INCORPORATED INTO EACH FACILITY LETTER
A hard copy of the Standard Terms and Conditions can be provided upon request.
1 AVAILABILITY AND EXPIRY
1.1 Availability:
The Facility will be available to the Borrower provided that (in the reasonable opinion of the Lender):
1.1.1 the Conditions Precedent set out within the Schedule Part 1 of the Facility Letter, have been met in full;
1.1.2 the Borrower has issued properly completed Drawdown Notices (which are irrevocable) to the Lender;
1.1.3 the representations and warranties referred to in Paragraph 6 are true on the First Drawdown Date and will remain so after provision of the Loan to the Borrower has occurred; and
1.1.4 there is no outstanding Termination Event or Potential Termination Event on the Drawdown Date nor will there be as a result of the Drawdown
1.2 Commencement and Expiry:
The Borrower may only borrow under the Facility provided i) the Facility Letter is signed by the Borrower within 1 month of the Commencement Date and ii) the First Drawdown Date is within 2 months of the Commencement Date, otherwise and after which the Facility will cease to be available
2 INTEREST AND FEES
2.1 Interest Rate:
The Interest Rate applicable is as set out in Clause 2.6 of the Facility Letter. Interest will accrue on the Loan on the outstanding balance of the principal amount of the Loan from time to time at the Interest Rate and shall be payable in arrears on the Interest Payment Dates (except where other payment of Interest is expressly provided for under this Agreement).
2.2 Manner of payment:
Interest shall be paid by direct debit from the account of the Borrower, details of which are set out in Paragraph 4 (‘Method of Payment and Late Payments’) below.
2.3 Arrangement Fee and other Expenses:
The Borrower will pay to the Lender an Arrangement Fee and the expenses, fees and charges detailed below, which are payable on acceptance of this letter. In the event that this Loan offer is accepted, and the Loan is not drawn, the Arrangement Fee and the Legal Fees will be payable immediately on demand from the Lender.
2.3.1 Arrangement Fee:
An Arrangement Fee (as set out in Clause 2.7 of the Facility Letter) is payable in full on acceptance of this offer letter although for administrative purposes it may be taken at time of the First Drawdown of the Loan.
2.3.1.1 Broker Fee:
A Broker Fee (as set out in Clause 2.7 of the Facility Letter) is payable in full upon the First Drawdown of the Loan.
2.3.2 Legal fees:
A fixed fee (as set out in Clause 2.8 of the Facility Letter) contribution towards the Lender’s legal costs.
2.3.3 Monitoring Fee:
A fixed fee (as set out in Clause 2.9 of the Facility Letter) is payable annually on the anniversary of the First Drawdown and on the last Business Day before each anniversary of the First Drawdown Date.
2.3.4 Exit Fee:
A fixed fee (as set out in Clause 2.10 of the Facility Letter) is payable on the Final Capital Repayment Date or if earlier, the date at which the Loan balance is reduced to zero.
2.3.5 Prepayment Fee:
To the extent that repayment occurs earlier than the dates outlined in this Agreement, the amount of such early repayment shall be deemed a prepayment (“Prepayment”). In such event, the fee charged by the Lender to the Borrower will be 10.0% of the Prepayment amount if such Prepayment occurs prior to the 2nd anniversary of the First Drawdown and 2.5% of the Prepayment Amount if such Prepayment occurs at any time thereafter, subject in each case to the Prepayment Minimum charge as set out in Clause 2.11 of the Facility Letter.
3 SECURITY:
3.1 Permitted Security:
The security will consist of all Security Documents as set out in Clause 3 of the Facility Letter but it is acknowledged that Permitted Security shall include any liens that arise solely by operation of law in the ordinary course of business and any charges or security interests already subsisting on the Register of Charges at Companies House relating to the Borrower at the date of this Facility Letter, subject at all times to the entering into of an Inter-creditor Agreement acceptable to the Lender, if required by the Lender or any prior ranking chargeholder.
3.2 Protection of Rights:
The Lender may incur expenses in protecting, preserving or enforcing its rights under any Finance Document. The Borrower will reimburse the Lender on demand and on an indemnity basis for the amount of these expenses provided that they are properly incurred.
4 METHOD OF PAYMENT AND LATE PAYMENTS
4.1 Method and timing of payments:
Payments will be taken by direct debit on the due date and the Borrower must ensure that cleared and immediately available funds are in the relevant account and are adequate to meet the payments which are due.
If any payments are not made on or before a due date, the Lender reserves the right on each such occasion to charge a £250 default fee, in addition and without prejudice to all of the Lender’s other rights and remedies under this Agreement.
4.2 Payments to the Borrower:
Any payment to the Borrower will be made to the account of the Borrower details of which will be provided by the Borrower to the Lender prior to First Drawdown.
4.3 Direct Debit:
The Borrower will execute and maintain a direct debit in favour of the Lender at all times. The Lender will provide 30 days' notice in the event of a change of banking arrangements.
4.4 Payments to the Lender:
Any payment to the Lender will be made by direct debit from the Borrower’s account to the Payment Account.
5 PREPAYMENTS
5.1 Optional prepayment:
The Borrower may give notice that it will repay the whole or part of the Loan on any day prior to the Final Capital Repayment Date. This notice must state:
5.1.1 the date of prepayment which will be at least 10 Business Days after the notice is received by the Lender; and
5.1.2 the amount to be prepaid which will be equal to:
- the relevant instalment amounts indicated in Clause 2.4 of the Facility Letter applied in inverse order to the order in which the repayments are due to be made; or
- the balance of the Loan.
5.1.3 No amount prepaid may be redrawn.
5.2 Mandatory prepayment:
If a Change of Ownership is proposed or occurs, then the Lender may give notice to the Borrower in which case the Loan will become immediately due and payable. On a Sale or Listing, the Loan will automatically become due and payable.
5.3 State Aid Rules:
The Borrower is responsible for assessing its position under State Aid Rules. If receipt of this Facility is in breach of any State Aid Rules or if repayment of all or part of the Facility is required to comply with any State Aid Rules or by the European Commission, the Lender may require the repayment of the Facility (partially or in full) and the Borrower will repay the same immediately upon demand, together with any interest required under State Aid Rules.
5.4 Prepayment Fee:
On the date of any prepayment under this clause, the Borrower agrees to pay the Lender a fee as set out in the Facility Letter.
5.5 Accrued Interest:
The Borrower shall pay accrued interest at the Interest Rate on any prepaid amount on making the prepayment in question.
5.6 No other prepayment:
The Borrower may not prepay the Loan early except in the manner permitted or required by this Agreement.
5.7 Change of account:
The Borrower or the Lender may change its receiving account by giving not less than 10 Business Days’ prior written notice to the other and the Borrower will set up a new direct debit accordingly, to ensure that all payments are made as they fall due.
5.8 Non-Business Days:
If a payment would be due on a non-Business Day, the payment obligation will be deferred until the next Business Day.
5.9 Payment in full:
All payments by the Borrower will be made in full and without set off or counterclaim. No payment will be made net of a withholding or deduction unless this is required by law. In this event Paragraph 16 will apply.
5.10 Set-off:
If the Borrower owes money to the Lender under this Agreement, the Lender may set off this obligation against any money owed by the Lender to the Borrower. This applies even where amounts due to the Lender are not immediately due and payable if there is an outstanding Termination Event or Potential Termination Event.
