EXHIBIT 10.4
Execution Copy
DATED 3 MARCH 2000
UNITED SURGICAL PARTNERS EUROPE S.L.
AND CERTAIN MATERIAL SUBSIDIARIES
AS ORIGINAL BORROWERS
UNITED SURGICAL PARTNERS EUROPE S.L.
AND CERTAIN MATERIAL SUBSIDIARIES
AS ORIGINAL GUARANTORS
SOCIETE GENERALS, SUCURSAL EN ESPANA
AS ARRANGER
SOCIETE GENERALS, SUCURSAL EN ESPANA
AS AGENT
AND
OTHERS
______________________________
100,000,000
SENIOR TERM FACILITY AGREEMENT
______________________________
CONTENTS
CLAUSE PAGE
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1. DEFINITIONS AND INTERPRETATION ................................. 3
2. THE FACILITIES ...........................:..................... 24
3. UTILISATION OF THE TERM FACILITY ............................... 25
4. INTEREST PERIODS FOR TERM ADVANCES ............................. 27
5. PAYMENT AND CALCULATION OF INTEREST ON TERM ADVANCES ........... 28
6. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES ............... 30
7. NOTIFICATION ................................................... 31
8. REPAYMENT OF THE TERM FACILITY ................................. 32
9. PREPAYMENT...................................................... 32
10. REMOVAL OF BANKS ............................................... 34
11. TAXES .......................................................... 35
12. TAX RECEIPTS ................................................... 36
13. INCREASED COSTS ................................................ 37
14. ILLEGALITY ..................................................... 38
15. MITIGATION...................................................... 39
16. REPRESENTATIONS ................................................ 39
17. FINANCIAL INFORMATION .......................................... 46
18. OTHER INFORMATION .............................................. 50
19. FINANCIAL CONDITION ............................................ 51
20. COVENANTS....................................................... 56
21. EVENTS OF DEFAULT .............................................. 67
22. GUARANTEE AND INDEMNITY ........................................ 71
23. COMMITMENT COMMISSION AND FEES ................................. 74
24. COSTS AND EXPENSES.............................................. 75
25. DEFAULT INTEREST AND BREAK COSTS ............................... 76
26. USPE's INDEMNITIES ............................................. 77
27. CURRENCY OF ACCOUNT AND PAYMENT ................................ 78
28. PAYMENTS ....................................................... 79
29. SET-OFF......................................................... 81
30. SHARING......................................................... 81
31. THE AGENT, THE ARRANGER, THE BANKS ............................. 82
32. ASSIGNMENTS AND TRANSFERS ...................................... 87
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33. ADDITIONAL BORROWERS .......................................... 90
34. ADDITIONAL GUARANTORS ......................................... 91
35. CALCULATIONS AND EVIDENCE OF DEBT ............................. 91
36. REMEDIES AND WAIVERS, PARTIAL INVALIDITY ...................... 93
37. NOTICES........................................................ 93
38. COUNTERPARTS .................................................. 95
39. AMENDMENTS..................................................... 95
40. GOVERNING LAW ................................................. 96
41. JURISDICTION .................................................. 96
SCHEDULES
SCHEDULE 1 - The Banks ........................................... 97
SCHEDULE 2 - Form of Transfer Certificate ........................ 101
SCHEDULE 3 - Part 1: Conditions Precedent to Drawdown ............ 109
SCHEDULE 3 - Part 2: Conditions Precedent to a Permitted
Acquisition......................................... 112
SCHEDULE 4 - Notice of Drawdown .................................. 113
SCHEDULE 5 - Form of Compliance Certificate ...................... 114
SCHEDULE 6 - Form of Borrower Accession Memorandum ............... 115
SCHEDULE 7 - Form Guarantor Accession Memorandum ................. 117
SCHEDULE 8 - Additional Conditions Precedent ..................... 119
SCHEDULE 9 - Form of Resignation Notice .......................... 121
SCHEDULE 10 - Mandatory Costs ..................................... 122
SCHEDULE 11 - Real Estate ......................................... 127
SCHEDULE 12 - Form of Spanish Mortgage ............................ 131
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THIS AGREEMENT is made on 3 March 2000
BETWEEN
(1) UNITED SURGICAL PARTNERS EUROPE, S.L. ("USPE") in its capacity as borrower
hereunder (together with CLINICA SAGRADO CORAZON, S.L., the "ORIGINAL
BORROWERS");
(2) UNITED SURGICAL PARTNERS EUROPE, S.L. ("USPE") in its capacity as
guarantor hereunder (together with CLINICA SAGRADO CORAZON, S.L., CLINICA
MATERNAL NUESTRA SEN0RA DE LA ESPERANZA, S.A., USP ▇▇▇▇▇▇, ▇.▇., USP
MALAGA, S.L. and COLUMBIA HEALTHCARE CORPORATION OF SPAIN, S.L., the
"ORIGINAL GUARANTORS");
(3) SOCIETE GENERALE, SUCURSAL EN ESPANA as arranger of the Facility (the
"ARRANGER") and as agent for the Banks (the "AGENT"); and
(4) THE BANKS (as defined below).
IT IS AGREED as follows.
1. DEFINITIONS AND INTERPRETATION
1.1. DEFINITIONS
In this Agreement:
"ACCESSION MEMORANDUM" means a Borrower Accession Memorandum or a
Guarantor Accession Memorandum.
"ACQUISITION" means the purchase of all or substantially all of the shares
or assets of a company;
"ACQUISITION COSTS" means all fees, costs and expenses, stamp,
registration and other taxes incurred by USPE or any other member of the
Group in connection with a Permitted Acquisition, the Facilities or the
Finance Documents.
"ACQUISITION FEASIBILITY MEMORANDUM" means, in relation to a Permitted
Acquisition, the acquisition feasibility memorandum (to be delivered to
the Agent as a condition precedent to a Permitted Acquisition, unless such
Advance is used solely for refinancing senior or subordinated debt of the
Borrower to whom the Advance is being made) describing the Permitted
Acquisition and prepared in accordance with the Acquisition Policy
including a report detailing the extent to which such acquisition deviates
(if at all) from the Acquisition Policy together with the rationale for
such deviation.
"ACQUISITION POLICY" means the acquisition policy of the Group reasonably
acceptable to the Agent (acting on the instructions of an Instructing
Group).
"ADDITIONAL BORROWER" means any company which has become an Additional
Borrower in accordance with Clause 33 (ADDITIONAL BORROWERS).
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"ADDITIONAL GUARANTOR" means any company which has become an Additional
Guarantor in accordance with Clause 34 (ADDITIONAL GUARANTORS).
"ADDITIONAL OBLIGOR" means an Additional Borrower or Additional Guarantor.
"ADVANCE" means a Term A Advance or Term B Advance.
"ANCILLARY LIABILITIES" means:
(a) any refinancing, novation, refunding, deferral or extension of any
of those liabilities;
(b) any further advance which may be made under any agreement
supplemental to the relevant facilities agreement plus all interest,
fees and costs in connection therewith;
(c) any claim for damages or restitution in the event of rescission of
any such liabilities or otherwise in connection with the relevant
facilities agreement;
(d) any claim against any Obligor flowing from any recovery by an
Obligor of a payment or discharge in respect of those liabilities on
the grounds of preference or otherwise; and
(e) any amounts (such as post-insolvency interest) which would be
included in any of the above but for any discharge, non-provability,
unenforceability or nonallowability of the same in any insolvency or
other proceedings.
"APPLICABLE A MARGIN" means, in relation to the Term A Outstandings and
subject to Clause 5.3 (TERM MARGIN RATCHET), 1.75% per annum.
"APPLICABLE B MARGIN" means, in relation to the Term B Outstandings and
subject to Clause 5.4 (APPLICABLE B MARGIN INCREASE), 2.25% per annum.
"AUTHORISED SIGNATORY" means, in relation to an Obligor or proposed
Obligor, any person who is duly authorised (in such manner as may be
reasonably acceptable to the Agent) to sign, seal or execute documents on
behalf of such Obligor or Additional Obligor and to take such action as is
required of an Authorised Signatory under the Finance Documents and in
respect of whom the Agent has received a certificate signed by a director
or another Authorised Signatory of such Obligor or Additional Obligor
setting out the name and signature of such person and confirming such
person's authority to act or, in the case of any Obligor which is
incorporated in Spain, a copy of a duly executed Power of Attorney in
favour of any such person(s) so authorising such person.
"AVAILABLE COMMITMENT" means, in relation to a Bank at any time and save
as otherwise provided herein, the aggregate of its Available Term A
Commitment and its Available Term B Commitment at such time.
"AVAILABLE TERM A COMMITMENT" means, in relation to a Bank at any time and
save as otherwise provided herein, its Term A Commitment at such time LESS
the aggregate of its share of the Term A Advances which are then
outstanding.
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"AVAILABLE TERM B COMMITMENT" means, in relation to a Bank at any time and
save as otherwise provided herein, its Term B Commitment at such time LESS
the aggregate of its share of the Term B Advances which are then
outstanding.
"AVAILABLE FACILITIES" means, at any time, the aggregate of the Available
Term A Facility and the Available Term B Facility at such time and
"AVAILABLE TERM FACILITY" means the amount of any such available facility.
"AVAILABLE TERM A FACILITY" means, at any time, the aggregate amount of
the Available Term A Commitments adjusted, in the case of any proposed
utilisation, so as to take into account any reduction in the Term A
Commitment of a Bank on or before the proposed Utilisation Date relating
to such utilisation.
"AVAILABLE TERM B FACILITY" means, at any time, the aggregate amount of
the Available Term B Commitments adjusted, in the case of any proposed
utilisation, so as to take into account any reduction in the Term B
Commitment of a Bank on or before the proposed Utilisation Date relating
to such utilisation.
"BANK" means any financial institution:
(a) named in Schedule 1 (THE BANKS); or
(b) which has become a party hereto in accordance with Clause 32.4
(ASSIGNMENTS BY BANKS) or Clause 32.5 (TRANSFERS BY BANKS),
and which has not ceased to be a party hereto in accordance with the terms
hereof.
"BORROWERS" means each of the Original Borrowers and each Additional
Borrower, PROVIDED THAT such company has not been released from its rights
and obligations hereunder in accordance with Clause 33.3 (RESIGNATION OF A
BORROWER).
"BORROWER ACCESSION MEMORANDUM" means a memorandum substantially in the
form set out in Schedule 6 (FORM OF BORROWER ACCESSION MEMORANDUM).
"BUDGET" means the profit and loss account, balance sheet and cashflow
statement in agreed form for an agreed period to be delivered by USPE to
the Agent pursuant to Clause 20.37 (CONDITIONS SUBSEQUENT) and thereafter
any. budget delivered by USPE to the Agent pursuant to Clause 17.6
(BUDGET).
"BUSINESS DAY" means a day (other than a Saturday or Sunday) which is not
a public holiday and on which banks are open for general business in
London and Madrid.
"BUSINESS PLAN" means the financial model including profit and loss,
balance sheets and cash flow projections in agreed form relating to the
Group (and, in connection with a Permitted Acquisition, for these purposes
assuming completion of such Permitted Acquisition and accordingly
including the proposed Target and its subsidiaries) together with a
written business plan in agreed form, each prepared by senior management
and delivered to the Agent in accordance with Clause 20.37 (CONDITIONS
SUBSEQUENT).
"CASH EQUIVALENT INVESTMENTS" means:
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(a) debt securities denominated in euro, sterling or dollars issued by
the United Kingdom, the United States of America or any other
country in the European Union which are not convertible into any
other form of security;
(b) debt securities denominated in euro or sterling which are not
convertible into any other form of security, rated P-1 (▇▇▇▇▇'▇
Investor Services Inc.) or A-1 (Standard & Poor's Corporation)
which are not issued or guaranteed by any member of the Group;
(c) certificates of deposit denominated in euro or sterling issued by,
and acceptances by, banking institutions authorised under applicable
legislation of the United Kingdom which at the time of making such
issue or acceptances, have outstanding debt securities rated as
provided in paragraph (b) above; and
(d) such other securities (if any) as are approved in writing by the
Agent.
"CERTIFICATES OF TITLE" means each of the reports on title prepared in
respect of the Properties each in form and substance reasonably
satisfactory to the Agent (acting on the instructions of an Instructing
Group) and addressed to the Agent and the Banks.
"CLOSING DATE" means the date upon which this Agreement was signed.
"COMMITMENT" means, in relation to a Bank at any time and save as
otherwise provided herein, the aggregate of its Term A Commitment and its
Term B Commitment.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form set
out in Schedule 5 (FORM OF COMPLIANCE CERTIFICATE).
"DISPUTE" means any dispute referred to in Clause 41 (JURISDICTION).
"DOMESTIC BANK" means any person described in paragraph c) of Article 57
of Royal Decree 537/1997 of 14 April (REAL DECRETO ▇▇▇/▇▇▇▇ ▇▇ ▇▇ ▇▇
▇▇▇▇▇) as amended by Royal Decree 2717/1998 of 18 December (REAL DECRETO
1717/1998 DE 18 DE DICIEMBRE) and second paragraph of Number 1 of Article
41 of Royal Decree 2717/1998 of 18 December (REAL DECRETO 2717/1998 DE 18
DE DICIEMBRE).
"DUE DILIGENCE REPORT" means the legal due diligence report relating to a
Permitted Acquisition in form and substance reasonably satisfactory to the
Agent (acting on the instructions of an Instructing Group) and addressed
to the Agent and the Banks.
"EBITDA" shall have the meaning set out in Clause 19.2.
"EMU" means Economic and Monetary Union as contemplated in the Treaty on
European Union.
"EMU LEGISLATION" means legislative measures of the European Union for the
introduction of, changeover to or operation of the euro in one or more
member states, being in part legislative measures to implement EMU.
"ENCUMBRANCE" means (a) a mortgage, charge, pledge, lien or other
encumbrance securing any obligation of any person, (b) any arrangement
under which money or
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claims to, or the benefit of, a bank or other account may be applied, set
off or made subject to a combination of accounts so as to effect discharge
of any sum owed or payable to any person or (c) any other type of
preferential arrangement (including any title transfer and retention
arrangement) having a similar effect.
"ENVIRONMENTAL CLAIM" means any claim, proceeding or investigation by any
person pursuant to any Environmental Law.
"ENVIRONMENTAL LAW" means any applicable law in any jurisdiction in which
any member of the Group conducts business which relates to the pollution
or protection of the environment or harm to or the protection of human
health or the health of animals or plants.
"ENVIRONMENTAL PERMITS" means any permit, licence, consent, approval and
other authorisation and the filing of any notification, report or
assessment required under any Environmental Law for the operation of the
business of any member of the Group conducted on or from the properties
owned or used by the relevant member of the Group.
"EURIBOR" MEANS, in relation to any amount to be advanced to, or owing by,
an Obligor hereunder in euro on which interest for a given period is to
accrue:
(a) the percentage rate per annum equal to the offered quotation which
appears on the page of the Telerate Screen which displays an average
rate of the Banking Federation of the European Union for the euro
(being currently page 248) for such period as of 11:00 a.m.
(Brussels time) on the Quotation Date for such period or, if such
page or such service shall cease to be available, such other page or
such other service for the purpose of displaying an average rate of
the Banking Federation of the European Union as the Agent, after
consultation with the Banks and USPE, shall reasonably select; or
(b) if no quotation for the euro for the relevant period is displayed
and the Agent has not selected an alternative service on which a
quotation is displayed, the arithmetic mean (rounded upwards to four
decimal places) of the rates (as notified to the Agent) at which
each of the Reference Banks was offering to prime banks in the
European interbank market deposits in the euro of an equivalent
amount and for such period as of 11.00 a.m. (Brussels time) on the
Quotation Date.
"EVENT OF DEFAULT" means any circumstance described as such in Clause 21
(EVENTS OF DEFAULT).
"EXCESS CASH FLOW" has the meaning given to it in Clause 19.2 (FINANCIAL
DEFINITIONS).
"FACILITIES" means the Term Facilities.
"FACILITY OFFICE" means, in relation to the Agent, the office identified
with its signature below or such other office as it may select by notice
and, in relation to any Bank, the office notified by it to the Agent in
writing prior to the date hereof (or, in the case of a Transferee, at the
end of the Transfer Certificate to which it is a party as Transferee) or
such other office as it may from time to time select by notice to the
Agent which in the
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case of any Banks becoming a party hereto prior to the Syndication Date
shall be in a Qualifying State or Spain.
"FINAL MATURITY DATE" means (i) in relation to the Term A Facility the
date falling 90 months after the Closing Date and (ii) in relation to the
Term B Facility the date falling 96 months after the Closing Date,
PROVIDED THAT, in either case, if such date is not a Business Day, it
shall be deemed to be the next succeeding Business Day.
"FINANCE DOCUMENTS" means this Agreement, any Borrower Accession
Memorandum or Guarantor Accession Memorandum, the fee letters referred to
in Clause 23.3 (ARRANGEMENT FEE) and Clause 23.4 (AGENCY FEE), the
Security Documents, and the Hedging Agreements entered into by a Bank or
an affiliate of a Bank (but not any other financial institution) and any
documents evidencing the terms of any other agreement or document that may
be entered into or executed pursuant to any of the foregoing by any
Obligors and any other document which is designated a "FINANCE DOCUMENT"
in writing signed by all Obligors and the Agent.
"FINANCE LEASE" means a contract treated as a finance or capital lease in
accordance with generally accepted accounting principles in the
jurisdiction where the company owning the asset is incorporated.
"FINANCE PARTIES" means the Agent, the Arranger, the Banks and any Hedge
Counterparties which are Banks or affiliates of Banks.
"FINANCIAL INDEBTEDNESS" means any indebtedness for or in respect of:
(a) Indebtedness for Borrowed Money;
(b) any documentary or standby letter of credit or performance bond
facility; and
(c) any guarantee or indemnity issued in connection with any of the
items referred to in paragraphs (a) to (b) above.
"FINANCIAL QUARTER" has the meaning given to it in Clause 19.2 (FINANCIAL
DEFINITIONS).
"FLOTATION" means a successful application being made for any part of the
share capital of any Group member to the Madrid, Barcelona, Valencia or
Bilbao Stock Exchange or any other European Stock Exchange or the grant of
permission to deal in the same on the Alternative Investment Market or the
European Acquisition of Securities Dealers Automated Quotation System or
on any recognised investment exchange (as that term is used in the
Financial Services Act 1986) or in or on any exchange or market replacing
the same or any other exchange or market in any country.
"FREE CASH FLOW" has the meaning given to such term in Clause 19.2
(FINANCIAL DEFINITIONS).
"GUARANTORS" means each of the Original Guarantors and each Additional
Guarantor.
"GUARANTOR ACCESSION MEMORANDUM" means a memorandum substantially in the
form set out in Schedule 7 (FORM OF GUARANTOR ACCESSION MEMORANDUM).
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"GROSS DEBT" shall have the meaning set out in Clause 19.2.
"GROUP" means USPE and its subsidiaries for the time being and, from and
after the date of acquisition thereof, any Target and its subsidiaries.
"GROUP STRUCTURE CHART" means the group structure chart at the date hereof
and from time to time in agreed form showing:
(a) all members of the Group;
(b) any person in which any Group member has a material interest in the
issued share capital or equivalent ownership interest of such
person; and
(c) the jurisdiction of incorporation or establishment of each person
within paragraph (a) above.
"HEDGE COUNTERPARTY" means a Bank or an affiliate of a Bank which has
become a party hereto.
"HEDGING AGREEMENTS" means each of the agreements entered into or to be
entered into between the Group member(s) approved by the Agent and a Hedge
Counterparty for the purpose of hedging interest rate liabilities in
accordance with Clause 20.33 (HEDGING).
"HMT SHARE PLEDGES" means the pledges granted by the Hospital Management
Team S.L. over its shares in USPE in favour of Banco ▇▇▇▇▇▇▇, ▇.▇.
"INDEBTEDNESS FOR BORROWED MONEY" 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) any amount raised pursuant to any issue of shares which are
expressed to be redeemable and all obligations to purchase, retire,
defease or otherwise acquire for value any share capital of any
person or any warrants, rights or options to acquire such share
capital in respect of transactions which, in each such case, have
the commercial effect of a borrowing or which finance a member of
the Group or the Group's operations or capital requirements;
(e) the amount of any liability in respect of any lease or hire purchase
contract which would be a Finance Lease;
(f) the amount of any liability in respect of any advance or deferred
purchase agreement;
(g) receivables sold or discounted (other than on a non-recourse basis);
(h) any agreement or option to re-acquire an asset if one of the primary
reasons for entering into such agreement or option is to raise
finance;
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(i) any amount raised under any other transaction (including any forward
sale or purchase agreement) having the commercial effect of a
borrowing; and
(j) the amount of any liability in respect of any guarantee or indemnity
for any of the items referred to in paragraphs (a) to (i) above.
"INFORMATION MEMORANDUM" means the document concerning the Original
Obligors which, at their request and on their behalf of the Original
Obligors, has been or will be prepared in relation to the transactions in
this Agreement and approved by USPE and distributed by the Arranger to
selected banks.
"INITIAL INVESTORS" means United Surgical Partners International Inc and
Hospital Management Team, S.L..
"INSTRUCTING GROUP" means:
(a) whilst there are no Outstandings, a Bank or Banks whose Commitments
amount (or, if each Bank's Commitment has been reduced to zero, did
immediately before such reduction to zero, amount) in aggregate to
more than sixty six and two thirds per cent. of the Total
Commitments; and
(b) whilst there are Outstandings, a Bank or Banks to whom in aggregate
more than sixty-six and two thirds per cent. of the Outstandings is
owed.
"INSURANCE REPORT" means an insurance report prepared in form and
substance reasonably satisfactory to the Agent acting on the instructions
of an Instructing Group and addressed to the Agent and the Banks.
"INTERCOMPANY DEBT AGREEMENT" means any loan agreement between any
Obligors, the conditions for payment under which are subordinated
following the occurrence of an Event of Default hereunder.
"INTELLECTUAL PROPERTY" means all patents, trade marks, service marks,
designs, business names, copyrights, design rights, moral rights,
inventions, confidential information, know-how and other intellectual
property rights and interests, whether registered or unregistered, and the
benefit of all licences, applications, rights to use and monies deriving
from any such intellectual property now or hereafter belonging to any
member of the Group.
"INTELLECTUAL PROPERTY RIGHTS" means the intellectual property rights
referred to herein and in a relevant Permitted Acquisition Agreement.
"INTEREST PERIOD" means, save as otherwise provided herein:
(a) any of those periods mentioned in Clause 4.1 (INTEREST PERIODS); and
(b) in relation to an Unpaid Sum, any of those periods mentioned in
Clause 25.1 (DEFAULT INTEREST PERIODS).
"INVESTORS" means the Initial Investors and any successor or permitted
assign or transferee thereof.
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"JOINT VENTURE" means any joint venture entity, whether a company,
unincorporated firm, undertaking, association, joint venture or
partnership or any other entity.
"LEGAL OPINIONS" means the legal opinions delivered to the Agent pursuant
to Clause 2.3 (CONDITIONS PRECEDENT), Clause 33.2 (BORROWER CONDITIONS
PRECEDENT) and Clause 34.2 (GUARANTOR CONDITIONS PRECEDENT).
"LMA" means the Loan Market Association.
"MAIN HOSPITALS" means Instituto Universitario Dexeus (Barcelona), Clinica
Maternal Nuestra Senora de la ▇▇▇▇▇▇▇▇▇ (Vitoria), Instituto Policlinico
Santa ▇▇▇▇▇▇ (La Coruna), Alpha Quirurgica (Madrid), Centro Radiologico
▇▇▇▇ XXIII (Madrid), Clinica ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (Seville) and Clinica San
Camilo, S.A..
"MANDATORY COST RATE" means the rate determined in accordance with
Schedule 10 (MANDATORY COSTS).
"MANDATORY PREPAYMENT ACCOUNT" means the interest-bearing account held in
Madrid with the Agent and identified in a letter between USPE and the
Agent as a Mandatory Prepayment Account (or any other interest-bearing
account held in Madrid with the Agent by a Group member which is opened
after the date hereof and after receipt by the Agent of written
confirmation from USPE that such account is to be a "Mandatory Prepayment
Account") (as the same may be redesignated, substituted or replaced from
time to time) which is put on deposit with the Agent pursuant to the terms
of this Agreement to ensure that prepayment amounts due under the Finance
Documents are available and from which no withdrawals may be made by any
Group members.
"MARGIN" means the Applicable A Margin or the Applicable B Margin.
"MARKET REPORT" means a market report prepared in relation to a Permitted
Acquisition in form and substance reasonably satisfactory to the Agent
(acting on the instructions of an Instructing Group) and addressed to the
Agent and the Banks.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise),
performance or prospects of the Group taken as a whole; (b) the ability of
the Obligors as a whole to perform the payment obligations under the
Finance Documents or (c) the validity or enforceability of the Finance
Documents or the rights or remedies of any Finance Party thereunder, in
each case taken as a whole.
"MATERIAL SUBSIDIARY" means the Obligors, and after the first audited
consolidated financial statements are delivered to the Agent under Clause
17.1 (ANNUAL STATEMENTS), any other subsidiary of USPE which has:
(a) earnings before interest, tax, depreciation and amortisation
representing 3 per cent. or more of the consolidated earnings before
interest, tax, depreciation and amortisation of the Group; and/or
(b) Net Revenue representing 3 per cent. or more of consolidated Net
Revenue of the Group,
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in each case calculated on a consolidated basis. Compliance with the
conditions set out in paragraphs (a) and (h) above shall be
determined by reference to the most recent Compliance Certificate
executed by USPE's auditors and/or the latest audited financial
statements of such subsidiary (consolidated in the case of a
subsidiary which itself has subsidiaries) and the latest audited
consolidated financial statements of the Group PROVIDED THAT:
(i) if a subsidiary has been acquired since the date as at which
the latest audited consolidated financial statements of the
Group were prepared, such financial statements shall be
adjusted in order to take into account the acquisition of such
subsidiary on a Pro Forma Basis (such adjustment being
certified by the Group's auditors as representing an accurate
reflection of the revised consolidated earnings before
interest, tax, depreciation and amortisation or turnover of
the Group if requested by the Agent);
(ii) if, in the case of any subsidiary which itself has
subsidiaries, no consolidated financial statements are
prepared and audited, its consolidated profits before
interest, tax, depreciation and amortisation and turnover
shall be determined on the basis of PRO FORMA consolidated
financial statements of the relevant subsidiary and its
subsidiaries, certified as above for this purpose by the
auditors of USPE or the auditors for the time being of the
relevant subsidiary if requested by the Agent; and
(iii) if any intra-group transfer or re-organisation takes place,
the audited financial statements of the Group and of all
relevant subsidiaries shall be adjusted by USPE in order to
take into account such intra-group transfer or reorganisation.
A report by the auditors of USPE that a subsidiary is or is not a Material
Subsidiary shall, in the absence of manifest error, be conclusive and
binding on all parties hereto.
"NET REVENUE" means "INGRESOS DE EXPLOTACION" as set out in the relevant
financial statements.
"NOTICE OF DRAWDOWN" means a notice substantially in the form set out in
Schedule 4 (NOTICE of DRAWDOWN).
"OBLIGOR" means a Borrower or a Guarantor.
"ORIGINAL FINANCIAL STATEMENTS" means:
(a) in relation to USPE, the opening balance sheet of the Group
delivered to the Agent;
(b) in relation to each Original Obligor other than USPE, its audited
financial statements for its financial year ended 31 December 1998;
and
(c) in relation to any Additional Obligor, its audited financial
statements delivered pursuant to Clause 33.2 (BORROWER CONDITIONS
PRECEDENT) or, as the case may be, Clause 34.2 (GUARANTOR CONDITIONS
PRECEDENT).
- 12 -
"ORIGINAL OBLIGORS" means the Original Borrowers and the Original
Guarantors.
"OUTSTANDINGS" means, at any time, the aggregate of the Term A
Outstandings and the Term B Outstandings at such time.
"PARTICIPATING MEMBER STATE" means each member state which has adopted the
euro as its lawful currency at the relevant time.
"PERMITTED ACQUISITION" means the purchase by the Purchaser of Target
Shares and/or Target Assets subject always to the conditions precedents
set out in Part 2 of Schedule 3 and subject to approval in form and
substance by the Agent (acting on the instructions of an Instructing
Group).
"PERMITTED ACQUISITION AGREEMENT" means a purchase agreement in relation
to a Permitted Acquisition in an agreed form between the Purchaser and a
Vendor together with all schedules, exhibits and attachments to such
agreement (including without limitation, the tax deed).
"PERMITTED ACQUISITION CLOSING DATE" means the date on which a Permitted
Acquisition is completed in accordance with the relevant Permitted
Acquisition Agreement.
"PERMITTED ACQUISITION DOCUMENTS" means a Permitted Acquisition Agreement
and all documents to be executed pursuant thereto and such other documents
(if any) relating to the transactions contemplated in such agreements and
identified by the Agent and USPE in writing as a Permitted Acquisition
Document.
