Exhibit (B)
$390,000,000
FACILITIES AGREEMENT
dated 27 April 2001
for
BENFIELD GREIG GROUP PLC
arranged by
BARCLAYS CAPITAL
With
BARCLAYS BANK PLC
acting as Agent and Security Trustee
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MULTICURRENCY TERM AND REVOLVING FACILITIES
AGREEMENT
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CONTENTS
CLAUSE PAGE
1. Definitions And Interpretation..................................................................1
2. The Facilities.................................................................................21
3. Purpose........................................................................................21
4. Conditions Of Utilisation......................................................................22
5. Utilisation....................................................................................24
6. Bank Guarantees................................................................................25
7. Optional Currencies............................................................................26
8. Repayment......................................................................................29
9. Borrower's Liabilities In Relation To Bank Guarantees..........................................30
10. Mandatory Prepayment...........................................................................32
11. Cancellation And Voluntary Prepayment..........................................................35
12. Interest.......................................................................................38
13. Interest Periods And Terms.....................................................................38
14. Changes To The Calculation Of Interest.........................................................40
15. Fees...........................................................................................41
16. Tax Gross Up And Indemnities...................................................................43
17. Increased Costs................................................................................46
18. Other Indemnities..............................................................................47
19. Mitigation By The Lenders......................................................................48
20. Costs And Expenses.............................................................................49
21. Guarantee And Indemnity........................................................................50
22. Representations................................................................................53
23. Information Undertakings.......................................................................58
24. Financial Covenants............................................................................60
25. General Undertakings...........................................................................63
26. Events Of Default..............................................................................71
27. Changes To The Lenders.........................................................................76
28. Changes To The Obligors........................................................................79
29. Role Of The Agent, The Mandated Lead Arranger And The Security Trustee.........................81
30. The Lenders And The Fronting Bank..............................................................90
31. Conduct Of Business By The Finance Parties.....................................................91
32. Sharing Among The Lenders......................................................................91
33. Payment Mechanics..............................................................................94
34. Set-Off........................................................................................96
35. Notices........................................................................................96
36. Calculations And Certificates..................................................................98
37. Partial Invalidity.............................................................................98
38. Remedies And Waivers...........................................................................98
39. Amendments And Waivers.........................................................................99
40. Counterparts..................................................................................100
41. Governing Law.................................................................................101
42. Enforcement...................................................................................101
Schedule 1 THE ORIGINAL PARTIES......................................................................103
Part I The Original Obligors..................................................................103
Part II The Original Lenders..................................................................104
Schedule 2 CONDITIONS PRECEDENT......................................................................105
Part I Conditions Precedent To Initial Utilisation............................................105
Part II Conditions Precedent Required To Be Delivered By An Additional Obligor................108
Schedule 3 REQUESTS 110
Part I Utilisation Request....................................................................110
Part II Selection Notice......................................................................111
Schedule 4 MANDATORY COST FORMULAE...................................................................112
Schedule 5 FORM OF TRANSFER CERTIFICATES.............................................................115
Schedule 6 FORM OF ACCESSION LETTER..................................................................120
Schedule 7 FORM OF RESIGNATION LETTER................................................................121
Schedule 8 FORM OF COMPLIANCE CERTIFICATE............................................................122
Schedule 9 EXISTING SECURITY.........................................................................123
Schedule 10 LMA FORM OF CONFIDENTIALITY UNDERTAKING..................................................125
Schedule 11 TIMETABLES...............................................................................129
Part I Loans ................................................................................129
Part II Bank Guarantees.......................................................................131
Schedule 12 SECURITY DOCUMENTS.......................................................................132
THIS AGREEMENT is dated 27 April 2001 and made between:
(1) BENFIELD GREIG GROUP PLC (the "Original Borrower")
(2) BENFIELD GREIG GROUP PLC (the "Original Guarantor");
(3) BARCLAYS CAPITAL (the "Mandated Lead Arranger");
(4) THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (The Original
Parties) as lenders (the "Original Lenders");
(5) BARCLAYS BANK PLC as agent of the Lenders (the "Agent"); and
(6) BARCLAYS BANKS PLC as security trustee for the Beneficiaries (the "Security
Trustee").
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 Costs" means all fees, costs, expenses, stamp, registration and
other taxes incurred by the Original Borrower or any other member of the
Group in connection with the Merger, the Tender Offer, the Facilities or the
Finance Documents.
"Acquisition Documents" means the Merger Agreement and the Offer to
Purchase.
"Additional Borrower" means a company which becomes an Additional Borrower
in accordance with Clause 28 (Changes to the Obligors).
"Additional Guarantor" means a company which becomes an Additional Guarantor
in accordance with Clause 28 (Changes to the Obligors).
"Additional Obligor" means an Additional Borrower or an Additional
Guarantor.
"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.
"Agreed Financial Projections" means the business plan and cashflow model of
the Original Borrower in the agreed form, prepared by the Original Borrower.
"Authorisation" means an authorisation, consent, approval, resolution,
licence, exemption, filing or registration.
"Authorised Signatory" means, in relation to an Obligor or proposed Obligor,
any person who is duly authorised (in such manner as may be reasonably
acceptable to the Agent) and in respect of whom the Agent has received a
certificate signed by a director or another Authorised Signatory of such
Obligor or proposed Obligor setting out the name and signature of such
person and confirming such person's authority to act.
"Availability Period" means:
(a) in relation to Facility A the period from and including the date of
this Agreement to and including the day falling 6 Months from the date
of this Agreement; and
(b) in relation to Facility B, the period from and including the date of
this Agreement to and including the Termination 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
or Bank Guarantees under that Facility; and
(b) in relation to any proposed Utilisation, the Base Currency Amount of
its participation in any Loans or Bank Guarantees that are due to be
made under that Facility on or before the proposed Utilisation Date,
other than, in relation to Facility B only, that Lender's participation in
any Facility B Loans or Bank Guarantees that are due to be repaid or prepaid
or to expire 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.
"Bank of America Facility" means a U.S.$62,500,000 unsecured revolving
credit facility (as amended), dated 3 November 1998 between, inter alios,
Bank of America N.A. and E.W. Blanch Holdings, Inc.
"Bank Guarantee" means a bank guarantee or other instrument issued or to be
issued by the Fronting Bank under Facility B substantially in the form
requested by the Original Borrower which is acceptable to the Agent and the
Fronting Bank.
"Bank Guarantee Commission Rate" means a bank guarantee commission rate
equal to the Margin from time to time.
"Bank Guarantee Proportion" means, in relation to a Lender in respect of any
Bank Guarantee and save as otherwise provided in this Agreement, the
proportion (expressed as a
percentage) borne by that Lender's Available Commitment to the Available
Facility immediately prior to the issue of that Bank Guarantee.
"Bank Guarantee Valuation Date" means the first Business Day which falls six
Months after the date of this Agreement and each day falling at six Monthly
intervals after that date.
"Base Currency" means U.S. dollars.
"Base Currency Amount" means, in relation to a Loan or a Bank Guarantee, the
amount specified in the Utilisation Request delivered by a Borrower for that
Loan or Bank Guarantee (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:
(a) in relation to a Utilisation three Business Days before the Utilisation
Date (or, if later, on the date the Agent receives the Utilisation
Request);
(b) in the case of a renewal or revaluation of a Bank Guarantee the later
of:
(i) the date falling two Business Days before its issue date or any
renewal; or
(ii) the most recent Bank Guarantee Valuation Date;
adjusted to reflect any repayment (other than, in relation to Facility
A, a repayment arising from a change of currency), prepayment,
consolidation or division of the Loan or Bank Guarantee, as the case
may be.
"Beneficiaries" means the Finance Parties and the Hedge Counterparties.
"Bidco" means Barrel Acquisition Corporation, a Delaware corporation that is
a wholly owned direct or indirect subsidiary of the original borrower.
"Borrower" means an Original Borrower or an Additional Borrower unless it
has ceased to be a Borrower in accordance with Clause 28 (Changes to the
Obligors).
"Break Costs" means the amount (if any) by which:
(a) the interest (excluding the Margin) 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:
(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, New York and:
(a) (in relation to any date for payment or purchase of a currency other
than euro, dollars or sterling) 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.
"Cash Collateral" means, in relation to any Bank Guarantee or Bank Guarantee
Proportion of a Bank Guarantee, a deposit in any interest-bearing account
or accounts as the Agent may specify, that deposit and account to be
secured in favour of, and on terms and conditions acceptable to, the Agent.
"Cash Collateral Documents" means any documents, as the Agent may specify,
to be entered into in relation to the Cash Collateral.
"Cash Equivalent Investments" means:
(a) debt securities denominated in Sterling or any other currency issued by
the Government of the United Kingdom (or any other currency as the
Agent may approve, issued by the government of any other state as the
Agent may approve) having not more than twelve months to final maturity
and not convertible into any other form of security;
(b) debt securities denominated in U.S. dollars, Sterling or another
Optional Currency which have not more than six months to final
maturity, are not convertible into any other form of security, are
rated P1 by Moody's Investor Services Inc. or A-1 by Standard & Poor's
Corporation and are not issued or guaranteed by any member of the
Group;
(c) certificates of deposit denominated in U.S. dollars, Sterling or
another Optional Currency having not more than six months to final
maturity issued by a bank incorporated in or having a branch in the
United Kingdom, provided that such bank has been approved for the
purposes of this definition by the Agent (acting reasonably); and
(d) such other securities (if any) as are approved as such in writing by
the Agent (acting reasonably).
"Certain Funds Event of Default" means any circumstance constituting an
Event of Default under any of the following Clauses 25.3 (Negative Pledge),
25.4 (Disposals), 25.11 (Acquisitions), 25.12 (Claims Pari Passu), 25.22
(The Offer), 26.1 (Non-payment), 26.5 (Misrepresentation) (in relation only
to Certain Funds Repeated Representations), 26.7 (Insolvency), 26.8
(Insolvency Proceedings), 26.9 (Creditors' Process) and 26.10
(Unlawfulness).
"Certain Funds Period" means the period commencing on the date hereof and
ending on the earlier of:
(a) the last day of the Availability Period in respect of Facility A;
(b) the date on which the Original Borrower has paid for all shares in the
Target which are subject to the Tender Offer and the Merger has
completed in accordance with the terms and conditions of the Merger
Agreement.
"Certain Funds Repeated Representations" means each of the representations
set out in Clauses 22.1 (Status), 22.2 (Binding Obligations), 22.3 (Non-
conflict with other obligations) and 22.4 (Power and authority).
"Change of Control" means a situation where any person or group of connected
persons which does not at the date hereof have, or would not be held under
Section 416 of the Income and Corporation Taxes Act 1988 to have at the date
hereof, control of the Original Borrower acquires such control (for the
purposes of this paragraph "Connected Person" shall be construed in
accordance with section 839 of the Income and Corporation Taxes Act 1988).
"Clean Up Date" means the date falling 3 Months after the earlier of:
(a) the date Target becomes a direct or an indirect wholly-owned subsidiary
of the Original Borrower; or
(b) the date on which completion of the Merger takes place pursuant to the
terms and conditions of the Merger Agreement.
"Client Assets" means cash or investments the entire beneficial interest in
which is owned by a client of a group member and which are, where required,
credited to separately designated client accounts.
"Code" means, at any date, the U.S. Internal Revenue Code of 1986 (or any
successor legislation thereto) as amended from time to time, and the
regulations promulgated and rulings issued thereunder, all as the same may
be in effect at such date.
"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).
"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 Original Borrower and the Agent.
"Debenture" means each of the debentures in an agreed form creating fixed
and floating charges over all of the assets and undertakings of each Obligor
incorporated in England and Wales.
"Debt Cover" bears the meaning given to it in Clause 24.1 (Financial
Definitions).
"Default" means an Event of Default or any event or circumstance specified
in Clause 26 (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.
"Employee Plan" means an employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or
Section 412 of the Code or Section 302 of ERISA, and in respect of which a
U.S. Group Company or any ERISA Affiliate is (or, if such plan were
terminated, would under Section 4069 of ERISA be deemed to be) an "employer"
as defined in Section 3(5) of ERISA.
"Environmental Claim" means any claim, proceeding or investigation by any
person in respect of any Environmental Law.
"Environmental Law" means any applicable law in any jurisdiction in which
any member of the Group conducts business which relates to the pollution or
protection of the environment or harm to or the protection of human health
or the health of animals or plants.
"Environmental Permits" means any permit, licence, consent, approval and
other authorisation and the filing of any notification, report or assessment
required under any Environmental Law for the operation of the business of
any member of the Group conducted on or from the properties owned or used by
the relevant member of the Group.
"ERC Debt" means the $22,107,789, four per cent. redeemable debenture due on
29 December 2004 and the $2,211 four per cent. redeemable debenture due 29
December 2004 each issued by the Original Borrower.
"ERISA" means, at any date, the United States Employee Retirement Income
Security Act of 1974 (or any successor legislation thereto) as amended from
time to time, and the regulations promulgated and rulings issued thereunder,
all as the same may be in effect at such date.
"ERISA Affiliate" means any person that for purposes of Title I and Title IV
of ERISA and Section 412 of the Code is a member of a U.S. Group Company's
controlled group, or under common control with a U.S. Group Company, within
the meaning of Section 414(b), (c), (m) or (o) of the Code.
"ERISA Event" means
(a) any reportable event, as defined in Section 4043 of ERISA, with respect
to an Employee Plan, as to which 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 Code or Section
302 of ERISA shall be a reportable event for the purposes of this
paragraph (a) regardless of the issuance of any waivers in accordance
with Section 412(d) of the Code);
(b) 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;
(c) 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;
(d) 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 Code or Section 302 of ERISA;
(e) an engagement, by a U.S Group Company (or such that there would be
liability thereto), in a non-exempt prohibited transaction within the
meaning of Section 4795 of the Code or Section 406 of ERISA which upon
the occurrence of any of the events described in paragraphs (a) to (c)
(inclusive) above would reasonably be expected to have a Material
Adverse Effect;
(f) a complete or partial withdrawal by a U.S. Group Company or any ERISA
Affiliate from a Multiemployer Plan, or notification that a
Multiemployer Plan is in reorganisation in either case where such
withdrawal or reorganisation could result in liability to any U.S.
Group Company; and
(g) the aggregate liabilities (determined on an ongoing basis) among all
defined pension plans maintained by any U.S. Group Members or ERISA
Affiliate exceeds the values of such plans by more than $200,000, as
shown on an actuarial request received by such company or if, in
advance thereof, such company has reason to know with substantial
certainty that such excess exists.
"Event of Default" means any event or circumstance specified as such in
Clause 26 (Events of Default).
"Expiry Date" means, in relation to any Bank Guarantee, the date on which
the maximum aggregate of any Lender's actual or contingent liability under
that Bank Guarantee is to be reduced to zero.
"Facility" means Facility A or Facility B.
"Facility A" means the amortising term loan facility 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,
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 or the
principal amount outstanding for the time being of that loan.
"Facility A Repayment Date" means each of the dates specified in Clause 8.1
(Repayment of Facility A Loans) as a Repayment Date.
"Facility B" means the revolving loan and bank guarantee 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 Mandated Lead Arranger and the Original Borrower (or
the Agent and the Original Borrower) setting out any of the fees referred to
in Clause 15 (Fees).
"Finance Document" means this Agreement, any Fee Letter, the Hedging
Agreements, any Accession Letter, any Security Document and any other
document designated as such by the Agent and the Original Borrower.
"Finance Party" means each of the Agent, the Mandated Lead Arranger, the
Fronting Bank, the Security Trustee and the Lenders.
"Financial Indebtedness" means 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, as determined (where appropriate) by reference to
the provisions (if any) for calculating such value contained in the
documentation of that transaction, shall be taken into account);
(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;
(i) any amount raised by the issue of redeemable shares which are
redeemable at the option of the holder on or prior to the Termination
Date;
(j) any amount of any liability under an advance or deferred purchase
agreement if one of the primary reasons behind the entry into the
agreement is to raise finance and if such liability falls due for
payment six months or longer after the date of the purchase but
excluding any liability is treated as a trade creditor in accordance
with GAAP);
(k) (without double counting) the amount of any liability in respect of
any guarantee or indemnity for any of the items referred to in
paragraphs (a) to (j) above.
"Flotation" means a successful application being made for any part of the
share capital of any member of the Group or any Holding Company thereof to
the Official List of the London Stock Exchange Limited or the grant of
permission to deal in the same on the Alternative Investment Market or the
European Acquisition of Securities Dealers Automated Quotation System, the
New York Stock Exchange, NASDAQ or on any recognised investment exchange
(as that term is used in the Financial Services Act 1986) or in or on any
exchange or market replacing the same or any other exchange or market in
any country.
"Fronting Bank" means Barclays Bank PLC.
"GAAP" means, in relation to any person, generally accepted accounting
principles in the jurisdiction of incorporation of such person.
"Group" means the Original Borrower and its Subsidiaries for the time being
(and for the avoidance of doubt it shall include the Target Group).
"Group Structure Chart" means the group structure chart in agreed form
showing:
(a) all members of the Group;
(b) the jurisdiction of incorporation or establishment of each person with
paragraph (a) above; and
(c) which members of the Group are wholly-owned subsidiaries of the
Original Borrower.
"Guarantee Amount" means:
(a) each sum paid or payable by the Fronting Bank under a Bank Guarantee;
and
(b) all liabilities, costs (including, without limitation, any costs
incurred in funding any amount which falls due from the Fronting Bank
under or in connection with a Bank Guarantee), claims, losses and
expenses which the Fronting Bank incurs or sustains in connection with
or arising out of a Bank Guarantee,
in each case which has not been reimbursed pursuant to Clause 9 (Borrower's
liabilities in relation to Bank Guarantees).
"Guarantor" means an Original Guarantor or an Additional Guarantor, unless
it has ceased to be a Guarantor in accordance with Clause 28 (Changes to
the Obligors).
"Hedge Counterparty" means any Lender party to a Hedging Agreement.
"Hedging Agreement" means any agreement, in a form agreed between the Agent
and the Original Borrower, designated by the Agent as such pursuant to
which an Obligor enters into a hedging arrangement for the purpose of
complying with the provisions of Clause 25.20 (Hedging).
"Holding Account" means the account specified in a letter between the
Original Borrower and the Agent which account is held by the Original
Borrower with the Security Trustee (or any other interest-bearing account
held in England or New York with the Security Trustee by a Group member
which is opened after the date of this Agreement and after receipt by the
Agent of written confirmation from the Original Borrower that such account
is to be a "Holding Account") (as the same may be redesignated, substituted
or replaced from time to time) which is pledged, charged or assigned to the
Security Trustee pursuant to the Security Documents to secure all amounts
due under the Finance Documents.
"Holding Company" means, in relation to a company or corporation, any other
company or corporation in respect of which it is a Subsidiary.
"HSBC Facility" means a (Pounds)50,000,000 term loan and guarantee facility
and a (Pounds)5,000,000 revolving credit facility dated 9 June 1999 (as
amended) between, inter alios, Benfield Greig Group PLC and HSBC Investment
Bank PLC.
"Indebtedness for Borrowed Money" means Financial Indebtedness save for any
indebtedness for or in respect of paragraphs (g) and (h) of the definition
of "Financial Indebtedness".
"Information Memorandum" means the document in the form to be approved by
the Original Borrower concerning the Original Obligors which, at the
Original Borrower's request and on its behalf, is to be prepared in
relation to this transaction and distributed by the Mandated Lead Arranger
prior to the Syndication Date in connection with syndication of the
facilities made available under this Agreement.
"Interest Period" means, in relation to a Loan, each period determined in
accordance with Clause 13 (Interest Periods and Terms) and, in relation to
an Unpaid Sum, each period determined in accordance with Clause 12.3
(Default interest).
"IRS" means the United States Internal Revenue Service or any successor
thereto.
"Kelly Loan Notes" means the (Pounds)600,000 loan notes divided into three
equal tranches issued or to be issued to Gavin Kelly by the Original
Borrower in connection with its acquisition of Gavin Kelly's ordinary B
shares in Benfield Advisory Holdings Limited with respective redemption
dates between 6 April 2002 and 31 December 2003, 1 January 2003 and 31
December 2003, 1 January 2004 and 31 December 2004.
"Lender" means:
(a) any Original Lender; and
(b) any bank or financial institution which has become a Party in
accordance with Clause 27 (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 Interest Period
of that Loan) the arithmetic mean of the rates (rounded upwards to
four decimal 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.
"LMA" means the Loan Market Association.
"Loan" means a Facility A Loan or a Facility B Loan.
"Loan Notes" means the loan notes issued under an instrument dated 12
November 1997 issued by the Original Borrower creating up to
(Pounds)100,000,000 variable unsecured guarantee loan notes due 2002.
"Majority Lenders" means:
(a) if there are no Loans or Bank Guarantees then outstanding, a Lender or
Lenders whose Commitments aggregate more than 66 2/3 per cent. of the
Total Commitments (or, if the Total Commitments have been reduced to
zero, aggregated more than 66 2/3 per cent. of the Total Commitments
immediately prior to the reduction); or
(b) at any other time, a Lender or Lenders whose participations in the
Outstandings aggregate more than 66 2/3 per cent. of all the
Outstandings.
"Mandatory Cost" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 4 (Mandatory Cost Formulae).
"Margin" means 2.00 per cent. per annum, but:
(a) subject to sub-clause (c), if the Debt Cover in respect of the most
recent Relevant Period (ending no earlier than 12 Months after the
date of this Agreement) is within the range set out in column 1 of the
margin grid table set out below, then the Margin shall be the
percentage per annum set out opposite such range.
