EXHIBIT 10.4
THIS IS AN IMPORTANT DOCUMENT WHICH SETS OUT THE TERMS AND CONDITIONS OF YOUR
COMMITTED OVERDRAFT FACILITY. WE RECOMMEND THAT YOU TAKE INDEPENDENT LEGAL
ADVICE IF YOU HAVE ANY DOUBTS REGARDING THE TERMS AND CONDITIONS OF THE
FACILITY.
Confirmation of Committed Business Overdraft Facility
[LOGO OF THE ROYAL BANK OF SCOTLAND]
Thames Valley Corporate
Abbey Gardens
4 Abbey Street
Reading
RG1 3BA
Private & Confidential
Bottomline Technologies Europe Limited Telephone: 0118 952 2117
Company Number 1911956
115 Chatham Street
Reading
Berks
RG1 7JX
Facility Account: 67486932 at Market Place, Reading (sorting code
60-17-21)
Overdraft Limit: (pound) 2,000,000
Agreed Interest Rate: 2% per annum over the Bank's Base Rate
Bank's Base Rate: currently 4% per annum (but may vary from time to
time)
Unarranged Overdraft Rate: 4% per annum over the Bank's Base Rate (but may
vary from time to time subject to one month's
notice)
Arrangement Fee: (pound) 10,000
Facility Start Date: 31 January 2003
Expiry Date: 31 December 2003
Principal Terms
1. We, The Royal Bank of Scotland plc acting as agent for National Westminster
Bank plc, offer you a committed overdraft facility (the Facility) subject
to the terms of this Confirmation and the Committed Overdraft General Terms
(COGT) attached.
2. Provided that none of the Events of Default detailed in Clause 3 occur, the
Facility will, subject to the terms of this Confirmation and the COGT
attached, be available from the Facility Start Date until the Expiry Date.
3. If any of the following events (Events of Default) occurs, we may, by
giving written notice, demand immediate repayment of the outstanding
borrowing on the Facility Account, require that the amounts from time to
time owing under the Facility become repayable upon demand or cancel the
Facility and exercise our rights under any security:-
(a) the Overdraft Limit is exceeded;
(b) the commencement of any winding-up, bankruptcy or administration
proceedings against you or the appointment of a receiver or
administrative receiver in respect of any of your property or you make
arrangements with creditors;
(c) if you are a sole trader, you die;
(d) your business ceases to trade or, if you are a partnership, the
partnership is dissolved;
(e) any procedure is used against you to attach or take possession of any
property for payment of a debt;
(f) you are in breach of any obligation (financial or otherwise) to us or
any of the terms of this Confirmation, or the COGT or any other
agreement with us are breached;
(g) you fail to provide any information regarding your financial condition
or business operations detailed in Clause 5; or
(h) any information given to us is inaccurate or there is a material
non-disclosure by you to us.
4. Interest will be charged:-
(a) up to the Overdraft Limit, at the Agreed Interest Rate; and
(b) in excess of the Overdraft Limit (or after we have demanded immediate
repayment of the outstanding borrowing on the Facility Account in
terms of Clause 3 of this Confirmation or Clause C of the COGT), at
the Unarranged Borrowing Rate.
The Royal Bank of Scotland plc is registered in Scotland No 90312
Registered Office: 36 St Andrew Square, Edinburgh, EH2 2YB
5. To enable us to monitor the Facility you will provide:-
(a) as soon as they become available but in any event within 180 days
after the end of your financial year and in a format acceptable to us,
copies of your business accounts for that year (Audited Accounts for
the financial year ended 30th June 2002 to be provided by 31st May
2003);
(b) as soon as they become available but in any event no later than 30
days after the end of the accounting period to which they relate and
in a format acceptable to us, monthly management accounts
incorporating balance sheet and profit and loss accounts, and aged
list of debtors and creditors; and
(c) promptly, such further information regarding your financial condition
and business operations as we may reasonably request (including
audited business/management accounts where not already supplied).
6. The Arrangement Fee will be debited by us to the Facility Account on the
date of this Confirmation or shortly thereafter.
7. If applicable, the Facility will be secured by the security held and/or
required by us as set out in an attached Schedule. It is a term of the
Facility that it is at all times effectively secured by such security and
that the terms of such security are not breached. No additional security
may be created over the assets charged under such security without our
prior written consent. The continued availability of the Facility will be
subject to such security continuing in full force and effect. The
additional security detailed in section (2) of the attached Schedule is to
be provided to the Bank's satisfaction prior to 10th March 2003.
8. Notwithstanding the Facility Start Date, we shall not be obliged to provide
the Facility until we have received and are satisfied with such written
evidence/documents as we may require confirming your capacity to:-
(a) enter into this Confirmation and COGT;
(b) utilise the Facility
(c) give any security specified
and confirming that the person or persons who will accept the terms of this
Confirmation and COGT and execute/seal any security on your behalf is/are
duly authorised by you.
9. Notwithstanding the Facility Start Date, we are not obliged to provide the
Facility until you have accepted the Facility on the terms set out in this
Confirmation and COGT by returning the duplicate of this Confirmation to us
duly signed.
