Exhibit 7(3)
LOAN AGREEMENT
THIS AGREEMENT is made the 21st day of May 2010.
BETWEEN
1. BERKELEY TECHNOLOGY LIMITED of ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Lender");
2. EB TRUSTEES LIMITED in their capacity as Trustees of the Berkeley
Technology Limited 1990 Employee Share Option Trust (the
"Trustees" or the "Borrower") of Whiteley ▇▇▇▇▇▇▇▇, ▇▇▇ Street,
St. Helier, Jersey, Channel Islands.
WHEREAS
A. Trustees are the successor Trustees of the Berkeley Technology
Limited 1990 Employee Share Option Trust (the "Trust") created by a
Settlement dated 16 February 1990 made between Lender and the
predecessor trustees, in accordance with that certain Deed of
Appointment Retirement and Indemnity dated 12 February 2010.
B. Under the terms of Clause 9.11 of the said Trust, the Trustees are
empowered inter alia to borrow money for any purpose connected with the
trusts of the Trust and to provide security for any loan in accordance
with the terms of that clause.
C. The Lender has agreed to loan the sum specified in the Schedule
hereto to the Trustees on the terms and conditions herein contained and
it is anticipated that the Lender may make further loans in the future
on the terms and conditions hereof.
D. The Trustees enter this Agreement in their capacity as Trustees of
the Trust. NOW THIS AGREEMENT WITNESSETH as follows:-
1. The Loan
The Trustees hereby acknowledge their indebtedness to the
Lender in the sum specified in Schedule 1 hereto (the "Loan")
subject to the terms and conditions of this Agreement.
2. Purpose of the Loan
The Loan shall be applied by the Trustees in acquiring
ordinary shares in the Lender as investments for the benefit
of and to implement the obligations of the Trust.
3. Interest
Until repayment of the Loan in full the Borrower will pay to
the Lender by way of interest on the Loan or on any part or
parts thereof for the time being remaining due a sum
equivalent to the net annual income (after payment of all
fees, costs and expenses incurred by the Trust) received by
the Trustees payable in two installments on 1 April and 1
November in each year.
4. Repayment of the Loan
(i) The Loan shall be repayable upon whichever of the
following shall first occur:- (a) the tenth
anniversary of the making of the Loan; or
(b) the receipt by the Trustees of payments made on the
exercise of options granted by the Trustees over
investments acquired with the proceeds of the Loan IT
BEING UNDERSTOOD AND AGREED that where the amount so
received is less than the Loan the said amount shall
be applied in reduction of the Loan with the balance
remaining repayable as herein provided.
(ii) It is hereby expressly understood and agreed that the
Trustees' liability in respect of the Loan shall be
limited to the assets from time to time of the Trust
held by them and against which the Lender shall only
be entitled to have recourse. It is further
understood and agreed that the Lender will accept
from the Trustees in full and final settlement and
full discharge of the Loan the assets of the Trust
from time to time notwithstanding that the value
thereof may be less than the Loan.
5. Further Loans
The Trustees covenant with the Lender to repay to the Lender
all such future loans as may be made by the Lender to the
Trustees for the purposes of the Trust on the same terms and
conditions mutatis mutandis as are herein contained and as if
such future loan were "the Loan" as herein defined subject to
any such future loan being evidenced by way of written
memorandum in the form set out in Schedule II hereof executed
by the Trustees.
6. Security
The Trustees hereby agree that if so required by the Lender
the Trustee shall by way of security for the Loan assign,
pledge mortgage or otherwise as reasonably required by the
Lender provide security over investments or other assets
acquired by the Trustees with the proceeds of the Loan or any
part thereof (to the extent that the Trustees have not already
granted options thereover in accordance with the terms of the
Trust).
7. Counterpart Execution
This Agreement may be executed in any number of counterparts
and by both the parties hereto on separate counterparts each
of which when executed and delivered shall constitute an
original but all such counterparts shall together constitute
one and the same instrument.
8. Law
This Agreement shall be governed by and construed in
accordance with the laws of the Island of Jersey.
Schedule I
Amount of Loan:
Up to US$161,532.60
Date of Loan:
May 2010
Schedule II
MEMORANDUM
Pursuant to the terms of an Agreement dated May 2010 made between (1)
Berkeley Technology Limited and (2) EB TRUSTEES LIMITED in their capacity
as trustees of the Berkeley Technology Limited 1990 Employee Share Option
Trust, (the "Trustees"), the Trustees in such capacity hereby acknowledge
and agree as follows:-
1. In addition to any existing indebtedness, their indebtedness to the
Lender in the sum of ("the New Loan").
2. The New Loan is made on .
IN WITNESS WHEREOF the Trustees have executed this memorandum
on [Date] .
SIGNED for and on behalf of
EB TRUSTEES LIMITED
By ______________________________
Name: ______________________________
IN WITNESS WHEREOF: the parties hereto have executed this Agreement the day
and year first above written.
SIGNED for and on behalf of
BERKELEY TECHNOLOGY LIMITED
by
Director Director/Secretary
THE COMMON SEAL of
EB TRUSTEES LIMITED as Trustees of the Berkeley Technology Limited 1990 Employee
Share Option Trust was hereunto affixed
in the presence of:-
Authorised Signatory Authorised Signatory