"PERMITTED DISPOSALS" means any disposal:
(a) of stock in trade by a Group member in its ordinary course of trade
and on arm's length terms;
(b) by an Obligor to another Obligor if such Obligor is party to a
legally valid, binding and enforceable Security Document which
creates a first priority Encumbrance over all of its assets (or, if
not all its assets, the assets being disposed of);
(c) of an unencumbered asset by a member of the Group which is not an
Obligor to another member of the Group;
(d) for cash on arm's length terms of any surplus or obsolete assets not
required for the efficient operation of the business of the Group by
any Group member;
(e) of cash where such disposal is not otherwise prohibited by this
Agreement;
(f) of Cash Equivalent Investments on arm's length terms;
(g) by a member of the Group that is not an Obligor to an Obligor;
(h) on arm's length terms of a fixed asset not being any interest in
freehold or leasehold property or intellectual property rights for
cash by a Group member
- 13 -
which disposals are not within paragraph (a) to (g) above and where
the value of the net consideration received by a Group member in
respect OF any such disposal:
(i) does not exceed euro 1,000,000 (or its equivalent); and
(ii) when aggregated with all other such disposals by members of
the Group made in the immediately preceding twelve month
period does not exceed euro 3,000,000 (or its equivalent); and
(iii) any disposal of the Clinica San ▇▇▇▇▇▇ building on terms and
conditions satisfactory to the Agent.
"PERMITTED ENCUMBRANCE" means:
(a) any Encumbrance over or affecting (i) any asset acquired by a member
of the Group after the date hereof and subject to which such asset
is acquired or (ii) any asset of any company which becomes a member
of the Group after the date hereof, where such Encumbrance is
created prior to the date on which such company becomes a member of
the Group, and, in each case, additions and accessions to, and
proceeds of, such assets Provided that the amount originally secured
thereby is not increased, PROVIDED FURTHER THAT, in any case,
(i) such Encumbrance was not created in contemplation of the
acquisition of such asset by a member of the Group or the
acquisition of such company;
(ii) the amount thereby secured has not been increased in
contemplation of, or since the date of, the acquisition of
such asset by a member of the Group or the acquisition of such
company; and
(iii) such Encumbrance is removed or discharged within six months of
the date of acquisition of such asset or such company becoming
a member of the Group;
(b) (i) any netting or set-off arrangement entered into by any member
of the Group in the normal course of its banking arrangements
with any clearing bank for the purpose of netting debit and
credit balances on bank accounts of members of the Group
operated on a net balance basis;
(ii) any netting or set-off arrangement under a Hedging Agreement
where the obligations of other parties thereunder are
calculated by reference to net exposure thereunder (but not
any netting or set-off relating to such Hedging Agreement in
respect of cash collateral or any other Encumbrance except as
otherwise permitted hereunder);
(c) any title transfer or retention of title arrangement entered into by
any member of the Group in the normal course of its trading
activities on the counterparty's standard or usual terms;
- 14 -
(d) any lien arising by operation of law and in the normal course of
business PROVIDED THAT such lien is discharged within ten days of
arising (if capable of being discharged);
(e) any Encumbrance arising under or evidenced by a Security Document;
(f) any Encumbrance entered into pursuant to this Agreement;
(g) for a period of three months after the Closing Date only, any
Encumbrance arising under or pursuant to a USPE Mortgage Agreement;
(h) for a period of six months after the Closing Date only, the HMT
Share Pledges; and
(i) any Encumbrance entered into to as security in respect of any
Permitted Acquisition (whether in relation to litigation in course
at the time of such acquisition or otherwise) by any member of the
Group the amount secured by which does not at any time, when
aggregated with any guarantees granted in accordance with paragraph
(j) of the definition of Permitted Financial Indebtedness exceed
Euro 2,000,000 (such figure excluding any Encumbrances in force at
the Closing Date (Ptas 230,000,000) and those relating to Clinica
San Camilo, S.A. (Ptas 642,000,000) which shall, for the avoidance
of doubt, be permitted).
"PERMITTED FINANCIAL INDEBTEDNESS" means any Financial Indebtedness:
(a) arising under or permitted pursuant to the Finance Documents;
(b) arising under Permitted Transactions;
(c) constituted by any deferred consideration payable to a Vendor under
a Permitted Acquisition Agreement or any acquisition agreement
entered into prior to the Closing Date;
(d) secured by a Permitted Encumbrance of the type specified in
paragraph (a) of the definition thereof;
(e) relating to unsecured working capital financings and Finance Leases
that, in the aggregate do not exceed Euro 3,000,000 in relation to
Main Hospitals and do not exceed an amount equal to 7 per cent. of
pro forma revenues in relation to new Targets up to an aggregate
maximum amount of Euro 12,000,000 (no more than Euro 3,000,000 of
which shall be in respect of Finance Leases), such limit excluding
existing Finance Leases on the Closing Date;
(g) any indebtedness arising under any Intercompany Debt Agreement;
(h) arising under the USPE Mortgage Agreements and any other existing
Financial Indebtedness on the Closing Date for a period of three
months after the Closing Date;
- 15 -
(i) arising under the SG Bridge Loan until repaid in accordance herewith
immediately upon the first Advance being made hereunder,
(j) any liability in respect of any guarantees given by any member of
the Group in relation to any Permitted Acquisition (or required in
relation to any litigation in respect of such matters in course
immediately prior to such acquisition) provided that the contingent
liabilities thereunder do not in aggregate exceed Euro 2,000,000 at
any time (such figure excluding any Encumbrances in force at the
Closing Date (Ptas 230,000,000) and those relating to Clinica San
Camilo, S.A. (Ptas 642,000,000) which shall, for the avoidance of
doubt, be permitted), when aggregated with the amount secured by any
Permitted Encumbrance of the type referred to in paragraph (i) of
the definition thereof;
(k) arising in respect of any Permitted Acquisition for a period of one
month from the date of such Permitted Acquisition.
"PERMITTED TRANSACTIONS" means:
(a) any loan made by a Group member to another Group member PROVIDED
THAT:
(i) such loan is:
(1) an Intercompany Debt Agreement, the documentation for
which is delivered to the Agent pursuant to Clause 2.3
(CONDITIONS PRECEDENT) or has otherwise been delivered
to the Agent; or
(2) a trade credit/or indemnity granted in the ordinary
course of trading and upon terms usual for trade; or
(3) a loan to an Obligor which is subordinated in full to
payment of any amounts in respect of the Finance
Documents upon the occurrence of an Event of Default or
Potential Event of Default; or
(4) a loan by a member of the Group which is not an Obligor
to another member of the Group which is not an Obligor;
and
(ii) in respect of any loan made to a Group member whose shares are
subject to an Encumbrance constituted by the Security
Documents, subject to not being in breach of any applicable
law prohibiting financial assistance, security reasonably
satisfactory to an Instructing Group over such loans has been
provided in favour of the Finance Parties to secure all or any
of the obligations of the Obligors under the Finance
Documents;
(b) the payment or declaration of any dividend, return on capital,
repayment of capital contributions or other distributions by any
Group member OTHER THAN:
(i) by USPE; or
(ii) by a Group member which is an Obligor to another Group member
which is not an Obligor;
- 16 -
(c) the purchase, subscription for, or other acquisition of any shares
(or other securities or any interest therein) in:
(i) any Obligor by any other member of the Group;
(ii) any Group member which is not an Obligor by any other Group
member which is not an Obligor,
PROVIDED THAT, if any such shares (or other securities or any interest
therein) are issued by a Group member whose shares are subject to an
Encumbrance constituted by the Security Documents, in any such case such
shares (or other securities or any interest therein) are made subject to
security reasonably satisfactory to an Instructing Group to secure all the
obligations of the Obligors under the Finance Documents;
(d) any payments made from its profits by a Group member to its minority
shareholders which do not, in aggregate, exceed Euro 200,000 (or the
equivalent thereof in any other currency) in the financial year in
which such payment is made;
(e) the payment of any management fees by a Group member to any Obligor
which do not, in aggregate, exceed more than 10% of such company's
sales in the financial year in which such payment is made;
(f) any payment made of any management fee by USPE Dermostetica, S.L. to
its minority shareholder in accordance with the contract in force as
at the date hereof in relation thereto Provided that any such
amounts shall be limited to those payments contemplated as at the
Closing Date.
"POTENTIAL EVENT OF DEFAULT" means any event which is reasonably likely to
become (with the passage of time, the giving of notice, the making of any
determination hereunder or any combination thereof) an Event of Default.
"PRO FORMA BASIS" means, with respect to the determination of any defined
terms herein, a determination incorporating any assets acquired during the
course of any financial year as though such assets had been acquired at
the beginning of such year (adjusted to take account of all material
future known charges, costs or expenses to be paid in relation to such
assets as though paid during such year and excluding prior year
non-recurring and exceptional material items certified by the financial
director of USPE as such Provided that in the event that the Agent has
reasonable grounds for belief that such items are incorrect, inaccurate or
incomplete, the Agent may request that they be certified by an auditor at
USPE's cost and expense).
"PROPERTIES" means the real estate set out in Schedule 13 and any real
estate as referred to in a relevant Permitted Acquisition Agreement.
"PROPORTION" means, in relation to a Bank, whilst no Advance is
outstanding, the proportion borne by its Commitment to the Total
Commitments (or, if the Total Commitments are less than or equal to zero,
by its Commitment to the Total Commitments immediately prior to their
reduction to zero).
- 17 -
"PURCHASER" means the purchaser as defined in the relevant Permitted
Acquisition Agreement.
"QUALIFYING BANK" means:
(a) any entity habitually resident for taxation purposes in a Qualifying
State which is not acting through a territory considered as a tax
haven pursuant to Spanish law (currently set out in Royal Decree
1080/1991 of 5 July (REAL DECRETO 1080/1991 DE 5 DE ▇▇▇▇▇); or
(b) any Domestic Bank
"QUALIFYING STATE" means a Member State of the European Union (other than
Spain) or a State which has concluded a Treaty for the avoidance of Double
Taxation with Spain containing an exemption for interest payments.
"QUOTATION DATE" means, in relation to any period for which an interest
rate is to be determined hereunder, the day on which quotations would
ordinarily be given by prime banks in the relevant interbank market for
deposits in the currency in relation to which such rate is to be
determined for delivery on the first day of that period, PROVIDED THAT,
if, for any such period, quotations would ordinarily be given on more than
one date, the Quotation Date for that period shall be the last of those
dates.
"REFERENCE BANKS" means the principal Madrid offices of Chase Manhattan
Bank, Deutsche Bank and Societe Generale, Sucursal en Espana and such
Banks as may be appointed as such by the Agent after consultation with
USPE.
"REFINANCING" means any financing from any entity other than a Group
member raised in order, among other things, to fully and finally repay all
amounts owing hereunder.
"RELEVANT PERIOD" shall have the meaning set out in Clause 19.2.
"REPEATED REPRESENTATIONS" means:
(a) on the Closing Date and on the first date on which an Advance is
made under the Facilities, all of the representations set out in
Clause 16 (REPRESENTATIONS); and
(b) at any other time, each of the representations set out in:
(i) Clause 16.1 (STATUS) to Clause 16.11 (NO DEDUCTION OR
WITHHOLDING) other than Clause 16.7 (No MATERIAL ADVERSE
CHARGE);
(ii) Clause 16.12 (REPORTS) to the extent such representation
relates to the most recent Budget delivered to the Agent; and
(iii) Clause 16.14 (NO WINDING-UP) to Clause 16.33 (USPE's
knowledge) other than Clause 16.17 (INFORMATION MEMORANDUM)
and Clause 16.22 (SUBSIDIARIES).
- 18 -
"REPORTS" means the Due Diligence Report, a list of current insurances in
respect of the assets of each member of the Group, the Market Report,
NOTAS SIMPLES REGISTRALES relating to each Property, the Budget for the
financial year of the Group ending 31 December 2000 and other such Budgets
as required from time to time and the Business Plan.
"RESIGNATION NOTICE" means a notice substantially in the form set out in
Schedule 9 (FORM of RESIGNATION NOTICE).
"SECURITY" means the security from time to time constituted by or pursuant
to the Security Documents.
"SECURITY DOCUMENTS" means any document entered into by any member of the
Group creating or evidencing an Encumbrance for all or any part of the
obligations of the Obligors or any of them under any of the Finance
Documents.
"SG BRIDGE LOAN" means the Euro 12,000,000 loan of 29 December 1999
between Societe Generale, Sucursal en Espana and USPE.
"SHAREHOLDERS' AGREEMENT" means the agreement dated 1 June 1998 between
USPI and Hospital Management Team, S.L.
"SPANISH PUBLIC DOCUMENT" means ESCRITURA PUBLICA or a POLIZA O EFECTO
INTERVENIDO PAR AGENTE DE CAMBIO Y BOLSA O CORREDOR COLEGIADO DE COMERCIO
"STRUCTURING PAPER" means the paper produced by the accountants to USPE
advising on the efficient tax structure of the Group, to be prepared in
accordance with Clause 20.30.(b).
"SUBORDINATED DOCUMENTS" means each Intercompany Debt Agreement and any
documents entered into pursuant thereto as approved by the Agent acting on
the instructions of an Instructing Group.
"SUBORDINATED LIABILITIES" means all present and future sums, liabilities
and obligations whatsoever (actual or contingent) payable, owing, due or
incurred by the Obligors to other Group members pursuant to the terms of
the Subordinated Documents together with all Ancillary Liabilities
relating thereto.
"SYNDICATION DATE" means the day not later than 120 days after the Closing
Date specified by the Arranger as the day on which primary syndication of
the Facilities is completed.
"TARGET" means an existing or proposed health centre in Spain or Portugal
as defined in the relevant Permitted Acquisition Agreement.
"TARGET ASSETS" means the assets of a Target as defined in the relevant
Permitted Acquisition Agreement.
"TARGET GROUP" means the Target and its subsidiaries.
"TARGET SHARES" means all of the shares of the company constituting a
Target.
- 19 -
"TERM" means, save as otherwise provided herein, in relation to any
Advance, the period for which such Advance is borrowed, as specified in
the Notice of Drawdown relating thereto.
"TERM ADVANCE" means a Term A Advance or a Term B Advance.
"TERM A ADVANCE" means an advance (as from time to time consolidated or
reduced by repayment) made or to be made by the Banks under the Term A
Facility.
"TERM B ADVANCE" means an advance (as from time to time consolidated or
reduced by repayment) made or to be made by the Banks under the Term B
Facility.
"TERM AVAILABILITY PERIOD" means in relation to the Term A Facility or the
Term B Facility, the period from and including the Closing Date hereof to
and including the earlier of (a) 31 December 2002 and (b) the first
Business Day on which the Available Term A Commitment (in the case of the
Term A Facility) or the Available Term B Commitment (in the case of the
Term B Facility) of each of the Banks is zero.
"TERM A COMMITMENT" means, in relation to a Bank at any time and save as
otherwise provided herein, the aggregate of the amounts set opposite its
name under the heading "TERM A COMMITMENT" in Schedule 1 (THE BANKS) for
each relevant period, as set out in Schedule 1.
"TERM B COMMITMENT" means, in relation to a Bank at any time and save as
otherwise provided herein, the aggregate of the amounts set opposite its
name under the heading "TERM B COMMITMENT" in Schedule 1 (THE BANKS) for
each relevant period, as set out in Schedule 1.
"TERM FACILITIES" means the Term A Facility and the Term B Facility and
"TERM FACILITY" shall mean any one of them.
"TERM A FACILITY" means the euro term loan facility granted to the
Borrowers under subclause 2.1.1 of Clause 2.1 (GRANT OF THE FACILITIES).
"TERM B FACILITY" means the euro term loan facility granted to the
Borrowers under subclause 2.1.2 of Clause 2.1 (GRANT OF THE FACILITIES).
"TERM A OUTSTANDINGS" means, at any time, the aggregate principal amount
of the outstanding Term A Advances.
"TERM B OUTSTANDINGS" means, at any time, the aggregate principal amount
of the outstanding Term B Advances.
"TERM REPAYMENT DATE" means each of the dates specified in Clause 8.1
(TERM REPAYMENT INSTALMENTS), PROVIDED THAT if such date is not a Business
Day, it shall be deemed to be the next succeeding Business Day.
"TOTAL COMMITMENTS" means, at any time, the aggregate of the Banks'
Commitments.
- 20 -
"TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in Schedule 2 (FORM OF TRANSFER CERTIFICATE) or the standard form from
time to time of the LMA signed by a Bank and a Transferee under which:
(a) such Bank seeks to procure the transfer to such Transferee of all or
a part of such Bank's rights, benefits and obligations hereunder
upon and subject to the terms and conditions set out in Clause 32.3
(ASSIGNMENTS AND TRANSFERS BY BANKS); and
(b) such Transferee undertakes to perform the obligations it will assume
as a result of delivery of such certificate to the Agent as
contemplated in Clause 32.5 (TRANSFERS BY BANKS).
"TRANSFER DATE" means, in relation to any Transfer Certificate, the date
for the making of the transfer as specified in such Transfer Certificate.
"TRANSFEREE" means a person to which a Bank seeks to transfer by novation
all or part OF such Bank's rights, benefits and obligations under the
Finance Documents.
"TREATY ON EUROPEAN UNION" means the Treaty of Rome of 25 March 1957, as
amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and the Maastricht Treaty (which
was signed at Maastricht on 7 February 1992 and came into force on 1
November 1993).
"TREASURY TRANSACTION" means any currency or interest purchase, cap or
collar agreement, forward rate agreements, interest rate or currency
future or option contract, foreign exchange or currency purchase or sale
agreement, interest rate swap, currency swap or combined interest rate and
currency swap agreement and any other similar agreement.
"UNPAID SUM" means the unpaid balance of any of the sums referred to in
Clause 25.1 (DEFAULT INTEREST PERIODS).
"USPE MORTGAGE AGREEMENTS" means (i) a loan dated 31 August 1993 granted
by Banc Catala de Credit in favour of Instituto Dexeus, S.A. in the amount
of 300,000,000 Ptas; and (ii) a loan in the amount of 200,000,000 Ptas
dated 22 July 1994 between Banco ▇▇▇▇▇▇▇, ▇.▇. and Hospitalicacion y
Servicios, S.A. (Hoys S.A.) and others.
"USPE - USPI AGREEMENTS" means the loan agreements (as amended from time
to time) between USPI and USPE dated 30 June 1999, the loan agreement
dated 2 October 1998 between USPI International Holdings Inc and USPE, the
loan agreement dated 3 March 1999 between USPI and USPE, and the loan
agreement dated 1 May 1998 between USPI and Columbia Healthecare
Corporation of ▇▇▇▇▇, ▇.▇.
"USPI" means United Surgical Partners International Inc.
"UTILISATION DATE" means, in relation to an Advance, the date on which it
is to be made.
"VENDOR" means a vendor as defined in the relevant Permitted Acquisition
Agreement.
"VENDOR'S GROUP" means the relevant Vendor and its subsidiaries.
- 21 -
1.2 INTERPRETATION
Any reference in this Agreement to:
the "AGENT", the "ARRANGER", any "HEDGE COUNTERPARTY" or any "BANK" shall
be construed so as to include it and any subsequent successors and
permitted transferees and assigns in accordance with their respective
interests;
a document in "AGREED FORM" is a document that has been initialled as such
on or before the Closing Date for the purposes of identification by or on
behalf of USPE and any Arranger or Agent or is executed on or before the
Closing Date by USPE and any Arranger or Agent or, if not so executed or
initialled, is in form and substance reasonably satisfactory to the Agent;
"ASSETS" includes present and future properties, revenues and rights of
every description;
"CONTINUING", in relation to an Event of Default, shall be construed as a
reference to an Event of Default which has not been waived in accordance
with the terms hereof or remedied and, in relation to a Potential Event of
Default, one which has not been remedied within the relevant grace period
or waived in accordance with the terms hereof;
"DISPOSAL" includes any sale, lease, transfer or other disposal;
the "EQUIVALENT" on any date in one currency (the "FIRST CURRENCY") of an
amount denominated in another currency (the "SECOND CURRENCY") is a
reference to the amount of the first currency which could be purchased
with the amount of the second currency at the spot rate of exchange quoted
by the Agent at or about 11.00 a.m. on such date for the purchase of the
first currency with the second currency;
a "HOLDING COMPANY" of a company or corporation shall be construed as a
reference to any company or corporation of which the first-mentioned
company or corporation is a subsidiary;
"INDEBTEDNESS" shall be construed so as to include any obligation
(whether incurred as principal or as surety) for the payment or repayment
of money, whether present or future, actual or contingent;
a "LAW" shall be construed as any law (including common or customary law),
statute, constitution, decree, judgment, treaty, regulation, directive,
by-law, order or any other legislative measure of any government,
supranational, local government, statutory or regulatory body or court;
a "MEMBER STATE" shall be construed as a reference to a member state of
the European Union;
a "MONTH" is a reference to a period starting on one day in a calendar
month and ending on the numerically corresponding day in the next
succeeding calendar month save that:
(a) if any such numerically corresponding day is not a Business Day,
such period shall end on the immediately succeeding Business Day to
occur in that next
- 22 -
succeeding calendar month or, if none, it shall end on the
immediately preceding Business Day; and
(b) if there is no numerically corresponding day in that next
succeeding; calendar month, that period shall end on the last
Business Day in that next succeeding calendar month,
(and references to "MONTHS" shall be construed accordingly);
a "PERSON" shall be construed as a reference to any person, firm, company,
corporation, government, state or agency of a state or any association or
partnership (whether or not having separate legal personality) of two or
more of the foregoing;
the "RELEVANT INTERBANK MARKET" is a reference to, in relation to the
euro, the European interbank market;
the "RELEVANT INTERBANK RATE" is a reference to, in relation to the euro,
EURIBOR;
"REPAY" (or any derivative form thereof) shall, subject to any contrary
indication, be construed to include "PREPAY" (or, as the case may be, the
corresponding; derivative form thereof);
a "SUBSIDIARY" of a company or corporation shall be construed as a
reference to any company or corporation:
(i) which is controlled, directly or indirectly, by the first-mentioned
company or corporation;
(ii) more than half the issued share capital of which is beneficially
owned, directly or indirectly, by the first-mentioned company or
corporation; or
(iii) which is a subsidiary of another subsidiary of the first-mentioned
company or corporation
and, for these purposes, a company or corporation shall be treated as
being controlled by another if that other company or corporation is able
to direct its affairs and/or to control the composition of its board of
directors or equivalent body;
a "SUCCESSOR" shall be construed so as to include an assignee or successor
in title of such party and any person who under the laws of its
jurisdiction of incorporation or domicile has assumed the rights and
obligations of such party under this Agreement or to which, under such
laws, such rights and obligations have been transferred;
"TAX" shall be construed so as to include any tax (which shall include,
but not be limited to, corporation tax and advance corporation tax), levy,
impost, duty or other charge 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);
"VAT" shall be construed as a reference to value added tax including any
similar tax which may be imposed in place thereof from time to time;
- 23 -
a "WHOLLY-OWNED SUBSIDIARY" of a company or corporation shall be construed
as a reference to any company or corporation which has no other members
except that other company or corporation and that other company's or
corporation's wholly-owned subsidiaries or persons acting on behalf of
that other company or corporation or its wholly-owned subsidiaries; and
the "WINDING-UP", "DISSOLUTION" OR "ADMINISTRATION" of a company or
corporation shall be construed so as to include any equivalent or
analogous proceedings under the law of the jurisdiction in which such
company or corporation is incorporated or any jurisdiction in which such
company or corporation carries on business including the seeking of
liquidation, winding-up, reorganisation, dissolution, administration,
arrangement, adjustment, protection or relief of debtors.
1.3 CURRENCY SYMBOLS AND DEFINITIONS
"euro" and "Euro" means the single currency of the European Union as
constituted by the treaty on European Union and as referred to in EMU
Legislation and "EURO UNIT" means the currency unit of the euro as defined
in the EMU Legislation.
1.4 AGREEMENTS AND STATUTES
Any reference in this Agreement to:
1.4.1 this Agreement or any other agreement or document shall be construed
as a reference to this Agreement or, as the case may be, such other
agreement or document as the same may have been, or may from time to
time be, amended, varied, novated or supplemented; and
1.4.2 a statute or treaty shall be construed as a reference to such
statute or treaty as the same may have been, or may from time to
time be, amended or, in the case of a statute, re-enacted.
1.5 HEADINGS
Clause and Schedule headings are for ease of reference only.
1.6 TIME
Any reference in this Agreement to a time of day shall, unless a contrary
indication appears, be a reference to Madrid or Brussels time, as
applicable.
1.7 THIRD PARTY RIGHTS
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any term of this
Agreement.
2. THE FACILITIES
2.1 GRANT OF THE FACILITIES
The ▇▇▇▇▇ ▇▇▇▇▇ to the Borrowers, upon the terms and subject to the
conditions hereof:
2.1.1 a euro term loan facility in an aggregate amount of Euro 70,000,000;
and
2.1.2 a euro term loan facility in an aggregate amount of Euro 30,000,000.
- 24 -
2.2 PURPOSE AND APPLICATION
2.2.1 The Term Facilities are intended for the purpose of financing in
part:
(a) the purchase of Target Shares and/or Target Assets by a
Purchaser in accordance with the terms of a Permitted
Acquisition Agreement;
(b) the payment of the Acquisition Costs;
(c) the repayment of amounts outstanding under the USPE Mortgage
Agreements and the USPE-USPI Agreements or of any Indebtedness
for Borrowed Money of any Target, following any Permitted
Acquisition;
(d) general working capital requirements and for general corporate
purposes; and
(e) repayment of the SG Bridge Loan.
2.2.2 Accordingly, each Borrower shall so apply all amounts raised by it
hereunder in accordance with sub-clause 2.2.1 and none of the
Finance Parties shall be obliged to concern themselves with such
application.
2.3 CONDITIONS PRECEDENT
Save as the Banks may otherwise agree, none of the Borrowers may deliver
any Notice of Drawdown unless the Agent has confirmed to USPE and the
Banks that it has received all of the documents and other evidence listed
in Schedule 3 PART 1 (CONDITIONS PRECEDENT TO A DRAWDOWN) and that each
is, in form and substance, reasonably satisfactory to the Agent.
2.4 SEVERAL OBLIGATIONS
The obligations of each Bank are several and the failure by a Bank to
perform its obligations hereunder shall not affect the obligations of an
Obligor towards any other party hereto nor shall any other party be liable
for the failure by such Bank to perform its obligations hereunder.
2.5 SEVERAL RIGHTS
The rights of each Finance Party are several and any debt arising
hereunder at any time from an Obligor to any Finance Party hereto shall be
a separate and independent debt. Each such party shall be entitled to
protect and enforce its individual rights arising out of this Agreement
independently of any other party (so that it shall not be necessary for
any party hereto to be joined as an additional party in any proceedings
for this purpose).
3. UTILISATION OF THE TERM FACILITY
3.1 UTILISATION CONDITIONS FOR TERM ADVANCES
A Term Advance will be made by the Banks to a Borrower if:
3.1.1 by 12.00 noon five Business Days before the proposed Utilisation
Date, the Agent has received a completed Notice of Drawdown from
such Borrower;
3.1.2 the proposed Utilisation Date is a Business Day within the relevant
Term Availability Period;
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3.1.3 the proposed amount of such Term Advance is (a) in the case of a
Term A Advance equal to or less than the amount of the Available
Term A Facility and (b) in the case of a Term B Advance, equal to or
less than the amount of the Available Term B Facility;
3.1.4 the proposed amount of any Advance is equal to or greater than Euro
3,000,000 save in the case of any Advance to be used to refinance a
USPE Debt Agreement, in which case, such Advance shall be equal to
the total amount outstanding under any such agreement;
3.1.5 the interest rate applicable to such Term Advance during its first
Interest Period would not fall to be determined pursuant to Clause
6.1 (MARKET DISRUPTION);
3.1.6 on the date of the Notice of Drawdown and on and as of the proposed
date for the making of such Term Advance (a) no Event of Default or
Potential Event of Default is continuing or would occur as a result
of the making of such Term Advance and (b) the Repeated
Representations are true (before and after the making of such Term
Advance);
3.1.7 the ratio of USPE's Gross Debt to EBITDA does not exceed 4:1 and the
ratio of Gross Debt to Total Funds Invested by the Investors does
not exceed 2:1, both for the prior four Financial Quarters
immediately prior to the date of the Advance is made for the
purposes of this paragraph
(a) "TOTAL FUNDS INVESTED" means the aggregate of all share
capital paid up by the Investors in USPE and all debt
subordinated in full to amounts owing hereunder lent by
Investors to USPE and any other form of capital contribution
by the Investors to USPE which is so subordinated; and
(b) EBITDA shall be measured on a Pro Forma Basis and
(aa) in the case of any Advance to be used for a Permitted
Acquisition, shall, if, either
(i) within 90 days of the date on which the relevant
drawdown is to be made, the Target in respect of
such Permitted Acquisition has signed a Guarantor
Accession Memorandum; or
(ii) on or prior to the date of such drawdown the
relevant Borrower has confirmed in writing to the
Agent that it reasonably believes that it will
acquire at least 70% of the shares (or other
equity interest) of such Target on or prior to the
end of such 90 day period,
include the EBITDA of that Target for the financial year
immediately prior to the then current financial year;
and
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(bb) include the EBITDA of all Material Subsidiaries on a Pro
Forma Basis which have either
(i) granted a guarantee (either by executing a
Guarantor Accession Memorandum or otherwise) of
the obligations of the Obligors hereunder; or
(ii) in respect of which the Borrower has acquired over
70%, of the shares (or other equity
participation); and
3.1.8 if the Advance is made in relation to a Permitted Acquisition, all
Conditions Precedents as set out in Part 2 of Schedule 3 (CONDITIONS
PRECEDENT TO A PERMITTED ACQUISITION) have been met to the full
satisfaction of the Agent and that, if immediate effect were given
to the Permitted Acquisition all covenants as set forth in Section
20 (COVENANTS) hereto would continue to be complied with.
