Loan Agreement Conditions
Last Updated: 5 June 2023
THIS AGREEMENTis made the [●] day of [●] 2023 between
- COTERIE LENDING COMPANY LIMITED (incorporated and registered in England and Wales under company registration number 14333224), the registered office of which is at Field House, 87 Ewen, Cirencester, England, GL7 6BT (the "Lender"); and
- domiciled and resident in [●] and a citizen in [●] with passport number [●]] (the "Borrower").
IT IS AGREED as follows:
1. Key Terms
| Loan Amount | [●] pounds (£[●]) |
| Facility Fee | [●]% of the Loan Amount being £[●] |
| Closing Fee | [●]% of the Loan Amount being £[●] |
| Purpose | General cashflow purposes of his business |
| Interest Rate | [●]% per annum |
| Final Repayment Date | [●] |
| Interest Payment Date | [25 March], [24 June], [29 September] and [25 December] in each year and the Final Repayment Date |
| Original CCV | [●]% |
| High Net Worth Exemption | Yes/No |
| Business Purpose Exemption | Yes/No |
| Designated Warehouse | |
| Designated Merchant | Lay & Wheeler Limited |
2. Definitions and interpretation
In this Agreement, the following words and expressions shall have the following meanings unless the context requires otherwise:
"Application" means any application form submitted by the Borrower to the Lender together with supporting materials and documents;
"Authorisation" means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration;
"Business Day" means a day (other than a Saturday or Sunday) on which banks are open for general business in London;
"Change of Control" means the shareholders of the Borrower as at the date of this Agreement cease to:
- have the power (whether by way of ownership of shares, proxy, contract, agency or otherwise):
- to cast, or control the casting of, more than 50% of the maximum number of votes that might be cast at a general meeting of the Borrower; or
- to appoint or remove all, or the majority of the directors or other equivalent officers of the Borrower ; or
- to give directions with respect to the operating and financial policies of the Borrower with which the directors or other equivalent officers of the Borrower are obliged to comply; or
- hold beneficially more than 50% of the issued share capital of the Borrower (excluding any part of that issued share capital that carries no right to participate beyond a specified amount in a distribution of either profits or capital);
"Chattel Pledge" means the chattel pledge in agreed form entered into by the Borrower in favour of the Lender documenting the terms of the pledge of the Collateral Pool following delivery of the wines specified in the Collateral Schedule to the Designated Warehouse;
"Closing Fee" means the fee specified as such in clause 1 (Key Terms);
"Collateral Pool" means the subject to any release pursuant to the terms of this Agreement the wine specified in Collateral Schedule;
"Collateral Schedule" means the schedule agreed between the Parties listing the wines which will be pledged as security for the Facility attached at Schedule 4 ( Collateral Schedule);
"Default" means an Event of Default or any event or circumstance specified in clause 18 ( 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;
"Designated Merchant" means the merchant specified as such in clause 1 (Key Terms) or such other wine merchant agreed to by the Lender from time to time in writing;
"Designated Warehouse" means the warehouse specified as such in clause 1 (Key Terms);
"Event of Default" means any event or circumstance specified as such in clause 18 (Events of Default);
"Facility" means the term loan facility made available under this Agreement as described in clause 3 (The Facility);
"Facility Fee" means the fee specified as such in clause 1 (Key Terms);
"Final Repayment Date" means the date specified as such in Clause 1 (Key Terms);
"Finance Document" means this Agreement, Chattel Pledge and any other document designated as such by the Lender and the Borrower;
"Finance Security" means the Security created or expressed to be created in favour of the Lender under the Security Documents;
"Interest Payment Date" means the dates specified as such in clause 1 (Key Terms);
"Interest Period" means, in relation to the Loan, each period determined in accordance with clause 10 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with clause 9.3 (Default interest);
"Interest Rate" means the per cent per annum specified as such in clause 1 (Key Terms);
"Limitation Acts" means the Limitation Act 1980 and the Foreign Limitation Periods Act 1984;
"Loan" means the loan made or to be made under the Facility;
"Loan Amount" means the amount specified as such in Clause 1 (Key Terms);
"Collateral Cover Value" means, at any time, the aggregate market value of the Collateral Pool (as determined by the Lender in its absolute discretion) as a percentage of the aggregate of the Loan then outstanding (as determined by the Lender in its absolute discretion);
"Material Adverse Effect" means a material adverse effect on:
- the business, assets, or financial condition of the Borrower; or
- the ability of the Borrower to perform his/her payment obligations under the Finance Documents; or
- the validity or enforceability of the Finance Documents or the rights or remedies of the Lender under any of the Finance Documents;
- any unsoundness of mind; or
- any order being made or receiver appointed under the Mental Health Act 1983, the Mental Health Act 2007 or any analogous step or procedure being taken in any other jurisdiction; or
- any step or procedure being taken in any jurisdiction which would restrict the capacity of the Borrower to enter into any Finance Documents or would require the approval of a third party or an authority;
"Original CCV" means the percentage specified as such in Clause 1 (Key Terms);
"Party" means a party to this Agreement;
"Purpose" means the purpose specified in Clause 1 (Key Terms);
"Release" means any release of Specified Wines from the Collateral Pool in accordance with clause 19 (Release);
"Release Administration Fee" means in respect of any proposed release pursuant to clause 19 (Release) a non-refundable fee of £100 payable at the time of the request.
