Exhibit 4.1
CONFORMED COPY
UP TO EUR600,000,000
FACILITY AGREEMENT
for
SVG CAPITAL PLC
(formerly known as
▇▇▇▇▇▇▇▇ VENTURES INTERNATIONAL INVESTMENT TRUST PLC)
arranged by
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
and
THE ROYAL BANK OF SCOTLAND PLC
with
THE ROYAL BANK OF SCOTLAND PLC
also acting as Agent and Issuing Bank
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MULTICURRENCY REVOLVING FACILITY AGREEMENT
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CONTENTS
Clause Page
1. Definitions And Interpretation..................................................................1
2. The Facility...................................................................................14
3. Purpose........................................................................................15
4. Conditions of Utilisation......................................................................15
5. Utilisation....................................................................................17
6. Optional Currencies............................................................................17
7. Utilisation - Bank Guarantee...................................................................18
8. Bank Guarantee.................................................................................22
9. Repayment......................................................................................28
10. Prepayment and cancellation....................................................................28
11. Interest.......................................................................................32
12. Interest Periods...............................................................................32
13. Changes To The Calculation Of Interest.........................................................33
14. Fees...........................................................................................34
15. Tax Gross Up And Indemnities...................................................................36
16. Increased Costs................................................................................39
17. Other Indemnities..............................................................................40
18. Mitigation By The Lenders......................................................................41
19. Costs And Expenses.............................................................................41
20. Representations................................................................................43
21. Information Undertakings.......................................................................45
22. Financial Covenants............................................................................47
23. General Undertakings...........................................................................50
24. Events Of Default..............................................................................53
25. Changes To The Lenders.........................................................................57
26. Changes To The Borrower........................................................................60
27. Role Of The Agent And The Joint Lead Arrangers.................................................61
28. Conduct Of Business By The Finance Parties.....................................................65
29. Sharing Among The Lenders......................................................................66
30. Payment Mechanics..............................................................................68
31. Set-Off........................................................................................70
32. Notices........................................................................................70
33. Calculations And Certificates..................................................................72
34. Partial Invalidity.............................................................................72
35. Remedies And Waivers...........................................................................72
36. Amendments And Waivers.........................................................................72
37. Counterparts...................................................................................73
38. Governing Law..................................................................................74
39. Enforcement....................................................................................74
SCHEDULE 1 The Original Lenders.............................................................75
SCHEDULE 2 Conditions precedent.............................................................76
SCHEDULE 3 Requests.........................................................................78
Part IA Utilisation Request Loans..............................................................78
Part IB Utilisation Request Bank Guarantee.....................................................79
SCHEDULE 4 Mandatory Cost formula...........................................................80
SCHEDULE 5 Form of Transfer Certificate.....................................................83
SCHEDULE 6 Form of Compliance Certificate...................................................85
SCHEDULE 7 LMA Form of Confidentiality Undertaking..........................................86
SCHEDULE 8 Timetables.......................................................................91
Part I Loans............................................................................91
Part II Bank Guarantee...................................................................92
SCHEDULE 9 Form of SVG Diamond Bank Guarantee...............................................93
appendix further diamond bank guarantee letter.......................................................100
THIS AGREEMENT is dated 10 March 2006 and is made between:
(1) SVG CAPITAL PLC (formerly known as ▇▇▇▇▇▇▇▇ VENTURES INTERNATIONAL
INVESTMENT TRUST PLC) (registered number 3066856) (the "Borrower");
(2) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND and THE ROYAL BANK
OF SCOTLAND PLC (each a "Joint Lead Arranger" and together, the "Joint
Lead Arrangers");
(3) THE ROYAL BANK OF SCOTLAND PLC in its capacity as agent of the Lenders
(the "Agent");
(4) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND and THE ROYAL BANK OF
SCOTLAND PLC (together, the "Original Lenders"); and
(5) THE ROYAL BANK OF SCOTLAND PLC in its capacity as issuing bank (the
"Issuing Bank").
IT IS AGREED as follows:
SECTION 1
INTERPRETATION
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
"Affiliate" means, in relation to any person, a Subsidiary of that
person or a Holding Company of that person or any other Subsidiary of
that Holding Company.
"Agent's Spot Rate of Exchange" means the Agent's spot rate of
exchange for the purchase of the relevant currency with the Base
Currency in the London foreign exchange market at or about 11:00 a.m.
on a particular day.
"Authorisation" means an authorisation, consent, approval, resolution,
licence, exemption, filing or registration.
"Availability Period" means the period from and including the date of
this Agreement to and including the date falling one month prior to
the Termination Date.
"Available Commitment" means a Lender's Commitment minus:
(a) the amount of its participation in any outstanding Bank
Guarantee (or in the case of any Diamond Bank Guarantee, the
Total Aggregate Amount, as defined in such bank guarantees) and
the Base Currency Amount of its participation in any outstanding
Loans; and
(b) in relation to any proposed Utilisation, the amount of its
participation in any Bank Guarantee and the Base Currency Amount
of its participation in any Loans in each case that are due to be
made on or before the proposed Utilisation Date,
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other than that Lender's participation in any Utilisations that are
due to be repaid or prepaid on or before the proposed Utilisation
Date.
"Available Facility" means the aggregate for the time being of each
Lender's Available Commitment.
"Bank Guarantee" means a Diamond Bank Guarantee or any other bank
guarantee in the form requested by the Borrower and agreed by the
Agent (with the prior consent of the Majority Lenders and the Issuing
Bank) from time to time.
"Base Currency" means euros.
"Base Currency Amount" means, in relation to a Utilisation, the amount
specified in the Utilisation Request delivered by the 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 Agent
receives the Utilisation Request) adjusted to reflect any repayment or
prepayment of the Utilisation.
"Bonds" means the Borrower's GBP49,000,000 4.5% subordinated
convertible bonds due 2013 issued in May, July and August 2003.
"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.
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"Calculation Date" means the date of issue of a Diamond Bank Guarantee
and, following such date of issue, 28 March and 28 September in each
year or if such day is not a Business Day, the next following Business
Day.
"Calculation Period" means each period from one Calculation Date to
the next succeeding Calculation Date.
"Callable Subscription Monies" has the meaning given to that term in
the Memorandum and Articles of Association of SVG Diamond Holdings
Limited.
"Callable Subscription Monies II" has the meaning given to the term
Callable Subscription Monies in the Memorandum and Articles of
Association of SVG Diamond Holdings II Limited.
"Circular" means the circular to the Borrower's shareholders dated 24
March 2005.
"Commitment" means:
(a) in relation to an Original Lender, the amount in the Base
Currency set opposite its name under the heading "Commitment" in
Schedule 1 (The Original Lenders) and the amount of any other
Commitment assumed by it pursuant to Clause 2.3 (Facility
Increase) or transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount in the Base
Currency of any Commitment assumed by it pursuant to Clause 2.3
(Facility Increase) or transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement.
"Compliance Certificate" means a certificate substantially in the form
set out in Schedule 6 (Form of Compliance Certificate).
"Confidentiality Undertaking" means a confidentiality undertaking
substantially in a recommended form of the LMA as set out in Schedule
7 (LMA Form of Confidentiality Undertaking) or in any other form
agreed between the Borrower and the Agent.
"Consolidated Adjusted Investment Assets" has the meaning set out in
Clause 22.1 (Financial definitions).
"Consolidated Gross Borrowings" has the meaning set out in Clause
22.1 (Financial definitions).
"Current Outstanding Amount" means at any time during a Calculation
Period, the aggregate of the Remaining Initial Issue Price at that
time and an amount equal to EURIBOR applied to the Remaining Initial
Issue Price from time to time in respect of that Calculation Period
and EURIBOR applied to the Remaining Initial Issue Price from time to
time in respect of each Calculation Period falling prior to that
Calculation Period, less an amount equal to the amount by which the
total of (i) any Callable Subscription Monies paid by the Borrower in
respect of PEI Preferred Equity Shares which have been held by the
Borrower and (ii) the Callable Subscription Monies, in respect of each
PEI Preferred Equity Share which the Borrower has disposed of (and
therefore it would have no liability on a call in respect of such
share), at the time of the relevant disposal, exceeds the Satisfied
Initial Issue Price.
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"Current Outstanding Amount II" means at any time during a Calculation
Period, the aggregate of the Remaining Initial Issue Price II at that
time and an amount equal to EURIBOR applied to the Remaining Initial
Issue Price II from time to time in respect of that Calculation Period
and EURIBOR applied to the Remaining Initial Issue Price II from time
to time in respect of each Calculation Period falling prior to that
Calculation Period, less an amount equal to the amount by which the
total of (i) any Callable Subscription Monies II paid by the Borrower
in respect of any PEI Preferred Equity Share II which has at any time
been held by the Borrower and (ii) the Callable Subscription Monies II
in respect of each PEI Preferred Equity Share II which the Borrower
has disposed of (and therefore it would have no liability on a call in
respect of such share) at the time of the relevant disposal, exceeds
the Satisfied Initial Price II.
"Default" means an Event of Default or any event or circumstance
specified in Clause 24 (Events of Default) which would (with the
expiry of a grace period, the giving of notice, the making of any
determination under the Finance Documents or any combination of any of
the foregoing) be an Event of Default.
"Diamond Bank Guarantee" means the SVG Diamond Bank Guarantee, the SVG
Diamond Bank Guarantee II and any other bank guarantee designated as
such by the Borrower and the Agent (with the consent of the Majority
Lenders and the Issuing Bank) pursuant to a Further Diamond Bank
Guarantee Letter.
"Existing Facility" means the revolving credit facility made available
to the Borrower pursuant to the multicurrency revolving credit
facility agreement dated 16 March 2001 (as amended and restated from
time to time) between, amongst others, the Borrower, the Joint Lead
Arrangers, the Agent and the Original Lenders.
"EURIBOR" means, in relation to any Loan in euro:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the period of that Loan)
the arithmetic mean of the rates (rounded upwards to four decimal
places) as supplied to the Agent at its request quoted by the
Reference Banks to leading banks in the European interbank
market,
as of the Specified Time on the Quotation Day for the offering of
deposits in euro for a period comparable to the Interest Period of the
relevant Loan and where "EURIBOR" is used in the definition of, as the
case may be, "Current Outstanding Amount", "Current Outstanding Amount
II" or "Further Current Outstanding Amount" (as defined in a Further
Diamond Bank Guarantee Letter), EURIBOR means (a) or (b) above as of
11.00am Brussels time on the Calculation Date in question for a period
comparable to the Calculation Period which commences on such
Calculation Date.
"Event of Default" means any event or circumstance specified as such
in Clause 24 (Events of Default).
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"Facility" means the revolving credit facility made available under
this Agreement as described in Clause 2 (The Facility).
"Facility Increase" means an increase in the Total Commitments from
EUR285,000,000 to EUR600,000,000 pursuant to Clause 2.3(Facility
Increase).
"Facility Office" means the office or offices notified by a Lender to
the Agent in writing on or before the date it becomes a Lender (or,
following that date, by not less than five Business Days' written
notice) as the office or offices through which it will perform its
obligations under this Agreement.
"Fee Letter" means any letter or letters between any Joint Lead
Arranger and the Borrower (or the Agent and the Borrower) setting out
any of the fees referred to in Clause 14 (Fees).
"Finance Document" means this Agreement, any Fee Letter and any other
document designated as such by the Agent and the Borrower.
"Finance Party" means the Agent, a Joint Lead Arranger or a Lender.
"Financial Indebtedness" means any indebtedness for or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or any similar
instrument;
(d) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with GAAP, be
treated as a finance or capital lease;
(e) receivables sold or discounted (other than any receivables to the
extent they are sold on a non-recourse basis);
(f) any amount raised under any other transaction having the
commercial effect of a borrowing and entered into with the
objective of raising finance;
(g) any derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or
price (and, when calculating the value of any derivative
transaction, only the marked to market value shall be taken into
account);
(h) any counter-indemnity obligation in respect of a guarantee,
indemnity, bond, standby or documentary letter of credit or any
other instrument issued by a bank or financial institution;
(i) any amount raised by the issue of redeemable shares to the extent
that the redemption date falls or is capable of falling on or
prior to the Termination Date;
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(j) any amount of any liability under an advance or deferred sale or
purchase agreement if the primary reason behind the entry into
this agreement is to raise finance;
(k) (without double counting) the amount of any liability in respect
of any guarantee or indemnity for any of the items referred to in
paragraphs (a) to (j) above.
"Further Diamond Bank Guarantee" means a Diamond Bank Guarantee other
than the SVG Diamond Bank Guarantee or the SVG Diamond Bank Guarantee
II.
"Further Diamond Bank Guarantee Letter" means a letter between the
Agent and the Borrower relating to a Further Diamond Bank Guarantee
substantially in a form set out in the Appendix or such other form as
may be agreed between the Agent (with the approval of the Majority
Lenders) and the Borrower.
"GAAP" means generally accepted accounting principles in the United
Kingdom.
"Group" means the Borrower and its Subsidiary Undertakings for the
time being (but, for the avoidance of doubt, shall not include any
Investee Company).
"Holding Company" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary.
"Increase Date" has the meaning given to it in Clause 2.3 (Facility
Increase).
"Indebtedness for Borrowed Money" means Financial Indebtedness save
for any indebtedness for or in respect of paragraph (g) of the
definition of "Financial Indebtedness".
"Interest Period" means, in relation to a Loan, each period determined
in accordance with Clause 12 (Interest Periods) and in relation to an
Unpaid Sum, each period determined in accordance with Clause 11.3
(Default interest).
"Investee Company" means a company, trust, partnership, fund or other
entity in which the Borrower (or fund in which the Borrower has an
interest) participates as a shareholder or holder of debt.
"Investment Adviser" means SVG Advisers Limited.
"Investment Policy" means the investment policy stated in the latest
published annual audited accounts of the Borrower.
"Lender" means:
(a) any Original Lender; and
(b) any bank or financial institution which has become a Party in
accordance with Clause 25 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement.
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"LIBOR" means, in relation to any Loan other than a Loan denominated
in euro:
(a) the applicable Screen Rate; or
(b) (if no Screen Rate is available for the currency or Interest
Period of that Loan) the arithmetic mean of the rates (rounded
upwards to four decimal places) as supplied to the Agent at its
request quoted by the Reference Banks to leading banks in the
London interbank market,
as of the Specified Time on the Quotation Day for the offering of
deposits in the currency of that Loan and for a period comparable to
the Interest Period for that Loan.
"Loan" means a loan made or to be made under the Facility or the
principal amount outstanding for the time being of that loan.
"LMA" means the Loan Market Association.
"Majority Lenders" means:
(a) until the Total Commitments have been reduced to zero, a Lender
or Lenders whose Commitments aggregate more than 50% of the Total
Commitments (or, if the Total Commitments have been reduced to
zero and there are no Utilisations then outstanding, aggregated
more than 50% of the Total Commitments immediately prior to the
reduction); or
(b) at any other time, a Lender or Lenders whose participations in
the Utilisations then outstanding aggregate more than 50% of all
the Utilisations then outstanding.
"Mandatory Cost" means the percentage rate per annum calculated by the
Agent in accordance with Schedule 4 (Mandatory Cost formulae).
"Margin" means:
(a) at any time when Consolidated Gross Borrowings are 30% or less of
Consolidated Adjusted Investment Assets, one point two five per
cent. (1.25%) per annum; and
(b) at any time when Consolidated Gross Borrowings are greater than
30% of Consolidated Adjusted Investment Assets, one point five
zero per cent. (1.50%) per annum.
"Material Adverse Effect" means a material adverse effect on:
(a) the financial condition, assets, prospects or business of the
Borrower; and
(b) the ability of the Borrower to perform its payment obligations
under the Finance Documents or its obligations under Clause 22
(Financial Covenants) of this Agreement.
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"Month" means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar
month, except that:
(a) (subject to paragraph (c) below) if the numerically corresponding
day is not a Business Day, that period shall end on the next
Business Day in that calendar month in which that period is to
end if there is one, or if there is not, on the immediately
preceding Business Day;
(b) if there is no numerically corresponding day in the calendar
month in which that period is to end, that period shall end on
the last Business Day in that calendar month; and
(c) if an Interest Period begins on the last Business Day of a
calendar month, that Interest Period shall end on the last
Business Day in the calendar month in which that Interest Period
is to end.
The above rules will only apply to the last Month of any period.
"Optional Currency" means a currency (other than the Base Currency)
which complies with the conditions set out in Clause 4.3 (Conditions
relating to Optional Currencies).
"Original Financial Statements" means the unaudited consolidated
financial statements of the Group for the half year ended 30 June
2005.
"P123" means P123 Limited and P123 (C.I.) Limited, the closed-end
investment companies incorporated in Guernsey, in each of which the
Borrower has an approximate 40% holding.
"Participating Member State" means any member state of the European
Communities that adopts or has adopted the euro as its lawful currency
in accordance with legislation of the European Union relating to
European Monetary Union.
"Party" means a party to this Agreement and includes its successors in
title, permitted assigns and permitted transferees.
"PEI Preferred Equity Shares" has the meaning given to that term in
the Memorandum and Articles of Association of SVG Diamond Holdings
Limited.
"PEI Preferred Equity Shares II" has the meaning given to the term PEI
Preferred Equity Shares in the Memorandum and Articles of Association
of SVG Diamond Holdings II Limited but shall not include any SVG
Warehoused Shares.
"Permira" means the international network of entities providing
management, advisory or consultancy services to private equity and
other funds under the overall business name of Permira.
"Permira Funds" means funds to which Permira acts as manager, advisor
or consultant.
"Platinum Trust" means the trust constituted by the Trust Deed dated
29 March 1996 and made between Barings (Guernsey) Limited and ▇▇▇▇▇▇▇▇
Venture Managers (Guernsey) Limited, as amended from time to time.
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"Portfolio Value" has the meaning given to such term in Clause 22.1
(Financial definitions).
"Private Placement" means the notes to be issued by the Borrower by
way of private placement, arranged by The Royal Bank of Scotland plc.
"Qualifying Lender" has the meaning given to it in Clause 15 (Tax
Gross-Up and Indemnities).
"Quarter Dates" mean 31 March, 30 June, 30 September and 31 December
in each year.
"Quotation Day" means, in relation to any period for which an interest
rate is to be determined:
(a) (if the currency is sterling) the first day of that period;
(b) (if the currency is euro) two TARGET Days before the first day of
that period; or
(c) (for any other currency) two Business Days before the first day
of that period,
unless market practice differs in the Relevant Interbank Market for a
currency, in which case the Quotation Day for that currency will be
determined by the Agent in accordance with market practice in the
Relevant Interbank Market (and if quotations would normally be given
by leading banks in the Relevant Interbank Market on more than one
day, the Quotation Day will be the last of those days).
