EXHIBIT 10.33
ADVANTAGE FACILITY
DATED: 12 November 2002
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BETWEEN:- (I) Venture Finance PLC (a company registered in
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number 2281768) ("Venture") and
(II) Xcel Power Systems Limited (a company registered
in England and Wales with the number) 00575679
("the Client").
WHEREAS:- (A) Venture and the Client are parties to an
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the ("the Agreement"), and
(B) The Client has requested and Venture has agreed
to provide additional financing facilities to
the Client subject and supplemental to the
Agreement and upon the terms hereof.
NOW IT IS HEREBY AGREED AS FOLLOWS:-
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(1) Venture may upon request from the Client make an Additional Payment to
the Client subject to the terms hereof.
(2) The Client shall, in consideration of Venture's agreement to the terms
hereof, and/or the making of any Additional Payment to the Client,
grant in favour of Venture a Debenture in respect of and over all the
assets property and undertaking of the Client now or hereafter ("the
Debenture") the Debenture to have priority over all other debentures
charges or other security granted in favour of any person by the Client
in existence now or hereafter or subject to such priority over such of
the assets property and undertaking of the Client as Venture may in its
absolute discretion agree.
(3) In addition to and notwithstanding the other terms hereof Venture shall
not be obliged to make any payment, Prepayment or Additional Payment to
the Client (other than in its absolute discretion) if following
Venture's own assessment of the Client's Eligible Collateral in
accordance with the Eligible Collateral Formula, and after a notional
or actual combination of all accounts of the Client with Venture ("the
Account Balance") the making of such a payment, prepayment or
Additional Payment to the Client would cause the Account Balance to
exceed the Facility Limit.
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(4) Venture shall (in its absolute discretion and without affecting the
intent effect or extent of this Deed) maintain such accounts or such
additional accounts as it deems necessary to record the transactions
between Venture and the Client pursuant to or under the terms of this
Deed and Venture shall be entitled from time to time and at any time to
combine all and any such accounts maintained in the name of the Client
in the books of Venture such combination being deemed to have taken
place on the happening of any event giving rise to the right of Venture
to terminate this Deed and/or the Agreement.
(5) All the terms of the Agreement which relate to payments to the Client
(including Prepayments) shall apply to any Additional Payment.
(6) The amount of any Additional Payment shall be such as may be agreed by
Venture with the Client.
(7) The Client shall throughout the duration of this Deed comply at all
times with all provisions contained within the Agreement and the
Debenture, and shall provide to Venture all such information and
physical access to premises owned or under the control of the Client as
Venture may reasonably require and the Client hereby grants an
irrevocable licence to Venture for Venture (and any of its employees
servants or agents) to enter upon any premises owned or under the
control or authority of the Client at any time during normal business
hours for the purposes of this Deed, for confirming and ensuring the
compliance by the Client with the terms hereof, and for the purposes of
Venture's assessment and monitoring from time to time as it may require
of the location state nature and value of any Eligible Collateral at
that time.
(8) Notwithstanding and in addition to the terms of this Deed the Client
shall remain bound by all the warranties undertakings covenants and
obligations contained within the Agreement and the Debenture. In
addition the Client shall comply with all the Collateral Reporting and
Monitoring Requirements of Venture as detailed in paragraph 5 of the
Schedule or as Venture may require and may notify to the Client from
time to time.
(9) Subject to the terms of this Deed Venture shall not make payment of
Additional Payments aggregating from time to time to more than the sum
stated in paragraph 1 of the Schedule hereto although this amount may
be increased or reduced from time to time by Venture in its absolute
discretion.
(10) It is agreed that the contents of any report (whether written or oral)
prepared by Venture for the purposes of Venture considering whether or
not to make payment of any Additional Payment to the Client shall
remain confidential and shall not be available to the Client for any
reason (save for any requirement of law) in whole or in part and
whether in original or copy form.
(11) In addition to all fees charges costs and expenses payable by the
Client to Venture pursuant to the Agreement the Client shall pay to
Venture on the date of this Deed and on each anniversary thereof the
Annual Fee referred to in the Schedule. All and any amounts payable by
the Client to Venture herein may be debited by Venture to the Current
Account of the Client in the books of Venture from time to time.
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(12) Further the Client shall pay to Venture an Administration Charge in the
amount specified in paragraph 3 of the Schedule during the currency of
this Deed.
(13) Any Additional Payment made pursuant to the terms of this Deed shall be
subject to a Discount Charge at the rate specified in paragraph 4 of
the Schedule which Discount Charge shall accrue daily on the balance of
all Additional Payments then having been made to the Client and which
shall be debited to the Current Account of the Client with Venture
monthly.
