EXHIBIT (b)(1)
CONFORMED COPY
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MULTICURRENCY REVOLVING FACILITIES AGREEMENT
$500,000,000
FACILITY AGREEMENT
dated 27th March 2001
for
THE SAGE GROUP PLC
and certain subsidiaries
arranged by
LLOYDS TSB BANK Plc
with
LLOYDS TSB BANK PLC
acting as Agent
CMS Cameron McKenna
Mitre House
160 Aldersgate Street
London EC1A 4DD
(02)20 7367 3000
(02)20 736 200
(FMO/0X2244.09442)
Table of Contents
1. DEFINITIONS AND INTERPRETATION................................................ 1
2. THE FACILITIES................................................................ 16
3. PURPOSE....................................................................... 16
4. CONDITIONS OF UTILISATION..................................................... 17
5. UTILISATION................................................................... 19
6. OPTIONAL CURRENCIES........................................................... 20
7. REPAYMENT..................................................................... 23
8. PREPAYMENT AND CANCELLATION................................................... 23
9. FACILITY A TERM-OUT OPTION.................................................... 26
10. INTEREST..................................................................... 28
11. INTEREST PERIODS............................................................. 29
12. CHANGES TO THE CALCULATION OF INTEREST....................................... 30
13. FEES......................................................................... 31
14. TAX GROSS UP AND INDEMNITIES................................................. 33
15. INCREASED COSTS.............................................................. 37
16. OTHER INDEMNITIES............................................................ 38
17. MITIGATION BY THE LENDERS.................................................... 39
18. COSTS AND EXPENSES........................................................... 40
19. GUARANTEE AND INDEMNITY...................................................... 41
20. REPRESENTATIONS.............................................................. 44
21. INFORMATION UNDERTAKINGS..................................................... 49
22. FINANCIAL COVENANTS.......................................................... 50
23. GENERAL UNDERTAKINGS......................................................... 53
24. EVENTS OF DEFAULT............................................................ 59
25. CHANGES TO THE LENDERS....................................................... 63
26. CHANGES TO THE OBLIGORS...................................................... 66
27. ROLE OF THE AGENT AND THE ARRANGER........................................... 68
28. CONDUCT OF BUSINESS BY THE FINANCE PARTIES................................... 73
29. SHARING AMONG THE LENDERS.................................................... 73
30. PAYMENT MECHANICS............................................................ 76
31. SET-OFF...................................................................... 78
32. NOTICES...................................................................... 78
33. CALCULATIONS AND CERTIFICATES................................................ 80
34. PARTIAL INVALIDITY........................................................... 80
35. REMEDIES AND WAIVERS......................................................... 80
36. AMENDMENTS AND WAIVERS....................................................... 81
37. COUNTERPARTS................................................................. 81
38. GOVERNING LAW................................................................ 82
39. ENFORCEMENT.................................................................. 82
SCHEDULE 1 The Original Parties................................................... 83
PART I The Original Obligors...................................................... 83
PART II The Original Lenders...................................................... 84
SCHEDULE 2 Conditions precedent................................................... 85
PART I Conditions precedent to initial Utilisation................................ 85
PART II Conditions precedent required to be delivered by an Additional Obligor... 87
SCHEDULE 3 Requests............................................................... 89
PART I Utilisation Request........................................................ 89
PART II Selection Notice Applicable to a Term-Out Loan............................ 90
SCHEDULE 4 Mandatory Cost formulae................................................ 91
SCHEDULE 5 Form of Transfer Certificates.......................................... 93
SCHEDULE 6 Form of Accession Letter............................................... 96
SCHEDULE 7 Form of Resignation Letter............................................. 97
SCHEDULE 8 Form of Compliance Certificate......................................... 98
SCHEDULE 9 Existing Security...................................................... 99
SCHEDULE 10 LMA Form of Confidentiality Undertaking............................... 100
SCHEDULE 11 Timetables............................................................ 105
SCHEDULE 12 Material Subsidiaries................................................. 107
SCHEDULE 13 Existing Priority Debt................................................ 110
THIS AGREEMENT is dated 27th March 2001 and made between:
(1) THE SAGE GROUP PLC, registration number 2231246 (the "Company");
(2) THE SUBSIDIARIES of the Company listed in Part I of Schedule 1 as original
borrowers (together with the Company the "Original Borrowers");
(3) THE SAGE GROUP PLC as original guarantor (the "Original Guarantor");
(4) LLOYDS TSB BANK PLC (the "Arranger");
(5) THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 as lenders (the
"Original Lenders"); and
(6) LLOYDS TSB BANK PLC as agent of the Lenders (the "Agent").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"Accession Letter" means a document substantially in the form set out in
Schedule 6 (Form of Accession Letter).
"Acquisition" means the acquisition of any interest in the share capital
(or equivalent) or in the business or undertaking or assets constituting a
separate business, line of business or undertaking of any company or other
person (including, without limitation, any partnership or joint venture).
"Additional Borrower" means a company which becomes an Additional Borrower
in accordance with Clause 26 (Changes to the Obligors).
"Additional Guarantor" means a company which becomes an Additional
Guarantor in accordance with Clause 26 (Changes to the Obligors).
"Affiliate" means, in relation to any person, a Subsidiary of that person
or a Holding Company of that person or any other Subsidiary of that
Holding Company.
"Agent's Spot Rate of Exchange" means the Agent's spot rate of exchange
for the purchase of the relevant currency with the Base Currency in the
London foreign exchange market at or about 11:00 a.m. on a particular day.
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"Authorisation" means an authorisation, consent, approval, resolution,
licence, exemption, filing or registration.
"Availability Period" means:
(a) in relation to Facility A, the period from and including the date of
this Agreement to and including the date which is the Facility A
Term Date; and
(b) in relation to Facility B, the period from and including the date of
this Agreement to and including the date one month before the Final
Maturity Date.
"Available Commitment" means, in relation to a Facility, a Lender's
Commitment under that Facility minus:
(a) the Base Currency Amount of its participation in any outstanding
Loans under that Facility; and
(b) in relation to any proposed Utilisation, the Base Currency Amount of
its participation in any Loans that are due to be made under that
Facility on or before the proposed Utilisation Date, other than that
Lender's participation in any Loans that are due to be repaid or
prepaid on or before the proposed Utilisation Date.
"Available Facility" means, in relation to a Facility, the aggregate for
the time being of each Lender's Available Commitment in respect of that
Facility.
"Base Currency" or "$" means U.S. Dollars.
"Base Currency Amount" means, in relation to a Loan, the amount specified
in the Utilisation Request delivered by the Borrower for that Loan (or, if
the amount requested is not denominated in the Base Currency, that amount
converted into the Base Currency at the Agent's Spot Rate of Exchange on
the date which is three Business Days before the Utilisation Date)
adjusted to reflect any repayment, prepayment, consolidation or division
of the Loan.
"Board" means the Board of Governors of the Federal Reserve System of the
USA (or any successor).
"Borrower" means an Original Borrower or an Additional Borrower unless it
has ceased to be a Borrower in accordance with Clause 26 (Changes to the
Obligors).
"Break Costs" means the amount (if any) by which:
(a) the interest which a Lender should have received for the period from
the date of receipt of all or any part of its participation in a
Loan or Unpaid Sum to the last day of the current Interest Period in
respect of that Loan or Unpaid Sum had the principal amount or
Unpaid Sum received been paid on the last day of that Interest
Period;
exceeds:
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(b) the amount which that Lender would be able to obtain by placing an
amount equal to the principal amount or Unpaid Sum received by it on
deposit with a leading bank in the Relevant Interbank Market for a
period starting on the Business Day following receipt or recovery
and ending on the last day of the current Interest Period.
"Business Day" means a day (other than a Saturday or Sunday) on which
banks are open for general business in London and:
(a) (in relation to any date for payment or purchase of a currency other
than euro) the principal financial centre of the country of that
currency; or
(b) (in relation to any date for payment or purchase of euro) any TARGET
Day.
"Commitment" means a Facility A Commitment or Facility B Commitment.
"Compliance Certificate" means a certificate substantially in the form set
out in Schedule 8 (Form of Compliance Certificate) in form and substance
satisfactory to the Agent.
"Confidentiality Undertaking" means a confidentiality undertaking
substantially in a recommended form of the LMA as set out in Schedule 10
(LMA Form of Confidentiality Undertaking) or in any other form agreed
between the Borrower and the Agent.
"Conversion Date" means the date notified by the relevant Borrower to the
Agent on which a Facility A Loan is to convert into a Term-Out Loan
pursuant to Clause 9.1 (Request for Term-Out Loans).
"Debt" has the meaning given to it in Clause 22 (Financial Covenants).
"Default" means an Event of Default or any event or circumstance specified
in Clause 24 (Events of Default) which would (with the expiry of a grace
period, the giving of notice, the making of any determination under the
Finance Documents or any combination of any of the foregoing) be an Event
of Default.
"EBITDA" has the meaning given to it in Clause 22 (Financial Covenants).
"Employee Plan" means an "employee pension benefit plan" as defined in
Section 3(2) of ERISA, other than a Multiemployer Plan, which is subject
to ERISA and maintained for, or under which contributions are made on
behalf of (or to which there is an obligation to contribute on behalf of),
employees of any Obligor or any of its ERISA Affiliates, and each such
plan for the five year period immediately following the latest date on
which any Obligor or any of its ERISA Affiliates maintained, contributed
to or had an obligation to contribute to such plan.
"Environmental Laws" means all laws (statutory common law or otherwise)
from time to time regulating the carrying on of any process or activity on
the premises and any emissions from and all waste produced by such process
or activity with any chemicals or substances relating to the same further
relating to
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health and safety, the workplace, the environment or the provision of
energy from time to time in force.
"Environmental Licence" means any permit, licence, authorisation, consent
or other approval required by or given pursuant to any Environmental Laws.
"ERISA" means, at any date, the US Employee Retirement Income Security Act
of 1974 (as amended) and the regulations promulgated and rulings issued
thereunder, all as the same shall be in effect at such date.
"ERISA Affiliate" means each person (as defined in Section 3(9) of ERISA)
that is a member of any Obligor's controlled group, or under common
control with any Obligor, within the meaning of Section 414(b), (c), (m)
or (o) of the Internal Revenue Code.
"ERISA Event" means any of the following events:
(a) any reportable event, as defined in Section 4043(c) of ERISA and the
regulations issued thereunder, with respect to an Employee Plan, as
to which the PBGC has not by regulation waived the requirement of
Section 4043(a) of ERISA that it be notified within thirty days of
the occurrence of such event (provided that a failure to meet the
minimum funding standard of Section 412 of the Internal Revenue Code
or Section 302 of ERISA shall be a reportable event for the purposes
of this sub-paragraph (a) regardless of the issuance of any waivers
in accordance with Section 412(d) of the Internal Revenue Code);
(b) the requirements of subsection (1) of Section 4043(b) of ERISA
(without regard to subsection (2) of such Section) are met with
respect to a contributing sponsor, as defined in Section 4001(a)(13)
of ERISA, of an Employee Plan and an event described in paragraph
(9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Employee Plan
within the following 30 days;
(c) the filing under Section 4041(c) of ERISA of a notice of intent to
terminate any Employee Plan or the termination of any Employee Plan
under Section 4041(c) of ERISA;
(d) the institution of proceedings under Section 4042 of ERISA by the
PBGC for the termination of, or the appointment of a trustee to
administer, any Employee Plan;
(e) the failure to make a required contribution to any Employee Plan
that would result in the imposition of an encumbrance under Section
412 of the Internal Revenue Code or Section 302 of ERISA; or
(f) an engagement by any Obligor (or any party having any relationship
to an Obligor specified in Section 3(14)(E), (F), (G), (H) or (I) of
ERISA or by any Employee Plan) in a non-exempt prohibited
transaction within the meaning of Section 4975 of the Internal
Revenue Code or Section 406 of ERISA.
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"Event of Default" means any event or circumstance specified as such in
Clause 24 (Events of Default).
"Existing Facilities" means the $150,000,000 multicurrency revolving
credit facility dated 28 April 1999 provided by Lloyds TSB Bank plc and
other financial institutions to the Company (as amended and restated).
"Existing Priority Debt" means the Priority Debt in existence on the date
hereof, as set out in Schedule 13, as the same may be extended, renewed or
replaced (or successively extended, renewed or replaced) in whole or in
part, provided that any such extension, renewal or replacement shall be
without increase in the principal amount of such Priority Debt unpaid at
the date hereof and any Security securing such Priority Debt on the date
hereof shall not be extended to any other property or assets of the
Company or any Material Subsidiary not subject to such Security on the
date hereof.
"Facility" means Facility A or Facility B.
"Facility A" means the revolving loan facility with term out option made
available under this Agreement as described in Clause 2 (The Facilities).
"Facility A Commitment" means:
(a) in relation to an Original Lender, the amount in the Base Currency
set opposite its name under the heading "Facility A Commitment" in
Part II of Schedule 1 (The Original Parties) and the amount of any
other Facility A Commitment transferred to it under this Agreement;
and
(b) in relation to any other Lender, the amount in the Base Currency of
any Facility A Commitment transferred to it under this Agreement,
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to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility A Loan" means a loan made or to be made under Facility A
(including a Term-Out Loan) or the principal amount outstanding for the
time being of that loan.
"Facility A Term Date" means the date which is 364 days after the date of
this Agreement.
"Facility B" means the revolving loan facility made available under this
Agreement as described in Clause 2 (The Facilities).
"Facility B Commitment" means:
(a) in relation to an Original Lender, the amount in the Base Currency
set opposite its name under the heading "Facility B Commitment" in
Part II of Schedule 1 (The Original Parties) and the amount of any
other Facility B Commitment transferred to it under this Agreement;
and
(b) in relation to any other Lender, the amount in the Base Currency of
any Facility B Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Facility B Loan" means a loan made or to be made under Facility B or the
principal amount outstanding for the time being of that loan.
"Facility Office" means the office or offices notified by a Lender to the
Agent in writing on or before the date it becomes a Lender (or, following
that date, by not less than five Business Days' written notice) as the
office or offices through which it will perform its obligations under this
Agreement.
"Fee Letter" means any letter or letters dated on or about the date of
this Agreement between the Arranger and the Company (or the Agent and the
Company) setting out any of the fees referred to in Clause 13 (Fees).
"Final Maturity Date" means the date which is five years after the date of
this Agreement.
"Finance Document" means this Agreement, the Syndication Side Letter, any
Fee Letter, any Accession Letter and any other document designated as such
by the Agent and the Company.
"Finance Party" means the Agent, the Arranger or a Lender.
"Financial Indebtedness" means, without double counting, any indebtedness
for or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or any similar
instrument;
(d) the amount of any liability in respect of any lease or hire purchase
contract which would, in accordance with GAAP, be treated as a
finance or capital lease;
(e) receivables sold or discounted (other than any receivables to the
extent they are sold on a non-recourse basis);
(f) any amount raised under any other transaction (including any forward
sale or purchase agreement) having the commercial effect of a
borrowing;
(g) any derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or price
(and, when calculating the value of any derivative transaction, only
the marked to market value shall be taken into account);
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(h) any counter-indemnity obligation in respect of a guarantee,
indemnity, bond, standby or documentary letter of credit or any
other instrument issued by a bank or financial institution; and
(i) the amount of any liability in respect of any guarantee or indemnity
for any of the items referred to in paragraphs (a) to (h) above
except that indebtedness owing by one member of the Group to another
member of the Group shall not be taken into account as Financial
Indebtedness.
"GAAP" means generally accepted accounting principles, standards and
practices from time to time in the United Kingdom or, where relevant in
relation to any member of the Group incorporated outside the United
Kingdom, other applicable jurisdiction.
"Group" means the Company and its Subsidiaries for the time being.
"Guarantor" means an Original Guarantor or an Additional Guarantor, unless
it has ceased to be a Guarantor in accordance with Clause 26 (Changes to
the Obligors).
"Holding Company" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"Information Memorandum" means the document in the form approved by the
Company concerning the Original Obligors which, at the Company's request
and on its behalf, is to be prepared in relation to this transaction and
distributed by the Arranger to selected financial institutions.
"Interest Payable" has the meaning given to it in Clause 22 (Financial
Covenants).
"Interest Period" means, in relation to a Loan, each period determined in
accordance with Clause 11 (Interest Periods) and, in relation to an Unpaid
Sum, each period determined in accordance with Clause 10.3 (Default
interest).
"Lender" means:
(a) any Original Lender; and
(b) any bank or financial institution which has become a Party in
accordance with Clause 25 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"LIBOR" means, in relation to any Loan:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or period of that
Loan) the arithmetic mean of the rates (rounded upwards to four
decimal
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places) as supplied to the Agent at its request quoted by the
Reference Banks to leading banks in the London interbank market,
as of the Specified Time on the Quotation Day for the offering of deposits
in the currency of that Loan and for a period comparable to the Interest
Period for that Loan.
"Loan" means a Facility A Loan or a Facility B Loan.
"LMA" means the Loan Market Association.
"Majority Lenders" means:
(a) if there are no Loans then outstanding, a Lender or Lenders whose
Commitments aggregate more than 662/3% of the Total Commitments (or,
if the Total Commitments have been reduced to zero, aggregated more
than 662/3% of the Total Commitments immediately prior to the
reduction); or
(b) at any other time, a Lender or Lenders whose participations in the
Loans then outstanding aggregate more than 662/3% of all the Loans
then outstanding.
"Mandatory Cost" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 4 (Mandatory Cost formulae).
"Margin" means, in respect of the period up to and including the date
which falls on the earlier of (i) six months after the Syndication Date
and (ii) nine months after the date of the first advance under this
Agreement, 0.75 per cent. per annum and, thereafter, the rate per annum
determined by reference to the ratio of Net Debt to EBITDA for the
Relevant Period ending on the date to which the relevant Compliance
Certificate was prepared as shown in the most recent Compliance
Certificate delivered together with the financial statements delivered
pursuant to Clause 21.1(c) (Financial Statements) received by the Agent,
such adjustment to take effect five Business Days after delivery of the
relevant Compliance Certificate, in accordance with the following table:
Ratio of Net Debt to EBITDA Margin (%p.a.)
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At or above 2.5:1 and at or below 3:1 0.75
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At or above 1.75:1 and less than 2.5:1 0.65
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Less than 1.75:1 0.55
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However, the Margin shall be 0.75% per annum while an Event of Default is
continuing and is unwaived, provided that immediately upon such Event of
Default being waived or remedied, the Margin shall revert to either the
level it held immediately prior to the occurrence of such Event of Default
or, if a
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Compliance Certificate has been delivered since the occurrence of such
Event of Default, such rate as would have applied by reference to that
Compliance Certificate were it not for the continuing Event of Default.
"Margin Stock" means margin stock or "Margin Security" within the meaning
of Regulations T, U and X.
"Market Disruption Event" has the meaning given to it in Clause 12.2(b)
(Market Disruption).
"Material Adverse Effect" means any effect which would be reasonably
likely to be materially adverse to the ability of the Company to perform
its payment or other material obligations under any of the Finance
Documents to which it is a party.
"Material Subsidiary" means any Subsidiary of which (itself or together
with its own Subsidiaries) by reference to the accounts most recently
delivered pursuant to clause 21 of this agreement accounts for at least 5%
of consolidated turnover, gross assets or PBIT of the Group for the period
or as at the last day of the period in respect of which such accounts have
been prepared (being, as of the date of this agreement, the companies
whose names are set out in Schedule 12 hereto).
"Month" means a period starting on one day in a calendar month and ending
on the numerically corresponding day in the next calendar month, except
that:
(a) subject to paragraph (c) below, if the numerically corresponding day
is not a Business Day, that period shall end on the next Business
Day in that calendar month in which that period is to end if there
is one, or if there is not, on the immediately preceding Business
Day;
(b) if there is no numerically corresponding day in the calendar month
in which that period is to end, that period shall end on the last
Business Day in that calendar month; and
(c) if an Interest Period begins on the last Business Day of a calendar
month, that Interest Period shall end on the last Business Day in
the calendar month in which that Interest Period is to end.
The above rules will only apply to the last Month of any period.
"Multiemployer Plan" means a multiemployer plan (as defined in Section
4001(a)(3) of ERISA) maintained or contributed to (or to which there is an
obligation to contribute) by any Obligor or any ERISA Affiliate, and each
such plan for the five year period immediately following the latest date
on which any Obligor or any of its ERISA Affiliates maintained,
contributed to or had an obligation to contribute to such plan.
"Net Debt" has the meaning given to it in Clause 22 (Financial Covenants).
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"Net Interest Payable" has the meaning given to it in Clause 22 (Financial
Covenants).
"Obligor" means a Borrower or a Guarantor.
"Optional Currency" means a currency (other than the Base Currency) which
complies with the conditions set out in Clause 4.3 (Conditions relating to
Optional Currencies).
"Original Financial Statements" means the audited consolidated financial
statements of the Group for the financial year ended 30th September 2000.
"Original Obligor" means an Original Borrower or an Original Guarantor.
"Participating Member State" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency in
accordance with legislation of the European Union relating to European
Monetary Union.
"Party" means a party to this Agreement and includes its successors in
title, permitted assigns and permitted transferees.
"PBGC" means the Pension Benefit Guaranty Corporation of the USA
established pursuant to Section 4002 of the ERISA or any entity succeeding
to all or any of its functions under ERISA.
"PBIT" has the meaning given to it in Clause 22 (Financial Covenants).
"Priority Debt" means collectively, but without duplication:
(a) all Debt of the Company secured by Security; and
(b) all Debt of all Subsidiaries
provided however that Priority Debt shall not include:
(i) Debt owed by one member of the Group to another member of the Group;
(ii) Debt of Subsidiaries of the Company which are also Guarantors;
(iii) any Existing Priority Debt;
(iv) any Debt as described in paragraph (b) above owed or incurred by a
company which becomes a Subsidiary after the date of this Agreement
provided that such Debt has been incurred before the acquisition of
such Subsidiary (and not in contemplation of it), such Debt has not
increased in contemplation of or since the acquisition of such
Subsidiary and provided that such Debt shall be taken into account
in calculating "Priority Debt" with effect from the date falling 6
months after the acquisition.
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"Qualifying Lender" has the meaning given to it in Clause 14 (Tax gross-up
and indemnities).
"Quotation Day" means, in relation to any period for which an interest
rate is to be determined:
(a) (if the currency is sterling) the first day of that period;
(b) (if the currency is euro) two TARGET Days before the first day of
that period; or
(c) (for any other currency) two Business Days before the first day of
that period,
unless market practice differs in the Relevant Interbank Market for a
currency, in which case the Quotation Day for that currency will be
determined by the Agent in accordance with market practice in the Relevant
Interbank Market (and if quotations would normally be given by leading
banks in the Relevant Interbank Market on more than one day, the Quotation
Day will be the last of those days).
"Reference Banks" means, in relation to LIBOR, the principal London
offices of the Agent, and such other banks as may be appointed by the
Agent in consultation with the Borrower.
"Regulation T" means Regulation T of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation U" means Regulation U of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulation X" means Regulation X of the Board as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Relevant Interbank Market" means the London interbank market.
"Relevant Period" has the meaning given to it in Clause 22 (Financial
Covenants).
"Repayment Dates" has the meaning given to it in Clause 9.3 (Repayment of
Term-Out Loans).
"Repeating Representations" means each of the representations set out in
Clause 20 (except for those set out in Clause 20.9 (b) (No default),
Clause 20.10 (No Misleading Information), Clause 20.11 (Financial
Statements) and Clause 20.14 (Material Subsidiaries)).
"Resignation Letter" means a letter substantially in the form set out in
Schedule 7 (Form of Resignation Letter).
"Rollover Loan" means one or more Loans:
(a) made or to be made on the same day that one or more maturing Loans
is or are due to be repaid;
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(b) the aggregate amount of which is equal to or less than the maturing
Loan(s) (unless it is more than the maturing Loan(s) solely because
it arose as a result of the operation of Clause 6.2 (Unavailability
of a currency));
(c) in the same currency as the maturing Loan(s) (unless it arose as a
result of the operation of Clause 6.2 (Unavailability of a
currency)); and
(d) made or to be made to the same Borrower for the purpose of
refinancing a maturing Loan(s).
"Screen Rate" means in relation to LIBOR, the British Bankers Association
Interest Settlement Rate for the relevant currency and period displayed on
the appropriate page of the Reuters screen. If the agreed page is replaced
or service ceases to be available, the Agent may specify another page or
service displaying the appropriate rate after consultation with the
Company and the Lenders.
"Security" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement or
arrangement having a similar effect.
"Selection Notice" means a notice substantially in the form set out in
Part II of Schedule 3 (Requests) given in accordance with Clause 11
(Interest Periods) in relation to a Term-Out Loan.
"Specified Time" means a time determined in accordance with Schedule 11
(Timetables).
"Subsidiary" means:
(a) (except for the purpose of Clause 22 (Financial Covenants) and the
preparation of consolidated financial statements) a subsidiary within
the meaning of section 736 of the Companies Act 1985; and
(b) (for the purpose of Clause 22 (Financial Covenants)), a subsidiary
undertaking within the meaning of section 258 of the Companies Act
1985.
"Syndication Date" means the date on which syndication of the Facilities
has been completed as specified in the Syndication Side Letter.
"Syndication Side Letter" means the letter dated on or about the date of
this Agreement from the Agent to the Company.
"TARGET" means Trans-European Automated Real-time Gross Settlement Express
Transfer payment system.
"TARGET Day" means any day on which TARGET is open for the settlement of
payments in euro.
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"Tax" means any tax, levy, impost, duty or other charge or withholding of
a similar nature (including any penalty or interest payable in connection
with any failure to pay or any delay in paying any of the same).
"Taxes Act" means the Income and Corporation Taxes Act 1988.
"Term-Out Loan" has the meaning given to it in Clause 9.1 (Request for
Term-Out Loans).
"Term-Out Loan Repayment Dates" means each date specified in Clause 9.3
(Repayment of Term-Out Loans) for the repayment of Term-Out Loan Repayment
Instalments.
"Term-Out Loan Repayment Instalments" means each instalment for payment of
the Term-Out Loans specified in Clause 9.3 (Repayment of Term-Out Loans).
"Total Commitments" means the aggregate of the Total Facility A
Commitments and the Total Facility B Commitments, being $500,000,000 at
the date of this Agreement.
"Total Facility A Commitments" means the aggregate of the Facility A
Commitments, being $250,000,000 at the date of this Agreement.
"Total Facility B Commitments" means the aggregate of the Facility B
Commitments, being $250,000,000 at the date of this Agreement.
"Transfer Certificate" means a certificate substantially in the form set
out in Schedule 5 (Form of Transfer Certificates) or any other form agreed
between the Agent and the Company.
"Transfer Date" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer Certificate;
and
(b) the date on which the Agent executes the Transfer Certificate.
"Unpaid Sum" means any sum due and payable but unpaid by an Obligor under
the Finance Documents.
"U.S. Dollars" means the lawful currency for the time being of the United
States of America.
"US Obligor" means an Obligor incorporated in the USA.
"Utilisation" means a utilisation of a Facility.
"Utilisation Date" means the date of a Utilisation, being the date on
which the relevant Loan is to be made.
"Utilisation Request" means a notice substantially in the form set out in
Part I of Schedule 3 (Requests).
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"VAT" means value added tax as provided for in the Value Added Tax Act
1994 and any other tax of a similar nature.
1.2 Construction
(a) Any reference in this Agreement to:
(i) "assets" includes present and future properties, revenues and rights
of every description;
(ii) the "European interbank market" means the interbank market for euro
operating in Participating Member States;
(iii) a "Finance Document" or any other agreement or instrument is a
reference to that Finance Document or other agreement or instrument
as amended or novated;
(iv) "indebtedness" includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
(v) a "person" includes any person, firm, company, corporation,
government, state or agency of a state or any association, trust or
partnership (whether or not having separate legal personality) or
two or more of the foregoing;
(vi) a "regulation" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law but if
not having the force of law, which is generally complied with by the
person to whom it is addressed) of any governmental,
intergovernmental or supranational body, agency, department or
regulatory, self-regulatory or other authority or organisation;
(vii) a provision of law is a reference to that provision as amended or
re-enacted; and
(viii) unless a contrary indication appears, a time of day is a reference
to London time.
(b) Section, Clause and Schedule headings are for ease of reference only.
(c) Unless a contrary indication appears, a term used in any other Finance
Document or in any notice given under or in connection with any
Finance Document has the same meaning in that Finance Document or
notice as in this Agreement.
(d) A Default (other than an Event of Default) is "continuing" if it has
not been remedied or waived and an Event of Default is "continuing" if
it has not been waived.
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1.3 Third Party Rights
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce or to enjoy the
benefit of any term of this Agreement.
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SECTION 2
THE FACILITIES
2. THE FACILITIES
2.1 The Facilities
Subject to the terms of this Agreement, the Lenders make available to the
Borrowers:
(a) a multicurrency revolving loan facility in an aggregate amount equal
to the Total Facility A Commitments with a term-out option; and
(b) a multicurrency revolving loan facility in an aggregate amount equal
to the Total Facility B Commitments.
2.2 Lenders' rights and obligations
(a) The obligations of each Lender under the Finance Documents are several.
Failure by a Lender to perform its obligations under the Finance Documents
does not affect the obligations of any other Party under the Finance
Documents. No Finance Party is responsible for the obligations of any other
Finance Party under the Finance Documents.
(b) The rights of each Lender under or in connection with the Finance Documents
are separate and independent rights and any debt arising under the Finance
Documents to a Lender from an Obligor shall be a separate and independent
debt.
(c) A Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance Documents.
3. PURPOSE
3.1 Purpose
(a) Each Borrower shall apply all amounts borrowed by it under Facility A and
Facility B towards (in the case of the Company only) the refinancing of its
Existing Facilities and (in the case of each Borrower) towards its general
corporate purposes, including, subject to Clause 23.8 (Acquisitions), the
making of Acquisitions. The Existing Facilities must be repaid in full
from the proceeds of Loan(s) made at first drawdown under this Agreement.
(b) No amount borrowed under the Facilities shall be applied in any manner that
may be illegal or contravene the provisions of Section 151 of the Companies
Act 1985 or where an Obligor is incorporated in a jurisdiction other than
England and Wales, any equivalent law in that other jurisdiction.
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3.2 Monitoring
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1 Initial Conditions Precedent
No Borrower may deliver a Utilisation Request unless the Agent has received
all of the documents and other evidence listed in Part I of Schedule 2
(Conditions precedent) in form and substance satisfactory to the Agent. The
Agent shall notify the Company and the Lenders promptly upon being so
satisfied.
4.2 Further conditions precedent
(a) The Lenders will only be obliged to comply with Clause 5.4 (Lenders'
participation) if on the date of the Utilisation Request and on the
proposed Utilisation Date:
(i) in the case of a Rollover Loan, no Event of Default is continuing or
would result from the proposed Loan and, in the case of any other
Loan, no Default is continuing or would result from the proposed Loan;
and
(ii) the Repeating Representations to be made by each Obligor are true in
all material respects.
(b) The Lenders will only be obliged to comply with Clause 6.3 (Change of
currency) if, on the first day of an Interest Period, no Default is
continuing or would result from the change of currency and the Repeating
Representations to be made by each Obligor are true in all material
respects.
4.3 Conditions relating to Optional Currencies
(a) A currency will constitute an Optional Currency in relation to a Loan if it
is either:
(i) euro, Sterling, Swiss Francs or Japanese Yen; or
(ii) not a currency referred to paragraph (i) of this Clause 4.3(a) but is
a currency which is readily available in the amount required and
freely convertible into the Base Currency in the Relevant Interbank
Market on the Quotation Day and the Utilisation Date for that Loan.
(b) If by the Specified Time the Agent has received a written request from the
relevant Borrower for a currency, the Agent will notify the Lenders of that
request by the Specified Time. Each Lender will notify the Agent by the
Specified Time if the requested currency is not readily available to it and
in such circumstances the relevant Lender will fund its proportion of the
relevant Loan in the Base Currency Amount. Based on any responses received
by the Agent by the Specified Time, the Agent will confirm to the relevant
Borrower by the Specified Time:
(i) which Lenders will advance in the requested currency and which, if
any, will advance in the Base Currency; and
-17-
(ii) the minimum amount (and, if required, integral multiples) for any
subsequent Utilisation in that currency.
(c) If the euro constitutes an Optional Currency at any time, a Loan will only
be made available in the euro unit or any other units of the euro agreed by
the Majority Lenders.
4.4 Maximum number of Loans
(a) A Borrower may not deliver a Utilisation Request if as a result of the
proposed Utilisation:
(i) more than 10 Facility A Loans would be outstanding; or
(ii) more than 15 Facility B Loans would be outstanding.
(b) A Borrower may not request that a Term-Out Loan be divided if, as a result
of the proposed division, more than 10 Facility A Loans would be
outstanding.
(c) Any Loan made by a single Lender under Clause 6.2 (Unavailability of a
currency) shall not be taken into account in this Clause 4.4.
4.5 Existing Facilities
The Company shall ensure that all amounts outstanding under its Existing
Facilities have been (or will, simultaneously with the drawing of the first
Utilisation, be) paid in full and that all outstanding commitments under
those facilities have been (or will, simultaneously with the drawing of the
first Utilisation, be) cancelled and, except as otherwise provided in the
Syndication Side Letter, any Security granted in respect of those
facilities has been (or will, simultaneously with the drawing of the first
Utilisation, be) discharged and released in whole.
-18-
SECTION 3
UTILISATION
5. UTILISATION
5.1 Delivery of a Utilisation Request
A Borrower may utilise a Facility by delivery to the Agent of a duly
completed Utilisation Request not later than the Specified Time.
5.2 Completion of a Utilisation Request
(a) Each Utilisation Request is irrevocable and will not be regarded as having
been duly completed unless:
(i) it identifies the Facility to be utilised;
(ii) the proposed Utilisation Date is a Business Day within the
Availability Period applicable to that Facility;
(iii) the currency and amount of the Utilisation comply with Clause 5.3
(Currency and amount);
(iv) the proposed Interest Period complies with Clause 11 (Interest
Periods);
(v) (in the case of a Term-Out Loan) the proposed Repayment Date
complies with Clause 9.3 (Repayment of Term-Out Loans); and
(vi) it specifies the account and bank (which must be in the principal
financial centre of the country of the currency of the Utilisation
or, in the case of euro, the principal financial centre of a
Participating Member State in which banks are open for general
business on that day or London) to which the proceeds of the
Utilisation are to be credited.
(b) Only one Loan may be requested in each Utilisation Request.
5.3 Currency and amount
(a) The currency specified in a Utilisation Request must be the Base Currency
or an Optional Currency.
(b) The amount of the proposed Loan must be:
(i) if the currency selected is the Base Currency, a minimum of $5,000,000
or, if less, the Available Facility; or
(ii) if the currency selected is an Optional Currency, the minimum amount
(or an integral multiple, if required) specified by the Agent pursuant
to paragraph (b)(ii) of Clause 4.3 (Conditions relating to Optional
Currencies) or, if less, the Available Facility.
-19-
5.4 Lenders' participation
(a) If the conditions set out in this Agreement have been met, each Lender
shall make its participation in each Loan available through its Facility
Office.
(b) The amount of each Lender's participation in each Loan will be equal to the
proportion borne by its Available Commitment to the Available Facility
immediately prior to making the Loan.
(c) The Agent shall notify each Lender of the amount, currency and the Base
Currency Amount of each Loan by the Specified Time.
6. OPTIONAL CURRENCIES
6.1 Selection of currency
(a) A Borrower (or the Company on behalf of a Borrower) shall select the
currency of a Loan:
(i) (in the case of an initial Utilisation) in a Utilisation Request; and
(ii) (afterwards in relation to a Term-Out Loan made to it) in a Selection
Notice
in each case by the specified time.
(b) If a Borrower (or the Company on its behalf) fails to issue a Selection
Notice in relation to a Term-Out Loan, it shall be deemed to have requested
that the Loan will remain denominated for its next Interest Period in the
same currency in which it is then outstanding.
(c) If a Borrower (or the Company on its behalf) issues a Selection Notice
requesting a change of currency and the first day of the requested Interest
Period is not a Business Day for the new currency, the Agent shall promptly
notify the Borrower and the Lenders and the Loan will remain in the
existing currency (with Interest Periods running from one Business Day
until the next Business Day) until the next day which is a Business Day for
both currencies, on which day the requested Interest Period will begin.
6.2 Unavailability of a currency
If before the Specified Time on any Quotation Day:
(a) the Agent has received notice from a Lender that the Optional Currency
requested is not readily available to it in the amount required; or
(b) a Lender notifies the Agent that compliance with its obligation to
participate in a Loan in the proposed Optional Currency would contravene a
law or regulation applicable to it,
the Agent will give notice to the relevant Borrower to that effect by the
Specified Time on that day. In this event, any Lender that gives notice
pursuant to this
-20-
Clause 6.2 will be required to participate in the Loan in the Base Currency
(in an amount equal to that Lender's proportion of the Base Currency Amount
or, in respect of a Rollover Loan, an amount equal to that Lender's
proportion of the Base Currency Amount of the maturing Loan that is due to
be repaid) and its participation will be treated as a separate Loan
denominated in the Base Currency during that Interest Period.
6.3 Change of currency
(a) If a Term-Out Loan is to be denominated in different currencies during two
successive Interest Periods:
(i) if the currency for the second Interest Period is an Optional
Currency, the amount of the Loan in that Optional Currency will be
calculated by the Agent as the amount of that Optional Currency
equal to the Base Currency Amount of the Loan at the Agent's Spot
Rate of Exchange at the Specified Time;
(ii) if the currency for the second Interest Period is the Base Currency,
the amount of the Loan will be equal to the Base Currency Amount;
(iii) (unless the Agent and the relevant Borrower agree otherwise in
accordance with paragraph (b) below) the relevant Borrower shall
repay the Loan on the last day of the first Interest Period in the
currency in which it was denominated for that Interest Period; and
(iv) (subject to Clause 4.2 (Further conditions precedent)) the Lenders
shall re-advance the Loan in the new currency in accordance with
Clause 6.5 (Agent's calculations).
(b) If the Agent and the relevant Borrower agree, the Agent shall:
(i) apply the amount paid to it by the Lenders pursuant to paragraph
(a)(iv) above (or so much of that amount as is necessary) in or
towards purchase of an amount in the currency in which the Term-Out
Loan is outstanding for the first Interest Period; and
(ii) use the amount it purchases in or towards satisfaction of the
relevant Borrower's obligations under paragraph (a)(iii) above.
(c) If the amount purchased by the Agent pursuant to paragraph (b)(i) above is
less than the amount required to be repaid by the relevant Borrower, the
Agent shall promptly notify such Borrower and such Borrower shall, on the
last day of the first Interest Period, pay an amount to the Agent (in the
currency of the outstanding Term-Out Loan for the first Interest Period)
equal to the difference.
(d) If any part of the amount paid to the Agent by the Lenders pursuant to
paragraph (a)(iv) above is not needed to purchase the amount required to be
repaid by the relevant Borrower, the Agent shall promptly notify such
Borrower and pay such Borrower, on the last day of the first Interest
Period that part of that amount (in the new currency).
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6.4 Same Optional Currency during successive Interest Periods
(a) If a Term-Out Loan is to be denominated in the same Optional Currency
during two successive Interest Periods, the Agent shall calculate the
amount of the Term-Out Loan in the Optional Currency for the second of
those Interest Periods (by calculating the amount of Optional Currency
equal to the Base Currency Amount of that Term-Out Loan at the Agent's Spot
Rate of Exchange at the Specified Time) and (subject to paragraph (b)
below):
(i) if the amount calculated is less than the existing amount of that
Term-Out Loan in the Optional Currency during the first Interest
Period, promptly notify the relevant Borrower and such Borrower shall
pay, on the last day of the first Interest Period, an amount equal to
the difference; or
(ii) if the amount calculated is more than the existing amount of that
Term-Out Loan in the Optional Currency during the first Interest
Period, promptly notify each Lender and, if no Event of Default is
continuing, each Lender shall, on the last day of the first Interest
Period, pay its participation in an amount equal to the difference.
(b) If the calculation made by the Agent pursuant to paragraph (a) above shows
that the amount of the Term-Out Loan in the Optional Currency has increased
or decreased by less than 5 per cent. compared to its Base Currency Amount,
no notification shall be made by the Agent and no payment shall be required
under paragraph (a) above.
6.5 Agent's calculations
(a) All calculations made by the Agent pursuant to this Clause 6 will take into
account any repayment, prepayment, consolidation or division of Term-Out
Loans to be made on the last day of the first Interest Period.
(b) Each Lender's participation in a Loan will, subject to paragraph (a) above,
be determined in accordance with paragraph (b) of Clause 5.4 (Lenders'
participation).
-22-
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
7. REPAYMENT
7.1 Repayment of Facility A Loans
(a) Each Borrower which has drawn a Facility A Loan (other than a Term-Out
Loan) shall repay such Facility A Loan on the last day of its Interest
Period.
(b) All Facility A Loans (other than Term-Out Loans), to the extent that they
have not already been repaid or prepaid, shall be repaid on the Facility A
Term Date.
(c) Term-Out Loans shall be repaid in accordance with Clause 9.3 (Repayment of
Term-Out Loans).
7.2 Repayment of Facility B Loans
(a) Each Borrower which has drawn a Facility B Loan shall repay that Loan on
the last day of its Interest Period.
(b) All Facility B Loans, to the extent that they have not already been repaid
or prepaid, shall be repaid on the Final Maturity Date.
8. PREPAYMENT AND CANCELLATION
8.1 Illegality
If it becomes unlawful in any jurisdiction for a Lender to perform any of
its obligations as contemplated by this Agreement or to fund its
participation in any Loan:
(a) that Lender shall promptly notify the Agent upon becoming aware of
that event;
(b) upon the Agent notifying the Company, the Commitment of that Lender
will be immediately cancelled; and
(c) each Borrower shall repay that Lender's participation in the Loans
made to that Borrower on the last day of the Interest Period for each
Loan occurring after the Agent has notified the Company or, if
earlier, the date specified by the Lender in the notice delivered to
the Agent (being no earlier than the last day of any applicable grace
period permitted by law).
8.2 Change of control
(a) If any person or group of persons acting in concert gains control of the
Company after the date of this Agreement:
(i) the Company shall promptly notify the Agent upon becoming aware of
that event;
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(ii) the Company may not make a Utilisation (except for a Rollover Loan)
unless otherwise agreed by the Majority Lenders; and
(iii) if the Majority Lenders so require and after having consulted with
the Company in good faith for not less than 30 days following the
change of control, the Agent shall, by not less than 10 Business
Days' notice to the Company, cancel the Facilities and declare all
outstanding Loans, together with accrued interest, and all other
amounts accrued under the Finance Documents immediately due and
payable, whereupon the Facilities will be cancelled and all such
outstanding amounts will become immediately due and payable.
(b) For the purpose of paragraph (a) above "control" has the meaning given to
it in section 416(2) of the Taxes Act.
(c) For the purpose of paragraph (a) above "acting in concert" has the meaning
given to it in the City Code on Takeovers and Mergers.
8.3 Disposal Proceeds
Any consideration in respect of a disposal of an asset by a member of the
Group which must be applied in reduction of outstanding Loans pursuant to
Clause 23.4(b)(xi) (Disposals) shall be applied first in reduction of
-----
indebtedness in respect of any Facility A Loans which are outstanding pro
rata and in respect of each Loan and pro rata against the instalments in
Clause 9.3 and secondly, in reduction of indebtedness and cancellation of
--------
Commitment in respect of Facility B. Any such prepayment and cancellation
of Commitment shall be made on the next interest payment date following
the date of the relevant disposal or on the date falling 3 months after
the relevant disposal, if earlier. Payments made other than on the last
day of an Interest Period shall be subject to breakage costs.
8.4 Voluntary cancellation
The Company may, if it gives the Agent not less than 5 Business Days' (or
such shorter period as the Majority Lenders may agree) prior notice, cancel
the whole or any part (being a minimum amount of $5,000,000) of an
Available Facility. Any cancellation under this Clause 8.4 shall reduce the
Commitments of the Lenders rateably under that Facility.
8.5 Voluntary prepayment of Loans
(a) The Borrower to which a Loan has been made may, if it gives the Agent not
less than 5 Business Days' (or such shorter period as the Majority Lenders
may agree) prior notice, prepay the whole or any part of any Loan (but, if
in part, being an amount that reduces the Base Currency Amount of the Loan
by a minimum amount of $5,000,000).
(b) Any prepayment of Term-Out Loans under this Clause 8.5 shall satisfy the
obligations under Clause 9.3 (Repayment of Term-Out Loans) against the
remaining Term-Out Loan Repayment Instalments proportionally.
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8.6 Right of repayment and cancellation in relation to a single Lender
(a) If:
(i) any sum payable to any Lender by an Obligor is required to be
increased under paragraph (c) of Clause 14.2 (Tax gross-up); or
(ii) any Lender claims indemnification from a Borrower under Clause 14.3
(Tax indemnity) or Clause 15.1 (Increased costs);
the Company may, whilst the circumstance giving rise to the requirement or
indemnification continues, give the Agent notice of cancellation of the
Commitment of that Lender and its intention to procure the repayment of
that Lender's participation(s) in the Loans.
(b) On receipt of a notice referred to in paragraph (a) above, the Commitment
of that Lender shall immediately be reduced to zero.
(c) On the last day of each Interest Period which ends after the Company has
given notice under paragraph (a) above (or, if earlier, the date specified
by the Company in that notice), each Borrower to which a Loan is
outstanding shall repay that Lender's participation(s) in each Loan.
8.7 Automatic Cancellation
(a) The Facility A Commitment shall be automatically reduced and cancelled by
an amount equal to any part of Facility A which remains undrawn at the
close of business on the last day of the Availability Period, which amount
shall be applied against the Facility A Commitment of each Bank pro rata.
(b) The Facility B Commitment shall be automatically reduced and cancelled by
an amount equal to any part of Facility B which remains undrawn at the
close of business on the last day of the Availability Period, which amount
shall be applied against the Facility B Commitment of each Bank pro rata.
8.8 Restrictions
(a) Any notice of cancellation or prepayment given by any Party under this
Clause 8 shall be irrevocable and, unless a contrary indication appears in
this Agreement, shall specify the date or dates upon which the relevant
cancellation or prepayment is to be made and the amount of that
cancellation or prepayment.
(b) Any prepayment under this Agreement shall be made together with accrued
interest on the amount prepaid and, subject to any Break Costs, without
premium or penalty.
(c) A Borrower may not reborrow any part of a Term-Out Loan which is prepaid.
(d) Unless a contrary indication appears in this Agreement, any part of
Facility A (other than a Term-Out Loan) and Facility B which is prepaid may
be reborrowed in accordance with the terms of this Agreement.
-25-
(e) The Borrowers shall not repay or prepay all or any part of the Loans or
cancel all or any part of the Commitments except at the times and in the
manner expressly provided for in this Agreement.
(f) No amount of the Total Commitments cancelled under this Agreement may be
subsequently reinstated.
(g) If the Agent receives a notice under this Clause 8 it shall promptly
forward a copy of that notice to either the Company or the affected Lender,
as appropriate.
9. FACILITY A TERM-OUT OPTION
9.1 Request for Term-Out Loans
A Borrower shall be entitled at any time prior to the Facility A Term Date,
by giving notice in writing to the Agent at least five Business Days before
each Conversion Date, to require that each Facility A Loan drawn by it and
specified in such notice be converted into a Term-Out Loan under Facility A
with effect on and from the Conversion Date (which shall be the final day
of the current Interest Period applicable to that Facility A Loan).
9.2 Making of Term-Out Loans
The Lenders shall, subject to the terms and conditions of this Agreement
(including Clause 4 (Conditions of Utilisation), Clause 5 (Utilisation) and
Clause 6 (Optional Currencies)), make the Term-Out Loans requested by the
relevant Borrower on receipt of a duly completed Utilisation Request,
together with the notice referred to in Clause 9.1 above.
9.3 Repayment of Term-Out Loans
Each Term-Out Loan outstanding on the Conversion Date referable to it (the
"Outstanding Amount") shall be repaid on the dates set out in the table
below in the percentages of the Outstanding Amount set opposite such date
together with all accrued interest on each amount required and any other
Unpaid Sums outstanding on each Repayment Date. No Term-Out Loan, once
repaid, may be re-borrowed.
Term-Out Loan Repayment Date Term-Out Loan Repayment Instalment
(expressed as a percentage of the amount of
the Term-Out Loan on the Conversion Date)
- ---------------------------------------------------------------------------------------
2nd Anniversary of this Agreement 20%
- ---------------------------------------------------------------------------------------
3rd Anniversary of this Agreement 20%
- ---------------------------------------------------------------------------------------
4th Anniversary of this Agreement 25%
- ---------------------------------------------------------------------------------------
Final Maturity Date 35%
- ---------------------------------------------------------------------------------------
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9.4 Interest on Term-Out Loans
The length of the Interest Periods and the calculation and payment of
interest on the Term--Out Loan(s) shall be determined and made in
accordance with Clause 11 (Interest Periods) and clause 10 (Interest).
9.5 Currency of Term-Out Loans
The currency of each Term-Out Loan during each of its Interest Periods (and
other matters relating to the re-denomination and re-basing of Term-Out
Loans) shall be determined in accordance with Clause 6 (Optional
Currencies).
9.6 Effect on Facility A Commitment
On the date on which a Term-Out Loan is made, the Facility A Commitment of
each Lender shall be cancelled and reduced by a corresponding amount.
9.7 Notices Irrevocable
Any notice give by a Borrower under this Clause 9 shall be irrevocable and
unconditional.
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SECTION 5
COSTS OF UTILISATION
10. INTEREST
10.1 Calculation of interest
The rate of interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable:
(a) Margin;
(b) LIBOR; and
(c) Mandatory Cost, if any.
10.2 Payment of interest
The Borrower shall pay accrued interest on each Loan on the last day of
each Interest Period (and, if the Interest Period is longer than six
months, on the dates falling at six monthly intervals after the first day
of the Interest Period).
10.3 Default interest
(a) If an Obligor fails to pay any amount payable by it under a Finance
Document on its due date, interest shall accrue on the overdue amount from
the due date up to the date of actual payment (both before and after
judgment) at a rate which is the sum of 1 per cent and the rate which
would have been payable if the overdue amount had, during the period of
non-payment, constituted a Loan in the currency of the overdue amount for
successive Interest Periods, each of a duration selected by the Agent
(acting reasonably).
(b) However if the overdue amount is principal of a Loan and became due on a
day other than the last day of an Interest Period relating to that Loan,
the first Interest Period applicable to that overdue amount shall be of a
duration equal to the unexpired portion of that Interest Period and the
rate of interest on that overdue amount for that Interest Period shall be
the sum of 1 per cent. and the rate applicable to it immediately before it
became due.
(c) Any interest accruing under this Clause 10.3 shall be immediately payable
by the Obligor on demand by the Agent.
(d) Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount at the end of each Interest Period
applicable to that overdue amount but will remain immediately due and
payable.
10.4 Notification of rates of interest
The Agent shall promptly notify the Lenders and the relevant Borrower of
the determination of a rate of interest under this Agreement.
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11. INTEREST PERIODS
11.1 Selection of Interest Periods
(a) A Borrower (or the Company on behalf of a Borrower) may select an Interest
Period for a Loan in the Utilisation Request for that Loan or (with respect
to a Term-Out Loan) in a Selection Notice.
(b) Each Selection Notice for a Term-Out Loan is irrevocable and must be
delivered to the Agent by the relevant Borrower (or the Company) not later
than the Specified Time.
(c) If a Borrower (or the Company on its behalf) fails to deliver a Selection
Notice to the Agent in accordance with paragraph (b) above, the relevant
Interest Period will, subject to Clause 11.2 (Changes to Interest Periods)
be one Month.
(d) Subject to this Clause 11, a Borrower (or the Company) may select an
Interest Period of one, two, three or six Months or any other period agreed
between the Company and the Agent (acting on the instructions of all the
Lenders). In addition a Borrower (or the Company on its behalf) may select
an Interest Period of less than one Month if necessary to ensure that there
are sufficient Term-Out Loans (with an aggregate Base Currency Amount equal
to or greater than the Term-Out Loan Repayment Instalment) which have an
Interest Period ending on a Term-Out Loan Repayment Date for the Borrower
to make the Term-Out Loan Repayment Instalment due on that date.
(e) Each Interest Period commencing before the Syndication Date shall be a
period of one month (or any shorter period (i) ending on the Syndication
Date or (ii) agreed between the relevant Borrower and Agent).
(f) An Interest Period for a Facility A Loan (other than a Term-Out Loan) shall
not extend beyond the Facility A Term Date.
(g) An Interest Period for a Term-Out Loan and a Facility B Loan shall not
extend beyond the Final Maturity Date.
(h) Each Interest Period for a Facility A Loan shall start on the Utilisation
Date or (if already made) on the last day of its preceding Interest Period.
(i) Facility A Loans (other than Term-Out Loans) and Facility B Loans each have
one Interest Period only.
(j) Each Interest Period for a Term-Out Loan shall start on its Conversion Date
or (if already made) on the last day of its preceding Interest Period.
11.2 Changes to Interest Periods
(a) Prior to determining the interest rate for a Term-Out Loan, the Agent may
shorten an Interest Period for any Term-Out Loan to ensure there are
sufficient Term-Out Loans with an Interest Period ending on a Term-Out Loan
Repayment Date for the Borrowers to make the Term-Out Loan Repayment
Instalment due on that Term-Out Loan Repayment Date.
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(b) If the Agent makes any of the changes to an Interest Period referred to in
this Clause 11.2 it shall promptly notify the Company and the Lenders.
11.3 Non-Business Days
If an Interest Period would otherwise end on a day which is not a Business
Day, that Interest Period will instead end on the next Business Day in
that calendar month (if there is one) or the preceding Business Day (if
there is not).
11.4 Consolidation and division of Term-Out Loans
(a) Subject to paragraph (b) below, if two or more Interest Periods:
(i) relate to Term-Out Loans in the same currency; and
(ii) end on the same date,
those Term-Out Loans will, unless a Borrower specifies to the contrary in
the Selection Notice for the next Interest Period, be consolidated into,
and treated as, a single Term-Out Loan on the last day of the Interest
Period.
(b) Subject to Clause 4.4 (Maximum number of Loans) and Clause 5.3 (Currency
and amount), if a Borrower requests in a Selection Notice that a Term-Out
Loan be divided into two or more Term-Out Loans, that Term-Out Loan will,
on the last day of its Interest Period, be so divided with Base Currency
Amounts specified in that Selection Notice, being an aggregate Base
Currency Amount equal to the Base Currency Amount of the Term-Out Loan
immediately before its division.
12. CHANGES TO THE CALCULATION OF INTEREST
12.1 Absence of quotations
Subject to Clause 12.2 (Market disruption), if LIBOR is to be determined
by reference to the Reference Banks but a Reference Bank does not supply a
quotation by the Specified Time on the Quotation Day, the applicable LIBOR
shall be determined on the basis of the quotations of the remaining
Reference Banks.
12.2 Market disruption
(a) If a Market Disruption Event occurs in relation to a Loan for any Interest
Period, then the rate of interest on each Lender's share of that Loan for
the Interest Period shall be the rate per annum which is the sum of:
(i) the applicable Margin;
(ii) the rate notified to the Agent by that Lender as soon as practicable
and in any event before interest is due to be paid in respect of that
Interest Period, to be that which expresses as a percentage rate per
annum the cost to that Lender of funding its participation in that
Loan from whatever source it may reasonably select; and
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(iii) the Mandatory Cost, if any, applicable to that Lender's
participation in the Loan.
(b) In this Agreement "Market Disruption Event" means:
(i) at or about noon on the Quotation Day for the relevant Interest
Period the Screen Rate is not available and none or only one of the
Reference Banks supplies a rate to the Agent to determine LIBOR for
the relevant currency and period; or
(ii) before close of business in London on the Quotation Day for the
relevant Interest Period, the Agent receives notifications from a
Lender or Lenders (whose participations in a Loan exceed 50 per
cent. of that Loan) that the cost to it of obtaining matching
deposits in the Relevant Interbank Market would be in excess of
LIBOR.
12.3 Alternative basis of interest or funding
(a) If a Market Disruption Event occurs and the Agent or the Company so
requires, the Agent and the Company shall enter into negotiations (for a
period of not more than thirty days) with a view to agreeing a substitute
basis for determining the rate of interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above shall, with
the prior consent of all the Lenders and the Company, be binding on all
Parties.
12.4 Break Costs
(a) Each Borrower shall, within three Business Days of demand by a Finance
Party, pay to that Finance Party its Break Costs attributable to all or any
part of a Loan or Unpaid Sum being paid by that Borrower on a day other
than the last day of an Interest Period for that Loan or Unpaid Sum.
(b) Each Lender shall, as soon as reasonably practicable after a demand by the
Agent, provide a certificate confirming the amount of its Break Costs for
any Interest Period in which they accrue.
13. FEES
13.1 Commitment fee
(a) The Company shall pay to the Agent (for the account of each Lender) a fee
in the Base Currency computed at the rate of:
(i) 0.20 per cent. per annum on that Lender's Available Commitment under
Facility A for the Availability Period applicable to Facility A; and
(ii) 50 per cent. of the applicable Margin which would apply to a Facility
B Loan drawn on that day, on that Lender's Available Commitment under
Facility B for the Availability Period applicable to Facility B; and
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(b) The accrued commitment fee is payable on the last day of each successive
period of three Months which ends during the relevant Availability Period,
on the last day of the Availability Period and on the cancelled amount of
the relevant Lender's Commitment at the time the cancellation is effective.
13.2 Underwriting and Arrangement fee
The Company shall pay to the Arranger an arrangement and underwriting fee
in the amount and at the times agreed in a Fee Letter.
13.3 Agency fee
The Company shall pay to the Agent (for its own account) an agency fee in
the amount and at the times agreed in a Fee Letter.
13.4 Term-Out fee
In respect of any Facility A Loan which is converted into a Term-Out Loan,
the Company shall pay to the Agent (for the account of each Lender) on the
Facility A Term Date a fee in the Base Currency computed at a rate of 0.10
per cent. on the amount of the Facility A Loan which is converted into a
Term-Out Loan under Clauses 9.1 and 9.2 of this Agreement.
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SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
14. TAX GROSS UP AND INDEMNITIES
14.1 Definitions
(a) In this Clause 14:
"Protected Party" means a Finance Party which is or will be, for or on
account of Tax, subject to any liability or required to make any payment
in relation to a sum received or receivable (or any sum deemed for the
purposes of Tax to be received or receivable) under a Finance Document.
"Qualifying Lender" means a Lender which is (on the date a payment falls
due):
(i) within the charge to United Kingdom corporation tax as respects that
payment and that is a Lender in respect of an advance made by a
person that was a bank (as defined for the purpose of section 349 of
the Taxes Act in section 840A of the Taxes Act) at the time that
advance was made; or
(ii) entitled to that payment under a double taxation agreement in force
on that date (subject to the completion of any necessary procedural
formalities) without a Tax Deduction (a "Treaty Lender").
"Tax Credit" means a credit against, relief or remission for, or repayment
of any Tax.
"Tax Deduction" means a deduction or withholding for or on account of Tax
from a payment under a Finance Document.
"Tax Payment" means an increased payment made by an Obligor to a Finance
Party under Clause 14.2 (Tax gross-up) or a payment under Clause 14.3 (Tax
indemnity).
(b) In this Clause 14 a reference to "determines" or "determined" means a
determination made in the absolute discretion of the person making the
determination.
14.2 Tax gross-up
(a) Each Obligor shall make all payments to be made by it without any Tax
Deduction, unless a Tax Deduction is required by law.
(b) The Company or a Lender shall promptly upon becoming aware that an Obligor
must make a Tax Deduction (or that there is any change in the rate or the
basis of a Tax Deduction) notify the Agent accordingly. If the Agent
receives such notification from a Lender it shall notify the Company and
that Obligor.
(c) If a Tax Deduction is required by law to be made by an Obligor in one of
the circumstances set out in paragraph (d) below, the amount of the
payment due
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from that Obligor shall be increased to an amount which (after making any
Tax Deduction) leaves an amount equal to the payment which would have been
due if no Tax Deduction had been required.
(d) The circumstances referred to in paragraph (c) above are where a person
entitled to the payment:
(i) is the Agent or the Arranger (on its own behalf); or
(ii) is a Qualifying Lender, unless that Qualifying Lender is a Treaty
Lender and the Obligor making the payment is able to demonstrate the
Tax Deduction is required to be made as a result of the failure of
that Qualifying Lender to comply with paragraph (g) below; or
(iii) is not or has ceased to be a Qualifying Lender to the extent that
this altered status results from any change after the date of this
Agreement in (or in the interpretation, administration, or
application of) any law or double taxation agreement or any
published practice or published concession of any relevant taxing
authority.
(e) If an Obligor is required to make a Tax Deduction, that Obligor shall make
that Tax Deduction and any payment required in connection with that Tax
Deduction within the time allowed and in the minimum amount required by
law.
(f) Within thirty days of making either a Tax Deduction or any payment
required in connection with that Tax Deduction, the Obligor making that
Tax Deduction shall deliver to the Agent for the Finance Party entitled to
the payment evidence reasonably satisfactory to that Finance Party that
the Tax Deduction has been made or (as applicable) any appropriate payment
paid to the relevant taxing authority.
(g) A Treaty Lender and each Obligor which makes a payment to which that
Treaty Lender is entitled shall co-operate in completing any procedural
formalities necessary for that Obligor to obtain authorisation to make
that payment without a Tax Deduction.
14.3 U.S. Taxes
(a) A Borrower shall not be required to pay any additional amount pursuant to
Clause 14.2 (Tax Gross-up) in respect of United States federal income
taxes with respect to a sum payable by it pursuant to this Agreement to a
Lender if such Lender on the date it becomes a party to this Agreement
either:
(i) is not a "United States Person" (as such term is defined in Section
7701(a)(30) of the Internal Revenue Code of 1986, as amended (the
"Code")) and is not entitled to submit either (x) an Internal
Revenue Service Form W-8BEN (or such successor Form as shall be
adopted from time to time by the United States taxation authorities)
relating to such Lender and claiming complete exemption from
withholding on all amounts (to which such withholding would
otherwise apply) to be received by such Lender, including fees,
pursuant to this Agreement in connection with any borrowing by such
Borrower as a result of a tax
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treaty concluded with the United States or (y) an Internal Revenue
Service Form W-8ECI (or such successor Form as shall be adopted from
time to time by the United States taxation authorities) relating to
all amounts (to which such withholding would otherwise apply) to be
received by such Lender, including fees, pursuant to this Agreement
in connection with any borrowing by such Borrower as a result of
such amounts being effectively connected with a trade or business in
the United States; or
(ii) is a United States Person; or
(iii) is not a United States Person but is entitled to submit either of
the forms referred to in sub-paragraphs (x) and (y) of paragraph (1)
above and has (unless the relevant Borrower failed to give the
notification referred to in paragraph (c) below) failed to submit
any form, certificate or other information with respect to such sum
payable that it was required to submit to the Borrower pursuant to
paragraph (b) below and is entitled to submit under applicable law.
(b) If a Lender is not a United States Person it shall (if and to the extent
that it is entitled to do so under applicable law) submit as soon as
reasonably practicable after the date such Lender becomes a party to this
Agreement in duplicate to the relevant Borrower duly completed and signed
copies of either Internal Revenue Service Form W-8BEN (or such successor
Form as shall be adopted from time to time by the United States taxation
authorities) (relating to such Lender and claiming complete exemption from
withholding on all amounts (to which such withholding would otherwise
apply) to be received by such Lender, including fees, pursuant to this
Agreement in connection with any borrowing by the Purchaser as a result of
a tax treaty concluded with the United States) or Internal Revenue Service
Form W-8ECI (or such successor Form as shall be adopted from time to time
by the United States taxation authorities) (relating to all amounts (to
which such withholding would otherwise apply) to be received by such
Lender, including fees, pursuant to this Agreement in connection with any
borrowing by such Borrower as a result of such amounts being effectively
connected with a trade or business in the United States). Thereafter and
from time to time, such Lender shall (if and to the extent that it is
entitled to do so under applicable law and as soon as practicable after
notification from the relevant Borrower) submit to the relevant Borrower
such additional duly completed and signed copies of one or the other such
Forms (or such successor Forms as shall be adopted from time to time by
the relevant United States taxation authorities) or any additional
information as may be required under then current United States law or
regulations to claim the inapplicability of or exemption from United
States withholding taxes on payments in respect of all amounts (to which
such withholding would otherwise apply) to be received by such Lender,
including fees, pursuant to this Agreement in connection with any
borrowing by the such Borrower.
(c) To the extent that any Borrower becomes aware of the need for any Form or
information referred to in the second sentence of paragraph (b) above, it
will notify the relevant Lenders as soon as reasonably practicable
thereafter.
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14.4 Tax indemnity
(a) The Company shall (within three Business Days of demand by the Agent) pay
to a Protected Party an amount equal to the loss, liability or cost which
that Protected Party determines will be or has been (directly or
indirectly) suffered for or on account of Tax by that Protected Party.
(b) Paragraph (a) above shall not apply with respect to any Tax assessed on:
(i) a Finance Party:
A. under the law of the jurisdiction in which that Finance Party
is incorporated or, if different, the jurisdiction (or
jurisdictions) in which that Finance Party is treated as
resident for tax purposes; or
B. under the law of the jurisdiction in which that Finance
Party's Facility Office is located in respect of amounts
received or receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net
income received or receivable (but not any sum deemed to be received
or receivable) by that Finance Party; or
(ii) the Agent, as a result of the failure by a Lender to satisfy on the
due date of a payment of interest either of the conditions set out
in paragraphs (a) and (b) of Clause 27.15 (Lenders' tax status
confirmation).
(c) A Protected Party making, or intending to make, a claim pursuant to
paragraph (a) above shall promptly notify the Agent of the event which will
give, or has given, rise to the claim, following which the Agent shall
notify the Company.
(d) A Protected Party shall, on receiving a payment from an Obligor under this
Clause 14.4, notify the Agent.
14.5 Tax Credit
If an Obligor makes a Tax Payment and the relevant Finance Party
determines that:
(i) a Tax Credit is attributable to that Tax Payment; and
(ii) that Finance Party has obtained, utilised and retained that Tax
Credit,
the Finance Party shall pay an amount to the Obligor which that Finance
Party determines will leave it (after that payment) in the same after-Tax
position as it would have been in had the Tax Payment not been made by the
Obligor.
14.6 Stamp taxes
The Company shall pay and, within three Business Days of demand, indemnify
each Finance Party against any cost, loss or liability that Finance Party
incurs in
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relation to all stamp duty, registration and other similar Taxes payable
in respect of any Finance Document.
14.7 Value added tax
(a) All consideration payable under a Finance Document by an Obligor to a
Finance Party shall be deemed to be exclusive of any VAT. If VAT is
chargeable, the Obligor shall pay to the Finance Party (in addition to and
at the same time as paying the consideration) an amount equal to the
amount of the VAT.
(b) Where a Finance Document requires an Obligor to reimburse a Finance Party
for any costs or expenses, that Obligor shall also at the same time pay
and indemnify that Finance Party against all VAT incurred by that Finance
Party in respect of the costs or expenses save to the extent that that
Finance Party is entitled to repayment or credit in respect of the VAT.