"Release Conditions" means in respect of any proposed release of Specified Wines in accordance with clause 19 (Release):
- the Borrower prepays the Loan in an amount equal to proceeds of such disposal of the Specified Wines;
- no Default or Event of Default is outstanding or would occur as a result of such release;
- the Collateral Cover Value in respect of the remaining Collateral Pool following such Release is not less than the Original CCV;
- the Borrower has paid to the lender the Release Administration Fee in relation to such Release; and
- any other condition specified by the Lender (acting reasonably) in respect of such Release.
- his/her Original Jurisdiction;
- any jurisdiction where any asset subject to or intended to be subject to the Finance Security to be created by him/her situated;
- any jurisdiction where he/she conducts his/he business; and
- the jurisdiction whose laws govern the perfection of any of the Security Documents entered into by him/her;
"Security Documents" means Chattel Pledge documenting the terms of the Security over the Collateral Pool in respect of the obligations of the Borrower under any of the Finance Documents;
"Specified Wines" has the meaning given to that term in Clause 19 (Release);
"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);
"Unpaid Sum" means any sum due and payable but unpaid by the Borrower under the Finance Documents;
"Utilisation" means the utilisation of the Facility;
"Utilisation Date" means the date on which the Loan is made by the Lender under this Agreement;
"Utilisation Request" means a notice substantially in the form set out in Schedule 2 (Utilisation Request).
2.2.1.1 the "Lender", the "Borrower" or any "Party" shall be construed so as to include their successors in title, permitted assigns and permitted transferees;
2.2.1.2 "assets" includes present and future properties, revenues and rights of every description;
2.2.1.3 a "Finance Document" or any other agreement or instrument is a reference to that Finance Document or other agreement or instrument as amended, novated, supplemented, extended or restated;
2.2.1.4 "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;
2.2.1.5 a "person" includes any individual, firm, company, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality);
2.2.1.6 a "regulation" includes any regulation, rule, official directive, request or guideline (whether or not having the force of law, but if not having the force of law, compliance with which is customary) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self-regulatory or other authority or organisation;
2.2.1.7 a provision of law is a reference to that provision as amended or re-enacted; and
2.2.1.8 a time of day is a reference to London time.
2.2.2 Section, clause and schedule headings are for ease of reference only.
2.2.3 Unless a contrary indication appears, a term used in any other Finance Document or in any notice given under or in connection with any Finance Document has the same meaning in that Finance Document or notice as in this Agreement.
2.2.4 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 or remedied to the satisfaction of the Lender.
A person who is not a Party 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.
3. The Facility
3.1 The Facility
Subject to the terms of this Agreement, the Lender makes available to the Borrower on the date of this Agreement a sterling term loan facility in an aggregate amount equal to the Loan Amount.
4. Purpose
4.1 Purpose
The Borrower shall apply all amounts borrowed by him/her under the Facility for the Purpose.
4.2 Monitoring
The Lender is not bound to monitor or verify the application of any amount borrowed pursuant to this Agreement.
5. Conditions of Utilisation
5.1 Conditions precedent
The Borrower may not deliver a Utilisation Request unless the Lender has received all of the documents and other evidence listed in Schedule 1 (Conditions precedent) in form and substance satisfactory to the Lender (save that the Lender may at any time waive, in writing, such receipt or grant an additional time period for such receipt). The Lender shall notify the Borrower in writing promptly upon being so satisfied.
5.2 Maximum number of Loans
Only one Loan may be outstanding under this Agreement at any time.
6. Utilisation
6.1 Delivery of a Utilisation Request
The Borrower may utilise the Facility in full by delivery to the Lender of a duly completed Utilisation Request not later than 10 Business Days (or such later period as the Lender may agree) after the date of this Agreement.
7. Repayment
7.1 Repayment of the Loan
The Borrower shall repay the Loan in full on the Final Repayment Date.
8. Prepayment, cancellation and extension
If it becomes unlawful in any applicable jurisdiction for the Lender to perform any of its obligations as contemplated by this Agreement or to fund or maintain its participation in the Loan:
8.1.1 the Lender shall promptly notify the Borrower upon becoming aware of that event;
8.1.2 upon the Lender notifying the Borrower, the Loan Amount of the Lender will be immediately cancelled; and
8.1.3 the Borrower shall repay the Loan on the last day of the Interest Period occurring after the Lender has notified the Borrower or, if earlier, the date specified by the Lender in the notice delivered to the Borrower (being no earlier than the last day of any applicable grace period permitted by law).
8.2 Voluntary prepayment of the Loan
The Borrower may, if he/she gives the Lender not less than five Business Days' (or such shorter period as the Lender may agree) prior notice, prepay the whole (but not part only) of the Loan.