"Reference Banks" means The Governor and Company of the Bank of
Scotland, The Royal Bank of Scotland plc and such other banks as may
be appointed by the Agent in consultation with the Borrower.
"Relevant Interbank Market" means in relation to euro, the European
interbank market and, in relation to any other currency, the London
interbank market.
"Remaining Initial Issue Price" means at any time euro 50,000,000 less
the Satisfied Initial Issue Price.
"Remaining Initial Issue Price II" means at any time euro 72,500,000
less the Satisfied Initial Issue Price II.
"Renewal Request" means a written notice delivered to the Agent in
accordance with Clause 7.7 (Renewal of a Bank Guarantee).
"Repeating Representations" means each of the representations set out
in Clauses 20.1 (Status) to 20.6 (Governing law and enforcement),
Clause 20.9 (No default), Clause 20.10 (No misleading information),
Clause 20.12 (Pari passu ranking) and Clause 20.13 (No proceedings
pending or threatened).
"Rollover Loan" means one or more Loans:
(a) made or to be made on the same day that a maturing Loan is due to
be repaid;
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(b) the aggregate amount of which is equal to or less than the
maturing Loan;
(c) in the same currency as the maturing Loan (unless it arose as a
result of the operation of Clause 6.2 (Unavailability of a
Currency)); and
(d) made or to be made to the same Borrower for the purpose of
refinancing a maturing Loan.
"Satisfied Initial Issue Price" means euro 1 for each PEI Preferred
Equity Share which has been held by the Borrower, and in respect of
which all Callable Subscription Monies have been paid by the Borrower
or which is no longer held by the Borrower.
"Satisfied Initial Issue Price II" means at any time the amount of
Callable Subscription Monies II which have been paid by the Borrower,
and which are not attributable to EURIBOR, in respect of the PEI
Preferred Equity Shares II held by the Borrower at that time, together
with euro 1 for each PEI Preferred Equity Share II which has been, but
at that time is no longer, held by the Borrower.
"▇▇▇▇▇▇▇▇ Ventures" means the international association of entities
providing management, advisory or consultancy services to buy-out and
development capital funds under the overall business name of ▇▇▇▇▇▇▇▇
Ventures or have done so under such business name (excluding Permira).
"Screen Rate" means:
(a) in relation to LIBOR, the British Bankers' Association Interest
Settlement Rate for the relevant currency and period; and
(b) in relation to EURIBOR, the percentage rate per annum determined
by the Banking Federation of the European Union for the relevant
period,
displayed on the appropriate page of the Telerate screen. If the
agreed page is replaced or service ceases to be available, the Agent
may specify another page or service displaying the appropriate rate
after consultation with the Borrower and the Lenders.
"Security" means a mortgage, charge, pledge, lien or other security
interest securing any obligation of any person or any other agreement
or arrangement having a similar effect.
"Specified Time" means a time determined in accordance with Schedule 8
(Timetables).
"Subsidiary" and "Subsidiary Undertaking" shall have the meanings
ascribed to them by section 736 and section 258 respectively of the
Companies ▇▇▇ ▇▇▇▇ and, for the purposes of this Agreement
"Subsidiary" and "Subsidiary Undertaking" shall include the Platinum
Trust.
"SVG Diamond Bank Guarantee" means a bank guarantee, substantially in
the form set out in Schedule 9 (Form of SVG Diamond Bank Guarantee)
issued to SVG Diamond Holdings Limited on 28 September 2004.
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"SVG Diamond Bank Guarantee II" means the bank guarantees, in the form
agreed between the Borrower and the Agent issued to SVG Diamond
Holdings II Limited on 22 February 2006.
"SVG Warehoused Shares" means those PEI Preferred Equity Shares II
issued pursuant to a subscription and share issue agreement dated 8
February 2006 between SVG Diamond Holdings II Limited and the Borrower
relating to the subscription of 7,500,000 PEI Preferred Equity Shares
II.
"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 ▇▇▇ ▇▇▇▇.
"Termination Date" means unless all the Lenders and the Issuing Bank
in their absolute discretion otherwise agree, the day falling sixty
months from the date of this Agreement (or, if that day is not a
Business Day, the preceding Business Day).
"Total Commitments" means the aggregate of the Commitments, being
EUR285,000,000 on the date of this Agreement and, on the Increase
Date, EUR600,000,000.
"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 Agent and the Borrower.
"Transfer Date" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer Certificate
provided it is not less than five Business Days after the date on
which the Agent receives the Transfer Certificate (or such other
date as the Agent may agree); and
(b) the date on which the Agent executes the Transfer Certificate.
"Unpaid Sum" means any sum due and payable but unpaid by the Borrower
under the Finance Documents.
"Utilisation" means a Loan or a Bank Guarantee.
"Utilisation Date" means the date on which a Utilisation is made.
"Utilisation Request" means a notice substantially in the form set out
in Schedule 3 (Requests) or, in the case of a Further Diamond Bank
Guarantee, a Further Diamond Bank Guarantee Letter.
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"VAT" means value added tax as provided for in the Value Added Tax ▇▇▇
▇▇▇▇ and any other tax of a similar nature.
1.2 Construction
(a) Unless a contrary indication appears a reference in this
Agreement to:
(i) "assets" includes present and future properties, revenues
and rights of every description;
(ii) the "European interbank market" means the interbank market
for euro operating in Participating Member States;
(iii)a "Finance Document" or any other agreement or instrument
is a reference to that Finance Document or other agreement
or instrument as amended or novated;
(iv) "indebtedness" includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of
money, whether present or future, actual or contingent other
than any such obligation in respect of uncalled commitments;
(v) a "person" includes any person, firm, company, corporation,
government, state or agency of a state or any association,
trust or partnership (whether or not having separate legal
personality) of two or more of the foregoing;
(vi) a "regulation" includes any regulation, rule, official
directive, request or guideline (whether or not having the
force of law) of any governmental, intergovernmental or
supranational body, agency, department or regulatory,
self-regulatory or other authority or organisation;
(vii)a provision of law is a reference to that provision as
amended or re-enacted; and
(viii)a time of day is a reference to London time.
(b) Section, Clause and Schedule headings are for ease of reference
only.
(c) Unless a contrary indication appears, a term used in any other
Finance Document or in any notice given under or in connection
with any Finance Document has the same meaning in that Finance
Document or notice as in this Agreement.
(d) A Default or an Event of Default is "continuing" if it has not
been remedied or waived.
1.3 Currency Symbols and Definitions
"$" and "dollars" denote lawful currency of the United States of
America, "GBP" and "sterling" denotes lawful currency of the United
Kingdom and "EUR", "EUR" and "euro" means the single currency unit of
the Participating Member States.
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1.4 Third party rights
(a) Except as provided in a Finance Document, the terms of a Finance
Document may be enforced only by a party to it and the operation
of the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ is excluded.
(b) Notwithstanding any provision of any Finance Document, the
Parties to a Finance Document do not require the consent of any
third party to rescind or vary any Finance Document at any time.
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SECTION 2
THE FACILITY
2. THE FACILITY
2.1 The Facility
Subject to the terms of this Agreement, the Lenders make available to
the Borrower a multicurrency revolving loan facility and a bank
guarantee facility in an aggregate amount equal to the Total
Commitments.
2.2 The Existing Facility
Upon satisfaction of the requirements of Clause 4.1 (Initial
conditions precedent):
(a) all amounts outstanding under the Existing Facility, including
the existing Diamond Bank Guarantees, shall be deemed to be
outstanding under, and on the terms of, this Agreement (with the
same interest periods and, in the case of the Bank Guarantees,
with the bank guarantee fee continuing to run for the current six
month period that has commenced under the terms of the Existing
Facility); and
(b) the Existing Facility shall be deemed to have been cancelled in
full and replaced by the Facility.
2.3 Facility Increase
(a) The amount of the Total Commitments under this Agreement shall
increase from EUR285,000,000 to EUR600,000,000 on the later of
the following:
(i) 14 June 2006; and
(ii) the date the Borrower satisfies the condition set out in
Clause 23.20 (Condition Subsequent).
(b) On the date of the Facility Increase (the "Increase Date"), the
amount of the increase in the Total Commitments (the "Increase
Amount") shall be allocated between the Lenders then party to
this Agreement as a new Commitment. Each such Lender shall assume
a new Commitment equal to the same proportion of the Increase
Amount as its Available Commitment bears to the Available
Facility on the Increase Date.
2.4 Lenders' rights and obligations
(a) The obligations of each Lender under the Finance Documents are
several. Failure by a Lender to perform its obligations under the
Finance Documents does not affect the obligations of any other
Party under the Finance Documents. No Finance Party is
responsible for the obligations of any other Finance Party under
the Finance Documents.
(b) The rights of each Lender under or in connection with the Finance
Documents are separate and independent rights and any debt
arising under the Finance Documents to a Lender from the Borrower
shall be a separate and independent debt.
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(c) A Finance Party may, except as otherwise stated in the Finance
Documents, separately enforce its rights under the Finance
Documents.
3. PURPOSE
3.1 Purpose
The Borrower shall apply all amounts borrowed by it under the Facility
towards its general corporate purposes (which shall include, without
limitation, gearing, funding investment timing differences and payment
of any fees, costs and expenses associated with the Facility).
3.2 Monitoring
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
4. CONDITIONS OF UTILISATION
4.1 Initial conditions precedent
The Borrower may not deliver a Utilisation Request unless the Agent
has received all of the documents and other evidence listed in
Schedule 2 (Conditions precedent) in form and substance satisfactory
to the Agent (acting reasonably). The Agent shall notify the Borrower
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 the Borrower are true
in all material respects.
4.3 Conditions relating to Optional Currencies
(a) A currency will constitute an Optional Currency in relation to a
Loan if it is dollars or sterling or 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 Agent (acting on the
instructions of all the Lenders) on or prior to receipt by
the Agent of the relevant Utilisation Request for that Loan.
(b) If the Agent has received a written request from the Borrower for
a currency to be approved under paragraph (a)(ii) above, the
Agent will confirm to the Borrower by the Specified Time:
(i) whether or not the Lenders have granted their approval; and
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(ii) if approval has been granted, the minimum amount (and, if
required, integral multiples) for any subsequent Utilisation
in that currency.
(c) A Loan denominated in euro will only be made available in the
euro unit.
4.4 Maximum number of Loans
(a) The Borrower may not deliver a Utilisation Request if as a result
of the proposed Utilisation fifteen or more Loans would be
outstanding or fifteen or more Bank Guarantees would be
outstanding.
(b) Any Loan made by a single Lender under Clause 6.2 (Unavailability
of a currency) shall not be taken into account in paragraph (a)
above.
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SECTION 3
UTILISATION
5. UTILISATION
5.1 Delivery of a Utilisation Request
The Borrower may utilise the Facility by delivery to the Agent of a
duly completed Utilisation Request not later than the Specified Time.
5.2 Completion of a Utilisation Request
Each Utilisation Request is irrevocable and will not be regarded as
having been duly completed unless:
(a) the proposed Utilisation Date is a Business Day within the
Availability Period;
(b) the currency and amount of each Utilisation complies with Clause
5.3 (Currency and amount); and
(c) the proposed Interest Period complies with Clause 12 (Interest
Periods).
5.3 Currency and amount
(a) The currency specified in a Utilisation Request for a proposed
Loan must be the Base Currency or an Optional Currency.
(b) The amount of each proposed Loan 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
EUR1,000,000 or if less, the Available Facility; or
(ii) if the currency selected is an Optional Currency, the
minimum amount (or an integral multiple, if required)
specified by the Agent pursuant to paragraph 4.3(b)(ii) of
Clause 4.3 (Conditions relating to Optional Currencies) or,
if less, the Available Facility.
5.4 Lenders' participation
(a) If the conditions set out in this Agreement have been met, each
Lender shall make its participation in each Loan available
through its Facility Office.
(b) The amount of each Lender's participation in each Loan will be
equal to the proportion borne by its Available Commitment to the
Available Facility immediately prior to making the Loan.
(c) The Agent shall notify each Lender of the amount, currency and
the Base Currency Amount of each Loan at the Specified Time.
6. OPTIONAL CURRENCIES
6.1 Selection of currency
The Borrower shall select the currency of a Loan in a Utilisation
Request.
6.2 Unavailability of a currency
If before the Specified Time on any Quotation Day:
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(a) the Agent has received notice from a Lender that the Optional
Currency requested for a Loan is not readily available to it in
the amount required; or
(b) a Lender notifies the Agent that compliance with its obligation
to participate in a Loan in the proposed Optional Currency would
contravene a law or regulation applicable to it,
the Agent will give notice to the Borrower to that effect by the
Specified Time on that day. In this event, any Lender that gives
notice pursuant to this Clause 6.2 will be required to participate in
the Loan in the Base Currency (in an amount equal to that Lender's
proportion of the Base Currency Amount or, in respect of a Rollover
Loan, an amount equal to that Lender's proportion of the Base Currency
Amount of the maturing Loan that is due to be repaid) and its
participation will be treated as a separate Loan denominated in the
Base Currency during that Interest Period.
6.3 Participation in a Loan
Each Lender's participation in a Loan will be determined in accordance
with paragraph 5.4(b) of Clause 5.4 (Lenders' participation).
7. UTILISATION - BANK GUARANTEE
7.1 General
(a) In this Clause 7 and Clause 8 (Bank Guarantee):
(i) "Expiry Date" means, for the Bank Guarantee, the last day of its
Term;
(ii) "Guarantee Proportion" means, in relation to a Lender in respect
of the Bank Guarantee, the proportion (expressed as a percentage)
borne by that Lender's Available Commitment to the Available
Facility immediately prior to the issue of the Bank Guarantee,
adjusted to reflect any assignment or transfer under this
Agreement to or by that Lender; and
(iii) "Term" means the period determined under this Agreement for
which the Issuing Bank is under a liability under the Bank
Guarantee.
(b) Any reference in this Agreement to:
(i) a "Finance Party" includes the Issuing Bank;
(ii) the Interest Period of the Bank Guarantee will be
construed as a reference to the Term of that Bank
Guarantee;
(iii) an amount borrowed includes any amount utilised by way
of the Bank Guarantee;
(iv) a Utilisation made or to be made to the Borrower
includes the Bank Guarantee issued on its behalf;
(v) a Lender funding its participation in a Utilisation
includes a Lender participating in the Bank Guarantee;
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(vi) amounts outstanding under this Agreement include amounts
outstanding under or in respect of the Bank Guarantee;
(vii) an outstanding amount of the Bank Guarantee at any time
is the maximum amount that is or may be payable by the
Borrower in respect of that Bank Guarantee at that time;
(viii) the Borrower "repaying" or "prepaying" the Bank
Guarantee means:
(A) the Borrower providing cash cover for the Bank
Guarantee;
(B) the maximum amount payable under the Bank
Guarantee being reduced in accordance with its
terms; or
(C) the Issuing Bank being satisfied that it has no
further liability under the Bank Guarantee, and
the amount by which the Bank Guarantee is repaid
or prepaid under sub-paragraphs (viii)(A) and
(viii)(B) above is the amount of the relevant
cash cover or reduction; and
(ix) the Borrower providing "cash cover" for the Bank
Guarantee means the Borrower paying an amount in the
currency of the Bank Guarantee to an interest bearing
account in the name of the Borrower or as may be
otherwise agreed between the Borrower and the Lenders
and the following conditions are met:
(A) the account is with the Agent (if the cash cover
is to be provided for all the Lenders) or the
Issuing Bank (if the Original Lenders are the
only Lenders) or with a Lender (if the cash
cover is to be provided for that Lender);
(B) 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 the Bank
Guarantee until no amount is or may be
outstanding under the Bank Guarantee; and
(C) the Borrower has executed a security document,
in form and substance satisfactory to the Agent
or the Finance Party with which that account is
held, creating a first ranking security interest
over that account.
(c) Clause 5 (Utilisation) does not apply to the Utilisation by way
of Bank Guarantee.
7.2 Facility
The Facility may be utilised by way of issue of Bank Guarantees.
7.3 Delivery of a Utilisation Request for Bank Guarantee
The Borrower may request a Bank Guarantee to be issued by delivery to
the Agent of a duly completed Utilisation Request in the form of Part
IB of Schedule 3 (Utilisation Request - Banks Guarantee) or, in the
case of a Further Diamond Bank Guarantee, a Further Diamond Bank
Guarantee Letter, in each case not later than the Specified Time.
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7.4 Completion of a Utilisation Request for Bank Guarantee
Each Utilisation Request for a Bank Guarantee is irrevocable and will
not be regarded as having been duly completed unless:
(a) it specifies that it is for a Bank Guarantee;
(b) the proposed Utilisation Date is a Business Day within the
Availability Period;
(c) the currency and amount of the Bank Guarantee comply with
Clause 7.5 (Currency and amount);
(d) the form of Bank Guarantee is attached;
(e) in the case of the SVG Diamond Bank Guarantee, the Expiry Date of
the Bank Guarantee is no later than the date falling 90 months
after the date of original issue of the Bank Guarantee, in the
case of the SVG Diamond Bank Guarantee II, the Expiry Date of the
Bank Guarantee is no later than the date falling 66 months after
the date of original issue of the Bank Guarantee, in the case of
a Further Diamond Bank Guarantee, the expiry date of which is
after the Termination Date (provided that such expiry date has
been approved by all Lenders), the expiry date set out in the
Further Diamond Bank Guarantee Letter relating to such guarantee
and, in the case of any Bank Guarantee other than the Diamond
Bank Guarantees, the Expiry Date of the Bank Guarantee is on or
before the Termination Date (unless otherwise approved by all the
Lenders);
(f) the delivery instructions for the Bank Guarantee are specified;
and
(g) the identity of the beneficiary of the Bank Guarantee is SVG
Diamond Holdings Limited in the case of the SVG Diamond Bank
Guarantee, SVG Diamond Holdings II Limited in the case of the SVG
Diamond Bank Guarantee II, or in the case of any other Diamond
Bank Guarantee such other beneficiaries as may be approved by the
Majority Lenders and stated in a Further Diamond Bank Guarantee
Letter or, in the case of any Bank Guarantee other than the
Diamond Bank Guarantees, such other beneficiaries as may be
approved by the Majority Lenders.
