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EXHIBIT 10.18
EXECUTION VERSION
DATED 8 MARCH 2001
ZINDART LIMITED
as Borrower
XXX XXXX HOLDINGS CO. LTD.
XXX XXXX PRINTING HOLDINGS CO., LIMITED
as Guarantors
ABN AMRO BANK N.V.
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
HONG KONG BRANCH
KBC BANK N.V., HONG KONG BRANCH
STANDARD CHARTERED BANK
as Arrangers
ABN AMRO BANK N.V., HONG KONG BRANCH
as Agent and Security Trustee
and
OTHERS
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US$9,000,000
TERM FACILITY AGREEMENT
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CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation................................................1
2. The Facility.................................................................12
3. Availability Of The Facility.................................................13
4. Interest Periods.............................................................14
5. Payment And Calculation Of Interest..........................................14
6. Market Disruption And Alternative Interest Rates.............................14
7. Notification.................................................................15
8. Repayment....................................................................16
9. Prepayment...................................................................17
10. Taxes........................................................................17
11. Tax Receipts.................................................................18
12. Increased Costs..............................................................19
13. Illegality...................................................................19
14. Representations..............................................................20
15. Financial Information........................................................23
16. Financial Condition..........................................................25
17. Covenants....................................................................27
18. Events Of Default............................................................30
19. Guarantee And Indemnity......................................................33
20. Fees.........................................................................36
21. Costs And Expenses...........................................................36
22. Default Interest And Break Costs.............................................37
23. Borrower's Indemnities.......................................................38
24. Currency Of Account And Payment..............................................39
25. Payments.....................................................................39
26. Set-Off......................................................................41
27. Sharing......................................................................41
28. The Agent, The Arrangers And The Banks.......................................42
29. Assignments And Transfers....................................................48
30. Calculations And Evidence Of Debt............................................50
31. Remedies And Waivers, Partial Invalidity.....................................51
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CLAUSE PAGE
32. Notices......................................................................52
33. Counterparts.................................................................53
34. Amendments...................................................................53
35. Governing Law................................................................54
36. Jurisdiction.................................................................54
Schedule 1 THE BANKS.........................................................55
Schedule 2 FORM OF TRANSFER CERTIFICATE......................................56
Schedule 3 CONDITIONS PRECEDENT..............................................59
Schedule 4 NOTICE OF DRAWDOWN................................................61
Schedule 5 FORM OF COMPLIANCE CERTIFICATE....................................62
Schedule 6 MANDATORY COSTS...................................................63
Schedule 7 FORM OF CHARGE OVER CORGI CLASSICS HOLDINGS SHARES................65
Schedule 8 FORM OF CHARGE OVER CORGI CLASSICS SHARES.........................79
Schedule 9 CONDITIONS SUBSEQUENT.............................................93
Execution Pages....................................................................94
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THIS AGREEMENT is made on 8 March 2001
BETWEEN
(1) ZINDART LIMITED (the "BORROWER");
(2) XXX XXXX HOLDINGS CO. LTD. AND XXX XXXX PRINTING HOLDINGS CO., LIMITED
(the "GUARANTORS");
(3) ABN AMRO BANK N.V., COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
HONG KONG BRANCH, KBC BANK N.V., HONG KONG BRANCH AND STANDARD CHARTERED
BANK as arrangers of the Facility (the "ARRANGERS");
(4) ABN AMRO BANK N.V., HONG KONG BRANCH as agent and security trustee for
the Banks (the "AGENT"); and
(5) THE BANKS (as defined below).
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ADVANCE" means the advance (as from time to time reduced by repayment in
accordance with the terms hereof) made or to be made by the Banks
hereunder.
"AUTHORISED SIGNATORY" means, in relation to an Obligor or Corgi
Classics, any person who is duly authorised (in such manner as may be
reasonably acceptable to the Agent) and in respect of whom the Agent has
received a certificate signed by a director or another Authorised
Signatory of such Obligor or Corgi Classics setting out the name and
signature of such person and confirming such person's authority to act.
"AVAILABLE COMMITMENT" means, in relation to a Bank at any time and save
as otherwise provided herein, the amount set opposite its name in
Schedule 1 (The Banks) LESS the aggregate amount which it has advanced
hereunder at such time.
"AVAILABLE FACILITY" means, at any time, the aggregate amount of the
Available Commitments adjusted in the case of any proposed drawdown so as
to take into account any reduction in the Available Commitment of a Bank
pursuant to the terms hereof.
"AVAILABILITY PERIOD" means the period from and including the date hereof
to and including the earlier of (a) the date falling two weeks from the
date hereof and (b) the first Business Day on which the Available
Commitment of each of the Banks is zero.
"BANK" means any financial institution:
(a) named in Schedule 1 (The Banks); or
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(b) which has become a party hereto in accordance with Clause 29.4
(Assignments by Banks) or Clause 29.5 (Transfers by Banks),
and which has not ceased to be a party hereto in accordance with the
terms hereof.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) which is not
a public holiday and on which banks are open for general business in Hong
Kong, London and New York City.
"CHARGE OVER CORGI CLASSICS HOLDINGS SHARES" means a charge over the
shares in Corgi Classics Holdings in the form of Schedule 7 (Form of
Charge over Corgi Classics Holdings Shares) to be executed by the
Borrower in favour of the Agent in its capacity as agent and security
trustee for and on behalf of the Banks.
"CHARGE OVER CORGI CLASSICS SHARES" means a charge over the shares in
Corgi Classics in the form of Schedule 8 (Form of Charge over Corgi
Classics Shares) to be executed by Corgi Classics Holdings in favour of
the Agent in its capacity as agent and security trustee for and on behalf
of the Banks.
"CHINAVEST" means ChinaVest Limited.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
set out in Schedule 5 (Form of Compliance Certificate).
"CORGI CLASSICS" means Corgi Classics Limited, a company incorporated in
England and Wales with registered number 3034370.
"CORGI CLASSICS HOLDINGS" means Corgi Classics Holdings Limited
(previously known as Exitarena Limited), a company incorporated in
England and Wales with registered number 3811954.
"CORGI GROUP" means Corgi Classics Holdings and its subsidiaries for the
time being.
"CORGI TRADE PAYABLES LETTER" means a letter (substantially in the form
approved by the Agent prior to the execution of this Agreement) to be
executed by Corgi Classics on or about the date hereof in favour of the
Borrower regarding the repayment by Corgi Classics of its trade payables
owed to the Borrower.
"DONGGUAN XINDA" means Dongguan Xinda Giftware Co. Ltd..
"ENCUMBRANCE" means (a) a mortgage, charge, pledge, lien or other
encumbrance securing any obligation of any person, (b) any arrangement
under which money or claims to, or the benefit of, a bank or other
account may be applied, set off or made subject to a combination of
accounts so as to effect discharge of any sum owed or payable to any
person or (c) any other type of preferential arrangement (including any
title transfer and retention arrangement) having a similar effect.
"ENVIRONMENTAL CLAIM" means any claim, proceedings or investigation by
any person pursuant to any Environmental Law.
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"ENVIRONMENTAL LAW" means any applicable law in any jurisdiction in which
any member of the Group conducts business which relates to the pollution
or protection of the environment or harm to or the protection of human
health or the health of animals or plants.
"ENVIRONMENTAL PERMITS" means any permit, licence, consent, approval and
other authorisation and the filing of any notification, report or
assessment required under any Environmental Law for the operation of the
business of any member of the Group conducted on or from the properties
owned or used by the relevant member of the Group.
"EVENT OF DEFAULT" means any circumstance described as such in Clause 18
(Events of Default).
"FACILITY" means the dollar term loan facility granted to the Borrower in
this Agreement.
"FACILITY OFFICE" means, in relation to the Agent, the office identified
with its signature below or such other office as it may select by notice
and, in relation to any Bank, the office notified by it to the Agent in
writing prior to the date hereof (or, in the case of a Transferee, at the
end of the Transfer Certificate to which it is a party as Transferee) or
such other office as it may from time to time select by notice to the
Agent.
"FINAL REPAYMENT DATE" means the date falling 30 months from the date of
the making of the Advance hereunder PROVIDED THAT if such date is not a
Business Day, it shall be deemed to be the next succeeding Business Day.
"FINANCE DOCUMENTS" means this Agreement, the Corgi Trade Payables
Letter, the Security Documents, any fee letter delivered pursuant to
Clause 20 (Fees), any document(s) delivered or to be delivered pursuant
to any of the foregoing and any other document designated as such by the
Agent.
"FINANCE PARTIES" means the Agent, the Arrangers and the Banks.
"FINANCIAL INDEBTEDNESS" means any indebtedness for or in respect of:
(a) Indebtedness for Borrowed Money;
(b) any documentary or standby letter of credit facility or
performance bond facility;
(c) any interest rate swap, currency swap, forward foreign exchange
transaction, cap, floor, collar or option transaction or any
other treasury transaction or any combination thereof or any
other transaction entered into in connection with protection
against or benefit from fluctuation in any rate or price (and the
amount of the Financial Indebtedness in relation to any such
transaction shall be calculated by reference to the
xxxx-to-market valuation of such transaction at the relevant
time); and
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(d) any guarantee or indemnity for any of the items referred to in
paragraphs (a) to (c) above.
"GROUP" means the Borrower and its subsidiaries for the time being.
"GUARANTORS" means Xxx Xxxx Holdings and Xxx Xxxx Printing.
"XXX XXXX HOLDINGS" means Xxx Xxxx Holdings Co. Ltd..
"XXX XXXX PRINTING" means Xxx Xxxx Printing Holdings Co., Limited.
"INDEBTEDNESS FOR BORROWED MONEY" means any indebtedness for or in
respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or any similar
instrument;
(d) any amount raised pursuant to any issue of shares which are
expressed to be redeemable;
(e) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with generally
accepted accounting principles in the relevant jurisdiction, be
treated as a finance or capital lease;
(f) the amount of any liability in respect of any advance or
deferred purchase agreement if one of the primary reasons for
entering into such agreement is to raise finance;
(g) receivables sold or discounted (other than on a non-recourse
basis);
(h) any agreement or option to re-acquire an asset if one of the
primary reasons for entering into such agreement or option is to
raise finance;
(i) any amount raised under any other transaction (including any
forward sale or purchase agreement) having the commercial effect
of a borrowing; and
(j) the amount of any liability in respect of any guarantee or
indemnity for any of the items referred to in paragraphs (a) to
(i) above.
"INSTRUCTING GROUP" means:
(a) before any Advances have been made, a Bank or Banks whose
Available Commitments amount in aggregate to more than 66 2/3%
of the Available Facility; and
(b) thereafter, a Bank or Banks to whom in aggregate more than sixty
six and two thirds per cent. of the Loan is (or, immediately
prior to its repayment, was then) owed.
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"INTERCOMPANY LOANS" means:
a) loans or any form of credit granted to the Borrower by (i) Xxx
Xxxx Printing in respect of certain services and products provided
by Xxx Xxxx Printing to the Borrower, (ii) Luen Tat Mould Mfg.
Ltd. in respect of certain services and products provided by Luen
Tat Mould Mfg. Ltd. to the Borrower, (iii) Luen Tat Model Design
Co. Ltd. in respect of certain services and products provided by
Luen Tat Model Design Co. Ltd. to the Borrower, and (iv) Onchart
Industrial Ltd. in respect of certain services and products
provided by Onchart Industrial Ltd. to the Borrower;
b) a loan made by Xxx Xxxx Holdings to Xxx Xxxx Printing in the
amount of $25,399,000;
c) loans made by the Borrower to Corgi Classics Holdings in the
aggregate amount of $15,715,000; and
d) trade payables owed by Corgi Classics to the Borrower in respect
of products provided to Corgi Classics by the Borrower specified
in the Corgi Trade Payables Letter as the Remaining Trade Payables
Amount being an amount of $2,400,000.
"INTEREST PERIOD" means, save as otherwise provided herein:
(a) any of those periods mentioned in Clause 4.1 (Interest Periods);
and
(b) in relation to an Unpaid Sum, any of those periods mentioned in
Clause 22.1 (Default Interest Periods).
"LIBOR" means, in relation to any amount to be advanced to, or owing by,
an Obligor under the Finance Documents on which interest for a given
period is to accrue:
(a) the percentage rate per annum determined by the Agent to be equal
to the arithmetic mean (rounded upwards, if not already a
multiple, to the nearest whole multiple of one-sixteenth of one
percent.) of the offered quotations which appear on the page of
the Reuters Monitor Money Rates Service designated for the display
of London Interbank Offered Rates for dollars (being currently
"LIBO") or the currency of any Unpaid Sum for such period as of
11.00 a.m. on the Quotation Date for such period or, if such page
or such service shall cease to be available, such other page or
such other service for the purpose of displaying the London
Interbank Offered Rates for dollars (or the currency of such
Unpaid Sum) as the Agent, after consultation with the Banks and
the Borrower, shall select; or
if no quotation for dollars (or the currency of such Unpaid Sum) and
the relevant period is displayed and the Agent has not selected an
alternative service on which a quotation is displayed, the arithmetic
mean (rounded upwards to four decimal places) of the rates (as notified
to the Agent) at which each of the Reference Banks was
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offering to prime banks in the London interbank market deposits in
dollars (or the currency of such Unpaid Sum) for such period as of
11.00 a.m. on the Quotation Date for such period.
"LOAN" means the aggregate principal amount for the time being
outstanding hereunder.
"LOAN NOTES" means the 7 per cent. Pound Sterling 3,000,000 unsecured
exchangeable loan notes due 2002 issued by Corgi Classics Holdings
pursuant to an instrument dated 28 July 1999 between the Borrower and
Corgi Classics Holdings, of which Pound Sterling 2,100,000 is outstanding
as at the date hereof.
"MANDATORY COST RATE" means the rate determined in accordance with
Schedule 6 (Mandatory Costs).
"MARGIN" means 2.0 per cent. per annum.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or
prospects of the Group taken as a whole; (b) the ability of an Obligor to
perform its obligations under any Finance Document; or (c) the validity
or enforceability of any Finance Document or the rights or remedies of
any Finance Party thereunder.
"NOTICE OF DRAWDOWN" means a notice substantially in the form set out in
Schedule 4 (Notice of Drawdown).
"OBLIGORS" means the Borrower, the Guarantors, Corgi Classics Holdings
and the Subordinated Lenders.
"ORIGINAL FINANCIAL STATEMENTS" means:
(a) in relation to the Borrower, its audited consolidated financial
statements for its financial year ended 31 March 2000;
(b) in relation to the Guarantors, each of its audited consolidated
financial statements for its financial year ended 31 March 2000;
(c) in relation to Corgi Classics Holdings, its audited consolidated
financial statements for its financial year ended 31 March 2000;
and
(d) in relation to Corgi Classics, its audited consolidated financial
statements for its financial year ended 31 March 2000.
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"ORIGINAL LENDERS" means ABN AMRO Banks N.V., Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., Hong Kong Branch, KBC Bank N.V., Hong
Kong Branch and Standard Chartered Bank.
"PERMITTED ENCUMBRANCE" means:
(a) any Encumbrance entered into pursuant to this Agreement or any
Finance Document;
(b) any Encumbrance over or affecting any asset acquired by a member
of the Group after the date hereof and subject to which such
asset is acquired, if:
(i) such Encumbrance was not created in contemplation of the
acquisition of such asset by a member of the Group;
(ii) the amount thereby secured has not been increased in
contemplation of, or since the date of, the acquisition of
such asset by a member of the Group; and
(iii) such Encumbrance is removed or discharged within three
months of the date of acquisition of such asset;
(c) any Encumbrance over or affecting any asset of any company which
becomes a member of the Group after the date hereof, where such
Encumbrance is created prior to the date on which such company
becomes a member of the Group, if:
(i) such Encumbrance was not created in contemplation of the
acquisition of such company;
(ii) the amount thereby secured has not been increased in
contemplation of, or since the date of, the acquisition of
such company; and
(iii) such Encumbrance is removed or discharged within three
months of such company becoming a member of the Group;
(d) any netting or set-off arrangement entered into by any member of
the Group in the normal course of its banking arrangements for the
purpose of netting debit and credit balances;
(e) any title transfer or retention of title arrangement or financial
lease in respect of machinery entered into by any member of the
Group in the normal course of its trading activities on the
counterparty's standard or usual terms;
(f) any lien arising by operation of law and in the normal course of
business, if such lien is discharged within ten days of arising;
and
(g) the Permitted Foreign Exchange Contracts.
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"PERMITTED FACTORING ARRANGEMENTS" means any factoring arrangements
existing as at the date hereof which the Borrower has entered into, the
details of which have been fully disclosed in writing to the Agent and
which (1) are on a non-recourse basis; (2) involve the deduction of
interests, financial charges and insurance fees only (and no other
amounts) from the proceeds collected by the Factoring House (as defined
below); (3) do not constitute, are not intended to be and are not treated
by any bank or financial institution with which such factoring
arrangements are entered into (the "FACTORING HOUSE"), as guarantees for
or other assurance against financial loss in respect of any other credit
or financing facilities extended to any person by such Factoring Bank; and
(4) are entered into in the ordinary course of business.
"PERMITTED FOREIGN EXCHANGE CONTRACTS" means:
(a) the forward exchange contract entered into between the Borrower
and ABN AMRO Bank N.V., Hong Kong Branch;
(b) the forward exchange contracts entered into between Corgi Classics
and The Royal Bank of Scotland; and
(c) forward exchange contracts entered or to be entered into by the
Group for the purpose of hedging the Group's multicurrency
receivables and payables provided that the currencies subject to
such foreign exchange contracts are limited to dollars, sterling,
Hong Kong dollars, Renminbi, Canadian dollars, Australian dollars,
Japanese yen and other European currencies, including without
limitation, French francs, Deutsche marks, Euro and Sterling
pounds.
"PERMITTED INDEBTEDNESS" means the Intercompany Loans, the Loan Notes, the
RBS Term Loan Facility, the RBS Revolving Facility, and any indebtedness
incurred pursuant to the Permitted Foreign Exchange Contracts.
"POTENTIAL EVENT OF DEFAULT" means any event which may become (with the
passage of time, the giving of notice, the making of any determination
hereunder or any combination thereof) an Event of Default.
"QUOTATION DATE" means, in relation to any period for which an interest
rate is to be determined under the Finance Documents, the day on which
quotations would ordinarily be given by prime banks in the London
interbank market for deposits in dollars (or the currency of any Unpaid
Sum) for delivery on the first day of that period, PROVIDED THAT, if, for
any such period, quotations would ordinarily be given on more than one
date, the Quotation Date for that period shall be the last of those dates
(for the avoidance of doubt, the Quotation Date for an Interest Period
relating to an amount in US$ is, according to the current practice, the
day falling 2 Business Days prior to the commencement of such Interest
Period).
"RBS REVOLVING FACILITY" means the Pound Sterling 3,000,000 revolving
credit facility granted to Corgi Classics pursuant to a revolving credit
facility agreement dated 24 January 2001
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and entered into between Corgi Classics as borrower and The Royal Bank of
Scotland plc. as bank.
"RBS TERM LOAN FACILITY" means the Pound Sterling 4,000,000 term loan
facility granted to Corgi Classics pursuant to a term loan facility
agreement dated 24 January 2001 and entered into between Corgi Classics
as borrower and The Royal Bank of Scotland plc. as bank.
"REFERENCE BANKS" means the principal London offices of ABN AMRO Bank
N.V., Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., KBC Bank N.V.
and Standard Chartered Bank or such banks as may be appointed as such by
the Agent after consultation with the Borrower.
"RELEVANT PERIOD" means each period of twelve months ending on the last
day of the Borrower's financial year.
"REPAYMENT DATE" means each of the dates specified in Clause 8
(Repayment), PROVIDED THAT if such date is not a Business Day, it shall
be deemed to be the next succeeding Business Day.
"REPEATED REPRESENTATIONS" means each of the representations set out in
Clause 14.1 (Status) to Clause 14.20 (Ownership of Corgi Classics).
"SBLC FACILITY" means the US$30,000,000 standby letter of credit facility
granted to the Borrower pursuant to the SBLC facility agreement dated 28
July 1999 and entered into between the Borrower as L/C applicant, Xxx
Xxxx Holdings Co. Ltd. and Xxx Xxxx Printing Holdings Co., Limited as
guarantors, ABN AMRO Bank N.V., Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., Hong Kong Branch, KBC Bank N.V., Hong
Kong Branch and Standard Chartered Bank as arrangers, ABN AMRO Bank,
N.V., Hong Kong Branch as agent, ABN AMRO Bank, N.V., Hong Kong Branch as
fronting bank and the financial institutions named therein as banks.
"SECURITY DOCUMENTS" means the Charge over Corgi Classics Holdings
Shares, the Charge over Corgi Classics Shares and the Subordination Deed.
"SHENZHEN HUAXUAN" means Shenzhen Huaxuan Printing Co. Ltd.
"SUBORDINATION DEED" means the subordination deed (substantially in the
form approved by the Agent prior to the execution of this Agreement)
dated on or about the date hereof and between the Borrower and the
Guarantors as initial obligors, Xxx Xxxx Printing, Xxx Xxxx Holdings,
Luen Tat Mould Mfg. Ltd., Luen Tat Model Design Co. Ltd. and Onchart
Industrial Ltd. as subordinated lenders and the Agent in its capacity as
agent and security trustee for and on behalf of the Banks.
"SUBORDINATED LENDERS" means Xxx Xxxx Printing, Xxx Xxxx Holdings, Luen
Tat Mould Mfg. Ltd., Luen Tat Model Design Co. Ltd and Onchart Industrial
Ltd. in their capacity as subordinated lenders under the Subordination
Deed.
"TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in Schedule 2 (Form of Transfer Certificate) signed by a Bank and a
Transferee under which:
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(a) such Bank seeks to procure the transfer to such Transferee of all
or a part of such Bank's rights, benefits and obligations under
the Finance Documents upon and subject to the terms and
conditions set out in Clause 29.3 (Assignments and Transfers by
Banks); and
(b) such Transferee undertakes to perform the obligations it will
assume as a result of delivery of such certificate to the Agent
as contemplated in Clause 29.5 (Transfers by Banks).
