Exhibit 10.7 Facility Agreement dated January 10, 2000 by and
between Xxxxx.xxx limited and Xx0xxx.xxx Limited.
THIS AGREEMENT is made on the January 2000
BETWEEN
(1) XXXXX.XXX LIMITED whose registered office is at Xxxxxxxxx
Xxxxx, Xxxxxx Xxxxxx, Xx Xxxxxx, Xxxxxx, Xxxxxxx Xxxxxxx (the
"Borrower"); and
(3) XX0XXX.XXX LIMITED whose registered office is at The Old
Chapel, Sacre Coeur, Rouge Bouillon, St Helier, Jersey, Channel
Islands (the "Lender").
NOW IT IS HEREBY AGREED as follows:
1. Interpretation
1.1 In this Agreement:
"Advance" means, save as otherwise provided herein, an advance
(as from time to time reduced by repayment) made or to be made by
the Lender hereunder. For the avoidance of doubt "Advance" shall
include amounts remitted to the Borrower by the Lender pursuant
to Clause 5.1;
"Available Facility" means, at any time and save as otherwise
provided herein, GBP10,000,000 (ten million pounds sterling) less
the amount of each Advance which has then been made hereunder;
"Business Plan" means the Business Plan as defined in the
Investment Agreement as revised from time to time by the Borrower
(with the approval of the Lender) and such other annual business
plan as adopted and revised by the Borrower from time to time;
"Debenture" means the debenture in the agreed form executed by
the Borrower in favour of the Lender;
"Designated Account" means such bank account of the Borrower as
the Borrower may from time to time notify the Lender;
"Event of Default" means any of those events specified in Clause
18;
"Exit Event" means either (i) the sale of the issued share
capital of the Borrower to a third party or parties acting in
concert or (ii) the listing of any shares in the Borrower on a
recognised stock exchange;
"Facility" means the sterling loan facility granted to the
Borrower in this Agreement;
"Group" means the Borrower and its subsidiaries;
"Interest Period" means, save as otherwise provided herein, any
of those periods mentioned in Clause 6;
"Investment Agreement" means the agreement of even date herewith
described as such and made inter alia between the parties hereto;
"Loan" means the aggregate principal amount for the time being
outstanding hereunder;
"Notice of Drawdown" means a notice substantially in the form set
out in the Second Schedule;
"Potential Event of Default" means any event which could
reasonably be expected to become (with the passage of time, the
giving of notice, the making of any determination hereunder or
any combination thereof) an Event of Default; and
"Repayment Date" means the earlier of the tenth anniversary of
this Agreement or the occurrence of an Exit Event.
1.2 Any reference in this Agreement to:
the "Lender" shall be construed so as to include its and any
subsequent successors and assigns in accordance with their
respective interests;
a "business day" shall be construed as a reference to a day
(other than a Saturday or Sunday) on which Lenders are generally
open for business in London;
a "Clause" shall, subject to any contrary indication, be
construed as a reference to a clause hereof;
an "encumbrance" shall be construed as a reference to a mortgage,
hypothec, contract mortgage, security interest, charge, pledge,
lien or other encumbrance securing any obligation of any person
or any other type of preferential arrangement (including, without
limitation, title transfer and retention arrangements) having a
similar effect;
a "holding company" of a company or corporation shall be
construed as a reference to any company or corporation of which
the first-mentioned company or corporation is a subsidiary;
"indebtedness" shall be construed so as to include any obligation
(whether incurred as principal or as surety) for the payment or
repayment of money, whether present or future, actual or
contingent;
a "month" is a reference to a period starting on one day in a
calendar month and ending on the numerically corresponding day in
the next succeeding calendar month save that, where any such
period would otherwise end on a day which is not a business day,
it shall end on the next succeeding business day, unless that day
falls in the calendar month succeeding that in which it would
otherwise have ended, in which case it shall end on the
immediately preceding business day Provided that, if a period
starts on the last business day in a calendar month or if there
is no numerically corresponding day in the month in which that
period ends, that period shall end on the last business day in
that later month (and references to "months" shall be construed
accordingly);
a "person" shall be construed as a reference to any person, firm,
company, corporation, government, state or agency of a state or
any association or partnership (whether or not having separate
legal personality) of two or more of the foregoing;
"repay" (or any derivative form thereof) shall, subject to any
contrary indication, be construed to include "prepay" (or, as the
case may be, the corresponding derivative form thereof);
a "Schedule" shall, subject to any contrary indication, be
construed as a reference to a schedule hereto;
a "subsidiary" of a company or corporation shall be construed as
a reference to any company or corporation:
(i) which is controlled, directly or indirectly, by the
first-mentioned company or corporation;
(ii) more than half the issued share capital of which is
beneficially owned, directly or indirectly, by the
first-mentioned company or corporation; or