7.5 Currency and amount
The currency specified in the Utilisation Request must be euro.
7.6 Issue of the Bank Guarantee
(a) If the conditions set out in this Agreement have been met, the
Issuing Bank shall issue one or more Bank Guarantees 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 and
on the proposed Utilisation Date:
(i) in the case of a Bank Guarantee renewed in accordance with
Clause 7.7 (Renewal of a Bank Guarantee), 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
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(ii) the Repeating Representations to be made by the Borrower are
true in all material respects.
(c) The amount of each Lender's participation in a Bank Guarantee
will be equal to the proportion borne by its Available Commitment
to the Available Facility immediately prior to the issue of the
Bank Guarantee.
7.7 Renewal of a Bank Guarantee
(a) The Borrower may request any Bank Guarantee issued on its behalf
be renewed by delivery to the Agent of a Renewal Request by the
Specified Time.
(b) The Finance Parties shall treat any Renewal Request in the same
way as a Utilisation Request for a Bank Guarantee except that the
conditions set out in paragraphs (d), (f) and (g) of Clause 7.4
(Completion of a Utilisation Request for Bank Guarantee) shall
not apply.
(c) The terms of each renewed Bank Guarantee shall be the same as
those of the relevant Bank Guarantee immediately prior to its
renewal, except that:
(i) its amount may be less than the amount of the Bank Guarantee
immediately prior to its renewal; and
(ii) its Term shall start on the date which was the Expiry Date
of the Bank Guarantee 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 Bank Guarantee pursuant
to a Renewal Request.
8. BANK GUARANTEE
8.1 Immediately payable
(a) If the Bank Guarantee or any amount outstanding under the Bank
Guarantee becomes payable and no claim (as defined in paragraph
(a) of Clause 8.4 (Claims under a Bank Guarantee)) has been made
in respect of the Bank Guarantee or amount outstanding under the
Bank Guarantee, the Borrower shall repay or prepay that amount
immediately.
(b) Within 5 Business Days of the Borrower becoming aware that the
Current Outstanding Amount is equal to or greater than the Total
Aggregate Amount (as defined in the SVG Diamond Bank Guarantee),
the Borrower will pay the Callable Subscription Monies in respect
of all of its PEI Preferred Equity Shares to the issuer in
accordance with article 2.5(b) of the Memorandum and Articles of
Association of SVG Diamond Holdings Limited.
(c) Within 5 Business Days of the Borrower becoming aware that the
Current Outstanding Amount II is equal to or greater than the
Total Aggregate Amount (as defined in the SVG Diamond Bank
Guarantee II), the Borrower will pay the Callable Subscription
Monies II in respect of all of its PEI Preferred Equity Shares II
to the issuer in accordance with article 2.5(b) of the Memorandum
and Articles of Association of SVG Diamond Holdings II Limited.
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(d) In the case of any Further Diamond Bank Guarantee, the Borrower
shall comply with the requirements set out in the Further Diamond
Bank Guarantee Letter in relation to such guarantee.
8.2 Assignments and transfers
(a) Notwithstanding any other provision of this Agreement, the
consent of the Issuing Bank is required for any assignment or
transfer of any Lender's rights and/or obligations under the
Facility.
(b) Without prejudice to Clause 25.2(f), if paragraph (a) and the
conditions and procedure for transfer specified in Clause 25
(Changes to the Lenders) are satisfied, then on the Transfer Date
the Issuing Bank and the New Lender shall acquire the same rights
and assume the same obligations between themselves as they would
have acquired and assumed had the New Lender been an Original
Lender with the rights and/or obligations acquired or assumed by
it as a result of the transfer and to that extent the Issuing
Bank and the Existing Lender shall each be released from further
obligations to each other under this Agreement.
8.3 Fee payable in respect of the Bank Guarantees
(a) The Borrower shall pay to the Agent (for the account of each
Lender) a bank guarantee fee in euros computed at the same rate
as the Margin on the outstanding amount of the Bank Guarantee
less the amount of cash cover (if any) provided by the Borrower
in respect of all or any part of any Bank Guarantee (save that in
relation to the SVG Diamond Bank Guarantee or, as the case may
be, the SVG Diamond Bank Guarantee II, the bank guarantee fee in
euros shall be the aggregate of (A) an amount computed at the
same rate as the Margin on the Current Outstanding Amount or, as
the case may be, the Current Outstanding Amount II less the
amount of cash cover (if any) provided by the Borrower in respect
of all or any part of that Bank Guarantee and (B) an amount
computed at the same rate as the commitment fee set out in
paragraph (a) of Clause 14.1 (Commitment fee) on the difference
between the Total Aggregate Amount (as defined in the relevant
Diamond Bank Guarantee) and the Current Outstanding Amount or, as
the case may be, the Current Outstanding Amount II and in
relation to any Further Diamond Bank Guarantee, the bank
guarantee fee shall be calculated in the manner set out in the
Further Diamond Bank Guarantee Letter in relation to such
guarantee) for the period from the issue of that Bank Guarantee
until its Expiry Date provided that if at any time cash cover has
been provided in respect of all or any part of any Bank
Guarantee, an additional bank guarantee fee shall be payable at
the rate of 0.15 per cent. per annum in respect of the whole or
that part (as the case may be) of that Bank Guarantee for which
cash cover is provided. This fee shall be distributed according
to each Lender's Guarantee Proportion of the Bank Guarantee.
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(b) The accrued bank guarantee fee on the Bank Guarantee shall be
payable on the last day of each successive period of six months
(or such shorter period as shall end on the Expiry Date for the
Bank Guarantee) starting on the date of issue of the Bank
Guarantee.
(c) If the Borrower cash covers all or any part of the Bank Guarantee
then:
(i) the bank guarantee fee payable for the account of each
Lender shall continue to be payable until the expiry of the
Bank Guarantee; and
(ii) the Borrower will be entitled to withdraw the interest
accrued on the cash cover (which shall accrue at the market
rate (LIBID)) to pay those fees on each date on which it is
required to pay bank guarantee fee on any Bank Guarantee or,
if the Borrower and the Lenders agree, the bank at which the
deposit is held shall be entitled to pay interest accrued on
the cash cover net of the additional bank guarantee fee
which is due and payable in respect of the cash cover
provided thereby satisfying the obligation of the Borrower
to pay such guarantee fee. Any such amount deducted by way
of netting from the interest due shall be distributed
according to each Lender's Guarantee Proportion of the Bank
Guarantee and at the times set out in paragraph (b) of
Clause 8.3.
8.4 Claims under a Bank Guarantee
(a) The Borrower irrevocably and unconditionally authorises the
Issuing Bank to pay any claim made or purported to be made under
the Bank Guarantee requested by it and which appears on its face
to be in order (a "claim").
(b) The Borrower shall immediately on demand pay to the Agent for the
Issuing Bank an amount equal to the amount of any claim under the
Bank Guarantee.
(c) The 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 the Borrower under this Clause 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.
8.5 Indemnities
(a) The 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 or to the extent that a cost,
loss or liability for or on account of Tax is compensated for by
a payment under Clause 15.3(a) (or would have been compensated
for by such a payment but was not so compensated solely because
one or more of the exclusions in Clause 15.3(b) applied)) in
acting as the Issuing Bank under the Bank Guarantee.
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(b) Each Lender shall (according to its Guarantee 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 the Bank
Guarantee (unless the Issuing Bank has been reimbursed by the
Borrower pursuant to a Finance Document).
(c) The Borrower shall immediately on demand reimburse any Lender for
any payment it makes to the Issuing Bank under this Clause 8.5
(Indemnities) in respect of the Bank Guarantee.
(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 respect of the Bank Guarantee,
regardless of any intermediate payment or discharge in whole or
in part.
(e) The obligations of any Lender or the 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, the
Borrower, any beneficiary under the Bank Guarantee or other
person;
(ii) the release of the Borrower or any other person under the terms
of any composition or arrangement;
(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, the Borrower, any
beneficiary under the Bank Guarantee 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 the
Borrower, any beneficiary under the Bank Guarantee or any other
person;
(v) any amendment (however fundamental) or replacement of a Finance
Document, the Bank Guarantee or any other document or security;
(vi) any unenforceability, illegality or invalidity of any obligation
of any person under any Finance Document, the Bank Guarantee or
any other document or security; or
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(vii) any insolvency or similar proceedings.
8.6 Rights of contribution
The Borrower will not be entitled to any right of contribution or
indemnity from any Finance Party in respect of any payment it may make
under this Clause 8.
8.7 Role of the Issuing Bank
(a) Nothing in this Agreement constitutes the Issuing Bank as a
trustee or fiduciary of any other person.
(b) The Issuing Bank shall not be bound to account to any Lender for
any sum or the profit element of any sum received by it for its
own account.
(c) 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.
(d) 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.
(e) The Issuing Bank may engage, pay for and rely on the advice or
services of any lawyers, accountants, surveyors or other experts.
(f) The Issuing Bank may act in relation to the Finance Documents
through its personnel and agents.
(g) The Issuing Bank is not responsible for:
(i) the adequacy, accuracy and/or completeness of any
information (whether oral or written) provided by the Agent,
any Party (including itself), or 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; or
(ii) the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document or any other
agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any
Finance Document.
8.8 Exclusion of liability
(a) Without limiting paragraph (b) below, the Issuing Bank will not
be liable for any action taken by it under or in connection with
any Finance Document, unless directly caused by its gross
negligence or wilful misconduct.
(b) No Party (other than the Issuing Bank) may take any proceedings
against any officer, employee or agent of the Issuing Bank in
respect of any claim it might have against 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.
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8.9 Credit appraisal by the Lenders
Without affecting the responsibility of the Borrower for information
supplied by it or on its behalf in connection with any Finance
Document, each Lender confirms to the Issuing Bank 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,
those listed in paragraphs (a) to (d) of Clause 27.15 (Credit
appraisal by the Lenders).
8.10 Address for notices
The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of the Issuing Bank
for any communication or document to be made or delivered under or in
connection with the Finance Documents is that notified in writing to
the Agent prior to the date of this Agreement or any substitute
address or fax number or department or officer as the Issuing Bank may
notify to the Agent by not less than five Business Days' notice.
8.11 Amendments and Waivers
Notwithstanding any other provision of this Agreement, an amendment or
waiver which relates to the rights or obligations of the Issuing Bank
may not be effected without the consent of the Issuing Bank.
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SECTION 4
REPAYMENT, PREPAYMENT AND CANCELLATION
9. REPAYMENT
9.1 The Borrower shall repay each Loan on the last day of its Interest
Period.
9.2 If not otherwise repaid and unless all the Lenders and the Issuing
Bank in their absolute discretion otherwise agree, the Borrower
will repay each Bank Guarantee on the Termination Date by providing
cash cover.
10. PREPAYMENT AND CANCELLATION
10.1 Illegality
(a) If, at any time, it is or will become unlawful in any
jurisdiction for a Lender to perform any of its obligations as
contemplated by this Agreement or to fund its participation in
any Utilisation:
(i) that Lender shall promptly notify the Agent upon becoming
aware of that event;
(ii) upon the Agent notifying the Borrower, the Commitment of
that Lender will be immediately cancelled; and
(iii)the Borrower shall repay that Lender's participation in the
Utilisation made to it on the last day of the Interest
Period for each Utilisation occurring after the Agent has
notified the Borrower or, if earlier, the date specified by
the Lender in the notice delivered to the Agent (being no
earlier than the last day of any applicable grace period
permitted by law).
(b) If at any time, it is or will become unlawful for the Issuing
Bank to issue or leave outstanding the Bank Guarantee the Issuing
Bank shall promptly notify the Agent upon becoming aware of that
event and upon the Agent notifying the Borrower, the Facility
shall cease to become available for the issue of the Bank
Guarantee.
10.2 Change of control
(a) If a group of persons who at the date hereof do not have control
of the Borrower, acting in concert gains control of the Borrower:
(i) the Borrower shall promptly notify the Agent upon becoming
aware of that event;
(ii) the Borrower and the Lenders shall immediately enter into
negotiations for a period of not more than 60 days with a
view to agreeing whether the Facility shall continue to be
made available and whether any amendment is required;
(iii) if no such agreement is reached within such 60 day period
then:
(A) any Lender by notice to the Agent and to the Borrower
may cancel its Commitment and on receipt by the
Borrower of such a notice, the Borrower shall
immediately repay that Lender's participation in the
Utilisation; and
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(B) if the Majority Lenders so require, the Agent shall, by
not less than 30 days notice to the Borrower, cancel
the Facility and declare all outstanding Utilisations,
together with accrued interest, and all other amounts
accrued under the Finance Documents immediately due and
payable, whereupon the Facility 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 Borrower; or
(B) appoint or remove all, or the majority, of the
directors or other equivalent officers of the Borrower;
or
(C) give directions with respect to the operating and
financial policies of the Borrower which the directors
or other equivalent officers of the Borrower are
obliged to comply with; or
(ii) the holding of more than one-half of the issued share
capital of the Borrower (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).
(iii)For the purpose of paragraph (a) above "acting in concert"
means a group of persons who, pursuant to an agreement or
understanding (whether formal or informal), actively
co-operate, through the acquisition by any of them, either
directly or indirectly of shares in the Borrower, to obtain
or consolidate control of the Borrower.
10.3 Voluntary cancellation
The Borrower may, if it gives the Agent not less than five 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
EUR1,000,000) of the Available Facility. Any cancellation under this
Clause 10.3 shall reduce the Commitments of the Lenders rateably.
10.4 Voluntary prepayment of Utilisations
The Borrower may, if it gives the Agent not less than five Business
Days' (or such shorter period as the Majority Lenders may agree) prior
notice, prepay the whole or any part of a Utilisation (but, if in
part, being an amount that reduces the Base Currency Amount of the
Utilisation by a minimum amount of EUR1,000,000).
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10.5 Right of repayment and cancellation in relation to a single Lender
(a) If:
(i) any sum payable to any Lender by the Borrower is, or will
be, required to be increased under paragraph (d) of Clause
15.2 (Tax gross-up); or
(ii) any Lender claims indemnification from the Borrower under
Clause 15.3 (Tax indemnity) or Clause 16.1 (Increased
costs),
the Borrower may, whilst the circumstance giving rise to the
requirement or indemnification continues, give the Agent notice
of cancellation of the Commitment of that Lender and its
intention to procure the repayment of that Lender's participation
in the Utilisations.
(b) On receipt of a notice referred to in paragraph (a) above, the
Commitment of that Lender shall immediately be reduced to zero.
(c) On the last day of each Interest Period which ends after the
Borrower has given notice under paragraph (a) above (or, if
earlier, the date specified by the Borrower in that notice), the
Borrower shall repay that Lender's participation in that
Utilisation.
10.6 Restrictions
(a) Any notice of cancellation or prepayment given by any Party under
this Clause 10.6 shall be irrevocable and, unless a contrary
indication appears in this Agreement, shall specify the date or
dates upon which the relevant cancellation or prepayment is to be
made and the amount of that cancellation or prepayment.
(b) Any prepayment under this Agreement shall be made together with
accrued interest on the amount prepaid and, subject to any Break
Costs, without premium or penalty.
(c) Unless a contrary indication appears in this Agreement, any part
of the Facility which is prepaid may be reborrowed in accordance
with the terms of this Agreement.
(d) The Borrower shall not repay or prepay all or any part of the
Utilisation or cancel all or any part of the Commitments except
at the times and in the manner expressly provided for in this
Agreement.
(e) No amount of the Total Commitments cancelled under this Agreement
may be subsequently reinstated.
(f) If the Agent receives a notice under this Clause 10.6 it shall
promptly forward a copy of that notice to the Borrower or the
affected Lender, as appropriate.
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SECTION 5
COSTS OF UTILISATION
11. INTEREST
11.1 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 or, in relation to any Loan in euro, EURIBOR; and
(c) Mandatory Cost, if any.
11.2 Payment of interest
The Borrower shall pay accrued interest on that Loan on the last day
of each Interest Period, (and, if the Interest Period is longer than
six Months, on the dates falling at six Month intervals after the
first day of the Interest Period).
11.3 Default interest
(a) If the Borrower fails to pay any amount payable by it under a
Finance Document on its due date, interest shall accrue on the
overdue amount from the due date up to the date of actual payment
(both before and after judgment) at a rate one per cent. higher
than the rate which would have been payable if the overdue amount
had, during the period of non-payment, constituted a Loan in the
currency of the overdue amount for successive Interest Periods,
each of a duration selected by the Agent (acting reasonably). Any
interest accruing under this Clause 11.3 shall be immediately
payable by the Borrower on demand by the Agent.
(b) Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount at the end of each Interest
Period applicable to that overdue amount but will remain
immediately due and payable.
11.4 Notification of rates of interest
The Agent shall promptly notify the Lenders and the Borrower of the
determination of a rate of interest under this Agreement.
12. INTEREST PERIODS
12.1 Selection of Interest Periods
(a) Each Loan shall have an Interest Period which commences on the
Utilisation Date and ends on the first Quarter Date to fall after
the relevant Utilisation Date provided that if as a result any
Loan would have an Interest Period of less than one week's
duration the Interest Period for such Loan shall end on the
second Quarter Date falling after the relevant Utilisation Date.
(b) An Interest Period for a Loan shall not extend beyond the
Termination Date.
(c) A Loan has one Interest Period only.
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12.2 Non-Business Days
If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period will instead end on the next
Business Day in that calendar month (if there is one) or the preceding
Business Day (if there is not).
13. CHANGES TO THE CALCULATION OF INTEREST
13.1 Absence of quotations
Subject to Clause 13.2 (Market disruption), if LIBOR or, if
applicable, EURIBOR is to be determined by reference to the Reference
Banks but a Reference Bank does not supply a quotation by the
Specified Time on the Quotation Day, the applicable LIBOR or EURIBOR
shall be determined on the basis of the quotations of the remaining
Reference Banks.
13.2 Market disruption
(a) If a Market Disruption Event occurs in relation to a Loan for any
Interest Period, then the rate of interest on each Lender's share
of that Loan for the Interest Period shall be the rate per annum
which is the sum of:
(i) the Margin;
(ii) the rate notified to the Agent by that Lender as soon as
practicable and in any event before interest is due to be
paid in respect of that Interest Period, to be that which
expresses as a percentage rate per annum the cost to that
Lender of funding its participation in that Loan from
whatever source it may reasonably select; and
(iii) the Mandatory Cost, if any, applicable to that Lender's
participation in the Loan.
(b) In this Agreement "Market Disruption Event" means:
(i) at or about noon on the Quotation Day for the relevant
Interest Period the Screen Rate is not available and none or
only one of the Reference Banks supplies a rate to the Agent
to determine LIBOR or, if applicable, EURIBOR for the
relevant currency and Interest Period; or
(ii) before close of business in London on the Quotation Day for
the relevant Interest Period, the Agent receives
notifications from a Lender or Lenders (whose participations
in a Loan exceed 40 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 or, if applicable,
EURIBOR.
13.3 Alternative basis of interest or funding
(a) If a Market Disruption Event occurs and the Agent or the Borrower
so requires, the Agent and the Borrower shall enter into
negotiations (for a period of not more than thirty days) with a
view to agreeing a substitute basis for determining the rate of
interest.
(b) Any alternative basis agreed pursuant to paragraph (a) above
shall, with the prior consent of all the Lenders and the
Borrower, be binding on all Parties.
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13.4 Break Costs
(a) The Borrower shall, within three Business Days of demand by a
Finance Party, pay to that Finance Party its Break Costs
attributable to all or any part of a Loan or Unpaid Sum being
paid by the Borrower on a day other than the last day of an
Interest Period for that Loan or Unpaid Sum.
(b) Each Lender shall, as soon as reasonably practicable after a
demand by the Agent, provide a certificate confirming the amount
of its Break Costs for any Interest Period in which they accrue.
14. FEES
14.1 Commitment fee
(a) The Borrower shall pay to the Agent (for the account of each
Lender) a fee in the Base Currency computed at the rate of 0.60
per cent. per annum on that Lender's Available Commitment for the
Availability Period.
(b) The accrued commitment fee is payable on the last day of each
successive period of three Months which ends during the
Availability Period, on the last day of the Availability Period
and on the cancelled amount of the relevant Lender's Commitment
at the time the cancellation is effective, provided that, for the
purpose of calculating this fee only, each Lender's Commitment
shall be deemed to have increased on 30 June 2006 pursuant to
paragraph (b) of Clause 2.3 (Facility Increase) as if the
Facility Increase had occurred on that date, whether or not the
Facility Increase has occurred pursuant to paragraph (a) of
Clause 2.3 (Facility Increase).
14.2 Utilisation Fee
(a) The Borrower shall pay to the Agent (for the account of each
Lender) a utilisation fee in the Base Currency computed as
follows:
(i) 0.25% per annum on the aggregate Base Currency Amount of the
Utilisations outstanding hereunder for each day on which
they are equal to or greater than 50%, but less than 75%, of
the Total Commitments; and
(ii) 0.50% per annum on the aggregate Base Currency Amount
of the Utilisations outstanding hereunder for each day
on which they are equal to or greater than 75% of the
Total Commitments.
provided that, for these purposes, the Base Currency Amount of
the Utilisations in respect of the SVG Diamond Bank Guarantee or,
as the case may be, the SVG Diamond Bank Guarantee II shall be
deemed to be equal to the then Current Outstanding Amount or, as
the case may be, the Current Outstanding Amount II less the
amount of cash cover (if any) provided by the Borrower in respect
of all or any part of such Bank Guarantee and for these purposes
the Base Currency Amount of the Utilisations in respect of any
Further Diamond Bank Guarantee shall be deemed to be equal to the
then Further Current Outstanding Amount (as defined in the
Further Diamond Bank Guarantee Letter relating to such Further
Diamond Bank Guarantee) less the amount of cash cover (if any)
provided by the Borrower in respect of all or any part of such
Further Diamond Bank Guarantee.
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(b) The accrued utilisation fee, if any, shall be payable in arrear
on the last day of each successive period of three months which
ends after the date of this Agreement and on the Termination
Date.
14.3 Participation Fee
The Borrower shall pay a participation fee to each Joint Lead Arranger
in the amount and at the times agreed in the applicable Fee Letter
between the Borrower and such Joint Lead Arranger.
14.4 Agency fee
The Borrower shall pay to the Agent (for its own account) an agency
fee in the amount and at the times agreed in a Fee Letter.
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SECTION 6
ADDITIONAL PAYMENT OBLIGATIONS
15. TAX GROSS UP AND INDEMNITIES
15.1 Definitions
(a) In this Clause 15:
"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 (on the date a payment
falls due) is within the charge to United Kingdom corporation tax
in respect of, and is beneficially entitled to, that payment and
is receiving that payment in respect of an advance made by a
person that was a bank (as defined for the purpose of section 349
of the Taxes Act in section 840A of the Taxes Act) at the time
that advance was made.
"Tax Credit" means a credit or relief against, remission in, or
repayment of, any Tax.
"Tax Deduction" means a deduction or withholding for or on
account of Tax from a payment under a Finance Document.
"Tax Payment" means an increased payment made by the Borrower to
a Finance Party under Clause 15.2 (Tax gross-up) or a payment
under Clause 15.3 (Tax indemnity).
(b) In this Clause 15 a reference to "determines" or "determined"
means a determination made in the absolute discretion of the
person making the determination.
15.2 Tax gross-up
(a) The Borrower shall make all payments to be made by it without any
Tax Deduction, unless a Tax Deduction is required by law.
(b) Each Lender represents and warrants as at the date of this
Agreement (or at the date on which it becomes a party to this
Agreement) to the Borrower that were a payment under a Finance
Document to be made to it on such date it would be a Qualifying
Lender. This representation shall be deemed to be repeated on the
first day of each Interest Period by reference to such day. The
Borrower may request a Lender to confirm its status as a
Qualifying Lender. Each Lender agrees to provide such
confirmation as soon as reasonably practicable.
(c) The Borrower or a Lender shall promptly upon becoming aware that
the Borrower must make a Tax Deduction (or that there is any
change in the rate or the basis of a Tax Deduction) notify the
Agent accordingly. If the Agent receives such notification from a
Lender it shall notify the Borrower.
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(d) If a Tax Deduction is required by law to be made by the Borrower
in one of the circumstances set out in paragraph (e) below, the
amount of the payment due from the Borrower 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.
(e) The circumstances referred to in paragraph (d) above are where a
person entitled to the payment:
(i) is the Agent or a Joint Lead Arranger (in its capacity as
such); or
(ii) is a Qualifying Lender; or
(iii)is a Lender which is not or has ceased to be a Qualifying
Lender to the extent that this altered status results from
any change after the date on which it became a Lender under
this Agreement in (or in the official interpretation,
administration, or official application of) any United
Kingdom law or any published practice or published
concession of any United Kingdom taxing authority.
(f) If the Borrower is required to make a Tax Deduction, the Borrower
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.
(g) Within thirty days of making either a Tax Deduction or any
payment required in connection with that Tax Deduction, the
Borrower shall deliver to the Agent for the Finance Party
entitled to the payment evidence reasonably satisfactory to that
Finance Party that the Tax Deduction has been made or (as
applicable) any appropriate payment paid to the relevant taxing
authority.
15.3 Tax indemnity
(a) The Borrower shall (within three Business Days of demand by the
Agent) pay to a Protected Party an amount equal to the loss,
liability or cost which that Protected Party determines will be
or has been (directly or indirectly) suffered for or on account
of Tax by that Protected Party on or by reference to any sum
payable or deemed payable to or by it under 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,
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if that Tax is imposed on or calculated by reference
to the net income, profits or gains of that Finance
Party; or
(ii) to the extent that the loss, liability or cost is
attributable to a Tax Deduction required by law to be made
by the Borrower and in relation to which the Borrower has
complied with its obligations, if any, in relation to that
Tax Deduction under the provisions of Clause 15.2(d) above.
(c) A Protected Party making, or intending to make, a claim pursuant
to paragraph (a) above shall promptly notify the Agent of the
event which will give, or has given, rise to the claim, following
which the Agent shall notify the Borrower.
(d) A Protected Party shall, on receiving a payment from the Borrower
under this Clause 15.3, notify the Agent.
15.4 Tax Credit
If the Borrower 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 Borrower 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 circumstances
giving rise to the Tax Payment not occurred.
15.5 Stamp taxes
The Borrower shall pay and, within three Business Days of demand,
indemnify each Finance Party against any cost, loss or liability that
Finance Party incurs in relation to all stamp duty, registration and
other similar Taxes payable in respect of any Finance Document but not
for the avoidance of doubt in respect of any transfer of a Finance
Party's rights under a Finance Document.
15.6 Value added tax
(a) All consideration payable under a Finance Document by the
Borrower to a Finance Party shall be deemed to be exclusive of an
amount in respect of any VAT. If VAT is chargeable in respect of
any such consideration, upon receipt of an invoice the Borrower
shall pay to the Finance Party (in addition to paying the
consideration) an amount equal to the amount of the VAT.
(b) Where a Finance Document requires the Borrower to reimburse a
Finance Party for any costs or expenses, the Borrower shall also
at the same time pay and indemnify that Finance Party against all
amounts in respect of VAT incurred by that Finance Party in
respect of the costs or expenses save to the extent that that
Finance Party (or another member of its group for VAT purposes)
is entitled to repayment or credit for such amounts in respect of
VAT.
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16. INCREASED COSTS
16.1 Increased costs
(a) Subject to Clause 16.3 (Exceptions) the Borrower shall, within
three Business Days of a demand by the Agent, pay for the account
of a Finance Party the amount of any Increased Costs incurred by
that Finance Party or any of its Affiliates as a result of (i)
the introduction of or any change in (or in the interpretation or
application of) any law or regulation or (ii) compliance with any
law or regulation made after the date of this Agreement.
(b) In this Agreement "Increased Costs" means:
(i) a reduction in the rate of return from the Facility or on a
Finance Party's (or its Affiliate's) overall capital;
(ii) an additional or increased cost; or
(iii)a reduction of any amount due and payable under any Finance
Document,
which is incurred or suffered by a Finance Party or any of its
Affiliates to the extent that it is attributable to that Finance
Party having entered into its Commitment or funding or performing
its obligations under any Finance Document.
16.2 Increased cost claims
(a) A Finance Party intending to make a claim pursuant to Clause 16.1
(Increased costs) shall notify the Agent of the event giving rise
to the claim, following which the Agent shall promptly notify the
Borrower.
(b) Each Finance Party shall, as soon as practicable after a demand
by the Agent, provide a certificate confirming the amount of its
Increased Costs.
16.3 Exceptions
(a) Clause 16.1 (Increased costs) does not apply to the extent any
Increased Cost is:
(i) Tax on the net profits, income or gains of a Finance Party;
(ii) attributable to a Tax Deduction required by law to be made
by the Borrower;
(iii)compensated for by Clause 15.3 (Tax indemnity) (or would
have been compensated for under Clause 15.3 (Tax indemnity)
but was not so compensated solely because one of the
exclusions in paragraph 15.3(b) of Clause 15.3 (Tax
indemnity) applied);
(iv) compensated for by the payment of the Mandatory Cost; or
(v) attributable to the breach by the relevant Finance Party or
its Affiliates of any law or regulation.
(b) In this Clause 16.3, a reference to a "Tax Deduction" has the
same meaning given to the term in Clause 15.1 (Definitions).
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17. OTHER INDEMNITIES
17.1 Currency indemnity
(a) If any sum due from the Borrower 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 the Borrower;
(ii) obtaining or enforcing an order, judgment or award in
relation to any litigation or arbitration proceedings,
the Borrower shall as an independent obligation, within three
Business Days of demand, indemnify each Finance Party to whom
that Sum is due against any cost, loss or liability arising out
of or as a result of the conversion including any discrepancy
between (A) the rate of exchange used to convert that Sum from
the First Currency into the Second Currency and (B) the rate or
rates of exchange available to that person at the time of its
receipt of that Sum.
(b) The Borrower 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.
17.2 Other indemnities
The Borrower shall, within three Business Days of demand, indemnify
each Lender against any cost, loss or liability properly incurred by
that Lender as a result of:
(a) the occurrence of any Event of Default;
(b) a failure by the Borrower to pay any amount due under a Finance
Document on its due date, including without limitation, any cost,
loss or liability arising as a result of Clause 29 (Sharing among
the Lenders);
(c) funding, or making arrangements to fund, its participation in a
Utilisation requested by a Borrower in a Utilisation Request but
not made by reason of the operation of any one or more of the
provisions of this Agreement (other than by reason of default or
negligence by that Lender alone); or
(d) a Utilisation (or part of a Utilisation) not being prepaid in
accordance with a notice of prepayment given by the Borrower.
17.3 Indemnity to the Agent
The Borrower shall promptly indemnify the Agent against any cost, loss
or liability properly incurred by the Agent (acting reasonably) as a
result of:
(a) investigating any event which it reasonably believes is a
Default; or
(b) entering into or performing any foreign exchange contract for the
purposes of Clause 6 (Optional Currencies); or
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(c) acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised.
18. MITIGATION BY THE LENDERS
18.1 Mitigation
(a) Each Finance Party shall, in consultation with the Borrower, take
all reasonable steps to mitigate any circumstances which arise
and which would result in any amount becoming payable under, or
cancelled pursuant to, any of Clause 10.1 (Illegality), Clause 15
(Tax Gross-Up and Indemnities) or Clause 16 (Increased costs)
including (but not limited to) transferring its rights and
obligations under the Finance Documents to another Affiliate or
Facility Office.
(b) Paragraph (a) above does not in any way limit the obligations of
the Borrower under the Finance Documents.
18.2 Limitation of liability
(a) The Borrower shall indemnify each Finance Party for all costs and
expenses reasonably incurred by that Finance Party as a result of
steps taken by it under Clause 18.1 (Mitigation).
(b) A Finance Party is not obliged to take any steps under Clause
18.1 (Mitigation) if, in the opinion of that Finance Party
(acting reasonably), to do so might be prejudicial to it.
19. COSTS AND EXPENSES
19.1 Transaction expenses
The Borrower shall promptly on demand pay the Agent and the Joint Lead
Arrangers the amount of all costs and expenses (including legal fees)
reasonably incurred by any of them in connection with the negotiation,
preparation, printing and execution of:
(a) this Agreement and any other documents referred to in this
Agreement; and
(b) any other Finance Documents executed after the date of this
Agreement.
19.2 Amendment costs
If (a) the Borrower requests an amendment, waiver or consent or (b) an
amendment is required pursuant to Clause 30.9 (Change of currency),
the Borrower shall, within three Business Days of demand, reimburse
the Agent for the amount of all costs and expenses (including legal
fees) reasonably incurred by the Agent in responding to, evaluating,
negotiating or complying with that request or requirement.
19.3 Enforcement costs
The Borrower shall, within three Business Days of demand, pay to each
Finance Party the amount of all costs and expenses (including legal
fees) incurred by that Finance Party in connection with the
enforcement of, or the preservation of any rights under, any Finance
Document.
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SECTION 7
REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
20. REPRESENTATIONS
The Borrower makes the representations and warranties set out in this
Clause 20 to each Finance Party on the date of this Agreement.
20.1 Status
(a) It is a corporation duly incorporated and validly existing under
the law of its jurisdiction of incorporation.
(b) It and each of its Subsidiaries (other than, for the avoidance of
doubt, Investee Companies) has the power to own its assets and
carry on its business as it is being conducted.
20.2 Binding obligations
The obligations expressed to be assumed by it in each Finance Document
are, subject to any general principles of law as at the date of this
Agreement limiting its obligations which are specifically referred to
in any legal opinion delivered pursuant to Clause 4 (Conditions of
Utilisation), legal, valid, binding and enforceable obligations.
20.3 Non-conflict with other obligations
The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents to which it is a party do not
and will not conflict with:
(a) any law or regulation applicable to it;
(b) its constitutional documents; or
(c) any agreement or instrument binding upon it or any of its assets.
20.4 Power and authority
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery
of, the Finance Documents to which it is a party and the transactions
contemplated by those Finance Documents.
20.5 Validity and admissibility in evidence
All Authorisations required or desirable:
(a) to enable it lawfully to enter into, exercise its rights and
comply with its obligations in the Finance Documents to which it
is a party; and
(b) to make the Finance Documents to which it is a party admissible
in evidence in its jurisdiction of incorporation have been
obtained or effected and are in full force and effect.
20.6 Governing law and enforcement
(a) The choice of English law as the governing law of the Finance
Documents will be recognised and enforced in its jurisdiction of
incorporation.
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(b) Any judgment obtained in England in relation to a Finance
Document will be recognised and enforced in its jurisdiction of
incorporation.
20.7 Deduction of Tax
It is not required under the law of its jurisdiction of incorporation
to make any deduction for or on account of Tax from any payment it may
make to a Qualifying Lender under any Finance Document.
20.8 No filing or stamp taxes
Under the law of its jurisdiction of incorporation it is not necessary
that the Finance Documents be filed, recorded or enrolled with any
court or other authority in that jurisdiction or that any stamp,
registration or similar Tax be paid on or in relation to the Finance
Documents or the transactions contemplated by the Finance Documents.
20.9 No default
(a) No Event of Default is continuing or might reasonably be expected
to result from the making of any Utilisation.
(b) No other event or circumstance is outstanding which constitutes a
default under any other agreement or instrument which is binding
on it or any of its Subsidiaries (other than Investee Companies)
or to which its (or its Subsidiaries' (other than Investee
Companies')) assets are subject which might have a Material
Adverse Effect.
20.10 No misleading information
All written information supplied by the Borrower is true, complete and
accurate in all material respects as at the date it was given and at
such date was not misleading in any material respect.
20.11 Financial statements
(a) Its Original Financial Statements were prepared in accordance
with GAAP consistently applied.
(b) Its Original Financial Statements fairly represent the
consolidated financial condition and operations of the Group
during the relevant financial year or half-year.
(c) There has been no material adverse change in its business or
financial condition (or the business or consolidated financial
condition of the Group) since the date to which the Original
Financial Statements were drawn up.
20.12 Pari passu ranking
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law
applying to companies generally.
20.13 No proceedings pending or threatened
No litigation, arbitration or administrative proceedings of or before
any court, arbitral body or agency which have a reasonable prospect of
being adversely determined and, if adversely determined, might
reasonably be expected to have a Material Adverse Effect have (to the
best of its knowledge and belief) been started or threatened against
it or any of its Subsidiaries (other than any Investee Company).
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20.14 Repetition
The Repeating Representations are deemed to be made by the Borrower
(by reference to the facts and circumstances then existing) on the
date of each Utilisation Request and the first day of each Interest
Period and in the case of Clause 20.9 (No default) and Clause 20.13
(No proceedings pending or threatened) such representations shall be
deemed made as if paragraph (a) of the definition of "Material Adverse
Effect" had been deleted.
21. INFORMATION UNDERTAKINGS
The undertakings in this Clause 21 remain in force from the date of
this Agreement for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force.
21.1 Financial statements
The Borrower shall supply to the Agent in sufficient copies for all
the Lenders:
(a) as soon as the same become available, but in any event within 180
days after the end of each of its financial years its audited
consolidated financial statements for that financial year;
(b) as soon as the same become available, but in any event within 90
days after the end of each half of each of its financial years
its consolidated financial statements for that financial half
year; and
(c) monthly management valuations of the investment portfolio on the
basis agreed in writing with the Joint Lead Arrangers prior to
the date hereof and monthly details of its then current
liabilities.
21.2 Compliance Certificate and Management Portfolio Valuations
(a) The Borrower shall supply to the Agent, on the last day of each
quarter of each of its financial years and with each set of
financial statements delivered pursuant to paragraph (a) or (b)
of Clause 21.1 (Financial statements) a Compliance Certificate
setting out (in reasonable detail) computations as to compliance
with Clause 22 (Financial Covenants) as at such date or, as the
case may be, the date as at which those financial statements were
drawn up and setting out the management portfolio valuation of
the investment portfolio pursuant to paragraph (c) of Clause 21.1
(Financial statements), or the valuation determined pursuant to
Clause 22.4 (Valuation) as at the end of the first half of each
financial year or the end of each financial year, as the case may
be.
(b) Each Compliance Certificate shall be signed by the company
secretary and the Chief Financial Officer of the Borrower.
(c) If the Majority Lenders believe in good faith and based on
reasonable grounds that any financial statements or calculations
provided pursuant to this Clause 21 are inaccurate or incomplete
the Agent may seek verification of such financial statements or
calculations from the Borrower's auditors. The costs and expenses
of any such action shall be for the account of the Borrower. The
Agent may not seek such verification unless there are amounts
outstanding under this Agreement or a Utilisation Request has
been delivered to the Agent.
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21.3 Requirements as to financial statements
(a) Each set of financial statements delivered pursuant to Clause
21.1 (Financial statements) shall be certified by a director of
the Borrower as fairly representing its financial condition as at
the date as at which those financial statements were drawn up.
(b)
(i) The Borrower shall procure that each set of financial
statements delivered pursuant to Clause 21.1 (Financial
statements) is prepared using GAAP and accounting practices
and financial reference periods consistent with those
applied in the preparation of the Original Financial
Statements for the Borrower unless, in relation to any set
of financial statements, it notifies the Agent that there
has been a change in GAAP or the accounting practices or
reference periods and its auditors deliver to the Agent:
(A) a description of any change necessary for those
financial statements to reflect the GAAP, accounting
practices and reference periods upon which that its
Original Financial Statements were prepared; and
(B) sufficient information, in form and substance as may be
reasonably required by the Agent, to enable the Lenders
to determine whether Clause 22 (Financial Covenants)
has been complied with and make an accurate comparison
between the financial position indicated in those
financial statements and the Original Financial
Statements.
(ii) If the Borrower notifies the Agent of a change in accordance
with paragraph (i) above then the Borrower and the Agent
shall enter into negotiations in good faith with a view to
agreeing:
(A) whether or not the change might result in any material
alteration in the commercial effect of any of the terms
of this Agreement; and
(B) 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.
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.
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21.4 Information: miscellaneous
The Borrower shall supply to the Agent (in sufficient copies for all
the Lenders, if the Agent so requests):
(a) all documents dispatched by the Borrower to its shareholders or
its creditors generally at the same time as they are dispatched;
(b) promptly upon becoming aware of them, the details of any
litigation, arbitration or administrative proceedings which are
current, threatened or pending against any member of the Group,
and which might, if adversely determined, have a Material Adverse
Effect;
(c) promptly, such further information regarding the financial
condition, business and operations of any member of the Group as
any Finance Party (through the Agent) may reasonably request;
(d) details of the amount of any Callable Subscription Monies or, as
the case may be, the Callable Subscription Monies II paid by the
Borrower or of any disposals or other dealings by the Borrower in
any PEI Preferred Equity Shares or, as the case may be, PEI
Preferred Equity Shares II in respect of which there are Callable
Subscription Monies or, as the case may be, Callable Subscription
Monies II to enable the Lenders to calculate the Current
Outstanding Amount and the Current Outstanding Amount II; and
(e) in the event of any Further Diamond Bank Guarantee is issued
hereunder, details of such information as is required under the
Further Diamond Bank Guarantee Letter which relates to such
guarantee.
21.5 Notification of default
(a) The Borrower shall notify the Agent of any Default (and the
steps, if any, being taken to remedy it) promptly upon becoming
aware of its occurrence.
(b) Promptly upon a request by the Agent, the Borrower shall supply
to the Agent a certificate signed by two of its directors or
senior officers on its behalf certifying that no Default is
continuing (or if a Default is continuing, specifying the Default
and the steps, if any, being taken to remedy it).
22. FINANCIAL COVENANTS
22.1 Financial definitions
In this Clause 22:
"Cash and Cash Equivalents" means at any time:
(a) cash in hand or on deposit with an acceptable bank and which in
either case is remittable to the United Kingdom;
(b) certificates of deposit maturing within one year after the date
of calculation issued by an acceptable bank;
(c) open market commercial paper:
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(i) for which a recognised trading market exists;
(ii) which matures within one year after the relevant date of
calculation; and
(iii)which has a credit rating of either A-1 by Standard &
Poor's Rating Services, a division of The McGraw Hill
Companies, Inc. (or its successors) or Fitch IBCA, Inc. (or
its successors) or P-1 by ▇▇▇▇▇'▇ Investors Service, Inc.
(or its successors) or, if no rating is available in respect
of the commercial paper, the issuer of which has in respect
of its long-term debt obligations, an equivalent rating;
(d) Sterling bills of exchange eligible for rediscount at the Bank of
England and accepted by an acceptable bank; or
(e) United States treasury bills; or
(f) Euro denominated debt securities issued by the government of an
acceptable member state of the European Union (for these purposes
an "acceptable member state" means any of the United Kingdom,
France, Germany, The Netherlands, Belgium, Spain, Italy, Ireland,
Denmark and Sweden),
in each case to which the Borrower is beneficially entitled at that
time. An "acceptable bank" means any of the Original Lenders,
Schroders & Co. Limited, ING Bank N.V. or any Affiliate of either of
the foregoing or a commercial bank or trust company which has a rating
of A or higher by Standard & Poor's Rating Services, a division of The
McGraw Hill Companies, Inc. (or its successors) or Fitch IBCA, Inc.
(or its successors) or A2 or higher by ▇▇▇▇▇'▇ Investors Service, Inc.
(or its successors).
"Consolidated Gross Borrowings" means at any time the aggregate amount
of all obligations of the Group for or in respect of Indebtedness for
Borrowed Money but excluding any such obligations to any other member
of the Group (and so that no amount shall be included or excluded more
than once) and any obligations subordinated to the obligations of the
Borrower under the Finance Documents on terms satisfactory to the
Agent (acting on the instructions of the Majority Lenders (acting
reasonably)).
"Consolidated Adjusted Investment Assets" means Consolidated
Investment Assets less:
(a) the amount by which the value of an investment by a fund (or any
member of the Group) in any one underlying unquoted Investee
Company exceeds 15% of the Portfolio Value;
(b) the amount by which the value of an investment by a fund (or any
member of the Group) in any one underlying Investee Company which
is quoted on any public stock exchange exceeds 20% of the
Portfolio Value;
(c) the amount by which the value of the twenty largest underlying
investments in Investee Companies exceed 85% of the Portfolio
Value; and
(d) the Borrower's current liabilities.
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For the avoidance of doubt the value of the investment (or part
thereof) shall not be deducted from the portfolio value more than
once.
"Consolidated Investment Assets" means at any time the sum of the
value of the Borrower's investments in Permira Funds or other funds,
or held directly in Investee Companies and including, for the
avoidance of doubt, the Borrower's investment in the Platinum Trust
but for the purpose of determining the value of the Borrower's holding
in P123 this shall be calculated by multiplying the then most recent
book valuation of the Borrower's investment in P123 by 66.67% (the
resultant figure being defined as the "P123 Adjusted Asset Value")),
all Cash and Cash Equivalents held by the Borrower and all other
investments held by the Borrower and approved by the Agent (the latter
being subject to a de minimus requirement that the value thereof does
not exceed 5% of total gross assets of the Borrower).
"P123 Adjusted Asset Value" has the meaning given to such term in the
definition of "Consolidated Investment Assets" in this Clause 22.1.
"Portfolio Value" means the amount of the Consolidated Investment
Assets of the Borrower.
22.2 Financial condition
The Borrower shall ensure that Consolidated Gross Borrowings shall not
be more than 30% of Consolidated Adjusted Investment Assets at any
time,
provided that, the Borrower may on two separate and non-consecutive
occasions for a period each of 12 months allow Consolidated Gross
Borrowings to be greater than 30% of Consolidated Adjusted Investment
Assets, provided that at no time shall Consolidated Gross Borrowings
be more than 40% of Consolidated Adjusted Investment Assets.
22.3 Financial testing
The financial covenant set out in Clause 22.2 (Financial condition)
above shall be tested by reference to each of the financial statements
and/or each Compliance Certificate delivered pursuant to Clause 21.2
(Compliance Certificate and Management Portfolio Valuations) above.
22.4 Valuation
The value of each Investee Company shall be assessed (at the cost of
the Borrower) on a semi-annual and annual basis according to the
International Private Equity and Venture Capital valuation guidelines
published from time to time.
23. GENERAL UNDERTAKINGS
The undertakings in this Clause 23 remain in force from the date of
this Agreement for so long as any amount is outstanding under the
Finance Documents or any Commitment is in force.
23.1 Authorisations
The Borrower shall promptly:
(a) obtain, comply with and do all that is necessary to maintain in
full force and effect; and
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(b) supply certified copies to the Agent of,
any Authorisation required under any law or regulation of its
jurisdiction of incorporation to enable it to perform its obligations
under the Finance Documents and to ensure the legality, validity,
enforceability or admissibility in evidence in its jurisdiction of
incorporation of any Finance Document.
23.2 Compliance with laws
The Borrower shall comply in all respects with all laws to which it
may be subject, if failure so to comply would materially impair its
ability to perform its obligations under the Finance Documents.
23.3 Financial Indebtedness
Neither the Borrower nor any of its Subsidiaries shall incur any
Financial Indebtedness (including, without limitation, guaranteeing
any participating loan notes or convertible bonds issued from time to
time by P123) other than:
(a) unsecured overdraft facilities with any Joint Lead Arranger or
any Affiliate of any Joint Lead Arranger which in aggregate do
not exceed GBP1 million (or its equivalent in other currencies);
(b) Financial Indebtedness under the Private Placement;
(c) Financial Indebtedness which is subordinated to the obligations
of the Borrower under the Finance Documents on terms satisfactory
to the Agent (acting on the instructions of the Majority Lenders
(acting reasonably)); and
(d) any Financial Indebtedness described in paragraph (g) of the
definition of "Financial Indebtedness" contained in Clause 1.1
(Definitions) incurred by the Borrower in accordance with Clause
23.18 (Hedging).
23.4 Negative pledge
(a) The Borrower shall not create or permit to subsist any Security
over any of its assets.
(b) The Borrower shall not:
(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
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,
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in circumstances where the arrangement or transaction is entered
into primarily as a method of raising Financial Indebtedness or
of financing the acquisition of an asset.
(c) Paragraphs (a) and (b) above do not apply to:
(i) any 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;
(ii) any lien arising by operation of law and in the ordinary
course of trading;
(iii)any set-off arising by operation of law;
(iv) any other Security created or subsisting with the prior
written consent of the Majority Lenders; and
(v) any Security created by any fund in which the Borrower
participates over its holding or participation in any
Investee Company.
23.5 No Subsidiaries
The Borrower will not allow to exist any Subsidiary other than:
(a) the Platinum Trust, SVG Advisers Limited, SVG North America Inc.,
SVG Advisors Inc. and SVG Investment Managers Limited; and
(b) any future management or advisory companies formed or acquired to
provide management or advisory services to the companies
comprising the ▇▇▇▇▇▇▇▇ Ventures and/or Permira or Schroders plc
or third parties,
without the prior written approval of the Majority Lenders.
23.6 Disposals
The Borrower shall not 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
other than for full consideration on arm's length terms in the
ordinary course of business and in accordance with the Investment
Policy.
23.7 Merger
The Borrower will not (and the Borrower shall ensure that no other
member of the Group will) enter into any amalgamation, demerger or
corporate reconstruction other than on a solvent basis.
23.8 Change of business
The Borrower shall procure that no substantial change is made to the
general nature of the business of the Borrower or the Group from that
carried on at the date of this Agreement except as contemplated by the
Circular.
23.9 Insurance
The Borrower shall (and shall ensure that each member of the Group
will) maintain insurances on and in relation to its business and
assets with reputable underwriters or insurance companies against
those risks and to the extent as is usual for companies carrying on
the same or substantially similar business.
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23.10 Taxation
The Borrower shall duly and punctually pay and discharge all Taxes
imposed upon it or its assets within the time period allowed without
incurring penalties (save to the extent that (i) payment is being
contested in good faith and (ii) adequate reserves are being
maintained for those Taxes).
23.11 Dividends
Following a Default which is continuing, the Borrower shall not pay,
make or declare any dividend or other distribution in respect of any
financial year save to the extent required to maintain its status as
an investment trust for Tax purposes under section 842 of the Taxes
Act.
23.12 Investment Adviser
The Borrower shall ensure that there is no change of Investment
Adviser without the prior written consent of the Majority Lenders.
23.13 Further investments
The Borrower will not enter into any commitment to invest or make any
investment in any new fund if Consolidated Gross Borrowings exceed
thirty-five per cent. of Consolidated Adjusted Investment Assets at
any time provided that the Borrower shall be entitled to make such an
investment in such circumstances where the Borrower was under a prior
commitment to make such investment and at the time such commitment was
entered into it was not reasonably foreseeable that Consolidated Gross
Borrowings would exceed thirty-five per cent. of Consolidated
Adjustment Investment Assets at the time of investment.
23.14 Diverse Investments
The Borrower will ensure that their investments in Investee Companies
will be held directly or indirectly through any fund in at least forty
separate companies.
23.15 Investment in Permira Funds
The Borrower will ensure that, at any time, at least sixty per cent.
of Consolidated Investment Assets less Cash and Cash Equivalents will
be represented by investments in Permira Funds.
23.16 Investment Policy
The Borrower shall maintain the Investment Policy in all material
respects.
23.17 Investment Trust status
The Borrower will ensure that at all times it will be an investment
trust for Tax purposes under section 842 of the Taxes Act.
23.18 Hedging
At any time when amounts outstanding under this Agreement exceed
EUR 100,000,000 in aggregate, the Borrower will (unless the Majority
Lenders agree otherwise) enter into interest rate hedging arrangements
in respect of interest due hereunder on terms and in respect of a
notional principal amount satisfactory to the Agent (acting
reasonably).
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23.19 Capital Structure of P123
The Borrower will ensure that no change occurs to the capital
structure of P123 (the "P123 Capital Structure") which would have a
material adverse effect on the ability of the Borrower to perform its
obligations under the Finance Documents. The Parties agree that the
changes to the P123 Capital Structure necessary to facilitate the
Borrower or P123's investment in further Permira Funds discussed prior
to the date of this Agreement will not have such an effect.
23.20 Condition Subsequent
The Borrower shall ensure that it provides evidence satisfactory to
the Agent (acting reasonably) that either:
(a) the holders of the Bonds have consented to the Borrower borrowing
in excess of EUR285,000,000 under this Agreement; or
(b) the Bonds have been redeemed or converted to equity in their
entirety,
it being acknowledged by the Borrower that until this condition is
satisfied the Facility Increase cannot occur. The consequence of the
Borrower failing to comply with the above undertaking shall be that
the Facility Increase cannot occur but such failure shall not
constitute an Event of Default.
24. EVENTS OF DEFAULT
Each of the events or circumstances set out in this Clause 24 is an
Event of Default.
24.1 Non-payment
The Borrower does not pay on the due date any amount of principal in
excess of EUR100,000 payable pursuant to a Finance Document at the
place at and in the currency in which it is expressed to be payable
unless payment is made within 3 Business Days of its due date or the
Borrower does not pay any other amount payable pursuant to the Finance
Documents at the place and in the currency in which it is expressed to
be payable unless payment is made within ten Business Days of its due
date.
24.2 Financial covenants
Any requirement of Clause 22 (Financial Covenants) is not satisfied.
24.3 Other obligations
(a) The Borrower does not comply with any provision of the Finance
Documents (other than those referred to in Clause 24.1
(Non-payment) and Clause 24.2 (Financial covenants) above).
(b) No Event of Default under paragraph (a) above will occur if the
failure to comply is capable of remedy and is remedied within 14
days of the Agent giving notice to the Borrower or the Borrower
becoming aware of the failure to comply.
24.4 Misrepresentation
Any representation or statement made or deemed to be made by the
Borrower in the Finance Documents or any other document delivered by
or on behalf of the Borrower 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.
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24.5 Cross default
(a) Any Financial Indebtedness of the Borrower is not paid when due
nor within any originally applicable grace period.
(b) Any Financial Indebtedness of the Borrower 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 the Borrower is
cancelled or suspended by a creditor of the Borrower as a result
of an event of default (however described).
(d) Any creditor of the Borrower becomes entitled to declare any
Financial Indebtedness of the Borrower 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 24.5 if the
aggregate amount of Financial Indebtedness or commitment for
Financial Indebtedness falling within paragraph (a) to (d) above
is less than GBP500,000 (or its equivalent in any other currency
or currencies).
24.6 Insolvency
(a) The Borrower is unable or admits inability to pay its debts as
they fall due, 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 the Borrower is less than its
liabilities (taking into account contingent and prospective
liabilities but excluding uncalled commitments).
(c) A moratorium is declared in respect of any indebtedness of the
Borrower.
24.7 Insolvency proceedings
Any corporate action, legal proceedings or other procedure or step is
taken in relation to:
(a) the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, administration or reorganisation (by way
of voluntary arrangement, scheme of arrangement or otherwise) of
the Borrower otherwise than on a solvent basis;
(b) a composition, assignment or arrangement with any creditor of the
Borrower;
(c) the appointment of a liquidator, receiver, administrator,
administrative receiver, compulsory manager or other similar
officer in respect of the Borrower or any of its assets; or
(d) enforcement of any Security over any material assets of the
Borrower,
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or any analogous procedure or step is taken in any jurisdiction and is
not discharged, stayed or released within 30 days.