"TRANSFER DATE" means, in relation to any Transfer Certificate, the date
for the making of the transfer as specified in such Transfer Certificate.
"TRANSFEREE" means a person to which a Bank seeks to transfer by novation
all or part of such Bank's rights, benefits and obligations under the
Finance Documents.
"UNPAID SUM" means the unpaid balance of any of the sums referred to in
Clause 22.1 (Default Interest Periods).
1.2 INTERPRETATION
Any reference in this Agreement to:
the "AGENT" or any "BANK" shall be construed so as to include its and any
subsequent successors and permitted transferees in accordance with their
respective interests;
"CONTINUING", in relation to an Event of Default, shall be construed as a
reference to an Event of Default which has not been waived in accordance
with the terms hereof and, in relation to a Potential Event of Default,
one which has not been remedied within the relevant grace period or
waived in accordance with the terms hereof;
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 "LAW" shall be construed as any law (including common or customary
law), statute, constitution, decree, judgment, treaty, regulation,
directive, bye-law, order or any other legislative measure of any
government, supranational, local government, statutory or regulatory body
or court;
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:
(a) if any such numerically corresponding day is not a Business Day,
such period shall end on the immediately succeeding Business Day
to occur in that next
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succeeding calendar month or, if none, it shall end on the
immediately preceding Business Day; and
(b) if there is no numerically corresponding day in that next
succeeding calendar month, that period shall end on the last
Business Day in that next succeeding calendar 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 "SUBSIDIARY" of a company or corporation shall be construed as a
reference to any company or corporation:
(a) which is controlled, directly or indirectly, by the
first-mentioned company or corporation;
(b) more than half the issued share capital of which is beneficially
owned, directly or indirectly, by the first-mentioned company or
corporation; or
(c) 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;
a "SUCCESSOR" shall be construed so as to include an assignee or
successor in title of such party and any person who under the laws of its
jurisdiction of incorporation or domicile has assumed the rights and
obligations of such party under this Agreement or to which, under such
laws, such rights and obligations have been transferred;
"TAX" shall be construed so as to include any tax, levy, impost, duty or
other charge of a similar nature (including 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
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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, reorganisation, dissolution, administration,
arrangement, adjustment, protection or relief of debtors.
1.3 CURRENCY SYMBOLS
"$" and "DOLLARS" denote lawful currency of the United States of America.
1.4 AGREEMENTS AND STATUTES
Any reference in this Agreement to:
1.4.1 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; and
1.4.2 a statute or treaty shall be construed as a reference to such
statute or treaty as the same may have been, or may from time to
time be, amended or, in the case of a statute, re-enacted.
1.5 HEADINGS
Clause and Schedule headings are for ease of reference only.
1.6 TIME
Any reference in this Agreement to a time of day shall, unless a contrary
indication appears, be a reference to London time.
2. THE FACILITY
2.1 GRANT OF THE FACILITY
The Xxxxx xxxxx to the Borrower, upon the terms and subject to the
conditions hereof, a dollar term loan facility in an aggregate amount of
$9,000,000.
2.2 PURPOSE AND APPLICATION
The Facility is intended for refinancing the SBLC Facility and,
accordingly, the Borrower shall apply all amounts raised by it hereunder
in or towards satisfaction of such purpose and none of the Finance
Parties shall be obliged to concern themselves with such application.
2.3 CONDITIONS PRECEDENT
Save as the Banks may otherwise agree, the Borrower may not deliver any
Notice of Drawdown unless the Agent has confirmed to the Borrower and the
Banks that it has received all of the documents and other evidence listed
in Schedule 3 (Conditions Precedent) and that each is, in form and
substance, satisfactory to the Agent.
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2.4 BANKS' OBLIGATIONS SEVERAL
The obligations of each Bank are several and the failure by a Bank to
perform its obligations hereunder shall not affect the obligations of an
Obligor towards any other party hereto nor shall any other party be
liable for the failure by such Bank to perform its obligations hereunder.
2.5 BANKS' RIGHTS SEVERAL
The rights of each Bank are several and any debt arising hereunder at any
time from an Obligor to any of the other parties hereto shall be a
separate and independent debt. Each such party shall be entitled to
protect and enforce its individual rights arising out of this Agreement
independently of any other party (so that it shall not be necessary for
any party hereto to be joined as an additional party in any proceedings
for this purpose).
3. AVAILABILITY OF THE FACILITY
3.1 DRAWDOWN CONDITIONS
The Advance will be made by the Banks to the Borrower if:
3.1.1 not more than ten nor less than two Business Days before the
proposed date for the making of the Advance, the Agent has
received a completed Notice of Drawdown;
3.1.2 the proposed date for the making of the Advance is a Business Day
within the Availability Period;
3.1.3 the proposed amount of the Advance is equal to the amount of the
Available Facility;
3.1.4 the interest rate applicable to the Advance during its first
Interest Period would not fall to be determined pursuant to
Clause 6.1 (Market Disruption); and
3.1.5 on and as of the proposed date for the making of the Advance no
Event of Default or Potential Event of Default is continuing and
the Repeated Representations are true in all material respects.
3.2 EACH BANK'S PARTICIPATION
Each Bank will participate through its Facility Office in the Advance
made pursuant to Clause 3.1 (Drawdown Conditions) in the proportion borne
by its Available Commitment to the Available Facility immediately prior
to the making of the Advance.
3.3 REDUCTION OF AVAILABLE COMMITMENT
If a Bank's Available Commitment is reduced in accordance with the terms
hereof after the Agent has received the Notice of Drawdown for the
Advance and such reduction was not taken into account in the Available
Facility, then the amount of the Advance shall be reduced accordingly.
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4. INTEREST PERIODS
4.1 INTEREST PERIODS
The period for which the Advance is outstanding shall be divided into
successive periods each of which (other than the first, which shall begin
on the day the Advance is made) shall start on the last day of the
preceding such period.
4.2 DURATION
The duration of each Interest Period shall, save as otherwise provided
herein, be one, two or three months, in each case as the Borrower may by
not less than five Business Days' prior notice to the Agent select,
PROVIDED THAT:
4.2.1 if the Borrower fails to give such notice of its selection in
relation to an Interest Period, the duration of that Interest
Period shall, subject to sub-clauses 4.2.2 and 4.2.3, be one
month;
4.2.2 any Interest Period which begins during or at the same time as
any other Interest Period shall end at the same time as that
other Interest Period; and
4.2.3 any Interest Period which would otherwise end during the month
preceding, or extend beyond, a Repayment Date shall be of such
duration that it shall end on that Repayment Date.
5. PAYMENT AND CALCULATION OF INTEREST
5.1 PAYMENT OF INTEREST
On the last day of each Interest Period the Borrower shall pay accrued
interest on the Advance.
5.2 CALCULATION OF INTEREST
The rate of interest applicable to the Advance from time to time during
an Interest Period relating thereto shall be the rate per annum which is
the sum of the Margin, the Mandatory Cost Rate in respect thereof for the
time being and LIBOR on the Quotation Date therefor.
6. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
6.1 MARKET DISRUPTION
If, in relation to the Advance:
6.1.1 LIBOR is to be determined by reference to Reference Banks and at
or about 11.00 a.m. on the Quotation Date for the relevant
Interest Period none or only one of the Reference Banks supplies
a rate for the purpose of determining LIBOR for the relevant
Interest Period; or
6.1.2 before the close of business in London on the Quotation Date for
the Advance the Agent has been notified by a Bank or each of a
group of Banks to whom in aggregate thirty-five per cent. or more
of the Advance is owed (or, in the case of an undrawn Advance, if
made, would be owed) that the LIBOR rate does not accurately
reflect the cost of funding its participation in the Advance
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then, the Agent shall notify the other parties hereto of such event and,
notwithstanding anything to the contrary in this Agreement, Clause 6.2
(Substitute Interest Period and Interest Rate) shall apply to the Advance
(if it is already outstanding). If sub-clause 6.1.1 or 6.1.2 applies to a
proposed Advance, the Advance shall not be made.
6.2 SUBSTITUTE INTEREST PERIOD AND INTEREST RATE
If sub-clause 6.1.1 of Clause 6.1 (Market Disruption) applies to the
Advance, the duration of the relevant Interest Period shall be one month
or, if less, such that it shall end on the next succeeding Repayment
Date. If either sub-clauses 6.1.1 or 6.1.2 of Clause 6.1 (Market
Disruption) applies to the Advance, the rate of interest applicable to
the Advance during the relevant Interest Period shall (subject to any
agreement reached pursuant to Clause 6.3 (Alternative Rate)) be the rate
per annum which is the sum of:
6.2.1 the Margin;
6.2.2 the Mandatory Cost Rate in respect thereof for the time being;
and
6.2.3 the rate per annum determined by the Agent to be the arithmetic
mean (rounded upwards to four decimal places) of the rates
notified by each Bank to the Agent before the last day of such
Interest Period to be those which express as a percentage rate
per annum the cost to each Bank of funding from whatever sources
it may select its portion of the Advance during such Interest
Period.
6.3 ALTERNATIVE RATE
If (a) either of those events mentioned in sub-clauses 6.1.1 and 6.1.2 of
Clause 6.1 (Market Disruption) occurs in relation to the Advance or (b)
by reason of circumstances affecting the London interbank market during
any period of three consecutive Business Days LIBOR is not available for
dollars to prime banks in the London interbank market, then if the Agent
or the Borrower so requires, the Agent and the Borrower shall enter into
negotiations with a view to agreeing a substitute basis (i) for
determining the rates of interest from time to time applicable to the
Advance and/or (ii) upon which the Advance may be maintained (whether in
dollars or some other currency) thereafter and any such substitute basis
that is agreed shall take effect in accordance with its terms and be
binding on each party hereto, PROVIDED THAT the Agent may not agree any
such substitute basis without the prior consent of each Bank.
7. NOTIFICATION
7.1 ADVANCES AND INTEREST PERIODS
Not less than three Business Days before the first day of an Interest
Period, the Agent shall notify each Bank of the proposed amount of the
Advance, the proposed length of such Interest Period and the aggregate
principal amount of the relevant Advance allocated to such Bank pursuant
to Clause 3.2 (Each Bank's Participation).
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7.2 INTEREST RATE DETERMINATION
The Agent shall promptly notify the Borrower and the Banks of each
determination of LIBOR and the Mandatory Cost Rate.
7.3 CHANGES TO INTEREST PERIODS OR INTEREST RATES
The Agent shall promptly notify the Borrower and the Banks of any change
to the proposed length of an Interest Period or any interest rate
occasioned by the operation of Clause 6 (Market Disruption and
Alternative Interest Rates).
8. REPAYMENT
On each Repayment Date set out in the table below the Borrower shall
repay the Loan in instalments in the amounts set out opposite such
Repayment Date in the table below provided that any instalments not made
in accordance with the table below and any other amounts remaining owing
to any Finance Party under any Finance Document shall be paid not later
than the Final Repayment Date.
REPAYMENT DATE AMOUNT (US$)
The day falling 3 months from the date of 500,000
the making of the Advance hereunder
The day falling 6 months from the date of 500,000
the making of the Advance hereunder
The day falling 9 months from the date of 500,000
the making of the Advance hereunder
The day falling 12 months from the date of 500,000
the making of the Advance hereunder
The day falling 15 months from the date of 1,000,000
the making of the Advance hereunder
The day falling 18 months from the date of 1,000,000
the making of the Advance hereunder
The day falling 21 months from the date of 1,250,000
the making of the Advance hereunder
The day falling 24 months from the date of 1,250,000
the making of the Advance hereunder
The day falling 27 months from the date of 1,250,000
the making of the Advance hereunder
The Final Repayment Date 1,250,000
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9. PREPAYMENT
9.1 PREPAYMENT
The Borrower may, if it has given to the Agent not less than ten Business
Days' prior notice to that effect, prepay the whole of any Advance or any
part of any Advance on the last day of any Interest Period relating to
the Advance. Any prepayment so made shall satisfy pro tanto the
Borrower's obligations under Clause 8 (Repayment) in inverse
chronological order.
9.2 NOTICE OF PREPAYMENT
Any notice of prepayment given by the Borrower pursuant to Clause 9.1
(Prepayment) shall be irrevocable, shall specify the date upon which such
prepayment is to be made and the amount of such prepayment and shall
oblige the Borrower to make such prepayment on such date.
9.3 REPAYMENT OF A BANK'S SHARE OF THE LOAN
If:
9.3.1 any sum payable to any Bank is required to be increased pursuant
to Clause 10.1 (Tax Gross-up); or
9.3.2 any Bank claims indemnification from an Obligor under Clause 10.2
(Tax Indemnity) or Clause 12.1 (Increased Costs),
the Borrower may, whilst such circumstance continues, give the Agent at
least ten Business Days notice (which notice shall be irrevocable) of its
intention to repay such Bank's share of the Loan. On the last day of each
of the then current Interest Periods the Borrower shall repay such Bank's
portion of the Advance to which such Interest Period relates. Any
repayment so made shall reduce rateably the remaining obligations of the
Borrower under Clause 8 (Repayment) and the Available Commitment of such
Bank shall be immediately reduced to zero.
9.4 NO OTHER REPAYMENT AND NO REBORROWING
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 or prepaid.
10. TAXES
10.1 TAX GROSS-UP
All payments to be made by an Obligor to any Finance Party under the
Finance Documents shall be made free and clear of and without deduction
for or on account of tax unless such Obligor is required to make such a
payment subject to the deduction or withholding of tax, in which case the
sum payable by such Obligor (in respect of which such deduction or
withholding is required to be made) shall be increased to the extent
necessary to ensure that such Finance Party receives a sum net of any
deduction or withholding equal to the sum which it would have received
had no such deduction or withholding been made or required to be made.
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10.2 TAX INDEMNITY
Without prejudice to Clause 10.1 (Tax Gross-up), if any Finance Party is
required to make any payment of or on account of tax on or in relation to
any sum received or receivable under the Finance Documents (including any
sum deemed for purposes of tax to be received or receivable by such
Finance Party whether or not actually received or receivable) or if any
liability in respect of any such payment is asserted, imposed, levied or
assessed against any Finance Party, the Borrower shall, upon demand of
the Agent, promptly indemnify the Finance Party which suffers a loss or
liability as a result against such payment or liability, together with
any interest, penalties, costs and expenses payable or incurred in
connection therewith, PROVIDED THAT this Clause 10.2 shall not apply to:
10.2.1 any tax imposed on and calculated by reference to the net income
actually received or receivable by such Finance Party (but, for
the avoidance of doubt, not including any sum deemed for purposes
of tax to be received or receivable by such Finance Party but not
actually receivable) by the jurisdiction in which such Finance
Party is incorporated; or
10.2.2 any tax imposed on and calculated by reference to the net income
of the Facility Office of such Finance Party actually received or
receivable by such Finance Party (but, for the avoidance of
doubt, not including any sum deemed for purposes of tax to be
received or receivable by such Finance Party but not actually
receivable) by the jurisdiction in which its Facility Office is
located.
10.3 CLAIMS BY BANKS
A Bank intending to make a claim pursuant to Clause 10.2 (Tax Indemnity)
shall notify the Agent of the event giving rise to the claim, whereupon
the Agent shall notify the Borrower thereof.
11. TAX RECEIPTS
11.1 NOTIFICATION OF REQUIREMENT TO DEDUCT TAX
If, at any time, an Obligor is required by law to make any deduction or
withholding from any sum payable by it under the Finance Documents (or if
thereafter there is any change in the rates at which or the manner in
which such deductions or withholdings are calculated), such Obligor shall
promptly notify the Agent.
11.2 EVIDENCE OF PAYMENT OF TAX
If an Obligor makes any payment under the Finance Documents 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 Agent for each Bank, within
thirty days after it has made such payment to the applicable authority,
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 that Bank's share of
such payment.
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11.3 TAX AND OTHER AFFAIRS
No provision of this Agreement shall interfere with the right of any
Finance Party to arrange its tax or any other affairs in whatever manner
it thinks fit, oblige any Finance Party to claim any credit, relief,
remission or repayment in respect of any payment under Clause 10 (Taxes)
in priority to any other credit, relief, remission or repayment available
to it nor oblige any Finance Party to disclose any information relating
to its tax or other affairs or any computations in respect thereof.
12. INCREASED COSTS
12.1 INCREASED COSTS
If, by reason of (a) any change in law or in its interpretation or
administration and/or (b) compliance with any request or requirement
relating to the maintenance of capital or any other request from or
requirement of any central bank or other fiscal, monetary or other
authority:
12.1.1 a Bank or any holding company of such Bank is unable to obtain
the rate of return on its capital which it would have been able
to obtain but for such Bank's entering into or assuming or
maintaining a commitment or performing its obligations under the
Finance Documents;
12.1.2 a Bank or any holding company of such Bank incurs a cost as a
result of such Bank's entering into or assuming or maintaining a
commitment or performing its obligations under the Finance
Documents; or
12.1.3 there is any increase in the cost to a Bank or any holding
company of such Bank of funding or maintaining such Bank's share
of the Advances or any Unpaid Sum,
then the Borrower shall, from time to time on demand of the Agent,
promptly pay to the Agent for the account of that Bank amounts sufficient
to indemnify that Bank or to enable that Bank to indemnify its holding
company from and against, as the case may be, (i) such reduction in the
rate of return of capital, (ii) such cost or (iii) such increased cost.
12.2 INCREASED COSTS CLAIMS
A Bank intending to make a claim pursuant to Clause 12.1 (Increased
Costs) shall notify the Agent of the event giving rise to such claim,
whereupon the Agent shall notify the Borrower thereof.
12.3 EXCLUSIONS
Notwithstanding the foregoing provisions of this Clause 12, no Bank shall
be entitled to make any claim under this Clause 12 in respect of any
cost, increased cost or liability compensated by Clause 10 (Taxes).
13. ILLEGALITY
If, at any time, it is or will become unlawful for a Bank to make, fund
or allow to remain outstanding all or part of its share of the Advances,
then that Bank shall,
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promptly after becoming aware of the same, deliver to the Borrower
through the Agent a notice to that effect and:
13.1.1 such Bank shall not thereafter be obliged to participate in the
making of any Advances and the amount of its Available Commitment
shall be immediately reduced to zero; and
13.1.2 if the Agent on behalf of such Bank so requires, the Borrower
shall on such date as the Agent shall have specified repay such
Bank's share of any outstanding Advances together with accrued
interest thereon and all other amounts owing to such Bank
hereunder and any repayment so made after the last day of the
Availability Period shall reduce rateably the remaining
obligations of the Borrower under Clause 8.1 (Repayment
Instalments).
14. REPRESENTATIONS
Each of the Borrower and the Guarantors makes the representations and
warranties set out in Clause 14.1 (Status) to Clause 14.20 (Ownership of
Corgi Classics) and acknowledges that the Finance Parties have entered
into this Agreement in reliance on those representations and warranties.
14.1 STATUS
It is a corporation duly organised under the laws of Hong Kong (in the
case of the Borrower and Xxx Xxxx Printing) and of the Cayman Islands (in
the case of Xxx Xxxx Holdings).
14.2 GOVERNING LAW AND JUDGMENTS
In any proceedings taken in its jurisdiction of incorporation in relation
to this Agreement, the choice of Hong Kong law as the governing law of
this Agreement and any judgment obtained in Hong Kong will be recognised
and enforced.
14.3 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in the Finance Documents to
which it is a party are legal and valid obligations binding on it and
enforceable against it in accordance with the terms thereof.
14.4 EXECUTION OF THIS AGREEMENT
Its execution of this Agreement and its exercise of its rights and
performance of its obligations under the Finance Documents to which it is
a party do not and will not:
14.4.1 conflict with any agreement, mortgage, bond or other instrument
or treaty to which it is a party or which is binding upon it or
any of its assets;
14.4.2 conflict with its constitutive documents; or
14.4.3 conflict with any applicable law.
It has the power to enter into the Finance Documents to which it is a
party and all corporate and other action required to authorise the
execution of such Finance
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Documents and the performance of its obligations under such Finance
Documents has been duly taken.
14.5 NO WINDING-UP
No member of the Group has taken any corporate action nor have any other
steps been taken or legal proceedings been started or (to the best of its
knowledge and belief) threatened against any member of the Group for its
winding-up, dissolution, administration or re-organisation (whether by
voluntary arrangement, scheme of arrangement or otherwise) or for the
appointment of a receiver, administrator, administrative receiver,
conservator, custodian, trustee or similar officer of it or of any or all
of its assets or revenues.
14.6 NO MATERIAL DEFAULTS
No member of the Group is 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.
14.7 NO MATERIAL PROCEEDINGS
No action or administrative proceeding of or before any court or agency
which might have a Material Adverse Effect has been started or
threatened.
14.8 AUDITED FINANCIAL STATEMENTS
The most recent audited consolidated financial statements of the Borrower
and the most recent audited consolidated financial statements of each
Guarantor:
14.8.1 were prepared in accordance with accounting principles generally
accepted in the United States (in the case of the Borrower) and
Hong Kong (in the case of the Guarantors) and consistently
applied;
14.8.2 disclose all liabilities (contingent or otherwise) and all
unrealised or anticipated losses (which the Borrower or, as the
case may be, any member of the Group is required to disclose in
accordance with the relevant accounting principles referred to in
Clause 14.8.1 above) of the Borrower or, as the case may be, any
member of the Group; and
14.8.3 save as disclosed therein, give a true and fair view of the
financial condition and operations of the Borrower or, as the
case may be, the Group during the relevant financial year.
14.9 NO MATERIAL ADVERSE CHANGE
Since the date as at which the most recent audited consolidated financial
statements of the Borrower and the most recent audited consolidated
financial statements of each Guarantor were stated to be prepared, there
has been no material adverse change in the business or financial
condition of the Borrower or, as the case may be, any member of the
Group.
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14.10 WRITTEN INFORMATION
All written information supplied by any member of the Group to the Agent
is true, complete and accurate in all material respects as at the date it
was given and is not misleading in any respect.
14.11 VALIDITY AND ADMISSIBILITY IN EVIDENCE
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 the Finance Documents to which it is a party, (b) to
ensure that the obligations expressed to be assumed by it in the Finance
Documents to which it is a party are legal, valid, binding and
enforceable and (c) to make the Finance Documents to which it is a party
admissible in evidence in its jurisdiction of incorporation have been
done, fulfilled and performed.