8.3.1 Any notice of cancellation or prepayment given by the Borrower under this clause 7 shall be irrevocable and, unless a contrary indication appears in this Agreement, shall specify the date or dates upon which the relevant cancellation or prepayment is to be made and the amount of that cancellation or prepayment.
8.3.2 Any prepayment or repayment under this Agreement shall be made together with accrued interest on the amount prepaid and otherwise without premium or penalty.
8.3.3 Any part of the Facility which is prepaid or repaid may not be reborrowed.
8.3.4 The Borrower shall not repay or prepay all or any part of the Loan or cancel all or any part of the Facility except at the times and in the manner expressly provided for in this Agreement.
8.3.5 No amount of the Loan Amount cancelled under this Agreement may be subsequently reinstated.
9. Interest
9.1 Calculation of interest
The rate of interest on the Loan for each Interest Period is the Interest Rate compounded at the end of each Interest Period.
9.2 Payment of interest
The Borrower shall pay accrued interest on the Loan on the last day of each Interest Period and on the Final Repayment Date (or otherwise in accordance with the terms of this Agreement) by way of direct debit or such other method approved by the Lender.
9.3.1 If the Borrower fails to pay any amount payable by him/her under a Finance Document on its due date, interest shall accrue on the overdue amount from the due date up to the date of actual payment (both before and after judgment) at a rate which is three per cent higher than the rate which would have been payable if the overdue amount had, during the period of non-payment, constituted a Loan in the currency of the overdue amount for successive Interest Periods, each of a duration selected by the Lender (acting reasonably). Any interest accruing under this clause 9.3 shall be immediately payable by the Borrower on demand by the Lender.
9.3.2 Default interest (if unpaid) arising on an overdue amount will be compounded with the overdue amount at the end of each Interest Period applicable to that overdue amount but will remain immediately due and payable.
10. Interest Periods
10.1 Interest Periods
Each Interest Period for a Loan shall start on its Utilisation Date or (if already made) on the last day of its preceding Interest Period and end on the next Interest Payment Date. All interest is calculated on the basis of a 365 day year and for the actual number of days elapsed.
10.2 Non-Business Days
If an Interest Period would otherwise end on a day which is not a Business Day, that Interest Period will instead end on the next Business Day in that calendar month (if there is one) or the preceding Business Day (if there is not).
11. Fees
11.1 Facility fee
The Borrower shall pay to the Lender the Facility Fee on the date of the first Utilisation such amount being deducted from the first Utilisation.
11.2 Closing Fee
The Borrower shall pay to the Lender the Closing Fee on the date on which the Facility is prepaid or repaid in full.
11.3 Release Administration Fee
The Borrower shall pay to the Lender a release fee in the amount of £100 in respect of any request for release under clause 19 (Release).
11.4 Storage Fees
The Borrower shall pay to the Lender at the same time as interest is paid under clause 9 (Interest), any storage fees which the Lender owes in respect of the storage of the Collateral at the Designated Warehouse.
12. Tax gross up
12.1 Tax gross up
The Borrower will make all payments under or in respect of any Finance Document without set-off or counterclaim and free and clear of any withholding or deduction, save as may be required by law. If the Borrower is required to make any such withholding or deduction the Borrower shall pay such additional amounts so that the Lender receives and retains a net amount equal to the full amount had no such withholding or deduction been made.
12.2 Tax indemnity
The Borrower shall (within three Business Days of demand by the Lender) pay to the Lender an amount equal to the loss, liability or cost which the Lender determines will be or has been (directly or indirectly) suffered for or on account of Tax in respect of a Finance Document.
12.3 Stamp taxes
The Borrower shall pay and, within three Business Days of demand, indemnify the Lender against any cost, loss or liability the Lender incurs in relation to all stamp duty, registration and other similar taxes payable in respect of any Finance Document.
13. Other indemnities
The Borrower shall within three Business Days of demand, indemnify the Lender against any cost, loss or liability incurred by the Lender as a result of:
13.1.1 the occurrence of any Event of Default;
13.1.2 a failure by the Borrower to pay any amount due under a Finance Document on its due date or within any applicable grace period; or
13.1.3 the Loan not being prepaid in accordance with a notice of prepayment given by the Borrower; or
13.1.4 the taking, holding, protection or enforcement of the Finance Security;
13.1.5 the exercise of any of the rights, powers, discretions and remedies vested in the Lender by the Finance Documents or by law.
14. Costs and expenses
14.1 Amendment costs
The Borrower shall, within three Business Days of demand, reimburse each of the Lender for the amount of all costs and expenses (including legal fees) incurred by the Lender in relation to evaluating, negotiating or entering into any amendment, waiver or consent in relation to any Finance Document including any Release Request.
14.2 Enforcement and preservation costs
The Borrower shall, within three Business Days of demand, pay to the Lender the amount of all costs and expenses (including legal fees) incurred by the Lender in connection with the storage of the Collateral Pool at the Designated Warehouse, the delivery of the assets comprising the Collateral Pool to the Designated Warehouse or the redelivery of any assets to the Borrower, the enforcement of, or the preservation of any rights under, any Finance Document and the Finance Security and any proceedings instituted by or against the Lender as a consequence of taking or holding the Finance Security or enforcing these rights.
