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EXHIBIT 10.40
EXECUTION COPY
L200,000,000 MULTI-CURRENCY TERM, REVOLVING CREDIT FACILITIES
AGREEMENT
dated MARCH 2004
for
IRON MOUNTAIN EUROPE LIMITED
arranged by
BARCLAYS CAPITAL
and
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
WITH
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
acting as Facility Agent
and
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
acting as Security Trustee
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L200,000,000 MULTI-CURRENCY TERM, REVOLVING
CREDIT FACILITIES AGREEMENT
-------------------------------------------------
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CONTENTS
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CLAUSE PAGE
1. Definitions And Interpretation.........................................................1
2. The Facilities........................................................................21
3. Purpose...............................................................................22
4. Conditions Of Utilisation.............................................................23
5. Utilisation Of Loans..................................................................25
6. Utilisation - Letters Of Credit.......................................................26
7. Letters Of Credit.....................................................................28
8. Optional Currencies...................................................................31
9. Ancillary Facilities..................................................................31
10. Repayment.............................................................................33
11. Prepayment And Cancellation...........................................................34
12. Interest..............................................................................40
13. Interest Periods......................................................................41
14. Changes To The Calculation Of Interest................................................41
15. Fees..................................................................................43
16. Tax Gross Up And Indemnities..........................................................45
17. Increased Costs.......................................................................49
18. Other Indemnities.....................................................................50
19. Mitigation By The Lenders.............................................................51
20. Costs And Expenses....................................................................52
21. Guarantee And Indemnity...............................................................53
22. Representations.......................................................................57
23. Information Undertakings..............................................................62
24. Financial Covenants...................................................................66
25. General Undertakings..................................................................71
26. Events Of Default.....................................................................83
27. Changes To The Lenders................................................................88
28. Changes To The Obligors...............................................................92
29. Role Of The Facility Agent, The Arranger, The Issuing Bank And Others.................95
30. Role Of Security Trustee.............................................................101
31. Conduct Of Business By The Finance Parties...........................................110
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32. Sharing Among The Finance Parties....................................................110
33. Payment Mechanics....................................................................112
34. Set-Off..............................................................................115
35. Application Of Proceeds..............................................................115
36. Notices..............................................................................117
37. Calculations And Certificates........................................................120
38. Partial Invalidity...................................................................120
39. Remedies And Waivers.................................................................121
40. Amendments And Waivers...............................................................121
41. Counterparts.........................................................................122
42. Governing Law........................................................................123
43. Enforcement..........................................................................123
Schedule 1 THE ORIGINAL PARTIES...........................................................124
Part I The Original Obligors.........................................................124
Part II The Original Lenders.........................................................125
Part III Dormant Subsidiaries........................................................126
Schedule 2 CONDITIONS PRECEDENT...........................................................127
Part I Conditions Precedent To Initial Utilisation...................................127
Part II Conditions Precedent Required To Be Delivered By An Additional Obligor.......133
Part III Transaction Security Documents And Security Related Documents To Be
Delivered By Additional Obligors.........................................136
Schedule 3 REQUESTS.......................................................................137
Part I A Utilisation Request.........................................................137
Part I B Utilisation Request.........................................................139
Part II Selection Notice.............................................................141
Schedule 4 MANDATORY COST FORMULAE........................................................142
Schedule 5 FORM OF TRANSFER CERTIFICATE...................................................145
Schedule 6 FORM OF ACCESSION LETTER.......................................................147
Schedule 7 FORM OF COMPLIANCE CERTIFICATE.................................................149
Schedule 8 TIMETABLES.....................................................................151
Part I .......................................................................151
Part II Letters Of Credit............................................................153
Schedule 9 MATERIAL COMPANIES.............................................................154
Schedule 10 LMA CONFIDENTIALITY UNDERTAKING...............................................155
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Schedule 11...............................................................................160
Part I Existing Retained Facilities..................................................160
Part II Existing Retained Security...................................................162
Schedule 12 FORM OF LETTER OF CREDIT......................................................164
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THIS AGREEMENT is dated March 2004 and made
BETWEEN:
(1) IRON MOUNTAIN EUROPE LIMITED (registration number 2321917) (the
"PARENT");
(2) THE PARENT AND THE SUBSIDIARIES of the Parent listed in Part I of
Schedule 1 (THE ORIGINAL OBLIGORS) as original borrowers (the "ORIGINAL
BORROWERS");
(3) THE PARENT AND THE SUBSIDIARIES of the Parent listed in Part I of
Schedule 1 (THE ORIGINAL OBLIGORS) as original guarantors (together with
the Parent, the "ORIGINAL GUARANTORS");
(4) BARCLAYS CAPITAL and THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
(whether acting individually or together the "ARRANGER");
(5) THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 (THE ORIGINAL
LENDERS) as lenders (the "ORIGINAL LENDERS");
(6) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND as Facility Agent of
the Lenders (the "FACILITY AGENT");
(7) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND as Security Trustee for
the Secured Parties (the "SECURITY TRUSTEE"); and
(8) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND as issuing bank (the
"ISSUING BANK").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ABN CHARGES" means the deeds of mortgage granted by Iron Mountain
Nederland B.V. in favour of ABN Onroerend Goed Lease B.V. and listed in
Part II (EXISTING RETAINED SECURITY) of Schedule 11.
"ABN PLEDGES" means the pledges of bank accounts dated 25 November
1996, 29 December 1997 and 31 October 2000 granted by Iron Mountain
Nederland B.V. in favour of ABN Amro and listed in Part II
(EXISTING RETAINED SECURITY) of Schedule 11.
"ACCESSION LETTER" means a document substantially in the form set out in
Schedule 6 (FORM OF ACCESSION LETTER).
"ACCOUNTING PRINCIPLES" means generally accepted accounting principles
in the United Kingdom.
"ADDITIONAL BORROWER" means a company which becomes an Additional
Borrower in accordance with Clause 28 (CHANGES TO THE OBLIGORS).
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"ADDITIONAL COST RATE" has the meaning given to it in Schedule 4
(MANDATORY COST FORMULAE).
"ADDITIONAL GUARANTOR" means a company which becomes an Additional
Guarantor in accordance with Clause 28 (CHANGES TO THE OBLIGORS).
"ADDITIONAL OBLIGOR" means an Additional Borrower or an Additional
Guarantor.
"AFFILIATE" means, in relation to any person, a Subsidiary of that
person or a Holding Company of that person or any other Subsidiary of
that Holding Company.
"AGENT'S SPOT RATE OF EXCHANGE" means the Facility Agent's spot rate of
exchange for the purchase of the relevant currency with the Base
Currency in the London foreign exchange market as of 11:00 a.m. on a
particular day.
"ANCILLARY COMMITMENT" means, in relation to an Ancillary Lender the
maximum amount from time to time of the Ancillary Facilities made
available by such Ancillary Lender to the extent not cancelled under
this Agreement or the Ancillary Documents relating to that Ancillary
Facility.
"ANCILLARY DOCUMENT" means each document relating to or evidencing the
terms of an Ancillary Facility.
"ANCILLARY FACILITY" means any ancillary facility made available to any
Obligor upon request as described in Clause 9 (ANCILLARY FACILITIES).
The Facility Agent hereby confirms by its signature to this Agreement
that the following are Ancillary Facilities at the date of this
Agreement,
(a) a L5,000,000 multi option facility made between Bank of Scotland
and certain Obligors dated on or about the date of this
Agreement;
(b) a L5,000,000 facility made between Barclays Bank PLC and certain
Obligors dated on or about the date of this Agreement.
"ANCILLARY LENDER" means any Lender or Lenders selected as an Ancillary
Lender by the Parent by notice to the Facility Agent. Barclays Bank PLC
and The Governor and Company of the Bank of Scotland are Ancillary
Lenders as at the date of this Agreement.
"ANCILLARY OUTSTANDINGS" means, at any time, in relation to an Ancillary
Facility the aggregate of the following amounts outstanding under that
Ancillary Facility then in force:
(a) the principal amount under each overdraft facility and on demand
short term loan facility calculated on a net basis;
(b) the face amount of each guarantee, bond and letter of credit
under each guarantee, bonding or letter of credit facility; and
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(c) the amount fairly representing the aggregate exposure (excluding
interest and similar charges) of that Ancillary Lender under each
other type of accommodation provided under that Ancillary
Facility as determined by such Ancillary Lender in accordance
with the relevant Ancillary Document or market practice.
"ANCILLARY UTILISATION" means an advance made or guarantee, bond or
letter of credit issued under the Ancillary Facility.
"ANNIVERSARY" means an anniversary of the date of signing of this
Agreement.
"APPROVED SUBORDINATED DEBT" means:
(a) Subordinated Loans under the Subordinated Loan Agreement; and
(b) any subordinated debt to which the Majority Lenders have given
their prior written consent.
"AUTHORISATION" means an authorisation, consent, approval, resolution,
licence, exemption, filing, notarisation or registration.
"AVAILABILITY PERIOD" means:
(a) in relation to the Term Facility, the period from and including
the date of this Agreement to and including the date falling one
Month after the date of this Agreement; and
(b) in relation to the Revolving Facility, the period from and
including the date of this Agreement to and including the Final
Maturity Date.
"AVAILABLE COMMITMENT" means, in relation to a Facility, a Lender's
Commitment under that Facility minus (subject as set out below):
(a) the Base Currency Amount of its participation in any outstanding
Loans under that Facility; and
(b) in relation to any proposed Utilisation, the Base Currency Amount
of its participation in any other Loans that are due to be made
under that Facility on or before the proposed Utilisation Date.
For the purposes of calculating a Lender's Available Commitment in
relation to any proposed Utilisation under the Revolving Facility only,
that Lender's participation in any Revolving Facility Utilisations that
are due to be repaid or prepaid on or before the proposed Utilisation
Date and the Lender's participation in any Revolving Loans that are due
to be repaid or prepaid on or before the proposed Utilisation Date shall
not be deducted from a Lender's Commitment under that Facility.
"AVAILABLE FACILITY" means, in relation to a Facility, the aggregate for
the time being of each Lender's Available Commitment in respect of that
Facility.
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"BASE CURRENCY" means sterling.
"BASE CURRENCY AMOUNT" means in relation to a Utilisation, the amount
specified in the Utilisation Request delivered by a Borrower for that
Utilisation (or, if the amount requested is not denominated in the Base
Currency, that amount converted into the Base Currency at the Agent's
Spot Rate of Exchange on the date which is three Business Days before
the Utilisation Date or, if later, on the date the Facility Agent
receives the Utilisation Request in accordance with the terms of this
Agreement) and, in the case of a Letter of Credit, as adjusted under
Clause 6.7 (REVALUATION OF LETTERS OF CREDIT) at six monthly intervals,
as adjusted to reflect any repayment, prepayment, consolidation or
division of a Utilisation.
"BORROWINGS" has the meaning ascribed to it in Clause 24.1 (FINANCIAL
DEFINITIONS).
"BORROWER" means an Original Borrower or an Additional Borrower unless
it has ceased to be a Borrower in accordance with Clause 28 (CHANGES TO
THE OBLIGORS).
"BREAK COSTS" means the amount (if any) by which:
(a) the interest which a Lender should have received for the period
from the date of receipt of all or any part of its participation
in a Loan or Unpaid Sum to the last day of the current Interest
Period in respect of that Loan or Unpaid Sum, had the principal
amount or Unpaid Sum received been paid on the last day of that
Interest Period;
exceeds:
(b) the amount which that Lender would be able to obtain by placing
an amount equal to the principal amount or Unpaid Sum received by
it on deposit with a leading bank in the Relevant Interbank
Market for a period starting on the Business Day following
receipt or recovery and ending on the last day of the current
Interest Period.
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open for general business in London and:
(a) (in relation to any date for payment or purchase of a currency
other than euro) the principal financial centre of the country of
that currency; or
(b) (in relation to any date for payment or purchase of euro) any
TARGET Day.
"CASH" means, at any time, cash at bank denominated in sterling, dollars
or euro and credited to an account in the name of an Obligor with an
Eligible Deposit Bank and to which an Obligor is alone beneficially
entitled and for so long as:
(a) that cash is repayable on demand;
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(b) repayment of that cash is not contingent on the prior discharge
of any other indebtedness of any Group member or of any other
person whatsoever or on the satisfaction of any other condition;
and
(c) there is no Security over that cash except Transaction Security.
"CHARGED PROPERTY" means all of the assets of the Obligors which from
time to time are, or are expressed to be, the subject of the Transaction
Security.
"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking
substantially in a recommended form of the LMA as set out in Schedule 10
(CONFIDENTIALITY UNDERTAKING) or in any other form agreed between the
Parent and the Facility Agent.
"COMMITMENT" means a Term Commitment or a Revolving Commitment.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
set out in Schedule 7 (FORM OF COMPLIANCE CERTIFICATE).
"CONDITIONS SUBSEQUENT LONGSTOP DATE" has the meaning ascribed to it in
Clause 25.23 (CONDITIONS SUBSEQUENT).
"CONSOLIDATED TOTAL NET DEBT" has the meaning given to such term in
Clause 24.1 (FINANCIAL DEFINITIONS).
"CREDIT PARTICIPATION" means, in relation to a Lender, the aggregate of:
(a) its aggregate Commitments; and
(b) its aggregate Ancillary Commitments (if any).
"DANGEROUS SUBSTANCES" means any radiation and any substance (whether in
solid or liquid or gaseous form) capable (whether alone or in
combination with any other substance) of causing harm to man or any
other living organism or damaging property or the environment including,
without limitation, any controlled, special, hazardous, toxic,
radioactive or dangerous waste.
"DEBENTURE" means any Transaction Security Document described as a
debenture in paragraph 4 of Schedule 2 (CONDITIONS PRECEDENT).
"DEBT OR EQUITY ISSUE" has the meaning ascribed to it in Clause 11.8
(MANDATORY PREPAYMENT FROM DEBT OR EQUITY PROCEEDS).
"DEBT OR EQUITY PROCEEDS" has the meaning ascribed to it in Clause 11.8
(MANDATORY PREPAYMENT FROM DEBT OR EQUITY PROCEEDS).
"DEFAULT" means an Event of Default or any event or circumstance which
would (with the expiry of a grace period, the giving of notice, the
making of any determination under the Finance Documents or any
combination of any of the foregoing) be an Event of Default.
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"DELEGATE" means any delegate, agent, attorney or co-trustee appointed
by the Security Trustee.
"DORMANT" has the meaning given to it in Section 249AA(4) of the
Companies Act 1985.
"DORMANT SUBSIDIARIES" means each of the members of the Group which are
Dormant and which are listed in Part III of Schedule 1 (THE ORIGINAL
PARTIES).
"DUE DILIGENCE REPORT" means the due diligence report dated 27 January
2004 prepared by RSM Robson Rhodes and addressed to and/or capable of
being relied upon by the Arranger and the Secured Parties.
"EBITDA" has the meaning given to such term in Clause 24.1 (FINANCIAL
DEFINITIONS).
"ELIGIBLE DEPOSIT BANK" means any bank or financial institution with a
short term rating of at least A1 granted by Standard and Poor's
Corporation or P1 granted by Moody's Investor's Services Inc..
"ENVIRONMENTAL CLAIM" means any claim, proceeding or investigation by
any person in respect of any Environmental Law.
"ENVIRONMENTAL LAW" means any applicable law or regulation which relates
to:
(a) the pollution or protection of the environment;
(b) harm to or the protection of human health; or
(c) the health of animals or plants.
"ENVIRONMENTAL PERMITS" means any permit, licence, consent, approval and
other authorisation and the filing of any notification, report or
assessment required under any Environmental Law for the operation of the
business of any member of the Group conducted on or from the properties
owned or used by any member of the Group.
"EUROSTORAGE ACQUISITION" means the acquisition of the assets, business
and undertaking comprising Eurostorage Dossier & Archief Beheer B.V. by
Iron Mountain Nederland B.V. on 27 February 2004.
"EVENT OF DEFAULT" means any event or circumstance specified as such in
Clause 26 (EVENTS OF DEFAULT).
"EXISTING DEFERRED CONSIDERATION" means:
(a) the deferred consideration of up to euros 2,200,000 due on 12
April 2004 by the Iron Mountain Holdings (Europe) Limited
pursuant to the acquisition by Iron Mountain Holdings (Europe)
Limited of the entire issued share capital of Iron Mountain
Ireland (Holdings) Limited (formerly Beverley Records Management
Limited);
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(b) the deferred consideration of up to euros 2,150,000 due on 1 July
2004 by Iron Mountain Ireland Limited pursuant to the acquisition
by Iron Mountain Ireland Limited of the entire issued share
capital of Record Data Limited; and
(c) the deferred consideration of up to L6,200,000 due by Iron
Mountain Holdings (Europe) Limited on demand pursuant to the
acquisition by Iron Mountain Holdings (Europe) Limited of the
entire issued share capital of Datavault Holdings Limited.
"EXISTING FACILITIES" means the term loans and working capital facility
of up to L43,000,000 provided to, INTER ALIA, the Parent pursuant to a
facility agreement dated 7 May 2003.
"EXISTING RETAINED FACILITIES" means the loan and other facilities
detailed in Part I of Schedule 11 (EXISTING RETAINED FACILITIES AND
EXISTING RETAINED SECURITY).
"EXISTING RETAINED INTER-COMPANY FACILITIES" means:
(a) the loan agreement dated 12 July 2003 made between the Parent and
Iron Mountain Group (Europe) Limited pursuant to which Iron
Mountain Group (Europe) Limited made available to the Parent a
loan facility of up to L35,070,000.
(b) the loan agreement dated 12 July 2003 made between the Parent and
Iron Mountain Group (Europe) Limited pursuant to which Iron
Mountain Group (Europe) Limited made available to the Parent a
loan facility of up to L34,930,000.
(c) the demand promissory note dated 4 January 1999 made between the
Parent (then Britannia Data Management Limited) and Iron Mountain
Group (Europe) Limited.
(d) the senior subordinated bridge loan agreement dated 12 July 2003
made between the Parent and Iron Mountain Group (Europe) Limited
pursuant to which Iron Mountain Group (Europe) Limited made
available to the Parent a loan facility of up to L160,000,000.
"EXISTING RETAINED SECURITY" means the security set out in Part II of
Schedule 11.
"EXPIRY DATE" means for a Letter of Credit, the last day of its Term.
"FACILITY" means the Term Facility or the Revolving Facility.
"FACILITY OFFICE" means the office or offices notified by a Lender to
the Facility Agent in writing on or before the date it becomes a Lender
(or, following that date, by not less than five Business Days' written
notice) as the office or offices through which it will perform its
obligations under this Agreement.
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"FEE LETTER" means:
(a) any letter or letters dated on or about the date of this
Agreement between the Arranger and the Parent (or the Facility
Agent and the Parent or the Security Trustee and the Parent)
setting out any of the fees referred to in Clause 15 (FEES); and
(b) any other agreement setting out fees referred to in Clause 15.4
(FEES PAYABLE IN RESPECT OF LETTERS OF CREDIT).
"FINAL MATURITY DATE" means the date falling five years from the date of
this Agreement.
"FINANCE DOCUMENT" means this Agreement, any Fee Letter, any Accession
Letter, any Resignation Letter, any Transaction Security Document, the
Subordination Agreement, any Ancillary Document, any Hedging Agreement
and any other document designated as a "FINANCE DOCUMENT" by the
Facility Agent and the Parent.
"FINANCE PARTY" means the Facility Agent, the Arranger, the Security
Trustee, a Lender, the Issuing Bank, a Hedge Bank or any Ancillary
Lender.
"FINANCIAL INDEBTEDNESS" means any indebtedness for or in respect of:
(a) Borrowings;
(b) any derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or
price (and, when calculating the value of any derivative
transaction, only the marked to market value shall be taken into
account); and
(c) (without double counting) the amount of any liability in respect
of any guarantee or indemnity or similar assurance against
financial loss for any of the items referred to in the preceding
paragraphs of this definition and any agreement to maintain the
solvency of any person whether by investing in, lending to or
purchasing the assets of such person.
"FINANCIAL QUARTER" has the meaning given to that term in Clause 24.1
(FINANCIAL DEFINITIONS).
"FORTIS PLEDGE" means the pledge of bank accounts granted by Iron
Mountain Nederland B.V. in favour of Fortis Bank and listed in
Part II (EXISTING RETAINED SECURITY) of Schedule II.
"GROUP" means the Parent and its Subsidiaries for the time being.
"GUARANTOR" means an Original Guarantor or an Additional Guarantor,
unless it has ceased to be a Guarantor in accordance with Clause 28
(CHANGES TO THE OBLIGORS).
"HAYS IMS" means the information management services business acquired
by the Parent from Hays plc and certain of its associated companies
comprising business and assets within the United Kingdom and shares in
other jurisdictions.
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"HAYS IMS ACQUISITION" means the acquisition by the Group of the entire
business and assets and certain shares comprising Hays IMS from Hays Plc
on 16 July 2003, treated as effective as from 1 July 2003.
"HAYS IMS ACQUISITION INDEBTEDNESS" has the meaning described to it in
paragraph (a)(ii) of Clause 3.1 (PURPOSE).
"HAYS' LEASES" means the leasehold interests to be assigned to certain
members of the Group pursuant to the Hays IMS Acquisition.
"HEDGE BANK" means any Lender or an Affiliate of a Lender which (if not
a Lender) has acceded to this Agreement, which enters into a Hedging
Agreement.
"HEDGING AGREEMENT" means any agreement entered into or to be entered
into by a Borrower and a Hedge Bank for the purpose of hedging interest
rate liabilities in relation to the Facilities in accordance with the
Hedging Strategy Letter.
"HEDGING STRATEGY LETTER" means the letter in the agreed form from the
Parent to the Facility Agent setting out the hedging strategy.
"HOLDING COMPANY" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"ICC CHARGES" means the chattel mortgages and the debenture granted by
Iron Mountain Ireland Limited in favour of Bank of Scotland (formerly
ICC Bank plc) and listed in Part II (EXISTING RETAINED SECURITY) of
Schedule 11.
"INFORMATION MEMORANDUM" means the document in the form approved by the
Parent which, at the request of the Parent and on its behalf was
prepared in relation to this transaction and distributed by the Arranger
to selected financial institutions before the date of this Agreement.
"INTEREST PERIOD" means, in relation to a Loan, each period determined
in accordance with Clause 13 (INTEREST PERIODS) and, in relation to an
Unpaid Sum, each period determined in accordance with Clause 12.3
(DEFAULT INTEREST).
"JOINT VENTURE GROUP COMPANY" means any joint venture company,
corporation, partnership, trust or other entity in any jurisdiction in
which a member of the Group owns 75 per cent. or less of the issued
share capital equity or voting rights.
"L/C PROPORTION" means in relation to a Lender in respect of any Letter
of Credit, the proportion (expressed as a percentage) borne by that
Lender's Available Commitment to the relevant Available Facility
immediately prior to the issue of that Letter of Credit.
"LENDER" means:
(a) any Original Lender; and
(b) any bank, financial institution, trust, fund or other entity
which has become a Party in accordance with Clause 27 (CHANGES TO
THE LENDERS),
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which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
"LETTER OF CREDIT" means:
(a) a letter of credit, substantially in the form set out in Schedule
12 (FORM OF LETTER OF CREDIT) or in any other form requested by
the Parent and agreed by the Facility Agent, the Issuing Bank and
the Lenders; or
(b) any guarantee, indemnity or other instrument in a form requested
by a Borrower (or the Parent on its behalf) and agreed by the
Facility Agent, the Issuing Bank and the Lenders.
"LIBOR" means, in relation to any Loan:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or Interest
Period of that Loan) the arithmetic mean of the rates (rounded
upwards to four decimal places) as supplied to the Facility Agent
at its request quoted by the Reference Banks to leading banks in
the London interbank market,
as of the Specified Time on the Quotation Day for the offering of
deposits in the currency of that Loan and for a period comparable to the
Interest Period for that Loan.
"LOAN" means a Term Loan or a Revolving Loan.
"LMA" means the Loan Market Association.
"MAJORITY CREDITORS" means, at any time, a Lender or Lenders whose
Credit Participations at that time aggregate more than 66 2/3% of the
total Credit Participations at that time.
"MAJORITY LENDERS" means, at any time:
(a) a Lender or Lenders whose Commitments aggregate more than 66
2/3% of the Total Commitments at that time; or
(b) if the Total Commitments have been reduced to zero, a Lender or
Lenders whose Commitments aggregated more than 66 2/3% of the
Total Commitments immediately prior to the reduction).
"MANDATORY COST" means the percentage rate per annum calculated by the
Facility Agent in accordance with Schedule 4 (MANDATORY COST FORMULAE).
"MARGIN" means 1.75 per cent. per annum:
but if:
(a) no Event of Default has occurred and is continuing;
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(b) a period of at least 12 months has expired since the date of this
Agreement; and
(c) the ratio of Consolidated Total Net Debt at the end of the most
recently completed Relevant Period to EBITDA for such Relevant
Period is within the range set out below:
then the Margin for each Loan will be the percentage per annum set out
below opposite that range.
<Table>
<Caption>
COLUMN A COLUMN B
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CONSOLIDATED TOTAL NET DEBT TO MARGIN
EBITDA % P.A.
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Greater than or equal to 3.5:1 1.75
Less than 3.5:1 but greater than or 1.50
equal to 3.0:1
Less than 3.0:1 1.25
</Table>
Any increase or reduction in the Margin shall take effect on the date of
receipt by the Facility Agent of the Compliance Certificate for that
Relevant Period pursuant to Clause 23.2 (COMPLIANCE CERTIFICATE)
PROVIDED THAT:
(a) if the Parent does not deliver a Compliance Certificate to the
Facility Agent in accordance with the terms of Clause 23.2
(COMPLIANCE CERTIFICATE), the Margin shall as from the date
immediately following the date on which such Compliance
Certificate should have been delivered until the date such
Compliance Certificate is delivered, be 1.75 per cent. per annum;
or
(b) if an Event of Default has occurred and is continuing, the Margin
shall, as from the date of the occurrence of the Event of Default
until the date such Event of Default ceases to be continuing, be
1.75 per cent. per annum.
For the purpose of determining the Margin, Consolidated Total Net Debt
to EBITDA and Relevant Period shall be determined in accordance with
Clause 24.1 (FINANCIAL DEFINITIONS).
"MATERIAL ADVERSE EFFECT" means a material adverse change in:
(a) the business, operations, property, condition (financial or
otherwise) or prospects of the Group taken as a whole;
(b) the ability of an Obligor to perform its payment obligations
under the Finance Documents and/or its obligations under Clause
24.2 (FINANCIAL CONDITION); or
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(c) the validity or enforceability of the Finance Documents or the
rights or remedies of any Finance Party under any of the Finance
Documents.
"MATERIAL COMPANY" means, at any time a Subsidiary of the Parent which:
(a) is listed in Schedule 9 (MATERIAL COMPANIES); or
(b) has earnings before interest, tax, depreciation and amortisation
(calculated on the same basis as EBITDA, as defined in Clause 24
(FINANCIAL COVENANTS)) representing 5 per cent. or more of
EBITDA; or
(c) has gross assets or turnover (excluding intra-group items)
representing 5 per cent. or more of the gross assets or turnover
of the Group,
in each case calculated on a consolidated basis.
Compliance with the conditions set out in paragraphs (b) and (c) shall
be determined by reference to the most recent Compliance Certificate
supplied by the Parent and/or the latest audited financial statements of
that Subsidiary (consolidated in the case of a Subsidiary which itself
has Subsidiaries) and the latest audited consolidated financial
statements of the Group.
However if a Subsidiary has been acquired since the date as at which the
latest audited consolidated financial statements of the Group were
prepared, the financial statements shall be deemed to be adjusted in
order to take into account the acquisition of that Subsidiary.
A report by the auditors of the Parent that a Subsidiary is or is not a
Material Company shall, in the absence of manifest error, be conclusive
and binding on all Parties.
"MENTMORE DISPOSAL" means the disposal on 27 February 2004 by Mentmore
plc of all of its shareholding in the Parent to Iron Mountain Mayflower
Limited.
"MONTH" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar month,
except that:
(a) (subject to paragraph (c) below) if the numerically corresponding
day is not a Business Day, that period shall end on the next
Business Day in that calendar month in which that period is to
end if there is one, or if there is not, on the immediately
preceding Business Day;
(b) if there is no numerically corresponding day in the calendar
month in which that period is to end, that period shall end on
the last Business Day in that calendar month; and
(c) if an Interest Period begins on the last Business Day of a
calendar month, that Interest Period shall end on the last
Business Day in the calendar month in which that Interest Period
is to end.
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The above rules will only apply to the last Month of any period.
"MONTHLY" shall be construed accordingly.
"OBLIGOR" means a Borrower or a Guarantor.
"OBLIGORS' AGENT" means the Parent, appointed to act on behalf of each
Obligor in relation to the Finance Documents pursuant to Clause 2.3
(OBLIGORS' AGENT).
"OPTIONAL CURRENCY" means:
(a) euro and/or US dollars; and
(b) a currency (other than the Base Currency) which complies with the
conditions set out in Clause 4.3 (CONDITIONS RELATING TO OPTIONAL
CURRENCIES).
"ORIGINAL FINANCIAL STATEMENTS" means the audited consolidated financial
statements of the Parent.
"ORIGINAL OBLIGOR" means an Original Borrower or an Original Guarantor.
"OVERSEAS SUBSIDIARY" means those of the Subsidiaries incorporated in a
jurisdiction other than the United Kingdom and Ireland.
"PARTICIPATING MEMBER STATE" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency
in accordance with legislation of the European Community relating to
Economic and Monetary Union.
"PARTY" means a party to this Agreement.
"PLEDGED COMPANY" means any direct or indirect Subsidiary of the Parent
in respect of which 100% (or, in the case of Iron Mountain Espana S.A.,
99.99%) of its voting and issued share capital is pledged pursuant to a
Transaction Security Document PROVIDED THAT such Transaction Security
Document creates a valid and effective fixed charge over such voting and
issued share capital of such Subsidiary in its jurisdiction of
incorporation.
"QUALIFYING LENDER" has the meaning given to that term in Clause 16 (TAX
GROSS-UP AND INDEMNITIES).
"QUOTATION DAY" means, in relation to any period for which an interest
rate is to be determined:
(a) (if the currency is sterling) the first day of that period;
(b) (if the currency is euro) two TARGET Days before the first day of
that period; or
(c) (for any other currency) two Business Days before the first day
of that period,
unless market practice differs in the Relevant Interbank Market for a
currency, in which case the Quotation Day for that currency will be
determined by the Facility
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Agent in accordance with market practice in the Relevant Interbank
Market (and if quotations would normally be given by leading banks in
the Relevant Interbank Market on more than one day, the Quotation Day
will be the last of those days).
"RECEIVER" means a receiver or receiver and manager or administrative
receiver of the whole or any part of the Charged Property.
"REFERENCE BANKS" means the principal London offices of Barclays Bank
PLC, The Governor and Company of the Bank of Scotland and HSBC Bank plc
or such other banks as may be appointed by the Facility Agent in
consultation with the Parent.
"REFINANCING PREMIUM" has the meaning ascribed to it in paragraph (c) of
Clause 11.11 (RESTRICTIONS)
"RELEVANT INTERBANK MARKET" means the London interbank market.
"RELEVANT JURISDICTION" means, in relation to an Obligor:
(a) its jurisdiction of incorporation;
(b) any jurisdiction where any asset subject to or intended to be
subject to the Transaction Security to be created by it is
situated;
(c) any jurisdiction where it conducts its business; and
(d) the jurisdiction whose laws govern the perfection of any of the
Transaction Security Documents entered into by it.
"RENEWAL REQUEST" means a written notice delivered to the Facility Agent
in accordance with Clause 6.6 (RENEWAL OF A LETTER OF CREDIT).
"REPAYMENT DATE" means each of the dates specified in Clause 10.1
(REPAYMENT OF TERM LOANS) as Repayment Dates.
"REPAYMENT INSTALMENT" means each instalment for repayment of the Term
Loans referred to in Clause 10.1 (REPAYMENT OF TERM LOANS).
"REPEATING REPRESENTATIONS" means each of the representations set out in
Clauses 22.1 (STATUS) to Clause 22.6 (GOVERNING LAW AND ENFORCEMENT),
Clause 22.8 (NO DEFAULT), paragraph (e) of Clause 22.9 (NO MISLEADING
INFORMATION), paragraphs (c) and (d) of Clause 22.10 (FINANCIAL
STATEMENTS), Clause 22.11 (NO PROCEEDINGS PENDING OR THREATENED), Clause
22.16 (PARI PASSU RANKING), Clause 22.17 (TRANSACTION SECURITY) to
Clause 22.19 (SHARES).
"REPORTS" means the Due Diligence Report.
"REVOLVING COMMITMENT" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Revolving
Commitment" in Part II of
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Schedule 1 (THE ORIGINAL PARTIES) and the amount of any other
Revolving Commitment transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base Currency
of any Revolving Commitment transferred to it under this
Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"REVOLVING FACILITY" means the revolving credit facility made available
under this Agreement as described in paragraph (a)(ii) of Clause 2.1
(THE FACILITIES).
"REVOLVING LOAN" means a loan made or to be made under the Revolving
Facility or the principal amount outstanding for the time being of that
loan.
"REVOLVING FACILITY UTILISATION" means a Revolving Loan or a Letter of
Credit.
"ROLLOVER LOAN" means one or more Revolving Loans:
(a) made or to be made on the same day that:
(i) a maturing Revolving Loan is due to be repaid; or
(ii) a demand by the Facility Agent pursuant to a drawing in
respect of a Letter of Credit is due to be met;
(b) the aggregate amount of which is equal to or less than the
maturing Revolving Loan or the relevant claim in respect of that
Letter of Credit;
(c) in the same currency as the maturing Revolving Loan (unless it
arose as a result of the operation of Clause 8.2 (UNAVAILABILITY
OF A CURRENCY)) or the relevant claim in respect of that Letter
of Credit; and
(d) made or to be made to the same Borrower for the purpose of:
(i) refinancing a maturing Revolving Loan; or
(ii) satisfying the relevant claim in respect of that Letter of
Credit.
"SCREEN RATE" means in relation to LIBOR, the British Bankers'
Association Interest Settlement Rate for the relevant currency and
period in the British Bankers' Association Interest Settlement Rate for
the relevant currency and period displayed on the appropriate page of
the Telerate screen. If the agreed page is replaced or service ceases to
be available, the Facility Agent may specify another page or service
displaying the appropriate rate after consultation with the Parent and
the Lenders.
"SECURED OBLIGATIONS" means all obligations which any of the Obligors
may at any time have to the Security Trustee (whether for its own
account or as trustee for the Secured Parties) or any of the other
Secured Parties under or pursuant to the Finance Documents, whether
present or future, actual or contingent (and whether incurred solely or
jointly and whether as principal or as surety or in some other
capacity),
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including the obligations set out in Clause 30.2 (PARALLEL DEBT
(COVENANT TO PAY THE SECURITY TRUSTEE)) of the Facility Agreement.
"SECURED PARTIES" means the Security Trustee, the Arrangers, the
Facility Agent and each Lender, the Issuing Bank, each Ancillary Lender
and each Hedge Bank from time to time party to this Agreement.
"SECURITY" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement or
arrangement having a similar effect.
"SELECTION NOTICE" means a notice substantially in the form set out in
Part II of Schedule 3 (SELECTION NOTICE) given in accordance with Clause
13 (INTEREST PERIODS) in relation to a Term Facility.
"SPANISH PUBLIC DOCUMENT" means documento publico.
"SPECIFIED TIME" means a time determined in accordance with Schedule 8
(TIMETABLES).
"SUBORDINATED LOANS" means the unsecured loans made by the Subordinated
Lender to the Parent under the Subordinated Loan Agreement.
"SUBORDINATED LENDER" means Iron Mountain Inc.
"SUBORDINATED LOAN AGREEMENT" means the loan agreement dated on or about
the date of this Agreement made between the Subordinated Lender and the
Parent pursuant to which the Subordinated Loans were made available.
"SUBORDINATION AGREEMENT" means the deed of subordination dated the same
date as this Agreement and made between the Security Trustee, Iron
Mountain Inc and the Obligors.
"SUBSIDIARY" means a subsidiary within the meaning of section 736 of the
Companies Act 1985.
"TARGET" means Trans-European Automated Real-time Gross Settlement
Express Transfer payment system.
"TARGET DAY" means any day on which TARGET is open for the settlement of
payments in euro.
"TAX" means any tax, levy, impost, duty or other charge or withholding
of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the
same).
"TAXES ACT" means the Income and Corporation Taxes Act 1988.
"TERM" means each period determined under this Agreement for which the
Issuing Bank is under a liability under a Letter of Credit.
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"TERM COMMITMENT" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Term
Commitment" in Part II of Schedule 1 (THE ORIGINAL PARTIES) and
the amount of any other Term Commitment transferred to it under
this Agreement; and
(b) in relation to any other Lender, the amount in the Base Currency
of any Term Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"TERM FACILITY" means the term loan facility made available under this
Agreement as described in paragraph (a)(i) of Clause 2.1 (THE
FACILITIES).
"TERM LOAN" means a loan made or to be made under the Term Facility or
the principal amount outstanding for the time being of that loan.
"TOTAL COMMITMENTS" means the aggregate of the Total Term Commitments
and the Total Revolving Commitments.
"TOTAL TERM COMMITMENTS" means the aggregate of the Term Commitments.
"TOTAL REVOLVING COMMITMENTS" means the aggregate of the Revolving
Commitments.
"TRANSACTION SECURITY" means the Security created or expressed to be
created in favour of the Security Trustee pursuant to the Transaction
Security Documents.