14.12 CLAIMS PARI PASSU
Under the laws of its jurisdiction of incorporation in force at the date
hereof, the claims of the Finance Parties against it under the Finance
Documents to which it is a party will rank at least pari passu with the
claims of all its other unsecured and unsubordinated creditors save those
whose claims are preferred solely by any bankruptcy, insolvency,
liquidation or other similar laws of general application.
14.13 NO FILING OR STAMP TAXES
Under the laws of its jurisdiction of incorporation in force at the date
hereof, it is not necessary that the Finance Documents to which it is a
party be filed, recorded or enrolled with any court or other authority in
such jurisdiction or that any stamp, registration or similar tax be paid
on or in relation to such Finance Documents.
14.14 ENCUMBRANCES
Save for Permitted Encumbrances, no Encumbrance exists over all or any of
the present or future revenues or assets of (including, without
limitation, any shares held by) any member of the Group.
14.15 NO DEDUCTION OR WITHHOLDING
Under the laws of its jurisdiction of incorporation in force at the date
hereof, it will not be required to make any deduction or withholding from
any payment it may make under the Finance Documents to which it is a
party.
14.16 ENVIRONMENTAL COMPLIANCE
Each member of the Group has duly performed and observed in all material
respects all Environmental Law, Environmental Permits and all other
material covenants, conditions, restrictions or agreements directly or
indirectly concerned with any contamination, pollution or waste or the
release or discharge of any toxic or hazardous substance in connection
with any real property which is or was at any time owned, leased or
occupied by any member of the Group or on which any member of the Group
has conducted any activity where failure to do so might reasonably be
expected to have a Material Adverse Effect.
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14.17 ENVIRONMENTAL CLAIMS
No Environmental Claim has been commenced or (to the best of the
Borrower's and each Guarantor's knowledge and belief) is threatened
against any member of the Group where such claim would be reasonably
likely, if determined against such member of the Group, to have a
Material Adverse Effect.
14.18 OWNERSHIP OF THE GUARANTORS
The Borrower directly owns beneficially and of record 100 per cent. of
the issued share capital of Xxx Xxxx Holdings and Xxx Xxxx Holdings
directly owns beneficially and of record 100 per cent. of the issued
share capital of Xxx Xxxx Printing.
14.19 OWNERSHIP OF CORGI CLASSICS HOLDINGS
The Borrower directly owns beneficially and of record 100 per cent. of
the issued share capital of Corgi Classics Holdings.
14.20 OWNERSHIP OF CORGI CLASSICS
Corgi Classics Holdings directly owns beneficially and of record 100 per
cent. of the issued share capital of Corgi Classics.
14.21 REPETITION OF REPRESENTATIONS
The Repeated Representations shall be deemed to be repeated by each of
the Borrower and the Guarantors by reference to the facts and
circumstances then existing on the first day of each Interest Period.
15. FINANCIAL INFORMATION
15.1 ANNUAL STATEMENTS
Each of the Borrower and the Guarantors shall, and shall ensure that
Corgi Classics Holdings and Corgi Classics shall, as soon as the same
become available, but in any event within 150 days after the end of each
of its financial years, deliver to the Agent in sufficient copies for
distribution to the Banks its consolidated financial statements for such
financial year, audited by an internationally recognised firm of
independent auditors licensed to practise in New York (in the case of
financial statements of the Borrower), Hong Kong (in the case of
financial statements of each Guarantor) or the United Kingdom (in the
case of financial statements of Corgi Classics Holdings and Corgi
Classics).
15.2 QUARTERLY STATEMENTS
Each of the Borrower and the Guarantors shall, and shall ensure that
Corgi Classics Holdings and Corgi Classics shall, as soon as the same
become available but in any event within 60 days after the end of each
quarter of each of its financial years deliver to the Agent in sufficient
copies for distribution to the Banks its consolidated financial
statements for such period.
15.3 REQUIREMENTS AS TO FINANCIAL STATEMENTS
Each of the Borrower and the Guarantors shall ensure that each set of
financial statements delivered by it, Corgi Classics Holdings or Corgi
Classics (as the case may be) pursuant to this Clause 15 are:
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15.3.1 prepared using accounting policies, practices, procedures
and reference period consistent with those applied in the
preparation of the Original Financial Statements unless, in
relation to any such set of financial statements, the
relevant Obligor or Corgi Classics (as the case may be)
notifies the Agent that there have been one or more changes
in any such accounting policies, practices, procedures or
reference period and, in respect of the financial
statements provided pursuant to Clause 15.1 (Annual
Statements), the auditors or, otherwise, a senior financial
officer, of such Obligor or Corgi Classics (as the case may
be) provides:
(a) a description of the changes and the adjustments
which would be required to be made to those
financial statements in order to cause them to use
the accounting policies, practices, procedures and
reference period upon which the Original Financial
Statements were prepared; and
(b) sufficient information, in such detail and format as
may be reasonably required by the Agent, to enable
the Banks to make an accurate comparison between the
financial position indicated by those financial
statements and the Original Financial Statements,
and any reference in this Agreement to those financial
statements shall be construed as a reference to those
financial statements as adjusted to reflect the basis upon
which the Original Financial Statements were prepared; and
15.3.2 certified by an Authorised Signatory of such Obligor or
Corgi Classics (as the case may be) as giving, save as
disclosed therein, a true and fair view of its consolidated
financial condition or, if no consolidated quarterly
statements are prepared, its consolidated financial
position as at the end of the period to which those
financial statements relate and of the results of the
Group's, the relevant Obligor's or Corgi Classics' (as the
case may be) operations during such period.
15.4 COMPLIANCE CERTIFICATES
Each of the Borrower and the Guarantors shall ensure that each set of
financial statements delivered by it pursuant to Clause 15.1 (Annual
Statements) is accompanied by a Compliance Certificate signed by one
director and one senior finance officer of the relevant Obligor.
15.5 OTHER FINANCIAL INFORMATION
Each of the Borrower and the Guarantors shall from time to time on the
request of the Agent, furnish the Agent with such information (including
without limitation information about the business and financial
condition, operations, projections and budget) of the Group as the Agent
may reasonably request.
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16. FINANCIAL CONDITION
16.1 FINANCIAL CONDITION
The Borrower shall ensure that the financial condition of the Group shall
be such that:
16.1.1 Consolidated Tangible Net Worth as at the end of the financial
year ending 31 March 2001 and each Relevant Period thereafter
shall not be less than $27,500,000.
16.1.2 The ratio of Consolidated Net Borrowings to Consolidated Tangible
Net Worth shall not exceed 1.0:1 as at the end of the financial
year ending 31 March 2001 and 0.7:1 as at the end of each
Relevant Period thereafter.
16.1.3 The ratio of its Current Assets to its Current Liabilities as at
the end of the financial year ending 31 March 2001 and each
Relevant Period thereafter shall not be less than 1.0:1.
16.1.4 Interest Cover for each Relevant Period shall not be less than
1.5:1 for the financial year ending 31 March 2001 and 2.5:1 for
each Relevant Period thereafter.
16.1.5 Consolidated Profits Before Interest and Tax shall not be less
than $3,000,000 for the financial year ending 31 March 2001 and
$5,000,000 for each Relevant Period thereafter.
16.1.6 Debt Service Ratio for each Relevant Period shall not be less
than 0.5:1 for the financial year ending 31 March 2001 and 1.2:1
for each Relevant Period thereafter.
16.1.7 Capital expenditure for the Group (excluding Corgi Classics
Holdings and Corgi Classics), in respect of any Relevant Period,
shall not exceed $2,500,000.
16.2 FINANCIAL DEFINITIONS
In Clause 16.1 (Financial Condition) the following terms have the
following meanings.
"CONSOLIDATED FINANCE CHARGES" means, in respect of any Relevant Period,
the aggregate amount of the interest (including the interest element of
leasing and hire purchase payments and capitalised interest),
commission, fees, discounts and other finance payments payable by any
member of the Group.
"CONSOLIDATED NET BORROWINGS" means at any time the aggregate amount of
all obligations of the Group for or in respect of Indebtedness for
Borrowed Money but excluding ordinary trade indebtedness and any such
obligation to any other member of the Group, adjusted to take account of
the aggregate amount of freely available cash, cash equivalents (such
cash, cash equivalents to have a maturity of not more than 12 months)
held by any member of the Group (and so that no amount shall be included
or excluded more than once).
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"CONSOLIDATED PROFITS BEFORE INTEREST AND TAX" means, in respect of any
Relevant Period, the consolidated net income of the Group before:
(a) any provision on account of taxation;
(b) any interest, commission, discounts or other fees incurred or
payable, received or receivable by any member of the Group in
respect of Indebtedness for Borrowed Money; and
(c) any items treated as exceptional or extraordinary items.
"CONSOLIDATED TANGIBLE NET WORTH" means at any time the aggregate of the
amounts paid up or credited as paid up on the issued share capital of the
Borrower (other than any redeemable shares) and the aggregate amount of
the reserves of the Group including:
(a) any amount credited to the share premium account;
(b) any capital redemption reserve fund; and
(c) any balance standing to the credit of the consolidated profit and
loss account of the Group,
but deducting:
(i) any debit balance on the consolidated profit and loss account of
the Group;
(ii) (to the extent included) any amount shown in respect of property
revaluation where the revaluation in question is otherwise than
in accordance with a report of a professional valuer acceptable
to the Agent;
(iii) (to the extent included) any amount shown in respect of goodwill
(including goodwill arising only on consolidation) or other
intangible assets of the Group and interests of non-Group members
in Group subsidiaries;
(iv) (to the extent included) any amount set aside for taxation,
deferred taxation or bad debts,
and so that no amount shall be included or excluded more than once.
"CURRENT ASSETS" means the aggregate of inventory, trade and other
receivables of each member of the Group including sundry debtors and
cash at bank maturing within twelve months from the date of computation.
"CURRENT LIABILITIES" means the aggregate of all liabilities (including
trade creditors, accruals and provisions and prepayments) of each member
of the Group falling due within twelve months from the date of
computation.
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"DEBT SERVICE RATIO" means, in relation to any Relevant Period, the
ratio of (a) Consolidated Profits Before Interest and Tax before any
amount attributable to the amortisation of intangible assets and any
amount attributable to the depreciation of tangible assets to (b) the
sum of Consolidated Finance Charges and the aggregate of the scheduled
and mandatory payments for any Indebtedness of Borrowed Money of the
Group falling due during such Relevant Period.
"INTEREST COVER" means, in relation to any Relevant Period, the ratio of
Consolidated Profits Before Interest and Tax to Consolidated Finance
Charges.
16.3 FINANCIAL TESTING
The financial covenants set out in Clause 16.1 (Financial Condition)
shall be tested by reference to each of the financial statements and each
Compliance Certificate delivered pursuant to Clause 15 (Financial
Information).
16.4 ACCOUNTING TERMS
All accounting expressions which are not otherwise defined herein shall
be construed in accordance with generally accepted accounting principles
in Hong Kong.
17. COVENANTS
17.1 MAINTENANCE OF LEGAL VALIDITY
Each of the Borrower and the Guarantors shall obtain, comply with the
terms of and do all that is necessary to maintain in full force and
effect all authorisations, approvals, licences and consents required in
or by the laws of its jurisdiction of incorporation to enable it lawfully
to enter into and perform its obligations under the Finance Documents to
which it is a party and to ensure the legality, validity, enforceability
or admissibility in evidence in its jurisdiction of incorporation of such
Finance Documents.
17.2 INSURANCE
The Borrower shall procure that each member of the Group shall maintain
insurances on and in relation to its business and 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 such member of the Group.
17.3 ENVIRONMENTAL COMPLIANCE
The Borrower shall procure that each member of the Group shall comply in
all material respects with all Environmental Law and obtain and maintain
any Environmental Permits and take all reasonable steps in anticipation
of known or expected future changes to or obligations under the same,
breach of which (or failure to obtain, maintain or take which) might
reasonably be expected to have a Material Adverse Effect.
17.4 ENVIRONMENTAL CLAIMS
The Borrower shall inform the Agent in writing as soon as reasonably
practicable upon becoming aware of the same if any Environmental Claim
has been commenced or (to the best of the Borrower's knowledge and
belief) is threatened against any member of
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the Group in any case where such claim would be reasonably likely, if
determined against such member of the Group, to have a Material Adverse
Effect or of any facts or circumstances which will or are reasonably
likely to result in any Environmental Claim being commenced or threatened
against any member of the Group in any case where such claim would be
reasonably likely, if determined against such member of the Group, to
have a Material Adverse Effect.
17.5 NOTIFICATION OF EVENTS OF DEFAULT
Each of the Borrower and the Guarantors shall promptly inform the Agent
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 Agent,
confirm to the Agent that, save as previously notified to the Agent or as
notified in such confirmation, no Event of Default or Potential Event of
Default has occurred.
17.6 CLAIMS PARI PASSU
Each of the Borrower and the Guarantors shall ensure that at all times
the claims of the Finance Parties against it under the Finance Documents
to which it is a party rank at least pari passu with the claims of all
its other unsecured and unsubordinated creditors save those whose claims
are preferred by any bankruptcy, insolvency, liquidation or other similar
laws of general application.
17.7 NEGATIVE PLEDGE
The Borrower shall ensure that no member of the Group (other than a
member of the Corgi Group) shall, without the prior written consent of
the Agent (acting on the instructions of an Instructing Group) create or
permit to subsist any Encumbrance over all or any of its present or
future revenues or assets other than a Permitted Encumbrance.
17.8 LOANS AND GUARANTEES TO CORGI GROUP
The Borrower shall ensure that no member of the Group (other than a
member of the Corgi Group) shall, without the prior written consent of
the Agent (acting on the instructions of an Instructing Group), 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 other than guarantees or indemnities given by the Borrower or the
Guarantors to secure banking facilities made available to members of the
Group (other than a member of the Corgi Group) existing as at the date
hereof and the details of which have been fully disclosed in writing to
the Agent.
17.9 DISPOSALS
The Borrower shall ensure that (disregarding sales of stock in trade in
the ordinary course of business) no member of the Group shall, without
the prior written consent of the Agent (acting on the instructions of an
Instructing Group), 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 (exceeding in
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aggregate $3,000,000) other than (1) financial leases of up to
$10,000,000 in respect of machinery; and (2) any Permitted Factoring
Arrangements.
17.10 MERGERS
The Borrower shall ensure that no member of the Group shall, without the
prior written consent of the Agent (acting on the instructions of an
Instructing Group) merge or consolidate with any other person, enter into
any demerger transaction or participate in any other type of corporate
reconstruction.
17.11 DIVIDENDS
The Borrower shall not, without the prior written consent of the Agent
(acting on the instructions of an Instructing Group), pay, make or
declare any dividend or other distribution in respect of any financial
year of the Borrower exceeding 10 per cent of its Consolidated Net
Profits after Tax for such financial year.
For the purpose of this Clause 17.11, "CONSOLIDATED NET PROFITS AFTER
TAX" means, in respect of any Relevant Period, the consolidated net
income of the Group after any provision on account of taxation.
17.12 SUBORDINATION OF SHAREHOLDER AND INTERCOMPANY LOANS
Each of the Borrower and the Guarantors shall procure that all
Shareholders' Loans and Intercompany Loans are subordinated to the
Facility pursuant to the Subordination Deed.
17.13 MAINTENANCE OF SHAREHOLDING IN THE GUARANTORS
The Borrower shall maintain its direct holding of 100 per cent of the
issued share capital of Xxx Xxxx Holdings and shall ensure that Xxx Xxxx
Holdings shall maintain its direct holding of 100 per cent of the issued
share capital of Xxx Xxxx Printing throughout the term of the Facility.
17.14 MAINTENANCE OF SHAREHOLDING IN CORGI CLASSICS HOLDINGS
The Borrower shall maintain its direct holding of 100 per cent of the
issued share capital of Corgi Classics Holdings throughout the term of
the Facility.
17.15 MAINTENANCE OF SHAREHOLDING OF CORGI CLASSICS
The Borrower shall ensure that Corgi Classics Holdings shall, throughout
the term of the Facility, maintain its direct holding of 100 per cent of
the issued share capital of Corgi Classics.
17.16 REPAYMENT OF TRADE PAYABLES BY CORGI CLASSICS TO THE BORROWER
The Borrower shall ensure that Corgi Classics shall repay all trade
payables owed by Corgi Classics to the Borrower in accordance with the
Corgi Trade Payables Letter.
17.17 NO INDEBTEDNESS
The Borrower shall ensure that no member of the Group shall, without the
prior written consent of the Agent (acting on the instructions of an
Instructing Group), incur any indebtedness other than Permitted
Indebtedness. For the avoidance of doubt, the
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aggregate amount of the RBS Revolving Facility and the RBS Term Loan
Facility shall not at any time exceed Pound Sterling 7,000,000.
17.18 NO ISSUANCE OF BONDS
The Borrower shall not, without the prior written consent of the Agent
(acting on the instructions of an Instructing Group), issue any
discounted zero coupon bonds.
17.19 QUARTERLY RECEIVABLES
The Borrower shall, and shall ensure that each of the Guarantors and each
member of the Corgi Group shall, within 45 days after the last day of
each fiscal quarter of the Borrower, deliver to the Agent in sufficient
copies for distribution to the Banks, an ageing list of each of its trade
receivables outstanding at the end of such quarter.
17.20 TRANSACTIONS WITH THE CORGI GROUP
The Borrower shall ensure that no member of the Group will, directly or
indirectly, enter into any transaction directly or indirectly for the
benefit of a member of the Corgi Group (including, without limitation,
guarantees and assumptions of obligations) unless (a) the transaction is
entered into in the ordinary course of business and on an arms' length
basis; and (b) the trade payables arising from such transaction shall be
paid within 60 days.
17.21 SATISFACTION OF CONDITIONS SUBSEQUENT REQUIREMENTS
Each of the Borrower and the Guarantors shall ensure that (a) the
evidence listed in Part I of Schedule 9 (Conditions Subsequent) is
received by the Agent on the day of the making of the Advance hereunder
and that such evidence is, in form and substance, satisfactory to the
Agent; (b) the documents and evidence listed in Part II of Schedule 9
(Conditions Subsequent) are received by the Agent as soon as practicable
after the making of the Advance hereunder but in any event not later than
14 Business Days after the making of the Advance hereunder, and that each
is, in form and substance, satisfactory to the Agent; and (c) the
documents and evidence listed in Part III of Schedule 9 (Conditions
Subsequent) are received by the Agent as soon as practicable after the
making of the Advance hereunder but in any event not later than 30
Business Days after the making of the Advance hereunder, and that each
is, in form and substance, satisfactory to the Agent.
18. EVENTS OF DEFAULT
Each of Clause 18.1 (Failure to Pay) to Clause 18.18 (Financial Condition
of Shenzhen Huaxuan and Dongguan Xinda) describes circumstances which
constitute an Event of Default for the purposes of this Agreement.
18.1 FAILURE TO PAY
An Obligor fails to pay any sum due from it under the Finance Documents
to which it is a party at the time, in the currency and in the manner
specified therein unless such failure to pay is caused by technical
difficulties with the banking system in relation to the transmission of
funds and payment is made within three Business Days of the due date.
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18.2 MISREPRESENTATION
Any representation or statement made or deemed to be made by an Obligor
in the Finance Documents to which it is a party or in any notice or other
document, certificate or statement delivered by it pursuant thereto or in
connection therewith is or proves to have been incorrect or misleading in
any material respect when made or deemed to be made.
18.3 SPECIFIC COVENANTS
The Borrower or any Guarantor fails duly to perform or comply with any of
the obligations expressed to be assumed by it in Clause 15 (Financial
Information) or Clause 17 (Covenants).
18.4 FINANCIAL CONDITION
At any time any of the requirements of Clause 16.1 (Financial Condition)
is not satisfied.
18.5 OTHER OBLIGATIONS
An Obligor fails duly to perform or comply with any other obligation
expressed to be assumed by it in the Finance Documents to which it is a
party and such failure, if capable of remedy, is not remedied within
seven days after the Agent has given notice thereof to such Obligor.
18.6 CROSS DEFAULT
Any Financial Indebtedness of any member of the Group is not paid when
due, any Financial Indebtedness of any member of the Group is declared to
be or otherwise becomes due and payable prior to its specified maturity,
any commitment for any Financial Indebtedness of any member of the Group
is cancelled or suspended by a creditor of any member of the Group or any
creditor of any member of the Group becomes entitled to declare any
Financial Indebtedness of any member of the Group due and payable prior
to its specified maturity, PROVIDED THAT it shall not constitute an Event
of Default if the aggregate amount (or its equivalent in dollars) of all
such Financial Indebtedness is less than $600,000.
18.7 INSOLVENCY AND RESCHEDULING
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.
18.8 WINDING-UP
Any member of the Group takes any corporate action or other steps are
taken or legal proceedings are started for its winding-up, dissolution,
administration or re-organisation (whether by way of voluntary
arrangement, scheme of arrangement or otherwise) or for the appointment
of a liquidator, receiver, administrator, administrative receiver,
conservator, custodian, trustee or similar officer of it or of any or all
of its revenues and assets.
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18.9 EXECUTION OR DISTRESS
Any execution or distress is levied against, or an encumbrancer takes
possession of, the whole or any part of, the property, undertaking or
assets of any member of the Group or any event occurs which under the
laws of any jurisdiction has a similar or analogous effect.
18.10 FAILURE TO COMPLY WITH FINAL JUDGMENT
Any member of the Group fails to comply with or pay any sum due from it
under any final judgment or any final order made or given by any court of
competent jurisdiction.
18.11 GOVERNMENTAL INTERVENTION
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 any
member of the Group or the whole or any part of its revenues or assets is
seized, nationalised, expropriated or compulsorily acquired.
18.12 LISTING OF THE BORROWER
The Borrower ceases to be listed on NASDAQ or the New York Stock Exchange
or a Recognised Investment Exchange for the purposes of the Financial
Services Xxx 0000.
18.13 THE GROUP'S BUSINESS
Any member of the Group ceases to carry on, or materially changes the
nature and scope of, the business it carries on at the date hereof or
enters into any unrelated business.
18.14 REPUDIATION
An Obligor repudiates any Finance Documents to which it is a party or
does or causes to be done any act or thing evidencing an intention to
repudiate such Finance Documents.
18.15 ILLEGALITY
At any time it is or becomes unlawful for an Obligor to perform or comply
with any or all of its obligations under any Finance Documents to which
it is a party or any of the obligations of an Obligor thereunder are not
or cease to be legal, valid, binding and enforceable.
18.16 MATERIAL ADVERSE CHANGE
Any event or circumstance occurs which the Agent (acting on the
instructions of an Instructing Group) reasonably believes might have a
Material Adverse Effect.
18.17 OWNERSHIP OF THE BORROWER
ChinaVest ceases to own, beneficially and of record, the percentage of
the issued share capital of the Borrower or the Group (other than the
Corgi Group) held by it as at the date hereof without giving effect to
any reduction in such percentage arising from the exercise by employees
of the Borrower of options granted to them by the Borrower under any
share option plan.
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18.18 FINANCIAL CONDITION OF SHENZHEN HUAXUAN AND DONGGUAN XINDA
18.18.1 The cash balance of each of Shenzhen Huaxuan and Dongguan Xinda
is less then $500,000.
18.18.2 The aggregate of the profits of Shenzhen Huaxuan and Dongguan
Xinda for any Relevant Period accounts for less than 50% of the
Consolidated Profits Before Interest and Tax of the Group.
18.19 ACCELERATION AND CANCELLATION
Upon the occurrence of an Event of Default and at any time thereafter
whilst it is continuing, the Agent shall, if so instructed by an Original
Lender or a Bank or Banks to whom in aggregate at least 51 per cent. of
the Loan is owed, by notice to the Borrower:
18.19.1 declare all or any part of the Advance 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 under the Finance Documents) or declare all or any part
of the Advance to be due and payable on demand of the Agent;
and/or
18.19.2 declare that any undrawn portion of the Facility shall be
cancelled, whereupon the same shall be cancelled and the
Available Commitment of each Bank shall be reduced to zero.
18.20 ADVANCES DUE ON DEMAND
If, pursuant to Clause 18.19 (Acceleration and Cancellation), the Agent
declares all or any part of the Advance to be due and payable on demand
of the Agent, then, and at any time thereafter, the Agent shall, if so
instructed by an Original Lender or a Bank or Banks to whom in aggregate
at least 51 per cent. of the Loan is owed, by notice to the Borrower:
18.20.1 require repayment of all or such part of the Advance on such date
as it may specify in such notice (whereupon the same shall become
due and payable on the date specified together with accrued
interest thereon and any other sums then owed by the Borrower
under the Finance Documents) or withdraw its declaration with
effect from such date as it may specify; and/or
18.20.2 select as the duration of any Interest Period which begins whilst
such declaration remains in effect a period of six months or
less.
19. GUARANTEE AND INDEMNITY
19.1 GUARANTEE
Each Guarantor irrevocably and unconditionally guarantees to each Finance
Party the due and punctual observance and performance of all the terms,
conditions and covenants on the part of the Borrower contained in the
Finance Documents to which the Borrower is a party and agrees to pay from
time to time on demand any and every sum or sums of money which the
Borrower is at any time liable to pay to any Finance
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Party under or pursuant to such Finance Documents and which has become
due and payable but has not been paid at the time such demand is made.
19.2 INDEMNITY
Each Guarantor irrevocably and unconditionally agrees as a primary
obligation to indemnify each Finance Party from time to time on demand
from and against any loss incurred by any Finance Party as a result of
any of the obligations of the Borrower under or pursuant to the Finance
Documents to which the Borrower is a party being or becoming void,
voidable, unenforceable or ineffective as against the Borrower for any
reason whatsoever, whether or not known to any Finance Party or any other
person, the amount of such loss being the amount which the person or
persons suffering it would otherwise have been entitled to recover from
the Borrower.
19.3 ADDITIONAL SECURITY
The obligations of each Guarantor herein contained shall be in addition
to and independent of every other security which any Finance Party may at
any time hold in respect of any of the Borrower's obligations under the
Finance Documents to which the Borrower is a party.
19.4 CONTINUING OBLIGATIONS
The obligations of each Guarantor herein contained shall constitute and
be continuing obligations notwithstanding any settlement of account or
other matter or thing whatsoever and shall not be considered satisfied by
any intermediate payment or satisfaction of all or any of the obligations
of the Borrower under the Finance Documents to which the Borrower is a
party and shall continue in full force and effect until final payment in
full of all amounts owing by the Borrower under such Finance Documents
and total satisfaction of all the Borrower's actual and contingent
obligations under such Finance Documents.
19.5 OBLIGATIONS NOT DISCHARGED
Neither the obligations of either Guarantor herein contained nor the
rights, powers and remedies conferred in respect of either Guarantor upon
any Finance Party by this Agreement or by law shall be discharged,
impaired or otherwise affected by:
19.5.1 the winding-up, dissolution, administration or re-organisation of
the Borrower or any other person or any change in its status,
function, control or ownership;
19.5.2 any of the obligations of the Borrower or any other person under
the Finance Documents or under any other security taken in respect
of any of its obligations thereunder being or becoming illegal,
invalid, unenforceable or ineffective in any respect;
19.5.3 time or other indulgence being granted or agreed to be granted to
the Borrower or any other person in respect of its obligations
under the Finance Documents or under any such other security;
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19.5.4 any amendment to, or any variation, waiver or release of, any
obligation of the Borrower or any other person under the Finance
Documents or under any such other security;
19.5.5 any failure to take, or fully to take, any security contemplated
by the Finance Documents or otherwise agreed to be taken in
respect of the Borrower's obligations under the Finance Documents;
19.5.6 any failure to realise or fully to realise the value of, or any
release, discharge, exchange or substitution of, any security
taken in respect of the Borrower's obligations under the Finance
Documents; or
19.5.7 any other act, event or omission which, but for this Clause 19.5,
might operate to discharge, impair or otherwise affect any of the
obligations of the Guarantor herein contained or any of the
rights, powers or remedies conferred upon any of the Finance
Parties by this Agreement or by law.
19.6 SETTLEMENT CONDITIONAL
Any settlement or discharge between a Guarantor and any of the Finance
Parties shall be conditional upon no security or payment to any Finance
Party by an Obligor or any other person on behalf of an Obligor being
avoided or reduced by virtue of any laws relating to bankruptcy,
insolvency, liquidation or similar laws of general application and, if
any such security or payment is so avoided or reduced, each Finance Party
shall be entitled to recover the value or amount of such security or
payment from a Guarantor subsequently as if such settlement or discharge
had not occurred.
19.7 EXERCISE OF RIGHTS
No Finance Party shall be obliged before exercising any of the rights,
powers or remedies conferred upon them in respect of a Guarantor by this
Agreement or by law:
19.7.1 to make any demand of the Borrower or any Obligor;
19.7.2 to take any action or obtain judgment in any court against the
Borrower or any Obligor;
19.7.3 to make or file any claim or proof in a winding-up or dissolution
of the Borrower or any Obligor; or
19.7.4 to enforce or seek to enforce any other security taken in respect
of any of the obligations of the Borrower or any Obligor under the
Finance Documents.
19.8 DEFERRAL OF GUARANTOR'S RIGHTS
Each Guarantor agrees that, so long as any amounts are or may be owed by
the Borrower under the Finance Documents to which the Borrower is a party
or the Borrower is under any actual or contingent obligations under such
Finance Documents, each Guarantor shall not exercise any rights which
each Guarantor may at any time have by reason of performance by it of its
obligations hereunder:
19.8.1 to be indemnified by the Borrower; and/or
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19.8.2 to claim any contribution from any other guarantor of the
Borrower's obligations hereunder; and/or
19.8.3 to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
hereunder or of any other security taken pursuant to, or in
connection with, this Agreement by all or any of the Finance
Parties.
19.9 SUSPENSE ACCOUNTS
All moneys received, recovered or realised by a Bank by virtue of Clause
19.1 (Guarantee) or Clause 19.2 (Indemnity) may, in that Bank's
discretion, be credited to a suspense or impersonal account and may be
held in such account for so long as such Bank thinks fit pending the
application from time to time (as such Bank may think fit) of such moneys
in or towards the payment and discharge of any amounts owing by an
Obligor to such Bank hereunder.
19.10 JOINT AND SEVERAL LIABILITY
The obligations of each Guarantor hereunder shall be joint and several.
20. FEES
20.1 ARRANGEMENT FEE
The Borrower shall pay to the Agent for the account of the Arrangers the
fees specified in the letter (such letter being of even date herewith)
from the Agent to the Borrower at the times, and in the amounts,
specified in such letter.
20.2 AGENCY FEE
The Borrower shall pay to the Agent for its own account the agency fees
specified in the letter (such letter being of even date herewith) from
the Agent to the Borrower at the times, and in the amounts, specified in
such letter.
21. COSTS AND EXPENSES
21.1 TRANSACTION EXPENSES
The Borrower shall, from time to time on demand of the Agent, reimburse
each of the Agent and each Finance Party for all costs and expenses
(including legal fees) together with any VAT thereon incurred by it in
connection with the negotiation, preparation and execution of the Finance
Documents, any other document referred to in the Finance Documents and
the completion of the transactions therein contemplated.
21.2 PRESERVATION AND ENFORCEMENT OF RIGHTS
The Borrower shall, from time to time on demand of the Agent, reimburse
the Finance Parties for all costs and expenses (including legal fees) on
a full indemnity basis together with any VAT thereon incurred in or in
connection with the preservation and/or enforcement of any of the rights
of the Finance Parties under the Finance Documents and any document
referred to in this Agreement (including, without limitation, any costs
and expenses relating to any investigation as to whether or not an Event
of Default might have occurred or is likely to occur or any steps
necessary or
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desirable in connection with any proposal for remedying or otherwise
resolving an Event of Default or Potential Event of Default).
21.3 STAMP TAXES
The Borrower shall pay all stamp, registration and other taxes to which
the Finance Documents, any other document referred to in this Agreement
or any judgment given in connection therewith is or at any time may be
subject and shall, from time to time on demand of the Agent, indemnify
the Finance Parties against any liabilities, costs, claims and expenses
resulting from any failure to pay or any delay in paying any such tax.
21.4 AMENDMENT COSTS
If an Obligor requests any amendment, waiver or consent then the Borrower
shall, within five Business Days of demand by the Agent, reimburse the
Finance Parties for all costs and expenses (including legal fees)
together with any VAT thereon incurred by such person in responding to or
complying with such request.
21.5 BANKS' LIABILITIES FOR COSTS
If the Borrower fails to perform any of its obligations under this Clause
21, each Bank shall, in the proportion borne by its share of the Loan
(or, if the Advance has not been made, its Available Commitment) to the
amount of the Loan (or, if the Advance has been made, the Available
Facility) for the time being (or, if the Loan has been repaid in full,
immediately prior to the final repayment thereof), indemnify each of the
Agent and the Arrangers against any loss incurred by any of them as a
result of such failure.
22. DEFAULT INTEREST AND BREAK COSTS
22.1 DEFAULT INTEREST PERIODS
If any sum due and payable by an Obligor under any Finance Document is
not paid on the due date therefor in accordance with Clause 25 (Payments)
or if any sum due and payable by an Obligor under any judgment of any
court in connection therewith is not paid on the date of such judgment,
the period beginning on such due date or, as the case may be, the date of
such judgment and ending on the date upon which the obligation of such
Obligor to pay such 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 shall
(except as otherwise provided in this Clause 22) be selected by the
Agent.
22.2 DEFAULT INTEREST
An Unpaid Sum shall bear interest during each Interest Period in respect
thereof at the rate per annum which is three per cent. per annum above
the percentage rate which would apply if such Unpaid Sum had been an
Advance in the amount and currency of such Unpaid Sum and for the same
Interest Period, PROVIDED THAT if such Unpaid Sum relates to the Advance
which became due and payable on a day other than the last day of an
Interest Period relating thereto:
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22.2.1 the first Interest Period applicable to such Unpaid Sum shall be
of a duration equal to the unexpired portion of the current
Interest Period relating to the Advance; and
22.2.2 the percentage rate of interest applicable thereto from time to
time during such period shall be that which exceeds by three per
cent. the rate which would have been applicable to it had it not
so fallen due.
22.3 PAYMENT OF DEFAULT INTEREST
Any interest which shall have accrued under Clause 22.2 (Default
Interest) in respect of an Unpaid Sum shall be due and payable and shall
be paid by the Obligor owing such Unpaid Sum on the last day of each
Interest Period in respect thereof or on such other dates as the Agent
may specify by notice to such Obligor.
22.4 BREAK COSTS
If any Bank or the Agent on its behalf receives or recovers all or any
part of such Bank's share of the Advance or Unpaid Sum otherwise than on
the last day of an Interest Period relating thereto, the Borrower shall
pay to the Agent on demand for account of such Bank an amount equal to
the amount (if any) by which (a) the additional interest which would have
been payable on the amount so received or recovered had it been received
or recovered on the last day of that Interest Period exceeds (b) the
amount of interest which in the opinion of the Agent would have been
payable to the Agent on the last day of that Interest Period in respect
of a dollar deposit equal to the amount so received or recovered placed
by it with a prime bank in London for a period starting on the third
Business Day following the date of such receipt or recovery and ending on
the last day of that Interest Period.
23. BORROWER'S INDEMNITIES
23.1 BORROWER'S INDEMNITY
The Borrower undertakes to indemnify:
23.1.1 each Finance Party against any cost, claim, loss, expense
(including legal fees) or liability together with any VAT
thereon, whether or not reasonably foreseeable, 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 the
Finance Documents;
23.1.2 each Bank against any cost or loss it may suffer under Clause
21.5 (Banks' Liabilities for Costs) or Clause 28.5
(Indemnification);
23.1.3 each Bank against any cost or loss it may suffer or incur as a
result of its funding or making arrangements to fund its portion
of the Advance requested by the Borrower but not made by reason
of the operation of any one or more of the provisions hereof; and
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23.1.4 each Bank against any cost or loss it may suffer or any reduction
in its return on capital that it would have been able to obtain
but for entering into or performing its obligations under this
Agreement as a result of any minimum reserve requirements imposed
on it by the European Central Bank in relation to an Advance or
funding an Advance.
23.2 CURRENCY INDEMNITY
If any sum (a "SUM") due from an Obligor under any Finance Document or
any order, judgment given or made in relation hereto has to be converted
from the currency (the "FIRST CURRENCY") in which such Sum is payable
into another currency (the "SECOND CURRENCY") for the purpose of:
23.2.1 making or filing a claim or proof against such Obligor;
23.2.2 obtaining or enforcing an order, judgment in any court, or other
tribunal,
the Borrower shall indemnify each person to whom such Sum is due from and
against any loss suffered or incurred as a result of any discrepancy
between (a) the rate of exchange used for such purpose to convert such
Sum from the First Currency into the Second Currency and (b) the rate or
rates of exchange available to such person at the time of receipt of such
Sum.
24. CURRENCY OF ACCOUNT AND PAYMENT
The dollar is the currency of account and payment for each and every sum
at any time due from an Obligor hereunder, PROVIDED THAT:
24.1.1 each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred; and
24.1.2 each payment pursuant to Clause 10.2 (Tax Indemnity), Clause 12.1
(Increased Costs) or Clause 23.1 (Borrower's Indemnity) shall be
made in the currency specified by the party claiming thereunder.
25. PAYMENTS
25.1 NOTIFICATION OF PAYMENTS
Without prejudice to the liability of each party hereto promptly to pay
each amount owing by it hereunder on the due date therefor, whenever a
payment is expected to be made by any of the parties hereto, the Agent
shall, at least two Business Days prior to the expected date for such
payment, notify all the parties hereto of the amount, currency and timing
of such payment and the identity of the party liable to make such
payment.
25.2 PAYMENTS TO THE AGENT
On each date on which any Finance Document requires an amount to be paid
by an Obligor or a Bank, such Obligor or, as the case may be, such Bank
shall make the same available to the Agent for value on the due date at
such time and in such funds and to such account with such bank as the
Agent shall specify from time to time.
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25.3 PAYMENTS BY THE AGENT
25.3.1 Save as otherwise provided herein, each payment received by the
Agent pursuant to Clause 25.2 (Payments to the Agent) shall be
made available by the Agent to the person entitled to receive
such payment in accordance with this Agreement (in the case of a
Bank, for the account of its Facility Office) for value the same
day by transfer to such account of such person with such bank in
New York City as such person shall have previously notified to
the Agent.
25.3.2 A payment will be deemed to have been made by the Agent on the
date on which it is required to be made under this Agreement if
the Agent has, on or before that date, taken steps to make that
payment in accordance with the regulations or operating
procedures of the clearing or settlement system used by the Agent
in order to make the payment.
25.4 NO SET-OFF
All payments required to be made by an Obligor under any Finance
Documents 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.
25.5 CLAWBACK
Where a sum is to be paid hereunder to the Agent for account of another
person, the Agent shall not be obliged to make the same available to that
other person until it has been able to establish to its satisfaction that
it has actually received such sum, but if it does so and it proves to be
the case that it had not actually received such sum, then the person to
whom such sum was so made available shall on request refund the same to
the Agent together with an amount sufficient to indemnify the Agent
against any cost or loss it may have suffered or incurred by reason of
its having paid out such sum prior to its having received such sum.
25.6 PARTIAL PAYMENTS
If and whenever a payment is made by an Obligor under any Finance
Documents the Agent may apply the amount received towards the obligations
of the Obligors under this Agreement in the following order:
25.6.1 FIRST, in or towards payment of any unpaid costs and expenses of
each of the Agent and the Arrangers;
25.6.2 SECONDLY, in or towards payment pro rata of any accrued interest
due but unpaid;
25.6.3 THIRDLY, in or towards payment pro rata of any principal due but
unpaid; and
25.6.4 FOURTHLY, in or towards payment pro rata of any other sum due
but unpaid.
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25.7 VARIATION OF PARTIAL PAYMENTS
The order of payments set out in Clause 25.6 (Partial Payments) shall
override any appropriation made by the Obligor to which the partial
payment relates but the order set out in sub-clauses 25.6.2, 25.6.3 and
25.6.4 of Clause 25.6 (Partial Payments) may be varied if agreed by all
the Banks.
25.8 BUSINESS DAYS
25.8.1 Any payment which is due to be made on a day that is not a
Business Day shall be made on the next Business Day in the same
calendar month (if there is one) or the preceding Business Day
(if there is not).
25.8.2 During any extension of the due date for payment of any principal
or an Unpaid Sum under this Agreement interest is payable on the
principal at the rate payable on the original due date.
26. SET-OFF
26.1 CONTRACTUAL SET-OFF
Each Obligor authorises each Bank to apply any credit balance to which
such Obligor is entitled on any account of such Obligor with such Bank in
satisfaction of any sum due and payable from such Obligor to such Bank
under the Finance Documents but unpaid. For this purpose, each Bank 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.
26.2 SET-OFF NOT MANDATORY
No Bank shall be obliged to exercise any right given to it by Clause
26.1 (Contractual Set-off).
27. SHARING
27.1 PAYMENTS TO BANKS
If a Bank (a "RECOVERING BANK") applies any receipt or recovery from an
Obligor to a payment due under this Agreement and such amount is received
or recovered other than in accordance with Clause 25 (Payments), then
such Recovering Bank shall:
27.1.1 notify the Agent of such receipt or recovery;
27.1.2 at the request of the Agent, promptly pay to the Agent an amount
(the "SHARING PAYMENT") equal to such receipt or recovery less
any amount which the Agent determines may be retained by such
Recovering Bank as its share of any payment to be made in
accordance with Clause 25.6 (Partial Payments).
27.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other
than the Recovering Bank) in accordance with Clause 25.6 (Partial
Payments).
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27.3 RECOVERING BANK'S RIGHTS
The Recovering Bank will be subrogated into the rights of the parties
which have shared in a redistribution pursuant to Clause 27.2
(Redistribution of Payments) in respect of the Sharing Payment (and the
relevant Obligor shall be liable to the Recovering Bank in an amount
equal to the Sharing Payment).
27.4 REPAYABLE RECOVERIES
If any part of the Sharing Payment received or recovered by a Recovering
Bank becomes repayable and is repaid by such Recovering Bank, then:
27.4.1 each party which has received a share of such Sharing Payment
pursuant to Clause 27.2 (Redistribution of Payments) shall, upon
request of the Agent, pay to the Agent for account of such
Recovering Bank an amount equal to its share of such Sharing
Payment; and
27.4.2 such Recovering Bank's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be
liable to the reimbursing party for the amount so reimbursed.
27.5 EXCEPTION
This Clause 27 shall not apply if the Recovering Bank would not, after
making any payment pursuant hereto, have a valid and enforceable claim
against the relevant Obligor.
27.6 RECOVERIES THROUGH LEGAL PROCEEDINGS
If any Bank intends to commence any action in any court it shall give
prior notice to the Agent and the other Banks. If any Bank shall commence
any action in any court to enforce its rights hereunder and, as a result
thereof or in connection therewith, receives any amount, then such Bank
shall not be required to share any portion of such amount with any Bank
which has the legal right to, but does not, join in such action or
commence and diligently prosecute a separate action to enforce its rights
in another court.
28. THE AGENT, THE ARRANGERS AND THE BANKS
28.1 APPOINTMENT OF THE AGENT
Each of the Banks and the Arrangers hereby appoints the Agent to act as:
28.1.1 its agent in connection with the Finance Documents (other than
the Security Documents);
28.1.2 its trustee, for the benefit of the Finance Parties, of the
assets, rights, benefits, interests, undertakings and claims the
subject of, or assigned, charged or mortgaged or granted to the
Agent by way of security under or pursuant to, the Security
Documents and all sums and proceeds received, receivable or
recovered by the Agent by way of security under or pursuant to
the Security Documents or upon the enforcement thereof (except
for any such sums or
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proceeds received, receivable or recovered by the Agent for its
own account); and
28.1.3 its agent in connection with any matter, asset, right, benefit,
interest, undertaking or claim under or in connection with the
Security Documents which is or shall be incapable of being held
on trust (or is not so held pursuant to sub-clause 28.1.2) for
the Finance Parties,
provided that the perpetuity period for the trust referred to in
sub-clause 28.1.2 and any other trust(s) created under any Finance
Document shall be 80 years from the date of this Agreement. Each of the
Banks and the Arrangers hereby authorises the Agent to exercise such
rights, powers, authorities and discretions as are specifically delegated
to the Agent by the terms hereof together with all such rights, powers,
authorities and discretions as are reasonably incidental thereto. For the
avoidance of doubt, the Agent does not and shall not act as agent or
trustee for any Obligor or any other person (other than the Banks and the
Arrangers) under or in connection with the Finance Documents or any of
them.
28.2 AGENT'S DISCRETIONS
The Agent may:
28.2.1 assume, unless it has, in its capacity as agent for the Banks,
received notice to the contrary from any other party hereto,
that (a) any representation made or deemed to be made by an
Obligor in connection with the Finance Documents is true, (b) no
Event of Default or Potential Event of Default has occurred, (c)
no Obligor is in breach of or default under its obligations
under the Finance Documents and (d) any right, power, authority
or discretion vested herein upon an Instructing Group, the Banks
or any other person or group of persons has not been exercised;
28.2.2 assume that (a) the Facility Office of each Bank is that notified
to it by such Bank in writing and (b) the information provided by
each Bank pursuant to Clause 32 (Notices), Clause 28.13 (Banks'
Mandatory Cost Details) and Schedule 6 (Mandatory Costs) is true
and correct in all respects until it has received from such Bank
notices of a change to its Facility Office or any such
information and act upon any such notice until the same is
superseded by a further such notice;
28.2.3 engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or services
may to it seem necessary, expedient or desirable and rely upon
any advice so obtained;
28.2.4 rely as to any matters of fact which might reasonably be expected
to be within the knowledge of an Obligor upon a certificate
signed by or on behalf of such Obligor;
28.2.5 rely upon any communication or document believed by it to be
genuine;
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28.2.6 refrain from exercising any right, power or discretion vested in
it as agent under any Finance Document unless and until
instructed by an Instructing Group as to whether or not such
right, power or discretion is to be exercised and, if it is to be
exercised, as to the manner in which it should be exercised; and
28.2.7 refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or proceeding arising
out of or in connection with any Finance Document until it shall
have received such security as it may require (whether by way of
payment in advance or otherwise) for all costs, claims, losses,
expenses (including legal fees) and liabilities together with any
VAT thereon which it will or may expend or incur in complying
with such instructions.
28.3 AGENT'S OBLIGATIONS
The Agent shall:
28.3.1 promptly inform each Bank of the contents of any notice or
document received by it in its capacity as Agent from an Obligor
under the Finance Documents;
28.3.2 promptly notify each Bank of the occurrence of any Event of
Default or any default by an Obligor in the due performance of or
compliance with its obligations under the Finance Documents of
which the Agent has notice from any other party hereto;
28.3.3 save as otherwise provided herein, act as agent and/or trustee
under the Finance Documents in accordance with any instructions
given to it by an Instructing Group, which instructions shall be
binding on the Arrangers and the Banks; and
28.3.4 if so instructed by an Instructing Group, refrain from exercising
any right, power or discretion vested in it as agent and/or
trustee under any Finance Document.
The Agent's duties under the Finance Documents are solely mechanical and
administrative in nature.
28.4 EXCLUDED OBLIGATIONS
Notwithstanding anything to the contrary expressed or implied herein,
neither the Agent nor any of the Arrangers shall:
28.4.1 be bound to enquire as to (a) whether or not any representation
made or deemed to be made by an Obligor in connection with the
Finance Documents is true, (b) the occurrence or otherwise of any
Event of Default or Potential Event of Default, (c) the
performance by an Obligor of its obligations under the Finance
Documents or (d) any breach of or default by an Obligor of or
under its obligations under the Finance Documents;
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28.4.2 be bound to account to any Bank for any sum or the profit
element of any sum received by it for its own account;
28.4.3 be bound to disclose to any other person any information relating
to any member of the Group if (a) such person, on providing such
information, expressly stated to the Agent or, as the case may
be, the Arrangers, that such information was confidential or (b)
such disclosure would or might in its opinion constitute a breach
of any law or be otherwise actionable at the suit of any person;
28.4.4 be under any obligations other than those for which express
provision is made herein; or
28.4.5 be or be deemed to be a fiduciary for any other party hereto.
28.5 INDEMNIFICATION
Each Bank shall, from time to time on demand by the Agent, indemnify the
Agent, in the proportion its share of the Loan (or, if the Advance has
not been made, its Available Commitment) bears to the amount of the Loan
(or, if the Advance has been made, the Available Facility) at the time of
such demand (or, if the Loan has then been repaid in full, immediately
prior to the final repayment thereof), against any and all costs, claims,
losses, expenses (including legal fees) and liabilities together with any
VAT thereon which the Agent may incur, otherwise than by reason of its
own gross negligence or wilful misconduct, in acting in its capacity as
agent hereunder (other than any which have been reimbursed by the
Borrower pursuant to Clause 23.1 (Borrower's Indemnity)).
28.6 EXCLUSION OF LIABILITIES
Except in the case of gross negligence or wilful default, none of the
Agent and the Arrangers accepts any responsibility:
28.6.1 for the adequacy, accuracy and/or completeness of any
information supplied by the Agent or the Arrangers, by an
Obligor or by any other person in connection with the Finance
Documents, the transactions therein contemplated or any other
agreement, arrangement or document entered into, made or
executed in anticipation of, pursuant to or in connection with
the Finance Documents;
28.6.2 for the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with the Finance
Documents; or
28.6.3 for the exercise of, or the failure to exercise, any judgement,
discretion or power given to any of them by or in connection with
the Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
pursuant to or in connection with the Finance Documents.
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Accordingly, none of the Agent and the Arrangers shall be under any
liability in respect of such matters, save in the case of gross
negligence or wilful misconduct.
28.7 NO ACTIONS
Each of the Banks agrees that it will not assert or seek to assert
against any director, officer or employee of the Agent or any Arranger
any claim it might have against any of them in respect of the matters
referred to in Clause 28.6 (Exclusion of Liabilities).
28.8 BUSINESS WITH THE GROUP
The Agent and each of the Arrangers may accept deposits from, lend money
to and generally engage in any kind of banking or other business with any
member of the Group.
28.9 RESIGNATION
The Agent may resign its appointment hereunder at any time without
assigning any reason therefor by giving not less than thirty days' prior
notice to that effect to each of the other parties hereto, PROVIDED THAT
no such resignation shall be effective until a successor for the Agent is
appointed in accordance with the succeeding provisions of this Clause 28.
28.10 SUCCESSOR AGENT
If the Agent gives notice of its resignation pursuant to Clause 28.9
(Resignation), then any reputable and experienced bank or other financial
institution may be appointed as a successor to the Agent by an
Instructing Group during the period of such notice but, if no such
successor is so appointed, the Agent may appoint such a successor itself.
28.11 RIGHTS AND OBLIGATIONS
If a successor to the Agent is appointed under the provisions of Clause
28.10 (Successor Agent), then (a) the retiring Agent shall be discharged
from any further obligation hereunder but shall remain entitled to the
benefit of the provisions of this Clause 28 and (b) its successor and
each of the other parties hereto shall have the same rights and
obligations amongst themselves as they would have had if such successor
had been a party hereto.
28.12 OWN RESPONSIBILITY
It is understood and agreed by each Bank that at all times it has itself
been, and will continue to be, solely responsible for making its own
independent appraisal of and investigation into all risks arising under
or in connection with the Finance Documents including, but not limited
to:
28.12.1 the financial condition, creditworthiness, condition, affairs,
status and nature of each member of the Group;
28.12.2 the legality, validity, effectiveness, adequacy and
enforceability of the Finance Documents and any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with the Finance
Documents;
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28.12.3 whether such Bank has recourse, and the nature and extent of
that recourse, against an Obligor or any other person or any of
their respective assets under or in connection with the Finance
Documents, the transactions therein contemplated or any other
agreement, arrangement or document entered into, made or
executed in anticipation of, pursuant to or in connection with
the Finance Documents; and
28.12.4 the adequacy, accuracy and/or completeness of information
provided by the Agent or the Arrangers, an Obligor, or by any
other person in connection with the Finance Documents, the
transactions contemplated herein or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with the Finance
Documents.
Accordingly, each Bank acknowledges to the Agent and the Arrangers that
it has not relied on and will not hereafter rely on the Agent and the
Arrangers or any of them in respect of any of these matters.
28.13 BANKS' MANDATORY COST DETAILS
Each Bank will supply the Agent with such information and in such detail
as the Agent may require in order to calculate the Mandatory Cost Rate in
accordance with Schedule 6 (Mandatory Costs).
28.14 AGENCY DIVISION SEPARATE
In acting as agent hereunder for the Banks, the Agent shall be regarded
as acting through its agency division which shall be treated as a
separate entity from any other of its divisions or departments and,
notwithstanding the foregoing provisions of this Clause 28, any
information received by some other division or department of the Agent
may be treated as confidential and shall not be regarded as having been
given to the Agent's agency division.
28.15 ADDITIONAL POWERS
Each of the Banks and the Arrangers agrees that the Agent shall be
entitled to:
28.15.1 do any act or thing which in its absolute discretion (in the
absence of any instructions from any Bank as to the doing of such
act or thing) it deems advisable for the protection and benefit
of all the Finance Parties;
28.15.2 release any property which is subject to any security from such
security upon a disposal of such property in accordance with or
pursuant to the terms of the Finance Documents;
28.15.3 place any of the Finance Documents and any other instruments,
documents or deeds delivered to it pursuant to or in connection
with any of the Finance Documents for the time being in its
possession in any safe deposit, safe or receptacle selected by
it or with any bank, any company whose business includes
undertaking the safe custody of documents or any firm of lawyers
of good repute and shall not be responsible for any loss thereby
incurred;
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28.15.4 delegate by power of attorney or otherwise to any person or
persons, or fluctuating body of persons, all or any of the
rights, powers, authorities and discretion vested in it by any
Finance Document and such delegation may be made upon such terms
(including the power to sub-delegate) and subject to such
conditions as it may think fit and it shall not be bound to
supervise, or be in any way responsible for any loss incurred by
reason of any act, omission, misconduct or default on the part
of, any such delegate or sub-delegate;
28.15.5 refrain from doing anything which would or might in its opinion
be contrary to any relevant law of any jurisdiction or any
relevant directive or regulation of any agency of any state or
which would or might otherwise render it liable to any person,
and may do anything which is, in its opinion, necessary to comply
with any such law, directive or regulation; and
28.15.6 accept without enquiry, requisition or objection such right and
title as each of the parties to any Security Document may have to
any property (or any part thereof) which is the subject matter of
such Security Document and shall not be bound or concerned to
investigate or make any enquiry into the right or title of such
party to such property (or any part thereof) or, without
prejudice to the foregoing, require such party to remedy any
defect in its right or title as aforesaid.
For the avoidance of doubt, the rights, powers and discretions conferred
on the Agent in this Clause 28.15 (Additional Powers) shall be without
prejudice to and shall not restrict any right, power or discretion
conferred by applicable law or regulation or by any other provisions
hereof on the Agent in its capacity as agent and/or trustee.
29. ASSIGNMENTS AND TRANSFERS
29.1 BINDING AGREEMENT
This Agreement shall be binding upon and enure to the benefit of each
party hereto and its or any subsequent successors and Transferees.
29.2 NO ASSIGNMENTS AND TRANSFERS BY THE OBLIGORS
No Obligor shall be entitled to assign or transfer all or any of its
rights, benefits and obligations under the Finance Documents.
29.3 ASSIGNMENTS AND TRANSFERS BY BANKS
29.3.1 Any Bank may, at any time:
assign all or any of its rights and benefits under this Agreement provided that
it shall at the same time assign to the same assignee a proportionate share of
the rights and benefits held by it (in its capacity as Bank) under or in
connection with the other Finance Documents; or
or transfer in accordance with Clause 29.5 (Transfers by Banks) all or any of
its rights, benefits and obligations under this Agreement to a bank or financial
institution provided that it shall at the same time assign to such bank or
financial institution a proportionate share of the
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rights and benefits held by it (in its capacity as Bank) under or in connection
with the other Finance Documents.
29.3.2 The consent of the Borrower is required for an assignment or
transfer by a Bank unless the assignment or transfer is to:
(a) another Bank; or
(b) any subsidiary or holding company (or to any subsidiary of
any holding company) of the transferring Bank.
29.3.3 The Borrower's consent must not be (a) unreasonably delayed or
withheld or (b) withheld solely because the assignment or
transfer may result in an increase to the Mandatory Cost Rate.
29.4 ASSIGNMENTS BY BANKS
If any Bank assigns all or any of its rights and benefits hereunder in
accordance with Clause 29.3 (Assignments and Transfers by Banks), then,
unless and until the assignee has delivered a notice to the Agent
confirming in favour of the Agent, the Arrangers and the other Banks that
it shall be under the same obligations towards each of them as it would
have been under if it had been an original party hereto as a Bank
(whereupon such assignee shall become a party hereto as a "Bank"), the
Agent, the Arrangers and the other Banks shall not be obliged to
recognise such assignee as having the rights against each of them which
it would have had if it had been such a party hereto.
29.5 TRANSFERS BY BANKS
If any Bank wishes to transfer all or any of its rights, benefits and/or
obligations under this Agreement as contemplated in Clause 29.3
(Assignments and Transfers by Banks), then such transfer may be effected
by the delivery to the Agent of a duly completed Transfer Certificate
executed by such Bank and the relevant Transferee in which event, on the
later of the Transfer Date specified in such Transfer Certificate and the
fifth Business Day after (or such earlier Business Day endorsed by the
Agent on such Transfer Certificate falling on or after) the date of
delivery of such Transfer Certificate to the Agent:
29.5.1 to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer by novation its rights, benefits and
obligations hereunder, each of the Borrower and the Guarantors
and such Bank shall be released from further obligations towards
one another hereunder and their respective rights against one
another hereunder shall be cancelled (such rights and obligations
being referred to in this Clause 29.5 as "DISCHARGED RIGHTS AND
OBLIGATIONS");
29.5.2 each of the Borrower and the Guarantors and the Transferee party
thereto shall assume obligations towards one another and/or
acquire rights against one another which differ from such
discharged rights and obligations only insofar as the Borrower,
the Guarantors and such Transferee have assumed and/or acquired
the same in place of the Borrower, the Guarantors and such Bank;
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29.5.3 the Agent, the Arrangers, such Transferee and the other Banks
shall acquire the same rights and benefits and assume the same
obligations between themselves as they would have acquired and
assumed had such Transferee been an original party hereto as a
Bank with the rights, benefits and/or obligations acquired or
assumed by it as a result of such transfer and to that extent the
Agent, the Arrangers and the relevant Bank shall each be released
from further obligations to each other hereunder; and
29.5.4 such Transferee shall become a party hereto as a "Bank".
29.6 ASSIGNMENT AND TRANSFER FEES
On the date upon which an assignment takes effect pursuant to Clause 29.4
(Assignments by Banks) or a transfer takes effect pursuant to Clause 29.5
(Transfers by Banks) the relevant assignee or Transferee shall pay to the
Agent for its own account a fee of $500.
29.7 DISCLOSURE OF INFORMATION
Any Bank may disclose to any person:
29.7.1 to (or through) whom such Bank assigns or transfers (or may
potentially assign or transfer) all or any of its rights,
benefits and obligations hereunder;
29.7.2 with (or through) whom such Bank enters into (or may potentially
enter into) any sub-participation in relation to, or any other
transaction under which payments are to be made by reference to,
this Agreement or any Obligor; or
29.7.3 to whom information may be required to be disclosed by any
applicable law,
such information about any Obligor or the Group and the Finance Documents
as such Bank shall consider appropriate.
29.8 NOTIFICATION
The Agent shall within fourteen days of receiving a Transfer Certificate
notify the Borrower and the other Banks of any assignment or transfer
completed pursuant to this Clause 29.
30. CALCULATIONS AND EVIDENCE OF DEBT
30.1 BASIS OF ACCRUAL
Interest, commitment commission and fees shall accrue from day to day and
shall be calculated on the basis of a year of 360 days (or, in any case
where market practice differs, in accordance with market practice) and
the actual number of days elapsed.
30.2 QUOTATIONS
If on any occasion a Reference Bank or Bank fails to supply the Agent
with a quotation required of it under the foregoing provisions of this
Agreement, the rate for which such quotation was required shall be
determined from those quotations which are supplied to the Agent,
PROVIDED THAT, in relation to determining LIBOR, this Clause 30.2 shall
not apply if only one Reference Bank supplies a quotation.
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30.3 EVIDENCE OF DEBT
Each Bank shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time lent by and owing to it
hereunder.
30.4 CONTROL ACCOUNTS
The Agent shall maintain on its books a control account or accounts in
which shall be recorded (a) the amount of any Advance or Unpaid Sum and
each Bank's share therein, (b) the amount of all principal, interest and
other sums due or to become due from an Obligor and each Bank's share
therein and (c) the amount of any sum received or recovered by the Agent
hereunder and each Bank's share therein.
30.5 PRIMA FACIE EVIDENCE
In any legal action or proceeding arising out of or in connection with
this Agreement, the entries made in the accounts maintained pursuant to
Clause 30.3 (Evidence of Debt) and Clause 30.4 (Control Accounts) shall
be prima facie evidence of the existence and amounts of the specified
obligations of the Obligors.
30.6 CERTIFICATES OF BANKS
A certificate of a Bank as to (a) the amount by which a sum payable to it
hereunder is to be increased under Clause 10.1 (Tax Gross-up), (b) the
amount for the time being required to indemnify it against any such cost,
payment or liability as is mentioned in Clause 10.2 (Tax Indemnity),
Clause 12.1 (Increased Costs) or Clause 23.1 (Borrower's Indemnity)
shall, in the absence of manifest error, be prima facie evidence of the
existence and amounts of the specified obligations of the Obligors.
30.7 AGENT'S CERTIFICATES
A certificate of the Agent as to the amount at any time due from the
Borrower hereunder or the amount which, but for any of the obligations of
the Borrower hereunder being or becoming void, voidable, unenforceable or
ineffective, at any time would have been due from the Borrower hereunder
shall, in the absence of manifest error, be conclusive for the purposes
of Clause 19 (Guarantee and Indemnity).
31. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
31.1 REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents 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.
31.2 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.
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32. NOTICES
32.1 COMMUNICATIONS IN WRITING
Each communication to be made under the Finance Documents shall be made
in writing and, unless otherwise stated, shall be made by fax or letter.
32.2 ADDRESSES
Any communication or document to be made or delivered pursuant to the
Finance Documents shall (unless the recipient of such communication or
document has, by fifteen days' written notice to the Agent, specified
another address or fax number) be made or delivered to the address or fax
number:
32.2.1 in the case of the Obligors and the Agent, identified with its
name below; and
32.2.2 in the case of each Bank, notified in writing to the Agent prior
to the date hereof (or, in the case of a Transferee, at the end
of the Transfer Certificate to which it is a party as Transferee)
PROVIDED THAT not more than one address may be specified by each party
pursuant to this Clause 32.2 at any time.
32.3 DELIVERY
Any communication or document to be made or delivered by one person to
another pursuant to this Agreement shall:
32.3.1 if by way of fax, be deemed to have been received when
transmission has been completed; and
32.3.2 if by way of letter, be deemed to have been delivered when left
at the relevant address or, as the case may be, ten days after
being deposited in the post postage prepaid in an envelope
addressed to it at such address,
PROVIDED THAT any communication or document to be made or delivered to
the Agent shall be effective only when received by its agency division
and then only if the same is expressly marked for the attention of the
department or officer identified with the Agent's signature below (or
such other department or officer as the Agent shall from time to time
specify for this purpose).
32.4 NOTIFICATION OF CHANGES
Promptly upon receipt of notification of a change of address, Facility
Office or fax number pursuant to Clause 32.2 (Addresses) or upon changing
its own address, Facility Office or fax number the Agent shall notify the
other parties hereto of such change.
32.5 ENGLISH LANGUAGE
Each communication and document made or delivered by one party to another
pursuant to this Agreement shall be in the English language or
accompanied by a translation thereof into English certified (by an
officer of the person making or delivering the same) as being a true and
accurate translation thereof.
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33. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
34. AMENDMENTS
34.1 AMENDMENTS
The Agent, if it has the prior consent of an Instructing Group, and the
Obligors may from time to time agree in writing to amend this Agreement
or to waive, prospectively or retrospectively, any of the requirements of
this Agreement and any amendments or waivers so agreed shall be binding
on all the Finance Parties, PROVIDED THAT no such waiver or amendment
shall subject any party hereto to any new or additional obligations
without the consent of such party.
34.2 AMENDMENTS REQUIRING THE CONSENT OF ALL THE BANKS
An amendment or waiver which relates to:
34.2.1 Clause 27 (Sharing) or this Clause 34;
34.2.2 a change in the principal amount of or currency of the Advance,
or deferral of any Repayment Date;
34.2.3 a change in the Margin, the amount or currency of any payment of
interest, fees or any other amount payable hereunder to any
Finance Party or deferral of the date for payment thereof;
34.2.4 Clause 16 (Financial Condition) or Clause 17.7 (Negative Pledge);
34.2.5 the conditions set out in sub-clause 3.1.5 of Clause 3.1
(Drawdown Conditions) if an Event of Default or Potential Event
of Default which relates to a Repeated Representation, Clause 16
(Financial Condition) or Clause 17.7 (Negative Pledge) is
continuing;
34.2.6 the definition of Event of Default, Instructing Group, Permitted
Encumbrance, Permitted Indebtedness, Potential Event of Default,
Availability Period, Encumbrance or Financial Indebtedness for
Borrowed Money;
34.2.7 Clause 19 (Guarantee and Indemnity); or
34.2.8 any provision which contemplates the need for the consent or
approval of all the Banks,
shall not be made without the prior consent of all the Banks.
34.3 EXCEPTIONS
Notwithstanding any other provisions hereof, the Agent shall not be
obliged to agree to any such amendment or waiver if the same would:
34.3.1 amend or waive this Clause 34, Clause 21 (Costs and Expenses) or
Clause 28 (The Agent, the Arrangers and the Banks); or
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34.3.2 otherwise amend or waive any of the Agent's rights hereunder or
subject the Agent or the Arrangers to any additional obligations
hereunder.
35. GOVERNING LAW
This Agreement is governed by and construed in accordance with the laws
of Hong Kong.
36. JURISDICTION
36.1 HONG KONG COURTS
The courts of Hong Kong have exclusive jurisdiction to settle any dispute
(a "DISPUTE") arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or termination of
this Agreement or the consequences of its nullity).
36.2 CONVENIENT FORUM
The parties agree that the courts of Hong Kong are the most appropriate
and convenient courts to settle Disputes between them and, accordingly,
that they will not argue to the contrary.
36.3 NON-EXCLUSIVE JURISDICTION
This Clause 36 is for the benefit of the Finance Parties only. As a
result and notwithstanding Clause 36.1 (Hong Kong Courts), it does not
prevent any Finance Party from taking proceedings relating to a Dispute
("PROCEEDINGS") in any other courts with jurisdiction. To the extent
allowed by law, the Finance Parties may take concurrent Proceedings in
any number of jurisdictions.
36.4 SERVICE OF PROCESS
Xxx Xxxx Holdings agrees that the documents which start any Proceedings
and any other documents required to be served in relation to those
Proceedings may be served on it on the Borrower at Xxxx X&X, 00/X, Xxxxx
0, Xxx Ping Industrial Centre, 57 Xxxx Xxx Road, Tai Po, New Territories,
Hong Kong, or, if different, its registered office.
If the appointment of the person mentioned in this Clause 36.4 ceases to
be effective, Xxx Xxxx Holdings shall immediately appoint another person
in Hong Kong to accept service of process on its behalf in Hong Kong. If
Xxx Xxxx fails to do so (and such failure continues for a period of not
less than fourteen days), the Agent shall be entitled to appoint such a
person by notice to Xxx Xxxx. Nothing contained herein shall restrict the
right to serve process in any other manner allowed by law. This Clause
36.4 applies to Proceedings in Hong Kong and to Proceedings elsewhere.
AS WITNESS the hands of the duly authorised representatives of the parties
hereto the day and year first before written.
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SCHEDULE 1
THE BANKS
BANK COMMITMENT ($)
ABN AMRO Bank N.V. 2,500,000
Cooperatieve Centrale Raiffeisen- 1,500,000
Xxxxxxxxxxxxxx X.X., Xxxx Xxxx Xxxxxx
XXX Xxxx X.X., Xxxx Xxxx Branch 2,500,000
Standard Chartered Bank 2,500,000
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SCHEDULE 2
FORM OF TRANSFER CERTIFICATE
To: [ ]
TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied, novated or
supplemented, the "Facility Agreement") dated [ ] 2001 whereby a US$9,000,000
term loan facility was made available to Zindart Limited as borrower by a group
of banks on whose behalf ABN AMRO Bank, N.V., Hong Kong Branch acted as agent in
connection therewith.
1. Terms defined in the Facility Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Bank, Transferee,
Bank's Participation and Amount Transferred are defined in the schedule
hereto.
2. The Bank confirms that the Bank's Participation is an accurate summary of
its participation in the Facility Agreement and requests the Transferee
to accept and procure the transfer by novation to the Transferee of a
percentage of the Bank's Participation (equal to the percentage that the
Amount Transferred is of the aggregate of the component amounts (as set
out in the schedule hereto) of the Bank's Participation (the "Transferred
Percentage")) by counter-signing and delivering this Transfer Certificate
to the Agent at its address for the service of notices specified in the
Facility Agreement. The Bank assigns, subject to the aforementioned
acceptance by the Transferee, a proportion of the rights and benefits
held by the Bank (in its capacity as such) under or in connection with
the Finance Documents (other than the Facility Agreement) which
proportion shall be equal to the Transferred Percentage.
3. The Transferee hereby requests the Agent to accept this Transfer
Certificate as being delivered to the Agent pursuant to and for the
purposes of Clause 29.5 (Transfers by Banks) of the Facility Agreement so
as to take effect in accordance with the terms thereof on the Transfer
Date or on such later date as may be determined in accordance with the
terms thereof.
4. The Transferee confirms that it has received a copy of the Facility
Agreement together with such other information as it has required in
connection with this transaction and that it has not relied and will not
hereafter rely on the Bank to check or enquire on its behalf into the
legality, validity, effectiveness, adequacy, accuracy or completeness of
any such information and further agrees that it has not relied and will
not rely on the Bank to assess or keep under review on its behalf the
financial condition, creditworthiness, condition, affairs, status or
nature of the Obligors.
5. The Transferee hereby undertakes with the Bank and each of the other
parties to the Facility Agreement that it will perform in accordance with
their terms all those obligations which by the terms of the Facility
Agreement will be assumed by it after
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delivery of this Transfer Certificate to the Agent and satisfaction of
the conditions (if any) subject to which this Transfer Certificate is
expressed to take effect.
6. The Bank makes no representation or warranty and assumes no
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Finance Documents or any document
relating thereto and assumes no responsibility for the financial
condition of the Obligors or for the performance and observance by the
Obligors of any of its obligations under the Finance Documents or any
document relating thereto and any and all such conditions and warranties,
whether express or implied by law or otherwise, are hereby excluded.
7. The Bank hereby gives notice that nothing herein or in the Facility
Agreement (or any document relating thereto) shall oblige the Bank to (a)
accept a re-transfer from the Transferee of the whole or any part of its
rights, benefits and/or obligations under the Finance Documents
transferred pursuant hereto or (b) support any losses directly or
indirectly sustained or incurred by the Transferee for any reason
whatsoever including the non-performance by an Obligor or any other party
to the Finance Documents (or any document relating thereto) of its
obligations under any such document. The Transferee hereby acknowledges
the absence of any such obligation as is referred to in (a) or (b).
8. This Transfer Certificate and the rights, benefits and obligations of the
parties hereunder shall be governed by and construed in accordance with
Hong Kong law.
THE SCHEDULE
1. Bank:
2. Transferee:
3. Transfer Date:
4. Bank's Participation:
Bank's Available Commitment* Bank's Portion of the Loan
5. Amount Transferred: Advances
[Transferor Bank] [Transferee Bank]
By: By:
Date: Date:
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ADMINISTRATIVE DETAILS OF TRANSFEREE
Address:
Contact Name:
Account for Payments:
Telex:
Fax:
Telephone:
-----------------------------------------------------------------------------
* Details of the Bank's Available Commitment should not be completed after the
last day of the Availability Period
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SCHEDULE 3
CONDITIONS PRECEDENT
1. In relation to each Obligor:
(a) a copy, certified as at the date of this Agreement a true and
up-to-date copy by an Authorised Signatory of such Obligor, of the
constitutional documents of such Obligor;
a copy, certified as at the date of this Agreement a true and up-to-date
copy by an Authorised Signatory of such Obligor, of a board resolution of
such Obligor approving the execution, delivery and performance of the
Finance Documents to which it is a party and the terms and conditions
thereof and authorising a named person or persons to sign such Finance
Documents and any documents to be delivered by such Obligor pursuant
thereto; and
a certificate of an Authorised Signatory of such Obligor setting out the
names and signatures of the persons authorised to sign, on behalf of such
Obligor, the Finance Documents to which it is a party and any documents
to be delivered by such Obligor pursuant thereto.
2. A certificate of an Authorised Signatory of the Borrower confirming that
utilisation of the Facility would not breach any restriction of its
borrowing powers.
3. A copy, certified a true copy by or on behalf of each Obligor, of each
such law, decree, consent, licence, approval, registration or declaration
as is, in the opinion of counsel to the Banks, necessary to render the
Finance Documents to which it is a party legal, valid, binding and
enforceable, to make such Finance Documents admissible in evidence in
each Obligor's jurisdiction of incorporation and to enable each Obligor
to perform its obligations thereunder.
4. Evidence that the fees, costs and expenses required to be paid by the
Borrower pursuant to Clause 21.1 (Transaction Expenses) and Clause 21.3
(Stamp Taxes) have been paid.
5. Copies of each of the Finance Documents executed by all of the parties
thereto.
6. A copy, certified a true copy by an Authorised Signatory of the Borrower,
of the Original Financial Statements of the Borrower.
7. A copy, certified a true copy by an Authorised Signatory of each
Guarantor, of the Original Financial Statements of each Guarantor.
8. A copy, certified a true copy by an Authorised Signatory of Corgi
Classics Holdings, of the Original Financial Statements of Corgi Classics
Holdings.
9. A copy, certified a true copy by an Authorised Signatory of Corgi
Classics, of the Original Financial Statements of Corgi Classics.
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10. An opinion of the Banks' Cayman Islands Counsel satisfactory to the Agent
and in substantially the same form distributed to the Banks prior to the
signing of this Agreement.
11. An opinion of Xxxxxxxx Chance, solicitors to the Agent, in substantially
the same form distributed to the Banks prior to the signing of this
Agreement.
12. An opinion of the Banks' BVI Counsel satisfactory to the Agent and in
substantially the same form distributed to the Banks prior to the signing
of this Agreement.
13. Evidence that the Borrower has agreed to act as the agent for the service
of process in Hong Kong for:
(i) Xxx Xxxx Holdings in respect of this Agreement and the
Subordination Deed;
(ii) Luen Tat Mould Mfg. Ltd. in respect of the Subordination Deed;
(iii) Luen Tat Model Design Co. Ltd. in respect of the Subordination
Deed; and
(iv) Onchart Industrial Ltd. in respect of the Subordination Deed.
14. Evidence that Corgi Classics Holdings has agreed to act as the agent for
the service of process in England for the Borrower in respect of the
Charge over Corgi Classics Holdings Shares.
15. Evidence of presentation of registration of:
(i) the Charge over Corgi Classics Holdings Shares against the
Borrower with the Hong Kong Companies Registry;
(ii) the Subordination Deed against Xxx Xxxx Printing with the Hong
Kong Companies Registry;
(iii) the Subordination Deed against each of Luen Tat Mould Mfg. Ltd.,
Luen Tat Model Design Co. Ltd. and Onchart Industrial Ltd. with
the BVI Companies Registry; and
(iv) if deemed appropriate by the Banks' Cayman Islands counsel, the
Subordination Deed against Xxx Xxxx Holdings with the Companies
Registry in Cayman Islands.
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SCHEDULE 4
NOTICE OF DRAWDOWN
From: Zindart Limited
To: ABN AMRO Bank, N.V., Hong Kong Branch
Dated:
Dear Sirs,
1. We refer to the agreement (the "Facility Agreement") dated [ ] 2001 and
made between Zindart Limited as borrower, ABN AMRO Bank, N.V., Hong Kong
Branch as agent and the financial institutions named therein as Banks.
Terms defined in the Facility Agreement shall have the same meaning in
this notice.
2. This notice is irrevocable.
3. We hereby give you notice that, pursuant to the Facility Agreement and on
[date of proposed Advance], we wish to borrow the Advance in the amount
of $[ ] upon the terms and subject to the conditions contained therein.
4. We would like the Advance to have a first Interest Period of [ ] months'
duration.
5. We confirm that, at the date hereof, the Repeated Representations are
true in all material respects and no Event of Default or Potential Event
of Default is continuing.
6. The proceeds of this drawdown should be credited to [insert account
details].
Yours faithfully
.............................
Authorised Signatory
for and on behalf of
Zindart Limited
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SCHEDULE 5
FORM OF COMPLIANCE CERTIFICATE
To: ABN AMRO Bank, N.V., Hong Kong Branch
Date:
Dear Sirs,
We refer to an agreement (the "FACILITY AGREEMENT") dated [ ], 2001 and made
between Zindart Limited as borrower, Xxx Xxxx Holdings Co. Ltd. and Xxx Xxxx
Printing Holdings Co., Limited as guarantors, ABN AMRO Bank, N.V., Hong Kong
Branch as agent and the financial institutions defined therein as Banks.
Terms defined in the Facility Agreement shall bear the same meaning herein.
We confirm that:
a) the Consolidated Tangible Net Worth is [ ] ;
b) the ratio of Consolidated Net Borrowings to Consolidated Tangible Net Worth
is [ ]: [ ];
c) the ratio of Current Assets to Current Liabilities is [ ]: [ ];
d) the Interest Cover Ratio is [ ]: [ ];
e) the Consolidated Profits Before Interest and Tax are [ ];
f) the Debt Service Ratio is [ ]: [ ]; and
g) the Capital Expenditure for the Group (except Corgi Classics Holdings and
Corgi Classics) is [ ].
--------------------
for and on behalf of
[name of director of the Borrower/
Xxx Xxxx Holdings Co. Ltd./
Xxx Xxxx Printing Co. Limited]
--------------------
for and on behalf of
[name of senior finance officer of the Borrower/
Xxx Xxxx Holdings Co. Ltd./
Xxx Xxxx Printing Co. Limited]
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SCHEDULE 6
MANDATORY COSTS
1. The Mandatory Cost Rate is an addition to the interest rate to compensate
Banks for the cost of compliance with the requirements of the Financial
Services Authority (or any other authority which replaces all or any of
its functions).
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate (the
"ADDITIONAL COSTS RATE") for each Bank, in accordance with the formula
set out below. The Mandatory Cost Rate will be calculated by the Agent as
a weighted average of such Bank's additional costs rates (weighted in
proportion to the percentage participation of each Bank in the relevant
Advance) and will be expressed as a percentage rate per annum.
3. The additional cost rate for each Bank will be calculated by the Agent as
follows:
F x 0.01
-------- per cent per annum.
300
Where F is the rate of charge payable by that Bank to the Financial
Services Authority pursuant to the Fee Regulations (but, for this
purpose, ignoring any minimum fee required pursuant to the Fee
Regulations) and expressed in pounds per Pound Sterling 1,000,000 of the
Fee Base of that Bank.
4. For the purposes of this Schedule:
(a) "FEE REGULATIONS" means the Banking Supervision (Fees)
Regulations 1999 or such other law as may be in force from time
to time in respect of the payment of fees for banking
supervision;
"FEE BASE" has the meaning given to it, and will be calculated in accordance
with, the Fee Regulations; and
the resulting figure will be rounded to four decimal places.
5. Each Bank shall supply any information required by the Agent for the
purpose of calculating the above formula. In particular, but without
limitation, each Bank shall supply the following information in writing
on or prior to the date on which it becomes a Bank:
(a) its jurisdiction of incorporation and the jurisdiction of its
Facility Office; and
such other information that the Agent may reasonably require for such purpose.
Each Bank shall promptly notify the Agent in writing of any change to the
information provided by it pursuant to this paragraph.
6. The rates of charge of each Bank for the purpose of F above shall be
determined by the Agent based upon the information supplied to it
pursuant to paragraph 5 above and on
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the assumption that unless a Bank notifies the Agent to the contrary,
each Bank's obligations in relation to the Fee Regulations are the same
as those of a typical bank from its jurisdiction of incorporation with a
Facility Office in the same jurisdiction as its Facility Office.
The Agent shall have no liability to any person if such determination
results in an additional costs rate which over or under compensates any
Bank and shall be entitled to assume that the information provided by any
Bank pursuant to paragraph 5 above is true and correct in all respects.
7. The Agent shall distribute the additional amounts received pursuant to
the Mandatory Cost Rate to the Banks on basis of the additional cost rate
incurred by each Bank, as calculated in accordance with the above formula
and based on the information provided by each Bank pursuant to paragraph
5 above.
8. Any determination by the Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost Rate, an additional costs rate or any amount
payable to a Bank shall, in the absence of manifest error, be conclusive
and binding on all of the parties hereto.
The Agent may from time to time, after consultation with the Borrower and the
Banks, determine and notify to all parties any amendments or variations which
are required to be made to any of the formula set out above in order to comply
with any charge in law or any requirements from time to time imposed by the
Financial Services Authority (or any other authority which replaces all or any
of its functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all the parties hereto.
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SCHEDULE 7
FORM OF CHARGE OVER CORGI CLASSICS HOLDINGS SHARES
March 2001
ZINDART LIMITED
as Chargor
and
ABN AMRO BANK N.V., HONG KONG BRANCH
as Security Trustee
-------------------------------------------------------------
CHARGE OVER CORGI CLASSICS HOLDINGS SHARES
-------------------------------------------------------------
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CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION...............................................67
2. COVENANT AND CHARGE..........................................................68
3. DEPOSIT OF CERTIFICATES......................................................68
4. VOTING RIGHTS AND DIVIDENDS..................................................68
5. CHARGOR'S REPRESENTATIONS AND UNDERTAKINGS...................................70
6. FURTHER ASSURANCE............................................................71
7. POWER OF ATTORNEY............................................................71
8. POWER OF SALE................................................................71
9. RECEIVER.....................................................................72
10. CHARGOR'S OBLIGATIONS........................................................72
11. EFFECTIVENESS OF COLLATERAL..................................................73
12. SUBSEQUENT INTERESTS AND ACCOUNTS............................................74
13. COSTS AND EXPENSES...........................................................74
14. CURRENCY CONVERSION..........................................................74
15. NOTICES......................................................................75
16. SUCCESSORS...................................................................75
17. RELEASE AND DISCHARSGE.......................................................75
18. PARTIAL INVALIDITY...........................................................75
19. LAW AND JURISDICTION.........................................................75
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THIS AGREEMENT is made on March 2001
BETWEEN
(1) ABN AMRO BANK N.V., HONG KONG BRANCH of 38/F Xxxxxx Kong Center, 0
Xxxxx'x Xxxx Xxxxxxx, Xxxx Xxxx as security trustee (the "SECURITY
TRUSTEE", which expression shall include any person for the time being
appointed as security trustee, or as an additional security trustee, for
the purposes of the Facility Agreement (as defined below)) for the
Finance Parties (as defined below) on the terms and conditions set out in
the Facility Agreement; and
(2) ZINDART LIMITED (the "CHARGOR").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Terms defined in the Facility Agreement shall, unless otherwise defined
in this Agreement, bear the same meaning when used in this Agreement and
in addition:
"CHARGED PORTFOLIO" means the Shares and the Related Assets.
"COLLATERAL RIGHTS" means all rights, powers and remedies of the Security
Trustee provided by this Agreement or by law.
"CORGI CLASSICS HOLDINGS" means Corgi Classics Holdings Limited
(previously known as Exitarena Limited), a company incorporated in
England and Wales with registered number 3811954.
"FACILITY AGREEMENT" means the US$9,000,000 term loan agreement dated of
even date herewith and entered into between the Chargor as borrower, Xxx
Xxxx Holdings Company Limited and Xxx Xxxx Printing Holdings Co., Limited
as guarantors, ABN AMRO Bank N.V., Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., Hong Kong Branch, KBC Bank N.V., Hong
Kong Branch and Standard Chartered Bank as arrangers, ABN AMRO Bank N.V.,
Hong Kong Branch as agent and security trustee and the financial
institutions named therein as Banks.
"FINANCE PARTIES" shall have the meaning given to such term in the
Facility Agreement.
"RELATED ASSETS" means all dividends, interest and other monies payable
in respect of the Shares and all other rights, benefits and proceeds in
respect of or derived from the Shares (whether by way of redemption,
bonus, preference, option, substitution, conversion or otherwise).
"SECURED OBLIGATIONS" means all obligations owing to the Finance Parties
or to the Security Trustee (whether for its own account or as security
trustee for the Finance Parties) by the Chargor under or pursuant to the
Facility Agreement, whether present
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or future, actual or contingent (and whether incurred by the Chargor
alone or jointly, and whether as principal or surety or in some other
capacity).
"SHARES" means all of the shares in the share capital of Corgi Classics
Holdings held by, to the order or on behalf of the Chargor at any time.
1.2 In this Agreement, the rules of interpretation contained in the Facility
Agreement shall apply to the construction of this Agreement and a
"Clause" is, unless otherwise stated, a reference to a Clause hereof.
1.3 A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this
Agreement.
2. COVENANT AND CHARGE
2.1 This charge is given for good consideration and the Chargor shall on
demand of the Security Trustee discharge and pay to the Security Trustee
(when due and payable) each of the Secured Obligations.
2.2 The Chargor charges the Charged Portfolio, with full title guarantee and
by way of first fixed charge, in favour of the Security Trustee for the
payment and discharge of all of the Secured Obligations.
3. DEPOSIT OF CERTIFICATES
3.1 The Chargor shall, on the date of this Agreement deposit (or procure
there to be deposited) with the Security Trustee all certificates and
other documents of title to the Shares, and stock transfer forms
(executed in blank by or on behalf of the Chargor) in respect of the
Shares.
3.2 The Chargor shall, promptly upon the accrual, offer or issue of any
Related Assets (in the form of stocks, shares, warrants or other
securities) in which the Chargor has a beneficial interest, procure the
delivery to the Security Trustee of (a) all certificates and other
documents of title representing such Related Assets and (b) such stock
transfer forms or other instruments of transfer (executed in blank by or
on behalf of the Chargor) in respect of those Related Assets as the
Security Trustee may request.
3.3 The Chargor shall as soon as practicable but in any event not later than
twenty-one Business Days from the date of this Agreement deposit with the
Security Trustee undated letters of resignations from each of the
directors of Corgi Classics Holdings.
4. VOTING RIGHTS AND DIVIDENDS
4.1 Prior to the occurrence of an Event of Default the Chargor shall be
entitled to:
4.1.1 receive all dividends, interest, stocks, shares, rights and other
monies arising from the Charged Portfolio; and
4.1.2 exercise all voting and other rights in relation to the Charged
Portfolio PROVIDED THAT the Chargor shall not exercise such voting
or other rights in any manner which would prejudice the value of,
or the ability of the Security Trustee to realise, the security
created by this Agreement.
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4.2 Notwithstanding the provisions of Clause 4.1 above, prior to the
occurrence of an Event of Default, the Chargor shall, immediately upon
receipt of any notices or other correspondence that may be sent or given
to a shareholder from Corgi Classics Holdings, deliver to the Security
Trustee a copy of all such notices and correspondence.