15. Representations
The Borrower makes the representations and warranties set out in this clause 15 to the Lender.
15.1.1 The details of the Borrower are correct.
15.1.2 The Borrower is not a minor.
15.1.3 The Borrower does not suffer from any Mental Incapacity;
15.1.4 The Borrower has the necessary legal capacity to execute, deliver and perform its obligations under the Finance Documents.
15.1.5 There are no restrictions on the Borrower's ability to charge and/or assign the Charged Property and or pledge the Collateral.
15.2.1 The Borrower is acting as principal for its own account and not as agent or trustee or in any other capacity on behalf of any third party.
15.2.2 The Borrower's obligations under the Finance Documents constitute its legal, valid and binding obligations and are in full force and effect, create a valid security interest over the Charged Property and rank at least pari passu with all other of the Borrower's present and future unsecured and unsubordinated indebtedness.
15.3 Non-Conflict With Other Obligations
The entry into the Finance Documents and the performance and observation of the obligations hereunder does not and will not conflict with any law or document binding on the Borrower or constitute a default or termination event (howsoever described) under any such agreement or instrument or result in the creation or imposition of or oblige the Borrower to create any charge or other encumbrance on any of its assets, rights or revenues.
15.4 Independent Advice
The Borrower has taken independent legal advice under the laws of England and Wales as to the terms and nature, effect and extent of its obligations under the Finance Documents.
15.5 [Terms of the Finance Documents
The Borrower has had due opportunity to review, consider and understand the terms of the Finance Documents and on the basis that the Facility is wholly or predominantly for the purposes of business carried on or intended to be carried on by the Borrower, this Facility is exempt for the purposes of consumer credit and protection legislation in England and Wales.]1
15.6.1 The Borrower has not, and has never been, subject to a bankruptcy order nor, as far as the Borrower is aware, is there any outstanding bankruptcy petition filed in respect of them.
15.6.2 The Borrower] is not, and has never been, subject to a bankruptcy restriction order or undertaking.
15.6.3 No individual voluntary arrangement (or non-statutory scheme or compromise for the benefit of creditors) in relation to the Borrower is currently or has ever been in effect nor has such an arrangement ever been proposed in relation to [him/her/it] nor has any order been made under Section 252 Insolvency Act 1986 (interim order) or application been made for such an order.
15.6.4 The Borrower is not unable to pay its debts within the meaning of section 268 Insolvency Act 1986 nor has any statutory demand (as defined in section 268(1)(a) Insolvency Act 1986) been served on the Borrower which remains unsatisfied and unpaid nor is the Borrower otherwise insolvent.
15.6.5 None of the Borrower's assets are subject to any distress, injunctive action or execution or are in the control of a trustee in bankruptcy, supervisor, receiver, manager or mortgagee in possession.
15.6.6 The Borrower is not in default in respect of any financial commitment or obligation including but not limited to any guarantee, indemnity, bond or like obligation.
15.7.1 The choice of governing law of the Finance Documents will be recognised and enforced in each Relevant Jurisdiction.
15.7.2 Any judgment obtained in relation to a Finance Document in the jurisdiction of the governing law of that Finance Document will be recognised and enforced in all Relevant Jurisdictions.
15.8 No filing or stamp taxes
Under the laws of all Relevant Jurisdictions it is not necessary that the Finance Documents be filed, recorded or enrolled with any court or other authority in that jurisdiction or that any stamp, registration, notarial or similar Taxes or fees be paid on or in relation to the Finance Documents or the transactions contemplated by the Finance Documents.
15.9 Deduction of Tax
He/she not required to make any deduction for or on account of tax from any payment he/she may make under any Finance Document to the Lender.
15.10.1 No Event of Default is continuing or might reasonably be expected to result from the making of any Utilisation.
15.10.2 No other event or circumstance is outstanding which constitutes a default under any other agreement or instrument which is binding on him/her or to which his/her assets are subject which might have a Material Adverse Effect.
15.11.1 Any factual information provided by the Borrower to the Lender was true and accurate in all material respects as at the date it was provided or as at the date (if any) at which it is stated.
15.11.2 Nothing has occurred or been omitted from the information provided to the Lender and no information has been given or withheld that results in any information provided by the Borrower to the Lender being untrue or misleading in any material respect.
15.12 Ranking
The Finance Security has or will have first ranking priority and it is not subject to any prior ranking or pari passu ranking Security.
15.13 No proceedings pending or threatened
No litigation, arbitration or administrative proceedings of or before any court, arbitral body or agency which, if adversely determined, might reasonably be expected to have a Material Adverse Effect have (to the best of its knowledge and belief) been started or threatened against the Borrower.
15.14 Legal and beneficial ownership
The Borrower is the sole legal and beneficial owner of the respective assets over which the Borrower purports to grant Finance Security.
15.15 Application
Any information provided in respect of the Application was true and accurate in all material respects as at the date the information is expressed to be given.
15.16 Finance Documents
The Finance Documents are in a form which will be recognised and enforceable under the laws of its Original Jurisdiction.