15. INCREASED COSTS
15.1 Increased costs
(a) Subject to Clause 15.3 (Exceptions) the Company shall, within three
Business Days of a demand by the Agent, pay for the account of a Finance
Party the amount of any Increased Costs incurred by that Finance Party or
any of its Affiliates as a result of (i) the introduction of or any change
in (or in the interpretation or application of) any law or regulation or
(ii) compliance with any law or regulation made after the date of this
Agreement.
(b) In this Agreement "Increased Costs" means:
(i) a reduction in the rate of return from the Facility or on a Finance
Party's (or its Affiliate's) overall capital;
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under any Finance
Document,
which is incurred or suffered by a Finance Party or any of its Affiliates
to the extent that it is attributable to that Finance Party having entered
into its Commitment or funding or performing its obligations under any
Finance Document.
15.2 Increased cost claims
(a) A Finance Party intending to make a claim pursuant to Clause 15.1
(Increased costs) shall notify the Agent of the event giving rise to the
claim, following which the Agent shall promptly notify the Company.
(b) Each Finance Party shall, as soon as practicable after a demand by the
Agent, provide a certificate confirming the amount of its Increased Costs
(together with reasonable supporting evidence provided that no Finance
Party shall be obliged to
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disclose to any Borrower or any other person any information concerning
its financial or tax affairs or to arrange its tax affairs in any
particular manner).
15.3 Exceptions
(a) Clause 15.1 (Increased costs) does not apply to the extent any Increased
Cost is:
(i) attributable to a Tax Deduction required by law to be made by an
Obligor;
(ii) compensated for by Clause 14.4 (Tax indemnity) (or would have been
compensated for under Clause 14.4 (Tax indemnity) but was not so
compensated solely because one of the exclusions in paragraph (b) of
Clause 14.4 (Tax indemnity) applied);
(iii) compensated for by the payment of the Mandatory Cost; or
(iv) attributable to the wilful breach by the relevant Finance Party or
its Affiliates of any law or regulation.
(b) In this Clause 15.3, a reference to a "Tax Deduction" has the same meaning
given to the term in Clause 15.1 (Definitions).
16. OTHER INDEMNITIES
16.1 Currency indemnity
(a) If any sum due from an Obligor under the Finance Documents (a "Sum"), or
any order, judgment or award given or made in relation to a Sum, has to be
converted from the currency (the "First Currency") in which that Sum is
payable into another currency (the "Second Currency") for the purpose of:
(i) making or filing a claim or proof against that Obligor;
(ii) obtaining or enforcing an order, judgment or award in relation to
any litigation or arbitration proceedings,
that Obligor shall as an independent obligation, within three Business
Days of demand, indemnify each Finance Party to whom that Sum is due
against any cost, loss or liability arising out of or as a result of the
conversion including any discrepancy between (A) the rate of exchange used
to convert that Sum from the First Currency into the Second Currency and
(B) the rate or rates of exchange available to that person at the time of
its receipt of that Sum.
(b) Each Obligor waives any right it may have in any jurisdiction to pay any
amount under the Finance Documents in a currency or currency unit other
than that in which it is expressed to be payable.
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16.2 Other indemnities
The Company shall (or shall procure that an Obligor will), within three
Business Days of demand, indemnify each Lender against any cost, loss or
liability incurred by that Lender as a result of:
(a) the occurrence of any Event of Default;
(b) a failure by an Obligor to pay any amount due under a Finance
Document on its due date, including without limitation, any cost,
loss or liability arising as a result of Clause 29 (Sharing among
the Lenders);
(c) funding, or making arrangements to fund, its participation in a Loan
requested by the Borrower in a Utilisation Request but not made by
reason of the operation of any one or more of the provisions of this
Agreement (other than by reason of default or negligence by that
Lender alone); or
(d) a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment given by a Borrower or the Company.
16.3 Indemnity to the Agent
The Company shall promptly indemnify the Agent against any cost, loss or
liability incurred by the Agent (acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is a Default;
or
(b) entering into or performing any foreign exchange contract for the
purposes of Clause 6 (Optional Currencies); or
(c) acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised.
16.4 Acquisition Financing Indemnity
The Company shall, within three Business Days of demand, indemnify each
Finance Party, each of their respective Affiliates and each of their
respective directors, officers, employees or agents (each an "Indemnified
Party") against any cost, expense, loss or liability (including legal
fees) incurred by that Indemnified Party (otherwise than by reason of the
gross negligence or wilful misconduct of that Indemnified Party) related
to, arising out of or in connection with any Indemnified Party financing
or refinancing, or agreeing to finance or refinance, any acquisition of
any shares by the Company (in each case pursuant to this Agreement).
17. MITIGATION BY THE LENDERS
17.1 Mitigation
(a) Each Finance Party shall, in consultation with the Company, take all
reasonable steps to mitigate any circumstances which arise and which would
result in any
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amount becoming payable under, or cancelled pursuant to, any of Clause 8.1
(Illegality), Clause 14 (Tax gross-up and indemnities) or Clause 15
(Increased costs) including (but not limited to) transferring its rights
and obligations under the Finance Documents to another Affiliate or
Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations of any
Obligor under the Finance Documents.
17.2 Limitation of liability
(a) The Company shall indemnify each Finance Party for all costs and expenses
reasonably incurred by that Finance Party as a result of steps taken by it
under Clause 17.1 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause 17.1
(Mitigation) if, in the opinion of that Finance Party (acting reasonably),
to do so might be prejudicial to it.
18. COSTS AND EXPENSES
18.1 Transaction expenses
The Company shall promptly on demand pay the Agent and the Arranger the
amount of all costs and expenses (including legal fees) reasonably
incurred by any of them in connection with the negotiation, preparation,
printing, execution and syndication of:
(a) this Agreement and any other documents referred to in this
Agreement; and
(b) any other Finance Documents executed after the date of this
Agreement.
18.2 Amendment costs
If (a) an Obligor requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 30.9 (Change of currency), the
Company shall, within three Business Days of demand, reimburse the Agent
for the amount of all costs and expenses (including legal fees) reasonably
incurred by the Agent in responding to, evaluating, negotiating or
complying with that request or requirement.
18.3 Enforcement costs
The Company shall, within three Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal fees)
incurred by that Finance Party in connection with the enforcement of, or
the preservation of any rights under, any Finance Document.
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SECTION 7
GUARANTEE
19. GUARANTEE AND INDEMNITY
19.1 Guarantee and indemnity
Each Guarantor irrevocably and unconditionally jointly and severally:
(a) guarantees to each Finance Party punctual performance by each
Borrower of all that Borrower's obligations under the Finance
Documents;
(b) undertakes with each Finance Party that whenever a Borrower does not
pay any amount when due under or in connection with any Finance
Document, that Guarantor shall immediately on demand pay that amount
as if it was the principal obligor; and
(c) indemnifies each Finance Party immediately on written demand against
any cost, loss or liability suffered by that Finance Party if any
obligation guaranteed by it is or becomes unenforceable, invalid or
illegal. The amount of the cost, loss or liability shall be equal to
the amount which that Finance Party would otherwise have been
entitled to recover.
19.2 Continuing guarantee
This guarantee is a continuing guarantee and will extend to the ultimate
balance of sums payable by any Obligor under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
19.3 Reinstatement
If any payment by an Obligor or any discharge given by a Finance Party
(whether in respect of the obligations of any Obligor or any security for
those obligations or otherwise) is avoided or reduced as a result of
insolvency or any similar event:
(a) the liability of each Obligor shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and
(b) each Finance Party shall be entitled to recover the value or amount
of that security or payment from each Obligor, as if the payment,
discharge, avoidance or reduction had not occurred.
19.4 Waiver of defences
The obligations of each Guarantor under this Clause 19 will not be
affected by an act, omission, matter or thing which, but for this Clause,
would reduce, release or prejudice any of its obligations under this
Clause 19 (without limitation and whether or not known to it or any
Finance Party) including:
(a) any time, waiver or consent granted to, or composition with, any
Obligor or other person;
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(b) the release of any other Obligor or any other person under the terms
of any composition or arrangement with any creditor of any member of
the Group;
(c) the taking, variation, compromise, exchange, renewal or release of,
or refusal or neglect to perfect, take up or enforce, any rights
against, or security over assets of, any Obligor or other person or
any non-presentation or non-observance of any formality or other
requirement in respect of any instrument or any failure to realise
the full value of any security;
(d) any incapacity or lack of power, authority or legal personality of
or dissolution or change in the members or status of an Obligor or
any other person;
(e) any amendment (however fundamental) or replacement of a Finance
Document or any other document or security;
(f) any unenforceability, illegality or invalidity of any obligation of
any person under any Finance Document or any other document or
security; or
(g) any insolvency or similar proceedings.
19.5 Immediate recourse
Each Guarantor waives any right it may have of first requiring any Finance
Party (or any trustee or agent on its behalf) to proceed against or
enforce any other rights or security or claim payment from any person
before claiming from that Guarantor under this Clause 19. This waiver
applies irrespective of any law or any provision of a Finance Document to
the contrary.
19.6 Appropriations
Until all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably paid in
full, each Finance Party (or any trustee or agent on its behalf) may:
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by that Finance Party (or any trustee or
agent on its behalf) in respect of those amounts, or apply and
enforce the same in such manner and order as it sees fit (whether
against those amounts or otherwise) and no Guarantor shall be
entitled to the benefit of the same; and
(b) hold in an interest-bearing suspense account any moneys received
from any Guarantor or on account of any Guarantor's liability under
this Clause 19.
19.7 Deferral of Guarantors' rights
Until all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably paid in
full and
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unless the Agent otherwise directs, no Guarantor will exercise any rights
which it may have by reason of performance by it of its obligations under
the Finance Documents:
(a) to be indemnified by an Obligor;
(b) to claim any contribution from any other guarantor of any Obligor's
obligations under the Finance Documents; and/or
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties under
the Finance Documents or of any other guarantee or security taken
pursuant to, or in connection with, the Finance Documents by any
Finance Party.
19.8 Additional security
This guarantee is in addition to and is not in any way prejudiced by any
other guarantee or security now or subsequently held by any Finance Party.
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SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
20. REPRESENTATIONS
Each Obligor makes the representations and warranties set out in this
Clause 20 to each Finance Party on the date of this Agreement (other than
in the case of the representations and warranties in Clause 20.10 (No
misleading information) which shall be made on the date on which the
Information Memorandum is agreed and dated).
20.1 Status
(a) It is a corporation, duly incorporated and validly existing under
the law of its jurisdiction of incorporation.
(b) It and each of its Subsidiaries has the power to own its assets and
carry on its business as it is being conducted.
20.2 Binding obligations
The obligations expressed to be assumed by it in each Finance Document
are, subject to any general principles of law limiting its obligations
which are specifically referred to in any legal opinion delivered pursuant
to Clause 4 (Conditions of Utilisation) or Clause 26 (Changes to the
Obligors), legal, valid, binding and enforceable obligations.
20.3 Non-conflict with other obligations
The entry into and performance by it of, and the transactions contemplated
by, the Finance Documents do not and will not conflict with:
(a) any law or regulation applicable to it;
(b) the constitutional documents of any member of the Group; or
(c) any material agreement or instrument binding upon it or any member
of the Group or any of its or any member of the Group's assets.
20.4 Power and authority
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery of,
the Finance Documents to which it is a party and the transactions
contemplated by those Finance Documents.
20.5 Validity and admissibility in evidence
All Authorisations required:
(a) to enable it lawfully to enter into, exercise its rights and comply
with its obligations in the Finance Documents to which it is a
party; and
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(b) to make the Finance Documents to which it is a party admissible in
evidence in its jurisdiction of incorporation,
have been obtained or effected and are in full force and effect or will be
obtained or effected and be in full force and effect when required.
20.6 Governing law and enforcement
Subject to equitable principles, insolvency laws and other laws of general
application affecting creditors:
(a) the choice of English law as the governing law of the Finance
Documents will be recognised and enforced in its jurisdiction of
incorporation; and
(b) any judgment obtained in England in relation to a Finance Document
will be recognised and enforced in its jurisdiction of
incorporation.
20.7 Deduction of Tax
It is not required under the law of its jurisdiction of incorporation to
make any deduction for or on account of Tax from any payment it may make
under any Finance Document.
20.8 No filing or stamp taxes
Under the law of its jurisdiction of incorporation it is not necessary
that the Finance Documents be filed, recorded or enrolled with any court
or other authority in that jurisdiction or that any stamp, registration or
similar tax be paid on or in relation to the Finance Documents or the
transactions contemplated by the Finance Documents.
20.9 No default
(a) No Event of Default is continuing or might reasonably be expected to result
from the making of any Utilisation.
(b) No other event or circumstance is outstanding which constitutes a material
default under any other material agreement or instrument which is binding
on it or any of its Subsidiaries or to which its (or its Subsidiaries')
assets are subject which would be reasonably likely to have a Material
Adverse Effect.
20.10 No misleading information
(a) Any factual information provided by or on behalf of a member of the Group
for the purposes of the Information Memorandum was true and accurate in all
material respects as at the date it was provided or as at the date (if any)
at which it is stated.
(b) The financial projections contained in the Information Memorandum have been
prepared on the basis of recent historical information and on the basis of
reasonable assumptions.
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(c) To the best of such Obligor's knowledge, nothing has occurred or been
omitted from the Information Memorandum and no information has been given
or withheld that results in the information contained in the Information
Memorandum being untrue or misleading in any material respect.
20.11 Financial statements
(a) The Original Financial Statements were prepared in accordance with GAAP
consistently applied.
(b) The Original Financial Statements fairly represent its financial
condition and consolidated operations (consolidated in the case of the
Company) during and for the relevant financial year.
(c) There has been no material adverse change in its business or financial
condition (or the business or consolidated financial condition of the
Group, in the case of the Company) since the date of the Original
Financial Statements, in each case which has had or is likely to have a
Material Adverse Effect.
20.12 Pari passu ranking
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying
to companies generally.
20.13 No proceedings pending or threatened
No litigation, arbitration or administrative proceedings of or before any
court, arbitral body or agency which have a reasonable likelihood of
success and which, if adversely determined, might reasonably be expected
to have a Material Adverse Effect have (to the best of its knowledge and
belief) been started or threatened against it or any of its Subsidiaries.
20.14 Material Subsidiaries
Each member of the Group which, as at the date of this Agreement, is a
Material Subsidiary is included in Schedule 12 (Material Subsidiaries).
20.15 Employee Benefit Plans
(a) Except as could not be reasonably expected to have a Material Adverse
Effect, none of the Obligors or any ERISA Affiliate has incurred any
liability to or could be reasonably expected to incur any liability to,
or on account of, a Multiemployer Plan as a result of violation of
Section 515 of ERISA or otherwise pursuant to Section 4201, 4204, or
4212(c) of ERISA.
(b) Except as would not be reasonably expected to have a Material Adverse
Effect, each Employee Plan is in compliance in all material respects in
form and operation with ERISA and the Internal Revenue Code and all other
applicable laws and directives.
(c) Except as disclosed or except as could not be reasonably expected to have
a Material Adverse Effect, each Employee Plan which is intended to be
qualified
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under Section 401(a) of the Internal Revenue Code has been determined by
the IRS after 1 January 1994 to be so qualified or the remedial amendment
period within which an application for such a determination may be filed
with the IRS has not expired.
(d) The fair market value of the assets of each Employee Plan subject to
Title IV of ERISA is at least equal to the present value of the "benefit
liabilities" (within the meaning of Section 4001(a)(16) of ERISA) under
such Employee Plan determined using the actuarial assumptions and methods
used by the actuary to such Employee Plan in its most recent valuation of
such Employee Plan (except to the extent any such underfunding does not
have and would not be reasonably expected to have a Material Adverse
Effect).
(e) There are no actions, suits or claims pending against or with respect to
any Employee Plan (other than routine claims for benefits) or, to its
knowledge or the knowledge of its ERISA Affiliates (in each case after
due inquiry), threatened against or with respect to any Employee Plan
which has or could reasonably be expected to have a Material Adverse
Effect.
(f) Except as could not reasonably be expected to have a Material Adverse
Effect, each Obligor and each of its ERISA Affiliates has made all
material contributions to or under each Employee Plan and Multiemployer
Plan required by law within the applicable time limits prescribed
thereby, the terms of such Employee Plan and any contract or agreement
requiring contributions to an Employee Plan.
(g) Except as could not reasonably be expected to have a Material Adverse
Effect, none of the Obligors nor any ERISA Affiliate has ceased
operations at a facility so as to become subject to the provisions of
Section 4062(e) of ERISA, withdrawn as a substantial employer so as to
become subject to the provisions of Section 4063 of ERISA or ceased
making contributions to any Employee Plan subject to Section 4064(a) of
ERISA to which it made contributions.
(h) Except as could not reasonably be expected to have a Material Adverse
Effect, none of the Obligors nor any ERISA Affiliate has incurred or
could reasonably be expected to incur any liability to the PBGC.
(i) Except as would not be reasonably expected to have a Material Adverse
Effect, no ERISA Event has occurred or is reasonably likely to occur.
20.16 U.S. Federal Reserve Regulation
Except to pay for the purchase of shares in connection with an
Acquisition in compliance with Clause 23.8 (Acquisitions), the proceeds
of the Loans will not be used, directly or indirectly, in whole or in
part, for any purpose which might (whether immediately, incidentally or
ultimately) cause the Loans (or any part thereof) to be a "purpose
credit" within the meaning of Regulation U or Regulation X. Following the
application of the proceeds of each Loan, not more than twenty-five
percent (25%) of the value of the assets of the Group (on a consolidated
basis) will be Margin Stock. Neither any Obligor nor any agent acting on
its behalf has taken or will take any action which could reasonably be
expected to cause any of the Finance Documents or any of the documents or
instruments delivered pursuant thereto to violate any regulation of the
Board
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(including Regulations T, U and X) or to violate the US Securities
Exchange Act of 1934 or any applicable US federal or state securities
laws to an extent which could reasonably be expected to have a Material
Adverse Effect.
20.17 Investment Company Act and Public Utility Holding Company Act
It is not subject to regulation under the US Public Utility Holding
Company Act of 1935 or the US Federal Power Act. It is not an "investment
company", or a person "controlled" by an "investment company", as such
terms are defined in the US Investment Company Act of 1940, as amended
(15 U.S.C. ss.80a-1 et seq.).
20.18 No Security
No Security exists over all or any of the present or future undertaking,
revenue or assets of the Company or any of its Subsidiaries (except as
set out in Clause 23.3(b)).
20.19 Environmental Law
Neither the Company nor any of its Subsidiaries has breached any
Environmental Law and each of them is in possession of all Environmental
Licenses required for the conduct of its business and it has not breached
in any material respect any of the terms and conditions of any such
Environmental Licence which in any such case would have a Material
Adverse Effect.
20.20 Repetition
The Repeating Representations are deemed to be made by each Obligor by
reference to the facts and circumstances then existing on:
(a) the date of each Utilisation Request, the date of each notice
pursuant to Clause 9.1 (Request for Term-Out Loans) and the last day
of each Interest Period; and
(b) in the case of an Additional Obligor, the day on which the company
becomes (or it is proposed that the company becomes) an Additional
Obligor.
20.21 Acquired Companies
Until the expiry of the period of 6 months after the date of the relevant
Acquisition, the representations and warranties contained in Clauses
20.3(b) and (c) (Non-conflict with other obligations), 20.9(b) (No
default), Clause 20.13 (No proceedings pending or threatened), Clause
20.15 (Employee Benefit Plans) and Clause 20.19 (Environmental, Law)
shall not apply to the company or business so acquired (or any of its
Subsidiaries) provided that the Company shall advise the Agent promptly
upon becoming actually aware of any breach of any such representation or
warranty.
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21. INFORMATION UNDERTAKINGS
The undertakings in this Clause 21 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
21.1 Financial statements
The Company shall supply to the Agent in sufficient copies for all the
Lenders:
(a) as soon as the same become available, but in any event within 180
days after the end of each of its financial years its audited
consolidated financial statements for that financial year;
(b) as soon as the same become available, but in any event within 90
days after the end of the first half of each of its financial years,
its consolidated financial statements for that financial half year;
(c) as soon as the same become available, but in any event within 45
days after the end of each quarter of each of its financial years,
the quarterly management accounts of the Group in acceptable form,
including a balance sheet and a profit and loss account as at the
last day of each quarter.
21.2 Compliance Certificate
(a) The Company shall supply to the Agent, with each set of financial
statements delivered pursuant to paragraph (c) of Clause 21.1 (Financial
statements), a Compliance Certificate setting out (in reasonable detail)
computations as to compliance with Clause 22 (Financial covenants) as at
the date as at which those financial statements were drawn up.
(b) Each Compliance Certificate shall be signed by either two directors of
the Company or by one director of and the secretary of the Company.
21.3 Requirements as to financial statements
(a) Each set of financial statements delivered by the Company pursuant to
Clause 21.1 (Financial statements) shall be certified by a director of
the relevant company as fairly representing its (or, as the case may be,
its consolidated) financial condition as at the date as at which those
financial statements were drawn up.
(b) The Company shall procure that each set of financial statements delivered
pursuant to Clause 21.1 (Financial statements) is prepared using GAAP,
accounting practices and financial reference periods consistent with
those applied in the preparation of the Original Financial Statements
unless, in relation to any set of financial statements, it notifies the
Agent that there has been a change in GAAP, the accounting practices or
reference periods and the Company delivers to the Agent:
(i) a description of any change necessary for those financial statements
to reflect the GAAP, accounting practices and reference periods upon
which the Original Financial Statements were prepared; and
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(ii) sufficient information, in form and substance as may be reasonably
required by the Agent, to enable the Lenders to determine whether
Clause 22 (Financial covenants) has been complied with and make an
accurate comparison between the financial position indicated in
those financial statements and the Original Financial Statements.
Any reference in this Agreement to those financial statements shall be
construed as a reference to those financial statements as adjusted to
reflect the basis upon which the Original Financial Statements were
prepared.
21.4 Information: miscellaneous
The Company shall supply to the Agent (in sufficient copies for all the
Lenders, if the Agent so requests):
(a) all documents dispatched by the Company to its shareholders (or any
class of them) or its creditors generally at the same time as they
are dispatched;
(b) promptly upon becoming aware of them, the details of any litigation,
arbitration or administrative proceedings which are current,
threatened or pending against any member of the Group, and which
might, if adversely determined, have a Material Adverse Effect; and
(c) promptly, such further information regarding the financial condition,
business and operations of any member of the Group as any Finance
Party (through the Agent) may reasonably request.
21.5 Notification of default
(a) Each Obligor shall notify the Agent of any Default (and the steps, if any,
being taken to remedy it) promptly upon becoming aware of its occurrence
(unless that Obligor is aware that a notification has already been
provided by another Obligor).
(b) Promptly upon a request by the Agent, the Company shall supply to the
Agent a certificate signed by two of its directors or senior officers on
its behalf certifying that no Default is continuing (or if a Default is
continuing, specifying the Default and the steps, if any, being taken to
remedy it).
22. FINANCIAL COVENANTS
22.1 Financial Condition
The Borrower shall ensure that:
(a) the ratio of PBIT to Net Interest Payable will not be less than 4 to
1 in respect of any Relevant Period;
(b) the ratio of Net Debt (as at the last day of the Relevant Period
concerned) to EBITDA will not be more than 3 to 1 in respect of any
Relevant Period.
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22.2 Financial Covenant Calculations
Debt, Net Debt, EBITDA, PBIT and Net Interest Payable shall be calculated
and interpreted on a consolidated basis in accordance with GAAP and shall
be expressed in sterling.
22.3 Definitions
In this Clause 22:
"Cash Equivalent Investments" means:
(a) debt securities denominated in euro, Sterling, US Dollars, Swiss
Francs or Japanese Yen (or a currency readily convertible into the
aforegoing) issued by the Government of a country which is a member
of the OECD where there is outstanding sovereign debt issued by that
country which is rated at least BBB+ by Standard & Poor's
Corporation ("S&P's") or Baal by Moody's Investor Services Inc.
("Moody's"), where such debt securities have not more than 3 months
to final maturity and are not by their terms convertible into any
other form of security
(b) debt securities denominated in euro, Sterling, US Dollars, Swiss
Francs or Japanese Yen (or a currency readily convertible into the
aforegoing) which have not more than 3 months to final maturity, are
not convertible into any other form of security, are rated P1 by
Moody's or A-1 by S&P's and are not issued or guaranteed by any
member of the Group
"Debt" means, as at any particular time, the consolidated Financial
Indebtedness of members of the Group which is required to be accounted for
as debt in the annual financial statements of the Group.
"EBITDA" means, in relation to any Relevant Period, PBIT for that period
after adding back all depreciation, amortisation and write downs of
goodwill deducted in established PBIT, in each case for that Relevant
Period.
"Interest Payable" means, in relation to any Relevant Period, the
aggregate amount of interest and any other recurring finance charges
(including without limitation commitment commission) (whether or not paid,
payable or capitalised) accrued by the Group in that Relevant Period in
respect of Debt and payable to persons who are not the Company or wholly-
owned Subsidiaries including:
(a) the interest element of leasing and hire purchase payments;
(b) commitment fees, commissions (but not including arrangement fees)
and guarantee fees; and
(c) amounts in the nature of interest payable in respect of any shares
other than equity share capital,
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(d) any amounts of such interest and other finance charges which may not
have accrued payable in any relevant period and which are payable in
a later period but are attributable to such relevant period,
adjusted (but without double counting) by adding back the net amount
payable (or deducting the net amount receivable) by members of the Group
in respect of the Relevant Period under any interest or (so far as they
relate to interest) currency hedging arrangements, as determined (except
as needed to reflect the terms of this Clause 22) from the financial
statements of the Group and Compliance Certificates delivered under Clause
21 (Information Undertakings).
"Net Debt" means, at any particular time, Debt less any Cash Equivalent
Investments and any cash in hand or on deposit with any bank or financial
institution incorporated in any OECD country at such time to the extent
such cash is denominated in any freely convertible and transferable
currencies and beneficially owned by any member of the Group unencumbered
by any Security (except as permitted by Clause 23.3(b) (Negative pledge)).
"Net Interest Payable" means, in relation to any Relevant Period, Interest
Payable for that period less the amount of any interest receivable by any
member of the Group in that period.
"PBIT" means, in relation to any Relevant Period, the total consolidated
operating profit of the Group of that Relevant Period before taking into
account:
(a) Net Interest Payable;
(b) Tax;
(c) minority interests;
(d) profits or losses on the sale or termination of operations, costs of
a fundamental reorganisation or restructuring and results of
discontinued operations;
(e) all extraordinary and exceptional items
after adding back an amount equal to any amortisation of acquired goodwill
and intangible assets in accordance with Accounting Standard FRS10, all as
determined (except as need to reflect the terms of this Clause 22) from
the financial statements of the Group and each Compliance Certificate
delivered under Clause 21 (Information Undertakings).
"Relevant Period" means each period of 12 months ending on the last day of
each financial quarter of the Company.
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23. GENERAL UNDERTAKINGS
The undertakings in this Clause 23 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
23.1 Authorisations
Each Obligor shall promptly:
(a) obtain, comply with and do all that is necessary to maintain in full
force and effect; and
(b) supply certified copies to the Agent of,
any Authorisation required under any law or regulation of its jurisdiction
of incorporation to enable it to perform its obligations under the Finance
Documents and to ensure the legality, validity, enforceability or
admissibility in evidence in its jurisdiction of incorporation of any
Finance Document subject to any limitations expressed in Clause 20.2
(Binding Obligations).
23.2 Compliance with laws
Each Obligor shall comply in all respects with all laws to which it may be
subject, if failure so to comply would materially impair its ability to
perform its obligations under the Finance Documents.
23.3 Negative pledge
(a) No Obligor shall (and the Company shall ensure that no other member of the
Group will) create or permit to subsist any Security over any of its
assets.
(b) Paragraph (a) above does not apply to:
(i) any Security listed in Schedule 9 (Existing Security) except to the
extent the principal amount secured by that Security exceeds the
amount stated in that Schedule;
(ii) any lien arising by operation of law and in the ordinary course of
business;
(iii) any Security over or affecting any asset acquired by a member of the
Group after the date of this Agreement if:
A. the Security was not created in contemplation of the acquisition
of that asset by a member of the Group;
B. the principal amount secured has not been increased in
contemplation of or since the acquisition of that asset by a
member of the Group; and
C. the Security is removed or discharged within six months of the
date of acquisition of such asset;
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(iv) any Security over or affecting any asset of any company which
becomes a member of the Group after the date of this Agreement,
where the Security is created prior to the date on which that
company becomes a member of the Group, if:
A. the Security was not created in contemplation of the
acquisition of that company;
B. the principal amount secured has not increased in
contemplation of or since the acquisition of that company;
and
C. the Security is removed or discharged within six months of
that company becoming a member of the Group;
(v) any Security existing by virtue of (a) any omnibus guarantee and
set-off agreement entered into by any member of the Group with
Lloyds TSB Bank Plc or (b) any right over any account of any member
of the Group with any bank pursuant to which that bank is entitled
to set-off against balances standing to the credit of such account
debit balances on accounts of other members of the Group with that
bank, so long as interest charged by that bank in respect of those
debit balances is calculated net of any credit balances on any
account against which that bank has those rights of set-off;
(vi) any Security given by one member of the Group to another member of
the Group;
(vii) any Security over goods or documents evidencing title to goods
arising in the ordinary course of a documentary credit transaction
carried out in the ordinary course of business;
(viii) Security covering assets the subject of equipment and finance
leases, hire purchase or conditional sale or similar arrangements
entered into by a member of the Group, provided that:
A. such Security in existence prior to the date of this Agreement
shall be permitted only to the extent that the Agent has prior
to the date of this Agreement confirmed to the Company that it
has received adequate written details as to the general nature
and extent of the same (such confirmation not to be
unreasonably withheld or delayed); or
B. the amount secured by any such Security created after the date
of this Agreement covering assets other than computers or
office telecommunications equipment required for the business
of the Group does not at any time exceed (Pounds)2,500,000;
(ix) any Security created or outstanding with the prior written consent
of the Majority Lenders; or
(x) any Security securing indebtedness the principal amount of which
(when aggregated with the principal amount of any other
indebtedness which
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has the benefit of Security other than any permitted under
paragraphs (i) to (ix) above) does not exceed (Pounds)40,000,000
(or its equivalent in another currency or currencies).
23.4 Disposals
(a) No Obligor shall (and the Company shall ensure that no other member of the
Group will) enter into a single transaction or a series of transactions
(whether related or not and whether voluntary or involuntary) to sell,
lease, transfer or otherwise dispose of any asset.
(b) Paragraph (a) above does not apply to any sale, lease, transfer or other
disposal:
(i) made in the ordinary course of business of the disposing entity on
an arm's length basis;
(ii) of assets exchanged for or the consideration for which is to be
reinvested in other assets comparable or superior as to type, value
and quality;
(iii) of assets which have become obsolete and on an arm's length basis;
(iv) where the higher of the market value or consideration receivable in
respect of the relevant asset does not exceed (Pounds)20,000,000 or
(when aggregated with the higher of the market value or
consideration receivable for any other sale, lease, transfer or
other disposal under this paragraph
(iv) does not exceed (Pounds)50,000,000 (or its equivalent in another
currency or currencies) in any financial year.
(v) the payment of cash in the ordinary course of the relevant
company's business on an arm's length basis;
(vi) payments made by it under this agreement or any other Financial
Indebtedness permitted under this agreement;
(vii) permitted with the prior written consent of the Majority Lenders;
(viii) of surplus assets on an arm's length basis;
(ix) made by any member of the Group to any other member of the Group
(other than cash loans);
(x) of assets which are acquired as a result of an acquisition which a
member of the Group has entered into prior to the date of this
agreement or which is permitted under the terms of this Agreement
in circumstances where such assets are not necessary for the
continued operation of the relevant business and are disposed of on
an arm's length basis;
(xi) of assets in circumstances where the consideration payable in
respect of the relevant disposal is payable substantially in cash
provided that at least 75% of the net cash disposal proceeds are
applied in reduction of the outstanding Loans or cancellation of
Commitment in accordance with Clause 8.3 (Prepayment and
Cancellation - Disposal Proceeds).
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23.5 Merger
No Obligor shall (and the Company shall ensure that no other member of the
Group will) enter into any amalgamation, demerger, merger or corporate
reconstruction, except where a member of the Group is the surviving
entity.
23.6 Change of business
The Company shall procure that no substantial change is made to the
general nature of the business of the Group taken as a whole from that
carried on at the date of this Agreement.
23.7 Insurance
The Company will, and will procure that all other members of the Group
will, maintain insurances on or in relation to their respective businesses
and assets with underwriters and insurance companies of repute against
such risks of the kinds customarily insured against by, and in amounts
reasonably and commercially prudent for, companies carrying on similar
businesses in similar locations.
23.8 Acquisitions
The Company will not, and will procure that no member of its Group will,
in any one financial year, make any Acquisition, whether by one or a
series of transactions related or not, for consideration in cash or
otherwise, where either:
(a) the relevant Acquisition is a Class 1 transaction under the Listing
Rules of the UK Listing Authority; or
(b) where:
(i) the ratio of Net Debt (as at the last day of the Relevant
Period as shown in the Compliance Certificate most recently
delivered under Clause 21.2) to EBITDA (in respect of the
Relevant Period as shown in the Compliance Certificate most
recently delivered under Clause 21.2) is greater than 1.75:1
on any quarterly test date; and
(ii) the aggregate cash consideration for Acquisitions which are
made subsequent to such quarterly test date in the relevant
financial year and in respect of which (whether the relevant
Acquisition is in respect of a company, a business or an
undertaking) EBITDA in respect of the previous 12 month period
(as shown in the most recently produced audited accounts or,
if available in relation to a later date, the interim accounts
or pro forma management accounts for the relevant company,
business or undertaking) is negative, exceeds
(Pounds)50,000,000 in such financial year,
Provided That:
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A. if an Acquisition as referred to in paragraph (b)(ii) above is made
at a time when the ratio of Net Debt to EBITDA is greater than
1.75:1 and on a subsequent quarterly test date the ratio of Net Debt
to EBITDA falls below 1.75:1, the cash consideration for such
Acquisition will nevertheless be taken into account in determining
the aggregate cash consideration for Acquisitions for the financial
year in which such Acquisition was made;
B. no Acquisition which is funded by a combination of at least 90 per
cent equity investment and by not more than (Pounds)10,000,000 of
cash consideration shall be prohibited by this Clause 23.8 nor shall
such an Acquisition be taken into account in calculating the
aggregate cash consideration for Acquisitions in any financial year;
C. the restrictions in this Clause shall not apply to any Acquisitions
approved in writing by the Majority Lenders.
23.9 US Matters:
Each Obligor shall:
(a) promptly upon the request of the Agent, deliver to the Agent copies
of each Schedule B (Actuarial Information) to the Annual Report (IRS
Form 5500 Series) with respect of each applicable Employee Plan;
(b) (i) promptly and in any event within ten Business Days after it or
any of its ERISA Affiliates knows or has reason to know that any
ERISA Event has occurred; or (ii) in the case of any ERISA Event
which requires advance notice under Section 4043(b)(3) of ERISA,
promptly and in any event within five Business Days after such
advance notice is required if either such event is reasonably likely
to result in liability that could reasonably be expected to have a
Material Adverse Effect, deliver to the Agent a statement of its
chief financial officer or the chief financial officer of its ERISA
Affiliate describing such ERISA Event and the action, if any, which
it or such ERISA Affiliate proposes to take with respect thereto;
(c) promptly and in any event within fifteen Business Days after receipt
thereof by it or any of its ERISA Affiliates, deliver to the Agent
copies of each notice from the PBGC stating its intention to
terminate any Employee Plan or to have a trustee appointed to
administer any Employee Plan;
(d) during the term of this Agreement ensure that neither it nor any of
its ERISA Affiliates shall engage in a complete or partial
withdrawal, within the meaning of Sections 4203 and 4205 of ERISA,
from any Multiemployer Plan without the prior written consent of the
Agent unless such withdrawal could not reasonably be expected to
have a Material Adverse Effect;
(e) promptly upon becoming aware of any event or condition which would
constitute grounds for the termination of (or the appointment of a
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trustee to administer) any Employee Plan that could reasonably be
expected to result in a liability that could have a Material Adverse
Effect, provide an explanation by its chief financial officer or, as
the case may be, the chief financial officer of its ERISA Affiliate
affected by such event or condition, of such event or condition;
(f) not, and shall ensure that none of its ERISA Affiliates shall, adopt
an amendment to an Employee Plan requiring the provisions of
security under Section 307 of ERISA or Section 401(a)(29) of the
Internal Revenue Code in an amount that could reasonably be expected
to have a Material Adverse Effect;
(g) ensure that no Employee Plan is terminated under Section 4041 of
ERISA unless such termination would not reasonably be expected to
have a Material Adverse Effect; and
(h) use the proceeds of, or made available by virtue of, the Facilities
without violating any of Regulations U, T and X.
23.10 Priority Debt
The Company will not, and will not permit any member of its Group to,
create, issue, incur or assume Priority Debt unless the aggregate
principal amount of all Priority Debt outstanding immediately thereafter
(excluding Existing Priority Debt) does not exceed (Pounds)40,000,000.
For the purposes of this clause 23.10, any person becoming a member of
the Group after the date of this agreement shall be deemed, at the time
it becomes such a member of the Group, to have incurred all of its then
outstanding Debt at such time, and any person extending, renewing or
replacing any Debt shall be deemed to have incurred such Debt at the time
of such extension, renewal or replacement. This Clause 23.10 regulates
the level of Priority Debt and nothing contained in this Clause shall be
construed as permitting additional security beyond the level and
categories of security permitted under Clause 23.3(b) of this Agreement.
23.11 Acquired Companies
The undertakings and covenants contained in Clause 23.4 (Disposals) will
not apply to or in respect of any company or business which is the object
of any Acquisition by any member of the Group during the period from the
date of such Acquisition and ending on the date which is 6 months after
the date on which such Acquisition is completed (in this Clause 23.11
defined as the "Completion Date") in respect of:
(a) matters arising before the Completion Date or after the Completion
Date as a direct result of circumstances subsisting before the
Completion Date; or
(b) matters first arising after the Completion Date by reason of
contractual arrangements entered into prior to the Completion Date
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provided that after such period the undertakings and covenants in Clause
23.4 shall apply to all the members of the Group irrespective of when the
relevant matter arose.
24. EVENTS OF DEFAULT
Each of the events or circumstances set out in Clause 24 is an Event of
Default.
24.1 Failure to Pay
Any Borrower fails to pay any amount (whether of principal, interest or
otherwise) payable under the terms of this agreement (provided that no
such failure or non-payment shall be an Event of Default if the Agent
receives payment within three Business Days of the due date hereunder).
24.2 Failure to comply with Financial Covenants
Any Obligor fails to comply with the covenants specified in clause 22 of
this agreement.
24.3 Failure to Comply with other Covenants
Any Obligor fails to comply with any other provision of this agreement or
any other Finance Document and either such breach is, in the reasonable
opinion of the Agent, not capable of remedy or such breach is, in the
reasonable opinion of the Agent, capable of remedy and is not remedied
within 21 days.
24.4 Breach of Representation or Warranty
Any representation, warranty or statement which is made by any Obligor in
any of the Finance Documents or which is contained in any certificate,
statement or notice provided under or pursuant to any of the Finance
Documents proves to have been incorrect or misleading in any material
respect when made (or deemed repeated).
24.5 Cross-Default:
(i) any Financial Indebtedness in an amount exceeding (Pounds)2,500,000 or its
equivalent of a member of the Group is not paid when due (or within any
originally applicable grace period); or
(ii) an event of default howsoever described relating to a member of the Group
occurs (taking into account any originally applicable grace period) under
any document relating to Financial Indebtedness in an amount exceeding
(Pounds)2,500,000 or its equivalent of such member of the Group which
renders those Financial Indebtedness capable of being declared prematurely
due and payable (save in the case of events of default under documents
evidencing the principal debt related to Financial Indebtedness under
paragraph (i) of the definition of that term where the relevant member of
the Group satisfies its obligations under the relevant guarantee,
indemnity or other suretyship obligation); or
(iii) any Financial Indebtedness in an amount exceeding (Pounds)2,500,000 or its
equivalent of any member of the Group becomes prematurely due and payable
or is placed
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on demand (other than where originally on demand) as a result of an event
of default (however described) under the document relating to such
Financial Indebtedness.
24.6 Inability to Pay Debts
(i) the Company or any Material Subsidiary becomes insolvent or unable to pay
its debts as they fall due or admits its inability to pay its debts as
they fall due;
(ii) any order is made or resolution passed or other action taken for the
suspension of payments, protection from creditors or bankruptcy of the
Company or any Material Subsidiary or the Company or any Material
Subsidiary announces an intention to suspend making payments to all or
any class of its creditors;
(iii) the Company or any Material Subsidiary, due to reasons which in the
opinion of the Majority Banks acting reasonably relate to financial
difficulty, convenes a meeting of all or any class of its creditors for
the purpose of proposing or proposes or makes any arrangement or
composition with, or any assignment for the benefit of, all or any class
of its creditors;
(iv) the Company or any Material Subsidiary, due to reasons which in the
opinion of the Majority Banks acting reasonably relate to financial
difficulty, proposes or enters into any negotiations for or in connection
with, the re-scheduling, restructuring or re-adjustment of any
indebtedness or a moratorium is declared in respect of any of its
indebtedness.
24.7 Distress or Attachment
Any distress, execution, attachment, sequestration or other legal process
affects the whole or any part of the assets of the Company or any
Material Subsidiary in respect of assets of a value exceeding
(Pounds)1,000,000 or its equivalent in aggregate and is not discharged
within 14 days.
24.8 Insolvency:
(i) an administrative or other receiver or manager or similar officer is
appointed of the Company or any Material Subsidiary over the whole or any
part of the assets of the Company or any Material Subsidiary or the
Company or any Material Subsidiary requests any person to appoint such a
receiver or similar officer or any other procedural steps are taken to
enforce any Encumbrance over any material property of the Company or a
Material Subsidiary or any encumbrancer takes possession of all or any
part of the assets of the Company or a Material Subsidiary;
(ii) any order is made or any resolution is passed or any petition is
presented (other than a petition for a winding up which is not advertised
or notified to any other creditor and is disputed by the Company or the
relevant Material Subsidiary in good faith and which is dismissed or
withdrawn within a period of 45 days (in the case of a US Obligor or a
Material Subsidiary incorporated in the United States of America) or
within a period of 14 days (in all other cases)) or other procedural
steps (including the convening of any shareholders' meeting but excluding
steps
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taken by a creditor with a view to issuing or presenting a petition to
wind up) are taken for:
(1) the receivership, winding up, dissolution or liquidation of the
Company or a Material Subsidiary other than (a) for the purpose of a
reconstruction or amalgamation the terms of which have previously
been approved by the Agent in writing on the instructions of the
Majority Banks; or (b) the solvent winding-up or dissolution of the
Company or any Material Subsidiary the assets of which have been
previously transferred to the Company or another Material
Subsidiary;
(2) the making of an administration order against the Company or any
Material Subsidiary;
(iii) (any order is made or resolution passed or other action taken for the
suspension of payments, protection from creditors or bankruptcy of the
Company or any Material Subsidiary.
24.9 Invalidity, etc:
This agreement shall in any respect no longer be in full force and effect
or cease to be continuing or be or purport to be determined or be or
become invalid or unenforceable or if the validity, enforceability or
applicability thereof to any obligation purported to be guaranteed or
payable shall be disputed by a member of the Group.
24.10 Other Jurisdictions:
There is any occurrence or situation arising outside the jurisdiction of
the High Court of Justice of England and Wales which shall have a
substantially similar effect to clauses 24.5, 24.6, 24.7 and 24.8.
24.11 Unlawfulness:
At any time it is or becomes unlawful for an Obligor to perform any of
its obligations under any of the Finance Documents.
24.12 Cessation of Business:
Any Obligor ceases, or announces an intention to cease to carry on all or
a substantial part of its business other than by way of disposal
permitted under clause 23.4.
24.13 Material Adverse Change:
Any other event or series of events and whether related or not
(including, without limitation, any material adverse change in the
business, assets or financial position of the Group after the date of
this Agreement) occurs as a result of which the Company could reasonably
be expected to be unable to meet its payment or other material
obligations under the Finance Documents to the Agent or any Bank.
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24.14 ERISA Event:
(a) Any ERISA Event shall have occurred or is reasonably expected to occur,
any Obligor or any ERISA Affiliate has incurred or is likely to incur a
liability to or on account of a Multiemployer Plan as a result of a
violation of Section 515 of ERISA or under Section 4201, 4204 or 4212(c)
of ERISA, the fair market value of the assets of any Employee Plan
subject to Title IV of ERISA is less than the present value of the
"benefit liabilities" (within the meaning of Section 4001(a)(16) of
ERISA) under such Employee Plan using the actuarial assumptions and
methods used by the actuary to such Employee Plan in its most recent
valuation of such Employee Plan, any Obligor or any ERISA Affiliate has
incurred or is likely to incur a liability to or on account of an
Employee Plan under Section 409, 502(i), or 502(l) of ERISA or Section
401(a)(29), 4971 or 4975 of the Internal Revenue Code;
(b) there shall result from any such event or events the imposition of a
lien, the granting of Security, or the incurrence of a liability or a
material risk of incurring a liability; and
(c) such lien, Security or liability, individually, and/or in the aggregate,
has had, or could reasonably be expected to have, a Material Adverse
Effect.
24.15 Acceleration
On and at any time after the occurrence of an Event of Default which is
continuing the Agent may, and shall if so directed by the Majority
Lenders, by notice to the Company:
(a) cancel the Total Commitments whereupon they shall immediately be
cancelled;
(b) declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued under the Finance Documents
be immediately due and payable, whereupon they shall become
immediately due and payable; and/or
(c) declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by the
Agent on the instructions of the Majority Lenders.
24.16 Acquired Companies
Until the expiry of a period of 6 months following the date of the
relevant Acquisition, the Event of Default contained in Clause 24.5(ii)
and Clause 24.5(iii) (Cross-default) shall not apply to any or all of the
company or business so acquired (or any of its Subsidiaries) where the
relevant agreements were entered into before the completion of such
Acquisition.
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SECTION 9
CHANGES TO PARTIES
25. CHANGES TO THE LENDERS
25.1 Assignments and transfers by the Lenders
Subject to this Clause 25, a Lender (the "Existing Lender") may:
(a) assign any of its rights; or
(b) transfer by novation any of its rights and obligations,
to another bank or financial institution (the "New Lender").
25.2 Conditions of assignment or transfer
(a) The consent of the Company is required for an assignment or transfer by a
Lender unless the assignment or transfer is to another Lender or an
Affiliate of a Lender. Assignments or transfers by a Lender must be made
in minimum amounts of $5,000,000.
(b) The consent of the Company to an assignment or transfer must not be
unreasonably withheld or delayed. The Company will be deemed to have given
its consent 10 Business Days after the Lender has requested it unless
consent is expressly refused by the Company within that time.
(c) The consent of the Company to an assignment or transfer must not be
withheld solely because the assignment or transfer may result in an
increase to the Mandatory Cost.
(d) An assignment will only be effective on receipt by the Agent of written
confirmation from the New Lender (in form and substance satisfactory to
the Agent) that the New Lender will assume the same obligations to the
other Finance Parties as it would have been under if it was an Original
Lender.
(e) A transfer will only be effective if the procedure set out in Clause 25.5
(Procedure for transfer) is complied with.
(f) If:
(i) a Lender assigns or transfers any of its rights or obligations under
the Finance Documents or changes its Facility Office; and
(ii) as a result of circumstances existing at the date the assignment,
transfer or change occurs, an Obligor would be obliged to make a
payment to the New Lender or Lender acting through its new Facility
Office under Clause 14 (Tax gross-up and indemnities) or Clause 15
(Increased Costs),
then the New Lender or Lender acting through its new Facility Office is
only entitled to receive payment under those Clauses to the same extent as
the Existing
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Lender or Lender acting through its previous Facility Office would have
been if the assignment, transfer or change had not occurred.
25.3 Assignment or transfer fee
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee of
(Pounds)1,000.
25.4 Limitation of responsibility of Existing Lenders
(a) Unless expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New Lender
for:
(i) the legality, validity, effectiveness, adequacy or enforceability of
the Finance Documents or any other documents;
(ii) the financial condition of any Obligor;
(iii) the performance and observance by any Obligor of its obligations
under the Finance Documents or any other documents; or
(iv) the accuracy of any statements (whether written or oral) made in or
in connection with any Finance Document or any other document,
and any representations or warranties implied by law are excluded.
(b) Each New Lender confirms to the Existing Lender and the other Finance
Parties that it:
(i) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and affairs
of each Obligor and its related entities in connection with its
participation in this Agreement and has not relied exclusively on
any information provided to it by the Existing Lender in connection
with any Finance Document; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities whilst any
amount is or may be outstanding under the Finance Documents or any
Commitment is in force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the rights and
obligations assigned or transferred under this Clause 25; or
(ii) support any losses directly or indirectly incurred by the New Lender
by reason of the non-performance by any Obligor of its obligations
under the Finance Documents or otherwise.
25.5 Procedure for transfer
(a) Subject to the conditions set out in Clause 25.2 (Conditions of assignment
or transfer) a transfer is effected in accordance with paragraph (b) below
when the Agent
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executes an otherwise duly completed Transfer Certificate delivered to it
by the Existing Lender and the New Lender. The Agent shall, as soon as
reasonably practicable after receipt by it of a duly completed Transfer
Certificate appearing on its face to comply with the terms of this
Agreement delivered in accordance with the terms of this Agreement,
execute that Transfer Certificate.
(b) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the Existing Lender
seeks to transfer by novation its rights and obligations under the
Finance Documents each of the Obligors and the Existing Lender shall
be released from further obligations towards one another under the
Finance Documents and their respective rights against one another
shall be cancelled (being the "Discharged Rights and Obligations");
(ii) each of the Obligors and the New Lender shall assume obligations
towards one another and/or acquire rights against one another which
differ from the Discharged Rights and Obligations only insofar as
that Obligor and the New Lender have assumed and/or acquired the
same in place of that Obligor and the Existing Lender;
(iii) the Agent, the Arranger, the New Lender and other Lenders shall
acquire the same rights and assume the same obligations between
themselves as they would have acquired and assumed had the New
Lender been an Original Lender with the rights and/or obligations
acquired or assumed by it as a result of the transfer and to that
extent the Agent, the Arranger and the Existing Lender shall each be
released from further obligations to each other under this
Agreement; and
(iv) the New Lender shall become a Party as a "Lender".
25.6 Disclosure of information
Any Lender may disclose to any of its Affiliates and any other person:
(a) to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
(b) with (or through) whom that Lender enters into (or may potentially
enter into) any sub-participation in relation to, or any other
transaction under which payments are to be made by reference to,
this Agreement or any Obligor; or
(c) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
any information about any Obligor, the Group and the Finance Documents as
that Lender shall consider appropriate if, in relation to paragraphs (a)
and (b) above, the person to whom the information is to be given has
entered into a Confidentiality Undertaking.
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26. CHANGES TO THE OBLIGORS
26.1 Assignments and transfer by Obligors
No Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
26.2 Additional Borrowers
(a) The Company may request that any of its wholly owned Subsidiaries becomes
an Additional Borrower. That Subsidiary shall become an Additional
Borrower if:
(i) in the case only of a Subsidiary which is not incorporated in the
United Kingdom or the United States of America, all the Lenders
approve the addition of that Subsidiary;
(ii) the Company delivers to the Agent a duly completed and executed
Accession Letter;
(iii) the Company confirms that no Default is continuing or would occur as
a result of that Subsidiary becoming an Additional Borrower; and
(iv) the Agent has received all of the documents and other evidence listed
in Part II of Schedule 2 (Conditions precedent) in relation to that
Additional Borrower, each in form and substance satisfactory to the
Agent.
(b) The Agent shall notify the Company and the Lenders promptly upon being
satisfied that it has received (in form and substance satisfactory to it)
all the documents and other evidence listed in Part II of Schedule 2
(Conditions precedent).
26.3 Resignation of a Borrower
(a) The Company may request that a Borrower (other than the Company) ceases to
be a Borrower by delivering to the Agent a Resignation Letter.
(b) The Agent shall accept a Resignation Letter and notify the Company and the
Lenders of its acceptance if:
(i) no Default is continuing or would result from the acceptance of the
Resignation Letter (and the Company has confirmed this is the case);
and
(ii) the Borrower is under no actual or contingent obligations as a
Borrower under any Finance Documents;
whereupon that company shall cease to be a Borrower and shall have no
further rights or obligations under the Finance Documents.
26.4 Additional Guarantors
(a) The Company may request that any of its wholly owned Subsidiaries become an
Additional Guarantor. That Subsidiary shall become an Additional Guarantor
if:
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(i) the Company delivers to the Agent a duly completed and executed
Accession Letter; and
(ii) the Agent has received all of the documents and other evidence
listed in Part II of Schedule 2 (Conditions Precedent) in relation
to that Additional Guarantor, each in form and substance
satisfactory to the Agent.
(b) The Agent shall notify the Company and the Lenders promptly upon being
satisfied that it has received (in form and substance satisfactory to it)
all the documents and other evidence listed in Part II of Schedule 2
(Conditions Precedent).
26.5 Repetition of Representations
Delivery of an Accession Letter constitutes confirmation by the relevant
Subsidiary that the Repeating Representations are true and correct in
relation to it as at the date of delivery as if made by reference to the
facts and circumstances then existing.
26.6 Resignation of a Guarantor
The Company may request that a Guarantor (other than the Company) ceases
to be a Guarantor by delivering to the Agent a Resignation Letter. The
Agent shall accept a Resignation Letter and notify the Company and the
Lenders of its acceptance if no Default (including, without limitation, a
breach of Clause 23.11 (Priority Debt)) is continuing or would result from
the acceptance of the Resignation Letter (and the Company has confirmed
this is the case).
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SECTION 10
THE FINANCE PARTIES
27. ROLE OF THE AGENT AND THE ARRANGER
27.1 Appointment of the Agent
(a) Each of the Arranger and the Lenders appoints the Agent to act as its
agent under and in connection with the Finance Documents.
(b) Each of the Arranger and the Lenders authorises the Agent to exercise the
rights, powers, authorities and discretions specifically given to the
Agent under or in connection with the Finance Documents together with any
other incidental rights, powers, authorities and discretions.
27.2 Duties of the Agent
(a) The Agent shall promptly forward to a Party the original or a copy of any
document which is delivered to the Agent for that Party by any other
Party.
(b) If the Agent receives notice from a Party referring to this Agreement,
describing a Default and stating that the circumstance described is a
Default, it shall promptly notify the Lenders.
(c) The Agent shall promptly notify the Lenders of any Default arising under
Clause 24.1 (Non-payment).
(d) The Agent's duties under the Finance Documents are solely mechanical and
administrative in nature.
27.3 Role of the Arranger
Except as specifically provided in the Finance Documents, the Arranger has
no obligations of any kind to any other Party under or in connection with
any Finance Document.
27.4 No fiduciary duties
(a) Nothing in this Agreement constitutes the Agent or the Arranger as a
trustee or fiduciary of any other person.
(b) Neither the Agent nor the Arranger shall be bound to account to any Lender
for any sum or the profit element of any sum received by it for its own
account.
27.5 Business with the Group
The Agent and the Arranger may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any member
of the Group.
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27.6 Rights and discretions of the Agent
(a) The Agent may rely on:
(i) any representation, notice or document believed by it to be genuine,
correct and appropriately authorised; and
(ii) any statement made by a director, authorised signatory or employee
of any person regarding any matters which may reasonably be assumed
to be within his knowledge or within his power to verify.
(b) The Agent may assume (unless it has received notice to the contrary in its
capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual knowledge of a Default
arising under Clause 24.1 (Failure to Pay));
(ii) any right, power, authority or discretion vested in any Party or the
Majority Lenders has not been exercised; and
(iii) any notice or request made by the Company (other than a Utilisation
Request or Selection Notice) is made on behalf of and with the
consent and knowledge of all the Obligors.
(c) The Agent may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors or other experts.
(d) The Agent may act in relation to the Finance Documents through its
personnel and agents.
27.7 Majority Lenders' instructions
(a) Unless a contrary indication appears in a Finance Document, the Agent
shall (a) act in accordance with any instructions given to it by the
Majority Lenders (or, if so instructed by the Majority Lenders, refrain
from acting or exercising any right, power, authority or discretion vested
in it as Agent) and (b) not be liable for any act (or omission) if it acts
(or refrains from taking any action) in accordance with such an
instruction of the Majority Lenders.
(b) Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all the
Lenders and the Arranger.
(c) The Agent may refrain from acting in accordance with the instructions of
the Majority Lenders (or, if appropriate, the Lenders) until it has
received such security as it may require for any cost, loss or liability
(together with any associated VAT) which it may incur in complying with
the instructions.
(d) In the absence of instructions from the Majority Lenders (or, if
appropriate, the Lenders), the Agent may act (or refrain from taking
action) as it considers to be in the best interest of the Lenders.
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(e) The Agent is not authorised to act on behalf of a Lender (without first
obtaining that Lender's consent) in any legal or arbitration proceedings
relating to any Finance Document.
27.8 Responsibility for documentation
Neither the Agent nor the Arranger:
(a) is responsible for the adequacy, accuracy and/or completeness of any
information (whether oral or written) supplied by the Agent, the
Arranger, an Obligor or any other person given in or in connection
with any Finance Document or the Information Memorandum; or
(b) is responsible for the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other agreement,
arrangement or document entered into, made or executed in
anticipation of or in connection with any Finance Document.
27.9 Exclusion of liability
(a) Without limiting paragraph (b) below, the Agent will not be liable for any
action taken by it under or in connection with any Finance Document,
unless directly caused by its gross negligence or wilful misconduct.
(b) No Party may take any proceedings against any officer, employee or agent
of the Agent in respect of any claim it might have against the Agent or in
respect of any act or omission of any kind by that officer, employee or
agent in relation to any Finance Document and any officer, employee or
agent of the Agent may rely on this Clause.
(c) The Agent will not be liable for any delay (or any related consequences)
in crediting an account with an amount required under the Finance
Documents to be paid by the Agent if the Agent has taken all necessary
steps as soon as reasonably practicable to comply with the regulations or
operating procedures of any recognised clearing or settlement system used
by the Agent for that purpose.
27.10 Lenders' indemnity to the Agent
Each Lender shall (in proportion to its share of the Total Commitments or,
if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the
Agent, within three Business Days of demand, against any cost, loss or
liability incurred by the Agent (otherwise than by reason of the Agent's
gross negligence or wilful misconduct) in acting as Agent under the
Finance Documents (unless the Agent has been reimbursed by an Obligor
pursuant to a Finance Document).
27.11 Resignation of the Agent
(a) The Agent may resign and appoint one of its Affiliates acting through an
office in the United Kingdom as successor by giving notice to the Lenders
and the Company.
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(b) Alternatively the Agent may resign by giving notice to the Lenders and the
Company, in which case the Majority Lenders (after consultation with the
Company) may appoint a successor Agent.
(c) If the Majority Lenders have not appointed a successor Agent in accordance
with paragraph (b) above within 30 days after notice of resignation was
given, the Agent (after consultation with the Company) may appoint a
successor Agent (acting through an office in the United Kingdom).
(d) The retiring Agent shall, at its own cost, make available to the successor
Agent such documents and records and provide such assistance as the
successor Agent may reasonably request for the purposes of performing its
functions as Agent under the Finance Documents.
(e) The Agent's resignation notice shall only take effect upon the appointment
of a successor.
(f) Upon the appointment of a successor, the retiring Agent shall be
discharged from any further obligation in respect of the Finance Documents
but shall remain entitled to the benefit of this Clause 27. Its successor
and each of the other Parties shall have the same rights and obligations
amongst themselves as they would have had if such successor had been an
original Party.
(g) After consultation with the Company, the Majority Lenders may, by notice
to the Agent, require it to resign in accordance with paragraph (b) above.
In this event, the Agent shall resign in accordance with paragraph (b)
above.
27.12 Agency division separate
(a) In acting as Agent and/or Arranger for the Lenders, the agency section of
the Capital Markets department of Lloyds TSB Bank Plc shall be treated as
a separate entity from any other of the sections, departments or divisions
of the Agent or its subsidiaries, and without detracting from the
generality of the foregoing, in the event that any of the Agent's other
sections, departments, divisions or subsidiaries should act for any member
of the Group in any capacity whether as bankers or otherwise, any
information given by any member of the Group to any of such sections,
departments or divisions of the Agent or subsidiaries shall be treated as
confidential by such sections, departments or divisions of the Agent and
subsidiaries and the Agent shall between itself and the Lenders not be
obliged to disclose the same to any other person (including the agency
section of the Agent).
(b) Notwithstanding any other provision of any Finance Document to the
contrary, neither the Agent nor the Arranger are obliged to disclose to
any other person (i) any confidential information or (ii) any other
information if the disclosure would or might in its reasonable opinion
constitute a breach of any law or a breach of a fiduciary duty.
27.13 Relationship with the Lenders
(a) The Agent may treat each Lender as a Lender, entitled to payments under
this Agreement and acting through its Facility Office unless it has
received not less
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than five Business Days prior notice from that Lender to the contrary in
accordance with the terms of this Agreement.
(b) Each Lender shall supply the Agent with any information required by the
Agent in order to calculate the Mandatory Cost in accordance with
Schedule 4 (Mandatory Cost formulae).
27.14 Credit appraisal by the Lenders
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Lender confirms to the Agent and the Arranger that it has been, and
will continue to be, solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection
with any Finance Document including but not limited to:
(a) the financial condition, status and nature of each member of the
Group;
(b) the legality, validity, effectiveness, adequacy or enforceability
of any Finance Document and any other agreement, arrangement or
document entered into, made or executed in anticipation of, under
or in connection with any Finance Document;
(c) whether that Lender has recourse, and the nature and extent of that
recourse, against any Party or any of its respective assets under
or in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance Document;
and
(d) the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Agent, any
Party or by any other person under or in connection with any
Finance Document, the transactions contemplated by the Finance
Documents or any other agreement, arrangement or document entered
into, made or executed in anticipation of, under or in connection
with any Finance Document.
27.15 Lenders' tax status confirmation
Each Lender confirms in favour of the Agent on the date of this Agreement
or, in the case of a Lender which becomes a Party pursuant to a transfer
or assignment, on the date on which the relevant transfer or assignment
becomes effective that either:
(a) it is not resident for tax purposes in the United Kingdom and is
beneficially entitled to its share of the Loan and associated
interest; or
(b) it is a bank as defined for the purposes of section 349 of the Taxes
Act and is beneficially entitled to its share of the Loan and
associated interest,
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and each Lender shall promptly notify the Agent if there is any change in
its position from that set out above.
27.16 Reference Banks
If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender
of which it is an Affiliate) ceases to be a Lender, the Agent shall (in
consultation with the Company) appoint another Lender or an Affiliate of
a Lender to replace that Reference Bank.
27.17 Agent's Management Time
Any amount payable to the Agent under Clause 16.3 (Indemnity to the
Agent), Clause 18 (Costs and expenses) and Clause 27.10 (Lenders'
indemnity to the Agent) shall include the cost of utilising the Agent's
management time or other resources and will be calculated on the basis of
such reasonable daily or hourly rates as the Agent may notify to the
Company and the Lenders, and is in addition to any fee paid or payable to
the Agent under Clause 13 (Fees).
28. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its affairs
(tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit, relief,
remission or repayment available to it or the extent, order and
manner of any claim; or
(c) oblige any Finance Party to disclose any information relating to its
affairs (tax or otherwise) or any computations in respect of Tax.
29. SHARING AMONG THE LENDERS
29.1 Payments to Lenders
If a Lender (a "Recovering Lender") receives or recovers any amount from
an Obligor other than in accordance with Clause 30 (Payment mechanics)
and applies that amount to a payment due under the Finance Documents
then:
(a) the Recovering Lender shall, within three Business Days, notify
details of the receipt or recovery to the Agent;
(b) the Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Lender would have been paid had
the receipt or recovery been received or made by the Agent and
distributed in accordance with Clause 30 (Payment mechanics),
without taking account of any Tax which would be imposed on the
Agent in relation to the receipt, recovery or distribution; and
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(c) the Recovering Lender shall, within three Business Days of demand by
the Agent, pay to the Agent an amount (the "Sharing Payment") equal
to such receipt or recovery less any amount which the Agent
determines may be retained by the Recovering Lender as its share of
any payment to be made, in accordance with Clause 30.5 (Partial
payments).
29.2 Redistribution of payments
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other than
the Recovering Lender) in accordance with Clause 30.5 (Partial payments).
29.3 Recovering Lender's rights
(a) On a distribution by the Agent under Clause 29.2 (Redistribution of
payments), the Recovering Lender will be subrogated to the rights of the
Finance Parties which have shared in the redistribution.
(b) If and to the extent that the Recovering Lender is not able to rely on its
rights under paragraph (a) above, the relevant Obligor shall be liable to
the Recovering Lender for a debt equal to the Sharing Payment which is
immediately due and payable.
29.4 Reversal of redistribution
If any part of the Sharing Payment received or recovered by a Recovering
Lender becomes repayable and is repaid by that Recovering Lender, then:
(a) each Lender which has received a share of the relevant Sharing
Payment pursuant to Clause 29.2 (Redistribution of payments) shall,
upon request of the Agent, pay to the Agent for account of that
Recovering Lender an amount equal to its share of the Sharing Payment
(together with an amount as is necessary to reimburse that Recovering
Lender for its proportion of any interest on the Sharing Payment
which that Recovering Lender is required to pay); and
(b) that Recovering Lender's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be
liable to the reimbursing Lender for the amount so reimbursed.
29.5 Exceptions
(a) This Clause 29 shall not apply to the extent that the Recovering Lender
would not, after making any payment pursuant to this Clause, have a valid
and enforceable claim against the relevant Obligor.
(b) A Recovering Lender is not obliged to share with any other Lender any
amount which the Recovering Lender has received or recovered as a result
of taking legal or arbitration proceedings, if:
(i) it notified the other Lenders of the legal or arbitration
proceedings; and
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(ii) the other Lender had an opportunity to participate in those legal or
arbitration proceedings but did not do so as soon as reasonably
practicable having received notice or did not take separate legal or
arbitration proceedings.
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SECTION 11
ADMINISTRATION
30. PAYMENT MECHANICS
30.1 Payments to the Agent
(a) On each date on which an Obligor or a Lender is required to make a payment
under a Finance Document, that Obligor or Lender shall make the same
available to the Agent (unless a contrary indication appears in a Finance
Document) for value on the due date at the time and in such funds
specified by the Agent as being customary at the time for settlement of
transactions in the relevant currency in the place of payment.
(b) Payment shall be made to such account in the principal financial centre of
the country of that currency (or, in relation to euro, in the principal
financial centre in a Participating Member State or London) with such bank
as the Agent specifies.
30.2 Distributions by the Agent
Each payment received by the Agent under the Finance Documents for another
Party shall, subject to Clause 30.3 (Distributions to an Obligor) and
Clause 30.4 (Clawback), be made available by the Agent as soon as
practicable after receipt to the Party entitled to receive payment in
accordance with this Agreement (in the case of a Lender, for the account
of its Facility Office), to such account as that Party may notify to the
Agent by not less than five Business Days' notice with a bank in the
principal financial centre of the country of that currency (or, in
relation to euro, in the principal financial centre of a Participating
Member State or London).
30.3 Distributions to an Obligor
The Agent may (with the consent of the Obligor or in accordance with
Clause 31 (Set-off)) apply any amount received by it for that Obligor in
or towards payment (on the date and in the currency and funds of receipt)
of any amount due from that Obligor under the Finance Documents or in or
towards purchase of any amount of any currency to be so applied.
30.4 Clawback
(a) Where a sum is to be paid to the Agent under the Finance Documents for
another Party, the Agent is not obliged to pay that sum to that other
Party (or to enter into or perform any related exchange contract) until it
has been able to establish to its satisfaction that it has actually
received that sum.
(b) If the Agent pays an amount to another Party and it proves to be the case
that the Agent had not actually received that amount, then the Party to
whom that amount (or the proceeds of any related exchange contract) was
paid by the Agent shall on demand refund the same to the Agent together
with interest on that amount from the date of payment to the date of
receipt by the Agent, calculated by the Agent to reflect its cost of funds
(acting reasonably).
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30.5 Partial payments
(a) If the Agent receives a payment that is insufficient to discharge all the
amounts then due and payable by an Obligor under the Finance Documents,
the Agent shall apply that payment towards the obligations of that Obligor
under the Finance Documents in the following order:
(i) first, in or towards payment pro rata of any unpaid fees, costs and
expenses of the Agent or the Arranger under the Finance Documents;
(ii) secondly, in or towards payment pro rata of any accrued interest or
commission due but unpaid under this Agreement;
(iii) thirdly, in or towards payment pro rata of any principal due but
unpaid under this Agreement; and
(iv) fourthly, in or towards payment pro rata of any other sum due but
unpaid under the Finance Documents.
(b) The Agent shall, if so directed by the Majority Lenders, vary the order
set out in paragraphs (a)(ii) to (iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation made by an
Obligor.
30.6 No set-off by Obligors
All payments to be made by an Obligor under the Finance Documents shall be
calculated and be made without (and free and clear of any deduction for)
set-off or counterclaim.
30.7 Business Days
(a) Any payment which is due to be made on a day that is not a Business Day
shall be made on the next Business Day in the same calendar month (if
there is one) or the preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal or an
Unpaid Sum under this Agreement interest is payable on the principal or
Unpaid Sum at the rate payable on the original due date.
30.8 Currency of account
(a) Subject to paragraphs (b) to (e) below, the Base Currency is the currency
of account and payment for any sum due from an Obligor under any Finance
Document.
(b) A repayment of a Loan or Unpaid Sum or a part of a Loan or Unpaid Sum
shall be made in the currency in which that Loan or Unpaid Sum is
denominated on its due date.
(c) Each payment of interest shall be made in the currency in which the sum in
respect of which the interest is payable was denominated when that
interest accrued.
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(d) Each payment in respect of costs, expenses or Taxes shall be made in the
currency in which the costs, expenses or Taxes are incurred.
(e) Any amount expressed to be payable in a currency other than the Base
Currency shall be paid in that other currency.
30.9 Change of currency
(a) Unless otherwise prohibited by law, if more than one currency or currency
unit are at the same time recognised by the central bank of any country as
the lawful currency of that country, then:
(i) any reference in the Finance Documents to, and any obligations
arising under the Finance Documents in, the currency of that country
shall be translated into, or paid in, the currency or currency unit
of that country designated by the Agent (after consultation with the
Company); and
(ii) any translation from one currency or currency unit to another shall
be at the official rate of exchange recognised by the central bank
for the conversion of that currency or currency unit into the other,
rounded up or down by the Agent (acting reasonably).
(b) If a change in any currency of a country occurs, this Agreement will, to
the extent the Agent (acting reasonably and after consultation with the
Company) specifies to be necessary, be amended to comply with any
generally accepted conventions and market practice in the Relevant
Interbank Market and otherwise to reflect the change in currency.
31. SET-OFF
A Finance Party may set off any matured obligation due from an Obligor
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance Party
to that Obligor, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the
set-off.
32. NOTICES
32.1 Communications in writing
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax, letter or telex.
32.2 Addresses
The address, fax number and telex number (and the department or officer,
if any, for whose attention the communication is to be made) of each Party
for any
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communication or document to be made or delivered under or in connection
with the Finance Documents is:
(a) in the case of the Company that identified with its name below;
(b) in the case of each Lender or any other Original Obligor, that
notified in writing to the Agent on or prior to the date on which it
becomes a Party; and
(c) in the case of the Agent, that identified with its name below,
or any substitute address, fax number, telex number or department or
officer as the Party may notify to the Agent (or the Agent may notify to
the other Parties, if a change is made by the Agent) by not less than five
Business Days' notice.
32.3 Delivery
(a) Any communication or document made or delivered by one person to another
under or in connection with the Finance Documents will only be effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been left at the relevant address
or five Business Days after being deposited in the post postage
prepaid in an envelope addressed to it at that address; or
(iii) if by way of telex, when despatched, but only if, at the time of
transmission, the correct answerback appears at the start and at the
end of the sender's copy of the notice,
and, if a particular department or officer is specified as part of its
address details provided under Clause 32.2 (Addresses), if addressed to
that department or officer.
(b) Any communication or document to be made or delivered to the Agent will be
effective only when actually received by the Agent and then only if it is
expressly marked for the attention of the department or officer identified
with the Agent's signature below (or any substitute department or officer
as the Agent shall specify for this purpose).
(c) All notices from or to an Obligor shall be sent through the Agent.
(d) Any communication or document made or delivered to the Company in
accordance with this Clause will be deemed to have been made or delivered
to each of the Obligors.
32.4 Notification of address, fax number and telex number
Promptly upon receipt of notification of an address, fax number and telex
number or change of address, fax number or telex number pursuant to Clause
32.2 (Addresses) or changing its own address, fax number or telex number,
the Agent shall notify the other Parties.
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32.5 English language
(a) Any notice given under or in connection with any Finance Document must be
in English.
(b) All other documents provided under or in connection with any Finance
Document must be:
(i) in English; or
(ii) if not in English, and if so required by the Agent, accompanied by a
certified English translation and, in this case, the English
translation will prevail unless the document is a constitutional,
statutory or other official document.
33. CALCULATIONS AND CERTIFICATES
33.1 Accounts
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters to
which they relate.
33.2 Certificates and Determinations
Any certification or determination by a Finance Party of a rate or amount
under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
33.3 Day count convention
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual number
of days elapsed and a year of 360 days or, in any case where the practice
in the Relevant Interbank Market differs, in accordance with that market
practice.
34. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of such
provision under the law of any other jurisdiction will in any way be
affected or impaired.
35. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any right
or remedy prevent any further or other exercise or the exercise of any
other right or remedy. The rights
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and remedies provided in this Agreement are cumulative and not exclusive
of any rights or remedies provided by law.
36. AMENDMENTS AND WAIVERS
36.1 Required consents
(a) Subject to Clause 36.2 (Exceptions) any term of the Finance Documents may
be amended or waived only with the consent of the Majority Lenders and the
Obligors and any such amendment or waiver will be binding on all Parties.
(b) The Agent may effect, on behalf of any Finance Party, any amendment or
waiver permitted by this Clause.
36.2 Exceptions
(a) An amendment or waiver that has the effect of changing or which relates
to:
(i) the definition of "Majority Lenders" in Clause 1.1 (Definitions);
(ii) an extension to the date of payment of any amount under the Finance
Documents;
(iii) a reduction in the Margin or the amount of any payment of
principal, interest, fees or commission payable;
(iv) an increase in Commitment or the Total Commitments;
(v) a change to the Borrowers or Guarantors other than in accordance
with Clause 26 (Changes to the Obligors);
(vi) any provision which expressly requires the consent of all the
Lenders;
(vii) Clause 2.2 (Lenders' rights and obligations), Clause 25 (Changes to
the Lenders) or this Clause 36; or
(viii) any extension of an Availability Period,
shall not be made without the prior consent of all the Lenders.
(b) An amendment or waiver which relates to the rights or obligations of the
Agent or the Arranger may not be effected without the consent of the Agent
or the Arranger.
37. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were on
a single copy of the Finance Document.
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SECTION 12
GOVERNING LAW AND ENFORCEMENT
38. GOVERNING LAW
This Agreement is governed by English law.
39. ENFORCEMENT
39.1 Jurisdiction of English courts
(a) The courts of England have exclusive jurisdiction to settle any dispute
arising out of or in connection with this Agreement (including a dispute
regarding the existence, validity or termination of this Agreement) (a
"Dispute").
(b) The Parties agree that the courts of England are the most appropriate and
convenient courts to settle Disputes and accordingly no Party will argue
to the contrary.
(c) This Clause 39.1 is for the benefit of the Finance Parties only. As a
result, no Finance Party shall be prevented from taking proceedings
relating to a Dispute in any other courts with jurisdiction. To the extent
allowed by law, the Finance Parties may take concurrent proceedings in any
number of jurisdictions.
39.2 Service of process
Without prejudice to any other mode of service allowed under any relevant
law, each Obligor (other than an Obligor incorporated in England and
Wales):
(a) irrevocably appoints the Company as its agent for service of process
in relation to any proceedings before the English courts in
connection with any Finance Document; and
(b) agrees that failure by a process agent to notify the relevant
Obligor of the process will not invalidate the proceedings
concerned.
Each Obligor expressly agrees and consents to the provisions of this
Clause 39.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
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SCHEDULE 1
The Original Parties
PART I
The Original Obligors
Name of Original Borrower Registration number (or equivalent, if any)
The Sage Group Plc 2231246
Name of Original Guarantor Registration number (or equivalent, if any)
The Sage Group Plc 2231246
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PART II
The Original Lenders
Name of Original Lender Facility A Commitment Facility B Commitment
Lloyds TSB Bank Plc $250,000,000 $250,000,000
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SCHEDULE 2
Conditions precedent
PART I
Conditions precedent to initial Utilisation
1. Original Obligors
(a) A copy of the constitutional documents of each Original Obligor.
(b) A copy of a resolution of the board of directors (or a committee of that
board) of each Original Obligor:
(i) approving the terms of, and the transactions contemplated by, the
Finance Documents to which it is a party and resolving that it
execute the Finance Documents to which it is a party;
(ii) authorising a specified person or persons to execute the Finance
Documents to which it is a party on its behalf; and
(iii) authorising a specified person or persons, on its behalf, to sign
and/or despatch all documents and notices (including, if relevant,
any Utilisation Request and Selection Notice) to be signed and/or
despatched by it under or in connection with the Finance Documents
to which it is a party.
(c) If the resolution under paragraph (b) above is a resolution of a
committee, a copy of the resolution of the board of directors of the
Original Obligor constituting that committee and evidencing its authority
to consider and approve the Finance Documents and the transactions
contemplated thereby.
(d) A specimen of the signature of each person authorised by the resolution
referred to in paragraph (b) above.
(e) A certificate of the Company (signed by a director) confirming that
borrowing or guaranteeing, as appropriate, the Total Commitments would not
cause any borrowing, guaranteeing or similar limit binding on any Original
Obligor to be exceeded.
(f) A certificate of an authorised signatory of the relevant Original Obligor
certifying that each copy document relating to it specified in this Part I
of Schedule 2 is correct, complete and in full force and effect as at a
date no earlier than the date of this Agreement.
2. Legal opinions
(a) A legal opinion of CMS Cameron McKenna, legal advisers to the Arranger and
the Agent in England, substantially in the form distributed to the
Original Lenders prior to signing this Agreement.
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(b) If an Original Obligor is incorporated in a jurisdiction other than
England and Wales, a legal opinion of the legal advisers to that Obligor
in the relevant jurisdiction and addressed to the Arranger, the Agent and
the Original Lenders substantially in the form distributed to the Original
Lenders prior to signing this Agreement.
3. Other documents and evidence
(a) Evidence that any process agent referred to in Clause 39.2 (Service of
process), if not an Original Obligor, has accepted its appointment.
(b) A copy of any other Authorisation or other document, opinion or assurance
which the Agent considers to be necessary or desirable (if it has notified
the Company accordingly) in connection with the entry into and performance
of the transactions contemplated by any Finance Document or for the
validity and enforceability of any Finance Document.
(c) The Original Financial Statements of each Original Obligor.
(d) Evidence that the fees, costs and expenses then due from the Company
pursuant to Clause 13 (Fees) and Clause 18 (Costs and expenses) have been
paid or will be paid by the first Utilisation Date.
(e) Evidence in a form satisfactory to the Agent that immediately upon first
drawdown under this agreement, the Existing Facilities will be repaid and
cancelled in full and any Security securing the same will be discharged in
full.
(f) The Syndication Side Letter.
(g) The standard payments instructions in respect of the proceeds of a
Utilisation signed by the relevant Borrower.
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PART II
Conditions precedent required to be
delivered by an Additional Obligor
1. An Accession Letter, duly executed by the Additional Obligor and the
Company.
2. A copy of the constitutional documents of the Additional Obligor.
3. A copy of a resolution of the board of directors of the Additional Obligor:
(a) approving the terms of, and the transactions contemplated by, the
Accession Letter and the Finance Documents and resolving that it
execute the Accession Letter;
(b) authorising a specified person or persons to execute the Accession
Letter on its behalf; and
(c) authorising a specified person or persons, on its behalf, to sign
and/or despatch all other documents and notices (including, in relation
to an Additional Borrower, any Utilisation Request) to be signed and/or
despatched by it under or in connection with the Finance Documents.
4. A specimen of the signature of each person authorised by the resolution
referred to in paragraph 3 above.
5. A copy of a resolution signed by all the holders of the issued shares of the
Additional Guarantor, approving the terms of, and the transactions
contemplated by, the Finance Documents to which the Additional Guarantor is
a party.
6. A certificate of the Additional Obligor (signed by a director) confirming
that borrowing or guaranteeing, as appropriate, the Total Commitments would
not cause any borrowing, guaranteeing or similar limit binding on it to be
exceeded.
7. A certificate of an authorised signatory of the Additional Obligor
certifying that each copy document listed in this Part II of Schedule 2 is
correct, complete and in full force and effect as at a date no earlier than
the date of the Accession Letter.
8. A copy of any other Authorisation or other document, opinion or assurance
which the Agent considers to be necessary or desirable in connection with
the entry into and performance of the transactions contemplated by the
Accession Letter or for the validity and enforceability of any Finance
Document.
9. If available, the latest audited financial statements of the Additional
Obligor.
10. A legal opinion from the legal advisers to the Arranger and the Agent in
England.
11. If the Additional Obligor is incorporated in a jurisdiction other than
England and Wales, a legal opinion of the legal advisers reasonably
acceptable to the Agent in the jurisdiction in which the Additional Obligor
is incorporated and addressed to the Arranger, the Agent and the Original
Lenders.
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12. If the proposed Additional Obligor is incorporated in a jurisdiction other
than England and Wales, evidence that the process agent specified in Clause
39.2 (Service of process), if not an Obligor, has accepted its appointment
in relation to the proposed Additional Obligor.
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SCHEDULE 3
Requests
PART I
Utilisation Request
From: Borrower
To: [___________________] as Agent
Dated:
Dear Sirs
The Sage Group Plc and others - $500,000,000 Facility Agreement
dated [ ] 2001 (the "Facility Agreement")
1. We wish to borrow a Loan on the following terms:
Proposed Utilisation Date: [___________________] (or, if that is not a
Business Day, the next Business Day)
Facility to be utilised: [Facility A]/[Facility B]*
Currency of Loan: [___________________]
Amount: [___________________] or, if less, the Available Facility
Interest Period: [___________________]
2. We confirm that each condition specified in Clause 4.2 (Further conditions
precedent) is satisfied on the date of this Utilisation Request.
3. The proceeds of this Loan should be credited to [account].
4. This Utilisation Request is irrevocable.
Yours faithfully
.......................................
authorised signatory for
[name of relevant Borrower]
- -------------------------
* Delete as appropriate.
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PART II
Selection Notice
Applicable to a Term-Out Loan
From:
To: [___________________] as Agent
Dated:
Dear Sirs
The Sage Group Plc and others - $500,000,000 Facility Agreement
dated [ ] 2001 (the "Facility Agreement")
1. We refer to the following Term-Out Loan[s] in [identify currency] with an
Interest Period ending on [___________________].*
2. [We request that the above Term-Out Loan[s] be divided into
[___________________] Term-Out Loans with the following Base Currency
Amounts and Interest Periods:]**
or
[We request that the next Interest Period for the above Term-Out Loan[s] is
[___________________]].***
3. We request that the above Term-Out Loan[s] [is]/[are] [denominated in the
same currency for the next Interest Period]/[denominated in the following
currencies: [ ]. As this results in a
change of currency we confirm that each condition specified in Clause 4.2
(Further conditions precedent) is satisfied on the date of this Selection
Notice. The proceeds of any change in currency should be credited to
[account]].
4. This Selection Notice is irrevocable.
Yours faithfully
.......................................
authorised signatory for
[ ]
- --------------------------
* Insert details of all Term-Out Loans in the same currency which have an
Interest Period ending on the same date.
** Use this option if division of Loans is requested.
*** Use this option if sub-division is not required.
-90-
SCHEDULE 4
Mandatory Cost formulae
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the Bank of
England and/or the Financial Services Authority (or, in either case, any
other authority which replaces all or any of its functions) or (b) the
requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate (the
"Additional Cost Rate") for each Lender, in accordance with the paragraphs
set out below. The Mandatory Cost will be calculated by the Agent as a
weighted average of the Reference Banks' Additional Cost Rates and will be
expressed as a percentage rate per annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office in a
Participating Member State will be the percentage notified by the Reference
Banks to the Agent as the cost of complying with the minimum reserve
requirements of the European Central Bank.
4. The Additional Cost Rate for any Lender lending from a Facility Office in
the United Kingdom will be calculated by the Agent as follows:
(a) in relation to a sterling Loan:
AB + C(B - D) + E x 0.01
------------------------ per cent. per annum
100 - (A + C)
(b) in relation to a Loan in any currency other than sterling:
E x 0.01
-------- per cent. per annum.
300
Where:
A is the percentage of Eligible Liabilities (assuming these to be in
excess of any stated minimum) which that Reference Bank is from time
to time required to maintain as an interest free cash ratio deposit
with the Bank of England to comply with cash ratio requirements.
B is the percentage rate of interest (excluding the Margin and the
Mandatory Cost) payable for the relevant Interest Period on the Loan.
C is the percentage (if any) of Eligible Liabilities which that
Reference Bank is required from time to time to maintain as interest
bearing Special Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of England to the
Agent on interest bearing Special Deposits.
E is the rate of charge payable by that Reference Bank to the Financial
Services Authority pursuant to the Fees Regulations (but, for this
purpose, ignoring any minimum fee required pursuant to the Fees
-91-
Regulations) and expressed in pounds per (Pounds)1,000,000 of the Fee
Base of that Reference Bank.
5. For the purposes of this Schedule:
(a) "Eligible Liabilities" and "Special Deposits" have the meanings given
to them from time to time under or pursuant to the Bank of England Act
1998 or (as may be appropriate) by the Bank of England;
(b) "Fees Regulations" means the Banking Supervision (Fees) Regulations
2000 or such other law or regulation as may be in force from time to
time in respect of the payment of fees for banking supervision; and
(c) "Fee Base" has the meaning given to it in, and will be calculated in
accordance with, the Fees Regulations.
6. In application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e. 5 per cent. will be included in the formula
as 5 and not as 0.05). A negative result obtained by subtracting D from B
shall be taken as zero. The resulting figures shall be rounded to four
decimal places.
7. The Agent shall distribute to the Lenders the additional amounts received
as a result of the Mandatory Cost to the Lenders on the basis of the
Additional Cost Rate for each Lender based on the information provided by
each Reference Bank pursuant to paragraph 3 above.
8. Any determination by the Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost, an Additional Cost Rate or any amount payable
to a Lender shall, in the absence of manifest error, be conclusive and
binding on all Parties.
9. The Agent may from time to time, after consultation with the Company and
the Lenders, determine and notify to all Parties any amendments which are
required to be made to this Schedule in order to comply with any change in
law, regulation or any requirements from time to time imposed by the Bank
of England, the Financial Services Authority or the European Central Bank
(or, in any case, any other authority which replaces all or any of its
functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all Parties.
-92-
SCHEDULE 5
Form of Transfer Certificates
Form of Transfer Certificate
To: Lloyds TSB Bank plc
St George's House
6/8 Eastcheap
London EC3M 1AE
Attention: Capital Markets Group
TRANSFER CERTIFICATE
relating to the agreement (as the same may have been amended or novated from
time to time the "Facility Agreement") dated [ ] 2001 whereby a
$500,000,000 facility was made available to The Sage Group PLC and certain of
its subsidiaries. Terms defined in the Facility Agreement shall have the same
meaning herein.
1. [Transferor] (the "Transferor") confirms the accuracy of the summary of
its Commitment and its participation in the Loans set out in the Schedule
below and requests [Transferee] (the "Transferee") to accept and procure
the transfer to the Transferee of [the whole/[ ] per cent] of such
Commitment and its participation in the Loans by counter-signing and
delivering this Transfer Certificate to the Agent at its address for the
service of notices specified in the Facility Agreement.
2. The Transferee hereby requests the Agent to accept this Transfer
Certificate as being delivered to the Agent pursuant to and for the
purposes of clause 25.5 of the Facility Agreement so as to take effect in
accordance with the terms thereof on [date of transfer] or, if later, the
date on which the Agent executes this Transfer Certificate.
3. The Transferee warrants to the Transferor, the Agent, the Arranger and the
Lenders that it has received a copy of the Facility Agreement and the
other Finance Documents, together with such other information and
documents as it has required in connection with this transaction and that
it has not relied and will not hereafter rely on the Transferor, the
Agent, the Arranger or the Lenders to check or enquire on its behalf into
the legality, validity, effectiveness, adequacy, accuracy or completeness
of any such information and further agrees that it has not relied and will
not rely on the Transferor, the Agent, the Arranger or the Lenders to
assess or keep under review on its behalf the financial condition,
creditworthiness, condition, affairs, status or nature of any of the
Obligors, the other members of the Group or any other person.
4. The Transferee hereby undertakes with the Transferor and each of the other
parties to the Facility Agreement that it will perform in accordance with
their
-93-
terms all those obligations which by the terms of the Facility Agreement
will be assumed by it after delivery of this Transfer Certificate to the
Agent and satisfaction of the conditions (if any) subject to which this
Transfer Certificate is expressed to take effect.
5. Neither the Transferor, the Agent, the Arranger nor any of the Lenders has
made or makes any representation or warranty whether written or oral,
express or implied or assumes any responsibility with respect to the
legality, validity, effectiveness, adequacy or enforceability of the
Facility Agreement or the other Finance Documents and assumes no
responsibility for the financial condition of any of the Obligors, the
other members of the Group or any other person or for the performance and
observance by any of the Obligors, the other members of the Group or any
other person of any of their obligations under the Facility Agreement or
the Finance Documents or any document relating thereto and any and all
such conditions and warranties, whether express or implied by law or
otherwise, are hereby excluded.
6. The Transferor hereby gives notice to the Transferee that the Transferor
is under no obligation to repurchase all or any part of the rights and
obligations hereby transferred at any time nor to support any losses
directly or indirectly incurred or suffered by the Transferee for any
reason whatsoever. The Transferee hereby acknowledges the absence of any
such obligation.
7. The Transferee represents and warrants that it is a Qualifying Lender.
8. This Transfer Certificate shall be governed by and construed in accordance
with English law and the provisions of Section 12 of the Facility
Agreement shall (as they affect the Obligors) apply with respect to any
agreement arising in consequence of this Transfer Certificate.
Note:
- ----
1. No transfer of part of a Lender's Commitment or participation in a Loan
shall be effective unless the amount of the Commitment expressed to be
transferred is the whole thereof or otherwise an amount of not less than
$5,000,000.
2. Lenders and future Transferees are advised not to employ Transfer
Certificates or otherwise to assign or transfer interests in the Facility
Agreement without first ensuring that the transaction complies with all
applicable laws and regulations, including the Financial Services Act,
1986 and regulations made thereunder.
-94-
THE SCHEDULE
(Commitment/rights and obligations to be transferred)
Commitment: Total Loans Outstanding Participation in
Undrawn Portion (Facility A) (Facility B) Loans Outstanding
(Facility A) (Facility B)
- ------------------------------------------------------------------------------------------------------------
[ ] [ ] [ ] [ ] [ ]
- ------------------------------------------------------------------------------------------------------------
(The Transferee's participation)
Percentage of Commitment and participation in Loans transfer: [ ]%
Transfer Date
-------------
[ ] 2001
In witness whereof this Transfer Certificate has been executed on behalf of the
Transferor and the Transferee.
By: .................... By: ..................
For: [Transferor] For: [Transferee]
Date: Date:
Address:
Fax:
Telephone:
Attention:
This Transfer Certificate is accepted by the Agent and the Transfer Date is
confirmed as [ ].
By: ..................
For [Agent]
-95-
SCHEDULE 6
Form of Accession Letter
To: [___________________] as Agent
From: [Subsidiary] and [Company]
Dated:
Dear Sirs
The Sage Group Plc and others - $500,000,000 Facility Agreement
dated [ ] 2001 (the "Facility Agreement")
1. [Subsidiary] agrees to become an Additional Guarantor and to be bound by
the terms of the Facility Agreement as an Additional Guarantor pursuant to
Clause 26.4 (Additional Guarantors) of the Facility Agreement. [Subsidiary]
is a company duly incorporated under the laws of [name of relevant
jurisdiction].
2. [Subsidiary's] administrative details are as follows:
Address:
Fax No:
Attention:
3. This letter is governed by English law.
This Accession Letter is entered into by deed.
The Sage Group Plc [Subsidiary]
-96-
SCHEDULE 7
Form of Resignation Letter
To: [___________________] as Agent
From: [resigning Obligor] and [Company]
Dated:
Dear Sirs
The Sage Group Plc - $500,000,000 Facility Agreement
dated [ ] 2001 (the "Facility Agreement")
1. Pursuant to Clause 26.6 (Resignation of a Guarantor), we request that
[resigning Guarantor] be released from its obligations as a Guarantor under
the Facility Agreement.
2. We confirm that:
(a) no Default is continuing or would result from the acceptance of this
request; and
(b) [___________________]
3. This letter is governed by English law.
[Company] [Subsidiary]
By: By:
-97-
SCHEDULE 8
Form of Compliance Certificate
To: [___________________] as Agent
From: The Sage Group Plc
Dated:
Dear Sirs
The Sage Group Plc - $500,000,000 Facility Agreement
dated [ ] 2001 (the "Facility Agreement")
1. We refer to the Facility Agreement. This is a Compliance Certificate.
2. We confirm that no Default is continuing*
3. We confirm that:
(a) the ratio of PBIT to Net Interest Payable in respect of the Relevant
Period ended on [___________________] was [___________________] to 1;
and
(b) the ratio of Net Debt to EBITDA in respect of the Relevant Period
ended on [___________________] was [___________________] to 1;
(c) the Priority Debt as at the end of the Relevant Period was [ ];
(d) the aggregate value of acquisitions referred to in Clause 23.8(b)(ii)
which were made during the Relevant Period ended on [ ] when
the ratio of Net Debt: EBITDA was above 1.75:1 was [ ];
(e) the following companies are Material Subsidiaries as at today's date:
[List];
(f) the statements made in 3(a) and (b) above are based on the following
calculations:
Signed ........................ ........................
Director Director
of of
The Sage Group Plc The Sage group Plc
* If this statement cannot be made, the certificate should identify any Default
that is continuing and the steps, if any, being taken to remedy it.
-98-
SCHEDULE 9
Existing Security
None.
-99-
SCHEDULE 10
LMA Form of Confidentiality Undertaking
LMA CONFIDENTIALITY LETTER (SELLER)
[Letterhead of Seller/Seller's agent/broker]
To:
[ ] [insert name of Potential Purchaser/
[ ] Purchaser's agent/broker
[ ]
[ ]
[ ]
Re: The Agreement
[Borrower: ]
[Date: ]
[Amount: ]
[Agent: ]
Dear Sirs
We understand that you are considering [acquiring](1) [arranging the acquisition
of](2) an interest in the Agreement (the "Acquisition"). In consideration of us
agreeing to make available to you certain information, by your signature of a
copy of this letter you agree as follows:
1. Confidentiality Undertaking
You undertake (a) to keep the Confidential Information confidential and
not to disclose it to anyone except as provided for by paragraph 2 below
and to ensure that the Confidential Information is protected with security
measures and a degree of care that would apply to your own confidential
information, (b) to use the Confidential Information only for the
Permitted Purpose, (c) to use all reasonable endeavours to ensure that any
person to whom you pass any Confidential Information (unless disclosed
under paragraph 2[(c)/(d)] below) acknowledges and complies with the
provisions of this letter as if that person were also a party to it, and
(d) not to make enquiries of any member of the Group or any of their
officers, directors, employees or professional advisers relating directly
or indirectly to the Acquisition.
-100-
2. Permitted Disclosure
We agree that you may disclose Confidential Information:
(a) to members of the Purchaser Group and their officers,
directors, employees and professional advisers to the extent
necessary for the Permitted Purpose and to any auditors of
members of the Purchaser Group;
[(b) subject to the requirements of the Agreement, in accordance
with the Permitted Purpose so long as any prospective
purchaser has delivered a letter to you in equivalent form to
this letter;]
[(b/c)](3) subject to the requirements of the Agreement, to any person to
(or through) whom you assign or transfer (or may potentially
assign or transfer) all or any of the rights, benefits and
obligations which you may acquire under the Agreement or with
(or through) whom you enter into (or may potentially enter
into) any sub-participation in relation to, or any other
transaction under which payments are to be made by reference
to, the Agreement or the Borrower or any member of the Group
so long as that person has delivered a letter to you in
equivalent form to this letter; and
[(c/d)](3) (i) where requested or required by any court of competent
jurisdiction or any competent judicial, governmental,
supervisory or regulatory body, (ii) where required by the
rules of any stock exchange on which the shares or other
securities of any member of the Purchaser Group are listed or
(iii) where required by the laws or regulations of any country
with jurisdiction over the affairs of any member of the
Purchaser Group.
3. Notification of Required or Unauthorised Disclosure
You agree (to the extent permitted by law) to inform us of the full
circumstances of any disclosure under paragraph 2[(c)/(d)]3 or upon
becoming aware that Confidential Information has been disclosed in breach
of this letter.
4. Return of Copies
If we so request in writing, you shall return all Confidential Information
supplied to you by us and destroy or permanently erase all copies of
Confidential Information made by you and use all reasonable endeavours to
ensure that anyone to whom you have supplied any Confidential Information
destroys or permanently erases such Confidential Information and any
copies made by them, in each case save to the extent that you or the
recipients are required to retain any such Confidential Information by any
applicable law, rule or regulation or by any competent judicial,
governmental, supervisory or regulatory body or in accordance with
internal policy, or where the Confidential Information has been disclosed
under paragraph 2[(c)/(d)](3) above.
-101-
5. Continuing Obligations
The obligations in this letter are continuing and, in particular, shall
survive the termination of any discussions or negotiations between you and
us. Notwithstanding the previous sentence, the obligations in this letter
shall cease (a) if you become a party to or otherwise acquire (by
assignment or sub-participation) an interest, direct or indirect, in the
Agreement or (b) twelve months after you have returned all Confidential
Information supplied to you by us and destroyed or permanently erased all
copies of Confidential Information made by you (other than any such
Confidential Information or copies which have been disclosed under
paragraph 2 above (other than sub-paragraph 2(a)) or which, pursuant to
paragraph 4 above, are not required to be returned or destroyed).
6. No Representation; Consequences of Breach, etc
You acknowledge and agree that:
(a) neither we, [nor our principal] nor any member of the Group nor any
of our or their respective officers, employees or advisers (each a
"Relevant Person") (i) make any representation or warranty, express
or implied, as to, or assume any responsibility for, the accuracy,
reliability or completeness of any of the Confidential Information or
any other information supplied by us or the assumptions on which it
is based or (ii) shall be under any obligation to update or correct
any inaccuracy in the Confidential Information or any other
information supplied by us or be otherwise liable to you or any other
person in respect to the Confidential Information or any such
information; and
(b) we [or our principal](4) or members of the Group may be irreparably
harmed by the breach of the terms hereof and damages may not be an
adequate remedy; each Relevant Person may be granted an injunction or
specific performance for any threatened or actual breach of the
provisions of this letter by you.
7. No Waiver; Amendments, etc
This letter sets out the full extent of your obligations of
confidentiality owed to us in relation to the information the subject of
this letter. No failure or delay in exercising any right, power or
privilege hereunder will operate as a waiver thereof nor will any single
or partial exercise of any right, power or privilege preclude any further
exercise thereof or the exercise of any other right, power or privileges
hereunder. The terms of this letter and your obligations hereunder may
only be amended or modified by written agreement between us.
8. Inside Information
You acknowledge that some or all of the Confidential Information is or may
be price-sensitive information and that the use of such information may be
regulated or prohibited by applicable legislation relating to insider
dealing and you undertake not to use any Confidential Information for any
unlawful purpose.
-102-
9 Nature of Undertakings
The undertakings given by you under this letter are given to us and
(without implying any fiduciary obligations on our part) are also given
for the benefit of [our principal,]4 the Borrower and each other member of
the Group.
10. Governing Law and Jurisdiction
This letter (including the agreement constituted by your acknowledgement
of its terms) shall be governed by and construed in accordance with the
laws of England and the parties submit to the non-exclusive jurisdiction
of the English courts.
11. Definitions
In this letter (including the acknowledgement set out below) terms defined
in the Agreement shall, unless the context otherwise requires, have the
same meaning and:
"Confidential Information" means any information relating to the Borrower,
the Group, the Agreement and/or the Acquisition provided to you by us or
any of our affiliates or advisers, in whatever form, and includes
information given orally and any document, electronic file or any other
way of representing or recording information which contains or is derived
or copied from such information but excludes information that (a) is or
becomes public knowledge other than as a direct or indirect result of any
breach of this letter or (b) is known by you before the date the
information is disclosed to you by us or any of our affiliates or advisers
or is lawfully obtained by you thereafter, other than from a source which
is connected with the Group and which, in either case, as far as you are
aware, has not been obtained in violation of, and is not otherwise subject
to, any obligation of confidentiality;
"Group" means the Borrower and each of its holding companies and
subsidiaries and each subsidiary of each of its holding companies (as each
such term is defined in the Companies Act 1985);
"Permitted Purpose" means [subject to the terms of this letter, passing on
information to a prospective purchaser for the purpose of]2 considering
and evaluating whether to enter into the Acquisition; and
"Purchaser Group" means you, each of your holding companies and
subsidiaries and each subsidiary of each of your holding companies (as
each such term is defined in the Companies Act 1985).
-103-
Please acknowledge your agreement to the above by signing and returning the
enclosed copy.
Yours faithfully
...................................
For and on behalf of
[Seller/Seller's agent/broker]
To: [Seller]
[Seller's agent/broker]
The Borrowers and each other member of the Group
We acknowledge and agree to the above:
...................................
For and on behalf of
[Potential Purchaser/Purchaser's agent/broker]
-104-
SCHEDULE 11
Timetables
"D - " refers to the number of Business Days before the relevant Utilisation
Date/the first day of the relevant Interest Period.
Loans in euro, Loans in sterling Loans in other
Japanese Yen and currencies
Swiss Francs
- ---------------------------------------------------------------------------------------------------------------------
Request for approval as an Optional Currency, N/A N/A D - 5
if required (Clause 4.3 (Conditions relating 10:00 a.m.
to Optional Currencies))
- ---------------------------------------------------------------------------------------------------------------------
Agent notifies the Lenders of the request N/A N/A D - 5
(Clause 4.3 (Conditions relating to Optional 3:00 p.m.
Currencies))
- ---------------------------------------------------------------------------------------------------------------------
Responses by Lenders to the request (Clause N/A N/A D - 4
4.3 (Conditions relating to Optional 1:00 p.m.
Currencies))
- ---------------------------------------------------------------------------------------------------------------------
Agent notifies the Borrower if a currency is N/A N/A D - 4
approved as an Optional Currency in 5:00 p.m.
accordance with Clause 4.3 (Conditions
relating to Optional Currencies)
- ---------------------------------------------------------------------------------------------------------------------
Delivery of a duly completed Utilisation D - 3 D - 1 D - 3
Request (Clause 5.1 (Delivery of a 10:00 a.m. 10:00 a.m. 10:00 a.m.
Utilisation Request)) or a Selection Notice
(Clause 11.1 (Selection of Interest Periods))
or Clause 11.2 (Changes to Interest Periods)
or Clause 11.4 (Consolidation and Division of
Term-Out Loans)
- ---------------------------------------------------------------------------------------------------------------------
Delivery of a Selection Notice (Clause 6.1 - D - 3 D - 1 D - 3
Operational Currencies) 10.00am 10.00am 10.00am
- ---------------------------------------------------------------------------------------------------------------------
Agent determines (in relation to a D - 3 D - 1 D - 3
Utilisation) the Base Currency Amount of the 11:00 a.m. 11:00 a.m. 11:00 a.m.
Loan, if required under Clause 5.4 (Lenders'
participation)
- ---------------------------------------------------------------------------------------------------------------------
Agent notifies the Lenders of the Loan in D - 3 D - 1 D - 3
accordance with Clause 5.4 (Lenders' 1:00 p.m. 1:00 p.m. 1:00 p.m.
participation)
- ---------------------------------------------------------------------------------------------------------------------
-105-
Loans in euro, Loans in sterling Loans in other
Japanese Yen and currencies
Swiss Francs
- ---------------------------------------------------------------------------------------------------------------------
Agent receives a notification from a Lender D - 3 D - 1 D - 3
under Clause 6.2 (Unavailability of a 3:00 p.m. 3:00 p.m. 3:00 p.m.
currency)
- ---------------------------------------------------------------------------------------------------------------------
Agent gives notice in accordance with Clause D - 3 D - 1 D - 3
6.2 (Unavailability of a currency) 5:00 p.m. 5:00 p.m. 5:00 p.m.
- ---------------------------------------------------------------------------------------------------------------------
Agent determines amount of the Loan in D - 3 D - 1 D - 3
Optional Currency in accordance with Clause 11:00 a.m. 11:00 a.m. 11:00 a.m.
6.3 (Change of currency)
- ---------------------------------------------------------------------------------------------------------------------
Agent calculates the amount of Term-Out Loan D - 3 D - 1 D - 3
in the Optional Currency for second 11:00 a.m. 10:00 a.m. 11:00 a.m.
successive Interest Period (Clause 6.4 (Same
Optional Currency during successive Interest
Periods))
- ---------------------------------------------------------------------------------------------------------------------
LIBOR is fixed Quotation Day Quotation Day Quotation Day as of
as of 11:00 a.m. as of 11:00 a.m. 11:00 a.m.
- ---------------------------------------------------------------------------------------------------------------------
-106-
SCHEDULE 12
Material Subsidiaries
UK Companies
------------
UK Companies Registered No Registered Office
- -----------------------------------------------------------------------------------------------------------
Sage Software Limited 1045967 Sage House
Benton Park Road
Newcastle upon Tyne
NE7 7LZ
- -----------------------------------------------------------------------------------------------------------
Tetra plc 2498852 Sage Enterprise House
Vanwall Business Park
Maidenhead
SL6 4UB
- -----------------------------------------------------------------------------------------------------------
Sage Enterprise Solutions Limited 1446230 Sage Enterprise House
Vanwall Business Park
Maidenhead
SL6 4UB
- -----------------------------------------------------------------------------------------------------------
Sage Overseas Limited 2514472 Sage House
Benton Park Road
Newcastle upon Tyne
NE7 7LZ
- -----------------------------------------------------------------------------------------------------------
Sage Holdings Limited 3610110 Sage House
Benton Park Road
Newcastle upon Tyne
NE7 7LZ
- -----------------------------------------------------------------------------------------------------------
Sage Finance Limited 2586446 Sage House
Benton Park Road
Newcastle upon Tyne
NE7 7LZ
- -----------------------------------------------------------------------------------------------------------
Sage Jesmond Limited 3912993 Sage House
Benton Park Road
Newcastle upon Tyne
NE7 7LZ
- -----------------------------------------------------------------------------------------------------------
Sage Quayside Limited 3912983 Sage House
Benton Park Road
Newcastle upon Tyne
NE7 7LZ
-107-
UK Companies Registered No Registered Office
- -----------------------------------------------------------------------------------------------------------
Sage Finance II Limited 3912990 Sage House
Benton Park Road
Newcastle upon Tyne
NE7 7LZ
- -----------------------------------------------------------------------------------------------------------
Sage (South Gosforth) Limited 3471088 Sage House
Benton Park Road
Newcastle upon Tyne
NE7 7LZ
- -----------------------------------------------------------------------------------------------------------
Non-UK Companies
----------------
UK Companies Registered No Registered Office
- -----------------------------------------------------------------------------------------------------------
Ciel SA France 11 Rue de Cambrai
75917 Paris
Cedex 19
France
- -----------------------------------------------------------------------------------------------------------
Sage France SA France 10 Rue Fructidor
775834 Paris
Cedex 17
France
- -----------------------------------------------------------------------------------------------------------
Sage KHK Software GmbH Germany Auf der Schanze 39
61348 Bad Homburg
Germany
- -----------------------------------------------------------------------------------------------------------
Sage KHK Software GmbH & Co KG Germany Berner Strasse 23
60437 Frankfurt am Main
Germany
- -----------------------------------------------------------------------------------------------------------
Safe Software Inc US 56 Technology Drive
Irvine
CA 92618
USA
- -----------------------------------------------------------------------------------------------------------
Sage US Inc US 56 Technology Drive
Irvine
CA 92618
USA
-108-
UK Companies Registered No Registered Office
- -----------------------------------------------------------------------------------------------------------
Sage US Holdings Inc US CT Corporation
350 North Street
Paul Street
Dallas
TX 75201
USA
- -----------------------------------------------------------------------------------------------------------
Peachtree Software Inc US 1505 Pavilion Place
Norcross
Georgia 30093
USA
- -----------------------------------------------------------------------------------------------------------
Sage Delaware US Partnership 56 Technology Drive
Irvine
CA 92618
USA
- -----------------------------------------------------------------------------------------------------------
Best Software Inc US 5511 Staples Mill Road
Richmond
VA 23228
USA
- -----------------------------------------------------------------------------------------------------------
-109-
SCHEDULE 13
Existing Priority Debt
Actual
(Pounds)'000s
- ----------------------------------------------------------------------------
Sage Software Limited
Short term loan 12
Finance leases 52
- ----------------------------------------------------------------------------
Sage Enterprise Solutions Limited
Finance leases 400
- ----------------------------------------------------------------------------
Ciel SA
Profit sharing 492
- ----------------------------------------------------------------------------
Sage France SA
Bank loans 222
- ----------------------------------------------------------------------------
Total 1,178
- ----------------------------------------------------------------------------
-110-
The Company
The Sage Group Plc
Address: Sage House
Benton Park Road
Newcastle Upon Tyne
NE7 7LZ
Fax No: 0191 255 0306
Attention: Paul Harrison
By: P. Harrison PAUL HARRISON
The Original Borrower
The Sage Group plc
Address: Sage House
Benton Park Road
Newcastle Upon Tyne
NE7 7LZ
Fax No: 0191 255 0306
Attention: Paul Harrison
By: P. Harrison PAUL HARRISON
The Original Guarantor
The Sage Group Plc
Address: Sage House
Benton Park Road
Newcastle Upon Tyne
NE7 7LZ
Fax No: 0191 255 0306
Attention: Paul Harrison
By: P. Harrison PAUL HARRISON
-111-
The Arranger
LLOYDS TSB BANK Plc
Address: Capital Markets
Specialised Products
St Georges House
PO Box 787
6-8 Eastcheap
London EC3M 1AE
Fax No: 020 7661 4677
Attention: Les Tinsley
By: L. H. Tinsley LES TINSLEY
The Original Lender
LLOYDS TSB BANK Plc
Address: PO Box 96
6/7 Park Row
Leeds L51 1NX
Fax No: 0113 237 2176
Attention: Chris Taylor
By: L. H. Tinsley LES TINSLEY
The Agent
LLOYDS TSB BANK Plc
Address: Loan Administration
Lloyds TSB Bank plc
Wine Street
Bristol BS1 2AN
Fax No: 0117 923 3367
Attention: The Senior Manager
By: L. H. Tinsley LES TINSLEY
(1) delete if addressee is acting as broker or agent.
(2) delete if addressee is acting as principal.
(3) delete as applicable.
(4) delete if letter is sent out by the Seller rather than the Seller's broker
or agent.
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