on or in connection with this Agreement and/or any
other document referred to herein and shall indemnify the Lender against
any liability arising by reason of any delay or omission by the Borrower to
pay such duties or taxes.
9. Event of Default
The Lender may (without prejudice to any of their rights) upon and at any
time after the happening of an Event of Default, so long as the same is
continuing, by notice to the Borrower declare that:-
(a) the Loan has become immediately due and payable, whereupon the
Borrower shall forthwith repay the same together with all interest
accrued and all other sums payable under this Agreement; and/or
(c) the Loan has become due and payable on demand, whereupon the Loan and
all interest and other sums payable under this Agreement shall at all
times after such declaration be due and payable forthwith on demand.
10. Guarantee and Indemnity by Guarantor
10.1 In consideration of the Lender entering into this Agreement each of the
Guarantors hereby unconditionally and irrevocably guarantees to the Lender
the due and punctual performance and observance by the Borrower of all its
obligations, commitments, undertakings, warranties, indemnities and
covenants under or pursuant to this Agreement and agrees to indemnify the
Lender against all losses, damages, costs and expenses (including legal
costs and expenses) which the Lender may suffer or incur through or arising
from any breach by the Borrower of such obligations, commitments,
warranties, undertakings, indemnities or covenants. Further each of the
Guarantors shall forthwith upon the execution of this Agreement execute and
enter into a Secured Guarantee and Debenture in the form set out in
Schedule 1.
10.2 The Guarantors' liability hereunder and under the Secured Guarantee and
Debenture shall not be released or diminished by any arrangements or
alterations of terms (whether of this Agreement or otherwise) or any
forbearance, neglect or delay in seeking performance of the obligations
hereby imposed or any granting of time for such performance.
10.3 If and whenever the Borrower defaults for any reason whatsoever in the
performance of any obligation or liability undertaken or expressed to be
undertaken by it under or pursuant to this Agreement, the Guarantor shall
forthwith upon demand unconditionally perform (or procure performance of)
and satisfy (or procure the satisfaction of) the obligation or liability in
regard to which such default has been made in the manner prescribed by this
Agreement and so that the same benefits shall be conferred on the Lender as
they would have received if such obligation or liability had been duly
performed and satisfied by the Borrower. The Guarantor waives any rights
which it may have to require the Lender to proceed first against or claim
payment from the Borrower to the intent that as between the Borrower and
Guarantor the latter shall be liable as principal debtor as if it had
entered into all undertakings, agreements and other obligations jointly and
severally with the Borrower.
10.4.This guarantee and indemnity is to be a continuing security to the Lender
for all obligations, commitments, warranties, undertakings, indemnities and
covenants on the part of the Borrower under or pursuant to this Agreement
notwithstanding any settlement of account or other matter or thing
whatsoever.
10.5.This guarantee and indemnity is in addition to and without prejudice to
and not in substitution for any rights or security which the Lender may now
or hereafter have or hold for the performance and observance of the
obligations, commitments, undertakings, covenants, indemnities and
warranties of the Borrower under or in connection with this Agreement.
10.6 Each of the parties (other than the Lender) agree to procure that Invu Inc,
a company organised and existing under the laws of the State of Colorado
whose principal place of business is at The Beren, Xxxxxxxxx Xxxx Xxxx,
Xxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxx, Xxxxxxxxxxxxxxxx XX0 0XX enters into a
Secured Guarantee and Debenture within 10 Business Days of the date of this
Agreement.
11. Indulgence and Waiver
The Lender may at any time, without discharging or in any way prejudicing
this Agreement or any remedy of the Lender under this Agreement, grant to
the Borrower or to any other person, time, indulgence, loans or advances or
enter into any arrangement or variation of rights or, either in whole or in
part, release, abstain from perfecting or enforcing or neglect or fail to
perfect or enforce any remedies or rights which they may now or
subsequently have from or against the Borrower or any other person.
12. Notices
12.1 Any notice to be given under this Agreement shall either be delivered
personally or sent by first class delivery post. The address for service of
each party hereto (in the case of a company) shall be its registered office
for the time being and (in the case of an individual) shall be his address
stated above or any other address for service within the United Kingdom
subsequently notified in writing to the other parties hereto as being that
individuals address for service or (in the absence of notification) his
last known place of residence within the United Kingdom. A notice shall be
deemed to have been served:-
12.1.1 if personally delivered: at the time of delivery; or
12.1.2 if posted: at the expiration of 48 hours after the envelope
containing the notice was delivered into the custody of the
postal authorities.