15.17 Sanctions
The Borrower, any of its Subsidiaries, any director or officer or any employee, agent, or affiliate of the Company or any of its Subsidiaries is an individual or entity ("Person") that is, or is owned or controlled by Persons that are, (i) the subject of any sanctions administered or enforced by the US Department of the Treasury's Office of Foreign Assets Control, the US Department of State , the United Nations Security Council, the European Union, Her Majesty's Treasury (collectively, "Sanctions"), or (ii) located , organised or resident in a country or territory that is the subject of Sanctions, including currently, the Crimea, Donetsk and Luhansk regions of Ukraine, Cuba, Iran, North Korea and Syria.
15.18 Times for making representations and warranties
The representations and warranties set out in this clause 15 are made by the Borrower on the date of this Agreement and are deemed to be repeated on each day after the date of this Agreement for so long as any amount is outstanding or is capable of being outstanding under the Finance Documents or any Loan Amount is in force, in each case with reference to the facts and circumstances existing at the time of repetition.
16. Information undertakings
The undertakings in this clause 16 remain in force from the date of this Agreement for so long as any amount is outstanding or is capable of being outstanding under the Finance Documents.
The Borrower shall supply to the Lender:
16.1.1 promptly, such information regarding his/her] financial condition, business and operations as the Lender may reasonably request; and
16.1.2 promptly, such information as the Lender may reasonably require about the Charged Property and the Collateral Pool and compliance of the Borrower with the terms of any Security Documents.
16.2 Notification of default
The Borrower shall notify the Lender of any Default relating to it (and the steps, if any, being taken to remedy it) promptly upon becoming aware of its occurrence.
17. General undertakings
The undertakings in this clause 17 remain in force from the date of this Agreement for so long as any amount is outstanding or is capable of being outstanding under the Finance Documents.
The Borrower shall promptly:
17.1.1 obtain, comply with and do all that is necessary to maintain in full force and effect; and
17.1.2 upply certified copies to the Lender of,
any Authorisation required under any law or regulation of any Relevant Jurisdiction to enable him/her to perform his/her obligations under the Finance Documents and to ensure the legality, validity, enforceability or admissibility in evidence in that jurisdiction of any Finance Document.17.2 Compliance with laws
The Borrower shall comply in all respects with all laws to which he/she may be subject including any filing or registration requirements.
17.3 Negative pledge
The Borrower shall not create or permit to subsist any Security over any of his/her Charged Property or the Collateral Pool other than in favour of the Lender.
17.4 Disposals
The Borrower shall not enter into a single transaction or a series of transactions (whether related or not) and whether voluntary or involuntary to sell, lease, transfer or otherwise dispose of any Charged Property or the Collateral Pool.
17.5.1.1 to perfect the Security created or intended to be created under or evidenced by the Security Documents (which may include the execution of a mortgage, charge, assignment or other Security over all or any of the assets which are, or are intended to be, the subject of the Finance Security) or for the exercise of any rights, powers and remedies of the Lender provided by or pursuant to the Finance Documents or by law;
17.5.1.2 to confer on the Lender Security over any property and assets of the Borrower located in any jurisdiction equivalent or similar to the Security intended to be conferred by or pursuant to the Security Documents; and/or
17.5.1.3 at any time when an Event of Default is continuing to facilitate the realisation of the assets which are, or are intended to be, the subject of the Finance Security.
17.5.2 The Borrower shall take all such action as is available to [it][him][her] (including making all filings and registrations) as may be necessary for the purpose of the creation, perfection, protection or maintenance or any Security conferred or intended to be conferred on the Lender by or pursuant to the Finance Documents.
The Borrower shall:
17.6.1 procure that the wines specified in the Collateral Schedule are delivered directly to the Designated Warehouse for the account of the Lender in the amounts and quality specified in such Collateral Schedule and to indemnify the Lender on within three Business Days of demand, against any cost, loss or liability incurred by the Lender as a result of such failure to deliver the Collateral in the amounts and quality specified including, without limitation, any shipping costs relating to the return of any part of the Collateral not meeting the requirements and any replacement wine to meet the specifications;
17.6.2 enter into the Chattel Pledge in favour of the Lender documenting the terms of the pledge of the Collateral once delivered to the Designated Warehouse for the account of the Lender..
The Borrower agrees that during the term of the Facility (including for Clause 19 (Release) until such time as all amounts payable in respect of the Facility have been irrevocably repaid in full:
17.7.1 it shall not sell or purport to sell any of the assets making up the Collateral Pool other than through the Lender;
17.7.2 any proceeds from a disposal (less any costs and expenses including any commission due to the Lender at the rate notified to the Borrower) of any asset forming part of the Collateral Pool shall be applied in immediate prepayment of the Loan;
17.7.3.1 if the asset was sold at such price, it would not cause the Collateral Cover Value for the remaining Collateral Pool to be less than the Original CCV; and
17.7.3.2 the Lender agrees (in its sole discretion) to such price;
17.7.4 the Borrower may provided that a disposal made at its request has not been completed require the cancellation of the proposed disposal provided always that sufficient notice has been given to the Lender to cancel such disposal such ability to cancel is without prejudice to the obligation to pay;
17.7.5 when providing the broking and trading services in respect of any asset forming part of the Collateral Pool, the Lender acts as agent of the Borrower and not as principal;
17.7.6 it warrants the provenance and condition of any asset being disposed of from the Collateral Pool and accepts all risks in and thereto and in particular the Borrower Customer agrees to indemnify and hold harmless the Lender and its directors, officers, agents, employees and representatives against any and all claims, demands, penalties, losses, liability or damage, including, without limitation, reasonable attorneys' fees and expenses asserted against, resulting from, or related to the provenance, condition or quality of the assed being disposed of by the Lender.