"TRANSACTION SECURITY DOCUMENTS" means each of the following documents:
(a) the charges, pledges and assignments and other security documents
in form and substance acceptable to the Security Trustee and the
Facility Agent and identified in and delivered to the Facility
Agent under paragraph 3 of Part I of Schedule 2 (CONDITIONS
PRECEDENT TO INITIAL UTILISATION) or under Part III of Schedule 2
(TRANSACTION SECURITY DOCUMENTS AND SECURITY RELATED DOCUMENTS TO
BE DELIVERED BY ADDITIONAL OBLIGORS); and
(b) any other document entered into by any Obligor creating or
expressed to create any Security over all or any part of its
assets in respect of the obligations of any of the Obligors under
any of the Finance Documents.
"TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in Schedule 5 (FORM OF TRANSFER CERTIFICATE) or any other form
agreed between the Facility Agent and the Parent.
"TRANSFER DATE" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer Certificate;
and
(b) the date on which the Facility Agent executes the Transfer
Certificate.
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"UNPAID SUM" means any sum due and payable but unpaid by an Obligor
under the Finance Documents.
"UTILISATION" means a utilisation of a Facility.
"UTILISATION DATE" means the date on which a Utilisation is made.
"UTILISATION REQUEST" means a notice substantially in the form set out
in Part I of Schedule 3 (REQUESTS).
"VAT" means value added tax as provided for in the Value Added Tax Act
1994 and any other tax of a similar nature.
1.2 CONSTRUCTION
(a) Unless a contrary indication appears a reference in this
Agreement to:
(i) the "FACILITY AGENT", the "ARRANGER", the "SECURITY
TRUSTEE", any "FINANCE PARTY", any "SECURED PARTY", any
"LENDER", any "OBLIGOR", any "PARTY" or any other person
shall be construed so as to include its successors in
title, permitted assigns and permitted transferees and, in
the case of the Security Trustee, any person for the time
being appointed as security trustee or security trustees
in accordance with this Agreement;
(ii) "ASSETS" includes present and future properties, revenues
and rights of any description;
(iii) the "EUROPEAN INTERBANK MARKET" means the interbank market
for euro operating in Participating Member States;
(iv) a "FINANCE DOCUMENT" or a "TRANSACTION SECURITY DOCUMENT"
or any other agreement or instrument is a reference to
that Finance Document or Transaction Security Document or
other agreement or instrument as amended or novated
(however fundamentally);
(v) "GUARANTEE" means (other than in Clause 21 (GUARANTEE AND
INDEMNITY)) any guarantee, letter of credit, bond,
indemnity or similar assurance against loss, or any
obligation, direct or indirect, actual or contingent, to
purchase or assume any indebtedness of any person or to
make an investment in or loan to any person or to purchase
assets of any person where, in each case, such obligation
is assumed in order to maintain or assist the ability of
such person to meet its indebtedness;
(vi) "INDEBTEDNESS" includes any obligation (whether incurred
as principal or as surety) for the payment or repayment of
money, whether present or future, actual or contingent;
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(vii) a "PARTICIPATION" of a Lender in a Loan means the amount
of such Loan which such Lender has made or is to make
available and thereafter that part of the Loan which is
owed to such Lender;
(viii) a "PERSON" includes any person, firm, company,
corporation, government, state or agency of a state or any
association, trust or partnership (whether or not having
separate legal personality) of two or more of the
foregoing;
(ix) a "REGULATION" includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law) of any governmental, intergovernmental or
supranational body, agency, department or regulatory,
self-regulatory or other authority or organisation;
(x) a provision of law is a reference to that provision as
amended or re-enacted; and
(xi) a time of day is a reference to London time.
(b) Section, Clause and Schedule headings are for ease of reference
only.
(c) Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
(d) A Default is "CONTINUING" if it has not been remedied or waived.
(e) A Borrower providing "CASH COVER" for a Letter of Credit means a
Borrower paying an amount in the currency of the Letter of Credit
to an interest-bearing account in the name of the Borrower and
the following conditions being met:
(i) the account is with the Facility Agent (if the cash cover
is to be provided for all the Lenders) or with a Lender
(if the cash cover is to be provided for that Lender);
(ii) until no amount is or may be outstanding under that Letter
of Credit, withdrawals from the account may only be made
to pay a Finance Party amounts due and payable to it under
this Agreement in respect of that Letter of Credit; and
(iii) the Borrower has executed a security document over that
account, in form and substance satisfactory to the
Facility Agent or the Lender with which that account is
held, creating a first ranking security interest over that
account.
(f) A Borrower "REPAYING" or "PREPAYING" a Letter of Credit means:
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(i) that Borrower providing cash cover for that Letter of
Credit;
(ii) the maximum amount payable under the Letter of Credit
being reduced or cancelled in accordance with its terms;
or
(iii) the Issuing Bank being satisfied that it has no further
liability under that Letter of Credit,
and the amount by which a Letter of Credit is repaid, prepaid or
cancelled under sub-paragraphs (f)(i) and (f)(ii) above is the
amount of the relevant cash cover or reduction.
(g) An amount borrowed includes any amount utilised by way of Letter
of Credit.
(h) A Lender funding its participation in a Utilisation includes a
Lender participating in a Letter of Credit.
(i) An outstanding amount of a Letter of Credit at any time is the
maximum amount that is or may be payable by the relevant Borrower
in respect of that Letter of Credit at that time.
1.3 CURRENCY SYMBOLS AND DEFINITIONS
"L" and "STERLING" denotes lawful currency of the United Kingdom and
"EUR" and "EURO" means the single currency unit of the Participating
Member States.
1.4 THIRD PARTY RIGHTS
(a) Unless expressly provided to the contrary in a Finance Document a
person who is not a Party has no right under the Contracts
(Rights of Third Parties) Act 1999 (the "THIRD PARTIES ACT") to
enforce or enjoy the benefit of any term of any Finance Document.
(b) Notwithstanding any term of any Finance Document, the consent of
any person who is not a Party is not required to rescind or vary
any Finance Document at any time.
1.5 BARCLAYS CAPITAL
References in the Finance Documents to "Barclays Capital" are references
to Barclays Capital, the investment banking division of Barclays Bank
PLC.
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SECTION 2
THE FACILITIES
2. THE FACILITIES
2.1 THE FACILITIES
(a) Subject to the terms of this Agreement, the Lenders make
available:
(i) a sterling term loan facility in an aggregate amount equal
to the Total Term Commitments being L100,000,000 at the
date of this Agreement; and
(ii) a multicurrency revolving credit facility in an aggregate
amount equal to the Total Revolving Commitments being
L100,000,000 at the date of this Agreement.
(b) The Revolving Facility will be available to all of the Borrowers.
The Term Facility will only be available to the Parent.
(c) Subject to the terms of this Agreement and the Ancillary
Documents, an Ancillary Lender may make available an Ancillary
Facility to any of the Borrowers.
2.2 FINANCE PARTIES RIGHTS AND OBLIGATIONS
(a) The obligations of each Finance Party under the Finance Documents
are several. Failure by a Finance Party to perform its
obligations under the Finance Documents does not affect the
obligations of any other Party under the Finance Documents. No
Finance Party is responsible for the obligations of any other
Finance Party under the Finance Documents.
(b) The rights of each Finance Party under or in connection with the
Finance Documents are separate and independent rights and any
debt arising under the Finance Documents to a Finance Party from
an Obligor shall be a separate and independent debt.
(c) A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance
Documents.
2.3 OBLIGORS' AGENT
(a) Each Obligor (other than the Parent) by its execution of this
Agreement or an Accession Letter irrevocably appoints the Parent
to act on its behalf as its agent in relation to the Finance
Documents and irrevocably authorises:
(i) the Parent on its behalf to supply all information
concerning itself contemplated by this Agreement to the
Finance Parties and to give all notices and instructions
(including, in the case of a Borrower, Utilisation
Requests), to execute on its behalf any Accession Letter,
to make such agreements and to effect the relevant
amendments, supplements and variations capable of being
given, made or effected by any Obligor
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notwithstanding that they may affect the Obligor, without
further reference to or the consent of that Obligor; and
(ii) each Finance Party to give any notice, demand or other
communication to that Obligor pursuant to the Finance
Documents to the Parent,
and in each case the Obligor shall be bound as though the Obligor
itself had given the notices and instructions (including, without
limitation, any Utilisation Requests) or executed or made the
agreements or effected the amendments, supplements or variations,
or received the relevant notice, demand or other communication.
(b) Every act, omission, agreement, undertaking, settlement, waiver,
amendment, supplement, variation, notice or other communication
given or made by the Obligors' Agent or given to the Obligors'
Agent under any Finance Document on behalf of another Obligor or
in connection with any Finance Document (whether or not known to
any other Obligor and whether occurring before or after such
other Obligor became an Obligor under any Finance Document) shall
be binding for all purposes on that Obligor as if that Obligor
had expressly made, given or concurred with it. In the event of
any conflict between any notices or other communications of the
Obligors' Agent and any other Obligor, those of the Obligors'
Agent shall prevail.
3. PURPOSE
3.1 PURPOSE
(a) The Parent shall apply all amounts borrowed by it under the Term
Facility towards:
(i) refinancing the Existing Facilities and all broken
funding, accrued interest and other costs and expenses
relating to such refinancing; and
(ii) general corporate and working capital purposes, including
without limitation the refinancing of Financial
Indebtedness owed by the Parent to Iron Mountain Inc. and
incurred in connection with the Hays IMS Acquisition (the
"HAYS IMS ACQUISITION INDEBTEDNESS").
(b) Each Borrower shall apply all amounts borrowed by it under the
Revolving Facility towards the general corporate and working
capital purposes of the Group including, without limitation,
refinancing the Hays IMS Acquisition Indebtedness.
3.2 MONITORING
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
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4. CONDITIONS OF UTILISATION
4.1 INITIAL CONDITIONS PRECEDENT
No Borrower may deliver a Utilisation Request unless the Facility Agent
has received all of the documents and other evidence listed in Part I of
Schedule 2 (CONDITIONS PRECEDENT TO INITIAL UTILISATION) in form and
substance satisfactory to the Facility Agent. The Facility Agent shall
notify the Parent and the Lenders promptly upon being so satisfied.
4.2 FURTHER CONDITIONS PRECEDENT
The Lenders will only be obliged to comply with Clause 5.4 (LENDERS'
PARTICIPATION) if on the date of the Utilisation Request and on the
proposed Utilisation Date:
(a) in the case of a Rollover Loan, no Event of Default is continuing
or would result from the proposed Loan and, in the case of any
other Loan, no Default is continuing or would result from the
proposed Loan; and
(b) the Repeating Representations to be made by each Obligor are true
in all material respects.
4.3 CONDITIONS RELATING TO OPTIONAL CURRENCIES
(a) A currency will constitute an Optional Currency in relation to a
Revolving Loan if:
(i) it is readily available in the amount required and freely
convertible into the Base Currency in the Relevant
Interbank Market on the Quotation Day and the Utilisation
Date for that Loan; and
(ii) it has been approved by the Facility Agent (acting on the
instructions of all the Lenders) on or prior to receipt by
the Facility Agent of the relevant Utilisation Request for
that Loan.
(b) If the Facility Agent has received a written request from the
Parent for a currency to be approved under paragraph (a)(ii)
above, the Facility Agent will confirm to the Parent by the
Specified Time:
(i) whether or not the Lenders have granted their approval;
and
(ii) if approval has been granted, the minimum amount (and, if
required, integral multiples) for any subsequent Loan in
that currency.
4.4 MAXIMUM NUMBER OF UTILISATIONS
(a) The Parent may not deliver a Utilisation Request if as a result
of the proposed Utilisation more than one Term Loan would be
outstanding.
(b) A Borrower (or the Parent) may not deliver a Utilisation Request
if as a result of the proposed Utilisation ten (10) or more
Revolving Facility Utilisations would be outstanding.
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(c) Any Loan made by a single Lender under Clause 8.2 (UNAVAILABILITY
OF A CURRENCY) shall not be taken into account in this Clause
4.4.
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SECTION 3
UTILISATION
5. UTILISATION OF LOANS
5.1 DELIVERY OF A UTILISATION REQUEST
A Borrower may utilise a Facility by delivery to the Facility Agent of a
duly completed Utilisation Request not later than the Specified Time.
5.2 COMPLETION OF A UTILISATION REQUEST
(a) Each Utilisation Request is irrevocable and will not be regarded
as having been duly completed unless:
(i) it identifies the Facility to be utilised;
(ii) the proposed Utilisation Date is a Business Day within the
Availability Period applicable to that Facility;
(iii) the currency and amount of the Utilisation comply with
Clause 5.3 (CURRENCY AND AMOUNT); and
(iv) the proposed Interest Period complies with Clause 13
(INTEREST PERIODS).
(b) Only one Utilisation may be requested in each Utilisation
Request.
5.3 CURRENCY AND AMOUNT
(a) The currency specified in a Utilisation Request must be:
(i) in relation to the Term Facility the Base Currency; and
(ii) in relation to the Revolving Facility the Base Currency or
an Optional Currency.
(b) The amount of the proposed Utilisation must be an amount whose
Base Currency Amount is not more than the Available Facility and
which is:
(i) if the currency selected is the Base Currency, a minimum
amount of L5,000,000 for the Term Facility or the
Revolving Facility or in any case, if less, the Available
Facility;
(ii) if the currency selected is euro, a minimum of euro
7,500,000 for the Revolving Facility or in any case, if
less, the Available Facility; or
(iii) if the currency selected is an Optional Currency, the
minimum amount specified by the Facility Agent for the
Revolving Facility pursuant to paragraph (b)(ii) of Clause
4.3 (CONDITIONS RELATING TO OPTIONAL CURRENCIES) or, if
less, the Available Facility.
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5.4 LENDERS' PARTICIPATION
(a) If the conditions set out in this Agreement have been met, each
Lender shall make its participation in each Loan available by the
Utilisation Date through its Facility Office.
(b) The amount of each Lender's participation in each Loan will be
equal to the proportion borne by its Available Commitment to the
Available Facility immediately prior to making the Loan.
(c) The Facility Agent shall determine the Base Currency Amount of
each Revolving Loan which is to be made in an Optional Currency
and notify each Lender of the amount, currency and the Base
Currency Amount of each Loan and the amount of its participation
in that Loan by the Specified Time.
5.5 LIMITATIONS ON UTILISATIONS
The maximum aggregate amount of the actual and contingent liabilities of
the Issuing Bank under all Letters of Credit shall not exceed
L20,000,000 (or its equivalent in any other currency).
6. UTILISATION - LETTERS OF CREDIT
6.1 THE REVOLVING FACILITY
(a) The Revolving Facility may be utilised by way of Letters of
Credit.
(b) Other than Clause 5.5 (LIMITATIONS ON UTILISATIONS), Clause 5
(UTILISATION OF LOANS) does not apply to utilisation by way of
Letters of Credit.
6.2 DELIVERY OF A UTILISATION REQUEST FOR LETTERS OF CREDIT
A Borrower (or the Parent on its behalf) may request a Letter of Credit
to be issued by delivery to the Facility Agent of a duly completed
Utilisation Request not later than the Specified Time.
6.3 COMPLETION OF A UTILISATION REQUEST FOR LETTERS OF CREDIT
Each Utilisation Request for a Letter of Credit is irrevocable and will
not be regarded as having been duly completed unless:
(a) it specifies that it is for a Letter of Credit;
(b) it identifies the Borrower of the Letter of Credit;
(c) the proposed Utilisation Date is a Business Day within the
Availability Period applicable to the Revolving Facility;
(d) the currency and amount of the Letter of Credit comply with
Clause 6.4 (CURRENCY AND AMOUNT);
(e) the form of Letter of Credit is attached;
(f) the Expiry Date of the Letter of Credit falls on or before the
Final Maturity Date in relation to the Revolving Facility;
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(g) the Term of the Letter of Credit is 12 months or less;
(h) the delivery instructions for the Letter of Credit are specified;
and
(i) the identity of the beneficiary of the Letter of Credit is
approved by the Lenders.
6.4 CURRENCY AND AMOUNT
(a) The currency specified in a Utilisation Request must be the Base
Currency or an Optional Currency.
(b) Subject to Clause 5.5 (LIMITATIONS ON UTILISATIONS), the amount
of the proposed Letter of Credit must be an amount whose Base
Currency Amount is not more than the Available Facility and which
is:
(i) if the currency selected is the Base Currency, a minimum
of L1,000,000 of, if less, the Available Facility; or
(ii) if the currency selected is euro, a minimum of euro
1,500,000 or, if less, the Available Facility; or
(iii) if the currency selected is an Optional Currency, the
minimum amount specified by the Facility Agent pursuant to
paragraph (b)(ii) of Clause 4.3 (CONDITIONS RELATING TO
OPTIONAL CURRENCIES) or, if less, the Available Facility.
6.5 ISSUE OF LETTERS OF CREDIT
(a) If the conditions set out in this Agreement have been met, the
Issuing Bank shall issue the Letter of Credit on the Utilisation
Date.
(b) The Issuing Bank will only be obliged to comply with paragraph
(a) above if on the date of the Utilisation Request or Renewal
Request and on the proposed Utilisation Date:
(i) in the case of a Letter of Credit to be renewed in
accordance with Clause 6.6 (RENEWAL OF A LETTER OF CREDIT)
no Event of Default is continuing or would result from the
proposed Utilisation and, in the case of any other
Utilisation, no Default is continuing or would result from
the proposed Utilisation; and
(ii) the Repeating Representations to be made by each Obligor
are true in all material respects.
(c) The amount of each Lender's participation in each Letter of
Credit will be equal to its L/C Proportion immediately prior to
the issue of the Letter of Credit.
(d) The Facility Agent shall determine the Base Currency Amount of
each Letter of Credit which is to be issued in an Optional
Currency and shall notify the
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Issuing Bank and each Lender of the details of the requested
Letter of Credit and its participation in that Letter of Credit
by the Specified Time.
6.6 RENEWAL OF A LETTER OF CREDIT
(a) A Borrower (or the Parent on its behalf) may request that any
Letter of Credit issued on behalf of that Borrower be renewed by
delivery to the Facility Agent of a Renewal Request in
substantially similar form to a Utilisation Request for a Letter
of Credit by the Specified Time.
(b) The Finance Parties shall treat any Renewal Request in the same
way as a Utilisation Request for a Letter of Credit except that
the conditions set out in paragraph (e) of Clause 6.3 (COMPLETION
OF A UTILISATION REQUEST FOR LETTERS OF CREDIT) shall not apply.
(c) The terms of each renewed Letter of Credit shall be the same as
those of the relevant Letter of Credit immediately prior to its
renewal, except that:
(i) its amount may be less than the amount of the Letter of
Credit immediately prior to its renewal; and
(ii) its Term shall start on the date which was the Expiry Date
of the Letter of Credit immediately prior to its renewal,
and shall end on the proposed Expiry Date specified in the
Renewal Request.
(d) If the conditions set out in this Agreement have been met, the
Issuing Bank shall amend and re-issue any Letter of Credit
pursuant to a Renewal Request.
6.7 REVALUATION OF LETTERS OF CREDIT
(a) If any Letters of Credit are denominated in an Optional Currency,
the Facility Agent shall at six monthly intervals after the date
of the Letter of Credit recalculate the Base Currency Amount of
each Letter of Credit by notionally converting into the Base
Currency the outstanding amount of that Letter of Credit on the
basis of the Agent's Spot Rate of Exchange on the date of
calculation.
(b) The Parent shall, if requested by the Facility Agent within five
days of any calculation under paragraph (a) above, ensure that
within three Business Days sufficient Revolving Facility
Utilisations are prepaid to prevent the Base Currency Amount of
the Revolving Facility Utilisations exceeding the Total Revolving
Facility Commitments following any adjustment to a Base Currency
Amount under paragraph (a) of this Clause 6.7.
7. LETTERS OF CREDIT
7.1 IMMEDIATELY PAYABLE
If a Letter of Credit or any amount outstanding under a Letter of Credit
is expressed to be immediately payable, the Borrower that requested (or
on behalf of which the Parent requested) the issue of that Letter of
Credit shall repay or prepay that amount immediately.
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7.2 CLAIMS UNDER A LETTER OF CREDIT
(a) Each Borrower irrevocably and unconditionally authorises the
Issuing Bank to pay any claim made or purported to be made under
a Letter of Credit requested by it (or requested by the Parent on
its behalf) and which appears on its face to be in order (in this
Clause 7, a "CLAIM").
(b) Each Borrower shall immediately on demand or, if such payment is
being funded by a Revolving Facility Loan, shall within three
Business Days of demand pay to the Facility Agent for the Issuing
Bank an amount equal to the amount of any claim.
(c) Each Borrower acknowledges that the Issuing Bank:
(i) is not obliged to carry out any investigation or seek any
confirmation from any other person before paying a claim;
and
(ii) deals in documents only and will not be concerned with the
legality of a claim or any underlying transaction or any
available set-off, counterclaim or other defence of any
person.
(d) The obligations of a Borrower under this Clause 7 will not be
affected by:
(i) the sufficiency, accuracy or genuineness of any claim or
any other document; or
(ii) any incapacity of, or limitation on the powers of, any
person signing a claim or other document.
7.3 INDEMNITIES
(a) Each Borrower shall immediately on demand indemnify the Issuing
Bank against any cost, loss or liability incurred by the Issuing
Bank (otherwise than by reason of the Issuing Bank's gross
negligence or wilful misconduct) in acting as the Issuing Bank
under any Letter of Credit requested by (or on behalf of) that
Borrower.
(b) Each Lender shall (according to its L/C Proportion) immediately
on demand indemnify the Issuing Bank against any cost, loss or
liability incurred by the Issuing Bank (otherwise than by reason
of the Issuing Bank's gross negligence or wilful misconduct) in
acting as the Issuing Bank under any Letter of Credit (unless the
Issuing Bank has been reimbursed by an Obligor pursuant to a
Finance Document).
(c) The Borrower which requested (or on behalf of which the Parent
requested) a Letter of Credit shall immediately on demand
reimburse any Lender for any payment it makes to the Issuing Bank
under this Clause 7.3 in respect of that Letter of Credit.
(d) The obligations of each Lender under this Clause are continuing
obligations and will extend to the ultimate balance of sums
payable by that Lender in
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respect of any Letter of Credit, regardless of any intermediate
payment or discharge in whole or in part.
(e) The obligations of any Lender or Borrower under this Clause will
not be affected by any act, omission, matter or thing which, but
for this Clause, would reduce, release or prejudice any of its
obligations under this Clause (without limitation and whether or
not known to it or any other person) including:
(i) any time, waiver or consent granted to, or composition
with, any Obligor, any beneficiary under a Letter of
Credit or any other person;
(ii) the release of any other Obligor or any other person under
the terms of any composition or arrangement with any
creditor or any member of the Group;
(iii) the taking, variation, compromise, exchange, renewal or
release of, or refusal or neglect to perfect, take up or
enforce, any rights against, or security over assets of,
any Obligor, any beneficiary under a Letter of Credit or
other person or any non-presentation or non-observance of
any formality or other requirement in respect of any
instrument or any failure to realise the full value of any
security;
(iv) any incapacity or lack of power, authority or legal
personality of or dissolution or change in the members or
status of an Obligor or any beneficiary under a Letter of
Credit or any other person;
(v) any amendment (however fundamental) or replacement of a
Finance Document, any Letter of Credit or any other
document or security;
(vi) any unenforceability, illegality or invalidity of any
obligation of any person under any Finance Document, any
Letter of Credit or any other document or security; or
(vii) any insolvency or similar proceedings.
7.4 RIGHTS OF CONTRIBUTION
No Obligor will be entitled to any right of contribution or indemnity
from any Finance Party in respect of any payment it may make under this
Clause 7.
7.5 SETTLEMENT CONDITIONAL
Any settlement or discharge between a Lender and the Issuing Bank shall
be conditional upon no security or payment to the Issuing Bank by a
Lender or any other person on behalf of a Lender being avoided or
reduced by virtue of any laws relating to bankruptcy, insolvency,
liquidation or similar laws of general application and, if any such
security or payment is so avoided or reduced, the Issuing Bank shall be
entitled to recover the value or amount of such security or payment from
such Lender subsequently as if such settlement or discharge had not
occurred.
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7.6 EXERCISE OF RIGHTS
The Issuing Bank shall not be obliged before exercising any of the
rights, powers or remedies conferred upon it in respect of any Lender by
this Agreement or by law:
(a) to take any action or obtain judgment in any court against any
Obligor;
(b) to make or file any claim or proof in a winding-up or dissolution
of any Obligor; or
(c) to enforce or seek to enforce any other security taken in respect
of any of the obligations of any Obligor under this Agreement.
8. OPTIONAL CURRENCIES
8.1 SELECTION OF CURRENCY
A Borrower shall select the currency of a Revolving Loan in a
Utilisation Request.
8.2 UNAVAILABILITY OF A CURRENCY
If before the Specified Time on any Quotation Day:
(a) a Lender notifies the Facility Agent that the Optional Currency
requested is not readily available to it in the amount required;
or
(b) a Lender notifies the Facility Agent that compliance with its
obligation to participate in a Loan in the proposed Optional
Currency would contravene a law or regulation applicable to it,
the Facility Agent will give notice to the relevant Borrower to that
effect by the Specified Time on that day. In this event, any Lender that
gives notice pursuant to this Clause 8.2 will be required to participate
in the Loan in the Base Currency (in an amount equal to that Lender's
proportion of the Base Currency Amount, or in respect of a Rollover
Loan, an amount equal to that Lender's proportion of the Base Currency
Amount of the Rollover Loan that is due to be paid) and its
participation will be treated as a separate Loan denominated in the Base
Currency during that Interest Period.
8.3 FACILITY AGENT'S CALCULATIONS
Each Lender's participation in a Loan will be determined in accordance
with paragraph (b) of Clause 5.4 (LENDERS' PARTICIPATION).
9. ANCILLARY FACILITIES
9.1 ANCILLARY FACILITIES
(a) Each Ancillary Lender makes available to the relevant Obligors,
the Ancillary Facilities applicable to that Ancillary Lender on
the terms set out in the relevant Ancillary Documents.
(b) Each Ancillary Lender and the relevant Obligor shall promptly
notify the Facility Agent of:
(i) the establishment of any Ancillary Facility applicable to
it; and
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(ii) such information relating to the operation of any
Ancillary Facility applicable to it (including, without
limitation, the Ancillary Outstandings and Ancillary
Commitments thereunder) as the Facility Agent may from
time to time request and each Obligor hereby consents to
all such information being released to the Facility Agent
and each Lender.
(c) In case of any inconsistency between any term of any Ancillary
Facility and this Agreement, the terms of this Agreement shall
prevail.
(d) Each Ancillary Lender and each relevant Obligor acknowledge the
terms of Clause 25.20 (ANCILLARY FACILITIES) and paragraph
(b)(vi) of Clause 25.16 (FINANCIAL INDEBTEDNESS).
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SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
10. REPAYMENT
10.1 REPAYMENT OF TERM LOAN
(a) The Parent shall repay the Term Loan in instalments by repaying
on each Repayment Date the amount set out opposite each Repayment
Date below:
<Table>
<Caption>
REPAYMENT DATE REPAYMENT INSTALMENT
3 March 2007 L20,000,000
3 March 2008 L20,000,000
Final Maturity Date L60,000,000
</Table>
(b) The Parent may not reborrow any part of the Term Facility which
is repaid.
(c) If the Parent cancels the whole or any part of the Term
Commitments in accordance with Clause 11.6 (RIGHT OF REPAYMENT
AND CANCELLATION IN RELATION TO A SINGLE LENDER OR ISSUING BANK)
or if the Term Commitment of any Lender is reduced under Clause
11.1 (ILLEGALITY OF A LENDER) then the amount of the Repayment
Instalment for each Repayment Date falling after that
cancellation will reduce PRO RATA by the amount cancelled.
(d) If the Parent cancels the whole or any part of the Term
Commitments in accordance with Clause 11.3 (VOLUNTARY
CANCELLATION) then the amount of the Repayment Instalment for
each Repayment Date falling after that cancellation will reduce
in inverse chronological order by the amount cancelled.
(e) If the Term Loan is prepaid in accordance with Clause 11.6 (RIGHT
OF REPAYMENT AND CANCELLATION IN RELATION TO A SINGLE LENDER OR
ISSUING BANK) or Clause 11.1 (ILLEGALITY OF A LENDER) then the
amount of the Repayment Instalment for each Repayment Date
falling after that prepayment will reduce PRO RATA by the amount
of the Term Loan prepaid.
(f) If the Term Loan is prepaid in accordance with Clause 11.4
(VOLUNTARY PREPAYMENT OF TERM LOANS), Clause 11.8 (MANDATORY
PREPAYMENT FROM DEBT OR EQUITY PROCEEDS) or Clause 11.9
(MANDATORY PREPAYMENT ON RECEIPT OF DISPOSAL PROCEEDS) then the
amount of the Repayment Instalment for each Repayment Date
falling after that prepayment will reduce in inverse
chronological order by the amount of the Loan prepaid.
10.2 REPAYMENT OF REVOLVING LOANS
Each Borrower which has drawn a Revolving Loan shall repay that Loan on
the last day of its Interest Period.
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11. PREPAYMENT AND CANCELLATION
11.1 ILLEGALITY OF A LENDER
If it becomes unlawful in any applicable jurisdiction for a Lender to
perform any of its obligations as contemplated by this Agreement or to
make, fund, issue or maintain its participation in any Utilisation:
(a) that Lender shall promptly notify the Facility Agent upon
becoming aware of that event;
(b) upon the Facility Agent notifying the Parent the Commitments of
that Lender shall immediately be reduced to zero and cancelled;
and
(c) each Borrower shall repay that Lender's participation in the
Utilisations made to that Borrower on the last day of the
Interest Period for each Utilisation occurring after the Facility
Agent has notified the Parent or, if earlier, specified by that
Lender in the notice delivered to the Facility Agent (being no
earlier than the last day of any applicable grace period
permitted by law).
11.2 ILLEGALITY IN RELATION TO ISSUING BANK
If it becomes unlawful for an Issuing Bank to issue or leave outstanding
any Letter of Credit, then:
(a) that Issuing Bank shall promptly notify the Facility Agent upon
becoming aware of that event;
(b) upon the Facility Agent notifying the Parent, the Issuing Bank
shall not be obliged to issue any Letter of Credit;
(c) the Parent shall procure that the relevant Borrower shall use its
reasonable endeavours to procure the release of each Letter of
Credit issued by that Issuing Bank and outstanding at such time;
and
(d) unless any other Lender has agreed to be an Issuing Bank pursuant
to the terms of this Agreement, the Revolving Facility shall
cease to be available for the issue of Letters of Credit.
11.3 VOLUNTARY CANCELLATION
The Parent may, if it gives the Facility Agent not less than 10 Business
Days' (or such shorter period as the Majority Lenders may agree) prior
notice, cancel the whole or any part (being a minimum amount of
L10,000,000) of an Available Facility. Any cancellation under this
Clause 11.3 shall reduce rateably the Commitments of the Lenders under
that Facility.
11.4 VOLUNTARY PREPAYMENT OF TERM LOANS
(a) The Parent may, if it gives the Facility Agent not less than 10
Business Days' (or such shorter period as the Majority Lenders
may agree) prior notice, prepay the whole or any part of a Term
Loan (but, if in part, being an amount
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that reduces the amount of that Term Loan by a minimum amount of
L10,000,000).
(b) Any prepayment of a Term Loan under this Clause 11.4 shall
satisfy the obligations under paragraph (a) of Clause 10.1
(REPAYMENT OF TERM LOANS) in inverse chronological order.
11.5 VOLUNTARY PREPAYMENT OF REVOLVING FACILITY UTILISATIONS
The Borrower to which a Revolving Facility Utilisation has been made
may, if it or the Parent gives the Facility Agent not less than 10
Business Days' (or such shorter period as the Majority Lenders may
agree) prior notice, prepay the whole or any part of a Revolving
Facility Utilisation (but if in part, being an amount that reduces the
Base Currency Amount of the Revolving Facility Utilisation by a minimum
amount of L10,000,000).
11.6 RIGHT OF REPAYMENT AND CANCELLATION IN RELATION TO A SINGLE LENDER OR
ISSUING BANK
(a) If:
(i) any sum payable to any Lender by an Obligor is required to
be increased under paragraph (c) of Clause 16.2 (TAX
GROSS-UP);
(ii) any Lender or Issuing Bank claims indemnification from the
Parent or an Obligor under Clause 16.3 (TAX INDEMNITY) or
Clause 17.1 (INCREASED COSTS); or
(iii) any Lender notifies the Facility Agent of its Additional
Cost Rate under paragraph 3 of Schedule 4 (MANDATORY COST
FORMULAE),
the Parent may, whilst (in the case of paragraphs (i) and (ii)
above) the circumstance giving rise to the requirement or
indemnification continues or whilst (in the case of paragraph
(iii) above) that Additional Cost Rate is greater than zero, give
the Facility Agent notice:
(i) (if the circumstances relate to a Lender) of cancellation
of the Commitments of that Lender and its intention to
procure the repayment of that Lender's participation in
the Utilisations; or
(ii) (if the circumstances relate to the Issuing Bank) of
repayment of any outstanding Letter of Credit issued by it
and cancellation of its appointment as an Issuing Bank
under this Agreement in relation to any Letters of Credit
to be issued in the future.
(b) On receipt of a notice referred to in paragraph (a) above, the
Commitments of that Lender shall immediately be reduced to zero.
(c) On the last day of each Interest Period which ends after the
Parent has given notice under paragraph (a) above (or, if
earlier, the date specified by the Parent in that notice), each
Borrower to which a Utilisation is outstanding
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shall repay that Lender's participation in that Utilisation
together with all interest and other amounts accrued under the
Finance Documents.
11.7 CHANGE OF CONTROL
(a) If any person or group of persons acting in concert gains control
of the Parent, other than (1) persons having control of the
Parent as at the date of this Agreement or (2) pursuant to the
Mentmore Disposal:
(i) the Parent shall promptly notify the Facility Agent upon
becoming aware of that event;
(ii) a Lender shall not be obliged to fund a Utilisation
(except for a Rollover Loan);
(iii) if a Lender so requires and notifies the Facility Agent,
the Facility Agent shall, by not less than 30 days' notice
to the Borrower, cancel the Commitment of that Lender and
declare its participation in all outstanding Utilisations,
together with accrued interest and all other amounts
accrued under the Finance Documents immediately due and
payable, whereupon the Commitment of that Lender will be
cancelled and all such outstanding amounts will become
immediately due and payable.
(b) For the purpose of paragraph (a) above "CONTROL" means:
(i) the power (whether by way of ownership of shares, proxy,
contract, agency or otherwise) to:
(A) cast, or control the casting of, more than one-half
of the maximum number of votes that might be cast at
a general meeting of the Parent; or
(B) appoint or remove all, or the majority, of the
directors or other equivalent officers of the
Parent; or
(C) give directions with respect to the operating and
financial policies of the Parent which the directors
or other equivalent officers of the Parent are
obliged to comply with; or
(ii) the holding of more than one-half of the issued share
capital of the Parent (excluding any part of that issued
share capital that carries no right to participate beyond
a specified amount in a distribution of either profits or
capital).
11.8 MANDATORY PREPAYMENT FROM DEBT OR EQUITY PROCEEDS
For the purposes of this Clause 11.8:
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"DEBT OR EQUITY ISSUE" means any issue or raising by the Parent or any
other member of the Group of any shares or stock, publicly traded or
privately placed debt securities or any other debt securities or equity
securities or bank debt other than:
(a) Approved Subordinated Debt;
(b) Financial Indebtedness permitted in accordance with paragraph (b)
of Clause 25.16 (FINANCIAL INDEBTEDNESS);
(c) an issue permitted pursuant to paragraph (b)(ii) of Clause 25.8
(ACQUISITION); or
(d) an issue by a Joint Venture Group Company to its shareholder
which is not a member of the Group.
"DEBT OR EQUITY PROCEEDS" means the net cash consideration received by
any member of the Group for any Debt or Equity Issue made by any member
of the Group.
If the Parent or any member of the Group receives any Debt or Equity
Proceeds, the Parent shall procure that such Debt or Equity Proceeds are
promptly applied in prepayment and/or cancellation of the Facilities in
accordance with Clause 11.10 (APPLICATION OF PREPAYMENTS).
11.9 MANDATORY PREPAYMENT ON RECEIPT OF DISPOSAL PROCEEDS
For the purposes of this Clause 11.9:
"DISPOSAL" means a sale, lease, transfer, loan or other disposal by a
person of any asset, undertaking or business (whether voluntary or
involuntary and whether as a single transaction or a series of
transactions).
"DISPOSAL PROCEEDS" means the consideration received by any member of
the Group (including any amount receivable in repayment of intercompany
debt) for any Disposal made by any member of the Group after deducting:
(a) reasonable expenses incurred by any member of the Group with
respect to that Disposal to person(s) who are not members of the
Group; and
(b) any Tax incurred and required to be paid by the seller in
connection with that Disposal (as reasonably determined by the
seller, on the basis of existing rates and taking account of any
available credit, deduction or allowance),
but does not include:
(i) consideration for any Disposal referred to in paragraphs (b) (i),
(iii), (iv), (v), (vii) or (viii) of Clause 25.11 (DISPOSALS);
(ii) cash proceeds received by a Joint Venture Group Company for any
Disposal made by that Joint Venture Group Company, but only to
the extent that such Disposal Proceeds are not transferred to
another member of the Group which is not a Joint Venture Group
Company; and
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(iii) the first L5,000,000 of cash proceeds from any Disposal not
excluded pursuant to paragraph (i) above received by members of
the Group in aggregate in any financial year of the Parent.
