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Sample Business ContractsHome: Sample Business Contracts: DATED 24TH JUNE 2004 VIEWSONIC EUROPE LIMITED FACILITY AGREEMENT Nabarro Nathanson Tel: 020 7524 6000
Table of Contents
i FACILITY AGREEMENT DATE 24th JUNE 2004 PARTIES (1) VIEWSONIC EUROPE LIMITED (the “Company”); (2) THE SUBSIDIARIES of the Company listed in part II of Schedule 1 as original guarantors (together with the Company the “Original Guarantors”); (3) BURDALE FINANCIAL LIMITED (Registered in England and Wales No 2656007) ((together with its successors and assigns) the “Lender”). IT IS AGREED AS FOLLOWS: 1. DEFINITIONS AND INTERPRETATION 1.1 Definitions In this Agreement: “Accession Letter” means a document substantially in the form set out in Schedule 5 (Form of Accession Letter); “Additional Borrower” means a company which becomes an Additional Borrower in accordance with clause 24.2 (Changes to the Obligors); “Actual Date of Payment” means in relation to a Purchased Receivable, the date on which full payment in respect of that Purchased Receivable is made into a Blocked Account by the relevant account debtor or the relevant Facility Company; “Additional Guarantor” means a company which becomes an Additional Guarantor in accordance with clause 24.3 (Changes to the Obligors); “Additional Obligor” means an Additional Borrower or an Additional Guarantor; “Affiliate” means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company; “Authorisation” means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration; “Availability Limit” means each of the Availability Limits established or referred to in clause 6 (Restrictions applicable to individual Facilities); 1 “Availability Period” means the period from and including the date of this Agreement to and including the date falling five Business Days prior to the Final Repayment Date, or such later date as the Lender may allow; “Blocked Accounts” has the meaning given to it in the Debenture; “Borrower” means the Company and any Additional Borrower; “Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in London; “Charged Accounts” means the Blocked Account and the Other Accounts; “Cash Request” means a request in the form set out in part II of Schedule 4. “Debenture” means the first-ranking debenture executed or to be executed by the Obligors in favour of the Lender; “Deed of Accession” has the meaning given to it in the Debenture; “Default” means an Event of Default or any event or circumstance specified in clause 22 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default; “Dilution Rate” means the monthly value of credit notes and non-cash credits issued by a Borrower as a percentage of the monthly value of sales; “Documents” means any and all documents which represent or relate to any Goods and/or the possession of and/or ownership of and/or insurance of and/or warehousing of and/or any other dealing in or with any Goods; “Dollars”, “US Dollars” and “$” means the lawful currency of the United States of America; “Dutch Pledge” means a pledge over Stock held for the Company by Furness Logistics BV, at Trade Boulevard 4, Haven nummer 5284761, RL Moerdijk, the Netherlands and other locations; 2 “Eligible Country” means (i) any country which was a Member State of the European Union on 1 January 2004, (ii) Israel, (iii) Norway, and (iv) Switzerland; “Eligible Receivables” has the meaning given to it in Schedule 3; “Eligible Stock” has the meaning given to it in Schedule 3; “Event of Default” means any event or circumstance specified as such in clause 22 (Events of Default); “Expiry Date” means for an L/C, the last day of its Term; “Facility” includes the Receivables Finance Facility and the Revolving Credit Facility; “Facility Companies’’ includes the Borrowers and the Guarantors; “Facility Limit” means US $20,000,000; “Final Repayment Date” means the date falling 36 months after the date of this Agreement; “Finance Document” means this Agreement, the Security Documents, any Accession Letter and any other document designated as such by the Lender and the Company; “Financial Indebtedness” means any indebtedness for or in respect of: (a) moneys borrowed; (b) any amount raised by acceptance under any acceptance credit facility; (c) any amount raised pursuant to any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument; (d) the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with GAAP, be treated as a finance or capital lease; (e) receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis); (f) any amount raised under any other transaction (including any forward sale or purchase agreement) having the commercial effect of a borrowing; 3 (g) any derivative transaction entered into in connection with protection against or benefit from fluctuation in any rate or price (and, when calculating the value of any derivative transaction, only the marked to market value shall be taken into account); (h) any counter-indemnity obligation in respect of a guarantee, indemnity, bond, standby or documentary letter