17.8 Direct Debit
The Borrower terminates or purports to terminate any direct debit mandate established by it in the Lender’s favour.
17.9 Sanctions
The Borrower will not, directly or indirectly, use the proceeds of the Loan, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other Person, (i) to fund any activities or business of or with any Person, or in any country or territory, that, at the time of such funding, is the subject of Sanctions or (ii) in any other manner that would result in a violation of Sanctions by any Person (including any Person participating in the Loans).
18. Events of Default
Each of the events or circumstances set out in clause 18 is an Event of Default (save for clause 18.12 (Acceleration)).
18.1 Non-payment
The Borrower does not pay on the due date any amount payable pursuant to a Finance Document at the place and in the currency in which it is expressed to be payable unless [its][his][her] failure to pay is caused by administrative or technical error and payment is made within five Business Days of its due date.
18.2 Non-payment
The Borrower does not comply with any provision of the Finance Documents (other than those referred to in clause 18.1 (Non-payment)).
18.3 Misrepresentation
Any representation or statement made or deemed to be made by the Borrower in the Finance Documents or any other document delivered by or on behalf of the Borrower under or in connection with any Finance Document is or proves to have been incorrect or misleading in any material respect when made or deemed to be made.
18.4 Mental Incapacity
The Borrower suffers from any Mental Incapacity.
18.5.1 The Borrower is unable or admits inability to pay its debts within the meaning of section 268 Insolvency Act 1986 or suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of his/her creditors with a view to rescheduling any of its indebtedness.
18.5.2 The value of the assets of the Borrower is less than its liabilities (taking into account contingent and prospective liabilities).
18.6.1.1 the suspension of payments, the bankruptcy of or an individual voluntary arrangement in respect of the Borrower (or any non-statutory scheme or compromise for the benefit of creditors) or any order being made in relation to the Borrower under section 252 Insolvency Act 1986 or any application being made for such an order;
18.6.1.2 a composition, compromise, assignment or arrangement with any of the Borrower's creditors;
18.6.1.3 the appointment of a trustee in bankruptcy or other similar officer in respect of the Borrower
18.6.1.4 the enforcement of any encumbrance over any of the Borrower's assets,
18.7 Any of the Borrower 's assets becoming subject to any expropriation, attachment, sequestration, distress, injunctive action or execution or coming into the control of a trustee in bankruptcy, supervisor, receiver, manager or mortgagee/chargee in possession.
18.8 Any event analogous to those set out in Clauses 18.10 to 18.11 occurring under the laws of any other jurisdiction in relation to the Borrower or any of his/her assets.]
18.9 Death
The Borrower dies.
18.10 Divorce
The commencement of divorce, separation or similar proceedings either by or against the Borrower.
18.11.1 It is or becomes unlawful for the Borrower to perform any of his/her obligations under the Finance Documents or any Finance Security created or expressed to be created or evidenced by the Security Documents ceases to be effective.
18.11.2 Any obligation or obligations of the Borrower under any Finance Documents are not (subject to the Legal Reservations) or cease to be legal, valid, binding or enforceable and the cessation individually or cumulatively materially and adversely affects the interests of the Lender under the Finance Documents.
18.11.3 Any Finance Document ceases to be in full force and effect or any Finance Security ceases to be legal, valid, binding, enforceable or effective or is alleged by a party to it (other than the Lender) to be ineffective.
The Borrower repudiates a Finance Document or gives written notice of its/his/her intention to repudiate or rescind a Finance Document or any of the Finance Security.
On and at any time after the occurrence of an Event of Default which is continuing the Lender may by notice to the Borrower:
18.13.1 cancel the Facility whereupon it shall immediately be cancelled;
18.13.2 declare that the Loan, together with accrued interest, and all other amounts accrued or outstanding under the Finance Documents be immediately due and payable, whereupon they shall become immediately due and payable;
18.13.3 declare that the Loan be payable on demand, whereupon it shall immediately become payable on demand by the Borrower; and/or
18.13.4 exercise any or all of its rights, remedies, powers or discretions under the Finance Documents.
19. Release
19.1 The Borrower may on not less than 30 days prior written notice request (a "Release Request") that the Lender release the wines specified in such request (the "Specified Wines") from the Collateral Pool.
19.2 No Release Request may be given by the Borrower during the first three months following the date of this Agreement, during the two months prior to the Final Repayment Date or within three months of any previous Release Request.