The Parent shall ensure that the Borrowers prepay Utilisations in an
amount equal to the Disposal Proceeds promptly upon receipt of those
proceeds. The prepayments will be applied under Clause 11.10
(APPLICATION OF PREPAYMENTS).
11.10 APPLICATION OF PREPAYMENTS
A prepayment made under Clause 11.8 (MANDATORY PREPAYMENT FROM DEBT OR
EQUITY PROCEEDS) or Clause 11.9 (MANDATORY PREPAYMENT ON RECEIPT OF
DISPOSAL PROCEEDS) shall be applied in the following order of maturity:
(a) firstly, in prepayment of the Term Loans (in inverse order of
maturity);
(b) secondly, in cancellation of the Revolving Commitments (with any
such cancellation reducing the Revolving Commitments of the
Lenders, rateably); and
(c) thirdly, in prepayment of a sufficient amount of Revolving
Facility Utilisations to the extent necessary so that the
aggregate of the Base Currency Amounts of the outstanding
Revolving Facility Utilisations after that prepayment is equal to
or less than the reduced amounts of the Revolving Commitments.
11.11 RESTRICTIONS
(a) Any notice of cancellation or prepayment given by any Party under
this Clause 11 shall be irrevocable and, unless a contrary
indication appears in this Agreement, shall specify the date or
dates upon which the relevant cancellation or prepayment is to be
made and the amount of that cancellation or prepayment.
(b) Any prepayment under this Agreement shall be made together with
accrued interest on the amount prepaid and Break Costs.
(c) The Parent shall, on the prepayment of the whole or any part of a
Term Loan or cancellation of any Revolving Commitment within 12
months of the date of this Agreement, where such prepayment or
cancellation is made using the proceeds of any bank debt or such
cancellation is made pursuant to a refinancing by the Parent, pay
to the Facility Agent for the account of each Lender an amount
equal to 1 per cent of the amount prepaid or cancelled (the
"REFINANCING PREMIUM") PROVIDED THAT no such Refinancing Premium
shall be payable to any Lender which is participating as a Lender
in such refinancing.
(d) The Parent may not reborrow any part of the Term Facility which
is prepaid.
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(e) Unless a contrary indication appears in this Agreement, any part
of the Revolving Facility which is prepaid may be reborrowed in
accordance with the terms of this Agreement.
(f) The Borrowers shall not repay or prepay all or any part of the
Loans or cancel all or any part of the Commitments except at the
times and in the manner expressly provided for in this Agreement.
(g) No amount of the Total Commitments cancelled under this Agreement
may be subsequently reinstated.
(h) If the Facility Agent receives a notice under this Clause 11 it
shall promptly forward a copy of that notice to either the Parent
or the affected Lenders, as appropriate.
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SECTION 5
COSTS OF UTILISATION
12. INTEREST
12.1 CALCULATION OF INTEREST
The rate of interest on each Loan for each Interest Period is the
percentage rate per annum which is the aggregate of the applicable:
(a) Margin;
(b) LIBOR; and
(c) Mandatory Cost, if any.
12.2 PAYMENT OF INTEREST
(a) The Borrower to which a Loan has been made shall pay accrued
interest on that Loan on the last day of each Interest Period
(and, if any Interest Period is longer than six Months, on the
dates falling at six Monthly intervals after the first day of
that Interest Period).
(b) If the annual audited financial statements of the Group and
related Compliance Certificate received by the Facility Agent
show that a Margin reduction should not have occurred during a
certain period, the Parent shall (or shall ensure the relevant
Borrower shall) promptly pay to the Facility Agent any amounts
necessary to put the Facility Agent and the Lenders in the
position they would have been in had the Margin reduction not
occurred.
12.3 DEFAULT INTEREST
(a) If an Obligor fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue on the
overdue amount from the due date up to the date of actual payment
(both before and after judgment) at a rate which is two per cent
higher than the rate which would have been payable if the overdue
amount had, during the period of non-payment, constituted a Loan
in the currency of the overdue amount for successive Interest
Periods, each of a duration selected by the Facility Agent
(acting reasonably). Any interest accruing under this Clause 12.3
shall be immediately payable by the Obligor on demand by the
Facility Agent.
(b) Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount at the end of each Interest
Period applicable to that overdue amount but will remain
immediately due and payable.
12.4 NOTIFICATION OF RATES OF INTEREST
The Facility Agent shall promptly notify the Lenders and the relevant
Borrower (or the Parent) of the determination of a rate of interest
under this Agreement.
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13. INTEREST PERIODS
13.1 SELECTION OF INTEREST PERIODS
(a) A Borrower (or the Parent on behalf of a Borrower) may select an
Interest Period for a Loan in the Utilisation Request for that
Loan or (if the Loan is a Term Loan and has already been
borrowed) in a Selection Notice.
(b) Each Selection Notice for a Term Loan is irrevocable and must be
delivered to the Facility Agent by the Parent not later than the
Specified Time.
(c) If the Parent fails to deliver a Selection Notice to the Facility
Agent in accordance with paragraph (b) above, the relevant
Interest Period will, subject to Clause 13.2 (CHANGES TO INTEREST
PERIODS), be one Month.
(d) Subject to this Clause 13, a Borrower (or the Parent) may select
an Interest Period of one, two, three or six Months or any other
period agreed between the Parent and the Facility Agent (acting
on the instructions of all the Lenders). In addition a Borrower
(or the Parent on its behalf) may select an Interest Period of
(in relation to the Term Facility) a period of less than one
Month, if necessary to ensure that there are Term Loans (with an
aggregate Base Currency Amount equal to or greater than the
Repayment Instalment) which have an Interest Period ending on a
Repayment Date for the Parent to make the Repayment Instalment
due on that date.
(e) An Interest Period for a Loan shall not extend beyond the Final
Maturity Date applicable to its Facility.
(f) Each Interest Period for a Term Loan shall start on the
Utilisation Date or (if a Loan has already been made) on the last
day of its preceding Interest Period.
(g) A Revolving Loan has one Interest Period only.
13.2 CHANGES TO INTEREST PERIODS
(a) Prior to determining the interest rate for a Term Loan, the
Facility Agent may shorten an Interest Period for any Term Loan
to ensure that there are sufficient Term Loans (with an aggregate
Base Currency Amount equal to or greater than the Repayment
Instalment) which have an Interest Period ending on a Term
Repayment Date for the Parent to make the Repayment Instalment
due on that date.
(b) If the Facility Agent makes any of the changes to an Interest
Period referred to in this Clause 13.2, it shall promptly notify
the Parent and the Lenders.
14. CHANGES TO THE CALCULATION OF INTEREST
14.1 ABSENCE OF QUOTATIONS
Subject to Clause 14.2 (MARKET DISRUPTION), if LIBOR is to be determined
by reference to the Reference Banks but a Reference Bank does not supply
a quotation by the
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Specified Time on the Quotation Day, the applicable LIBOR shall be
determined on the basis of the quotations of the remaining Reference
Banks.
14.2 MARKET DISRUPTION
(a) If a Market Disruption Event occurs in relation to a Loan for any
Interest Period, then the rate of interest on each Lender's share
of that Loan for the Interest Period shall be the rate per annum
which is the sum of:
(i) the Margin;
(ii) the rate notified to the Facility Agent by that Lender as
soon as practicable and in any event before interest is
due to be paid in respect of that Interest Period, to be
that which expresses as a percentage rate per annum the
cost to that Lender of funding its participation in that
Loan from whatever source it may reasonably select; and
(iii) the Mandatory Cost, if any, applicable to that Lender's
participation in the Loan.
(b) In this Agreement "MARKET DISRUPTION EVENT" means:
(i) at or about noon on the Quotation Day for the relevant
Interest Period the Screen Rate not being available and
none or only one of the Reference Banks supplying a rate
to the Facility Agent to determine LIBOR for the relevant
currency and Interest Period; or
(ii) before close of business in London on the Quotation Day
for the relevant Interest Period, the Facility Agent
receiving notifications from a Lender or Lenders (whose
participations in a Loan exceed 50 per cent. of that Loan)
that the cost to it of obtaining matching deposits in the
Relevant Interbank Market would be in excess of LIBOR.
14.3 ALTERNATIVE BASIS OF INTEREST OR FUNDING
(a) If a Market Disruption Event occurs and the Facility Agent or the
Parent so requires, the Facility Agent and the Parent shall enter
into negotiations (for a period of not more than thirty days)
with a view to agreeing a substitute basis for determining the
rate of interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above
shall, with the prior consent of all the Lenders and the Parent,
be binding on all Parties.
14.4 BREAK COSTS
(a) Each Borrower shall, within five Business Days of demand by a
Finance Party, pay to that Finance Party its Break Costs
attributable to all or any part of a Loan or Unpaid Sum being
paid by that Borrower on a day other than the last day of an
Interest Period for that Loan or Unpaid Sum.
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(b) Each Lender shall, as soon as reasonably practicable after a
demand by the Facility Agent, provide a certificate confirming
the amount of its Break Costs for any Interest Period in which
they accrue.
15. FEES
15.1 COMMITMENT FEE
(a) The Parent shall pay to the Facility Agent (for the account of
each Lender) a fee in the Base Currency computed at the rate of:
(i) 50 per cent. per annum of the applicable Margin on that
Lender's Available Commitment under the Term Facility
for the Term Availability Period; and
(ii) 50 per cent. per annum of the applicable Margin on that
Lender's Available Commitment under the Revolving Facility
for the Availability Period applicable to the Revolving
Facility.
(b) The accrued commitment fee is payable:
(i) on the last day of each successive period of three Months
which ends during the relevant Availability Period;
(ii) on the last day of the relevant Availability Period; and
(iii) on the cancelled amount of the relevant Lender's
Commitment at the time the cancellation is effective.
15.2 ARRANGEMENT FEE
The Parent shall pay to the Arranger an arrangement fee in the amount
and at the times agreed in a Fee Letter.
15.3 AGENCY AND SECURITY TRUSTEE FEE
The Parent shall pay to (or procure payment to) the Facility Agent (for
its own account) an agency fee and Security Trustee fee in the amount
and at the times agreed in a Fee Letter.
15.4 FEES PAYABLE IN RESPECT OF LETTERS OF CREDIT
(a) The Parent or each Borrower shall pay to the Issuing Bank a
fronting fee at the rate of 0.125 per cent. per annum on the
outstanding amount which is counter-indemnified by the other
Lenders of each Letter of Credit requested by it for the period
from the issue of that Letter of Credit until its Expiry Date.
(b) The Parent or each Borrower shall pay to the Facility Agent (for
the account of each Lender) a Letter of Credit fee in the Base
Currency (computed at the rate equal to the Margin applicable to
a Revolving Loan) on the outstanding amount of each Letter of
Credit requested by it for the period from the issue
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of that Letter of Credit until its Expiry Date. This fee shall be
distributed according to each Lender's L/C Proportion of that
Letter of Credit.
(c) The accrued fronting fee and Letter of Credit fee on a Letter of
Credit shall be payable on the first day of each successive
period of three Months (or such shorter period as shall end on
the Expiry Date for that Letter of Credit) starting on the date
of issue of that Letter of Credit.
(d) If the Parent or a Borrower cash covers any part of a Letter of
Credit then:
(i) the fronting fee payable to the Issuing Bank and the
Letter of Credit fee payable for the account of each
Lender shall continue to be payable until the expiry or
cancellation of the Letter of Credit; and
(ii) the Parent or each Borrower will be entitled to withdraw
the interest accrued on the cash cover to pay the fees set
out in paragraph (i) above.
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SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
16. TAX GROSS UP AND INDEMNITIES
16.1 DEFINITIONS
In this Clause 16:
"PROTECTED PARTY" means a Finance Party which is or will be, for or on
account of Tax, subject to any liability or required to make any payment
in relation to a sum received or receivable (or any sum deemed for the
purposes of Tax to be received or receivable) under a Finance Document.
"QUALIFYING LENDER" means a Lender which is beneficially entitled to
interest payable to that Lender in respect of an advance under a Finance
Document and is:
(a) a Lender:
(i) which is a bank (as defined for the purpose of section 349
of the Taxes Act) making an advance under a Finance
Document; or
(ii) in respect of an advance made under a Finance Document by
a person that was a bank (as defined for the purpose of
section 349 of the Taxes Act) at the time that that
advance was made,
and which is within the charge to United Kingdom corporation tax
as respects any payments of interest made in respect of that
advance; or
(b) a Treaty Lender.
"TAX CONFIRMATION" means a confirmation by a Lender that the person
beneficially entitled to interest payable to that Lender in respect of
an advance under a Finance Document is either:
(a) a company resident in the United Kingdom, or a partnership each
member of which is a company resident in the United Kingdom, for
United Kingdom tax purposes; or
(b) a company not so resident in the United Kingdom which carries on
a trade in the United Kingdom through a branch or agency and that
interest payable in respect of that advance falls to be brought
into account in computing the chargeable profits of that company
for the purposes of section 11(2) of the Taxes Act.
"TAX CREDIT" means a credit against, relief or remission for, or
repayment of, any Tax.
"TAX DEDUCTION" means a deduction or withholding for or on account of
Tax from a payment under a Finance Document.
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"TAX PAYMENT" means either the increase in a payment made by an Obligor
to a Finance Party under Clause 16.2 (TAX GROSS-UP) or a payment under
Clause 16.3 (TAX INDEMNITY).
"TREATY LENDER" means a Lender which:
(a) is treated as a resident of a Treaty State for the purposes of
the Treaty;
(b) does not carry on a business in the United Kingdom through a
permanent establishment with which that Lender's participation in
the Loan is effectively connected.
"TREATY STATE" means a jurisdiction having a double taxation agreement
(a "TREATY") with the United Kingdom which makes provision for full
exemption from tax imposed by the United Kingdom on interest.
Unless a contrary indication appears, in this Clause 16 a reference to
"DETERMINES" or "DETERMINED" means a determination made in the absolute
discretion of the person making the determination.
16.2 TAX GROSS-UP
(a) Each Obligor shall make all payments to be made by it without any
Tax Deduction, unless a Tax Deduction is required by law. Each
Lender hereby represents to each Obligor, on the date of this
Agreement (if a New Lender) or the date it becomes a Party, that
it is a Qualifying Lender.
(b) The Parent shall promptly upon becoming aware that an Obligor
must make a Tax Deduction (or that there is any change in the
rate or the basis of a Tax Deduction) notify the Facility Agent
accordingly. Similarly, a Lender shall notify the Facility Agent
on becoming so aware in respect of a payment to that Lender. If
the Facility Agent receives such notification from a Lender it
shall notify the Parent and that Obligor.
(c) If a Tax Deduction is required by law to be made by an Obligor
the amount of the payment due from that Obligor shall be
increased to an amount which (after making any Tax Deduction)
leaves an amount equal to the payment which would have been due
if no Tax Deduction had been required.
(d) An Obligor is not required to make an increased payment to a
Lender under paragraph (c) above for a Tax Deduction in respect
of tax imposed by the United Kingdom from a payment of interest
on a Loan, if on the date on which the payment falls due:
(i) the payment could have been made to the relevant Lender
without a Tax Deduction if it was a Qualifying Lender, but
on that date that Lender is not or has ceased to be a
Qualifying Lender other than as a result 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 Treaty,
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or any published practice or concession of any relevant
taxing authority; or
(ii) the relevant Lender is a Treaty Lender and the Obligor
making the payment is able to demonstrate that the payment
could have been made to the Lender without the Tax
Deduction had that Lender complied with its obligations
under paragraph (g) below.
(e) If an Obligor is required to make a Tax Deduction, that Obligor
shall make that Tax Deduction and any payment required in
connection with that Tax Deduction within the time allowed and in
the minimum amount required by law.
(f) Within thirty days of making either a Tax Deduction or any
payment required in connection with that Tax Deduction, the
Obligor making that Tax Deduction shall deliver to the Facility
Agent for the Finance Party entitled to the payment evidence
reasonably satisfactory to that Finance Party that the Tax
Deduction has been made or (as applicable) any appropriate
payment paid to the relevant taxing authority.
(g) A Treaty Lender and each Obligor which makes a payment to which
that Treaty Lender is entitled shall co-operate in completing any
procedural formalities necessary for that Obligor to obtain
authorisation to make that payment without a Tax Deduction.
16.3 TAX INDEMNITY
(a) The Parent shall (within three Business Days of demand by the
Facility Agent) pay (or procure payment) to a Protected Party an
amount equal to the loss, liability or cost which that Protected
Party determines will be or has been (directly or indirectly)
suffered for or on account of Tax by that Protected Party in
respect of a Finance Document.
(b) Paragraph (a) above shall not apply:
(i) with respect to any Tax assessed on a Finance Party:
(A) under the law of the jurisdiction in which that
Finance Party is incorporated or, if different, the
jurisdiction (or jurisdictions) in which that
Finance Party is treated as resident for tax
purposes; or
(B) under the law of the jurisdiction in which that
Finance Party's Facility Office is located in
respect of amounts received or receivable in that
jurisdiction,
if that Tax is imposed on or calculated by reference to
the net income received or receivable (but not any sum
deemed to be received or receivable) by that Finance
Party; and
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(ii) to the extent a loss, liability or cost:
(A) is compensated for by an increased payment under
Clause 16.2 (TAX GROSS-UP); or
(B) would have been compensated for by an increased
payment under Clause 16.2 (TAX GROSS-UP) but was not
so compensated solely because one of the exclusions
in paragraph (d) of Clause 16.2 (TAX GROSS-UP)
applied.
(c) A Protected Party making, or intending to make a claim pursuant
to paragraph (a) above shall promptly notify the Facility Agent
of the event which will give, or has given, rise to the claim,
following which the Facility Agent shall notify the Parent.
(d) A Protected Party shall, on receiving a payment from an Obligor
under this Clause 16.3, notify the Facility Agent.
16.4 TAX CREDIT
If an Obligor makes a Tax Payment and the relevant Finance Party
determines that:
(a) a Tax Credit is attributable to that Tax Payment; and
(b) that Finance Party has obtained, utilised and retained that Tax
Credit,
the Finance Party shall pay an amount to the Obligor which that Finance
Party determines will leave it (after that payment) in the same
after-Tax position as it would have been in had the Tax Payment not been
made by the Obligor.
16.5 STAMP TAXES
The Parent shall pay and, within three Business Days of demand,
indemnify each Secured Party and Arranger against any cost, loss or
liability that Secured Party or Arranger incurs in relation to all stamp
duty, registration and other similar Taxes payable in respect of any
Finance Document.
16.6 VALUE ADDED TAX
(a) All consideration expressed to be payable under a Finance
Document by any Party to a Finance Party shall be deemed to be
exclusive of any VAT. If VAT is chargeable on any supply made by
any Finance Party to any Party in connection with a Finance
Document, that Party shall pay to the Finance Party (in addition
to and at the same time as paying the consideration) an amount
equal to the amount of the VAT.
(b) Where a Finance Document requires any Party to reimburse a
Finance Party for any costs or expenses, that Party shall also at
the same time pay and indemnify that Finance Party against all
VAT incurred by the Finance Party in respect of the costs or
expenses to the extent that the Finance Party is not entitled to
credit or repayment of the VAT.
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17. INCREASED COSTS
17.1 INCREASED COSTS
(a) Subject to Clause 17.3 (EXCEPTIONS) the Parent shall, within
three Business Days of a demand by the Facility Agent, pay for
the account of a Finance Party the amount of any Increased Costs
incurred by that Finance Party or any of its Affiliates as a
result of (i) the introduction of or any change in (or in the
interpretation, administration or application of) any law or
regulation or (ii) compliance with any law or regulation made
after the date of this Agreement.
(b) In this Agreement "INCREASED COSTS" means:
(i) a reduction in the rate of return from a Facility or on a
Finance Party's (or its Affiliate's) overall capital;
(ii) an additional or increased cost; or
(iii) a reduction of any amount due and payable under any
Finance Document,
which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that Finance
Party having entered into its Commitments or an Ancillary
Commitment or funding or performing its obligations under any
Finance Document or Letter of Credit.
17.2 INCREASED COST CLAIMS
(a) A Finance Party intending to make a claim pursuant to Clause 17.1
(INCREASED COSTS) shall notify the Facility Agent of the event
giving rise to the claim, following which the Facility Agent
shall promptly notify the Parent.
(b) Each Finance Party shall, as soon as practicable after a demand
by the Facility Agent, provide a certificate confirming the
amount of its Increased Costs.
17.3 EXCEPTIONS
(a) Clause 17.1 (INCREASED COSTS) does not apply to the extent any
Increased Cost is:
(i) attributable to a Tax Deduction required by law to be made
by an Obligor;
(ii) compensated for by Clause 16.3 (TAX INDEMNITY) (or would
have been compensated for under Clause 16.3 (TAX
INDEMNITY) but was not so compensated solely because any
of the exclusions in paragraph (b) of Clause 16.3 (TAX
INDEMNITY) applied);
(iii) compensated for by the payment of the Mandatory Cost; or
(iv) attributable to the wilful breach by the relevant Finance
Party or its Affiliates of any law or regulation.
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(b) In this Clause 17.3 reference to a "TAX DEDUCTION" has the same
meaning given to the term in Clause 16.1 (DEFINITIONS).
18. OTHER INDEMNITIES
18.1 CURRENCY INDEMNITY
(a) If any sum due from an Obligor under the Finance Documents (a
"SUM"), or any order, judgment or award given or made in relation
to a Sum, has to be converted from the currency (the "FIRST
CURRENCY") in which that Sum is payable into another currency
(the "SECOND CURRENCY") for the purpose of:
(i) making or filing a claim or proof against that Obligor; or
(ii) obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration proceedings,
that Obligor shall as an independent obligation, within three
Business Days of demand, indemnify each Secured Party and the
Arranger to whom that Sum is due against any cost, loss or
liability arising out of or as a result of the conversion
including any discrepancy between (A) the rate of exchange used
to convert that Sum from the First Currency into the Second
Currency and (B) the rate or rates of exchange available to that
person at the time of its receipt of that Sum.
(b) Each Obligor waives any right it may have in any jurisdiction to
pay any amount under the Finance Documents in a currency or
currency unit other than that in which it is expressed to be
payable.
18.2 OTHER INDEMNITIES
(a) The Parent shall (or shall procure that an Obligor will), within
three Business Days of demand, indemnify each Secured Party and
the Arranger against any cost, loss or liability incurred by that
Secured Party or Arranger as a result of:
(i) the occurrence of any Event of Default;
(ii) a failure by an Obligor to pay any amount due under a
Finance Document on its due date, including without
limitation, any cost, loss or liability arising as a
result of Clause 32 (SHARING AMONG THE FINANCE PARTIES);
(iii) funding, or making arrangements to fund, its participation
in a Utilisation requested by the Parent or a Borrower in
a Utilisation Request but not made by reason of the
operation of any one or more of the provisions of this
Agreement (other than by reason of default or negligence
by that Finance Party alone);
(iv) issuing or making arrangements to issue a Letter of Credit
requested by a Borrower in a Utilisation Request but not
issued by reason of the operation of any one or more of
the provisions of this Agreement; or
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(v) a Utilisation (or part of a Utilisation) not being prepaid
in accordance with a notice of prepayment given by a
Borrower or the Parent.
18.3 INDEMNITY TO THE FACILITY AGENT
The Parent shall (or shall procure that an Obligor will) promptly
indemnify the Facility Agent against any cost, loss or liability
incurred by the Facility Agent (acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is an Event
of Default;
(b) entering into or performing any foreign exchange contract for the
purposes of paragraph (b) of Clause 33.9 (CHANGE OF CURRENCY); or
(c) acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised.
18.4 INDEMNITY TO THE SECURITY TRUSTEE
(a) Each Obligor shall promptly indemnify the Security Trustee and
every Receiver and Delegate against any cost, loss or liability
incurred by any of them as a result of:
(i) the taking, holding, protection or enforcement of the
Transaction Security,
(ii) the exercise of any of the rights, powers, discretions and
remedies vested in the Security Trustee and each Receiver
and Delegate by the Finance Documents or by law; and
(iii) any default by any Obligor in the performance of any of
the obligations expressed to be assumed by it in the
Finance Documents.
(b) The Security Trustee may, in priority to any payment to the
Secured Parties, indemnify itself out of the Charged Property in
respect of, and pay and retain, all sums necessary to give effect
to the indemnity in this Clause 18.4 and shall have a lien on the
Transaction Security and the proceeds of the enforcement of the
Transaction Security for all monies payable to it.
19. MITIGATION BY THE LENDERS
19.1 MITIGATION
(a) Each Finance Party shall, in consultation with the Parent, take
all reasonable steps to mitigate any circumstances which arise
and which would result in any amount becoming payable under or
pursuant to, or cancelled pursuant to, any of Clause 11.1
(ILLEGALITY OF A LENDER) (or, in respect of the Issuing Bank,
Clause 11.2 (ILLEGALITY IN RELATION TO ISSUING BANK)), Clause 16
(TAX GROSS-UP AND INDEMNITIES) or Clause 17 (INCREASED COSTS) or
paragraph 3 of Schedule 4 (MANDATORY COST FORMULAE) including
(but not limited to) transferring its rights and obligations
under the Finance Documents to another Affiliate or Facility
Office.
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(b) Paragraph (a) above does not in any way limit the obligations of
any Obligor under the Finance Documents.
19.2 LIMITATION OF LIABILITY
(a) The Parent shall (or shall procure that an Obligor will)
indemnify each Finance Party for all costs and expenses
reasonably incurred by that Finance Party as a result of steps
taken by it under Clause 19.1 (MITIGATION).
(b) A Finance Party is not obliged to take any steps under Clause
19.1 (MITIGATION) if, in the opinion of that Finance Party
(acting reasonably), to do so might be prejudicial to it.
20. COSTS AND EXPENSES
20.1 TRANSACTION EXPENSES
The Parent shall promptly on demand pay (or shall procure that an
Obligor will pay) the Facility Agent, the Arranger and the Security
Trustee the amount of all costs and expenses (including legal fees)
reasonably incurred by any of them in connection with the negotiation,
preparation, printing, execution, syndication and perfection of:
(a) this Agreement and any other documents referred to in this
Agreement and the Transaction Security; and
(b) any other Finance Documents executed after the date of this
Agreement.
20.2 AMENDMENT COSTS
If (a) an Obligor requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 33.9 (CHANGE OF CURRENCY), the
Parent shall, within three Business Days of demand, reimburse (or
procure reimbursement of) each of the Facility Agent and the Security
Trustee for the amount of all costs and expenses (including legal fees)
reasonably incurred by the Facility Agent and the Security Trustee in
responding to, evaluating, negotiating or complying with that request or
requirement.
20.3 ENFORCEMENT AND PRESERVATION COSTS
The Parent shall, within three Business Days of demand, pay (or procure
payment) to each Secured Party and the Arranger the amount of all costs
and expenses (including legal fees) incurred by that Secured Party or
Arranger in connection with the enforcement of or the preservation of
any rights, powers and remedies under any Finance Document and the
Transaction Security and any proceedings instituted by or against the
Security Trustee as a consequence of taking or holding the Transaction
Security or enforcing these rights, powers and remedies.
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SECTION 7
GUARANTEE
21. GUARANTEE AND INDEMNITY
21.1 GUARANTEE AND INDEMNITY
Each Guarantor irrevocably and unconditionally jointly and severally:
(a) guarantees to each Finance Party punctual performance by each
other Obligor of all that Obligor's obligations under the Finance
Documents;
(b) undertakes with each Finance Party that whenever another Obligor
does not pay any amount when due under or in connection with any
Finance Document, that Guarantor shall immediately on demand pay
that amount as if it was the principal obligor; and
(c) indemnifies each Finance Party immediately on demand against any
cost, loss or liability suffered by that Finance Party if any
obligation guaranteed by it is or becomes unenforceable, invalid
or illegal. The amount of the cost, loss or liability shall be
equal to the amount which that Finance Party would otherwise have
been entitled to recover.
21.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the ultimate
balance of sums payable by any Obligor under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
21.3 REINSTATEMENT
If any payment by an Obligor or any discharge given by a Finance Party
(whether in respect of the obligations of any Obligor or any security
for those obligations or otherwise) is avoided or reduced as a result of
insolvency or any similar event:
(a) the liability of each Obligor shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and
(b) each Finance Party shall be entitled to recover the value or
amount of that security or payment from the Obligor, as if the
payment, discharge, avoidance or reduction had not occurred.
21.4 WAIVER OF DEFENCES
The obligations of each Guarantor under this Clause 21 will not be
affected by any act, omission, matter or thing which, but for this
Clause 21, would reduce, release or prejudice any of its obligations
under this Clause 21 (without limitation and whether or not known to it
or any Finance Party) including:
(a) any time, waiver or consent granted to, or composition with, any
Obligor or other person;
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(b) the release of any other Obligor or any other person under the
terms of any composition or arrangement with any creditor of any
member of the Group;
(c) the taking, variation, compromise, exchange, renewal or release
of, or refusal or neglect to perfect, take up or enforce, any
rights against, or security over assets of, any Obligor or other
person or any non-presentation or non-observance of any formality
or other requirement in respect of any instrument or any failure
to realise the full value of any security;
(d) any incapacity or lack of power, authority or legal personality
of or dissolution or change in the members or status of an
Obligor or any other person;
(e) any amendment (however fundamental) or replacement of a Finance
Document or any other document or security;
(f) any unenforceability, illegality or invalidity of any obligation
of any person under any Finance Document or any other document or
security; or
(g) any insolvency or similar proceedings.
21.5 IMMEDIATE RECOURSE
Each Guarantor waives any right it may have of first requiring any
Finance Party (or any trustee or agent on its behalf) to proceed against
or enforce any other rights or security or claim payment from any person
before claiming from that Guarantor under this Clause 21. This waiver
applies irrespective of any law or any provision of a Finance Document
to the contrary.
21.6 APPROPRIATIONS
Until all amounts which may be or become payable by the Obligors under
or in connection with the Finance Documents have been irrevocably paid
in full, each Finance Party (or any trustee or agent on its behalf) may:
(a) refrain from applying or enforcing any other monies, security or
rights held or received by that Finance Party (or any trustee or
agent on its behalf) in respect of those amounts, or apply and
enforce the same in such manner and order as it sees fit (whether
against those amounts or otherwise) and no Guarantor shall be
entitled to the benefit of the same; and
(b) hold in an interest-bearing suspense account any monies received
from any Guarantor or on account of any Guarantor's liability
under this Clause 21.
21.7 DEFERRAL OF GUARANTOR'S RIGHTS
Until all amounts which may be or become payable by the Obligors under
or in connection with the Finance Documents have been irrevocably paid
in full and unless the Facility Agent otherwise directs, no Guarantor
will exercise any rights which it may have by reason of performance by
it of its obligations under the Finance Documents:
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(a) to be indemnified by an Obligor;
(b) to claim any contribution from any other guarantor of any
Obligor's obligations under the Finance Documents; and/or
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under the Finance Documents or of any other guarantee or security
taken pursuant to, or in connection with, the Finance Documents
by any Finance Party.
21.8 RELEASE OF GUARANTORS' RIGHT OF CONTRIBUTION
If any Guarantor (a "RETIRING GUARANTOR") ceases to be a Guarantor in
accordance with the terms of the Finance Documents for the purpose of
any sale or other disposal of that Retiring Guarantor then on the date
such Retiring Guarantor ceases to be a Guarantor:
(a) that Retiring Guarantor is released by each other Guarantor from
any liability (whether past, present or future and whether actual
or contingent) to make a contribution to any other Guarantor
arising by reason of the performance by any other Guarantor of
its obligations under the Finance Documents; and
(b) each other Guarantor waives any rights it may have by reason of
the performance of its obligations under the Finance Documents to
take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under any Finance Document or of any other security taken
pursuant to, or in connection with, any Finance Document where
such rights or security are granted by or in relation to the
assets of the Retiring Guarantor.
21.9 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by any
other guarantee or security now or subsequently held by any Finance
Party.
21.10 IRELAND - SCHEME OF ARRANGEMENT
The guarantee and indemnity contained in Clause 21.1 (GUARANTEE AND
INDEMNITY) shall not be discharged nor shall any Obligor's liability be
affected by any reduction occurring in, or other arrangement being made
relating to the Obligors' liabilities or any of them to the Finance
Parties as a result of any arrangement or composition made pursuant to
any of the provisions of the Companies (Amendment) Act, 1990 of Ireland
or any analogous provisions or made pursuant to any proceedings or
actions whatsoever and whether or not following the appointment of an
administrator, administrative receiver, trustee, liquidator, receiver or
examiner or any similar officer or any analogous event occurring under
the laws of any relevant jurisdiction to any Obligor or over all or any
substantial part of the assets (as the case may be) of any Obligor and
each Obligor agrees with the Finance Parties that the amount recoverable
by the Finance Parties from such Obligor under the Finance Documents
will be and will continue to be the full amount which would have been
recoverable by the Finance
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Parties from such Obligor in respect of its liabilities and any of them
had no such arrangement or composition or event as aforesaid been
entered into.
21.11 LIMITATIONS APPLICABLE TO GUARANTEES FROM DUTCH GUARANTORS
Any guarantee, indemnity obligation, liability and/or undertaking
granted or assumed pursuant to this Agreement (including but not limited
to this Clause 21 (GUARANTEE AND INDEMNITY) and 18 (OTHER INDEMNITIES))
or pursuant to any other Finance Document by any Obligor incorporated in
The Netherlands shall be deemed not to be undertaken or incurred by such
Obligor to the extent that the same would constitute unlawful financial
assistance within the meaning of Section 2:207(c) of the Dutch Civil
Code. For the avoidance of doubt any guarantee, obligation, indemnity,
liability and/or undertaking granted or assumed hereunder or under any
other Finance Document by:
(a) Iron Mountain Nederland Holdings B.V., shall not be deemed to be
undertaken or incurred to the extent relating to an amount of
euros 23,700 of the Hays IMS Acquisition Indebtedness used for
the acquisition of the shares in the capital of Iron Mountain
Nederland Holdings B.V.; and
(b) Iron Mountain Nederland B.V., shall not be deemed to be
undertaken or incurred to the extent relating to (i) an amount of
L20,150,000 of the Hays IMS Acquisition Indebtedness used for the
acquisition of the shares in the capital of Iron Mountain
Nederland B.V. (ii) an amount of euros 23,700 of the Hays IMS
Acquisition Indebtedness used for the acquisition of the shares
in the capital of Iron Mountain Nederland Holdings B.V.
21.12 SPANISH GUARANTORS
The guarantee given by any Obligor incorporated in Spain expressly
acknowledges that this guarantee takes the form of a first demand
guarantee and not a FIANZA under sections 1,822 and following of the
Spanish Civil Code (CODIGO CIVIL) and, therefore, the benefits conferred
by Spanish law to a FIADOR (benefits of priority, exhaustion of remedies
against the principal debtor and division) shall not apply to this
guarantee.
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SECTION 8
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
22. REPRESENTATIONS
Each Obligor makes the following representations and warranties to each
Finance Party at the times specified in Clause 22.20 (TIMES ON WHICH
REPRESENTATIONS ARE MADE):
22.1 STATUS
(a) It and each of its Subsidiaries is a LIMITED LIABILITY
corporation or company (as the case may be), duly incorporated
and validly existing under the law of its jurisdiction of
incorporation.
(b) It and each of its Subsidiaries has the power to own its assets
and carry on its business as it is being conducted.
22.2 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in each Finance Document
are legal, valid, binding and enforceable obligations.
22.3 NON-CONFLICT WITH OTHER OBLIGATIONS
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents and the granting of the
Transaction Security do not and will not conflict with:
(a) any law or regulation applicable to it;
(b) constitutional documents of any Obligor or Pledged Company; or
(c) any agreement or instrument binding upon any Obligor or Pledged
Company or any Obligor's or any Pledged Company's assets, breach
of which could reasonably be expected to have a Material Adverse
Effect.
22.4 POWER AND AUTHORITY
(a) It has the power to enter into, perform and deliver, and has
taken all necessary action to authorise its entry into,
performance and delivery of, the Finance Documents to which it is
a party and the transactions contemplated by those Finance
Documents.
(b) No limit on its powers will be exceeded as a result of the
borrowing, granting of security or giving of guarantees or
indemnities contemplated by the Finance Documents to which it is
a party.
22.5 VALIDITY AND ADMISSIBILITY IN EVIDENCE
(a) All Authorisations required:
(i) to enable it lawfully to enter into, exercise its rights
and comply with its obligations in the Finance Documents
to which it is a party; and
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(ii) to make the Finance Documents to which it is a party
admissible in evidence in its Relevant Jurisdictions,
have been obtained or effected and are in full force and effect.
22.6 GOVERNING LAW AND ENFORCEMENT
(a) The choice of English law as the governing law of the Finance
Documents will be recognised and enforced in its Relevant
Jurisdictions.
(b) Any judgment obtained in England in relation to a Finance
Document will be recognised and enforced in its Relevant
Jurisdictions.
22.7 NO FILING OR STAMP TAXES
Under the laws of the Relevant Jurisdictions it is not necessary that
the Finance Documents be filed, recorded or enrolled with any court or
other authority in that jurisdiction or that any stamp, registration,
notarial or similar Taxes or fees be paid on or in relation to the
Finance Documents or the transactions contemplated by the Finance
Documents except:
(a) due presentation for registration of the Transaction Security
Documents governed by English law in accordance with The
Companies Act 1985;
(b) the payment of applicable Belgian stamp duty on the Transaction
Security Documents governed by Belgian law;
(c) the payment of applicable notarial fees on the Transaction
Security Documents governed by Spanish law;
(d) due presentation for registration of the Transaction Security
Documents governed by French law with the French tax authorities;
(e) due presentation for registration of the Transaction Security
Documents governed by the Dutch law: rights of pledge
(PANDRECHTEN) with the Dutch tax authorities and rights of
mortgage (HYPOTHEEKRECHTEN) the land register (KADASTER);
(f) due presentation for registration of the Transaction Security
Documents governed by Irish law in accordance with the Irish
Companies Acts 1963 - 2001; and
(g) the payment of applicable Irish stamp duty on the Transaction
Security Documents governed by Irish law,
each of which will be made promptly after the date of this Agreement.
22.8 NO DEFAULT
(a) No Event of Default is continuing or might reasonably be expected
to result from the making of any Utilisation.
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(b) No other event or circumstance is outstanding which constitutes a
default under any other agreement or instrument which is binding
on it or any of its Subsidiaries or to which its (or its
Subsidiaries') assets are subject which could reasonably be
expected to have a Material Adverse Effect.
22.9 NO MISLEADING INFORMATION
(a) Any factual information contained in the Information Memorandum
was true and accurate in all material respects as at the date of
the relevant report or document containing the information.
(b) Any financial projections or forecasts contained in the
Information Memorandum have been prepared on the basis of recent
historical information and on the basis of reasonable assumptions
and were fair (as at the date of the relevant report or document
containing the projection or forecast) and arrived at after
careful consideration.
(c) The written expressions of opinion or intention provided by or on
behalf of an Obligor for the purposes of the Information
Memorandum were arrived at after careful consideration and were
fair and based on reasonable grounds.
(d) No event or circumstance has occurred or arisen and no
information has been omitted from the Information Memorandum and
no information has been given or withheld that results in the
information, opinions, intentions, forecasts or projections
contained in the Information Memorandum being untrue or
misleading or other than fair and reasonable in any material
respect.
(e) All other written information provided by any member of the Group
(including its advisers) was true, complete and accurate in all
material respects as at the date it was provided and is not
misleading in any material respect.
The representations and warranties made with respect to the Information
Memorandum are made by each Obligor in this Clause 22.9 only so far as
it is aware after making reasonable enquiries.
22.10 FINANCIAL STATEMENTS
(a) Its Original Financial Statements were prepared in accordance
with the Accounting Principles consistently applied.
(b) Its unaudited Original Financial Statements fairly represent its
financial condition and operations (consolidated in the case of
the Parent) during the relevant financial year.
(c) There has been no change in its property, assets, business or
financial condition (or the property, assets, business or
consolidated financial condition of the Group, in the case of the
Parent) since the date of the most recent financial statements
delivered pursuant to paragraph (a)(i) of Clause 23.1 (FINANCIAL
STATEMENTS) which could reasonably be expected to have a Material
Adverse Effect.
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(d) Each set of financial statements delivered pursuant to Clause
23.1 (FINANCIAL STATEMENTS) gives a true and fair view of (in the
case of audited financial statements) or fairly represents (in
the case of unaudited financial statements) its financial
condition and operations as at the date at which those financial
statements were drawn up.
22.11 NO PROCEEDINGS PENDING OR THREATENED
No litigation, arbitration or administrative proceedings or
investigations of or before any court, arbitral body or agency which, if
adversely determined, could reasonably be expected to have a Material
Adverse Effect have (to the best of its knowledge and belief) been
started or threatened against it or any of its Subsidiaries.
22.12 ENVIRONMENTAL AND OTHER LAWS
(a) Each Obligor and Pledged Company is in compliance with Clause
25.3 (ENVIRONMENTAL COMPLIANCE) and to the best of its knowledge
and belief no circumstances have occurred which would prevent
that performance or observation.
(b) No Environmental Claim has been commenced or (to the best of its
knowledge and belief) is threatened against any Obligor or
Pledged Company where that claim could reasonably be expected, if
adversely determined, to have a Material Adverse Effect.
(c) No Obligor or Pledged Company is in breach of any other law or
regulation in a manner or to an extent which could reasonably be
expected to have a Material Adverse Effect.
22.13 DANGEROUS SUBSTANCES
No Dangerous Substance has been used, disposed of, generated, stored,
transported, dumped, released, deposited, buried or emitted at, or from,
or under, any premises (whether or not owned, leased, occupied, or
controlled by it) in circumstances where this might reasonably be
expected to result in a liability on it which if enforced could have a
Material Adverse Effect.
22.14 TAXATION
(a) It has duly and punctually paid and discharged all Taxes imposed
on it or its assets within the time period allowed without
incurring penalties (save to the extent that (i) the payment is
being contested in good faith, (ii) it has maintained adequate
reserves for those Taxes and (iii) payment can be lawfully
withheld);
(b) No Obligor or Pledged Company is materially overdue in the filing
of any Tax returns;
(c) No claims are being or are reasonably likely to be asserted
against any Obligor or Pledged Company with respect to Taxes
which, if adversely determined, could reasonably be expected to
have a Material Adverse Effect.
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22.15 SECURITY AND FINANCIAL INDEBTEDNESS
(a) No Security exists over all or any of the present or future
assets of any member of the Group other than any Security
permitted under Clause 25.10 (NEGATIVE PLEDGE).
(b) No member of the Group has any actual or contingent Financial
Indebtedness outstanding other than as permitted by this
Agreement.
22.16 PARI PASSU RANKING
Its payment obligations under the Finance Documents rank at least PARI
PASSU with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law applying
to companies generally.
22.17 TRANSACTION SECURITY
Each Transaction Security Document to which it is a party validly
creates the Security which is expressed to be created by that
Transaction Security Document and evidences the Security it is expressed
to evidence and those security interests are valid and effective.
22.18 GOOD TITLE ASSETS
Subject to any Security permitted pursuant to paragraph (c) of Clause
25.10 (NEGATIVE PLEDGE) and with the exception of the Hays' Leases at
any time prior to the Conditions Subsequent Longstop Date, each Obligor
and Pledged Company has a good, valid and marketable title to, or valid
leases or licences of, and all appropriate Authorisations to use, all
assets necessary to carry on its business as presently conducted and to
perform its obligations under the Finance Documents, save in each case
to the extent that the absence of such good, valid and marketable title
to, or valid leases or licences of or appropriate Authorisations could
not reasonably be expected to be likely to have a Material Adverse
Effect.
22.19 SHARES
The shares of any member of the Group which are subject to the
Transaction Security are fully paid and not subject to any option to
purchase or similar rights. The constitutional documents of companies
whose shares are subject to the Transaction Security do not and could
not restrict or inhibit any transfer of those shares on creation or on
enforcement of the Transaction Security.
22.20 TIMES ON WHICH REPRESENTATIONS ARE MADE
(a) All the representations and warranties in this Clause 22 are made
to each Finance Party on the date of this Agreement except for
the representations and warranties set out in paragraphs (a) to
(d) of Clause 22.9 (NO MISLEADING INFORMATION) relating to the
Information Memorandum which are deemed to be made by each
Obligor on the date that the Information Memorandum is approved
by the Parent.
(b) The Repeating Representations are deemed to be made by each
Obligor to each Finance Party on the date of each Utilisation
Request and on the first day of each Interest Period.
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(c) All the representations and warranties in this Clause 22 except
paragraphs (a) to (d) of Clause 22.9 (NO MISLEADING INFORMATION),
are deemed to be made by each Additional Obligor to each Finance
Party on the day on which it becomes an Additional Obligor.
(d) Each representation or warranty deemed to be made after the date
of this Agreement shall be made by reference to the facts and
circumstances existing at the date the representation or warranty
is made.
23. INFORMATION UNDERTAKINGS
The undertakings in this Clause 23 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
23.1 FINANCIAL STATEMENTS
The Parent shall supply to the Facility Agent in sufficient copies for
all the Lenders:
(a) as soon as they are available, but in any event within 150 days
after the end of each of its financial years:
(i) its audited consolidated financial statements for that
financial year; and
(ii) the financial statements (consolidated if appropriate) of
each Obligor for that financial year audited (if that
Obligor produces audited financial statements);
(b) as soon as they are available, but in any event within 42 days
after the end of each Financial Quarter of each of its financial
years its consolidated financial statements for that Financial
Quarter; and
(c) within 30 days after the commencement of each of its financial
years a consolidated annual budget (including profit and loss
account, balance sheet, cashflow forecasts and capital
expenditure forecasts) for the next financial year.
23.2 COMPLIANCE CERTIFICATE
(a) The Parent shall supply a Compliance Certificate to the Facility
Agent with each set of its audited consolidated annual financial
statements and each set of its consolidated quarterly financial
statements delivered pursuant to paragraph (b) of Clause 23.1
(FINANCIAL STATEMENTS).
(b) Each Compliance Certificate shall:
(i) set out (in reasonable detail) computations as to
compliance with Clause 24 (FINANCIAL COVENANTS) and the
Margin computations set out in the definition "Margin" as
at the date as at which those financial statements were
drawn up;
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(ii) confirm compliance with Clause 25.18 (GUARANTOR GROUP AND
SECURITY COVERAGE); and
(iii) confirm no Default has occurred and is continuing or, if a
Default has occurred, what Default has occurred and the
steps being taken to remedy that Default.
(c) Each Compliance Certificate shall be signed by the finance
director and any other director of the Parent.
(d) The first Compliance Certificate required to be delivered under
this Agreement shall be in respect of the Relevant Period ending
31 July 2004.
23.3 REQUIREMENTS AS TO FINANCIAL STATEMENTS
(a) Each set of financial statements delivered pursuant to Clause
23.1 (FINANCIAL STATEMENTS):
(i) shall be certified by a director of the relevant company
as giving a true and fair view (in the case of annual
financial statements delivered pursuant to paragraph (a)
of Clause 23.1 (FINANCIAL STATEMENTS)) or fairly
representing (in other cases) its financial condition and
operations as at the date as at which those financial
statements were drawn up;
(ii) shall be prepared using the Accounting Principles,
accounting practices and financial reference periods
consistent with those applied in the case of any Obligor,
in the preparation of the Original Financial Statements
for that Obligor,
unless, in relation to any set of financial statements,
the Parent notifies the Facility Agent that there has been
a change in the Accounting Principles, the accounting
practices or reference periods and its auditors (or, if
appropriate, the auditors of the Obligor) deliver to the
Facility Agent:
(A) a description of any change necessary for those
financial statements to reflect the Accounting
Principles, accounting practices and reference
periods upon which that Obligor's Original Financial
Statements were prepared; and
(B) sufficient information, in form and substance as may
be reasonably required by the Facility Agent, to
enable the Lenders to determine whether Clause 24
(FINANCIAL COVENANTS) has been complied with, to
determine the Margin as set out in the definition of
"Margin" and to make an accurate comparison between
the financial position indicated in those financial
statements and the Original Financial Statements.
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(b) If the Parent notifies the Facility Agent of a change in
accordance with paragraph (a)(ii) above then the Parent and
Facility Agent shall enter into negotiations in good faith with a
view to agreeing:
(i) whether or not the change might result in any material
alteration in the commercial effect of any of the terms
of this Agreement; and
(ii) if so, any amendments to this Agreement which may be
necessary to ensure that the change does not result in any
material alteration in the commercial effect of those
terms,
and if any amendments are agreed they shall take effect and be
binding on each of the Parties in accordance with their terms.
If no such agreement is reached within 30 days of that
notification of change, the Facility Agent shall (if so requested
by the Majority Lenders) instruct the auditors of the Parent or
independent accountants (approved by the Parent or, in the
absence of such approval within 5 days of request by the Facility
Agent of such approval, a firm with recognised expertise) to
determine any amendment to Clause 24.2 (FINANCIAL CONDITION) the
Margin computations set out in the definition of "Margin" and any
other terms of this Agreement which those auditors or, as the
case may be, accountants (acting as experts and not arbitrators)
consider appropriate to ensure the change does not result in any
material alteration in the commercial effect of the terms of this
Agreement. Those amendments shall take effect when so determined
by those auditors, or as the case may be, accountants. The cost
and expense of those auditors or accountants shall be for the
account of the Parent.
Any reference in this Agreement to those financial statements
shall be construed as a reference to those financial statements
as adjusted to reflect the basis upon which the Original
Financial Statements were prepared.
(c) The Parent shall procure that each set of annual financial
statements delivered pursuant to paragraph (a) of Clause 23.1
(FINANCIAL STATEMENTS) shall be audited by an internationally
recognised firm of independent auditors (which shall, for the
purposes of this Agreement, include RSM Robson Rhodes) licensed
to practice in the jurisdiction of incorporation of the relevant
member of the Group.
(d) The Parent shall procure that each set of consolidated quarterly
financial statements delivered pursuant to paragraph (b) of
Clause 23.1 (FINANCIAL STATEMENTS) includes a cashflow forecast
in respect of the Group relating to the 3 month period commencing
at the end of the relevant Financial Quarter.
23.4 GROUP COMPANIES
The Parent shall, at the request of the Facility Agent, supply to the
Facility Agent a report stating which of its Subsidiaries are Material
Companies.
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23.5 YEAR-END
With the exception of the proposed change of its year-end (and that of
any applicable member of the Group) to accord with the year-end of Iron
Mountain Inc, the Parent must not change its financial year-end without
the prior written consent of the Facility Agent.
23.6 INFORMATION: MISCELLANEOUS
The Parent shall supply to the Facility Agent (in sufficient copies for
all the Lenders, if the Facility Agent so requests):
(a) all documents dispatched by the Parent to its shareholders (or
any class of them) or dispatched by the Parent or any Obligor to
its creditors generally at the same time as they are dispatched;
(b) promptly upon becoming aware of them, the details of any
litigation, arbitration or administrative proceedings which are
current, threatened or pending against any member of the Group,
and which could reasonably be expected, if adversely determined,
to have a Material Adverse Effect.
(c) promptly, such information or projections regarding the financial
condition, business, operations, of any member of the Group as
any Finance Party (through the Facility Agent) may reasonably
request;
23.7 NOTIFICATION OF DEFAULT
(a) Each Obligor shall notify the Facility Agent of any Default (and
the steps, if any, being taken to remedy it) promptly upon
becoming aware of its occurrence (unless that Obligor is aware
that a notification has already been provided by another
Obligor).
(b) Promptly upon a request by the Facility Agent (acting
reasonably), the Parent shall supply to the Facility Agent a
certificate signed by the finance director and any other director
of the Parent on its behalf certifying that no Default is
continuing (or if a Default is continuing, specifying the Default
and the steps, if any, being taken to remedy it).
23.8 "KNOW YOUR CUSTOMER" CHECKS
(a) If:
(i) the introduction of or any change in (or in the
interpretation, administration or application of) any law
or
regulation made after the date of this Agreement;
(ii) any change in the status of an Obligor or the composition
of the shareholders of an Obligor after the date of this
Agreement; or
(iii) a proposed assignment or transfer by a Lender of any of
its rights and/or obligations under this Agreement to a
party that is not a Lender prior to such assignment or
transfer,
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obliges the Facility Agent or any Lender (or, in the case of
paragraph (iii) above, any prospective new Lender) to comply with
"know your customer" or similar identification procedures in
circumstances where the necessary information is not already
available to it, each Obligor shall promptly upon the request of
the Facility Agent or any Lender supply, or procure the supply
of, such documentation and other evidence as is reasonably
requested by the Facility Agent (for itself or on behalf of any
Lender) or any Lender (for itself or, in the case of the event
described in paragraph (iii) above, on behalf of any prospective
new Lender) in order for the Facility Agent, such Lender or, in
the case of the event described in paragraph (iii) above, any
prospective new Lender to carry out and be satisfied with the
results of all necessary "know your customer" or other checks in
relation to any relevant person pursuant to the transactions
contemplated in the Finance Documents.
(b) Each Lender shall promptly upon the request of the Facility Agent
supply, or procure the supply of, such documentation and other
evidence as is reasonably requested by the Facility Agent (for
itself) in order for the Facility Agent to carry out and be
satisfied with the results of all necessary "know your customer"
or other checks on Lenders or prospective new Lenders pursuant to
the transactions contemplated in the Finance Documents.
(c) The Parent shall, by not less than 10 Business Days' prior
written notice to the Facility Agent, notify the Facility Agent
(which shall promptly notify the Lenders) of its intention to
request that one of its Subsidiaries becomes an Additional
Obligor pursuant to Clause 28 (CHANGES TO THE OBLIGORS).
(d) Following the giving of any notice pursuant to paragraph ((c)
above, if the accession of such Additional Obligor obliges the
Facility Agent or any Lender to comply with "know your customer"
or similar identification procedures in circumstances where the
necessary information is not already available to it, the Parent
shall promptly upon the request of the Facility Agent or any
Lender supply, or procure the supply of, such documentation and
other evidence as is reasonably requested by the Facility Agent
(for itself or on behalf of any Lender) or any Lender (for itself
or on behalf of any prospective new Lender) in order for the
Facility Agent or such Lender or any prospective new Lender to
carry out and be satisfied with the results of all necessary
"know your customer" or other checks in relation to any relevant
person pursuant to the accession of such Subsidiary to this
Agreement as an Additional Obligor.
24. FINANCIAL COVENANTS
24.1 FINANCIAL DEFINITIONS
In this Clause 24:
"BORROWINGS" means, at any time, the outstanding principal, capital or
nominal amount and any fixed or minimum premium payable on prepayment or
redemption of any indebtedness for or in respect of:
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(a) moneys borrowed or raised;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or any similar
instrument;
(d) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with the Accounting
Principles, be treated as a finance or capital lease;
(e) receivables sold or discounted (other than any receivables to the
extent they are sold on a non-recourse basis);
(f) any counter-indemnity obligation in respect of a guarantee,
indemnity, bond, standby or documentary letter of credit or any
other instrument issued by a bank or financial institution
(excluding any given in respect of trade credit arising in the
ordinary course of business);
(g) any amount raised by the issue of redeemable shares which are
redeemable before the Final Maturity Date;
(h) any amount of any liability under an advance or deferred purchase
agreement if one of the primary reasons behind the entry into the
agreement is to raise finance;
(i) any amount raised under any other transaction (including any
forward sale or purchase agreement) having the commercial effect
of a borrowing; and
(j) (without double counting) the amount of any liability in respect
of any guarantee or indemnity for any of the items referred to in
paragraphs (a) to (i) above.
"CONSOLIDATED NET FINANCE CHARGES" means, for any Relevant Period, the
aggregate amount of the accrued interest (including capitalised
interest), commission, fees, discounts, prepayment penalties or premiums
and other finance payments in respect of Borrowings whether paid,
payable or capitalised by any member of the Group in respect of that
Relevant Period:
(a) EXCLUDING any such obligations owed to any other member of the
Group;
(b) INCLUDING the interest element of leasing and hire purchase
payments;
(c) INCLUDING any accrued commission, fees, discounts and other
finance payments payable by any member of the Group under any
interest rate hedging arrangement;
(d) DEDUCTING any accrued commission, fees, discounts and other
finance payments owing to any member of the Group under any
interest rate hedging instrument;
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(e) DEDUCTING any accrued interest owing to any member of the Group
on any deposit or bank account; and
(f) EXCLUDING any interest due under the Subordinated Loan Agreement
or, as the case may be, the Existing Retained Inter-company
Facilities to the extent that the payment of such interest is
funded by a further drawdown under the Subordinated Loan
Agreement;
together with the amount of any cash dividends or distributions paid or
made by the Parent in respect of that Relevant Period.
"CONSOLIDATED TOTAL NET DEBT" means, at any time, the aggregate amount
of all obligations of the Group for or in respect of Borrowings but:
(a) EXCLUDING any obligations owed by a member of the Group to
another member of the Group;
(b) EXCLUDING any amounts owed by any member of the Group pursuant to
the Subordinated Loan Agreement and the Existing Retained
Inter-company Facilities; but
(c) DEDUCTING the aggregate amount of freely available Cash at such
time;
and so that no amount shall be included or excluded more than once.
"EBIT" means the consolidated profits of the Group from ordinary
activities before taxation:
(a) BEFORE DEDUCTING any Consolidated Net Finance Charges;
(b) BEFORE TAKING INTO ACCOUNT any items treated as exceptional or
extraordinary items;
in each case, to the extent added, deducted or taken into account, as
the case may be, for the purposes of determining profits of the Group
from ordinary activities before taxation.
"EBITDA" means EBIT BEFORE DEDUCTING any amount attributable to the
amortisation of intangible assets or the depreciation of tangible
assets.
"FINANCIAL QUARTER" means the period commencing on the day after one
Quarter Date and ending on the next Quarter Date.
"QUARTER DATE" means each of 30 April, 31 July, 31 October and 31
January.
"RELEVANT PERIOD" means each period of twelve months ending on the last
day of the Parent's financial year and each period of twelve months
ending on the last day of each Financial Quarter of the Parent's
financial year.
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24.2 FINANCIAL CONDITION
The Parent shall ensure that:
(a) INTEREST COVER: The ratio of EBITDA to Consolidated Net Finance
Charges in respect of any Relevant Period specified in Column 1
below shall not be less than 4.0:1.
(b) DEBT COVER: The ratio of Consolidated Total Net Debt on each date
set out in Column 1 below to EBITDA in respect of any Relevant
Period ending on such date shall not exceed the ratio set out in
Column 2 below opposite such date.
<Table>
<Caption>
COLUMN 1 COLUMN 2
RELEVANT PERIOD RATIO
Relevant Period expiring 31 July 2004 4.0:1
Relevant Period expiring 31 October 2004 4.0:1
Relevant Period expiring 31 January 2005 4.0:1
Relevant Period expiring 30 April 2005 4.0:1
Relevant Period expiring 31 July 2005 3.75:1
Relevant Period expiring 31 October 2005 3.75:1
Relevant Period expiring 31 January 2006 3.75:1
Relevant Period expiring 30 April 2006 3.75:1
Relevant Period expiring 31 July 2006 3.50:1
Relevant Period expiring 31 October 2006 3.50:1
Relevant Period expiring 31 January 2007 3.50:1
Relevant Period expiring 30 April 2007 3.50:1
Relevant Period expiring 31 July 2007 3.25:1
Relevant Period expiring 31 October 2007 3.25:1
Relevant Period expiring 31 January 2008 3.25:1
Relevant Period expiring 30 April 2008 3.25:1
All Relevant Periods thereafter 3.0:1
</Table>
24.3 FINANCIAL TESTING
(a) The financial covenants set out in Clause 24.2 (FINANCIAL
CONDITION) shall be tested by reference to each of the financial
statements and/or each Compliance Certificate delivered pursuant
to Clause 23.2 (COMPLIANCE CERTIFICATE).
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(b) For the purpose of testing the ratios set out in paragraphs (a)
and (b) of Clause 24.2 (FINANCIAL CONDITION), EBITDA in respect
of each Relevant Period ending on 31 July 2004, 31 October 2004,
31 January 2005 and 30 April 2005 shall be increased by an amount
equal to the annualised synergies achieved in respect of the Hays
IMS Acquisition prior to 31 July 2004 (without double counting),
as certified by RSM Robson Rhodes and shown in:
(i) the pro forma statement set out in the Due Diligence
Report; and
(ii) the updated pro forma statement delivered to the Facility
Agent by RSM Robson Rhodes after 31 July 2004 but in any
event no later than the date of the first Compliance
Certificate delivered pursuant to Clause 23.2 (COMPLIANCE
CERTIFICATE).
(c) For the purpose of testing the ratio set out in paragraph (b) of
Clause 24.2 (FINANCIAL CONDITION), EBITDA shall also;
(i) in the case of any business or company acquired (a
"RELEVANT ACQUISITION") in accordance with the terms of
this Agreement on a date (the "ACQUISITION DATE") during a
Relevant Period, have added to it:
(A) the Parent's good faith estimate (as certified to
the Facility Agent by two directors of the Parent
together with reasonable supporting evidence and
calculations) of EBITDA of the company(ies) or
business comprising the Relevant Acquisition for the
period from the start of that Relevant Period to the
Acquisition Date and for this purpose the
definitions of EBIT and EBITDA in Clause 24.1
(FINANCIAL DEFINITIONS) shall be applied, MUTATIS
MUTANDIS, to the company(ies) or business comprising
the Relevant Acquisition; and
(B) on the four Quarter Dates, immediately following the
Acquisition Date, an amount equal to the annualised
synergies achieved in respect of the Relevant
Acquisition (without double counting) as certified
by an internationally recognised firm of independent
auditors;
(ii) in the case of any businesses or company(ies) sold (a
"RELEVANT DISPOSAL") in accordance with this Agreement
during a Relevant Period, have deducted from it the
Parent's good faith estimate (as confirmed to the Facility
Agent by two directors of the Parent together with
reasonable supporting evidence and calculations) of EBITDA
of the company(ies) or businesses comprising the Relevant
Disposal for the period from the start of that Relevant
Period to the date of such disposal and for this purpose
the definitions of EBIT and EBITDA in Clause 24.1
(FINANCIAL DEFINITIONS) shall be applied, MUTATIS
MUTANDIS, to the company(ies) or business comprising the
Relevant Disposal.
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25. GENERAL UNDERTAKINGS
The undertakings in this Clause 25 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
25.1 AUTHORISATIONS
Each Obligor shall promptly:
(a) obtain, comply with and do all that is necessary to maintain in
full force and effect; and
(b) supply certified copies to the Facility Agent of,
any Authorisation required under any law or regulation of a
Relevant Jurisdiction to:
(i) enable it to perform its obligations under the Finance
Documents; and
(ii) ensure the legality, validity, enforceability or
admissibility in evidence of any Finance Document.
25.2 COMPLIANCE WITH LAWS
Each Obligor shall comply in all respects with all laws to which it may
be subject, if failure so to comply would, or could reasonably be
expected to have, a Material Adverse Effect.
25.3 ENVIRONMENTAL COMPLIANCE
Each Obligor shall (and the Parent shall ensure that each Pledged
Company shall):
(a) comply with all Environmental Law;
(b) obtain and maintain and ensure compliance with any Environmental
Permits;
(c) comply with all other covenants, conditions, restrictions or
agreements directly or indirectly concerned with any
contamination, pollution or waste or the release or discharge of
any toxic or hazardous substance in connection with any real
property which is or was at any time owned, leased or occupied by
any Obligor or Pledged Company or on which any Obligor or Pledged
Company has conducted any activity; and
(d) take all reasonable steps in anticipation of known or expected
future changes to or obligations under Environmental Law or
Environmental Permits,
where failure to do so could reasonably be expected to have a Material
Adverse Effect.
25.4 ENVIRONMENTAL CLAIMS
Each Obligor shall (through the Parent) inform the Facility Agent in
writing as soon as reasonably practicable upon becoming aware of the
same if any Environmental Claim has been commenced or (to the best of an
Obligor's knowledge and belief) is threatened against any Obligor or
Pledged Company where the claim could reasonably
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be expected, if determined against that Obligor or Pledged Company, to
have a Material Adverse Effect.
25.5 TAXATION
Each Obligor shall (and the Parent shall ensure that each Pledged
Company shall) duly and punctually pay and discharge all Taxes imposed
upon it or its assets within the time period allowed without incurring
penalties unless and only to the extent that:
(a) such payment is being contested in good faith;
(b) adequate reserves are being maintained for those Taxes which have
been disclosed in its latest financial statements delivered to
the Facility Agent under Clause 23.1 (FINANCIAL STATEMENTS); and
(c) such payment can be lawfully withheld.
25.6 MERGER
No Obligor shall (and the Parent shall ensure that no Pledged Company
will) enter into any amalgamation, demerger, merger or corporate
reconstruction except pursuant to any acquisition or disposal permitted
by paragraph (b) of Clause 25.8 (ACQUISITIONS) or paragraph (b) of
Clause 25.11 (DISPOSALS).
25.7 CHANGE OF BUSINESS
The Parent shall procure that no substantial change is made to the
general nature of the business of the Parent, the other Obligors or the
Group from that carried on at the date of this Agreement being the
records and information management business or activities related
thereto (including ownership of 100% of the issued share capital of
limited liability companies whose assets consist substantially of such
assets).
25.8 ACQUISITIONS
(a) No Obligor shall (and the Parent shall ensure that no other
member of the Group (other than a Joint Venture Group Company)
will) incorporate or acquire a company or acquire (or acquire an
interest in) shares or securities or a business or undertaking.
(b) Paragraph (a) above shall not apply to:
(i) the proposed share acquisition by the Parent of a European
company codenamed "Project Mont Blanc";
(ii) an acquisition of (A) all of the issued share capital of a
limited liability company or (B) any shares in a Joint
Venture Group Company or (C) a business or undertaking,
but only if:
(1) the consideration for the acquisition does not
exceed L7,500,000 and when aggregated with the
consideration for all other acquisitions which are
not otherwise permitted by paragraph (i) above does
not exceed L15,000,000 in any financial year; and
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(2) the consideration for the acquisition when
aggregated with the consideration for all other
acquisitions which are not otherwise permitted by
the preceding paragraphs does not exceed L20,000,000
in any financial year but only to the extent that
all such acquisitions are fully funded by a specific
issue of equity shares or by Approved Subordinated
Debt;
(iii) any acquisition with the prior written consent of the
Majority Lenders.
25.9 PARI PASSU RANKING
(a) Each Obligor shall ensure that at all times any unsecured and
unsubordinated claims of a Finance Party held against it under
the Finance Documents rank at least PARI PASSU with the claims of
all its other unsecured and unsubordinated creditors except those
creditors whose claims are mandatorily preferred by laws of
general application to companies.
(b) Each Obligor which is incorporated in Spain shall not raise to
the status of a Spanish Public Document any unsecured and
unsubordinated indebtedness.
25.10 NEGATIVE PLEDGE
Except as permitted under paragraph (c) below:
(a) No Obligor shall (and the Parent shall ensure that no other
member of the Group will) create or permit to subsist any
Security over any of its assets.
(b) No Obligor shall (and the Parent shall ensure that no other
member of the Group will):
(i) sell, transfer or otherwise dispose of any of its assets
on terms whereby they are or may be leased to or
re-acquired by an Obligor or any other member of the
Group;
(ii) sell, transfer or otherwise dispose of any of its
receivables on recourse terms;
(iii) enter into any arrangement under which money or the
benefit of a bank or other account may be applied, set-off
or made subject to a combination of accounts; or
(iv) enter into any other preferential arrangement having a
similar effect,
in circumstances where the arrangement or transaction is entered
into primarily as a method of raising Financial Indebtedness or
of financing the acquisition of an asset.
(c) Paragraphs (a) and (b) above do not apply to:
(i) Existing Retained Security;
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(ii) any netting or set-off arrangement entered into by any
member of the Group in the ordinary course of its banking
arrangements for the purpose of netting debit and credit
balances of members of the Group;
(iii) any lien arising by operation of law in the ordinary
course of trading which is discharged within 90 days or is
in respect of an amount less than L10,000;
(iv) any retention of title, hire purchase or conditional sale
arrangement or arrangements having similar effect in
respect of goods supplied to a member of the Group in the
ordinary course of trading and on the suppliers standard
or usual terms;
(v) any sale, transfer or other disposal of any assets
prohibited pursuant to paragraph (b)(i) and (b)(ii) of
this Clause 25.10 (NEGATIVE PLEDGE) where an amount equal
to the Disposal Proceeds thereof is used in or towards
making a prepayment and cancellation of the Facility under
Clause 11.9 (MANDATORY PREPAYMENT ON RECEIPT OF DISPOSAL
PROCEEDS); and
(vi) the Transaction Security.
25.11 DISPOSALS
(a) Except as permitted under paragraph (b) below, no Obligor shall
(and the Parent shall ensure that no other member of the Group
will) enter into a single transaction or a series of transactions
(whether related or not and whether voluntary or involuntary) to
sell, lease, transfer or otherwise dispose of any asset.
(b) Paragraph (a) above does not apply to any sale, lease, transfer
or other disposal:
(i) of assets made in the ordinary course of trading of the
disposing entity;
(ii) of assets on arms length terms for market value;
(iii) arising as a result of any Security permitted under Clause
25.10 (NEGATIVE PLEDGE);
(iv) of assets where the proceeds of disposal are used within 6
months of that disposal to purchase assets utilised in the
records management business;
(v) of any asset (which is not the subject of Transaction
Security) in exchange for other assets comparable or
superior as to type, value and quantity;
(vi) of any surplus or obsolete assets not required for the
efficient operation of the business of the Group by any
member of the Group;
(vii) of cash where such disposal is not otherwise prohibited by
this Agreement; and
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(viii) of assets between Obligors.
25.12 ARM'S LENGTH BASIS
(a) Except as permitted by paragraph (b) below, no Obligor shall (and
the Parent shall ensure no member of the Group will) enter into
any transaction with the Parent or its shareholders except on
arm's length terms.
(b) The following transactions shall not be a breach of this Clause
25.12:
(i) the Mentmore Disposal; and
(ii) intra-Group loans permitted under Clause 25.13 (LOANS,
CREDIT OR GUARANTEES).
25.13 LOANS, CREDIT OR GUARANTEES
(a) Except as permitted under paragraph (b) below, no Obligor shall
(and the Parent shall ensure that no member of the Group will)
(i) make any loans or grant any credit to or for the benefit
of any person;
(ii) give any guarantee or indemnity (except as required under
any of the Finance Documents); or
(iii) otherwise voluntarily assume any liability, whether actual
or contingent, in respect of any obligation of any person.
(b) Paragraph (a) above does not apply to:
(i) any Subordinated Loans under the Subordinated Loan
Agreement;
(ii) a loan by an Obligor to an Obligor;
(iii) any loan made by a member of the Group which is not an
Obligor to an Obligor which is a direct or indirect
Holding Company of such member of the Group where such
loan is to fund obligations under the Finance Documents or
working capital requirements of that Obligor;
(iv) a loan by a member of the Group which is not an Obligor to
another member of the Group which is not an Obligor;
(v) any loan, grant of credit or guarantee granted to any
customer of a member of the Group in the ordinary course
of trading and on arm's length terms;
(vi) the giving by any member of the Group of any guarantee,
bond or indemnity in respect of the liabilities or
obligations of any other member of the Group PROVIDED THAT
no Obligor shall give any guarantee, bond or indemnity in
respect of the liabilities or obligations of any member of
the Group which is not an Obligor; or
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(vii) any loan by the Parent to a Joint Venture Group Company,
the aggregate amount of which does not exceed L5,000,000
in any financial year of the Parent but only to the extent
that the proceeds of any such loans are applied towards
working capital purposes and capital expenditure which,
for the avoidance of doubt, shall not include any
acquisitions as contemplated by paragraph (a) of Clause
25.8(ACQUISITIONS); or
(viii) the loan of euros 9,758,643 made by Document and
Information Management Services Limited to Iron Mountain
Holdings (France) SNC.
25.14 DIVIDENDS
(a) The Parent shall not:
(i) declare, make or pay any dividend, charge, fee or other
distribution (or interest on any unpaid dividend, fee or
distribution) (whether in cash or in kind) on or in
respect of its share capital (or any class of its share
capital);
(ii) repay or distribute any dividend or share premium reserve;
(iii) pay or allow any member of the Group to pay any
management, advisory or other fee to or to the order of
any of the shareholders of the Parent unless such payment
is on arms length terms; or
(iv) redeem, repurchase, defease, retire or repay any of its
share capital or resolve to do so,
save for any such distribution which the Parent is obliged to pay in
terms of its Articles of Association, as approved by the Facility Agent.
25.15 SUBORDINATED FACILITIES
(a) Except as permitted under paragraph (b) below, no Obligor shall
(and the Parent shall ensure that no member of the Group will):
(i) pay, prepay, defease, repay, redeem, purchase, exchange or
enter into any sub-participation arrangements in respect
of any principal amount or amount representing capitalised
interest under the Subordinated Loans; or
(ii) pay any interest or any other amounts payable in
connection with the Subordinated Loans or the Existing
Retained Inter-company Facilities.
(b) Paragraph (a) shall not apply to a payment which:
(i) is made when no Default has occurred and is continuing and
no Default would occur immediately after that payment is
made; and
(ii) is permitted by the Subordination Agreement.
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25.16 FINANCIAL INDEBTEDNESS
(a) Except as permitted under paragraph (b) below, no Obligor shall
(and the Parent shall ensure that no member of the Group will)
incur or allow to remain outstanding any Financial Indebtedness.
(b) Paragraph (a) above does not apply to Financial Indebtedness
which is:
(i) monies borrowed or guarantees or indemnities or counter -
indemnities given under the Finance Documents or subject
to paragraph (vi) below, Financial Indebtedness under the
Ancillary Documents;
(ii) monies borrowed under the Subordinated Loan Agreement;
(iii) monies borrowed under a loan from another member of the
Group which is permitted under Clause 25.13 (LOANS, CREDIT
OR GUARANTEES);
(iv) monies borrowed by a Joint Venture Group Company under a
loan from its shareholder which is not a member of the
Group;
(v) a guarantee in respect of Financial Indebtedness of
another member of the Group which is permitted under
paragraph b(v) of Clause 25.13 (LOANS, CREDIT OR
GUARANTEES);
(vi) Financial Indebtedness incurred under the Ancillary
Documents PROVIDED THAT the aggregate amount of Ancillary
Outstandings does not at any time exceed L10,000,000 (or
its equivalent in other currencies);
(vii) Financial Indebtedness incurred under any finance lease,
hire purchase or conditional sale agreements or
arrangements which do not at any time exceed L3,000,000 in
aggregate;
(viii) indebtedness in respect of any derivative transaction
which is a Hedging Agreement;
(ix) a guarantee or indemnity entered into by a member of the
Group in favour of a bank in the ordinary course of its
banking arrangements for the purpose of netting debit and
credit balances of members of the Group;
(x) any liability incurred in connection with the requirement
of any member of the Group to pay local municipal or local
or governmental authority or its equivalent thereof
charges or such charges designated as such by the Parent
or any member of the Group, where any payment thereof is
deferred for a period of more than 90 days;
(xi) the Existing Retained Facilities to the extent of the
commitments under such Existing Retained Facilities at the
date of this Agreement; or
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(xii) interest accrued but unpaid under the Existing Retained
Inter-company Facilities PROVIDED THAT the aggregate
amount of such interest does not at any time exceed
L18,400,000;
(xiii) Financial Indebtedness incurred in respect of the Existing
Deferred Consideration; or
(xiv) any Financial Indebtedness incurred by Overseas
Subsidiaries, the aggregate amount of which does not at
any time exceed EURO 5,000,000 (or its equivalent in other
currencies).