24.8 Creditors' process
Any expropriation, attachment, sequestration, distress or execution
affects any asset or assets of the Borrower and is not discharged or
released within 30 days.
24.9 Unlawfulness
It is or becomes unlawful for the Borrower to perform any of its
material obligations under the Finance Documents.
24.10 Repudiation
The Borrower repudiates a Finance Document or evidences an intention
to repudiate a Finance Document.
24.11 Material adverse change
Any event or circumstance occurs which has a Material Adverse Effect.
24.12 Acceleration
On and at any time after the occurrence of an Event of Default which
is continuing the Agent may, and shall if so directed by the Majority
Lenders, by notice to the Borrower:
(a) cancel the Total Commitments whereupon they shall immediately be
cancelled;
(b) declare that all or part of the Utilisations, together with
accrued interest, and all other amounts accrued under the Finance
Documents be immediately due and payable, whereupon they shall
become immediately due and payable; and/or
(c) declare that all or part of the Utilisations be payable on
demand, whereupon they shall immediately become payable on demand
by the Agent on the instructions of the Majority Lenders; and/or
(d) declare that full cash cover in respect of each Bank Guarantee is
immediately due and payable whereupon it shall become immediately
due and payable.
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SECTION 9
CHANGES TO PARTIES
25. CHANGES TO THE LENDERS
25.1 Assignments and transfers by the Lenders
Subject to this Clause 25, a Lender (the "Existing Lender") may:
(a) assign any of its rights; or
(b) transfer by novation any of its rights and obligations,
to another bank or financial institution (the "New Lender").
25.2 Conditions of assignment or transfer
(a) The consent of the Borrower is required for an assignment or
transfer by a Lender, unless the assignment or transfer:
(i) is to another Lender or an Affiliate of a Lender; or
(ii) is by an Original Lender and, following such assignment or
transfer, the aggregate Commitments of the Original Lenders
would be no less than EUR500,000,000.
(b) The consent of the Borrower to an assignment or transfer must not
be unreasonably withheld or delayed.
(c) The consent of the Borrower to an assignment or transfer must not
be withheld solely because the assignment or transfer may result
in an increase to the Mandatory Cost.
(d) An assignment will only be effective on:
(i) receipt by the Agent of written confirmation from the New
Lender (in form and substance satisfactory to the Agent
(acting reasonably)) that the New Lender will assume the
same obligations to the other Finance Parties as it would
have been under if it was an Original Lender; and
(ii) performance by the 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 Agent shall promptly notify to
the Existing Lender and the New Lender.
(e) A transfer will only be effective if the procedure set out in
Clause 25.5 (Procedure for transfer) is complied with.
(f) If:
(i) a Lender assigns or transfers any of its rights or
obligations under the Finance Documents or changes its
Facility Office; and
(ii) as a result of circumstances existing at the date the
assignment, transfer or change occurs, the Borrower would be
(but for this paragraph (f)) obliged to make a payment to
the New Lender or Lender acting through its new Facility
Office under Clause 15 (Tax Gross-Up and Indemnities) or
Clause 16 (Increased costs),
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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.
(g) A Lender may not make any assignment or transfer falling
within Clause 25.2(a)(ii) unless the New Lender is a bank
within the meaning of section 840A of the Taxes Act, is
within the charge to United Kingdom corporation tax in
respect of its profits arising from the Facility and is not
entitled to an exemption from tax in respect of those
profits.
25.3 Assignment or transfer fee
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee of
EUR1,500.
25.4 Limitation of responsibility of Existing Lenders
(a) Unless expressly agreed to the contrary, an Existing Lender makes
no representation or warranty and assumes no responsibility to a
New Lender for:
(i) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other
documents;
(ii) the financial condition of the Borrower;
(iii)the performance and observance by the Borrower of its
obligations under the Finance Documents or any other
documents; or
(iv) the accuracy of any statements (whether written or oral)
made in or in connection with any Finance Document or any
other document,
and any representations or warranties implied by law are excluded.
(b) Each New Lender confirms to the Existing Lender and the other
Finance Parties that it:
(i) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and
affairs of the Borrower and its related entities in
connection with its participation in this Agreement and has
not relied exclusively on any information provided to it by
the Existing Lender in connection with any Finance Document;
and
(ii) will continue to make its own independent appraisal of the
creditworthiness of the Borrower and its related entities
whilst any amount is or may be outstanding under the Finance
Documents or any Commitment is in force.
(c) Nothing in any Finance Document obliges an Existing Lender to:
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(i) accept a re-transfer from a New Lender of any of the rights
and obligations assigned or transferred under this Clause
25; or
(ii) support any losses directly or indirectly incurred by the
New Lender by reason of the non-performance by the Borrower
of its obligations under the Finance Documents or otherwise.
25.5 Procedure for transfer
(a) Subject to the conditions set out in Clause 25.2 (Conditions of
assignment or transfer) a transfer is effected in accordance with
paragraph (c) below when the Agent executes an otherwise duly
completed Transfer Certificate delivered to it by the Existing
Lender and the New Lender. The Agent shall, as soon as reasonably
practicable after receipt by it of a duly completed Transfer
Certificate appearing on its face to comply with the terms of
this Agreement and delivered in accordance with the terms of this
Agreement at least five Business Days prior to the proposed date
of transfer, execute that Transfer Certificate.
(b) The Agent shall only be obliged to execute a Transfer Certificate
delivered to it by the Existing Lender and the New Lender once it
is satisfied it has complied with all necessary "know your
customer" or other similar checks under all applicable laws and
regulations 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 and
obligations under the Finance Documents the Borrower and the
Existing Lender shall be released from further obligations
towards one another under the Finance Documents and their
respective rights against one another shall be cancelled
(being the "Discharged Rights and Obligations");
(ii) the Borrower and the New Lender shall assume obligations
towards one another and/or acquire rights against one
another which differ from the Discharged Rights and
Obligations only insofar as the Borrower and the New Lender
have assumed and/or acquired the same in place of the
Borrower and the Existing Lender;
(iii)the Agent, the Joint Lead Arrangers, the New Lender and
other Lenders shall acquire the same rights and assume the
same obligations between themselves as they would have
acquired and assumed had the New Lender been an Original
Lender with the rights and/or obligations acquired or
assumed by it as a result of the transfer and to that extent
the Agent, the Joint Lead Arrangers and the Existing Lender
shall each be released from further obligations to each
other under this Agreement; and
(iv) the New Lender shall become a Party as a "Lender".
25.6 Disclosure of information
Any Lender may disclose to any of its Affiliates and any other person:
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(a) to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
(b) with (or through) whom that Lender enters into (or may
potentially enter into) any sub-participation in relation to, or
any other transaction under which payments are to be made by
reference to, this Agreement or the Borrower; or
(c) to whom, and to the extent that, information is required to be
disclosed by any applicable law or regulation,
any information about the Borrower, the Group and the Finance
Documents as that Lender shall consider appropriate if, in relation to
paragraphs (a) and (b) above, the person to whom the information is to
be given has entered into a Confidentiality Undertaking.
26. CHANGES TO THE BORROWER
The Borrower may not assign any of its rights or transfer any of its
rights or obligations under the Finance Documents.
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SECTION 10
THE FINANCE PARTIES
27. ROLE OF THE AGENT AND THE JOINT LEAD ARRANGERS
27.1 Appointment of the Agent
(a) Each of the Joint Lead Arrangers and the Lenders appoints the
Agent to act as its agent under and in connection with the
Finance Documents.
(b) Each of the Joint Lead Arrangers and the Lenders authorises the
Agent to exercise the rights, powers, authorities and discretions
specifically given to the Agent under or in connection with the
Finance Documents together with any other incidental rights,
powers, authorities and discretions.
27.2 Duties of the Agent
(a) The Agent shall promptly forward to a Party the original or a
copy of any document which is delivered to the Agent for that
Party by any other Party.
(b) If the Agent receives notice from a Party referring to this
Agreement, describing a Default and stating that the circumstance
described is a Default, it shall promptly notify the Lenders.
(c) The Agent shall promptly notify the Lenders of any Default
arising under Clause 24.1 (Non-payment).
(d) The Agent's duties under the Finance Documents are solely
mechanical and administrative in nature.
27.3 Role of the Joint Lead Arrangers
Except as specifically provided in the Finance Documents, no Joint
Lead Arranger has any obligations of any kind to any other Party under
or in connection with any Finance Document.
27.4 No fiduciary duties
(a) Nothing in this Agreement constitutes the Agent or any Joint Lead
Arranger as a trustee or fiduciary of any other person.
(b) Neither the Agent nor any Joint Lead Arranger shall be bound to
account to any Lender for any sum or the profit element of any
sum received by it for its own account.
27.5 Business with the Group
The Agent and the Joint Lead Arrangers may accept deposits from, lend
money to and generally engage in any kind of banking or other business
with any member of the Group.
27.6 Rights and discretions of the Agent
(a) The Agent may rely on:
(i) any representation, notice or document believed by it to be
genuine, correct and appropriately authorised; and
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(ii) any statement made by a director, authorised signatory or
employee of any person regarding any matters which may
reasonably be assumed to be within his knowledge or within
his power to verify.
(b) The Agent may assume (unless they have received notice to the
contrary in their capacity as agent or trustee for the Lenders)
that:
(i) no Default has occurred (unless it has actual knowledge of a
Default arising under Clause 24.1 (Non-payment)); and
(ii) any right, power, authority or discretion vested in any
Party or the Majority Lenders has not been exercised.
(c) The Agent may engage, pay for and rely on the advice or services
of any lawyers, accountants, surveyors or other experts.
(d) The Agent may act in relation to the Finance Documents through
their personnel and agents.
27.7 Majority Lenders' instructions
(a) Unless a contrary indication appears in a Finance Document, the
Agent shall (a) act in accordance with any instructions given to
it by the Majority Lenders (or, if so instructed by the Majority
Lenders, refrain from acting or exercising any right, power,
authority or discretion vested in it as Agent) and (b) not be
liable for any act (or omission) if it acts (or refrains from
taking any action) in accordance with such an instruction of the
Majority Lenders.
(b) Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all
the Lenders and the Joint Lead Arrangers.
(c) The Agent may refrain from acting in accordance with the
instructions of the Majority Lenders (or, if appropriate, the
Lenders) until it has received such security as it may require
for any cost, loss or liability (together with any associated
VAT) which it may incur in complying with the instructions.
(d) In the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Agent may act (or refrain from
taking action) as it considers to be in the best interest of the
Lenders.
(e) The Agent is not authorised to act on behalf of a Lender (without
first obtaining that Lender's consent) in any legal or
arbitration proceedings relating to any Finance Document.
27.8 Responsibility for documentation
Neither the Agent nor any Joint Lead Arranger:
(a) is responsible for the adequacy, accuracy and/or completeness of
any information (whether oral or written) supplied by the Agent,
any Joint Lead Arranger, the Borrower or any other person given
in or in connection with any Finance Document; or
(b) is responsible for the legality, validity, effectiveness,
adequacy or enforceability of any Finance Document or any other
agreement, arrangement or document entered into, made or executed
in anticipation of or in connection with any Finance Document.
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27.9 Exclusion of liability
(a) Without limiting paragraph (b) below, the Agent will not be
liable for any action taken by it under or in connection with any
Finance Document, unless directly caused by its gross negligence
or wilful misconduct.
(b) No Party may take any proceedings against any officer, employee
or agent of the Agent in respect of any claim it might have
against the Agent or in respect of any act or omission of any
kind by that officer, employee or agent in relation to any
Finance Document and any officer, employee or agent of the Agent
may rely on this Clause. Any third party referred to in this
paragraph (b) may enjoy the benefit of and enforce the terms of
this paragraph in accordance with the provisions of the Contracts
(Rights of Third Parties) ▇▇▇ ▇▇▇▇.
(c) The Agent will not be liable for any delay (or any related
consequences) in crediting an account with an amount required
under the Finance Documents to be paid by the Agent if the Agent
has taken all necessary steps as soon as reasonably practicable
to comply with the regulations or operating procedures of any
recognised clearing or settlement system used by the Agent for
that purpose.
27.10 Lenders' indemnity to the Agent
Each Lender shall (in proportion to its share of the Total Commitments
or, if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify
the Agent, within three Business Days of demand, against any cost,
loss or liability incurred by the Agent (otherwise than by reason of
the Agent gross negligence or wilful misconduct) in acting as Agent
under the Finance Documents (unless the Agent has been reimbursed by
the Borrower pursuant to a Finance Document).
27.11 Resignation of the Agent
(a) The Agent may resign and appoint one of its Affiliates acting
through an office in the United Kingdom as successor by giving
notice to the Lenders and the Borrower.
(b) Alternatively the Agent may resign by giving notice to the
Lenders and the Borrower, in which case the Majority Lenders
(after consultation with the Borrower) may appoint a successor
Agent.
(c) If the Majority Lenders have not appointed a successor Agent in
accordance with paragraph (b) above within 30 days after notice
of resignation was given, the Agent (after consultation with the
Borrower) may appoint a successor Agent (acting through an office
in the United Kingdom).
(d) The retiring Agent shall, at its own cost, make available to the
successor Agent such documents and records and provide such
assistance as the successor Agent may reasonably request for the
purposes of performing its functions as Agent under the Finance
Documents (as the case may be).
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(e) The Agent's resignation notice shall only take effect upon the
appointment of a successor.
(f) Upon the appointment of a successor, the retiring Agent shall be
discharged from any further obligation in respect of the Finance
Documents but shall remain entitled to the benefit of this Clause
27. Its successor and each of the other Parties shall have the
same rights and obligations amongst themselves as they would have
had if such successor had been an original Party.
(g) After consultation with the Borrower, the Majority Lenders may,
by notice to the Agent, require it to resign in accordance with
paragraph (b) above. In this event, the Agent shall resign in
accordance with paragraph (b) above.
27.12 Business with the Group
The Agent and any Joint Lead Arranger may accept deposits from, lend
money to and generally engage in any kind of banking or other business
with any member of the Group.
27.13 Confidentiality
(a) In acting as agent for the Finance Parties and the Agent shall be
regarded as acting through its agency division which shall be
treated as separate entities from any other of its divisions or
departments.
(b) If information is received by another division or department of
the Agent, it may be treated as confidential to that division or
department and the Agent shall not be deemed to have notice of
it.
(c) Notwithstanding any other provision of any Finance Document to
the contrary, neither the Agent nor any Joint Lead Arranger are
obliged to disclose to any other person (i) any confidential
information or (ii) any other information if the disclosure would
or might in its reasonable opinion constitute a breach of any law
or a breach of a fiduciary duty.
27.14 Relationship with the Lenders
(a) The Agent may treat each Lender as a Lender, entitled to payments
under this Agreement and acting through its Facility Office
unless it has received not less than five Business Days prior
notice from that Lender to the contrary in accordance with the
terms of this Agreement.
(b) Each Lender shall supply the Agent with any information required
by the Agent in order to calculate the Mandatory Cost in
accordance with Schedule 4 (Mandatory Cost Formulae).
27.15 Credit appraisal by the Lenders
Without affecting the responsibility of the Borrower for information
supplied by it or on its behalf in connection with any Finance
Document, each Lender confirms to the Agent and each Joint Lead
Arranger that it has been, and will continue to be, solely responsible
for making its own independent appraisal and investigation of all
risks arising under or in connection with any Finance Document
including but not limited to:
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(a) the financial condition, status and nature of each member of the
Group;
(b) the legality, validity, effectiveness, adequacy or enforceability
of any Finance Document and any other agreement, arrangement or
document entered into, made or executed in anticipation of, under
or in connection with any Finance Document;
(c) whether that Lender has recourse, and the nature and extent of
that recourse, against any Party or any of its respective assets
under or in connection with any Finance Document, the
transactions contemplated by the Finance Documents or any other
agreement, arrangement or document entered into, made or executed
in anticipation of, under or in connection with any Finance
Document; and
(d) the adequacy, accuracy and/or completeness of any information
provided by the Agent, any Party or by any other person under or
in connection with any Finance Document, the transactions
contemplated by the Finance Documents or any other agreement,
arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance
Document.
27.16 Reference Banks
If a Reference Bank (or, if a Reference Bank is not a Lender, the
Lender of which it is an Affiliate) ceases to be a Lender, the Agent
shall (in consultation with the Borrower) appoint another Lender or an
Affiliate of a Lender to replace that Reference Bank.
28. CONDUCT OF BUSINESS BY THE FINANCE PARTIES
No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its
affairs (Tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit,
relief, remission or repayment available to it or the extent,
order and manner of any claim; or
(c) oblige any Finance Party to disclose any information relating to
its affairs (Tax or otherwise) or any computations in respect of
Tax.
29. SHARING AMONG THE LENDERS
29.1 Payments to Lenders
If a Lender (a "Recovering Lender") receives or recovers any amount
from the Borrower other than in accordance with Clause 30 (Payment
Mechanics) and applies that amount to a payment due under the Finance
Documents then:
(a) the Recovering Lender shall, within three Business Days, notify
details of the receipt or recovery, to the Agent;
(b) the Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Lender would have been paid
had the receipt or recovery been received or made by the Agent
and distributed in accordance with Clause 30 (Payment mechanics),
without taking account of any Tax which would be imposed on the
Agent in relation to the receipt, recovery or distribution; and
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(c) the Recovering Lender shall, within three Business Days of demand
by the Agent, pay to the Agent an amount (the "Sharing Payment")
equal to such receipt or recovery less any amount which the Agent
determines may be retained by the Recovering Lender as its share
of any payment to be made, in accordance with Clause 30.5
(Partial payments).
29.2 Redistribution of payments
The Agent shall treat the Sharing Payment as if it had been paid by
the Borrower and distribute it between the Finance Parties (other than
the Recovering Lender) in accordance with Clause 30.5 (Partial
payments).
29.3 Recovering Lender's rights
(a) On a distribution by the Agent under Clause 29.2 (Redistribution
of payments), the Recovering Lender will be subrogated to the
rights of the Finance Parties which have shared in the
redistribution.
(b) If and to the extent that the Recovering Lender is not able to
rely on its rights under paragraph (a) above, the Borrower shall
be liable to the Recovering Lender for a debt equal to the
Sharing Payment which is immediately due and payable.