3.2 EACH BANK'S PARTICIPATION IN TERM ADVANCES
Each Bank will participate through its Facility Office in each Term
Advance made pursuant to Clause 3.1 (UTILISATION CONDITIONS FOR TERM
ADVANCES) in the proportion borne by its relevant Available Term
Commitment to the relevant Available Term Facility immediately prior to
the making of that Term Advance.
3.3 REDUCTION OF AVAILABLE TERM COMMITMENT
If a Bank's relevant Available Term Commitment is reduced in accordance
with the terms hereof after the Agent has received the Notice of Drawdown
for a Term Advance and such reduction was not taken into account in
calculating the relevant Available Term Facility, then the amount of that
Term Advance shall be reduced accordingly.
3.4 SIMULTANEOUS DRAWDOWN
3.4.1 No Term A Advance shall be made hereunder unless a Term B Advance is
made simultaneously and the Available Term A Facility and the
Available Term B Facility are reduced accordingly.
3.4.2 In relation to an Advance the Term A Advances shall equal 70 per
cent. of the Advance made and the Term B Advances shall equal 30 per
cent. of the Advance made.
4. INTEREST PERIODS FOR TERM ADVANCES
4.1 INTEREST PERIODS
The period for which a Term Advance is outstanding shall be divided
into successive periods each of which (other than the first, which
shall begin on the day such Term Advance is made) shall start on the
last day of the preceding such period.
4.2 DURATION
The duration of each Interest Period shall, save as otherwise
provided herein, be one, three or six months, in each case as the
Borrower to which such Term Advance is made may, (i) in relation to
an Advance to be used to refinance existing senior or subordinated
debt, by not less than one Business Day's prior notice to the Agent
or (ii)
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in relation to an Advance to be used in connection with a Permitted
Acquisition by at least 10 Business Days' prior notice to the Agent
(in each case, such notice to be received by 12.00 noon on the
relevant Business Day), or such other period as the Banks agree
PROVIDED THAT:
4.2.1 if such Borrower fails to give such notice of its selection in
relation to an Interest Period, the duration of that Interest Period
shall, subject to sub-clauses 4.2.2, 4.2.3 and 4.2.4, be one month;
4.2.2 any Interest Period which begins during or at the same time as any
other Interest Period and made under the same Term Facility shall
end at the same time as that other Interest Period;
4.2.3 to the extent necessary to ensure at any time Advances (in an
aggregate amount not less than the amount of the next scheduled
repayment of principal hereunder) have Interest Periods expiring on
the relevant scheduled Term Repayment Date, any Interest Period
which would otherwise end during the month preceding, or extend
beyond, a Term Repayment Date or Final Maturity Date shall be of
such duration that it shall end on that Term Repayment Date or Final
Maturity Date; and
4.2.4 prior to the Syndication Date, Interest Periods shall be one month
(or, if less, such duration necessary to end on the Syndication
Date) or such other period as the Arranger and USPE may agree.
4.3 CONSOLIDATION OF TERM ADVANCES
If two or more Interest Periods relating to Term Advances end at the same
time and are made to the same Borrower, then, on each of the first and
second anniversary of this Agreement, the Term Advances to which they
relate shall be consolidated into and treated as a single Term Advance.
5. PAYMENT AND CALCULATION OF INTEREST ON TERM ADVANCES
5.1 PAYMENT OF INTEREST
On the last day of each Interest Period relating to a Term Advance the
Borrower to which such Term Advance has been made shall pay accrued
interest on the Term Advance to which such Interest Period relates.
5.2 CALCULATION OF INTEREST
The rate of interest applicable to a Term Advance from time to time during
an Interest Period relating thereto shall be the rate per annum which is
the sum of the Margin at such time, the Mandatory Cost Rate in respect
thereof (if any Bank gives notice to the Agent that it believes it is
likely to have to pay the Mandatory Cost Rate in respect of such Term
Advance) at such time and EURIBOR on the Quotation Date therefor.
5.3 TERM MARGIN RATCHET
5.3.1 Subject to sub-clause 5.3.3, if the ratio of Gross Debt to EBITDA
(calculated on a Pro Forma Basis) in respect of the most recent
semi-annual period is within the range set out in column 1 of the
margin grid table set out below, then the Applicable A Margin shall
be the percentage per annum set out
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opposite such range in Column 2 of the Margin Grid Table below
PROVIDED that from the Closing Date until the end of the first
Interest Period ending after the date falling twelve months after
the Closing Date, the Applicable A Margin shall be 1.75%, per
annum.
Margin Grid Table
Column 1 Column 2
Gross Debt to EBITDA (calculated on APPLICABLE A MARGIN
A PRO FORMA BASIS)
Greater than 3.25:1 1.75
Less than 3.25:1 but greater than or 1.375
equal to 2.25:1
Less than 2.25:1 but greater than or 0.90
equal to 1.5:1
Less than 1 .5:1 0.75
5.3.2 Any reduction or increase to the Applicable A Margin provided for in sub-
clause 5.3.1 shall take effect only in relation to any Advance made or
Interest Period commencing at least 15 Business Days after receipt by the
Agent for the most recent semi-annual period of both (a) (in the case of a
semi-annual period ending on the last day of USPE's financial year) the
pro forma annual audited financial statements of the Group in accordance
with Clause 17.1 (ANNUAL STATEMENTS) (certified by an auditor if so
required in accordance with Clause 17.1) or (in the case of a six month
period beginning on the first day of any other financial period of USPE's
Financial Year) pro forma semi-annual financial statements of the Group in
accordance with Clause 17.2 (QUARTERLY AND SEMI-ANNUAL STATEMENTS) for
such relevant period and (b), in each case, a Compliance Certificate for
such relevant period pursuant to Clause 17.5 (COMPLIANCE CERTIFICATES).
5.3.3 If at any time an Event of Default is continuing the Applicable A Margin
shall be 1.75% per annum.
5.3.4 The change to the Applicable A Margin set out in sub-clause 5.3.3 shall
apply from the date certified by the Agent (in writing) as the date on
which an Event of Default has occurred or come into existence until the
date such Event of Default is no longer continuing. The Agent shall give a
certification thereof promptly on determining in its reasonable judgement
that an Event of Default has occurred or exists and promptly upon becoming
aware it is no longer continuing.
5.3.5 Where the Applicable A Margin has been reduced on the basis of unaudited
financial statements in accordance with the provisions of this Clause 5.3,
if on delivery of the annual audited consolidated financial statement of
the Group, all in accordance with Clause 17 (FINANCIAL INFORMATION), or
such certificate from an Authorised Signatory accompanying the same, such
accounts, statements or certificate show that such reduction should not
have been made,
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the said reduction shall be cancelled with immediate effect for each Term
A Advance and the relevant Borrowers shall make payments to the Agent at
the end of the current Interest Period as if such reduction had not
applied for such period and as if the relevant Margin applies without any
such reduction.
5.4 APPLICABLE B MARGIN INCREASE The Applicable B Margin shall at all times be
0.50% per annum above that of the Applicable A Margin. If the Applicable
Term A Margin is increased in accordance with Clause 5.3.5 the Applicable
Term B Margin shall be increased accordingly and the Borrower shall make
such payments as set out in Clause 5.3.5 in relation to the Applicable
Term B Margin.
6. MARKET DISRUPTION AND ALTERNATIVE INTEREST RATES
6.1 MARKET DISRUPTION
If, in relation to any Advance:
6.1.1 the relevant interbank rate is to be determined by reference to
Reference Banks and at or about 11.00 a.m. on the Quotation Date for
the relevant Interest Period none or only one of the Reference Banks
supplies a rate for the purpose of determining the relevant
interbank rate, for the relevant Interest Period or Term; or
6.1.2 before the close of business in Madrid on the Quotation Date for
such Advance the Agent has been notified by a Bank or each of a
group of Banks to whom in aggregate thirty-five per cent. or more of
such Advance is owed (or, in the case of an undrawn Advance, if
made, would be owed) that the relevant interbank rate does not
accurately reflect the cost of funding its participation in such
Advance,
then, the Agent shall notify USPE, the relevant Borrower and the Banks of
such event and, notwithstanding anything to the contrary in this
Agreement, Clause 6.2 (SUBSTITUTE INTEREST PERIOD AND INTEREST RATE) shall
apply to such Advance (if it is a Term Advance which is already
outstanding). If sub-clause 6.1.1 or 6.1.2 applies to a proposed Advance,
such Advance shall not be made.
6.2 SUBSTITUTE INTEREST PERIOD AND INTEREST RATE
If sub-clause 6.1.1 of Clause 6.1 (MARKET DISRUPTION) applies to an
Advance, the duration of the relevant Interest Period shall be one month
or, if less, such that it shall end on the next succeeding Term Repayment
Date. If either sub-clause 6.1.1 or 6.1.2 of Clause 6.1 (MARKET
DISRUPTION) applies to an Advance, the rate of interest applicable to such
Advance during the relevant Interest Period shall (subject to any
agreement reached pursuant to Clause 6.3 (ALTERNATIVE RATE)) be the rate
per annum which is the sum of:
6.2.1 the Margin applicable to the relevant Facility at such time;
6.2.2 the Mandatory Cost Rate in respect thereof at such time; and
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6.2.3 the rate per annum determined by the Agent to be the arithmetic mean
(rounded upwards to four decimal places) of the rates notified by each
Bank to the Agent before the last day of such Interest Period to be those
which express as a percentage rate per annum the cost to each Bank of
funding from whatever sources it may reasonably select its portion of such
Advance during such Interest Period.
6.3 ALTERNATIVE RATE
If:
6.3.1 either of those events mentioned in sub-clauses 6.1.1 and 6.1.2 of
Clause 6.1 (MARKET DISRUPTION) occurs in relation to an Advance; or
6.3.2 reason of circumstances affecting the European Interbank Market
during any period of three consecutive Business Days EURIBOR is not
available,
then, in any such case, if the Agent or USPE so requires, the Agent and
USPE shall enter into negotiations with a view to agreeing an alternative
basis:
(a) for determining the rates of interest from time to time applicable
to the Advances; and/or
(b) upon which the Advances may be maintained (whether in euros or some
other currency) thereafter,
and any such alternative basis that is agreed shall take effect in
accordance with its terms and be binding on each party hereto, PROVIDED
THAT the Agent may not agree any such alternative basis without the prior
consent of each Bank.
7. NOTIFICATION
7.1 ADVANCES
Not less than two Business Days before the first day of an Interest
Period, the Agent shall notify each Bank;
(a) of the Facility that is to be utilised;
(b) the name of the Borrower;
(c) the proposed amount of the relevant Advance;
(d) the proposed length of the relevant Interest Period; and
(e) the aggregate principal amount of the relevant Advance allocated to
such Bank pursuant to this Agreement.
7.2 INTEREST RATE DETERMINATION
The Agent shall promptly notify USPE, the relevant Borrower and the Banks
of each determination of the relevant interbank rate, the Margin and the
Mandatory Cost Rate.
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7.3 CHANGES TO ADVANCES OR INTEREST RATES
The Agent shall promptly notify USPE, the relevant Borrower and the Banks
of any change to:
7.3.1 the proposed length of an Interest Period; or
7.3.2 any interest rate occasioned by the operation of Clause 6 (MARKET
DISRUPTION AND ALTERNATIVE INTEREST RATES).
8. REPAYMENT OF THE TERM FACILITY
TERM REPAYMENT INSTALMENTS
USPE shall procure (and each Borrower which has drawn an Advance shall
repay its share of the Outstandings in order to ensure) that the aggregate
amount of the Outstandings are repaid on the dates set forth below in
instalments in the amounts equal to the percentages set forth below of
Term A Outstandings and Term B Outstandings, outstanding on the last day
of the relevant Term Availability Period:
TERM A REPAYMENT DATE PERCENTAGE OF TERM A OUTSTANDINGS
30 June 2003 7.5
31 December 2003 7.5
30 June 2004 9,5
31 December 2004 9.5
30 June 2005 12.0
31 December 2005 12.0
30 June 2006 14.0
31 December 2006 14.0
30 June 2007 14.0
TERM B REPAYMENT DATE PERCENTAGE OF TERM B OUTSTANDINGS
31 December 2007 100.0
9. PREPAYMENT
9.1 VOLUNTARY PREPAYMENT
9.1.1 The Borrower to which a Term Advance has been made may, if it has
given to the Agent not less than five Business Days' prior notice to
that effect, prepay the whole of any Term Advance or any part of any
Term Advance (being an amount or integral multiple of Euro
3,000,000) subject always to Clause 9.1.3 below, at any time and
without premium or penalty provided that:
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9.1.2 Any prepayment shall be made in the proportion of 7:3 against the
Term A Outstandings and the Term B Outstandings, respectively.
9.1.3 Any prepayment shall be on the last day of any Interest Period
relating to the Term A Advances and Term B Advances or if at any
other time on payment of the appropriate breakage costs in
accordance with Clause 25 (DEFAULT INTEREST AND BREAK COSTS).
9.2 MANDATORY PREPAYMENT FROM EXCESS CASH
9.2.1 USPE shall within 45 days of 31 December, 2002, calculate the Net
Revenue for the Group for the year then ended and the Outstandings
shall be prepaid at the end of the next Interest Period thereafter
in an aggregate amount equal to the Excess Cash Flow in excess of 5%
of Net Revenue (on a Pro Forma Basis) for the Group for such
financial year up to a maximum of Euro 6,000,000. At the same time
as the annual consolidated accounts for the Group are delivered for
such period under Clause 17.1 (Annual Statements), USPE's auditors
shall recalculate the Net Revenue of the Group on the basis of such
accounts and shall recalculate the amount which would have been
required to be repaid hereunder (the "NEW AMOUNT"). In the event
that the New Amount is less than the amount actually paid (the
"EXCESS AMOUNT"), the Excess Amount shall be deducted from the next
following payment which is required to be made in respect of the
Term A Outstandings (whether of principal or interest). In the event
that the New Amount is greater than the amount actually paid, USPE
shall prepay such amount as Interest Periods mature and interest
shall accrue thereon at the applicable rate from the date the New
Amount is calculated until such prepayment. Any such prepayment
shall be applied in accordance with Clause 9.4.2 (APPLICATION OF
PREPAYMENTS).
9.2.2 USPE shall procure that within 10 days of delivery of the annual
consolidated accounts for the Group for each of the years ended
31 December 2003 up to 31 December 2007 the Outstandings shall be
prepaid in an aggregate amount equal to (i) 50 per cent. of Net Cash
Flow (being Free Cash Flow minus Total Debt Service), minus (ii) the
amount of any voluntary prepayments of the Outstandings. Any such
prepayment shall be applied in accordance with Clause 9.4.1
(APPLICATION OF PREPAYMENTS).
9.3 MANDATORY PREPAYMENT ON SALE OR FLOTATION
USPE shall (in the case of Clause 9.3.2, at the request OF any Bank)
procure that the Outstandings are prepaid in full upon the occurrence of:
9.3.1 the sale of the whole or substantially the whole of the Group's
business or assets; or
9.3.2 any Flotation.
9.4 APPLICATION OF PREPAYMENTS
Any prepayment made under Clause 9.1 or Clause 9.2.2 (MANDATORY PREPAYMENT
FROM EXCESS CASH) shall be applied in repayment pro rata against the
Term A Outstandings and the Term B Outstandings;
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9.4.1 Any prepayment made under Clause 9.2.1 shall he applied in repayment
of the Term A Outstandings, pro-rata across the remaining
instalments;
9.4.2 Any prepayment of Term Outstandings shall satisfy the remaining
obligations under Clause 8.1 (TERM REPAYMENT INSTALMENTS) PRO RATA.
9.4.3 If the Borrower makes any prepayment using the proceeds of
Refinancing, the Borrower shall pay (to the Agent for distribution
pro rata to the Banks) a 0.50 per cent. fee on the amount of the
Facilities refinanced if such Refinancing occurs within the 12 month
period from the date of the first Advance and shall pay (to the
Agent for distribution pro rata to the Banks) a 0.25 per cent. fee
if the refinancing takes place during the 12 month period which is
between 12 months after the date of such first Advance and 24 months
after such first Advance date. After 24 months after the first
Advance Date, no prepayment penalty shall apply. Such fee shall be
exempted if prepayment is made by way of a bond issue underwritten
by Societe Generale or any of its affiliates (as defined in Clause
20.28) or through a flotation or trade sale of its business.
9.5 NOTICE OF PREPAYMENT
Any notice of prepayment given by a Borrower pursuant to this Clause 9
shall be irrevocable, shall specify the date upon which such prepayment is
to be made and the amount of such prepayment and shall oblige the relevant
Borrower to make such prepayment on such date.
10. REMOVAL OF BANKS
10.1 NOTICE OF REMOVAL OF A BANK
If:
10.1.1 any sum payable to any Bank by an Obligor is required to be
increased pursuant to Clause 11.1 (TAX GROSS-UP); or
10.1.2 any Bank claims indemnification from an Obligor under Clause 11.2
(TAX INDEMNITY) or Clause 13.1 (INCREASED COSTS); or
10.1.3 any relevant Borrower is required to treat any payment of interest
to a Bank as a distribution for tax purposes,
USPE may, whilst such circumstance continues, give the Agent at least ten
Business Days notice (which notice shall be irrevocable) of its intention
to cancel, repay and/or provide cash collateral in respect of the
Commitment of such Bank.
10.2 REMOVAL OF A BANK
On the day the notice referred to in Clause 10.1 (NOTICE OF REMOVAL OF A
BANK) expires (if such circumstance relates to a Bank) each Borrower to
which an Advance has been made shall repay such Bank's portion of the
Advances.
10.3 NO FURTHER AVAILABILITY
A Bank for whose account a repayment is to be made under Clause 10.1
(NOTICE OF REMOVAL OF A BANK) shall not be obliged to participate in the
making of Advances on or
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after the date upon which the Agent receives USPE's notice of its intention to
procure the repayment of such Bank's share of the Outstandings, and such Bank's
Available Commitment shall be reduced to zero.
10.4 NO OTHER REPAYMENTS OR CANCELLATION
The Borrowers shall not repay all or any part of the Outstandings except
at the times and in the manner expressly provided for in this Agreement.
10.5 NO REBORROWING
None of the Borrowers shall be entitled to reborrow any amount of any Term
Facility which is repaid.
11. TAXES
11.1 TAX GROSS-UP
All payments to be made by an Obligor to any Finance Party hereunder shall
be made free and clear of and without deduction for or on account of tax
unless such Obligor is required to make such a payment subject to the
deduction or withholding of tax, in which case the sum payable by such
Obligor (in respect of which such deduction or withholding is required to
be made) shall be increased to the extent necessary to ensure that such
Finance Party receives a sum net OF any withholding or deduction equal to
the sum which it would have received had no such deduction or withholding
been made or required to be made Provided that any Obligor established in
Spain will not be obliged to increase any payment under this Clause 11.1
(a) to any Finance Party not being or ceasing to be a Qualifying Bank
unless (i) the requirement to deduct or withhold would have applied had
such Finance Party been or continued to be a Qualifying Bank or (ii) such
Finance Party is not or ceases to be a Qualifying Bank as a result of a
change of law or generally applied practice of, or interpretation OF any
laws by, the Spanish Tax Administration or (b) to any Finance Party in
relation to which the requirement to deduct or withhold is due solely to
such Finance Party not being in compliance with its obligations (if any)
under Clause 11.4.
11.2 TAX INDEMNITY
Without prejudice to Clause 11.1 (TAX GROSS-UP), if any Finance Party is
required to make any payment of or on account of tax on or in relation to
any sum received or receivable hereunder (including any sum deemed for the
purposes of tax to be received or receivable by such Finance Party whether
or not actually received or receivable) or if any liability in respect of
any such payment is asserted, imposed, levied or assessed against any
Finance Party, USPE shall, upon demand of the Agent, promptly indemnify
the Finance Party which suffers a loss or liability as a result against
such payment or liability together with any interest, penalties, costs and
expenses payable or incurred in connection therewith, PROVIDED THAT this
Clause 11.2 shall not apply to:
11.2.1 any tax imposed on and calculated by reference to the net income
actually received or receivable by such Finance Party (but, for the
avoidance of doubt, not including any sum deemed for purposes of
tax to be received or receivable by such Finance Party but not
actually receivable) by the jurisdiction in which such Finance
Party is incorporated; or
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11.2.2 any tax imposed on and calculated by reference to the net income of
the Facility Office of such Finance Party actually received or
receivable by such Finance Party (but, for the avoidance of doubt,
not including any sum deemed for purposes of tax to be received or
receivable by such Finance party but not actually receivable) by
the jurisdiction in which its Facility Office is located.
11.3 CLAIMS BY BANKS
A Bank intending to make a claim pursuant to Clause 11.2 (TAX INDEMNITY)
shall notify the Agent of the event giving rise to the claim, whereupon
the Agent shall notify USPE thereof.
11.4 TAX CERTIFICATES
Without prejudice to the other provisions of Clause 11 and the provisions
of Clause 12 in relation to an exemption from or application of
withholding tax of a rate lower than that of general application pursuant
to the laws of Spain or to any double taxation treaty, any Finance Party
which is not a Domestic Bank agrees to co-operate with the relevant
Obligor to supply the Agent (which shall forthwith deliver a copy thereof
to any Obligor established in Spain), with a certificate of residence
issued by the pertinent fiscal administration, (i) in the case of a
Qualifying Bank which is not a Domestic Bank, accrediting such Qualifying
Bank as resident for tax purposes in a Qualifying State, prior to any
first interest payment date and (ii) in the case of a Finance Party which
is not a Qualifying Bank, accrediting such Finance Party as resident for
tax purposes in a state which has signed and ratified a double taxation
treaty with Spain. As such certificates are, at the date hereof, only
valid for a period of one year, each such Finance Party will be required
to so supply a further such certificate upon expiry of the previous
certificate in relation to any further payment of interest.
12. TAX RECEIPTS
12.1 NOTIFICATION OF REQUIREMENT TO DEDUCT TAX
If, at any time, an Obligor is required by law to make any deduction or
withholding from any sum payable by it hereunder (or if thereafter there
is any change in the rates at which or the manner in which such deductions
or withholdings are calculated), such Obligor shall promptly notify the
Agent.
12.2 EVIDENCE OF PAYMENT OF TAX
If an Obligor makes any payment hereunder in respect of which it is
required to make any deduction or withholding, it shall pay the full
amount required to be deducted or withheld to the relevant taxation or
other authority within the time allowed for such payment under applicable
law and shall deliver to the Agent for each Bank, within thirty days after
it has made such payment to the applicable authority, an original receipt
(or a certified copy thereof) issued by such authority evidencing the
payment to such authority of all amounts so required to be deducted or
withheld in respect of that Bank's share of such payment.
12.3 TAX CREDIT PAYMENT
If an additional payment is made under Clause 11 (TAXES) by an Obligor for
the benefit of any Finance Party and such Finance Party determines that it
has obtained (and has
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derived full use and benefit from) a credit against, a relief or remission
for, or repayment of, any tax, then, if and to the extent that such
Finance Party determines that:
12.3.1 such credit, relief, remission or repayment is in respect of or
calculated with reference to the additional payment made pursuant to
Clause 11 (TAXES); and
12.3.2 its tax affairs for its tax year in respect of which such credit,
relief, remission or repayment was obtained have been finally
settled,
such Finance Party shall, to the extent that it can do so without
prejudice to the retention of the amount of such credit, relief, remission
or repayment, pay to such Obligor such amount as such Finance Party shall
determine to be the amount which will leave such Finance Party (after such
payment) in no worse after-tax position than it would have been in had the
additional payment in question not been required to be made by such
Obligor.
12.4 TAX CREDIT CLAWBACK
If any Finance Party makes any payment to an Obligor pursuant to Clause
12.3 (TAX CREDIT PAYMENT) and such Finance Party subsequently determines
that the credit, relief, remission or repayment in respect of which such
payment was made was not available or has been withdrawn or that it was
unable to use such credit, relief, remission or repayment in full, such
Obligor shall reimburse such Finance Party such amount as such Finance
Party determines is necessary to place it in the same after-tax position
as it would have been in if such credit, relief, remission or repayment
had been obtained and fully used and retained by such Finance Party.
12.5 TAX AND OTHER AFFAIRS
No provision of this Agreement shall interfere with the right of any
Finance Party to arrange its tax or any other affairs in whatever manner
it thinks fit, oblige any Finance Party to claim any credit, relief,
remission or repayment in respect of any payment under Clause 11 (TAXES)
in priority to any other credit, relief, remission or repayment available
to it nor oblige any Finance Party to disclose any information relating
to its tax or other affairs or any computations in respect thereof.
13. INCREASED COSTS
13.1 INCREASED COSTS
If, by reason of (a) any change in law or in its interpretation by any
relevant authority or administration and/or (b) compliance with any
request or requirement relating to the maintenance of capital or any
other request from or requirement of any central bank or other fiscal,
monetary or other authority (in each case after the date of this
Agreement):
13.1.1 a Bank or any holding company of such Bank is unable to obtain the
rate of return on its capital which it would have been able to
obtain but for such Bank's entering into or assuming or
maintaining a commitment, issuing or performing its obligations
under the Finance Documents;
13.1.2 a Bank any holding company of such Bank incurs a cost as a result
of such Bank's entering into or assuming or maintaining a
commitment, issuing or performing its obligations under the
Finance Documents; or
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13.1.3 there is any increase in the cost to a Bank or any holding company
of such Bank of funding or maintaining such Bank's share of the
Advances or any Unpaid Sum,
then USPE shall, from time to time on demand of the Agent received by USPE
within six months after the date on which the Bank has become aware of
such matter, promptly pay to the Agent for the account of that Bank
amounts sufficient to indemnify that Bank or to enable that Bank to
indemnify its holding company from and against, as the case may be, (a)
such reduction in the rate of return of capital, (b) such cost or (c) such
increased cost.
13.2 INCREASED COSTS CLAIMS
A Bank intending to make a claim pursuant to Clause 13.1 (INCREASED
COSTS) shall notify the Agent of the event giving rise to such claim,
whereupon the Agent shall notify USPE thereof.
13.3 EXCLUSIONS
Notwithstanding the foregoing provisions of this Clause 13, no Bank shall
be entitled to make any claim in respect of:
13.3.1 any cost, increased cost or liability as referred to in Clause
13.1 (INCREASED Costs) to the extent the same is compensated by
the Mandatory Cost Rate;
13.3.2 any cost, increased cost or liability compensated by Clause 11
(TAXES); or
13.3.3 any cost, increased cost or liability arising out of a Bank's
wilful default or gross negligence.
14. ILLEGALITY
If, at any time, it is or will become unlawful for a Bank to make, fund,
issue, participation or allow to remain outstanding all or part of its
share of the Advances, then that Bank shall, promptly after becoming
aware of the same, deliver to USPE through the Agent a notice to that
effect and:
14.1.1 such Bank shall not thereafter be obliged to participate in any
Advance and the amount of its Available Term Commitment shall be
immediately reduced to zero; and
14.1.2 if the Agent on behalf of such Bank so requires, USPE shall
procure that each Borrower shall on such date as the Agent shall
have specified repay such Bank's share of any outstanding Advances
together with accrued interest thereon and all other amounts owing
to such Bank under the Finance Documents and any repayment of any
Term Advance so made after the last day of the Term Availability
Period shall reduce rateably the remaining obligations under
Clause 8.1 (TERM REPAYMENT INSTALMENTS) in respect of the
Outstandings under the Term Facility under which such Term Advance
was made.