19.3 Provided that the Release Conditions in respect of such Release Request have been met, the Lender shall, as soon as reasonably practicable release such Specified Wines from the Collateral Pool and arrange for the return of the Specified Wines to the Borrower at the Borrower's cost and expense.
19.4 For the avoidance of doubt, once all amounts due (or which may become due) under or in connection with the Facility have been irrevocably paid in full, the Lender will, at the cost and expense of the Borrower, return any wine which still forms part of the Collateral Pool to the Borrower.
20. Assignments and transfers
The Lender may:
20.1.1 assign any or all of its rights; or
20.1.2 transfer by novation any or all of its rights and obligations,
under any Finance Document.20.2 Assignments and transfer by the Borrower
The Borrower may not assign any of his/her rights or transfer any of his/her rights or obligations under the Finance Documents.
21. Payment mechanics
21.1 No set-off by the Borrower
All payments to be made by the Borrower under the Finance Documents shall be calculated and be made without (and free and clear of any deduction for) set-off or counterclaim.
21.2 Business Days
Any payment which is due to be made on a day that is not a Business Day shall be made on the next Business Day in the same calendar month (if there is one) or the preceding Business Day (if there is not).
22. Set-off
The Lender may set off any matured obligation due from the Borrower under the Finance Documents against any matured obligation owed by the Lender to the Borrower, regardless of the place of payment, booking branch or currency of either obligation.
23. Notices
23.1 Communications in writing
Any communication to be made under or in connection with the Finance Documents shall be made in writing and, unless otherwise stated, shall be made by email or letter.
23.2 Addresses
The address and email address (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with the Finance Documents is that identified with their name below or any substitute address or email address or department or officer as the Borrower may notify to the Lender (or the Lender may notify to the Borrower, if a change is made by the Lender) by not less than five Business Days' notice.
23.3.1.1 if by way of email, when actually received (in readable form); or
23.3.1.2 if by way of letter, when it has been left at the relevant address or five Business Days after being deposited in the post postage prepaid in an envelope addressed to them at that address,
and, if a particular department or officer is specified as part of their address details provided under clause 23.2 (Addresses), if addressed to that department or officer.23.3.2 Any communication or document to be made or delivered to the Lender will be effective only when actually received by the Lender and then only if it is expressly marked for the attention of the department or officer identified with the Lender's signature below (or any substitute department or officer as the Lender shall specify for this purpose).
23.4.1 Any notice given under or in connection with any Finance Document must be in English.
23.4.2.1 in English; or
23.4.2.2 if not in English, and if so required by the Lender, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
24. Partial invalidity
If, at any time, any provision of the Finance Documents is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
25. Remedies and waivers
No failure to exercise, nor any delay in exercising, on the part of the Lender, any right or remedy under the Finance Documents shall operate as a waiver, nor shall any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
26. Counterparts
Each Finance Document may be executed in any number of counterparts, and this has the same effect as if the signatures on the counterparts were on a single copy of the Finance Document.
27. Governing law
This Agreement and any non-contractual obligations arising out of or in connection with it are governed by English law.
28. Enforcement
28.1.1 The courts of England have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a "Dispute").
28.1.2 The Parties agree that the courts of England are the most appropriate and convenient courts to settle Disputes and accordingly no Party will argue to the contrary.
28.1.3 This clause 28.1 is for the benefit of the Lender only. As a result, the Lender shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Lender may take concurrent proceedings in any number of jurisdictions.
[Declaration by high net worth borrower or hirer
(articles 60H and 60Q of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001)
I confirm that I have received a copy of the statement of high net worth made in relation to me for the purposes of article 60H(d) or article 60Q(c) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001.
I understand that by making this declaration I will not have the benefit of the protection and remedies that would be available to me under the Financial Services and Markets Act 2000 or the Consumer Credit Act 1974 if this Agreement were a regulated agreement under those Acts.
I understand that this declaration does not affect the powers of the court to make an order under section 140B of the Consumer Credit Act 1974 in relation to a credit agreement where it determines that the relationship between the lender and the borrower is unfair to the borrower.
I am aware that if I am in any doubt as to the consequences of making this declaration then I should seek independent legal advice.]
………………………………… Date:
[name of Borrower]
[Declaration for exemption relating to businesses
(articles 60C and 60O of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001)
I am/We are* entering this agreement wholly or predominantly for the purposes of a business carried on by me/us or intended to be carried on by me/us.
I/We* understand that I/We* will not have the benefit of the protection and remedies that would be available to me/us* under the Financial Services and Markets Act 2000 or under the Consumer Credit Act 1974 if this agreement were a regulated agreement under those Acts.
I/We* understand that this declaration does not affect the powers of the court to make an order under section 140B of the Consumer Credit Act 1974 in relation to a credit agreement where it determines that the relationship between the lender and the borrower is unfair to the borrower.
I am/We are aware that, if I am/we are in any doubts as to the consequences of the agreement not being regulated by the Financial Services and Markets Act 2000 or the Consumer Credit Act 1974, then I/we* should seek independent legal advice.