5.11 Indemnity on late payment:
If the Borrower fails to make a payment on the due date, the Borrower agrees to reimburse the Lender on demand for the losses and expenses the Lender incurs, or will incur, as a result.
6 REPRESENTATIONS AND WARRANTIES
6.1 At the date of this Agreement:
The Borrower represents and warrants for itself and for each other member of the Group or Obligor that:
6.1.1 Legal status:
The Borrower is a company duly incorporated with limited liability and is incorporated in Scotland ;
6.1.2 Corporate powers:
Each Obligor has power to conduct its business as it is now being conducted and also has power to sign and deliver each Finance Document to which it is party and to exercise its rights and perform its obligations under those documents;
6.1.3 Authorisations:
The signature and delivery of each Finance Document to which it is party by the Borrower and each other Obligor and the exercise of their respective rights and the performance of their obligations under those documents have been duly authorised by all necessary legislative, executive, administrative, governmental and corporation action;
6.1.4 Ownership of Assets:
The Borrower and each other Obligor has power to own its assets and to grant security over its right, title and interest in those assets under the terms of the Security Documents to which it is party. Neither the Borrower nor any other Obligor has any Debt or has granted any security over its assets (other than any Permitted Security);
6.1.5 Binding obligations:
The Finance Documents have each been duly signed and delivered by the relevant members of the Group. Each Obligor’s obligations described in those documents are their valid and binding obligations and are enforceable in accordance with their terms;
6.1.6 Legality and contraventions:
The signature and delivery of each Finance Document to which it is party by the Borrower and each other Obligor, the creation of security under those documents and the exercise of their rights and performance of their obligations under those documents:
6.1.6.1 are not prohibited by law, regulation or order or by the constitutional documents of the Borrower (or any other Obligor);
6.1.6.2 do not require any approval, filing, registration or exemption; and
6.1.6.3 are not prohibited by, and do not constitute an event of default under, and do not result in an obligation to create security under, any document or arrangement to which the Borrower (or any other Obligor) is a party;
6.1.7 Borrowing limit:
The borrowing of the full amount available under this Agreement will not cause any limitation on the powers to borrow of the Borrower or its directors to be exceeded;
6.1.8 Correct information:
All factual information supplied to the Lender in connection with the Finance Documents is true, complete and not misleading. All opinions contained in the information supplied to the Lender are reasonably held and are based on proper enquiry. The Borrower is not aware of any material facts or circumstances which have not been disclosed to the Lender which might, if disclosed, adversely affect the decision of a person considering whether or not to lend to the Borrower;
6.1.9 Financial Statements:
The Financial Statements most recently supplied to the Lender have been prepared in accordance with generally accepted accounting principles and:
6.1.9.1 in the case of accountant prepared annual accounts, give a true and fair view of the financial condition; and
6.1.9.2 in the case of Management Accounts, fairly represent the financial condition and performance of the Borrower; and
6.1.9.3 there has been no Material Adverse Change in its business or financial condition since the date of those Financial Statements;
6.1.10 No Termination Event:
No Termination Event or Potential Termination Event has occurred and remains unremedied;
6.1.11 Intellectual property rights:
The Borrower owns or is duly licensed to use all Intellectual Property Rights used in its business and use of them does not breach or otherwise infringe any third party rights;
6.1.12 Stamp duty:
No stamp, registration or similar tax is payable, and no filing or registration is required, in connection with the execution, performance or enforcement of this Agreement;
6.1.13 Litigation:
The Borrower is not involved in any court, arbitration or other legal proceedings of any kind. The Borrower is not aware that any proceedings of this kind are being considered by any other person nor that any are likely to arise;
6.1.14 Insurance:
The Borrower has all appropriate insurance policies and these are in full force and effect. Nothing has occurred which could void any policy or make it unenforceable;
6.1.15 Pension Fund:
Any pension or similar fund offered by the Borrower to any of its current or former employees is a money purchase scheme which is not in deficit;
6.1.16 No Default:
The Borrower is not in breach of any law, regulation, agreement or arrangement applicable to it or any of its assets, including relating to health and safety or the environment;
6.1.17 No Material Adverse Change:
Since the date of this Agreement there has been no Material Adverse Change.
6.1.18 Data Protection:
In relation to any individual (including but not limited to a shareholder, director or other officer, (or in the case of a LLP, a member), employee, or any person giving a guarantee, indemnity, warranty or undertaking in respect of the Obligations under the Facility, the Borrower warrants that they have strictly complied, and will, until the termination of the Facility and the discharge of all Obligations, strictly comply with the provisions of Data Protection Laws and, in particular (but without limitation), that the Borrower has disclosed, and will disclose, to any such living individual that the Borrower may at any time pass to the Lender data which is held in respect of him (including Personal Data) for the purpose of carrying out the Borrower’s Obligations and notified him of the manner and purposes for which the Lender may process Personal Data, and the Borrower shall keep a record of to whom they have notified, in what form and when notified and produce evidence to this effect to the Lender immediately on request.
6.1.19 Use of Funds:
To the best of its knowledge, no funds invested by the Borrower or by its controlling entities are of illicit origin, including products of Money Laundering or linked to the financing of terrorism, and that to the extent permitted by law the Borrower will promptly inform the Lender if at any time it becomes aware of the illicit origin of any such funds.
6.2 Repetition:
All representations and warranties in Paragraph 6.1 will be deemed repeated by the Borrower on the date of First Drawdown and on each of the Repayment Dates. This repetition will be with reference to the facts on that day.
7 GENERAL UNDERTAKINGS
7.1 Undertakings:
The Borrower for itself and for each other member of the Group undertakes that (except with the prior written approval of the Lender):
7.1.1 Security:
It will ensure that its obligations to the Lender are secured by the Security Documents.
7.1.2 Compliance:
7.1.2.1 It will exercise its rights and perform its obligations under each Finance Document without contravention of applicable laws, regulations, or anything having the force of law. If approvals are required, it will obtain and maintain them and will comply with their terms. It will also make any necessary filings; and
7.1.2.2 The Borrower shall, annually or at the specific request of the Lender, supply to the Lender together with each set of Financial Statements delivered, a Compliance Certificate (in the form as set out in the Schedule Part 6 of the Facility Letter), signed by a director(s) of the Borrower.
7.1.3 Negative pledge:
It will not create or allow to exist any Security, charges (whether fixed or floating), liens or other encumbrances over any of its business, undertaking or assets. This sub-clause does not prohibit Permitted Security.
7.1.4 Compliance with laws:
It will comply with all applicable laws and regulations and the terms of all permits, authorisations and licences. This requirement includes all laws, regulations, permits, authorisations and licences relating to health and safety or the Environment.
7.1.5 Ownership:
There will be no Change of Ownership of the Borrower.
7.1.6 Constitution:
It will not amend its memorandum or articles of association.
7.1.7 Auditors:
The Borrower will only change its auditors to a firm of auditors considered suitable by the Lender;
7.1.8 No disposals:
7.1.8.1 It will not sell, transfer, assign or otherwise dispose of any of its business, undertaking or assets other than for full value and on an arms’ length basis; or
7.1.8.2 It will not sell, transfer or otherwise dispose of any of its receivables on recourse terms; or
7.1.8.3 Without the prior written consent of the Lender it will not dispose of any Intellectual Property Rights or transfer any of these to any third-party entity including any individual;
This sub-clause does not prohibit sales of stock in the ordinary course of business.