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15. MITIGATION
If in respect of any Bank, circumstances arise which would or would upon
the giving of notice result in:
15.1.1 an increase in any sum payable to it or for its account pursuant
to Clause 11.1 (TAX GROSS-UP);
15.1.2 a claim for indemnification pursuant to Clause 11.2 (TAX
INDEMNITY) or Clause 13.1 (INCREASED COSTS); or
15.1.3 the reduction of its Available Term Commitment to zero or any
repayment to be made pursuant to Clause 14 (ILLEGALITY)
then, without in any way limiting, reducing or otherwise qualifying the
rights of such Bank or the obligations of the Obligors under any of the
Clauses referred to, such Bank shall, upon request by USPE or relevant
Borrower and, in consultation with the Agent and USPE and to the extent
that it can do so lawfully and without prejudice to its own position,
take reasonable steps (including a change of location of its Facility
Office or the transfer of its rights, benefits and obligations hereunder
to another financial institution acceptable to USPE and willing to
participate in the Facilities) to mitigate the effects of such
circumstances, PROVIDED THAT such Bank shall be under no obligation to
take any such action if, in the reasonable opinion of such Bank, to do so
might have any material adverse effect upon its business, operations or
financial condition (other than any minor costs and expenses of an
administrative nature).
16. REPRESENTATIONS
Each Obligor makes the representations and warranties set out in Clause
16.1 (STATUS) to Clause 16.33 (USPE'S KNOWLEDGE) to the Finance Parties
on its own behalf and, in addition, USPE makes the representations set
out therein to the Finance Parties on behalf of each member of the Group
(assuming for the purposes of the representations made on the date hereof
and each Permitted Acquisition Closing Date, that completion of the
Acquisition has occurred. The Original Obligors acknowledge that the
Finance Parties have entered into this Agreement in reliance on those
representations and warranties. The representations and warranties in
Clause 16.17 (INFORMATION MEMORANDUM) shall only be made on the dates
specified in Clause 16.34 (REPETITION OF REPRESENTATIONS).
16.1 STATUS
It is a corporation duly organised and validly existing under the laws of
its jurisdiction of incorporation and is a limited liability corporation
and has the power and all necessary governmental and other material
consents, approvals, licences and authorisations under any applicable
jurisdiction to own its property and assets and to carry on its business
as currently conducted.
16.2 GOVERNING LAW AND JUDGMENTS
16.2.1 In any proceedings taken in its jurisdiction of incorporation in
relation to the Finance Documents (except the Security Documents),
the choice of English law as the governing law of the Finance
Documents and any judgment obtained in England will be recognised
and enforced.
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16.2.2 In any proceedings taken in its jurisdiction of incorporation in
relation to the Security Documents, the choice of Spanish law as
the governing law of the Security Documents and any judgment
obtained in Spain will be recognised and enforced.
16.3 BINDING OBLIGATIONS
The obligations expressed to be assumed by it in the Finance Documents
are legal and valid obligations binding on it and enforceable against it
in accordance with the terms thereof save that any agreement by a
shareholders' meeting (or partners' meeting, as applicable) to grant a
Guarantee by any Material Subsidiary which is not wholly owned by USPE
may be suspended or annulled if challenged ("IMPUGNADO") in accordance
with the procedures set out in the Spanish LEY DE SOCIEDADES ANONIMAS by
any minority shareholder in such Material Subsidiary or the LEY DE
SOCIEDADES DE RESPONSABILIDAD LIMITADA, as applicable.
16.4 EXECUTION AND POWER
Its execution of the Finance Documents and the Permitted Acquisition
Documents to which it is, or will be from time to time, a party and its
exercise of its rights and performance of its obligations thereunder and
the transactions contemplated thereby (including, without limit,
borrowing thereunder and granting any security or guarantees contemplated
thereunder) do not and will not:
16.4.1 conflict with any material agreement, mortgage, bond or other
instrument or treaty to which it is a party or which is binding
upon it or any of its assets; or
16.4.2 conflict in a material way with its constitutive documents; or
16.4.3 conflict with any applicable law or any applicable official or
judicial regulation or order.
It has the power to enter into and perform its obligations under the
Finance Documents and the Permitted Acquisition Documents to which it is
a party and all corporate and other action required to authorise the
execution, delivery and performance of the Finance Documents and the
Permitted Acquisition Documents to which it is a party and the
transactions contemplated therein has been duly taken. No limit on its
powers will be exceeded as a result of the borrowings, granting of
security or giving of guarantees contemplated by the Finance Documents.
16.5 NO MATERIAL PROCEEDINGS
No action or administrative proceeding of or before any court, arbitrator
or agency (including, but not limited to, investigative proceedings)
which could reasonably be expected to have a Material Adverse Effect has
been started or threatened against it or its assets, nor are there any
circumstances likely to give rise to any such action or proceedings.
16.6 FINANCIAL STATEMENTS
16.6.1 Its Original Financial Statements and its most recent audited
financial statements delivered to the Agent (consolidated in the
case of USPE):
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(a) were prepared in accordance with accounting principles generally
accepted in its jurisdiction of incorporation (or, in the case of
audited financial statements of the Group, with accounting
principles generally accepted in Spain) and consistently applied
and comply with Clause 17.8 (ACCOUNTING POLICIES);
(b) disclose all liabilities (contingent or otherwise) and all
unrealised or anticipated losses of such Obligor or, as the case
may be, any member of the Group that are required by such
accounting principles to be disclosed; and
(c) give a true and fair view of (in the case of audited financial
statements) or fairly present in all material respects (in the
case of unaudited financial statements) the financial condition
and the results of the operations of operations of such Obligor
or, as the case may be, the Group during the relevant period.
16.6.2 Its financial year end and, in the case of USPE, the financial
year end of the Group is 31 December.
16.7 NO MATERIAL ADVERSE CHANGE
Since the date of its Original Financial Statements or, if later, the
date as at which its most recent audited financial statements
(consolidated in the case of USPE) were stated to be prepared, there has
been no material adverse change in its business, operations, property,
financial condition, performance or prospects or, in the case of USPE the
Group taken as a whole.
16.8 VALIDITY AND ADMISSIBILITY IN EVIDENCE
All acts, conditions and things required to be done, fulfilled and
performed in order:
16.8.1 to enable it lawfully to enter into, exercise its rights under and
perform and comply with the obligations expressed to be assumed by
it in the Finance Documents;
16.8.2 to ensure that the obligations expressed to be assumed by it in
the Finance Documents are legal, valid, binding and enforceable;
and
16.8.3 to make the Finance Documents admissible in evidence in its
jurisdiction of incorporation,
have been done, fulfilled and performed.
16.9 CLAIMS PARI PASSU
Under the laws of its jurisdiction of incorporation in force at the date
hereof, the claims of the Finance Parties against it under the Finance
Documents will rank at least PARI PASSU with the claims of all its other
unsecured and unsubordinated creditors save those whose claims are
preferred solely by any bankruptcy, insolvency, liquidation or other
similar laws of general application and, in the case of any Obligor
incorporated in Spain, those whose claims have been raised to the status
of Spanish Public Document before the date hereof and those debts which
are preferred by paragraphs (1), (2), (3)
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and (4) of Article 913 and 914 of the Spanish Commercial Code or the
ESTATUTO DE LOS TRABAJADORES .
16.10 NO FILING OR STAMP TAXES
Under the laws of its jurisdiction of incorporation in force at the date
hereof, it is not necessary that the Finance Documents be filed, recorded
or enrolled with any court or other authority in such jurisdiction or
that any stamp, registration or similar tax be paid on or in relation to
the Finance Documents.
16.11 NO DEDUCTION OR WITHHOLDING
Under the laws of its jurisdiction of incorporation in force at the date
hereof, it will not be required to make any deduction or withholding from
any payment it may make hereunder provided that, in the case of any
Obligor incorporated in Spain, any Finance Party to whom it may make
payment hereunder is a Qualifying Bank and has complied with its
obligations under Clause 11.4 (TAX CERTIFICATES).
16.12 REPORTS
Any Reports, Budgets or Business Plans shall have been prepared after due
and careful consideration and USPE (and its executive directors), having
made all reasonable enquiries in the circumstances of an Acquisition and
the negotiation of Acquisition Documents:
16.12.1 is not aware of any material inaccuracy as to factual matters
relating to a Target contained in the relevant Reports or
Business Plan;
16.12.2 does not (as at the date hereof and the date thereof, as
applicable) regard as unreasonable or unattainable any of the
forecasts or projections set out in any of the Reports, Business
Plans or Budgets for the relevant financial year end of the
Group;
16.12.3 believes (having made all reasonable enquiries) the assumptions
upon which the forecasts and projections in relation to a Target
contained in any Reports, Business Plans and Budgets are based to
be fair and reasonable; and
16.12.4 is not aware of any facts or matters not stated in any Reports,
Business Plans or the Original Financial Statements or Financial
Statements delivered thereafter, the omission of which make any
statements contained therein misleading in any material respect;
and
16.12.5 has made full disclosure of all material facts to all the persons
responsible for the preparing of any Reports in relation to USPE,
the Group and any Target.
16.13 GROUP STRUCTURE
16.13.1 The Group Structure Chart delivered to the Agent pursuant to
Schedule 3 (CONDITIONS PRECEDENT) and as amended from time to
time is true, complete and accurate; and
16.13.2 all necessary inter-company loans, transfers, share exchanges and
other steps resulting in the final Group structure set out in the
Group Structure Chart or set out in any amended Group Structure
chart have been taken in compliance
- 42 -
with all relevant laws and regulations and all requirements of
relevant regulatory authorities.
10.14 NO WINDING-UP
No member of the Group has taken any corporate action nor have any other
steps been taken or legal proceedings been started or (to the best of its
knowledge and belief having made all reasonable enquiry) overtly
threatened against any member of the Group for its winding-up,
dissolution, administration or re-organisation (whether by voluntary
arrangement, scheme of arrangement or otherwise save for any solvent
reorganisation previously approved by an Instructing Group in writing) or
for the enforcement of an Encumbrance over all or any of its revenues or
assets or for the appointment of a receiver, administrator,
administrative receiver, conservator, custodian, trustee, or similar
officer of it or of any or all of its assets or revenues.
16.15 NO MATERIAL DEFAULTS
No member of the Group:
16.15.1 is in breach of or in default under any agreement to which it is
a party or which is binding on it or any of its assets to an
extent or in a manner which could reasonably be expected to have
a Material Adverse Effect; or
16.15.2 is or is likely to be in breach of or in default under any
agreement to which it is party or which is binding on it or any
of its assets as a result of entering into and performing its
obligations under the Finance Documents in a manner which could
reasonably be expected to have a Material Adverse Effect.
16.16. INFORMATION
16.16.1 All of the written information supplied or to be supplied by
USPE, any Obligor and any advisers of USPE and/or any Obligor to
the Agent and/or the Banks and/or their advisers in connection
with the Finance Documents is true, complete and accurate in all
material respects as at the date such information was supplied
and is not misleading in any material respect.
16.16.2 USPE has not knowingly failed to disclose to the Agent any
material facts or circumstances which would be reasonably likely,
if disclosed, to affect adversely the decision of a person
considering whether or not to provide finance to the Borrowers.
16.17 INFORMATION MEMORANDUM
The factual information contained in the Information Memorandum is true,
complete and accurate in all material respects, the financial projections
contained therein have been prepared on the basis of recent historical
information and on the basis of fair and reasonable assumptions and
nothing has occurred or been omitted that renders the information
contained in the Information Memorandum inaccurate or misleading in any
material respect.
16.18 ENVIRONMENTAL COMPLIANCE
Each member of the Group has duly performed and observed in all material
respects all Environmental Law, Environmental Permits and all other
material covenants,
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16.25 TAXATION
16.25.1 Each Group member has duly and punctually paid and discharged all
taxes, assessments and governmental charges imposed upon it or
its assets within the time period allowed therefore without
imposing tax penalties or creating any Encumbrance with priority
to the Banks or the security granted or evidenced by the Security
Documents (save to the extent payment thereof is being contested
in good faith by the relevant Group member and adequate reserves
are being maintained for those taxes and where payment thereof
can lawfully be withheld and would not result in an Encumbrance
with priority to the security created or evidenced by the
Security Documents; in relation to the representation made under
this Clause 16.25 (TAXATION) on the date hereof, this proviso
shall only apply to the extent any such payment has been
previously disclosed to the Agent in writing).
16.25.2 No Group member is materially overdue in the filing of any tax
returns.
16.25.3 No claims are being or are reasonably likely to be asserted
against any Group member with respect to taxes which could
reasonably be expected to have a Material Adverse Effect.
16.26 SECURITY INTEREST
16.26.1 Each Security Document to which it is a party creates the
security interest which that Security Document purports to create
or, if that Security Document purports to evidence a security
interest, accurately evidences a security interest which has been
validly created and each security interest ranks in priority as
specified in the Security Document creating or evidencing that
interest.
16.26.2 The shares of any Group member which are subject to an
Encumbrance under the Security Documents are fully paid and not
subject to any option to purchase or similar rights and the
constitutional documents of any such Group member do not and
could not restrict or inhibit (whether absolutely, partly, under
a discretionary power or otherwise) any transfer of such shares
pursuant to enforcement of the Security Documents.
16.27 INTELLECTUAL PROPERTY
It is not aware of any adverse circumstance relating to validity,
subsistence or use of any of its Intellectual Property which could
reasonably be expected to have a Material Adverse Effect.
16.28 GOOD TITLE TO ASSETS
It has good title to or valid leases of or other appropriate licence,
authorisation or consent to use its assets necessary to carry on its
business as presently conducted (including, without limitation, its
Properties and Intellectual Property Rights).
16.29 ACQUISITION DOCUMENTS
Save for minor or technical amendments, variations or waivers, there has
been no amendment, variation or waiver of the terms of any Permitted
Acquisition Documents save as approved in writing by the Agent.
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16.30 LEGAL AND BENEFICIAL OWNER
It is the absolute legal and, where applicable, beneficial owner of all
its assets subject to any Permitted Encumbrances and to any security
granted under the Security Documents to which it is a party.
16.31 ISSUE OF SHARE CAPITAL
Save to the extent contemplated in the Shareholders Agreement, there are
no agreements in force or corporate resolutions passed which call for the
present or further issue or allotment of, or grant to any person the
right (whether conditional or otherwise) to call for the issue or
allotment of any share, loan note or loan capital of USPE or any Group
member (including an option or right of preemption or conversion).
16.32 NO TRADING
Save as contemplated by, or otherwise in connection with this Agreement,
the Finance Documents and the Permitted Acquisition Documents and the
transactions contemplated hereby or thereby, USPE has not traded or
undertaken any commercial activities of any kind and has no liabilities
or obligations (actual or contingent).
16.33 USPE'S KNOWLEDGE
USPE is not aware of any event, fact or circumstance which would
constitute a breach of warranty or misrepresentation or breach of
contract or other claim against the Vendor if all references in any of
the Permitted Acquisition Documents to "so far as the Vendor is aware" or
similar were deleted.
16.34 REPETITION OF REPRESENTATIONS
16.34.1 The Repeated Representations shall be deemed to be repeated by
the relevant Obligor by reference to the facts and circumstances
then existing on the Closing Date, any Permitted Acquisition
Closing Date, the date each Notice of Drawdown is given, on the
first day of each Interest Period, on each date on which an
Advance is or is to be made (or any Advance is rolled over) and
on each date on which a company becomes (or it is proposed that a
company becomes) an Additional Obligor and at the end of each
Financial Quarter of the Group.
16.34.2 Clause 16.17 (INFORMATION MEMORANDUM) shall be deemed to be made
on the date that the Information Memorandum is approved by USPE
and on the Syndication Date.
17. FINANCIAL INFORMATION
17.1 ANNUAL STATEMENTS
17.1.1 Each Obligor shall as soon as the same become available, but in
any event within 180 days after the end of each of its financial
years, deliver to the Agent in sufficient copies for the Banks its
consolidated financial statements and, in the case of USPE, the
consolidated financial statements of the Group for such financial
year, audited by an internationally recognised firm of independent
auditors licensed to practise in its jurisdiction of
incorporation, and the related auditor's reports.
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17.1.2 USPE shall, upon delivery of the statements referred to in Clause
17.1.1, deliver to the Agent in sufficient copies for the Banks
pro forma consolidated financial statements of the Group for such
financial year (certified if requested by the Agent by the
auditors who have audited the statements referred to in Clause
17.1.1. as representing an accurate reflection of the revised
consolidated EBITDA of the Group), incorporating the financial
statements of any Target acquired during such financial year as
though such Target(s) had been acquired at the beginning of that
year.
Such audited financial statements of USPE shall be accompanied by a
statement of USPE showing a comparison of actual performance by the Group
with the performance projected by the Budget for such period and (in
respect of first two sets of accounts) the Business Plan for such period.
17.2 QUARTERLY AND SEMI-ANNUAL STATEMENTS
Each Obligor shall as soon as the same become available, but in any event
within 45 days after the end of each of the first three Financial
Quarters, of each of its financial years, deliver to the Agent (and, if
requested, in sufficient copies for the Banks) its financial statements
and pro forma financial statements (or, in the case of USPE, the
consolidated financial statements of the Group and Pro Forma Basis
consolidated financial statements) for such period, such pro forma
statements being prepared as though any Target acquired during such
Financial Quarter were acquired at the beginning thereof.
Such quarterly and semi-annual statements shall be in a form reasonably
acceptable to the Agent and shall include a balance sheet, profit and
loss account and cash flow statement and, in the case of the consolidated
quarterly or semi-annual statements of the Group:
17.2.1 a comparison of actual performance by the Group with the
performance projected by the Budget for such period and (in
respect of periods commencing within two years of the Closing
Date) the Business Plan for such period;
17.2.2 a rolling reforecast to the end of the current financial year; and
17.2.3 in respect of each Financial Quarter or half year commencing with
the first Financial Quarter or half-year, respectively, ending
after the Closing Date, a comparison with the performance in the
corresponding period of the previous year.
17.3 MONTHLY MANAGEMENT STATEMENTS
USPE shall as soon as the same become available but in any event within
45 days after the end of each month deliver to the Agent in sufficient
copies for the Banks the consolidated financial statements of the Group
(save as set out in this Clause 17.3) for such period.
Such monthly accounts shall be on a month-to-month and cumulative basis
and in a form reasonably acceptable to the Agent and shall include a
balance sheet, profit and
- 47 -
loss account and cashflow statements and provide a management commentary
thereon as to, INTER ALIA, the Group's performance during such month and
any material developments or proposals affecting the Group or its
business, together with a comparison of actual performance by the Group
with the performance projected by the Budget for such period and (in
respect of periods commencing within two years of the Closing Date) the
Business Plan for such period and with the performance in the
corresponding calendar month of the previous financial year.
Such monthly accounts shall not include any Target acquired during the
three month period immediately prior to the end of the month in respect
of which they are prepared.
17.4 REQUIREMENTS AS TO FINANCIAL STATEMENTS
Each Obligor shall ensure that each set of financial statements delivered
by it pursuant to this Clause 17 is certified by an Authorised Signatory
of such Obligor as giving a true and fair view of (in the case of audited
financial statements) or fairly presents (in the case of unaudited
financial statements) its financial condition (or in the case of USPE,
the consolidated financial condition of the Group) as at the end of the
period to which those financial statements relate and of the results of
its (or, as the case may be, the Group's) operations during such period.
17.5 COMPLIANCE CERTIFICATES
USPE shall ensure that each set of financial statements delivered by it
pursuant to Clause 17.1 (ANNUAL STATEMENTS) and Clause 17.2 (QUARTERLY
AND SEMI-ANNUAL STATEMENTS) IS accompanied by a Compliance Certificate
signed by its auditors (in the case of a Compliance Certificate delivered
with its annual financial statements) and by two Directors of USPE (in
the case of a Compliance Certificate delivered with its annual or its
quarterly financial statements).
17.6 BUDGET
USPE shall, as soon as the same become available, and in any event not
later than forty five (45) days after the beginning of any financial
year, deliver to the Agent in sufficient copies for the Banks an annual
Budget (in a form agreed with the Agent) prepared by reference to each
Financial Quarter in respect of such financial year of the Group
including:
17.6.1 forecasts of projected disposals (including timing and amount
thereof) on a consolidated basis of the Group for such financial
year;
17.6.2 projected annual profit and loss accounts (including projected
turnover and operating costs) for and projected balance sheets and
cash flow statements on a quarterly basis for such financial year
on a consolidated basis for the Group;
17.6.3 projected capital expenditure to be incurred on a quarterly basis
for such financial year on a consolidated basis for the Group;
17.6.4 projected EBIT and EBITDA as at the end of each Financial Quarter
in such financial year; and
17.6.5 a qualitative analysis and commentary from the management on its
proposed activities for such financial year.
- 48 -
USPE shall forthwith provide the Agent with details of any
material changes in the projections delivered under this Clause
17.6 as soon as it become aware of any such change.
17.7 OTHER FINANCIAL INFORMATION
Each Obligor shall from time to time on the request of the Agent, furnish
the Agent with such information about the business, condition (financial
or otherwise), operations, performance, properties or prospects of the
Group as the Agent or any Bank (through the Agent) may reasonably
require.
17.8 ACCOUNTING POLICIES
Each Obligor shall ensure that each set of financial statements delivered
pursuant to this Clause 17 is prepared using accounting policies,
practices, procedures and reference period consistent with those applied
in the preparation of the Original Financial Statements (with normal
period end adjustments for monthly and quarterly accounts) (the
"REFERENCE FINANCIAL STATEMENTS") unless, in relation to any such set of
financial statements, the relevant Obligor notifies the Agent that there
have been one or more changes in any such accounting policies, practices,
procedures or reference period and the auditors OF such Obligor provide:
17.8.1 a description of the changes and the adjustments which would be
required to be made to those financial statements in order to
cause them to use the accounting policies, practices, procedures
and reference period upon which the Original Financial Statements
were prepared; and
17.8.2 sufficient information, in such detail and format as may be
reasonably required by the Agent, to enable the Banks to make an
accurate comparison between the financial position indicated by
those financial statements and the Original Financial Statements.
If there has been a change in accounting policies, practices, procedures
or reference period and the description and information required by this
Clause 17.8 have been provided by the auditors in connection with such
change and any amendments have been agreed pursuant to Clause 17.9
(CHANGE IN ACCOUNTING POLICY) in connection with such change, then such
change shall become part of the normal accounting policies, practices,
procedures and reference period as if it were used in the preparation of
the Original Financial Statements.
17.9 CHANGE IN ACCOUNTING POLICIES
If there has been one or more such changes in any accounting policies,
practices or procedures or reference period:
17.9.1 the Agent and USPE shall (in consultation with the auditors of
USPE, if necessary), at the Agent's request, negotiate in good
faith with a view to agreeing such amendments to the financial
covenants in Clause 19 (FINANCIAL CONDITION) the term margin
ratchet in Clause 5.3 (TERM MARGIN RACHET), and the mandatory
prepayment from excess cash in Clause 9.2 (MANDATORY PREPAYMENT
FROM EXCESS CASH) and/or in each case, the definitions used
therein as may be necessary to grant to the Banks protection
comparable to
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that granted on the date hereof; and any amendments as agreed will
have effect on the date agreed between the Agent and USPE; and
17.9.2 if no such agreement is reached within 30 days of the Agent's
request, the Agent shall (if so requested by an Instructing Group)
instruct the auditors of USPE or independent accountants (approved
by USPE or, in the absence of such approval within 5 days of
request by the Agent therefor, a firm with recognised
international expertise) to determine any amendment to Clause 19
(FINANCIAL CONDITION) which those auditors or, as the case may be,
accountants (acting as experts and not arbitrators) consider
appropriate to grant to the Banks protection comparable to that
granted on the date hereof, which amendments shall take effect
when so determined by those auditors, or as the case may be,
accountants. Where such auditors or accountants are instructed
hereunder, the cost and expense of those auditors or accountants
shall be for the account of USPE.
18. OTHER INFORMATION
18.1 INFORMATION AS TO GUARANTORS
USPE shall from time to time, at the request of the Agent, furnish the
Agent with a report issued by its auditors stating which of its
subsidiaries are Material Subsidiaries.
18.2. SHAREHOLDER INFORMATION
USPE shall, as soon as reasonably practicable, after the same are
supplied or made available, furnish the Agent with such general
information as is required by law to be supplied or made available to all
shareholders (in their capacity as such) of USPE or, in the case of any
Obligor, their creditors generally or any class thereof.
18.3 AUDITOR'S LETTER
USPE shall at the request of the Agent require and authorise the Auditors
to discuss with the Agent the information and other matters related to or
arising out of the annual audit of the Group by the Auditors.
18.4 LITIGATION AND ENVIRONMENTAL CLAIMS
USPE shall advise the Agent forthwith of the details of:
18.4.1 each litigation, arbitration or administrative proceeding pending
or threatened against any member of the Group which could
reasonably be expected to result in liability of such member of
the Group in an amount in excess of five per cent. of the total
Current Assets (as defined in Clause 19.2) of the Group at the
time such matter or claim was commenced (or its equivalent); and
18.4.2 each Environmental Claim which could reasonably be expected to
involve liability or expenditure in excess of five per cent. of
the total Current Assets (as defined in Clause 19.2) of the Group
at the time such claim was commenced.
18.5 SHAREHOLDERS OF USPE
USPE shall promptly inform the Agent in writing upon any transfer of any
legal or beneficial ownership of the shares of USPE or any change of
control of such shares of
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which it is aware and such notice shall include details of the previous
owner or controller and the new owner or controller and the number and
type of shares affected.
18.6 INFORMATION COVENANTS USPE
shall procure that any notices required to be delivered to the Agent
under Clause 20 (COVENANTS) are delivered in accordance with such Clause.
19. FINANCIAL CONDITION
19.1 FINANCIAL CONDITION
USPE shall ensure that the financial condition of the Group (calculated
on a Pro Forma Basis (consolidated), if applicable) shall be such that:
19.1.1 CASH FLOW COVER: Cash Flow Cover at the end of March, June,
September and December falling in each Relevant Period specified
in column 1 below shall not be less than the ratio set out in
column 2 below opposite such Relevant Period.
COLUMN 1 COLUMN 2
RELEVANT PERIOD RATIO
PERIOD EXPIRING DURING
THE YEAR ENDING: 31/12 2000 1:1
31/12 2001 1.05:1
31/12 2002 1.15 :1
31/12 2003 1.15:1
31/12 2004 1.15:1
31/12 2005 1.15:1
31/12 2006 1.15:1
31/12 2007 1.15:1
"CASH FLOW COVER" means, in relation to any Relevant Period, the ratio of
Free Cash Flow to Total Debt Service (other than during the period
falling prior to the end of the Term Availability Period any Indebtedness
for Borrowed Money to be refinanced with any Advances) for such Relevant
Period.
19.1.2 MINIMUM NET WORTH COVER: Minimum Net Worth Cover during each
Relevant Period specified in column 1 below shall at all times not
be less than the ratio set out in column 2 below opposite such
Relevant Period.
COLUMN 1 COLUMN 2
RELEVANT PERIOD RATIO
PERIOD EXPIRING DURING
THE YEAR ENDING: 31/12 2000 2.25:1
31/12 2001 2.25:1
31/12 2002 2.25:1
31/12 2003 2.0:1
31/12 2004 1.75:1
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31/12 2005 1.50:1
31/12 2006 1.50:1
31/12 2007 1.50:1
"MINIMUM NET WORTH COVER" means, in relation to any Relevant Period, the
ratio of Gross Debt to Consolidated Net Worth for such Relevant Period.
19.1.3 GROSS DEBT COVER: Gross Debt Cover at the end of March, June,
September and December falling in of each Relevant Period
specified in column 1 below shall not be more than the ratio set
out in column 2 below opposite such Relevant Period.
COLUMN 1 COLUMN 2
RELEVANT PERIOD RATIO
PERIOD EXPIRING DURING
THE YEAR ENDING: 31/12 2000 5.0:1
31/12 2001 5.0:1
31/12 2002 5.0:1
31/12 2003 5.0:1
31/12 2004 4.5:1
31/12 2005 4.5:1
31/12 2006 4.5:1
31/12 2007 4.5:1
"GROSS DEBT COVER" means, in respect of any Relevant Period, the ratio of
Gross Debt to EBITDA (calculated on a Pro Forma Basis) for such Relevant
Period.
19.1.4 INTEREST COVER
The ratio of EBITDA to interest payable in respect of any
Indebtedness for Borrowed Money of the Group during each Relevant
Period specified in Column 1 below shall at all times be not less
than the ratio set out in Column 2 below opposite such Relevant
Period
COLUMN 1 COLUMN 2
RELEVANT PERIOD RATIO
PERIOD EXPIRING DURING
THE YEAR ENDING: 31/12 2000 2.5:1
31/12 2001 2.8:1
31/12 2002 3.0:1
31/12 2003 3.2:1
31/12 2004 3.5:1
31/12 2005 4.0:1
31/12 2006 4.0:1
31/12 2007 4.0:1
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19.2 FINANCIAL DEFINITIONS
In Clause 19 (FINANCIAL CONDITION) the following terms have the following
meanings.
"CAPITAL EXPENDITURE" means any expenditure or obligations in respect of
expenditure (including any obligation in respect of the capital element
of any Finance Lease, operating lease or capital lease) for the
acquisition of equipment, fixed assets, real property, intangible assets
and other assets of a capital nature, or for the replacements or
substitutions therefor or additions or improvements thereto, that in any
such case have a useful life of more than one year together with costs
incurred in connection therewith.