25.17 INSURANCE
Each Obligor shall (and the Parent shall ensure that each member of the
Group will):
(a) maintain insurances on and in relation to its business and assets
against fire and such other risks to the extent as is usual for
companies carrying on the same or substantially similar business
and reasonably satisfactory to the Facility Agent;
(b) ensure that all insurances must be with reputable independent
insurance companies or underwriters;
(c) ensure that the interest of the Security Trustee (on behalf of
the Secured Parties) is noted on any policy of insurance;
(d) promptly pay all premiums and do all such other things within its
power required to keep each insurance in full force and effect
and not liable to be avoided or to have any claim thereunder
refused; and
(e) promptly and when requested by the Facility Agent supply to or
make available to the Facility Agent copies of all such policies
of insurance.
25.18 GUARANTOR GROUP AND SECURITY COVERAGE
(a) The Parent shall ensure that at all times after the date of this
Agreement:
(i) the aggregate of the unconsolidated earnings before
interest, tax, depreciation and amortisation calculated on
the same basis as EBITDA (as defined in Clause 24
(FINANCIAL COVENANTS)) of each of the Guarantors (but
ignoring losses before interest and tax of any Guarantor)
and the aggregate gross assets and turnover (without
double counting) of the Guarantors represents not less
than (as appropriate) 75% of EBITDA (as defined in Clause
24 (FINANCIAL COVENANTS)) consolidated gross assets and
consolidated turnover of the Group; and
(ii) the aggregate of the unconsolidated or, in the case of
Pledged Companies, consolidated earnings before interest,
tax, depreciation and amortisation calculated on the same
basis as EBITDA (as defined in Clause 24.1 (FINANCIAL
DEFINITIONS)) of each of the Guarantors and Pledged
Companies (but ignoring losses before interest and tax of
any
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Guarantor) and the aggregate gross assets and turnover
(without double counting and consolidated in respect of a
Pledged Company of the Guarantors and Pledged Companies
represents not less than (as appropriate) 90% of the
EBITDA (as defined in Clause 24.1 (FINANCIAL DEFINITIONS))
consolidated gross assets and consolidated turnover of the
Group.
25.19 SECURITY
Each Obligor shall:
(a) take whatever steps and execute whatever documents the Facility
Agent may reasonable require in order to give effect to the
Transaction Security Documents; and
(b) grant such further security in favour of the Security Trustee as
may be required by the Security Trustee, acting on the
instructions of the Majority Lenders, from time to time and all
such further security will secure the obligations of each
Borrower under the Finance Documents.
25.20 ANCILLARY FACILITIES
(a) Each Lender which is an Ancillary Lender agrees that:
(i) until service of a notice by the Facility Agent under
Clause 26.15 (ACCELERATION), that Ancillary Lender will
not, unless the Facility Agent (acting on the instructions
of the Majority Creditors) otherwise agrees:
(A) exercise any right it might otherwise have pursuant
to the Ancillary Facilities provided by it to cancel
or otherwise terminate those Ancillary Facilities;
or
(B) demand repayment of or otherwise take any
enforcement action in respect of the Ancillary
Facilities provided by it (or require the Facility
Agent or Security Agent or any other person to
exercise any enforcement rights under the Finance
Documents in respect of amounts owing under the
Ancillary Facilities provided by it);
(ii) it will, promptly after service of a notice by the
Facility Agent under Clause 26.15 (ACCELERATION), exercise
any and all rights it may have to cancel the Ancillary
Facilities provided by it and demand payment of all
amounts outstanding in respect of the Ancillary Facilities
provided by it, unless the Facility Agent (acting on the
instructions of the Majority Creditors) otherwise agrees
or requires.
(b) The provisions of this Clause 25.21 shall cease to apply after
the Utilisations have been prepaid or repaid in full and the
Lenders are under no obligation to participate in any further
Utilisations.
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25.21 HEDGING ARRANGEMENTS
(a) The Parent shall procure that, within 45 days of the date of this
Agreement, a Borrower or Borrowers acceptable to the Facility
Agent enter into hedging agreements with a Lender or Lenders
implementing the hedging strategy set out in the Hedging Strategy
Letter.
(b) Each Borrower will ensure, and each Hedging Bank agrees, that:
(i) any Hedging Agreement to which it is at any time party
will be in the form of the ISDA 1992 Master Agreement and
will provide for the "Second Method" (that is, two way
payments) in the event of a termination of any hedging
transaction entered into under such Hedging Agreement
whether upon a Termination Event or an Event of Default
(as defined therein);
(ii) if, on termination of any hedging transaction under any
Hedging Agreement to which any Borrower is a party, a
settlement amount or other amount falls due from a Hedging
Bank to any Borrower then, if any of the Transaction
Security has become enforceable, that amount shall be paid
by such Hedging Bank to the Security Trustee and treated
as proceeds of enforcement of the Transaction Security for
application in the order prescribed by Clause 35.1 (ORDER
OF APPLICATION);
(iii) each Hedging Agreement (and any amendment to any Hedging
Agreement) shall be delivered to the Facility Agent as
soon as reasonably practicable after it has been entered
into;
(iv) the Hedging Agreements to which they are party will not
(unless the Majority Lenders have otherwise consented in
writing) be amended, varied or supplemented in a manner
which would result in:
(A) any payment under any such Hedging Agreement being
required to be made by a Borrower earlier than the
date originally provided for in the relevant Hedging
Agreement; or
(B) any Borrower becoming liable to make an additional
payment (or increase an existing payment) under any
such Hedging Agreement which liability does not
arise from the original provisions of that Hedging
Agreement,
if, in either case that would be inconsistent with the Hedging
Strategy Letter or the requirements of this Clause 25.21.
(c) Each Lender which is a Hedging Bank undertakes that it will not
(unless the Majority Creditors have otherwise consented in
writing) demand (other than as may be necessary in order to
exercise any right to terminate or close out any hedging
transaction as provided in and permitted under paragraph (d)
below) payment, prepayment or repayment of, or any distribution
in respect of, or on
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account of, any of the obligations of the relevant Borrower to it
under any Hedging Agreement to which it is party in cash or in
kind except:
(i) for scheduled payments arising under the original terms of
any Hedging Agreement to which it is party (without regard
to any amendments made after the date of such Hedging
Agreement prohibited by paragraph (b)(iii)) of this Clause
25.21); and/or
(ii) for the proceeds of enforcement of the Transaction
Security Documents received and applied in the order
permitted by Clause 35.1 (ORDER OF APPLICATION); and/or
(iii) payments due under any Hedging Agreement to which it is a
party which has been terminated or closed-out by the
relevant Borrower.
(d) Each Lender which is a Hedging Bank undertakes that it will not
(unless the Majority Creditors have otherwise consented in
writing) exercise any right to terminate or close out any hedging
transaction under any Hedging Agreements to which it is party
prior to its stated maturity (whether by reason of the Borrower
counterparty becoming a Defaulting Party or Affected Party
thereunder (and as defined therein) or otherwise) unless:
(i) such Borrower has defaulted on a payment due under such
Hedging Agreement, after allowing for any required notice
and any applicable days of grace, and such default
continues for more than 21 days after notice of such
default being given to the Facility Agent; or
(ii) an Illegality or a Tax Event (each as defined in the ISDA
1992 Master Agreement) has occurred; or
(iii) the Facility Agent has served a notice under Clause 26.15
(ACCELERATION); or
(iv) all Utilisations have been prepaid or repaid in full and
the Lenders are no longer under any obligation to
participate in further Utilisations; or
(v) there is a prepayment of the Term Facility pursuant to
Clause 11 (PREPAYMENT AND CANCELLATION); PROVIDED THAT the
Hedging Bank may only exercise its right to terminate or
close out that element of the hedging transaction (if any)
which corresponds to the amount so prepaid; or
(vi) the parties to the Hedging Agreement have voluntarily
agreed to close out any hedging transaction in that
Hedging Agreement and the relevant Borrower has
demonstrated to the Facility Agent that it will be in
compliance with the terms of the Hedging Strategy Letter.
(e) Each Lender which is a Hedging Bank will, promptly after the
Facility Agent has served a notice under Clause 26.15
(ACCELERATION), exercise any and all
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rights it may have to terminate the hedging transactions under
each Hedging Agreement to which it is party, unless the Facility
Agent (acting on the instructions of the Majority Creditors)
otherwise agrees or requires.
(f) Each Lender which is a Hedging Bank agrees that (unless the
Majority Creditors have otherwise agreed in writing) it will not
enforce any Transaction Security or require any other person to
enforce the same in respect of amounts owing under any Hedging
Agreement to which it is party.
25.22 JOINT VENTURES
The Parent shall ensure that at all times the aggregate EBITDA of the
Joint Venture Group Companies, the aggregate gross assets and aggregate
turnover of the Joint Venture Group Companies represents not more than 5
per cent. of EBITDA, consolidated gross assets and consolidated turnover
of the Group provided that the EBITDA, gross assets and turnover of any
Joint Venture Group Company shall be the proportion of EBITDA, gross
assets and turnover which the Parent's (direct or indirect) shareholding
in such Joint Venture Group Company bears to the entire issued share
capital of that Joint Venture Group Company and for this purpose the
definitions of EBIT and EBITDA in Clause 24.1 (FINANCIAL DEFINITIONS)
shall be applied, MUTATIS MUTANDIS, to each Joint Venture Group Company.
25.23 CONDITIONS SUBSEQUENT
The Parent shall procure that:
(a) within 12 months after the date of this Agreement (such date
being the "CONDITIONS SUBSEQUENT LONGSTOP DATE") there are
obtained landlords' consents to the assignment and transfer of
such number of the Hays' Leases as will ensure that there could
not reasonably be expected to be likely to be a Material Adverse
Effect by reason of the remainder of such consents in respect of
the Hays' Leases not having been obtained by such date;
(b) within 1 month after the date of this Agreement, the share
certificate in respect of Iron Mountain Ireland (Holdings)
Limited is delivered to the Facility Agent by Iron Mountain
Holdings (Europe) Limted;
(c) within 1 month after the date of this Agreement, Iron Mountain
Nederland B.V. shall have entered into the Transaction Security
Documents in favour of the Security Trustee for the benefit of
the Secured Parties over all the assets, business and undertaking
acquired by it in connection with the Eurostorage Acquisition
which are required by the Facility Agent;
(d) within 10 Business Days after the date of this Agreement:
(i) the ICC Charges are discharged and released: and
(ii) Iron Mountain Ireland Limited shall have entered into the
Transaction Security Documents in favour of the Security
Trustee for the benefit of the Secured Parties which are
required by the Facility Agent; and
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(e) within 1 month after the date of this Agreement:
(i) the ABN Charges are discharged and released; and
(ii) Iron Mountain Nederland B.V. shall have entered into the
Transaction Security Documents in favour of the Security
Trustee for the benefit of the Secured Parties over the
assets comprising the charged property under the ABN
Charges which are required by the Facility Agent.
(f) within 10 Business Days after the date of this Agreement, each
of the ABN Pledges and the Fortis Pledge are discharged and
released.
26. EVENTS OF DEFAULT
Each of the events or circumstances set out in Clause 26 is an Event of
Default.
26.1 NON-PAYMENT
An Obligor does not pay on the due date any amount payable pursuant to a
Finance Document at the place at and in the currency in which it is
expressed to be payable unless:
(a) its failure to pay is caused by administrative or technical
error; and
(b) payment is made within two Business Days of its due date.
26.2 BREACH OF FINANCIAL COVENANTS
Any requirement of Clause 24 (FINANCIAL COVENANTS) is not satisfied.
26.3 OTHER OBLIGATIONS
(a) An Obligor does not comply with any provision of the Finance
Documents (other than those referred to in Clause 26.1
(NON-PAYMENT) and Clause 26.2 (BREACH OF FINANCIAL COVENANTS)).
(b) No Event of Default under paragraph (a) above in relation to
Clause 23 (INFORMATION UNDERTAKINGS) or Clause 25 (GENERAL
UNDERTAKINGS) (excluding Clause 25.9 (PARI PASSU RANKING), Clause
25.10 (NEGATIVE PLEDGE), Clause 25.11 (DISPOSALS), Clause 25.14
(DIVIDENDS) and Clause 25.15 (SUBORDINATED FACILITIES)) and will
occur if the failure to comply is capable of remedy and is
remedied within:
(i) in relation to Clause 23.1 (FINANCIAL STATEMENTS), 23.2
(COMPLIANCE CERTIFICATE), paragraph (a) of Clause 23.6
(INFORMATION: MISCELLANEOUS) and paragraph (b) of Clause
25.1 (AUTHORISATIONS), 5 Business Days;
(ii) or otherwise, 20 Business Days,
of the earlier of the Facility Agent giving notice to the Parent
or relevant Obligor or the Parent or an Obligor becoming aware of
the failure to comply.
26.4 MISREPRESENTATION
Any representation or statement made or deemed to be made by an Obligor
in the Finance Documents or in any other document delivered by or on
behalf of any Obligor
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under or in connection with any Finance Document is or proves to have
been incorrect or misleading in any material respect when made or deemed
to be made.
26.5 CROSS DEFAULT
(a) Any Financial Indebtedness of any member of the Group (other than
a Joint Venture Group Company) is not paid when due nor within
any originally applicable grace period and in respect of any on
demand Financial Indebtedness is not paid within five Business
Days after such demand.
(b) Any Financial Indebtedness of any member of the Group (other than
a Joint Venture Group Company) is declared to be or otherwise
becomes due and payable prior to its specified maturity as a
result of an event of default (however described).
(c) Any commitment for any Financial Indebtedness of any member of
the Group (other than a Joint Venture Group Company) is cancelled
or suspended by a creditor of any member of the Group (other than
a Joint Venture Group Company) as a result of an event of default
(however described).
(d) Any creditor of any member of the Group (other than a Joint
Venture Group Company) becomes entitled to declare any Financial
Indebtedness of any member of the Group (other than a Joint
Venture Group Company) due and payable prior to its specified
maturity as a result of an event of default (however described).
(e) No Event of Default will occur under this Clause 26.5 if the
aggregate amount of Financial Indebtedness or commitment for
Financial Indebtedness falling within paragraphs (a) to (d) above
is less than L2,500,000 (or its equivalent in any other
currency).
26.6 INSOLVENCY
(a) A member of the Group (other than a Joint Venture Group Company)
is unable or admits inability to pay its debts as they fall due
or is deemed to or declared to be unable to pay its debts under
applicable law (but, in the case of deemed inability to pay debts
under Section 123(1)(a) of the Insolvency Act, this clause shall
be construed as if the figure of L750 was replaced with
L1,000,000), suspends making payments on any of its debts or, by
reason of actual or anticipated financial difficulties, commences
negotiations with one or more of its creditors with a view to
rescheduling any of its indebtedness.
(b) The value of the assets of any member of the Group (other than a
Joint Venture Group Company) is less than its liabilities (taking
into account contingent and prospective liabilities).
(c) A moratorium is declared in respect of any indebtedness of any
member of the Group (other than a Joint Venture Group Company).
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26.7 INSOLVENCY PROCEEDINGS
(a) Any corporate action, legal proceedings or other procedure or
step is taken in relation to:
(i) the suspension of payments, bankruptcy, a moratorium of
any indebtedness, winding-up, dissolution, administration,
examination or reorganisation (by way of voluntary
arrangement, scheme of arrangement or otherwise) of any
member of the Group (other than a Joint Venture Group
Company) other than a solvent liquidation or
reorganisation of any member of the Group which is not an
Obligor;
(ii) a composition, assignment or arrangement with any creditor
of any member of the Group (other than a Joint Venture
Group Company);
(iii) the appointment of a provisional liquidator, a liquidator
(other than in respect of a solvent liquidation of a
member of the Group which is not an Obligor), receiver,
receiver or manager, administrative receiver,
administrator, examiner, compulsory or interim manager or
other similar officer in respect of any member of the
Group (other than a Joint Venture Group Company) or any of
its assets; or
(iv) enforcement of any Security over any assets valued at more
than L500,000 (or its equivalent in any other currency or
currencies) of any member of the Group (other than a Joint
Venture Group Company),
or any analogous procedure or step is taken in any jurisdiction.
(b) Paragraph (a) shall not apply to:
(i) any procedure or step in relation to a Dormant Subsidiary;
or
(ii) any winding-up petition which is frivolous or vexatious or
which is being contested in good faith and is discharged,
stayed or dismissed within 28 days of commencement.
26.8 CREDITORS' PROCESS
Any expropriation, attachment, sequestration, distress or execution or
any analogous process in any jurisdiction affects any asset or assets of
a member of the Group (other than a Joint Venture Group Company) valued
at more than L500,000 (or its equivalent in any other currency or
currencies) and is not discharged within 7 days.
26.9 UNLAWFULNESS AND INVALIDITY
(a) It is or becomes unlawful for an Obligor to perform any of its
material obligations under the Finance Documents or any
Transaction Security created or expressed to be created or
evidenced by the Transaction Security Documents ceases to be
effective or subordination created under the Subordination
Agreement is or becomes unlawful.
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(b) Any obligation or obligations of any Obligor under any Finance
Documents are not or cease to be legal, valid, binding or
enforceable and the cessation individually or cumulatively
materially and adversely effects the interests of the Lenders
under the Finance Documents.
(c) Any Finance Document ceases to be in full force and effect or any
Transaction Security or subordination created under the
Subordination Agreement ceases to be legal, valid, binding,
enforceable or effective or the subordination created thereunder
is alleged by a party to it (other than a Finance Party) to be
ineffective.
26.10 SUBORDINATION AGREEMENT
(a) Any party to the Subordination Agreement (other than a Finance
Party or an Obligor) fails to comply with the provisions of, or
does not perform its obligations under, the Subordination
Agreement; or
(b) a representation or warranty given by that party in the
Subordination Agreement is incorrect in any material respect,
and, if the non-compliance or circumstances giving rise to the
misrepresentation are capable of remedy, it is not remedied within 7
days of the earlier of the Facility Agent giving notice to that party or
that party becoming aware of the non-compliance or misrepresentation.
26.11 REPUDIATION
An Obligor (or any other relevant party) repudiates a Finance Document
or any of the Transaction Security or evidences in writing an intention
to repudiate a Finance Document or any Transaction Security.
26.12 CESSATION OF BUSINESS
An Obligor ceases, or threatens or proposes to cease, to carry on all or
a substantial part of its business, except:
(a) in consequence of any reorganisation, reconstruction or
amalgamation permitted under this Agreement; or
(b) as may result from any disposal of assets or wind-down of
business activities not otherwise prohibited by the terms of this
Agreement; or
(c) as previously approved in writing by the Majority Lenders.
26.13 CHANGE OF OWNERSHIP
An Obligor (other than the Parent) ceases to be a wholly-owned
Subsidiary of the Parent other than with the permission of the Facility
Agent, acting on the instructions of the Majority Lenders.
26.14 MATERIAL ADVERSE CHANGE
Any event or circumstance occurs which the Majority Lenders reasonably
believe might have a Material Adverse Effect.
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26.15 ACCELERATION
On and at any time after the occurrence of an Event of Default which is
continuing the Facility Agent may, and shall if so directed by the
Majority Lenders, by notice to the Parent:
(a) cancel the Total Commitments whereupon they shall immediately be
cancelled and any fees payable under the Finance Documents in
connection with those Commitments shall be immediately due and
payable;
(b) declare that all or part of the Utilisations, together with
accrued interest, and all other amounts accrued or outstanding
under the Finance Documents be immediately due and payable,
whereupon they shall become immediately due and payable;
(c) declare that all or part of the Utilisations be payable on
demand, whereupon they shall immediately become payable on demand
by the Facility Agent on the instructions of the Lenders;
(d) declare that cash cover in respect of each Letter of Credit is
immediately due and payable at which time it shall become
immediately due and payable;
(e) declare that cash cover in respect of each Letter of Credit is
payable on demand at which time it shall immediately become due
and payable on demand by the Facility Agent on the instructions
of the Majority Lenders;
(f) exercise or direct the Security Trustee to exercise any or all of
its rights, remedies, powers or discretions under the Finance
Documents PROVIDED THAT the Facility Agent is not obliged to
direct the Security Trustee to take any enforcement action in
relation to the Transaction Security unless the Majority
Creditors have so directed the Facility Agent.
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SECTION 9
CHANGES TO PARTIES
27. CHANGES TO THE LENDERS
27.1 ASSIGNMENTS AND TRANSFERS BY THE LENDERS
Subject to this Clause 27, a Lender (the "EXISTING LENDER") may:
(a) assign any of its rights and benefits; or
(b) transfer by novation any of its rights, benefits and obligations,
to another bank or financial institution (the "NEW LENDER").
27.2 CONDITIONS OF ASSIGNMENT OR TRANSFER
(a) The consent of the Parent is required for an assignment or
transfer by an Existing Lender, unless an Event of Default has
occurred and is continuing or unless the assignment or transfer
is to another Lender or an Affiliate of a Lender.
(b) The consent of the Parent to an assignment or transfer must not
be unreasonably withheld or delayed. The Parent will be deemed to
have given its consent ten Business Days after the Existing
Lender has requested it unless consent is expressly refused by
the Parent within that time.
(c) The consent of the Parent to an assignment or transfer must not
be withheld solely because the assignment or transfer may result
in an increase to the Mandatory Cost.
(d) An assignment will only be effective on:
(i) receipt by the Facility Agent of a written confirmation
from the New Lender (in form and substance satisfactory to
the Facility Agent) that the New Lender will assume the
same obligations to the other Finance Parties and the
other Secured Parties as it would have been under if it
was an Original Lender; and
(ii) performance by the Facility Agent of all "know your
customer" or other checks relating to any person that it
is required to carry out in relation to such assignment to
a New Lender, the completion of which the Facility Agent
shall promptly notify to the Existing Lender and the New
Lender.
(e) A transfer will only be effective on receipt by the Facility
Agent if the procedure set out in Clause 27.5 (PROCEDURE FOR
TRANSFER) is complied with.
(f) Any assignment or transfer of part of its Commitment shall be in
a minimum amount of L5,000,000.
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(g) If:
(i) a Lender assigns or transfers any of its rights, benefits
or obligations under the Finance Documents or changes its
Facility Office; and
(ii) as a result of circumstances existing at the date the
assignment, transfer or change occurs, an Obligor would be
obliged to make a payment to the New Lender or Lender
acting through its new Facility Office under Clause 16
(TAX GROSS-UP AND INDEMNITIES) or Clause 17 (INCREASED
COSTS),
then the New Lender or Lender acting through its new Facility
Office is only entitled to receive payment under those Clauses to
the same extent as the Existing Lender or Lender acting through
its previous Facility Office would have been if the assignment,
transfer or change had not occurred.
27.3 ASSIGNMENT OR TRANSFER FEE
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Facility Agent (for its own account) a fee of
L1,000.
27.4 LIMITATION OF RESPONSIBILITY OF EXISTING LENDERS
(a) Unless expressly agreed to the contrary, an Existing Lender makes
no representation or warranty and assumes no responsibility to a
New Lender for:
(i) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents, the Transaction
Security or any other documents;
(ii) the financial condition of any Obligor;
(iii) the performance and observance by any Obligor or any other
member of the Group of its obligations under the Finance
Documents or any other documents; or
(iv) the accuracy of any statements (whether written or oral)
made in or in connection with any Finance Document or any
other document,
and any representations or warranties implied by law are
excluded.
(b) Each New Lender confirms to the Existing Lender, the other
Finance Parties and the Secured Parties that it:
(i) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition
and affairs of each Obligor and its related entities in
connection with its participation in this Agreement and
has not relied exclusively on any information provided to
it by the Existing Lender or any other Finance Party in
connection with any Finance Document or the Transaction
Security; and
(ii) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities
whilst any
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amount is or may be outstanding under the Finance
Documents or any Commitment is in force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
(i) accept a re-transfer from a New Lender of any of the
rights and obligations assigned or transferred under this
Clause 27; or
(ii) support any losses directly or indirectly incurred by the
New Lender by reason of the non-performance by any Obligor
of its obligations under the Finance Documents or
otherwise.
27.5 PROCEDURE FOR TRANSFER
(a) Subject to the conditions set out in Clause 27.2 (CONDITIONS OF
ASSIGNMENT OR TRANSFER) a transfer is effected in accordance with
paragraph (b) below when the Facility Agent executes an otherwise
duly completed Transfer Certificate delivered to it by the
Existing Lender and the New Lender. The Facility Agent shall,
subject to paragraph (b) below, as soon as reasonably practicable
after receipt by it of a duly completed Transfer Certificate
appearing on its face to comply with the terms of this Agreement
and delivered in accordance with the terms of this Agreement,
execute that Transfer Certificate.
(b) The Facility Agent shall only be obliged to execute a Transfer
Certificate delivered to it by the Existing Lender and the New
Lender upon its completion of all "know your customer" or other
checks relating to any person that it is required to carry out in
relation to the transfer to such New Lender.
(c) On the Transfer Date:
(i) to the extent that in the Transfer Certificate the
Existing Lender seeks to transfer by novation its rights,
benefits and obligations under the Finance Documents and
in respect of the Transaction Security each of the
Obligors and other members of the Group party to any
Finance Document or the Transaction Security and the
Existing Lender shall be released from further obligations
towards one another under the Finance Documents and in
respect of the Transaction Security and their respective
rights against one another under the Finance Documents and
in respect of the Transaction Security shall be cancelled
(being the "DISCHARGED RIGHTS AND OBLIGATIONS");
(ii) each of the Obligors and other members of the Group party
to any Finance Document and the New Lender shall assume
obligations towards one another and/or acquire rights and
benefits against one another which differ from the
Discharged Rights and Obligations only insofar as that
Obligor or other member of the Group and the New Lender
have assumed and/or acquired the same in place of that
Obligor and the Existing Lender;
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(iii) the Facility Agent, the Arranger, the Security Trustee,
the New Lender, the other Lenders, the Issuing Bank, any
Hedge Bank and any relevant Ancillary Lender shall acquire
the same rights and assume the same obligations between
themselves and in respect of the Transaction Security as
they would have acquired and assumed had the New Lender
been an Original Lender with the rights, and/or
obligations acquired or assumed by it as a result of the
transfer and to that extent the Facility Agent, the
Arranger, the Security Trustee, the Issuing Bank, any
Hedge Bank and any relevant Ancillary Lender and the
Existing Lender shall each be released from further
obligations to each other under this Agreement; and
(iv) the New Lender shall become a Party as a "Lender".
27.6 COPY OF TRANSFER CERTIFICATE TO PARENT
The Facility Agent shall, as soon as reasonably practicable after it has
executed a Transfer Certificate, send to the Parent a copy of that
Transfer Certificate.
27.7 DISCLOSURE OF INFORMATION
(a) Any Lender may disclose to any of its Affiliates and any other
person:
(i) to (or through) whom that Lender assigns or transfers (or
may potentially assign or transfer) all or any of its
rights and obligations under the Finance Documents;
(ii) with (or through) whom that Lender enters into (or may
potentially enter into) any sub-participation in relation
to, or any other transaction under which payments are to
be made by reference to, the Finance Documents or any
Obligor; or
(iii) to whom, and to the extent that, information is required
to be disclosed by any applicable law or regulation; and
(b) any Finance Party may disclose to a rating agency,
any information about any Obligor, the Group and the Finance Documents
as that Lender shall consider appropriate, if, in relation to paragraphs
(a)(i) and (ii) and (b) above, the person to whom the information is to
be given has entered into a Confidentiality Undertaking.
27.8 AFFILIATES OF LENDERS AS HEDGE BANKS
(a) An Affiliate of a Lender which becomes a Hedge Bank shall accede
to this Agreement by delivery to the Facility Agent of a duly
completed Accession Letter.
(b) Where this Agreement or any other Finance Document imposes an
obligation on a Hedge Bank and the relevant Hedge Bank is an
Affiliate of a Lender and is not a party to that document, the
relevant Lender shall ensure that the obligation is performed by
its Affiliate.
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28. CHANGES TO THE OBLIGORS
28.1 ASSIGNMENT AND TRANSFERS BY OBLIGORS
No Obligor may assign any of its rights or transfer any of its rights
or obligations under the Finance Documents.
28.2 ADDITIONAL BORROWERS
(a) Subject to compliance with the provisions of paragraphs (c) and
(d) of Clause 23.8 ("KNOW YOUR CUSTOMER" CHECKS) the Parent may
request that any of its wholly owned Subsidiaries which is not a
Dormant Subsidiary becomes an Additional Borrower. That
Subsidiary shall become an Additional Borrower if:
(i) all the Lenders approve the addition of that Subsidiary
other than a wholly-owned Subsidiary incorporated in
England and Wales, or Scotland;
(ii) the Parent delivers to the Facility Agent a duly completed
and executed Accession Letter;
(iii) the Parent confirms that no Default is continuing or would
occur as a result of that Subsidiary becoming an
Additional Borrower; and
(iv) the Facility Agent has received all of the documents and
other evidence listed in Part II (CONDITIONS PRECEDENT
REQUIRED TO BE DELIVERED BY AN ADDITIONAL OBLIGOR) and, if
applicable, Part III (TRANSACTION SECURITY DOCUMENTS AND
SECURITY RELATED DOCUMENTS TO BE DELIVERED BY ADDITIONAL
OBLIGORS) of Schedule 2 (CONDITIONS PRECEDENT) in relation
to that Additional Borrower, each in form and substance
satisfactory to the Facility Agent.
(b) The Facility Agent shall notify the Parent and the Lenders
promptly upon being satisfied that it has received (in form and
substance satisfactory to it) all the documents and other
evidence listed in Part II (CONDITIONS PRECEDENT REQUIRED TO BE
DELIVERED BY AN ADDITIONAL OBLIGOR) and, if applicable, Part III
(TRANSACTION SECURITY DOCUMENTS AND SECURITY RELATED DOCUMENTS TO
BE DELIVERED BY ADDITIONAL OBLIGORS) of Schedule 2 (CONDITIONS
PRECEDENT).
28.3 ADDITIONAL GUARANTORS
(a) Subject to compliance with the provisions of paragraphs (c) and
(d) of Clause 23.8 ("KNOW YOUR CUSTOMER" CHECKS) the Parent may
request that any wholly owned Subsidiaries become an Additional
Guarantor.
(b) The Parent shall ensure that any member of the Group which is a
Material Company shall, as soon as possible after becoming a
Material Company become an Additional Guarantor and shall accede
to the Subordination Agreement unless legal counsel to the
Facility Agent has confirmed there is a provision of law
prohibiting such member of the Group becoming an Additional
Guarantor and there are no applicable exemptions or exceptions to
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that prohibition which would permit such member to become an
Additional Guarantor. The Parent shall procure that the Group
uses reasonable endeavours to overcome that prohibition.
(c) If required by the Agent (and to the extent permitted under
applicable law), each entity which is to become an Additional
Guarantor shall enter into Transaction Security Documents in
favour of the Security Trustee for the benefit of the Secured
Parties (or, if applicable, directly in favour of the Secured
Parties) over all its assets, business and undertaking as
Security for all indebtedness under the Finance Documents, such
Security to provide (to the extent permissible and practicable
under applicable law) equivalent security over such assets,
business and undertaking (together "RELEVANT ASSETS") as granted
to the Security Trustee (or, as applicable, the Secured Parties)
by members of the Group with similar Relevant Assets incorporated
in the same jurisdiction as such Additional Guarantor and, if
such Additional Guarantor is incorporated in a jurisdiction in
which no other member of the Group incorporated in that
jurisdiction with similar Relevant Assets has granted Security,
the Transaction Security Documents shall be in such form and
substance as may be required by the Facility Agent (having due
regard to the practicality and costs involved in taking any such
Security).
(d) In addition, in order to maintain the requirements of Clause
25.18 (GUARANTOR GROUP AND SECURITY COVERAGE) the Parent may
request that any of its Subsidiaries which is not a Material
Company becomes an Additional Guarantor.
(e) A member of the Group shall become an Additional Guarantor if:
(i) the Parent delivers to the Facility Agent a duly completed
and executed Accession Letter; and
(ii) the Facility Agent has received all of the documents and
other evidence listed in Part II (CONDITIONS PRECEDENT
REQUIRED TO BE DELIVERED BY AN ADDITIONAL OBLIGOR) and, if
applicable, Part III (TRANSACTION SECURITY DOCUMENTS AND
SECURITY RELATED DOCUMENTS TO BE DELIVERED BY ADDITIONAL
OBLIGORS) of Schedule 2 (CONDITIONS PRECEDENT) in relation
to that Additional Guarantor, each in form and substance
satisfactory to the Facility Agent.
(f) The Facility Agent shall notify the Parent and the Lenders
promptly upon being satisfied that it has received (in form and
substance satisfactory to it) all the documents and other
evidence listed in Part II (CONDITIONS PRECEDENT REQUIRED TO BE
DELIVERED BY AN ADDITIONAL OBLIGOR) and, if applicable, Part III
(TRANSACTION SECURITY DOCUMENTS AND SECURITY RELATED DOCUMENTS TO
BE DELIVERED BY ADDITIONAL OBLIGORS) of Schedule 2 (CONDITIONS
PRECEDENT).
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(g) The Facility Agent may (but shall not be obliged to) agree a
limit on the amount of the liability of the potential Additional
Guarantor or other changes to the Finance Documents which in the
opinion of the Facility Agent, based on the advice of its legal
counsel, are necessary to overcome a prohibition referred to in
paragraph (c) above or a risk that a guarantee by the potential
Additional Guarantor will not be legal, valid, binding,
enforceable and effective. The cost of the advice of legal
counsel obtained pursuant to this paragraph (f) shall be for the
account of the Parent.
28.4 REPETITION OF REPRESENTATIONS
Delivery of an Accession Letter constitutes confirmation by the relevant
Subsidiary that the representations and warranties referred to in Clause
22 (REPRESENTATIONS) are true and correct in relation to it as at the
date of delivery as if made by reference to the facts and circumstances
then existing.
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SECTION 10
THE FINANCE PARTIES
29. ROLE OF THE FACILITY AGENT, THE ARRANGER, THE ISSUING BANK AND OTHERS
29.1 APPOINTMENT OF THE FACILITY AGENT
(a) Each of the Arranger and the Lenders and the Issuing Bank
appoints the Facility Agent to act as its agent under and in
connection with the Finance Documents.
(b) Each of the Arranger and the Lenders and the Issuing Bank
authorises the Facility Agent to exercise the rights, powers,
authorities and discretions specifically given to the Facility
Agent under or in connection with the Finance Documents together
with any other incidental rights, powers, authorities and
discretions.
29.2 DUTIES OF THE FACILITY AGENT
(a) The Facility Agent shall promptly forward to a Party the original
or a copy of any document which is delivered to the Facility
Agent for that Party by any other Party.
(b) Except where a Finance Document specifically provides otherwise,
the Facility Agent is not obliged to review or check the
adequacy, accuracy or completeness of any document it forwards to
another Party.
(c) If the Facility Agent receives notice from a Party referring to
this Agreement, describing a Default and stating that the
circumstance described is a Default, it shall promptly notify the
other Finance Parties.
(d) If the Facility Agent is aware of the non-payment of any
principal, interest, commitment fee or other fee payable to a
Finance Party (other than the Facility Agent, the Arranger or the
Security Trustee) under this Agreement it shall promptly notify
the other Finance Parties.
(e) The Facility Agent's duties under the Finance Documents are
solely mechanical and administrative in nature.
29.3 ROLE OF THE ARRANGER
Except as specifically provided in the Finance Documents, the Arranger
has no obligations of any kind to any other Party under or in connection
with any Finance Document.
29.4 NO FIDUCIARY DUTIES
(a) Nothing in this Agreement constitutes the Facility Agent, the
Arranger and/or the Issuing Bank as a trustee or fiduciary of any
other person.
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(b) None of the Facility Agent, the Security Trustee, the Arranger or
the Issuing Bank shall be bound to account to any Lender for any
sum or the profit element of any sum received by it for its own
account.
29.5 BUSINESS WITH THE GROUP
The Facility Agent, the Security Trustee, the Arranger and the Issuing
Bank may accept deposits from, lend money to and generally engage in any
kind of banking or other business with any member of the Group.
29.6 RIGHTS AND DISCRETIONS
(a) The Facility Agent and the Issuing Bank may rely on:
(i) any representation, notice or document believed by it to
be genuine, correct and appropriately authorised; and
(ii) any statement made by a director, authorised signatory or
employee of any person regarding any matters which may
reasonably be assumed to be within his knowledge or within
his power to verify.
(b) The Facility Agent may assume (unless it has received notice to
the contrary in its capacity as agent for the Lenders) that:
(i) no Default has occurred (unless it has actual knowledge of
a Default arising under Clause 26.1 (NON-PAYMENT));
(ii) any right, power, authority or discretion vested in any
Party or the Majority Lenders has not been exercised; and
(iii) any notice or request made by the Parent (other than a
Utilisation Request or Selection Notice) is made on behalf
of and with the consent and knowledge of all the Obligors.
(c) The Facility Agent may engage, pay for and rely on the advice or
services of any lawyers, accountants, surveyors or other experts.
(d) The Facility Agent may act in relation to the Finance Documents
through its personnel and agents. The Facility Agent shall not be
liable for the negligence or misconduct of such agents.
(e) The Facility Agent may disclose to any other Party any
information it reasonably believes it has received as agent under
this Agreement.
(f) Notwithstanding any other provision of any Finance Document to
the contrary, none of the Facility Agent, the Arranger or the
Issuing Bank is obliged to do or omit to do anything if it would
or might in its reasonable opinion constitute a breach of any law
or regulation or a breach of a fiduciary duty or duty of
confidentiality.
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29.7 MAJORITY LENDERS' INSTRUCTIONS
(a) Unless a contrary indication appears in a Finance Document, the
Facility Agent shall (a) act in accordance with any instructions
given to it by the Majority Lenders (or, if so instructed by the
Majority Lenders, refrain from acting or exercising any right,
power, authority or discretion vested in it as Facility Agent)
and (b) not be liable for any act (or omission) if it acts (or
refrains from taking any action) in accordance with such an
instruction of the Majority Lenders.
(b) Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all
the Finance Parties other than the Security Trustee.
(c) The Facility Agent may refrain from acting in accordance with the
instructions of the Majority Lenders (or, if appropriate, the
Lenders) until it has received such security as it may require
for any cost, loss or liability (together with any associated
VAT) which it may incur in complying with the instructions.
(d) In the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Facility Agent may act (or refrain
from taking action) as it considers to be in the best interest of
the Lenders.
(e) The Facility Agent is not authorised to act on behalf of a Lender
(without first obtaining that Lender's consent) in any legal or
arbitration proceedings relating to any Finance Document. This
paragraph (e) shall not apply to any legal or arbitration
proceeding relating to the perfection, preservation or protection
of rights under the Transaction Security Documents or enforcement
of the Transaction Security or Transaction Security Documents.
29.8 RESPONSIBILITY FOR DOCUMENTATION
None of the Facility Agent, the Arranger or the Issuing Bank:
(a) is responsible for the adequacy, accuracy and/or completeness of
any information (whether oral or written) supplied by the
Facility Agent, the Arranger, the Issuing Bank, an Obligor or any
other person given in or in connection with any Finance Document
or the Information Memorandum or the Reports or the transactions
contemplated in the Finance Documents; or
(b) is responsible for the legality, validity, effectiveness,
adequacy or enforceability of any Finance Document or the
Transaction Security or any other agreement, arrangement or
document entered into, made or executed in anticipation of or in
connection with any Finance Document or the Transaction Security.
29.9 EXCLUSION OF LIABILITY
(a) Without limiting paragraph (b) below, none of the Facility Agent
or the Issuing Bank will be liable for any action taken by it
under or in connection
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with any Finance Document or the Transaction Security, unless
directly caused by its gross negligence or wilful misconduct.
(b) No Party (other than the Facility Agent or the Issuing Bank (as
applicable)) may take any proceedings against any officer,
employee or agent of the Facility Agent, the Security Trustee or
the Issuing Bank, in respect of any claim it might have against
the Facility Agent, the Security Trustee or the Issuing Bank or
in respect of any act or omission of any kind by that officer,
employee or agent in relation to any Finance Document or any
Transaction Document and any officer, employee or agent of the
Facility Agent, the Security Trustee or the Issuing Bank may rely
on this Clause subject to Clause 1.4 (THIRD PARTY RIGHTS) and the
provisions of the Third Parties Act.
(c) The Facility Agent will not be liable for any delay (or any
related consequences) in crediting an account with an amount
required under the Finance Documents to be paid by the Facility
Agent if the Facility Agent has taken all necessary steps as soon
as reasonably practicable to comply with the regulations or
operating procedures of any recognised clearing or settlement
system used by the Facility Agent for that purpose.
(d) Nothing in this Agreement shall oblige the Facility Agent or the
Arranger to carry out any "know your customer" or other checks in
relation to any person on behalf of any Lender and each Lender
confirms to the Facility Agent and the Arranger that it is solely
responsible for any such checks it is required to carry out and
that it may not rely on any statement in relation to such checks
made by the Facility Agent or the Arranger.
29.10 LENDERS' INDEMNITY TO THE FACILITY AGENT AND THE SECURITY TRUSTEE
Each Lender and Ancillary Lender shall (in proportion to its share of
the Total Commitments or, if the Total Commitments are then zero, to its
share of the Total Commitments immediately prior to their reduction to
zero) indemnify each of the Facility Agent and the Security Trustee,
within three Business Days of demand, against any cost, loss or
liability incurred by the Facility Agent or the Security Trustee
(otherwise than by reason of the Facility Agent's or the Security
Trustee's gross negligence or wilful misconduct) in acting as Facility
Agent or as Security Trustee under the Finance Documents (unless the
Facility Agent or the Security Trustee has been reimbursed by an Obligor
pursuant to a Finance Document).
29.11 RESIGNATION OF THE FACILITY AGENT
(a) The Facility Agent may resign and appoint one of its Affiliates
acting through an office in the United Kingdom as successor by
giving notice to the Lenders and the Parent.
(b) Alternatively the Facility Agent may resign by giving notice to
the Lenders and the Parent, in which case the Majority Lenders
(after consultation with the Parent) may appoint a successor
Facility Agent.
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(c) If the Majority Lenders have not appointed a successor Facility
Agent in accordance with paragraph (b) above within 30 days after
notice of resignation was given, the Facility Agent (after
consultation with the Parent) may appoint a successor Facility
Agent (acting through an office in the United Kingdom).
(d) The retiring Facility Agent shall, at its own cost, make
available to the successor Facility Agent such documents and
records and provide such assistance as the successor Facility
Agent may reasonably request for the purposes of performing its
functions as Facility Agent under the Finance Documents.
(e) The Facility Agent's resignation notice shall only take effect
upon the appointment of a successor.
(f) Upon the appointment of a successor, the retiring Facility Agent
shall be discharged from any further obligation in respect of the
Finance Documents but shall remain entitled to the benefit of
this Clause 29.11. Its successor and each of the other Parties
shall have the same rights and obligations amongst themselves as
they would have had if such successor had been an original Party.
(g) After consultation with the Parent, the Majority Lenders may, by
notice to the Facility Agent, require it to resign in accordance
with paragraph (b) above. In this event, the Facility Agent shall
resign in accordance with paragraph (b) above.
29.12 CONFIDENTIALITY
(a) In acting as agent for the Finance Parties or, as the case may
be, Security Trustee for the Secured Parties, the Facility Agent
and the Security Trustee shall be regarded as acting through its
agency division, or as appropriate, Security Trustee division
which shall be treated as a separate entity from any other of its
divisions or departments.
(b) If information is received by another division or department of
the Facility Agent or the Security Trustee, it may be treated as
confidential to that division or department and neither the
Facility Agent nor the Security Trustee shall be deemed to have
notice of it.
(c) Notwithstanding any other provision of any Finance Document to
the contrary, none of the Facility Agent, the Security Trustee,
and the Arranger are obliged to disclose to any other person (i)
any confidential information or (ii) any other information if the
disclosure would or might in its reasonable opinion constitute a
breach of any law or a breach of a fiduciary duty.
29.13 RELATIONSHIP WITH THE LENDERS
(a) The Facility Agent may treat each Lender as a Lender, entitled to
payments under this Agreement and acting through its Facility
Office unless it has
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received not less than five Business Days prior notice from that
Lender to the contrary in accordance with the terms of this
Agreement.
(b) Each Lender shall supply the Facility Agent with any information
required by the Facility Agent in order to calculate the
Mandatory Cost in accordance with Schedule 4 (MANDATORY COST
FORMULAE).
(c) Each Secured Party shall supply the Facility Agent with any
information that the Security Trustee may reasonably specify
(through the Facility Agent) as being necessary or desirable to
enable the Security Trustee to perform its functions as Security
Trustee. Each Lender shall deal with the Security Trustee
exclusively through the Facility Agent and shall not deal
directly with the Security Trustee.
29.14 CREDIT APPRAISAL BY THE SECURED PARTIES
Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Secured Party confirms to the Facility Agent, the Arranger, the
Security Trustee and each Ancillary Lender that it has been, and will
continue to be, solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection
with any Finance Document including but not limited to:
(a) the financial condition, status and nature of each member of the
Group;
(b) the legality, validity, effectiveness, adequacy or enforceability
of any Finance Document and the Transaction Security and any
other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any
Finance Document or the Transaction Security;
(c) whether that Secured Party has recourse, and the nature and
extent of that recourse, against any Party or any of its
respective assets under or in connection with any Finance
Document, the Transaction Security, the transactions contemplated
by the Finance Documents or any other agreement, arrangement or
document entered into, made or executed in anticipation of, under
or in connection with any Finance Document;
(d) the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Facility
Agent, the Security Trustee, any Party or by any other person
under or in connection with any Finance Document, the
transactions contemplated by the Finance Documents or any other
agreement, arrangement or document entered into, made or executed
in anticipation of, under or in connection with any Finance
Document; and
(e) the right or title of any person in or to, or the value or
sufficiency of any part of the Charged Property, the priority of
any of the Transaction Security or the existence of any Security
affecting the Charged Property.
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29.15 REFERENCE BANKS
If a Reference Bank (or, if a Reference Bank is not a Lender, the Lender
of which it is an Affiliate) ceases to be a Lender, the Facility Agent
shall (in consultation with the Parent) appoint another Lender or an
Affiliate of a Lender to replace that Reference Bank.
29.16 FACILITY AGENT'S MANAGEMENT TIME
Any amount payable to the Facility Agent under Clause 18.3 (INDEMNITY TO
THE FACILITY AGENT), Clause 20 (COSTS AND EXPENSES) and Clause 29.10
(LENDERS' INDEMNITY TO THE FACILITY AGENT AND THE SECURITY TRUSTEE)
shall include the cost of utilising the Facility Agent's management time
or other resources and will be calculated on the basis of such
reasonable daily or hourly rates as the Facility Agent may notify to the
Parent and the Lenders, and is in addition to any fee paid or payable to
the Facility Agent under Clause 15 (FEES).
29.17 DEDUCTION FROM AMOUNTS PAYABLE BY THE FACILITY AGENT
If any Party owes an amount to the Facility Agent under the Finance
Documents the Facility Agent may, after giving notice to that Party,
deduct an amount no exceeding that amount from any payment to that Party
which the Facility Agent would otherwise be obliged to make under the
Finance Documents and apply the amount deducted in or towards
satisfaction of the amount owed. For the purposes of the Finance
Documents that Party shall be regarded as having received any amount so
deducted.
29.18 RELIANCE AND ENGAGEMENT LETTERS
Each Finance Party and Secured Party confirms that each of the Arranger
and the Facility Agent has authority to accept on its behalf the terms
of any reliance letter or engagement letters relating to the Reports or
any reports or letters provided by accountants in connection with the
Finance Documents or the transactions contemplated in the Finance
Documents and to bind it in respect of those Reports, reports or letters
and to sign such letters on its behalf and further confirms that it
accepts the terms and qualifications set out in such letters.
30. ROLE OF SECURITY TRUSTEE
30.1 TRUST
The Security Trustee declares that it shall hold the Transaction
Security on trust for the Secured Parties on the terms contained in this
Agreement. Each of the parties to this Agreement agrees that the
Security Trustee shall have only those duties, obligations and
responsibilities expressly specified in this Agreement or in the
Transaction Security Trustee Documents (and no others shall be implied).
30.2 PARALLEL DEBT (COVENANT TO PAY THE SECURITY TRUSTEE)
(a) Notwithstanding any other provision of this Agreement, each
Obligor hereby irrevocably and unconditionally undertakes to pay
to the Security Trustee, as creditor in its own right and not as
representative of the other Secured Parties, sums equal to and in
the currency of each amount payable by such Obligor to each of
the Secured Parties under each of the Finance Documents as and
when
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that amount falls due for payment under the relevant Finance
Document or would have fallen due but for any discharge resulting
from the failure of another Secured Party to take appropriate
steps, in insolvency proceedings affecting that Obligor, to
preserve its entitlement to be paid that amount.
(b) The Security Trustee shall have its own independent right to
demand payment of the amounts payable by each Obligor under this
Clause 30.2, irrespective of any discharge of such Obligor's
obligation to pay those amounts to the other Secured Parties
resulting from failure by them to take appropriate steps, in
insolvency proceedings affecting that Obligor, to preserve their
entitlement to be paid those amounts.
(c) Any amount due and payable by an Obligor to the Security Trustee
under this Clause 30.2 (PARALLEL DEBT (COVENANT TO PAY THE
SECURITY TRUSTEE)) shall be decreased to the extent that the
other Secured Parties have received (and are able to retain)
payment in full of the corresponding amount under the other
provisions of the Finance Documents and any amount due and
payable by an Obligor to the other Secured Parties under those
provisions shall be decreased to the extent that the Security
Trustee has received (and is able to retain) payment in full of
the corresponding amount under this Clause 30.2 (PARALLEL DEBT
(COVENANT TO PAY THE SECURITY TRUSTEE)),
(d) The rights of the Secured Parties (other than the Security
Trustee) to receive payment of amounts payable by each Obligor
under the Finance Documents are several and separate and
independent from, and without prejudice to, the rights of the
Security Trustee to receive payment under this Clause 30.2
(PARALLEL DEBT (COVENANT TO PAY THE SECURITY TRUSTEE)).
30.3 NO INDEPENDENT POWER
The Secured Parties shall not have any independent power to enforce, or
have recourse to, any of the Transaction Security Trustee or to exercise
any rights or powers arising under the Transaction Security Trustee
Documents except through the Security Trustee.
30.4 SECURITY TRUSTEE'S INSTRUCTIONS
The Security Trustee shall:
(a) unless a contrary indication appears in a Finance Document, act
in accordance with any instructions given to it by the Facility
Agent and shall be entitled to assume that (i) any instructions
received by it from the Facility Agent are duly given by or on
behalf of the Majority Lenders or, as the case may be, the
Lenders in accordance with the terms of the Finance Documents and
(ii) unless it has received actual notice of revocation that any
instructions or directions given by the Facility Agent have not
been revoked;
(b) be entitled to request instructions, or clarification of any
direction, from the Facility Agent as to whether, and in what
manner, it should exercise or refrain from exercising any rights,
powers and discretions and the Security Trustee
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may refrain from acting unless and until those instructions or
clarification are received by it; and
(c) be entitled to, carry out all dealings with the Lenders through
the Facility Agent and may give to the Facility Agent any notice
or other communication required to be given by the Security
Trustee to the Lenders.
30.5 SECURITY TRUSTEE'S ACTIONS
Subject to the provisions of this Clause 30:
(a) the Security Trustee may, in the absence of any instructions to
the contrary, take such action in the exercise of any of its
powers and duties under the Finance Documents which in its
absolute discretion it considers to be for the protection and
benefit of all the Secured Parties; and
(b) at any time after receipt by the Security Trustee of notice from
the Facility Agent directing the Security Trustee to exercise all
or any of its rights, remedies, powers or discretions under any
of the Finance Documents, the Security Trustee may, and shall if
so directed by the Facility Agent, take any action as in its sole
discretion it thinks fit to enforce the Transaction Security
Trustee.
30.6 SECURITY TRUSTEE'S DISCRETIONS
(a) The Security Trustee may assume (unless it has received actual
notice to the contrary in its capacity as Security Trustee for
the Secured Parties) that:
(i) no Default has occurred and no Obligor is in breach of or
default under its obligations under any of the Finance
Documents; and
(ii) any right, power, authority or discretion vested in any
person has not been exercised.
(b) The Security Trustee may, if it receives any instructions or
directions from the Facility Agent to take any action in relation
to the Transaction Security Trustee, assume that all applicable
conditions under the Finance Documents for taking that action
have been satisfied.
(c) The Security Trustee may engage, pay for and rely on the advice
or services of any lawyers, accountants, surveyors or other
experts (whether obtained by the Security Trustee or by any other
Secured Party).
(d) The Security Trustee may rely upon any communication or document
believed by it to be genuine and, as to any matters of fact which
might reasonably be expected to be within the knowledge of a
Secured Party or an Obligor, upon a certificate signed by or on
behalf of that person.
(e) The Security Trustee may refrain from acting in accordance with
the instructions of the Facility Agent or Lenders (including
bringing any legal action or proceeding arising out of or in
connection with the Finance
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Documents) until it has received any indemnification and/or
security that it may in its absolute discretion require (whether
by way of payment in advance or otherwise) for all costs, losses
and liabilities which it may incur in bringing such action or
proceedings.
30.7 SECURITY TRUSTEE'S OBLIGATIONS
The Security Trustee shall promptly inform the Facility Agent of:
(a) the contents of any notice or document received by it in its
capacity as Security Trustee from any Obligor under any Finance
Document; and
(b) the occurrence of any Default of which the Security Trustee has
received notice from any other party to this Agreement.
30.8 EXCLUDED OBLIGATIONS
The Security Trustee shall not:
(a) be bound to enquire as to the occurrence or otherwise of any
Default or the performance, default or any breach by an Obligor
of its obligations under any of the Finance Documents;
(b) be bound to account to any other Secured Party for any sum or the
profit element of any sum received by it for its own account;
(c) be bound to disclose to any other person (including any Secured
Party) (i) any confidential information or (ii) any other
information if disclosure would, or might in its reasonable
opinion, constitute a breach of any law or be a breach of
fiduciary duty;
(d) be under any obligations other than those which are specifically
provided for in the Finance Documents; or
(e) have or be deemed to have any duty, obligation or responsibility
to, or relationship of trust or agency with, any Obligor.
30.9 EXCLUSION OF SECURITY TRUSTEE'S LIABILITY
Unless caused directly by its gross negligence or wilful misconduct the
Security Trustee shall not accept responsibility or be liable for:
(a) the adequacy, accuracy and/or completeness of any information
supplied by the Security Trustee or any other person in
connection with the Finance Documents or the transactions
contemplated in the Finance Documents, or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, under or in connection with the Finance
Documents;
(b) the legality, validity, effectiveness, adequacy or enforceability
of any Finance Document or the Transaction Security or any other
agreement, arrangement or document entered into, made or executed
in anticipation of, under or in connection with any Finance
Document or the Transaction Security;
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(c) any losses to any person or any liability arising as a result of
taking or refraining from taking any action in relation to any of
the Finance Documents or the Transaction Security or otherwise,
whether in accordance with an instruction from the Facility Agent
or otherwise;
(d) the exercise of, or the failure to exercise, any judgment,
discretion or power given to it by or in connection with any of
the Finance Documents, the Transaction Security or any other
agreement, arrangement or document entered into, made or executed
in anticipation of, under or in connection with the Finance
Documents or the Transaction Security; or
(e) any shortfall which arises on the enforcement of the Transaction
Security.
30.10 NO PROCEEDINGS
No Party (other than the Security Trustee) may take any proceedings
against any officer, employee or agent of the Security Trustee in
respect of any claim it might have against the Security Trustee or in
respect of any act or omission of any kind by that officer, employee or
agent in relation to any Finance Document and any officer, employee or
agent of the Security Trustee may rely on this Clause subject to Clause
1.4 (THIRD PARTY RIGHTS) and the provisions of the Third Parties Act.
30.11 OWN RESPONSIBILITY
It is understood and agreed by each Secured Party that at all times that
Secured Party has itself been, and will continue to be, solely
responsible for making its own independent appraisal of and
investigation into all risks arising under or in connection with the
Finance Documents including but not limited to:
(a) the financial condition, creditworthiness, condition, affairs,
status and nature of each of the Obligors;
(b) the legality, validity, effectiveness, adequacy and
enforceability of each of the Finance Documents and the
Transaction Security and any other agreement, arrangement or
document entered into, made or executed in anticipation of, under
or in connection with the Finance Documents or the Transaction
Security;
(c) whether that Secured Party has recourse, and the nature and
extent of that recourse, against any Obligor or any other person
or any of their respective assets under or in connection with the
Finance Documents, the transactions contemplated in the Finance
Documents or any other agreement, arrangement or document entered
into, made or executed in anticipation of, under to or in
connection with the Finance Documents;
(d) the adequacy, accuracy and/or completeness of any information
provided by any person in connection with the Finance Documents,
the transactions contemplated in the Finance Documents or any
other agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with the
Finance Documents; and
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(e) the right or title of any person in or to, or the value or
sufficiency of any part of the Charged Property, the priority of
any of the Transaction Security or the existence of any security
interest affecting the Charged Property,
and each Secured Party warrants to the Security Trustee that it has not
relied on and will not at any time rely on the Security Trustee in
respect of any of these matters.
30.12 NO RESPONSIBILITY TO PERFECT TRANSACTION SECURITY
The Security Trustee shall not be liable for any failure to:
(a) require the deposit with it of any deed or document certifying,
representing or constituting the title of any Obligor to any of
the Charged Property;
(b) obtain any licence, consent or other authority for the execution,
delivery, legality, validity, enforceability or admissibility in
evidence of any of the Finance Documents or the Transaction
Security Trustee;
(c) register, file or record or otherwise protect any of the
Transaction Security Trustee (or the priority of any of the
Transaction Security Trustee) under any applicable laws in any
jurisdiction or to give notice to any person of the execution of
any of the Finance Documents or of the Transaction Security
Trustee;
(d) take, or to require any of the Obligors to take, any steps to
perfect its title to any of the Charged Property or to render the
Transaction Security Trustee effective or to secure the creation
of any ancillary Security Trustee under the laws of any
jurisdiction; or
(e) require any further assurances in relation to any of the
Transaction Security Trustee Documents.
30.13 INSURANCE BY SECURITY TRUSTEE
(a) The Security Trustee shall not be under any obligation to insure
any of the Charged Property, to require any other person to
maintain any insurance or to verify any obligation to arrange or
maintain insurance contained in the Finance Documents. The
Security Trustee shall not be responsible for any loss which may
be suffered by any person as a result of the lack of or
inadequacy of any such insurance.
(b) Where the Security Trustee is named on any insurance policy as an
insured party, it shall not be responsible for any loss which may
be suffered by reason of, directly or indirectly, its failure to
notify the insurers of any material fact relating to the risk
assumed by the insurers or any other information of any kind,
unless any Secured Party has requested it to do so in writing and
the Security Trustee has failed to do so within fourteen days
after receipt of that request.
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30.14 CUSTODIANS AND NOMINEES
The Security Trustee may appoint and pay any person to act as a
custodian or nominee on any terms in relation to any assets of the trust
as the Security Trustee may determine, including for the purpose of
depositing with a custodian this Agreement or any document relating to
the trust created under this Agreement and the Security Trustee shall
not be responsible for any loss, liability, expense, demand, cost, claim
or proceedings incurred by reason of the misconduct, omission or default
on the part of any person appointed by it under this Agreement or be
bound to supervise the proceedings or acts of any person.
30.15 ACCEPTANCE OF TITLE
The Security Trustee shall be entitled to accept without enquiry, and
shall not be obliged to investigate, the right and title as each of the
Obligors may have to any of the Charged Property and shall not be liable
for or bound to require any Obligor to remedy any defect in its right or
title.
30.16 REFRAIN FROM ILLEGALITY
The Security Trustee may refrain from doing anything which in its
opinion will or may be contrary to any relevant law, directive or
regulation of any jurisdiction which would or might otherwise render it
liable to any person, and the Security Trustee may do anything which is,
in its opinion, necessary to comply with any law, directive or
regulation.
30.17 BUSINESS WITH THE OBLIGORS
The Security Trustee may accept deposits from, lend money to, and
generally engage in any kind of banking or other business with any of
the Obligors.
30.18 RELEASES
Upon a disposal of any of the Charged Property:
(a) pursuant to the enforcement of the Transaction Security by a
Receiver or the Security Trustee; or
(b) if that disposal is permitted under the Finance Documents,
the Security Trustee shall (at the cost of the Obligors) release that
property from the Transaction Security Trustee and is authorised to
execute, without the need for any further authority from the Secured
Parties, any release of the Transaction Security Trustee or other claim
over that asset and to issue any certificates of non-crystallisation of
floating charges that may be required or desirable.
30.19 WINDING UP OF TRUST
If the Security Trustee, with the approval of the Majority Lenders,
determines that (a) all of the Secured Obligations and all other
obligations secured by any of the Transaction Security Trustee Documents
have been fully and finally discharged and (b) none of the Secured
Parties is under any commitment, obligation or liability (actual or
contingent) to make advances or provide other financial accommodation to
any Obligor pursuant to the Finance Documents, the trusts set out in
this Agreement shall be wound
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up and the Security Trustee shall release, without recourse or
warranty, all of the Transaction Security Trustee and the rights of
the Security Trustee under each of the Transaction Security Trustee
Documents.
30.20 PERPETUITY PERIOD
The perpetuity period under the rule against perpetuities, if applicable
to this Agreement, shall be the period of eighty years from the date of
this Agreement.
30.21 POWERS SUPPLEMENTAL
The rights, powers and discretions conferred upon the Security Trustee
by this Agreement shall be supplemental to the Security Trustee Acts
1925 and 2000 and in addition to any which may be vested in the Security
Trustee by general law or otherwise.
30.22 DISAPPLICATION
Section 1 of the Security Trustee Act 2000 shall not apply to the duties
of the Security Trustee in relation to the trusts constituted by this
Agreement. Where there are any inconsistencies between the Security
Trustee Acts 1925 and 2000 and the provisions of this Agreement, the
provisions of this Agreement shall, to the extent allowed by law,
prevail and, in the case of any inconsistency with the Security Trustee
Act 2000, the provisions of this Agreement shall constitute a
restriction or exclusion for the purposes of that Act.
30.23 RESIGNATION OF SECURITY TRUSTEE
(a) The Security Trustee may resign and appoint one of its Affiliates
as successor by giving notice to the other Parties (or to the
Facility Agent on behalf of the Lenders).
(b) Alternatively the Security Trustee may resign by giving notice to
the other Parties (or to the Facility Agent on behalf of the
Lenders) in which case the Majority Lenders may appoint a
successor Security Trustee.
(c) If the Majority Lenders have not appointed a successor Security
Trustee in accordance with paragraph (b) above within 30 days
after the notice of resignation was given, the Security Trustee
(after consultation with the Facility Agent) may appoint a
successor Security Trustee.
(d) The retiring Security Trustee shall, at its own cost, make
available to the successor Security Trustee such documents and
records and provide such assistance as the successor Security
Trustee may reasonably request for the purposes of performing its
functions as Security Trustee under the Finance Documents.
(e) The Security Trustee's resignation notice shall only take effect
upon (i) the appointment of a successor and (ii) the transfer of
all of the Transaction Security Trustee to that successor.
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(f) Upon the appointment of a successor, the retiring Security
Trustee shall be discharged from any further obligation in
respect of the Finance Documents but shall remain entitled to the
benefit of Clauses 29 (ROLE OF THE FACILITY AGENT, THE ARRANGER,
THE ISSUING BANK AND OTHERS) and this Clause 30. Its successor
and each of the other Parties shall have the same rights and
obligations amongst themselves as they would have had if such
successor had been an original Party.
(g) The Majority Lenders may, by notice to the Security Trustee,
require it to resign in accordance with paragraph (b) above. In
this event, the Security Trustee shall resign in accordance with
paragraph (b) above.
30.24 DELEGATION
(a) The Security Trustee may, at any time, delegate by power of
attorney or otherwise to any person for any period, all or any of
the rights, powers and discretions vested in it by any of the
Finance Documents.
(b) The delegation may be made upon any terms and conditions
(including the power to sub-delegate) and subject to any
restrictions as the Security Trustee may think fit in the
interests of the Secured Parties and it shall not be bound to
supervise, or be in any way responsible for any loss incurred by
reason of any misconduct or default on the part of any delegate
or sub-delegate.
30.25 ADDITIONAL SECURITIES
(a) The Security Trustee may at any time appoint (and subsequently
remove) any person to act as a separate security or as a
co-security jointly with it (i) if it considers that appointment
to be in the interests of the Secured Parties or (ii) for the
purposes of conforming to any legal requirements, restrictions or
conditions which the Security Trustee deems to be relevant or
(iii) for obtaining or enforcing any judgment in any
jurisdiction, and the Security Trustee shall give prior notice to
the Borrower and the Facility Agent of that appointment.
(b) Any person so appointed shall have the rights, powers and
discretions (not exceeding those conferred on the Security
Trustee by this Agreement) and the duties and obligations that
are conferred or imposed by the instrument of appointment.
(c) The remuneration that the Security Trustee may pay to any person,
and any costs and expenses incurred by that person in performing
its functions pursuant to that appointment shall, for the
purposes of this Agreement, be treated as costs and expenses
incurred by the Security Trustee.
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31. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its
affairs (tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit,
relief, remission or repayment available to it or the extent,
order and manner of any claim; or
(c) oblige any Finance Party to disclose any information relating to
its affairs (tax or otherwise) or any computations in respect of
Tax.
32. SHARING AMONG THE FINANCE PARTIES
32.1 PAYMENTS TO FINANCE PARTIES
If a Finance Party (a "RECOVERING FINANCE PARTY") receives or recovers
any amount from an Obligor other than in accordance with Clause 33
(PAYMENT MECHANICS) or Clause 35 (APPLICATION OF PROCEEDS) and applies
that amount to a payment due under the Finance Documents then:
(a) the Recovering Finance Party shall, within three Business Days,
notify details of the receipt or recovery to the Facility Agent;
(b) the Facility Agent shall determine whether the receipt or
recovery is in excess of the amount the Recovering Finance Party
would have been paid had the receipt or recovery been received or
made by the Facility Agent and distributed in accordance with
Clause 33 (PAYMENT MECHANICS), without taking account of any Tax
which would be imposed on the Facility Agent in relation to the
receipt, recovery or distribution; and
(c) the Recovering Finance Party shall, within three Business Days of
demand by the Facility Agent, pay to the Facility Agent an amount
(the "SHARING PAYMENT") equal to such receipt or recovery less
any amount which the Facility Agent determines may be retained by
the Recovering Finance Party as its share of any payment to be
made, in accordance with Clause 33.5 (PARTIAL PAYMENTS).
32.2 REDISTRIBUTION OF PAYMENTS
The Facility Agent shall treat the Sharing Payment as if it had been
paid by the relevant Obligor and distribute it between the Finance
Parties (other than the Recovering Finance Party) in accordance with
Clause 33.5 (PARTIAL PAYMENTS).
32.3 RECOVERING FINANCE PARTY'S RIGHTS
(a) On a distribution by the Facility Agent under Clause 32.2
(REDISTRIBUTION OF PAYMENTS), the Recovering Finance Party will
be subrogated to the rights of the Finance Parties which have
shared in the redistribution.
(b) If and to the extent that the Recovering Finance Party is not
able to rely on its rights under paragraph (a) above, the
relevant Obligor shall be liable to the
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Recovering Finance Party for a debt equal to the Sharing Payment
which is immediately due and payable.
32.4 REVERSAL OF REDISTRIBUTION
If any part of the Sharing Payment received or recovered by a Recovering
Finance Party becomes repayable and is repaid by that Recovering Finance
Party, then:
(a) each Finance Party which has received a share of the relevant
Sharing Payment pursuant to Clause 32.2 (REDISTRIBUTION OF
PAYMENTS) shall, upon request of the Facility Agent, pay to the
Facility Agent for account of that Recovering Finance Party an
amount equal to its share of the Sharing Payment (together with
an amount as is necessary to reimburse that Recovering Finance
Party for its proportion of any interest on the Sharing Payment
which that Recovering Finance Party is required to pay); and
(b) that Recovering Finance Party's rights of subrogation in respect
of any reimbursement shall be cancelled and the relevant Obligor
will be liable to the reimbursing Finance Party for the amount so
reimbursed.
32.5 EXCEPTIONS
(a) This Clause 32 shall not apply to the extent that the Recovering
Finance Party would not, after making any payment pursuant to
this Clause, have a valid and enforceable claim against the
relevant Obligor.
(b) A Recovering Finance Party is not obliged to share with any other
Finance Party any amount which the Recovering Finance Party has
received or recovered as a result of taking legal or arbitration
proceedings, if:
(i) it notified the other Finance Party of the legal or
arbitration proceedings; and
(ii) the other Finance Party had an opportunity to participate
in those legal or arbitration proceedings but did not do
so as soon as reasonably practicable having received
notice or did not take separate legal or arbitration
proceedings.
(c) This Clause 32 shall not apply to the extent that the Recovering
Finance Party is an Ancillary Lender or a Hedging Bank and the
amounts recovered are amounts which are owing under an Ancillary
Facility or, as the case may be, a Hedging Agreement and are
received at a time when no notice has been served by the Facility
Agent under Clause 26.15 (ACCELERATION).
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SECTION 11
ADMINISTRATION
33. PAYMENT MECHANICS
33.1 PAYMENTS TO THE FACILITY AGENT
(a) On each date on which an Obligor or a Lender is required to make
a payment under a Finance Document, that Obligor or Lender shall
make the same available to the Facility Agent (unless a contrary
indication appears in a Finance Document) for value on the due
date at the time and in such funds specified by the Facility
Agent as being customary at the time for settlement of
transactions in the relevant currency in the place of payment.
(b) Payment shall be made to such account in the principal financial
centre of the country of that currency (or, in relation to euro,
in a principal financial centre in a Participating Member State
or London) with such bank as the Facility Agent specifies.
33.2 DISTRIBUTIONS BY THE FACILITY AGENT
Each payment received by the Facility Agent under the Finance Documents
for another Party shall, subject to Clause 33.3 (DISTRIBUTIONS TO AN
OBLIGOR) and Clause 33.4 (CLAWBACK) be made available by the Facility
Agent as soon as practicable after receipt to the Party entitled to
receive payment in accordance with this Agreement (in the case of a
Lender, for the account of its Facility Office), to such account as that
Party may notify to the Facility Agent by not less than five Business
Days' notice with a bank in the principal financial centre of the
country of that currency (or, in relation to euro, in the principal
financial centre of a Participating Member State or London).
33.3 DISTRIBUTIONS TO AN OBLIGOR
(a) The Facility Agent may (with the consent of the Obligor or in
accordance with Clause 34 (SET-OFF)) apply any amount received by
it for that Obligor in or towards payment (on the date and in the
currency and funds of receipt) of any amount due from that
Obligor under the Finance Documents or in or towards purchase of
any amount of any currency to be so applied.
(b) Each payment to an Obligor shall be made to such account with
such bank as the Parent specifies.
33.4 CLAWBACK
(a) Where a sum is to be paid to the Facility Agent under the Finance
Documents for another Party, the Facility Agent is not obliged to
pay that sum to that other Party (or to enter into or perform any
related exchange contract) until it has been able to establish to
its satisfaction that it has actually received that sum.
(b) If the Facility Agent pays an amount to another Party and it
proves to be the case that the Facility Agent had not actually
received that amount, then the Party to whom that amount (or the
proceeds of any related exchange contract)
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was paid by the Facility Agent shall on demand refund the same to
the Facility Agent together with interest on that amount from the
date of payment to the date of receipt by the Facility Agent,
calculated by the Facility Agent to reflect its cost of funds.
33.5 PARTIAL PAYMENTS
(a) If the Facility Agent receives a payment that is insufficient to
discharge all the amounts then due and payable by an Obligor
under the Finance Documents, the Facility Agent shall apply that
payment towards the obligations of that Obligor under the Finance
Documents in the following order:
(i) FIRST, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Facility Agent, the Issuing
Bank, the Arranger and the Security Trustee under those
Finance Documents;
(ii) SECONDLY, in or towards payment pro rata of any accrued
interest, fee or commission due but unpaid under those
Finance Documents;
(iii) THIRDLY, in or towards payment pro rata of any principal
outstandings due but unpaid under those Finance Documents
and any amount due but unpaid under Clause 7.2 (CLAIMS
UNDER A LETTER OF CREDIT) and Clause 7.3 (INDEMNITIES);
and
(iv) FOURTHLY, in or towards payment pro rata of any other sum
due but unpaid under the Finance Documents.
(b) The Facility Agent shall, if so directed by the Majority Lenders,
vary the order set out in paragraphs (a)(ii) to (iv) above.
(c) If after the service of a notice by the Facility Agent under
Clause 26.15 (ACCELERATION) or pursuant to the provisions of
Clause 35.1 (ORDER OF APPLICATION) the Facility Agent receives a
payment that is insufficient to discharge all the amounts then
due and payable by an Obligor under the Finance Documents, the
Facility Agent shall apply that payment towards the obligations
of that Obligor under the Finance Documents in the following
order:
(i) FIRST, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Facility Agent, the Issuing
Bank, the Security Trustee and the Arranger under the
Finance Documents;
(ii) SECONDLY, in or towards payment pro rata of any accrued
interest or commission due but unpaid under the Finance
Documents;
(iii) THIRDLY, in or towards payment pro rata of any principal
due but unpaid under the Finance Documents (including
without limitation provisions of cash cover in respect of
contingent liabilities and payments due under the
Ancillary Facilities and Hedging Agreements); and
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(iv) FOURTHLY, in or towards payment pro rata of any other sum
due but unpaid under the Finance Documents.
(d) The Facility Agent shall, if so directed by the Majority
Creditors, vary the order set out in paragraphs (c)(ii) to (iv)
above.
(e) Paragraphs (a), (b), (c) and (d) above will override any
appropriation made by an Obligor.
33.6 NO SET-OFF BY OBLIGORS
All payments to be made by an Obligor under the Finance Documents shall
be calculated and be made without (and free and clear of any deduction
for) set-off or counterclaim.
33.7 BUSINESS DAYS
(a) Any payment or reduction which is due to be made, or an Interest
Period which would otherwise end, on a day that is not a Business
Day shall be made or will end, as the case may be, on the next
Business Day in the same calendar month (if there is one) or the
preceding Business Day (if there is not).
(b) During any extension of the due date for payment of any principal
or an Unpaid Sum under this Agreement interest is payable on the
principal at the rate payable on the original due date.
33.8 CURRENCY OF ACCOUNT
(a) Subject to paragraphs (b) to (e) below, the Base Currency is the
currency of account and payment for any sum due from an Obligor
under any Finance Document.
(b) A repayment of a Utilisation or Unpaid Sum or a part of a
Utilisation or Unpaid Sum shall be made in the currency in which
that Utilisation or Unpaid Sum is denominated on its due date.
(c) Each payment of interest shall be made in the currency in which
the sum in respect of which the interest is payable was
denominated when that interest accrued.
(d) Each payment in respect of costs, expenses or Taxes shall be made
in the currency in which the costs, expenses or Taxes are
incurred.
(e) Any amount expressed to be payable in a currency other than the
Base Currency shall be paid in that other currency.
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33.9 CHANGE OF CURRENCY
(a) Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognised by the central bank
of any country as the lawful currency of that country, then:
(i) any reference in the Finance Documents to, and any
obligations arising under the Finance Documents in, the
currency of that country shall be translated into, or paid
in, the currency or currency unit of that country
designated by the Facility Agent (after consultation with
the Parent); and
(ii) any translation from one currency or currency unit to
another shall be at the official rate of exchange
recognised by the central bank for the conversion of that
currency or currency unit into the other, rounded up or
down by the Facility Agent (acting reasonably).
(b) If a change in any currency of a country occurs, this Agreement
will, to the extent the Facility Agent (acting reasonably and
after consultation with the Parent) specifies to be necessary, be
amended to comply with any generally accepted conventions and
market practice in the Relevant Interbank Market and otherwise to
reflect the change in currency.
34. SET-OFF
A Finance Party may set off any matured obligation due from an Obligor
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance Party
to that Obligor, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a market
rate of exchange in its usual course of business for the purpose of the
set-off.
35. APPLICATION OF PROCEEDS
35.1 ORDER OF APPLICATION
All monies from time to time received or recovered by the Security
Trustee under Clause 30.2 (PARALLEL DEBT (COVENANT TO PAY THE SECURITY
TRUSTEE)) and/or in connection with the realisation or enforcement of
all or any part of the Transaction Security shall be held by the
Security Trustee on trust to apply them, to the extent permitted by
applicable law in the following order of priority:
(a) in discharging any sums owing to the Security Trustee (in its
capacity as Security Trustee);
(b) in payment to the Facility Agent, on behalf of the Secured
Parties, for application towards the discharge of all sums due
and payable by any Obligor under any of the Finance Documents in
the order set out in paragraph (c) of Clause 33.5 (PARTIAL
PAYMENTS).
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(c) if none of the Obligors is under any further actual or contingent
liability under any Finance Document, in payment to any person to
whom the Security Trustee is obliged to pay in priority to any
Obligor; and
(d) the balance, if any, in payment to the relevant Obligor.
35.2 INVESTMENT OF PROCEEDS
Prior to the application of the proceeds of the Transaction Security in
accordance with Clause 35.1 (ORDER OF APPLICATION) the Security Trustee
may, at its discretion, hold all or part of those proceeds in an
interest bearing suspense or impersonal account(s) in the name of the
Security Trustee or Facility Agent with such financial institution
(including itself) for so long as the Security Trustee thinks fit (the
interest being credited to the relevant account) pending the application
from time to time of those monies at the Security Trustee's discretion
in accordance with the provisions of this Clause 35.
35.3 CURRENCY CONVERSION
(a) For the purpose of or pending the discharge of any of the
obligations owed by the Obligors to the Finance Parties under the
Finance Documents the Security Trustee may convert any monies
received or recovered by the Security Trustee from one currency
to another, at the spot rate at which the Security Trustee is
able to purchase the currency in which such obligations owed by
the Obligors are due with the amount received.
(b) The obligations of any Obligor to pay in the due currency shall
only be satisfied to the extent of the amount of the due currency
purchased after deducting the costs of conversion.
35.4 PERMITTED DEDUCTIONS
The Security Trustee shall be entitled (a) to set aside by way of
reserve amounts required to meet and (b) to make and pay, any deductions
and withholdings (on account of Taxes or otherwise) which it is or may
be required by any applicable law to make from any distribution or
payment made by it under this Agreement, and to pay all Taxes which may
be assessed against it in respect of any of the Charged Property, or as
a consequence of performing its duties, or by virtue of its capacity as
Security Trustee under any of the Finance Documents or otherwise (except
in connection with its remuneration for performing its duties under any
Finance Document).
35.5 DISCHARGE OF OBLIGATIONS
(a) Any payment to be made in respect of the obligations owed by the
Obligors to the Finance Parties under the Finance Documents by
the Security Trustee may be made to the Facility Agent and any
payment so made shall be a good discharge to the extent of that
payment, to the Security Trustee.
(b) The Security Trustee is under no obligation to make payment to
the Facility Agent in the same currency as that in which any
Unpaid Sum is denominated.
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35.6 SUMS RECEIVED BY OBLIGORS
If any of the Obligors receives any sum which, pursuant to any of the
Finance Documents, should have been paid to the Security Trustee, that
sum shall promptly be paid to the Security Trustee for application in
accordance with this Clause 35.
35.7 APPLICATION AND CONSIDERATION
In consideration for the covenants given to the Security Trustee by each
Obligor in Clause 30.2 (PARALLEL DEBT (COVENANT TO PAY THE SECURITY
TRUSTEE)), the Security Trustee agrees with each Obligor to apply all
moneys from time to time paid by such Obligor to the Security Trustee in
accordance with the provisions of Clause 35.1 (ORDER OF APPLICATION).
36. NOTICES
36.1 COMMUNICATIONS IN WRITING
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax or letter.
36.2 ADDRESSES
The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in connection
with the Finance Documents is:
(a) in the case of the Parent, that identified with its name below;
(b) in the case of each Lender, each Ancillary Lender or any other
Obligor, that notified in writing to the Facility Agent on or
prior to the date on which it becomes a Party; and
(c) in the case of the Facility Agent or the Security Trustee, that
identified with its name below,
or any substitute address, fax number, telex number or department or
officer as the Party may notify to the Facility Agent (or the Facility
Agent may notify to the other Parties, if a change is made by the
Facility Agent) by not less than five Business Days' notice.
36.3 DELIVERY
(a) Any communication or document made or delivered by one person to
another under or in connection with the Finance Documents will
only be effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been left at the relevant
address or five Business Days after being deposited in the
post postage prepaid in an envelope addressed to it at
that address,
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and, if a particular department or officer is specified as
part of its address details provided under Clause 36.2
(ADDRESSES), if addressed to that department or officer.
(b) Any communication or document to be made or delivered to the
Facility Agent or the Security Trustee will be effective only
when actually received by the Facility Agent or Security Trustee
and then only if it is expressly marked for the attention of the
department or officer identified with the Facility Agent's or
Security Trustee's signature below (or any substitute department
or officer as the Facility Agent or Security Trustee shall
specify for this purpose).
(c) All notices from or to an Obligor shall be sent through the
Facility Agent. The Parent may make and/or deliver as agent of
each Obligor notices and/or requests on behalf of each Obligor.
(d) Any communication or document made or delivered to the Parent in
accordance with this Clause 36.3 will be deemed to have been made
or delivered to each of the Obligors.
36.4 NOTIFICATION OF ADDRESS, FAX NUMBER AND TELEX NUMBER
Promptly upon receipt of notification of an address, fax number and
telex number or change of address, fax number or telex number pursuant
to Clause 36.2 (ADDRESSES) or changing its own address, fax number or
telex number, the Facility Agent shall notify the other Parties.
36.5 ELECTRONIC COMMUNICATION
(a) Any communication to be made between the Facility Agent or the
Security Trustee and a Lender under or in connection with the
Finance Documents may be made by electronic mail or other
electronic means, if the Facility Agent, the Security Trustee and
the relevant Lender:
(i) agree that, unless and until notified to the contrary,
this is to be an accepted form of communication;
(ii) notify each other in writing of their electronic mail
address and/or any other information required to enable
the sending and receipt of information by that means; and
(iii) notify each other of any change to their address or any
other such information supplied by them.
(b) Any electronic communication made between the Facility Agent and
a Lender or the Security Trustee will be effective only when
actually received in readable form and in the case of any
electronic communication made by a Lender to the Facility Agent
or the Security Trustee only if it is addressed in such a manner
as the Facility Agent or Security Trustee shall specify for this
purpose.
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36.6 ENGLISH LANGUAGE
(a) Any notice given under or in connection with any Finance Document
must be in English.
(b) All other documents provided under or in connection with any
Finance Document must be:
(i) in English; or
(ii) if not in English, and if so required by the Facility
Agent, accompanied by a certified English translation and,
in this case, the English translation will prevail unless
the document is a constitutional, statutory or other
official document.
36.7 USE OF WEBSITES
(a) The Parent may satisfy its obligation under this Agreement to
deliver any information in relation to those Lenders (the
"WEBSITE LENDERS") who accept this method of communication by
posting this information onto an electronic website designated by
the Parent and the Facility Agent (the "DESIGNATED WEBSITE") if:
(i) the Facility Agent expressly agrees (after consultation
with each of the Lenders) that it will accept
communication of the information by this method;
(ii) both the Parent and the Facility Agent are aware of the
address of and any relevant password specifications for
the Designated Website; and
(iii) the information is in a format previously agreed between
the Parent and the Facility Agent.
If any Lender (a "PAPER FORM LENDER") does not agree to the
delivery of information electronically then the Facility Agent
shall notify the Parent accordingly and the Parent shall supply
the information to the Facility Agent (in sufficient copies for
each Paper Form Lender) in paper form. In any event the Parent
shall supply the Facility Agent with at least one copy in paper
form of any information required to be provided by it.
(b) The Facility Agent shall supply each Website Lender with the
address of and any relevant password specifications for the
Designated Website following designation of that website by the
Parent and the Facility Agent.
(c) The Parent shall promptly upon becoming aware of its occurrence
notify the Facility Agent if:
(i) the Designated Website cannot be accessed due to technical
failure;
(ii) the password specifications for the Designated Website
change;
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(iii) any new information which is required to be provided under
this Agreement is posted onto the Designated Website;
(iv) any existing information which has been provided under
this Agreement and posted onto the Designated Website is
amended; or
(v) the Parent becomes aware that the Designated Website or
any information posted onto the Designated Website is or
has been infected by any electronic virus or similar
software.
If the Parent notifies the Facility Agent under paragraph (c)(i)
or paragraph (c)(v) above, all information to be provided by the
Parent under this Agreement after the date of that notice shall
be supplied in paper form unless and until the Facility Agent and
each Website Lender is satisfied that the circumstances giving
rise to the notification are no longer continuing.
(d) Any Website Lender may request, through the Facility Agent, one
paper copy of any information required to be provided under this
Agreement which is posted onto the Designated Website. The Parent
shall comply with any such request within ten Business Days.
37. CALCULATIONS AND CERTIFICATES
37.1 ACCOUNTS
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are PRIMA FACIE evidence of the matters to
which they relate.
37.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or
amount under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
37.3 DAY COUNT CONVENTION
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual
number of days elapsed and a year of 360 days (or in the case of any
Utilisation denominated in sterling, 365 days) or, in any case where the
practice in the Relevant Interbank Market differs, in accordance with
that market practice.
38. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction will in any way
be affected or impaired.
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39. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party or Secured Party, any right or remedy under the Finance
Documents shall operate as a waiver, nor shall any single or partial
exercise of any right or remedy prevent any further or other exercise or
the exercise of any other right or remedy. The rights and remedies
provided in this Agreement are cumulative and not exclusive of any
rights or remedies provided by law.
40. AMENDMENTS AND WAIVERS
40.1 REQUIRED CONSENTS
(a) Subject to Clause 40.2 (EXCEPTIONS) any term of the Finance
Documents may be amended or waived only with the consent of the
Majority Lenders and the Parent and any such amendment or waiver
will be binding on all Parties.
(b) The Facility Agent may effect, on behalf of any Finance Party,
any amendment or waiver permitted by this Clause 40.
(c) The Parent may effect, as agent of each Obligor, any amendment or
waiver permitted by this Clause 40.
40.2 EXCEPTIONS
(a) An amendment or waiver that has the effect of changing or which
relates to:
(i) the definition of "Majority Lenders" in Clause 1.1
(DEFINITIONS);
(ii) an extension to the date of payment of any amount under
the Finance Documents;
(iii) a reduction in the Margin or a reduction in the amount of
any payment of principal, interest, fees or commission
payable;
(iv) an increase in or an extension of any Commitment;
(v) a change to the Borrowers or Guarantors other than in
accordance with Clause 28 (CHANGES TO THE OBLIGORS);
(vi) any provision which expressly requires the consent of all
the Lenders;
(vii) Clause 2.2 (FINANCE PARTIES RIGHTS AND OBLIGATIONS),
Clause 27 (CHANGES TO THE LENDERS) or this Clause 40;
(viii) the nature or scope of the Charged Property or the manner
in which the proceeds of enforcement of the Transaction
Security are distributed,
shall not be made without the prior consent of all the Lenders.
(b) An amendment or waiver which relates to the rights or obligations
of the Facility Agent, the Arranger, the Security Trustee or any
Ancillary Lender
- 121 -
<Page>
may not be effected without the consent of the Facility Agent,
the Arranger, the Security Trustee or the Ancillary Lenders at
such time.
40.3 AMENDMENTS BY SECURITY TRUSTEE
Unless the provisions of any Finance Document expressly provide
otherwise, the Security Trustee may, if authorised by the Majority
Creditors, amend the terms of, waive any of the requirements of, or
grant consents under, any of the Transaction Security Documents, any
such amendment, waiver or consent being binding on all the parties to
this Agreement EXCEPT THAT:
(a) the prior consent of all of the Lenders is required to authorise
any amendment of any Transaction Security Document which would
affect the nature or the scope of the Charged Property or the
manner in which proceeds of enforcement are distributed; and
(b) no waiver or amendment may impose any new or additional
obligations on any person without the consent of that person.
41. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were
on a single copy of the Finance Document.
- 122 -
<Page>
SECTION 12
GOVERNING LAW AND ENFORCEMENT
42. GOVERNING LAW
This Agreement is governed by English law.
43. ENFORCEMENT
43.1 JURISDICTION OF ENGLISH COURTS
(a) The courts of England have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or
termination of this Agreement) (a "DISPUTE").
(b) The Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the contrary.
(c) This Clause 43.1 is for the benefit of the Finance Parties and
Secured Parties only. As a result, no Finance Party or Secured
Party shall be prevented from taking proceedings relating to a
Dispute in any other courts with jurisdiction. To the extent
allowed by law, the Finance Parties and Secured Parties may take
concurrent proceedings in any number of jurisdictions.
43.2 SERVICE OF PROCESS
Without prejudice to any other mode of service allowed under any
relevant law, each Obligor (other than an Obligor incorporated in
England and Wales):
(a) irrevocably appoints the Parent as its agent for service of
process in relation to any proceedings before the English courts
in connection with any Finance Document (and the Parent by its
execution of this Agreement, accepts that appointment); and
(b) agrees that failure by a process agent to notify the relevant
Obligor of the process will not invalidate the proceedings
concerned.
THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING OF THIS
AGREEMENT.
- 123 -
<Page>
SCHEDULE 1
THE ORIGINAL PARTIES
PART I
THE ORIGINAL OBLIGORS
<Table>
<Caption>
REGISTRATION NUMBER (OR
NAME OF ORIGINAL BORROWER EQUIVALENT, IF ANY) JURISDICTION
Iron Mountain Europe Limited 2321917 England
Iron Mountain (UK) Limited 1478540 England
Document and Information Management
Services Limited 02760301 England
<Caption>
REGISTRATION NUMBER (OR
NAME OF ORIGINAL GUARANTOR EQUIVALENT, IF ANY) JURISDICTION
Iron Mountain Europe Limited 2321917 England
Iron Mountain (UK) Limited 1478540 England
Document and Information Management
Services Limited 02760301 England
The Document Storage Company Limited 02109452 England
Iron Mountain Holdings (Europe) Limited 03847309 England
Miller Data Management Limited 01447686 England
Iron Mountain Ireland (Holdings) Limited 289489 Ireland
Iron Mountain Ireland Limited 236398 Ireland
Iron Mountain Nederland Holdings B.V. 32095962 The Netherlands
Iron Mountain Nederland B.V. 24244203 The Netherlands
</Table>
- 124 -
<Page>
PART II
THE ORIGINAL LENDERS
<Table>
<Caption>
TERM REVOLVING
COMMITMENT COMMITMENT
NAME OF ORIGINAL LENDER L L
Allied Irish Banks, P.L.C. 8,750,000 8,750,000
Barclays Bank PLC 20,000,000 20,000,000
Bear Stearns Corporate Lending Inc. 15,000,000 15,000,000
HSBC Bank plc 15,000,000 15,000,000
Lloyds TSB Bank PLC 8,750,000 8,750,000
The Governor and Company of the Bank of Scotland 20,000,000 20,000,000
The Governor and Company of the Bank of Ireland 12,500,000 12,500,000
----------- -----------
Total 100,000,000 100,000,000
</Table>
- 125 -
<Page>
PART III
DORMANT SUBSIDIARIES
<Table>
<Caption>
REGISTRATION NUMBER (OR
NAME OF DORMANT SUBSIDIARY EQUIVALENT, IF ANY) JURISDICTION
Iron Mountain Scotland (Holdings) Ltd SC15007 Scotland
JAD 93 Ltd SC143870 Scotland
Datavault Holdings Ltd 3638141 England
Datavault Ltd SC080642 Scotland
Archive Services Ltd 230753 England
Datavault Southwest Ltd 2693403 England
Datavault Northwest Limited SC142441 Scotland
Arcus Data Security Ltd 2640804 England
Jones & Crossland 641974 England
Kestrel Reprographics Ltd 1558086 England
Britannia Data Management Ltd 1575446 England
Iron Mountain Scotland Ltd SC096145 Scotland
Kestrel Data Services Ltd 1177562 England
Kestrel Data UK Ltd 1575457 England
</Table>
- 126 -
<Page>
SCHEDULE 2
CONDITIONS PRECEDENT
PART I
CONDITIONS PRECEDENT TO INITIAL UTILISATION
1. OBLIGORS
(a) A certified copy of the constitutional documents of each Original
Obligor.
(b) A copy of a resolution of the board of directors of each Original
Obligor:
(i) approving the terms of, and the transactions contemplated
by, the Finance Documents to which it is a party and
resolving that it execute the Finance Documents to which
it is a party;
(ii) authorising a specified person or persons to execute the
Finance Documents to which it is a party on its behalf;
(iii) authorising a specified person or persons, on its behalf,
to sign and/or despatch all documents and notices
(including, if relevant, any Utilisation Request and
Selection Notice) to be signed and/or despatched by it
under or in connection with the Finance Documents to which
it is a party; and
(iv) in the case of an Original Obligor other than the Parent,
authorising the Parent to act as its agent in connection
with the Finance Documents.
(c) A specimen of the signature of each person authorised by the
resolution referred to in paragraph (b) above in relation to the
Finance Documents.
(d) A copy of a resolution signed by all the holders of the issued
shares in each Original Guarantor, approving the terms of, and
the transactions contemplated by, the Finance Documents to which
the Original Guarantor is a party.
(e) A certificate of the Parent (signed by a director) confirming
that borrowing or guaranteeing or securing, as appropriate, the
Total Commitments would not cause any borrowing, guarantee,
security or similar limit binding on any Original Obligor to be
exceeded.
(f) A certificate of an authorised signatory of the relevant Original
Obligor certifying that each copy document relating to it
specified in this Schedule 2 is correct, complete and in full
force and effect as at a date no earlier than the date of this
Agreement.
- 127 -
<Page>
(g) In relation to Original Obligors incorporated in England and
Wales or Scotland either:
(i) a letter from the Parent to the Facility Agent (attaching
supporting advice from the Parent's English Solicitors)
confirming that no Original Obligor is prohibited by
Section 151 of the Companies Act 1985 from entering into
the Finance Documents; and/or
(ii) evidence that members of the Group incorporated in England
and Wales and Scotland have done all that is necessary
(including, without limitation, by re-registering as a
private company) to follow the procedures set out in
Sections 151 to 158 of the Companies Act 1985 (the "ACT")
in order to enable each Original Obligor to enter into the
Finance Documents and perform its obligations under the
Finance Documents.
(h) In relation to Original Obligors incorporated in Ireland either:
(i) a letter from the Parent to the Facility Agent (attaching
supporting advice from the Parent's Irish Solicitors)
confirming that no Original Borrower is prohibited by
Section 60 of the Irish Companies Act 1963 from entering
into the Finance Documents; and/or
(ii) evidence that members of the Group incorporated in Ireland
have done all that is necessary to follow the procedures
set out in Section 60 of the Irish Companies Act 1963 in
order to enable each such Original Obligor to enter into
the Finance Documents and perform its obligations under
the Finance Documents.
2. FINANCE DOCUMENTS
(a) The Subordination Agreement executed by the members of the Group
party to that Agreement and the Parties under the Subordinated
Loan Agreement.
(b) This Agreement executed by the members of the Group party to this
Agreement.
(c) The Fee Letters executed by the Parent.
3. TRANSACTION SECURITY DOCUMENTS
The following Transaction Security Documents executed by the Original
Obligors:
<Table>
<Caption>
NAME OF ORIGINAL OBLIGOR TRANSACTION SECURITY DOCUMENT
---------------------------------------------------------------------------------------------------------------------
Iron Mountain Europe Limited Debenture
Iron Mountain (UK) Limited Debenture
</Table>
- 128 -
<Page>
<Table>
<Caption>
NAME OF ORIGINAL OBLIGOR TRANSACTION SECURITY DOCUMENT
---------------------------------------------------------------------------------------------------------------------
Document and Information Management Services (i) Debenture.
Limited (ii) French share pledge in respect of 99.9% of the issued share
capital of Iron Mountain Holdings (France) SNC.
The Document Storage Company Limited Debenture
Iron Mountain Holdings (Europe) Limited (i) Debenture
(i) Belgian Share Pledge.
(iii) Spanish share pledge in respect of the entire issued share
capital of Iron Mountain Espana, S.A..
Miller Data Management Limited (i) Debenture
(ii) French share pledge in respect of 0.1% of the issued share
capital of Iron Mountain Holdings (France) SNC.
Iron Mountain Ireland (Holdings) Limited Irish debenture.
Iron Mountain Ireland Limited AN IRISH DEBENTURE WILL BE GRANTED PURSUANT TO CLAUSE 25.23
(CONDITIONS SUBSEQUENT).
Iron Mountain Nederland Holdings B.V. (i) Dutch share pledge in respect of the entire issued share
capital of Iron Mountain Nederland B.V..
(ii) An undisclosed pledge of receivables.
(iii) A pledge of bank accounts.
(iv) A pledge of moveable assets.
Iron Mountain Nederland B.V. (i) A deed of mortgage of real property.
</Table>
- 129 -
<Page>
<Table>
<Caption>
NAME OF ORIGINAL OBLIGOR TRANSACTION SECURITY DOCUMENT
---------------------------------------------------------------------------------------------------------------------
(ii) A pledge of bank accounts.
(iii) An undisclosed pledge of receivables.
(iv) A pledge of moveable assets.
</Table>
4. PLEDGED COMPANIES
(a) In relation to Iron Mountain Holdings (France) SNC:
(i) a copy, certified as true, of the by-laws (STATUTS) of
Iron Mountain Holdings (France) SNC and an original
EXTRACT K-BIS of Iron Mountain Holdings (France) SNC dated
no more than 15 days earlier than the date of receipt by
the Facility Agent.
(ii) a copy, certified as true, of the shareholders' resolution
of Iron Mountain Holdings (France) SNC approving the
Security Trustee as a shareholder upon enforcement of the
share pledge agreement over its shares.
(b) In relation to Iron Mountain Belgium NV:
(i) a certified copy of the latest coordinated statutes of
Iron Mountain Belgium NV;
(ii) registered share certificate in respect of the shares in
Iron Mountain Belgium NV, bearing the notice referred to
in the Belgian share pledge agreement (the "BELGIAN SHARE
PLEDGE") in respect of the entire issues share capital of
Iron Mountain Belgium NV;
(iii) a photocopy of the relevant pages of the share register
bearing the notice referred to in the Belgian Share
Pledge;
(iv) a certificate substantially in the form of Schedule 2 of
the Belgian Share Pledge.
(c) In relation to Iron Mountain Norge A.S.:
(i) a certified copy of the notification from Iron Mountain
Holdings (Europe) Limited to Iron Mountain Norge A.S. in
respect of the pledge by Iron Mountain Holdings (Europe)
of the entire issued share capital of Iron Mountain Norge
A.S.;
- 130 -
<Page>
(ii) a certified copy of the confirmation from Iron Mountain
Norge A.S. that the notification of the pledge detailed in
(i) above has been received by it and that its shares have
been pledged;
(iii) a certified copy of the confirmation from Iron Mountain
Norge A.S. that it is not aware of any right or
restriction attaching to the shares which are the subject
of the pledge; and
(iv) certified transcripts of the updated register of
shareholders of Iron Mountain Norge A.S. in which the
pledge has been registered.
5. SHARES
(a) All share certificates (other than Iron Mountain Ireland
(Holdings) Limited) and stock transfer forms duly executed by the
relevant Original Obligor in blank in relation to the
certificated shares subject to or expressed to be subject to the
Transaction Security.
(b) A copy of the register of members of each member of the Group,
whose shares are subject to or expressed to be subject to the
Transaction Security.
(c) To the extent not delivered under paragraph 1(a) above, a copy of
the constitutional documents of each member of the Group whose
shares are expressed to be subject to the Transaction Security.
6. LEGAL OPINIONS
The following legal opinions, each addressed to the Facility Agent,
the Security Trustee and the Original Lenders.
(a) A legal opinion of Clifford Chance LLP, legal advisers to the
Arranger and the Facility Agent in England, as to English law
substantially in the form distributed to the Original Lenders
prior to signing this Agreement.
(b) A legal opinion of the following legal advisers to the Facility
Agent and Arranger:
(i) Clifford Chance LLP as to Belgian law;
(ii) Clifford Chance SELAFA as to French law;
(iii) Clifford Chance LLP as to Dutch law;
(iv) Clifford Chance S.C as to Spanish law;
(v) McCann FitzGerald as to Irish law; and
(vi) BA-HR as to Norwegian law.
each substantially in the form distributed to the Original
Lenders prior to signing this Agreement.
- 131 -
<Page>
7. OTHER DOCUMENTS AND EVIDENCE
A copy of any other Authorisation or other document, opinion or
assurance which the Facility Agent considers to be necessary (if it has
notified the Parent accordingly) in connection with the entry into and
performance of the transactions contemplated by any Finance Document or
for the validity and enforceability of any Finance Document.
(a) Evidence that the fees, costs and expenses then due from the
Parent pursuant to Clause 15 (FEES), Clause 20 (COSTS AND
EXPENSES) and Clause 16.5 (STAMP TAXES) have been paid or will be
paid by the first Utilisation Date.
(b) Due Diligence Report in a form capable of being relied on by the
Lenders.
(c) A copy, certified by an authorised signatory of the Parent to be
a true copy, of the Original Financial Statements of each
Original Obligor.
(d) A copy of the Subordinated Loan Agreement duly executed by the
parties thereto.
(e) A certificate of the Parent (signed by a director) certifying
that a utilisation request requesting an advance of L123,956,000
on or before the date of the first Utilisation has been made by
the Parent in accordance with Clause 2.1 of the Subordinated Loan
Agreement.
(f) The Hedging Strategy Letter duly executed by the Parent.
(g) Evidence that upon the date that the first Loan is made:
(i) all Financial Indebtedness under the Existing Facilities
will be immediately repaid in full and all commitments
under the Existing Facilities cancelled; and
(ii) all of the existing Security relating to the Existing
Facilities will be immediately released.
(h) A Certificate from a director of the Parent that at the time the
Parent and each of the Obligors incorporated in Ireland executed
this Agreement they form a "group of companies" for the purposes
of Section 35 of the Irish Companies Act 1990.
(i) A letter from AON addressed to the Agent, the Arrangers, the
Security Trustee, the Lenders, the Ancillary Lenders and the
Hedge Banks confirming that the insurance for the Group at the
date of this Agreement is at a level acceptable to the Agent and
covering appropriate risks carried out by the Group.
(j) Funds flow statement in a form agreed by the Parent and the Agent
detailing the proposed movement of funds on the first Utilisation
Date.
(k) Pro-forma balance sheet as at the first Utilisation Date.
- 132 -
<Page>
PART II
CONDITIONS PRECEDENT REQUIRED TO BE
DELIVERED BY AN ADDITIONAL OBLIGOR
1. An Accession Letter executed by the Additional Obligor and the Parent.
2. A copy of the constitutional documents of the Additional Obligor.
3. A copy of a resolution of the board of directors of the Additional
Obligor:
(a) approving the terms of, and the transactions contemplated by, the
Accession Letter and the Finance Documents and resolving that it
execute the Accession Letter and any other Finance Document to
which it is a party;
(b) authorising a specified person or persons to execute the
Accession Letter and other Finance Documents on its behalf; and
(c) authorising a specified person or persons, on its behalf, to sign
and/or despatch all other documents and notices (including, in
relation to an Additional Borrower, any Utilisation Request or
Selection Notice) to be signed and/or despatched by it under or
in connection with the Finance Documents to which it is a party;
and
(d) authorising the Parent to act as its agent in connection with the
Finance Documents.
4. A specimen of the signature of each person authorised by the resolution
referred to in paragraph 3 above.
5. A copy of a resolution signed by all the holders of the issued shares of
the Additional Guarantor, approving the terms of, and the transactions
contemplated by, the Finance Documents to which the Additional Guarantor
is a party.
6. A certificate of the Additional Obligor (signed by a director)
confirming that borrowing or guaranteeing or securing, as appropriate,
the Total Commitments would not cause any borrowing, guarantee, security
or similar limit binding on it to be exceeded.
7. A certificate of an authorised signatory of the Additional Obligor
certifying that each copy document listed in:
(a) this Part II of Schedule 2; and
(b) if the Additional Obligor is listed in Part III (TRANSACTION
SECURITY DOCUMENTS AND SECURITY RELATED DOCUMENTS TO BE DELIVERED
BY ADDITIONAL OBLIGORS) of Schedule 2, Part III of Schedule 2
relating to it,
is correct, complete and in full force and effect as at a date no
earlier than the date of the Accession Letter.
8. If available, the latest audited financial statements of the Additional
Obligor.
- 133 -
<Page>
9. The following legal opinions, each addressed to the Facility Agent, the
Security Trustee and the Lenders:
(a) A legal opinion of the legal advisers to the Facility Agent in
England, as to English law in the form distributed to the
Facility Agent prior to signing the Accession Letter.
(b) If the Additional Obligor is incorporated in a jurisdiction other
than England and Wales or executing a Finance Document which is
governed by a law other than English law, a legal opinion of the
legal advisers to the Facility Agent in the jurisdiction of
incorporation of that Additional Obligor or, as the case may be,
the jurisdiction of the governing law of that Finance Document
(the "RELEVANT JURISDICTION") as to the law of the Relevant
Jurisdiction and in the form distributed to the Facility Agent
prior to signing the Accession Letter.
10. If the proposed Additional Obligor is incorporated in a jurisdiction
other than England and Wales, evidence that the process agent specified
in Clause 43.2 (SERVICE OF PROCESS), if not an Original Obligor, has
accepted its appointment in relation to the proposed Additional Obligor.
11. In the case of an Additional Obligor incorporated in Spain, the
resolutions referred to in paragraphs 3 and 5 above, shall be certified
by the secretary or vice-secretary of the board of directors of such
Additional Obligor and endorsed by its chairman or vice-chairman, whose
signatures shall be legalised by a Spanish notary. In the case of an
Additional Borrower incorporated in Spain, a copy of the "NUMERO DE
OPERACION FINANCIERA" ("NOF") (Financial transaction number) allocated
by the Bank of Spain to its borrowings.
12. The Transaction Security Documents executed by the Additional Obligor
which are required by the Facility Agent.
13. Any notices or documents required to be given or executed or made under
the terms of those Transaction Security Documents.
14. An accession memorandum to the Subordination Agreement executed by the
Additional Obligor.
15.
(a) If the Additional Obligor is incorporated in England and Wales or
Scotland:
(i) either a letter from the Parent to the Facility Agent
(attaching supporting evidence from the Parent's English
Solicitors) confirming that the Additional Obligor is not
prohibited by Section 151 of the Companies Act 1985 from
entering into the Finance Documents; and/or
(ii) evidence that the Additional Obligor has done all that is
necessary (including, without limitation, by
re-registering as a private company) to follow the
procedures set out in Sections 151 to 158 of the Companies
- 134 -
<Page>
Act 1985 in order to enable that Additional Obligor to
enter into the Finance Documents and perform its
obligations under the Finance Documents. The following
documentary evidence shall be supplied: a copy of the
statutory declarations and annexed auditors reports, board
resolutions, shareholders resolutions (if applicable), a
certificate of that Additional Obligor listing all
directors at the time the statutory declarations are made
and a non-statutory comfort letter from its auditors
regarding its net asset position. The copy documents shall
be certified by an authorised signatory of the Additional
Obligor as correct, complete and in full force and effect
at a date no earlier than the date of the Accession
Letter.
(b) If the Additional Obligor is not incorporated in England and
Wales or Scotland, such documentary evidence as legal counsel to
the Facility Agent may require, that such Additional Obligor has
complied with any law in its jurisdiction relating to financial
assistance or analogous process.
16. A copy of any other Authorisation or other document, opinion or
assurance which the Facility Agent considers to be necessary or
desirable in connection with the entry into and performance of the
transactions contemplated by the Accession Letter and each Finance
Document to which the Additional Obligor is a party or for the validity
and enforceability of any Finance Document or of any Transaction
Security created or intended to be created by the Additional Obligor.
- 135 -
<Page>
PART III
TRANSACTION SECURITY DOCUMENTS AND SECURITY RELATED DOCUMENTS TO BE DELIVERED
BY ADDITIONAL OBLIGORS
<Table>
<Caption>
Description of Security
related documents and
other action to be taken
Description of by Additional Obligor to
Transaction Security protect or perfect or
Name of Additional Capacity (Borrower Document and give priority to
Obligor and/or Guarantor) Transaction Security Transaction Security
- -------------------------------------------------------------------------------------------------------
[insert name] [Borrower] [Guarantor] [insert description]
</Table>
- 136 -
<Page>
SCHEDULE 3
REQUESTS
PART IA
UTILISATION REQUEST
LOANS
From: [BORROWER] [PARENT]*
To: [FACILITY AGENT]
Dated:
Dear Sirs
IRON MOUNTAIN EUROPE LIMITED - L200,000,000 MULTICURRENCY TERM AND REVOLVING
CREDIT FACILITIES AGREEMENT DATED [-] (THE "FACILITIES AGREEMENT")
1. [We wish a Loan to be made on the following terms:
<Table>
(a) Borrower: [-]
(b) Proposed Utilisation Date: [-]
(c) Facility to be utilised: [Term Facility]/[Revolving Facility]**
(d) Currency of Loan: [-]
(e) Amount: [-]
(f) Interest Period: [-]
</Table>
2. We confirm that each condition specified in Clause 4.2 (FURTHER
CONDITIONS PRECEDENT) is satisfied on the date of this Utilisation
Request.
3. [The proceeds of this Loan should be credited to [ACCOUNT]].
4. This Utilisation Request is irrevocable.
5. Terms used in this Request which are not defined in this Request but are
defined in the Facilities Agreement shall have the meaning given to
those terms in the Facilities Agreement.
Yours faithfully
-------------------------------------
authorised signatory for
[the Parent on behalf of [INSERT NAME OF RELEVANT BORROWER]]/ [INSERT NAME OF
BORROWER]*
NOTES:
* Amend as appropriate. The Request can be given by the Borrower or by
the Parent.
- 137 -
<Page>
** Select the Facility to be utilised and delete references to the other
Facilities.
- 138 -
<Page>
PART IB
UTILISATION REQUEST
LETTERS OF CREDIT
From: [BORROWER] [PARENT](1)
To: [FACILITY AGENT]
Dated:
Dear Sirs
IRON MOUNTAIN EUROPE LIMITED - L200,000,000 MULTICURRENCY TERM AND REVOLVING
CREDIT FACILITIES AGREEMENT DATED [-] (THE "FACILITIES AGREEMENT")
1. We refer to the Facilities Agreement. This is a Utilisation Request.
Terms defined in the Facilities Agreement have the same meaning in this
Utilisation Request unless given a different meaning in this Utilisation
Request.
2. We wish to arrange for a Letter of Credit to be [issued]/[renewed] by
the Issuing Bank specified below (which has agreed to do so) on the
following terms:
<Table>
(a) Borrower: [-]
(b) Issuing Bank: [-]
(c) Proposed Utilisation Date: [-]
(d) Facility to be utilised: Revolving Facility
(e) Currency of Letter of Credit: [-]
(f) Amount: [-]
(g) Term: [-]
</Table>
3. We confirm that each condition specified in paragraph (c) of Clause 6.5
(ISSUE OF LETTERS OF CREDIT) is satisfied on the date of this
Utilisation Request.
4. We attach a copy of the proposed Letter of Credit.
5. [The purpose of this proposed Letter of Credit is [-].](2)
(1) Not required for a renewal.
(2) Amend as appropriate. The Utilisation Request can be given by the Borrower
or by the Parent.
- 139 -
<Page>
6. This Utilisation Request is irrevocable.
---------------------------------
authorised signatory for
- 140 -
<Page>
PART II
SELECTION NOTICE
APPLICABLE TO A TERM LOAN
From: Iron Mountain Europe Limited
To: [FACILITY AGENT]
Dated:
Dear Sirs
IRON MOUNTAIN EUROPE LIMITED - L200,000,000 MULTICURRENCY TERM AND REVOLVING
CREDIT FACILITIES AGREEMENT DATED [-] (THE "FACILITIES AGREEMENT")
1. We refer to the following Term Loan[s] with an Interest Period ending on
[-]**.
2. We request that the next Interest Period for the above Term Loan[s] is
[-].
3. This Selection Notice is irrevocable.
4. Terms used in this Request which are not defined in this Request but are
defined in the Facilities Agreement shall have the meaning given to
those terms in the Facilities Agreement.
Yours faithfully
----------------------------------
authorised signatory for
Iron Mountain Europe Limited
NOTES:
** Insert details of all Term Loans which have an Interest Period ending
on the same date.
- 141 -
<Page>
SCHEDULE 4
MANDATORY COST FORMULAE
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the Bank
of England and/or the Financial Services Authority (or, in either case,
any other authority which replaces all or any of its functions) or (b)
the requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Facility Agent shall calculate, as a percentage rate, a
rate (the "ADDITIONAL COST RATE") for each Lender, in accordance with
the paragraphs set out below. The Mandatory Cost will be calculated by
the Facility Agent as a weighted average of the Lenders' Additional Cost
Rates (weighted in proportion to the percentage participation of each
Lender in the relevant Loan) and will be expressed as a percentage rate
per annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office
in a Participating Member State will be the percentage notified by that
Lender to the Facility Agent. This percentage will be certified by that
Lender in its notice to the Facility Agent to be its reasonable
determination of the cost (expressed as a percentage of that Lender's
participation in all Loans made from that Facility Office) of complying
with the minimum reserve requirements of the European Central Bank in
respect of loans made from that Facility Office.
4. The Additional Cost Rate for any Lender lending from a Facility Office
in the United Kingdom will be calculated by the Facility Agent as
follows:
(a) in relation to a sterling Loan:
AB + C(B-D) + E x 0.01
---------------------- PER CENT. PER ANNUM
100-(A + C)
(b) in relation to a Loan in any currency other than sterling:
E X 0.01
-------- PER CENT. PER ANNUM
300
Where:
A is the percentage of Eligible Liabilities (assuming these to be
in excess of any stated minimum) which that Lender is from time
to time required to maintain as an interest free cash ratio
deposit with the Bank of England to comply with cash ratio
requirements.
B is the percentage rate of interest (excluding the Margin and the
Mandatory Cost and, if the Loan is an Unpaid Sum, the additional
rate of interest specified in paragraph (a) of Clause 12.3
(DEFAULT INTEREST)) payable for the relevant Interest Period on
the Loan.
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<Page>
C is the percentage (if any) of Eligible Liabilities which that
Lender is required from time to time to maintain as interest
bearing Special Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of England
to the Facility Agent on interest bearing Special Deposits.
E is designed to compensate Lenders for amounts payable under the
Fees Rules and is calculated by the Facility Agent as being the
average of the most recent rates of charge supplied by the
Reference Banks to the Facility Agent pursuant to paragraph 7
below and expressed in pounds per L1,000,000.
5. For the purposes of this Schedule:
(a) "ELIGIBLE LIABILITIES" and "SPECIAL DEPOSITS" have the meanings
given to them from time to time under or pursuant to the Bank of
England Act 1998 or (as may be appropriate) by the Bank of
England;
(b) "FEES RULES" means the rules on periodic fees contained in the
FSA Supervision Manual or such other law or regulation as may be
in force from time to time in respect of the payment of fees for
the acceptance of deposits;
(c) "FEE TARIFFS" means the fee tariffs specified in the Fees Rules
under the activity group A.1 Deposit acceptors (ignoring any
minimum fee or zero rated fee required pursuant to the Fees Rules
but taking into account any applicable discount rate); and
(d) "TARIFF BASE" has the meaning given to it in, and will be
calculated in accordance with, the Fees Rules.
6. In application of the above formulae, A, B, C and D will be included in
the formulae as percentages (i.e. 5 per cent. will be included in the
formula as 5 and not as 0.05). A negative result obtained by subtracting
D from B shall be taken as zero. The resulting figures shall be rounded
to four decimal places.
7. If requested by the Facility Agent, each Reference Bank shall, as soon
as practicable after publication by the Financial Services Authority,
supply to the Facility Agent, the rate of charge payable by that
Reference Bank to the Financial Services Authority pursuant to the Fees
Rules in respect of the relevant financial year of the Financial
Services Authority (calculated for this purpose by that Reference Bank
as being the average of the Fee Tariffs applicable to that Reference
Bank for that financial year) and expressed in pounds per L1,000,000 of
the Tariff Base of that Reference Bank.
8. Each Lender shall supply any information required by the Facility Agent
for the purpose of calculating its Additional Cost Rate. In particular,
but without limitation, each Lender shall supply the following
information on or prior to the date on which it becomes a Lender:
(a) the jurisdiction of its Facility Office; and
- 143 -
<Page>
(b) any other information that the Facility Agent may reasonably
require for such purpose.
Each Lender shall promptly notify the Facility Agent of any change to
the information provided by it pursuant to this paragraph.
9. The percentages of each Lender for the purpose of A and C above and the
rates of charge of each Reference Bank for the purpose of E above shall
be determined by the Facility Agent based upon the information supplied
to it pursuant to paragraphs 7 and 8 above and on the assumption that,
unless a Lender notifies the Facility Agent to the contrary, each
Lender's obligations in relation to cash ratio deposits and Special
Deposits are the same as those of a typical bank from its jurisdiction
of incorporation with a Facility Office in the same jurisdiction as its
Facility Office.
10. The Facility Agent shall have no liability to any person if such
determination results in an Additional Cost Rate which over or under
compensates any Lender and shall be entitled to assume that the
information provided by any Lender or Reference Bank pursuant to
paragraphs 3, 7 and 8 above is true and correct in all respects.
11. The Facility Agent shall distribute the additional amounts received as a
result of the Mandatory Cost to the Lenders on the basis of the
Additional Cost Rate for each Lender based on the information provided
by each Lender and each Reference Bank pursuant to paragraphs 3, 7 and 8
above.
12. Any determination by the Facility Agent pursuant to this Schedule in
relation to a formula, the Mandatory Cost, an Additional Cost Rate or
any amount payable to a Lender shall, in the absence of manifest error,
be conclusive and binding on all Parties.
13. The Facility Agent may from time to time, after consultation with the
Parent and the Lenders, determine and notify to all Parties any
amendments which are required to be made to this Schedule in order to
comply with any change in law, regulation or any requirements from time
to time imposed by the Bank of England, the Financial Services Authority
or the European Central Bank (or, in any case, any other authority which
replaces all or any of its functions) and any such determination shall,
in the absence of manifest error, be conclusive and binding on all
Parties.
- 144 -
<Page>
SCHEDULE 5
FORM OF TRANSFER CERTIFICATE
To: [-] as Facility Agent
From: [THE EXISTING LENDER] (the "EXISTING LENDER") and [THE NEW LENDER] (the
"NEW LENDER")
Dated:
IRON MOUNTAIN EUROPE LIMITED - L200,000,000 MULTICURRENCY TERM AND REVOLVING
CREDIT FACILITIES AGREEMENT DATED [-] (THE "FACILITIES AGREEMENT")
1. We refer to Clause 27.5 (PROCEDURE FOR TRANSFER):
(a) The Existing Lender and the New Lender agree to the Existing
Lender and the New Lender transferring by novation all or part of
the Existing Lender's Commitment, rights and obligations referred
to in the Schedule in accordance with Clause 27.5 (PROCEDURE FOR
TRANSFER).
(b) The proposed Transfer Date is [-].
(c) The Facility Office and address, fax number and attention details
for notices of the New Lender for the purposes of Clause 36.2
(ADDRESSES) are set out in the Schedule.
2. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 27.4 (LIMITATION
OF RESPONSIBILITY OF EXISTING LENDERS).
3. This Transfer Certificate is governed by English law.
4. Terms which are used in this Transfer Certificate which are not defined
in this Transfer Certificate but are defined in the Facilities Agreement
shall have the meaning given to those terms in the Facilities Agreement.
- 145 -
<Page>
THE SCHEDULE
COMMITMENT/RIGHTS AND OBLIGATIONS TO BE TRANSFERRED
[INSERT RELEVANT DETAILS]
[FACILITY OFFICE ADDRESS, FAX NUMBER AND ATTENTION DETAILS FOR NOTICES AND
ACCOUNT DETAILS FOR PAYMENTS,]
[Existing Lender] [New Lender]
By: By:
This Transfer Certificate is accepted by the Facility Agent and the Transfer
Date is confirmed as [-].
[Facility Agent]
By:
- 146 -
<Page>
SCHEDULE 6
FORM OF ACCESSION LETTER
To: [-] as Facility Agent
From: [[SUBSIDIARY] and Iron Mountain Europe Limited] [Affiliate of Lender]
Dated:
Dear Sirs
IRON MOUNTAIN EUROPE LIMITED - L200,000,000 MULTICURRENCY TERM AND REVOLVING
CREDIT FACILITIES AGREEMENT DATED [-] (THE "FACILITIES AGREEMENT")
1. [SUBSIDIARY] [Affiliate of Lender] agrees to become [an Additional
[Borrower]/[Guarantor]] [a Hedging Bank] and to be bound by the terms of
the Facilities Agreement, the Subordination Agreement and the other
Finance Documents as [an Additional [Borrower]/[Guarantor]] [a Hedge
Bank] pursuant to Clause [28.2 (ADDITIONAL BORROWERS)]/[Clause 28.3
(ADDITIONAL GUARANTORS)] [Clause 27.8 (AFFILIATES OF LENDERS AS HEDGE
BANKS)] of the Facility Agreement [and as an [Obligor] pursuant to
Clause [-] of the Subordination Agreement. [SUBSIDIARY] is a company
duly incorporated under the laws of [NAME OF RELEVANT JURISDICTION] and
is a limited liability company and registered number [-]].
2. [SUBSIDIARY'S] administrative details are as follows:
Address:
Fax No.:
Attention:
3. [The Parent confirms that no Default is continuing or would occur as a
result of a [Subsidiary] becoming an additional Borrower.]*
4. This letter is governed by English law.
5. Terms which are used in this Accession Letter which are not defined in
this Accession Letter but are defined in the Facilities Agreement shall
have the meaning given to those terms in the Facilities Agreement.
[This Guarantor Accession Letter is entered into by deed.]**
Iron Mountain Europe Limited [Subsidiary]
- 147 -
<Page>
NOTES:
* Insert if Accession Letter is for an Additional Borrower.
** If the Facilities are fully drawn there may be an issue in relation to
past consideration for a proposed Additional Guarantor. This can be
overcome by acceding by way of deed.
- 148 -
<Page>
SCHEDULE 7
FORM OF COMPLIANCE CERTIFICATE
To: [-] as Facility Agent
From: Iron Mountain Europe Limited
Dated:
Dear Sirs
IRON MOUNTAIN EUROPE LIMITED - L200,000,000 MULTICURRENCY TERM AND REVOLVING
CREDIT FACILITIES AGREEMENT DATED [-] (THE "FACILITIES AGREEMENT")
1. We refer to the Facilities Agreement. This is a Compliance Certificate.
2. We confirm that:
(a) in respect of the Relevant Period ending on [-] EBITDA for such
Relevant Period was [-] and Consolidated Net Finance Charges for
such Relevant Period were [-]. Therefore EBITDA for such Relevant
Period was [-] times Consolidated Net Finance Charges for such
Relevant Period and the covenant contained in paragraph (b) of
Clause 24.2 (FINANCIAL CONDITION) [has/has not] been complied
with;
(b) on the last day of the Relevant Period ending on [-] Consolidated
Total Net Debt was [-] and EBITDA for such Relevant Period was
[-]. Therefore Consolidated Total Net Debt at that time was
[greater than or equal to [-] times EBITDA for such Relevant
Period]/[less than [-] times EBITDA for such Relevant Period but
greater than or equal to [-] times EBITDA for such Relevant
Period]/[less than [-] times EBITDA for such Relevant Period].
3. [We confirm that no Default is continuing.]*
4. We confirm that the following companies constitute Material Companies
for the purposes of the Facility Agreement: [-].
We confirm that:
(a) the aggregate of the unconsolidated earnings before interest,
tax, depreciation and amortisation (calculated on the same basis
as EBITDA) of the Guarantors and the aggregate gross assets and
aggregate turnover of the Guarantors (in each case calculated on
an unconsolidated basis and excluding all intra-group items)
represents not less than [-] per cent of EBITDA, and consolidated
gross assets and consolidated turnover of the Group;
(b) the aggregate of the unconsolidated earnings before interest,
tax, depreciation and amortisation (calculated on the same basis
as EBITDA) of the Guarantors and the Pledged Companies and the
aggregate gross assets and aggregate
- 149 -
<Page>
turnover of the Guarantors and the Pledged Companies (in each
case calculated on an unconsolidated basis and excluding all
intra-group items) represents not less than [-] per cent of
EBITDA, and consolidated gross assets and consolidated turnover
of the Group.
Signed
--------------------- --------------------------
Director Finance Director
of of
Iron Mountain Europe Limited Iron Mountain Europe Limited
[INSERT APPLICABLE CERTIFICATION LANGUAGE]
- -------------------------
for and on behalf of
[NAME OF AUDITORS OF THE PARENT]
NOTES:
* If this statement cannot be made, the certificate should identify any
Default that is continuing and the steps, if any, being taken to remedy
it.
- 150 -
<Page>
SCHEDULE 8
TIMETABLES
PART I
<Table>
<Caption>
LOANS IN LOANS IN OTHER
LOANS IN EURO STERLING CURRENCIES
Facility Agent notifies the Parent if a - - U-4
currency is approved as an Optional Currency in
accordance with Clause 4.3 (CONDITIONS RELATING
TO OPTIONAL CURRENCIES)
Delivery of a duly completed Utilisation U-3 U-1 U-3
Request (Clause 5.1 (DELIVERY OF A UTILISATION
REQUEST) or a Selection Notice (Clause 13.1 9.30am 9.30am 9.30am
(SELECTION OF INTEREST PERIODS AND TERMS))
Facility Agent determines (in relation to a U-3 U-1 U-3
Utilisation) the Base Currency Amount of the
Loan, if required under Clause 5.4 (LENDERS' noon noon noon
PARTICIPATION)
Facility Agent notifies the Lenders of the Loan U-3 U-1 U-3
in accordance with Clause 5.4 (LENDERS'
PARTICIPATION) 3.00pm 3.00pm 3.00pm
Facility Agent receives a notification from a U-1 U-1 U-1
Lender under Clause 8.2 (UNAVAILABILITY OF A
CURRENCY) 5.00pm 5.00pm 5.00pm
Facility Agent gives notice in accordance with U- 2 U U-2
Clause 8.2 (UNAVAILABILITY OF A CURRENCY)
9.30am 9.30am 9.30am
Facility Agent determines amount of the Loan in U-3 U U-3
Optional Currency in accordance with Clause
33.9 (CHANGE OF CURRENCY) 11.00am 11.00am 11.00am
</Table>
- 151 -
<Page>
<Table>
<Caption>
LOANS IN LOANS IN OTHER
LOANS IN EURO STERLING CURRENCIES
LIBOR is fixed Quotation Day Quotation Day as Quotation Day as
as of 11:00 of 11:00 a.m. of 11:00 a.m.
a.m. London
time in respect
of LIBOR
</Table>
"U" = date of utilisation
"U - X" = X Business Days prior to date of utilisation
- 152 -
<Page>
PART II
LETTERS OF CREDIT
<Table>
<Caption>
LETTERS OF CREDIT
Delivery of a duly completed Utilisation Request U3
(Clause 5.1 (DELIVERY OF A UTILISATION REQUEST FOR 9.30am
LETTERS OF CREDIT)
Agent determines (in relation to a Utilisation) the U-3
Base Currency Amount of the Letter of Credit if 3.00pm
required under paragraph (e) of Clause 6.5 (ISSUE OF
LETTERS OF CREDIT) and notifies the Issuing Bank and
Lenders of the Letter of Credit in accordance with
paragraph (e) of Clause 6.5 (ISSUE OF LETTERS OF
CREDIT).
</Table>
Delivery of duly completed Renewal Request
"U" = date of utilisation
"U-X" = Business Days prior to date of utilisation
- 153 -
<Page>
SCHEDULE 9
MATERIAL COMPANIES
Iron Mountain Europe Limited
Iron Mountain (UK) Limited
Iron Mountain Nederland B.V.
- 154 -
<Page>
SCHEDULE 10
LMA CONFIDENTIALITY UNDERTAKING
[LETTERHEAD OF SELLER/SELLER'S AGENT/BROKER]
To:
[INSERT NAME OF POTENTIAL
PURCHASER/PURCHASER'S
AGENT/BROKER]
Re: THE AGREEMENT
Borrower:
Date:
Amount:
Agent:
Dear Sirs
We understand that you are considering [acquiring](a)/[arranging the acquisition
of](b) an interest in the Agreement (the "ACQUISITION"). In consideration of us
agreeing to make available to you certain information, by your signature of a
copy of this letter you agree as follows:
1. CONFIDENTIALITY UNDERTAKING
You undertake (a) to keep the Confidential Information confidential and
not to disclose it to anyone except as provided for by paragraph 2 below
and to ensure that the Confidential Information is protected with
security measures and a degree of care that would apply to your own
confidential information, (b) to use the Confidential Information only
for the Permitted Purpose, (c) to use all reasonable endeavours to
ensure that any person to whom you pass any Confidential Information
(unless disclosed under paragraph 2[(c)/(d)](c) below) acknowledges and
complies with the provisions of this letter as if that person were also
a party to it, and (d) not to make enquiries of any member of the Group
or any of their officers, directors, employees or professional advisers
relating directly or indirectly to the Acquisition.
(a) delete if addressee is acting as broker or agent.
(b) delete if addressee is acting as principal.
(c) delete as applicable.
- 155 -
<Page>
2. PERMITTED DISCLOSURE
We agree that you may disclose Confidential Information:
(a) to members of the Purchaser Group and their officers,
directors, employees and professional advisers to the extent
necessary for the Permitted Purpose and to any auditors of
members of the Purchaser Group;(2)
(b) [subject to the requirements of the Agreement, in accordance
with the Permitted Purpose so long as any prospective
purchaser has delivered a letter to you in equivalent form
to this letter;]
[(b/c)](3) subject to the requirements of the Agreement, to any person
to (or through) whom you assign or transfer (or may
potentially assign or transfer) all or any of the rights,
benefits and obligations which you may acquire under the
Agreement or with (or through) whom you enter into (or may
potentially enter into) any sub-participation in relation
to, or any other transaction under which payments are to be
made by reference to, the Agreement or the Borrower or any
member of the Group in each case so long as that person has
delivered a letter to you in equivalent form to this letter;
and
[(c/d)](3) (i) where requested or required by any court of competent
jurisdiction or any competent judicial, governmental,
supervisory or regulatory body, (ii) where required by the
rules of any stock exchange on which the shares or other
securities of any member of the Purchaser Group are listed
or (iii) where required by the laws or regulations of any
country with jurisdiction over the affairs of any member of
the Purchaser Group.
3. NOTIFICATION OF REQUIRED OR UNAUTHORISED DISCLOSURE
You agree (to the extent permitted by law) to inform us of the full
circumstances of any disclosure under paragraph 2[(c)/(d)](3) or upon
becoming aware that Confidential Information has been disclosed in
breach of this letter.
4. RETURN OF COPIES
If we so request in writing, you shall return all Confidential
Information supplied to you by us and destroy or permanently erase all
copies of Confidential Information made by you and use all reasonable
endeavours to ensure that anyone to whom you have supplied any
Confidential Information destroys or permanently erases such
Confidential Information and any copies made by them, in each case save
to the extent that you or the recipients are required to retain any such
Confidential Information by any applicable law, rule or regulation or by
any competent judicial, governmental, supervisory or regulatory body or
in accordance with internal policy, or where the Confidential
Information has been disclosed under paragraph 2[(c)/(d)](3) above.
- 156 -
<Page>
5. CONTINUING OBLIGATIONS
The obligations in this letter are continuing and, in particular, shall
survive the termination of any discussions or negotiations between you
and us. Notwithstanding the previous sentence, the obligations in this
letter shall cease (a) if you become a party to or otherwise acquire (by
assignment or sub-participation) an interest, direct or indirect, in the
Agreement or (b) twelve months after you have returned all Confidential
Information supplied to you by us and destroyed or permanently erased
all copies of Confidential Information made by you (other than any such
Confidential Information or copies which have been disclosed under
paragraph 2 above (other than sub-paragraph 2(a)) or which, pursuant to
paragraph 4 above, are not required to be returned or destroyed).
6. NO REPRESENTATION; CONSEQUENCES OF BREACH, ETC
You acknowledge and agree that:
(a) neither we, [nor our principal](d) nor any member of the Group
nor any of our or their respective officers, employees or
advisers (each a "RELEVANT PERSON") (i) make any representation
or warranty, express or implied, as to, or assume any
responsibility for, the accuracy, reliability or completeness of
any of the Confidential Information or any other information
supplied by us or the assumptions on which it is based or (ii)
shall be under any obligation to update or correct any inaccuracy
in the Confidential Information or any other information supplied
by us or be otherwise liable to you or any other person in
respect to the Confidential Information or any such information;
and
(b) we [or our principal](4) or members of the Group may be
irreparably harmed by the breach of the terms hereof and damages
may not be an adequate remedy; each Relevant Person may be
granted an injunction or specific performance for any threatened
or actual breach of the provisions of this letter by you.
7. NO WAIVER; AMENDMENTS, ETC
This letter sets out the full extent of your obligations of
confidentiality owed to us in relation to the information the subject of
this letter. No failure or delay in exercising any right, power or
privilege hereunder will operate as a waiver thereof nor will any single
or partial exercise of any right, power or privilege preclude any
further exercise thereof or the exercise of any other right, power or
privileges hereunder. The terms of this letter and your obligations
hereunder may only be amended or modified by written agreement between
us.
8. INSIDE INFORMATION
You acknowledge that some or all of the Confidential Information is or
may be price-sensitive information and that the use of such information
may be regulated or
(d) delete if letter is sent out by the Seller rather than the Seller's broker
or agent.
- 157 -
<Page>
prohibited by applicable legislation relating to insider dealing and
you undertake not to use any Confidential Information for any unlawful
purpose.
9. NATURE OF UNDERTAKINGS
The undertakings given by you under this letter are given to us and
(without implying any fiduciary obligations on our part) are also given
for the benefit of [our principal,](4) the Borrower and each other
member of the Group.
10. THIRD PARTY RIGHTS
(a) Subject to this paragraph 10 and to paragraphs 6 and 9, a person
who is not a party to this letter has no right under the
Contracts (Rights of Third Parties) Act 1999 (the "THIRD PARTIES
ACT") to enforce or to enjoy the benefit of any term of this
letter.
(b) The Relevant Persons may enjoy the benefit of the terms of
paragraphs 6 and 9 subject to and in accordance with this
paragraph 10 and the provisions of the Third Parties Act.
(c) The parties to this letter do not require the consent of the
Relevant Persons to rescind or vary this letter at any time.
11. GOVERNING LAW AND JURISDICTION
(a) This letter (including the agreement constituted by your
acknowledgement of its terms) is governed by English law.
(b) The parties submit to the non-exclusive jurisdiction of the
English courts.
12. DEFINITIONS
In this letter (including the acknowledgement set out below) terms
defined in the Agreement shall, unless the context otherwise requires,
have the same meaning and:
"CONFIDENTIAL INFORMATION" means any information relating to the
Borrower, the Group, the Agreement and/or the Acquisition provided to
you by us or any of our affiliates or advisers, in whatever form, and
includes information given orally and any document, electronic file or
any other way of representing or recording information which contains or
is derived or copied from such information but excludes information that
(a) is or becomes public knowledge other than as a direct or indirect
result of any breach of this letter or (b) is known by you before the
date the information is disclosed to you by us or any of our affiliates
or advisers or is lawfully obtained by you thereafter, other than from a
source which is connected with the Group and which, in either case, as
far as you are aware, has not been obtained in violation of, and is not
otherwise subject to, any obligation of confidentiality;
- 158 -
<Page>
"GROUP" means the Borrower and each of its holding companies and
subsidiaries and each subsidiary of each of its holding companies (as
each such term is defined in the Companies Act 1985);
"PERMITTED PURPOSE" means [subject to the terms of this letter, passing
on information to a prospective purchaser for the purpose of](2)
considering and evaluating whether to enter into the Acquisition; and
"PURCHASER GROUP" means you, each of your holding companies and
subsidiaries and each subsidiary of each of your holding companies (as
each such term is defined in the Companies Act 1985).
Please acknowledge your agreement to the above by signing and returning the
enclosed copy.
Yours faithfully
- -------------------------------
For and on behalf of
[Seller/Seller's agent/broker]
To: [Seller]
[Seller's agent/broker]
The Borrower and each other member of the Group
We acknowledge and agree to the above:
- -------------------------------
For and on behalf of
[POTENTIAL PURCHASER/PURCHASER'S AGENT/BROKER]
- 159 -
<Page>
SCHEDULE 11
PART I
EXISTING RETAINED FACILITIES
<Table>
<Caption>
TOTAL COMMITMENT
PARTICULARS OF AS AT THE DATE OF
COMPANY NAME EXISTING FACILITY INDEBTEDNESS THIS AGREEMENT
Societe Civile Immobiliere Credit Industriel et [EURO]83,863 [EURO]83,863
du Chemin Cornillon Commercial -
construction loan secured on
Paris building
Societe Civile Immobiliere Banque du Credit Mutuel [EURO]125,696 [EURO]125,696
du Chemin Cornillon - construction loan secured
on Paris building
Societe Civile Immobiliere Banque Nationale de Paris - [EURO]207,154 [EURO]207,154
du Chemin Cornillon construction loan secured on
Paris building
Iron Mountain Espana S.A. Banco Santander - 10 year [EURO]1,361,064 [EURO]1,500,000
mortgage loan secured on
Daganzo building
Iron Mountain Espana S.A. Banco Sabadell - overdraft In credit [EURO]300,000
facility
Iron Mountain Espana S.A. La Caixa - overdraft facility In credit [EURO]300,000
Iron Mountain Iberica S.L. Banco Pastor - loan [EURO]1,725 [EURO]1,725
Iron Mountain Ireland Bank of Scotland (formerly [EURO]75,848 [EURO]75,848
Limited ICC Bank plc)- Racking loan
Iron Mountain Ireland ACC Bank Asset Finance - [EURO]8,308 [EURO]8,308
Limited Finance Lease (Lansing fork
lift)
Iron Mountain Nederland ABN Onroerend Goed Lease B.V. [EURO]247,877.50 [EURO]247,877.50
B.V. - Finance Lease
Iron Mountain Nederland ABN Amro [EURO]104,056 [EURO]104,056
B.V.
Iron Mountain Nederland Fortis Bank [EURO]75,203 [EURO]75,203
B.V.
</Table>
- 160 -
<Page>
- 161 -
<Page>
PART II
EXISTING RETAINED SECURITY
<Table>
<Caption>
MAXIMUM
DATE OF TYPE OF AMOUNT SHORT
COMPANY NAME CREATION SECURITY CHARGEE SECURED PARTICULARS
- -------------------------------------------------------------------------------------------------
Societe Civile 08/02/96 Guarantee/ Banque due [EURO]125,696 Building
Immobiliere du Charge Credit Mutuel
Chemin Cornillon
08/02/96 Guarantee/ BNP Paribas [EURO]207,154 Building
Charge
08/02/96 Guarantee/ CIS Bank [EURO]83,863 Building
Charge
Iron Mountain 26/12/02 Mortgage Banco Santander [EURO]1,500,000 Building
Espana S.A.
Iron Mountain 23/08/1996 Chattel
Ireland Limited Mortgage Bank of
Scotland
26/06/1998 Chattel (formerly ICC [EURO]75,848 Racking
Mortgage Bank plc)
23/08/1996 Debenture
15/03/2001 Guarantee/ ACC Bank Asset [EURO]8,308 Lansing FLT
Charge Finance
</Table>
- 162 -
<Page>
<Table>
Iron Mountain Land lease Schepenbergweg 1 in
Nederland B.V. Amsterdam, recorded in the Land
1/11/1988 Deed of Register as municipality of
Mortgage ABN Weesperkarspel, section M, number 254
Onroerend [EURO]1,043,694.49
2/5/1989 Second Deed Goed Lease
of Mortgage B.V.
Iron Mountain 25/11/1996 Pledges of ABN Amro [EURO]104,056 Bank Accounts:
Nederland B.V. 29/12/1997 bank accounts (i)51.49.09.289
2/10/2000 (ii)51.64.24.556
Iron Mountain Pledges of Fortis Bank [EURO]75,203 Bank Accounts:
Nederland B.V. bank accounts (i)24.46.24.070
(ii)63.18.86.184
(iii)63.18.86.230
</Table>
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SCHEDULE 12
FORM OF LETTER OF CREDIT
To: [BENEFICIARY](the "BENEFICIARY")
Date
IRREVOCABLE STANDBY LETTER OF CREDIT NO. [-]
At the request of [-], [ISSUING BANK] (the "ISSUING BANK") issues this
irrevocable standby Letter of Credit ("Letter of Credit") in your favour on the
following terms and conditions:
1. DEFINITIONS
In this Letter of Credit:
"BUSINESS DAY" means a day (other than a Saturday or a Sunday) on which
banks are open for general business in [London].*
"DEMAND" means a demand for a payment under this Letter of Credit in the
form of the schedule to this Letter of Credit.
"EXPIRY DATE" means [-].
"TOTAL L/C AMOUNT" means [-].
2. ISSUING BANK'S AGREEMENT
(a) The Beneficiary may request a drawing or drawings under this
Letter of Credit by giving to the Issuing Bank a duly completed
Demand. A Demand must be received by the Issuing Bank by [-] p.m.
([London] time) on the Expiry Date.
(b) Subject to the terms of this Letter of Credit, the Issuing Bank
unconditionally and irrevocably undertakes to the Beneficiary
that, within [ten] Business Days of receipt by it of a Demand, it
must pay to the Beneficiary the amount demanded in that Demand.
(c) The Issuing Bank will not be obliged to make a payment under this
Letter of Credit if as a result the aggregate of all payments
made by it under this Letter of Credit would exceed the Total L/C
Amount.
3. EXPIRY
(a) The Issuing Bank will be released from its obligations under this
Letter of Credit on the date (if any) notified by the Beneficiary
to the Issuing Bank as the date upon which the obligations of the
Issuing Bank under this Letter of Credit are released.
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(b) Unless previously released under paragraph (a) above, on [-]
p.m.([London] time) on the Expiry Date the obligations of the
Issuing Bank under this Letter of Credit will cease with no
further liability on the part of the Issuing Bank except for any
Demand validly presented under the Letter of Credit that remains
unpaid.
(c) When the Issuing Bank is no longer under any further obligations
under this Letter of Credit, the Beneficiary must return the
original of this Letter of Credit to the Issuing Bank.
4. PAYMENTS
All payments under this Letter of Credit shall be made in [o ] and for
value on the due date to the account of the Beneficiary specified in the
Demand.
5. DELIVERY OF DEMAND
Each Demand shall be in writing, and, unless otherwise stated, may be
made by letter, fax or telex and must be received in legible form by the
Issuing Bank at its address and by the particular department or office
(if any) as follows:
[
]
6. ASSIGNMENT
The Beneficiary's rights under this Letter of Credit may not be assigned
or transferred.
7. ISP
Except to the extent it is inconsistent with the express terms of this
Letter of Credit, this Letter of Credit is subject to the International
Standby Practices (ISP 98), International Chamber of Commerce
Publication No. 590.
8. GOVERNING LAW
This Letter of Credit is governed by English law.
9. JURISDICTION
The courts of England have exclusive jurisdiction to settle any dispute
arising out of or in connection with this Letter of Credit.
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Yours faithfully
[ISSUING BANK]
By:
NOTES:
* This may need to be amended depending on the currency of payment under
the Letter of Credit.
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SIGNATURES
THE PARENT
IRON MOUNTAIN EUROPE LIMITED
By: /s/
Address: Third Floor
Cottons Centre
Tooley Street
London SE1 2TT
Fax: 020 7 939 1507
Attention: Finance Director
THE ORIGINAL BORROWERS
IRON MOUNTAIN EUROPE LIMITED
Address: Third Floor
Cottons Centre
Tooley Street
London SE1 2TT
Fax: 020 7 939 1507
IRON MOUNTAIN (UK) LIMITED
By: /s/
Address: Third Floor
Cottons Centre
Tooley Street
London SE1 2TT
Fax: 020 7 939 1507
DOCUMENT AND INFORMATION MANAGEMENT SERVICES LIMITED
By: /s/
Address: Third Floor
Cottons Centre
Tooley Street
London SE1 2TT
Fax: 020 7 939 1507
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THE ORIGINAL GUARANTORS
IRON MOUNTAIN EUROPE LIMITED
By: /s/
Address: Third Floor
Cottons Centre
Tooley Street
London SE1 2TT
Fax: 020 7 939 1507
IRON MOUNTAIN (UK) LIMITED
By: /s/
Address: Third Floor
Cottons Centre
Tooley Street
London SE1 2TT
Fax: 020 7 939 1507
DOCUMENT AND INFORMATION MANAGEMENT SERVICES LIMITED
By: /s/
Address: Third Floor
Cottons Centre
Tooley Street
London SE1 2TT
Fax: 020 7 939 1507
THE DOCUMENT STORAGE COMPANY LIMITED
By: /s/
Address: Third Floor
Cottons Centre
Tooley Street
London SE1 2TT
Fax: 020 7 939 1507
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IRON MOUNTAIN HOLDINGS (EUROPE) LIMITED
By: /s/
Address: Third Floor
Cottons Centre
Tooley Street
London SE1 2TT
Fax: 020 7 939 1507
MILLER DATA MANAGEMENT LIMITED
By: /s/
Address: Third Floor
Cottons Centre
Tooley Street
London SE1 2TT
Fax: 020 7 939 1507
IRON MOUNTAIN IRELAND (HOLDINGS) LIMITED
By: /s/
Address: Unit 17
Crag Terrace
Clondalkin Industrial Estate
Dublin 22
Fax: + 353 (0) 1 457 1023
IRON MOUNTAIN IRELAND LIMITED
By: /s/
Address: Unit 17
Crag Terrace
Clondalkin Industrial Estate
Dublin 22
Fax: + 353 (0) 1 457 1023
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IRON MOUNTAIN NEDERLAND HOLDINGS B.V.
By: /s/
Address: Cairostraat 1
3047 BB Rotterdam
Nederland
Fax: + 31 (0) 10462 4120
IRON MOUNTAIN NEDERLAND B.V.
By: /s/
Address: Cairostraat 1
3047 BB Rotterdam
Nederland
Fax: + 31 (0) 10462 4120
THE ARRANGERS
BARCLAYS CAPITAL (THE INVESTMENT BANKING DIVISION OF BARCLAYS BANK PLC)
By: /s/
Address: 5 The North Colonnade
Canary Wharf
London E14 4BB
Fax: 020 7 773 1572
Attention: John Loomes
THE GOVERNOR & COMPANY OF THE BANK OF SCOTLAND
By: /s/
Address: 3rd Floor
New Uberior House
11 Earl Grey Street
Edinburgh
Fax: 0131 659 0674
Attention: Fiona Ross
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THE FACILITY AGENT
THE GOVERNOR & COMPANY OF THE BANK OF SCOTLAND
By: /s/
Address: Corporate Banking
123 St Vincent Street
Glasgow
G2 5EA
Fax: 0141 207 1205
Attention: Alison Campbell
THE SECURITY TRUSTEE
THE GOVERNOR & COMPANY OF THE BANK OF SCOTLAND
By: /s/
Address: Corporate Banking
123 St Vincent Street
Glasgow
G2 5EA
Fax: 0141 207 1205
Attention: Alison Campbell
THE LENDERS
ALLIED IRISH BANKS, P.L.C.
By: /s/
Address: Corporate Operations
AIB Bankcentre
Ballsbridge
Dublin 4
Ireland
Fax: 020 7 726 8735
Attention: Antoinette Dunleavy
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BARCLAYS BANK PLC
By: /s/
Address: Barclays Capital Global Services Unit
7th Floor
10 The South Colonnade
Canary Wharf
London E14 4BB
Fax: 020 7 773 6807
Attention: Graham Smart
BEAR STEARNS CORPORATE LENDING INC.
By: /s/
Address: One Canada Square
Canary Wharf
London E14 5AD
Fax: 020 7 516 5966
Attention: Neils Ribeiro
HSBC BANK PLC
By: /s/
Address: Specialised Financing
8 Stephenson Place
New Street
Birmingham B2 4NH
Fax: 0121 252 2652
Attention: Sharon Hill
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LLOYDS TSB BANK PLC
By: /s/
Address: Corporate Banking
PO Box 908
125 Colmore Row
Birmingham B3 2DS
Fax: 0121 212 0861
Attention:
THE GOVERNOR & COMPANY OF THE BANK OF SCOTLAND
By: /s/
Address: Corporate Banking
123 St Vincent Street
Glasgow G2 5EA
Fax: 0141 207 1205
Attention: Alison Campbell
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
By: /s/
Address: Corporate Relationship Banking
Eastcheap Court
11 Philpot Lane
London
EC3M 8BA
Fax: 020 7 626 2405
Attention: Brendan Gilmore/Will Haywood
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