7.1.9 No material change:
It will not merge, cease or reduce its trade or make any material change in its business.
7.1.10 Capital expenditure:
It will not incur or agree to incur any capital expenditure which exceeds 30% of the Forecast.
7.1.11 Pension fund:
It will not offer any pension or similar fund to any employees except for a money purchase scheme and will ensure that any scheme is properly funded to the extent required by law (based on reasonable actuarial assumptions).
7.1.12 Bank accounts:
It will not operate any bank accounts other than that evidenced as part of the application for this facility.
7.1.13 Business interests:
It will not acquire any interest or hold any shares in any partnership, business, company or other trading entity.
7.1.14 Intellectual Property:
It will maintain all its Intellectual Property Rights (including names, trademarks, patents and any other intellectual property rights) and will carry out any enforcement, registration or other activities which may be necessary or desirable to protect its Intellectual Property Rights worldwide.
7.1.15 Insurance:
It will maintain insurance in respect of its business and all its assets with a reputable insurer. It will not default under any policy or do or omit to do anything which could void the policies or make them unenforceable. The level of insurance cover will be for the amounts and in respect of all the risks which would normally be insured against by companies in similar businesses. The insurance will include cover for fire, loss of profit, employers’ liability, public and product liability and professional indemnity cover.
7.1.16 Redemption of shares:
It will not permit the redemption of any of its share capital.
7.1.17 Notification of Litigation:
The Borrower will notify the Lender as soon as it becomes aware that any proceedings have been or are being considered against it or any Group Company by any other person (other than in relation to routine debt collection). For the avoidance of doubt this includes any insolvency advice. Such consultation will allow the Lender to review the Facility and is a Potential Termination Event.
7.1.18 Use of funds:
If the Lender requests, it will deliver written evidence to the Lender that the monies provided under the Facility have been applied towards the Purpose.
7.1.19 Borrowings:
Except with the prior written consent of the Lender, the Borrower shall not:
7.1.19.1 incur or permit to subsist, any obligation for indebtedness other than under the Finance Documents;
7.1.19.2 make any repayments to any existing loans, outside of agreed interest payments, or any new loans whilst the Facility is outstanding.
7.2 Duration of undertakings:
The obligations of the Borrower under this paragraph will cease to have effect when the Facility has ceased to be available and there are no amounts outstanding under the Facility.
8 FINANCIAL COVENANTS AND OTHER SPECIFIC CONDITIONS
8.1 Conditions Precedent: The Lender to receive and be satisfied with the items specified in the Schedule Part 1 of the Facility Letter.
8.2 Conditions Subsequent: The Lender to receive and be satisfied with the items specified in the Schedule Part 2 of the Facility Letter.
8.3 Financial Covenants: The Borrower shall comply with the financial covenants (if any) specified in the Schedule Part 3 of the Facility Letter.
8.4 Testing Covenants:
The Borrower agrees that any covenants set out in Paragraph 8.3 above will be tested monthly, unless the frequency is otherwise stated in Schedule 2 of the Facility, in each case by reference to the most recent Financial Statements. The covenants will first be tested as at the first month end following First Drawdown.
9 FINANCIAL AND OTHER INFORMATION
Financial Statements:
The Borrower will deliver to the Lender in respect of itself and each other member of the Group (if incorporated) and on a consolidated basis:
9.1 Monthly Management Accounts:
Information outlined in this Paragraph 9, detailing actual versus forecast performance with commentary where appropriate, within 28 days of the end of each month. If the Borrower fails to deliver the Management Accounts to the Lender in the period allowed then the Lender reserves the right to increase the Interest Rate by up to 2% per annum until the position is remedied. Such increased fee is to cover the additional administrative work the Lender will be required to undertake to obtain such information. Accordingly, the Borrower acknowledges that such fees represent a genuine pre-estimate of the loss the Lender is likely to sustain in consequence of the Borrower not providing this information in a timely manner. Alternatively, the Lender may treat the failure to provide them with such Management Accounts in a timely manner as a Termination Event in accordance with Paragraph 15 of the Standard Conditions.
The Borrower is strongly encouraged to provide the Lender with its VAT Returns and Management Accounts in good time and no later than 28 days post their respective due dates.
9.2 Annual Accounts:
Accountant prepared annual accounts for each Group Company within 120 days of the financial year-end to which they relate, accompanied by a certificate from the directors certifying compliance with the covenant set out in this Paragraph 9 as applicable.
9.3 Information Requests:
The Lender may request the Borrower to deliver to the Lender information about the Borrower or the Group, its assets and business (including any financial or statistical information). The Borrower will promptly deliver the information requested to the Lender. The Lender may provide information about the Borrower or the Group to the UK Department for Business Innovation and Skills as a condition of its government funding, or to Barclays Bank plc, and the Borrower consents in each case to this disclosure by the Lender.
9.4 Valuations:
The Borrower will, and will procure that each Group Company will, obtain or permit the Lender to obtain valuations of any of its assets which the Lender requests. This will be at the expense of the Borrower unless the relevant assets have been valued more recently than 3 years ago and neither a Termination Event nor a Potential Termination Event has occurred, in which case it will be at the Lender’s expense.
10 CONTENT OF FINANCIAL AND OTHER STATEMENTS:
The Borrower will ensure that the Financial Statements include the following information:
10.1 detailed profit and loss account and balance sheet;
10.2 commentary on any material deviations from the Forecast and details of the current sales pipeline;
10.3 a monthly statement confirming that VAT, PAYE & NICs payments are up to date;
10.4 if requested by the Lender, monthly rolling consolidated cash flow Forecast for the Group and the Borrower with details of the assumptions made for periods of 3-6 months forward;
10.5 if requested by the Lender, aged debtor, creditor and stock analysis, including details of stock subject to retention of title claims; and
10.6 a rolling statement, in a format required by the Lender and signed by a director of the Borrower confirming:
- details of all jobs created or safeguarded in the business and notification of any new jobs created during that month including a note of the job title/description, location and the salary level (and information relating to such jobs as is required by the Lender); and
- any additional private sector funding obtained by the Borrower or the Group,
in each case to extent that such job creation or job safeguarding or private sector funding has been facilitated or enabled via the support provided by the Lender, which for the avoidance of doubt includes this Facility.
11 FORECASTS
If requested by the Lender, the Borrower will deliver to the Lender Forecasts in a form acceptable to the Lender in respect of itself and depicting the overall Group to include a full year cash-flow, profit & loss and balance sheet to be received no later than the end of the final month of the preceding financial year of the Borrower.
12 VAT
The Borrower will deliver a copy of its VAT Return within 28 days after the end of each quarter.
13 REVIEWS
It is intended that quarterly reviews will be undertaken by the Lender for the next year and half yearly thereafter. However, the Lender is under no obligation to conduct reviews and conversely, the Borrower consents to more frequent reviews if required by the Lender.
14 WITHHOLDINGS AND DEDUCTIONS
14.1 Withholdings and deductions:
This paragraph applies if the Borrower is required by law to make a payment under this Agreement net of a withholding or deduction.
