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<PAGE>
Exhibit 10.103
DATED DECEMBER 30, 2005
RUSS BERRIE (UK)
LIMITED
(1)
and
BARCLAYS BANK PLC (2)
---------------------------------------------------------------
FRAMEWORK AGREEMENT
relating to 6,000,000
Pounds Sterling multi-currency facility
---------------------------------------------------------------
HAMMONDS
7 Devonshire Square Cutlers Gardens London
EC2M 4YH DX 136546 Bishopsgate 2
TELEPHONE +44 (0)870 839 0000 FAX +44
(0)870 839 1001
OFFICES AND ASSOCIATED OFFICES Aosta Berlin Birmingham Brussels Hong Kong Leeds
London Madrid Manchester Milan Munich Paris Rome Turin
WEBSITE www.hammonds.com
REFERENCE: BAR.962-0228
<PAGE>
CONTENTS
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1
INTERPRETATION......................................................................................1
2 AMOUNT.............................................................................................12
3 CONDITIONS
PRECEDENT...............................................................................12
4 EXISTING
DEBTS.....................................................................................13
5
PURCHASE...........................................................................................14
6
ACCOUNTS...........................................................................................16
7 COLLECTION AND
ADMINISTRATION......................................................................16
8 NON-PAYMENT
OBLIGATIONS............................................................................18
9 FEES...............................................................................................18
10
PAYMENTS...........................................................................................19
11 GENERAL
REPRESENTATIONS............................................................................19
12 DEBT SPECIFIC
WARRANTIES...........................................................................20
13 CREDIT APPROVAL
UNDERTAKINGS.......................................................................21
14 GENERAL
UNDERTAKINGS...............................................................................23
15
TERMINATION........................................................................................25
16
DEFAULT............................................................................................25
17 LIMITED
RECOURSE...................................................................................27
18 INDEMNITY..........................................................................................27
19 INCREASED
COSTS....................................................................................28
20
SET-OFF............................................................................................28
21 POWER OF
ATTORNEY..................................................................................28
22
ASSIGNMENTS........................................................................................29
23 WAIVERS AND REMEDIES
CUMULATIVE....................................................................29
24
MISCELLANEOUS......................................................................................29
25 NOTICES............................................................................................30
26
COUNTERPARTS.......................................................................................30
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i
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27
JURISDICTION.......................................................................................30
28 GOVERNING
LAW......................................................................................30
Schedule 1 FORM OF NOTICE OF ASSIGNMENT AND
TRUST...........................................................33
Schedule 2 FORM OF DEBT NOTIFICATION
NOTICE.................................................................34
Schedule 3 OPERATIONAL
UNDERTAKINGS.........................................................................35
Schedule 4 COMPUTERISED FACILITIES..........................................................................37
ANNEXE 1
...................................................................................................41
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ii
<PAGE>
DATE OF FRAMEWORK AGREEMENT 2006
PARTIES
(1) RUSS BERRIE (UK) LIMITED
(registered with the number 01459528) whose
registered office is at Liberty
House, Houndsdown Business Park, Bulls
Copse Road, Totton, Southampton,
Hampshire SO40 9RB (the "COMPANY");
and
(2) BARCLAYS BANK PLC acting through
its Sales Financing division at
Churchill Plaza, Churchill Way,
Basingstoke, Hampshire RG21 7GL
("BARCLAYS").
INTRODUCTION
A The Company is a trading entity
creating Debts in the ordinary course
of its business.
B Due to the specific working
capital requirements of the Company,
certain Debts shall be assigned
by the Company to Barclays pursuant to
this Agreement.
C This Agreement provides the
framework for the sale of Debts by the
Company to Barclays.
D It is intended that where a
Debtor does not make payment of a Debt (in
whole or in part), the Company
shall demand from the relevant Debtor
payment of the Debt in full or
the Shortfall. It is also intended that
if the Company breaches its
obligations to make demand of the relevant
Debtor, the Company shall pay an
amount equal to the amount that should
have been so demanded.
E The entry into of this Agreement
is for the Company's general corporate
purposes
IT IS AGREED THAT:
1 INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ADMINISTRATOR"
means any person appointed under
Schedule B1 of the Insolvency Act 1986
to manage a person or
partnership's affairs, business and property.
"ADVERTISING
CONTRIBUTIONS"
means sums payable to the
Company by Debtors in consideration of
financial contributions made by
the Company in relation to advertising
and other similar expenditure.
"AFFILIATE"
means a Subsidiary or a holding
company (as defined in section 736 of
the Companies Act 1985) of a
person or any other Subsidiary of that
holding company.
1
<PAGE>
"AGED EXISTING DEBTS"
means Existing Debts which were
due for payment by the relevant Debtors
on or before 1 July 2005 (and which are
therefore not insured by the
Policy).
"AGEING PERIOD"
means 150 days from the last day
of the month in which the relevant
Invoice was raised.
"APPLICABLE RATE"
means for the purposes of
calculating Discount, in relation to Approved
Currencies, the prevailing base
rate of Barclays Bank PLC as varied
from time to time.
"APPROVED CURRENCIES"
means Sterling and US Dollars,
and "APPROVED CURRENCY" shall be
construed accordingly.
"APPROVED DEBT"
means a Debt:
(a) in relation to which the Company is not
in breach of any
warranty,
representation, covenant or undertaking given in
relation to such Debt
under this Agreement; and
(b) which does not cause any Limit to be
exceeded; and
(c) which is subject to and falling within a
Credit Limit; and
(d) which is subject to and falling within a
Barclays' Credit
Limit.
"APPROVED
JURISDICTIONS"
means for the time being, the
member states of the European Union (as
it shall comprise from time to
time), Hong Kong, the USA and any other
country Barclays may approve
from time to time and "APPROVED
JURISDICTIONS" shall be
construed accordingly.
"BANKING DAY"
means a day (other than a
Saturday or a Sunday) on which banks are open
for business in London.
"BARCLAYS' CREDIT
LIMIT"
means a credit limit referable
to a Debtor, which shall until further
notice by Barclays to the
Company, mirror the Credit Limit (if any)
referable to such Debtor.
"BREAKAGE COSTS"
means the sum payable in
accordance with clause 15(e) (Termination).
2
<PAGE>
"COMPUTERISED
FACILITIES"
has the meaning given to it in
Schedule 4 (Computerised Facilities).
"COLLECTION DATE"
means, in relation to a Debt,
the date on which the amount owed by the
Debtor to the Company is
received by the Company.
"COMMENCEMENT DATE"
means the date of this
Agreement.
"CONTRA ACCOUNTS"
means the actual and potential
offset value of any amount owed by the
Company to a Debtor against the
amount owed by the Debtor to the
Company as part of a reciprocal
trading relationship as determined by
Barclays (acting reasonably)
from the month end debtors and creditors
aged analyses.
"CONTRACT"
means an arrangement between a
Debtor and the Company under which the
Debtor is obliged to pay for
goods sold or services supplied by the
Company.
"CREDIT LIMIT"
means, in relation to a Debtor,
the subsisting credit limit (if any)
allowed or issued by the Insurer
under the Policy.
"CREDIT NOTE"
means a credit note raised and
issued by the Company to a Debtor which
reduces the amount of Debt due
under an Invoice.
"CREDIT RISK"
means the risk of financial loss
detailed in and covered by the Policy
as a consequence of the failure
of a Debtor to pay an Approved Debt
wholly or in part but excluding
any amount representing any First Loss
or any VAT in relation to a
Debt.
"DEBT"
means the indebtedness of a
Debtor to the Company under a Contract
(including VAT and the right to
payment of any interest or finance
charges and all other rights as
an unpaid vendor under the relevant
Contract or at law including the
right to receive, sue for, recover and
obtain payment, and the goods
delivered under such Contract).
3
<PAGE>
"DEBIT NOTE"
means a debit note raised and
issued by a Debtor to the Company which
reduces the amount of Debt due
under an Invoice (including, for the
avoidance of doubt, debit notes
issued by Harrods Limited or any
Affiliate of Harrods Limited
(company number 00030209)).
"DEBT NOTIFICATION
NOTICE"
means a notice substantially in
the form of Schedule 2 (Form of Debt
Notification Notice).
"DEBTOR"
means a trade debtor of the
Company under a Contract.
"DEBTOR ACCOUNT"
means the bookkeeping account
maintained by Barclays in relation to
this Agreement as referred to in
clause 6.2 (Debtor Account).
"DEBTOR ACCOUNT
BALANCE"
means the balance of the Debtor
Account from time to time.
"DEDUCTION"
means the aggregate of:
(a) the aggregate value (from time to time)
of Credit Notes and
Debit Notes;
(b) (if the aggregate value of all
outstanding Approved Debts at
any time of a single
Debtor is equal to or greater than 20 per
cent. of all
outstanding Approved Debts at such time (the
"DEBTOR
LIMIT")), the amount of any Approved Debt owed by that
Debtor in excess of the
Debtor Limit;
(c) (if the aggregate value of all
outstanding Eligible Export
Debts at any time
exceeds more than 20% of the aggregate value
of all outstanding
Approved Debts at such time (the "EXPORT
LIMIT")), the
value of any Export Debt owed by any Export
Debtor in excess of the Export
Limit; and
(d) (if the aggregate value of all Excluded
Export Debts at any
time exceeds more than
20% of the aggregate value of all
outstanding Debts at
such time (the "EXCLUDED EXPORT DEBT
LIMIT")), the
value of any Excluded Export Debt owed by any
Excluded Export Debtor
in excess of the Excluded Export Debt
Limit.
"DEFAULT"
means an Event of Default or an
event which, with the giving of notice,
lapse of time, determination of
materiality or fulfilment of any other
applicable condition (or any
combination of the foregoing), would in
accordance with clause 16.1 (Default)
constitute an Event of Default.
4
<PAGE>
"DEFERRED ELEMENT"
has the meaning given to it in
clause 5.3(b) (Early Payment Percentage
and Deferred Element)
"DISCOUNT"
means 1.50 per cent above the Applicable
Rate from time to time.
"DISCOUNT PERIOD"
means 120 days after the end of
the month in which the relevant Debtor
becomes Insolvent or any
Insolvency Proceedings occur in relation to
the relevant Debtor.
"DISPUTES"
means, from time to time and at
any time, the aggregate value of all
and any Debts (in whole or in
part) in relation to which the relevant
Debtor has indicated to the
Company that it will withhold or refuse to
make payment for any reason.
"EARLY PAYMENT
PERCENTAGE"
means, subject to the terms of
this Agreement, 75 per cent of the
Notified Value of Approved
Debts.
"EVENT OF DEFAULT"
means an event specified as such
in clause 16.1 (Default).
"EXCLUDED EXPORT DEBT"
means a Debt created under a
Contract the Invoice in relation to which
is addressed to a Debtor outside
an Approved Jurisdiction and/or
expressed in a currency which is
not an Approved Currency.
"EXISTING DEBT"
means a Debt existing at the
Commencement Date.
"EXPORT DEBT"
means a Debt created under a
Contract governed by English law the
Invoice in relation to which is addressed to a Debtor in an Approved
Jurisdiction and expressed in an
Approved Currency and "EXPORT DEBTOR"
shall be construed accordingly.
"FACILITY"
means the limited recourse confidential
invoice discounting facility
provided under this Agreement.
5
<PAGE>
"FACILITY ARRANGEMENT
FEE"
means 30,000 Pounds Sterling
plus VAT.
"FACILITY LIMIT"
means 6,000,000 Pounds Sterling (or its
currency equivalent).
"FINANCE DOCUMENTS"
means this Agreement, the Letter
of Comfort, the Policy Assignment and
all and any ancillary
documentation associated therewith or connected
thereto or designated by Barclays as a
Finance Document.
"FIRST LOSS"
means the deductible as referred
to or defined in the Policy or any
similar first loss of deduction
established by the Insurer.
"FUTURE DEBT"
means a Debt created after the
Commencement Date.
"INSOLVENCY
PROCEEDINGS"
means, in relation to any person
(and for the purposes of this
definition "person"
shall include a partnership):
(a) any distress, execution, or sequestration
is exercised against
the assets of that
person; or
(b) any petition or proposal is presented or
a meeting is convened
with a view to a
composition, assignment or arrangement with
any creditors of that
person; or
(c) a meeting of that person is convened for
the purpose of
considering any
resolution for (or to petition for) its
winding-up or for its
administration or any such resolution is
passed; or
(d) a notice of intention to appoint an
Administrator being given
by any person or an
Administrator being appointed; or
(e) any person presents a petition for the
administration or
winding-up of a person
(not being a petition which can be
demonstrated to the
reasonable satisfaction of Barclays to be
frivolous, vexatious or
an abuse of process of the court or is
validly discharged
within 10 Banking Days); or
(f) an order for the winding-up or
administration or bankruptcy of
that person is made; or
(g) a moratorium pursuant to Section 1A and
Schedule A1 Insolvency
Act 1986 or pursuant to
paragraph 1A of Schedule 1 of the
Insolvent Partnerships
Order 1994 is established; or
6
<PAGE>
(h) any petition or proposal is presented or
a meeting is convened
with a view to the
rehabilitation, administration,
receivership,
custodianship, liquidation, winding-up or
dissolution of that
person (other than for the purpose of an
amalgamation or
reconstruction whilst solvent), or any other
insolvency proceedings
involving that person (not being
proceedings which such
person can demonstrate to the
reasonable satisfaction of Barclays is
frivolous, vexatious or
an abuse of process).
A person (and for the purposes
of this definition "person" shall
include a partnership) is
"INSOLVENT" if:
(a) it is, or is deemed for the purposes of
any law to be, unable
to pay its debts or to
be insolvent, or admits its inability
to pay its debts as
they fall due; or
(b) it ceases to trade or notifies Barclays of
its intention to
cease to trade or
Barclays otherwise becomes aware of such
intention through a
source reasonably considered to be
reliable; or
(c) any step (including petition, proposal,
giving notice,
convening a meeting or
applying to court) is taken with a view
to:
(i) a composition or scheme of arrangement
(including a
company
voluntary arrangement) with any of its
creditors;
(ii) its administration, winding-up,
liquidation or
dissolution;
(iii) its receivership or bankruptcy; or
(iv) anything analogous to sub-paragraphs (i) -
(iii)
above; or
(d) an Administrator is appointed over it; or
(e) it is insolvent within the terms of the
Insolvency Act 1986.
"INSURER"
means Euler Hermes (UK) Plc or any other insurer which shall co-insure,
joint insure, or act (with
Barclays' prior written consent) as a
substitute or replacement
insurer from time to time.
"INVOICE"
means the original sales invoice
in respect of a Debt issued by the
Company to a Debtor.
"LA SALLE"
means La Salle Business
Credit/La Salle Bank N.A. of 135 S La Salle St,
Suite 425, Chicago IL 60606.
"LETTER OF COMFORT"
means the letter of comfort
dated on or around the date hereof provided
by the Parent in
7
<PAGE>
favour of Barclays in respect of
the obligations arising under this
Agreement.
"LIMITS"
means, from time to time, the
Facility Limit, the Debtor Limit, the
Export Limit, the Excluded
Export Limit the Permitted Dilution
Percentage and the Permitted
Ageing Percentage.
"MATERIAL ADVERSE
CHANGE"
means a material adverse change
to (a) the business, assets, financial
condition or operation of the
Company and its Affiliates, or (b) the
ability of the Company to
perform the obligations arising under this
Agreement or (c) the ability of
the Company and/or the Parent to
perform their respective
obligations arising under the Finance
Documents.
"MATURITY DATE"
means, in respect of each Debt,
the due date for payment of that Debt
as specified in its Invoice.
"MINIMUM PERIOD"
means a period expiring 12
calendar months after the Commencement Date.
"NOTICE OF ASSIGNMENT AND
TRUST"
means a notice substantially in
the form of Schedule 1 (Form of Notice
of Assignment and Trust).
"NOTIFIED"
means in relation to a Debt, the
inclusion of that Debt in the Sales
Ledger or within a Debt
Notification Notice.
"NOTIFIED VALUE"
means the value of a Debt
described in the Sales Ledger or within a
Debt Notification Notice.
"PARENT"
means Russ Berrie and Company,
Inc. (a US corporation incorporated
under the laws of the State of
New Jersey, USA).
"PARTY"
means a party to this Agreement.
"PAYMENT ACCOUNT"
means the bookkeeping account
maintained by Barclays in relation to
this Agreement as referred to in
clause 6.1 (Payment Account).
8
<PAGE>
"PAYMENT ACCOUNT
BALANCE"
means the balance of the Payment
Account from time to time.
"PAYMENT DATE"
means the date:
(a) of receipt by Barclays of the Sales
Ledger; or
(b)
one Banking Day after receipt by Barclays of a Debt
Notification Notice
from the Company.
"PAYMENT DEFAULT"
means the failure by the Company
to comply with payment obligations to
Barclays more particularly
described by clause 16.1(i) (Default).
"POLICY"
means the Euler Hermes credit
insurance policy relating to the Debts
from time to time created by the
Company, dated on or around the
Commencement Date or such replacement
credit insurance policy as
Barclays may agree in writing to
designate as a Policy from time to
time.
"POLICY ASSIGNMENT"
means the assignment dated on or
around the Commencement Date in favour
of Barclays of all and any of
the Company's rights, interest and
benefit arising under or in
connection with the Policy and/or the
noting of Barclays as sole loss
payee under the Policy.
"PURCHASE"
means a purchase or purported
purchase by Barclays from the Company of
a Debt pursuant to this
Agreement.
"RESERVES"
means, without limitation, any
event, circumstance, agreement or right,
the effect of which shall
restrict the amount which may be payable to
the Company on account of the
Purchase Price of Debts which include
(from time to time) the
aggregate balance (without double counting) of
Advertising Contributions,
Contra Accounts, Credit Notes, Debit Notes,
Excluded Export Debts, Retrospective
Rebates, Disputes, Aged Existing
Debts and settlement discounts.
"RETROSPECTIVE
REBATES"
means the amount of any turnover
or volume related discounts agreed
with Debtors which are accrued
for pending settlement by the issue of a
future Credit Note or payment.
9
<PAGE>
"SALES LEDGER"
means the fully reconciled sales
ledger of the Company (clearly
identifying all outstanding
Invoices, Credit Notes and Debit Notes in
an open item format with all
cash and other credit terms allocated to
the appropriate Invoices) in the
form annexed at Annexe 1.
"SECURITY INTEREST"
means any mortgage, pledge,
lien, charge, hypothecation, trust, or
security interest or any other
agreement or arrangement having the
effect of conferring security.
"SERVICE FEE"
means 1,750 Pounds Sterling plus
VAT per month.
"SHORTFALL"
means in relation to a Debt, any
part (not being the whole) of the
Invoice Value of a Debt not
received or recovered by Barclays for that
Debt.
"STERLING" OR
"POUND STERLING"
means the lawful currency of the
United Kingdom.
"SUBSIDIARY"
means, in relation to a person,
an entity of which that person has
direct or indirect control or
owns directly or indirectly more than 50
per cent. of the voting capital
or similar right of ownership and
"control" for this
purpose means the power to direct management and the
policies of an entity whether
through ownership of voting capital, by
contract or otherwise.
"TERMINATION DATE"
means the date on which this
Agreement is terminated under clause 15
(Termination) or clause 16
(Default).
"TRUST ACCOUNTS"
means any bank accounts in the
Company's name, mandated in favour of or
otherwise controlled by Barclays
and/or declared in trust for Barclays,
and which in each case, the
Company has no right, title, interest in or
to any balance standing from
time to time to the credit thereof.
"UNAPPROVED DEBT"
means a Debt which Barclays designates
as not being, or no longer being
an Approved Debt, or in respect
of which the Company is in breach of
any provision of this Agreement.
"US FACILITY
AGREEMENT"
means the agreement between La
Salle and the Parent pursuant to which
La Salle have
10
<PAGE>
agreed to provide the Parent
with certain facilities, in the form
subsisting at the Commencement
Date (a certified copy of which will be
provided to Barclays for
information purposes in accordance with clause
3.2 (Conditions Precedent and
Condition Subsequent)).
"US FINANCIAL
COVENANTS"
means any financial covenants
contained in the US Facility Agreement
(and if La Salle agrees to
waive, amend, vary, substitute or replace
such financial conditions, any
such waiver, amendment, variation,
substitution or replacement
shall only binding for the purposes of this
Agreement to the extent that
Barclays agree in writing from time to
time to be bound by it).
"VAT"
means value added tax.
1.2 CONSTRUCTION
(a) In this Agreement, unless the contrary
intention appears, a
reference to:
(i) an "AUTHORISATION" includes an
authorisation,
consent,
approval, resolution, licence, exemption,
filing or
registration;
a
"REGULATION" includes any regulation, rule,
official
directive, request or guideline (whether or
not having the
force of law) of any governmental,
inter-governmental
or supranational body, agency,
department or
regulatory, self-regulatory or other
authority or
organisation; and
a "CHANGE
OF CONTROL" means when a person or group of
persons acting
in concert becomes the beneficial
owner of 50
per cent. of shares in the entire issued
share capital
of any company carrying the right to
exercise more than 50 per cent.
of the votes at a
general
meeting of that company;
(ii) a clause or a Schedule is a reference to a
clause of
or a schedule
to this Agreement;
(iii) a person includes its successors and
assigns;
(iv) a document is a reference to that document
as
amended,
varied, restated, replaced or substituted;
(v)
a time of day is a reference to London time;
(vi) words denoting the singular only shall
include the
plural and
vice versa;
(vii) the date of this Agreement is to be
construed as the
date on which
the Company signs this Agreement; and
(viii) references to any statute, law, decree or
regulation
shall be
deemed to be references to such statute,
law, decree or regulation as
re-enacted, amended,
extended, or
replaced from time to time;
11
<PAGE>
(b) The index to and the headings in this
Agreement are for
convenience only and
are to be ignored in construing this
Agreement.
1.3 CONTRACTS (RIGHTS OF THIRD
PARTIES) ACT 1999
Unless expressly provided to the
contrary in this Agreement, a person
who is not a party to this
Agreement may not enforce any of its terms
under the Contracts (Rights of
Third Parties) Act 1999 and
notwithstanding any term of this
Agreement, the consent of any third
party is not required for any variation
(including any release or
compromise of any liability) or
termination of this Agreement.
2 AMOUNT
2.1 By executing and delivering this
Agreement, the Company assigns to
Barclays all Existing Debts and
all Future Debts. Ownership of Existing
Debts shall vest absolutely in
Barclays on the date of this Agreement
and Future Debts shall vest
absolutely in Barclays automatically upon
the creation of such Debts
without any further act on the part of
either the Company or Barclays.
2.2 Subject to the terms of this
Agreement, the amount paid for Approved
Debts by Barclays shall be
limited to a maximum aggregate amount
outstanding at any one time
which results in:
(a)
the Payment Account Balance being no greater than the Early
Payment Percentage of
the Approved Debts on the Debtor Account
Balance; and
(b) the Payment Account Balance being no
greater than the Facility
Limit.
3 CONDITIONS PRECEDENT AND
CONDITION SUBSEQUENT
3.1 Barclays will make no payment in
relation to Approved Debts pursuant to
the Facility unless and until
Barclays confirms to the Company that the
following has been received or
addressed in form and substance
satisfactory to Barclays:-
(a) a copy of the resolution of the board of
directors of the
Company approving the
terms of, and the transactions
contemplated by, this
Agreement;
(b) a specimen of the signature of each
person authorised to sign
this Agreement on
behalf of the Company and to sign and/or
send all documents and
notices to be signed and/or sent by the
Company under this
Agreement;
(c) evidence that no Security Interest
affects the Debts or a
waiver from any person
entitled to any Security Interest in a
form and substance satisfactory to Barclays;
(d) payment in full of the Facility
Arrangement Fee specified in
clause 9(a) (Fees) to
such account as Barclays may nominate,
together with payment
in full of all legal fees incurred by
Barclays in connection
with the preparation and negotiation of
the Finance Documents
all other ancillary documentation
associated or connected
thereto;
(e) evidence of Barclays' reasonable
satisfaction with updated
original survey
findings dated 15th and 16th December 2005 of
the Sales Ledger;
12
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(f) evidence of all proof of delivery
information and
documentation;
(g) evidence of 1,000,000 Pounds Sterling
product liability
insurance subsisting
with an insurer acceptable to Barclays;
(h) evidence of Barclays' reasonable
satisfaction that the Company
can produce acceptable
Invoices and Credit Note daybooks to
corroborate Total
Uploads and the form of all and any
information required to
be delivered under Schedule 3
(Operational
Undertakings);
(i) the entry into of the Finance Documents;
(j) evidence of the approval and consent of
Russ Berrie and
Company, Inc. to the
entry into of the Finance Documents;
(k) evidence of the approval and consent of
La Salle to the entry
into of the Finance
Documents;
(l) evidence of the entry into of the Policy
together with
evidence that Barclays
have been named as joint insured or
first loss payee (to be
decided by Barclays) in relation to
the Policy;
(m) confirmation of which suppliers are paid
by the Company by
letter of credit; and
(n) any other document, assurance or opinion
that Barclays may
reasonably require.
3.2 The Company agrees to provide to
Barclays a copy of the US Facility
Agreement, certified as a true
and complete copy of that agreement by
the Parent's US legal counsel
within 7 Banking Days of the Commencement
Date.
4 EXISTING DEBTS
4.1 Barclays will:
(a) make no payment in relation to Existing
Debts pursuant to the
Facility unless:
(i) Barclays has received the Sales Ledger in
substantially
the form set out in Annexe 1 (Sales
Ledger) of
this Agreement;
(ii) each Existing Debt is denominated in
Approved
Currency and
is due and payable to the Company in the
United Kingdom
within 60 days of the date of payment
of the
relevant Invoice;
(iii) the purchase by Barclays of the Existing
Debts would
not result in
a breach of clause 2.2 (Amount);
(iv) no Default has occurred or will result
from the
purchase by Barclays of the
Existing Debts; and
(v) the Company provide in relation to the
Existing
Debts:-
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(A) a
summary debtors aged analysis in a format
reasonably agreed by Barclays (acting
reasonably);
(B) if previously requested by Barclays,
copies
of the Invoices
evidencing the Existing
Debts; and
(C) any other document Barclays may
reasonably
require; and
(b)
not make a payment against an Existing Debt unless it is an
Approved Debt.
4.2 The Company will thereafter
deliver a Debt Notification Notice to
Barclays in relation to Future
Debts no less frequently than once per
week, or as otherwise agreed
with Barclays confirming that:
(a) all Future Debts created during the
preceding week; and
(b) a summary debtors aged analysis in a
format agreed by Barclays
(acting reasonably);
have been Notified to Barclays
electronically (in accordance with the
provisions of Schedule 4
(Computerised Facilities) or as agreed between
Barclays and the Company from
time to time) so that Barclays are
satisfied that the Company has
Notified Barclays of all Future Debts
PROVIDED ALWAYS that Barclays
may request hard copy sales ledgers
detailing Future Debts and/or
summary debtors aged analysis in a format
agreed by Barclays (acting
reasonably) at any time.
4.3 If previously requested by
Barclays, the Company agrees to send to
Barclays copies of Invoices
evidencing the Future Debts along with the
Debt Notification Notice.
5 PURCHASE
5.1 PURCHASE PRICE
(a) Subject to compliance with the terms of
clause 3 (Conditions
Precedent) and clause
4.1 (Existing Debts), Barclays shall pay
an amount to the
Company in respect of the Purchase Price of
Existing Debts which are Approved
Debts, in accordance with
clause 5.3 (Early
Payment Percentage and Deferred Element).
(b) Subject to the terms of this Agreement
and compliance with the
terms of clause 4.2
(Existing Debts), following receipt of a
Debt Notification
Notice, Barclays shall, at the Company's
request, pay an amount
to the Company in respect of the
Purchase Price of
Future Debts which are Approved Debts and
which the Company
refers to in the Debt Notification Notice,
in accordance with
clause 5.3 (Early Payment Percentage and
Deferred Element).
5.2 PURCHASE PRICE
The Purchase Price of each Debt shall be the
amount received by
Barclays towards the discharge
of the Debt, less in each case Discount
(accrued prior to the expiry of
the Discount Period) and any Deduction,
set-off, or claim later made by
a Debtor or discount, abatement, claim
or allowance to which such
Debtor may be entitled, and any other
deduction permitted or provided
for by the terms of this Agreement and
shall be payable
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by Barclays on the Collection
Date ("PURCHASE PRICE").
5.3 EARLY PAYMENT PERCENTAGE AND
DEFERRED ELEMENT
(a) Subject to the terms of this Agreement,
Barclays shall, in
relation to Approved
Debts, make a payment of the Purchase
Price to the Company on
each Payment Date, equal to the Early
Payment Percentage of
the Notified Value (inclusive of VAT) of
such Approved Debts (or
such lesser amount as may be agreed
with the Company)
("EARLY PAYMENT") provided that the making of
any such Early Payment
shall not cause any Limit to be
exceeded, and taking
into account the aggregate value from time
to time of Reserves.
(b) Subject to the terms of this Agreement,
Barclays shall pay to
the Company on each
Collection Date, any outstanding balance
of the Purchase Price
of Approved Debts, after accounting for
accrued Discount
charged or to be charged and the amount of
any Early Payment made
in respect of such Debts (the "DEFERRED
ELEMENT") and
provided that the payment of any such Deferred
Element shall not cause
any Limit to be exceeded.
(c) The payment of the Early Payment and/or
the Deferred Element
to the Company by
Barclays pursuant to clause 5 (Purchase)
shall constitute a good
discharge by Barclays of such monies
so paid.
(d) The Company shall immediately repay to
Barclays upon Barclays'
request, the amount of
any payment made in excess of any
Limit, or any Early
Payment in relation to any Approved Debt
where such Approved
Debt becomes an Unapproved Debt.
5.4 ADJUSTMENT OF EARLY PAYMENT
PERCENTAGE
(a) If, in any rolling three month period,
the aggregate value of
all Credit Notes issued
by the Company exceeds 10 per cent. of
the aggregate Notified
Value of all Debts Notified to Barclays
during that period (the
"PERMITTED DILUTION PERCENTAGE"),
Barclays shall reduce the Early Payment
Percentage by 1
percentage point for
each increase of 1 per cent. above of the
Permitted Dilution
Percentage.
(b) If, on the last day of any calendar
month, the aggregate
Notified Value of
outstanding Debts which exceed the Ageing
Period exceeds 10 per
cent. of the aggregate Notified Value of
all Debts Notified to
Barclays and outstanding on that day
(the "PERMITTED AGEING
PERCENTAGE"), Barclays shall reduce the
Early Payment
Percentage by 1 percentage point for every 1 per
cent. above the
Permitted Ageing Percentage.
(c) In the event of any unsatisfactory audit
and/or the
non-compliance by the
Company with the terms of the Policy
and/or the breach of
the US Financial Covenants, Barclays may
reduce the Early
Payment Percentage to a level which, in their
discretion, reflects
the increased risk associated with such
circumstances.
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6 ACCOUNTS
6.1 PAYMENT ACCOUNT
(a) Barclays shall, on each Payment Date,
debit an amount equal to
an Early Payment to the
Payment Account.
(b) Barclays shall, on each day a payment of
the Deferred Element
is made, debit an
amount equal to such payment to the Payment
Account.
(c) Discount i