12.2 In proving service it shall be sufficient to prove that personal delivery
was made, or that the envelope containing the notice was properly addressed
and delivered into the custody of the postal authority as a prepaid first
class letter.
13. Counterparts
This Agreement may be executed in any number of counterparts (by facsimile
if necessary) and by each of the parties hereto on separate counterparts
each of which when executed and delivered (by facsimile if necessary) shall
be deemed to be an original, but all the counterparts together shall
constitute one and the same document.
14. Assignment
14.1 This Agreement shall be binding upon, and endure for the benefit of the
parties hereto and their respective successors.
14.2 None of the parties hereto may assign or transfer any of its/his respective
rights, benefits or obligations under this Agreement.
15. Variation
This Agreement shall not be varied or cancelled, unless the variation or
cancellation is expressly accepted in writing by each of the parties.
16. Law
This Agreement shall be governed by and construed in accordance with
English law and the parties hereto submit to the exclusive jurisdiction of
the English Courts.
AS WITNESS whereof this Agreement has been signed/executed as a Deed and
delivered the day first above written.
SCHEDULE 1
FORM OF SECURED GUARANTEE AND DEBENTURE
See attached.
SCHEDULE 2
EVENTS OF DEFAULT
Each of the events set out below is an Event of Default (whether or not caused
by any reason whatsoever outside the control of the Borrower or of any other
person) namely:-
1. the Borrower does not repay to the Lender the Loan (together with all
accrued and outstanding interest thereon) on the Repayment Date;
2. the Borrower does not pay within twenty (20) Business Days of the due
date any amount (other than the amount referred to in paragraph 1
above) payable by it hereunder in accordance with the terms hereof;
3. the Borrower and/or a Guarantor makes a proposal to enter into a
voluntary arrangement or enters or seeks to enter into any other form
of composition or arrangement with any of its creditors whether in
whole or in part;
4. distress or execution or other process is levied or enforced upon or
issued against any property of the Borrower and/or a Guarantor unless
such event does not have or could not have a material adverse effect on
the Borrower and/or the Guarantor (as appropriate);
5. if there is any breach by the Borrower of any obligations statutory or
otherwise binding on it or of any term, condition, covenant or
provision contained in this Agreement;
6. if there is any breach by the Guarantor of any term, obligation,
covenant or provision binding upon him contained in this Agreement or
under the Secured Guarantee and Debenture entered into by it pursuant
to Clause 10;
7. if a petition is presented or a resolution passed for the winding up of
the Borrower and/or a Guarantor or an application presented for the
grant of an administration order or for the appointment of an
administrator or administrative receiver in relation to the Borrower's
and/or a Guarantor's undertaking;
8. if an encumbrancer takes possession or a receiver is appointed over any
of the property or assets of the Borrower and/or a Guarantor;
9. if any other borrowing of the Borrower and/or a Guarantor becomes
prematurely due and payable as a result of a default thereunder;
10. if the Borrower and/or a Guarantor shall cease or threaten to cease to
carry on business or stop payment;
11. if an order is made and confirmed for the compulsory acquisition of the
property of the Borrower and/or a Guarantor or any part thereof;
12. if control of the Borrower and/or a Guarantor is acquired by any person
or group of connected persons not having control of such company at the
date hereof;
13. if any other event or series of events whether related or not
(including without limitation any material adverse change in the
business assets or financial condition of the Borrower and/or a
Guarantor) occurs which in the reasonable opinion of the Lender may
affect the ability of the Borrower and/or a Guarantor (as appropriate)
to comply with all or any of its obligations hereunder;
EXECUTED as a DEED and DELIVERED )
by VERTICAL INVESTMENTS LIMITED )
acting by two directors/director and secretary ) ............................
............................
EXECUTED as a DEED and DELIVERED )
by INVU SERVICES LIMITED acting )
by two directors/director and secretary ) ............................
............................
EXECUTED as a DEED and DELIVERED by )
INVU INTERNATIONAL HOLDINGS LIMITED )
by acting two directors/director and secretary ) ............................
EXECUTED as a DEED and DELIVERED )
by XXXXX XXXXXX in the presence of:- ) ............................
Witness name:
Address:
Occupation:
EXECUTED as a DEED and DELIVERED )
by XXXX XXXXXXXX in the presence of:- ) ...........................
Witness name:
Address:
Occupation:
EXECUTED as a DEED and DELIVERED )
by XXX XXXXXXXXX in the presence of:- ) ............................
Witness name:
Address:
Occupation:
