Exhibit 3
CONFORMED COPY
BRIDGE FACILITY AGREEMENT
DATED 14th APRIL, 2003
U.S.$14,000,000
BRIDGE FACILITY
for
OHSEA HOLDINGS LIMITED
PROVIDED BY
GMAC COMMERCIAL FINANCE PLC
ALLEN & OVERY
London
CONTENTS
Clause Page
- ------ ----
1. Interpretation...........................................................1
2. Facility.................................................................7
3. Purpose..................................................................7
4. The Scheme...............................................................7
5. Maximum Number of Loans..................................................9
6. Utilisation..............................................................9
7. Repayment...............................................................10
8. Prepayment and cancellation.............................................10
9. Interest................................................................11
10. Terms...................................................................12
11. Market disruption.......................................................13
12. Taxes...................................................................13
13. Increased Costs.........................................................16
14. Mitigation..............................................................16
15. Payments................................................................17
16. Representations.........................................................18
17. Information covenants...................................................20
18. General covenants.......................................................21
19. Default.................................................................23
20. Evidence and calculations...............................................26
21. FEES....................................................................27
22. Indemnities and break costs.............................................27
23. Expenses................................................................28
24. Amendments and waivers..................................................29
25. Changes to the Parties..................................................29
26. Disclosure of information...............................................30
27. Set-off.................................................................30
28. Severability............................................................31
29. Counterparts............................................................31
30. Notices.................................................................31
31. Governing law...........................................................32
Schedules
1. Pre-Signing.............................................................33
2. Form of Request.........................................................35
3. Form of Security Agreement..............................................36
4. Group Structure.........................................................47
Signatories..................................................................48
THIS AGREEMENT is dated 14th April, 2003
BETWEEN:
(1) OHSEA HOLDINGS LIMITED (registered number 4493380) (the Company); and
(2) GMAC COMMERCIAL FINANCE PLC as lender (the Lender).
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
In this Agreement:
Affiliate means a Subsidiary or a Holding Company of a person or any other
Subsidiary of that Holding Company.
Availability Period means the period from and including the date of this
Agreement to and including the Term Date.
Break Costs means the amount (if any) which the Lender is entitled to
receive under this Agreement as compensation if any part of the Loan or
overdue amount is prepaid.
Business Day means a day (other than a Saturday or a Sunday) on which banks
are open for general business in London and New York City.
Circular means the circular relating to the Scheme, to be distributed to
Target shareholders and option holders.
Commitment means U.S.$14,000,000 to the extent not cancelled, transferred
or reduced under this Agreement.
Court Meeting means the meeting of the holders of the Shares convened by
the order of the High Court of Justice and directed to consider and vote on
whether to approve the Scheme pursuant to Section 425 (and, if applicable
any adjournment of any such meeting or any further such meeting(s) convened
for such purposes.)
Default means:
(a) an Event of Default; or
(b) an event which would be (with the expiry of a grace period, the giving
of notice or the making of any determination under the Finance
Documents (provided it is capable of being made) in each case under
Clause 19 (Default) or any combination of them) an Event of Default.
EGM means the extraordinary general meeting of Target shareholders convened
to consider and vote on the resolutions necessary to implement the Scheme
(and, if applicable, any adjournment of the meeting or any further such
meetings convened for that purpose.)
Event of Default means an event specified as such in this Agreement.
1
Facility means the credit facility made available under this Agreement.
Facility Office means the office(s) through which the Lender will perform
its obligations under this Agreement.
Fee Letter means the fee letter between the Company and the Lender and to
be dated on or around the date of this Agreement.
Filing Date means the date upon which an office copy of the order of the
High Court of Justice sanctioning the Scheme under Section 425 is filed
with the Registrar of Companies for registration and confirming the
reduction of capital provided for by the Scheme under Section 137 of the
Companies Act 1985.
Final Maturity Date means the date falling 90 days after the Funding Date.
Finance Document means this Agreement, the Fee Letter, the Security
Agreement or any other document designated as such by the Lender and the
Company.
Financial Due Diligence Report means the report addressed to the Company
and the Lender and prepared by PricewaterhouseCoopers LLP on Target dated
4th March, 2003.
Financial Indebtedness means any indebtedness for or in respect of:
(a) moneys borrowed;
(b) any acceptance credit;
(c) any bond, note, debenture, loan stock or other similar instrument;
(d) any redeemable preference share;
(e) any finance or capital lease;
(f) receivables sold or discounted (otherwise than on a non-recourse
basis);
(g) the acquisition cost of any asset to the extent payable after its
acquisition or possession by the party liable where the deferred
payment is arranged primarily as a method of raising finance or
financing the acquisition of that asset;
(h) any derivative transaction protecting against or benefiting from
fluctuations in any rate or price (and, except for non-payment of an
amount, the then mark to market value of the derivative transaction
will be used to calculate its amount);
(i) any other transaction (including any forward sale or purchase
agreement) which has the commercial effect of a borrowing;
(j) any counter-indemnity obligation in respect of any guarantee,
indemnity, bond, letter of credit or any other instrument issued by a
bank or financial institution; or
(k) any guarantee, indemnity or similar assurance against financial loss
of any person in respect of any item referred to in paragraphs (a) to
(j) above.
Funding Date means the date upon which the Scheme is funded, being no later
than 14 days after the Filing Date.
2
GAAP means generally accepted accounting principles in the UK.
Group means the Company and its Subsidiaries.
Holding Company means a holding company within the meaning of section 736
of the Companies Act 1985.
Increased Cost means:
(a) an additional or increased cost;
(b) a reduction in the rate of return under a Finance Document or on its
overall capital; or
(c) a reduction of an amount due and payable under any Finance Document,
which is incurred or suffered by the Lender or any of its Affiliates but
only to the extent attributable to the Lender having entered into any
Finance Document or funding or performing its obligations under any Finance
Document.
Legal Due Diligence Report means the report on Target addressed to the
Company, C.S. Services Limited, the Lender, and GMAC Commercial Finance LLC
and prepared by Allen & Overy, dated on or around 14th April, 2003.
LIBOR means for a Term of the Loan or overdue amount the rate quoted by the
Lender to leading banks in the London interbank market as of 11.00 a.m. on
the Rate Fixing Day for the offering of deposits in U.S. Dollars for a
period comparable to that Term.
Loan means, unless otherwise stated in this Agreement, the principal amount
of borrowing under this Agreement or the principal amount outstanding of
that borrowing.
Margin means 3.250 per cent. per annum. The Margin will automatically rise
to 3.75 per cent. per annum on the Final Maturity Date.
Material Adverse Effect means a material adverse effect on:
(a) the business or financial condition of the Group as a whole;
(b) the ability of the Company to perform its material obligations under
any Finance Document; or
(c) the validity or enforceability of any Finance Document.
Material Subsidiary means, at any time, a Subsidiary of the Company whose
turnover (excluding intra-Group items) then equals or exceeds 10 per cent.
of the consolidated turnover of the Group.
For this purpose:
(a) the turnover of a Subsidiary of the Company will be determined from
its financial statements (unconsolidated if it has Subsidiaries) upon
which the latest audited financial statements of the Group have been
based;
3
(b) if a Subsidiary of the Company becomes a member of the Group after the
date on which the latest audited financial statements of the Group
have been prepared, the turnover of that Subsidiary will be determined
from its latest financial statements;
(c) the turnover of the Group will be determined from its latest audited
financial statements, adjusted (where appropriate) to reflect the
turnover of any company or business subsequently acquired or disposed
of; and
(d) if a Material Subsidiary disposes of all or substantially all of its
assets to another Subsidiary of the Company, it will immediately cease
to be a Material Subsidiary and the other Subsidiary (if it is not
already) will immediately become a Material Subsidiary; the subsequent
financial statements of those Subsidiaries and the Group will be used
to determine whether those Subsidiaries are Material Subsidiaries or
not.
If there is a dispute as to whether or not a company is a Material
Subsidiary, a certificate of the auditors of the Company will be, in the
absence of manifest error, conclusive.
Original Press Release means the press release proposed to be released by
the Company on or about 15th April, 2003 relating to the Scheme.
Party means a party to this Agreement.
Rate Fixing Day means the second Business Day before the first day of a
Term for the Loan or such other day as the Lender determines is generally
treated as the rate fixing day by market practice in the relevant interbank
market.
Repeating Representations means any of the following representations
contained in the Agreement: (i) 16.2 (Status); 16.3 (Powers and Authority);
16.4 (Legal Validity) 16.5 (Non-conflict); 16.6 (No Default); and 16.7
(Authorisations).
Request means the request for the Loan, substantially in the form of
Schedule 2 (Form of Request).
Scheme means the scheme of arrangement proposed to be made by Target and
the holders of the Shares pursuant to Section 425 as described in the
Original Press Release and the Circular.
Scheme Costs means all banking, financial advisory, brokerage, foreign
exchange hedging, accountancy, legal, public relations and other fees and
commissions, out-of pocket costs and expenses and stamp registration,
transfer and similar taxes incurred by or on behalf of the Company in
connection with the Scheme or otherwise in connection with the negotiation,
preparation, execution and implementation of the Scheme and the Finance
Documents.
Section 425 means section 425 of the Companies Act 1985.
Security Agreement means a security agreement in the form of Schedule 3
(Form of Security Agreement).
Security Interest means any mortgage, pledge, lien, charge, assignment,
hypothecation or security interest or any other agreement or arrangement
having a similar effect.
Shares means the shares in the capital of the Target to be cancelled under
the Scheme in the event that the Scheme becomes effective or any other
shares in the Target which are acquired by the Company for cash, whether by
exercise of any options or otherwise.
4
Sterling means the lawful currency for the time being of the United
Kingdom.
Subsidiary means:
(a) a subsidiary within the meaning of section 736 of the Companies Act
1985; and
(b) unless the context otherwise requires, a subsidiary undertaking within
the meaning of section 258 of the Companies Act 1985.
Target means Professional Staff PLC (Registered number 2459997).
Take Out Facilities has the meaning given to it in Clause 18.11
(De-listing, de-registration and re-incorporation of Target)
Tax means any tax, levy, impost, duty or other charge or withholding of a
similar nature (including any related penalty or interest).
Tax Deduction means a deduction or withholding for or on account of Tax
from a payment under a Finance Document.
Tax Payment means a payment made by the Company to the Lender in any way
related to a Tax Deduction or under any indemnity given by the Company in
respect of Tax under any Finance Document.
Term means each period determined under this Agreement by reference to
which interest on the Loan or an overdue amount is calculated.
Term Date means the date following six months from the date of this
Agreement.
U.K. means the United Kingdom.
U.S. Dollars and U.S.$ means the lawful currency for the time being of the
United States of America.
Utilisation Date means the date on which the Facility is utilised.
1.2 Construction
(a) In this Agreement, unless the contrary intention appears, a reference to:
(i) an amendment includes a supplement, novation, restatement or
re-enactment and amended will be construed accordingly;
assets includes present and future properties, revenues and rights of
every description;
an authorisation includes an authorisation, consent, approval,
resolution, licence, exemption, filing, registration or notarisation;
disposal means a sale, transfer, grant, lease or other disposal,
whether voluntary or involuntary, and dispose will be construed
accordingly;
indebtedness includes any obligation (whether incurred as principal or
as surety) for the payment or repayment of money;
5
a person includes any individual, company, corporation, unincorporated
association or body (including a partnership, trust, joint venture or
consortium), government, state, agency, organisation or other entity
whether or not having separate legal personality;
a regulation includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law but, if
not having the force of law, being of a type with which any person to
which it applies is accustomed to comply) of any governmental,
inter-governmental or supranational body, agency, department or
regulatory, self-regulatory or other authority or organisation;
(ii) a currency is a reference to the lawful currency for the time being of
the relevant country;
(iii) a Default being outstanding means that it has not been remedied or
waived;
(iv) a provision of law is a reference to that provision as extended,
applied, amended or re-enacted and includes any subordinate
legislation;
(v) a Clause, a Subclause or a Schedule is a reference to a clause or
subclause of, or a schedule to, this Agreement;
(vi) a person includes its successors in title, permitted assigns and
permitted transferees;
(vii) a Finance Document or another document is a reference to that Finance
Document or other document as amended; and
(viii) a time of day is a reference to London time.
(b) Unless the contrary intention appears, a reference to a month or months is
a reference to a period starting on one day in a calendar month and ending
on the numerically corresponding day in the next calendar month or the
calendar month in which it is to end, except that:
(i) if the numerically corresponding day is not a Business Day, the period
will end on the next Business Day in that month (if there is one) or
the preceding Business Day (if there is not);
(ii) if there is no numerically corresponding day in that month, that
period will end on the last Business Day in that month; and
(iii) notwithstanding sub-paragraph (i) above, a period which commences on
the last Business Day of a month will end on the last Business Day in
the next month or the calendar month in which it is to end, as
appropriate.
(c) Unless expressly provided to the contrary in a Finance Document, a person
who is not a party to a Finance Document may not enforce any of its terms
under the Contracts (Rights of Third Parties) Act 1999 and notwithstanding
any term of any Finance Document, the consent of any third party is not
required for any variation (including any release or compromise of any
liability) or termination of that Finance Document.
(d) Unless the contrary intention appears:
(i) a reference to a Party will not include that Party if it has ceased to
be a Party under this Agreement;
6
(ii) a word or expression used in any other Finance Document or in any
notice given in connection with any Finance Document has the same
meaning in that Finance Document or notice as in this Agreement; and
(iii) any obligation of the Company under the Finance Documents which is
not a payment obligation remains in force for so long as any payment
obligation of the Company is or may be outstanding under the Finance
Documents.
(e) The headings in this Agreement do not affect its interpretation.
2. FACILITY
Subject to the terms of this Agreement, the Lender makes available to the
Company a term loan facility in an amount equal to the Commitment.
3. PURPOSE
3.1 Loan
The Loan may only be used, first, to finance the acquisition of the Shares
and, to the extent that any amount of the Loan remains after the
acquisition of the Shares has been financed, to finance the Scheme Costs.
3.2 No obligation to monitor
The Lender is not bound to monitor or verify the utilisation of the
Facility.
4. THE SCHEME
4.1 Defined terms
In this Subclause:
Certain Funds Period means the period beginning on the date of this
Agreement and ending on (and including) the earlier of:
(a) the Funding Date; and
(b) the Term Date.
Code means The City Code on Takeovers and Mergers.
Major Breach means a breach of Clause 4.6 (Amendments and waivers of the
Scheme)
Major Default means any of the following Events of Default:
(a) Clause 19.2 (Non-payment) but limited to the failure to make payments
to be made under Clause 21 (Fees);
(b) Clause 19.3 (Breach of other obligations) but only as the result of a
Major Breach;
(c) Clause 19.4 (Misrepresentation) but only as the result of a Major
Representation;
(d) Clauses 19.6 (Insolvency) and 19.7 (Insolvency proceedings) but, in
either case, only insofar as (i) the Company takes any corporate
action or commences legal
7
proceedings for its own winding-up, dissolution, administration or
insolvent reorganisation, (ii) an order is made for the winding-up,
dissolution, administration or insolvent reorganisation of the
Company, or (iii) a liquidator, receiver; administrator, or
administrative receiver is appointed in respect of the Company or all
or substantially all of its assets or revenues; and
(e) Clause 19.10 (Effectiveness of Finance Documents), save that, for
these purposes Clause 19.10(b) should read "the Company repudiates a
Finance Document".
Major Representation means any of the following representations contained
in this Agreement:
(a) Clause 16.2 (Status) other than Clause 16.2(c);
(b) Clause 16.3 (Powers and authority); or
(c) Clause 16.4 (Legal validity).
Panel means the Panel on Takeovers and Mergers.
Target Group means the Target and its Subsidiaries.
4.2 Press releases
(a) The Company must issue the Original Press Release on the date following the
date of this Agreement.
(b) Unless required by any law or regulation (including the Code), the rules of
the Nasdaq National Market or as required by the Panel, the Company must
not make any statement or announcement (other than the Original Press
Release) containing any information or statement concerning the Finance
Documents or the Lender without the prior approval of the Lender. The
approval of the Lender must not be unreasonably withheld or delayed.
4.3 Conditions precedent
(a) The Request for the Loan may not be given until the Lender has received all
of the documents and evidence set out in paragraph (b) below.
(b) The documents and evidence referred to in paragraph (a) above are as
follows:
(i) a copy of registration of the Scheme from the Registrar of Companies;
and
(ii) a certified copy of the order of the High Court of Justice sanctioning
the Scheme under Section 425.
The Lender will confirm receipt of the documents to the Company on receipt.
4.4 Certain Funds
(a) Notwithstanding any term of this Agreement, during the Certain Funds Period
the Lender is not entitled to:
(i) refuse to make available the Loan;
8
(ii) cancel the Commitment;
(iii) exercise any right of rescission or similar right or remedy which it
may have in relation to the Loan or this Agreement; or
(iv) accelerate or cause repayment of the Loan,
except as provided below in this Subclause.
(b) Paragraph (a) does not apply, and the Lender shall be entitled to (i)
refuse to make available the Loan, (ii) cancel the Commitment, (iii)
exercise any right of rescission or similar right or remedy which it may
have in relation to a Loan or (iv) accelerate or cause repayment of the
Loan, if the entitlement arises because:
(i) a Major Representation is not correct in any material respect or will
not be correct in any material respect immediately after the Loan is
made;
(ii) a Major Default is outstanding or will result from the making of the
Loan; or
(iii) it is unlawful for the Lender to make available the Loan.
(c) Nothing in this Subclause will affect the rights of the Lender in respect
of any outstanding Default upon expiry of the Certain Funds Period
irrespective of whether that Default occurred during the Certain Funds
Period or not. Nor shall this Subclause affect the rights of the Lender to
charge default interest in compliance with Clause 9.3 (Interest on overdue
amounts).
4.5 Compliance
The Company must comply in all material respects with the Companies Act
1985, the Code and any applicable U.S. legislation in relation to the
Scheme, as they shall be applicable to the Company.
4.6 Amendments and waivers of the Scheme
(a) The Company must not waive or amend any condition of the Scheme in any
material respect without the consent of the Lender.
(b) In giving or withholding its consent to any requested waiver or amendment
of any condition of the Scheme, the Lender will treat itself as bound by
Rule 13 of the Code as if it were subject to the jurisdiction of the Panel.
5. MAXIMUM NUMBER OF LOANS
Only one Loan may be borrowed.
6. UTILISATION
6.1 Giving of Request
(a) The Company may borrow the Loan by giving to the Lender a duly completed
Request.
9
(b) Unless the Lender otherwise agrees, the latest time for receipt by the
Lender of a duly completed Request is 11.00 a.m. one Business Day before
the Rate Fixing Day for the proposed borrowing.
(c) The Request is irrevocable.
6.2 Completion of the Request
The Request for the Loan will not be regarded as having been duly completed
unless:
(a) the Utilisation Date is a Business Day falling within the Availability
Period; and
(b) the proposed Term complies with the terms of this Agreement.
6.3 Advance of Loan
If the conditions set out in this Agreement have been met, the Lender must
make the Loan available to the Company on the Utilisation Date.
7. REPAYMENT
The Company must repay the Loan in full on or before the Final Maturity
Date.
8. PREPAYMENT AND CANCELLATION
8.1 Mandatory prepayment - illegality
(a) The Lender must notify the Company promptly if it becomes aware that it is
unlawful for the Lender to perform any of its obligations under a Finance
Document or to fund or maintain the Loan.
(b) After notification under paragraph (a) above:
(i) the Company must repay or prepay the Lender the Loan made to it on the
date specified in paragraph (c) below; and
(ii) the Commitment will be immediately cancelled.
(c) The date for repayment or prepayment of the Loan will be:
(i) the Business Day following receipt by the Company of notice from the
Lender; or
(ii) if later, the latest date allowed by the relevant law.
8.2 Voluntary prepayment
The Company may, by giving not less than two Business Days' prior notice to
the Lender, prepay the Loan at any time in whole.
8.3 Automatic cancellation
The Commitment will be automatically cancelled at the close of business on
the last day of the Availability Period.
10
8.4 Involuntary prepayment and cancellation
(a) If the Company is, or will be, required to pay to the Lender a Tax Payment
or an Increased Cost, the Company may, while the requirement continues,
give notice to the Lender requesting prepayment and cancellation.
(b) After notification under paragraph (a) above:
(i) the Company must repay or prepay the Loan made to it on the date
specified in paragraph (c) below; and
(ii) the Commitment will be immediately cancelled.
(c) The date for repayment or prepayment of the Loan will be the last day of
the current Term for the Loan or, if earlier, the date specified by the
Company in its notification.
8.5 Partial prepayment of Loan
No amount of the Loan prepaid under this Agreement may subsequently be
re-borrowed.
8.6 Miscellaneous provisions
(a) Any notice of prepayment and/or cancellation under this Agreement is
irrevocable and must specify the relevant date(s).
(b) All prepayments under this Agreement must be made with accrued interest on
the amount prepaid. No premium or penalty is payable in respect of any
prepayment except for Break Costs.
(c) No prepayment or cancellation is allowed except in accordance with the
express terms of this Agreement.
(d) No amount of the Commitment cancelled under this Agreement may subsequently
be reinstated.
9. INTEREST
9.1 Calculation of interest
The rate of interest on the Loan for each Term is the percentage rate per
annum equal to the aggregate of the applicable:
(a) Margin; and
(b) LIBOR.
9.2 Payment of interest
Except where it is provided to the contrary in this Agreement, the Company
must pay accrued interest on the Loan made to it quarterly in arrears.
11
9.3 Interest on overdue amounts
(a) If the Company fails to pay any amount payable by it under the Finance
Documents, it must immediately on demand by the Lender pay interest on the
overdue amount from its due date up to the date of actual payment, both
before, on and after judgment.
(b) Interest on an overdue amount is payable at a rate determined by the Lender
to be one per cent. per annum above 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 this purpose, the Lender
may (acting reasonably):
(i) select successive Terms of any duration of up to three months; and
(ii) determine the appropriate Rate Fixing Day for that Term.
(c) Notwithstanding paragraph (b) above, if the overdue amount is the principal
amount of the Loan and becomes due and payable prior to the last day of its
current Term, then:
(i) the first Term for that overdue amount will be the unexpired portion
of that Term; and
(ii) the rate of interest on the overdue amount for that first Term will be
one per cent. per annum above the rate then payable on that Loan.
After the expiry of the first Term for that overdue amount, the rate on the
overdue amount will be calculated in accordance with paragraph (b) above.
(d) Interest (if unpaid) on an overdue amount will be compounded with that
overdue amount at the end of each of its Terms but will remain immediately
due and payable.
9.4 Notification of rates of interest
The Lender must promptly notify the Company of the determination of a rate
of interest under this Agreement.
10. TERMS
10.1 Selection
(a) The Loan has successive Terms.
(b) The Company must select the first Term for the Loan in the Request and each
subsequent Term in an irrevocable notice received by the Lender not later
than 11.00 a.m. one Business Day before the Rate Fixing Day for that Term.
Each Term for the Loan will start on the earlier of (i) its Utilisation
Date, or (ii) on the expiry of its preceding Term.
(c) If the Company fails to select a Term for the outstanding Term Loan under
paragraph (b) above, that Term will, subject to the other provisions of
this Clause, be one month.
(d) Subject to the following provisions of this Clause, each Term for the Loan
will be a number of days up to seven days, one or two weeks or one, two or
three months or any other period agreed by the Company and the Lender.
12
10.2 No overrunning the Final Maturity Date
If a Term would otherwise overrun the Final Maturity Date, it will be
shortened so that it ends on the Final Maturity Date.
10.3 Other adjustments
The Lender and the Company may enter into such other arrangements as they
may agree for the adjustment of Terms.
11. MARKET DISRUPTION
11.1 Market disruption
(a) If the Lender determines that adequate and fair means do not exist for
ascertaining LIBOR for the Loan, it must promptly notify the Company.
(b) After notification under paragraph (a) above, the rate of interest on the
Loan for the relevant Term will be the aggregate of the applicable:
(i) Margin; and
(ii) rate notified by the Lender to the Company as soon as practicable, and
in any event before interest is due to be paid in respect of that
Term, to be that which expresses as a percentage rate per annum the
cost to the Lender of funding the Loan from whatever source it may
reasonably select.
11.2 Alternative basis
(a) After receipt of any notification under this Clause, if the Lender or the
Company so requires, the Company and the Lender must enter into
negotiations for a period of not more than 30 days with a view to agreeing
an alternative basis for determining the rate of interest and/or funding
for the Loan.
(b) Any alternative basis agreed will be binding on each Party.
12. TAXES
12.1 General
In this Clause:
Qualifying Lender means:
(a) a bank which is within the charge to U.K. corporation tax in respect
of, and beneficially entitled to, a payment of interest on a Loan made
by a person that was a bank for the purposes of section 349 of the
Income and Corporation Taxes Act 1988 (as currently defined in section
840A of the Income and Corporation Taxes Act 1988) at the time the
Loan was made;
(b) a company resident in the U.K. for tax purposes;
(c) a partnership each member of which is a company resident in the U.K.
for tax purposes; or
13
(d) a company not resident in the U.K. for tax purposes which carries on a
trade in the U.K. through a branch or agency and brings into account
payments made to it under this Agreement in computing its chargeable
profits for the purpose of section 11(2) of the Income and Corporation
Taxes Act 1988,
which, in the case of (b), (c) and (d), is beneficially entitled to
payments made to it under this Agreement and which has provided to the
Company and not retracted confirmation of the above.
Tax Credit means a credit against any Tax or any relief or remission for
Tax (or its repayment).
12.2 Tax gross-up
(a) The Company must make all payments to be made by it under the Finance
Documents without any Tax Deduction, unless a Tax Deduction is required by
law.
(b) If:
(i) the Lender is not, or ceases to be, a Qualifying Lender; or
(ii) the Company or the Lender is aware that the Company must make a Tax
Deduction (or that there is a change in the rate or the basis of a Tax
Deduction),
then it must promptly notify the other Party.
(c) Except as provided below, if a Tax Deduction is required by law to be made
by the Company or the Lender, the amount of the payment due from the
Company will be increased to an amount which (after making the Tax
Deduction) leaves an amount equal to the payment which would have been due
if no Tax Deduction had been required.
(d) Except as provided below, the Company is not required to make an increased
payment under paragraph (c) above to a Lender that is not, or has ceased to
be, a Qualifying Lender in excess of the amount that the Company would have
had to pay has the Lender been, or not ceased to be, a Qualifying Lender.
(e) Paragraph (d) above will not apply if the Lender has ceased to be a
Qualifying Lender by reason of any change after the date it became a Lender
under this Agreement in (or in the interpretation, administration, or
application of) any law or double taxation agreement or any published
practice or concession of any relevant taxing authority.
(f) If the Company is required to make a Tax Deduction, it must make the
minimum Tax Deduction and must make any payment required in connection with
that Tax Deduction within the time allowed by law.
(g) Within 30 days of making either a Tax Deduction or a payment required in
connection with a Tax Deduction, the Company must deliver to the Lender
evidence satisfactory to the Lender (acting reasonably) that the Tax
Deduction has been made or (as applicable) the appropriate payment has been
paid to the relevant taxing authority.
(h) Any confirmation by the Lender of its status for the purpose of paragraphs
(b), (c) and (d) of the definition of Qualifying Lender must be given to
the Company on or promptly after the date it becomes the Lender. The Lender
must promptly notify the Company of any change to its status that may
affect any confirmation made by it.
14
12.3 Tax indemnity
(a) Except as provided below, the Company must indemnify the Lender against any
loss or liability which the Lender reasonably determines will be or has
been suffered by it for or on account of Tax in relation to a payment
received or receivable (or any payment deemed to be received or receivable)
under a Finance Document.
(b) Paragraph (a) above does not apply to any Tax assessed on the Lender under
the laws of the jurisdiction in which:
(i) the Lender is incorporated or, if different, the jurisdiction (or
jurisdictions) in which the Lender is treated as resident for tax
purposes; or
(ii) the Lender's Facility Office is located in respect of amounts received
or receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net income
received or receivable by the Lender. However, any payment deemed to be
received or receivable, including any amount treated as income but not
actually received by the Lender, such as a Tax Deduction, will not be
treated as net income received or receivable for this purpose.
(c) If the Lender makes, or intends to make, a claim under paragraph (a) above,
it must promptly notify the Company of the event which will give, or has
given, rise to the claim and provide evidence of its calculations.
12.4 Tax Credit
If the Company makes a Tax Payment and the Lender (in its absolute
discretion) determines that:
(a) a Tax Credit is attributable to that Tax Payment; and
(b) it has used and retained that Tax Credit,
the Lender must pay an amount to the Company which the Lender determines
(in its absolute discretion) will leave it (after that payment) in the same
after-tax position as it would have been if the Tax Payment had not been
made by the Company.
12.5 Stamp taxes
The Company must pay and indemnify the Lender against any stamp duty,
registration or other similar Tax payable in connection with the entry
into, performance or enforcement of any Finance Document.
12.6 Value added taxes
(a) Any amount (including costs and expenses) payable under a Finance Document
by the Company is exclusive of any value added tax or any Tax of a similar
nature which might be chargeable in connection with that amount. If any
such Tax is chargeable, the Company must pay to the Lender (in addition to
and at the same time as paying that amount) an amount equal to the amount
of that Tax.
15
(b) The obligation of the Company under paragraph (a) above will be reduced to
the extent that the Lender determines (acting reasonably) that it is
entitled to repayment or a credit in respect of the relevant Tax.
13. INCREASED COSTS
13.1 Increased Costs
Except as provided below in this Clause, the Company must pay to the Lender
the amount of any Increased Cost incurred by the Lender or any of its
Affiliates as a result of:
(a) the introduction of, or any change in, or any change in the
interpretation or application of, any law or regulation; or
(b) compliance with any law or regulation,
made after the date of this Agreement.
13.2 Exceptions
The Company need not make any payment for an Increased Cost to the extent
that the Increased Cost is:
(a) compensated for under another Clause or would have been but for an
exception to that Clause;
(b) a tax on the overall net income of the Lender or any of its
Affiliates; or
(c) attributable to the Lender or any of its Affiliates failing to comply
with any law or regulation.
13.3 Claims
The Lender must notify the Company promptly of the circumstances giving
rise to, and the amount of, the claim.
14. MITIGATION
14.1 Mitigation
(a) The Lender must, in consultation with the Company, take all reasonable
steps to mitigate any circumstances which arise and which result or would
result in:
(i) any Tax Payment or Increased Cost being payable to the Lender;
(ii) the Lender being able to exercise any right of prepayment and/or
cancellation under this Agreement by reason of any illegality; or
(iii) the Lender incurring any cost of complying with the minimum reserve
requirements of the European Central Bank,
including transferring its rights and obligations under the Finance
Documents to an Affiliate or changing its Facility Office.
16
(b) The Company must indemnify the Lender for all costs and expenses reasonably
incurred by it as a result of any step taken by it under this Subclause.
(c) The Lender is not obliged to take any step under this Subclause if, in its
opinion (acting reasonably), to do so might be prejudicial to it.
14.2 Conduct of business by the Lender
No term of this Agreement will:
(a) interfere with the right of the Lender to arrange its affairs (Tax or
otherwise) in whatever manner it thinks fit;
(b) oblige the Lender to investigate or claim any credit, relief,
remission or repayment available to it in respect of Tax or the
extent, order and manner of any claim; or
(c) oblige the Lender to disclose any information relating to its affairs
(Tax or otherwise).
15. PAYMENTS
15.1 Place
Unless a Finance Document specifies that payments under it are to be made
in another manner, all payments under a Finance Document must be made to
the relevant Party to its account at such office or bank in the principal
financial centre of the country of the relevant currency as it may notify
to the other Party for this purpose by not less than five Business Days'
prior notice.
15.2 Funds
Payments under the Finance Documents to the Lender must be made for value
on the due date at such times and in such funds as the Lender may specify
to the Company as being customary at the time for the settlement of
transactions in the relevant currency in the place for payment.
15.3 Currency
(a) Unless a Finance Document specifies that payments under it are to be made
in a different manner, the currency of each amount payable under the
Finance Documents is determined under this Clause.
(b) Interest is payable in the currency in which the relevant amount in respect
of which it is payable is denominated.
(c) A repayment or prepayment of any principal amount is payable in the
currency in which that principal amount is denominated on its due date.
(d) Amounts payable in respect of costs and expenses are payable in the
currency in which they are invoiced.
(e) Each other amount payable under the Finance Documents is payable in U.S.
Dollars.
17
15.4 No set-off or counterclaim
All payments made by the Company under the Finance Documents must be made
without set-off or counterclaim.
15.5 Business Days
(a) If a payment under the Finance Documents is due on a day which is not a
Business Day, the due date for that payment will instead be the next
Business Day in the same calendar month (if there is one) or the preceding
Business Day (if there is not) or whatever day the Lender determines is
market practice.
(b) During any extension of the due date for payment of any principal under
this Agreement interest is payable on that principal at the rate payable on
the original due date.
15.6 Timing of payments
If a Finance Document does not provide for when a particular payment is
due, that payment will be due within three Business Days of demand by the
Lender.
16. REPRESENTATIONS
16.1 Representations
The representations set out in this Clause are made by the Company to the
Lender.
16.2 Status
(a) It is a limited liability company, duly incorporated and validly existing
under the laws of England and Wales.
(b) It has the power to own its assets and carry on its business as it is being
conducted.
(c) Since the date of its incorporation, it has not traded.
16.3 Powers and authority
It has the power to enter into and perform, and has taken all necessary
action to authorise the entry into and performance of, the Finance
Documents to which it is a party.
16.4 Legal validity
Subject to any general principles of law limiting its obligations and
referred to in any legal opinion required under this Agreement, each
Finance Document to which it is a party is its legally binding, valid and
enforceable obligation.
16.5 Non-conflict
The entry into and performance by it of, and the transactions contemplated
by, the Finance Documents do not conflict with:
(a) any law or regulation applicable to it;
(b) its constitutional documents; or
18
(c) any document which is binding upon it or any of its assets,
in each case, in a manner which is likely to have a Material Adverse
Effect.
16.6 No default
(a) No Default is outstanding or will result from the execution of, or the
performance of any transaction contemplated by, any Finance Document; and
(b) no other event is outstanding which constitutes a default under any
document which is binding on it or any of its Subsidiaries or any of its or
its Subsidiaries' assets to an extent or in a manner which is reasonably
likely to have a Material Adverse Effect.
16.7 Authorisations
Except for registration of the Security Agreement under the Companies Act
1985, all authorisations required by it in connection with the entry into,
performance, validity and enforceability of, and the transactions
contemplated by, the Finance Documents have been obtained or effected (as
appropriate) and are in full force and effect.
16.8 Litigation
Except as previously disclosed to the Lender, in relation to potential
litigation in California against S. Com Inc. and Target relating to the
payment of overtime premiums, no litigation, arbitration or administrative
proceedings are current or, to its knowledge, pending or threatened, which
are reasonably likely to have a Material Adverse Effect.
16.9 Information
(a) All information supplied by it to the Lender about itself in connection
with the Finance Documents is true and accurate in all material respects as
at its date or (if appropriate) as at the date (if any) at which it is
stated to be given; and
(b) it has not omitted to supply any information about itself which, if
disclosed, might make the information supplied untrue or misleading in any
material respect.
16.10 Taxes on payments
As at the date of this Agreement, all amounts payable by it under the
Finance Documents may be made without any Tax Deduction, provided the
Lender is a Qualifying Lender (as defined in Clause 12 (Taxes)).
16.11 Stamp duties
As at the date of this Agreement, no stamp or registration duty of similar
Tax or charge is payable in its jurisdiction of incorporation in respect of
any Finance Document.
16.12 Group Structure
So far as the Company is aware, immediately following the date upon which
the Scheme becomes effective, the Group will comprise the companies listed
in, and the structure of the Group will be as set out in, Schedule 4 (Group
structure) (ignoring for the purposes of this representation, Subsidiaries
of the Target which are disposed of, liquidated or acquired between the
date of this Agreement and that time).
19
16.13 Times for making representations
(a) The representations set out in this Clause are made by the Company on the
date of this Agreement.
(b) The Repeating Representations are deemed to be repeated by the Company on
the date of the Request and the first day of each Term.
(c) When a representation is repeated, it is applied to the circumstances
existing at the time of repetition.
17. INFORMATION COVENANTS
17.1 Financial statements
(a) The Company must supply to the Lender:
(i) its monthly management accounts comprising the summarised trading
results and summarised cash flow statements;
(ii) its annual projections; and
(iii) an aggregated closing balance sheet which must be supplied within
three months of the acquisition by the Company of the Target, prepared
by the Company and reviewed by PricewaterhouseCoopers LLP.
(b) All financial statements must be supplied as soon as they are available and
in the case of the Company's monthly management accounts, within 20 days of
the end of the relevant financial period.
17.2 Form of financial statements
(a) The Company must ensure that each set of financial statements supplied
under this Agreement fairly represents its financial condition
(consolidated or otherwise) as at the date to which those financial
statements were drawn up.
(b) The Company shall procure that each set of financial statements is prepared
using GAAP.
17.3 Information - miscellaneous
The Company must supply to the Lender:
(a) promptly upon becoming aware of them, details of any litigation,
arbitration or administrative proceedings which are current,
threatened or pending and which might, if adversely determined, have a
Material Adverse Effect;
(b) promptly on request, a list of the then current Material Subsidiaries;
and
(c) promptly on request, such further information regarding the financial
condition and operations of the Group as the Lender may reasonably
request.
20
17.4 Notification of Default
(a) The Company must notify the Lender of any Default (and the steps, if any,
being taken to remedy it) promptly upon becoming aware of its occurrence.
(b) Promptly on request by the Lender, the Company must supply to the Lender a
certificate, signed by two of its authorised signatories on its behalf,
certifying that no Default is outstanding or, if a Default is outstanding,
specifying the Default and the steps, if any, being taken to remedy it.
18. GENERAL COVENANTS
18.1 General
The Company agrees to be bound by the covenants set out in this Clause
relating to it and, where the covenant is expressed to apply to each member
of the Group, the Company must ensure that each of its Subsidiaries
performs that covenant.
18.2 Authorisations
The Company must promptly obtain, maintain and comply with the terms of any
authorisation required under any law or regulation to enable it to perform
its obligations under, or for the validity or enforceability of, any
Finance Document.
18.3 Compliance with laws
Each member of the Group must comply in all respects with all laws to which
it is subject including without limitation, prompt payment of all taxes
including VAT and PAYE, health and safety legislation, and employee
legislation (including the Working Overtime Directive), in each case where
failure to do so is reasonably likely to have a Material Adverse Effect.
18.4 Pari passu ranking
The Company must ensure that its payment obligations under the Finance
Documents rank at least pari passu with all its other present and future
unsecured payment obligations, except for obligations mandatorily preferred
by law applying to companies generally.
18.5 Negative pledge
(a) Except as provided below, no member of the Group may create or allow to
exist any Security Interest on any of its assets.
(b) Paragraph (a) does not apply to:
(i) any Security Interest constituted by the Security Agreement;
(ii) any Security Interest comprising a netting or set-off arrangement
entered into by a member of the Group in the ordinary course of its
banking arrangements for the purpose of netting debit and credit
balances;
(iii) any lien arising by operation of law and in the ordinary course of
business; and
(iv) any Security Interest on an asset, or an asset of any person, acquired
by a member of the Group after the date of this Agreement (including
pursuant to the Scheme) but
21
only for the period of six months from the date of acquisition and to
the extent that the principal amount secured by that Security Interest
has not been incurred or increased in contemplation of, or since, the
acquisition.
18.6 Mergers
The Company may not enter into any amalgamation, joint venture, demerger,
merger or reconstruction otherwise than the Scheme or under an intra-Group
re-organisation on a solvent basis or other transaction or otherwise
precisely consented to by the Lender (such consent not being unreasonably
withheld).
18.7 Acquisitions
(a) Except as provided below, no member of the Group may make any acquisition
or investment.
(b) Paragraph (a) does not apply to:
(i) acquisitions or investments made in the ordinary course of trade;
(ii) acquisitions pursuant to the Scheme;
(iii) acquisitions where the consideration (when aggregated with the
consideration of any other acquisition not allowed under the preceding
sub-paragraphs) does not exceed U.S.$100,000 or its equivalent in any
financial year of the Company.
18.8 Insurance
Each member of the Group must insure its business and assets with insurance
companies to such an extent and against such risks as companies engaged in
a similar business normally insure, except that: (i) this shall not include
any insurance in relation to book debts or other receivables; and (ii)
Subsidiaries acquired pursuant to the Scheme shall have one month from the
date of the Scheme becoming effective, to obtain such insurance.
18.9 Dividends and Distributions
The Company must obtain prior written approval from the Lender if it is to
pay coupons, dividends and/or redeem any shares in excess of (pound)25,000
in any rolling period of 12 months.
18.10 Intellectual Property
The Company will comply with material obligations in relation to any
intellectual property rights it has.
18.11 De-listing, de-registration and re-incorporation of Target
The Company shall procure that Target shall, as soon as is reasonably
practicable, after the Funding Date:
(a) be de-listed and de-registered from the Nasdaq National Market;
(b) be re-incorporated as a private limited company under the Companies
Act 1985; and
(c) so far as legally possible, complete all necessary procedures under
sections 155-158 of the Companies Act 1985, to enable Target and its
relevant Subsidiaries and the
22
Company to repay the Loan using the cash of the Target Group and the
proceeds of drawings under a new(pound)10,000,000 multi currency
invoice discount facilities with the Lender and GMAC Commercial
Finance LLC (the Take Out Facilities) to be on the terms substantially
agreed between the Company, the Lender and GMAC Commercial Finance LLC
pursuant to the term sheet dated 22 January, 2003 (as updated by a
revised draft dated 3rd April, 2003) , and to do all such things, so
far as legally possible, including the making of intra group loans and
the provision of security and the satisfaction of the conditions to
the Take Out Facilities, and the payment of fees, as are necessary or
desirable for this purpose.
18.12 Security
In the event that the Loan is not repaid in full by the Final Maturity
Date, the Company will use all reasonable efforts to procure that, so far
as legally possible and practicable, each of its Subsidiaries creates
security over its assets in favour of the Lender as security for the
Company's obligations under this Agreement.
18.13 Refinancing and servicing of the Loan
(a) Following the Filing Date, the Company will, as far as is legally possible,
procure that none of its Subsidiaries will amend its trading terms in a
manner which would materially and adversely affect its ability to raise
finance to refinance the Loan from a lender acting reasonably.
(b) Following the Filing Date, the Company will, as far is legally possible,
procure that the assets of the Target and its Subsidiaries are available to
assist the Company in servicing the Loan, it being understood that Target's
ability to pay dividends to the Company is restricted in accordance with
the terms of the Scheme.
(c) Following the Filing Date, the Company will, as far as is legally possible,
and as far as may be necessary to enable the Loan to be refinanced, procure
that the receivables owing the Target and its Subsidiaries will be treated
in such a manner that they may qualify as eligible receivables for the
purposes of a receivables financing facility to be entered between the
Company and the Lender in the form separately agreed between them and
initialled for the purposes of identification by them.
19. DEFAULT
19.1 Events of Default
(a) Each of the events set out in this Clause is an Event of Default.
(b) In this Clause:
Material Group Member means the Company or a Material Subsidiary; and
Permitted Transaction means:
(i) an intra-Group re-organisation of a Material Subsidiary on a solvent
basis; or
(ii) any steps taken in connection with the dissolution of Euromedica
France S.A.; or
(iii) any other transaction agreed by the Lender.
23
19.2 Non-payment
The Company does not pay on the due date any amount payable by it under the
Finance Documents in the manner required under the Finance Documents,
unless the non-payment:
(a) is caused by technical or administrative error; and
(b) is remedied within five Business Days of the due date.
19.3 Breach of other obligations
The Company does not materially comply with any other term of the Finance
Documents not already referred to in this Clause, unless the
non-compliance:
(i) is capable of remedy; and
(ii) is remedied within 30 days of the earlier of the Lender giving notice
and the Company becoming aware of the non-compliance.
19.4 Misrepresentation
A Representation made or repeated by the Company in any Finance Document or
in any certificate delivered by or on behalf of the Company under any
Finance Document is incorrect in any material respect when made or deemed
to be repeated, unless the circumstances giving rise to the
misrepresentation:
(a) are capable of remedy; and
(b) are remedied within 30 days of the earlier of the Lender giving notice
and the Company becoming aware of the misrepresentation.
19.5 Cross-default
Any of the following occurs in respect of a Material Group Member:
(a) any of its Financial Indebtedness is not paid when due (after the
expiry of any applicable grace period);
(b) any of its Financial Indebtedness:
(i) becomes prematurely due and payable;
(ii) is placed on demand; or
(iii) is capable of being declared by a creditor to be prematurely due
and payable or being placed on demand,
in each case, as a result of an event of default (howsoever
described); or
(c) any commitment for its Financial Indebtedness is cancelled or
suspended as a result of an event of default (howsoever described),
unless the aggregate amount of Financial Indebtedness falling within
paragraphs (a) - (c) above is less than U.S.$100,000 or its equivalent.
24
19.6 Insolvency
Any of the following occurs in respect of a Material Group Member:
(a) it is, or is deemed for the purposes of any law to be, unable to pay
its debts as they fall due or insolvent;
(b) it admits its inability to pay its debts as they fall due;
(c) it suspends making payments on its debts generally or announces an
intention to do so;
(d) by reason of actual or anticipated financial difficulties, it begins
negotiations with its principal creditors for the rescheduling of any
of its indebtedness; or
(e) a moratorium is declared by it in respect of any of its indebtedness.
19.7 Insolvency proceedings
(a) Except as provided below, any of the following occurs in respect of
Material Group Member:
(i) any procedural step is taken with a view to a moratorium or a
composition, assignment or similar arrangement with its creditors
generally;
(ii) a meeting of its shareholders, directors or other officers is convened
for the purpose of considering any resolution for, to petition for or
to file documents with a court for, its winding-up, administration or
dissolution or any such resolution is passed;
(iii) any person presents a petition, or files documents with a court, for
its winding-up, administration or dissolution;
(iv) an order for its winding-up, administration or dissolution is made;
(v) any liquidator, trustee in bankruptcy, judicial custodian, compulsory
manager, receiver, administrative receiver, administrator or similar
officer is appointed in respect of it or any of its assets;
(vi) its directors, shareholders or other officers request the appointment
of, or give notice of their intention to appoint, a liquidator,
trustee in bankruptcy, judicial custodian, compulsory manager,
receiver, administrative receiver, administrator or similar officer;
or
(vii) any other analogous step or procedure is taken in any jurisdiction.
(b) Paragraph (a) does not apply to:
(i) any step or procedure which is part of a Permitted Transaction; or
(ii) a petition for winding-up presented by a creditor which is being
contested in good faith and with due diligence and is discharged or
struck out within 30 days.
25
19.8 Creditors' process
Any attachment, sequestration, distress, execution or analogous event
affects any asset(s) of a Material Group Member, having an aggregate value
of U.S.$100,000, and is not discharged within 30 days.
19.9 Cessation of business
A Material Group Member ceases, or threatens to cease, to carry on business
except:
(a) as part of a Permitted Transaction; or
(b) as a result of any disposal allowed under this Agreement.
19.10 Effectiveness of Finance Documents
(a) It is or becomes unlawful by reason of a change of law for the Company to
perform any of its payment obligations under the Finance Documents.
(b) The Company repudiates a Finance Document or evidences an intention to
repudiate a Finance Document.
19.11 Material adverse change
Any event or series of events occurs which would have a Material Adverse
Effect.
19.12 Acceleration
If a Default is outstanding, the Lender may, by notice to the Company:
(a) cancel the Commitment; and/or
(b) declare that all or part of any amounts outstanding under the Finance
Documents are:
(i) immediately due and payable; and/or
(ii) payable on demand by the Lender.
Any notice given under this Subclause will take effect in accordance with
its terms.
20. EVIDENCE AND CALCULATIONS
20.1 Accounts
Accounts maintained by the Lender in connection with this Agreement are
prima facie evidence of the matters to which they relate for the purpose of
any litigation or arbitration proceedings.
20.2 Certificates and determinations
Any certification or determination by the Lender of a rate or amount under
the Finance Documents will be, in the absence of manifest error, conclusive
evidence of the matters to which it relates.
26
20.3 Calculations
Any interest or fee accruing under this Agreement accrues from day to day
and is calculated on the basis of the actual number of days elapsed and a
year of 360 days or otherwise, depending on what the Lender determines is
market practice.
21. FEES
21.1 Closing fee
The Company must pay to the Lender within two Business Days after the date
of this Agreement, a closing fee of (pound)31,250.
21.2 Utilisation fee
The Company must pay to the Lender on the earlier of the Utilisation Date
and the date of the first drawing under the Take Out Facilities, a fee of
(pound)93,750. The fee will be deducted from the proceeds of the
Utilisation or, as the case may be, the first drawing under the Take Out
Facilities.
21.3 Conditional fee
In the event that the Filing Date does not occur within four months after
the date of this Agreement, the Company must pay to the Lender a fee of
(pound)10,000 per month or part thereof, which will be payable monthly in
advance during the remainder of the Availability Period until the Filing
Date occurs.
22. INDEMNITIES AND BREAK COSTS
22.1 Currency indemnity
(a) The Company must, as an independent obligation, indemnify the Lender
against any loss or liability which the Lender incurs as a consequence of:
(i) the Lender receiving an amount in respect of the Company's liability
under the Finance Documents; or
(ii) that liability being converted into a claim, proof, judgment or order,
in a currency other than the currency in which the amount is expressed to
be payable under the relevant Finance Document.
(b) Unless otherwise required by law, the Company waives any right it may have
in any jurisdiction to pay any amount under the Finance Documents in a
currency other than that in which it is expressed to be payable.
22.2 Other indemnities
(a) The Company must indemnify the Lender against any loss or liability which
the Lender incurs as a consequence of:
(i) the occurrence of any Event of Default;
27
(ii) any failure by the Company to pay any amount due under a Finance
Document on its due date;
(iii) (other than by reason of negligence or default by the Lender) the
Loan not being made after the Request has been delivered for the Loan;
(iv) the Loan (or part of the Loan) not being prepaid in accordance with a
notice of prepayment;
(v) investigating any event which the Lender reasonably believes to be a
Default; or
(vi) acting or relying on any notice which the Lender reasonably believes
to be genuine, correct and appropriately authorised.
(b) The Company's liability in each case includes any loss or expense on
account of funds borrowed, contracted for or utilised to fund any amount
payable under any Finance Document, any amount repaid or prepaid or any
Loan.
22.3 Break Costs
(a) The Company must pay to the Lender its Break Costs.
(b) Break Costs are the amount (if any) determined by the Lender by which:
(i) the interest which the Lender would have received for the period from
the date of receipt of any part of its share in the Loan or an overdue
amount to the last day of the applicable Term for that Loan or overdue
amount if the principal or overdue amount received had been paid on
the last day of that Term;
exceeds
(ii) the amount which the Lender would be able to obtain by placing an
amount equal to the amount received by it on deposit with a leading
bank in the appropriate interbank market for a period starting on the
Business Day following receipt and ending on the last day of the
applicable Term.
(c) The Lender must supply to the Company details of the amount of any Break
Costs claimed by it under this Subclause.
23. EXPENSES
23.1 Initial costs
The Company must pay to the Lender the amount of all reasonable costs and
expenses (including legal fees) reasonably incurred by it in connection
with the negotiation, preparation, printing and execution of the Finance
Documents.
23.2 Subsequent costs
The Company must pay to the Lender the amount of all costs and expenses
(including legal fees) reasonably incurred by it in connection with:
(a) the negotiation, preparation, printing and execution of any Finance
Document executed after the date of this Agreement; and
28
(b) any amendment, waiver or consent requested by or on behalf of the
Company or specifically allowed by this Agreement.
23.3 Enforcement costs
The Company must pay to the Lender the amount of all costs and expenses
(including legal fees) incurred by it in connection with the enforcement
of, or the preservation of any rights under, any Finance Document.
24. AMENDMENTS AND WAIVERS
24.1 Waivers and remedies cumulative
The rights of the Lender under the Finance Documents:
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general law;
and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any right is not a waiver of that
right.
25. CHANGES TO THE PARTIES
25.1 Assignments and transfers by the Company
The Company may not assign or transfer any of its rights and obligations
under the Finance Documents without the prior consent of the Lender.
25.2 Assignments and transfers by the Lender
(a) The Lender may, subject to the following provisions of this Subclause, at
any time assign or transfer (including by way of novation) any of its
rights and obligations under this Agreement to any other Qualifying Lender
(the New Lender).
(b) The consent of the Company is required for any assignment or transfer.
(c) A transfer of obligations will be effective only if the New Lender confirms
to the Company in form and substance satisfactory to the Company that it is
bound by the terms of this Agreement as the Lender. On the transfer
becoming effective in this manner the Lender will be released from its
obligations under this Agreement to the extent that they are transferred to
the New Lender.
25.3 Costs resulting from change of Lender or Facility Office
If:
(a) the Lender assigns or transfers any of its rights and obligations
under the Finance Documents or changes its Facility Office; and
(b) as a result of circumstances existing at the date the assignment,
transfer or change occurs, the Company would be obliged to pay a Tax
Payment or an Increased Cost,
29
then, unless the assignment, transfer or change is made by the Lender to
mitigate any circumstances giving rise to the Tax Payment, Increased Cost
or a right to be prepaid and/or cancelled by reason of illegality, the
Company need only pay that Tax Payment or Increased Cost to the same extent
that it would have been obliged to if no assignment, transfer or change had
occurred.
26. DISCLOSURE OF INFORMATION
(a) The Lender must keep confidential any information supplied to it by or on
behalf of the Company and the Target in connection with the Finance
Documents. However, the Lender is entitled to disclose information:
(i) which is publicly available, other than as a result of a breach by the
Lender of this Clause;
(ii) in connection with any legal or arbitration proceedings;
(iii) if required to do so under any law or regulation;
(iv) to a governmental, banking, taxation or other regulatory authority;
(v) to its professional advisers;
(vi) to the extent allowed under paragraph (b) below; or
(vii) with the agreement of the Company.
(b) The Lender may disclose to an Affiliate or any person with whom it may
enter, or has entered into, any kind of transfer, participation or other
agreement in relation to this Agreement (a participant):
(i) a copy of any Finance Document; and
(ii) any information which the Lender has acquired under or in connection
with any Finance Document.
However, before a participant may receive any confidential information, it
must agree with the Lender to keep that information confidential on the
terms of paragraph (a) above.
This Clause supersedes any previous confidentiality undertaking given by
the Lender in connection with this Agreement.
27. SET-OFF
The Lender may set off any matured obligation owed to it by the Company
under the Finance Documents (to the extent beneficially owned by the
Lender) against any obligation (whether or not matured) owed by the Lender
to the Company, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Lender may convert either obligation at a market rate of
exchange in its usual course of business for the purpose of the set-off.
30
28. SEVERABILITY
If a term of a Finance Document is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not affect:
(a) the legality, validity or enforceability in that jurisdiction of any
other term of the Finance Documents; or
(b) the legality, validity or enforceability in other jurisdictions of
that or any other term of the Finance Documents.
29. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts. This
has the same effect as if the signatures on the counterparts were on a
single copy of the Finance Document.
30. NOTICES
30.1 In writing
(a) Any communication in connection with a Finance Document must be in writing
and, unless otherwise stated, may be given in person, by post, or fax.
(b) For the purpose of the Finance Documents, an electronic communication will
be treated as being in writing.
(c) Unless it is agreed to the contrary, any consent or agreement required
under a Finance Document must be given in writing.
30.2 Contact details
(a) The contact details of the Company for this purpose are:
Address: Marine Court, The Parade, Isle of Wight PO31 7QJ
Fax number: 01983 284909
Attention: The Company Secretary
(b) The contact details of the Lender for this purpose are:
Address: 33-35 Cornhill, London, EC3V 3ND
Fax number: 01273 864 136
Attention: Alan Hooper/Brent Osborne
(c) The Company or the Lender may change their contact details by giving five
Business Days' notice to the other Party.
(d) Where a Party nominates a particular department or officer to receive a
communication, a communication will not be effective if it fails to specify
that department or officer.
31
30.3 Effectiveness
(a) Except as provided below, any communication in connection with a Finance
Document will be deemed to be given as follows:
(i) if delivered in person, at the time of delivery;
(ii) if posted, five days after being deposited in the post, postage
prepaid, in a correctly addressed envelope;
(iii) if by fax, when received in legible form; and
(iv) if by e-mail or any other electronic communication, when received in
legible form.
(b) A communication given under paragraph (a) above but received on a
non-working day or after business hours in the place of receipt will only
be deemed to be given on the next working day in that place.
(c) A communication to the Lender will only be effective on actual receipt by
it.
31. GOVERNING LAW
This Agreement is governed by English law.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
32
SCHEDULE 1
PRE-SIGNING
Company
1. A copy of the constitutional documents of the Company.
2. A copy of a resolution of the board of directors or a committee of the
board of directors of the Company approving the terms of, and the
transactions contemplated by, this Agreement.
3. A specimen of the signature of each person authorised on behalf of the
Company to execute or witness the execution of any Finance Document or to
sign or send any document or notice in connection with any Finance
Document.
4. A certificate of an authorised signatory of the Company:
(a) confirming that utilising the Commitment in full would not breach any
limit binding on it; and
(b) certifying that each copy document specified in paragraphs 1 to 4 of
this Schedule is correct, complete and in full force and effect as at
a date no earlier than the date of this Agreement.
Security Document
5. The Security Document duly executed by the Company, granting the Lender a
first fixed and floating charge over the Shares, all benefits in respect of
insurance, all beneficial interest in any pension fund, its goodwill, its
uncalled capital and all other assets.
Legal opinions
6. A legal opinion of Allen & Overy legal advisers to the Company, addressed
to the Lender.
Other documents and evidence
7. The draft Original Press Release, substantially in the form agreed by the
Lender on or prior to the date of this Agreement.
8. (a) The draft Circular, in a form which substantially reflects the
Original Press Release.
(b) The draft 13e Filing to be made in the U.S.A.
9. A copy of the opening balance sheet of the Company.
10. Evidence that the overall facilities meet with the Company's ongoing cash
flow requirements.
11. A copy of the Financial Due Diligence Report.
12. A copy of up to date management accounts of Target and a detailed sources
and uses of cash as at the projected closing and a pro forma combined
balance sheet of the Company reflecting any closing adjustments in detail.
33
13. A copy of the Share Exchange Agreement between the Company and the Sellers
named in Schedule 1 of the Share Exchange Agreement containing a provision
whereby at least 27.2 % of the shareholders of the Target are committed to
reinvest in ordinary shares in the Company in the event the Scheme becomes
effective.
14. Confirmation of the proposed structure of the issued share capital of the
Company.
15. A legal opinion from Osborne Clarke in connection with the ability of the
Trustees (as defined therein) to enter into, inter alia, the Share Exchange
Agreement.
16. A copy of the Legal Due Diligence Report.
17. A copy of the Fee Letter.
18. An undertaking in relation to the further subscription of shares in the
capital of the Company.
34
SCHEDULE 2
FORM OF REQUEST
To: GMAC Commercial Credit Finance plc
From: Ohsea Holdings Limited
Date: [__________], 2003
OHSEA HOLDINGS LIMITED - U.S.$14,000,000 Credit Agreement dated 14th April,
2003
(the Agreement)
1. We refer to the Agreement. This is a Request.
2. We wish to borrow the Loan on the following terms:
(a) Utilisation Date: [________]
(b) Amount: U.S. $[________]
(c) Term: [________].
3. Our payment instructions are: [________].
By:
Ohsea Holdings Limited
35
SCHEDULE 3
FORM OF SECURITY AGREEMENT
THIS DEED is dated [______] between:
(1) OHSEA HOLDINGS LIMITED (Registered number 4493380) (the "Chargor"); and
(2) GMAC COMMERCIAL FINANCE PLC (the "Lender").
BACKGROUND:
(A) The Chargor enters into this Deed in connection with the Credit Agreement
(as defined below).
(B) It is intended that this document takes effect as a deed notwithstanding
the fact that a party may only execute this document under hand.
IT IS AGREED as follows:
1. INTERPRETATION
1.1 Definitions
In this Deed:
"Act"
means the Law of Property Act 1925.
"Credit Agreement"
means the U.S.$ 14,000,000 credit agreement dated 14th April, 2003 between
the parties to this Deed.
"Insurances"
means all contracts and policies of insurance taken out by or on behalf of
the Chargor or (to the extent of its interest) in which the Chargor has an
interest.
"Receiver"
means a receiver and manager or (if the Lender so specifies in the relevant
appointment) a receiver, in either case, appointed under this Deed.
"Related Rights"
means any dividend or interest paid or payable in relation to any Share and
any rights, moneys or property accruing or offered at any time in relation
to any Shares by way of redemption, substitution, exchange, bonus or
preference, under option rights or otherwise.
"Secured Liabilities"
36
means all present and future obligations and liabilities (whether actual or
contingent and whether owed jointly or severally or in any other capacity
whatsoever) of the Chargor to the Lender under each Finance Document to
which the Chargor is a party and any other financing document entered into
from time to time between the Lender and the Company including, without
limitation, the Take Out Facilities or any of them to which the Chargor is
a party except for any obligation which, if it were so included, would
result in this Deed contravening Section 151 of the Companies Act 1985. The
term "Finance Document" includes all amendments and supplements including
supplements providing for further advances.
"Security Assets"
means all assets of the Chargor the subject of any security created by this
Deed.
"Security Period"
means the period beginning on the date of this Deed and ending on the date
on which the Lender is satisfied that all the Secured Liabilities have been
unconditionally and irrevocably paid and discharged in full.
"Shares"
means any shares owned by the Chargor in the capital of the Target.
"Target"
means Professional Staff plc (Company number 2459997).
1.2 Construction
(a) Capitalised terms defined in the Credit Agreement have, unless expressly
defined in this Deed, the same meaning in this Deed.
(b) The provisions of Clause 1.2 (Construction) of the Credit Agreement apply
to this Deed as though they were set out in full in this Deed except that
references to the Credit Agreement are to be construed as references to
this Deed.
(c) The terms of the other Finance Documents and of any side letters between
any Parties in relation to any Finance Document are incorporated in this
Deed to the extent required to ensure that any purported disposition of the
Mortgaged Property contained in this Deed is a valid disposition in
accordance with Section 2(1) of the Law of Property (Miscellaneous
Provisions) Act 1989.
(d) If the Lender considers that an amount paid by the Chargor to the Lender
under a Finance Document is capable of being avoided or otherwise set aside
on the liquidation or administration of the Chargor or otherwise, then that
amount shall not be considered to have been irrevocably paid for the
purposes of this Deed.
(e) A person who is not a party to this Deed may not enforce its terms under
the Contracts (Rights of Third Parties) Act 1999.
37
2. FIXED SECURITY
2.1 Creation of fixed security
The Chargor, as security for the payment of all the Secured Liabilities,
charges in favour of the Lender:
(a) by way of a first legal mortgage:
(i) all Shares held by it now or in the future and/or any nominee on
its behalf and all Related Rights accruing to the Shares; and
(b) by way of first fixed charge:
(i) (to the extent that they are not the subject of a mortgage under
paragraph (a) above) its interest in all the Shares and their
Related Rights;
(ii) all benefits in respect of the Insurances and all claims and
returns of premiums in respect of them;
(iii)any beneficial interest, claim or entitlement of the Chargor in
any pension fund;
(iv) its goodwill; and
(v) its uncalled capital.
3. FLOATING CHARGE
3.1 Creation of floating charge
The Chargor, as security for the payment of all of the Secured Liabilities,
charges in favour of the Lender by way of a first floating charge all its
assets not otherwise effectively mortgaged or charged by way of fixed
mortgage or charge by Clause 2 (Fixed Security).
3.2 Conversion
The Lender may by notice to the Chargor convert the floating charge created
by this Deed into a fixed charge as regards all or any of the Chargor's
assets specified in the notice if:
(a) an Event of Default is outstanding; or
(b) the Lender considers those assets to be in danger of being seized or
sold under any form of distress, attachment, execution or other legal
process or to be otherwise in jeopardy.
4. COVENANTS FOR TITLE
Each mortgage, charge and assignment created under this Deed is made by the
Chargor with full title guarantee in accordance with the Law of Property
(Miscellaneous Provisions) Act 1994.
38
5. REPRESENTATIONS AND WARRANTIES
5.1 Representations and warranties
The Chargor makes the representations and warranties set out in this Clause
5 to the Lender.
5.2 Security
This Deed creates those Security Interests it purports to create and is not
liable to be avoided or otherwise set aside on the liquidation or
administration of the Chargor or otherwise.
5.3 Times for making representations and warranties
The representations and warranties set out in this Clause 5 are made on the
date of this Deed and are deemed to be repeated by the Chargor on each date
during the Security Period with reference to the facts and circumstances
then existing.
6. GENERAL UNDERTAKINGS
6.1 Duration
The undertakings in this Clause 6 remain in force throughout the Security
Period.
6.2 Restrictions on dealing
The Chargor shall not:
(a) create or permit to subsist any Security Interest on any Security
Asset other than any Security Interest created by this Deed; or
(b) sell, transfer, grant, or lease or otherwise dispose of any Security
Asset, except for the disposal in the ordinary course of trade of any
Security Asset subject to the floating charge created under Clause 3.1
(Creation of floating charge).
6.3 Deposit of Shares
The Chargor shall:
(a) deposit with the Lender, or as the Lender may direct, all certificates
and other documents of title or evidence of ownership in relation to
the Shares and their Related Rights; and
(b) execute and deliver to the Lender all share transfers and other
documents which may be requested by the Lender in order to enable the
Lender or its nominees to be registered as the owner or otherwise
obtain a legal title to the Shares and their Related Rights.
7. WHEN SECURITY BECOMES ENFORCEABLE
The security constituted by this Deed shall become immediately enforceable
upon the occurrence of an Event of Default and the power of sale and other
powers conferred by Section 101 of the Act, as varied or amended by this
Deed, shall be immediately exercisable upon and at any time after the
occurrence of any Event of Default. After the security
39
constituted by this Deed has become enforceable, the Lender may in its
absolute discretion enforce all or any part of the security in any manner
it sees fit.
8. ENFORCEMENT OF SECURITY
8.1 General
For the purposes of all powers implied by statute, the Secured Liabilities
are deemed to have become due and payable on the date of this Deed and
Section 103 of the Act (restricting the power of sale) and Section 93 of
the Act (restricting the right of consolidation) do not apply to the
security constituted by this Deed. The statutory powers of leasing
conferred on the Lender are extended so as to authorise the Lender to
lease, make agreements for leases, accept surrenders of leases and grant
options as the Lender may think fit and without the need to comply with any
provision of section 99 or 100 of the Act.
8.2 Shares
After the security constituted by this Deed has become enforceable, the
Lender may exercise (in the name of the Chargor and without any further
consent or authority on the part of the Chargor) any voting rights and any
powers or rights which may be exercised by the person or persons in whose
name any Share and its Related Rights are registered or who is the holder
of any of them or otherwise (including all the powers given to trustees by
Section 10(3) and (4) of the Trustee Act, 1925 as amended by Section 9 of
the Trustee Investment Act, 1961 in respect of securities or property
subject to a trust). Until that time, the voting rights, powers and other
rights in respect of the Shares shall (if exercisable by the Lender) be
exercised in any manner which the Chargor may direct in writing.
8.3 No liability as mortgagee in possession
Neither the Lender nor any Receiver will be liable, by reason of entering
into possession of a Security Asset, to account as mortgagee in possession
or for any loss on realisation or for any default or omission for which a
mortgagee in possession might be liable.
8.4 Agent of the Chargor
Each Receiver is deemed to be the agent of the Chargor for all purposes and
accordingly is deemed to be in the same position as a Receiver duly
appointed by a mortgagee under the Act. The Chargor alone shall be
responsible for his contracts, engagements, acts, omissions, defaults and
losses and for liabilities incurred by him and the Lender shall not incur
any liability (either to the Chargor or to any other person) by reason of
the Lender making his appointment as a Receiver or for any other reason.
8.5 Privileges
Each Receiver and the Lender is entitled to all the rights, powers,
privileges and immunities conferred by the Act on mortgagees and receivers
when such receivers have been duly appointed under the Act, except that
Section 103 of the Act does not apply.
8.6 Protection of third parties
No person (including a purchaser) dealing with the Lender or a Receiver or
its or his agents will be concerned to enquire:
(a) whether the Secured Liabilities have become payable; or
40
(b) whether any power which the Lender or the Receiver is purporting to
exercise has become exercisable; or
(c) whether any money remains due under the Finance Documents; or
(d) how any money paid to the Lender or to the Receiver is to be applied.
8.7 Redemption of prior Mortgages
At any time after the security constituted by this Deed has become
enforceable, the Lender may:
(a) redeem any prior Security Interest against any Security Asset; and/or
(b) procure the transfer of that Security Interest to itself; and/or
(c) settle and pass the accounts of the prior mortgagee, chargee or
encumbrancer; any accounts so settled and passed shall be conclusive
and binding on the Chargor.
All principal moneys, interest, costs, charges and expenses of and
incidental to any such redemption and/or transfer shall be paid by the
Chargor to the Lender on demand.
9. RECEIVER
9.1 Appointment of Receiver
(a) At any time after the security constituted by this Deed becomes
enforceable or, if the Chargor so requests the Lender in writing, at
any time, the Lender may without further notice appoint by deed, under
seal or in writing under its hand any one or more persons to be a
Receiver of all or any part of the Security Assets in like manner in
every respect as if the Lender had become entitled under the Act to
exercise the power of sale conferred under the Act.
(b) Section 109(1) of the Act shall not apply to this Deed.
9.2 Removal
The Lender may by writing under its hand (subject to any requirement for an
order of the court in the case of an administrative receiver) remove any
Receiver appointed by it and may, whenever it deems it expedient, appoint a
new Receiver in the place of any Receiver whose appointment may for any
reason have terminated.
9.3 Remuneration
The Lender may fix the remuneration of any Receiver appointed by it and the
maximum rate specified in Section 109(6) of the Act shall not apply.
9.4 Relationship with Lender
To the fullest extent permitted by law, any right, power or discretion
conferred by this Deed (either expressly or impliedly) upon a Receiver of
the Security Assets may after the security created by this Deed becomes
enforceable be exercised by the Lender in relation to any Security Asset
without first appointing a Receiver or notwithstanding the appointment of a
Receiver.
41
10. POWERS OF RECEIVER
10.1 General
(a) Each Receiver has, and is entitled to exercise, all of the rights,
powers and discretions set out below in this Clause 10 in addition to
those conferred by the Act on any receiver appointed under the Act.
(b) If there is more than one Receiver holding office at the same time,
each Receiver may (unless the document appointing him states
otherwise) exercise all of the powers conferred on a Receiver under
this Deed individually and to the exclusion of any other Receivers.
(c) Each Receiver has all the rights, powers and discretions set out in
Schedule 1 to the Insolvency Act, 1986.
(d) A Receiver who is an administrative receiver of the Chargor has all
the rights, powers and discretions of an administrative receiver under
the Insolvency Act 1986.
10.2 Possession
A Receiver may take immediate possession of, get in and collect any
Security Assets.
10.3 Carry on business
A Receiver may carry on the business of the Chargor as he thinks fit.
10.4 Protection of assets
A Receiver may:
(a) make and effect all repairs and insurances and do all other acts which
the Chargor might do in the ordinary conduct of its business as well
for the protection as for the improvement of the Security Assets; and
(b) apply for and maintain any planning permission, building regulation
approval or any other permission, consent or licence,
in each case as he may think fit.
10.5 Employees
A Receiver may appoint and discharge managers, officers, agents,
accountants, servants, workmen and others for the purposes of this Deed
upon such terms as to remuneration or otherwise as he may think proper and
discharge any such persons appointed by the Chargor.
10.6 Borrow money
A Receiver may raise and borrow money either unsecured or on the security
of any Security Asset either in priority to the security constituted by
this Deed or otherwise and generally on any terms and for whatever purpose
which he thinks fit. No person lending that money is concerned to enquire
as to the propriety or purpose of the exercise of that power or to check
the application of any money so raised or borrowed.
42
10.7 Sale of assets
A Receiver may sell, exchange, convert into money and realise any Security
Asset by public auction or private contract and generally in any manner and
on any terms which he thinks proper. The consideration for any such
transaction may consist of cash, debentures or other obligations, shares,
stock or other valuable consideration and any such consideration may be
payable in a lump sum or by instalments spread over such period as he
thinks fit. Fixtures, other than landlords fixtures, may be severed and
sold separately from the property containing them without the consent of
the Chargor.
10.8 Compromise
A Receiver may settle, adjust, refer to arbitration, compromise and arrange
any claims, accounts, disputes, questions and demands with or by any person
who is or claims to be a creditor of the Chargor or relating in any way to
any Security Asset.
10.9 Legal Actions
A Receiver may bring, prosecute, enforce, defend and abandon all actions,
suits and proceedings in relation to any Security Asset which may seem to
him to be expedient.
10.10 Receipts
A Receiver may give valid receipts for all moneys and execute all
assurances and things which may be proper or desirable for realising any
Security Asset.
10.11 Subsidiaries
A Receiver may form a Subsidiary of the Chargor and transfer to that
Subsidiary any Security Asset.
10.12 Delegation
A Receiver may delegate his powers in accordance with Clause 13
(Delegation).
10.13 Other powers
A Receiver may:
(a) do all other acts and things which he may consider desirable or
necessary for realising any Security Asset or incidental or conducive
to any of the rights, powers or discretions conferred on a Receiver
under or by virtue of this Deed; and
(b) exercise in relation to any Security Asset all the powers, authorities
and things which he would be capable of exercising if he were the
absolute beneficial owner of the same,
and may use the name of the Chargor for any of the above purposes.
11. APPLICATION OF PROCEEDS
Any moneys received by the Lender or any Receiver after the security
constituted by this Deed has become enforceable shall be applied in the
following order of priority (but without prejudice to the right of the
Lender to recover any shortfall from the Chargor):
43
(a) in satisfaction of or provision for all costs and expenses incurred by
the Lender or any Receiver and of all remuneration due to the Receiver
under this Deed;
(b) in or towards payment of the Secured Liabilities or such part of them
as is then due and payable; and
(c) in payment of the surplus (if any) to the Chargor or other person
entitled to it.
12. EXPENSES AND INDEMNITY
The Chargor shall forthwith on demand pay all reasonable costs and expenses
(including legal fees) incurred in connection with this Deed by the Lender,
any Receiver, attorney, manager, agent or other person appointed by the
Lender under this Deed, and keep each of them indemnified against any
failure or delay in paying the same (including any arising from any actual
or alleged breach by any person of any Environmental Law or Licence).
13. DELEGATION
The Lender and any Receiver may delegate by power of attorney or in any
other manner to any person any right, power or discretion exercisable by
them under this Deed. Any such delegation may be made upon the terms
(including power to sub-delegate) and subject to any regulations which the
Lender or such Receiver (as the case may be) may think fit. Neither the
Lender nor any Receiver will be in any way liable or responsible to the
Chargor for any loss or liability arising from any act, default, omission
or misconduct on the part of any such delegate or sub-delegate.
14. FURTHER ASSURANCES
The Chargor shall, at its own expense, take whatever action the Lender or a
Receiver may require for:
(a) perfecting or protecting the security intended to be created by this
Deed over any Security Asset;
(b) facilitating the realisation of any Security Asset or the exercise of
any right, power or discretion exercisable, by the Lender or any
Receiver or any of its or their delegates or sub-delegates in respect
of any Security Asset,
including the execution of any transfer, conveyance, assignment or
assurance of any property whether to the Lender or to its nominees, and the
giving of any notice, order or direction and the making of any
registration, which in any such case, the Lender may think expedient.
15. POWER OF ATTORNEY
The Chargor, by way of security, irrevocably and severally appoints the
Lender, each Receiver and any of their delegates or sub-delegates to be its
attorney to take any action which the Chargor is obliged to take under this
Deed, including under Clause 14 (Further Assurances). The Chargor ratifies
and confirms whatever any attorney does or purports to do pursuant to its
appointment under this Clause.
44
16. MISCELLANEOUS
16.1 Covenant to pay
The Chargor shall pay or discharge the Secured Liabilities in the manner
provided for in the Finance Documents.
16.2 Continuing security
The security constituted by this Deed is continuing and will extend to the
ultimate balance of all the Secured Liabilities, regardless of any
intermediate payment or discharge in whole or in part.
16.3 Additional security
The security constituted by this Deed is in addition to and is not in any
way prejudiced by any other security now or subsequently held by the Lender
for any Secured Liability.
16.4 Tacking
The Lender shall perform its obligations under the Credit Agreement
(including any obligation to make available further advances).
16.5 New Accounts
If the Lender receives, or is deemed to be affected by, notice, whether
actual or constructive, of any subsequent charge or other interest
affecting any Security Asset and/or the proceeds of sale of any Security
Asset, the Lender may open a new account with the Chargor. If the Lender
does not open a new account, it shall nevertheless be treated as if it had
done so at the time when it received or was deemed to have received notice.
As from that time all payments made to the Lender will be credited or be
treated as having been credited to the new account and will not operate to
reduce any amount for which this Deed is security.
16.6 Time deposits
Without prejudice to any right of set-off the Lender may have under any
other Finance Document or otherwise, if any time deposit matures on any
account the Chargor has with the Lender at a time within the Security
Period when:
(a) this security has become enforceable; and
(b) no amount of the Secured Liabilities is due and payable,
that time deposit shall automatically be renewed for any further maturity
which the Lender considers appropriate.
16.7 Notice of assignment
This Deed constitutes notice in writing to the Chargor of any charge or
assignment of a debt owed by the Chargor to any other member of the Group
contained in any other Security Document.
45
17. RELEASE
Upon the expiry of the Security Period (but not otherwise), the Lender
shall, at the request and cost of the Chargor, take whatever action is
necessary to release the Security Assets from the security constituted by
this Deed.
18. GOVERNING LAW
This Deed is governed by English law.
This Deed has been entered into as a deed on the date stated at the beginning of
this Deed.
Signatories
Executed as a deed by )
OHSEA HOLDINGS LIMITED)
Acting by )
Director
Director/Secretary
The Lender
GMAC COMMERCIAL FINANCE PLC
By:
46
SCHEDULE 4
GROUP STRUCTURE
GROUP STRUCTURE OF
PROFESSIONAL STAFF PLC
[FLOWCHART]
47
SIGNATORIES
Company
OHSEA HOLDINGS LIMITED
By: ANDREW WILSON
Lender
GMAC COMMERCIAL FINANCE PLC
By: D. MORRIS
48