14.2 Notice:
The Borrower agrees to notify the Lender if it becomes aware that this sub-clause applies.
14.3 Grossing up:
The Borrower agrees to increase the amount of any payment which is subject to a withholding or deduction. As a result of this increase the Lender will be entitled to receive the same amount it would have received if there had been no withholding or deduction.
14.4 Payment of tax:
The Borrower will pay to the appropriate authority all amounts withheld or deducted. If a receipt or other evidence of payment can be issued, the Borrower agrees to deliver this to the Lender as soon as practicable.
15 DEFAULT AND EARLY TERMINATION
15.1 Termination Events:
Each of the following is a Termination Event:
15.1.1 Non-payment:
The Borrower fails to pay an amount due under this Agreement or any Obligor fails to pay an amount due under any Finance Document or a direct debit cannot be drawn by the Lender on any due date for payment or a direct debit mandate is cancelled for any reason.
15.1.2 Other defaults:
The Borrower fails to comply with any of the undertakings including the Conditions Subsequent, the covenants as set out in the Standard Conditions including but not limited to Paragraphs 8 (Financial Covenants), 7 (General Undertakings), or 9 (Financial and Other Information) or the Borrower or any other Obligor fails to comply with any other obligations under any Finance Document, the Facility Letter or the Standard Conditions and the failure is not remedied within 5 Business Days.
15.1.3 Incorrect representations and warranties:
Any representation or warranty made, or deemed repeated, in Paragraph 6 (Representation and Warranties) of the Standard Conditions or in any document delivered by the Borrower in connection with any Finance Document or this Agreement is incorrect, untrue or misleading when made or deemed repeated.
15.1.4 Cross-default:
Any Debt of any Obligor:
-
-
-
- is not paid or repaid when due or within any applicable grace period; or
- becomes capable of being declared due and payable before its stated date of payment.
-
-
15.1.5 Material Adverse Change:
The occurrence of a Material Adverse Change.
15.1.6 Insolvency and reorganisation:
Any procedure is commenced with a view to the winding-up or reorganisation of the Borrower or any other member of the Group, or with a view to the appointment of an administrator or receiver. This procedure may be a court procedure or out of court procedure or any other step which under applicable law is a possible means of achieving any of those results. For the avoidance of doubt this shall include (but not be limited to) if any step is taken (including a letter inviting the Lender to appoint administrators) or notice is filed or a petition is presented or an order made or a resolution passed or analogous proceedings are taken for appointing an administrator or administrative receiver or receiver of or winding up of the Borrower or any other member of the Group or if a notice is issued convening a meeting for the purpose of passing any such resolution (save for the purpose of and followed within four months by an amalgamation or reconstruction not involving or arising out of insolvency and on terms previously approved in writing by the Lender) or of complying with Section 656 of the Companies Act 2006 or a members meeting (or written resolution) being proposed by the board of directors of the Borrower or any other member of the Group for the purpose of passing a resolution to place the Borrower or any such member of the Group into voluntary liquidation. It shall also be a Termination Event if the Borrower or any other member of the Group becomes subject to any event or circumstance analogous to any of those mentioned in the preceding provisions of this clause 15.1.6 anywhere in the world;
15.1.7 Diligence:
Any assets which are referred to in any Security Document are subject to diligence, attachment, sequestration, execution or any similar process. This shall include but not be limited to if an encumbrancer takes possession or exercises or attempts to exercise any power of sale or otherwise enforces its security or a receiver, judicial factor, trustee in bankruptcy or any other insolvency practitioner is appointed of the whole or any part of the undertaking, property, assets, revenues or rights of any Obligor or if any Security now or hereafter created by any Obligor becomes enforceable;
15.1.8 Inability to pay debts:
The occurrence of any of the following:
a) any Obligor is unable to pay its debts as they fall due or makes a statement that it is likely to become unable to pay its debts in order to access a moratorium;
b) the value of the assets of an Obligor is less than the amount of its liabilities (taking into account its contingent and prospective liabilities);
c) any Obligor admits its inability to pay its debts as and when they fall due;
d) any Obligor seeks a composition or arrangement with its creditors or any class of them; or
e) any judgment or court order is made against an Obligor which requires payment by that Obligor to a third party and the relevant Obligor fails to comply with such judgment or court order within seven days of the date on which it is issued (or such later period as may be specified in the relevant judgment or order.
15.1.9 Unlawfulness or repudiation:
Either:
- it is unlawful for any Obligor to comply with its obligations under any Finance Document; or
- any Obligor repudiates or contests the validity of any of those obligations or of the security created by any Security Document.
15.1.10 Moratorium:
Any moratorium on the payment of any Debt of any Group Company is declared or any Group Company ceases generally to pay Debt(s) as they fall due or if the any Group Company agrees to declare a moratorium with respect to all or any class of its debts or is deemed to be insolvent or unable to pay its debts as they fall due within the meaning of section 123 of the Insolvency Act 1986 when they fall due or if a notice is issued convening a meeting of, or any Group Company proposes or enters into any composition or arrangement with, its creditors generally or any class of its creditors and/or a Monitor is appointed;
15.1.11 Cease Trading:
If any Group Company without the prior consent in writing of the Lender ceases or threatens to cease to carry on its business or any material part thereof;
15.1.12 Compulsory Purchase:
If any material part of the assets or revenues of any Group Company are nationalized, compulsorily acquired, seized, appropriated or subject to a compulsory purchase order;
15.1.13 Licences:
If any licence, authorisation, consent or registration at any time necessary or desirable to enable any Obligor to comply with its obligations to the Lender or to carry on its business in the normal course shall be revoked withheld or materially modified or shall fail to be granted or perfected or shall cease to remain in full force and effect;
15.1.14 Change of Control:
If control (as defined in Section 435(10) of the Insolvency Act 1986) or the power to take control of the Borrower is acquired by any person or company or group of associates (as defined in such section) not having control of the Borrower at the date hereof (unless with the prior consent in writing of the Lender);
15.1.15 Validity of any Finance Document:
Any of the rights given to the Lender in any Finance Document cease to be in full force and effect, or capable of being exercised, in accordance with their terms or becomes in jeopardy, invalid or unenforceable;
15.2 Notification of a Termination Event:
The Borrower will notify the Lender immediately of the occurrence of a Termination Event or Potential Termination Event.
15.3 Consequences:
If a Termination Event occurs, the Lender may by notice to the Borrower:
15.3.1 cancel the Facility; or
15.3.2 demand immediate repayment of the Loan, or both. In the case of cancellation, the Lender will be under no further obligation to comply with a Drawdown Notice. In the case of a demand for repayment, the Borrower will pay the Lender in accordance with the terms of such demand.
15.4 Indemnity:
If a Termination Event occurs, the Borrower will reimburse the Lender for the losses and expenses the Lender incurs, or will incur, as a result.
16 NOTICE
16.1 Notice to the Borrower:
Any notice, demand, drawdown request or other communication (a “Notice”) given or made under or in connection with the matters contemplated by this Facility Letter to the Borrower by the Lender shall be in writing and shall be delivered personally or sent by email or prepaid first class and shall be validly served or made:
16.1.1 if handed to any of the Borrower’s officers; or
16.1.2 if delivered or sent by first class prepaid post to the address stated in Clause 2.1 of the Facility Letter or to any address at which the Borrower carries on business or to the Borrower’s registered office; or
16.1.3 if transmitted by e-mail to any e-mail address (as the case may be) of the Borrower made known to the Lender by the Borrower at any time.
16.2 Notice to the Lender:
Any notice which you have to or may give to us shall be validly given if sent to us at the address below by prepaid first-class post and it will be effective on its receipt by the Lender:
For the attention of:
The Chief Executive
FSE Group
First Floor, Linea House
Harvest crescent
Fleet
Hampshire
GU51 2UZ
16.3 Delivery:
Any Notice shall be deemed to have been duly given or made as follows:
16.3.1 if personally delivered, at the time of delivery;
16.3.2 if sent by first class post, two Business Days after the date of posting; and
16.3.3 if sent by email, at the time of transmission,
provided that if, in accordance with the above provisions, any Notice would otherwise be deemed to be given or made outside 9.00am – 5.00pm on a Business Day such Notice shall be deemed to be given or made at 9.00am on the next Business Day.
16.4 Change of address:
A party may notify the other party to this Facility Letter of a change to its name, relevant addressee, address, or email address for the purposes of this paragraph, provided that such notification shall only be effective on:
16.4.1 the date specified in the notification as the date on which the change is to take place; or
16.4.2 if no date is specified or the date specified is less than 5 Business Days after the date on which notice is given, the date falling 5 Business Days after notice of any such change has been given.
17 DATA PROTECTION
17.1 The Borrower has provided as agent information about individuals and has consented to the Lender making checks and searches about them with credit reference and fraud prevention agencies (including those outside the European Economic Area).
17.2 During the term of the Facility the Borrower consents to the Lender making further checks and searches against individuals associated with the Borrower and the Borrower accepts that this will include searches as to criminal offences, proceedings and convictions.
17.3 The Lender may store and process Personal Data to contact the Borrower and administer the Facility, for credit and financial assessments, preventing money laundering, fraud or other wrongdoing, making payments, recovering monies, training, preparing accounts, preparing statistics, etc.
17.4 The Lender may search an individual’s record at a credit reference (or fraud prevention) agency, which may show searches made with information given by other businesses; details of the Lender’s searches may be kept by such agency and may be seen by other organisations that make searches with the agency; individuals may obtain details of the credit reference agencies and other third parties from whom the Lender obtains and to whom the Lender may give information about individuals by contacting the Lender’s Data Privacy Manager; individuals can also obtain a copy of the information held about them by writing to the Lender’s Data Privacy Manager.
17.5 The Lender may monitor and /or record telephone conversations with individuals for training and /or security purposes.
17.6 The Borrower accepts that any information received by the Lender will form part of the Lender’s ongoing records and agrees that the Lender may disclose such information to credit reference agencies, fraud prevention agencies or any financial services organisations as they think fit and such agencies may hold and process the information.
17.7 The Borrower agrees that the Lender may disclose details of this Facility or any transaction associated with it or any entry on any account or other information held by the Lender in the Borrower’s name to any Group company, associates or persons acting on the Lender’s behalf for any purpose.
17.8 The Lender may pass any such information that it may have to any bankers, solicitors, accountants or insurers for the purposes of their providing their services to the Lender, for the prevention of fraud or for the enforcement of the Agreement or any of the Finance Documents.
17.9 the Borrower further agrees that the Lender may disclose details of this Facility or any transaction associated with it or any entry on any account or any other information held by the Lender in the Borrower’s name to any person who has given the Lender security in respect of the Borrower’s Obligations, and any person to whom the Lender may wish to transfer all or any part of their rights and /or obligations under the Facility.
17.10 At any time upon the Lender requesting the Borrower so to do, the Borrower will send a Data Privacy Notice to its associates (which shall include but not be limited to, its shareholders, directors, employees and Guarantors).
17.11 The Lender may approach individuals for market research or direct marketing purposes.
17.12 For further information about how the Lender uses Personal Data the Lender’s privacy policy may be viewed at https://www.thefsegroup.com/content/privacy-policy
18 ASSIGNATION
18.1 Assignation:
The Borrower may not assign or otherwise transfer all or any of its rights, obligations or benefits under this Agreement.
The Lender may assign or transfer all or any of its rights, obligations or benefits under this Agreement and the Finance Documents in whole or in part.
18.1.1 In the case of single tranche loans, the Lender will be entitled to (1) assign any of its rights and/or (2), transfer or otherwise dispose of any of its rights, benefits or obligations under any Finance Document to any other person in any manner that it sees fit. The Borrower undertakes to execute and procure that it and each Obligor will execute all documents the Lender may reasonably require to give effect to an assignment, transfer or other disposal; or
18.1.2 in the case of multiple tranche loans, the Lender may assign or transfer by novation all or any of its rights, obligations or benefits under any Finance Document to the New Lender on the terms set out in the Schedule Part 5 of the Facility Letter.
18.1.3 By signing this Agreement, the Borrower hereby irrevocably consents in advance to any such assignation or transfer by novation.
18.1.4 The Borrower irrevocably appoints the Lender and each person to whom the Lender shall from time to time have delegated the exercise of the power of attorney conferred by this Clause to be its attorney and in its name and on its behalf to execute, deliver and perfect all documents and to do all things which the attorney may consider to be required or desirable to give effect to any assignation or transfer by way of novation by the Lender in respect of any Finance Documents including the execution and delivery of any additional agreements, or deeds, any accessions or amendments to any Inter-creditor Agreements and any assignments, charges or other security. The Borrower ratifies and confirms to agree to ratify and confirm all things done and all documents executed by any attorney in the exercise or purported exercise of all or any of its powers.
18.2 Disclosure of information:
The Lender may disclose to an assignee or other transferee, or to a proposed assignee or transferee, any information received by the Lender under or in connection with this Agreement and any of the Finance Documents.
19 KEY INDIVIDUALS
If any of the Key Individuals or Personal Guarantor(s):--
19.1 fails to give 5 Business Days' notice to the Lender that he/she will cease to be a director or employee or shareholder of the Borrower (as applicable) or ceases to be a director or employee or shareholder of the Borrower (as applicable) and no replacement acceptable to the Lender has been appointed prior to his/her/their resignation;
19.2 is disqualified from being a director,
19.3 is unable to pay any of his/her debts as they fall due;
19.4 (a) has a petition for the sequestration of his/her estate presented by any person, or makes an application for the sequestration of his/her estate, or an award of sequestration is made against him/her; or
(b) grants a trust deed for creditors or makes a composition or arrangement with creditors; or
(c) is adjudged bankrupt; or
(d) becomes subject to any other order or arrangement analogous to any of those mentioned in sub-paragraphs (a) to (c) (inclusive) anywhere in the world;
19.5 is charged with an offence involving dishonesty;
19.6 becomes deceased; or
19.7 has granted a Personal Guarantee and it is terminated without a replacement Personal Guarantee being entered into which has been approved in advance by the Lender
then this will be treated as a reason for Termination of the Agreement in accordance with Paragraph 15 of the Standard Terms & Conditions. For other reasons for ‘Termination’, see ‘Default and Early Termination’ Paragraph 15 in the Standard Terms & Conditions.
20 PERSONAL GUARANTORS
If the Security includes a Personal Guarantee, any of the Personal Guarantor(s): -
20.1 fails to give 5 Business Days’ notice to the Lender that he/she will cease to be a director or employee or shareholder of the Borrower (as applicable) or ceases to be a director or employee or shareholder of the Borrower (as applicable) and no replacement acceptable to the Lender has been appointed prior to his/her/their resignation;
20.2 is disqualified from being a director,
20.3 is unable to pay any of his/her debts as they fall due;
20.4 (a) has a petition for the sequestration of his/her estate presented by any person, or makes an application for the sequestration of his/her estate, or an award of sequestration is made against him/her; or
(b) grants a trust deed for creditors or makes a composition or arrangement with creditors; or
(c) is adjudged bankrupt; or
(d) becomes subject to any other order or arrangement analogous to any of those mentioned in sub-paragraphs (a) to (c) (inclusive) anywhere in the world;
-
- is charged with an offence involving dishonesty;
- becomes deceased;
-
- the assets of the Guarantor(s) detailed in the Asset Statement have been diluted (i.e. through asset transfers and/or increases in secured personal indebtedness) since the Asset Statement last provided to the Lender.
- gives notice to terminate their Personal Guarantee without a replacement Personal Guarantee being entered into which has been approved in advance by the Lender.
then this may be treated by the Lender at its sole discretion as a reason for Termination of the agreement in accordance with Paragraph 15 of the Standard Terms & Conditions. For other reasons for ‘Termination’, see ‘Default and Early Termination’ Paragraph 15 in the Standard Terms & Conditions.
- REPAYMENTS AND TERM
21.1 The Borrower will commence repayment of this Facility by way of equal monthly instalments commencing on the Capital Repayment Start Date as set out in Clause 2.4(i) of the Facility Letter and thereafter for the number of months as set out in the Capital Repayment Period (Clause 2.4(ii) of the Facility Letter), in a sum equal to the Monthly Capital Repayment Amount. The final repayment will be on the Final Capital Repayment Date (Clause 2.4(iii) of the Facility Letter) and will be in a sum equal to the Final Capital Repayment Amount (Clause 2.4(v) of the Facility Letter).
21.2 If the Facility Amount is being paid in Tranches as set out in Clause 2.2 of the Facility Letter then at the time the Second Tranche (or Subsequent Tranche as applicable) is paid to the Borrower the Monthly Capital Repayment Amounts will be re-calculated and, if requested by the Borrower, a letter of variation stating the revised Monthly Repayment Amount (and if applicable a revised Final Capital Repayment Amount) will be sent to the Borrower.
21.3 If a Capital Repayment Holiday is applicable to this Facility it is set out in Clause 2.4(vi) of the Facility Letter.
21.4 No amount repaid may be redrawn.
21.5 In the event that the Borrower shall prepay any principal amount due on the Loan any such prepayment shall be applied in inverse order to the order that repayments are made. For the sake of clarity, the repayment on the Final Capital Repayment Date therefore would be eliminated first with the preceding month etc. following until the prepayment amount is fully applied.
22 MISCELLANEOUS
22.1 Exercise of rights:
If the Lender does not exercise a right or power when it is able to do so, this will not prevent it exercising that right or power. When it does exercise a right or power, it may do so again in the same or a different manner. The Lender’s rights and remedies under this Agreement are in addition to any other rights and remedies it may have. Those other rights and remedies are not affected by this Agreement.
22.2 Counterparts:
This letter and its acceptance may be executed in counterpart and by each of the parties on separate counterparts, all as permitted by The Legal Writings (Counterparts and Delivery) (Scotland) Act 2015, if executed in counterpart:
22.2.1. the Facility Letter and its acceptance shall not take effect until each counterpart has been delivered; and
22.2.2 the date of delivery of the Facility Letter and the acceptance thereof shall be inserted where indicated on page 5 the Facility Letter.
If not executed in counterpart, it shall take effect on the date agreed between the parties which date will be evidenced by the insertion of a date next to "date of delivery" on page 5 of the Facility Letter. If no date is inserted it shall take effect on the date on which the Borrower signs its acceptance of this letter.
22.3 Third parties:
A person who is not a party to this Agreement will have no right under the Contracts (Third Party Rights) (Scotland) Act 2017 to enforce any of its terms. This clause does not affect any right or remedy of any person which exists or is available other than under that Act.
22.4 Waiver and amendment:
A waiver or amendment of a term or condition of this Agreement will only be effective if it is in writing and signed by the party or parties affected by such waiver or amendment. The Borrower will reimburse the Lender for the expenses the Lender incurs as a result of any request made by the Borrower to waive or amend a term of this Agreement or any of the Finance Documents.
22.5 Enforceability:
If any provision of this Agreement is held to be invalid or unenforceable no other provision will be affected and all such other provisions will remain in full force and effect.
22.6 Registration:
The Borrower consents to the registration of this Agreement for preservation and execution.
23 GOVERNING LAW
This Agreement will be governed by and construed in accordance with Scots law and the Borrower submits to the non-exclusive jurisdiction of the Scottish courts.
24 INTERPRETATION
Interpretation: In this Agreement, unless otherwise specified, references to:
a “Clause” or “Part of the Schedule” are to a clause and the relevant Part of the Schedule to the Facility Letter, references to “Paragraphs” are to paragraphs or part of the Standard Terms & Conditions and references to “this letter” means this letter including the Schedule in 7 Parts;
a document in “agreed form” is a reference to that document in the form approved by each party and initialed by, or on behalf of, them for the purpose of identification;
a “party” means a party to this Agreement and, in the case of the Lender, includes its assignees and the successors in title to substantially the whole of its undertaking;
other documents include any amendments made to those documents;
statutory provisions refer to those provisions as amended, extended or re-enacted and include any statutory replacement;
the “Lender” includes its successors and assignees;
“includes” and “including” means including without limitation;
“costs”, “fees” or “expenses” exclude any value added tax which will be payable or applicable.
Headings: All headings and titles are inserted for convenience only and shall not affect the interpretation of this Agreement.
Corporate terms: The terms “holding company”, “subsidiary” and “subsidiary undertaking” have the same meanings as in the Companies Act 2006.
Schedule included: The Schedule forms part of the operative provisions of this Agreement and references to this Agreement shall, unless the context otherwise requires, include references to the schedule.
In this Agreement the following definitions apply
|
DEFINITION |
MEANS |
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“Anti-Bribery” and “Anti Bribery Laws” |
Any and all statutes, statutory instruments, by-laws, orders, directives, treaties, decrees and laws (including any common law, judgment, demand, order, decree or decision of any court, regulator or tribunal) which relate to anti-bribery and/or anti-corruption, including the Bribery Act 2010; |
|
“Asset Statement” |
a statement substantially in the form set out in the Schedule Part 7 of the Facility Letter; |
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“Assignation Agreement” |
an agreement in the form agreed between the Lender and the relevant New Lender (as set out in the Scheule Part 5 of the Facility Letter) |
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“Base Rate” |
the Bank of England base rate; |
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“Business Day” |
a weekday on which banks are open for business in Edinburgh; |
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“Capital Repayment Start Date" |
the date upon which the Borrower shall start to repay by instalments the principal amount of the Loan to the Lender, details of which are set out in Clause 2.4(i) of the Facility Letter; |
|
“Capital Repayment Period” |
the period over which the Loan is repaid by the Borrower to the Lender as set out at Clause 2.4 (ii) of the Facility Letter; |
|
“Change of |
a disposal of substantially all of the Borrower’s or the Group’s assets, or any change in the shareholding of the Borrower which results in 25% or more of the Borrower’s share capital being held by one person or a group acting in concert; |
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“Compliance |
a certificate substantially in the form set out in the Schedule Part 7 of the Facility Letter; |
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“Conditions |
the conditions to be met by the Borrower set out in the Schedule Part 1 of the Facility Letter; |
|
“Conditions Subsequent” |
the conditions to be met by the Borrower set out in the Schedule Part 1 of the Facility Letter; |
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“Corporate Guarantor” |
any corporate entity which has granted a corporate Guarantee in favour of the Lender; |
|
“Criminal Offence” |
fraud, corruption, coercion, collusion, obstruction, money laundering or the financing of terrorism; |
|
“Data Privacy |
the person appointed by the Lender to manage Personal Data who can be contacted at privacy@thefsegroup.com; |
|
“Data Privacy Notice” |
a notice of the manner in which the Lender shall process Personal Data in the form supplied by the Lender to the Borrower from time to time; |
|
“Data Protection |
all laws (whether of the UK or any jurisdiction) relating to the use, protection and privacy of Personal Data (including without limitation, the privacy of electronic communications) which are from time to time applicable to the Borrower or its business and/or any director or employee and including to extent applicable, statutes, laws, secondary legislation and regulations pertaining to privacy, confidentiality and/or data protection of Personal Data or corporate data, the Data Protection Act 2018, the General Data Protection Regulation (Regulation (EU) 2016/679), the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2003/2426), the Regulation of Investigatory Powers Act 2000 and the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699) and any relevant national laws implementing Directives 95/46/EC and 2002/58/EC; |
|
“Debt” |
|
|
“Drawdown(s)” |
means receipt by the Borrower of the First Tranche, Second Tranche or any Subsequent Tranches or Facility Amount in full (as applicable); |
|
“Drawdown Date” |
a date which must be no earlier than 3 Business Days after the date the Lender receives the Drawdown Notice provided that if the Lender receives a Drawdown Notice on a day which is not a Business Day or after 10.00 am on a Business Day, it will be treated as having been received on the following Business Day; |
|
“Drawdown Notice” |
a notice, delivered to the Lender by the Borrower, specifying the proposed Drawdown Date and setting out detailed instructions sufficient to enable the Lender to make payment of the Facility Amount (or if being paid in Tranches details of the particular Tranche) to the Borrower; |
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“Environment” |
the following insofar as they affect human health and social well-being :
|
|
“Environmental and Social Standard” |
|
|
“Environmental Laws” |
UK and to extent applicable EU Law, including principles and standards, English, Scots or other UK domestic Laws and regulations and applicable international treaties of which a principal objective is the preservation, protection or improvement of the Environment; |
|
"Equality Legislation" |
all legislation relating to equality and diversity that is applicable in the UK, including but not limited to the Equality Act 2010 together with the guidance contained in The EHRC Employment Statutory Code of Practice; |
|
“EU Law” |
the acquis communautaire of the European Union as expressed through the Treaties of the European Union (including, without limitation, the EU Treaties), the regulations, directives, delegated acts, implementing acts, and the case law of the Court of Justice of the European Union; |
|
“EU Treaties” |
means the Treaty on the Functioning of the European Union and the Treaty on European Union; |
|
“Exit Fee” |
shall have the meaning ascribed to it in Paragraph 2.3.4 of the Standard Terms & Conditions; |
|
“Facility” |
means the Loan granted by the Lender to the Borrower on the terms of the Agreement; |
|
“Facility Amount” |
the amount of the Loan as set out at Clause 2.2 of the Facility Letter; |
|
“FCA” |
the Financial Conduct Authority of 25 North Colonnade, Canary Wharf, London E14 5HS or any successor regulator; |
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“Final Capital Repayment Date” |
the last capital repayment date as set out in Clause 2.4(iii) of the Facility Letter; |
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“Finance Documents” |
this Agreement, any Assignation Agreement, all compliance certificates issued hereunder, any Drawdown Notice, the Security Documents, any Guarantee, any Intercreditor Agreement, any amendment letters relating hereto any other deeds and documents entered into from time to time pursuant to this Agreement or in relation to this Agreement and any other document designated as a “Finance Document” by the Lender and the Borrower; |
|
“Financial |
the accountant prepared annual accounts of the Borrower, the consolidated accountant prepared annual accounts for the Group (as applicable) and the Management Accounts referred to in the Facility Letter; |
|
“First Drawdown” |
the First Drawdown in relation to the First Tranche or Facility Amount in full as applicable; |
|
“First Drawdown |
the date of the First Drawdown; |
|
“First Tranche” |
the first instalment of the Facility Amount as set out in Clause 2.2(i) of the Facility Letter; |
|
“Floating Charge” |
any floating charge in an agreed form granted by the Borrower and/or each of the other members of the Group in favour of the Lender on or before the date of the Facility Letter; |
|
“Forecasts” |
the forecasts for the forthcoming financial year which will set out projected annual trading and capital expenditure; |
|
“Group” |
at any time, the Borrower and any subsidiary (which is not dormant), subsidiary undertaking and holding company (in each case) of the Borrower and “Group Company” shall be construed accordingly; |
|
“Guarantee” |
a guarantee in an agreed form given by a director or other person (including any other Group Company under a composite guarantee or otherwise) in favour of the Lender on or before the date of this Agreement; |
|
“Guarantor” |
A Corporate Guarantor or a Personal Guarantor, in each case who has granted a guarantee to the Lender; |
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“HMRC” |
HM Revenue & Customs; |
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“ILO” |
International Labour Organisation; |
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“ILO Standards” |
any treaty, convention or covenant of the ILO signed and ratified by or otherwise applicable and binding on the United Kingdom and the Core Labour Standards (as defined in the ILO Declaration on Fundamental Principles and Rights at Work) |
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“Intellectual Property Rights” |
means patents, registered designs, registered trademarks, domain name registrations (together with all applications for any such rights), unregistered design rights, trade name or unregistered trademarks, copyright, database rights, know-how and other rights in confidential information or trade secrets throughout the world including (without limitation) all such rights in design documents or software and any transferable licences and permissions to use such rights from time to time belonging to the Borrower including incoming telephone numbers, domain names, internet sites and email addresses of the Borrower; |
|
“Inter-creditor Agreement” |
any inter-creditor agreement in an agreed form entered into by the Borrower and any other relevant Group Company with the Lender and any other creditor on or before the date of the Facility; |
|
“Interest Rate” |
the annual interest rate which is the aggregate of the margin quoted in the Facility Letter (as varied from time to time) plus the Base Rate; |
|
|
“Interest Payment Dates” |
means on or around the last Business Day in each month and the Final Capital Repayment Date; |
|
|
“Investor” |
The relevant investment fund for the Partnership; |
|
|
“Key Individuals” |
those listed in 2.12 of the particulars of the Facility Letter; |
|
|
“Listing” |
the admission of the Borrower or any Group Company of the Borrower to the official list of the UK listing authority or the admission of any part of the share capital of the Borrower or any Group Company of the Borrower to listing, trading or dealing on any of the Alternative Investment Market of the London Stock Exchange plc or any reverse takeover or admission to any other duly constituted market for the public trading of shares and other securities (and Listed shall be construed accordingly); |
|
|
“Loan” |
a sum equal to the Facility Amount and at any time thereafter, the principal amount owing to the Lender on the terms of the Facility Letter; |
|
|
“Management Accounts” |
the profit and loss account, balance sheet and other financial information for the relevant month or other period in question, details of which are set out in the Facility Letter; |
|
|
“Material Adverse Change” |
anything which is likely, in the reasonable opinion of the Lender, to:
|
|
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“Money Laundering” |
|
|
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“Monitor” |
means a licensed insolvency practitioner appointed as a ‘Monitor’ to independently oversee a company moratorium; |
|
|
“Monitoring Fee” |
shall have the meaning ascribed to it in Paragraph 2.3.3 of the Standard Terms & Conditions; |
|
|
“Monthly Capital Repayment Amount” |
the sum payable by the Borrower to the Lender on a monthly basis in repayment of the Loan as set out at Clause 2.4(iv) of the Facility Letter; |
|
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“New Lender” |
any new lender who has entered into an Assignation Agreement; |
|
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“NICs” |
National Insurance Contributions; |
|
|
“Notice" |
has the meaning ascribed to it in Paragraph 16 of the Standard Terms & Conditions; |
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“Obligations” |
the Borrower’s present and future monetary and other actual or contingent or prospective obligations incurred at any time to the Lender whether arising under the Facility or otherwise and whether arising in or by contract, delict, tort, restitution or assignation; |
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“Obligors” |
the Borrower, each Group Company, each person who enters into a Guarantee, and each person who enters into a Finance Document (other than the Lender); |
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“Partnership”
|
The relevant FSE C.I.C (company number 4463599) limited partnership, a list of which is available to view at https://www.thefsegroup.com/content/fse-cic-companies |
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“PAYE” |
a system under which employers deduct income tax and employee's NICs from the employee's gross salary and pay them (together with the employer's NICs) to HMRC; |
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“Permitted Security” |
shall have the meaning ascribed to it in Paragraph 3.1 of the Standard Terms & Conditions; |
|
“Personal Data” |
has the meaning given to that term in the General Data Protection Regulation (EU) 2016/679 as it applies in Scotland from time to time (including as retained, amended, extended or re-enacted on or after 11pm on 31 January 2020) plus any personal data (including sensitive personal data) that the Lender, or employees, agents or sub-contractors process on the Lender’s behalf in connection with the Facility; |
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“Personal Guarantor” |
Any individual that has granted a personal Guarantee in favour of the Lender; |
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“Potential Termination Event” |
an event or state of affairs which could become a Termination Event if a period of time passes, a notice is given or a determination is made; |
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“Prepayment Fee” |
shall have the meaning ascribed to it in Clause 2.3.5 of the Standard Terms & Conditions; |
|
“Procured Contract” |
the purchase of equipment, securing of services and ordering of works in relation to the business of the Borrower; |
|
“Procurement Procedure” |
in relation to any Procured Contract: either the guide to procurement in force at the date of this contract or any procedures applicable in the United Kingdom which are consistent with the Guide to Procurement |
|
“Prohibited Conduct” |
any financing of terrorism, Money Laundering or Prohibited Practice |
|
“Prohibited Practice” |
any:
|
|
“Purpose” |
shall have the meaning ascribed to it in Clause 2.5 of the Facility Letter; |
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“Repayment Dates” |
the date(s) falling at the end of the first month after the Capital Repayment Start Date and every month thereafter when the Monthly Capital Repayment Amounts are paid to the Lender; |
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“Sale” |
the sale to a third party or parties of (a) at least 90% of the equity share capital of the Borrower or (b) all or substantially all the assets and undertaking of the Borrower or the Group or any Group Company; |
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“Sanctioned Person” |
any individual or entity listed in one or more Sanction Lists; |
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“Sanction Lists” |
websites https://data.europa.eu/apps/eusanctionstracker/ and http://eeas.europa.eu/cfsp/sanctions/docs/measures_en.pdf, as amended and supplemented from time to time or on any successor page; or
sc-consolidated-list, as amended and supplemented from time to time or on any successor page |
|
“Second Tranche” |
the second instalment of the Facility Amount as set out in Clause 2.2(ii) of the Facility Letter; |
|
"Security" |
a standard security, mortgage, charge (whether fixed or floating), pledge, lien, hypothec, assignation or assignment in security or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect; |
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“Security Documents” |
the deeds and documents listed in the "Security Documents" section of the Facility Letter and any other deeds or documents in respect of Security now or at any time in the future given in favour of the Lender from time to time by or on behalf of the Borrower, any Group Company, any Personal Guarantor, any Key Individual or any other person; |
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“Social Law” |
each of:
|
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“Social Matters” |
all, or any of, the following: (i) labour and employment conditions; (ii) occupational health and safety; (iii) protection and empowerment of rights and interests of indigenous peoples, ethnic minorities and vulnerable groups; (iv) cultural heritage (tangible and intangible); (v) public health, safety and security; (vi) involuntary physical resettlement and/or economic displacement and loss of livelihood of persons; and (vii) public participation and stakeholder engagement; |
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“Specific Conditions” |
those conditions set out in the Schedule Part 4 of the Facility Letter; |
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“Subsequent |
any additional instalments of the Facility Amount after the First Tranche and Second Tranche; |
|
“Small Medium Enterprise” |
a “small medium enterprise” or “SME” within the meaning of small and medium-sized enterprises set out in European Commission Recommendation 96/280/EC as amended or replaced from time to time; |
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“State Aid Rules” (Subsidy Control) |
any state aid legislation or rules specified and in force by the UK Government as at the date of this Agreement and, to extent applicable, rules set out in Article 107 (1) of the Treaty on the Functioning of the European Union (“TFEU”); |
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“Tangible Net Worth” |
the aggregate of the paid up share capital of the Borrower plus any share premium or capital redemption reserves and retained earnings but excluding the costs and expenses relating to goodwill; |
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“Termination Event” |
any of the events set out in Paragraph 15 of the Standard Terms & Conditions; |
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“The FSE Group” |
Any of the subsidiary companies of FSE C.I.C (company number 4463599), a list of which is available to view at https://www.thefsegroup.com/content/fse-cic-companies |
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“Tranches” |
the First Tranche, Second Tranche and all other Subsequent Tranches as set out in Clause 2.2 of the Facility Letter and “Tranche” shall mean any one of them; |
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“VAT” |
value added tax as imposed by the VAT Act and any other tax of a similar fiscal nature whether imposed in the United Kingdom (instead of or in addition to value added tax) or elsewhere from time to time; |
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“VAT Act” |
The Value Added Tax Act 1994 as modified or re-enacted or both from time to time whether before or after the date of this Agreement and any subordinate legislation made under it from time to time whether before or after the date of this Agreement; |
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VAT Return” |
VAT return as required to be submitted periodically to HMRC. |