(14) The agreement recorded in this Deed may be terminated by Venture upon
or following any breach hereof by the Client and/or upon or following
Venture having the right to terminate the Agreement, and shall in any
event terminate without further formality upon the termination of the
Agreement for whatsoever reason.
(15) As a consequence of the entering into of this Deed and to give effect
to the intent hereof Venture shall be entitled from time to time to
increase or reduce the Prepayment Percentage to such percentage (not
exceeding 100%) and for such time as Venture may in its absolute
discretion determine. For the avoidance of doubt no payment or
Prepayment or Additional Payment shall be made to the Client at any
time (other than in Venture's absolute discretion) if the making of any
such payment or Prepayment or Additional Payment would cause the
Account Balance to exceed the Facility Limit.
(16) In this Deed where the context so permits, the singular shall include
the plural and vice versa and reference to any one gender shall be
deemed to include reference to the other two, and where any expression
used herein is defined in the Agreement such expression shall have the
same meaning herein as therein where the context so permits.
(17) This Deed shall be read and construed and shall be subject to English
Law.
(18) In this Deed:-
"Additional Payment" shall mean a payment by Venture to the Client on
account of the Purchase Price of Debts the subject of the Agreement in
excess of any payment or Prepayment which would normally be made by
Venture to the Client but for the entering into of this Deed, the
making of such payment being in the absolute discretion of Venture at
all times, and
"Base Rate" shall mean the Base Rate set by Venture's Bankers subject
to a minimum rate of 4%, and
"Collateral Reporting and Monitoring Requirements" shall mean the
reporting and monitoring requirements of Venture in relation to the
Eligible Collateral from time to time including monitoring by way of
physical access to premises and such Eligible Collateral by Venture or
any of its employees servants or agents and shall for the time being be
those detailed in the Schedule, and
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"Eligible Collateral" shall mean such of the Client's undertaking
property and assets as Venture may from time to time notify to the
Client as forming part of the Client's Eligible Collateral and shall
until further notice be assessed in accordance with the Eligible
Collateral Formula appears in the Schedule, and
"Eligible Collateral Formula" shall mean the formula referred to in
paragraph 6 of the Schedule until such shall be varied (in Venture's
absolute discretion) by notice in writing to the Client.
"Facility Limit" shall mean a sum equivalent to the credit balance from
time to time on the Debts Purchased Account of the Client in the books
of Venture, or such sum as Venture may notify to the Client from time
to time in Venture's absolute discretion, and
"the Schedule" shall mean the schedule hereto, and
"Venture's Bankers" HSBC Bank Plc or such other bank as Venture may
from time to time, at its sole discretion, appoint as its bankers.
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SCHEDULE
1. Additional Payment Limit:- (pound)225,000 (Pounds Sterling Two Hundred
and Twenty Five Thousand) (clause 9)
2. Annual Fee: N/A (clause 11)
3. Administration Charge: (pound)1,000 (Pounds Sterling One Thousand)
jointly with the Term Loan facility (per month or part thereof) (clause
12)
4. Discount Charge: 2.0% above the Base Rate of Venture's Bankers for the
time being in force (clause 13)
5. Collateral Reporting and Monitoring Requirements:- (clause 8)
(i) Inventory and Preferential Creditors (as defined in Schedule 6
to the Insolvency Act 1986) - Monthly within 5 working days of
each month end.
(ii) Fixed Assets - Annual valuation (on date of anniversary of
this Deed) by valuer to be agreed by Venture.
(iii) Eligible Collateral Audits - per quarter annum following
commencement of this Deed.
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6. Eligible Collateral Formula:- (clause 3)
The Eligible Collateral Formula for the AdVantage Facility in respect
of stock will be Raw Materials x 25% plus Work in Progress x 25% less
preferential creditors subject to an AdVantage Limit of (pound)225,000
(Pounds Sterling Two Hundred and Twenty Five Thousand).
Venture will require a detailed stock listing on a monthly basis. This
report will be required within five working days of each period end and
is to include details of all categories of stock and preferential
creditor balances.
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IN WITNESS WHEREOF the parties hereto have executed this deed in the manner
hereafter appearing and have delivered it on the date first above written.
EXECUTED AND DELIVERED AS A DEED by
PAUL BEVERIDGE /S/ PAUL BEVERIDGE
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as Attorney for VENTURE FINANCE PLC
in the presence of:-
PAUL ARPS /S/ PAUL ARPS
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Address of Witness SUSSEX HOUSE, PERRYMOUNT ROAD, HAYWARDS HEATH
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Executed and delivered as a deed
by
Acting by:
C.T. OLIVA Director /S/ CARMINE T. OLIVA
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GRAHAM JEFFERIES Director/Secretary /S/ GRAHAM JEFFERIES
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