"CONSOLIDATED NET FINANCE CHARGES" means, in respect of any Relevant
Period, the aggregate amount of the interest (including the interest
element), commission, fees, discounts and other finance payments payable
by any member of the Group (other than to another member of the Group or
to USPI by any member of the Group).
INCLUDING any commission, fees, discounts and other finance payments
payable by any member of the Group under any interest rate hedging
arrangement.
BUT DEDUCTING (a) any commission, fees, discounts and other finance
payments receivable by any member of the Group under any interest rate
hedging instrument permitted by this Agreement, (b) any interest
receivable by any member of the Group on any deposit or bank account and
(c) any interest payable in relation to subordinated indebtedness.
"CONSOLIDATED NET WORTH" means at any time the aggregate of the amounts
paid up or credited as paid up on the issued share capital (other than
any redeemable shares) and the aggregate amount of the reserves of the
Group INCLUDING:
(a) any amount credited to the share premium account;
(b) any capital redemption reserve fund;
(c) any balance standing to the credit of the consolidated profit and
loss account of the Group; and
(d) subordinated shareholders loans
BUT DEDUCTING:
(1) any debit balance on the consolidated profit and loss account of
the Group;
(2) (to the extent included) any amount shown in respect of goodwill
(including goodwill arising only on consolidation) or other
intangible assets of the Group and interests of non-Group members
in Group subsidiaries but after adding back any amortised goodwill
and any transaction expenses in connection with the Acquisition
amortised or written off;
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(3) (to the extent included) any amount set aside for taxation,
deferred taxation or bad debts;
(4) (to the extent included) any amounts arising from an upward
revaluation of assets made at any time after 31 December 1998
(other than those required to be included in accordance with
Spanish GAAP); and
(5) any dividend or distribution declared, recommended or made by any
member of the Group to the extent payable to a person who is not a
member of the Group and such distribution is not provided for in
the most recent financial statements,
and so that no amount shall be included or excluded more than once.
"CURRENT ASSETS" means the aggregate of inventory, trade and other
receivables of the Group on a consolidated basis including sundry debtors
(but excluding cash at bank and Cash Equivalent Investments) maturing
within twelve months from the date of computation and excluding amounts
due from the relevant Vendors in connection with a Permitted Acquisition.
"CURRENT LIABILITIES" means the aggregate of all liabilities (including
trade creditors, accruals and provisions and prepayments) of the Group on
a consolidated basis falling due within twelve months from the date of
computation but excluding consolidated aggregate Indebtedness for
Borrowed Money of the Group falling due within such period and any
interest accruing on such Indebtedness for Borrowed Money due in such
period and excluding amounts due to the Vendors in connection with the
Acquisition.
"EB1T" means, in respect of any Relevant Period, the consolidated net
income of the Group BEFORE:
(a) any provision on account of taxation;
(b) any interest (including capitalised interest), commission,
discounts or other fees incurred or payable, received or
receivable by any member of the Group in respect of Indebtedness
for Borrowed Money;
(c) any amounts received or paid pursuant to the interest hedging
arrangements entered into in respect of the Facilities;
(d) any items treated as exceptional or extraordinary items;
(e) any amount attributable to goodwill arising on a Permitted
Acquisition,
Provided that any calculation made shall be made on a Pro Forma Basis as
if any Acquisitions made during the Relevant Period were made at the
beginning of such period.
"EBITDA" means, for any Relevant Period, EBIT before any amount
attributable to amortisation of intangible assets (including goodwill)
and depreciation of tangible assets and amortisation, or the writing off
of transaction expenses in relation to a Permitted Acquisition (to the
extent, in each case, deducted in calculated EBIT).
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"EXCESS CASH FLOW" means, for any period for which it is being
calculated, Free Cash Flow (for such purposes not calculated on a Pro
Forma Basis) for that period less
(a) Total Debt Service (without double counting Consolidated Net
Finance Charges) but adding back the amount of any cash dividends
paid or made in such period;
(b) voluntary prepayments of the Term Facilities during such period;
and
(c) extraordinary capital expenditure provided that such amount has
been added to the purchase price for any existing and future
Permitted Acquisitions.
"FINANCIAL QUARTER" means the period commencing on the day after one
Quarter Date and ending on the next Quarter Date.
"FREE CASH FLOW" means, in respect of any Relevant Period, EBITDA
(calculated on a Pro Forma Basis) of the Group after ADDING BACK:
(i) any decrease in the amount of Working Capital;
AND DEDUCTING:
(ii) any amount of Capital Expenditure actually made by any member of
the Group (excluding extraordinary Capital Expenditure for
existing and future Permitted Acquisitions where such amount is
added to the purchase price);
(iii) any increase in the amount of Working Capital;
(iv) any amount in respect of minority interests;
(v) any amount actually paid or due and payable in respect of taxes on
the profits of any member of the Group; and
(vi) any cash payment in respect of any exceptional or extraordinary
item,
and no amount shall be included or excluded more than once.
"GROSS DEBT" means, at any time, the aggregate Senior Indebtedness of the
Group constituting Indebtedness for Borrowed Money (but excluding for
such purpose any guarantee granted in relation to the Clinica San ▇▇▇▇▇▇
Building by any member of the Group in respect of Indebtedness for
Borrowed Money to the extent that such guarantees are fully cash
collateralised).
"QUARTER DATE" means each of 31 March, 30 June, 30 September and
31 December.
"RELEVANT PERIOD" means each period of twelve months ending on the last
day of each Financial Quarter of USPE's financial year.
"SENIOR INDEBTEDNESS" means Indebtedness for Borrowed Money (other than
Indebtedness for Borrowed Money owed to a member of the Group) that is
not subordinated in right of payment to other Indebtedness for Borrowed
Money.
"TOTAL DEBT SERVICE" means, in respect of any Relevant Period, the
aggregate of:
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(a) Consolidated Net Finance Charges; and
(b) the aggregate of scheduled and mandatory payments of any
Indebtedness for Borrowed Money falling due.
"WORKING CAPITAL" means on any date Current Assets less Current
Liabilities.
19.3 FINANCIAL TESTING
The financial covenants set out in Clause 19 (FINANCIAL CONDITION) shall
be tested by reference to each of the financial statements and/or each
Compliance Certificate delivered pursuant to Clause 17 (FINANCIAL
INFORMATION).
19.4 AUDITOR'S VERIFICATION
The Agent may, at any time if it has reasonable grounds for believing
that the figures prepared by USPE are incorrect, inaccurate or incomplete
at USPE's expense require the auditors of the Group to verify the figures
supplied by USPE in connection with:
19.4.1 the financial conditions set out in Clause 19.1 (FINANCIAL
CONDITION);
19.4.2 the financial conditions to be satisfied in order to permit a
reduction in margin in accordance with Clause 5.3 (TEAM MARGIN
RATCHET); or
19.4.3 the financial condition to be satisfied to reduce mandatory
prepayments from Excess Cashflow in accordance with Clause 9.2
(MANDATORY PREPAYMENT FROM EXCESS CASH).
The Agent may, in accordance with this Clause 19.4, request verification
of any figure or calculation made in a Compliance Certificate delivered
under Clause 18 (OTHER INFORMATION) and/or any figure contained in the
financial statements delivered under Clause 17 (FINANCIAL INFORMATION)
which is relevant to the calculation of the financial conditions referred
to above.
If such auditors fail to verify such figures to the reasonable
satisfaction of the Agent after being requested to do so, the Agent may
appoint an independent firm of accountants to carry out an appropriate
investigation and give a certificate in a form and content reasonably
satisfactory to the Agent certifying or verifying the relevant figures
and satisfaction of the above financial conditions shall be determined by
reference to the figures so verified or certified even if the audited or
management accounts for the same date or period have not yet been
published.
19.5 ACCOUNTING TERMS
All accounting expressions to the extent that not otherwise defined
herein shall be construed in accordance with generally accepted
accounting principles in Spain.
20. COVENANTS
20.1 MAINTENANCE OF LEGAL VALIDITY AND LEGAL STATUS
Each Obligor shall do all such things as are necessary to maintain its
existence as a legal person and obtain, comply with the terms of and do
all that is necessary to maintain in full force and effect all
authorisations, approvals, licences, consents and exemptions required in
or by the laws of its jurisdiction of incorporation to enable it lawfully
to
- 56 -
enter into and perform its obligations under the Finance Documents to
which it is expressed to be a party and to ensure the legality, validity,
enforceability or admissibility in evidence in its jurisdiction of
incorporation of the Finance Documents and, on request of the Agent,
supply copies (certified by an Authorised Signatory of the relevant
Obligor as true, complete and up to date) of any such authorisations,
approvals, licences, consents and exemptions.
20.2 INSURANCE
20.2.1 Each Obligor shall and shall procure that each member of the Group
shall effect and maintain insurances on and in relation to its
business and assets with reputable underwriters or insurance
companies against such risks and to such extent as is usual for
prudent companies carrying on a business such as that carried on
by such member of the Group (including, but not limited to, loss
of earnings, business interruption, directors and officers
liability cover) and is reasonably satisfactory to the Agent.
20.2.2 Without prejudice to sub-clause 20.2.1, each Obligor shall, and
shall procure that each Group member effects and maintains
insurances on and in relation to its business and assets against
such risks and at such levels as are set out in the Insurance
Report or such higher levels as are normally maintained by persons
carrying on the same business as that carried on by such Group
member.
20.2.3 USPE shall (if so requested in writing) supply the Agent with
copies of all such insurance policies or certificates of insurance
in respect thereof or (in the absence of the same) such other
evidence of the existence of such policies as may be reasonably
acceptable to the Agent and shall, in any event, notify the Agent
of any material changes to its insurance cover made from time to
time. USPE shall ensure that the security interest created under
the Security Documents is noted on such policies which are asset
insurance policies within 30 days of the date hereof and that the
Agent be named as loss payee.
20.3 ENVIRONMENTAL MATTERS
20.3.1 Each Obligor shall and shall ensure that each member of the Group
shall comply in all material respects with all Environmental Law
and obtain and maintain any Environmental Permits and take all
reasonable steps in anticipation of known or expected future
changes to or obligations under the same, breach of which (or
failure to obtain, maintain or take which) could reasonably be
expected to have a Material Adverse Effect.
20.3.2 Each Obligor shall, and shall procure that each Group member
shall, inform the Agent in writing as soon as reasonably
practicable upon becoming aware of the same if any Environmental
Claim has been commenced or (to the best of its knowledge and
belief) is threatened against any member of the Group in any case
where such claim would be reasonably likely to have a Material
Adverse Effect or of any facts or circumstances which will or are
reasonably likely to result in any Environmental Claim being
commenced or threatened against any member of the Group in any
case where such claim could reasonably be expected to have a
Material Adverse Effect.
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20.4 NOTIFICATION OF EVENTS OF DEFAULT
Each Obligor shall and shall procure that each Group member shall, inform
the Agent of the occurrence of any Event of Default or Potential Event of
Default and, upon receipt of a written request to that effect from the
Agent, confirm to the Agent that, save as previously notified to the
Agent or as notified in such confirmation, no Event of Default or
Potential Event of Default has occurred.
20.5 CLAIMS PARI PASSU
Each Obligor shall ensure that at all times the claims of the Finance
Parties against it under the Finance Documents rank at least PARI PASSU
with the claims of all its other unsecured and unsubordinated creditors
save those whose claims are preferred by any bankruptcy, insolvency,
liquidation or other similar laws of general application and, in the case
of any Obligor incorporated in Spain, those whose claims have been raised
to the status of Spanish Public Document before the date hereof and those
debts which are preferred by paragraphs (1), (2), (3) and (4) of Article
913 and 914 of the Spanish Commercial Code or the ESTATUTO DE LOS
TRABAJADORES.
20.6 CONSENTS AND APPROVALS
Each Obligor shall, and shall procure that each member of the Group
shall, comply with all applicable laws, rules, regulations and orders and
obtain and maintain all governmental and regulatory consents, licences,
authorisations and approvals the failure to comply with which or the
failure to obtain and maintain which could be reasonably be expected to
have a Material Adverse Effect.
20.7 CONDUCT OF BUSINESS
Each Obligor shall, and shall procure that each member of the Group
shall, ensure that it has the right and is duly qualified to conduct its
business as it is conducted from time to time in all applicable
jurisdictions and does all things necessary to obtain, preserve and keep
in full force and effect all rights including, without limitation, all
franchises, contracts, licences, consents and other rights which are
necessary for the conduct of its business.
20.8 TAX
20.8.1 Each Obligor shall, and shall procure that each member of the
Group shall, duly and punctually pay and discharge (a) all taxes,
assessments and governmental charges imposed upon it or its assets
within the time period allowed therefore without imposing
penalties and without resulting in an Encumbrance with priority to
any Bank or any security purported to be granted by or created
pursuant to the Security Documents (save to the extent payment
thereof is being contested in good faith by the relevant Group
member and adequate reserves are being maintained for those taxes
and where payment thereof can lawfully be withheld and would not
result in an Encumbrance with priority to the security created or
evidenced by the Security Documents) and (b) all lawful claims
which, if unpaid, would by law become Encumbrances upon its
assets.
20.8.2 No Obligor shall change its place of residence for tax purposes
without the prior written consent of an Instructing Group.
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20.9 PRESERVATION OF ASSETS
Each Obligor shall, and shall procure that each member of the Group
shall, maintain and preserve all of its assets that are necessary in the
conduct of its business as conducted at the date hereof in good working
order and condition, ordinary wear and tear excepted.
20.10 SECURITY
20.10.1 USPE shall ensure that any member of the Group which is a
Material Subsidiary is or shall, no later than 90 days after
becoming a Material Subsidiary (save in the case of the
acquisition of Clinics San Camilo, S.A., which shall become an
Additional Guarantor within 90 days of the date on which it is
acquired by the Group and lnstituto Universitario Dexeus and
Instituto Policlinico Santa ▇▇▇▇▇▇ which shall do so within [90]
days of the Closing Date) become an Additional Guarantor in
accordance with Clause 34 (ADDITIONAL GUARANTORS) save unless (a)
the interests of any minority shareholders) in such Material
Subsidiary make it, in the opinion of counsel to the Agent,
legally impossible for such Material Subsidiary to become an
Additional Guarantor, or (b) such minority shareholders have
successfully challenged and set aside the resolution (or such
resolution is suspended (if such suspension is not revoked) made
by the Material Subsidiary in which they hold shares to give any
Guarantee hereunder Provided always that USPE shall ensure that
such resolutions are initially tabled in a shareholders meeting
of such Material Subsidiary.
20.10.2 Each Obligor shall, and shall procure that each member of the
Group in which it has shares or other equity participations
shall, at its own expense:
(a) enter into a share pledge agreement in the form agreed by
the Agent with respect to its shareholdings in the
following entities: Clinica Maternal Nuestra Senora de la
Esperanza, S.A.; Instituto Policlinico Santa Teresa, S.A.;
and Instituto Dexeus, S.A.;
(b) enter into a pledge over participations in the form agreed
by the Agent with respect to its participations in the
following entities: United Surgical Partners ▇▇▇▇▇▇, ▇.▇.;
United Surgical Partners Malaga, S.L.; Centro Radiologico,
S.L.; Clinics ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇.▇.; USP Dermoestetica,
S.L.; and United Surgical Partners Europe, S.L.;
(c) following any breach of Clause 19.1, and providing such
breach is continuing and has been confirmed by the Agent,
following, if appropriate, any investigation referred to in
Clause 19.4, grant security over its fixed assets by
entering into a mortgage substantially in the form set out
in Schedule 12 or such other security document as may be
required by the Agent in respect of security to be granted
over its assets (provided that the agreement to grant such
security is not successfully challenged or annulled or.
suspended (and such suspension is not withdrawn) and to the
extent legally permitted.
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20.10.3 Each Obligor shall, and shall procure that each member of the Group
shall, at its own expense, take all such action as the Agent may require
for the purpose of perfecting or protecting the Agent's rights under and
preserving the security interests intended to be created or evidenced by
any of the Finance Documents and following the making of any declaration
pursuant to Clause 21.21 (ACCELERATION AND CANCELLATION) or 21.22
(ADVANCES DUE ON DEMAND) for facilitating the realisation of any such
security or any part thereof.
20.10.4 In the event that the Agent, acting on the instructions of all the
Banks, determines that any security to be given in respect of the
obligations of the Obligors should be given following, in respect of any
Target, any merger of any member of the Group with such Target, rather
than before, any security required to be granted hereunder shall be
granted following such merger.
20.10.5 In the event of any breach of the obligations of any Obligor hereunder
[and following a request of an Instructing Group], each Obligor shall at
its own cost and expense, and shall procure that each member of the
Group shall, to the extent legally possible (and, in the case of any
member not wholly owned by USPE, to the extent any agreement to grant
security or Guarantees is not suspended (and such suspension is not
withdrawn) or annulled in accordance with the procedures set out in the
Spanish LEY DE SOCIEDADES ANONIMAS ) or the LEY DE SOCIEDADES DE
RESPONSABILIDAD LIMITADA, as applicable,) and as reasonably required by
the Agent (acting on the instructions of an Instructing Group) from time
to time, (a) promptly create or procure the creation of security over
its assets in favour of the Finance Parties to secure all or any of the
obligations of the Obligors under the Finance Documents, (b) procure the
compliance with this Agreement of any other Group member which is not
already a party hereto as an Obligor and (c) promptly provide additional
security reasonably acceptable to an Instructing Group if any new Group
member is incorporated or acquired or any assets or business are
acquired Provided that such security can reasonably be provided.
20.10.6 Each Obligor shall and shall procure that each member of the Group which
has subscribed in the participations of Centro Radiologico ▇▇▇▇ XXIII,
S.L. shall, at its own expense, enter into a pledge over such
participations and, subsidiarily, over the rights arising from the
subscription of such participations in form and substance satisfactory
to the Agent.
20.11 PENSIONS
20.11.1 The Obligors shall, and shall procure that each Group member shall,
ensure that all pension schemes are fully funded based on reasonable
actuarial assumptions and recommendations and as required by law.
20.11.2 USPE shall deliver to the Agent at intervals of no more than three
calendar years, and in any event at such time as those reports are
prepared in order to comply with the then current statutory or auditing
requirements, actuarial reports in relation to the pension schemes for
the time being operated by or
- 60 -
maintained for the benefit of members of the Group and/or any of its
employees.
20.12 ACCESS
USPE shall ensure that any one or more representatives, agents and
advisers of the Agent will be allowed to have reasonable access to the
assets, books, records and premises of each Group member and to inspect
the same during normal business hours (at the expense of USPE).
20.13 INTELLECTUAL PROPERTY
20.13.1 Each Obligor shall, and shall procure that each Group member
shall:
(a) do all acts as are reasonably practicable to maintain,
protect and safeguard the Intellectual Property
necessary for the business of the relevant Group member
and not terminate or discontinue the use of any such
Intellectual Property;
(b) use all reasonable endeavours to police against and
detect any infringement of, or detect any challenge to,
any of the Intellectual Property necessary for the
business of the relevant Group member and, immediately
after becoming aware of any material infringement
thereof or material challenge thereto, inform the Agent
thereof and, at the request of the Agent but at the cost
of the relevant Group member, take such steps as the
Agent may from time to time reasonably direct in
relation to such infringement or challenge including any
steps in relation to the settlement of any legal
proceedings brought or defended in relation thereto.
Subject always, in the case of any material infringement
or material challenge, to any directions given by the
Agent, the relevant Group member shall not be precluded
from taking such steps as it shall consider necessary or
desirable in relation to any infringement of or
challenge to any of the Intellectual Property;
(c) observe and comply with all obligations and laws to
which it in its capacity as registered proprietor,
beneficial owner, user, licensor or licensee of the
Intellectual Property or any part thereof is subject
where failure to do so could reasonably be expected to
have a Material Adverse Effect; and
(d) pay all fees necessary to maintain, protect and
safeguard the Intellectual Property (as it is owned or
licensed by a Group member) which is necessary for the
business of the relevant member of the Group and the
registrations reasonably necessary or desirable to be
made in connection therewith before the latest time
provided for payment thereof and not permit any
registration of such property to terminate, be
abandoned, cancelled, lapse or be liable to any claim of
abandonment. Promptly upon request by the Agent for the
same, USPE will deliver or will procure delivery to the
Agent of, a receipt for such fees or other evidence
reasonably satisfactory to the Agent of the payment
thereof.
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20.13.2 Each Obligor shall not, and shall ensure that each Group member
shall not:
(a) use or allow to be used, or take any step or omit to
take any step in respect of any of the Intellectual
Property, in any way which could reasonably be expected
to materially and adversely affect the existence or
value thereof or imperil the right of any Group member
to use any such property;
(b) without the prior written consent of the Agent, dispose
of or transfer or terminate or enter into any contract
or licence in respect of Intellectual Property, other
than (i) any licensing arrangements between members of
the Group and (ii) the entering into such contracts or
licences in the ordinary course of business where this
would not have a material adverse effect on the value of
the Intellectual Property, and (iii) Permitted
Disposals.
20.14 CASH MANAGEMENT
Each Obligor shall, and shall procure that each Group member shall, to
the extent that to do so would not be likely to cause a breach of law on
the part of the relevant Group member or its directors and except to the
extent that the directors or the finance director (or equivalent
financial officer) of a Group member consider that such Group member
would have inadequate resources to meet the forecast cashflow
requirements of such Group member (which shall be determined by the
board of directors or the financial director (or equivalent financial
officer) of such Group member, acting reasonably, having regard to their
or its responsibilities under applicable law):
(a) utilise their cash balances so as to service the interest,
commitment commission and principal payable on the Facilities
and pay any other amounts due under the Finance Documents; and
(b) if a member of the Group has not created security over such
cash, lend any surplus cash remaining after compliance with
sub-clause 20.14(a) to a member of the Group which has created
such security.
20.15 VENDOR WARRANTIES
Each Obligor, in its capacity as a Purchaser shall, and USPE will
procure that any Purchaser will, diligently pursue all material claims
for breach of contract or warranty by, or misrepresentation by, or
indemnity or other claim against any relevant Vendor or any affiliate
thereof or any of their respective employees, officers or advisers or
any other party under or in connection with any Permitted Acquisition
Documents.
20.16 NEGATIVE PLEDGE
No Obligor shall, and each Obligor will procure that no member of the
Group shall, without the prior written consent of an Instructing Group,
create or permit to subsist any Encumbrance over all or any of its
assets other than a Permitted Encumbrance.
20.17 SPANISH PUBLIC DOCUMENT
The Obligors shall raise this Agreement (at its own cost and expense) to
the status of a Spanish Public Document as at the Closing Date.
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20.18 LOANS AND GUARANTEES
No Obligor shall, and each Obligor will procure that no member of the
Group shall, without the prior written consent of an Instructing Group,
make any loans, grant any credit or other financial accommodation or
give any guarantee or indemnity (except as required by the Finance
Documents) to or for the benefit of any person or otherwise voluntarily
assume any liability, whether actual or contingent, in respect of any
obligation of any other person except:
20.18.1 trade credit or indemnities granted in the ordinary course of
trading and upon terms usual for such trade;
20.18.2 Permitted Transactions; or
20.18.3 guarantees of Permitted Financial Indebtedness.
20.19 FINANCIAL INDEBTEDNESS
No Obligor shall, and each Obligor will procure that no member of the
Group shall, incur, create or permit to subsist or have outstanding any
Financial Indebtedness or enter into any agreement or arrangement
whereby it is entitled to incur, create or permit to subsist any
Financial Indebtedness other than, in either case, Permitted Financial
Indebtedness.
20.20 DISPOSALS
No Obligor shall, and each Obligor shall procure that no member of the
Group shall, without the prior written consent of an Instructing Group,
sell, lease, transfer or otherwise dispose of, by one or more
transactions or series of transactions (whether related or not), the
whole or any part of its revenues or its assets or its business or
undertakings other than Permitted Disposals.
20.21 MERGERS
Except as part or as a consequence of a Permitted Acquisition, no
Obligor shall, and each Obligor shall procure that no member of the
Group shall, merge or consolidate with any other person, enter into any
demerger transaction or participate in any other type of corporate
reconstruction save as otherwise permitted herein.
20.22 ACQUISITIONS
Other than in relation to Permitted Acquisitions no Obligor shall, and
each Obligor shall procure that no member of the Group shall:
20.22.1 purchase, subscribe for or otherwise acquire any shares (or
other securities or any interest therein) in, or incorporate,
any other company or agree to do any of the foregoing; or
20.22.2 purchase or otherwise acquire any assets (other than in the
ordinary course of business) or (without limitation to any of
the foregoing) acquire any business or interest therein or agree
to do so; or
20.22.3 form, or enter into, any partnership, consortium, joint venture
or other like arrangement or agree to do so.
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20.23 DIVIDENDS AND DISTRIBUTIONS
No Obligor shall, and each Obligor shall procure that no Group member
shall, pay, make or declare any dividend, return on capital, repayment
of capital contributions or other distribution (whether in cash or in
kind) or make any distribution of assets or other payment whatsoever in
respect of share capital whether directly or indirectly save for
Permitted Transactions.
20.24 SHARE CAPITAL
No Obligor shall, and shall procure that no member of the Group shall,
issue or redeem or repurchase, purchase, defease or retire any shares or
grant any person the right (whether conditional or unconditional) to
call for the issue or allotment of any share of USPE or any Group member
(including an option or right of pre-emption or conversion) or any other
equity investments, howsoever called, or alter any rights attaching to
its issued shares (including ordinary and preference shares) other than
(i) any issue of shares by an Obligor (other than USPE) to another
wholly-owned member of the Group, (ii) the redemption, repurchase,
defeasance or retirement by or purchase by a Group member of shares or
share capital owned by an Obligor, (iii) the issue or grant of rights to
call for the issue or allotment of shares of USPE or the alteration of
rights attaching to USPE's shares (other than alterations that cause
shares that were not previously redeemable at the option of the holder
thereof prior to the Final Maturity Date to become so redeemable prior
to such date) Provided that any shares so allotted or issued or any
rights granted are pledged in favour of the Banks in form and substance
satisfactory to the Banks.
20.25 AMENDMENTS
No Obligor shall, and shall procure that no Group member shall, amend,
vary, novate, supplement or terminate any of the Permitted Acquisition
Documents, the constitutional documents or any other document delivered
to the Agent pursuant to Clauses 2.3 (CONDITIONS PRECEDENT) or 33.2
(BORROWER CONDITIONS PRECEDENT) or 34.2 (GUARANTOR CONDITIONS PRECEDENT)
or waive any right thereunder.
20.26 CHANGE OF BUSINESS
No Obligor shall, and shall procure that no Group member shall, make any
material changes to the general nature of the business of the Group as
carried on at the date hereof, or carry on any other business which
results in any material change to the nature of such business.
20.27 FEES AND COMMISSIONS
No Obligor shall, and shall procure that no Group member shall, other
than as required or permitted hereunder, pay any fees or commissions to
any person other than any fees payable on arm's length terms to third
parties who have rendered service or advice to such Group member
required by such Group member in the ordinary course of business.
20.28 ARM'S LENGTH BASIS
No Obligor shall, and shall procure that no Group member shall, enter
into any arrangement or contract with any of its affiliates or any Group
member save where:
20.28.1 both parties to the arrangement are Obligors; or
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20.28.2 in any other case:
(a) such arrangement or contract is entered into on an arm's length
basis and is fair and equitable to such Group member; and
(b) if so requested by the Agent the benefit of such arrangement is
charged as security for amounts owing hereunder (to the extent
legally possible); and
(c) if so requested by the Agent, claims in respect of such
arrangements are subordinated to the claims of the Finance
Parties under the Finance Documents (to the extent legally
possible).
For the purposes of this Clause 20.28 "AFFILIATE" of the specified person
means any other person directly or indirectly controlling or controlled by
or under common control with such specified person or which is a director,
officer or partner (limited or general) of such specified person and for
this purpose "CONTROL", means the possession, direct or indirect, of the
power to vote five per cent (5%) or more of the securities having ordinary
voting power for the election of directors or the power to direct or cause
the direction of the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" shall
be construed accordingly.
20.29 JOINT VENTURES
No Obligor shall, and each Obligor shall procure that no Group member
shall, enter into or acquire or subscribe (or agree to enter into or
acquire or subscribe) for any shares, stocks, securities or other interest
in or transfer of any assets to or lend to or guarantee or give security
for the obligations of any Joint Ventures.
20.30 ACQUISITION OF A TARGET
USPE shall and shall ensure that each other Obligor shall:
(a) in relation to a Permitted Acquisition, comply in all material
respects with all relevant laws and all requirements of relevant
regulatory authorities;
(b) comply with and deliver all Conditions Precedent in accordance with
Schedule 3 Part 2 (Conditions Precedent to a Permitted Acquisition);
(c) at the request of the Agent, provide the Agent with any material
information in the possession of the Group relating to the Permitted
Acquisition as the Agent may reasonably request;
(d) ensure that no publicity material, press releases or other public
documents in relation to a Permitted Acquisition (other than those
required by law or regulation) are published or released by or on
behalf of it, or their advisers which refer to any of the Agent, the
Arranger or the Banks, this Agreement or the Facilities unless such
reference and the context in which it appears have previously been
approved by the Agent and the Arranger (such approval not to be
unreasonably withheld or delayed); and
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(e) not withhold its consent to any reasonable request by the Arranger or
Agent to publicise the Facilities and the involvement of the Arranger,
Agent and the Banks therein and the transactions contemplated thereby
after the Closing Date.
20.31 HEDGING
USPE shall, within 120 days of the Closing Date enter into hedging
arrangements satisfactory to the Agent with a Hedge Counterparty in order
to cap its total interest cost in respect of at least fifty per cent. of
the Outstandings, for a minimum period acceptable to the Agent being not
less than 3 years.
20.32 USPE
USPE shall not carry on any business other than as the holding company of
the Group and shall not own any assets other than its shareholding in its
subsidiaries or subsidiary, as the case may be, intra-Group credit
balances and credit balances in bank accounts and shall not incur any
liabilities of any nature whatsoever other than (a) any Security
contemplated pursuant to the terms of this Agreement, (b) professional
fees and administration costs in the ordinary course of business, or (c)
any liabilities under the Finance Documents.
20.33 CAPITAL EXPENDITURE
Each Obligor shall not undertake capital expenditure in relation to the
maintenance or improvement of its assets in excess of 115% of the amount
of capital expenditure set out in its Budget for the relevant period in
relation to Main Hospitals and shall not undertake such capital
expenditure in excess of 45% of EBITDA in respect of such Main Hospitals
in the financial year of the company owning those Main Hospitals
immediately preceding its acquisition in relation to any Permitted
Acquisition.
20.34 MANDATORY PREPAYMENT ACCOUNT
Each Obligor shall make all payment of Excess Cash in accordance with
Clause 9.2 into the Mandatory Prepayment Account.
20.35 SUBORDINATED LIABILITIES
Each Obligor shall ensure that at all times all Subordinated Liabilities
are subordinated in accordance with the terms of each Intercompany Debt
Agreement.
20.36 HMT SHARE PLEDGES
USPE shall procure that the HMT Share Pledges are discharged within a
period of 6 months after the Closing Date and shall procure that the
shares subject to such pledges are pledged in favour of the Banks as
security for the obligations of the Obligors owed to the Banks immediately
upon such discharge occurring.
20.37 CONDITIONS SUBSEQUENT
20.37.1. USPE undertakes that it shall, within 60 days of the Closing
Date, provide the following documents to the Agent:
1. The Budget and Business Plan.
2. The Reports (other than those relating to a Permitted
Acquisition) which are addressed to, the Arranger, the Agent
and the Banks and in a form and substance reasonably
satisfactory to the Arranger.
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3. A detailed financial model sufficient to demonstrate
compliance with the covenants set out in Clause 19 during the
life of the transaction, including identifiable cost savings,
and sufficiently demonstrating in the opinion of the Agent,
compliance with all of the Conditions Precedent to an Advance
being made as well as projected compliance with all covenants
for the term of the Facilities.
4. A certificate of USPE auditors confirming which companies
within the Group are Material Subsidiaries.
20.37.2 USPE shall, prior to the date on which any payment is to be made
hereunder after the Syndication Date if any Bank is not a Spanish
Bank, provide a copy to Agent, certified true by an Authorised
Signatory, of a NUMERO DE OPERACION FINANCIERA set out on Form
PE-1 duly stamped by the Bank of Spain assigning such a number to
the Facilities.
21. EVENTS OF DEFAULT
Each of Clause 21.1 (FAILURE TO PAY) to Clause 21.18 (MATERIAL ADVERSE
CHANGE) describes circumstances which constitute an Event of Default for
the purposes of this Agreement.
21.1 FAILURE TO PAY
Any amount due from an Obligor or the Obligors under the Finance Documents
is not paid at the time, in the currency and in the manner specified
herein unless such failure to pay is caused by technical difficulties with
the banking system in relation to the transmission of funds and payment is
made within three Business Days of the due date.
21.2 MISREPRESENTATION
Any representation or statement made or deemed to be made by an Obligor in
any Finance Document or in any notice or other document, certificate or
statement delivered by it pursuant thereto or in connection therewith is
or proves to have been incorrect or misleading in any material respect
when made or deemed to be made.
21.3 FINANCIAL CONDITION
At any time any of the requirements of Clause 17 (FINANCIAL INFORMATION),
Clause 19.1 (FINANCIAL CONDITION), Clause 20.5 (CLAIMS PARI PASSU), Clause
20.10 (SECURITY), Clause 20.19 (NEGATIVE PLEDGE), Clause 20.21 (LOANS AND
GUARANTEES), Clause 20.26 (DIVIDENDS AND DISTRIBUTIONS), Clause 20.27
(SHARE CAPITAL), Clause 20.28 (AMENDMENTS), Clause 20.33 (SUBORDINATED
DEBT) and Clause 20.39 (SUBSIDIARIES) are not satisfied, in the case of
Clause 17 and Clause 19.1 only, within a period of 30 days from the date
upon which such requirements should have been satisfied and following, in
the case of Clause 19.1 only, a review during such period of any failure
to satisfy the conditions thereof in accordance with Clause 19.1 and
confirmation from the Agent that such breach is not continuing.
21.4 OTHER OBLIGATIONS
An Obligor fails duly to perform or comply with any other obligation
expressed to be assumed by it in the Finance Documents and such failure,
if capable of remedy, is not
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remedied within thirty days after the earlier to occur of the date the
Agent has given notice thereof to USPE and such Obligor and the date the
Obligor or USPE has actual knowledge.
21.5 CROSS DEFAULT
Any Financial Indebtedness of any member of the Group is not paid when
due, any Financial Indebtedness of any member of the Group is declared to
be or otherwise becomes due and payable prior to its specified maturity,
any commitment for any Financial Indebtedness of any member of the Group
is cancelled or suspended by a creditor of any member of the Group or any
creditor of any member of the Group becomes entitled to declare any
Financial Indebtedness of any member of the Group due and payable prior to
its specified maturity, PROVIDED THAT it shall not constitute an Event of
Default if the aggregate amount (or its equivalent in euro) of all such
Financial Indebtedness is less than euro 1,000,000.
21.6 INSOLVENCY AND RESCHEDULING
Any member of the Group ceases or suspends generally payment of its debts
or announces an intention to do so (or is deemed for the purposes of any
law applicable to it to be) or is unable to pay its debts as they fall due
or commences negotiations with or makes a proposal to its creditors in
general with a view to the general readjustment or rescheduling of its
indebtedness or makes a general assignment for the benefit of or a
composition with its creditors or a moratorium is declared in respect of
the indebtedness of any Group member.
21.7 WINDING-UP
Any member of the Group takes any corporate action or other steps are
taken or formal proceedings are started for its winding-up, dissolution,
administration or re-organisation (which, if petitioned by a third party,
is not dismissed by a relevant court or authority within 60 days of the
petition from the date known to such member) (whether by way of voluntary
arrangement, scheme of arrangement or otherwise) (save for any pursuant to
a solvent reorganisation previously approved in writing by an Instructing
Group) or for the appointment of a liquidator, receiver, administrator,
administrative receiver, conservator, custodian, trustee or similar
officer of it or of any or all of its revenues and assets (or any event
occurs or proceedings are taken, including but not limited to, QUIEBRA or
SUSPENSION DE PAGOS, or application being made for the same, with respect
to any Group member which has a similar or equivalent effect to any of the
foregoing in this Clause 21.7).
21.8 EXECUTION OR DISTRESS
Any execution or distress is levied against, or any encumbrancer(s) take
possession of, the whole or any part of, the property, undertaking or
assets of any members) of the Group or any event occurs which under the
laws of any jurisdiction has a similar or analogous effect in respect of
indebtedness exceeding euro 1,000,000 (or equivalent) in aggregate at any
time.
21.9 FAILURE TO COMPLY WITH FINAL JUDGMENT
Any member(s) of the Group fail to comply with or pay any sum due from it
or them under any final judgment or any final order made or given by any
court of competent
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jurisdiction when such sums exceed euro 1,000,000 (or equivalent) in
aggregate at any time.
21.10 GOVERNMENTAL INTERVENTION
By or under the authority of any government:
21.10.1 the management of any member of the Group is wholly or partially
displaced or the authority of any member of the Group in the
conduct of its business is wholly or partially curtailed; or
21.10.2 all or a majority of the issued shares of any member of the Group
or the whole or any material part of its revenues or assets is
seized, nationalised, expropriated or compulsorily acquired.
21.11 OWNERSHIP OF THE OBLIGORS
21.11.1 After the Closing Date, any Obligor (other than USPE) ceases to
be a subsidiary (whether directly or indirectly) of USPE in which
USPE owns at least 51% of the capital thereof, except where such
disposal is permitted hereunder.
21.11.2 After the Closing Date, USPE ceases to be owned, directly or
indirectly, by Welsh ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ Investment Group
("▇▇▇▇▇ ▇▇▇▇▇▇") in the percentage in which it is so owned at the
Closing Date, save as a result of any capital increase in USPE or
any intermediate company through which such group maintains such
ownership (AN "INTERMEDIATE COMPANY") Provided always that the
percentage so owned by ▇▇▇▇▇ ▇▇▇▇▇▇ is at no time reduced below
50%.
21.11.3 After the Closing Date, the percentage of the capital held in
USPE by ▇▇▇▇▇ ▇▇▇▇▇▇ is reduced below 50% but no less than 40% as
a result of any capital increase, whether in USPE or an
Intermediate Company and a new investor or investors confirmed in
writing as satisfactory to the Banks does not substitute ▇▇▇▇▇
▇▇▇▇▇▇ in the percentage in which its holding is so reduced
21.11.4 After the Closing Date, the percentage of the capital held in
USPE by ▇▇▇▇▇ ▇▇▇▇▇▇ falls below 40%.
21.12 THE GROUP'S BUSINESS
The Group taken as a whole ceases to carry on the business it carries on
at the date hereof or enters into any `unrelated business that represents
more than 3% of the revenue of the Group during any Financial Quarter.
21.13 REPUDIATION
Any Finance Document or the security intended to. be constituted by or the
subordination effected under any of the Finance Documents is repudiated by
any person (other than a Finance Party) or any person (other than a
Finance Party) does or causes to be done any act or thing evidencing an
intention to repudiate any Finance Document and the repudiation is not
withdrawn and rectified within 5 days or any such security or
subordination or any Finance Document is not or ceases to be in full force
and effect or
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the validity or applicability thereof to any sums due or to become due
thereunder is disaffirmed by or on behalf of any Obligor.
21.14 ILLEGALITY
At any time any Obligor no longer has the legal power to perform its
obligations under the Finance Documents to which it is a party or to own
its assets or to carry on its business or at any time it is or becomes
unlawful for an Obligor to perform or comply with any or all of its
obligations under any Finance Document to which it is a party or any of
the obligations of an Obligor thereunder are not or cease to be legal,
valid, binding and enforceable.
21.15 AUDITOR'S QUALIFICATION
The auditors of USPE or any Group member qualify their annual audit report
to the consolidated accounts of the Group in a manner which is, in the
reasonable opinion of an Instructing Group, material in the context of the
Facilities.
21.16 ENVIRONMENTAL
Any Group member breaches any Environmental Law or any Environmental Claim
is made against any Group member which, in either case, could reasonably
be expected to have a Material Adverse Effect.
21.17 LITIGATION
Any litigation, arbitration, administrative proceedings or governmental or
regulatory investigations, proceedings or disputes are commenced or
overtly threatened against any Group member or its respective assets or
revenues or there are any circumstances likely to give rise to any such
litigation, arbitration, administrative proceedings or governmental or
regulatory investigations, proceedings or disputes which could be
reasonably be expected to have a Material Adverse Effect.
21.18 MATERIAL ADVERSE CHANGE
Any event or circumstance occurs which an Instructing Group reasonably
believes could reasonably be expected to have a Material Adverse Effect.
21.19 ACCELERATION AND CANCELLATION
Upon the occurrence of an Event of Default at any time thereafter, the
Agent may (and, if so instructed by an Instructing Group, shall) by notice
to USPE:
21.19.1 declare all or any part of the Advances to be immediately due and
payable (whereupon the same shall become so payable together with
accrued interest thereon and any other sums then owed by the
Obligors under the Finance Documents) or declare all or any part
of the Advances to be due and payable on demand of the Agent;
and/or
21.19.2 require the Borrower to procure that the liabilities of each of
the Banks is promptly reduced to zero; and/or
21.19.3 declare that any unutilised portion of the Facilities shall be
cancelled, whereupon the same shall be cancelled and the
Available Commitment of each Bank shall be reduced to zero.
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21.20 ADVANCES DUE ON DEMAND
If, pursuant to Clause 21.19 (ACCELERATION AND CANCELLATION), the Agent
declares all or any part of the Advances to be due and payable on demand
of the Agent, then, and at any time thereafter, the Agent may (and, if so
instructed by an Instructing Group, shall) by notice to USPE:
21.20.1 require repayment of all or such part of the Advances on such
date as it may specify in such notice (whereupon the same shall
become due and payable on the date specified together with
accrued interest thereon and any other sums then owed by the
Obligors under the Finance Documents) or withdraw its declaration
with effect from such date as it may specify; and/or
21.20.2 select as the duration of any Interest Period which begins whilst
such declaration remains in effect a period of six months or
less; and/or
21.20.3 declare that the Security Documents (or any of them) shall have
become enforceable.
22. GUARANTEE AND INDEMNITY
22.1 GUARANTEE AND INDEMNITY
Each of the Guarantors irrevocably and unconditionally, jointly and
severally:
22.1.1 guarantees to each Finance Party the due and punctual observance
and performance of all the terms, conditions and covenants on the
part of each Borrower and USPE contained in any of the Finance
Documents and agrees to pay from time to time on demand any and
every sum or sums of money which each Borrower or USPE is at any
time liable to pay to any Finance Party under or pursuant to any
of the Finance Documents and which has become due and payable but
has not been paid at the time such demand is made to the extent
that such sums exceed the amount lent in relation to the
acquisition of such Guarantor in accordance with the Intercompany
Debt Agreement or relevant third party agreement to be refinanced
in accordance with Clause 2 relating in each case to the
financing of such acquisition (the "EXCESS AMOUNT" in respect of
any Guarantor) since such Excess Amount may not be guaranteed
according to Article 81 of the LEY DE SOCIEDADES ANONIMAS or 40.5
of the LEY DE SOCIEDADES DE RESPONSABILIDAD LIMITADA, as
applicable; and
22.1.2 agrees as a primary obligation to indemnify each Finance Party
from time to time on demand from and against any loss incurred by
any Finance Party to the extent that such loss exceeds such
Guarantor's Excess Amount since such Excess Amount may not be
guaranteed according to Article 81 of the LEY DE SOCIEDADES
ANONIMAS or 40.5 of the LEY DE SOCIEDADES DE RESPONSABILIDAD
LIMITADA, as applicable, as a result of any of the obligations of
each Borrower or USPE under or pursuant to any of the Finance
Documents being or becoming void, voidable, unenforceable or
ineffective as against such Borrower or USPE for any reason
whatsoever, whether or not known to any Finance Party or any
other person, the amount of such loss being the amount
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which the person or persons suffering it would otherwise have
been entitled to recover from such Borrower or Parent.
22.2 ADDITIONAL SECURITY
The obligations of each Guarantor herein contained shall be in addition to
and independent of every other security which any Finance Party may at any
time hold in respect of any of any Obligor's obligations under the Finance
Documents.
22.3 CONTINUING OBLIGATIONS
The obligations of each Guarantor herein contained shall constitute and be
continuing obligations notwithstanding any settlement of account or other
matter or thing whatsoever and shall not be considered satisfied by any
intermediate payment or satisfaction of all or any of the obligations of
the Obligors under the Finance Documents and shall continue in full force
and effect until final payment in full of all amounts owing by any Obligor
under the Finance Documents and total satisfaction of all the Obligors'
actual and contingent obligations thereunder.
22.4 OBLIGATIONS NOT DISCHARGED
Neither the obligations of each Guarantor herein contained nor the rights,
powers and remedies conferred in respect of each Guarantor upon any
Finance Party by any Finance Document or by law shall be discharged,
impaired or otherwise affected by:
22.4.1 the winding-up, dissolution, administration or re-organisation of
any Obligor or any other person or any change in its status,
function, control or ownership;
22.4.2 any of the obligations of any Obligor or any ocher person under
any Finance Document or under any other security taken in respect
of any of its obligations under any Finance Document being or
becoming illegal, invalid, unenforceable or ineffective in any
respect;
22.4.3 time or other indulgence being granted or agreed to be granted to
any Obligor or any other person in respect of its obligations
under any Finance Document or under any such other security;
22.4.4 any amendment to, or any variation, waiver or release of, any
obligation of any Obligor or any other person under any Finance
Document or under any such other security;
22.4.5 any failure to take, or fully to take, any security contemplated
hereby or otherwise agreed to be taken in respect of any
Obligor's obligations under any Finance Document;
22.4.6 any failure to realise or fully to realise the value of, or any
release, discharge, exchange or substitution of, any security
taken, in respect of any Obligor's obligations under any Finance
Document; or
22.4.7 any other act, event or omission which, but for this Clause 22.4,
might operate to discharge, impair or otherwise affect any of the
obligations of each Guarantor contained in any Finance Document
or any of the rights, powers or
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remedies conferred upon any of the Finance Parties by any Finance
Document or by law.
22.5 SETTLEMENT CONDITIONAL
Any settlement or discharge between an Obligor and any of the Finance
Parties shall be conditional upon no security or payment to any Finance
Party by an Obligor or any other person on behalf of an Obligor being
avoided or reduced by virtue of any laws relating to bankruptcy,
insolvency, liquidation or similar laws of general application and, if any
such security or payment is so avoided or reduced, each Finance Party
shall be entitled to recover the value or amount of such security or
payment from such Obligor subsequently as if such settlement or discharge
had not occurred.
22.6 EXERCISE OF RIGHTS
No Finance Party shall be obliged before exercising any of the rights,
powers or remedies conferred upon them in respect of any Guarantor by the
Finance Documents or by law:
22.6.1 to make any demand of any Obligor;
22.6.2 to take any action or obtain judgment in any court against any
Obligor;
22.6.3 to make or file any claim or proof in a winding-up or dissolution
of any Obligor; or
22.6.4 to enforce or seek to enforce any other security taken in respect
of any of the obligations of any Obligor under any Finance
Document.
22.7 DEFERRAL OF GUARANTOR'S RIGHTS
Each of the Guarantors agrees that, so long as any amounts are or may be
owed by an Obligor under any Finance Document or an Obligor is under any
actual or contingent obligations under any Finance Document, it shall not
exercise any rights which it may at any time have by reason of performance
by it of its obligations under any Finance Document:
22.7.1 to be indemnified by an Obligor; and/or
22.7.2 to claim any contribution from any other guarantor of any
Obligor's obligations under any Finance Document; and/or
22.7.3 to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under any Finance Document or of any other security taken
pursuant to, or in connection with, any Finance Document by all
or any of the Finance Parties.
22.8 SUSPENSE ACCOUNTS
All moneys received, recovered or realised by a Bank by virtue of Clause
22.1 (GUARANTEE AND INDEMNITY) may, in that Bank's discretion, in order to
preserve the rights of the Bank to prove for the full amount of all its
claim be credited to a suspense or impersonal account and may be held in
such account for so long as such Bank thinks fit pending the application
from time to time (as such Bank may think fit) of such moneys
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in or towards the payment and discharge of any amounts owing by an Obligor
to such Bank under any Finance Document.
22.9 AMENDMENTS BINDING
Without prejudice to the other provisions of Clause 22 (GUARANTEE AND
INDEMNITY), each Guarantor hereby confirms that if USPE and the Finance
Parties or any of them enter into any agreement or other arrangement,
including (without limitation) any amendment or supplement to or
restatement of this Agreement or the Finance Documents or any of its or
their provisions, howsoever fundamental, then USPE's execution of any such
agreement or other arrangement, whether or not expressly made or
purportedly made on behalf of the Guarantors, shall bind each of the
Guarantors and the guarantee contained in Clause 22 (GUARANTEE AND
INDEMNITY) shall continue in full force and effect without the need to
obtain any confirmation or acknowledgement from the Guarantors or any of
them that their guarantee continues in full force and effect and applies
to the Guarantor's liabilities under the Finance Documents as amended,
supplemented or restated in accordance with the agreement of USPE.
23. COMMITMENT COMMISSION AND FEES
23.1 COMMITMENT COMMISSION ON THE TERM FACILITY
Subject to Clause 23.2., in relation to each Term Facility, USPE shall pay
to the Agent for account of each Bank a commitment commission in euros in
relation to such Term Facility during the Term Availability Period for
such Term Facility, such commitment commission to be based on the
percentage drawn under the Facilities on each date which is the
anniversary of the date of this Agreement, as set out below, and payable
to the Agent for distribution to each such Bank and in arrear on the last
day of each successive period of three months which ends during the Term
Availability Period and on the last day of the Term Availability Period:
PERCENTAGE DRAWN COMMITMENT FEE
AS A PERCENTAGE OF
EACH BANK'S AVAILABLE
COMMITMENT
More than 75% 0.45%
Equal to or more than 50% up to or equal to 75% 0.50%
Less than 50% 0.75%
For the purposes of this Clause 23.1 "percentage drawn" shall mean an
amount equal to Outstandings on each anniversary of this Agreement divided
by Available Commitment for the relevant 12 month period as set out in
Schedule 1.
23.2 MINIMUM COMMITMENT FEE
A minimum commitment fee of 0.45 per cent. shall be applied until the
applicable commitment commission is determined in accordance with this
Clause 23. If the applicable commitment commission is determined at the
end of the relevant 12 month period to be in excess of 0.45 per cent.,
USPE shall pay such excess amount to the Agent for account of each bank
within 2 Business Days of such determination.
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23.3 ARRANGEMENT AND UNDERWRITING FEE
USPE shall pay to the Arranger, and Societe Generale, Sucursal en Espana
in its role as underwriter, the fees specified in the letter dated the
Closing Date from the Arranger to USPE at the times, and in the amounts,
specified in such letter. USPE acknowledges that it has received a copy of
and consents to the terms of such letter.
23.4 AGENCY FEE
USPE shall pay to the Agent for its own account the agency fees specified
in the letter dated the Closing Date from the Agent to USPE at the times,
and in the amounts, specified in such letter. USPE acknowledges that it
has received a copy of and consents to the terms of such letter.
24. COSTS AND EXPENSES
24.1 TRANSACTION EXPENSES
USPE shall, from time to time on demand of the Agent, reimburse each of
the Agent and the Arranger and any of their affiliates (on a full
indemnity basis whether or not any of the Facilities are drawdown or
utilised) for all reasonable costs and expenses (including reasonable
legal fees) together with any VAT thereon incurred by it in connection
with:
24.1.1 any due diligence carried out by it or on its behalf in
connection with the Finance Documents and the transactions
contemplated thereby;
24.1.2 the negotiation, preparation, execution and perfection of the
Finance Documents, any other document referred to in the Finance
Documents and the completion of the transactions therein
contemplated;
24.1.3 the syndication of the Facilities; and
24.1.4 the costs of raising any Finance Document or document anticipated
by such Finance Document, including but not limited to any
Transfer Certificate entered into on or before the Syndication
Date, Guarantor Accession Memorandum or Borrower Accession
Memorandum, to the status of Spanish Public Document and the cost
of obtaining any powers of attorney for the Banks required on or
prior to the Syndication Date.
24.2 PRESERVATION AND ENFORCEMENT OF RIGHTS
USPE shall, from time to time on demand of the Agent, reimburse the
Finance Parties for all costs and expenses (including legal fees) on a
full indemnity basis together with any VAT thereon incurred in or in
connection with the preservation and/or enforcement of any of the rights
of the Finance Parties under the Finance Documents and any document
referred to in the Finance Documents (including, without limitation, any
costs and expenses relating to any investigation as to whether or not an
Event of Default might have occurred or is likely to occur or any steps
necessary or desirable in connection with any proposal for remedying or
otherwise resolving an Event of Default or Potential Event of Default).
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24.3 STAMP TAXES
USPE shall pay all stamp, registration and other taxes to which the
Finance Documents, any other document referred to in the Finance Documents
or any judgment given in connection therewith is or at any time may be
subject and shall, from time to time on demand of the Agent, indemnify the
Finance Parties against any liabilities, costs, claims and expenses
resulting from any failure to pay or any delay in paying any such tax.
24.4 AMENDMENT COSTS
If an Obligor requests any amendment, waiver or consent then USPE shall,
within five Business Days of demand by the Agent, reimburse the Finance
Parties for all costs and expenses (including legal fees) together with
any VAT thereon incurred by such person in responding to or complying with
such request.
24.5 BANKS' LIABILITIES FOR COSTS
If USPE fails to perform any of its obligations under this Clause 24, each
Bank shall, in its Proportion, indemnify each of the Agent and the
Arranger against any loss incurred by any of them (or their affiliates, in
the case of costs and expenses referred to in Clause 24.1 (TRANSACTION
EXPENSES)) as a result of such failure.
25. DEFAULT INTEREST AND BREAK COSTS
25.1 DEFAULT INTEREST PERIODS
If any sum due and payable by an Obligor hereunder is not paid on the due
date therefore in accordance with Clause 28 (PAYMENTS) or if any sum due
and payable by an Obligor under any judgment of any court in connection
herewith is not paid on the date of such judgment, the period beginning on
such due date or, as the case may be, the date of such judgment and ending
on the date upon which the obligation of such Obligor to pay such sum is
discharged shall be divided into successive periods, each of which (other
than the first) shall start on the last day of the preceding such period
and the duration of each of which shall (except as otherwise provided in
this Clause 25) be selected by the Agent.
25.2 DEFAULT INTEREST
An Unpaid Sum shall bear interest during each Interest Period in respect
thereof at the rate per annum which is one per cent. per annum above the
percentage rate which would apply if it had been an Advance in the amount
and currency of such Unpaid Sum and for the same Interest Period, PROVIDED
THAT if such Unpaid Sum relates to an Advance which became due and payable
on a day other than the last day of an Interest Period relating thereto:
25.2.1 the first Interest Period applicable to such Unpaid Sum shall be
of a duration equal to the unexpired portion of the current
Interest Period relating to that Advance; and
25.2.2 the percentage rate of interest applicable thereto from time to
time during such period shall be that which exceeds by one per
cent. the rate which would have been applicable to it had it not
so fallen due, save that the Margin shall be, or be deemed to be,
the highest rate specified in the definition thereof.
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Where an Unpaid Sum does not relate to an Advance, interest shall be
calculated by reference to the Applicable B Margin.
25.3 PAYMENT OF DEFAULT INTEREST
Any interest which shall have accrued under Clause 25.2 (DEFAULT INTEREST)
in respect of an Unpaid Sum shall be due and payable and shall be paid by
the Obligor owing such Unpaid Sum on the last day of each Interest Period
in respect thereof or on such other dates as the Agent may specify by
notice to such Obligor.
25.4 BREAK COSTS
If any Bank or the Agent on its behalf receives or recovers all or any
part of an Advance or Unpaid Sum otherwise than on the last day of an
Interest Period relating thereto, USPE shall pay to the Agent on demand
for account of such Bank an amount equal to the amount (if any) by which
(a) the additional interest which would have been payable on the amount so
received or recovered had it been received or recovered on the last day of
that Interest Period exceeds (b) the amount of interest which in the
reasonable opinion of the Agent would have been payable to the Agent on
the last day of that Interest Period in respect of a deposit in the
currency of the amount so received or recovered equal to the amount so
received or recovered placed by it with a prime bank in the relevant
interbank market for a period starting on the third Business Day following
the date of such receipt or recovery and ending on the last day of that
Interest Period.
26. USPE'S INDEMNITIES
26.1 USPE'S INDEMNITY
USPE undertakes to indemnify:
26.1.1 each Finance Party against any cost, claim, loss, expense
(including legal fees) or liability together with any VAT
thereon, whether or not reasonably foreseeable, which it may
sustain or incur as a consequence of the occurrence of any Event
of Default or any default by any Obligor in the performance OF
any of the obligations expressed to be assumed by it in any
Finance Document;
26.1.2 the Agent against any cost or loss it may suffer or incur as a
result of its entering into, or performing, any foreign exchange
contract for the purposes of Clause 28 (PAYMENTS);
26.1.3 each Bank against any cost or loss it may suffer under Clause
24.5 (BANKS' LIABILITIES FOR COSTS) or Clause 31.5
(INDEMNIFICATION);
26.1.4 each Bank against any cost or loss it may suffer or incur as a
result of its funding or making arrangements to fund its portion
of an Advance requested by any Borrower but not made by reason of
the operation of any one or more of the provisions hereof;
26.1.5 each Bank against any cost or loss it may suffer including any
reduction in the rate of return it would have received but for
performing its obligations under this Agreement as a result of
any minimum reserve requirements imposed on
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it by the European Central Bank in relation to an Advance or
funding an Advance; and
26.1.6 each Finance Party and in each case each of their affiliates and
each of their respective officers, directors, employees, agents,
advisors and representatives (each, an "INDEMNIFIED PARTY") from
and against any and all claims, damages, losses, liabilities,
costs and expenses (including, without limitation, fees and
disbursements of legal counsel), joint or several, that may be
incurred by or asserted or awarded against any Indemnified Party,
in each case arising out of or in connection with or relating to
any investigation, litigation or proceeding or the preparation of
any defence with respect thereto, arising out of or in connection
with or relating to the Finance Documents or the transactions
contemplated hereby or thereby or any use made or proposed to be
made with the proceeds of the Facilities, whether or not such
investigation, litigation or proceeding is brought by a member of
the Group, any of shareholder or creditors of any member of the
Group, an Indemnified Party or any other person, except to the
extent that such claim, damage, loss, liability, cost or expense
is found in a final, non-appealable judgement by a court of
competent jurisdiction to have resulted from such Indemnified
Party's gross negligence or wilful misconduct.
26.2 CURRENCY INDEMNITY
If any sum (a "SUM") due from an Obligor under the Finance Documents or
any order, judgment, award or decision given or made in relation thereto
has to be converted from the currency (the "FIRST CURRENCY") in which such
Sum is payable into another currency (the "SECOND CURRENCY") for the
purpose of:
26.2.1 making or filing a claim or proof against such Obligor;
26.2.2 obtaining or enforcing an order, judgment, award or decision in
any court, arbitral proceedings or other tribunal,
USPE shall indemnify each person to whom such Sum is due from and against
any loss suffered or incurred as a result of any discrepancy between (a)
the rate of exchange used for such purpose to convert such Sum from the
First Currency into the Second Currency and (b) the rate or rates of
exchange available to such person at the time of receipt of such Sum.
27. CURRENCY OF ACCOUNT AND PAYMENT
27.1 CURRENCY OF ACCOUNT
Euro is the currency of account and payment for each and every sum at any
time due from an Obligor hereunder, PROVIDED THAT:
27.1.1 each repayment of an Advance or Unpaid Sum or a part thereof
shall be made in the currency in which such Advance or Unpaid Sum
is denominated at the time of that repayment;
27.1.2 each payment of interest shall be made in the currency in which
the sum in respect of which such interest is payable is
denominated;
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27.1.3 each payment in respect of costs and expenses shall be made in
the currency in which the same were incurred;
27.1.4 each payment pursuant to Clause 11.2 (TAX INDEMNITY), Clause 13.1
(INCREASED COSTS) or Clause 26.1 (USPE'S INDEMNITY) shall be made
in the currency specified by the party claiming thereunder; and
27.1.5 any amount expressed to be payable in a currency other than euro
shall be paid in that other currency.
If after the date of this Agreement a member state becomes a Participating
State, all obligations under this Agreement (including any obligation in
respect of any Bank's Available Commitment) to make a payment in its
national currency unit shall be redenominated into the euro unit on the
date on which it becomes a Subsequent Participant (but otherwise in
accordance with EMU Legislation).
28. PAYMENTS
28.1 PAYMENTS TO THE AGENT
On each date on which this Agreement requires an amount to be paid by an
Obligor or a Bank, such Obligor or, as the case may be, such Bank shall
make the same available to the Agent for value on the due date at such
time and in such funds and to such account with such bank as the Agent
shall specify from time to time.
28.1.1 Save as otherwise provided herein, each payment received by the
Agent pursuant to Clause 28.1 (PAYMENTS TO THE AGENT) shall:
(a) in the case of a payment received for the account of a
Borrower, be made available by the Agent to that Borrower by
application:
(i) first, in or towards payment (on the date, and in the
currency and funds, of receipt) of any amount then due
from that Borrower hereunder to the person from whom the
amount was so received or in or towards the purchase of
any amount of any currency to be so applied; and
(ii) secondly, in or towards payment (on the date, and in the
currency and funds, of receipt) to such account with
such bank in the principal financial centre of the
country of the currency of such payment (or, in relation
to the euro, in a financial centre in a Participating
Member State) as that Borrower (or USPE on its behalf)
shall have previously notified to the Agent for this
purpose; and
(b) in the case of any other payment, be made available by the
Agent to the person entitled to receive the payment in
accordance with this Agreement (in the case of a Bank, for
the account of the Facility Office) for value the same day by
transfer to such account of such person with such bank in the
principal financial centre of the country of the currency of
such payment (or, in relation to the euro, in a financial
centre in a Participating Member State) as that person has
previously notified to the Agent.
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28.1.2 A payment will be deemed to have been made by the Agent on the
date on which it is required to be made under this Agreement if
the Agent has, on or before that date, taken steps to make that
payment in accordance with the regulations or operating
procedures of the clearing system used by the Agent in order to
make the payment.
28.2 PAYMENTS BY THE AGENT TO THE BANKS
Any amount payable by the Agent to the Banks under this Agreement in the
currency of a Participating Member State shall be paid in the euro unit.
28.3 NO SET-OFF
All payments required to be made by an Obligor under any Finance Document
shall be calculated without reference to any set-off or counterclaim and
shall be made free and clear of and without any deduction for or on
account of any set-off or counterclaim.
28.4 CLAWBACK
Where a sum is to be paid under a Finance Document to the Agent for
account of another person, the Agent shall not be obliged to make the same
available to that other person or to enter into or perform any exchange
contract in connection therewith until it has been able to establish to
its satisfaction that it has actually received such sum, but if it does so
and it proves to be the case that it had not actually received such sum,
then the person to whom such sum or the proceeds of such exchange contract
was so made available shall on request refund the same to the Agent
together with an amount sufficient to indemnify the Agent against any cost
or loss it may have suffered or incurred by reason of its having paid out
such sum or the proceeds of such exchange contract prior to its having
received such sum.
28.5 PARTIAL PAYMENTS
If and whenever a payment is made by an Obligor hereunder and the Agent
receives an amount less than the due amount of such payment the Agent may
apply the amount received towards the obligations of the Obligors under
this Agreement in the following order:
28.5.1 FIRST, in or towards payment of any unpaid costs and expenses of
each of the Agent and the Arranger;
28.5.2 SECOND, in or towards payment pro rata of any accrued interest or
commitment commission, payable to any Bank hereunder due but
unpaid;
28.5.3 THIRD, in or towards payment PRO RATA of any Outstandings due but
unpaid; and
28.5.4 FOURTH, in or towards payment PRO RATA of any other sum due but
unpaid.
28.6 VARIATION OF PARTIAL PAYMENTS
The order of partial payments set out in Clause 28.5 (PARTIAL PAYMENTS)
shall override any appropriation made by the Obligor to which the partial
payment relates but the order set out in subclauses 28.5.2, 28.5.3 and
28.5.4 of Clause 28.5 (PARTIAL PAYMENTS) may be varied if agreed by all
the Banks.
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28.7 BUSINESS DAYS
28.7.1 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).
28.7.2 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.
29. SET-OFF
29.1 CONTRACTUAL SET-OFF
Each Obligor authorises each Bank to apply any credit balance to which
such Obligor is entitled on any account of such Obligor with such Bank in
satisfaction of any sum due and payable from such Obligor to such Bank
under any Finance Document but unpaid. For this purpose, each Bank is
authorised to purchase with the moneys standing to the credit of any such
account such other currencies as may be necessary to effect such
application.
29.2 SET-OFF NOT MANDATORY
No Bank shall be obliged to exercise any right given to it by Clause 29.1
(CONTRACTUAL SET-OFF.
30. SHARING
30.1 PAYMENTS TO BANKS
If a Bank (a "RECOVERING BANK") applies any receipt or recovery from an
Obligor to a payment due under this Agreement and such amount is received
or recovered other than in accordance with Clause 28 (PAYMENTS), then such
Recovering Bank shall:
30.1.1 notify the Agent of such receipt or recovery;
30.1.2 at the request of the Agent, promptly 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 such
Recovering Bank as its share of any payment to be made in
accordance with Clause 28.5 (PARTIAL PAYMENTS).
30.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other than
the Recovering Bank) in accordance with Clause 28.5 (PARTIAL PAYMENTS).
30.3 RECOVERING BANK'S RIGHTS
The Recovering Bank will be subrogated into the rights of the parties
which have shared in a redistribution pursuant to Clause 30.2
(REDISTRIBUTION OF PAYMENTS) in respect of the Sharing Payment (and the
relevant Obligor shall be liable to the Recovering Bank in an amount equal
to the Sharing Payment).
30.4 REPAYABLE RECOVERIES
If any part of the Sharing Payment received or recovered by a Recovering
Bank becomes repayable and is repaid by such Recovering Bank, then:
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30.4.1 each party which has received a share of such Sharing Payment
pursuant to Clause 30.2 (REDISTRIBUTION OF PAYMENTS) shall, upon
request of the Agent, pay to the Agent for account of such
Recovering Bank an amount equal to its share of such Sharing
Payment; and
30.4.2 such Recovering Bank's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will be
liable to the reimbursing party for the amount so reimbursed.
30.5 EXCEPTION
This Clause 30 shall not apply if the Recovering Bank would not, after
making any payment pursuant hereto, have a valid and enforceable claim
against the relevant Obligor.
30.6 RECOVERIES THROUGH LEGAL PROCEEDINGS
If any Bank intends to commence any action in any court or arbitral
proceedings it shall give prior notice to the Agent and the other Banks.
If any Bank shall commence any action in any court or arbitral proceedings
to enforce its rights hereunder and, as a result thereof or in connection
therewith, receives any amount, then such Bank shall not be required to
share any portion of such amount with any Bank which has the legal right
to, but does not, join in such action or commence and diligently prosecute
a separate action to enforce its rights in another court or arbitral
proceedings.
31. THE AGENT, THE ARRANGER, THE BANKS
31.1 APPOINTMENT OF THE AGENT
Each of the Arranger and the Banks hereby appoints the Agent to act as its
agent in connection with the Finance Documents and authorises the Agent to
exercise such rights, powers, authorities and discretions as are
specifically delegated to the Agent by the terms thereof together with all
such rights, powers, authorities and discretions as are reasonably
incidental thereto.
31.2 AGENT'S DISCRETIONS
The Agent may:
31.2.1 assume, unless it has, in its capacity as agent for the Banks,
received notice to the contrary from any other party hereto, that
(a) any representation made or deemed to be made by an Obligor in
connection with any Finance Document is true, (b) no Event of
Default or Potential Event of Default has occurred, (c) no
Obligor is in breach of or default under its obligations under
any Finance Document and (d) any right, power, authority or
discretion vested herein upon an Instructing Group, the Banks or
any other person or group of persons has not been exercised;
31.2.2 assume that (a) the Facility Office of each Bank is that notified
to it by such Bank in writing and (b) the information provided by
each Bank pursuant to Clause 37 (NOTICES). Clause 31.13 (BANKS'
MANDATORY COST DETAILS) and Schedule 10 (MANDATORY COSTS) is true
and correct in all respects until it has received from such Bank
notice of a change to the Facility Office or any such information
and act upon any such notice until the same is superseded by a
further notice;
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31.2.3 engage and pay for the advice or services of any lawyers,
accountants, surveyors or other experts whose advice or services
may to it seem necessary, expedient or desirable and rely upon
any advice so obtained;
31.2.4 rely as to any matters of fact which might reasonably be expected
to be within the knowledge of an Obligor upon a certificate
signed by or on behalf of such Obligor;
31.2.5 rely upon any communication or document believed by it to be
genuine;
31.2.6 refrain from exercising any right, power or discretion vested in
it as agent under any Finance Document unless and until
instructed by an Instructing Group as to whether or not such
right, power or discretion is to be exercised and, if it is to be
exercised, as to the manner in which it should be exercised;
31.2.7 refrain from acting in accordance with any instructions of an
Instructing Group to begin any legal action or proceeding arising
out of or in connection with any Finance Document until it shall
have received such security as it may require (whether by way of
payment in advance or otherwise) for all costs, claims, losses,
expenses (including legal fees) and liabilities together with any
VAT thereon which it will or may expend or incur in complying
with such instructions; and
31.2.8 assume (unless it has specific notice to the contrary) that any
notice or request made by USPE is made on behalf of all the
Obligors.
31. AGENT'S OBLIGATIONS
The Agent shall:
31.3.1 promptly inform each Bank of the contents of any notice or
document received by it in its capacity as Agent from an Obligor
under any Finance Document;
31.3.2 promptly notify each Bank of the occurrence of any Event of
Default or any default by an Obligor in the due performance of or
compliance with its obligations under any Finance Document of
which the Agent has notice from any other party hereto;
31.3.3 save as otherwise provided herein, act as agent under any Finance
Document in accordance with any instructions given to it by an
Instructing Group, which instructions shall be binding on the
Arranger and the Banks; and
31.3.4 if so instructed by an Instructing Group, refrain from exercising
any right, power or discretion vested in it as agent under any
Finance Document.
The Agent's duties under the Finance Documents are solely mechanical and
administrative in nature.
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31.4 EXCLUDED OBLIGATIONS
Notwithstanding anything to the contrary expressed or implied herein,
neither the Agent nor the Arranger shall:
31.4.1 be bound to enquire as to (a) whether or not any representation
made or deemed to be made by an Obligor in connection with any
Finance Document is true, (b) the occurrence or otherwise of any
Event of Default or Potential Event of Default, (c) the
performance by an Obligor of its obligations under any Finance
Document or (d) any breach of or default by an Obligor of or
under its obligations under any Finance Document;
31.4.2 be bound to account to any Bank for any sum or the profit element
of any sum received by it for its own account;
31.4.3 be bound to disclose to any other person any information relating
to any member of the Group if (a) such person, on providing such
information, expressly stated to the Agent or, as the case may
be, the Arranger, that such information was confidential or (b)
such disclosure would or might in its opinion constitute a breach
of any law or be otherwise actionable at the suit of any person;
31.4.5 be under any obligations other than those for which express
provision is made in any Finance Document; or
31.4.6 be or be deemed to be a fiduciary for any other party to any
Finance Document.
31.5 INDEMNIFICATION
Each Bank shall, in its Proportion, from time to time on demand by the
Agent, indemnify the Agent against any and all costs, claims, losses,
expenses (including legal fees) and liabilities together with any VAT
thereon which the Agent may incur, otherwise than by reason of its own
gross negligence or wilful misconduct, in acting in its capacity as agent
under any Finance Document (other than any which have been reimbursed by
USPE pursuant to Clause 26.1 (USPE'S INDEMNITY)).
31.6 EXCLUSION OF LIABILITIES
Except in the case of gross negligence or wilful default, none of the
Agent and the Arranger accepts any responsibility:
31.6.1 for the adequacy, accuracy and/or completeness of the Information
Memorandum or any other information supplied by the Agent or the
Arranger, by an Obligor or by any other person in connection with
any Finance Document or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
pursuant to or in connection with any Finance Document;
31.6.2 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, pursuant to or in connection with any Finance
Document; or
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31.6.3 for the exercise of, or the failure to exercise, any judgement,
discretion or power given to any of them by or in connection with
any Finance Document or any other agreement, arrangement or
document entered into, made or executed in anticipation of,
pursuant to or in connection with any Finance Document.
Accordingly, none of the Agent and the Arranger shall be under any
liability (whether in negligence or otherwise) in respect of such matters,
save in the case of gross negligence or wilful misconduct.
31.7 NO ACTIONS
Each of the Banks agree that it will not assert or seek to assert against
any director, officer or employee of the Agent or the Arranger any claim
it might have against any of them in respect of the matters referred to in
Clause 31.6 (EXCLUSION OF LIABILITIES).
31.8 BUSINESS WITH THE GROUP
The Agent and the Arranger may accept deposits from, lend money to and
generally engage in any kind of banking or other business with any member
of the Group.
31.9 RESIGNATION
The Agent may resign its appointment hereunder at any time without
assigning any reason therefor by giving not less than thirty days' prior
notice to that effect to each of the other parties hereto, provided that
no such resignation shall be effective until a successor for the Agent is
appointed in accordance with the succeeding provisions of this Clause 31.
31.10 SUCCESSOR AGENT
If the Agent gives notice of its resignation pursuant to Clause 31.9
(RESIGNATION), then any reputable and experienced bank or other financial
institution may be appointed as a successor to the Agent by an Instructing
Group (who shall consult with USPE) during the period of such notice but,
if no such successor is so appointed, the Agent may appoint such a
successor itself.
31.11 RIGHTS AND OBLIGATIONS
If a successor to the Agent is appointed under the provisions of Clause
31.11 (SUCCESSOR AGENT), then:
31.11.1 the retiring Agent shall be discharged from any further
obligation under any Finance Document but shall remain entitled
to the benefit of the provisions of this Clause 31; and
31.11.2 its successor and each of the other parties to any Finance
Document shall have the same rights and obligations amongst
themselves as they would have had if such successor had been a
party to the Finance Documents.
31.12 OWN RESPONSIBILITY
It is understood and agreed by each Bank that at all times it has itself
been, and will continue to be, solely responsible for making its own
independent appraisal of and investigation into all risks arising under or
in connection with the Finance Documents including, but not limited to:
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31.12.1 the financial condition, creditworthiness, condition, affairs,
status and nature of each member of the Group;
31.12.2 the legality, validity, effectiveness, adequacy and
enforceability of any Finance Documents and any other agreement
arrangement or document entered into, made or executed in
anticipation of, pursuant to or in connection with any Finance
Document;
31.12.3 whether such Bank has recourse, and the nature and extent of that
recourse, against an Obligor or any other person or any of their
respective assets under or in connection with any Finance
Document, the transactions therein contemplated or any other
agreement, arrangement or document entered into, made or executed
in anticipation of, pursuant to or in connection with any Finance
Document; and
31.12.4 the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Agent or the
Arranger, an Obligor, or by any other person in connection with
any Finance Document, the transactions contemplated therein or
any other agreement, arrangement or document entered into, made
or executed in anticipation of, pursuant to or in connection with
any Finance Document.
Accordingly, each Bank acknowledges to the Agent and the Arranger that it
has not relied on and will not hereafter rely on the Agent and the
Arranger or any of them in respect of any of these matters.
31.13 BANKS' MANDATORY COST DETAILS
Each Bank will supply the Agent with such information and in such detail
as the Agent may require in order to calculate the Mandatory Cost Rate in
accordance with Schedule 10 (MANDATORY COSTS).
31.14 AGENCY DIVISION SEPARATE
In acting as agent under the Finance Documents for the Banks, the Agent
shall be regarded as acting through its agency division which shall be
treated as a separate entity from any other of its divisions or
departments and, notwithstanding the foregoing provisions of this Clause
31, any information received by some other division or department of the
Agent may be treated as confidential and shall not be regarded as having
been given to the Agent's agency division.
31.15 RELIANCE AND ENGAGEMENT LETTERS
Each Finance Party confirms each of the Arranger and the Agent has
authority to accept on its behalf the terms of any reliance letter or
engagement letters relating to the Reports or any reports or letters
provided by accountants in connection with the Finance Documents or the
transactions contemplated therein (including any net asset letter in
connection with financial assistance procedures) and to bind it in respect
of such Reports, reports or letters and to sign such letters on its behalf
and further confirms that it accepts the terms and qualifications set out
in such letters.
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32. ASSIGNMENTS AND TRANSFERS
32.1 BINDING AGREEMENT
This Agreement shall be binding upon and ensure to the benefit of each
party hereto and its or any subsequent successors and Transferees.
32.2 NO ASSIGNMENTS AND TRANSFERS BY THE OBLIGORS
No Obligor shall be entitled to assign or transfer all or any of its
rights, benefits and obligations under the Finance Documents with the
exception that Borrower may transfer its rights, benefits and obligations
to USPE, subject to the written consent of the Agent, acting on behalf of
the Banks.
32.3 ASSIGNMENTS AND TRANSFERS BY BANKS
32.3.1 Any Bank may, at any time, assign all or any of its rights and
benefits under the Finance Documents or transfer in accordance
with Clause 32.5 (TRANSFERS BY BANKS) all or any of its rights,
benefits and obligations under the Finance Documents to a bank or
financial institution.
32.3.2 The consent of USPE is required for an assignment or transfer by
a Bank unless the assignment or transfer is:
(a) to another Bank; or
(b) to any subsidiary or holding company (or to any subsidiary of
any holding company) of the transferring Bank if such
subsidiary or holding company is a Qualifying Bank; or
(c) made in connection with syndication of the Facilities.
32.3.3 USPE's consent must not be unreasonably withheld.
32.3.4 USPE may withhold its consent if an assignment or transfer would
result in an Obligor being liable to pay an additional amount
pursuant to Clause 11 (TAXES) or Clause 13 (INCREASED COSTS).
32.4 ASSIGNMENTS BY BANKS
If any Bank assigns all or any of its rights and benefits under the
Finance Documents in accordance with Clause 32.3 (ASSIGNMENTS AND
TRANSFERS BY BANKS), then, unless and until the assignee has delivered a
notice to the Agent confirming in favour of the Agent, the Arranger and
the other Banks that it shall be under the same obligations towards each
of them as it would have been under if it had been an original party to
the Finance Documents as a Bank (whereupon such assignee shall become a
party to the Finance Documents as a "Bank"), the Agent, the Arranger and
the other Banks shall not be obliged to recognise such assignee as having
the rights against each of them which it would have had if it had been
such a party to the Finance Documents.
32.5 TRANSFERS BY BANKS
If any Bank wishes to transfer all or any of its rights, benefits and/or
obligations under the Finance Documents as contemplated in Clause 32.3
(ASSIGNMENTS AND TRANSFERS BY BANKS), then such transfer may be effected
by the delivery to the Agent of a duly completed Transfer Certificate
executed by such Bank and the relevant Transferee in
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which event, on the later of the Transfer Date specified in such Transfer
Certificate and the fifth Business Day after (or such earlier Business Day
endorsed by the Agent on such Transfer Certificate falling on or after)
the date of delivery of such Transfer Certificate to the Agent:
32.5.1 to the extent that in such Transfer Certificate the Bank party
thereto seeks to transfer by novation its rights, benefits and
obligations under the Finance Documents, each of the Obligors and
such Bank shall be released from further obligations towards one
another under the Finance Documents and their respective rights
against one another shall be cancelled (such rights and
obligations being referred to in this Clause 32.5 as "DISCHARGED
RIGHTS AND OBLIGATIONS");
32.5.2 each of the Obligors and the Transferee party thereto shall
assume obligations towards one another and/or acquire rights
against one another which differ from such discharged rights and
obligations only insofar as such Obligor and such Transferee have
assumed and/or acquired the same in place of such Obligor and
such Bank;
32.5.3 the Agent, the Arranger, such Transferee and the other Banks
shall acquire the same rights and benefits and assume the same
obligations between themselves as they would have acquired and
assumed had such Transferee been an original party to the Finance
Documents as a Bank with the rights, benefits and/or obligations
acquired or assumed by it as a result of such transfer and to
that extent the Agent, the Arranger and the relevant Bank shall
each be released from further obligations to each other under the
Finance Documents; and
32.5.4 such Transferee shall become a party hereto as a "Bank".
32.6 ASSIGNMENT AND TRANSFER FEES
On the date upon which an assignment takes effect pursuant to Clause 32.4
(ASSIGNMENTS BY BANKS) or a transfer takes effect pursuant to Clause 32.5
(TRANSFERS BY BANKS) the relevant assignee or Transferee shall pay to the
Agent for its own account a fee of Euro 500 (save in respect of any
assignment or transfer made by Societe Generale, Sucursal en Espana on or
prior to the Syndication Date).
32.7 DISCLOSURE OF INFORMATION
Any Bank may disclose to any person:
32.7.1 to (or through) whom such Bank assigns or transfers (or may
potentially assign or transfer) all or any of its rights,
benefits and obligations under any Finance Document;
32.7.2 with (or through) whom such Bank 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,
any Finance Document or any Obligor; or
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32.7.3 to whom information may be required to be disclosed by any
applicable law or any regulatory authority,
such information about any Obligor or the Group and any Finance Document
as such Bank shall consider appropriate PROVIDED THAT, in relation to a
disclosure under subclauses 32.7.1 and 32.7.2, such person is under a
confidentiality obligation to such Bank and the Obligors.
32.8 SYNDICATION
Each Obligor acknowledges that syndication of the Facilities in accordance
with this Clause 32.8 may take place and undertakes to assist and
co-operate with the Agent and the Arranger in syndication by, inter alias
32.8.1 expediting site visits at reasonable times upon reasonable notice
by the Agent of persons who have been invited by the Arranger to
participate in the Facilities ("INVITEES");
32.8.2 participating (and ensuring its executive directors, senior
management and representatives will participate in) at reasonable
times upon reasonable notice in presentations to the Banks and
the Invitees (at such times and places as the Arranger may
reasonably select) concerning USPE, a Target, the Group members
and their activities;
32.8.3 using all reasonable efforts to obtain appropriate authorisations
from the auditors, other accountants, consultants and
professional advisers to release to the Banks and the Invitees
any information reasonable requested by the Agent or the
Arranger, including the Reports;
32.8.4 refraining from making any statement, announcement or publication
or doing any act or thing calculated to obstruct syndication of
the Facilities in any way other than as required by applicable
law;
32.8.5 paying the reasonable expenses (including reasonable legal fees)
incurred by the Agent, the Arranger or, to the extent applicable
and limited only to its necessary costs, any prospective Bank in
the process of syndication, including but not limited to the
costs of raising any Transfer Certificates to the status of a
Spanish Public Document incurred prior to the Syndication Date;
32.8.6 if so requested by the Arranger, procuring the assistance of its
directors and other officers in the preparation of the
Information Memorandum;
32.8.7 subject to agreeing the content of the Information Memorandum
providing a written confirmation to the Finance Parties (in a
form reasonably required by the Arranger) as to the accuracy of
information and reasonableness of projections contained in the
Information Memorandum;
32.8.8 providing the Arranger with all information deemed reasonably
necessary by the Arranger to complete syndication successfully;
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32.8.9 all such other action as the Arranger may reasonably request to
form a syndicate; and
32.8.10 using its best efforts to ensure syndication benefits from its
lending relationships.
Notwithstanding the provisions of this Clause 32.8, the Agent and the
Arrangers shall not disclose any information to any Invitee which either
(i) the Agent or the Arranger reasonably believes such information to
be price sensitive in nature or the disclosure of which may
adversely affect a Permitted Acquisition; or
(ii) in relation to which any Obligor notifies the Agent that it
reasonably believes such information to be price sensitive in
nature or the disclosure of which may adversely affect a
Permitted Acquisition.
33. ADDITIONAL BORROWERS
33.1 REQUEST FOR ADDITIONAL BORROWER
USPE may request that any of its wholly-owned subsidiaries become an
Additional Borrower by delivering to the Agent a Borrower Accession
Memorandum duly executed by USPE and such subsidiary, together with the
documents and other evidence listed in Schedule 8 (ADDITIONAL CONDITIONS
PRECEDENT) in relation to such subsidiary. Such Additional Borrower will
provide the security requested by the Agent which security shall be given
in accordance with Clause 20.10 (SECURITY). To the extent legally
possible, each Additional Borrower shall also be a Guarantor hereunder.
33.2 BORROWER CONDITIONS PRECEDENT
A company, in respect of which USPE has delivered a Borrower Accession
Memorandum to the Agent, shall become an Additional Borrower and assume
all the rights, benefits and obligations of a Borrower as if it had been
an Original Borrower on the date on which the Agent notifies USPE that:
33.2.1 an Instructing Group accepts USPE's request in respect of such
subsidiary; and
33.2.2 the Agent has received, in form and substance reasonably
satisfactory to it, all documents and other evidence listed in
Schedule 8 (ADDITIONAL CONDITIONS PRECEDENT) in relation to such
subsidiary,
unless on such date an Event of Default or Potential Event of Default is
continuing or would occur as a result of such subsidiary becoming an
Additional Borrower.
33.3 RESIGNATION OF A BORROWER
If at any time a Borrower (other than USPE) is under no actual or
contingent obligation under or pursuant to any Finance Document and such
resignation would not affect the legality, validity or enforceability of
any security contemplated by the Security Documents in respect of such
Borrower or its assets, USPE may request that such Borrower shall cease to
be a Borrower by delivering to the Agent a Resignation Notice. Such
Resignation Notice shall be accepted by the Agent on the date on which it
notifies
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USPE that it is satisfied that such Borrower is under no actual or
contingent obligation under or pursuant to any Finance Document and such
Borrower shall immediately cease to be a Borrower and shall have no
further rights, benefits or obligations hereunder save for those which
arose prior to such date and the Banks shall, at the cost and expense (if
any) of such Borrower release any security held by them in respect of such
Borrower and its assets.