*Delete as appropriate]
………………………………… Date:
[name of Borrower]
THIS AGREEMENT has been executed by or on behalf of the parties on the date at the top of page 1.
Schedule 1
Conditions Precedent
1. [The Borrower
1.1 A certified copy of the constitutional documents of the Borrower.
1.2.1 approving the terms of, and the transactions contemplated by, the Finance Documents to which it is a party and resolving that it execute the Finance Documents to which it is a party;
1.2.2 authorising a specified person or persons to execute the Finance Documents to which it is a party on its behalf; and
1.2.3 authorising a specified person or persons, on its behalf, to sign and/or despatch all documents and notices to be signed and/or dispatched by it under or in connection with the Finance Documents to which it is a party.
1.3 A specimen of the signature of each person authorised by the resolution referred to in Clause 1.2.2 above.
1.4 A certificate of the Borrower (signed by a director) confirming that the borrowing of the Loan Amounts would not cause any borrowing or similar limit binding on the Borrower to be exceeded.
1.5 A certificate of an authorised signatory of the Borrower certifying that each copy document relating to it specified in this Schedule 1 is correct, complete and in full service and effect as at a date no earlier than the date of this Agreement.
2. SECURITY DOCUMENTS AND OTHER FINANCE DOCUMENTS
2.1.1 a duly executed version of this Agreement between the Lender and the Borrower;
2.1.2 a duly executed Chattels Pledge between the Lender and the Borrower;
3. documents and evidence
3.1 The relevant Declaration contained within this Agreement signed by the Borrower and statement for exemption relating to high net worth or business use in the form set out in Schedule 3, together with any other documentation and other evidence as is reasonably requested by the Lender to satisfy relevant documentary requirements in respect of the Consumer Credit Act 1974 and consumer protection legislation.
3.2 Evidence that the items forming the Collateral Pool have been delivered to the Lender’s account at the Designated Warehouse, have been inspected by the Lender and complies with the type and quality specified in the Collateral Schedule.
3.3 Evidence that there are no encumbrances over the Collateral Pool or the Charged Property other than in favour of the Lender.
3.4 Evidence that a direct debt mandate has been established in favour of the Lender by the Borrower.
3.5 A copy of any other Authorisation or other document, opinion or assurance which the Lender considers to be necessary or desirable (if it has notified the Borrower accordingly) in connection with the entry into and performance of the transactions contemplated by any Finance Document or for the validity and enforceability of any Finance Document.
3.6 Evidence that the fees, costs and expenses then due from the Borrower pursuant to clause 11 (Fees) and clause14 (Costs and expenses) have been paid or will be paid by the Utilisation Date.
Schedule 2
Utilisation Request
From: Borrower
To: [ ]
Dated:
Dear Sirs
[Borrower] – [●] Facility Agreement
dated [●] (the "Agreement")
1. We refer to the Agreement. This is a Utilisation Request. Terms defined in the Agreement have the same meaning in this Utilisation Request unless given a different meaning in this Utilisation Request.
| Proposed Utilisation Date: | [●] (or, if that is not a Business Day, the next Business Day). |
| Currency of Loan: | Sterling. |
| Amount: | [●] pounds (£[●]). |
3. The proceeds of this Loan should be credited to [account].
4. This Utilisation Request is irrevocable.
Yours faithfully
…………………………………
authorised signatory for
[name of relevant Borrower]
Schedule 3
Statement of High Net Worth
(articles 60H and 60Q of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001)
I/we (insert full name) …………………… of (insert address and postcode) …………………… confirm that I am/we are a person qualified to make a statement of high net worth under rules made by the Financial Conduct Authority, by virtue of the fact that ……………………
In my/our* opinion (insert full name of borrower or hirer)
……………………..……………………..
of (insert address and post code of borrower or hirer)
……………………..……………………..
……………………..……………………..
is an individual of high net worth because he/she*
- received during the previous financial year net income totalling an amount of not less than one hundred and fifty thousand pounds (£150,000)*; and/or
- had throughout that year net assets with a total value of not less than five hundred thousand pounds (£500,000)*.
I/We* Declare that I am/we are [connected to] [insert name of lender(s)//owner(s)] as I am/we are* [the lender(s)/owner(s)/an employee of/an agent of the lender(s)//owner(s)/a person who otherwise acts on behalf of the lender(s)/owner(s) in relation to the credit agreement/consumer hire agreement/an associate of the lender(s)//owner(s)].*
In this statement:
- "associate" shall be construed in accordance with article 60L of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001;
- "financial year" means a period of one year ending with 31st March;
- "net assets" shall not include:
- "net income" means the total income of the borrower or hirer from all sources reduced by the amount of income tax and national insurance contributions payable in respect of it; and
- "previous financial year" means the financial year immediately preceding the financial year during which the statement is made.
*Delete as appropriate
Signed by _________________ Date:
Schedule 4
COLLATERAL SCHEDULE
To be inserted
THE BORROWER
[●]
By:
Address:
Email:
THE LENDER
Coterie Lending Company Limited
By:
Address:
Email:
Attention:
