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EXHIBIT 10.11
NEDBANK
NEDBANK HOUSE
20 ABCHURCH LANE, LONDON EC4N 7AD, UNITED KINGDOM
TELEPHONE (0171) 623-1077 (GENERAL)
TELEPHONE (0171) 623 1329 (FOREX DEALERS) (0171) 623-2763 (CORP DEALERS)
FAX: (0171) 621-9304
TELEX 886208, 8956177 (GENERAL) TELEX 8956269 (FOREX)
TELEGRAMS: "VASCOGAMA" LONDON
Our Ref. CREDIT/ DJE
The Directors,
Union Transport, Inc.
P.O. Box 134
Town Mills,
Trinity Square,
St. Peter Port,
Guernsey,
Channel Islands.
2nd January, 1997.
Dear Sirs,
We are pleased to advise you that Nedcor Bank Limited, ("the Bank"), has agreed
to provide to Union Transport, Inc., ("the Borrower") a multicurrency multi
option facility (the "Facility") in the aggregate principal amount of
(pound)6,620,000 ("the Limit") or its equivalent in any other currency or
currencies at the discretion of the Bank (a "Permitted Currency") on the terms
and conditions detailed below.
1.
1.1 Conditions Precedent The Facility may only be utilised when the Bank
notifies the Borrower that it has received, in form and substance
satisfactory to the Bank, the documents and evidence specified in schedule
1.
1.2 Facility Options Subject to paragraph 2, the Facility may be utilised on
any business day by way of the following options (each an "Option") and in
accordance with the provisions of the schedules relating to such Options
(such schedules form part of the terms and conditions of this facility
letter and terms
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used in this facility letter which are not defined herein are defined in
the schedules):
(i) guarantee facility (the "Guarantee Facility") for amounts of up to
(pound)3,000,000 or its equivalent in any combination of Permitted
Currencies and performance bond facility (the "Performance Bond Facility")
for amounts of up to (pound)2,100,000 or its equivalent in any combination
of Permitted Currencies (see schedule 2); and/or
(ii) letter of credit facility (the "L/C Facility") for amounts of up to
(pound)1,520,000 or its equivalent in any combination of Permitted
Currencies with any additional utilisation to be taken within Guarantee and
Performance Bond Facility limits as appropriate (see schedule 3);
provided that the aggregate of all of the utilisation under all of the
options shall not at any time exceed the Limit.
1.3 Sterling Equivalent The Sterling equivalent of any Permitted Currency
utilised or available to be utilised under the Facility shall be calculated
by the Bank at any time and from time to time by reference to the Bank's
then spot rate of exchange in the London Interbank Market for the purchase
of the relevant Permitted Currency with sterling (the "Sterling
Equivalent"). The aggregate Sterling Equivalents of all utilisations made
or requested under the Facility will be calculated at such time as the Bank
shall determine before any utilisation for the purpose of determining
compliance with the relevant option limit and the Limit and, at any other
time or times, and, if in any case any such limit(s) has/have been
exceeded, then the Bank may, without prejudice to its rights under
paragraph 2 and 3, demand immediate repayment of such amount as is
necessary to ensure that such limit(s) are complied with.
2. PERIOD
The Facility is available on an on-going basis until further notice subject to
the Bank's normal credit review procedures which will be undertaken at least
annually.
3. TERMINATION
Notwithstanding any other provision of this Facility Letter, the Bank may at any
time serve notice to require the Borrower to provide the Bank with full cash
cover for the Bank's maximum liability, whether actual or contingent, under any
outstanding Letter of credit or Guarantee and to require the Borrower to execute
any such further documentation in relation to any cash cover as the Bank shall
request.
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4. PAYMENTS
4.1 Calculation Interest and commission shall accrue from day to day and be
computed on the basis of the actual number of days elapsed on a 365 day
year for amounts in Sterling and South African Rand and a 360 day year for
amounts in any Permitted Currency.
4.2 No Deductions All payments to be made to the Bank hereunder shall be made
without set-off or counter claim and free from, clear of and without
deduction of any taxes or any other charges or withholdings. If the
Borrower is compelled by law to make any such deduction, the Borrower may
do so and the Borrower will pay to the Bank such additional amounts as the
Bank shall consider necessary to enable the Bank to receive the amount
which would have been payable if no such deduction had been required.
4.3 Debit to Accounts The Borrower irrevocably authorises the Bank to debit any
account the Borrower may have with the Bank with all or any amounts due
from the Borrower to the Bank in connection with the Facility.
5. COMPLIANCE COSTS AND INDEMNITY
5.1 Negotiation/Enforcement Expenses The Borrower agrees to reimburse the Bank
on demand for all expenses (including legal fees) inclusive of VAT incurred
by the Bank in connection with negotiation and administration of the
Facility or preparation of this facility letter or any Security Document or
in connection with the enforcement, preservation or defense of any of the
Bank's rights in respect thereof or in respect of any Security Document.
5.2 Compliance Costs The Borrower will compensate the Bank for any cost or
reduced return to the Bank in connection with the Bank's compliance in such
manner as the Bank thinks fit with any and all restrictions, requirements,
rules and regulations (whether now in force or later introduced) of the
Bank of England or any other applicable regulatory, monetary, fiscal or
other authority.
5.3 Default Interest If the Borrower fails to place the Bank in funds in
respect of any amount payable as required under this facility letter, the
Borrower shall pay to the Bank on demand interest on the overdue amount in
the currency thereof from the date up to the date of actual payment (as
well after as before judgment), compounded monthly, at a rate of 3% per
annum above the cost to the Bank (as conclusively determined by the Bank)
of funding such overdue amount from such sources and for such periods as
the Bank may decide.
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5.4 Default Indemnity The Borrower shall indemnify the Bank on demand against
any claim, cost, loss or expense incurred by the Bank as a result of any
default by the Borrower in the performance of any of the Borrower's
obligations to the Bank.
6. MISCELLANEOUS
6.1 Waivers No failure or delay in exercising on the Bank's part any right
hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right preclude any further exercise thereof, or the
exercise of any other right. No waiver by the Bank shall be effective
unless it is in writing.
6.2 Information The Borrower shall provide the Bank promptly with such
financial or other information as the Bank may from time to time reasonably
request, including, without limitation, the following:
Management accounts of the Borrower to include consolidated and sole Profit
and Loss accounts and sole balance sheet monthly, within 21 days of the
month end. (As per Union Transport Group Financial Pack requirements.)
Management accounts of Union Ocean Transport Ltd. to include Profit and
Loss accounts and balance sheet monthly, within 21 days of the month end.
(As per Union Transport Group Financial Pack requirements.)
Aged debtors schedule of Union Ocean Transport Ltd. in an agreed format,
within 21 days of the month end.
Management accounts of Union Ocean Transport Corp. to include Profit and
Loss accounts and balance sheet monthly, within 21 days of the month end.
(As per Union Transport Group Financial Pack requirements.)
Aged debtors schedule of Union Transport Corp., in an agreed format, within
21 days of the month end.
such other aged debtors information as will evidence that there is
sufficient unencumbered debtor cover for the Facility in an agreed format,
within 21 days of the month end.
6.3 Calculations Any calculation or statement made by the Bank and notified to
the Borrower in connection with this facility letter shall be conclusive
and binding on the Borrower in the absence of manifest error and except on
any question of law.
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6.4 Timings All references in this facility letter to a time of day shall, in
the absence of any express statement to the contrary, be a reference to
London time.
6.5 Entire Agreement The provisions of this facility letter supersede any
correspondence, discussion, representations, statements or agreements prior
to the Borrower's acceptance of this facility letter.
6.6 Severability If at any time any one or more of such provisions of this
facility letter (or any part) is or becomes invalid, illegal or
unenforceable the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired.
6.7 Set off The Bank shall be entitled at any time without notice (both before
and after demand) to set off all or part of any of the Borrower's
liabilities now or hereafter due, owing or incurred to the Bank against any
credit balance on any account of the Borrower with the Bank (whether
current or otherwise or subject to notice or not or due to the Borrower or
not).
6.8 Negative Pledge The Borrower undertakes not to alienate, sell or otherwise
dispose of, pledge, assign or otherwise charge or encumber any of its
assets without the Bank's prior written consent.
6.9 Notices Each notice or other communication under this facility letter shall
be in writing and shall be given by being left at or sent by post, telex or
fax to the Borrower or to the Bank at their respective address set out
above or to such other address as each of them notify to the other in
writing from time to time and if the Borrower is incorporated outside of
England and Wales also to the Borrower at Reading Cargo Centre, Hyperion
Way, Rose Kiln Lane, Reading Berkshire RG2 OJS. Any such notice or
communication shall be deemed to have been given in the case of post two
days after being put in the post and in the case of telex or facsimile when
transmitted, provided that any communication or notice to the Bank shall be
effective only when received.
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7. LAW AND JURISDICTION
This facility shall be governed by and construed in all respects in accordance
with English law. For the exclusive benefit of the Bank, the Bank and the
Borrower irrevocably agree that the English courts are to have jurisdiction to
settle any disputes which may arise out of or in connection with the Facility
and that the Borrower submits to the jurisdiction of such courts for such
purpose. Any address to which paragraph 6.9 hereof permits the Bank to deliver
notices to the Borrower shall be an effective address for service on the
Borrower of proceedings in the English courts. Nothing contained in this
paragraph shall limit the Bank's rights to take proceedings against the Borrower
in the courts of any country in which it has assets or in any other courts of
competent jurisdiction, nor shall the taking of proceedings in one or more
jurisdictions preclude the taking of proceedings in any other jurisdiction,
whether concurrently or not.
This offer is available for acceptances until 16 February 1997 after which it
will cease to be valid unless otherwise agreed by the Bank. Please indicate your
acceptance by having authorized officials sign the attached copy of this
facility letter, initial each of the pages of the Schedules thereto and return
it to the Bank.
Yours faithfully,
for and on behalf of
NEDCOR BANK LTD.
/s/ [Illegible] /s/ [Illegible]
AUTHORISED SIGNATORY AUTHORISED SIGNATORY
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We, refer to the letter dated 2 January 1997 from Nedcor Bank Limited to us of
which the aforegoing is a copy and hereby agree to, and accept, the terms
thereof.
For and on behalf of
/s/ Illegible /s/ Illegible
Authorised Signatory Authorised Signatory
Date 24 January 1997
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Signed in accordance with a resolution passed by a properly constituted board
meeting: a certified copy of which is attached.
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SCHEDULE 1
CONDITIONS PRECEDENT
Each of the following in form and substance satisfactory to the Bank.
1. The duplicate original of this facility letter duly signed on behalf of the
Borrower.
2. Originals of the following security documents (the "Security Documents"):
a. General counter indemnity from the Borrower to support any Guarantees.
Performance Bonds or Letters of Credit issued on its or its
subsidiaries behalf.
b. Unlimited guarantee from Union Ocean Transport Ltd. First Debenture
over the fixed and floating assets of Union Ocean Transport Ltd.
c. Unlimited guarantee from Union Air Transport Ltd.
d. First Debenture over the fixed and floating assets of Union Air
Transport Ltd.
e. Subordination of loan agreement from Union Air Transport Ltd. to cover
a minimum sum of (pound)250,000 lent to the Borrower
f. Unlimited guarantee from Union-Transport Corp.
g. First charge over the receivables of Union-Transport Corp.
h. Guarantee from PTR Holdings Inc. in favour of Union Ocean Transport
Ltd. in the sum of US$4,500,000
i. Guarantee from each Associate for which a Guarantee, Performance Bond
or Letter of Credit is issued.
(each security provider either singly or jointly to be hereinafter referred to
as the "Security Provider").
3. A copy, certified as true complete and up to date by the secretary or a
director of the Borrower and the Security Providers of a resolution of the
Board of directors of the Borrower and the Security Providers, approving
the Borrower's and the Security Provider's entry into and performance of
each of the documents to which it is a party and giving details of the
officers of the Borrower and the Security Providers authorised to sign each
of the documents to which it is a party and any communications and
documents relating thereto;
4. A legal opinion in relation to the Borrower and the Security Provider which
is incorporated outside England and any Security Document executed or to be
executed by it.
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SCHEDULE 2
GUARANTEES
1. Utilisation and mechanics
The Borrower may request the issue of guarantees, indemnities, or other
obligations to secure banking facilities with other banks (a "Guarantee")
in sterling and/or in Permitted Currencies or performance bonds
undertakings (a "Performance Bond") on its own behalf or on behalf of
subsidiaries (each an "Associate") with a maximum validity of 12 months by
sending to the Bank within a reasonable timescale prior to the date on
which the Borrower wishes the Guarantee or Performance Bond to be issued
notice specifying the details of the beneficiary, the validity period
together with the full text of the Guarantee or Performance Bond.
The Bank will be under no obligation to accept such a request but if it
does it will require a properly completed and executed counter-indemnity
from the Borrower in the Bank's standard form from time to time and
supporting board resolutions and/or other corporate approval documentation
in form and substance satisfactory to the Bank.
2. Commission
The rate of commission for issuing Guarantees will be calculated on the
maximum amount of the Bank's actual and/or contingent liability as
determined by the Bank under the relevant Guarantee. Such commission will
be due and payable in advance on the date of issue of the relevant
Guarantee and thereafter at the rate of:
An establishment fee of (pound)200 for each Guarantee or Performance Bond
0.75% per annum or part thereof where the liability secured is a lending
facility with another bank.
0.6% per annum or part thereof where the liability secured is a Performance
Bond.
or such other rate as agreed between the Bank and the Borrower from time to
time.
3. Cash Cover
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Without prejudice to the Bank's rights under any other document held or to
be held by the Bank in connection with the Facility, the Borrower hereby
irrevocably and unconditionally undertakes that, in respect of any payment
made by the Bank under any Guarantee, the Borrower will provide the Bank
with cleared funds to such account as specified by the Bank in the
appropriate currency to enable the Bank to apply the same in making such
payment.
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SCHEDULE 3
LETTERS OF CREDIT FACILITY
1. Utilisation and mechanics
The Borrower may request the Bank to open documentary letters of credit
("Letters of Credit") on its own behalf or on behalf of subsidiaries (each
an "Associate") in sterling and/or in Permitted Currencies payment to be
either at sight or on deferred terms of up to days after issuance of such
Letter of Credit.
The Bank will be under no obligation to accept such a request but if it
does the Bank will require:
(a) all Letters of Credit opened to be on a full recourse basis and
subject to I.C.C. Uniform Customs and Practice for Documentary Credits
as currently in force and from time to time amended and otherwise in a
form and upon terms satisfactory to the Bank;
(b) applications for Letters of Credit to be made on the Bank's standard
application form, or in such other manner as shall be agreed between
the Bank and the Borrower from time to time, such applications to be
received by a reasonable period prior to the date on which the
Borrower wishes the Letter of Credit to be opened and;
(c) the Borrower to execute a letter of pledge and other documentation
prior to the date on which the Borrower wishes the Letter of Credit to
be opened.
2. Charges
The Borrower shall be charged an issuance fee calculated on the maximum
available amount (at the time such fee is payable) of each Letter of Credit
issued at the Bank's standard tariff from time to time, payable in advance
upon the issuance of such Letter of Credit for the period from issuance of
such Letter of Credit to its expiry date.
All other charges will be in accordance with the tariff set out in Schedule
4.
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3. Cash Cover
Without prejudice to the Bank's right under any other document held or to
be held by the Bank in connection with the Facility, the Borrower hereby
irrevocably and unconditionally undertakes that, in respect of any payment
made by the Bank under each Letter of Credit the Borrower will provide the
Bank with cleared funds to such account as specified by the Bank in the
appropriate currency to enable the Bank to apply the same in making such
payment.