29.4 Reversal of redistribution
If any part of the Sharing Payment received or recovered by a
Recovering Lender becomes repayable and is repaid by that Recovering
Lender, then:
(a) each Lender which has received a share of the relevant Sharing
Payment pursuant to Clause 29.2 (Redistribution of payments)
shall, upon request of the Agent, pay to the Agent for account of
that Recovering Lender an amount equal to its share of the
Sharing Payment (together with an amount as is necessary to
reimburse that Recovering Lender for its proportion of any
interest on the Sharing Payment which that Recovering Lender is
required to pay); and
(b) that Recovering Lender's rights of subrogation in respect of any
reimbursement shall be cancelled and the Borrower will be liable
to the reimbursing Lender for the amount so reimbursed.
29.5 Exceptions
(a) This Clause 29 shall not apply to the extent that the Recovering
Lender would not, after making any payment pursuant to this
Clause 29.5, have a valid and enforceable claim against the
Borrower.
(b) A Recovering Lender is not obliged to share with any other Lender
any amount which the Recovering Lender has received or recovered
as a result of taking legal or arbitration proceedings, if:
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(i) it notified the other Lenders of the legal or arbitration
proceedings; and
(ii) the other Lender had an opportunity to participate in those
legal or arbitration proceedings but did not do so as soon
as reasonably practicable having received notice or did not
take separate legal or arbitration proceedings.
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SECTION 11
ADMINISTRATION
30. PAYMENT MECHANICS
30.1 Payments to the Agent
(a) On each date on which the Borrower or a Lender is required to
make a payment under a Finance Document, the Borrower or Lender
shall make the same available to the Agent (unless a contrary
indication appears in a Finance Document) for value on the due
date at the time and in such funds specified by the Agent as
being customary at the time for settlement of transactions in the
relevant currency in the place of payment.
(b) Payment shall be made to such account in the principal financial
centre of the country of that currency (or, in relation to euro,
in a principal financial centre in a Participating Member State
or London) with such bank as the Agent specifies.
30.2 Distributions by the Agent
Each payment received by the Agent under the Finance Documents for
another Party shall, subject to Clause 30.3 (Distributions to the
Borrower) and Clause 30.4 (Clawback) be made available by the Agent as
soon as practicable after receipt to the Party entitled to receive
payment in accordance with this Agreement (in the case of a Lender,
for the account of its Facility Office), to such account as that Party
may notify to the Agent by not less than five Business Days' notice
with a bank in the principal financial centre of the country of that
currency (or, in relation to euro, in the principal financial centre
of a Participating Member State or London).
30.3 Distributions to the Borrower
The Agent may (with the consent of the Borrower or in accordance with
Clause 31 (Set-off)) apply any amount received by it for the Borrower
in or towards payment (on the date and in the currency and funds of
receipt) of any amount due from the Borrower under the Finance
Documents or in or towards purchase of any amount of any currency to
be so applied.
30.4 Clawback
(a) Where a sum is to be paid to the Agent under the Finance
Documents for another Party, the Agent is not obliged to pay that
sum to that other Party (or to enter into or perform any related
exchange contract) until it has been able to establish to its
satisfaction that it has actually received that sum.
(b) If the Agent pays an amount to another Party and it proves to be
the case that the Agent had not actually received that amount,
then the Party to whom that amount (or the proceeds of any
related exchange contract) was paid by the Agent shall on demand
refund the same to the Agent together with interest on that
amount from the date of payment to the date of receipt by the
Agent, calculated by the Agent to reflect its cost of funds.
30.5 Partial payments
(a) If the Agent receives a payment that is insufficient to discharge
all the amounts then due and payable by the Borrower under the
Finance Documents, the Agent shall apply that payment towards the
obligations of the Borrower under the Finance Documents in the
following order:
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(i) first, in or towards payment pro rata of any unpaid fees,
costs and expenses of the Agent and the Joint Lead Arrangers
under the Finance Documents;
(ii) secondly, in or towards payment pro rata of any accrued
interest or commission or guarantee fee due but unpaid under
this Agreement;
(iii)thirdly, in or towards payment pro rata of any principal
due but unpaid under this Agreement and any amount due but
unpaid under Clauses 8.4 (Claims under Bank Guarantee) and
8.5 (Indemnities); and
(iv) fourthly, in or towards payment pro rata of any other sum
due but unpaid under the Finance Documents.
(b) The Agent shall, if so directed by the Majority Lenders, vary the
order set out in paragraphs (a)(ii) to (a)(iv) above.
(c) Paragraphs (a) and (b) above will override any appropriation made
by the Borrower.
30.6 No set-off by the Borrower
All payments to be made by the Borrower under the Finance Documents
shall be calculated and be made without (and free and clear of any
deduction for) set-off or counterclaim.
30.7 Business Days
(a) Any payment which is due to be made on a day that is not a
Business Day shall be made on the next Business Day in the same
calendar month (if there is one) or the preceding Business Day
(if there is not).
(b) During any extension of the due date for payment of any principal
or an Unpaid Sum under this Agreement interest is payable on the
principal at the rate payable on the original due date.
30.8 Currency of account
(a) Subject to paragraphs (b) to (e) below, the Base Currency is the
currency of account and payment for any sum due from the Borrower
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.
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(d) Each payment in respect of costs, expenses or Taxes shall be made
in the currency in which the costs, expenses or Taxes are
incurred.
(e) Any amount expressed to be payable in a currency other than the
Base Currency shall be paid in that other currency.
30.9 Change of currency
(a) Unless otherwise prohibited by law, if more than one currency or
currency unit are at the same time recognised by the central bank
of any country as the lawful currency of that country, then:
(i) any reference in the Finance Documents to, and any
obligations arising under the Finance Documents in, the
currency of that country shall be translated into, or paid
in, the currency or currency unit of that country designated
by the Agent (after consultation with the Borrower); and
(ii) any translation from one currency or currency unit to
another shall be at the official rate of exchange recognised
by the central bank for the conversion of that currency or
currency unit into the other, rounded up or down by the
Agent (acting reasonably).
(b) If a change in any currency of a country occurs, this Agreement
will, to the extent the Agent (acting reasonably and after
consultation with the Borrower) specifies to be necessary, be
amended to comply with any generally accepted conventions and
market practice in the Relevant Interbank Market and otherwise to
reflect the change in currency.
31. SET-OFF
A Finance Party may, whilst an Event of Default is continuing, set off
any matured obligation due from the Borrower under the Finance
Documents (to the extent beneficially owned by that Finance Party)
against any matured obligation owed by that Finance Party to the
Borrower, regardless of the place of payment, booking branch or
currency of either obligation. If the obligations are in different
currencies, the Finance Party may convert either obligation at a
market rate of exchange in its usual course of business for the
purpose of the set-off.
32. NOTICES
32.1 Communications in writing
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may
be made by fax or letter.
32.2 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 Borrower, that identified with its name below;
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(b) in the case of each Lender that notified in writing to the Agent
on or prior to the date on which it becomes a Party; and
(c) in the case of the Agent, that identified with its name below,
or any substitute address or fax number or department or officer as
the Party may notify to the Agent (or the Agent may notify to the
other Parties, if a change is made by the Agent) by not less than five
Business Days' notice.
32.3 Delivery
(a) Any communication or document made or delivered by one person to
another under or in connection with the Finance Documents will
only be effective:
(i) if by way of fax, when received in legible form; or
(ii) if by way of letter, when it has been left at the relevant
address or two Business Days after being deposited in the post
postage prepaid in an envelope addressed to it at that address;
and, if a particular department or officer is specified as part of its
address details provided under Clause 32.2 (Addresses), if addressed
to that department or officer.
(b) Any communication or document to be made or delivered to the
Agent will be effective only when actually received by the Agent
and then only if it is expressly marked for the attention of the
department or officer identified with the Agent's signature below
(or any substitute department or officer as the Agent shall
specify for this purpose).
(c) All notices from or to the Borrower shall be sent through the
Agent.
32.4 Notification of address, fax number and telex number
Promptly upon receipt of notification of an address or fax number or
change of address or fax number pursuant to Clause 32.2 (Addresses) or
changing its own address or fax number, the Agent shall notify the
other Parties.
32.5 English language
(a) Any notice given under or in connection with any Finance Document
must be in English.
(b) All other documents provided under or in connection with any
Finance Document must be:
(i) in English; or
(ii) if not in English, and if so required by the Agent,
accompanied by a certified English translation and, in this
case, the English translation will prevail unless the
document is a constitutional, statutory or other official
document.
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33. CALCULATIONS AND CERTIFICATES
33.1 Accounts
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters
to which they relate.
33.2 Certificates and Determinations
Any certification or determination by a Finance Party of a rate or
amount under any Finance Document is, in the absence of proven error,
conclusive evidence of the matters to which it relates.
33.3 Day count convention
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual
number of days elapsed and a year of 360 days or, in any case where
the practice in the Relevant Interbank Market differs, in accordance
with that market practice.
34. PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction will in any way
be affected or impaired.
35. REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of
any Finance Party, any right or remedy under the Finance Documents
shall operate as a waiver, nor shall any single or partial exercise of
any right or remedy prevent any further or other exercise or the
exercise of any other right or remedy. The rights and remedies
provided in this Agreement are cumulative and not exclusive of any
rights or remedies provided by law.
36. AMENDMENTS AND WAIVERS
36.1 Required consents
(a) Subject to Clause 36.2 (Exceptions) any term of the Finance
Documents may be amended or waived only with the consent of the
Majority Lenders (such consent not to be unreasonably withheld or
delayed) and the Borrower and any such amendment or waiver will
be binding on all Parties.
(b) The Agent may effect, on behalf of any Finance Party, any
amendment or waiver permitted by this Clause.
36.2 Exceptions
(a) An amendment or waiver that has the effect of changing or which
relates to:
(i) the definition of "Majority Lenders" in Clause 1.1
(Definitions);
(ii) an extension to the date of payment of any amount under the
Finance Documents;
-68-
(iii) a reduction in the Margin or the amount of any payment of
principal, interest, fees or commission payable;
(iv) an increase in Commitment;
(v) a change to the Borrower;
(vi) any provision which expressly requires the consent of all
the Lenders; or
(vii) Clause 2.4 (Lenders' rights and obligations), Clause 25
(Changes to the Lenders) or this Clause 36,
shall not be made without the prior consent of all the Lenders.
(b) An amendment or waiver which relates to the rights or obligations
of the Agent or any Joint Lead Arranger may not be effected
without the consent of the Agent or the Joint Lead Arrangers.
37. COUNTERPARTS
Each Finance Document may be executed in any number of counterparts,
and this has the same effect as if the signatures on the counterparts
were on a single copy of the Finance Document.
-69-
SECTION 12
GOVERNING LAW AND ENFORCEMENT
38. GOVERNING LAW
This Agreement is governed by English law.
39. ENFORCEMENT
(a) The courts of England have exclusive jurisdiction to settle any
dispute arising out of or in connection with this Agreement
(including a dispute regarding the existence, validity or
termination of this Agreement) (a "Dispute").
(b) The Parties agree that the courts of England are the most
appropriate and convenient courts to settle Disputes and
accordingly no Party will argue to the contrary.
(c) This Clause 39 is for the benefit of the Finance Parties only. As
a result, no Finance Party shall be prevented from taking
proceedings relating to a Dispute in any other courts with
jurisdiction. To the extent allowed by law, the Finance Parties
may take concurrent proceedings in any number of jurisdictions.
This Agreement has been entered into on the date stated at the beginning of this
Agreement.
SCHEDULE 1
THE ORIGINAL LENDERS
Name of Original Lender Commitment as at the
date of this Agreement
The Governor and Company of the Bank of Scotland EUR142,500,000
The Royal Bank of Scotland plc EUR142,500,000
-71-
SCHEDULE 2
CONDITIONS PRECEDENT
1. The Borrower
(a) A copy of the constitutional documents of the Borrower.
(b) A copy of a resolution of the board of directors (and, if
relevant, a committee of its board of directors) of the Borrower:
(i) approving the terms of, and the transactions contemplated
by, the Finance Documents to which it is a party and
resolving that it execute the Finance Documents to which it
is a party;
(ii) authorising a specified person or persons to execute the
Finance Documents to which it is a party on its behalf; and
(iii)authorising a specified person or persons, on its behalf,
to sign and/or despatch all documents and notices
(including, if relevant, any Utilisation Request) to be
signed and/or despatched by it under or in connection with
the Finance Documents to which it is a party.
(c) A specimen of the signature of each person authorised by the
resolution referred to in paragraph (b) above.
(d) A certificate of the Borrower (signed by an authorised signatory
of the Borrower) confirming that:
(i) borrowing the Total Commitments would not cause any borrowing,
guaranteeing or similar limit binding on the Borrower to be
exceeded; and
(ii) 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.
2. Legal opinions
A legal opinion of ▇▇▇▇▇▇▇▇ Chance LLP, legal advisers to the Arranger
and the Agent in England, substantially in the form distributed to the
Original Lender prior to signing this Agreement.
3. Other documents and evidence
(a) A copy of any other Authorisation or other document, opinion or
assurance which the Agent considers to be necessary or desirable
(if it has notified the Borrower 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.
(b) The Original Financial Statements.
-72-
(c) Evidence that the fees, costs and expenses then due from the
Borrower pursuant to Clause 14 (Fees) and Clause 19 (Costs and
expenses) have been paid or will be paid by the first Utilisation
Date.
-73-
SCHEDULE 3
REQUESTS
Part IA
Utilisation Request
Loans
From: [Borrower]
To: The Royal Bank of Scotland plc
Dated:
Dear Sirs
SVG Capital plc
EUR600,000,000 Facility Agreement
dated 10 March 2006
(the "Facility Agreement")
1. We wish to borrow a Loan on the following terms:
Proposed Utilisation Date: [ ] (or, if that is not a
Business Day, the next Business Day)
Currency of Loan: [ ]
Amount: [ ] or, if less, the Available
Facility
Interest Period: [ ]
2. We confirm that each condition specified in Clause 4.2 (Further
conditions precedent) is satisfied on the date of this Utilisation
Request.
3. The proceeds of this Loan should be credited to [account].
4. This Utilisation Request is irrevocable.
Yours faithfully
..................
authorised signatory for
[name of Borrower]
-74-
Part IB
Utilisation Request
Bank Guarantee
From: SVG Capital plc
To: [Agent]
Dated:
Dear Sirs
SVG Capital plc
EUR600,000,000 Facility Agreement
dated 10 March 2006
(the "Facility Agreement")
1. We wish to arrange for a Bank Guarantee to be issued by the Issuing Bank on
the following terms:
Proposed Utilisation Date: [ ] (or, if that is not a Business
Day, the next Business Day)
Amount: [ ] or, if less, the Available
Facility
Beneficiary: [ ]
Term or Expiry Date: [ ]
2. We confirm that each condition specified in paragraph 7.6(b) of Clause
7.6 (Issue of the Bank Guarantee) is satisfied on the date of this
Utilisation Request.
3. We attach a copy of the proposed Bank Guarantee.
4. This Utilisation Request is irrevocable.
Delivery Instructions:
[specify delivery instructions]
Yours faithfully
................
authorised signatory for
SVG Capital plc
-75-
SCHEDULE 4
MANDATORY COST FORMULA
1. The Mandatory Cost is an addition to the interest rate to compensate
Lenders for the cost of compliance with (a) the requirements of the Bank of
England and/or the Financial Services Authority (or, in either case, any
other authority which replaces all or any of its functions) or (b) the
requirements of the European Central Bank.
2. On the first day of each Interest Period (or as soon as possible
thereafter) the Agent shall calculate, as a percentage rate, a rate (the
"Additional Cost Rate") for each Lender, in accordance with the paragraphs
set out below. The Mandatory Cost will be calculated by the Agent as a
weighted average of the Lenders' Additional Cost Rates (weighted in
proportion to the percentage participation of each Lender in the relevant
Loan) and will be expressed as a percentage rate per annum.
3. The Additional Cost Rate for any Lender lending from a Facility Office in a
Participating Member State will be the percentage notified by that Lender
to the Agent. This percentage will be certified by that Lender in its
notice to the 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 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 11.3 (Default
interest)) payable for the relevant Interest Period on the Loan.
-76-
C is the percentage (if any) of Eligible Liabilities which that Lender
is required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of England to the
Agent on interest bearing Special Deposits.
E is designed to compensate Lenders for amounts payable under the Fees
Rules and is calculated by the Agent as being the average of the most
recent rates of charge supplied by the Reference Banks to the Agent
pursuant to paragraph 7 below and expressed in pounds per
GBP1,000,000.
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 Agent, each Reference Bank shall, as soon as
practicable after publication by the Financial Services Authority, supply
to the 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 GBP1,000,000 of the Tariff Base of that Reference Bank.
8. Each Lender shall supply any information required by the Agent for the
purpose of calculating its Additional Cost Rate. In particular, but without
limitation, each Lender shall supply the following information on or prior
to the date on which it becomes a Lender:
(a) the jurisdiction of its Facility Office; and
(b) any other information that the Agent may reasonably require for such
purpose.
-77-
Each Lender shall promptly notify the 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 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 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 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 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 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 Agent may from time to time, after consultation with the Borrower and
the Lenders, determine and notify to all Parties any amendments which are
required to be made to this Schedule in order to comply with any change in
law, regulation or any requirements from time to time imposed by the Bank
of England, the Financial Services Authority or the European Central Bank
(or, in any case, any other authority which replaces all or any of its
functions) and any such determination shall, in the absence of manifest
error, be conclusive and binding on all Parties.
-78-
SCHEDULE 5
FORM OF TRANSFER CERTIFICATE
To: The Royal Bank of Scotland as Agent
From: [The Existing Lender] (the "Existing Lender") and [The New Lender]
(the "New Lender")
Dated:
SVG Capital plc
EUR600,000,000 Facility Agreement
dated 10 March 2006
(the "Facility Agreement")
1. We refer to Clause 25.5 (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 25.5 (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 32.2 (Addresses)
are set out in the Schedule.
2. The New Lender confirms that, as at the date hereof, it is a Qualifying
Lender for the purposes of Clause 15 (Tax Gross Up and Indemnity) of the
Facility Agreement.
3. The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in paragraph (c) of Clause 25.4 (Limitation of
responsibility of Existing Lenders).
4. This Transfer Certificate is governed by English law.
-79-
THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office address, fax number and attention details for notices and
account details for payments,]
[Existing Lender] [New Lender]
By: By:
This Transfer Certificate is accepted by the Agent and the Transfer Date is
confirmed as [ ].
[Agent]
By:
-80-
SCHEDULE 6
FORM OF COMPLIANCE CERTIFICATE
To: The Royal Bank of Scotland plc as Agent
From: SVG Capital plc
Dated:
Dear Sirs
SVG Capital plc
EUR600,000,000 Facility Agreement
dated 10 March 2006
(the "Facility Agreement")
1. We refer to the Facility Agreement. This is a Compliance Certificate.
2. We confirm that:
Consolidated Gross Borrowings are [ ] and Consolidated Adjusted Investment
Assets are [ ]. Consequently, Consolidated Gross Borrowings are [ ]% of
Consolidated Adjusted Investment Assets and the Borrower is [in compliance
with/in breach of] Clause 21.2 of the Facility Agreement.
3. Calculations
The figures referred to in paragraph 2 above are shown in the attached
financial statements.
4. Valuations
[The portfolio valuation referred to in Clause 20.1(c) is [ ]/[The
portfolio valuation referred to in Clause 21.4 is [ ]].
5. [We confirm that no Default is continuing.] *
Signed: ...............
Chief Financial Officer
Of
SVG Capital plc
Signed: ...............
Secretary
Of
SVG Capital plc
-------------------------------------------------------------------------------
* If this statement cannot be made, the certificate should identify any
Default that is continuing and the steps, if any, being taken to remedy it.
-81-
SCHEDULE 7
LMA FORM OF CONFIDENTIALITY UNDERTAKING
LMA CONFIDENTIALITY LETTER (SELLER)
[Letterhead of Seller/Seller's agent/broker]
To:
=======================================
[insert name of Potential
Purchaser/Purchaser's agent/broker]
=======================================
Re: The Agreement
=======================================
Borrower:
Date:
Amount:
Agent:
=======================================
Dear Sirs
We understand that you are considering [acquiring] /[arranging the
acquisition of] an interest in the Agreement (the "Acquisition"). In
consideration of us agreeing to make available to you certain information,
by your signature of a copy of this letter you agree as follows:
1. Confidentiality Undertaking
You undertake (a) to keep the Confidential Information confidential
and not to disclose it to anyone except as provided for by paragraph 2
below and to ensure that the Confidential Information is protected
with security measures and a degree of care that would apply to your
own confidential information, (b) to use the Confidential Information
only for the Permitted Purpose, (c) to use all reasonable endeavours
to ensure that any person to whom you pass any Confidential
Information (unless disclosed under paragraph 2[(c)/(d)] below)
acknowledges and complies with the provisions of this letter as if
that person were also a party to it, and (d) not to make enquiries of
any member of the Group or any of their officers, directors, employees
or professional advisers relating directly or indirectly to the
Acquisition.
2. Permitted Disclosure
We agree that you may disclose Confidential Information:
2.1 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)
-82-
2.2 [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.
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).
-83-
6. No Representation; Consequences of Breach, etc
You acknowledge and agree that:
(a) neither we, [nor our principal] nor any member of the Group
nor any of our or their respective officers, employees or
advisers (each a "Relevant Person") (i) make any representation
or warranty, express or implied, as to, or assume any
responsibility for, the accuracy, reliability or completeness of
any of the Confidential Information or any other information
supplied by us or the assumptions on which it is based or (ii)
shall be under any obligation to update or correct any inaccuracy
in the Confidential Information or any other information supplied
by us or be otherwise liable to you or any other person in
respect to the Confidential Information or any such information;
and
(b) we [or our principal](4) or members of the Group may be
irreparably harmed by the breach of the terms hereof and damages
may not be an adequate remedy; each Relevant Person may be
granted an injunction or specific performance for any threatened
or actual breach of the provisions of this letter by you.
7. No Waiver; Amendments, etc
This letter sets out the full extent of your obligations of
confidentiality owed to us in relation to the information the subject
of this letter. No failure or delay in exercising any right, power or
privilege hereunder will operate as a waiver thereof nor will any
single or partial exercise of any right, power or privilege preclude
any further exercise thereof or the exercise of any other right, power
or privileges hereunder. The terms of this letter and your obligations
hereunder may only be amended or modified by written agreement between
us.
8. Inside Information
You acknowledge that some or all of the Confidential Information is or
may be price-sensitive information and that the use of such
information may be regulated or prohibited by applicable legislation
relating to insider dealing and you undertake not to use any
Confidential Information for any unlawful purpose.
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.
-84-
(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;
"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
-85-
[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]
-86-
SCHEDULE 8
TIMETABLES
Part I
Loans
Loans in euro Loans in Loans in other
or dollars sterling currencies
Agent notifies the Borrower if a currency - - U-4
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) 9.30am 9.30am 9.30am
Agent determines (in relation to a U-1 U-3
Utilisation) the Base Currency Amount of
the Loan, if required under Clause 5.4 - noon noon
(Lenders' participation)
Agent notifies the Lenders of the Loan in U-3 U-1 U-3
accordance with Clause 5.4 (Lenders'
participation) 3.00pm 3.00pm 3.00pm
Agent receives a notification from a U-1 U-3
Lender under Clause 6.2 (Unavailability
of a currency) - 5.00pm 5.00pm
Agent gives notice in accordance with U U-2
Clause 6.2 (Unavailability of a currency)
- 9.30am 9.30am
LIBOR or EURIBOR is fixed Quotation Day as of Quotation Day Quotation Day as
11:00 a.m. London time as of 11:00 of 11:00 a.m.
in respect of LIBOR a.m.
and as of 11.00 a.m.
Brussels time in
respect of EURIBOR
"U" = date of utilisation
"U - X" = X Business Days prior to date of utilisation
-87-
Part II
Bank Guarantee
Delivery of a duly completed Utilisation Request U-3 9.30 a.m.
(Clause 7.3 (Delivery of a Utilisation
Request for Bank Guarantee))
Delivery of a duly completed Renewal Request U-3 9.30 a.m.
(Clause 7.7 (Renewal of a Bank Guarantee)
"U" = date of utilisation
"U - X" = Business Days prior to date of utilisation
-88-
SCHEDULE 9
FORM OF SVG DIAMOND BANK GUARANTEE
SVG Diamond Holdings Limited
▇▇ ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Dear Sirs
GUARANTEE
1. We are informed that SVG Capital plc, a company incorporated in England
and Wales with registered number 3066856, (the "Equity Contributor") has
agreed to make equity contributions on or prior to the date of this
guarantee to you as contemplated under the terms of the memorandum and
articles of association dated 28 September 2004 of SVG Diamond Holdings
Limited (the "Memorandum and Articles").
2. We, The Royal Bank of Scotland plc of Trade Services, City International
Banking Centre, P O ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, the
United Kingdom, hereby give you (subject to the terms and conditions stated
below) our irrevocable and unconditional guarantee and undertake to pay you
any amount or amounts not exceeding the Total Aggregate Amount in respect
of a claim made upon us alleging a failure by the Equity Contributor to
perform any payment obligation in relation to PEI Preferred Equity Shares
(as defined in the Memorandum and Articles) including any payment
obligation in relation to any Callable Subscription Monies (as defined in
the Memorandum and Articles) in respect of the Equity Contributor under the
Memorandum and Articles provided that our aggregate liability under this
guarantee in respect of a claim or claims made upon us alleging such a
failure by the Equity Contributor shall not exceed the Total Aggregate
Amount.
"Total Aggregate Amount" means EUR72,000,000.
3. Any such amount or amounts will be paid within ten Business Days after
the receipt by us at any time, at the then effective address for delivery
to us on a Business Day in accordance with paragraph 6 below, of all of the
following:
(a) your demand in writing substantially in the form scheduled hereto
to us; and
(b) a copy of this guarantee.
For the avoidance of doubt, it is hereby confirmed that this guarantee
constitutes our direct obligation to make payment in accordance with the
terms of this guarantee and without reference to the Equity Contributor or
any other person, whether or not the Equity Contributor or any other person
disputes the truth or accuracy of any statement made in your demand and
without examination of the liability of the Equity Contributor under the
Memorandum and Articles.
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4.
(a) Payment by us to you of all and any sums paid by us under this
guarantee shall be a good discharge of our liability under this
guarantee to the extent of the sum(s) so paid and we shall not be
concerned to see to the application of any such sum(s).
(b) We may rely on any demand or other documents or information
believed by us to be genuine and correct and to have been signed or
communicated by the person(s) by whom it purports to have been signed
or communicated and we shall not be liable for the consequences of
such reliance and shall have no obligation to verify that the facts or
matters stated therein are true and correct.
5.
(a) This guarantee will expire at 11.00am (London time) on the date
falling 90 months after the date of this guarantee (the "Expiry Date")
except in respect of any written demand for payment complying with all
the requirements hereof received by us at our then effective address
for delivery applicable under paragraph 6 below before 11.00 am
(London time) on the Expiry Date. After such time, this guarantee
shall be null and void and we shall have no liability under it,
whether returned to us or not, save to the extent of any demand
delivered to us prior to such time which complies with the
requirements of this guarantee.
(b) Our obligations under this guarantee will not be affected by any
act, omission, matter or thing which, but for this clause would
reduce, release or prejudice any of our obligations under this clause
(without limitation and whether or not known to us or any other
person) including:
(i) any time, waiver or consent granted to, or composition with,
the Equity Contributor under this guarantee;
(ii) the release of the Equity Contributor under the terms of any
composition or arrangement;
(iii)the taking, variation, compromise, exchange, renewal or
release or, or refusal or neglect to perfect, take up or enforce,
any rights against, or security over assets of, the Equity
Contributor under this guarantee 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 the Equity Contributor under this guarantee;
(v) any enforceability, illegality or invalidity of any
obligation of the Equity Contributor under the Memorandum and
Articles; or
(vi) any insolvency or similar proceedings affecting the Equity
Contributor.
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6. Where a notice or demand relating to this guarantee is given by you to
us, it may be serviced by leaving it or sending it by recorded delivery
post to us at:
The Royal Bank of Scotland plc
Trade Services
City International Banking Centre
P O Box 39971
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marked for the attention of Bonds and Guarantees
(or such other address in the United Kingdom as we notify you from time to
time), and to you at your address stated above (or such other address in
the United Kingdom as you notify us in writing from time to time).
7. We hereby waive any right we may have of first requiring you to proceed
against or enforce any other rights or security or claim payment from any
person before claiming from us under this guarantee. This waiver applies
irrespective of any law to the contrary.
8. Payment of any demand complying with the requirements of this guarantee
shall be made by us in euros to such bank(s) in the United Kingdom as you
shall specify in your demand. For the avoidance of doubt, our aggregate
liability under this guarantee (and the figures in paragraph 2 above) will
reduce on a euro for euro basis for each payment made by us by virtue of
this guarantee.
9. The benefit of this guarantee is personal to you and may not be assigned
or transferred without our prior written consent. We hereby agree to the
assignment by way of security of the benefits of this guarantee to the PEI
Trustee (as defined in the Memorandum and Articles) to secure amounts owing
under and in relation to the PEI Notes (as defined in the Memorandum and
Articles) and the trust deed constituting the PEI Notes.
10. For the purposes of this guarantee, "Business Day" has the meaning
given to such term in the Memorandum and Articles
11. This guarantee is governed by, and construed in accordance with,
English law and shall be subject to the exclusive jurisdiction of the
English courts.
SUBSCRIBED FOR AND ON BEHALF OF )
THE ROYAL BANK OF SCOTLAND plc )
by [ ] acting under a power of attorney in his )
favour dated 30 October 2003 at Edinburgh )
on [ ] )
In the presence of:
Signature of Witness: ____________________________
Full Name of Witness: ____________________________
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Address: The Royal Bank of Scotland plc
Bonds and Guarantees
Trade Services
City International Banking Centre
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SCHEDULE
Form of Demand
The Royal Bank of Scotland plc
Trade Services
City International Banking Centre
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Attention: Bonds and Guarantees
Dated: [o]
Dear Sirs
We refer to the guarantee issued by you to us dated [o] 2004 in relation to
certain payment obligations of [o] (the "Guarantee"). A copy of the Guarantee is
appended to this demand.
Terms used in this demand shall have the same meanings as given to them in the
Guarantee unless otherwise defined in this demand.
We confirm the following:
1. the Equity Contributor is obliged to pay us EUR[o] in relation to PEI
Preferred Equity Shares under the Memorandum and Articles on [o] [specify
date for satisfaction] (the "Memorandum and Articles Obligation") after we
made a call in relation to the Callable Subscription Monies in respect of
the Equity Contributor on [ ];
2. the Memorandum and Articles Obligation has not been cancelled or
fulfilled in full;
3. we have demanded that the Equity Contributor fulfil the Memorandum and
Articles Obligation [in full] which it has failed to do within the time
specified in our demand; and
4. accordingly, the Memorandum and Articles Obligation of EUR[o] is due and
payable under the Memorandum and Articles and has not been paid.
We hereby demand you to pay us EUR[o] within ten Business Days of your receipt
of this demand into the following account:
Account No.:
Bank:
Sort Code:
Name of Account:
Reference:
Yours faithfully
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.......................
for and on behalf of
SVG Diamond Holdings Limited
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SIGNATURES
The Borrower
SVG CAPITAL PLC
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The Joint Lead Arrangers
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
By: ▇▇▇ ▇▇▇▇▇▇
THE ROYAL BANK OF SCOTLAND PLC
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The Agent
THE ROYAL BANK OF SCOTLAND PLC
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The Original Lenders
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
By: ▇▇▇ ▇▇▇▇▇▇
THE ROYAL BANK OF SCOTLAND PLC
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
The Issuing Bank
THE ROYAL BANK OF SCOTLAND PLC
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ DIAMOND BANK GUARANTEE LETTER
From: SVG Capital plc
To: [Agent]
Dated:
Dear Sirs
SVG Capital plc
EUR600,000,000 Facility Agreement
dated ___ March 2006
(the "Facility Agreement")
1. We refer to the Facility Agreement. Unless otherwise defined, terms
defined in the Facility Agreement have the same meaning when used in this
letter, which is a Further Diamond Bank Guarantee Letter.
2. In this letter:
(i) "Callable Subscription Monies [III/IV]" has the meaning given to
that term in the Memorandum and Articles of Association of SVG Diamond
Holdings [III/IV] Limited;
(ii) "Further Current Outstanding Amount" means at any time during a
Calculation Period, the aggregate of the Remaining Initial Issue Price
[III/IV] at that time and an amount equal to EURIBOR applied to the
Remaining Initial Issue Price [III/IV] from time to time in respect of
that Calculation Period and EURIBOR applied to the Remaining Initial
Issue Price [III/IV] from time to time in respect of each Calculation
Period falling prior to that Calculation Period, less an amount equal
to the amount by which the total of (i) any Callable Subscription
Monies [III/IV] paid by us in respect of PEI Preferred Equity Shares
[III/IV] which have been held by the Borrower and (ii) the Callable
Subscription Monies [III/IV], in respect of each PEI Preferred Equity
Share [III/IV] which we have disposed of (and therefore it would have
no liability on a call in respect of such share), at the time of the
relevant disposal, exceeds the Satisfied Initial Issue Price [III/IV];
(iii)"PEI Preferred Equity Shares [III/IV]" has the meaning given to
that term in the Memorandum and Articles of Association of SVG Diamond
Holdings [III/IV] Limited [but shall not include any [insert
description of any shares which will not be covered by the
guarantee]];
(iv) "Remaining Initial Issue Price [III/IV]" means at any time [euro]
[o] less the Satisfied Initial Issue Price [III/IV]; and
(v) "Satisfied Initial Issue Price [III/IV]" means at any time the
amount of Callable Subscription Monies [III/IV] which have been paid
by us, and which are not attributable to EURIBOR, in respect of the
PEI Preferred Equity Shares [III/IV] held by us at that time, together
with [insert nominal share value] for each PEI Preferred Equity Share
[III/IV] which has been, but at that time is no longer, held by us.
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3. We wish to arrange for a Further Diamond Bank Guarantee to be issued by
the Issuing Bank on the following terms:
Proposed Utilisation Date: [ ] (or, if that is not a Business Day,
the next Business Day)
Amount: [ ] or, if less, the Available Facility
Base Currency Amount : [ ]
Beneficiary: [ ]
Term or Expiry Date: [ ]
4. We hereby agree, for the purposes of Clause 8.1(d) of the Facility
Agreement, that within 5 Business Days of us becoming aware that the
Further Current Outstanding Amount is equal to or greater than the Total
Aggregate Amount (as defined in the attached Further Diamond Bank
Guarantee), we will pay the Callable Subscription Monies [III/IV] in
respect of all our PEI Preferred Equity Shares [III/IV] to the issuer in
accordance with article [o] of the Memorandum and Articles of Association
of SVG Diamond Holdings [III/IV] Limited.
5. We hereby agree, for the purposes of Clause 8.3(a) of the Facility
Agreement, to pay a bank guarantee fee in euros which shall be the
aggregate of (A) an amount computed at the same rate as the Margin on the
Further Current Outstanding Amount less the amount of cash cover (if any)
provided by us in respect of all or any part of the Further Diamond Bank
Guarantee to which this letter relates and (B) an amount computed at the
same rate as the commitment fee set out in Clause 14.1 (Commitment fee) on
the difference between the Total Aggregate Amount (as defined in the
attached Further Diamond Bank Guarantee) and the Further Current
Outstanding Amount.
6. We hereby agree, for the purposes of Clause 21.4(e) of the Facility
Agreement, to provide details of the amount of any Callable Subscription
Monies [III/IV] paid by us or of any disposals or other dealings by us in
any PEI Preferred Equity Shares [III/IV] in respect of which there are
Callable Subscription Monies [III/IV] to enable the Lenders to calculate
the Further Current Outstanding Amount.
7. We confirm that each condition specified in Clause 7.6(b) of the
Facility Agreement is satisfied on the date of this letter.
8. We attach a copy of the proposed Bank Guarantee.
9. This letter is irrevocable.
Delivery Instructions:
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[specify delivery instructions]
We would be grateful if you would sign and return the enclosed copy of this
letter as confirmation that the Lenders and the Issuing Bank have approved this
letter as a Further Diamond Bank Guarantee Letter, designated the attached Bank
Guarantee as a Diamond Bank Guarantee and, to the extent the expiry date of the
attached Bank Guarantee is later than the Termination Date, approved such expiry
date.
Yours faithfully
..................
authorised signatory for
SVG Capital plc
We acknowledge and agree to the above:
.................................
For and on behalf of The Royal Bank of Scotland plc (as Agent)
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