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4Syte Construction Finance Ltd

Factoring Standard Conditions (September 2020)

General

1.1 These standard terms and conditions are applicable to our factoring facility or facilities with you (the “Standard Conditions” and each condition herein being a “condition”). In the Facility Agreement these Standard Conditions are defined as the “Standard Conditions” and each condition a “condition”.

1.2 Terms defined in the Facility Agreement shall apply in these Standard Conditions. The interpretation provisions at clause 1 of the Facility Agreement shall apply in these Standard Conditions.

1.3 Terms defined in any other Finance Document (which are expressed as applying in these Standard Conditions) shall apply in these Standard Conditions.

1.4 Terms defined in condition 2 shall apply in these Standard Conditions. The additional interpretation provisions at condition 2 shall apply in these Standard Conditions.

Meanings of Words and Expressions

2.1 In these Standard Conditions:
(a) the “Agreement” shall mean the Facility Agreement and these Standard Conditions;
(b) “we” or “us” or “our” means 4Syte Construction Finance Limited (a company registered in England and Wales with the number 11066357) and includes any person to whom we may novate, assign, transfer our rights and/or obligations under this Agreement;
(c) “you” or “your” means any person for whom we provide our trade finance services by a Facility Agreement of which the Standard Conditions are a part; and
(d) reference to any Act of Parliament is deemed to include such Act as amended or re-enacted from time to time and any order or regulation made under it.

2.2 In the Agreement:
(a) where the context allows the singular includes the plural and vice versa and any of the three genders includes either of the other two;
(b) references to clauses (except where otherwise specified) are to clauses of the Facility Agreement and to conditions are to the Standard Conditions and the headings of clauses and conditions are for convenience only and do not affect the meaning of any clause or condition;
(c) the meanings of general words introduced by the word “other” are not limited by reference to any preceding word indicating a particular class of acts matters or things;
(d) reference to any Act of Parliament includes such Act as amended or re-enacted from time to time and any order or regulation made under it;
(e) where we have a right or option to do anything then the right or option is at our absolute discretion; and
(f) the following words and expressions have the meanings attributed to them below:

“4TL”
4Styte Trade Ltd (registered number 11537104);

“the Act”
the Insolvency Act 1986;

“Agreed Reserve”
as defined in the Trade Finance Agreement;

“Approved”
in relation to any Debt, Approved for Prepayment under conditions 6.1 to 6.3 (inclusive);

“Approved Funding”
an amount equivalent to the Prepayment Percentage of the total amount of Outstanding Approved Debts;

“Assignment”
as defined in condition 5.1;

“Associate”
any director or employee of you or any person whose relationship with you is within the meaning of “associate” in section 435 of the Act;

“Available Funds Account”
a memorandum account maintained by us for recording the amount remaining at any time after deducting any debit balance on the Current Account from (or adding any credit balance on it to) the Approved Funding at that time;

“BACS”
Bankers’ Automated Clearing Service;

“Business Day”
any day except (other than a Saturday, Sunday or public holiday) during which clearing banks in the City of London are open for normal business;

“Charged Assets”
the undertaking, property, assets and rights of you/yours and/or any Obligor(s) which are subject to Security granted in favour of the Security Trustee;

“CHAPS”
Clearing House Automated Payments System;

“Collection Date”
in respect of any Debt paid in cash or by credit transfer 5 (five) Business Days after the date of the advice to us of the receipt of the funds in our bank account and, in respect of any Debt paid by cheque or other instrument, the date when the funds represented by it are collected and received by our bankers (for administrative convenience, and in the absence of any disruption to banking procedures, we may allow 5 (five) Business Days for clearing of cheques or other instruments of payment);

“Commencement”
the date specified in clause 7;

“Concentration Limit”
means the maximum percentage (that Outstanding Debts relating to a Debtor at any particular time from time can be of the lower of: (i) the Funding Limit or (ii) the Outstanding Approved Debts at that time) if any, set by us from time to time, for that Debtor or for Debtors (as the case may be) under or in connection with the Facility being the the percentage specified in clause 7 of the Facility Agreement. This following sentence in this defined term applies if and whilst you have a Trade Finance Facility with 4TL. This defined term is referred to in the Trade Finance Facility as ‘Concentration Percentage’;

“Contract of Sale”
a contract for the supply of goods or services or for hiring by you;

“Credit Limit”
a limit established under condition 3.2(c) in relation to any Debtor for the purpose of determining which Debts owing by that Debtor may be Approved. This following sentence in this defined term applies if and whilst you have a Trade Finance Facility with 4TL. This defined term is referred to in the Trade Finance Facility as ‘Customer Credit Limit’;

“Current Account”
an account or accounts maintained by us in your name on which are recorded transactions between you and us:

“Date of Payment”
(i) in relation to any payment (including any Prepayment) made to you by cheque, the date on which that cheque is despatched to you;
(ii) in relation to any such payment made by BACS or CHAPS the date of the initiation by our bankers of the transaction for that payment; and
(iii) (this following sentence in this defined term applies if and whilst you have a Trade Finance Facility with 4TL) (i) and (ii) shall also apply in respect of payments made by us to 4TL save that references to ‘you’ in (i) shall mean ‘4TL’;

“Debt”
the amount (or, where the context allows, a part of such amount) of any obligation or indebtedness, including any tax or duty payable, incurred by a Debtor under a Contract of Sale together with (where the context allows) any Related Rights pertaining to such obligation or indebtedness;

“Debtor”
any person who has incurred or may incur an obligation to you under a Contract of Sale;

“Debts to be Included”
the Debts of the class(s) described in in clause 7;

“Delegate”
means any delegate, agent, attorney or co-trustee appointed by the Security Trustee;

“Delivered”
in the case of any goods or any invoice, despatched to the Debtor from a place in the United Kingdom and, in the case of services or hiring, completed;

“Disbursements”
all bank charges and other costs, charges and expenses incurred by us and/or the Security Trustee in the operation of or in connection with the Agreement and which shall include, without limitation, legal and other professional costs and expenses in incurred by us and/or the Security Trustee (plus VAT, if applicable), our and/or the Security Trustee’s own administrative costs, and such other charges as shall be notified to you by us and/or the Security Trustee in Writing from time to time;

“Discount Charge”
the charge specified in clause 7 for which provision is made in condition 7.1 to be deducted in the calculation of the Purchase Price of any Debt;

“the DPA”
the Data Protection Act 2018;

“Early Termination Fee”
an amount equivalent to (i) the Service Fee and (ii) the Discount Charge that would have been earned by us during the period from the date of termination to the earliest date on which you would have been entitled to terminate the Agreement on expiry of the Notice Period following the end of the Minimum Period;

“Event of Default”
any event listed in condition 17.1;

“Facility Agreement”
the factoring facility between you, us and the Security Trustee executed as a deed by such parties;

“Finance Documents”
the Agreement (including the Facility Agreement, these Standard Conditions and the Offer), the Security Documents, the Security Trust Deed, each Security Trust Deed of Adherence, each Assignment and any other document designated by us and/or the Security Trustee as a “Finance Document”;

“Financial Information”
the financial information specified in clause 7 of the Facility Agreement;

“Funding Limit”
the amount specified in clause 7;

“Goods”
any goods or services or hiring the subject of a Contract of Sale;

“Insolvency Proceedings”
(i) the issue of a petition for winding up or bankruptcy; or
(ii) an administration application under paragraph 12 of Schedule B1 to the Act or the appointment of an administrator under paragraph 14 or paragraph 20 of the said Schedule B1; or
(iii) a proposal for a voluntary arrangement under the Act; or
(iv) the calling of any meeting of creditors; or
(v) the appointment of a receiver in respect of any part or the whole of the undertaking or property of any firm, LLP or company;

“the Insurer”
the insurer by which the Policy has been issued;

“Limited Recourse”
the limitation of our right of Recourse in respect of any Debt as set out in condition 13.3;

“Limited Recourse Annual Fee”
(if Limited Recourse Applies) the fee specified in clause 7 of the Factoring Agreement;

“Limited Recourse Discount Charge”
(if Limited Recourse Applies) the charge specified in clause 7 of the Factoring Agreement for which provision is made in condition 7 to be deducted in the calculation of the Purchase Price of any Debt;

“LLP”
a limited liability partnership incorporated under the Limited Liability Partnership Act 2000;

“Losses”
includes all losses, liabilities, compensation, costs, charges, expenses, actions, proceedings, claims and demands (including but not limited to all interest, penalties and reasonably and properly incurred legal and professional costs and expenses);

“Minimum Monthly Service Fee”
the minimum monthly service fee specified in clause 7 (where ‘Service Fee’ is specified);

“Minimum Period ”
the period specified in clause 7;

“Nature of your Business”
your business as specified in clause 7 and “the normal course of your Business” and “your Business” shall be construed accordingly;

“Notice Period”
the period specified in clause 7;

“Notification”
a form prepared by you and delivered to us in accordance with condition 4.1 or 4.3 and “notify” and “notified” in relation to a Debt will mean respectively include and included in a Notification;

“Obligor”
any party to any Security Document (other than the Security Trustee or, as the case may be, us or any other member of our Group) (and “Obligors” shall be construed accordingly);

“Offer”
our offer to you of a trade finance facility specified in clause 4 of the Facility Agreement;

“our Group”
us, our subsidiaries, any holding company of ours, any other subsidiaries of such holding company and “member of our Group” shall be construed accordingly (where “holding company” or a “subsidiary” means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006);

“Outstanding”
in relation to any Debt purchased by us, that Debt remaining unpaid (in whole or in part);

“Partnership”
a partnership other than an LLP;

“the Policy”
the policy of credit insurance described in condition 13.3;

“Prepayment”
a payment by us to you on account of the Purchase Price of any Debt before its Collection Date up to the Prepayment Percentage of the amount of the Debt as notified;

“Prepayment Percentage”
the percentage specified in clause 7;

“Purchase Price”
the price payable by us for a Debt determined in accordance with condition 7.1;

“Receiver”
means a receiver or receiver and manager or administrative receiver of the whole or any part of the Charged Assets;

“Recourse”
our right to require that you repurchase forthwith any Outstanding Debt at a repurchase price equivalent to the amount of that Debt as notified;

“Recourse Period”
in relation to any Debt, a period of the length specified clause 7;

“Refactoring Charge”
In respect of an Outstanding Debt at the end of the Recourse Period for that Debt, an amount equal to the percentage specified in clause 7 of the notified value of that Outstanding Debt;

“Related Rights”
in respect of any Debt all of the following:
(i) all your rights under the Contract of Sale other than your rights to any Goods;
(iv) the benefit of all guarantees indemnities insurances and securities given to or held by you;
(iii) all cheques, bills of exchange and other instruments held by or available to you;
(iv) the right to possession of all ledgers computer data records and documents on or by which any Debt is recorded or evidenced;
(v) any Goods the subject of a Contract of Sale returned or rejected by the Debtor or repossessed by you; and
(vi) our right to any other Goods under condition 5.4; and/or
(vii) any interest to which you become entitled in relation to the Debt as a result of any statutory enactment or any rule or regulation of government;

“Reserved Debts”
as defined in the Trade Finance Agreement;

“Secured Party”
means the Security Trustee, us, a Receiver, any Delegate or any other member of our Group who is or may from time to time be (by executing a Security Trust Deed of Adherence) a party to the Security Trust Deed (and “Secured Parties” shall be construed accordingly);

“Security”
any mortgage, charge (whether fixed or floating, legal or equitable), pledge, lien, assignment by way of security or other security interest securing any obligation of any person or any other agreement or arrangement having a similar effect;

“Security Documents”
the Finance Documents specified in clause 7 of the Facility Agreement together with any other Security that we and/or the Security Trustee may require from time to time, to be entered into by you or any other person in respect of, inter alia, your Obligations;

“Security Trust Deed”
the security trust deed entered into by the Security Trustee, us (whether as an original party or by way of a Security Trust Deed of Adherence), any other member(s) of our Group (in each case whether as an original party or by way of a Security Trust Deed of Adherence) governing the appointment of the Security Trustee as security trustee and security agent for and on behalf of the Secured Parties in connection with, inter alia, the Agreement, the Facility and the Security Documents;

“Security Trust Deed of Adherence”
as defined in the Security Trust Deed; being supplemental the Security Trust Deed and which binds the executing party as a party to the Security Trust Deed and as a Secured Party;

“Security Trustee”
the person who is a party to the Facility Agreement and defined as ‘the Security Trustee’;

“Service Fee”
the fee specified in clause 7;

“Trade Finance Agreement”
(this defined term applies if and whilst you have a Trade Finance Facility with 4TL) the trade finance facility agreement between you, 4TL and the Security Trustee relating to the Trade Finance Facility;

“Trade Finance Facility”
(if any) the trade finance facility granted to you by 4TL;

“Trade Finance Standard Conditions”
(this defined term applies if and whilst you have a Trade Finance Facility with 4TL) 4TL’s standard conditions for factoring specified in the Trade Finance Facility Agreement;

“Unapproved”
in relation to any Debt, not Approved;

“Writing”
any form of communication that is accessible so that it may be recorded in a permanent form and used at any time after it has been made and “written” is to be construed accordingly;

“your Obligations”
all your present and future monetary and other actual or contingent or prospective obligations incurred at any time to us and/or the other Secured Parties (or any of them) whether arising under the Agreement or otherwise and whether arising in or by contract tort restitution or assignment.

The Facility

3.1 The maximum credit available to you under the Facility at any one time during the term of the Facility is the Funding Limit.

3.2 References in the Agreement to Debts shall mean to the Debts to be Included only.

3.3 The Facility, each and every other factoring facility (provided to you by any other member(s) of our Group) and the Trade Finance Facility shall be co-terminus. Accordingly, the valid termination by us of the Agreement will also be deemed to be valid termination of each and every factoring agreement relating to such other factoring facility(ies) and the Trade Finance Agreement and vice versa. The references in this clause to the Trade Finance Facility and the Trade Finance Agreement apply if and whilst you have a Trade Finance Facility with 4TL.

3.4 The Facility is a secured facility. Your Obligations from time to time shall be secured by the Security comprising the Secured Documents.

3.5 If the event that Limited Recourse applies in the Agreement then, if we require you to do so, you will take out and effect the Policy on terms to and with an insurer to our satisfaction and you shall promptly pay all premium(s) arising under.

3.6 The additional terms (if any) specified in clause 7 against the heading ‘Additional Terms’ shall apply in the Agreement.

3.7 You must at all time during the term of the Facility ensure that your terms of trade/ arrangements with Debtors include the Terms of Payment specified in clause 7.

The Notification

4.1 You will promptly notify us in such form and manner as we may from time to time require of every Debt relating to Goods Delivered which has not previously been notified or offered to us under clause 3 as soon as the invoice for that Debt is raised.

4.2 With every Notification you will furnish us with such documents evidencing the Debts included in the Notification as we may require by oral or written notice to you.

4.3 You will notify us separately of every Debt in respect of which you are unable to give us every warranty and undertaking included in the Standard Conditions and on that separate Notification you will mark clearly the reason that you are unable to do so.

Ownership of Debts and Goods

5.1 You will promptly at our request at any time (and at your expense including any applicable stamp duty) complete, execute and deliver to us a formal written assignment of any Debt purchased by us (each such assignment being an “Assignment”) and give written notice of that assignment (in such form as we may direct) to the Debtor by whom that Debt is owing.

5.2 You will hold in trust for us and separately from your own property any Debt purchased or purported to be purchased by us of which the ownership shall fail to be transferred effectively to us.

5.3 You will hold in trust for us and keep separate from your own property any Goods in your possession at any time which are included in the Related Rights. You will mark all such Goods plainly with our name as owner and deal with any such Goods as we may require. The next sentence in this clause applies if and whilst you have a Trade Finance Facility with 4TL. This clause 5.3 shall not apply to Goods which are subject to a pledge in favour of the Security Trustee in connection with the Trade Finance Facility.

5.4 We shall have the right by oral or written notice to you to have transferred to us by you the ownership of any Goods (other than those referred to in condition 5.3) which are the subject of a Contract of Sale and of which the ownership has not passed to the Debtor. You will deal with such Goods as required by us. The next sentence in this clause applies if and whilst you have a Trade Finance Facility with 4TL. This clause 5.4 shall not apply to Goods which are subject to a pledge in favour the Security Trustee in connection with the Trade Finance Facility.

Approved and Unapproved Debts

6.1 Every Debt purchased by us will rank as Approved (except any Related Rights included in it) upon our notifying to you that it is Approved, save that the following Debts will be Unapproved:
(a) any Debt which has become and continues to be Unapproved under condition 6.2(a) or under condition 6.3;
(b) any Debt included in a separate notification under condition 4.3; and
(c) any Debt which at any time, when aggregated with all other Debts owing by the same Debtor at that time, is and continues to be outside a Credit Limit established under condition 6.2(c).

For the purposes of condition 6.1(c) Debts will be deemed to fall into a Credit Limit or be outside a Credit Limit (as the case may be) in the order in which they are respectively notified.

6.2 We may at any time (without giving any reason) with immediate effect:
(a) by oral or written notice to you classify any Debt as Unapproved;
(b) by written notice to you classify any Unapproved Debt (except any Related Rights included in it) as Approved; and/or
(c) by written notice to you at any time establish a Credit Limit in relation to any Debtor or increase an established Credit Limit or reduce (including a reduction to nil) any established Credit Limit and any such increase(s).

6.3 Any Approved Debt, which remains Outstanding at the end of its Recourse Period or is at any time the subject of legal proceedings for its recovery or is at any time the subject of a breach of any representation, warranty or undertaking given by you to us, will then immediately and automatically rank as Unapproved without the need for notice or any other formality.

6.4 You undertake not to disclose to the Debtor or any other party the status of any Debt as Approved or Unapproved or the amount of or the existence or absence of any Credit Limit/ Concentration Limit.

The Purchase Price and your Accounts with us

7.1 The Purchase Price of every Debt purchased by us shall be equivalent to the amount payable by the Debtor according to the Contract of Sale giving rise to that Debt after deducting from that amount any discount or other allowance allowed or allowable by you to the Debtor and the Discount Charge and any other fees or charges payable under this Agreement (including, without limitation, the Limited Recourse Discount Charge, if applicable, the Service Fee (having strict regard to and any other such charges) in respect of that Debt. The next sentence in this clause applies if and whilst you have a Trade Finance Facility with 4TL. For the avoidance of doubt the Agreed Reserve (as defined in the Trade Finance Agreement) (if any) of that Debt is not a deduction for this purpose.

7.2 Subject to conditions 7.3, 7.4 and 17.2:
(a) (strictly subject to condition 7.2(c)) at any time after the Business Day on which we receive a Notification we may make a Prepayment in respect of any Debt included in that Notification, and should we make a Prepayment in respect of any Debt which has not formally been notified to you as an Approved Debt, then that Debt shall be deemed Approved and shall be governed by the terms of the Agreement (including, without limitation, the representations, warranties and covenants contained herein);
(b) we shall pay to you the Purchase Price of any Debt purchased by us (less any Prepayment made in respect of it) on its Collection Date;
(c) (The next sentence in this clause applies if and whilst you have a Trade Finance Facility with 4TL) where an Agreed Reserve applies to a Debt referred to in condition 7.2(a) and we make a Prepayment in that regard then conditions 7.10 and 7.11 shall apply; and
(d) (The next sentence in this clause applies if and whilst you have a Trade Finance Facility with 4TL) where an Agreed Reserve applies to a Debt referred to in condition 7.2(b) and the same has not (with 4TL’s express prior written consent) been paid to 4TL under conditions 7.10 and 7.11 (and hence no Prepayment has been made in respect of that Debt) then condition 7.12 shall apply.

We shall debit to the Current Account the amount of every payment made in accordance with this condition.

7.3 We shall not be obliged to make any Prepayment:
(a) before all the Security Documents specified in clause 7 have been completed to our satisfaction; or
(b) whilst any other ‘pre-commencement’ condition contained in clause 7 and/or the Offer remains unsatisfied.

7.4 We shall not be obliged to make any payment to you at any time in excess of the balance in your favour on the Available Funds Account at that time or if the effect of that payment would be that:
(a) the debit balance on the Current Account would exceed the Funding Limit at that time; or
(b) the total of Prepayments made in respect of Outstanding Debts owing by any one Debtor would exceed the Concentration Limit applicable to that Debtor.

7.5 Unless otherwise agreed by us at your request all our payments to you shall be made to you by CHAPS and you will pay to us our standard charge for such payments as notified by us to you from time to time.

7.6 We may debit to the Current Account the amount of any of the monetary liabilities included in your Obligations and apply any such amount in the discharge of any amount payable by us to you. For this purpose, we may make a reasonable estimation of any of your Obligations the amount of which cannot be immediately ascertained. At any time without the requirement of notice or other formality we may combine any two or more accounts held by us in your name. Where (i) any such monetary liability is in a currency other than that of the account to which it is to be debited or (ii) accounts held in different currencies are to be combined (whether under this condition or under condition 17.4(b) then for any such transaction we shall be entitled to apply the middle spot rate of exchange quoted in London by our bankers at the time of the debit or combination.

7.7 You will pay or repay to us upon our demand:
(a) any Prepayment made in respect of an Approved Debt upon such Debt becoming Unapproved; or
(b) any amount by which debit balance on the Current Account at any time exceeds either the Funding Limit specified in clause 5.13 or the Approved Funding at that time; and
(c) any amount paid to you by us in respect of any Debt to the extent that payment by the Debtor or any guarantor of the Debt is subsequently recalled for any reason (including, without limitation, under the law of the country of the payer or by reason of any decision of a court or tribunal of competent authority in that country).

7.8 We shall make available to you by such means as we consider appropriate (and which may include by way of a web based on-line browser):
(a) statements of your accounts with us; and
(b) except while you are our agent for the purpose described in condition 7.7(a), details of all Outstanding Debts and an analysis of their age.

7.9 In the absence of any manifest error or any error in law:
(a) every such account detail and analysis shall be deemed to be correct and binding on you except for any error of which you advise us within fourteen days of its despatch;
(b) for the purpose of determining the aggregate amount of the monetary liabilities included in your Obligations at any time you agree to be bound by a certificate signed by our company secretary and/or our auditors.

7.10 This clause applies if and whilst you have a Trade Finance Facility with 4TL. Where (in accordance with the Trade Finance Facility) we are instructed by 4TL on your behalf to pay Prepayments (in whole or in part) to 4TL in satisfaction of the applicable your Obligations (as defined in the Trade Finance Agreement) (in whole or in part) you hereby irrevocably and unconditionally approve and authorise us to make such payments and we shall have no liability to you in respect of the same.

7.11 This clause applies if and whilst you have a Trade Finance Facility with 4TL. Where (in accordance with the Trade Finance Facility) we are notified of the existence of any Reserved Debts we shall be deemed to have been irrevocably and unconditionally instructed by 4TL on your behalf and you to pay any Prepayments (in whole or in part) relating to the Reserved Debts in an amount equal to the Agreed Reserve (if any) of those Reserved Debts to 4TL in satisfaction of the applicable your Obligations (as defined in the Trade Finance Agreement) in respect of the same and you hereby irrevocably and unconditionally approve and authorise us to make such payments and we shall have no liability to you in respect of the same.

7.12 This clause applies if and whilst you have a Trade Finance Facility with 4TL. If notwithstanding the irrevocable and unconditional instructions referred to in conditions 7.10 and 7.11 we (provided we have the express prior written consent of 4TL to not make such payment(s)) do not pay Prepayments (in whole or in part) to 4TL in satisfaction of the applicable your Obligations (as defined in the Trade Finance Agreement) (in whole or in part) then, to the extent not paid (the “Outstanding Agreed Reserve”), then we shall be deemed to have been irrevocably and unconditionally instructed by 4TL on your behalf and you to pay any Purchase Price (in whole or in part) relating to the Reserved Debts in an amount equal to the Outstanding Agreed Reserve (if any) of those Reserved Debts to 4TL in satisfaction of the applicable your Obligations (as defined in the Trade Finance Agreement) in respect of the same and you hereby irrevocably and unconditionally approve and authorise us to make such payments and we shall have no liability to you in respect of the same.

Charges

8.1 Any amount debited to the Current Account (except in respect of credit notes issued by you or in relation to our exercise of Recourse) shall be treated as a Prepayment. For administrative convenience we may debit the Purchase Price to the Current Account before deduction of any Discount Charge (or any other amounts to be deducted under condition 7.1) and we may thereafter calculate and debit the Discount Charges to the Current Account at such time or times as we consider requisite. We may debit to the Current Account such other amounts to be deducted as soon as they are ascertained by us.

8.2 You will pay to us (or we may debit to the Current Account):
(a) a charge equivalent to the administrative cost to us from time to time of our dealing with cheques and other instruments of payment returned unpaid;
(b) all Disbursements.

8.3 You shall pay to us (or we may debit to the Current Account) the Arrangement Fee specified in clause 7 of the Facility Agreement. This shall be payable in full on the date of the Facility Agreement.

8.4 You shall pay to us (or we may debit to the Current Account) the Service Fee. If the total Service Fees received by us in any calendar month starting at Commencement shall be less than the Minimum Monthly Service Fee then you shall pay to us an amount equal to the shortfall forthwith.

8.5 If the Agreement is terminated for any reason prior to the expiry of the Notice Period following the end of the Minimum Period, you shall pay to us the Early Termination Fee.

8.6 If Limited Recourse applies, you shall pay to us (or we may debit to the Current Account) the Limited Recourse Annual Fee specified in clause 7 of the Facility Agreement. This shall (unless and to the extent waived by the operation of the Facility Agreement) be paid by you (or so debited by us to the Current Account) on each anniversary of the date of the Facility Agreement.

8.7 The Discount Charges have been determined in accordance with the circumstances prevailing at the time of the date of the Offer Letter and if there should at any time be any increase in the cost of funding to us or any other change in circumstances that may affect the cost of our providing finance for you then in any such event we may by notice to you make consequential increases in the Discount Charges to take effect immediately upon such notice.

8.8 If at any time the debit balance on the Current Account at any time exceeds either the Funding Limit or the Approved Funding at that time, we shall be entitled to increase the Discount Charge by such amount as we consider necessary but by no less than 3% (three percent).

8.9 In respect of each Outstanding Debt at the end of the Recourse Period where we have exercised Recourse for that Debt under condition 13, you shall pay to us (or we may debit to the Current Account) the Refactoring Charge for that Debt.

8.10 We shall be entitled to make a reasonable charge for any costs and expenses incurred by us and/or the Security Trustee (including but not limited to any management time expended by us and/or the Security Trustee) by reason of or in any way connected with:
(a) any work that you ask us to do that is not provided for in the Agreement;
(b) the negotiation and preparation, execution, amendment, extension, alteration, preservation, enforcement and redemption of the Facility and/or the Finance Documents (or any of them);
(c) formally assigning any Debt under condition 5.1; and/or
(d) any task which we consider requisite for the reconciliation of your records with ours, for the protection of our and/or the Security Trustee’s security or the perfection of our title to the Debts.

8.11 All our charges are quoted in the Agreement exclusive of any Value Added Tax.

8.12 If we determine that compliance with any law or regulation would: (i) create or increase the cost to us or any member of our Group of purchasing Debts and/or operating the Facility; and/or (ii) reduce the rate of our return on our or such other member of our Group’s overall capital (the “Increased Costs”), then you shall from time to time on demand pay all amounts sufficient to indemnify us or such other member of our Group against the Increased Costs that in our opinion are attributable to our purchasing Debts and/or operating the Facility.

Indemnity

9.1 You shall indemnify and keep indemnified us, on demand from and against all Losses which we and/or any other member of our Group and/or the Security Trustee suffers, sustains or incurs directly or indirectly arising from, in connection with or relating to: (i) us purchasing Debts and/or or operating the Facility; (ii) the occurrence of any Event of Default; (iii) you breaching any provisions of the Finance Documents (or any of them); (iv) us and/or the Security Trustee enforcing our/ its rights under the Finance Documents (or any of them); and/or (v) you paying us and/or the Security Trustee in a currency other than sterling (in which case such Losses shall be to put us/ the Security Trustee in the position had we/ the Security Trustee received such monies in sterling and in this regard we/ the Security Trustee shall be entitled to apply the middle spot rate of exchange quoted in London by our bankers at the time of the payment).

Invoices in a Foreign Currency

10.1 If the Debts to be Included include Debts arising from Contracts of Sales with Debtors situated outside the United Kingdom and we shall have agreed in Writing to your invoicing those Debtors otherwise than in sterling:
(a) we shall calculate the Purchase Price of every Debt represented by an invoice expressed in a currency other than sterling by using the spot selling rate quoted by our bankers on the Collection Date of the Debt; and
(b) for the purpose of calculating the charges under condition 8 in respect of any such Debt and making a provisional entry of its Purchase Price in our records we may apply such selling rate quoted on the date of the Notification of the Debt and make any requisite adjustment to that entry after the Collection Date.

10.2 You undertake to indemnify and keep indemnified us from and against any additional loss and expense incurred by us in the collection or attempted collection of any Debt represented by an invoice expressed in a currency other than sterling and of the conversion of the currency of the amount received by us in payment of the Debt and we shall be entitled to debit the Current Account with all bank charges and commission incurred by us in such collection or attempted collection.

Sales Ledger Administration and Collection of Debts

11.1 We shall have the sole right to enforce payment of and collect any Debt so long as we are the owner of it or it is held by you in trust for us and to institute defend or compromise proceedings in respect of any such Debt in such manner and upon such terms as we may think fit. For such purposes we may use your name and (whether or not you are our agent under condition 11.7) you will co-operate to the fullest extent at your expense in any such enforcement collection or proceedings including the production of such documents and the giving of such evidence as may be necessary for such enforcement or collection or proceedings.

11.2 Except during the time in which you are our agent for the purposes described in condition 11.7(a) you will not collect or attempt to collect any Debt.

11.3 Unless we shall have appointed you as our agent under condition 11.7(a) you will ensure that:
(a) on the Business Day next following the Commencement a notice is sent to every Debtor by whom any Debt purchased by us is then owing; and
(b) every invoice representing a Debt purchased by us and issued after the Commencement bears a prominent and legible notice,
stating, in each case that the Debt has been purchased by and is payable only to us. Every such notice shall be in a form specified by us.

11.4 You will deliver promptly upon its receipt to us or, if we so require, direct to our bank account as specified by us (and meanwhile hold in trust for us) all the identical monies, cheques and other instruments of payment (duly endorsed where necessary to effect collection) received by you in or on account of payment of any Debt.

11.5 We may appropriate any payment or other benefit received from or credit granted to a Debtor in or on account of the discharge of any Approved Debt owing by that Debtor in priority to any Unapproved Debt so owing in spite of any different appropriation by the Debtor.

11.6 You undertake to give immediate instructions to any banker or other person with whom you maintain an account to pay to us or direct to our bankers the proceeds of any credit transfer, relating to any Debt purchased by us, which shall be received in such account. You will furnish our bankers with such instructions and/or indemnity as they may require in order that they may effect collection of any such cheques made payable to you which are not transferable.

11.7 We may by written notice to you appoint you as our agent for either or both of the purposes of:
(a) maintaining and administering the accounts of Debtors; and
(b) sending statements and demands to Debtors and of enforcing payment of Debts,
and you will accept any such appointment.

11.8 You undertake in the event of an appointment under condition 11.7:
(a) to act promptly and efficiently at your expense in carrying out the tasks for which you have been appointed as our agent in accordance with any directions which we may give to you from time to time;
(b) to retain on our behalf all records and documents on or by which any Debts purchased by us are recorded or evidenced until the full discharge of all your Obligations or any earlier delivery to us of such records or documents upon our demand; and
(c) not to hold yourself out as our agent for any purpose other than the tasks for which you have been appointed as our agent in condition 11.7 nor to hold yourself out as our agent for any purposes except for the period during which the agency remains in effect; and
(d) immediately to give to every Customer, by which any Debt is owing upon the date of that appointment, such notice and to ensure that every invoice issued by you after that bears such prominent and legible notice in each case as is considered requisite by us for the agency.

11.9 We may at any time terminate your appointment as agent for either or both the purposes for which you have been appointed as our agent by written or oral notice to you and, upon such termination, we will immediately send to every Debtor by whom any Debt, purchased by us, is then owing or becomes owing such further notice as we consider to be requisite for the termination of the agency.

11.10 So long as you are our agent for the purpose described in clause 11.7(a) you will furnish us in Writing with the following:
(a) by the 15th (fifteenth) day (or such other day as we may direct) of each month and at such other times as we may require by oral or written notice to you:
(i) a list of Debts Outstanding on the last day of the previous month (or such other day as we may specify in Writing) analysed by reference to the dates on which the Debts are due for payment;
(ii) full details of all Debts in respect of which the Debtor fails to accept in full the Goods or the invoice for them and of the reasons for such failure;
(iii) a list of all your creditors and amounts owing to them analysed by reference to the dates on which those amounts are due for payment; and
(iv) such other information relating to your financial affairs as we may at any time request; and

(b) a reconciliation of the ledger on which the Debts are recorded by you with any copy of our records of the same sent by us to you within seven days of your receipt of that copy.

Failure of Debtors to accept Goods or Invoice, Credit Notes and Credit Balances

12.1 You undertake that, if in spite of the warranties given by you in condition 15 a Debtor disputes its liability to pay the full amount of any Debt as notified less any discount allowable in accordance with the relevant Contract of Sale or if the Debtor refuses to accept the Goods or the invoice for any reason, you will;
(a) immediately inform us of all the circumstances of the dispute or refusal;
(b) use your best endeavours promptly to settle such dispute and procure acceptance of the Goods and invoice; and
(c) promptly perform any remaining further or continuing obligations under the relevant Contract of Sale.

12.2 Upon or at any time after any Event of Default occurring, or at any other time if you fail to perform your obligations under condition 12.1, then we shall have the right (but shall not be bound) ourselves, at your expense, to settle or compromise any such dispute on such terms as we may think fit and/or to perform any such further or continuing obligations.

12.3 You will be bound by anything done or omitted to be done by us under condition 12.2 including any resulting reduction in the Purchase Price of any Debt.

12.4 Upon the Commencement you will furnish us with a copy of every credit note issued before the Commencement relating to any Debt then Outstanding. Thereafter you will deliver to us promptly a copy of each credit note which you issue to any Debtor.

12.5 You irrevocably authorise us to make payment in settlement of or on account of any credit balance appearing on a Debtor’s account in our records at any time however it may have arisen.

Recourse

13.1 We shall be entitled to exercise Recourse as follows:
(a) in respect of any Debt included in a separate Notification under condition 4.3 or any other Unapproved Debt, as soon as or at any time after it shall have been notified or, if later, upon or after its becoming Unapproved;
(b) in respect of any Approved Debt, on its becoming Unapproved under condition 6.2(a) or 6.3 or any earlier Insolvency Proceedings in relation to the Debtor by which the Debt is owing;
(a) in respect of any Debt which the Debtor claims to be unable to pay owing to rules or regulations of any Government or civil commotion or the circumstances in the territory in which the Debtor is situated, at any time after the event giving rise to the claim;
(b) in respect of any Debt comprising solely discount or other deduction wrongly claimed or deducted by the Debtor, as soon as we become aware of the claim or deduction.

13.2 We may exercise Recourse by written notice to you or by debiting the repurchase price to the Current Account. We shall remain the owner of every Debt in respect of which we shall exercise Recourse until the repurchase price has been fully discharged either by your payment of it to us or by our applying it in the discharge of any amount payable by us to you.

13.3 The following conditions 13.3(a) to 13.3(c) (inclusive) will apply only if it is specified in clause 7 that Limited Recourse is to apply:
(a) Subject to your compliance with all your Obligations under the Agreement we shall:
(i) in respect of a Debt purchased by us, treat any payment which may be made by the Insurer to us in settlement of a claim under the Policy as a payment in or on account of settlement of that Debt by a Debtor; and
(ii) provided that the Insurer does not seek repayment of such payment from us, thereafter to the extent of that payment by the Insurer refrain from exercising our right of Recourse in respect of that Debt.

(b) For the avoidance of doubt our obligations under condition 13.3(a):
(i) shall only apply to the extent of any payment made to us by the Insurer in settlement of a claim under the Policy and we may (in our absolute discretion and without giving any reason) decide whether or not to accept the determination of the Insurer as to the validity of any such claim;
(ii) shall cease immediately upon the occurrence of an Event of Default; and
(iii) shall not constitute a waiver of our rights against the Debtor or an election not to seek payment from the Debtor.

(c) You agree that:
(i) we may (in our absolute discretion and without giving any reason) decide whether or not to accept the determination of the Insurer as to the validity of any such claim; and
(ii) we shall not in any way be liable to you if the Insurer declines to settle any claim in full on the grounds of any deficiency on our part or for any other reason.
(iii) Notwithstanding the above conditions in 13.3 you will accept the deduction determined by the Insurer which is currently the higher of £2,000 or 30% of the net invoice amount on Approved Covered Debts which total up to £20,000 (in certain circumstances Approved Covered Debts below £20,000 may be subject to deduction of the higher of £2,000 or 10% of the net invoice amount) . For Approved Covered Debts which total over £20,000 the higher of £2,000 or 10% of the net invoice amount

(d) You undertake to comply with all instructions given by us from time to time in respect of Debts purchased by us and which are subject to Limited Recourse.

Limitation of liability

14.1 Notwithstanding anything stated elsewhere to the contrary, our liability to you for any loss or damage arising from, in connection with or relating to our operation of the Facility shall be limited to the amount of actual direct losses attributable to our gross negligence, wilful default or fraud arising out of our operation of the Facility. We shall not be liable for punitive, special, incidental, indirect, consequential losses or damages (including loss of profits and loss of reputation) even if we have been advised of or could reasonably have foreseen the possibility of such losses or damages.

14.2 Neither we nor any other member of our Group nor the Security Trustee will be liable for any Losses suffered, sustained or incurred directly or indirectly by you and/ or anyone else arising from, in connection with or relating to any ambiguity in instructions received from you (or on your behalf) or any delay, loss in transit, error in translation, omission, variation, damage, mutilation, interruption or other error arising in the transmission or delivery or otherwise of any message, letter or other communication, document, drafts or payments howsoever made or received or otherwise in connection with the Facility.

14.3 Neither we nor any other member of our Group nor the Security Trustee will be liable for any Losses suffered, sustained or incurred directly or indirectly by you and/ or anyone else arising from, in connection with or relating to us not purchasing a Debt, us notifying you that a Debt is Unapproved, the limits and restriction set and/or applied by us in operating the Facility and/ or an amendment to and/or the cancellation or termination of the Facility Agreement, the Offer and/or these Standard Conditions.

Warranties and Undertakings

15.1 Every Notification (except any separate notification in accordance with condition 4.3 to the extent stated on such Notification) will be deemed to constitute a warranty in relation to every Debt included in it that:
(a) the Goods and the invoice for them have been Delivered and the Debt has arisen from a Contract of Sale entered into by you in the normal course of your Business being a Contract of Sale which:
(i) provides for payment to be made in the currency of a state or territory shown in clause 5.6 (or such other currency as we may approve in Writing) on terms not more liberal than those described in clause 5.6;
(ii) is governed by English law or another law approved by us in Writing; and
(iii) is otherwise as approved by us;
(b) you have performed all your obligations to the Debtor and the Debtor is obliged to accept the Debt and the invoice for it as a legally binding obligation of the Debtor to pay the full amount as notified of the Debt without any deduction, set-off or counter-claim or any claim for release of liability and, if the Debtor is in liquidation or bankruptcy, the liquidator or trustee (as the case may be) will accept proof of debt for the amount as notified;
(c) the Debt is free from all trusts, charges, liens and other encumbrances including (without limitation) any right or interest of any of your suppliers to or in the Debt or the Goods to which it relates;
(d) you have no obligations to the Debtor other than under any Contract of Sale and you have no agreement with the Debtor for retrospective discounts, rebates or otherwise whereby the amount of the Debt may be reduced except in accordance with the Contract of Sale;
(e) the Debtor has an established place of business and is not an Associate; and
(f) there is no restriction on the assignment of the Debt contained in the Contract of Sale.

15.2 You hereby warrant and represent to us that:
(a) (if you are a company) that you are duly incorporated and validly existing under the laws of the place of your incorporation;
(b) you have the power to own your assets and carry on your Business as it is now conducted;
(c) you have the power to enter into, deliver and perform, and you have taken all necessary action to authorise your entry into, delivery and performance of, the Finance Documents and the transactions contemplated by them;
(d) no limit on your powers will be exceeded as a result of the funding (to you) or grant of security (by you or any other person) contemplated by the Finance Documents; and
(e) your obligations under the Finance Documents are legal, valid, binding and enforceable.

15.3 You undertake in addition to all other undertakings given by you in the Standard Conditions:
(a) not to vary or attempt to vary any Contract of Sale giving rise to any Debt purchased by us after it has been notified;
(b) to keep proper books and records of account and to make appropriate entries in them to show the sale to us of the Debts purchased by us;
(c) promptly to pay all taxes and carriage and freight charges for which you are liable in relation to any Debt or the Contract of Sale giving rise to it and to effect any insurance required by such Contract of Sale and to pay the premium and to make any claim arising under;
(d) upon our first written demand, to pay to us the amount of any Debt which remains unpaid after its Recourse Period so that your liability under this undertaking may be enforced against you as principal debtor without the requirement of any prior demand on the Debtor by whom such Debt is payable;
(e) without our or the Security Trustee’s prior written consent, not to create any mortgage, charge or other encumbrance or any trust which affects or may affect any of your assets or rights in your undertaking;
(f) without our or the Security Trustee’s prior written consent, not to assign or create any charge over any of your rights or benefits under the Agreement nor to delegate any of your responsibilities under it;
(g) not to enter into any agreement for the factoring or discounting or otherwise for the sale of any Debts except with us (and entry into any such agreement by any of your Associates will be deemed to be a breach of this undertaking) and, if we should so require by written notice to you, to procure that any Associate will enter into a factoring or invoice discounting agreement with us on terms and conditions similar to those contained in the Agreement;
(h) to indemnify us against all claims against us by any Debtor (save any claim arising solely from our own default) and/ or against all Losses incurred by us and/or any other Secured Party at any time and arising from or in any way connected with:
(i) our and/or the Security Trustee entering into or enforcing, exercising or protecting our rights under the Agreement or any other Finance Document;
(ii) enforcing or attempting to enforce payment of any Debt or settling or compromising any dispute with or claim by a Debtor or any other person in relation to any Debt;
(iii) the securing by us of any release of any Debt from any trust charge or other encumbrance;
(iv) any indemnity which we or any other member of our Group may be required to give to our bankers in connection with the collection on our behalf of any cheque or other instrument made payable to you;
(v) any breach by you of any of your Obligations;
(i) to use your best endeavours as required by us to procure for us a refund of any value added tax included in any bad or doubtful debt in any case in which the regulations of H M Customs and Excise for the recovery of such value added tax apply and for that purpose to accept a reassignment to you of that Debt and to hold any value added tax recovered and any other recoveries in relation to that Debt in trust for us and separate from your own property;
(j) to comply with all procedures for the operation of the Agreement which we may make known to you from time to time and to assist us and the Security Trustee in every way to safeguard our and the other Secured Parties’ interests under the Agreement and to procure that all your employees and agents and, if you are a company, all your directors and other officers and, if you are an LLP, all your members so assist us and the Security Trustee.

Information and your Accounts and Records

16.1 You warrant that you have disclosed to us every fact or matter known to you which you knew or should reasonably have known might influence any decision of ours as to the entry into the Agreement or as to its terms or as to its continuation or as to the acceptance of any person as surety for any of your Obligations or as to the establishment or cancellation of any Credit Limit or the classification of any Debt as Approved or Unapproved including (but not limited to):
(a) any mortgage or charge or other encumbrance on any of your undertaking, property and rights and any trust in relation to any of your assets;
(b) any change or proposed change in your constitution or management or the ownership or control of you or your Business;
(c) the name and address of any person who is an Associate; and
(d) any Insolvency Proceedings threatened or pending against you.
You undertake to disclose to us promptly any such fact or matter arising in the duration of the Agreement.

16.2 We shall be entitled at any time to inspect, to verify and/or (at your expense) to take copies of any of your records or documents on or by which any Debt is recorded or evidenced and to take possession of any such records or documents included in the Related Rights. We shall have the right to inspect any records or documents relating to your financial position or the results of your operations. For such purpose any of our officers or authorised agents may enter upon any premises at which you carry on Business or at which any of your property is situated at any time during business hours being not less than 8 (eight) hours in any Business Day. You undertake to keep us informed at all times of the situation of all such records and documents.

16.3 You will furnish us with a copy of your audited accounts for each year or other financial accounting period ending in the duration of the Agreement within 4 (four) months of the end of such period or later as we may allow. You will prepare and furnish us with such management accounts of your Business and at such times as we may from time to time prescribe. You will prepare and furnish us with all other Financial Information (in any) at such times as we may from time to time prescribe.

16.4 You authorise us:
(a) to furnish your bankers and auditors with such information in our possession relating to your affairs and the Debts purchased by us as any of them may require at any time; and
(b) at any time to obtain from any of your bankers and auditors any information in their possession which we may then require regarding the state of your accounts or your financial affairs.

16.5 You warrant and undertake that you have given your existing bankers and auditors, and will give to any banker and auditor whom you may in future appoint, the requisite authority for the purpose of condition 16.4(b) and that, if we so require, you will instruct your auditors to report at your expense on any audited accounts direct to us.

Insolvency, Default and Termination

17.1 On or at any time after the occurrence of any of the following events we shall have the right to terminate the Agreement immediately by notice to you:
(a) for a consecutive period of 28 days you fail to notify us of any Debts or, for the same period, ask us not to Approve any Debts;
(b) you breach or threaten to breach any of the provisions of this Agreement, any other Finance Document, any other agreement with any other member of our Group or any related guarantee, indemnity or security;
(c) any Insolvency Proceedings relating to you;
(d) if you are a company or an LLP a resolution of your members for your winding up or, if you are a company, LLP or partnership, its dissolution;
(e) the seizure of the whole or any part of your income or assets under any execution legal process or distress for rent or the making or threat of a garnishee order nisi or other attachment on any Debt owing to you;
(f) the occurrence of any of the events referred to conditions 17.1(b), 17.1(c), 17.1(d) or 17.1(i) in relation to any Obligor or (if an individual) or the death of that person or the termination or attempted termination of any Security Document to which they are a party;
(g) any breach or termination of any covenant or undertaking given by any person in reliance on which we entered into or continued the Agreement or the withdrawal or attempted withdrawal of any waiver or release or agreement as to priorities in our favour in respect of any security right over any of your assets;
(h) the cessation of your Business or your threat to cease your Business or any material change in the nature or volume of your Business;
(i) your inability to pay your debts, if you are a company or an LLP, as defined in section 123 of the Act or, if you are not a company or an LLP, as defined in section 268 of the Act;
(j) we and/or the Security Trustee consider that there has been a material adverse change in your Business, assets, financial condition or operating performance or that your financial position has deteriorated to the point at which repayments of any amount due or to become due from you to us may be put at risk;
(k) any alteration in your ownership, control or constitution which we consider material;
(m) any breach of any warranty or undertaking given by you in the Agreement or of any of your Obligations which we consider to be material or any such breach not considered by us to be material which is not remedied by you within 2 (two) Business Days of our request to you so to do;
(n) any moneys due from you to us are not paid within 5 (five) Business Days after they become due;
(o) if any of your directors or partners cease to be a director or partner and is not replaced within 3 (three) months by an individual acceptable to us;
(p) any other factoring facility you have with any other member of our Group terminating;
(q) (This provisions applies if and whilst you have a Trade Finance Facility with 4TL) the Trade Finance Facility terminating
(r) (This provisions, to the extent that it refers to the trade Finance Facility) applies if and whilst you have a Trade Finance Facility with 4TL) an Event of Default (as defined in: (i) such other factoring agreement(s) and/or (ii) the Trade Finance Agreement) occurring;
(s) your being in breach of any other financial facility;
(t) any borrowing by you becoming due for repayment before its stated maturity date owing to your breach of any of the conditions of that borrowing;
(u) any security interests on or over your assets becomes enforceable;
(v) all or any part of any Finance Document becomes invalid, unlawful, unenforceable, terminated, disputed or ceases to be effective or to have full force and effect;
(w) you or any other party to a Finance Document (other than us) repudiates or evidences an intention to repudiate the Finance Documents or any of them; and/or
(x) if any person who waived, gave consent, priority or released in our favour its rights to any Debt withdraws such waiver, consent, priority or release or otherwise asserts a claim to any Debt, its Related Rights, or the proceeds thereof.

17.2 Upon or at any time after an Event of Default has occurred (whether or not we shall have exercised our right to terminate the Agreement) we may exercise any one or more of the following rights:
(a) Recourse in respect of all Debts then Outstanding (whether Approved or Unapproved) but so that each such Debt shall continue to belong to us until the repurchase price of all of them has been fully discharged by you;
(b) to withhold all payments to you until the full discharge of all your Obligations or to reduce the Prepayment Percentage to such percentage as we may decide;
(c) the immediate repayment by you on our demand of all Prepayments previously made together with all monetary liabilities included in your Obligations;
(d) increase the Discount Charges by such amount as we consider necessary but by no less than 3% (three percent);
(e) to be paid by you (or to debit to the Current Account) the full cost and expense of any exercise of our rights under condition 16.2 including (without limitation) the appointment of accountants or other professional experts for those purposes;
(f) to require that no credit note will be issued by you without our prior consent;
(g) cancel any unutilised part of the Funding Limit whereupon it shall immediately be cancelled;
(h) declare that any amount outstanding in respect of the Facility and/or your Obligations be immediately due and payable, whereupon they shall become immediately due and payable; or
(i) declare the Security Documents (or any of them) to be enforceable.

17.3 If you should see fit to issue any credit note at any time after we have exercised our rights under condition 17.2(f) you will promptly advise us of that credit note in such manner and with such documents (including the original of the credit note) as we may require. Upon our giving consent to the issue of any credit note of which the original is in our possession we shall despatch it (at your expense) to the Debtor.

17.4 Upon the occurrence of any Insolvency Proceedings in relation to you without any notice or other formality:
(a) notice under condition 5.4 will be deemed to have been given to you to be effective on the day before such occurrence in respect of all Goods then appropriated to any Contract of Sale remaining in your possession; and
(b) all accounts held by us in your name (other than any memorandum account) will be deemed to have been combined.

17.5 Upon or after the occurrence of an Event of Default, and whilst such event continues, we shall be entitled to apply the proceeds of all Debts received by us as follows before any further payment is made to you under this Agreement:
(a) first, against any Prepayment made but not recovered by us;
(b) second, to the payment of all fees and expenses incurred or to be incurred by us (and for this purpose we may make a reasonable estimate of any contingent or at that time unascertained expense);
(c) thirdly, to the payment of any and all of your other liabilities and obligations to us on any account, whether pursuant to this Agreement or any other agreement whatsoever.

17.6 Upon or after the occurrence of an Event of Default, to compensate us for the additional expense of collection of Debts which may arise after such an event, we shall be entitled to a charge, additional to that which is provided in condition 8.2(a), equivalent to 15% (fifteen percent) of the notified amount of any Debt then Outstanding and of every Debt subsequently becoming Outstanding. The maximum amount that we can charge as a result of an Event of Default occurring is the higher of either 15% (fifteen percent) of the notified amount of any Debt then Outstanding or the total of the Monthly Minimum Service Fees remaining on the Factoring Agreement between the occurrence of the Event of Default and the maturity of the Agreement including the Notice Period.

17.7 You unconditionally confirm your agreement that the fees and additional charges referred to above are a fair and reasonable pre-estimate of our likely loss of fees, costs and expenses that we would have otherwise received but for the occurrence of an Event of Default, and that as such our fees and additional charges are not penalties.

Constitution and Plurality

18.1 If you are more than one person you agree that:
(a) references to “you” or “your” in condition 17.1 include references to any one or more of you or to events relating to any one or more of you;
(b) all undertakings and warranties given by you in the Agreement and the acknowledgements, appointment and authorities given and made by you in your Facility Agreement shall be deemed to have been given, incurred and made by every one of you;
(c) all your Obligations shall be joint and several and we may release or compromise with any one or more of you without affecting our rights against the others; and
(d) we may (but shall not be obliged to) treat any notice to or demand on any one or more of you as notice to or demand on you all and any notice to us by any of you as notice by you all.

18.2 If you are a partnership all the persons who have signed the Facility Agreement warrant that all the present persons comprising your partnership are named in the Agreement and you undertake to procure that any partner admitted by you will execute such documents as we may require to bind him to the terms of the Agreement.

18.3 Except as provided in condition 17, the Agreement and all its terms shall remain in full force and effect in spite of any change in your constitution.

Notices

19.1 Any written notice or demand required or permitted to be given or made by us to or on you shall be validly served or made:
(a) if handed, if you are a company, to any of your officers or, if you are an LLP, to any of your members or, if you are a partnership, to any partner or, if you are a sole trader, to you; or
(b) if delivered or sent by first class prepaid post to your address stated in the Offer Letter or to any address at which you carry on business or, if you are a company or an LLP, to your registered office; or
(c) if transmitted by facsimile or e-mail to any facsimile number or e-mail address of you made known to us by you at any time.
Any such notice or demand, if served personally, shall take effect upon its service and, if sent by post, shall take effect within 2 (two) Business Days of the time of its posting and, if transmitted by facsimile, shall take effect upon its transmission.

19.2 Any notice required or permitted to be given by you to us shall be validly given if sent to us at our registered office by prepaid first class post and shall be effective upon its receipt by us.

General Provisions

20.1 If any act or event would be required to be performed or be due to take place according to the Agreement on or within a period ending on a day which is not a Business Day the act or event shall be deemed to be performed or to take place on or by the next Business Day.

20.2 If any provision of the Agreement shall be held to be invalid or unenforceable no other provision shall be affected and all such other provisions shall remain in full force and effect.

20.3 We shall be entitled to rely upon any act done or any letter or document signed or any communication sent to us by facsimile or by e-mail by any person purporting to act or sign or send on your behalf despite any defect in or absence of any authority of such person.

20.4 No person other than you or us or any other member of our Group or the Security Trustee will have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement. This clause does not affect any rights or remedy of any person which exists or is available otherwise than under that Act. Each other member of our Group (including without limitation 4TL and every other factoring funder) shall be entitled to enforce any provisions of the Agreement applicable to it against you as if it was a party to the Agreement.

20.5 Our rights under the Agreement shall not be affected in any way by any grant by us of any time or indulgence to you or any other person nor by any delay or failure in our exercise of any option under the Agreement or otherwise.

20.6 We shall be entitled to vary the terms of the Agreement by giving you written notice of the proposed variation. If we do not receive your acknowledgement of such variation within 7 (seven) days you will be deemed to have accepted the variation.

20.7 We may assign or transfer all or any part of our rights and/or obligations under the Agreement and/or under any related guarantee, indemnity or other security. You shall, immediately upon being requested so to do by us, enter into (and procure that any other person who is a party to any Finance Document shall enter into) any documentation that we may require to effect such assignment or transfer. You agree that we may execute any such documentation as your attorney. You may not assign any of your rights or transfer any of your rights or obligations under the Agreement.

20.8 The Agreement shall be construed and take effect in accordance with English law and you hereby submit to the jurisdiction of the English courts without prejudice to our right to bring proceedings in the courts of any country in which you carry on business.

20.9 Except as specifically provided for in the Agreement termination of the Agreement (including termination in accordance with condition 17) shall not affect the rights and obligations of either of us in relation to any transaction having its inception before the date of termination or any Debt in existence on that date and such rights and obligations shall remain in full force and effect until duly extinguished. All licences and authorities given to us by you in the Agreement are irrevocable and shall continue after the termination of the Agreement until all your Obligations have been fully discharged.

Chelmsford Office
Head Office

Second Floor, Steeple House, Church Lane, Chelmsford, Essex, CM1 1NH
01245 377 032 info@4syte.co.uk

London Office

224 Linen Hall, 162-168 Regent Street, London W1B 5TE
01245 377 032 info@4syte.co.uk

Leeds Office

17 Park Place, Leeds, West Yorkshire LS1 2SJ
01134 033 302 info@4syte.co.uk

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