(iii) which is a subsidiary of another subsidiary of the
first-mentioned company or corporation
and, for these purposes, a company or corporation shall be
treated as being controlled by another if that other company or
corporation is able to direct its affairs and/or to control the
composition of its board of directors or equivalent body;
"tax" shall be construed so as to include any tax, levy, impost,
duty or other charge of a similar nature (including, without
limitation, any penalty or interest payable in connection with
any failure to pay or any delay in paying any of the same);
"VAT" shall be construed as a reference to value added tax
including any similar tax which may be imposed in place thereof
from time to time;
a "wholly-owned subsidiary" of a company or corporation shall be
construed as a reference to any company or corporation which has
no other members except that other company or corporation and
that other company's or corporation's wholly-owned subsidiaries
or persons acting on behalf of that other company or corporation
or its wholly-owned subsidiaries; and
the "winding-up", "dissolution" or "administration" of a company
or corporation shall be construed so as to include any equivalent
or analogous proceedings under the law of the jurisdiction in
which such company or corporation is incorporated or any
jurisdiction in which such company or corporation carries on
business including the seeking of liquidation, winding-up,
desastre, reorganisation, dissolution, administration,
arrangement, adjustment, protection or relief of debtors.
1.3 "GBP" and "sterling" denote lawful currency of the United
Kingdom.
1.4 Save where the contrary is indicated, any reference in this
Agreement to:
(i) this Agreement or any other agreement or document shall
be construed as a reference to this Agreement or, as the case may
be, such other agreement or document as the same may have been,
or may from time to time be, amended, varied, novated or
supplemented;
(ii) a statute shall be construed as a reference to such
statute as the same may have been, or may from time to time be,
amended or re-enacted; and
(iii) a time of day shall be construed as a reference to
London time.
1.5 Clause and Schedule headings are for ease of reference only.
2. The Facility
The Lender grants to the Borrower, upon the terms and subject to
the conditions hereof, a loan facility in an aggregate amount of
up to GBP10,000,000 (ten million pounds sterling).
3. Purpose
3.1 The Facility is intended for general corporate and working
capital purposes of the Borrower and the Borrower shall apply all
amounts raised by it hereunder in or towards satisfaction of the
general corporate financing requirements set out in the Schedules
to the Business Plan.
3.2 Without prejudice to the obligations of the Borrower
hereunder, the Lender shall not be obliged to concern itself with
the application of amounts raised by the Borrower hereunder.
4. Conditions Precedent
Save as the Lender may otherwise agree, the Borrower may not
deliver any Notice of Drawdown hereunder and no drawings will
take place under Clause 5.1 unless the Lender has confirmed to
the Borrower that it has received all of the documents listed in
the First Schedule and that each is, in form and substance,
satisfactory to the Lender.
5. Availability of the Facility
5.1 Upon completion of this Agreement not more than three
business days after receipt of a Notice of Drawdown from the
Borrower, the Lender will, subject to clause 4, remit to the
Designated Account an Advance in the sum of GBP1,540,000 (one
million five hundred and forty thousand pounds sterling).
5.2 The Lender will, subject to Clause 4, remit to the
Designated Account on the 23rd day of March 2000 and thereafter
on the 23rd day of the last month in each quarter (or if such day
is not a business day, on the next following business day) the
amount (as rounded up to the nearest GBP100,000) of negative
cash
flow set against the following quarter in the Business Plan,
provided that no remittance may be made under Clause 5 which
would cause the amount drawn under Clause 5 to exceed the
Available Facility.
5.3 Save as otherwise provided herein, an Advance will be made
by the Lender to the Borrower in respect of amounts in excess of
those provided for in Clause 5.2 if:
(i) not less than three business days before the proposed
date for the making of such Advance, the Lender has received from
the Borrower a Notice of Drawdown therefor, receipt of which
shall oblige the Borrower to borrow the amount therein requested
on the date therein stated upon the terms and subject to the
conditions contained herein;
(ii) the proposed date for the making of such Advance is a
business day;
(iii) the proposed date for the making of such Advance
is not less than five business days after the date upon which the
previous Advance (if any) was made hereunder;
(iv) the proposed amount of such Advance is no greater than
GBP50,000 in any month and shall not cause the aggregate of
Advances under Clause 5.2 made in any consecutive period of
twelve months to exceed GBP250,000 provided that if such amount
is
greater than the Available Facility, the amount of the Advance
shall be limited to the Available Facility; and
(v) either:
(a) no Event of Default or Potential Event of Default has
occurred; and
(b) the representations set out in Clause 14 are in all
material respects true on and as of the proposed date for the
making of such Advance.
6. Interest Periods
6.1 The period for which an Advance is outstanding shall be
divided into successive periods each of which (other than the
first) shall start on the last day of the preceding such period
provided that the first Interest period shall commence on the
date falling six months after the date of this Agreement and
shall apply to all Advances then outstanding.
6.2 The duration of each Interest Period shall, save as
otherwise provided herein, be one month.
6.3 The first Interest Period in respect of any Advance other
than the first will terminate on the last day of the then current
Interest Period applicable to the first Advance.
7. Interest
7.1 During the first six (6) months from date of signature of
this Agreement no interest shall accrue on amounts Advanced
during such first six (6) months. Thereafter, on the last day of
each Interest Period, the Borrower shall pay accrued interest on
the outstanding amount of the Facility, provided that no such
payment shall be made until the earlier of the Repayment Date and
the first Positive Cashflow Day.
7.2 For the purposes of this Clause a "Positive Cashflow Day"
shall be the last day of an Interest Period:
(i) falling on or after the second anniversary of this Agreement
and
(ii) in respect of which the Borrower's business shall have shown
a positive cash flow.
7.3 Accrued interest shall be payable on each Positive Cashflow
Day in an amount equal to the lower of:
(i) one half of the amount of positive cash flow of the business
of the Borrower during the Interest Period ending on such
Positive Cashflow Day; and
(ii) the amount of accrued interest unpaid.
7.4 For the avoidance of doubt unpaid interest shall accrue and
remain payable.
7.5 The rate of interest applicable to an Advance from time to
time shall be eight per cent per annum.
8. Repayment
Subject to any requirement to make early repayment in accordance
with clauses 13 and 18.1 the Loan together with accrued interest
shall be repayable by the Borrower on the Repayment Date.
9. Cancellation and Prepayment
9.1 The Borrower may, by giving to the Lender not less than
thirty days' prior notice to that effect, cancel the whole or any
part (being an amount or integral multiple of GBP100,000) of the
Available Facility.
9.2 The Borrower may, if it has given to the Lender not less
than thirty days' prior notice to that effect, prepay without
penalty the whole of any Advance or any part of any Advance
(being an amount or integral multiple of GBP100,000) on the last
day of any Interest Period.
9.3 Any notice of cancellation or prepayment given by the
Borrower pursuant to Clause 9.1 or 9.2 shall be irrevocable,
shall specify the date upon which such cancellation or prepayment
is to be made and the amount of such cancellation or prepayment
and, in the case of a notice of prepayment, shall oblige the
Borrower to make such prepayment on such date.
9.4 No principal shall be repaid until all outstanding amounts
of interest have been paid.
9.4 The Borrower shall not repay all or any part of the Loan
except at the times and in the manner expressly provided for in
this Agreement and shall not be entitled to reborrow any amount
repaid.
10. Taxes
10.1 All payments to be made by the Borrower to the Lender
hereunder shall be made free and clear of and without deduction
for or on account of tax unless the Borrower is required to make
such a payment subject to the deduction or withholding of tax, in
which case the sum payable by the Borrower in respect of which
such deduction or withholding is required to be made shall be
increased to the extent necessary to ensure that, after the
making of the required deduction or withholding, the Lender
receives and retains (free from any liability in respect of any
such deduction or withholding) a net sum equal to the sum which
it would have received and so retained had no such deduction or
withholding been made or required to be made.
10.2 Without prejudice to the provisions of Clause 10.1, if the
Lender is required to make any payment on account of tax (not
being a tax imposed on the net income of the Lender by the
jurisdiction in which it is incorporated) or otherwise on or in
relation to any sum received or receivable by it hereunder
(including, without limitation, any sum received or receivable
under this Clause 10) or any liability in respect of any such
payment is asserted, imposed, levied or assessed against the
Lender, the Borrower shall, upon demand of the Lender, promptly
indemnify the Lender against such payment or liability, together
with any interest, penalties and expenses payable or incurred in
connection therewith.