For The Royal Bank of Scotland plc acting as agent for National Westminster Bank
Plc
/s/ Colin Robertson
- -------------------
Colin Robertson
Senior Corporate Manager
Date 31 January 2003
Having decided that the Facility is appropriate and in our interests, it is
hereby accepted on the terms set out in this Confirmation and the COGT overleaf.
Signature /s/ Stephen J. Cutler Date February 4, 2003
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Signature /s/ [ILLEGIBLE] Date February 4, 2003
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COMMITTED OVERDRAFT GENERAL TERMS (COGT)
These COGT explain your and our rights and responsibilities in respect of the
Facility and should be read in conjunction with the Confirmation attached
specific to the Facility. Definitions and meanings used in the Confirmation
attached also apply in these COGT (and vice versa) unless the context requires
otherwise.
A. OVERDRAFT LIMIT
The Facility enables you to overdraw the Facility Account up to the Overdraft
Limit. The Overdraft Limit should not be exceeded without our prior consent and
we may refuse to allow any payment or withdrawal which could have that effect.
If we allow a payment or withdrawal or a series of payments or withdrawals which
results in the Overdraft Limit being exceeded, it will not mean that the
Overdraft Limit has changed or that we are bound to allow any other payment or
withdrawal which could result in the Overdraft Limit being exceeded at other
times. We may debit the Facility Account under Clauses D and E of these COGT
even if it results in the Overdraft Limit being exceeded.
B. UNCLEARED CREDITS
We may disregard any uncleared credits when calculating the amount outstanding
under the Facility (and any interest payable). If however we pay a cheque or
cheques (or allow any other payment or withdrawal or a series of payments or
withdrawals) against uncleared credits at any time we are not bound to do so at
other times.
C. RENEWAL OF FACILITY
At any time during the 30 days prior to the Expiry Date you may request (or we
may offer) to renew the Facility for a further period of up to 365 days, subject
to us undertaking a full credit assessment and further documentation. If the
Facility is not renewed before the Expiry Date any borrowing outstanding under
the Facility will become repayable on demand and the Facility may be
unconditionally cancelled by us at any time.
D. INTEREST
Interest will be calculated both before and after demand, court decree or
judgment on a daily basis on the cleared debit balance and will be debited by us
to the Facility Account quarterly on the final business day of March, June,
September and December (or on such other dates as the Bank may advise from time
to time).
E. COSTS/CHARGES
You must pay any costs incurred by us in connection with the Facility whether as
a result of you breaking the terms of the Facility or not. These costs will
include (but not be limited to) costs of taking and discharging any security;
taking steps, including court action, to obtain payment; enforcing and/or
preserving the Bank's rights under any security held for the Facility; tracing
you if you change address without notice and communicating with you if you break
the terms of the Facility or an Event of Default occurs. We may debit such costs
to the Facility Account.
F. CHANGE IN LAW, REGULATION OR DIRECTIVE
If as a result of a change of any applicable law, regulation or directive, the
cost to us of providing the Facility (including the cost of any undrawn portion
of the Facility) increases we may, upon one month's written notice, convert the
Facility into an overdraft repayable on demand and/or otherwise vary the terms
and conditions of the Facility, including effecting an increase in the interest
charged to reflect the increased cost of providing the Facility.
G. SET OFF
We shall be entitled to set-off against any of your liabilities under this
agreement (whether present, future, actual or contingent) any of your credit
balances (whether subject to notice or not) on any of your accounts with us in
your name. We do not have to give you any prior notice to do this.
H. JOINT AND SEVERAL LIABILITY
If you are more than one person then the word "you" shall refer to such persons
both together and separately and the obligations of those persons under the
Facility shall be joint and several, that is to say, each of you can be held
liable both jointly and individually for all of the obligations under the
facility.
I. MISCELLANEOUS
These terms will not be affected by the Facility Account being allocated another
account number by us or being transferred to another of our branches, offices or
departments. In the event of a conflict between (i) the terms of the
Confirmation attached and these COGT and (ii) any other terms which apply to the
Facility Account then the terms of the Confirmation attached and these COGT will
prevail.
[LOGO OF THE ROYAL BANK OF SCOTLAND]
This is the Schedule referred to in the Bank's Confirmation of Committed
Business Overdraft Facility to the Customer dated: 31 January 2003
Customer: Bottomline Technologies Europe Limited
The Facility made available by the Bank to the Customer in terms of the
Confirmation of Committed Business Overdraft Facility shall at all times be
secured by the following :-
(1) the existing available security held by the Bank as follows :-
(a) Debenture by you dated 17/12/2001
(b) First Legal Charge/Mortgage by you over Freehold Land and Buildings
situated at 115 Chatham Street, Reading, Berks, dated 17/12/2001,
also incorporating subsequent Legal Charges over property known
as 97-113 odd, and 117 Chatham Street, Reading dated 05/06/2002.
(c) Letter of Comfort, dated 12/09/2002, given by Bottomline Technologies
Inc.
(2) new security required by the Bank for the facility as follows :-
(a) Unlimited Inter Company Composite Guarantee granted by you, Bottomline
Technologies Limited and Bottomline Transactional Services
Limited, supported by existing Debentures from you, and new
Debentures from Bottomline Technologies Ltd and Bottomline
Transactional Services Limited.
(3) any further security which the Bank may now or in future hold.