THIS AGREEMENT is made on December 2001
BETWEEN:-
(1) LLOYDS TSB COMMERCIAL FINANCE LIMITED of Boston House, Little Green,
Richmond, Surrey ("the Bank")
(2) ELCOM INFORMATION TECHNOLOGY LIMITED (company number 2977666) whose
registered office is at First Floor Bouverie House, 000 Xxxxx Xxxxxx,
Xxxxxx XX0X 0XX ("EIT")
(3) ELCOM HOLDINGS LIMITED (company number 2838561) whose registered office
is at First Floor Bouverie House, 000 Xxxxx Xxxxxx, Xxxxxx XX0X 0XX
("EHL")
(4) AJJP LIMITED (company number 4336259) whose registered office is at 00
Xxx Xxxxxx, Xxxxxx XX0X 0XX ("Newco")
in relation to Debt Purchase Agreements dated 1 March 2001 made between the Bank
and EIT and EHL respectively, as read in conjunction with side letters ("the
Side Letters") from the Bank to each of EIT and EHL dated 16 February 2001
(together "the Debt Purchase Agreements" and individually a "Debt Purchase
Agreement") as incorporating, in each case, the standard terms and conditions
referred to therein ("the Standard Terms and Conditions").
1. Interpretation
1.1 Words and expressions defined in the Debt Purchase Agreements and the
Standard Terms and Conditions shall bear the same meanings where used in
this Agreement, unless the context clearly does not so admit.
1.2 References below to the "Debentures" are to the All Assets Debentures
dated 1 March 2001 executed by each of EIT and EHL in favour of the
Bank.
1.3 References in this Agreement to the "Offer" are to the offer made on
even date by EHL and EIT to Newco to sell to Newco the Assets therein
mentioned and to any agreement constituted by acceptance of that offer
in accordance with its terms and references to "Completion" are to
Completion of that agreement as provided therein.
2. Novation
2.1 The parties hereto agree that, with effect from Completion and subject
as specifically provided below, Newco shall be solely entitled to and
solely responsible for the discharge of all of the rights and
obligations of EIT and EHL under the Debt Purchase Agreements, in
substitution for EIT and EHL:-
(A) as if the Debt Purchase Agreements together constitute one Debt
Purchase Agreement and Newco is and has been the Client and
"you" referred to in
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the Standard Conditions and after Completion will also continue
to be so for the purposes of any Debts arising thereafter; and
(B) subject to any variations detailed in the draft Debt Purchase
Agreement attached as Appendix A.
2.2 Nothing in this Agreement shall:-
(A) release EIT or EHL from any obligations referable to any Debts
which have Vested to the extent of any monies or remittances or
instruments they receive relating thereto whether before or
Completion; or
(B) operate to transfer to or impose upon Newco any obligations or
security constituted by the Debentures; or
(C) oblige EHL to EIT to guarantee or indemnify the Bank in respect
of the performance by Newco of its obligations hereunder nor
Newco to indemnify EHL or EIT in respect of any non-performance
by them or either of them of their obligations under (i) the
Debt Purchase Agreements, to the extent they should have been
performed prior to Completion or (ii) this Agreement.
2.3 Nothing in this Agreement shall, as between EIT, EHL and Newco, affect
their respective rights and obligations under the Offer including
(without limitation) the indemnity given to Newco in respect of any
Excluded Liabilities referable to the Debt Purchase Agreements or either
of them.
2.4 The Bank acknowledges that pursuant to the terms of the Offer any
residual ownership or other interest of EIT and EHL in the Debts and
their Related Rights and all other rights and monies referable thereto
will vest in Newco and (on and subject to Completion) the Bank hereby
releases the same and all the other Assets (as defined in the Offer)
from all security and other provisions affecting the same under the
Debentures and also hereby consents to their sale to Newco under the
Offer.
2.5 Newco shall as security for its obligations to the Bank hereby
contemplated execute and deliver an All Assets Debenture in the form
attached and such Debenture shall also be subject to the provisions of
the Side Letters to the extent capable of applying to Clause 6.1.1.
thereof.
3. General
3.1 This Agreement may be executed in any number of counterparts each of
which when duly executed and delivered shall constitute an original.
3.2 This Agreement may only be varied by further agreement in writing
executed by all of the parties hereto.
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3.3 Each of the parties shall execute and do such further acts and things
and deeds as are necessary to give effect to the provisions of this
Agreement.
3.4 Each party shall pay to its own costs and expenses incurred in
connection with this Agreement save that Newco shall bear the reasonable
fees and expenses of Bond Xxxxxx incurred by the Bank in connection
herewith and the related documents and Newco shall also on Completion
pay to the Bank the Arrangement Fee provided in Appendix A hereto.
3.4 The provisions of Standard Conditions 19.2 (assignment), 19.3 (delay or
waiver), 19.5 (no partnership) and 20 (notices and jurisdiction) of
Standard Conditions shall apply mutatis mutandis to this Agreement.
IN WITNESS whereof this Agreement has been duly executed as a deed of the
parties on the day and year first before written
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EXECUTED and DELIVERED as a Deed )
of LLOYDS TSB COMMERCIAL )
FINANCE LIMITED in the presence of:- )
by its Attorney X. X. Xxxxxxxx in the presence of :
Xxxxxx
Xxxx Xxxxxx
Solicitor
Authorised Officer
Authorised Officer
EXECUTED and DELIVERED as a Deed )
of ELCOM INFORMATION )
TECHNOLOGY LIMITED in the presence )
of:- )
Director
/s/ Xxxxxx X. Xxxxxxx
Director/Secretary
/s/ Xxxxx X. Xxxxxxx
EXECUTED and DELIVERED as a Deed )
of ELCOM HOLDINGS LIMITED in the )
presence of:- )
Director
/s/ Xxxxxx X. Xxxxxxx
Director/Secretary
/s/ Xxxxx X. Xxxxxxx
EXECUTED and DELIVERED as a Deed )
of AJJP LIMITED in the presence of:- )
Director
/s/ Xxxxxxx Xxxxx
Director/Secretary
/s/ Xxxx Xxxxxx
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APPENDIX A
(Amended Form of Debt Purchase Agreement)
DATED 2001
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(1) LLOYDS TSB COMMERCIAL FINANCE LIMITED
(2) ELCOM INFORMATION TECHNOLOGY LIMITED
(3) ELCOM HOLDINGS LIMITED
(4) AJJP LIMITED
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NOVATION AGREEMENT
relating to
Debt Purchase Agreements dated 1 March 2001
and related documentation
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