10.3 If the Lender intends to make a claim pursuant to Clause 10,
it shall notify the Borrower of the event by reason of which it
is entitled to make such claim Provided that nothing herein shall
require the Lender to disclose any confidential information
relating to the organisation of its affairs.
11. Tax Receipts
11.1 If, at any time, the Borrower is required by law to make any
deduction or withholding from any sum payable by it hereunder (or
if thereafter there is any change in the rates at which or the
manner in which such deductions or withholdings are calculated),
the Borrower shall promptly notify the Lender.
11.2 If the Borrower makes any payment hereunder in respect of
which it is required to make any deduction or withholding, it
shall pay the full amount required to be deducted or withheld to
the relevant taxation or other authority within the time allowed
for such payment under applicable law and shall deliver to the
Lender, promptly upon receipt of the same, an original receipt
(or a certified copy thereof) issued by such authority evidencing
the payment to such authority of all amounts so required to be
deducted or withheld in respect of such payment.
12. Increased Costs
12.1 If, by reason of any change in law or in its interpretation
or administration:
(a) there is any increase in the cost to the Lender of
funding or maintaining all or any of the advances comprised in a
class of advances formed by or including the Advances; or
(b) the Lender becomes liable to make any payment on
account of tax or otherwise (not being a tax imposed on the net
income of the Lender by the jurisdiction in which it is
incorporated) on or calculated by reference to the amount of the
Advances and/or to any sum received or receivable by it
hereunder,
then the Borrower shall, from time to time on demand of the
Lender, promptly pay to the Lender amounts sufficient to
indemnify it or any such holding company against, as the case may
be, (1) such increased cost (or such proportion of such increased
cost as is, in the opinion of the Lender, attributable to its
funding or maintaining Advances) or (2) such liability.
12.2 If the Lender intends to make a claim pursuant to Clause
12.1, it shall notify the Borrower of the event by reason of
which it is entitled to do so Provided that nothing herein shall
require the Lender to disclose any confidential information
relating to the organisation of its affairs.
13. Illegality
If, at any time, it is unlawful for the Lender to make, fund or
allow to remain outstanding all or any of the Advances, then the
Lender shall, promptly after becoming aware of the same, deliver
to the Borrower a certificate to that effect and:
(i) the Lender shall not thereafter be obliged to make any
Advances and the amount of the Available Facility shall be
immediately reduced to zero; and
(ii) if the Lender so requires, the Borrower shall on such
date as the Lender shall have specified repay each outstanding
Advance together with accrued interest thereon and all other
amounts owing to the Lender hereunder.
14. Representations
The Borrower represents that:
(i) it is a corporation duly organised under the laws of
Jersey with power to enter into this Agreement and to exercise
its rights and perform its obligations hereunder and all
corporate and other action required to authorise its execution of
this Agreement and its performance of its obligations hereunder
has been duly taken;
(ii) under the laws of Jersey in force at the date hereof,
it will not be required to make any deduction or withholding from
any payment it may make hereunder;
(iii) under the laws of Jersey in force at the date
hereof, the claims of the Lender against the Borrower under this
Agreement will rank at least pari passu with the claims of all
its other unsecured creditors save those whose claims are
preferred solely by any bankruptcy, desastre, insolvency,
liquidation or other similar laws of general application;
(iv) in any proceedings taken in its jurisdiction of
incorporation in relation to this Agreement, it will not be
entitled to claim for itself or any of its assets immunity from
suit, execution, attachment or other legal process;
(v) all acts, conditions and things required to be done,
fulfilled and performed in order (a) to enable it lawfully to
enter into, exercise its rights under and perform and comply with
the obligations expressed to be assumed by it in this Agreement
and the Debenture and (b) to ensure that the obligations
expressed to be assumed by it in this Agreement and the Debenture
are legal, valid and binding;
(vi) it has not taken any corporate action nor have any
other steps been taken or legal proceedings been started or (to
the best its knowledge and belief) threatened against the
Borrower for its winding-up, dissolution, administration or
re-organisation or for the appointment of a liquidator, viscount,
receiver, administrator, administrative receiver, trustee or
similar officer of it or of any or all of its assets or revenues;
(vii) it is not in breach of or in default under any
agreement to which it is a party or which is binding on it or any
of its assets to an extent or in a manner which might have a
material adverse effect on the business or financial condition of
the Group;
(viii) no action or administrative proceeding of or
before any court or agency which might have a material adverse
effect on the business or financial condition of the Borrower has
been started or threatened;
(ix) all of the written information supplied by the Borrower
to the Lender in connection herewith is true, complete and
accurate in all material respects and it is not aware of any
material facts or circumstances that have not been disclosed to
the Lender and which might, if disclosed, adversely affect the
decision of a person considering whether or not to provide
finance to the Borrower;
(x) save as permitted hereunder, no encumbrance exists over
all or any of the present or future revenues or assets of the
Borrower;
(xi) the execution by the Borrower of this Agreement or the
Debenture and the Borrower's exercise of its rights and
performance of its obligations hereunder or thereunder will not
result in the existence of nor oblige the Borrower to create any
encumbrance over all or any of its present or future revenues or
assets (other than as created by the Debenture);
(xii) the execution by the Borrower of this Agreement
and the Debenture and the Borrower's exercise of its rights and
performance of its obligations hereunder or thereunder do not and
will not:
(a) conflict with any agreement, mortgage, hypothec,
contract mortgage, security interest, bond or other instrument or
treaty to which such party is a party or which is binding upon it
or any of its assets;
(b) conflict with the such party's constitutional documents
and rules and regulations; or
(c) conflict with any applicable law, regulation or
official or judicial order.
15. Financial Information
15.1 The Borrower shall:
(i) as soon as the same become available, but in any event
within 120 days after the end of each of its financial years,
deliver to the Lender its consolidated financial statements for
such financial year;
(ii) as soon as the same become available, but in any event
within 90 days after the end of each half of each of its
financial years, deliver to the Lender its consolidated financial
statements for such period; and
(iii) from time to time on the request of the Lender,
furnish the Lender with such information about the business and
financial condition of the Group as the Lender may reasonably
require.
15.2 The Lender shall ensure that:
(i) each set of financial statements delivered by it
pursuant to Clause 15.1 is prepared on the same basis as was used
in the preparation of any financial statements previously
prepared and in accordance with accounting principles generally
accepted in England and consistently applied; and
(ii) each set of financial statements delivered by it
pursuant to paragraph (i) of Clause 15.2 is audited by auditors
reasonably acceptable to the Lender as soon as reasonably
practicable following preparation of such accounts.
16. Financial Covenant
The Borrower undertakes that it shall conduct its business in
accordance with the provisions of the Business Plan. The
Borrower further undertakes to use its reasonable endeavours to
ensure that sales levels achieved on a monthly basis shall be at
least as favourable as those shown in the Schedules to the
Business Plan, provided that during any consecutive period of
twelve months such sales levels may fall by 25% below the levels
shown in the Schedules to the Business Plan (as the same may from
time to time be revised with the approval of the Lender).
17. Covenants
17.1 The Borrower shall:
(i) obtain, comply with the terms of and do all that is
necessary to maintain in full force and effect all material
authorisations, approvals, licences and consents required in or
by the laws and regulations of its jurisdiction of incorporation
to enable it lawfully to enter into and perform its obligations
under this Agreement or to ensure the legality, validity,
enforceability or admissibility in evidence in its jurisdiction
of incorporation of this Agreement;
(ii) maintain insurances on and in relation to its business
and material assets with reputable underwriters or insurance
companies against such risks and to such extent as is usual for
companies carrying on a business such as that carried on by the
Group;
(iii) after the delivery of any Notice of Drawdown and
before the proposed making of the Advance requested therein,
notify the Lender of the occurrence of any event which results in
or may reasonably be expected to result in any of the
representations contained in Clause 14 being untrue in any
material respect at or before the time of the proposed making of
such Advance;
(iv) promptly inform the Lender of the occurrence of any
Event of Default or Potential Event of Default and, upon receipt
of a written request to that effect from the Lender, confirm to
the Lender that, save as previously notified to the Lender or as
notified in such confirmation, no Event of Default or Potential
Event of Default has occurred; and
(v) ensure that at all times the claims of the Lender
against it under this Agreement rank at least pari passu with the
claims of all its other unsecured creditors save those whose
claims are preferred by any bankruptcy, desastre, insolvency,
liquidation or other similar laws of general application.
17.2 No member of the Group shall, without the prior written
consent of the Lender (which shall not unreasonably be withheld):
(i) pay, make or declare any dividend or other distribution
in respect of any financial year;
(ii) create or permit to subsist any encumbrance over all or
any of its present or future revenues or assets other than (1)
the Debenture or (2) an encumbrance which has been disclosed in
writing to the Lender prior to the execution hereof and secures
only indebtedness outstanding at the date hereof or (3) such
encumbrance necessary to obtain the invoice discounting facility,
details of which have been disclosed to the Lender;
(iii) make any loans, grant any credit (save in the
ordinary course of business) or give any guarantee or indemnity
(except as required hereby) to or for the benefit of any person
or otherwise voluntarily assume any liability, whether actual or
contingent, in respect of any obligation of any other person;
(iv) issue any further shares (save to the trust for the
benefit of the Borrower's employees, details of which have been
disclosed to the Lender) or alter any rights attaching to its
issued shares in existence at the date hereof; or
(v) (disregarding sales of stock in trade in the ordinary
course of business) sell, lease, transfer or otherwise dispose
of, by one or more transactions or series of transactions
(whether related or not), the whole or any part of its revenues
or its assets.
18. Events of Default
18.1 If:
(i) the Borrower shall fail to pay, within three business
days (or twenty business days in the case of interest payments
due under Clause 7) of the due date, any sum due from it
hereunder at the time, in the currency and in the manner
specified herein; or
(ii) any representation or statement made by the Borrower in
this Agreement or in any notice or other document, certificate or
statement delivered by it pursuant hereto or in connection
herewith is or proves to have been misleading or materially
incorrect when made; or
(iii) the Borrower fails duly to perform or comply with
any of the obligations expressed to be assumed by it in Clause 15
or 16; or
(iv) the Borrower fails duly to perform or comply with any
other obligation expressed to be assumed by it in this Agreement
or the Debenture and such failure, if capable of remedy, is not
remedied within fourteen days after the Lender has given notice
thereof to such party; or
(v) any indebtedness of any member of the Group being in
aggregate in excess of GBP25,000 is declared to be or otherwise
becomes due and payable prior to its specified maturity or any
creditor or creditors of the any member of the Group become
entitled to declare any indebtedness of such party due and
payable prior to its specified maturity; or
(vi) any member of the Group is unable to pay its debts as
they fall due, commences negotiations with any one or more of its
creditors with a view to the general readjustment or rescheduling
of its indebtedness or makes a general assignment for the benefit
of or a composition with its creditors; or
(vii) any member of the Group takes any corporate action
or other steps are taken or legal proceedings are started for its
winding-up, desastre, dissolution, administration or
re-organisation or for the appointment of a liquidator, viscount,
receiver, administrator, administrative receiver, trustee or
similar officer of it or of any or all of its revenues and assets
save that this clause will not apply in respect of any action
taken vexatiously or without cause; or
(viii) any execution or distress is levied against, or an
encumbrancer takes possession of the whole or any material part
of, the property, undertaking or assets of any member of the
Group; or
(ix) by or under the authority of any government, (a) the
management of any member of the Group is wholly or partially
displaced or the authority of any member of the Group in the
conduct of its business is wholly or partially curtailed or (b)
all or a majority of the issued shares of the Borrower or the
whole or any part (the book value of which is twenty per cent. or
more of the book value of the whole) of the revenues or assets of
the Group is seized, nationalised, expropriated or compulsorily
acquired; or
(x) the Borrower repudiates this Agreement or the Debenture
or does or causes to be done any act or thing evidencing an
intention to repudiate this Agreement or the Debenture; or
(xiii) at any time any act, condition or thing required
to be done, fulfilled or performed in order (a) to enable the
Borrower lawfully to enter into, exercise its rights under and
perform the obligations expressed to be assumed by it in this
Agreement or the Debenture, (b) to ensure that the obligations
expressed to be assumed by the Borrower in this Agreement or the
Debenture are legal, valid and binding or (c) to make this
Agreement or the Debenture admissible in evidence in Jersey is
not done, fulfilled or performed; or
(xi) at any time it is or becomes unlawful for the Borrower
to perform or comply with any or all of its obligations hereunder
or the Debenture or any of the obligations of the Borrower
hereunder or thereunder are not or cease to be legal, valid and
binding which would have a material adverse effect on the lender;
or
(xii) any circumstances arise which in the reasonable
opinion of the Lender constitute a material adverse change in the
business, assets or financial condition of the Borrower;
then, and in any such case and at any time thereafter, the
Lender may by written notice to the Borrower:
(a) declare the Advances to be immediately due and payable
(whereupon the same shall become so payable together with accrued
interest thereon and any other sums then owed by the Borrower
hereunder) or declare the Advances to be due and payable on
demand of the Lender; and/or
(b) declare that any undrawn portion of the Facility shall
be cancelled, whereupon the same shall be cancelled and the
Available Facility shall be reduced to zero.
18.2 If, pursuant to Clause 18.1, the Lender declares the
Advances to be due and payable on demand of the Lender, then, and
at any time thereafter, the Lender may by written notice to the
Borrower:
(i) call for repayment of the Advances on such date as it
may specify in such notice (whereupon the same shall become due
and payable on such date together with accrued interest thereon
and any other sums then owed by the Borrower hereunder) or
withdraw its declaration with effect from such date as it may
specify in such notice; and/or
(ii) select as the duration of any Interest Period which
begins whilst such declaration remains in effect a period of one
month or less.
19. Default Interest and Indemnity
19.1 If any sum due and payable by the Borrower hereunder is not
paid on the due date or if any sum due and payable by the
Borrower under any judgement of any court in connection herewith
is not paid on the date of such judgement, the period beginning
on such due date or, as the case may be, the date of such
judgement and ending on the date upon which the obligation of the
Borrower to pay such sum (the balance thereof for the time being
unpaid being herein referred to as an "unpaid sum") is discharged
shall be divided into successive periods, each of which (other
than the first) shall start on the last day of the preceding such
period and the duration of each of which be selected by the
Lender.
19.2 During each such period relating thereto as is mentioned in
Clause 19.1 an unpaid sum shall bear interest at the rate per
annum which is the sum from time to time of two per cent, the
Margin and the Base Rate from time to time applicable thereto.
19.3 Any interest which shall have accrued under Clause 19 in
respect of an unpaid sum shall be due and payable and shall be
paid by the Borrower at the end of the period by reference to
which it is calculated or on such other date or dates as the
Lender may specify by written notice to the Borrower.
19.4 The Borrower undertakes to indemnify the Lender against:
(i) any cost, claim, loss, expense (including legal fees)
or liability together with any VAT thereon, which it may sustain
or incur as a consequence of the occurrence of any Event of
Default or any default by the Borrower in the performance of any
of the obligations expressed to be assumed by it in this
Agreement; and
(ii) any loss it may suffer as a result of its funding an
Advance requested by the Borrower hereunder but not made by
reason of the operation of any one or more of the provisions
hereof.
20. Payments
20.1 On each date on which this Agreement requires an amount
denominated in sterling to be paid by the Borrower, the Borrower
shall make the same available to the Lender by payment in
sterling and in immediately available, freely transferable,
cleared funds to such account or bank as the Lender may have
specified for this purpose).
20.2 On each date on which this Agreement requires an amount
denominated in sterling to be paid by the Lender to the Borrower
hereunder, the Lender shall make the same available to the
Borrower by payment in sterling and in immediately available,
freely transferable, cleared funds to the Borrower's Designated
Account.
20.3 All payments required to be made by the Borrower hereunder
shall be calculated without reference to any set-off or
counterclaim and shall be made free and clear of and without any
deduction for or on account of any set-off or counterclaim.
21. Set-Off
The Borrower authorises the Lender to apply any credit balance to
which the Borrower is entitled on any account of the Borrower
with the Lender in satisfaction of any sum due and payable from
the Borrower to the Lender hereunder but unpaid; for this
purpose, the Lender is authorised to purchase with the moneys
standing to the credit of any such account such other currencies
as may be necessary to effect such application. The Lender shall
not be obliged to exercise any right given to it by this Clause
21.
22. Costs and Expenses
22.1 The Borrower shall, from time to time on demand of the
Lender, reimburse the Lender for all costs and expenses
(including legal fees) together with any VAT thereon incurred in
or in connection with the preservation and/or enforcement of any
of its rights under this Agreement.
22.2 The Borrower shall pay all stamp, registration and other
taxes to which this Agreement or any judgement given in
connection herewith is or at any time may be subject and shall,
from time to time on demand, indemnify the Lender against any
liabilities, costs, claims and expenses resulting from any
failure to pay or any delay in paying any such tax.
23. Benefit of Agreement
This Agreement shall be binding upon and enure to the benefit of
each party hereto and its or any subsequent successors and
assigns.
24. Assignments
24.1 The Borrower shall not be entitled to assign or transfer all
or any of its rights, benefits and obligations hereunder.
24.2 The Lender shall be entitled to assign the benefit of this
Agreement, but not its obligations hereunder, to a member of the
Lender Group Provided That if an assignee ceases to be a member
of the Lender Group, the Lender shall without delay notify the
Borrower that such event has occurred and shall procure the
assignment of the benefit of this Agreement back to the Lender or
another member of the Lender Group. In this Sub-clause, "Lender
Group" shall mean any holding company or subsidiary of the Lender
or any subsidiary of any holding company of the Lender, and
"subsidiary" and "holding company" shall have the respective
meanings ascribed thereto by Section 736 of the Companies Xxx
0000
25. Calculations and Evidence of Debt
25.1 Interest shall accrue from day to day and shall be
calculated on the basis of a year of 365 days and the actual
number of days elapsed.
25.2 The Lender shall maintain in accordance with its usual
practice accounts evidencing the amounts from time to time lent
by and owing to it (including interest) hereunder.
26. Remedies and Waivers
No failure by the Lender to exercise, nor any delay by the Lender
in exercising, any right or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any
right or remedy prevent any further or other exercise thereof or
the exercise of any other right or remedy. The rights and
remedies herein provided are cumulative and not exclusive of any
rights or remedies provided by law.
27. Partial Invalidity
If, at any time, any provision hereof is or becomes illegal,
invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of
the remaining provisions hereof nor the legality, validity or
enforceability of such provision under the law of any other
jurisdiction shall in any way be affected or impaired thereby.
28. Notices
28.1 Each communication to be made hereunder shall be made in
writing but, unless otherwise stated, may be made by telex or
letter.
28.2 Any communication or document to be made or delivered by one
person to another pursuant to this Agreement shall (unless that
other person has by fifteen days' written notice to the one
specified another address) be made or delivered to that other
person at the address identified with its signature below and
shall be deemed to have been made or delivered at the opening of
business on the business day following the date of despatch (in
the case of any communication made by telefax) or (in the case of
any communication made by delivery of letter) when left at that
address or (as the case of any communication made by postage of
letter) ten days after being deposited in the post postage
prepaid in an envelope addressed to it at that address.
29. Law
This Agreement shall be governed by, and shall be construed in
accordance with, English law.
30. Jurisdiction
Each of the parties hereto irrevocably agrees that the courts of
Jersey shall have non-exclusive jurisdiction to hear and
determine any suit, action or proceeding, and to settle any
disputes, which may arise out of or in connection with this
Agreement and, for such purposes, irrevocably submits to the
non-exclusive jurisdiction of such courts.
AS WITNESS the hands of the duly authorised representatives of
the parties hereto on the date set out above.
The Borrower
XXXXX.XXX LIMITED
By: Xxxxxxxxxxx Xxxxxxx Xxxxx Xxxxxxx
Address: Xxxxxxxxx House, Castle Street, St Helier, Jersey,
Channel Islands
The Lender
XX0XXX.XXX LIMITED
By: Xxx Xxxx Xxxx X.X.Xxxx
Address: The Old Chapel, Sacre Coeur, Rouge Bouillon, St Helier,
Jersey, Channel Islands
THE FIRST SCHEDULE
Condition Precedent Documents
(i) a copy, certified a true copy by a duly authorised officer
of the Borrower, of its Memorandum and Articles of Association;
(ii) a copy, certified a true copy by a duly authorised officer
of the Borrower, of a Board Resolution of the Borrower approving
the execution, delivery and performance of this Agreement and the
Debenture and the terms and conditions hereof and thereof and
authorising a named person or persons to sign this Agreement and
any documents to be delivered by the Borrower pursuant hereto;
(iii) a certificate of a duly authorised officer of the
Borrower setting out the names and signatures of the persons
authorised to sign, on behalf of the Borrower, this Agreement,
the Debenture and any documents to be delivered by the Borrower
pursuant hereto or thereto; and
(iv) the Debenture to be executed by the Borrower.
THE SECOND SCHEDULE
Notice of Drawdown
From: Xxxxx.xxx Limited
To: XX0Xxx.xxx Limited
Dated:
Dear Sirs,
1. We refer to the agreement (the "Facility Agreement") dated
January, 2000 and made between ourselves as Borrower, and
yourselves as Lender. Terms defined in the Facility Agreement
shall have the same meaning in this notice.
2. We hereby give you notice that, pursuant to the Facility
Agreement and on [date of proposed Advance], we wish to borrow an
Advance in the amount of GBP[ ] upon the terms and subject to the
conditions contained therein.
3. We confirm that, at the date hereof, the representations set
out in Clause 14 of the Facility Agreement are true and no Event
of Default or Potential Event of Default has occurred.
4. We confirm that the Advance is to provide working capital
for the month of [ ] in excess of that set out in the
Business Plan.
5. The proceeds of this drawdown should be credited to [insert
account details].
Yours faithfully
.............................
for and on behalf of
Xxxxx.xxx Limited