of credit or any other instrument issued by a bank or financial institution; and (i) the amount of any liability in respect of any guarantee or indemnity for any of the items referred to in paragraphs (a) to (g) above; “GAAP” means generally accepted accounting principles in the United Kingdom or other country of incorporation where applicable; “Goods” means all Stock, produce inventory and/or other goods and in respect of which an L/C has been issued; “Guarantor” means an Original Guarantor or an Additional Guarantor; “Holding Company” means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary; “Ineligible Country” means any country other than: (a) an Eligible Country; and (b) any country or territory in the Middle East; ‘‘L/C’’ means a letter of credit, guarantee or similar assurance which is from time to time either: (c) opened by the Lender for the account of a Borrower; or (d) with respect to which the Lender has agreed to indemnify the issuer or to guarantee the obligations of a Borrower to such issuer; “L/C Exposure” means: (a) in relation to an L/C opened for the purpose of purchasing Eligible Stock, the face amount of such L/C less the aggregate of: (i) the relevant Stock Percentage of the cost of such Eligible Stock covered by that Letter of credit; and (ii) all freight, taxes, duties and other amounts estimated by the Lender to be payable in order to ensure the delivery of such Eligible Stork to the premises designated by the relevant Borrower in the Netherlands or in such other country as the Lender may approve; and 4 (b) in relation to any other L/C, the face amount of such L/C and other commitments assumed by the Lender with respect thereto; “L/C Limit” means $1,000,000; “L/C Request” means a request in the form set out in part III of Schedule 4; “LIBOR” means: (a) the 30 day LIBOR US Dollar rate (or, as the case may be, the rate for the other Permitted Currency in which the relevant amount is deposited or outstanding) on the first day of each month in the Financial Times, London edition as conclusively determined by the Lender; or (b) if, for any reason, the Financial Times, London edition ceases or fails to quote such a rate) the 30 day LIBOR US Dollar Rate (or, as the case may be, the rate for the Permitted Currency in which the relevant amount is outstanding) from whichever source it may reasonably select; “Mandatory Cost” means the cost (calculated as a percentage rate per annum) of the London branch of Wachovia N.A. (or any other bank from which the Lender obtains funding for its provision of the Facilities) of complying with the requirements of the Bank of England and/or the Financial Services Authority and/or any other applicable regulatory authority in respect of monetary control, liquidity or otherwise in relation to amounts similar to those made available under this Agreement; “Margin” means two per cent, per annum; “Material Adverse Effect” means an effect which (in the reasonable opinion of the Lender) results in or is likely to result in a material adverse change in: (a) the business, performance, operations or assets of the Obligors (whether individually or collectively); or (b) the ability of any Obligor to perform any of its respective obligations under any of the Finance Documents; or (c) the legality, validity, priority or enforceability of any obligations or security created by or arising under any Finance Document. Where, however, the Company is required to represent, warrant or otherwise to confirm that no Event of Default involving a Material Adverse Effect has occurred, such representation, warranty or other confirmation shall be made or given by reference to the reasonable opinion of the company. 5 “Maturity Date” means, in relation to a Receivable, the Business Day which is, or immediately succeeds, the date which is the earlier of: (a) 60 days after the contractual due date for payment in respect of such Receivable; and (b) 90 days after the date of the invoice in respect of such Receivable; “Net Stock Value” means the net value of Stock as determined by the relevant Obligor in accordance with its customary practices and procedures (as disclosed to the Lender prior to the date of this Agreement and as may be varied from time to time with the Lender’s written consent); “Obligor” means a Borrower or a Guarantor; “Original Obligor” means an Original Borrower or an Original Guarantor; “Other Accounts” means the bank accounts of the Obligors specified as Other Accounts in the Debenture and/or such other bank accounts of the Obligors as the, Lender may permit; “Outstanding Purchase Price” means the aggregate amount from time to time of the Purchase Prices actually paid or (pursuant to clause 7.3.1) deemed to be paid by the Lender under this Agreement and which have not been repaid; “Permitted Currencies” means US dollars, euro and sterling; “Permitted Security Interest” means a charge over a deposit of £31,000 in the Company’s premium business account number [*], sort code [*] executed by the Company in favour of [*] and dated [*]; “Purchase Commission” means the purchase commission payable pursuant to clause 12.1. (Calculation of Interest and Purchase Commission); “Purchase Date” means, in relation to a Purchased Receivable, the date on which the Lender receives the applicable Purchase Request; “Purchase Price” means the purchase price to be paid by the Lender in respect of an Eligible Receivable upon receipt of a Cash Request, being: (a) in relation to any Eligible Receivable owing by a debtor in an Eligible Country, 80 per cent of such Eligible Receivable; * Confidential Treatment Requested 6 (b) in relation to Eligible Receivables owing by debtors in an Ineligible Country: (i) during the period May- August, in any year, 40 per cent; and (ii) during any other period, 20 per cent, provided that (x) (in each case) such percentage shall be increased to 70 per cent if the Company arranges for those Receivables to be covered by trade insurance acceptable to the Lender (y) the maximum amount to be advanced in reliance upon such Receivables shall not exceed $2,500,000 at any time and (z) the maximum amount of such Receivables owing by a single debtor shall not exceed $350,000; “Purchase Request” means a request in the form of part I of Schedule 4; “Purchased Receivable” means a Receivable purchased by the Lender under this Agreement; “Receivable” means any debt owing to a Borrower, together with all connected rights, claims, deposits and payments; “Receivables Finance Facility” means the receivables finance facility made available under this Agreement as described in clause 2.1 (a); “Reserves” means reserves from time to time established by the Lender to reflect: (a) the full amount of any liabilities or amounts which may (by virtue of any Security Interest, the provisions of the Enterprise Act 2002, any other statutory provision or otherwise) rank equally with or in priority to the Security Interests granted to the Lender under the Finance Documents or which may otherwise be unavailable to the Lender in the event of an insolvency; (b) the amounts believed by the Lender (acting reasonably) to represent three months of all third party warehouse lease costs and similar liabilities; and (c) the amounts believed by the Lender (acting reasonably) to be necessary to provide for possible inaccuracies in any report or in any information provided to the Lender in connection with this Agreement; “Review Period” means each twelve month period ending on the last day of each calendar month; “Revolving Credit Facility” means the revolving credit facility made available under this Agreement as described in clause 2.1(b); “Revolving Credit Limit” means $14,000,000; 7 “Revolving Loan” means a Loan made in respect of the Revolving Credit Facility; “Sales Days” means the number of units of stock for a specific product divided by the number of units of that product sold for the last three months multiplied by 90 days; “Security Documents” includes: (a) the Debenture; (b) the Dutch Pledge; and (c) any other document from time to time executed by any person by way of security for the obligations of any Obligor pursuant to this Agreement; “Security Interest” means a mortgage, charge, pledge, lien or other security interest securing any obligation of any person, or any arrangement having similar effect but excluding any such interests which: (a) are created in favour of the Lender, (b) which arise by operation of law in the ordinary course of trading; or (c) are Permitted Security Interest; “Stock” means each Borrower’s stock and inventory at any time; “Stock Percentage” means with respect to each specific line of Stock held on land or in transit by sea: (d) the first 180 Sales Days of Stock, 55 per cent; and (e) the Stock between 181 and 360 Sales Days, 25 per cent. “Subsidiary” means a subsidiary within the meaning of section 736 of the Companies Act 1985; “Tax” means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same); “Tax Credit” means a credit against, relief or remission for, or repayment of any Tax; “Tax Deduction” means a deduction or withholding for or on account of Tax from a payment under a Finance Document; 8 “Tax Payment” means an increased payment made by an Obligor to a Lender under clause 14.2 (Tax gross-up) or a payment under clause 14.3 (Tax indemnity); “Term” means each period determined under this Agreement for which the Lender is under a liability under or with respect to an L/C; “Total Availability” means at any relevant time: (i) the Total Receivables Availability; PLUS (ii) the Total Stock Availability; LESS (iii) the amount of the Reserves; “Total Receivables Availability” means at any time the applicable Purchase Price of the Eligible Receivables less maximum discounts, credits and allowances of any nature which may be taken by or granted to any account debtor or any other person in connection with the Eligible Receivables at such time; “Total Stock Availability” means at any time, the Stock Percentage of the Net Stock Value of Eligible Stock at such time; “Trading Cashflow” means, in relation to any Review Period, the profit before tax on ordinary activities of the Company for that period: (a) adding back any depreciation or amortisation; (b) adjusting for any unrealised currency gains or losses; (c) excluding any extraordinary or exceptional profits; (d) deducting any capital expenditure; and (e) making such other adjustments as the Lender may from time to time approve in writing; “Unpaid Sum” means any sum due and payable but unpaid by an Obligor under the Finance Documents; “Utilisation” means a utilisation of a Facility; “Utilisation Date” means the date specified by the Company in any Utilisation Request on which a Utilisation is, or is to be, made; “Utilisation Request” includes (as the context may require) a Purchase Request, a Cash Request, and an L/C Request; 9 “VAT” means value added tax as provided for in the Value Added Tax Act 1994 and any other tax of a similar nature. 1.2 Construction 1.2.1 Unless a contrary indication appears, any reference in this Agreement to; (a) “assets” includes present and future properties, revenues and rights of every description; (b) a “Finance Document” or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended or novated; (c) “indebtedness” includes any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent; (d) a “person” includes any person, firm, company, corporation, government, state or agency of a state or any association, trust or partnership (whether or not having separate legal personality) or two or more of the foregoing; (e) a “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation; (f) a provision of law is a reference to that provision as amended or re-enacted; and (g) a time of day is a reference to London time. Clause and Schedule headings are for ease of reference only. 1.2.2 A Default (other than an Event of Default) is continuing if it has not been remedied or waived and an Event of Default is continuing if it has not been waived. 1.2.3 If at any time there are no persons who are Guarantors, the term Obligors shall be construed, while such circumstance is continuing, as a reference solely to the Facility Companies and if at that time the Company is the only Facility Company the references in this Agreement to Facility Company shall, whilst such circumstance is continuing, be construed accordingly. 1.3 Third party rights A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the benefit of any term of this Agreement. 2. THE FACILITIES 2.1 The Facilities Subject to the terms of this Agreement, and during the Availability Period, the Lender makes available to the Borrowers: 2.1.1 a receivables finance facility (the “Receivables Finance Facility”) pursuant to which the Lender will from time to time during the Availability Period purchase Receivables from the Facility Companies; and 10 2.1.2 a revolving credit facility (the “Revolving Credit Facility”) pursuant to which the Lender will from time to time: (a) make Revolving Loans to the Borrowers, and (b) issue or procure the issue of L/Cs for the account of the Borrowers. 3. PURPOSE 3.1 Purpose Each Borrower shall apply all amounts borrowed or raised by it in respect of the Revolving Credit Facility, for its general corporate and working capital purposes and to the extent permitted pursuant to clause 6.4, for the repayment of intra-group indebtedness. 3.2 Monitoring The Lender is not bound to monitor or verify the application of any amount borrowed pursuant to this Agreement. A contravention of clause 3.1 shall not affect the obligations of the Obligors under the Finance Documents. 4. CONDITIONS OF UTILISATION 4.1 Initial conditions precedent No Borrower may deliver a Utilisation Request unless the Lender has received all of the documents and other evidence listed in Schedule 2 (Conditions precedent) in form and substance satisfactory to the Lender. 4.2 Further conditions precedent The Lender will only be obliged to comply with the terms of a Utilisation Request if on the date on which it is given and on the proposed Utilisation Date: 4.2.1 no Default is continuing or would result from the proposed Utilisation; and 4.2.2 the representations set out in clause 19 are true in all material respects with reference to the facts and circumstances then subsisting. 5. UTILISATION 5.1 Delivery of a Utilisation Request A Borrower may utilise a Facility by delivery to the Lender of a duly completed Utilisation Request with respect to the relevant Facility not later than 11.00 am on the proposed Utilisation Date. The relevant Borrower will deliver the form of Utilisation Request appropriate to the desired form of Utilisation. 5.2 Completion of a Utilisation Request 5.2.1 Each Utilisation Request is irrevocable and will not be regarded as having been duly completed unless: (a) the proposed Utilisation Date is a Business Day within the Availability Period applicable to the Facility in question; and (b) the Utilisation Request is expressed in a Permitted Currency and it otherwise complies with (and contains the information and enclosures required by) the applicable form of Utilisation Request. 5.2.2 Only one type of Utilisation may be requested in each Utilisation Request. 11 5.3 Lender’s obligations If the conditions set out in this Agreement have been met, the Lender shall comply with the terms of a duly completed Utilisation Request on the applicable Utilisation Date. 5.4 Reutilisation Subject to the terms of this Agreement, the Revolving Credit Facility is of a revolving nature and amounts recovered or repaid in respect of the Revolving Credit Facility may accordingly be redrawn, For this purpose, amounts received in respect of the Revolving Credit Facility will be applied in reduction of the relevant Obligor’s liabilities on the Business Day of actual receipt by the Lender 6. RESTRICTIONS APPLICABLE TO INDIVIDUAL FACILITIES 6.1 Specific Facility Limits 6.1.1 The aggregate amount of: (a) the Outstanding Purchase Price; (b) all Revolving Loans; and (c) all L/C Exposures shall not at any time exceed the lesser of: (i) the Facility Limit; and (ii) the Total Availability. 6.1.2 The aggregate amount of. (a) all Revolving Loans; and (b) all L/C Exposures shall not exceed the Revolving Credit Limit. 6.1.3 The aggregate of the Revolving Loans made in respect of Eligible Stock shall not exceed $14,000,000 at any time. 6.1.4 The aggregate of the Revolving Loans made in respect of Eligible Stock on water shall not exceed $7,500,000 at any time. 6.1.5 The aggregate amount of all L/C Exposures shall not at any time exceed the L/C Limit. 6.2 Revolving Loans No Revolving Loan may be drawn pursuant to a Cash Request unless either: 6.2.1 the Receivables Finance Facility is fully utilised; or 6.2.2 the Obligors have no Receivables with which to utilise the Receivables Finance Facility. 6.3 Adjustments The Lender may (after consultation with the Company) from time to time: 6.3.1 reduce the Purchase Price in proportion to an increase in the Dilution Rate; 6.3.2 reduce the Total Stock Availability (or any component of it) to reflect: (a) any reduction in the rate of turnover, quality, liquidation value or other matter affecting patterns of sale; or (b) any reduction in the Facility Limit pursuant to any provision of this Agreement; 12 6.3.3 allocate the Reserves among the Borrowers in such proportions as the Lender may deem appropriate; and 6.3.4 establish, in relation to each Borrower, such sub-limits with respect to the Utilisation of the Facilities as it may deem appropriate. 6.4 Intra-group Repayments So long as no Default has occurred, the proceeds of a Utilisation may be applied by an Obligor in the repayment of indebtedness owing to ViewSonic Corporation provided that: (a) during the period in which such Utilisation is outstanding, the aggregate amount of (i) all outstanding Utilisations; (ii) the amount of such repayment; and (iii) $3,000,000 are less than the Total Availability; or (b) the repayment is approved by the Lender. 6.5 Prohibition on Utilisations No Utilisation may be made if it would cause any of the limits referred to in this clause 6 to be exceeded. 6.6 Deemed Utilisations If the Lender makes any payment pursuant to or in respect of any L/C then the Obligor for whose account such payment was made shall be deemed on the date of such payment to have received the proceeds of a Utilisation. A Utilisation so deemed to be made shall be deemed to be a Revolving Loan and the other provisions of this Agreement (as to interest, repayment and otherwise) shall apply to such Utilisation accordingly. 7. RECEIVABLES FINANCE 7.1 Sale of Receivables Subject to the terms of this Agreement, each Borrower shall offer to sell its Receivables to the Lender by delivery to the Lender at intervals of five Business Days of duly completed Purchase Requests, Delivery of a Purchase Request will oblige the relevant Borrower to sell the Receivables stated in such Purchase Request upon and subject to the terms and conditions of this Agreement. 7.2 Determination of Purchase Price The Lender shall determine the Purchase Price for the Receivables specified in a Purchase Request and will (upon request) advise the relevant Borrower of such determination. The Purchase Price shall only be payable if a valid Cash Request has been delivered to the Lender. When made under the terms of this Agreement, payment of the Purchase Price shall (without further act or document) suffice to constitute the assignment of the relevant Receivable in favour of the Lender. 7.3 Order of Application 7.3.1 Any amounts paid by the Lender pursuant to a Cash Request shall be deemed to be applied (firstly) in the payment of any outstanding and unpaid Purchase Price and (secondly) in the drawing of a Revolving Loan. 7.3.2 The Lender’s obligation to pay the Purchase Price of any Receivable (or any unpaid portion of it) shall terminate on the earlier of: (a) the date on which the relevant account debtor pays such receivable; and 13 (b) the Maturity Date. 7.3.3 To the extent to which any moneys paid by the Lender to a Borrower (the “Debtor Company”) represent payment of Purchase Price in relation to the Purchased Receivables of another Obligor (the “Creditor Company”) then (without double counting with the provisions of clause 6.5) the Creditor Company shall be deemed to have made an on-demand loan (an “Intercompany Loan”) to the Debtor Company in an amount equal to the amount of such payment by the Lender. 8. PROVISIONS CONCERNING L/CS 8.1 No Utilisation request with respect to an L/C may be delivered unless the form and content of the requested L/C has previously been approved by the Lender. 8.2 A Borrower which requests the Lender to issue an L/C: 8.2.1 authorises the Lender to pay any claim made or purported to be made under such L/C and which appears on the face of it to be in order (a “claim”); 8.2.2 undertakes immediately and unconditionally on demand: (a) to pay to the Leader an amount equal to the amount of any claim; and (b) to indemnify the Lender against any cost, loss or liability incurred by the Lender in connection with the L/C or its performance or any other matter relating thereto, other than such cost, loss or liability arising out of the negligence or wilful misconduct of the Lender; 8.2.3 acknowledges that: (a) the Lender is not obliged to carry out any investigation or to seek any confirmation from such Borrower or any other person before paying a claim, (b) the Lender will deal in Documents only and will thus not be concerned with any matters concerning any Goods or other issues relating to the underlying transaction; and (c) such Borrower will be bound by any action taken by the Lender in good faith in relation to any L/C (including any decision to amend or extend the L/C and any interpretation of the terms or effect of any L/C); and 8.2.4 acknowledges that its obligations of payment and reimbursement under this clause 8.2 will not be in any way prejudiced, affected or diminished by: (a) any unenforceability of, or amendment to or extension of, any L/C or any other document or security; (b) the validity, legitimacy or accuracy of any document or claim submitted pursuant to any L/C or any action taken or omitted with respect thereto; or (c) any other matter or thing which (but for this provision) might otherwise have the effecting of diminishing or extinguishing the Borrower’s liability pursuant to this clause 8.2. 8.3 Pledge All Goods and Documents are hereby and shall upon despatch from the supplier of any Goods be deemed to be pledged by the relevant Borrower to the Lender and the Goods and the proceeds of all insurances in relation to them and all sales of them and all of the relevant Borrower’s rights as unpaid seller of them shall be a continuing security for the payment and discharge in full of all of the obligations of the relevant Borrower under the Finance Documents. 14 8.4 Perfection of Pledge The Lender shall be entitled at its option to obtain possession of the Goods in order to perfect the pledge made by clause 8.3. The relevant Borrower assigns to the Lender its right, title and interest in and to the Documents and all claims and rights arising from them and the relevant Borrower irrevocably and unconditionally authorises the Lender, following the occurrence of an Event of Default, to sign all documents and do all such other things as may be necessary to obtain possession of and to realise the Goods, and to apply the proceeds in reduction of amounts owing under this Agreement. 8.5 Trust Receipts The Goods and the Documents shall only be released to the relevant Borrower by the Lender against receipt by the Lender of a duly executed trust receipt from the relevant Borrower in the Lender’s standard form at the time or (failing such execution) shall be deemed to be subject to a trust receipt in such form. 8.6 Separation Each Borrower undertakes to keep the Documents and the Goods separate and distinct from any other bills of lading, documents of title or goods. 9. CURE RIGHTS 9.1 Cure Defaults The Lender (acting in the name of and on behalf of, the relevant Obligor) may, at its option and upon notice to the Company to that effect: 9.1.1 cure any default by any Obligor under any agreement with respect to a Receivable or under any other agreement with a third party as the Lender may consider necessary to facilitate the collection of Receivables or to facilitate access to any Security under any of the Security Documents; 9.1.2 make any payment, reach any settlement or compromise, issue, make or pay any bond; appeal any judgment against an Obligor or take any other action it may deem necessary to prevent any repossession, seizure, execution, attachment or similar process against any plant, machinery or other asset of an Obligor which might impair the Security (or the enforcement of any Security) granted to the Lender under any Security Document; and 9.1.3 discharge any Taxes and any other Security Interests from time to time subsisting with respect to any asset of any Obligor. 10. REPAYMENT 10.1 Receivables Finance 10.1.1 If the Lender determines that it has not | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