Margin Grid Table
Column 1 Column 2
Debt Cover Margin
Greater than or equal to 2.50:1 2.00%
Less than 2.50:1 but greater than or equal to
2.00:1 1.75%
Less than 2.00:1 but greater than or equal to
1.50:1 1.50%
Less than 1.50:1 but greater than or equal to
1.0:1 1.25%
Less than 1.0:1 1%
(b) any reduction or increase to the Margin provided for in sub-clause (a)
shall take effect only in relation to any Rollover Loan made or
Interest Period or Bank Guarantee Valuation Date, as the case may be,
commencing after receipt by the Agent of both (i) (in the case of a
Relevant Period ending on the last day of the Group's financial year)
the annual audited financial statements of the Group delivered in
accordance with Clause 23.1 (Financial Statements) or (in the case of
the Relevant Period ending on the last day of any other financial half
year of the Group) semi-annual financial statements of the Group
delivered in accordance with Clause 23.1 (Financial Statements) and
(b) in each case, a Compliance Certificate for such Relevant Period
pursuant to Clause 23.2 (Compliance Certificate).
(c) if at any time an Event of Default is continuing, the Margin shall be
2.00% per annum.
"Margin Stock" means "margin stock" or "margin security" within the meaning
of Regulations T, U and X.
"Material Adverse Effect" means a material adverse effect on:
(a) the business or financial condition of the Group taken as a whole;
(b) the ability of an Obligor to perform its payment obligations under the
Finance Documents or its obligations under Clause 24 (Financial
Covenants); or
(c) the validity or enforceability of the Finance Documents or the rights
or remedies of any Finance Party under the Finance Documents.
"Material Company" means, at any time, a Subsidiary of the Original
Borrower which:
(a) is an Obligor; or
(b) has profits before interest and tax (calculated on the same basis as
Consolidated Profits Before Interest and Tax, as defined in Clause 24
(Financial covenants) representing 5 per cent. or more of Consolidated
Profit Before Interest and Tax, as defined in Clause 24 (Financial
covenants); and/or
(c) has revenue representing 5 per cent., or more of consolidated revenue
of the Group,
in each case calculated on a consolidated basis.
Compliance with the conditions set out in paragraphs (b) and (c) shall be
determined by reference to the most recent Compliance Certificate supplied
by the Original Borrower and/or the latest audited financial statements of
that Subsidiary (consolidated in the case of a Subsidiary which itself has
Subsidiaries and which produces such consolidated financial statements (but
so that where such consolidated financial statements are not produced the
question as to whether that Subsidiary is a Material Company shall be
determined by reference to the consolidated financial position of that
Subsidiary) and the latest audited consolidated financial statements of the
Group but if a Subsidiary has been acquired since the date as at which the
latest audited consolidated financial statements of the Group were
prepared, the financial statements shall be adjusted in order to take into
account the acquisition of that Subsidiary (that adjustment being certified
by the Group's auditors as representing an accurate reflection of the
revised Consolidated Profits Before Interest and Tax or revenue of the
Group).
A report by the auditors of the Original Borrower that a Subsidiary is or
is not a Material Original Borrower shall, in the absence of manifest
error, be conclusive and binding on all Parties.
"Merger" means the merger of Bidco with and into the Target and as more
specifically set out and governed by the terms and conditions of the Merger
Agreement.
"Merger Agreement" means the agreement and plan of merger dated as of 15
April 2001 and made between the Original Borrower, Bidco and Target.
"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
(3)(37) of ERISA) maintained or contributed to for employees of a U.S.
Group Company or any ERISA Affiliate.
"Obligor" means a Borrower or a Guarantor.
"Offer to Purchase" bears the meaning given to "Offer to Purchase" in the
Merger Agreement (as in force on the date hereof).
"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:
(a) in relation to the Original Borrower, the audited consolidated
financial statements of the Group for the financial year ended 31
December 2000; and
(b) in relation to each Original Obligor other than the Original Borrower,
its audited financial statements for its financial year ended 31
December 2000; and
(c) in relation to the Target, its audited consolidated financial
statements for its financial year ended 31 December 2000.
"Original Obligor" means an Original Borrower or an Original Guarantor.
"Outstandings" means at any time, the aggregate of the Base Currency
Amounts of the outstanding Loans and the amount of the maximum actual and
contingent liabilities of the Lenders in respect of each outstanding Bank
Guarantee.
"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 U.S. Pension Benefit Guaranty Corporation, or any entity
succeeding to all or any of its functions under ERISA.
"Permitted Disposals" means any disposal:
(a) by a Group member in the ordinary course of its risk management
business and on arm's length terms;
(b) by an Obligor to another Obligor if such other Obligor is party to a
legally valid, binding and, subject to the Reservations, enforceable
Security Document which creates a first priority Security over all or
substantially all of its assets (and, if not all of its assets, the
assets being acquired by that other Obligor);
(c) of an unencumbered asset by a member of the Group which is not an
Obligor to another member of the Group;
(d) on arm's length terms of any surplus or obsolete assets not required
for the efficient operation of the business of the Group by any Group
member;
(e) of cash where such disposal is not otherwise prohibited by this
Agreement;
(f) of E.W. Blanch Insurance Services Inc.'s ten per cent. shareholding in
Rockwood Programs, Inc. further to an option to acquire such shares in
favour of Glenn W. Clark under a stock purchase agreement, dated 30
June 2000;
(g) of Client Assets;
(h) on arm's length terms of shares or assets in accordance with the group
re-organisation as described in the Tax Structure Paper;
(i) on arm's length terms of the shares in and the assets of a member of
the Group which is not an Obligor or a Material Company (or which
would not constitute a Material Company at the time of the disposal)
or of any other shares or assets as detailed in a letter of even date
from the Original Borrower to the Agent provided that the proceeds of
the disposal are applied in accordance with the provisions of Clause
10.2 (Mandatory Prepayment from Net Disposal Proceeds);
(j) on arm's length terms of a fixed asset for cash by a Group member
which disposals are not within paragraph (a) to (i) above and where
the value of the net consideration received by a Group member in
respect of any such disposal:
(i) does not exceed (Pounds)2,000,000 (or its equivalent); and
(ii) when aggregated with all other such disposals by members of the
Group made in the same financial year of the Group does not
exceed (Pounds)5,000,000 (or its equivalent);
"Qualifying Lender" has the meaning given to it in Clause 16 (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 the principal London offices of Barclays Bank PLC
and such other Lenders as may be appointed by the Agent in consultation
with the Original Borrower.
"Regulations T, U and X" means, respectively, Regulations T, U and X of the
Board of Governors of the Federal Reserve System of the United States (or
any successor).
"Relevant Interbank Market" means the London interbank market.
"Relevant Period" bears the meaning given to it in Clause 24.1 (Financial
Definitions).
"Repayment Instalment" means each instalment for repayment of the Facility
A Loans referred to in Clause 8.1 (Repayment of Facility A Loans).
"Repeating Representations" means each of the representations set out in
Clauses 22.1 (Status) to 22.6 (Governing Law and Enforcement), Clause 22.9
(No Default), paragraph (d) of Clause 22.10 (No Misleading Information),
Clause 22.12 (Pari Passu Ranking) and Clause 22.13 (No Proceedings Pending
or Threatened).
"Reports" means the due diligence reports, in agreed form, prepared by (a)
Debevoise & Plimpton and Ashurst Morris Crisp, (b) PricewaterhouseCoopers
and (c) LeBoeuf Lamb Greene & MacRae in the case of (a) and (c) with a
reliance letter addressed to the Finance Parties and in the case of (b)
addressed to the Finance Parties.
"Reservations" means the principle that equitable remedies are remedies
which may be granted or refused at the discretion of the court, the
limitation of enforcement by laws relating to bankruptcy, insolvency,
liquidation, reorganisation, court schemes, moratoria, administration and
other laws generally affecting the rights of creditors, the time barring of
claims under the Limitations Act 1980, the possibility that an undertaking
to assume liability
for or indemnify against non-payment of United Kingdom stamp duty may be
void, defences of set-off or counterclaim and similar principles.
"Resignation Letter" means a letter substantially in the form set out in
Schedule 7 (Form of Resignation Letter).
"Rollover Loan" means one or more Facility B Loans:
(a) made or to be made on the same day that a maturing Facility B Loan is
due to be repaid;
(b) the aggregate amount of which is equal to or less than the maturing
Facility B Loan;
(c) in the same currency as the maturing Facility B Loan (unless it arose
as a result of the operation of Clause 7.2 (Unavailability of a
Currency)); and
(d) made or to be made to the same Borrower for the purpose of refinancing
a maturing Facility B Loan.
"Screen Rate" means the British Bankers' Association Interest Settlement
Rate for the relevant currency and period displayed on the appropriate page
of the Telerate 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 Original Borrower and the
Lenders.
"SEC" means the United States Securities and Exchange Commission or any
successor thereto.
"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.
"Security Documents" means the security documents in the agreed form
specified in Schedule 13 (Security Documents) together with any other
document entered into by an Obligor evidencing any security for all or any
part of the obligations of the Obligors or any of them under the Finance
Documents.
"Selection Notice" means a notice substantially in the form set out in Part
II of Schedule 3 (Requests) given in accordance with Clause 13 (Interest
Periods and Terms) in relation to Facility A.
"Specified Time" means a time determined in accordance with Schedule 11
(Timetables).
"Subsidiary" means a subsidiary undertaking within the meaning of Section
258 of the Companies Act 1985.
"Syndication Date" means the day which is three Months after Tender Offer
has become unconditional or such earlier date as specified by the Mandated
Lead Arranger as the day on which the sub-underwriting and general
syndication of the Facilities is completed.
"Target" means E.W. Blanch Holdings, Inc.
"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.
"Target Group" means Target and its Subsidiaries.
"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).
"Tax Structure Paper" means the tax structure paper in agreed form and
prepared by PricewaterhouseCoopers.
"Taxes Act" means the Income and Corporation Taxes Act 1988.
"Tender Offer" means the offer by Bidco to acquire a majority of the
outstanding shares of Target through a cash tender offer as more
specifically set out and governed by the terms and conditions of the Offer
to Purchase.
"Termination Date" means the date falling 60 Months from the date of this
Agreement.
"Term" means, in relation to any Bank Guarantee, the period from its
Utilisation Date until its Expiry Date.
"Total Commitments" means the aggregate of the total facility a commitments
and the total Facility B commitments, being $390,000,000 at the date of
this agreement.
"Total Facility A Commitments" means the aggregate of the Facility A
Commitments, being $315,000,000 at the date of this Agreement.
"Total Facility B Commitments" means the aggregate of the Facility B
Commitments, being $75,000,000 at the date of this Agreement.
"Transfer Certificate" means a certificate substantially in one of the
forms set out in Schedule 5 (Form of Transfer Certificates) or any other
form agreed between the Agent and the Original Borrower.
"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." and "United States" means the United States of America, its
territories, possessions and other areas subject to the jurisdiction of the
United States of America.
"U.S. Borrower" means a Borrower whose jurisdiction of incorporation is a
state of the United States of America or the District of Columbia.
"U.S. Group Company" means any U.S. Obligor whose jurisdiction of
incorporation is a state of the United States of America or the District of
Columbia.
"U.S. Guarantor" means a Guarantor whose jurisdiction of incorporation is a
state of the United States of America or the District of Columbia.
"U.S. Obligor" means a U.S. Borrower or a U.S. Guarantor.
"U.S. Security Documents" means each security document in an agreed form
executed or to be executed by a U.S. Obligor securing the Obligations of
the Obligors under the Finance Documents.
"Utilisation" means a utilisation of a Facility whether by way of Loan or
Bank Guarantee.
"Utilisation Date" means the date of a Utilisation, being the date on which
the relevant Loan is to be made or the relevant Bank Guarantee is to be
issued.
"Utilisation Request" means a notice substantially in the form set out in
Part I of Schedule 3 (Requests).
"VAT" means value added tax as provided for in the Value Added Tax Act 1994
and any other tax of a similar nature.
"Voting Stock" means capital stock issued by a corporation, or equivalent
interests in any other person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such person, even if the right
so to vote has been suspended by the happening of such a contingency.
1.2 Construction
(a) Unless a contrary indication appears a reference in this Agreement
to:
(i) a document in "agreed form" is a document that has been
initialled as such on or before the date of this Agreement for
the purposes of identification by or on behalf of the Original
Borrower, and either the Mandated Lead Arranger or the Agent
or is executed on or before the date of this Agreement by the
Original Borrower, and either the Mandated Lead Arranger or
the Agent or if not executed or initialled, is in form and
substance satisfactory to the Agent;
(ii) "assets" includes present and future properties, revenues and
rights of every description;
(iii) "Barclays Capital" is a reference to Barclays Capital, the
investment banking division of Barclays Bank PLC;
(iv) "disposal" includes any sale, lease, transfer or other
disposal;
(v) 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;
(vi) "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;
(vii) a Lender's "participation", in relation to a Bank Guarantee,
shall be construed as a reference to the rights and
obligations of that Lender in relation to that Bank
Guarantee as are expressly set out in this Agreement;
(viii) 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) of two or more of the foregoing;
(ix) a "regulation" includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law) of any governmental, intergovernmental or
supranational body, agency, department or regulatory, self-
regulatory or other authority or organisation;
(x) a provision of law is a reference to that provision as
amended or re-enacted; and
(xi) 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 or an Event of Default is "continuing" if it has not been
remedied or waived.
1.3 Currency Symbols and Definitions
"$" and "dollars" denote lawful currency of the United States of America
"(Pounds)" and "sterling" denotes lawful currency of the United Kingdom and
"EUR" and "euro" means the single currency unit of the Participating Member
States.
1.4 Third party rights
(a) Except as provided in a Finance Document, the terms of a Finance
Document may be enforced only by a party to it and the operation of
the Contracts (Rights of Third Parties) Act 1999 is excluded.
(b) Notwithstanding any provision of any Finance Document, the Parties to
the Finance Document do not require the consent of any third party to
rescind or vary any Finance Document at any time.
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 amortising term loan facility in an aggregate
amount equal to the Total Facility A Commitments; and
(b) a multicurrency revolving loan and bank guarantee 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
The Facilities are intended for the purpose of financing in part:
(a) the acquisition of all the stock in the Target in accordance with
terms and conditions of the Merger Agreement and the Tender Offer;
(b) the payment of the Acquisition Costs;
(c) the refinancing of the HSBC Facility and the Bank of America
Facility;
(d) the counter-guaranteeing or cash collateralisation of the existing
guarantee in respect of the Loan Notes;
(e) the general working capital requirements and corporate purposes of
the Group;
(f) the making of certain bonus payments to Messrs Karon and Fox as
described in the Tax Structure Paper;
(g) the guaranteeing of the Kelly Loan Notes; and
(h) the refinancing of the ERC Debt.
The Facilities available under this Agreement will not be used for any
purpose which would constitute financial assistance in accordance with
section 151 of Companies Act 1985.
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 Schedule 2
(Conditions Precedent) in form and substance satisfactory to the Agent.
The Agent shall notify the Original Borrower and the Lenders promptly
upon being so satisfied.
4.2 Further conditions precedent
(a) The Lenders and the Fronting Bank will only be obliged to comply
with Clause 5.4 (Lenders' and Fronting Bank's participation) if on
the date of the Utilisation Request and on the proposed
Utilisation Date (but subject to Clause 4.5 (Certain Funds)):
(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 7.3 (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:
(i) it is sterling or euros or any other currency (except
dollars) 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; and
(ii) it is sterling or euros or any other currency (except
dollars) which has been approved by the Agent (acting on the
instructions of all the Lenders) on or prior to receipt by
the Agent of the relevant Utilisation Request or Selection
Notice for that Loan.
(b) If the Agent has received a written request from the Original
Borrower for a currency to be approved under paragraph (a)(ii)
above, the Agent will confirm to the Original Borrower by the
Specified Time:
(i) whether or not the Lenders have granted their approval; and
(ii) if approval has been granted, 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 in
euro will only be made available in the euro unit.
4.4 Maximum number of Loans
(a) A Borrower may not deliver a Utilisation Request if as a result of
the proposed Utilisation:
(i) eight or more Facility A Loans would be outstanding; or
(ii) ten or more Facility B Loans would be outstanding.
(b) A Borrower may not request that a Facility A Loan be divided if, as
a result of the proposed division, eight or more Facility A Loans
would be outstanding.
(c) Any Loan made by a single Lender under Clause 7.2 (Unavailability
of a currency) shall not be taken into account in this Clause 4.4.
4.5 Certain Funds
To ensure that the Original Borrower has resources available to fulfil
its obligations under the Tender Offer, the Lenders agree that (without
prejudice to Clause 26.16 (Certain Funds Period)) in relation to any
Facility A Loan requested to be made (or a Bank Guarantee in respect of
the Loan Notes requested to be issued) or a Facility B Loan made for the
purpose of financing the cash collateralisation of the Loan Notes during
the Certain Funds Period:
(a) sub-clause 4.2(a)(i) of Clause 4.2 (Further Conditions Precedent)
shall only apply if a Certain Funds Event of Default has occurred
which is continuing; and
(b) sub-clause 4.2(a)(ii) of Clause 4.2 (Further Conditions Precedent)
shall only apply to the Certain Funds Repeated Representations.
SECTION 3
UTILISATION
5. UTILISATION
5.1 Delivery of a Utilisation Request
A Borrower (in the case of a Utilisation by way of Bank Guarantee,
only the Original 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); and
(iv) the proposed Interest Period or Term, as the case may be,
complies with Clause 13 (Interest Periods and Terms); and
(v) in relation to a Bank Guarantee, the Fronting Bank and the
Agent have approved the Term of the Bank Guarantee (which,
unless the Agent and the Fronting Bank otherwise agrees in
writing, shall be substantially in the form set in
Schedule 14 (Form of Bank Guarantee)), the purpose of its
issue and the identity of the beneficiary.
(b) Only one Loan or Bank Guarantee 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 or Bank Guarantee must be an
amount whose Base Currency Amount is not more than the Available
Facility and which is (in the case of a Loan only):
(i) if the currency selected is the Base Currency, a minimum of
$25,000,000 for Facility A and $5,000,000 for Facility B or in
either case, if less, the Available Facility; or
(ii) if the currency selected is euro, a minimum of euro 25,000,000
for Facility A and euro 5,000,000 for Facility B or in either
case, if less, the Available Facility.
(iii) if the currency selected is sterling, a minimum of
(Pounds)15,000,000 for Facility A and (Pounds)2,500,000 for
Facility B or in either case, if less, the Available Facility; or
(iv) if the currency selected is an Optional Currency other than euros
or sterling, 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.
5.4 Lenders' and Fronting Bank's participation
(a) If the conditions set out in this Agreement have been met, (i) each
Lender shall make its participation in each Loan available through its
Facility Office (ii) the Fronting Bank shall issue each Bank Guarantee
through its Facility Office.
(b) The amount of each Lender's participation in each Loan and each Bank
Guarantee will be equal to the proportion borne by its Available
Commitment to the Available Facility immediately prior to making the
Loan or the issue of the Bank Guarantee.
(c) The Agent shall notify each Lender of the amount, currency and the
Base Currency Amount of each Loan and each Bank Guarantee at the
Specified Time.
6. BANK GUARANTEES
6.1 Completion of Bank Guarantees
The Fronting Bank is authorised to issue any Bank Guarantee pursuant to
Clause 4 (Conditions of Utilisation) by:
(a) completing the issue date and the proposed Expiry Date of that Bank
Guarantee; and
(b) executing and delivering that Bank Guarantee to the relevant recipient
on the Utilisation Date.
6.2 Renewal of a Bank Guarantee
(a) Not less than three Business Days before the Expiry Date of a Bank
Guarantee the Original Borrower may, by written notice to the Agent,
request that the Term of that Bank Guarantee be extended.
(b) The Finance Parties shall treat the request in the same way as a
Utilisation Request for a Bank Guarantee in the amount and maturity of
the Bank Guarantee (as to be extended).
(c) The terms of each renewed Bank Guarantee shall be the same as those of
the relevant Bank Guarantee immediately prior to its renewal, save
that its Term shall commence on the date which was the Expiry Date of
that Bank Guarantee immediately prior to its renewal and shall end on
the proposed Expiry Date specified in the request.
(d) The relevant Fronting Bank is authorised to amend any Bank Guarantee
pursuant to a request if the conditions set out in this Agreement have
been complied with.
6.3 Restrictions on participation in Bank Guarantees
If at any time prior to the issue of a Bank Guarantee any Lender is
prohibited by law or pursuant to any request from or requirement of
any central bank or other fiscal, monetary or other authority from
having any right or obligation under this Agreement in respect of a
Bank Guarantee, that Lender shall notify the Agent on or before the
Business Day prior to the proposed Utilisation Date and:
(a) the maximum actual and contingent liabilities of the Fronting
Bank under that Bank Guarantee shall be reduced by an amount
equal to an amount which would have been the amount of that
Lender's Bank Guarantee Proportion of that Bank Guarantee if the
prohibition had not occurred;
(b) the Bank Guarantee Proportion of that Lender in relation to that
Bank Guarantee shall be nil; and
(c) that Lender's Available Commitment shall be reduced by an amount
equal to an amount which would have been the amount of that
Lender's Bank Guarantee Proportion of the Bank Guarantee if the
prohibition had not occurred.
7. OPTIONAL CURRENCIES
7.1 Selection of currency
(a) A Borrower (or the Original Borrower on behalf of a Borrower)
shall select the currency of a Loan or Bank Guarantee:
(i) (in the case of an initial Utilisation) in a Utilisation
Request; and
(ii) (afterwards in relation to a Facility A Loan made to it) in
a Selection Notice.
(b) If a Borrower (or the Original Borrower on behalf of a Borrower)
fails to issue a Selection Notice in relation to a Facility A
Loan, 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 Original Borrower on behalf of a Borrower)
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.
7.2 Unavailability of a currency
If before the Specified Time on any Quotation Day:
(a) the Agent has received notice from a Lender that an 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 a proposed Optional Currency (other
than sterling or euros) 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 Clause 7.2 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 Facility B 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.
7.3 Change of currency
(a) If a Facility A 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 Borrower agree otherwise in
accordance with paragraph (b) below) the Borrower that has
borrowed the Loan shall repay it 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 7.5 (Agent's calculations).
(b) If the Agent and the Borrower that has borrowed the Facility A
Loan 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 Facility A 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 that Borrower
and that Borrower shall, on the last day of the first Interest
Period, pay an amount to the Agent (in the currency of the
outstanding Facility A 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 that Borrower and pay that Borrower, on the
last day of the first Interest Period that part of that amount
(in the new currency).
7.4 Same Optional Currency during successive Interest Periods
(a) If a Facility A Loan is to be denominated in the same Optional
Currency during two successive Interest Periods, the Agent shall
calculate the amount of the Facility A 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 Facility A 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 Facility A Loan in the Optional Currency during
the first Interest Period, promptly notify the Borrower
that has borrowed that Facility A Loan and that 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 Facility A 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 Facility A 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.
7.5 Agent's calculations
(a) All calculations made by the Agent pursuant to this Clause 7 will
take into account any repayment, prepayment, consolidation or
division of Facility A 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' and Fronting Bank's participation).
SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
8. REPAYMENT
8.1 Repayment of Facility A Loans
(a) Each Borrower shall repay the Facility A Loans made to it in
instalments by repaying on each Repayment Date an amount such that the
aggregate of the Base Currency Amounts of the Facility A Loans is
reduced by the amount set out opposite each Repayment Date below:
Repayment Date Repayment Instalments
12 Months from the date of this Agreement US$38,000,000
24 Months from the date of this Agreement US$38,000,000
36 Months from the date of this Agreement US$58,000,000
48 Months from the date of this Agreement US$58,000,000
60 Months from the date of this Agreement US$123,000,000
(b) If, in relation to the Facility A Repayment Date, the aggregate of the
Base Currency Amounts of the Facility A Loans made to the Borrowers
exceeds the Repayment Instalment to be paid by the Borrowers, the
Original Borrower may, if it gives the Agent not less than five
Business Days' prior notice, select which of those Facility A Loans
will be wholly or partially repaid so that the Repayment Instalment is
paid on the relevant Repayment Date in full. The Original Borrower may
not make a selection if as a result more than one Facility A Loan will
be partially repaid.
(c) If the Original Borrower fails to deliver a notice to the Agent in
accordance with paragraph (b) above, the Agent shall select the
Facility A Loans to be wholly or partially repaid.
(d) Any repayment or prepayment of a Facility A Loan denominated in an
Optional Currency shall reduce the amount of that Facility A Loan by
the amount of that Optional Currency repaid and shall reduce the Base
Currency Amount of that Facility A Loan proportionally.
(e) No Borrower may reborrow any part of Facility A which is repaid.
8.2 Repayment of Facility B Loans
Each Borrower which has drawn a Facility B Loan shall repay that Loan on
the last day of its Interest Period.
9. BORROWER'S LIABILITIES IN RELATION TO BANK GUARANTEES
9.1 Demands under Bank Guarantees
If a demand is made under a Bank Guarantee or the Fronting Bank incurs in
connection with a Bank Guarantee any other liability, cost, claim, loss or
expense which is to be reimbursed pursuant to this Agreement, the Fronting
Bank shall promptly notify the Agent of the amount of such demand or such
liability, cost, claim, loss or expense and the Bank Guarantee to which it
relates and the Agent shall promptly make demand upon the Original Borrower
in accordance with this Agreement and notify the Lenders.
9.2 Borrowers' indemnity to Fronting Banks
The Original Borrower shall irrevocably and unconditionally as a primary
obligation indemnify (within three Business Days of demand of the Agent)
the Fronting Bank against:
(a) any sum paid or due and payable by the Fronting Bank under a Bank
Guarantee; and
(b) all liabilities, costs (including, without limitation, any costs
incurred in funding any amount which falls due from the Fronting Bank
under any Bank Guarantee or in connection with such Bank Guarantee),
claims, losses and expenses which the Fronting Bank may at any time
incur or sustain in connection with or arising out of a Bank
Guarantee.
9.3 Borrowers' indemnity to Lenders
The Original Borrower shall irrevocably and unconditionally as a primary
obligation indemnify (within three Business Days of demand of the Agent)
each Lender against:
(a) any sum paid or due and payable by that Lender (whether under Clause
30.1 (Lenders' Indemnity) or otherwise) in connection with a Bank
Guarantee; and
(b) all liabilities, costs (including, without limitation, any costs
incurred in funding any amount which falls due from that Lender in
connection with that Bank Guarantee), claims, losses and expenses
which that Lender may at any time incur or sustain in connection with
any Bank Guarantee.
9.4 Preservation of rights
Neither the obligations of the Original Borrower set out in this
Clause 9 nor the rights, powers and remedies conferred on the Fronting
Bank or any Lender by this Agreement or by law shall be discharged,
impaired or otherwise affected by:
(a) the winding-up, dissolution, administration or re-organisation of
the Fronting Bank, any Lender or any other person or any change
in its status, function, control or ownership;
(b) any of the obligations of the Fronting Bank, any Lender or any
other person under this Agreement or under any Bank Guarantee or
under any other security taken in respect of its obligations
under this Agreement or otherwise in connection with a Bank
Guarantee being or becoming illegal, invalid, unenforceable or
ineffective in any respect;
(c) time or other indulgence being granted or agreed to be granted to
the Fronting Bank, any Lender or any other person in respect of
its obligations under this Agreement or under or in connection
with a Bank Guarantee or under any other security;
(d) any amendment to, or any variation, waiver or release of, any
obligation of the fronting bank, any Lender or any other person
under a Bank Guarantee or this agreement;
(e) any other act, event or omission which, but for this Clause 9,
might operate to discharge, impair or otherwise affect any of the
obligations of the Original Borrower set out in this Clause 9 or
any of the rights, powers or remedies conferred upon the Fronting
Bank or any Lender by this Agreement or by law.
The obligations of the Original Borrower set out in this Clause 9
shall be in addition to and independent of every other security which
any Fronting Bank or any Lender may at any time hold in respect of the
Original Borrower's obligations under this Agreement.
9.5 Settlement conditional
Any settlement or discharge between the Original Borrower and the
Fronting Bank or a Lender shall be conditional upon no security or
payment to the Fronting Bank or Lender by the Original Borrower, or
any other person on behalf of the Original Borrower, being avoided or
reduced by virtue of any laws relating to bankruptcy, insolvency,
liquidation or similar laws of general application and, if any such
security or payment is so avoided or reduced, the Fronting Bank or
Lender shall be entitled to recover the value or amount of such
security or payment from the Original Borrower subsequently as if such
settlement or discharge had not occurred.
9.6 Right to make payments under Bank Guarantees
The Fronting Bank shall be entitled to make any payment in accordance
with the terms of the relevant Bank Guarantee without any reference to
or further authority from the Original Borrower or any other
investigation or enquiry. The Original Borrower irrevocably authorises
the Fronting Bank to comply with any demand under a Bank Guarantee
which is valid on its face.
9.7 Revaluation of Outstandings
On each Bank Guarantee Valuation Date, the Agent shall calculate the
amount of the Outstandings (having regard to changes in the Base
Currency Amounts of the Bank Guarantees which may arise as a result of
currency fluctuations) and the Agent shall notify the Original
Borrower of the amount, if any (the "Excess Amount") by which the
Outstandings exceed the aggregate Commitments of the Lender and the
Original Borrower shall:
(a) procure that the Outstandings are reduced by an amount no less
than the Excess Amount; or
(b) secure that Excess Amount by providing Cash Collateral in an
amount no less than the Excess Amount.
10. MANDATORY PREPAYMENT
10.1 Definitions
For the purposes of this Clause 9:
"Net Disposal Proceeds" means the cash proceeds (including any amount
received in repayment of intercompany debt) of any disposal of any
asset of any member of the Group after deducting:
(a) reasonable out of pocket expenses directly incurred by any member
of the Group due to such disposal;
(b) VAT paid or payable by the seller due to such disposal;
(c) any tax directly incurred and required to be paid by the seller
in connection with such disposal (as reasonably determined by the
seller, acting in good faith, on the basis of existing rates and
taking account of any available credit, deduction or allowance);
(d) in the case of a disposal effected by a Subsidiary of the
Original Borrower, such provision as shall be reasonable for all
costs and taxes incurred by the Group and fairly attributable to
up-streaming the cash proceeds or making any distribution in
connection therewith to enable them to reach a Borrower;
(e) in the case of a disposal of a Subsidiary of the Original
Borrower where liabilities to third parties in respect of
Indebtedness for Borrowed Money are assumed by other members of
the Group as part of the consideration for the sale of the
Subsidiary, such amount of the consideration received by the
Group which is fairly attributable to that assumption; and
(f) in the case of a disposal by a Subsidiary of the Borrower that is
not a wholly-owned Subsidiary, the pro rata share of such net
cash proceeds attributable to the minority interests in that
subsidiary,
provided that proceeds received in respect of any disposal referred to
in paragraphs (a) to (c) or (e) of the definition of Permitted
Disposals shall not constitute Net Disposal Proceeds.
10.2 Mandatory Prepayment from Net Disposal Proceeds
to the extent that is lawfully permissible (and provided that a
prepayment under this Clause 10.2 will not contravene or result in a
breach of any exchange controls or result in a requirement to pay a
withholding tax of five per cent. or more of the Net Disposal
Proceeds) on receipt by any member of the Group of Net Disposal
Proceeds which when aggregated with all other Net Disposal Proceeds
received by members of the group in any given financial year amount to
more than (pounds)5,000,000 (or its equivalent) (the "Threshold
Amount"), the Original Borrower shall procure that:
(a) the excess of such Net Disposal Proceeds over the Threshold
Amount are paid into a Holding Account in accordance with Clause
10.7 (Prepayment and Holding Accounts); and
(b) the excess of such Net Disposal Proceeds over the Threshold
Amount is reinvested in assets used in its risk management
business within six Months from receipt of such Net Disposal
Proceeds; or
(c) if such reinvestment does not occur within the six Month period,
such excess cash shall be applied by no later than the last day
of the Interest Period first ending after the expiry of the six
Month period in repayment of the Outstandings in accordance with
Clause 10.5 (Application of Prepayments).
10.3 Mandatory Prepayment, Sale or Flotation
In the event of:
(a) any Flotation; or
(b) any Change of Control of the Original Borrower;
then the Agent may (and, if so instructed by the Lenders or the
Fronting Bank, shall) by notice to the Original Borrower:
(a) declare all the Loans and Bank Guarantees to be immediately due
and payable (whereupon the same shall become so payable together
with accrued interest thereon and any other sums than owed by the
Borrowers hereunder); and/or
(b) declare that any undrawn portion of the Facilities or Bank
Guarantees shall be cancelled, whereupon the same shall be
cancelled and the Available Commitment of each Lender shall be
reduced to zero.
10.4 Mandatory Prepayment from Share Issues
Save for shares issued to Messrs. Karon and Fox as set out in the Tax
Structure Paper and save for the proceeds of the exercise of share
options by, or the issue of shares or share options (directly or
indirectly) to employees where such proceeds do not exceed in aggregate
(Pounds)10,000,000 (or its equivalent) the Original Borrower shall
procure that all Outstandings shall, to the fullest extent it is
legally permissible, be prepaid by no later than the last date of the
Interest Period (and until such time as a payment is made under this
Clause 10.4 to deposit such proceeds into a Holding Account) first
ending after the receipt of the relevant proceeds in aggregate amounts
equal to the net cash proceeds (and for the avoidance of doubt such net
cash proceeds excludes any reasonable costs, expenses or tax incurred
in relation to such issue of shares, bonds, notes, capital or loan
stock or similar instruments however described) raised by any member of
the Group pursuant to any issue of shares, bonds, notes, capital or
loan stock or similar instruments however described. Any such
prepayment shall be applied at the end of the Interest Period in
repayment of the Outstandings in accordance with Clause 10.5
(Application of Prepayments).
10.5 Application of Prepayments
(a) Any prepayment made under Clause 10.2 (Mandatory Prepayment of
Proceeds) or Clause 10.4 (Mandatory Prepayment from Share Issues)
shall be applied in prepayment of the outstandings under Facility
A.
(b) Any amount to be applied in prepayment of outstandings under
Facility A, pursuant to Clauses 10.2 (Mandatory Prepayment from
Net Disposal Proceeds) and 10.4 (Mandatory Prepayment from Share
Issues) shall be applied in the following manner:
(i) if such amount when aggregated with any previous amounts to
be so applied is equal to or less than (Pounds)25,000,000,
then fifty per cent. of such amount shall be applied in
satisfaction of the Original Borrower's obligations under
Clause 8.1 (Repayment of Facility A Loans) pro rata and the
remainder shall be applied against such obligations in
inverse chronological order; and
(ii) in all other cases, such amount shall be applied in
satisfaction of the Original Borrower's obligations under
Clause 8.1 (Repayment of Facility A Loans) in inverse
chronological order.
10.6 Illegality
If, at any time, it is or will become unlawful in any jurisdiction for
a Lender or the Fronting Bank to perform any of its obligations as
contemplated by this Agreement or to fund, issue or participate in any
Loan or Bank Guarantee:
(a) that Lender or Fronting Bank, as the case may be shall promptly
notify the Agent upon becoming aware of that event;
(b) upon the Agent notifying the Original Borrower, the Commitment of
that Lender will be immediately cancelled; and
(c) each Borrower shall, on the last day of the Interest Period for
each Loan or Term for each Bank Guarantee, as the case may be,
occurring after the Agent has notified the Original Borrower or, if
earlier, the date specified by the Lender in the notice delivered
to the Agent,
(i) repay that Lender's participation in the Loans made to that
Borrower; and
(ii) the Original Borrower shall ensure that the liabilities of
that Lender or the Fronting Bank under or in respect of each
Bank Guarantee are reduced to zero or otherwise secured by
providing Cash Collateral in an amount equal to such
Lender's Bank Guarantee Proportion of those Bank Guarantees
or the Fronting Bank's maximum actual and contingent
liabilities under that Bank Guarantee in the currency or
currencies of those Bank Guarantees.
10.7 Prepayment and Holding Accounts
10.7.1 The Original Borrower shall ensure that any amounts required to be
reinvested pursuant to Clause 10.2 (Mandatory Prepayment from Net
Disposal Proceeds), are paid promptly into a Holding Account upon
receipt and prior to use for the relevant purpose.
10.7.2 The Original Borrower irrevocably authorises the Agent on behalf
of itself and the other Borrowers, if any, to withdraw monies from
the Holding Account upon the
giving of notice to the Original Borrower pursuant to Clause 26.15
(Acceleration), against any amounts due and payable under the
Finance Documents.
10.7.3 Any Lender with which such account is held acknowledges and agrees
that interest shall accrue at normal commercial rates on amounts
credited to the Holding Account and that the account holder shall
be entitled to receive such interest (which shall be paid in
accordance with the mandate relation to such account) provided
that the account holder shall not be entitled to receive such
interest while an Event of Default is continuing.
11. CANCELLATION AND VOLUNTARY PREPAYMENT
11.1 Voluntary cancellation
(a) The Original Borrower may, if it gives the Agent not less than 10
days' (or such shorter period as the Majority Lenders may agree)
prior notice, cancel the whole or any part (being a minimum amount
of $2,500,000 and if more, integral multiples of $1,000,000) of an
Available Facility without any premium or penalty. Any cancellation
under this Clause 11.1 shall reduce the Commitments of the Lenders
rateably under that Facility.
(b) The Original Borrower may give the Agent not less than 10 days'
prior notice of its intention to procure that the Fronting Bank's
liability under a Bank Guarantee is reduced to zero (whereupon it
shall do so).
11.2 Automatic Cancellation
If the Tender Offer is withdrawn, terminated or lapsed or any
Acquisition Document is terminated or cancelled, then the Available
Facilities and Lenders' Available Commitment under the Facilities will
be automatically cancelled.
11.3 Voluntary prepayment of Facility A Loans
(a) A Borrower to which a Facility A Loan has been made may, if it
gives the Agent not less than 10 days' (or such shorter period as
the Majority Lenders may agree) prior notice, prepay the whole or
any part of any Facility A Loan (but, if in part, being an amount
that reduces the Base Currency Amount of the Facility A Loan by a
minimum amount of $5,000,000 and if more, integral multiples of
$2,500,000).
(b) A Facility A Loan may only be voluntarily prepaid after the last
day of the Availability Period (or, if earlier, the day on which
the applicable Available Facility is zero).
(c) Any prepayment under this Clause 11.3 shall satisfy the obligations
under Clause 8.1 (Repayment of Facility A Loans) on a pro rata
basis.
11.4 Voluntary Prepayment of Facility B Loans
The Borrower to which a Facility B Loan has been made may, if it gives
the Agent not less than 10 days' (or such shorter period as the Majority
Lenders may agree) prior notice, prepay the whole or any part of a
Facility B Loan (but if in part, being an amount that
reduces the Base Currency Amount of the Facility B Loan by a minimum
amount of $5,000,000 and if more integral multiples of $2,500,000).
11.5 Right of repayment and cancellation in relation to a single Lender
(a) If:
(i) any sum payable to any Lender or the Fronting Bank by an
Obligor is required to be increased under paragraph (c) of
Clause 16.2 (Tax gross-up); or
(ii) any Lender or the Fronting Bank claims indemnification from
the Original Borrower under Clause 16.3 (Tax indemnity) or
Clause 17.1 (Increased costs),
the Original Borrower 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 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 or Term, as the case may
be, which ends after the Original Borrower has given notice under
paragraph (a) above (or, if earlier, the date specified by the
Original Borrower in that notice), each Borrower to which a Loan is
outstanding shall repay that Lender's participation in that Loan
and shall procure either that such Lender's Bank Guarantee
Proportion of each relevant Bank Guarantee be reduced to zero (by
reduction of the amount of that Bank Guarantee in an amount equal
to that Lender's Bank Guarantee Proportion) or that Cash Collateral
be provided to the Agent in an amount equal to such Lender's Bank
Guarantee Proportion of that Bank Guarantee; or (if the
circumstance relates to a Fronting Bank) the Original Borrower
shall procure that the Fronting Bank's liability under any Bank
Guarantees issued by it shall either be reduced to zero or
otherwise secured by the Original Borrower providing Cash
Collateral in an amount equal to the Fronting Bank's maximum actual
and contingent liabilities under those Bank Guarantees.
11.6 Restrictions
(a) Any notice of cancellation or prepayment given by any Party under
this Clause 11 (Cancellation and Voluntary Prepayment) 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) No Borrower may reborrow any part of Facility A which is prepaid.
(d) Unless a contrary indication appears in this Agreement, any part of
Facility B which is prepaid may be reborrowed in accordance with
the terms of this Agreement.
(e) The Borrowers shall not repay or prepay all or any part of the
Loans or Bank Guarantees 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 11 (Cancellation
and Voluntary Prepayment) it shall promptly forward a copy of that
notice to either the Original Borrower or the affected Lender, as
appropriate.
SECTION 5
COSTS OF UTILISATION
12. INTEREST
12.1 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.
12.2 Payment of interest
The Borrower to which a Loan has been made shall pay accrued interest
on that 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).
12.3 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 one per cent higher
than the rate which would have been payable if the overdue amount
had, during the period of non-payment, constituted a Loan in the
currency of the overdue amount for successive Interest Periods,
each of a duration selected by the Agent (acting reasonably). Any
interest accruing under this Clause 12.3 shall be immediately
payable by the Obligor on demand by the Agent.
(b) 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.
12.4 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.
13. INTEREST PERIODS AND TERMS
13.1 Selection of Interest Periods and Terms
(a) A Borrower (or the Original Borrower on behalf of a Borrower) may
select an Interest Period for a Loan and a Term for a Bank
Guarantee in the Utilisation Request for that Loan or Bank
Guarantee, as the case may be, (if the Loan has already been
borrowed) in a Selection Notice.
(b) Each Selection Notice for a Facility A Loan is irrevocable and
must be delivered to the Agent by the Borrower (or the Original
Borrower on behalf of a Borrower) to which that Facility A Loan
was made not later than the Specified Time.
(c) If a Borrower (or the Original Borrower) fails to deliver a
Selection Notice to the Agent in accordance with paragraph (b)
above, the relevant Interest Period will, subject to Clause 13.2
(Changes to Interest Periods), be one Month.
(d) Subject to this Clause 13, a Borrower (or the Original Borrower)
may select an Interest Period of one, two, three or six Months or
any other period agreed between the Original Borrower and the
Agent (acting on the instructions of all the Lenders). In
addition a Borrower (or the Original Borrower on its behalf) may
select an Interest Period of (in relation to Facility A) a period
of less than one Month if necessary to ensure that there are
Facility A Loans (with an aggregate Base Currency Amount equal to
or greater than the Repayment Instalment) which have an Interest
Period ending on a Facility A Repayment Date for the Borrowers to
make the Repayment Instalment due on that date.
(e) An Interest Period for a Loan and a Term for a Bank Guarantee
shall not extend beyond the Termination Date applicable to its
Facility.
(f) The Original Borrower may select a Term for a Bank Guarantee (i)
of a period not exceeding twelve months, or (ii) in the case of a
Bank Guarantee or the Kelly Loan Notes in respect of the Loan
Notes or the Kelly Loan Notes, ending on the respective maturity
dates of the Loan Notes and the Kelly Loan Notes.
(g) Each Interest Period for a Facility A Loan and each Term for a
Bank Guarantee shall start on the Utilisation Date or (if already
made) on the last day of its preceding Interest Period.
(h) A Facility B Loan has one Interest Period only at any time.
(i) Prior to the Syndication Date, Interest Periods shall be one
Month or such other period as the Mandated Lead Arranger and the
Original Borrower may agree and, provided that the Mandated Lead
Arranger has given the Original Borrower five days' or more
notice of the Syndication Date, any Interest Period which would
otherwise end during the month preceding or extend beyond the
Syndication Date shall end on the Syndication Date.
13.2 Changes to Interest Periods
(a) Save to the extent remedied by a selection made by the Original
Borrower pursuant to Clause 8.1(b) (Repayment of Facility A
Loans) or Clause 13.1(d) (Selection of Interest Periods and
Terms), prior to determining the interest rate for a Facility A
Loan, the Agent may shorten an Interest Period for any Facility A
Loan to ensure there are sufficient Facility A Loans with an
Interest Period ending on a Facility A Repayment Date for the
Borrowers to make the Repayment Instalment due on that Facility A
Repayment Date.
(b) If the Agent makes any of the changes to an Interest Period
referred to in this Clause 13.2, it shall promptly notify the
Original Borrower and the Lenders.
13.3 Non-Business Days
If an Interest Period or Term would otherwise end on a day which is
not a Business Day, that Interest Period or Term, as the case may be,
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).
13.4 Consolidation and division of Facility A Loans
(a) Subject to paragraph (b) below, if two or more Interest Periods:
(i) relate to Facility A Loans in the same currency; and
(ii) end on the same date; and
(iii) are made to the same Borrower
those Facility A Loans will, unless that Borrower (or the
Original Borrower on its behalf) specifies to the contrary in the
Selection Notice for the next Interest Period, be consolidated
into, and treated as, a single Facility A 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 (or the Original Borrower on
its behalf) requests in a Selection Notice that a Facility A Loan
be divided into two or more Facility A Loans, that Facility A
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 Facility A Loan immediately before its
division.
14. CHANGES TO THE CALCULATION OF INTEREST
14.1 Absence of quotations
Subject to Clause 14.2 (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.
14.2 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 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
(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 of the Reference
Banks supplies a rate to the Agent to determine LIBOR for the
relevant currency and Interest 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.
14.3 Alternative basis of interest or funding
(a) If a Market Disruption Event occurs and the Agent or the Original
Borrower so requires, the Agent and the Original Borrower 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 Original Borrower,
be binding on all Parties.
14.4 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.
15. FEES
15.1 Commitment fee
(a) The Original Borrower shall pay to the Agent (for the account of each
Lender) a fee in the Base Currency computed at the rate of:
(i) 0.50 per cent. per annum on that Lender's Available Commitment
under Facility A for the Availability Period applicable to
Facility A; and
(ii) 45 per cent of the Applicable Margin from day to day under
Facility B for the Availability Period applicable to Facility B
on that Lender's Available Commitment.
(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.
15.2 Arrangement fee
The Original Borrower shall pay to the Mandated Lead Arranger an
arrangement fee in the amount and at the times agreed in a Fee
Letter.
15.3 Agency fee
The Original Borrower shall pay to the Agent (for its own account) an
agency fee in the amount and at the times agreed in a Fee Letter.
15.4 Bank Guarantee commission
(a) The Original Borrower shall, in respect of each Bank Guarantee,
pay to the Agent (for the account of each Lender) (for
distribution in proportion to each Lender's Bank Guarantee
Proportion of that Bank Guarantee) a Bank Guarantee commission
in the Base Currency at the Bank Guarantee Commission Rate on
the maximum actual and contingent liabilities of the Fronting
Bank under the relevant Bank Guarantee.
(b) The Bank Guarantee commission shall be paid in arrear in
respect of each successive period of three Months (or such
shorter period as shall end on the relevant Expiry Date) which
begins during the Term of the relevant Bank Guarantee.
15.5 Fronting Bank fee
The Original Borrower shall, in respect of each Bank Guarantee, pay
to the Fronting Bank a fee in the amounts and at the times agreed
between the Fronting Bank and the Original Borrower.
SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
16. TAX GROSS UP AND INDEMNITIES
16.1 Definitions
(a) In this Clause 16:
"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) in respect of a payment made by an Obligor incorporated in the
United Kingdom, a Lender which is:
(i) within the charge to the 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) a Treaty Lender with respect to the United Kingdom.
"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 16.2 (Tax gross-up) or a payment under
Clause 16.3 (Tax indemnity).
"Treaty Lender" means, in respect of a jurisdiction, a Lender entitled
under the provisions of a double taxation treaty to receive payments
of interest from a person resident in such jurisdictions without a Tax
Deduction (subject to the completion of any necessary procedural
formalities).
(b) In this Clause 16 a reference to "determines" or "determined" means a
determination made in the absolute discretion of the person making the
determination.
16.2 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 Original Borrower or a Treaty 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 Treaty Lender it shall notify the Original
Borrower 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 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, the Security Trustee, the Fronting Bank or
the Mandated Lead 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 that the Tax Deduction is required to be made
as a result of the failure of such Treaty Lender to comply
with paragraph (g) below.
(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.
16.3 Tax indemnity
(a) The Original Borrower 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 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, or
(ii) 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;
(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 Original Borrower.
(d) A Protected Party shall, on receiving a payment from an Obligor
under this Clause 16.3, notify the Agent.
16.4 Tax Credit
If an Obligor makes a Tax Payment and the relevant Finance Party
determines that:
(a) a Tax Credit is attributable to that Tax Payment; and
(b) 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.
16.5 Stamp taxes
The Original Borrower shall pay and, within three Business Days of
demand, indemnify each Finance Party against any cost, loss or liability
that Finance Party incurs in relation to all stamp duty, registration and
other similar Taxes payable in respect of any Finance Document.
16.6 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.
17. INCREASED COSTS
17.1 Increased costs
(a) Subject to Clause 17.3 (Exceptions) the Original Borrower 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 or Bank Guarantee.
17.2 Increased cost claims
(a) A Finance Party intending to make a claim pursuant to Clause 17.1
(Increased costs) shall notify the Agent of the event giving rise to the
claim, following which the Agent shall promptly notify the Original
Borrower.
(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.
17.3 Exceptions
(a) Clause 17.1 (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 16.3 (Tax indemnity) (or would have
been compensated for under Clause 16.3 (Tax indemnity) but
was not so compensated solely because one of the exclusions
in paragraph (b) of Clause 16.3 (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 17.3, a reference to a "Tax Deduction" has the same
meaning given to the term in Clause 16.1 (Definitions).
18. OTHER INDEMNITIES
18.1 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.
18.2 Acquisition Indemnity
The Original Borrower shall indemnify each Finance Party (each an
"Indemnified Party") from time to time within 5 Business Days of demand of
the Indemnified Party, against any cost, claim, loss, expense (including
reasonable legal fees) or liability together with VAT thereon, whether or
not reasonably foreseeable, which the relevant Indemnified Party has
sustained or incurred (except to the extent that the same result from the
negligence or wilful misconduct of that Indemnified Party) arising out of
a claim or action of any person relating to the Tender Offer (whether or
not made) or the Merger or any acquisition by the Original Borrower or any
person acting in concert with the Original Borrower of any shares of
Target or any use of the proceeds of any Loan.
18.3 Other indemnities
The Original Borrower shall (or shall procure that an Obligor will),
within three Business Days of demand, indemnify each Lender and the
Fronting Bank against any cost, loss or liability incurred by that Lender
or the Fronting Bank 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 32 (Sharing among the
Lenders);
(c) funding, or making arrangements to fund, its participation in a Loan
requested by a 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);
(d) issuing or making arrangements to issue a Bank Guarantee requested by
the Original Borrower in a Utilisation Request but not issued by
reason of the operation of any one or more of the provisions of this
Agreement; or
(e) a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment given by a Borrower or the Original Borrower.
18.4 Indemnity to the Agent
The Original Borrower shall within three Business Days of demand 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 7 (Optional Currencies); or
(c) acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised.
19. MITIGATION BY THE LENDERS
19.1 Mitigation
(a) Each Finance Party shall, in consultation with the Original
Borrower, take all reasonable steps to mitigate any circumstances
which arise and which would result in any amount becoming payable
under, or cancelled pursuant to, any of Clause 10.6 (Illegality),
Clause 16 (Tax gross-up and indemnities) or Clause 17 (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.
19.2 Limitation of liability
(a) The Original Borrower 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 19.1 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause
19.1 (Mitigation) if, in the opinion of that Finance Party
(acting reasonably), to do so might be prejudicial to it.
20. COSTS AND EXPENSES
20.1 Transaction expenses
The Original Borrower shall promptly on demand, and at the latest 30
days from the presentation of an invoice by the Agent, pay the Agent
and the Mandated Lead 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.
The obligations of the Original Borrower under this Clause 20.1 shall
survive the failure of the purpose of this Agreement as set out in
Clause 3 (Purpose).
20.2 Amendment costs
If (a) an Obligor requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 33.9 (Change of currency),
the Original Borrower 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.
20.3 Enforcement costs
The Original Borrower 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.
SECTION 7
GUARANTEE
21. GUARANTEE AND INDEMNITY
21.1 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 to the extent permitted by law each Finance Party
immediately on 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.
21.2 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.
21.3 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.
21.4 Waiver of defences
The obligations of each Guarantor under this Clause 21 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 21 (without limitation and whether or not known to it or any
Finance Party) including to the extent permitted by law:
(a) any time, waiver or consent granted to, or composition with, any
Obligor or other person;
(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.
21.5 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 21. This waiver applies
irrespective of any law or any provision of a Finance Document to the
contrary.
21.6 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 21.
21.7 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 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.
21.8 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.
21.9 Limitation on U.S. Guarantors
Any term or provision of this Clause 21 or any other term in this
Agreement or any Finance Document notwithstanding, the maximum aggregate
amount of the obligations for which any U.S. Guarantor shall be liable
shall not exceed the maximum amount for which such U.S. Guarantor can be
liable without rendering this Agreement or any other Finance Document, as
it relates to the U.S. Guarantor, subject to avoidance under applicable
law relating to fraudulent conveyance or fraudulent transfer (including
section 548 of the Bankruptcy Code of the United States or any applicable
provisions of comparable state law) (collectively "Fraudulent Transfer
Laws", in each case after giving effect (a) to all other liabilities of
the U.S. Guarantor, contingent or otherwise, that are relevant under such
Fraudulent Transfer Laws (specifically excluding, however, any liabilities
of the Guarantor in respect of intercompany indebtedness to any Borrower
to the extent that such indebtedness would be discharged in an amount
equal to the amount paid by the U.S. Guarantor hereunder) and (b) to the
value as assets of the U.S. Guarantor (as determined under the applicable
provisions of such Fraudulent Transfer Laws) of any rights to subrogation,
contribution, reimbursement, indemnity or similar rights held by such U.S.
Guarantor pursuant to (i) applicable law or (ii) any other agreement
providing for an equitable allocation among the U.S. Guarantor and other
Subsidiaries or affiliates of any Borrower of obligations arising under
this Agreement or any guarantees of the obligations by such parties.
SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
22. REPRESENTATIONS
Each Obligor makes the representations and warranties set out in this
Clause 22 to each Finance Party on the date of this Agreement and on the
Syndication Date provided that the representations in Clause 22.21 (Group
Structure Chart) shall at the Syndication Date be deemed to reflect all
transactions contemplated by the Tax Structure Paper.
22.1 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.
22.2 Binding obligations
The obligations expressed to be assumed by it in each Finance Document
are, subject to any Reservations, legal, valid, binding and enforceable
obligations.
22.3 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 agreement or instrument binding upon it or any member of the
Group or any of its or any member of the Group's assets in such
manner or to such an extent which would reasonably be expected to
have a Material Adverse Effect.
22.4 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.
22.5 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
(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.
22.6 Governing law and enforcement
(a) The choice of English law as the governing law of the Finance
Documents will be recognised and enforced in its jurisdiction of
incorporation.
(b) Any judgment obtained in England in relation to a Finance Document
will be recognised and enforced in its jurisdiction of
incorporation.
22.7 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.
22.8 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 save for any filing or
recording under section 395 of the Companies Act 1985 in connection with
any Security Document and which will be effected promptly after the date
of their execution.
22.9 No default
(a) No Event of Default is continuing or would result from the making of
any Utilisation.
(b) No other event or circumstance is outstanding which constitutes a
default under any other 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 reasonably be expected to have a
Material Adverse Effect.
22.10 No misleading information
(a) Any factual information provided in writing by an Obligor for the
purposes of the Information Memorandum is true and accurate in all
material respects as at the date it is provided or as at the date
(if any) at which it is stated.
(b) The financial projections contained in the Information Memorandum
(at the time provided) have been prepared on the basis of recent
historical information and on the basis of assumptions believed by
the Original Borrower to be reasonable.
(c) Nothing is (at the date of the Information Memorandum) 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.
(d) All written information (other than the Information Memorandum)
supplied by the Original Borrower to the Agent or the Mandated Lead
Arranger is true, complete and accurate in all material respects as
at the date it was given and is not misleading in any material
respect.
22.11 Financial statements
(a) Its Original Financial Statements were prepared in accordance
with GAAP consistently applied.
(b) Its Original Financial Statements fairly represent its
financial condition and operations (consolidated in the case of
the Original Borrower) during 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 Original Borrower)
since 31 December 2000.
22.12 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.
22.13 No proceedings pending or threatened
22.13.1 Subject to sub-clause 22.13.2 no litigation, arbitration or
administrative proceedings of or before any court, arbitral
body or agency which, if adversely determined, would
reasonably be expected to have a Material Adverse Effect
have (to the best of its knowledge and belief) been started
or threatened in writing against it or any of its
Subsidiaries.
22.13.2 The representation in sub-clause 22.13.1 shall not apply to
any litigation, arbitration or administrative proceedings
of or before any court, arbitrary body or agency, provided
that, external counsel to the relevant member of the Group,
has advised such member that such litigation, arbitration,
or administrative proceedings is unlikely to succeed.
22.14 Environmental compliance
Each member of the Group has performed and observed in all material
respects all Environmental Law, Environmental Permits and all other
material covenants, conditions, restrictions or agreements directly
or indirectly concerned with any contamination, pollution or waste or
the release or discharge of any toxic or hazardous substance in
connection with any real property which is or was at any time owned,
leased or occupied by any member of the Group or on which any member
of the Group has conducted any activity where failure to do so would
reasonably be expected to have a Material Adverse Effect.
22.15 Environmental Claims
No Environmental Claim has been commenced or (to the best of its
knowledge and belief) is threatened against any member of the Group
where that claim would be reasonably expected, if determined against
that member of the Group, to have a Material Adverse Effect.
22.16 Taxation
(a) It has duly and punctually paid and discharged all Taxes imposed
upon it or its assets within the time period allowed without
incurring penalties (save to the extent that (i) payment is being
contested in good faith, (ii) it has maintained adequate
reserves for those Taxes and (iii) payment can be lawfully withheld)
where such failure to pay or discharge or in incurring penalties
would reasonably be expected to have a Material Adverse Effect.
(b) It is not materially overdue in the filing of any Tax returns where
such overdue in filing would reasonably be expected to have a
Material Adverse Effect.
(c) No claims are being or are reasonably likely to be asserted against
it with respect to Taxes which would reasonably be expected to have
a Material Adverse Effect.
22.17 Agreed Financial Projections
All forecasts, assumptions and projections contained in the Agreed
Financial Projections, as provided to the Lenders, were made in good
faith and after due enquiry and based on opinions and assumptions
believed by the Original Borrower to be reasonable at the time supplied
to the Lenders.
22.18 ERISA and Multiemployer Plans
(a) Neither any U.S. Group Company nor any ERISA Affiliate is making or
accruing an obligation to make contributions or has within any of
the five calendar years immediately preceding the date of this
Agreement made or accrued an obligation to make contributions to any
Multiemployer Plan to an extent or in a manner which would
reasonably be expected to have a Material Adverse Effect.
(b) Each Employee Plan is in compliance in form and operation with ERISA
and the Code and all other applicable laws and regulations save
where any failure to comply would not reasonably be expected to have
a Material Adverse Effect.
(c) Each Employee Plan which is intended to be qualified under Section
401(a) of the Code has been determined by the IRS to be so qualified
or is in the process of being submitted to the IRS for approval or
will be so submitted during the applicable remedial amendment
period, and, to the knowledge of the Company, nothing has occurred
since the date of such determination that would adversely affect
such determination (or, in the case of an Employee Plan with no
determination, nothing has occurred that would materially adversely
affect such qualification).
(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 all
accumulated benefit obligations under each such Employee Plan (based
on the assumptions used for the purposes of Statement of Financial
Accounting Standards No. 87) as of the date of the most recent
financial statement reflecting such amounts or, if additional
contributions are required to make the Employee Plan sufficient, the
Company does not believe that such would reasonably be expected to
have a Material Adverse Effect.
(e) There are no actions, suits or claims pending against an Employee
Plan (other than routine claims for benefits) or, to the knowledge
of the Company, any U.S. Group Company or any ERISA Affiliate
threatened, which would reasonably be expected to be asserted
successfully against any Employee Plan and, if so asserted
successfully, would reasonably be expected either singly or in the
aggregate to have a Material Adverse Effect.
(f) Each U.S. Group Company and any ERISA Affiliate has made all
material contributions to or under each such Employee Plan required
by law within the applicable time limits prescribed thereby, the
terms of such Employee Plan, or any contract or agreement requiring
contributions to an Employee Plan save where any failure to comply
would not reasonably be expected to have a Material Adverse Effect.
(g) Neither any U.S. Group Company nor any ERISA Affiliate has ceased
operations at a facility so as to become subject to the provisions
of Section 4068(a) 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) Neither any U.S. Group Company nor any ERISA Affiliate has incurred
or reasonably expects to incur any liability to PBGC save for any
liability which would not reasonably be expected to have a Material
Adverse Effect.
(i) No Employee Plan has incurred any "accumulated funding deficiency"
(as defined in Section 412 of the Code).
(j) No notice of intent to terminate an Employee Plan has been filed,
nor has any Employee Plan been terminated pursuant to the provisions
of Section 4041(c) of ERISA.
(k) No "Reportable Event", as such term is defined in Section 4043 of
ERISA, with respect to which requirement of notice has not been
waived by the PBGC, has occurred or is continuing with respect to
any Employee Plan.
22.19 Margin Stock
Neither making any Loan or Bank Guarantee hereunder nor use of the
proceeds thereof nor the other transactions contemplated hereby or by the
other Finance Documents will violate the provisions of Regulation T, U or
X of the Board of Governors of the Federal Reserve System of the United
States.
22.20 Investment Companies
No U.S. Group Company is (1) a "holding company" or a "subsidiary
company" of a "holding company" within the meaning of the Public Utility
Holding Company Act of 1935, as amended (2) an "investment company" or a
company "controlled" by a person required to be registered as an
"investment company", within the meaning of the Investment Company Act of
1940, as amended or (3) subject to regulation under any United States
federal or state statute or Regulation (other than Regulation X) limiting
its ability to incur indebtedness.
22.21 Group Structure Chart
The Group Structure Chart is accurate, up to date and complete in all
material respects.
22.22 Repetition
The Repeating Representations are deemed to be made by each Obligor (by
reference to the facts and circumstances then existing) on the date of
each Utilisation Request and the first day of each Interest Period or
Terms, as the case may be.
PROVIDED THAT, in respect to a Facility A Loan made or to be made during
the Certain Funds Period, only the Certain Funds Repeated Representations
will be deemed to be repeated by the relevant Obligor on the date such
Facility A Loan or a Bank Guarantee in respect of the Loan Notes or a
Facility B Loan to be used to cash collateralise the guarantee in respect
of the Loan Notes is made or to be made, and, on the first day of each
Interest Period or Term relating thereto.
23. INFORMATION 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 Financial statements
The Original Borrower 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 120
days after the end of each of its financial years:
(i) its audited consolidated financial statements for that
financial year; and
(ii) where required by law or regulation in the jurisdiction of
incorporation of the relevant Obligor, the audited financial
statements of each Obligor for that financial year; and
(b) as soon as the same become available, but in any event within 90
days after the end of each half of each of its financial years its
consolidated financial statements for that financial half year;
(l) as soon as they become available but in any event within 60 days
after the end of each quarter, quarterly management accounts for the
Group.
23.2 Compliance Certificate
(a) The Original Borrower shall supply to the Agent, with each set
of financial statements delivered pursuant to paragraph (a)(i)
or (b) of Clause 23.1 (Financial statements), a Compliance
Certificate setting out (in reasonable detail) computations as
to compliance with Clause 24 (Financial covenants) as at the
date as at which those financial statements were drawn up.
(b) Each Compliance Certificate shall be signed by two directors of
the Original Borrower.
23.3 Requirements as to financial statements
(a) Each set of financial statements delivered by the Original Borrower
pursuant to Clause 23.1 (Financial statements) shall be certified
by a director of the relevant Original Borrower as fairly
representing its financial condition as at the date as at which
those financial statements were drawn up.
(b) The Original Borrower shall procure that each set of financial
statements of an Obligor delivered pursuant to Clause 23.1
(Financial statements) is prepared using GAAP, and accounting
practices and financial reference periods consistent with those
applied in the preparation of the Original Financial Statements for
that Obligor unless, in relation to any set of financial
statements, it notifies the Agent that there has been a change in
GAAP, or the accounting practices or reference periods and its
auditors (or, if appropriate, the auditors of the Obligor) deliver
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 that Obligor's Original
Financial Statements were prepared; and
(ii) sufficient information, in form and substance as may be
reasonably required by the Agent, to enable the Lenders to
determine whether Clause 24 (Financial covenants) has been
complied with and make an accurate comparison between the
financial position indicated in those financial statements
and that Obligor's 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.
23.4 Information: miscellaneous
The Original Borrower shall supply to the Agent (in sufficient copies for
all the Lenders, if the Agent so requests):
(a) (at the same time as they are dispatched or filed) all documents
dispatched to (or filed with) its shareholders (or any class of
them), the Securities and Exchange Commission under the Securities
Act of 1933 or the Securities Exchange Act of 1934, or its creditors
generally by the Original Borrower;
(b) promptly upon becoming aware of them, the details of any litigation,
arbitration or administrative proceedings which are current,
threatened in writing or pending against any member of the Group, and
which would reasonably be expected, if adversely determined, to 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.
23.5 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 Original Borrower 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).
23.6 ERISA-Related Information
The Original Borrower shall supply to the Agent (in sufficient copies
for all the Lenders, if the Agent so requests):
(a) promptly and in any event within thirty days after any U.S. Group
Company and each ERISA Affiliate (each a "Relevant Company")
knows or has reason to know that any ERISA Event which would
reasonably be expected to have a Material Adverse Effect has
occurred, deliver to the Agent a written statement of the Chief
Financial Officer of such Relevant Company describing such ERISA
Event and the action, if any, which it proposes to take with
respect thereto and a copy of any notice filed with the PBGC or
the IRS pertaining thereto;
(b) promptly and in any event within ten days after any Relevant
Company knows or has reason to know that a request for a minimum
funding waiver under Section 412 of the Code has been filed with
respect to any Title IV Plan or Multiemployer Plan, deliver to
the Agent a written statement of the Chief Financial Officer of
such Relevant Company describing such waiver request and the
action, if any, which it proposes to take with respect thereto
and a copy of any notice filed with the PBGC or the IRS
pertaining thereto; and
(c) simultaneously with the date that any Relevant Company files a
notice of intent to terminate any Title IV Plan, if such
termination would require material additional contributions in
order to be considered a standard termination within the meaning
of Section 4041(b) of ERISA, a copy of each notice.
24. FINANCIAL COVENANTS
24.1 Financial definitions
In this Clause 24.1:
"Consolidated EBITA" means, for any Relevant Period, Consolidated
Profits Before Interest and Tax before any amount attributable to the
amortisation of intangible assets.
"Consolidated EBITDA" means, for any Relevant Period, Consolidated
Profits Before Interest and Tax before any amount attributable to the
amortisation of intangible assets and depreciation of tangible assets.
"Consolidated Net Borrowings" means at any time the aggregate amount
of all obligations of the Group for or in respect of Indebtedness for
Borrowed Money but excluding any such
obligation to any other member of the Group, adjusted to take account
of the aggregate amount of freely available cash and Cash Equivalents
(for the avoidance of doubt freely available cash and Cash Equivalent
Investment, shall exclude any sum held by a member of the Group for
the benefit of client accounts) held by any member of the Group (and
so that no amount shall be included or excluded more than once).
"Consolidated Net Finance Charges" means, in respect of any Relevant
Period, the aggregate amount of the interest (including the interest
element of leasing and hire purchase payments and capitalised
interest), commission, fees, discounts and other finance payments
payable by any member of the Group (including any commission, fees,
discounts and other finance payments payable by any member of the
Group under any interest rate hedging arrangement but deducting any
commission, fees, discounts and other finance payments receivable by
any member of the Group under any interest rate hedging instrument)
less any other interest receivable by any member of the Group on any
deposit or bank account.
"Consolidated Profits Before Interest and Tax" means, in respect of
any Relevant Period, the total operating profit of the Group for
continuing operations, acquisitions (as a component of continuing
operations) and discontinued operations as set out in FRS 3 (but
ignoring any exceptional items).
"Consolidated Net Worth" means at any time the aggregate of the
amounts paid up or credited as paid up on the issued share capital of
the Original Borrower (other than any redeemable shares) as at the
date of the completion of the Merger in accordance with the Merger
Agreement and the aggregate amount of the reserves of the Group
(except as mentioned in (c) below, as at the date of the completion of
the Merger in accordance with the Merger Agreement) including:
(a) any amount credited to the share premium account;
(b) any capital redemption reserve fund; and
(c) any balance standing to the credit of the consolidated profit
and loss account of the Group,
but deducting:
(i) any debit balance on the consolidated profit and loss account of
the Group;
(ii) (to the extent included) any amount set aside for taxation,
deferred taxation or bad debts;
(iii) any share issues to employees for long term retention;
(iv) (to the extent included) any increase after 31 December 2000 in
the amount shown in respect of goodwill (including goodwill
arising only on consolidation) and interests of non-Group members
in Group Subsidiaries;
(v) (to the extent included) any amounts arising from an upward
revaluation of assets made at any time after 31 December 2000;
and
(vi) any dividend or distribution declared, recommended or made by the
Original Borrower to the extent payable to a person who is not a
member of the Group and such distribution is not provided for in
the most recent financial statements,
and so that no amount shall be included or excluded more than once.
"Debt Cover" means in relation to any Relevant Period, the ratio of
Consolidated Net Borrowings on the last day of such Relevant Period to
Consolidated EBITDA for such Relevant Period (and where a Subsidiary has
been acquired during a Relevant Period the Consolidated EBITDA shall be
calculated for these purposes by reference to the earnings before
interest, tax depreciation and amortisation of that Subsidiary for that
Relevant Period).
"Interest Cover" means, in relation to any Relevant Period, the ratio of
Consolidated EBITA to Consolidated Net Finance Charges.
"Relevant Period" means each period of twelve months ending on the last
day of the Original Borrower's financial year and each period of twelve
months ending on the last day of the first half of the Original
Borrower's financial year (and the first Relevant Period shall be the
period ending on 31 December 2001).
24.2 Financial condition
The Original Borrower shall ensure
that:
(a) Interest Cover: Interest Cover for each Relevant Period up to (and
including) the Relevant Period ending on 31 December 2002 shall not
be less than 3.0:1 and for each Relevant Period thereafter shall not
be less than 4.0:1.
(b) Debt Cover: Debt Cover for each Relevant Period up to (and
including) the Relevant Period ending on 30 June 2002 shall not
exceed 3.25:1 and from then for each Relevant Period up to (and
including) the Relevant Period ending on 30 June 2003 shall not
exceed 2.5:1 and thereafter shall not exceed 2.0:1.
(c) Consolidated Net Worth: Consolidated Net Worth shall not at the
times specified in column 1 below be less than the amount specified
in column 2 below opposite such period:
Column 1 Column 2
Period Amount
as at the date of completion of the Merger (Pounds)80,000,000
at 31 December 2001 (Pounds)81,000,000
at 31 December 2002 (Pounds)90,000,000
at 31 December 2003 (Pounds)110,000,000
Column 1 Column 2
Period Amount
at 31 December 2004 (Pounds)135,000,000
at 31 December 2005 (Pounds)160,000,000
24.3 Auditor's Verification
(a) The Agent may, if it has reasonable grounds for believing that the
figures prepared by the Original Borrower (but for the avoidance of
doubt excluding the annual statements delivered pursuant to Clause
23.1 (Financial Statements) are incorrect, inaccurate or incomplete
at the Original Borrower's expense require the auditors of the Group
to verify the figures supplied by the Original Borrower in
connection with:
(i) the financial conditions set out in Clause 24.2 (Financial
Condition);or
(ii) the financial conditions to be satisfied in order to permit a
reduction in margin in accordance with the definition of
Margin.
(b) The Agent may, if it has reasonable grounds for believing that any
figure or calculation made in a Compliance Certificate is incorrect,
inaccurate or incomplete, in accordance with this Clause 24.3,
request verification of any figure or calculation made in a
Compliance Certificate delivered under Clause 23.4 (Information:
Miscellaneous) and/or any figure contained in the financial
statements delivered under Clause 23.1 (Financial Statements) which
is relevant to the calculation of the financial conditions referred
to above.
24.4 Financial testing
The financial covenants set out in Clause 24.2 (Financial condition)
shall be tested by reference to each of the financial statements and/or
each Compliance Certificate delivered pursuant to Clause 23.2 (Compliance
Certificate).
25. GENERAL UNDERTAKINGS
The undertakings in this Clause 25 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. For the avoidance of doubt and
for the purposes of this Clause 25 (other than Clause 25.16), references
to "Obligor" and "member of the Group" shall exclude any company
incorporated for the purpose of arranging finance to customers wishing to
obtain insurance from a panel of insurers put together by that company.
25.1 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.
25.2 Compliance with laws
Each Obligor shall comply in all respects with all laws permits and
licences to which it may be subject, if failure so to comply would
reasonably be expected to have a Material Adverse Effect.
25.3 Negative pledge
(a) No Obligor shall (and the Original Borrower shall ensure that no
other member of the Group will) create or permit to subsist any
Security over any of its assets.
(b) No Obligor shall (and the Original Borrower shall ensure that no
other member of the Group will):
(i) sell, transfer or otherwise dispose of any of its assets on
terms whereby they are or may be leased to or re-acquired by an
Obligor or any other member of the Group;
(ii) sell, transfer or otherwise dispose of any of its receivables
on recourse terms;
(iii) enter into any arrangement under which money or the benefit of
a bank or other account may be applied, set-off or made subject
to a combination of accounts; or
(iv) enter into any other preferential arrangement having a similar
effect,
in circumstances where the arrangement or transaction is entered into
primarily as a method of raising Financial Indebtedness or of financing
the acquisition of an asset.
(c) Paragraphs (a) and (b) above do not apply to:
(i) any Security created and entered into pursuant to the Security
Documents listed in Schedule 13 (Security Documents) to this
Agreement;
(ii) any cash collateralisation with respect to the Loan Notes;
(iii) any Security listed in Schedule 9 (Existing Security) provided that
such Security is fully discharged on or prior to the first
Utilisation;
(iv) any netting, Security or set-off arrangement entered into by any
member of the Group in the ordinary course of its banking
arrangements for the purpose of netting debit and credit balances;
(v) any netting or set-off arrangement contained within any derivative
contract entered into in the ordinary course of business;
(vi) any retention of title provisions contained in the terms of
business of any supplier and entered into in the ordinary course of
business;
(vii) any lien arising by operation of law and in the ordinary course of
business;
(viii) a mortgage created by MSTC Blanch in favour of Bank BICE and dated
2 August 2000 over the property at Isidora Goyenechea 3, 120, Las
Condex, Santiago, Chile;
(ix) a deed of charge created by Benfield Greig Group plc in favour of
Barclays Bank PLC and dated 19 February 2001 over credit balance
and in respect of a share option loan facility;
(x) a rental deposit between Benfield Greig Limited and Banca CRT for
Lira 62,400,000 for a rental guarantee provided by it in respect of
Benfield Greig Limited's office in Rome;
(xi) any contractual set-off arrangement not constituting a mortgage,
charge, security assignment or other security interest and entered
into in the ordinary course of business in respect of Financial
Indebtedness incurred in accordance with the terms of this
Agreement on arm's length terms;
(xii) any Security over or affecting (or transaction ("Quasi-Security")
described in paragraph (b) above affecting) any asset acquired by a
member of the Group after the date of this Agreement if:
(A) the Security or Quasi-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 or Quasi-Security is removed or discharged within
six months of the date of acquisition of such asset;
(xiii) any Security or Quasi-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 or Quasi-Security is created prior to
the date on which that company becomes a member of the Group, if:
(A) the Security or Quasi-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 or Quasi-Security is removed or discharged within
six months of that company becoming a member of the Group; or
(xiv) any Security or Quasi-Security securing indebtedness the
principal amount of which (when aggregated with the principal
amount of any other indebtedness which has the benefit of
Security or Quasi-Security other than any permitted under
paragraphs (i) to (vi) above) does not exceed
(Pounds)3,000,000 (or its equivalent in another currency or
currencies).
25.4 Disposals
No Obligor shall (and the Original Borrower shall ensure that no other
member of the Group will), to make any disposal, other than those
Permitted Disposals, whether by way of a single transaction or a series of
transactions (whether related or not) and whether voluntary or
involuntary.
25.5 Merger
No Obligor shall (and the Original Borrower shall ensure that no other
member of the Group will) enter into any amalgamation, demerger, merger or
corporate reconstruction (other than the Merger and the corporate re-
organisation described in the Tax Structure Paper).
25.6 Change of business
The Original Borrower shall procure that no substantial change is made to
the general nature of the business of the Original Borrower or the Group
from that carried on at the date of this Agreement.
25.7 Insurance
Each Obligor shall (and the Original Borrower shall ensure that each
member of the Group will) maintain insurances on and in relation to its
business and assets with reputable underwriters or insurance companies
against those risks and to the extent as is usual for companies carrying
on the same or substantially similar business provided that such
insurances are available to such member of the Group on normal commercial
terms.
25.8 Environmental Compliance
Each Obligor shall (and the Original Borrower shall ensure that each
member of the Group will) comply in all material respects with all
Environmental Law and obtain and maintain any Environmental Permits and
take all reasonable steps in anticipation of known or expected future
changes to or obligations under the same where failure to do so would
reasonably be expected to have a Material Adverse Effect.
25.9 Environmental Claims
The Original Borrower shall inform the Agent in writing as soon as
reasonably practicable upon becoming aware of the same:
(a) if any Environmental Claim has been commenced or (to the best of the
Borrower's knowledge and belief) is threatened against any member of
the Group, or
(b) of any facts or circumstances which will or are reasonably likely to
result in any Environmental Claim being commenced or threatened
against any member of the Group,
where the claim would be reasonably be expected, if determined against
that member of the Group, to have a Material Adverse Effect.
25.10 Taxation
Each Obligor shall (and the Original Borrower shall ensure that each
member of the Group will) duly and punctually pay and discharge all Taxes
imposed upon it or its assets, which if not paid or discharged would
reasonably be expected to have a Material Adverse Effect, within the time
period allowed without incurring penalties (save to the extent that (i)
payment is being contested in good faith, (ii) adequate reserves are
being maintained for those Taxes and (iii) where such payment can be
lawfully withheld).
25.11 Acquisitions
No Obligor shall (and the Original Borrower shall ensure that no other
member of the Group will) acquire (other than the acquisition of the
Target as contemplated by the Acquisition Documents, any other
transaction described in the Tax Structure Paper and other proposed
acquisitions specified in a letter of even date from the Original
Borrower to the Agent), in any financial year of the Group any company,
business, assets (other than an acquisition of assets in the ordinary
course of risk management business and except for intra-Group
acquisitions) if the amount of the acquisition cost, is in excess of
(Pounds)10,000,000 (or its equivalent) or if the amount of the
acquisition cost when aggregated with the aggregate acquisition cost of
any other companies, business, assets or undertaking acquired by members
of the Group during that financial year exceeds (Pounds)25,000,000 (or
its equivalent).
25.12 Claims Pari Passu
Each Obligor shall ensure that at all times the claims of the Finance
Parties against it under the Finance Documents rank at least pari passu
with the claims of all its other unsecured and unsubordinated creditors
save those whose claims are preferred by law applying to companies
generally.
25.13 Loans and Guarantees
No Obligor shall (and the Original Borrower shall ensure that no member
of the Group will) make any loans, grant any credit (save in the ordinary
course of business) or give any guarantee or indemnity (except as
required under any of the Finance Documents) to or for the benefit of any
person or otherwise voluntarily assume any liability, whether actual or
contingent, in respect of any obligation of any person, except for:
(a) a guarantee or indemnities in respect of all Financial
Indebtedness incurred in accordance with this Agreement by any
member of the Group on arm's length terms;
(b) a guarantee dated November 1999 and not exceeding
(Pounds)6,000 by E.W. Blanch Limited in respect of obligations
of Nigel Penton in connection with the acquisition of Crawley
Warren Group Limited;
(c) indemnities dated 30 June 1998 from Blanch Aircraft Holdings
Corporation under an aircraft lease agreement in respect of
obligations thereunder prior to its termination on 29 November
2000;
(d) indemnities dated 20 March 2000 provided by the Original
Borrower to Messrs Karon and Fox for legal fees in respect of
litigation with their former employer;
(e) an indemnity dated 16 November 2000 provided by Benfield Greig
Holdings Inc. to Appleby, Spurling & Kempe in relation to the
liquidation of Ashwood Reinsurance Limited;
(f) an indemnity dated 20 July 1999 provided by Wildnet New Media
Group Limited to Peter Myrtle for U.S.$100,000 in respect of a
guarantee given by Peter Myrtle to Bank One, Louisiana;
(g) loans and credit made or granted to other members of the
Group;
(h) loans and credit made or granted to employees provided that
the aggregate amount of such loans and credit at any time does
not exceed (Pounds)10,000,000 (or its equivalent);
(i) transactions described in the Tax Structure Paper;
(j) indemnities given to persons acquiring assets, businesses or
shares the relevant sale and purchase agreements on arm's
length terms; and
(k) loans and credit made or granted to any joint ventures in
which a member of the Group has an interest provided that the
aggregate of such loans and credit at any time does not exceed
(Pounds)20,000,000 (or its equivalent).
25.14 Dividends
If an Event of Default has occurred and is continuing, no Obligor shall
(and the Original Borrower shall ensure that no member of the Group
shall) pay, make or declare any dividend or other distribution (other
than to another member of the Group).
25.15 Syndication
The Original Borrower shall provide reasonable assistance to the
Mandated Lead Arranger in the preparation of the Information Memorandum
and the primary syndication of the Facility (including, without
limitation, by making senior management available for the purpose of
making presentations to, or meeting, potential lending institutions) and
will comply with all reasonable requests for information from potential
syndicate members prior to completion of syndication.
25.16 Subsidiaries
(a) The Original Borrower shall ensure that, at all times, the
aggregate (a) total revenue and/or (b) Consolidated Profits Before
Interest and Tax of the Guarantors (in each case calculated on an
unconsolidated basis and excluding all intra-Group items and
investments in subsidiaries of any member of the Group) exceeds 85
per cent. of the (a) Consolidated Profits Before Interest and Tax,
and/or (b) total consolidated revenue of the Group as evidenced by
reference to the Guarantors' most recent financial statements. For
the avoidance of doubt, until the Clean Up Date, the Consolidated
Profits Before Interest and Tax and the total consolidated revenue
of
the Group shall exclude the Consolidated Profits Before Interest
and Tax and the total consolidated revenue of the Target Group;
(b) The Original Borrower shall ensure that any current or future
wholly-owned Subsidiary of the Original Borrower, other than a
member of the Target Group, which is a Material Company is or
shall, within forty five days of becoming a Material Company become
an Additional Guarantor in accordance with Clause 28.4 (Additional
Guarantors) unless legal counsel to the Agent has confirmed that
there is a legal impediment to such Material Company becoming an
Additional Guarantor or that if such Material Company were to
become an Additional Guarantor the directors of the company would
be subject to a material risk of incurring a personal liability;
(c) The Original Borrower shall ensure that the Target and each of its
wholly owned Subsidiaries which is a Material Company as at the
date of the completion of the Merger, as soon as practicable but in
any event on or prior to the Clean-Up Date becomes an Additional
Guarantor in accordance with Clause 28.4 (Additional Guarantors)
unless legal counsel to the Agent has confirmed that there is a
legal impediment to such Material Company becoming an Additional
Guarantor or that if such Material Company were to become an
Additional Guarantor the directors of the company would be subject
to a material risk of incurring a personal liability; and
(d) Any wholly owned Subsidiary of the Target which is not a Material
Company on or before the Clean Up Date, which subsequently becomes
a Material Company shall, within 45 days after becoming a Material
Company becomes an Additional Guarantor in accordance with Clause
28.4 (Additional Guarantors) unless legal counsel to the Agent has
confirmed that there is a legal impediment to such Material Company
becoming an Additional Guarantor or that if such Material Company
were to become an Additional Guarantor the directors of the company
would be subject to a material risk of incurring a personal
liability.
25.17 Federal Reserve Regulations
Each U.S. Borrower will use the Facilities without violating
Regulations X.
25.18 Compliance with ERISA
No Obligor shall:
(a) allow, or permit any of its ERISA Affiliates to allow, (i) any
Employee Plan with respect to which any U.S. Group Company or any
of its ERISA Affiliates may have any liability to terminate, or
withdraw, or permit any of its ERISA Affiliates to withdraw, from
any such Employee Plan, (ii) any ERISA Event to occur with respect
to any of its Employee Plans, (iii) permit any Accumulated Funding
Deficiency (as defined in Section 302 of ERISA and Section 412 of
the Code), whether or not waived to exist involving any of its
Employee Plans, to the extent that any of the events described in
(i), (ii) or (iii), singly or in the aggregate, would reasonably be
expected to result in a Material Adverse Effect; or
(b) otherwise fail, or permit any of its ERISA Affiliates to fail, to
comply in all material respects with ERISA or the related
provisions of the Code, if such non-compliances, singly or in the
aggregate, would reasonably be expected to result in a Material
Adverse Effect.
25.19 Compliance with US Regulations
No Obligor shall (and the Company shall ensure that no other U.S. Group
Company will) become an "investment company," or a company "controlled"
by a U.S. person required to be registered as an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
25.20 Hedging
Each Obligor shall put in place and maintain hedging arrangements
satisfactory to the Agent with a Lender or Lenders in order to fix/cap
its total interest cost in accordance with the hedging letter from the
Agent to the Original Borrower requiring the Original Borrower to have
implemented a hedging policy within 30 days of the signing of this
Agreement.
25.21 Existing Indebtedness
The Original Borrower shall procure that all amounts outstanding under
the HSBC Facility (other than the guarantee of the Loan Notes) and the
Bank of America Facility shall be repaid and reduced to zero and that
all commitments in respect of such existing Financial Indebtedness are
cancelled by using the proceeds of the first Utilisation.
25.22 The Offer
(a) The Original Borrower shall procure that each member of the Group
shall comply with, and shall not breach the terms and conditions of
the Acquisition Documents and that no material amendment, waivers
or changes are made to the Acquisition Document.
(b) Without limiting the generality of the foregoing the Original
Borrower shall procure that no steps are taken as a result of which
the minimum acceptance levels, the offer price, under the Tender
Offer or any other material terms or conditions of the Tender
Officer, are changed in any material respect.
(c) Each Obligor shall, and the Original Borrower shall procure that
each member of the Group shall, in all material respects comply
with all and any applicable laws, regulations and/or codes of good
practice governing the Tender Offer and the Merger.
(d) No Obligor shall, and the Original Borrower shall procure that no
member of the Group shall, issue any press release or other
publicity in relation to the Tender Offer which makes reference to
the Facilities or to some or all of the Banks, the Agent or the
Mandated Lead Arranger unless the publicity is required by
applicable law, regulation or governmental authority or any stock
exchange governing the rules of the Tender Offer (in which case the
Original Borrower shall notify the Agent and the Banks of such
requirement as soon as reasonably practicable upon becoming aware
of it).
(e) The Original Borrower shall keep the Agent informed as to the
status and progress of the Tender Offer and, in particular, will
from time to time and promptly upon request give to the Agent
reasonable details as to the current level of acceptances of the
Tender Offer and such other matters relevant to the Tender Offer as
the Agent may reasonably request.
(f) Each Obligor shall and the Original Borrower shall procure that
each member of the Group takes all steps and implements all
statutory merger procedures under the Delaware General Corporation
Law within 90 Business Days of the Tender Offer being declared
unconditional and to acquire the entire issued share capital of
Target within such 90 Business Days.
25.23 Completion of Merger
If the Original Borrower intends to submit a Utilisation Request to
finance the Merger, the Original Borrower shall on or prior to
submitting such a Utilisation Request provide the Agent with evidence
that the Merger will complete in accordance with the Merger Agreement
with the disbursement of proceeds of such Utilisation to the paying
agent as appointed by the Original Borrower.
26. EVENTS OF DEFAULT
Each of the events or circumstances set out in this Clause 26 is an
Event of Default.
26.1 Non-payment
An Obligor does not pay on the due date any amount payable pursuant to a
Finance Document at the place at and in the currency in which it is
expressed to be payable unless:
(a) its failure to pay is caused by administrative or technical error;
and
(b) payment is made within 3 Business Days of its due date.
26.2 Financial covenants
Any requirement of Clause 24 (Financial covenants) is not satisfied.
26.3 General Undertakings
At any time any requirements of Clauses 25.3 (Negative Pledge); 25.4
(Disposals); 25.5 (Merger); 25.11 (Acquisitions); 25.17 (Federal Reserve
Regulations); 25.18 (Compliance with ERISA); 25.22 (The Offer) are not
satisfied
26.4 Other obligations
(a) An Obligor does not comply with any provision of the Finance
Documents (other than those referred to in Clause 26.1 (Non-
payment); Clause 26.2 (Financial covenants) and 26.3 (General
Undertakings)).
(b) No Event of Default under paragraph (a) above will occur if the
failure to comply is capable of remedy and is remedied within 20
Business Days after the earlier to occur of the Agent giving notice
to the Original Borrower or the Original Borrower becoming aware of
the failure to comply.
26.5 Misrepresentation
Any representation, warranty or statement made or deemed to be made by
an Obligor in the Finance Documents or any other document delivered by
or on behalf of any Obligor under or in connection with any Finance
Document is or proves to have been incorrect or misleading in any
material respect when made or deemed to be made. No Event of Default
under this Clause 26.5 will occur if matters which render such
representation, warranty or statement incorrect or misleading are
capable of remedy and are remedied within 20 Business Days after the
earlier to occur of the Agent giving notice to the Original Borrower or
the Original Borrower becoming aware of the failure to comply.
26.6 Cross default
(a) Any Financial Indebtedness of any member of the Group is not paid
when due nor within any originally applicable grace period.
(b) Any Financial Indebtedness of any member of the Group is declared
to be or otherwise becomes due and payable prior to its specified
maturity as a result of an event of default (however described).
(c) Any commitment for any Financial Indebtedness of any member of the
Group is cancelled or suspended by a creditor of any member of the
Group as a result of an event of default (however described).
(d) Any creditor of any member of the Group becomes entitled to declare
any Financial Indebtedness of any member of the Group due and
payable prior to its specified maturity as a result of an event of
default (however described).
(e) No Event of Default will occur under this Clause 26.6 if the
aggregate amount of Financial Indebtedness or commitment for
Financial Indebtedness falling within paragraphs (a) to (d) above
is less than (Pounds)5,000,000 (or its equivalent in any other
currency or currencies).
26.7 Insolvency
(a) A member of the Group which is a Material Company and/or an Obligor
is unable or admits inability to pay its debts as they fall due,
suspends making payments on any class of its debts or, by reason of
actual or anticipated financial difficulties, commences
negotiations with one or more of its creditors with a view to
rescheduling any of its indebtedness.
(b) The value of the assets of any member of the Group which is a
Material Company and/or an Obligor is less than its liabilities
(taking into account contingent and prospective liabilities).
(c) A moratorium is declared in respect of any indebtedness of any
member of the Group which is a Material Company and/or an Obligor.
26.8 Insolvency proceedings
Any corporate action, legal proceedings or other procedure or step is
taken in relation to:
(a) the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, administration, bankruptcy or
reorganisation (by way of voluntary arrangement, scheme of
arrangement or otherwise) of any member of the Group which is a
Material Company and/or an Obligor other than a solvent liquidation
or reorganisation of any member of the Group which is not an
Obligor;
(b) a composition, assignment or arrangement with any class of creditor
of any member of the Group which is a Material Company and/or an
Obligor;
(c) the appointment of a liquidator (other than in respect of a solvent
liquidation of a member of the Group which is not an Obligor),
receiver, administrator, administrative receiver, compulsory
manager or other similar officer in respect of any member of the
Group which is a Material Company and/or an Obligor or any of its
assets; or
(d) enforcement of any Security over any assets of any member of the
Group which is a Material Company and/or an Obligor which is not
withdrawn or rescinded within 7 days, or any analogous procedure or
step is taken in any jurisdiction.
26.9 Creditors' process
Any expropriation, attachment, sequestration, distress or execution
affects any asset or assets of any Obligor or any Material Company and
is not withdrawn or rescinded within 7 days.
26.10 Unlawfulness
It is or becomes unlawful for an Obligor to perform or comply with any
or all of its obligations under the Finance Documents and/or the
obligations of any Obligor under the Finance Documents are not or cease
to be legal, valid, binding and (subject to the Reservations)
enforceable.
26.11 Repudiation
An Obligor repudiates a Finance Document or evidences an intention to
repudiate a Finance Document.
26.12 Pension Plans
Any ERISA Event shall have occurred and the liability of a U.S. Group
Company or its ERISA Affiliates related to such ERISA Event would
reasonably be expected to have a Material Adverse Effect.
26.13 Failure to Comply with Final Judgment
Any member of the Group fails to comply with or pay any sum due from it
under any final judgment or any final order made or given by any court
of competent jurisdiction which exceeds (Pounds)100,000 and such failure
is not remedied within 20 Business Days.
26.14 Material adverse change
A material adverse change occurs in the financial condition of the Group
would reasonably be expected to have a Material Adverse Effect in the
reasonable opinion of the Majority Lenders.
26.15 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 Original Borrower:
(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) require the Original Borrower to procure that the liabilities of
each of the Lenders and the Fronting Banks under each Bank Guarantee
are promptly reduced to zero; and/or
(d) provide Cash Collateral for each Bank Guarantee in an amount equal
to the maximum amount of the actual or contingent liability under
such Bank Guarantee specified by the Agent and in the currency of
that Bank Guarantee;
(e) 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 but,
notwithstanding the foregoing, upon the occurrence of an Event of
Default, in relation to U.S. Obligors, specified in Clause 26.8
(Insolvency Proceedings), the Facility shall be cancelled and all
Loans, together with accrued interest, and all other amounts accrued
under the Finance Documents shall become immediately due and
payable, in each case without declaration, notice or demand by or to
any persons. PROVIDED THAT until the Clean-Up Date, the Events of
Default set out in Clauses 25.3 (Negative Pledge), 25.17 (Federal
Reserve Regulations), 26.5 (Misrepresentation) (other than
misrepresentations made with respect to Clause 22.1 (Status), 22.2
(Binding Obligations), 22.3 (Non-Conflict with other Obligations),
22.4 (Power and Authority), 22.5 (Validity and Admissibility in
Evidence), 22.6 (Governing Law and Enforcement), 22.7 (Deduction of
Tax) and 22.8 (No Filing or Stamp Taxes)), 26.6 (Cross Default)
shall not apply to the Target solely as a result of the Target
becoming a Subsidiary of the Original Borrower.
26.16 Certain Funds Period
To ensure that the Original Borrower has resources available to fulfil
its obligations under the Offer, during the Certain Funds Period
(notwithstanding any provision in this Agreement to the contrary) unless
a Certain Funds Event of Default is continuing, none of the Finance
Parties shall be entitled to:
(a) cancel any of its Commitments under the Facility A or (to the
extent required in connection with either the cash
collateralisation of the Loan Notes or the issue of a Bank
Guarantee with respect to the Loan Notes) Facility B;
(b) rescind, terminate or cancel this Agreement, the Facility A or
(to the extent required in connection with either the cash
collateralisation of the Loan Notes or the issue of a Bank
Guarantee with respect to the Loan Notes) Facility B;
(c) require repayment of any Facility A Loans or a Bank Guarantee or
the cash collateral issued with respect to the Loan Notes;
(d) refuse to participate in the making of any Facility A Loans or
the issuing of a Bank Guarantee cash collateralising with respect
to the Loan Notes; or
(e) exercise any right of set-off or counterclaim in respect of any
Facility A Loan, the cash collateral or a Bank Guarantee issued
with respect to the Loan Notes,
provided that immediately upon the expiry of the Certain Funds Period
all such rights, remedies and entitlements shall be available to the
Finance Parties notwithstanding that they may not have been used or
been available for use during the Certain Funds Period.
SECTION 9
CHANGES TO PARTIES
27. CHANGES TO THE LENDERS
27.1 Assignments and transfers by the Lenders
Subject to this Clause 27, 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").
27.2 Conditions of assignment or transfer
(a) The consent of the Original Borrower 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.
(b) The consent of the Original Borrower to an assignment or transfer must
not be unreasonably withheld or delayed. The Original Borrower will be
deemed to have given its consent five Business Days after the Lender
has requested it unless consent is expressly refused by the Original
Borrower within that time.
(c) The consent of the Original Borrower 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) The consent of the Fronting Bank is required for an assignment or
transfer by a Lender in relation to a Facility B.
(e) 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.
(f) A transfer will only be effective if the procedure set out in Clause
27.6 (Procedure for transfer) is complied with.
(g) No such assignment shall result in any Lender which has Facility B
Commitment being required to participate in Facility B Loan unless the
consent of the Lenders with Facility B Commitment exceeding 66 2/3 per
cent. of the aggregate of the Facility B Commitment has been obtained.
(h) 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 16 (Tax gross-up and indemnities) or
Clause 17 (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 Lender or Lender acting through its previous
Facility Office would have been if the assignment, transfer or change
had not occurred.
27.3 Assignment to Federal Reserve Bank
In addition to any other assignments or participation rights provided in
this Clause 27, each Lender may assign and pledge all or any portion of its
Loans and the other obligations owed to such Lender, without notice to or
consent of any Party, to any Federal Reserve Bank pursuant to Regulation A
of the Board of Governors of the Federal Reserve Bank and any operating
circular issued by such Federal Reserve Bank; provided that, (i) no Lender
shall, as between the Borrowers and such Lender, be relived of any of its
obligations hereunder as a result of any such assignment and pledge and
(ii) in no event shall such Federal Reserve Bank be considered to be a
"Lender" or be entitled to require the assigning Lender to take or omit to
take any action hereunder.
27.4 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 $1,000.
27.5 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 27; 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.
27.6 Procedure for transfer
(a) Subject to the conditions set out in Clause 27.2 (Conditions of
assignment or transfer) a transfer is effected in accordance with
paragraph (b) below when the Agent 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 and 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 Mandated Lead Arranger, the New Lender, the other
Lenders and the Fronting Bank 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 Mandated
Lead Arranger, the Fronting Bank 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".
27.7 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.
28. CHANGES TO THE OBLIGORS
28.1 Assignment and transfer by Obligors
No Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents.
28.2 Additional Borrowers
(a) The Original Borrower may request that any of its wholly owned
Subsidiaries becomes an Additional Borrower. That Subsidiary shall
become an Additional Borrower if:
(i) It is a company specified in Part I of Schedule 1 (The Original
Parties) as an approved Additional Borrower or (if not) all the
Lenders approve the addition of that Subsidiary;
(ii) the Original Borrower delivers to the Agent a duly completed and
executed Accession Letter;
(iii) the Original Borrower 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.
(v) The Agent shall notify the Original Borrower 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).
28.3 Resignation of a Borrower
(a) The Original Borrower may request that a Borrower (other than the
Original Borrower) ceases to be a Borrower by delivering to the Agent
a Resignation Letter.
(b) The Agent shall accept a Resignation Letter and notify the Original
Borrower and the Lenders of its acceptance if:
(i) no Default is continuing or would result from the acceptance of
the Resignation Letter (and the Original Borrower 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.
28.4 Additional Guarantors
(a) The Original Borrower may request that any of its Subsidiaries become
an Additional Guarantor. That Subsidiary shall become an Additional
Guarantor if:
(i) the Original Borrower 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 Original Borrower 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).
28.5 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.
28.6 Resignation of a Guarantor
(a) The Original Borrower may request that a Guarantor (other than the
Original Borrower) ceases to be a Guarantor by delivering to the Agent
a Resignation Letter.
(b) The Agent shall accept a Resignation Letter and notify the Original
Borrower and the Lenders of its acceptance if:
(i) no Default is continuing or would result from the acceptance of
the Resignation Letter (and the Original Borrower has confirmed
this is the case); and
(ii) all the Lenders have consented to the Original Borrower's
request.
SECTION 10
THE FINANCE PARTIES
29. ROLE OF THE AGENT, THE MANDATED LEAD ARRANGER AND THE SECURITY TRUSTEE
29.1 Appointment of the Agent and the Security Trustee
(a) Each of the Mandated Lead Arranger, the Fronting Bank, the Lenders and
the Hedge Counterparty appoints the Agent and the Security Trustee to
act as its agent as Security Trustee under and in connection with the
Finance Documents.
(b) Each of the Mandated Lead Arranger, the Fronting Bank 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.
29.2 Declaration of Trust
The Security Trustee declares that it shall hold the benefit of the
Security Documents on trust for the Beneficiaries on the terms contained in
this Agreement. Each of the parties to this Agreement agrees that the
Security Trustee shall have only those duties, obligations and
responsibilities expressly specified in the Finance Documents to which it
is a party (and no others shall be implied). The Finance Parties shall not
have any independent power to enforce, or have recourse to, any of the
Security or to exercise any rights or powers pursuant to the Security
Documents except through the Security Trustee. The rights, powers and
discretions conferred upon the Security Trustee by this Agreement shall be
supplemental to the Trustee Act 1925 and in addition to any which may be
vested in the Security Trustee by general law or otherwise.
29.3 Duties of the Agent and the Security Trustee
(a) The Agent shall promptly forward to a Party, and the Security Trustee
shall promptly forward to the Agent the original or a copy of any
document which is delivered to the Agent for that Party by any other
Party or to the Security Trustee for the Agent.
(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 and where appropriate,
the Fronting Bank. In the case of the Security Trustee, if it receives
notice from a Party referring to this Agreement, describing a Default
and stating the circumstances described in a Default, it shall
promptly notify the Agent.
(c) The Agent shall promptly notify the Lenders and where appropriate, the
Fronting Bank of any Default arising under Clause 26.1 (Non-payment).
(d) The Agent's duties under the Finance Documents are solely mechanical
and administrative in nature.
29.4 Role of the Mandated Lead Arranger
Except as specifically provided in the Finance Documents, the Mandated Lead
Arranger has no obligations of any kind to any other Party under or in
connection with any Finance Document.
29.5 No fiduciary duties
(a) Nothing in this Agreement constitutes the Agent or the Mandated Lead
Arranger as a trustee or fiduciary of any other person.
(b) The Agent, the Security Trustee, the Fronting Bank or the Mandated
Lead Arranger shall not be bound to account to any Lender for any sum
or the profit element of any sum received by it for its own account.
29.6 Business with the Group
The Agent, the Security Trustee, the Fronting Bank and the Mandated Lead
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.
29.7 Rights and discretions of the Agent and the Security Trustee
(a) Each of the Agent and the Security Trustee 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 and the Security Trustee may assume (unless it has received
notice to the contrary in its capacity as agent or security trustee
for the Lenders) that:
(i) no Default has occurred (unless it has actual knowledge of a
Default arising under Clause 26.1 (Non-payment));
(ii) any right, power, authority or discretion vested in any Party or
the Majority Lenders has not been exercised;
(iii) any notice or request made by the Original Borrower (other than
a Utilisation Request) is made on behalf of and with the consent
and knowledge of all the Obligors; and
(iv) any representation made or deemed by an Obligor in connection
with any Finance Document is true.
(c) The Agent or, as the case may be, the Security Trustee may engage, pay
for and rely on the advice or services of any lawyers, accountants,
surveyors or other experts.
(d) The Agent and the Security Trustee may act in relation to the Finance
Documents through their personnel and agents.
29.8 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 Mandated Lead Arranger.
(c) The Agent and the Security Trustee may refrain from acting in
accordance with (a) in the case of the Agent, any instructions of the
Majority Lenders and (b) in the case of the Security Trustee, any
instructions of the Agent, (including any instructions to begin any
legal action or proceedings arising out of or in connection with the
Finance Documents) until it shall have received such indemnification
and/or security as it may require (whether by way of payment in
advance or otherwise) for all costs, claims, losses, expenses
(including legal fees) and liabilities together with any applicable
VAT which it will or may expend or incur in complying with those
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.
(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.
29.9 Security Trustee's Actions
The Security Trustee:
(a) shall, except as otherwise provided, act in accordance with any
instructions given to it by the Agent and shall be entitled to assume
that any instructions received by it from the Agent are (a) duly given
by or on behalf of the Majority Lenders or, as the case may be, the
Lenders in accordance with the terms of the Finance Documents and all
applicable conditions have been satisfied and (b) have not been
revoked unless it has received actual notice of revocation;
(b) shall be entitled to request instructions, or clarification of any
direction, from the Agent as to whether, and in what manner, it should
exercise or refrain from exercising any rights, powers and discretions
and the Security Trustee may refrain from acting unless and until
those instructions or clarification are received by it;
(c) may, in the absence of any instructions to the contrary, take such
action in the exercise of any of its duties under the Finance
Documents which in its absolute
discretion it considers to be material for the protection and benefit
of all of the Finance Parties;
(d) may, and shall if so directed by the Agent, at any time after receipt
by the Security Trustee of notice from the Agent directing the
Security Trustee to exercise all or any of its rights, remedies,
powers or discretions take such action as in its sole discretion it
thinks fit to enforce the Security;
(e) shall be entitled to carry out all dealings with the Lenders through
the Agent and to rely on a certificate from the Agent as to the amount
owed to any of the Finance Parties or by any Obligor;
(f) may place (at the cost of the Obligors such costs to be reasonably and
properly incurred) any of the Finance Documents and any other
documents relating to the Security in any safe custody selected by the
Security Trustee or with any financial institution, any company whose
business includes the safe custody of documents or any firm of lawyers
of good repute and the Security Trustee shall not be responsible for,
or required to insure against, any loss incurred in connection with
that deposit;
(g) may accept without enquiry, and shall not be obliged to investigate,
such right and title as each of the Obligors may have to any of the
Charged Property and shall not be liable for or bound to require any
Obligor to remedy any defect in its right or title;
(h) may refrain from doing anything which in its opinion will or may be
contrary to any relevant law, directive or regulation of any
jurisdiction which would or might otherwise render it liable to any
person, and the Security Trustee may do anything which is, in its
opinion, necessary to comply with any such law, directive or
regulation; and
(i) is authorised upon a disposal of any of the Charged Property:
(i) pursuant to the enforcement of the Security by a Receiver or the
Security Trustee; or
(ii) if such disposal is permitted under the Finance Documents,
(at the cost of the Obligors) to release that property from the
Security and to execute, without the need for any further authority
from the Beneficiaries, any release of the Security or other claim
over that asset and to issue any certificates of non-crystallisation
of floating charges that may be required or desirable.
29.10 Excluded Obligations
Notwithstanding anything to the contrary expressed or implied in any
Finance Document, none of the Agent, the Fronting Bank, the Security
Trustee or the Mandated Lead Arranger shall:
(a) be bound to enquire as to (a) whether or not any representation made
or deemed to be made by an Obligor in connection with any Finance
Document is true, (b) the
occurrence or otherwise of any Event of Default or Potential Event
of Default, (c) the performance by an Obligor of its obligations
under any Finance Document or (d) any breach of or default by an
Obligor of or under its obligations under any Finance Document;
(b) be bound to disclose to any other person any information relating to
any member of the Group if (a) such person, on providing such
information, expressly stated to the Agent, the Security Trustee,
the Fronting Bank or, as the case may be, the Mandated Lead
Arranger, that such information was confidential or (b) such
disclosure would or might in its opinion constitute a breach of any
law or be otherwise actionable at the suit of any person.
29.11 Responsibility for documentation
The Agent, the Security Trustee, the Fronting Bank and the Mandated Lead
Arranger:
(a) are not responsible for the adequacy, accuracy and/or completeness
of any information (whether oral or written) supplied by the Agent,
the Fronting Bank, the Security Trustee or the Mandated Lead
Arranger, an Obligor or any other person given in or in connection
with any Finance Document or the Information Memorandum;
(b) are not 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;
(c) are not responsible for the exercise of, or the failure to exercise,
any judgment, discretion or power given to any of them by or in
connection with any Finance Document or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with any Finance
Document; or
(d) are not responsible for any shortfall which arises on the
enforcement of the Security.
29.12 Exclusion of liability
(a) Without limiting paragraph (b) below, neither the Agent nor the
Security Trustee will 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 the Security Trustee 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 or
the Security Trustee may rely on this Clause. Any third party
referred to in this paragraph (b) may enjoy the benefit and enforce
the Terms of this paragraph in accordance with the provisions of the
Contracts (Rights of Third Parties) Act 1999.
(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.
(d) the Security Trustee shall not be liable for any failure to require
the deposit with it of any deed or document certifying, representing
or constituting the title of any Obligor to any of the Charged
Property;
(e) the Security Trustee shall not be liable for any failure to obtain
any licence, consent or other authority for the execution, delivery,
legality, validity, enforceability or admissibility in evidence of
any of the Finance Documents or the Security;
(f) the Security Trustee shall not be liable for any failure to
register, file or record or otherwise protect any of the Security
(or the priority of any of the Security) under any applicable laws
in any jurisdiction or to give notice to any person of the execution
of any of the Finance Documents or of the Security;
(g) the Security Trustee shall not be liable for any failure to take, or
to require any of the Obligors to take, any steps to perfect its
title to any of the Charged Property or to render the Security
effective or to secure the creation of any ancillary Security under
the laws of any jurisdiction; or
(h) the Security Trustee shall not be liable for any failure to require
any further assurances in relation to any of the Security Documents.
29.13 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).
29.14 Resignation of the Agent and the Security Trustee
(a) The Agent, or, as the case may be, the Security Trustee 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
Original Borrower.
(b) Alternatively the Agent, or, as the case may be, the Security
Trustee may resign by giving notice to the Lenders and the Borrower,
in which case the Majority Lenders with the prior written consent of
the Original Borrower may appoint a successor Agent, or, as the case
may be, the Security Trustee.
(c) If the Majority Lenders have not appointed a successor Agent, or, as
the case may be, the Security Trustee, in accordance with paragraph
(b) above within 30 days after notice of resignation was given, the
Agent and the Security Trustee, with the
prior written consent of the Original Borrower, may appoint a
successor Agent, or, as the case may be, the Security Trustee
(acting through an office in the United Kingdom).
(d) The retiring Agent, or, as the case may be, the Security Trustee
shall, at its own cost, make available to the successor Agent, or,
as the case may be, the successor Security Trustee such documents
(including the transfer of the Security Documents by the resigning
Security Trustee to its successor) and records and provide such
assistance as the successor Agent, or, as the case may be, the
Security Trustee may reasonably request for the purposes of
performing its functions as Agent or Security Trustee under the
Finance Documents.
(e) The Agent's, or, as the case may be, the Security Trustee's
resignation notice shall only take effect upon the appointment of a
successor.
(f) Upon the appointment of a successor, the retiring Agent, or as the
case may be, the Security Trustee shall be discharged from any
further obligation in respect of the Finance Documents but shall
remain entitled to the benefit of this Clause 29. The appointed
Agent or, as the case may be, the appointed Security Trustee 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 Original Borrower, the Majority Lenders
may, by notice to the Agent, or, as the case may be, the Security
Trustee require it to resign in accordance with paragraph (b) above.
In this event, the Agent, or, as the case may be, the Security
Trustee shall resign in accordance with paragraph (b) above.
29.15 Delegation and Additional Security Trustees
The Security Trustee may, at any time:
(a) delegate by power of attorney or otherwise to any person for any
period, all or any of the rights, powers and discretions vested in
it by any of the Finance Documents and such delegation may be made
upon such terms and conditions (including the power to sub-delegate)
and subject to such restrictions as the Security Trustee may think
fit in the interest of the Finance Parties and it shall not be bound
to supervise, or be in any way responsible for any loss incurred by
reason of any misconduct or default on the part of any such delegate
or sub-delegate; and
(b) appoint (and subsequently remove) any person to act as a separate
Security Trustee or as a co-Security Trustee jointly with it (a) if
it considers such appointment to be in the interests of the Finance
Parties or (b) for the purposes of conforming to any legal
requirements, restrictions or conditions which the Security Trustee
deems to be relevant or (c) for obtaining or enforcing any judgement
in any jurisdiction, and the Security Trustee shall give prior
notice to the Original Borrower and the Agent of any such
appointment. Any person so appointed (subject to the terms of this
Agreement) shall have such rights, powers and discretions (not
exceeding those conferred on the Security Trustee by this Agreement)
and such duties and
obligations as are conferred or imposed by the instrument of
appointment. The remuneration the Security Trustee may pay to any
such person, and any costs and expenses reasonably and properly
incurred by such person in performing its functions pursuant to that
appointment shall, for the purposes of this Agreement, be treated as
costs and expenses incurred by the Security Trustee.
29.16 Reliance and Engagement Letters
Each Finance Party confirms that each of the Mandated Lead Arranger, the
Agent and the Security Trustee has authority to accept on its behalf the
terms of any reliance letter or engagement letters relating to any reports
or letters provided by accountants or other providers of any Reports in
connection with the Finance Documents or the transactions contemplated
therein and to bind it in respect of such reports or letters and to sign
such letters on its behalf and further confirms that it accepts the terms
and qualifications set out in such letters.
29.17 Insurance by Security Trustee
The Security Trustee shall not be under any obligation to insure any of
the Charged Property, to require any other person to maintain any
insurance or to verify any obligation to arrange or maintain insurance
contained in the Finance Documents. The Security Trustee shall not be
responsible for any loss which may be suffered by any person as a result
of the lack of or inadequacy of any such insurance. Where the Security
Trustee is named on any insurance policy as an insured party, it shall not
be responsible for any loss which may be suffered by reason of, directly
or indirectly, its failure to notify the insurers of any material fact
relating to the risk assumed by such insurers or any other information of
any kind, unless any Finance Party shall have requested it to do so in
writing and the Security Trustee shall have failed to do so within
fourteen days after receipt of that request.
29.18 Manner of enforcement
Each of the Obligors waives, to the extent permitted under applicable law,
all rights it may otherwise have to require that the Security be enforced
in any particular order or manner or at any particular time or that any
sum received or recovered from any person, or by virtue of the enforcement
of the Security or any other Security, which is capable of being applied
in or towards discharge of any of the Secured Obligations is so applied.
29.19 Winding-up of Trust and Perpetuity Period
If the Security Trustee, with the approval of an Majority Lenders,
determines that (a) all of the Secured Obligations and all other
obligations secured by any of the Security Documents, have been fully and
finally discharged and (b) none of the Finance Parties is under any
commitment, obligation or liability (whether actual or contingent) to make
Loans or provide other financial accommodation to any Obligor pursuant to
the Finance Documents, the trusts set out in this Agreement shall be wound
up. At that time the Security Trustee shall release, without recourse or
warranty, all of the Security then held by it and the rights of the
Security Trustee under each of the Security Documents, at which time each
of the Security Trustee, the Agent, the Secured Parties and the Obligors
shall be released from its obligations in respect of these trusts and the
Security (save for those which arose prior to such winding-up).
The perpetuity period under the rule against perpetuities, if applicable
to this Agreement, shall be the period of eighty years from the date of
this Agreement.
29.20 Confidentiality
(a) Each of the Agent in acting as agent for the Lenders, and the
Security Trustee in acting as trustee for the Finance Parties, shall
be regarded as acting through its agency or, as the case may be,
trustee division which shall be treated as a separate entity from
any other of its divisions or departments and, notwithstanding the
foregoing provisions of this Clause 29, any information received by
some other division or department of the Agent or, as the case may
be, Security Trustee may be treated as confidential and shall not be
regarded as having been given to the Agent's agency division or, as
the case may be, the Security Trustee's trustee division.
(b) Notwithstanding any other provision of any Finance Document to the
contrary, neither the Agent nor the Mandated Lead 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.
29.21 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 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).
29.22 Credit appraisal by the Lenders and the Fronting Banks
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Lender and the Fronting Bank confirms to the Agent and the Mandated
Lead 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 or the Fronting Bank 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.
29.23 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 (with
the prior written consent of the Original Borrower) appoint another Lender
or an Affiliate of a Lender to replace that Reference Bank.
30. THE LENDERS AND THE FRONTING BANK
30.1 Lenders' Indemnity
If any Borrower fails to comply with its obligations under Clause 9.2
(Borrowers' Indemnity to Fronting Banks) in respect of a Guarantee Amount,
the Agent shall make demand on each Lender for its share of that Guarantee
Amount and each Lender shall indemnify the Fronting Bank for that Lender's
Bank Guarantee Proportion of each Guarantee Amount.
30.2 Obligations not Discharged
Neither the obligations of each Lender in this Clause 30 nor the rights,
powers and remedies conferred upon the Fronting Bank by this Agreement or
by law shall be discharged, impaired or otherwise affected by:
(a) the winding-up, dissolution, administration or re-organisation of
the Fronting Bank, the Original Borrower or any other person or any
change in its status, function, control or ownership;
(b) any of the obligations of the Fronting Bank, the Original Borrower
or any other person under this Agreement, under a Bank Guarantee or
under any other security taken in respect of its obligations under
this Agreement or under a Bank Guarantee being or becoming illegal,
invalid, unenforceable or ineffective in any respect;
(c) time or other indulgence being granted or agreed to be granted to
the Fronting Bank, the Original Borrower or any other person in
respect of its obligations under this Agreement, under a Bank
Guarantee or under any other security;
(d) any amendment to, or any variation, waiver or release of, any
obligation of the Fronting Bank, the Original Borrower or any other
person under this Agreement, under a Bank Guarantee or under any
other security; and
(e) any other act, event or omission which, but for this Clause 30.2,
might operate to discharge, impair or otherwise affect any of the
obligations of each Lender in this Agreement contained or any of the
rights, powers or remedies conferred upon the Fronting Bank by this
Agreement or by law.
The obligations of each Lender in this Agreement contained shall be in
addition to and independent of every other security which the Fronting
Bank may at any time hold in respect of any Bank Guarantee.
30.3 Settlement Conditional
Any settlement or discharge between a Lender and the Fronting Bank shall
be conditional upon no security or payment to the Fronting Bank by a
Lender or any other person on behalf of a Lender being avoided or reduced
by virtue of any laws relating to bankruptcy, insolvency, liquidation or
similar laws of general application and, if any such security or payment
is so avoided or reduced, the Fronting Bank shall be entitled to recover
the value or amount of such security or payment from such Lender
subsequently as if such settlement or discharge had not occurred.
30.4 Exercise of Rights
The Fronting Bank shall not be obliged before exercising any of the
rights, powers or remedies conferred upon them in respect of any Lender by
this Agreement or by law:
(a) to take any action or obtain judgment in any court against the
Original Borrower;
(b) to make or file any claim or proof in a winding-up or dissolution of
the Original Borrower; or
(c) to enforce or seek to enforce any other security taken in respect of
any of the obligations of the Original Borrower under this
Agreement.
31. 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.
32. SHARING AMONG THE LENDERS
32.1 Payments to Lenders
If a Lender (a "Recovering Lender") receives or recovers any amount from
an Obligor other than in accordance with Clause 33 (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 33 (Payment mechanics), without taking account of any Tax
which would be imposed on the Agent in relation to the receipt,
recovery or distribution; and
(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 33.5 (Partial
payments).
32.2 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 33.5 (Partial payments).
32.3 Recovering Lender's rights
(a) On a distribution by the Agent under Clause 32.2 (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.
32.4 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 32.2 (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.
32.5 Exceptions
(a) This Clause 32 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
(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.
SECTION 11
ADMINISTRATION
33. PAYMENT MECHANICS
33.1 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
a principal financial centre in a Participating Member State or
London) with such bank as the Agent specifies.
33.2 Distributions by the Agent
Each payment received by the Agent under the Finance Documents for another
Party shall, subject to Clause 33.3 (Distributions to an Obligor) and
Clause 33.4 (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).
33.3 Distributions to an Obligor
The Agent may (with the consent of the Obligor or in accordance with
Clause 34 (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.
33.4 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.
33.5 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 and the Mandated Lead Arranger
under the Finance Documents;
(ii) secondly, in or towards payment of any demand made by the
Fronting Bank in respect of a payment made by it under a Bank
Guarantee due but unpaid;
(iii) thirdly, in or towards payment pro rata of any accrued
interest or commission due but unpaid under this Agreement;
(iv) fourthly, in or towards payment pro rata of any principal due
but unpaid under this Agreement; and
(v) fifthly, in or towards payment pro rata of any Outstandings
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.
33.6 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.
33.7 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 at the rate payable on the original due date.
33.8 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 in respect of a Bank Guarantee (including any Cash
Collateral in respect of a Bank Guarantee) shall be made in the
currency in which that Bank Guarantee is denominated.
(d) 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.
(e) Each payment in respect of costs, expenses or Taxes shall be made in
the currency in which the costs, expenses or Taxes are incurred.
(f) Any amount expressed to be payable in a currency other than the Base
Currency shall be paid in that other currency.
33.9 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 Original Borrower); 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 Original Borrower) 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.
34. SET-OFF
A Finance Party may set off any matured obligation due and unpaid 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.
35. NOTICES
35.1 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 or letter.
35.2 Addresses
The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in connection
with the Finance Documents is:
(a) in the case of the Original Borrower, that identified with its name
below;
(b) in the case of each Lender, the Fronting Bank 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 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.
35.3 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,
and, if a particular department or officer is specified as part of
its address details provided under Clause 35.2 (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 Original
Borrower in accordance with this Clause will be deemed to have been
made or delivered to each of the Obligors.
35.4 Notification of address and fax number
Promptly upon receipt of notification of an address and fax number or
change of address or fax number pursuant to Clause 35.2 (Addresses) or
changing its own address or fax number, the Agent shall notify the other
Parties.
35.5 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.
36. CALCULATIONS AND CERTIFICATES
36.1 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.
36.2 Certificates and Determinations
Any certification or determination by a Finance Party of a rate or amount
under any Finance Document and by a Fronting Bank as to the amount paid
out by that Fronting Bank in respect of any Bank Guarantee is, in the
absence of manifest error, prima facie of the matters to which it relates.
36.3 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.
37. 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.
38. 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 and remedies provided in this Agreement
are cumulative and not exclusive of any rights or remedies provided by
law.
39. AMENDMENTS AND WAIVERS
39.1 Required consents
(a) Subject to Clause 39.2 (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.
39.2 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, the Bank Guarantee Commission Rate
or the amount of any payment of principal, interest, fees or
commission payable;
(iv) an increase in Commitment;
(v) any change to the Security or Security Documents;
(vi) a change to the Borrowers or Guarantors other than in
accordance with Clause 28 (Changes to the Obligors);
(vii) any provision which expressly requires the consent of all the
Lenders; or
(viii) Clause 2.2 (Lenders' rights and obligations), Clause 21
(Guarantee and Indemnity), or this Clause 39, 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, the Mandated Lead Arranger or the Fronting Bank may not
be effected without the consent of the Agent or the Mandated Lead
Arranger or the Fronting Bank.
39.3 Amendment by the Original Borrower
The Original Borrower (acting on behalf of the Obligors) may agree any
amendment to or modification to the provisions of the provisions of any of
the Finance Documents or any schedule thereto, or grant any waiver or
consent in relation thereto and each Obligor hereby authorises the
Original Borrower to agree any such amendment, modification, waiver or
consent on its behalf. Nothing in this Clause 39.3 shall prejudice the
right of the Agent to require all Obligors to agree any such amendment,
modification, waiver or consent.
40. 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.
SECTION 12
GOVERNING LAW AND ENFORCEMENT
41. GOVERNING LAW
This Agreement is governed by English law.
42. ENFORCEMENT
42.1 Jurisdiction of English courts
(a) The courts of England have non-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 courts of the State of New York and the courts of the United
States of America, in each case sitting in the County of New York,
have jurisdiction to settle any Dispute.
(c) The Parties agree that the courts of England or the courts of the
State of New York or the United States of America sitting in the
County of New York are the most appropriate and convenient courts to
settle Disputes and accordingly no Party will argue to the contrary.
(d) This Clause 42.1 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.
42.2 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 Original Borrower 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.
42.3 Waiver of Jury Trial
EACH OF THE PARTIES TO THIS AGREEMENT AGREES TO WAIVE IRREVOCABLY ITS
RIGHTS TO A JURY TRIAL OF ANY CLAIM BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR ANY OF THE DOCUMENTS REFERRED TO IN THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED IN THIS AGREEMENT. This waiver is intended to
apply to all Disputes. Each party acknowledges that (a) this waiver is a
material inducement to enter into this Agreement, (b) it has already
relied on this waiver in entering into this Agreement and (c) it will
continue to rely on this waiver in future dealings. Each party represents
that it has
reviewed this waiver with its legal advisers and that it knowingly and
voluntarily waives its jury trial rights after consultation with its legal
advisers. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
SCHEDULE 1
THE ORIGINAL PARTIES
Part I
The Original Obligors
Name of Original Borrower Registration number (or equivalent, if any)
Benfield Greig Group PLC 2265140
Names of Approved Additional Borrowers
Benfield Greig Limited 1170753
E.W. Blanch Co, Inc.
E.W. Blanch Holdings, Inc.
Name of Original Guarantor Registration number (or equivalent, if any)
Benfield Greig Group PLC 2265140
Name of Initial Guarantors Registration number (or equivalent, if any)
Benfield Greig Holdings Limited 2673231
Greig Fester Group Limited 1166699
Benfield Greig Limited 1170753
Lennoxhurst Limited 3491259
Benfield Greig (Holdings), Inc.
Part II
The Original Lenders
Name of Original Lender Facility A Commitment Facility B Commitment
Barclays Bank PLC $315,000,000 $ 75,000,000
Total $390,000,000
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 good standing certificate with respect to each U.S.
Obligor, issued as a recent date by the Secretary of State or other
appropriate official of the U.S. Obligor's jurisdiction of
incorporation or organisation.
(c) A copy of a resolution of the board of directors 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.
(d) A specimen of the signature of each person authorised by the
resolution referred to in paragraph (b) above.
(e) A copy of a resolution signed by all the holders of the issued
shares in each Original Guarantor, approving the terms of, and the
transactions contemplated by, the Finance Documents to which the
Original Guarantor is a party.
(f) A certificate of the Original Borrower (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.
(g) A certificate of an authorised signatory of the relevant Original
Obligor certifying that each copy document relating to it specified
in this Part 1 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 Clifford Chance LLP legal advisers to the
Mandated Lead Arranger and the Agent in England.
(b) If an Original Obligor is incorporated in a jurisdiction other than
England and Wales, a legal opinion of the legal advisers to the
Mandated Lead Arranger and the Agent in the relevant jurisdiction.
3. Other documents and evidence
(a) A copy of any other Authorisation or other document, opinion or
assurance which the Agent considers to be necessary 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.
(b) The Original Financial Statements of each Original Obligor.
(c) The Agreed Financial Projections
(d) The Reports.
(e) The Security Documents duly executed by the Original Borrower and
the Original Guarantors granting, evidencing or pursuant to which
Security will be granted.
(f) Evidence that the fees, costs and expenses then due and payable from
the Original Borrower pursuant to Clause 15 (Fees) and Clause 20
(Costs and expenses) have been paid or will be paid by the first
Utilisation Date.
(g) A certificate of the Chief Financial Officer of each U.S. Obligor
stating that the respective company is Solvent after giving effect
to the initial Loans, the application of the proceeds thereof in
accordance with Clause 3 and the payment of all estimated legal,
accounting and other fees related to this Agreement. For purposes of
this certificate, "Solvent" means with respect to such U.S. Obligor,
that the value of the assets of such person (both at fair value and
present fair saleable value) is, on the date of determination,
greater than the total amount of liabilities (including contingent
and unliquidated liabilities) of such persons as of such date and
that, as of such date, such person is able to pay all of its
liabilities as such liabilities mature and does not have
unreasonably small capital. In computing the amount of contingent or
unliquidated liabilities at any time, such liabilities will be
computed at the amount which, in lights of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual and matured liability.
(h) Evidence satisfactory to the Mandated Lead Arranger that all amounts
outstanding under the HSBC Facility (other than the guarantee of the
Loan Notes) and the Bank of America Facility will be repaid from the
proceeds of the first Utilisation under this Agreement.
(i) Evidence satisfactory to the Mandated Lead Arranger that the
existing security of the existing Group (which for the avoidance of
doubt shall for this purpose exclude the Target), as set out in
Schedule 9 (Existing Security) to this Agreement will be
unconditionally and irrevocably discharged on or prior to the first
Utilisation.
(j) The Group Structure Chart (showing all members of the Group
following the Merger).
(k) A copy, certified as being a true complete copy by an Authorised
Signatory of the Original Borrower, of the circular (the "Circular")
sent to the shareholders of the Original Borrower in connection with
the Tender Offer and the Merger and certain other related matters.
(l) Evidence that the resolutions of the shareholders of the Original
Borrower set out in the Circular have been passed.
(m) A copy, certified as being a true, complete copy by an Authorised
Signatory of the Original Borrower, of any and all relevant
regulatory, anti-trust competition or any other necessary consents
or authorisations for the purposes of the Tender Offer and/or the
Merger.
(n) A copy, certified as being a true, complete copy by an Authorised
Signatory of the Original Borrower, of the Acquisition Documents.
(o) Evidence satisfactory to the Mandated Lead Arranger the Tender Offer
has been commenced, has been declared in all respects unconditional
and has been recommended by the board of directors of the Target.
(p) Evidence satisfactory to the Agent that the terms and conditions of
the Acquisition Documents have other than solely the financing
condition set out in Clause 9.1 of the Merger Agreement been
satisfied and have not been waived or amended in any material
respect and that no arrangements have been entered into or agreed
with any governmental, regulatory or similar authority in order to
satisfy, amend or waive any such terms and conditions.
(q) Evidence satisfactory to the Mandated Lead Arranger that the
shareholders of Target holding more than 50 per cent. of Target's
issued and outstanding share capital have validly tendered and not
withdrawn their shares.
(r) A letter from the Original Borrower to the Agent undertaking to
implement the hedging policy and to enter into the Hedging Agreement
within 30 days from the date of this Agreement.
(s) An Accession Letter, duly executed by each Additional Guarantor and
each approved Additional Borrower, each as specified in Schedule 1
to this Agreement, together with all documents specified in Part II
to this Schedule 2 in relation to each company delivering such an
Accession Letter.
Part II
Conditions Precedent required to be delivered by an Additional Obligor
1. An Accession Letter, duly executed by the Additional Obligor and the
Original Borrower.
2. A copy of the constitutional documents of the Additional Obligor.
3. A copy of good standing certificate with respect to each U.S. Obligor,
issued as of a recent date by the Secretary of State or other appropriate
official of the U.S. Obligor's jurisdiction of incorporation or
organisation.
4. 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 or
Selection Notice) to be signed and/or despatched by it under or in
connection with the Finance Documents.
5. A specimen of the signature of each person authorised by the resolution
referred to in paragraph 4 above.
6. 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.
7. 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.
8. 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.
9. 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.
10. If available, the latest audited financial statements of the Additional
Obligor.
11. A legal opinion of Clifford Chance LLP, legal advisers to the Mandated
Lead Arranger and the Agent in England.
12. The Security Documents duly executed and delivered by each Additional
Obligor granting, evidencing or pursuant to which the Security will be
granted.
13. If the Additional Obligor is incorporated in a jurisdiction other than
England and Wales, a legal opinion of the legal advisers to the Mandated
Lead Arranger and the Agent in the jurisdiction in which the Additional
Obligor is incorporated.
14. If the proposed Additional Obligor is incorporated in a jurisdiction other
than England and Wales, evidence that the process agent specified in
Clause 42.2 (Service of process), if not an Obligor, has accepted its
appointment in relation to the proposed Additional Obligor.
15. Either (i) a letter from the Original Borrower to the Agent confirming
that no Additional Guarantor is prohibited by Section 151 of the Companies
Act 1985 from entering into the Finance Documents and/or (ii) evidence
that the Additional Guarantor has done all that is necessary (including,
without limitation, by re-registering as a private Original Borrower) to
follow the procedures set out in Sections 155 to 158 of the Companies Act
1985 in order to enable each Guarantor to enter into the Finance Documents
and perform its obligations under the Finance Documents.
16. A certificate of the Chief Financial Officer of each new U.S. Obligor
stating that the respective company is Solvent after giving effect to the
initial Loans, the application of the proceeds thereof in accordance with
Clause 3 and the payment of all estimated legal, accounting and other fees
related to this Agreement. For purposes of this certificate, "Solvent"
means with respect to such U.S. Obligor, that the value of the assets of
such person (both at fair value and present fair saleable value) is, on
the date of determination, greater than the total amount of liabilities
(including contingent and unliquidated liabilities) of such person as of
such date and that, as of such date, such person is able to pay all of its
liabilities as such liabilities mature and does not have unreasonably
small capital. In computing the amount of contingent or unliquidated
liabilities at any time, such liabilities will be computed at the amount
which, in lights of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an actual
and matured liability.
SCHEDULE 3
REQUESTS
Part I
Utilisation Request
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
[Original Borrower] - [ ] Facility Agreement
dated [ ] (the "Facility Agreement")
1. [We wish to borrow a Loan on the following terms]/[We wish Barclays Bank PLC to issue a Bank Guarantee
as follows]:
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] [Bank Guarantee]: [ ]
Amount: [ ] or, if less, the Available Facility
Interest Period: [ ]
Expiry Date: [ ]
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]/[The Bank
Guarantee should be issued in favour of [name recipient] in the form
attached and delivered to the recipient at [address of recipient].
4. This Utilisation Request is irrevocable.
Yours faithfully
.......................................
authorised signatory for
[name of relevant Borrower]
* delete as appropriate
Part II
Selection Notice
Applicable to a Facility A Loan
From: [Borrower]
To: [Agent]
Dated:
Dear Sirs
[Original Borrower] - [ ] Facility Agreement
dated [ ] (the "Facility Agreement")
1. We refer to the following Facility A Loan[s] in [identify currency] with
an Interest Period ending on [_______________]*.
2. [We request that the above Facility A Loan[s] be divided into [ ] Facility
A Loans with the following Base Currency Amounts and Interest Periods:] **
or
[We request that the next Interest Period for the above Facility A Loan[s]
is [ ]].***
3. We request that the above Facility A 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
[the Original Borrower on behalf of] [name of relevant Borrower]
* Insert details of all Facility A Loans in the same currency which have an
Interest Period ending on the same date.
** Use this option if division of Facility A Loans is requested.
*** Use this option if sub-division is not required.
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 Lenders' Additional Cost Rates (weighted in
proportion to the percentage participation of each Lender in the relevant
Loan) 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 that
Lender 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 domestic 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 domestic 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 Lender 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 Lender
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 Lender to the Financial
Services Authority pursuant to the Fees Regulations (but, for this
purpose, ignoring any minimum fee required pursuant to the Fees
Regulations) and expressed in pounds per (Pounds)1,000,000 of the
Fee Base of that Lender.
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, 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. Each Lender shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but
without limitation, each Lender shall supply the following information in
writing on or prior to the date on which it becomes a Lender:
(a) its jurisdiction of incorporation and the jurisdiction of its
Facility Office; and
(b) any other information that the Agent may reasonably require for such
purpose.
Each Lender shall promptly notify the Agent in writing of any change to
the information provided by it pursuant to this paragraph.
8. The percentages or rates of charge of each Lender for the purpose of A, C
and E above shall be determined by the Agent based upon the information
supplied to it pursuant to paragraph 7 above and on the assumption that,
unless a Lender notifies the Agent to the contrary, each Lender's
obligations in relation to cash ratio deposits, Special Deposits and the
Fees Regulations are the same as those of a typical bank from its
jurisdiction of incorporation with a Facility Office in the same
jurisdiction as its Facility Office.
9. The Agent shall have no liability to any person if such determination
results in an Additional Cost Rate which over or under compensates any
Lender and shall be entitled to assume that the information provided by
any Lender pursuant to paragraphs 3 and 7 above is true and correct in all
respects.
10. The Agent shall distribute 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 Lender pursuant
to paragraphs 3 and 7 above.
11. 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.
12. The Agent may from time to time, after consultation with the Original
Borrower 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.
SCHEDULE 5
FORM OF TRANSFER CERTIFICATES
Part I
To: [ ] as Agent
From: [The Existing Lender] (the "Existing Lender") and [The New Lender] (the
"New Lender")
Dated:
[Original Borrower] - [ ] Facility Agreement
dated [ ] (the "Facility Agreement")
1. We refer to Clause 27.6 (Procedure for transfer):
(a) The Existing Lender and the New Lender agree to the Existing Lender
and the New Lender transferring by novation all or part of the
Existing Lender's Commitment, rights and obligations referred to in
the Schedule in accordance with Clause 27.6 (Procedure for
transfer).
(b) The proposed Transfer Date is [ ].
(c) The Facility Office and address, fax number and attention details
for notices of the New Lender for the purposes of Clause 35.2
(Addresses) are set out in the Schedule.
2. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 27.5 (Limitation
of responsibility of Existing Lenders).
3. This Transfer Certificate is governed by English law.
THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office address, fax number and attention details for notices and
account details for payments,]
[Existing Lender] [New Lender]
By: By:
This Transfer Certificate is accepted by the Agent and the Transfer Date is
confirmed as [ ].
[Agent]
By:
Part II
LMA Transfer Certificate (Par)
BANK: Date:
TRANSFEREE:
This Transfer Certificate is entered into pursuant to (i) the agreement (the
"Sale Agreement") evidenced by the Confirmation dated between
the Bank and the Transferee (acting directly or through their respective agents)
and (ii) the Credit Agreement.
On the Transfer Date, the transfer by way of novation from the Bank to the
Transferee on the terms set out herein and in the Credit Agreement shall become
effective subject to:-
(i) the Sale Agreement and the terms and conditions incorporated in the
Sale Agreement;
(ii) the terms and conditions annexed hereto; and
(iii) the schedule annexed hereto,
all of which are incorporated herein by reference.
The Bank The Transferee
[ ] [ ]
By: By:
The Schedule
Credit Agreement Details:
Borrower(s): _________________________________________
Credit Agreement Dated _________________________________________
Guarantor(s): _________________________________________
Agent Bank: [ ] No [ ] Yes (specify)______________
Security: _________________________________________
Total Facility Amount: _________________________________________
Governing Law: _________________________________________
Additional Information: _________________________________________
Transfer Details:
Name of Tranche Facility: _________________ __________________
Nature (Revolving, Term, Bank Guarantee): _________________ __________________
Final Maturity: _________________ __________________
Participation Transferred
Commitment transferred1 _________________ __________________
Drawn Amount (details below):/1/ _________________ __________________
Undrawn Amount:/1/ _________________ __________________
Settlement Date: _________________________________________
Details of outstanding Credits/1/
Specify in respect of each Credit:
Transferred Portion (amount): _________________
Tranche/Facility: _________________
Nature: Term Revolver Other (specify) _________
Details of other Credits are set out on the attached sheet
Administration Details
Bank's Receiving Account: ________________________________
Transferee's Receiving Account: ________________________________
Addresses
Bank Transferee
[ ] [ ]
Address: Address:
Telephone: Telephone:
Facsimile: Facsimile:
Telex: Telex:
Attn/Ref Attn/Ref
/1/ As at the date of the Transfer Certificate
TERMS AND CONDITIONS
These are the Terms and Conditions applicable to the transfer certificate
including the Schedule thereto (the "Transfer Certificate") to which they are
annexed.
1. Interpretation
In these Terms and Conditions words and expressions shall (unless otherwise
expressly defined herein) bear the meaning given to them in the Transfer
Certificate, the Credit Agreement or the Sale Agreement.
2. Transfer
The Bank requests the Transferee to accept and procure the transfer by
novation of all or a part (as applicable) of such participation of the Bank
under the Credit Agreement as is set out in the relevant part of the
Transfer Certificate under the heading "Participation Transferred" (the
"Purchased Assets") by counter-signing and delivering the Transfer
Certificate to the Agent at its address for the service of notice specified
in the Credit Agreement. On the Transfer Date the Transferee shall pay to
the Bank the Settlement Amount as specified in the pricing letter between
the Bank and the Transferee dated the date of the Transfer Certificate
(adjusted, if applicable, in accordance with the Sale Agreement) and
completion of the transfer will take place.
3. Effectiveness of Transfer
The Transferee hereby requests the Agent to accept the Transfer Certificate
as being delivered to the Agent pursuant to and for the purposes of the
Credit Agreement so as to take effect in accordance with the terms of the
Credit Agreement on the Transfer Date or on such later date as may be
determined in accordance with the terms thereof.
4. Transferee's Undertaking
The Transferee hereby undertakes with the Agent and the Bank and each of the
other parties to the Credit Documentation that it will perform in accordance
with its terms all those obligations which by the terms thereof will be
assumed by it after delivery of the Transfer Certificate to the Agent and
satisfaction of the conditions (if any) subject to which the Transfer
Certificate is to take effect.
5. Payments
5.1 Place
All payments by either party to the other under the Transfer Certificate
shall be made to the Receiving Account of that other party. Each party may
designate a different account as its Receiving Account for payment by giving
the other not less than five Business Days notice before the due date for
payment.
5.2 Funds
Payments under the Transfer Certificate shall be made in the currency in
which the amount is denominated for value on the due date at such times and
in such funds as are customary at the time for settlement of transactions in
that currency.
6. The Agent
The Agent shall not be required to concern itself with the Sale Agreement
and may rely on the Transfer Certificate without taking account of the
provisions of such agreement.
7. Assignment of Rights
The Transfer Certificate shall be binding upon and enure to the benefit of
each party and its successors and permitted assigns provided that neither
party may assign or transfer its rights thereunder without the prior written
consent of the other party.
8. Governing Law and Jurisdiction
The Transfer Certificate (including, without limitation, these Terms and
Conditions) 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.
Each party irrevocably appoints the person described as process agent (if
any) specified in the Sale Agreement to receive on its behalf service of any
action, suit or other proceedings in connection with the Transfer
Certificate. If any person appointed as process agent ceases to act for any
reason the appointing party shall notify the other party and shall promptly
appoint another person incorporated within England and Wales to act as its
process agent.
SCHEDULE 6
FORM OF ACCESSION LETTER
To: [ ] as Agent
From: [Subsidiary] and [Original Borrower]
Dated:
Dear Sirs
[Original Borrower] - [ ] Facility Agreement
dated [ ] (the "Facility Agreement")
1. [Subsidiary] agrees to become an Additional [Borrower]/[Guarantor] and to
be bound by the terms of the Facility Agreement as an Additional
[Borrower]/[Guarantor] pursuant to Clause [28.2 (Additional
Borrowers)]/[Clause 28.4 (Additional Guarantors)] of the Facility
Agreement. [Subsidiary] is a Original Borrower 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 [Guarantor/Borrower] Accession Letter is entered into as a deed.
[Original Borrower] [Subsidiary]
SCHEDULE 7
FORM OF RESIGNATION LETTER
To: [ ] as Agent
From: [resigning Obligor] and [Original Borrower]
Dated:
Dear Sirs
[Original Borrower] - [ ] Facility Agreement
dated [ ] (the "Facility Agreement")
1. Pursuant to [Clause 28.3 (Resignation of a Borrower)]/[Clause 28.6
(Resignation of a Guarantor)], we request that [resigning Obligor] be
released from its obligations as a [Borrower]/[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.
[Original Borrower] [Subsidiary]
By: By:
* Insert any other conditions required by the Facility Agreement.
SCHEDULE 8
FORM OF COMPLIANCE CERTIFICATE
To: [ ] as Agent
From: [Original Borrower]
Dated:
Dear Sirs
[Original Borrower] - [ ] Facility Agreement
dated [ ] (the "Facility Agreement")
1. We refer to the Facility Agreement. This is a Compliance Certificate.
2. We confirm that:
Interest Cover ratio is [ ]:1
Debt Cover ratio is [ ]:1
Tangible Net Worth ratio is [ ]:1
3. [We confirm that no Default is continuing.]*
Signed: ........................... ........................
Director Director
of of
[Original Borrower] [Original Borrower]
* 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.
SCHEDULE 9
EXISTING SECURITY
- -----------------------------------------------------------------------------------------------------
Name of Obligor Security
- -----------------------------------------------------------------------------------------------------
Benfield Greig Group plc 26/05/94 Citibank - Debenture under facility
agreement - all estates, F/H, L/H, other
immovable property and all buildings, trade and
other fixtures.
27/11/95 Lloyds Bank - Deposit Agreement - debts
on a/c in the name of Lloyds Bank Plc re. The
Benfield Group Limited, (b) all interest owing at
date of agreement
10/11/97 HSBC - deposit account charge for all
monies under the Finance Documents. First fixed
charge over all right, title and interest to all
monies standing to the credit of the account and
the deposits.
10/11/97 HSBC - deposit account charge for all
monies under the Finance Documents. First fixed
charge over all right, title and interest to all
monies standing to the credit of the account and
the deposits.
10/11/97 HSBC - debenture for all monies under
the Facility Documents. Fixed and floating
charges over the undertakings and all present and
future assets including goodwill, bookdebts,
uncalled capital, buildings, fixtures, fixed
plant and machinery.
10/06/99 HSBC - debenture to secure liabilities
under the Facility Documents. Fixed and floating
charges over the undertakings and all present and
future assets including goodwill, bookdebts,
uncalled capital, buildings, fixtures, fixed
plant and machinery.
10/06/99 HSBC - deposit Account Charge to secure
liabilities under the Facility Documents. All
monies now or thereafter standing to the credit
of the account and the deposits.
- -----------------------------------------------------------------------------------------------------
Greig Fester International Limited 08/09/94 Lloyds security and trust deed.
- -----------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------
Name of Obligor Security
- -----------------------------------------------------------------------------------------------------
Benfield Ellinger Limited 21/02/83 Lloyds Corporation trust deed.
14/07/89 Lloyds security and trust deed.
29/10/93 Lloyds deed.
26/05/94 Citibank international plc debenture.
- -----------------------------------------------------------------------------------------------------
Benfield Greig Holdings Limited 10/12/97 HSBC - debenture; fixed and floating
charge over undertaking and all property and
assets.
10/06/99 HSBC - debenture; fixed and floating
charge over undertaking and all property and
assets.
- -----------------------------------------------------------------------------------------------------
Greig Fester Group Limited 10/12/97 HSBC - debenture; fixed and floating
charge over undertaking and all property and
assets.
10/06/99 HSBC - debenture; fixed and floating
charge over undertaking and all property and
assets present and future.
- -----------------------------------------------------------------------------------------------------
Lennoxhurst Limited 16/12/98 HSBC - debenture; fixed and floating
charge over undertaking and all property and
assets.
10/06/99 HSBC - debenture; fixed and floating
over undertaking and all property and assets.
- -----------------------------------------------------------------------------------------------------
Benfield Greig Limited 16/12/91 Lloyds - security and trust deed over
all byelaw monies (partial release 11/08/00).
04/08/92 Citibank - Deposit agreement over bank
accounts.
- -----------------------------------------------------------------------------------------------------
17/01/94 trust deed variation (partial release
11/08/00).
09/11/99 trust deed variation over IBA/IBA assets.
- -----------------------------------------------------------------------------------------------------
SCHEDULE 10
LMA FORM OF CONFIDENTIALITY UNDERTAKING
[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)](3)
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.
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;
(1) delete if addressee is acting as broker or agent.
(2) delete if addressee is acting as principal.
(3) delete as applicable.
(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;]
[(c/d)](c) 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
[(d/e)](c) (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)](c) 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)](c) above.
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](4) 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](d) 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.
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,](d) the Borrower
and each other member of the Group.
10. Third party rights:
(a) Subject to paragraph 6 and paragraph 9 the terms of this letter may
be enforced and relied upon only by you and us and the operation of
the Contracts (Rights of Third Parties) Act 1999 is excluded.
(b) Notwithstanding any provisions of this letter, the parties to this
letter do not require the consent of any Relevant Person or any
member of the Group to rescind or vary this letter at any time.
(4) delete if letter is sent out by the Seller rather than the Seller's broker
or agent.
11. 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.
12. 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]b 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).
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 Borrower 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]
SCHEDULE 11
TIMETABLES
Part I
Loans
Loans in Base Loans in other Loans in domestic
Currency currencies sterling
Agent notifies the Original Borrower if N/A U-5
a currency is approved as an Optional
Currency in accordance with Clause 4.3
(Conditions relating to Optional
Currencies)
Delivery of a duly completed U-3 U-3 U-1
Utilisation Request (Clause 5.1 9:30 a.m. 9:30 a.m. 9:30 a.m.
(Delivery of a Utilisation Request) or
a Selection Notice (Clause 13.1
(Selection of Interest Periods and
Terms))
Agent determines (in relation to a N/A U-3 U-1
Utilisation) the Base Currency Amount 11:00 a.m. 11:00 a.m.
of the Loan, if required under Clause
5.4 (Lenders' and Fronting Banks'
participation)
Agent notifies the Lenders of the Loan U-3 U-3 U-1
in accordance with Clause 5.4 3:00 p.m 3:00 p.m. 1:00 p.m.
(Lenders' and Fronting Banks'
participation)
Agent receives a notification from a N/A U-2 U-1
Lender under Clause 7.2 9:30 a.m. 3:00 p.m.
(Unavailability of a currency)
Agent gives notice in accordance with N/A U-2 U-1
Clause 7.2 (Unavailability of a 10:00 a.m. 5:00 p.m.
currency)
Agent determines amount of the Loan in N/A - -
Optional Currency in accordance with
Clause 7.3 (Change of currency)
LIBOR is fixed Quotation Day as of Quotation Day as Quotation Day as of 11:00
11:00 a.m. London time of 11:00 a.m. a.m.
in respect of LIBOR
LIBOR
"U" = date of utilisation
"U - X" = X Business Days prior to date of utilisation
Part II
Bank Guarantees
Bank Guarantees
Delivery of a duly completed Utilisation Request U-3
(Clause 5.1 (Delivery of a Utilisation Request) 10:00 a.m.
Agent notifies the Lenders of the Bank Guarantee U-3
in accordance with Clause 5.4 (Lenders' and 1:00 p.m.
Fronting Banks' Participation)
SCHEDULE 12
SECURITY DOCUMENTS
1. A Debenture for each UK Obligor in an agreed form;
2. A U.S. Security Document for each U.S. Obligor in an agreed form;
3. A share pledge agreement for each Obligor in relation to its shareholding
in another Obligor;
4. Relevant stock transfer forms with respect from each Obligor in relation
to its shareholding; and
5. Any other document required to be entered into pursuant to any of the
above documents.
SIGNATURES
THE ORIGINAL BORROWER
BENFIELD GREIG GROUP PLC
By:
Address:
Fax:
THE ORIGINAL GUARANTOR
BENFIELD GREIG GROUP PLC
By:
Address:
Fax:
THE MANDATED LEAD ARRANGER
BARCLAYS CAPITAL
By:
Address:
Fax:
THE SECURITY TRUSTEE
BARCLAYS BANK PLC
By:
Address:
Attention:
THE AGENT
BARCLAYS BANK PLC
By:
Address:
Attention:
THE LENDERS
BARCLAYS BANK PLC