4.3 The Chargor shall not, without the prior written consent of the Security
Trustee, by the exercise of any voting rights or otherwise, permit or
agree to (a) any variation of the rights attaching to or conferred by all
or any part of the Charged Portfolio unless such variation shall in no
way prejudice the interest of the Security Trustee hereunder or (b) any
increase in the issued share capital of any company whose shares are
charged pursuant to this Agreement.
4.4 The Security Trustee may, upon the occurrence of an Event of Default and
at any time thereafter save where such Event of Default is capable of
remedy and has been remedied, at its discretion (in the name of the
Chargor or otherwise and without any further consent or authority from
the Chargor):
4.4.1 exercise (or refrain from exercising) any voting rights in respect
of the Charged Portfolio;
4.4.2 apply all dividends, interest and other monies arising from the
Charged Portfolio as though they were the proceeds of sale under
this Agreement;
4.4.3 transfer the Charged Portfolio into the name of such nominee(s) of
the Security Trustee as it shall require; and
4.4.4 exercise (or refrain from exercising) the powers and rights
conferred on or exercisable by the legal or beneficial owner of
the Charged Portfolio, including the right, in relation to any
company whose shares or other securities are included in the
Charged Portfolio, to concur or participate in:
(a) the reconstruction, amalgamation, sale or other disposal of
such company or any of its assets or undertaking (including
the exchange, conversion or reissue of any shares or
securities as a consequence thereof);
(b) the release, modification or variation of any rights or
liabilities attaching to such shares or securities; and
(c) the exercise, renunciation or assignment of any right to
subscribe for any shares or securities
in each case in such manner and on such terms as the Security
Trustee may think fit, and the proceeds of any such action shall
form part of the Charged Portfolio.
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5. CHARGOR'S REPRESENTATIONS AND UNDERTAKINGS
5.1 Except with the Security Trustee's prior written consent, the Chargor
shall not:
5.1.1 assign or dispose of all or any part of the Charged Portfolio;
or
5.1.2 create, grant or permit to exist (a) any security interest over
or (b) any restriction on the ability to transfer or realise,
all or any part of the Charged Portfolio.
5.2 The Chargor hereby represents and warrants to the Security Trustee and
undertakes during the subsistence of this Agreement that:
5.2.1 it is, and will be, the sole legal and beneficial owner of the
Charged Portfolio free from any security interest except as
created by this Agreement;
5.2.2 it has not sold or disposed of, and will not sell or dispose of,
the benefit of all or any of its rights, title and interest in
the Charged Portfolio;
5.2.3 it has and will have the necessary power to enable it to enter
into and perform its obligations under this Agreement;
5.2.4 the obligations expressed to be assumed by it under this
Agreement constitute its legal, valid and binding obligations
and this Agreement constitutes an effective security over the
Charged Portfolio;
5.2.5 all necessary authorisations to enable it to enter into this
Agreement have been obtained and are, and will remain, in full
force and effect;
5.2.6 the Shares constitute the entire issued share capital of Corgi
Classics Holdings at the date hereof and all the Shares have
been validly issued and are fully paid up;
5.2.7 it has not granted in favour of any other persons any interest
in or any option or other rights in respect of any Shares and
there are no duplicate copies of the certificates in respect of
the Shares or other certificates representing the Shares;
5.2.8 it shall ensure that no person holding any Shares as its nominee
for the time being create, attempt or agree to create or permit
to arise or exist any encumbrance over all or any part of the
Shares or any interest therein or assign, deal with or dispose
of all or any part of the Shares (except under or pursuant to
this Agreement) or grant in favour of any other person any
interest in or any option or other rights in respect of any of
the Shares;
5.2.9 it shall procure that no amendment or supplement is made to the
constitutional documents of Corgi Classics Holdings without the
prior written consent of the Security Trustee;
5.2.10 authorise the Security Trustee to sign on its behalf and on
behalf of each person holding any of the Shares as nominee of
the Chargor any proxies or
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other documents which the Security Trustee may require to enable
the Security Trustee to exercise such voting and other rights
and powers attaching to the Shares; and
5.2.11 it shall not do, cause or permit to be done anything which may
in any material way jeopardise, lead to the depreciation of, or
otherwise prejudice the value of the Charged Portfolio.
5.3 The Chargor represents to the Security Trustee that the Shares are fully
paid and undertakes to pay all calls or other payments due in respect of
any part of the Charged Portfolio. If the Chargor fails to make any such
payment the Security Trustee may make that payment on behalf of the
Chargor and any sums so paid by the Security Trustee shall be reimbursed
by the Chargor on demand, together with interest thereon. Such interest
shall be calculated from the due date up to the actual date of payment
(after, as well as before, judgement) in accordance with Clause 22.2 of
the Facility Agreement as if the payment on which such interest is
payable hereunder is an Unpaid Sum under Clause 22.2 of the Facility
Agreement.
6. FURTHER ASSURANCE
6.1 The Chargor shall promptly execute all documents (including transfers)
and do all things (including the delivery, transfer, assignment or
payment of all or part of the Charged Portfolio to the Security Trustee
or its nominee(s)) that the Security Trustee may reasonably specify for
the purpose of (a) exercising the Collateral Rights or (b) securing and
perfecting its security over or title to all or any part of the Charged
Portfolio.
6.2 The Chargor shall upon demand from the Security Trustee, at any time
after the occurrence of an Event of Default, (a) procure the transfer of
the Charged Portfolio into the name of the Security Trustee or its
nominee(s), agents or such purchasers as it shall direct and (b) execute
all documents and do all other things that the Security Trustee may
require to facilitate the realisation of the Charged Portfolio.
7. POWER OF ATTORNEY
7.1 The Chargor, by way of security, irrevocably appoints the Security
Trustee to be its attorney and in its name, on its behalf and as its act
and deed to execute, deliver and perfect all documents (including any
stock transfer forms and other instruments of transfer) and do all things
that the Security Trustee may consider to be requisite for (a) carrying
out any obligation imposed on the Chargor under this Agreement or (b)
exercising any of the rights conferred on the Security Trustee by this
Agreement or by law, (including, after the security constituted hereby
has become enforceable, the exercise of any right of a legal or a
beneficial owner of the Charged Portfolio). The Chargor shall ratify and
confirm all things done and all documents executed by the Security
Trustee in the exercise of that power of attorney.
8. POWER OF SALE
8.1 Upon the occurrence of an Event of Default or at any time thereafter save
where such Event of Default is capable of remedy and has been remedied,
the Security Trustee or
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its nominee shall be entitled, without prior notice to the Chargor or
prior authorisation from any court, to sell or otherwise dispose of all
or any part of the Charged Portfolio (at the times, in the manner and on
the terms it thinks fit). The Security Trustee or its nominee shall be
entitled to apply the proceeds of that sale or other disposal in paying
the costs of that sale or disposal and in or towards the discharge of the
Secured Obligations.
8.2 The power of sale or other disposal in Clause 8.1 shall operate as a
variation and extension of the statutory power of sale under Section 101
of the Law of Property Xxx 0000. The restrictions contained in Sections
93 and 103 of the Law of Property Act 1925 shall not apply to this
Agreement or to any exercise by the Security Trustee of its right to
consolidate mortgages or its power of sale.
8.3 A certificate in writing by an officer or agent of the Security Trustee
that any power of sale or other disposal has arisen and is exercisable
shall be conclusive evidence of that fact, in favour of a purchaser of
all or any part of the Charged Portfolio.
8.4 The Chargor shall not have any claim against the Security Trustee or its
nominee in respect of any loss arising out of such sale or any
postponement thereof howsoever caused and whether or not the Shares could
have been sold or otherwise disposed of at a higher price.
9. RECEIVER
9.1 Upon the occurrence of an Event of Default and at any time thereafter
save where such Event of Default is capable of remedy and has been
remedied or if requested by the Chargor, the Security Trustee may by
writing (acting through an authorised officer of the Security Trustee)
without notice to the Chargor appoint one or more persons to be receiver
of the whole or any part of the Charged Portfolio (each such person being
(a) entitled to act individually as well as jointly and (b) for all
purposes deemed to be the agent of the Chargor).
9.2 In addition to the powers of the Security Trustee conferred by Clause 8
(Power of Sale), each person appointed pursuant to Clause 9.1 shall have,
in relation to the part of the Charged Portfolio in respect of which he
was appointed, all the powers (a) conferred by the Law of Property Xxx
0000 on a receiver appointed under that Act, (b) of an administrative
receiver set out in Schedule 1 to the Insolvency Xxx 0000 (whether or not
such person is an administrative receiver) and (c) (if such person is an
administrative receiver) all the other powers exercisable by an
administrative receiver in relation to the Chargor by virtue of the
Insolvency Xxx 0000.
10. CHARGOR'S OBLIGATIONS
10.1 The obligations of the Chargor and the Collateral Rights shall not be
discharged, impaired or otherwise affected by
10.1.1 any winding-up, dissolution, administration or re-organisation
of or other change in Corgi Classics Holdings;
10.1.2 any of the Secured Obligations being at any time illegal,
invalid, unenforceable or ineffective;
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10.1.3 any time or other indulgence being granted to Corgi Classics
Holdings;
10.1.4 any amendment, variation, waiver or release of any of the
Secured Obligations;
10.1.5 any failure to take or failure to realise the value of any other
collateral in respect of the Secured Obligations or any release,
discharge, exchange or substitution of any such collateral; or
10.1.6 any other act, event or omission which but for this provision
would or might operate to impair, discharge or otherwise affect
the obligations of the Chargor hereunder.
11. EFFECTIVENESS OF COLLATERAL
11.1 The collateral constituted by this Agreement and the Collateral Rights
shall be cumulative, in addition to and independent of every other
security which the Security Trustee may at any time hold for the Secured
Obligations or any rights, powers and remedies provided by law. No prior
security held by the Security Trustee over the whole or any part of the
Charged Portfolio shall merge into the collateral hereby constituted.
11.2 This Agreement shall remain in full force and effect as a continuing
arrangement unless and until the Security Trustee discharges it and shall
not cease by reason of any intermediate payment or satisfaction of all or
any of the Secured Obligations or for any other reason: however, if the
obligations of the Chargor under this Agreement cease to be continuing
for any reason, the liability of the Chargor at the date of such
cessation shall remain, regardless of any subsequent increase or
reduction in the Secured Obligations.
11.3 No failure on the part of the Security Trustee to exercise, or delay on
its part in exercising, any Collateral Right shall operate as a waiver
thereof, nor shall any single or partial exercise of a Collateral Right
preclude any further or other exercise of that or any other Collateral
Right.
11.4 The Security Trustee shall not be obliged to make any demand of Corgi
Classics Holdings, to take any action or obtain judgment in any court
against Corgi Classics Holdings or to make or file any proof or claim in
a liquidation or insolvency of Corgi Classics Holdings or to enforce or
seek to enforce any other security in respect of the Secured Obligations
before exercising any Collateral Right.
11.5 If, at any time, any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect under the law of any
jurisdiction, the legality, validity or enforceability of (a) the
remaining provisions of this Agreement and (b) such provisions under the
law of any other jurisdiction shall not in any way be affected or
impaired thereby.
11.6 None of the Security Trustee, its nominee(s) or any receiver appointed
pursuant to this Agreement shall be liable by reason of (a) taking any
action permitted by this Agreement or (b) any neglect or default in
connection with the Charged Portfolio or (c)
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the taking possession or realisation of all or any part of the Charged
Portfolio, except in the case of gross negligence or wilful default upon
its part.
11.7 So long as the Chargor is under any actual or contingent obligation in
respect of the Secured Obligations, the Chargor shall not exercise any
right which it may at any time have, by reason of the performance of its
obligations under this Agreement, to be indemnified by Corgi Classics
Holdings or to claim any contribution from any other person or to take
the benefit (whether by subrogation or otherwise) of any right,
entitlement, interest or remedy which the Security Trustee may hold in
relation to the Secured Obligations.
11.8 The Chargor will not accept or permit to subsist any collateral from
Corgi Classics Holdings or any other person in respect of any rights the
Chargor may have arising out of this Agreement: if, despite the
foregoing, any such collateral shall be accepted or subsisting, the
Chargor acknowledges that the Chargor's rights under such collateral
shall be held on trust for the Security Trustee.
11.9 Any settlement or discharge hereunder shall be conditional upon no
security or payment to the Security Trustee by or on behalf of Corgi
Classics Holdings or the Chargor being avoided or reduced by virtue of
any bankruptcy, insolvency, liquidation or similar laws of general
application and shall in those circumstances be void.
12. SUBSEQUENT INTERESTS AND ACCOUNTS
12.1 If the Security Trustee at any time receives notice of any subsequent
mortgage, assignment, charge or other interest affecting all or any part
of the Charged Portfolio, all payments thereafter made by the Chargor to
the Security Trustee or any of the Secured Parties shall be treated as
having been credited to a new account of the Chargor and not as having
been applied in reduction of the Secured Obligations as at the time when
the Security Trustee received notice.
12.2 All monies received, recovered or realised by the Security Trustee under
this Agreement (including the proceeds of any conversion of currency) may
in its discretion be credited to and held in any suspense or impersonal
account pending their application from time to time in or towards the
discharge of any of the Secured Obligations.
13. COSTS AND EXPENSES
All the Security Trustee's costs and expenses (including legal fees,
stamp duties and any value added tax) incurred in connection with (a) the
execution of this Agreement or otherwise in relation to it, (b) the
perfection or enforcement of the collateral hereby constituted or (c) the
exercise of any Collateral Right, shall be reimbursed to the Security
Trustee by the Chargor on demand on a full indemnity basis together with
interest from the date the same were incurred to the date of payment at
such rates as the Security Trustee may reasonably determine.
14. CURRENCY CONVERSION
For the purpose of or pending the discharge of any of the Secured
Obligations the Security Trustee may convert any money received,
recovered or realised or subject to application by it under this
Agreement from one currency to another, as the Security
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Trustee may think fit: and any such conversion shall be effected at the
Security Trustee's spot rate of exchange for the time being for obtaining
such other currency with the first currency.
15. NOTICES
Any notice or demand to be served by one person on another pursuant to
this Agreement may be served by leaving it at the address specified above
(or such other address as such person may previously have specified) or
by letter posted by prepaid first-class post to such address (which shall
be deemed to have been served on the fifth day following the date of
posting), or by fax to the fax number specified above (or such other
number as such person may previously have specified) which shall be
deemed to have been received when transmission has been completed)
provided that any notice to be served on the Security Trustee shall be
effective only when actually received by the Security Trustee, marked for
the attention of the department or officer specified by the Security
Trustee for such purpose.
16. SUCCESSORS
16.1 This Agreement shall remain in effect despite any amalgamation or merger
(however effected) relating to the Security Trustee; and references to
the Security Trustee shall be deemed to include any assignee or successor
in title of the Security Trustee and any person who, under the laws of
its jurisdiction of incorporation or domicile, has assumed the rights and
obligations of the Security Trustee hereunder or to which under such laws
the same have been transferred.
16.2 The Chargor shall not be entitled to assign or transfer all or any of its
rights, benefits and obligations under this Agreement.
17. RELEASE AND DISCHARSGE
At such time as the Secured Obligations have been discharged in full the
Security Trustee shall, at the expense of the Chargor, execute such
documents (or procure that its nominees execute such documents) as the
Chargor may reasonably request and which may be required to discharge all
charges and security created by this Agreement or reassign the Charged
Portfolio.
18. PARTIAL INVALIDITY
If at any time any provision of this Agreement 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 of this Agreement nor of such provisions under the
law of any other jurisdiction shall in any way be affected or impaired
thereby.
19. LAW AND JURISDICTION
This Agreement shall be governed by English law and, for the Security
Trustee's benefit, the English courts shall have exclusive jurisdiction
to settle any dispute which may arise from or in connection with it.
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IN WITNESS WHEREOF this Agreement has been signed on behalf of the Security
Trustee and executed as a deed by the Chargor and is intended to be and is
hereby delivered by it as a deed on the date specified above.
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SCHEDULE
LETTER OF RESIGNATION
To: The Board of Directors of Corgi Classics Holdings Limited
Date: [ ]
Dear Sirs,
I hereby tender my resignation as director of Corgi Classics Holdings Limited
(the "COMPANY") with immediate effect and acknowledge that I have no claim
whatsoever against the Company whether in respect of accrued remuneration, fees
or loss of office or otherwise on any account and that there is no outstanding
agreement or arrangement under which the Company or any of its subsidiaries or
associated companies has or would have any obligation to me whether now or in
the future or under which I would derive any benefit.
SIGNED, SEALED AND
DELIVERED by
[ ]
in the presence of:
Name of Witness:
Address of Witness:
Occupation of Witness:
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THE SECURITY TRUSTEE
ABN AMRO BANK N.V., HONG KONG BRANCH
By: ___________________
Name: ___________________
Title: ___________________
THE CHARGOR
ZINDART LIMITED
EXECUTED as a DEED )
by affixing the COMMON SEAL of )
ZINDART LIMITED )
in the presence of: )
______________________ Director
______________________ Director/Secretary
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SCHEDULE 8
FORM OF CHARGE OVER CORGI CLASSICS SHARES
March 2001
CORGI CLASSICS HOLDINGS LIMITED
as Chargor
and
ABN AMRO BANK N.V., HONG KONG BRANCH
as Security Trustee
-------------------------------------------------------------
CHARGE OVER CORGI CLASSICS SHARES
-------------------------------------------------------------
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CONTENTS
CLAUSE PAGE
1. DEFINITIONS AND INTERPRETATION...............................................81
2. COVENANT AND CHARGE..........................................................82
3. DEPOSIT OF CERTIFICATES......................................................82
4. VOTING RIGHTS AND DIVIDENDS..................................................82
5. CHARGOR'S REPRESENTATIONS AND UNDERTAKINGS...................................83
6. FURTHER ASSURANCE............................................................85
7. POWER OF ATTORNEY............................................................85
8. POWER OF SALE................................................................85
9. RECEIVER.....................................................................86
10. CHARGOR'S OBLIGATIONS........................................................86
11. EFFECTIVENESS OF COLLATERAL..................................................88
12. SUBSEQUENT INTERESTS AND ACCOUNTS............................................89
13. COSTS AND EXPENSES...........................................................89
14. CURRENCY CONVERSION..........................................................89
15. NOTICES......................................................................89
16. SUCCESSORS...................................................................90
17. RELEASE AND DISCHARSGE.......................................................90
18. PARTIAL INVALIDITY...........................................................90
19. LAW AND JURISDICTION.........................................................90
20. COUNTERPARTS.................................................................90
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THIS AGREEMENT is made on March 2001
BETWEEN
(1) ABN AMRO BANK N.V., HONG KONG BRANCH of 38/F Xxxxxx Kong Center, 0
Xxxxx'x Xxxx Xxxxxxx, Xxxx Xxxx as security trustee (the "SECURITY
TRUSTEE", which expression shall include any person for the time being
appointed as security trustee, or as an additional security trustee, for
the purposes of the Facility Agreement (as defined below)) for the
Finance Parties (as defined below) on the terms and conditions set out
in the Facility Agreement; and
(2) CORGI CLASSICS HOLDINGS LIMITED (the "CHARGOR").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Terms defined in the Facility Agreement shall, unless otherwise defined
in this Agreement, bear the same meaning when used in this Agreement and
in addition:
"CHARGED PORTFOLIO" means the Shares and the Related Assets.
"COLLATERAL RIGHTS" means all rights, powers and remedies of the Security
Trustee provided by this Agreement or by law.
"CORGI CLASSICS" means Corgi Classics Limited, a company incorporated in
England and Wales.
"FACILITY AGREEMENT" means the US$9,000,000 term loan agreement dated of
even date herewith and entered into between Zindart Limited as borrower,
Xxx Xxxx Holdings Co., Ltd. and Xxx Xxxx Printing Holdings Co., Limited
as guarantors, ABN AMRO Bank N.V., Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., Hong Kong Branch, KBC Bank N.V., Hong
Kong Branch and Standard Chartered Bank as arrangers, ABN AMRO Bank N.V.,
Hong Kong Branch as agent and security trustee and the financial
institutions named therein as Banks.
"FINANCE PARTIES" shall have the meaning given to such term in the
Facility Agreement.
"RELATED ASSETS" means all dividends, interest and other monies payable
in respect of the Shares and all other rights, benefits and proceeds in
respect of or derived from the Shares (whether by way of redemption,
bonus, preference, option, substitution, conversion or otherwise).
"SECURED OBLIGATIONS" means all obligations owing to the Finance Parties
or to the Security Trustee (whether for its own account or as security
trustee for the Finance Parties) by Zindart Limited under or pursuant to
the Facility Agreement, whether present or future, actual or contingent
(and whether incurred by Zindart Limited alone or jointly, and whether as
principal or surety or in some other capacity).
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"SHARES" means all of the shares in the share capital of Corgi Classics
held by, to the order or on behalf of the Chargor at any time.
1.2 In this Agreement, the rules of interpretation contained in the Facility
Agreement shall apply to the construction of this Agreement and a
"Clause" is, unless otherwise stated, a reference to a Clause hereof.
1.3 A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this
Agreement.
2. COVENANT AND CHARGE
2.1 This charge is given for good consideration and the Chargor shall on
demand of the Security Trustee discharge and pay to the Security Trustee
(when due and payable) each of the Secured Obligations.
2.2 The Chargor charges the Charged Portfolio, with full title guarantee and
by way of first fixed charge, in favour of the Security Trustee for the
payment and discharge of all of the Secured Obligations.
3. DEPOSIT OF CERTIFICATES
3.1 The Chargor shall, on the date of this Agreement deposit (or procure
there to be deposited) with the Security Trustee all certificates and
other documents of title to the Shares, and stock transfer forms
(executed in blank by or on behalf of the Chargor) in respect of the
Shares.
3.2 The Chargor shall, promptly upon the accrual, offer or issue of any
Related Assets (in the form of stocks, shares, warrants or other
securities) in which the Chargor has a beneficial interest, procure the
delivery to the Security Trustee of (a) all certificates and other
documents of title representing such Related Assets and (b) such stock
transfer forms or other instruments of transfer (executed in blank by or
on behalf of the Chargor) in respect of those Related Assets as the
Security Trustee may request.
3.3 The Chargor shall as soon as practicable but in any event not later than
twenty-one Business Days from the date of this Agreement deposit with the
Security Trustee undated letters of resignations from each of the
directors of Corgi Classics.
4. VOTING RIGHTS AND DIVIDENDS
4.1 PRIOR TO THE OCCURRENCE OF AN EVENT OF DEFAULT THE CHARGOR SHALL BE
ENTITLED TO:
4.1.1 receive all dividends, interest, stocks, shares, rights and other
monies arising from the Charged Portfolio; and
4.1.2 exercise all voting and other rights in relation to the Charged
Portfolio PROVIDED THAT the Chargor shall not exercise such voting
or other rights in any manner which would prejudice the value of,
or the ability of the Security Trustee to realise, the security
created by this Agreement.
4.2 Notwithstanding the provisions of Clause 4.1 above, prior to the
occurrence of an Event of Default, the Chargor shall, immediately upon
receipt of any notices or other correspondence that may be sent or given
to a shareholder from Corgi Classics, deliver to the Security Trustee a
copy of all such notices and correspondence.
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4.3 The Chargor shall not, without the prior written consent of the Security
Trustee, by the exercise of any voting rights or otherwise, permit or
agree to (a) any variation of the rights attaching to or conferred by all
or any part of the Charged Portfolio unless such variation shall in no
way prejudice the interest of the Security Trustee hereunder or (b) any
increase in the issued share capital of any company whose shares are
charged pursuant to this Agreement.
4.4 The Security Trustee may, upon the occurrence of an Event of Default and
at any time thereafter save where such Event of Default is capable of
remedy and has been remedied, at its discretion (in the name of the
Chargor or otherwise and without any further consent or authority from
the Chargor):
4.4.1 exercise (or refrain from exercising) any voting rights in
respect of the Charged Portfolio;
4.4.2 apply all dividends, interest and other monies arising from the
Charged Portfolio as though they were the proceeds of sale under
this Agreement;
4.4.3 transfer the Charged Portfolio into the name of such nominee(s)
of the Security Trustee as it shall require; and
4.4.4 exercise (or refrain from exercising) the powers and rights
conferred on or exercisable by the legal or beneficial owner of
the Charged Portfolio, including the right, in relation to any
company whose shares or other securities are included in the
Charged Portfolio, to concur or participate in:
(a) the reconstruction, amalgamation, sale or other disposal
of such company or any of its assets or undertaking
(including the exchange, conversion or reissue of any
shares or securities as a consequence thereof);
(b) the release, modification or variation of any rights or
liabilities attaching to such shares or securities; and
(c) the exercise, renunciation or assignment of any right to
subscribe for any shares or securities.
in each case in such manner and on such terms as the Security
Trustee may think fit, and the proceeds of any such action shall
form part of the Charged Portfolio.
5. CHARGOR'S REPRESENTATIONS AND UNDERTAKINGS
5.1 Except with the Security Trustee's prior written consent, the Chargor
shall not:
5.1.1 assign or dispose of all or any part of the Charged Portfolio; or
5.1.2 create, grant or permit to exist (a) any security interest over
or (b) any restriction on the ability to transfer or realise, all
or any part of the Charged Portfolio.
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5.2 The Chargor hereby represents and warrants to the Security Trustee and
undertakes during the subsistence of this Agreement that:
5.2.1 it is, and will be, the sole legal and beneficial owner of the
Charged Portfolio free from any security interest except as
created by this Agreement;
5.2.2 it has not sold or disposed of, and will not sell or dispose of,
the benefit of all or any of its rights, title and interest in
the Charged Portfolio;
5.2.3 it has and will have the necessary power to enable it to enter
into and perform its obligations under this Agreement;
5.2.4 the obligations expressed to be assumed by it under this
Agreement constitute its legal, valid and binding obligations and
this Agreement constitutes an effective security over the Charged
Portfolio;
5.2.5 all necessary authorisations to enable it to enter into this
Agreement have been obtained and are, and will remain, in full
force and effect;
5.2.6 the Shares constitute the entire issued share capital of Corgi
Classics at the date hereof and all the Shares have been validly
issued and are fully paid up;
5.2.7 it has not granted in favour of any other persons any interest in
or any option or other rights in respect of any Shares and there
are no duplicate copies of the certificates in respect of the
Shares or other certificates representing the Shares;
5.2.8 it shall ensure that no person holding any Shares as its nominee
for the time being create, attempt or agree to create or permit
to arise or exist any encumbrance over all or any part of the
Shares or any interest therein or assign, deal with or dispose of
all or any part of the Shares (except under or pursuant to this
Agreement) or grant in favour of any other person any interest in
or any option or other rights in respect of any of the Shares;
5.2.9 it shall procure that no amendment or supplement is made to the
constitutional documents of Corgi Classics without the prior
written consent of the Security Trustee;
5.2.10 authorise the Security Trustee to sign on its behalf and on
behalf of each person holding any of the Shares as nominee of the
Chargor any proxies or other documents which the Security Trustee
may require to enable the Security Trustee to exercise such
voting and other rights and powers attaching to the Shares; and
5.2.11 it shall not do, cause or permit to be done anything which may in
any material way jeopardise, lead to the depreciation of, or
otherwise prejudice the value of the Charged Portfolio.
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5.3 The Chargor represents to the Security Trustee that the Shares are fully
paid and undertakes to pay all calls or other payments due in respect of
any part of the Charged Portfolio. If the Chargor fails to make any such
payment the Security Trustee may make that payment on behalf of the
Chargor and any sums so paid by the Security Trustee shall be reimbursed
by the Chargor on demand, together with interest thereon. Such interest
shall be calculated from the due date up to the actual date of payment
(after, as well as before, judgement) in accordance with Clause 22.2 of
the Facility Agreement as if the payment on which such interest is
payable hereunder is an Unpaid Sum under Clause 22.2 of the Facility
Agreement.
6. FURTHER ASSURANCE
6.1 The Chargor shall promptly execute all documents (including transfers)
and do all things (including the delivery, transfer, assignment or
payment of all or part of the Charged Portfolio to the Security Trustee
or its nominee(s)) that the Security Trustee may reasonably specify for
the purpose of (a) exercising the Collateral Rights or (b) securing and
perfecting its security over or title to all or any part of the Charged
Portfolio.
6.2 The Chargor shall upon demand from the Security Trustee, at any time
after the occurrence of an Event of Default, (a) procure the transfer of
the Charged Portfolio into the name of the Security Trustee or its
nominee(s), agents or such purchasers as it shall direct and (b) execute
all documents and do all other things that the Security Trustee may
require to facilitate the realisation of the Charged Portfolio.
7. POWER OF ATTORNEY
The Chargor, by way of security, irrevocably appoints the Security
Trustee to be its attorney and in its name, on its behalf and as its act
and deed to execute, deliver and perfect all documents (including any
stock transfer forms and other instruments of transfer) and do all things
that the Security Trustee may consider to be requisite for (a) carrying
out any obligation imposed on the Chargor under this Agreement or (b)
exercising any of the rights conferred on the Security Trustee by this
Agreement or by law, (including, after the security constituted hereby
has become enforceable, the exercise of any right of a legal or a
beneficial owner of the Charged Portfolio). The Chargor shall ratify and
confirm all things done and all documents executed by the Security
Trustee in the exercise of that power of attorney.
8. POWER OF SALE
8.1 Upon the occurrence of an Event of Default or at any time thereafter save
where such Event of Default is capable of remedy and has been remedied,
the Security Trustee or its nominee shall be entitled, without prior
notice to the Chargor or prior authorisation from any court, to sell or
otherwise dispose of all or any part of the Charged Portfolio (at the
times, in the manner and on the terms it thinks fit). The Security
Trustee or its nominee shall be entitled to apply the proceeds of that
sale or other disposal in paying the costs of that sale or disposal and
in or towards the discharge of the Secured Obligations.
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8.2 The power of sale or other disposal in Clause 8.1 shall operate as a
variation and extension of the statutory power of sale under Section 101
of the Law of Property Xxx 0000. The restrictions contained in Sections
93 and 103 of the Law of Property Act 1925 shall not apply to this
Agreement or to any exercise by the Security Trustee of its right to
consolidate mortgages or its power of sale.
8.3 A certificate in writing by an officer or agent of the Security Trustee
that any power of sale or other disposal has arisen and is exercisable
shall be conclusive evidence of that fact, in favour of a purchaser of
all or any part of the Charged Portfolio.
8.4 The Chargor shall not have any claim against the Security Trustee or its
nominee in respect of any loss arising out of such sale or any
postponement thereof howsoever caused and whether or not the Shares could
have been sold or otherwise disposed of at a higher price.
9. RECEIVER
9.1 Upon the occurrence of an Event of Default and at any time thereafter
save where such Event of Default is capable of remedy and has been
remedied or if requested by the Chargor, the Security Trustee may by
writing (acting through an authorised officer of the Security Trustee)
without notice to the Chargor appoint one or more persons to be receiver
of the whole or any part of the Charged Portfolio (each such person being
(a) entitled to act individually as well as jointly and (b) for all
purposes deemed to be the agent of the Chargor).
9.2 In addition to the powers of the Security Trustee conferred by Clause 8
(Power of Sale), each person appointed pursuant to Clause 9.1 shall have,
in relation to the part of the Charged Portfolio in respect of which he
was appointed, all the powers (a) conferred by the Law of Property Xxx
0000 on a receiver appointed under that Act, (b) of an administrative
receiver set out in Schedule 1 to the Insolvency Xxx 0000 (whether or not
such person is an administrative receiver) and (c) (if such person is an
administrative receiver) all the other powers exercisable by an
administrative receiver in relation to the Chargor by virtue of the
Insolvency Xxx 0000.
10. CHARGOR'S OBLIGATIONS
10.1 The obligations of the Chargor and the Collateral Rights shall not be
discharged, impaired or otherwise affected by:
10.1.1 any winding-up, dissolution, administration or re-organisation
of or other change in Corgi Classics;
10.1.2 any of the Secured Obligations being at any time illegal,
invalid, unenforceable or ineffective;
10.1.3 any time or other indulgence being granted to Corgi Classics;
10.1.4 any amendment, variation, waiver or release of any of the
Secured Obligations;
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10.1.5 any failure to take or failure to realise the value of any other
collateral in respect of the Secured Obligations or any release,
discharge, exchange or substitution of any such collateral; or
10.1.6 any other act, event or omission which but for this provision
would or might operate to impair, discharge or otherwise affect
the obligations of the Chargor hereunder.
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11. EFFECTIVENESS OF COLLATERAL
11.1 The collateral constituted by this Agreement and the Collateral Rights
shall be cumulative, in addition to and independent of every other
security which the Security Trustee may at any time hold for the Secured
Obligations or any rights, powers and remedies provided by law. No prior
security held by the Security Trustee over the whole or any part of the
Charged Portfolio shall merge into the collateral hereby constituted.
11.2 This Agreement shall remain in full force and effect as a continuing
arrangement unless and until the Security Trustee discharges it and shall
not cease by reason of any intermediate payment or satisfaction of all or
any of the Secured Obligations or for any other reason: however, if the
obligations of the Chargor under this Agreement cease to be continuing
for any reason, the liability of the Chargor at the date of such
cessation shall remain, regardless of any subsequent increase or
reduction in the Secured Obligations.
11.3 No failure on the part of the Security Trustee to exercise, or delay on
its part in exercising, any Collateral Right shall operate as a waiver
thereof, nor shall any single or partial exercise of a Collateral Right
preclude any further or other exercise of that or any other Collateral
Right.
11.4 The Security Trustee shall not be obliged to make any demand of Corgi
Classics, to take any action or obtain judgment in any court against
Corgi Classics or to make or file any proof or claim in a liquidation or
insolvency of Corgi Classics or to enforce or seek to enforce any other
security in respect of the Secured Obligations before exercising any
Collateral Right.
11.5 If, at any time, any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect under the law of any
jurisdiction, the legality, validity or enforceability of (a) the
remaining provisions of this Agreement and (b) such provisions under the
law of any other jurisdiction shall not in any way be affected or
impaired thereby.
11.6 None of the Security Trustee, its nominee(s) or any receiver appointed
pursuant to this Agreement shall be liable by reason of (a) taking any
action permitted by this Agreement or (b) any neglect or default in
connection with the Charged Portfolio or (c) the taking possession or
realisation of all or any part of the Charged Portfolio, except in the
case of gross negligence or wilful default upon its part.
11.7 So long as the Chargor is under any actual or contingent obligation in
respect of the Secured Obligations, the Chargor shall not exercise any
right which it may at any time have, by reason of the performance of its
obligations under this Agreement, to be indemnified by Corgi Classics or
to claim any contribution from any other person or to take the benefit
(whether by subrogation or otherwise) of any right, entitlement, interest
or remedy which the Security Trustee may hold in relation to the Secured
Obligations.
11.8 The Chargor will not accept or permit to subsist any collateral from
Corgi Classics or any other person in respect of any rights the Chargor
may have arising out of this Agreement: if, despite the foregoing, any
such collateral shall be accepted or subsisting,
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the Chargor acknowledges that the Chargor's rights under such collateral
shall be held on trust for the Security Trustee.
11.9 Any settlement or discharge hereunder shall be conditional upon no
security or payment to the Security Trustee by or on behalf of Corgi
Classics or the Chargor being avoided or reduced by virtue of any
bankruptcy, insolvency, liquidation or similar laws of general
application and shall in those circumstances be void.
12. SUBSEQUENT INTERESTS AND ACCOUNTS
12.1 If the Security Trustee at any time receives notice of any subsequent
mortgage, assignment, charge or other interest affecting all or any part
of the Charged Portfolio, all payments thereafter made by the Chargor to
the Security Trustee or any of the Secured Parties shall be treated as
having been credited to a new account of the Chargor and not as having
been applied in reduction of the Secured Obligations as at the time when
the Security Trustee received notice.
12.2 All monies received, recovered or realised by the Security Trustee under
this Agreement (including the proceeds of any conversion of currency) may
in its discretion be credited to and held in any suspense or impersonal
account pending their application from time to time in or towards the
discharge of any of the Secured Obligations.
13. COSTS AND EXPENSES
All the Security Trustee's costs and expenses (including legal fees,
stamp duties and any value added tax) incurred in connection with (a) the
execution of this Agreement or otherwise in relation to it, (b) the
perfection or enforcement of the collateral hereby constituted or (c) the
exercise of any Collateral Right, shall be reimbursed to the Security
Trustee by the Chargor on demand on a full indemnity basis together with
interest from the date the same were incurred to the date of payment at
such rates as the Security Trustee may reasonably determine.
14. CURRENCY CONVERSION
For the purpose of or pending the discharge of any of the Secured
Obligations the Security Trustee may convert any money received,
recovered or realised or subject to application by it under this
Agreement from one currency to another, as the Security Trustee may think
fit: and any such conversion shall be effected at the Security Trustee's
spot rate of exchange for the time being for obtaining such other
currency with the first currency.
15. NOTICES
Any notice or demand to be served by one person on another pursuant to
this Agreement may be served by leaving it at the address specified above
(or such other address as such person may previously have specified) or
by letter posted by prepaid first-class post to such address (which shall
be deemed to have been served on the fifth day following the date of
posting), or by fax to the fax number specified above (or such other
number as such person may previously have specified) which shall be
deemed to have been received when transmission has been completed)
provided that any notice to
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be served on the Security Trustee shall be effective only when actually
received by the Security Trustee, marked for the attention of the
department or officer specified by the Security Trustee for such purpose.
16. SUCCESSORS
16.1 This Agreement shall remain in effect despite any amalgamation or merger
(however effected) relating to the Security Trustee; and references to
the Security Trustee shall be deemed to include any assignee or successor
in title of the Security Trustee and any person who, under the laws of
its jurisdiction of incorporation or domicile, has assumed the rights and
obligations of the Security Trustee hereunder or to which under such laws
the same have been transferred.
16.2 The Chargor shall not be entitled to assign or transfer all or any of its
rights, benefits and obligations under this Agreement.
17. RELEASE AND DISCHARSGE
At such time as the Secured Obligations have been discharged in full the
Security Trustee shall, at the expense of the Chargor, execute such
documents (or procure that its nominees execute such documents) as the
Chargor may reasonably request and which may be required to discharge all
charges and security created by this Agreement or reassign the Charged
Portfolio.
18. PARTIAL INVALIDITY
If at any time any provision of this Agreement 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 of this Agreement nor of such provisions under the
law of any other jurisdiction shall in any way be affected or impaired
thereby.
19. LAW AND JURISDICTION
This Agreement shall be governed by English law and, for the Security
Trustee's benefit, the English courts shall have exclusive jurisdiction
to settle any dispute which may arise from or in connection with it.
20. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF this Agreement has been signed on behalf of the Security
Trustee and executed as a deed by the Chargor and is intended to be and is
hereby delivered by it as a deed on the date specified above.
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SCHEDULE
LETTER OF RESIGNATION
To: The Board of Directors of Corgi Classics Limited
Date: [ ]
Dear Sirs,
I hereby tender my resignation as director of Corgi Classics Limited (the
"COMPANY") with immediate effect and acknowledge that I have no claim whatsoever
against the Company whether in respect of accrued remuneration, fees or loss of
office or otherwise on any account and that there is no outstanding agreement or
arrangement under which the Company or any of its subsidiaries or associated
companies has or would have any obligation to me whether now or in the future or
under which I would derive any benefit.
SIGNED, SEALED AND
DELIVERED by
[ ]
in the presence of:
Name of Witness:
Address of Witness:
Occupation of Witness:
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THE SECURITY TRUSTEE
ABN AMRO BANK N.V., HONG KONG BRANCH
By: ___________________
Name: ___________________
Title: ___________________
THE CHARGOR
CORGI CLASSICS HOLDINGS LIMITED )
EXECUTED AS A DEED )
by CORGI CLASSICS HOLDINGS LIMITED )
acting through )
______________________ Director
______________________ Director/Secretary
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SCHEDULE 9
CONDITIONS SUBSEQUENT
PART I
1. Evidence that all amounts owing under the SBLC Facility have been fully
paid.
2. Evidence that the fees, costs and expenses required to be paid by the
Borrower pursuant to Clause 20.1 (Arrangement Fee) and Clause 20.2
(Agency Fee) have been paid.
PART II
1. Evidence of registration of:
(i) the Charge over Corgi Classics Holdings Shares against the
Borrower with the Hong Kong Companies Registry; and
(ii) the Subordination Deed against Xxx Xxxx Printing with the Hong
Kong Companies Registry.
PART III
1. Evidence of registration of the Subordination Deed against each of Luen
Tat Mould Mfg. Ltd., Luen Tat Model Design Co. Ltd. and Onchart
Industrial Ltd. with the BVI Companies Registry.
2. If deemed appropriate by the Banks' Cayman Islands counsel, evidence of
registration of the Subordination Deed against Xxx Xxxx Holdings with the
Companies Registry in Cayman Islands.
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EXECUTION PAGES
THE BORROWER
ZINDART LIMITED
By: /s/ XXXXXXXXX X.X. NGAN
Address: Xxxx X&X, 00/X, Xxxxx 0, Xxx Ping Industrial Centre
57 Xxxx Xxx Road
Tai Po
New Territories
Hong Kong
Fax: 0000 0000
THE GUARANTORS
XXX XXXX HOLDINGS CO. LTD.
By: /s/ XXXXXXXXX X.X. XXXX
Address: Xxxx X&X, 00/X, Xxxxx 0, Xxx Ping Industrial Centre
57 Xxxx Xxx Road
Tai Po
New Territories
Hong Kong
Fax: 0000 0000
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XXX XXXX PRINTING HOLDINGS CO., LIMITED
By: /s/ XXXXXXXXX X.X. NGAN
Address: Xxxx X&X, 00/X, Xxxxx 0, Xxx Ping Industrial Centre
57 Xxxx Xxx Road
Tai Po
New Territories
Hong Kong
Fax: 0000 0000
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THE ARRANGERS
ABN AMRO BANK N.V.
By: /s/ XXXXXXXXX XXXX
/s/ XXXXXXXXX XXXX
Address: 00/X Xxxxxx Xxxx Xxxxxx
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Fax: 0000 0000
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
HONG KONG BRANCH
By: /s/ XXXXXX XXXXX
/s/ XXXX XXXXXX
Address: 00/X Xxx Xxxxxxxx Xxxxxx
0 Xxxxxxxxx Xxxxx
Xxxxxxx
Xxxx Xxxx
Fax: 0000 0000
KBC BANK N.V., HONG KONG BRANCH
By: /s/ XXXXX SIN
Address: 00/X Xxxxxxx Xxxxx
00 Xxxxxxx Xxxx
Xxxxxxx
Xxxx Xxxx
Fax: 0000 0000
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STANDARD CHARTERED BANK
By: /s/ XXXXXXX XX
Address: 13/F Standard Chartered Tower
000 Xxxx Xxxx Xxxx
Xxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Fax: 0000 0000
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101
THE AGENT
ABN AMRO BANK N.V., HONG KONG BRANCH
By: /s/ XXXXXXXXX XXXX
/s/ XXXXXXXXX XXXX
Address: 00/X Xxxxxx Xxxx Xxxxxx
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Fax: 0000 0000
Attention: Xxxxxxx Xxx
THE BANKS
ABN AMRO BANK N.V.
By: /s/ XXXXXXXXX XXXX
/s/ XXXXXXXXX XXXX
Address: 00/X Xxxxxx Xxxx Xxxxxx
0 Xxxxx'x Xxxx Xxxxxxx
Xxxx Xxxx
Fax: 00000000
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
HONG KONG BRANCH
By: /s/ XXXXXX XXXXX
/s/ XXXX XXXXXX
Address: 00/X Xxx Xxxxxxxx Xxxxxx
0 Xxxxxxxxx Xxxxx
Xxxxxxx
Xxxx Xxxx
Fax: 0000 0000
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KBC BANK N.V., HONG KONG BRANCH
By: /s/ XXXXX SIN
Address: 00/X Xxxxxxx Xxxxx
00 Xxxxxxx Xxxx
Xxxxxxx
Xxxx Xxxx
Fax: 0000 0000
STANDARD CHARTERED BANK
By: /s/ XXXXXXX XX
Address: 13/F Standard Chartered Tower
000 Xxxx Xxxx Xxxx
Xxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Fax: 0000 0000
99