34. ADDITIONAL GUARANTORS
34.1 REQUEST FOR ADDITIONAL GUARANTOR
To the extent legally possible USPE may request (and shall upon the
instructions of an Instructing Group ensure) that any of its subsidiaries
become an Additional Guarantor by delivering to the Agent a Guarantor
Accession Memorandum duly executed by USPE and such subsidiary, together
with the documents and other evidence listed in Schedule 8 (ADDITIONAL
CONDITIONS PRECEDENT) in relation to such subsidiary Provided that any
Guarantee provided by any member of the Group in respect of which the
agreement by the relevant shareholders' or partners' meeting, as
applicable, to grant such Guarantee is subsequently suspended (and such
suspension is not later revoked) or annulled by minority shareholders in
such member in accordance with the procedures set out in the Spanish LEY
DE SOCIEDADES ANONIMCAS or the appropriate articles of the LEY DE
SOCIEDADES DE RESPONSABILIDAD LIMITADA shall be automatically released
upon such suspension (save as aforesaid, in which case a new Guarantor
Accession Memorandum shall be executed by the relevant entity) or
annulment, as applicable. Such Guarantor will provide the security
requested by the Agent which security shall be given in accordance with
Clause 20.10 (SECURITY).
34.2 GUARANTOR CONDITIONS PRECEDENT
A company, in respect of which USPE has delivered a Guarantor Accession
Memorandum to the Agent, shall became an Additional Guarantor and assume
all the rights, benefits and obligations of a Guarantor as if it had been
an original party hereto as a Guarantor on the date on which the Agent
notifies USPE that it has received, in form and substance reasonably
satisfactory to it, all the documents and other evidence listed in
Schedule 8 (ADDITIONAL CONDITIONS PRECEDENT) and shall raise the Guarantor
Accession Memorandum to the status of Spanish Public Document (if such
Additional Guarantor is Spanish) at its own expense.
35. CALCULATIONS AND EVIDENCE OF DEBT
35.1 BASIS OF ACCRUAL
Any interest, commission or fees shall accrue from day to day and shall be
calculated on the basis of a year of 360 days or, in any case where market
practice differs, in accordance with market practice and the actual number
of days elapsed.
35.2 QUOTATIONS
If on any occasion a Reference Bank or Bank fails to supply the Agent with
a quotation required of it under the foregoing provisions of this
Agreement, the rate for which such quotation was required shall be
determined from those quotations which are supplied to the Agent, provided
that, in relation to determining EURIBOR, this Clause 35.2 shall not apply
if only one Reference Bank supplies a quotation.
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35.3 EVIDENCE OF DEBT
Each Bank shall maintain in accordance with its usual practice accounts
evidencing the amounts from time to time lent by and owing to it
hereunder.
35.4 CONTROL ACCOUNTS
The Agent shall maintain on its books a control account or accounts in
which shall be recorded:
35.4.1 the amount of any Advance or any Unpaid Sum and the face amount
and each Bank's share therein;
35.4.2 the amount of all principal, interest and other sums due or to
become due from an Obligor and each Bank's share therein; and
35.4.3 the amount of any sum received or recovered by the Agent
hereunder and each Bank's share therein.
35.5 PRIMA FACIE EVIDENCE
In any legal action or proceeding arising out of or in connection with
this Agreement, the entries made in the accounts maintained pursuant to
Clause 35.3 (EVIDENCE OF DEBT) and Clause 35.4 (CONTROL ACCOUNTS) shall,
in the absence of manifest error, be PRIMA FACIE evidence of the existence
and amounts of the specified obligations of the Obligors.
35.6 ROUNDING AND OTHER CONSEQUENTIAL CHANGES
Save as expressly provided in this Clause 35.6, the Finance Documents
shall be subject to such reasonable changes of construction as the Agent
may at the relevant time specify to be appropriate to reflect the adoption
of the euro in any Participating Member State and any relevant market
conventions or practices relating to the euro.
35.7 CERTIFICATES OF BANKS
A certificate of a Bank as to:
35.7.1 the amount by which a sum payable to it hereunder is to be
increased under Clause 11.1 (TAX GROSS-UP);
35.7.2 the amount for the time being required to indemnify it against
any such cost, payment or liability as is mentioned in Clause
11.2 (TAX INDEMNITY) or Clause 13.1 (INCREASED COSTS);
35.7.3 the amount of any credit, relief, remission or repayment as is
mentioned in Clause 12.3 (TAX CREDIT PAYMENT) or Clause 12.4 (TAX
CREDIT CLAWBACK); or
35.7.4 the amount of any cost, payment or liability referred to in
Clause 26 (USPE's INDEMNITY),
shall, in the absence of manifest error, be PRIMA FACIE evidence of the
existence and amounts of the specified obligations of the Obligors.
35.8 AGENT'S CERTIFICATES
A certificate of the Agent as to the amount at any time due from a
Borrower or USPE hereunder or the amount which, but for any of the
obligations of such Borrower or
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USPE hereunder being or becoming void, voidable, unenforceable or
ineffective, at any time would have been due from such Borrower hereunder
shall, in the absence of manifest error, be conclusive for the purposes of
Clause 22 (GUARANTEE AND INDEMNITY).
35.9 SPANISH CIVIL PROCEDURE
For the purposes of Article 1435 of the Spanish Civil Procedure Law (LEY
DE ENJUICIAMIENTO CIVIL), all parties expressly agree that the exact
amount due at any time by any Obligor incorporated in Spain to the Banks
will be the amount specified in a certificate issued by the Agent as
representative of the Banks reflecting the balance of the control accounts
referred to in Clause 35.4. (CONTROL ACCOUNTS) or, in the case of each
Bank, the amount specified in a certificate issued by such Bank reflecting
the balance of the accounts referred to in Clause 35.7 (CERTIFICATES OF
BANKS) PROVIDED THAT any such certificate is certified as true by a notary
(NOTARIO) or official stockbroker (CORREDOR COLEGIADO DE COMERCIO) and
establishes that the determination of such balance has been made in the
manner agreed by the parties hereto. If, in such an event, this Agreement
were not included in number 6 of Article 1429 as a result of any formality
being missing, the amount reflected in such accounts shall be recognised
as the amount outstanding ("RECONOCIMIENTO DE DEUDA") and may be claimed
in accordance with Article 1429(2). Any amounts so certified will be
considered as liquid, due and payable, provided that the certificate has
been formalised in a Spanish Public Document.
36. REMEDIES AND WAIVERS, PARTIAL INVALIDITY
36.1 REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under any Finance Document shall
operate as a waiver thereof, nor shall any single or partial exercise of
any right or remedy prevent any further or other exercise thereof or the
exercise of any other right or remedy. The rights and remedies provided
herein and in the Finance Documents are cumulative and not exclusive of
any rights or remedies provided by law.
36.2 PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under the law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions thereof nor the legality, validity or enforceability
of such provision under the law of any other jurisdiction shall in any way
be affected or impaired thereby.
37. NOTICES
37.1 COMMUNICATIONS IN WRITING
Each communication to be made under the Finance Documents shall be made in
writing and, unless otherwise stated, shall be made by fax or letter
PROVIDED THAT the Obligors shall indemnify each of the Agent, the Arranger
and each of the Banks against any cost, claim, loss, expense (including
legal fees) or liability together with any VAT thereon which any (or all)
of them may sustain or incur as a consequence of any facsimile
communication originating from any of the Obligors not being actually
received by or
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delivered to the intended recipient thereof or any facsimile communication
purporting to originate from any of the Obligors being made or delivered
fraudulently.
37.2 ADDRESSES
Any communication or document to be made or delivered pursuant to the
Finance Documents shall (unless the recipient of such communication or
document has, by fifteen days' written notice to the Agent, specified
another address or fax number) be made or delivered to the address or fax
number:
37.2.1 in the case of the Original Obligors, the Arranger and the Agent,
identified with its name below;
37.2.2 in the case of each Bank notified in writing to the Agent prior
to the date hereof (or, in the case of a Transferee, at the end
of the Transfer Certificate to which it is a party as
Transferee); and
37.2.3 in the case of each Acceding Obligor, in the relevant Accession
Memorandum
PROVIDED THAT not more than one address may be specified by each party
pursuant to this Clause 37.2 at any time.
37.3 DELIVERY
Any communication or document to be made or delivered by one person to
another pursuant to the Finance Documents shall:
37.3.1 if by way of fax, be deemed to have been received when
transmission has been completed (and, if such date is not a
Business Day, shall be deemed to have been received on the next
Business Day); and
37.3.2 if by way of letter, deemed to have been delivered when left at
that address or, as the case may be, ten days after being
deposited in the post postage prepaid in an envelope addressed to
it at that address,
PROVIDED THAT any communication or document to be made or delivered to the
Agent shall be effective only when received by its agency division or, as
the case may be, trustee division and then only if the same is expressly
marked for the attention of the department or officer identified with the
Agent's signature below (or such other department or officer as the Agent
shall from time to time specify for this purpose).
37.4 ENGLISH LANGUAGE
Each communication and document made or delivered by one party to another
pursuant to the Finance Documents shall be in the English language or
accompanied by a translation thereof into English certified (by an officer
of the person making or delivering the same) as being a true and accurate
translation thereof.
37.5 NOTIFICATION OF CHANGES
Promptly upon receipt of notification of a change of address or fax number
pursuant to Clause 37.3 (DELIVERY) the Agent shall notify the other
parties hereto of such change.
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37.6 DEEMED RECEIPT BY THE OBLIGORS
Any communication or document made or delivered to USPE in accordance with
Clause 37.3 (DELIVERY) shall be deemed to have been made or delivered to
each of the Obligors.
38. COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one and the same instrument.
39. AMENDMENTS
39.1 AMENDMENTS
The Agent, if it has the prior consent of an Instructing Group, and the
Obligors may from time to time agree in writing to amend the Finance
Documents or to waive, prospectively or retrospectively, any of the
requirements of the Finance Document and any amendments or waivers so
agreed shall be binding on all the Finance Parties, provided that no such
waiver or amendment shall subject any Finance Party hereto to any new or
additional obligations without the consent of such Finance Party.
39.1 AMENDMENTS REQUIRING THE CONSENT OF ALL THE BANKS
An amendment or waiver which relates to:
39.1.1 Clause 30 (SHARING) or this Clause 39;
39.1.2 a change in the principal amount of or currency of any Advance or
deferral of any Term Repayment Date or Final Maturity Date;
39.1.3 a change in the Margin, the commitment commission, the amount or
currency of any payment of interest, fees or any other amount
payable hereunder to any Finance Party or deferral of the date
for payment thereof;
39.1.4 the conditions set out in sub-clause 3.1.5 of Clause 3.1
(UTILISATION CONDITIONS FOR TERM ADVANCES) if an Event of Default
or Potential Event of Default which relates to a Repeated
Representation, Clause 19 (FINANCIAL CONDITION) or Clause 20.19
(NEGATIVE PLEDGE) is continuing;
39.1.5 the definition of Event of Default or Instructing Group; or
39.1.6 any provision which contemplates the need for the consent or
approval of all the Banks, shall not be made without the prior
consent of all the Banks.
39.3 EXCEPTIONS
Notwithstanding any other provisions hereof, the Agent shall not be
obliged to agree to any such amendment or waiver if the same would:
39.3.1 (in respect of the Agent) amend or waive this Clause 39, Clause
24 (COSTS AND EXPENSES) or Clause 31 (THE AGENT, THE ARRANGER,
THE BANKS); or
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39.3.2 otherwise amend or waive any of the Agent's rights hereunder or
subject the Agent or the Arranger to any additional obligations
hereunder or under the other Finance Documents.
39.4 AMENDMENT BY USPE
USPE (acting on behalf of each of the Obligors) may agree to any amendment
to or modification to the provisions of any of the Finance Documents or
any schedule thereto, or grant any waiver or consent in relation thereto
and each Obligor hereby authorises USPE to agree any such amendment,
modification, waiver or consent on its behalf. Nothing in this Clause 39.4
shall prejudice the right of the Agent to require all Obligors to agree
any such amendment, modification, waiver or consent.
39.5 AMENDMENT TO CORRECT MANIFEST ERROR
The Agent may agree with USPE (acting on behalf of each of the Obligors)
to enter into any amendment to or the modification of the provisions of
any of the Finance Documents or any schedule thereto, which is necessary
to correct a manifest error.
40. GOVERNING LAW
This Agreement shall be governed by English law.
41. JURISDICTION
41.1 ENGLISH COURTS
The courts of England have exclusive jurisdiction to settle any dispute (a
"DISPUTE") arising out of or in connection with this Agreement (including
a dispute regarding the existence, validity or termination of this
Agreement or the consequences of its nullity).
41.2 CONVENIENT FORUM
The parties agree that the courts of England are the most appropriate and
convenient courts to settle Disputes between them and, accordingly, that
they will not argue to the contrary.
41.3 NON-EXCLUSIVE JURISDICTION
This Clause 41 is for the benefit of the Finance Parties only. As a result
and notwithstanding Clause 41.1 (ENGLISH COURTS), it does not prevent any
Finance Party from taking proceedings relating to a Dispute
("Proceedings") in any other courts with jurisdiction. To the extent
allowed by law, the Finance Parties may take concurrent Proceedings in any
number of jurisdictions.
41.4 SERVICE OF PROCESS
Each Original Obligor agrees that the documents which start any
Proceedings and any other documents required to be served in relation to
those Proceedings may be served on it:
41.4.1 in the case of the Original Borrowers and USPE on Law Debenture
Trust Corporation Plc, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇; and
41.4.2 in the case of the Original Guarantors, on such Guarantors on Law
Debenture Trust Corporation Plc, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
- 96 -
If the appointment of the person mentioned in this Clause 41.4 (or, as the
case may be, the relevant Accession Memorandum) ceases to be effective,
the relevant Obligor shall immediately appoint another person in England
to accept service of process on its behalf in England. If an Obligor fails
to do so (and such failure continues for a period of not less than
fourteen days), the Agent shall be entitled to appoint such a person by
notice to such Obligor. Nothing contained herein shall restrict the right
to serve process in any other manner allowed by law. This Clause 41.4
applies to Proceedings in England and to Proceedings elsewhere.
WITNESS the hands of the duly authorised representatives of the parties hereto
the date and year first above written.
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SCHEDULE I
THE BANKS
BANK TERM A COMMITMENT TERM B COMMITMENT
EURO EURO
A. For the year ending 12 months after the Closing Date
Societe Generale, Sucursal en Espana up to 35,000,000 up to 15,000,000
B. For the 12 month period falling between the dates falling 12 months and 24
months after the Closing Date
Societe Generale, Sucursal en Espana up to 52,500,000 up to 22,500,000
C. For the 12 month period falling between the dates falling 24 months and
36 months after the Closing Date
Societe Generale Sucursal en Espana up to 70,000,000 up to 30,000,000
---------------- ----------------
- 98 -
SCHEDULE 2
FORM OF TRANSFER CERTIFICATE
To: [ ]
TRANSFER CERTIFICATE
relating to the agreement (as from time to time amended, varied, novated or
supplemented, the "Credit Agreement") dated o whereby senior euro term loan
facilities were made available to a group of borrowers including United Surgical
Partners Europe S.L. by a group of banks on whose behalf Society Generale,
Sucursal en Espana acted as agent in connection therewith.
1. Terms defined in the Credit Agreement shall, subject to any contrary
indication, have the same meanings herein. The terms Bank, Transferee and
Portion Transferred are defined in the schedule hereto.
2. The Bank (a) confirms that the details in the schedule hereto under the
heading "BANK'S PARTICIPATION IN THE TERM FACILITIES" and "TERM ADVANCES"
accurately summarises its participation in the Credit Agreement and the
Interest Period or Term of any existing Advances and (b) requests the
Transferee to accept and procure the transfer by novation to the
Transferee of the Portion Transferred (specified in the schedule hereto)
of its Term Commitment and/or its participation in such Advances) by
counter-signing and delivering this Transfer Certificate to the Agent at
its address for the service of notices specified in the Credit Agreement.
3. The Transferee hereby requests the Agent to accept this Transfer
Certificate as being delivered to the Agent pursuant to and for the
purposes of Clause 32.5 (TRANSFERS BY BANKS) of the Credit Agreement so as
to take effect in accordance with the terms thereof on the Transfer Date
or on such later date as may be determined in accordance with the terms
thereof.
4. The Transferee confirms that it has received a copy of the Credit
Agreement together with such other information as it has required in
connection with this transaction and that it has not relied and will not
hereafter rely on the Bank to check or enquire on its behalf into the
legality, validity, effectiveness, adequacy, accuracy or completeness of
any such information and further agrees that it has not relied and will
not rely on the Bank to assess or keep under review on its behalf the
financial condition, creditworthiness, condition, affairs, status or
nature of the Obligors.
5. The Transferee hereby undertakes with the Bank and each of the other
parties to the Credit Agreement that it will perform in accordance with
their terms all those obligations which by the terms of the Finance
Documents will be assumed by it after delivery of this Transfer
Certificate to the Agent and satisfaction of the conditions (if any)
subject to which this Transfer Certificate is expressed to take effect.
6. The Bank makes no representation or warranty and assumes no other
responsibility with respect to the legality, validity, effectiveness,
adequacy or enforceability of the Finance Documents or any document
relating thereto and assumes no responsibility for the financial condition
of the Obligors or for the performance and observance by the
- 99 -
Obligors of any of its obligations under the Finance Documents or any
document relating thereto and any and all such conditions and warranties,
whether express or implied by law or, in any case, otherwise, are hereby
excluded.
7. The Bank hereby gives notice that nothing herein or in the Finance
Documents (or, in any case, any document relating thereto) shall oblige
the Bank to (a) accept a re-transfer from the Transferee of the whole or
any part of its rights, benefits and/or obligations under the Credit
Agreement or the Finance Documents transferred pursuant hereto or (b)
support any losses directly or indirectly sustained or incurred by the
Transferee for any reason whatsoever including the non-performance by an
Obligor or any other party to the Credit Agreement or the Finance
Documents (or, in any case, any document (relating thereto) of its
obligations under any such document. The Transferee hereby acknowledges
the absence of any such obligation as is referred to in (a) or (b) above.
8. This Transfer Certificate and the rights, benefits and obligations of the
parties hereunder shall be governed by and construed in accordance with
English law.
THE SCHEDULE
1. Bank:
2. Transferee:
3. Transfer Date:
4. Bank's Participation in the Term Facilities:
(a) Bank's Term A Commitment Portion Transferred
A
B
C
(b) Bank's Term B Commitment Portion Transferred
A
B
C
5. Term Advances:
(a) Term A Advances
Amount of Bank's Participation Interest Period Portion Transferred
(b) Term B Advances
Amount of Bank's Participation Interest Period Portion Transferred
[Transferor Bank] [Transferee Bank)
By: By:
Date: Date:
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________________________________________________________________________________
Administrative Details of Transferee
Facility Office:
Address:
Fax:
Telephone:
Contact Name:
Notice Details:
Address:
Fax:
Telephone:
Contact Name:
Account for Payments in Euro:
Address:
Fax:
Telephone:
Contact Name:
________________________________________________________________________________
* Details of the Bank's Available Term Commitment should not be completed after
the last day of the Term Availability Period.
[Note: Execution and delivery of the Transfer Certificates may not be sufficient
to transfer security]
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SCHEDULE 3
PART I
CONDITIONS PRECEDENT AT DRAWDOWN
A. CORPORATE DOCUMENTS
1. In relation to any Obligor:
(a) copies, certified by an Authorised Signatory of USPE as being
true, complete and up to date, of the constitutional documents
of such Obligor;
(b) copies, certified by an Authorised Signatory of such Obligor as
being true, complete and up to date and in full force and effect
and confirming the same have not been superseded, of the
resolutions by the relevant body of such Obligor authorising the
execution, delivery and performance of the Finance Documents and
the terms and conditions thereof and authorising a person or
persons to sign (or a copy of the appointment of a person duly
appointed and with authority to sign) each Finance Document and
any documents to be delivered by such Obligor pursuant thereto;
(c) a certificate of an Authorised Signatory of such Obligor setting
out the names and signatures of the persons authorised to sign,
on behalf of such Obligor, each Finance Document to which such
Obligor is or is to be party; and
(d) copies, certified by an Authorised Signatory of such Obligor as
being true, complete and up to date and in full force and effect
and confirming the same have not been superseded, of the
resolutions of the partners of such Obligor authorising the
execution, delivery and performance of the Finance Documents and
the terms and conditions thereof.
2. The Group Structure Chart (showing all members of the Group, in a form and
substance reasonably satisfactory to the Arranger).
3. To the extent not delivered under Al, the constitutive documents of each
Group member whose shares are subject to an Encumbrance under the Security
Documents.
B. ACCOUNTS AND REPORTS
1. A copy, certified a true copy by an Authorised Signatory of each Original
Obligor, of the Original Financial Statements of such Original Obligor.
2. A certificate of an Authorised Signatory of the relevant Obligor or USPE
stating that all financial covenants and obligations under the Finance
Documents have been complied with.
C. OTHER FINANCING DOCUMENTS
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1. A certificate, signed by an Authorised Signatory of each Original Obligor,
stating that as of the Closing Date, there are no circumstances which
constitute an Event of Default or Potential Event of Default or which may
in its reasonable opinion give rise to a Potential Event of Default.
2. A certificate, signed by an Authorised Signatory of each Original Obligor,
stating that as of the Closing Date, there are no action or administrative
proceeding of or before any court, arbitrator or agency (including, but
not limited to, investigative proceedings) which could reasonably be
expected to have a Material Adverse Effect has been started or threatened
against it or its assets, nor are there any circumstances likely to give
rise to any such action or proceedings.
3. Copies, certified by a director of USPE as being true, complete and
up-to-date, of documents (if any) evidencing all Intercompany Debt
Agreements made (or to be made or subsisting on the Closing Date) between
Obligors and by any Obligor to another Group member and evidence that
subordination provisions and security in respect of such Intercompany Debt
Agreements to the extent required by the terms of this Agreement, in form
satisfactory to the Agent, have been entered into and provided in relation
thereto.
4. If the proposed advance is in relation to a Permitted Acquisition,
evidence that the conditions precedent in Schedule 3, Part 2 (CONDITIONS
PRECEDENT TO A PERMITTED ACQUISITION) have been met.
5. An official certificate of USPE certifying that the requirement of Clause
19 (FINANCIAL CONDITION) have been met (i.e., compliance with Clause
19.1.1 (CASH FLOW COVER), 19.1.2 (MINIMUM NET WORTH COVER) and 19.1.3
(GROSS DEBT COVER)).
6. A certificate, signed by an Authorised Signatory of each Original Obligor,
stating that since the date of its Original Financial Statements or, if
later, the date as at which its most recent audited financial statements
(consolidated in the case of USPE) were stated to be prepared, there has
been no material adverse change in the business, operations, property,
financial condition, performance or prospects of the Group taken as a
whole.
D. SECURITY, GUARANTEE AND PRIORITY DOCUMENTS
1. Duly executed copies of each of the Finance Documents in a form and
substance satisfactory to the Agent.
E. LEGAL OPINIONS
Legal Opinions, dated the Closing Date, of:
(i) ▇▇▇▇▇▇▇▇ Chance, Madrid, the Agent's counsel as to English law;
(ii) ▇▇▇▇▇▇▇▇ Chance, Madrid, the Agent's counsel as to Spanish law; and
(iii) the Obligor's local counsel in each jurisdiction in which an Obligor
is incorporated,
in each case in form and substance reasonably satisfactory to the
Arranger.
G. MISCELLANEOUS
-103-
1. The fees letters referred to in Clauses 23.3 (ARRANGEMENT AND UNDERWRITING
FEE) and 23.4 (AGENCY FEE).
2. A certificate of a duly authorised officer of USPE confirming that the
transactions contemplated by and the entering into of the Finance
Documents will not contravene any other provision of that company's
constitutional documents.
3. A copy, certified a true copy by or on behalf of each Original Obligor, of
each such law, consent, licence, approval, registration or declaration as
is, in the opinion of counsel to the Banks, necessary to render this
Agreement legal, valid, binding and enforceable, to make this Agreement
admissible in evidence in each Original Obligor's jurisdiction of
incorporation and to enable each Original Obligor to perform its
obligations hereunder.
4. Evidence that the party or, parties specified in Clause 41.4 (SERVICE OF
PROCESS) have agreed to act as the agents of each Original Obligor
incorporated in a jurisdiction other than England and Wales for the
service of process in England.
5. A letter in form and substance satisfactory to the Agent relating to the
subordination of the USPE-USPI Agreements.
- 104 -
SCHEDULE 3
PART 2
CONDITIONS PRECEDENT TO A PERMITTED ACQUISITION
A. CORPORATE DOCUMENTS
1. In relation to a Permitted Acquisition:
(a) copies, certified by an Authorised Signatory of USPE as being true,
complete and up to date, of the constitutional documents of such
Target;
(b) copies, certified by an Authorised Signatory of the relevant Obligor as
being true, complete and up to date and in full force and effect and
confirming the same have not been superseded, of the resolutions by the
board of directors of such Obligor authorising the execution, delivery
and performance of the Permitted Acquisition Documents and the terms
and conditions thereof and authorising a person or persons to sign each
Permitted Acquisition Document and any documents to be delivered by
such Obligor pursuant thereto; and
(c) copies, certified by an Authorised Signatory of such Obligor as being
true, complete and up to date and in full force and effect and
confirming the same have not been superseded, of the resolutions of the
shareholders of such Obligor authorising the execution, delivery and
performance of the Permitted Acquisition Documents and the terms and
conditions thereof.
B. ACCOUNTS AND REPORTS
At least 10 days prior to the Permitted Acquisition Closing Date in relation to
a proposed Permitted Acquisition:
1. The Reports which are addressed to the Agent and the Banks and in a form
and substance reasonably satisfactory to the Agent acting on the
instructions of an Instructing Group.
2. An Acquisition Feasibility Memorandum in a form and substance reasonably
satisfactory to the Agent acting on the instructions of an Instructing
Group addressed to the Agent and the Banks.
3. A copy, certified a true copy by an Authorised Signatory of USPE, of the
audited financial statements of such Target for the preceding 3 years (or,
if not reasonably available, such financial statements certified as
complete and accurate by the Target's or USPE's Chief Financial Officer).
4. A Structuring Paper in relation to the proposed Permitted Acquisition.
5. A certificate of an Authorised Signatory of each relevant Obligor and USPE
stating that all financial covenants and obligations under the Finance
Documents have been complied
- 105 -
with and that they will continue to be complied with following the
proposed Permitted Acquisition.
6. A detailed financial model delivered by USPE to the Agent sufficient to
demonstrate each Obligor's and the Target's compliance with the financial
covenants under the Finance Documents during the life of the transaction,
including identifiable cost savings, and sufficiently demonstrating, in
the opinion of the Agent, such compliance with all of the conditions
precedent to a Permitted Acquisition as well as projected compliance with
all covenants under the Finance Documents for the teen of the Facilities.
C. ACQUISITION DOCUMENTS AND RELATED MATTERS
1. An executed copy, certified by an Authorised Signatory of USPE as true,
complete and up-to-date, of each Permitted Acquisition Document relating
to the Permitted Acquisition and the documents required to be delivered
pursuant thereto.
2. Evidence that the Permitted Acquisition has completed or, immediately
following the Term Advance in relation thereto hereunder, will be
completed in accordance with the terms of the Permitted Acquisition
Documents and that no right or entitlement of USPE or any Obligor (whether
to receive documents or otherwise) thereunder has been waived or modified
except with the written consent of the Agent and that the Permitted
Acquisition Documents contain the full agreement of the parties thereto as
to the matters set out therein.
3. Evidence that, without limiting the generality of the foregoing, as a
result of and after giving effect to the Permitted Acquisition, no Group
member shall have any Financial Indebtedness outstanding (other than
Permitted Financial Indebtedness) and that, without limiting of the
generality of the foregoing, all Financial Indebtedness outstanding (other
than Permitted Financial Indebtedness) of any Group member has been paid
in full and all Encumbrances (other than Permitted Encumbrances) and
guarantees have been or will be, concurrently with the making of the
Advance in relation thereto hereunder, terminated and discharged.
4. Evidence that all governmental and regulatory consents and other
clearances (including, but not limited to, tax clearances) and all third
party consents and approvals necessary or desirable in connection with the
Permitted Acquisition have been obtained including, but not limited to in
relation to a Permitted Acquisition of a Target whose principal office is
located outside of Spain and Portugal, no less than 2/3 of the Banks'
written consent approving such Permitted Acquisition.
5. A funds flow statement in a form agreed to by the Arranger or Agent
detailing the proposed movement of funds on the Permitted Acquisition
Closing Date.
6. A Certificate of USPE detailing the estimated Permitted Acquisition Costs.
D. SECURITY, GUARANTEE AND PRIORITY DOCUMENTS
Duly executed copies of each Security Document relating to the Permitted
Acquisition.
E. MISCELLANEOUS
- 106 -
A certificate of USPE's auditors confirming, after the relevant Permitted
Acquisition, which companies within the Group are Material Subsidiaries.
- 107 -
SCHEDULE 4
NOTICE OF DRAWDOWN
From: [Insert name of Original Borrower]
To: Societe Generale, Sucursal en Espana
Dated:
Dear Sirs,
l. We refer to the agreement (the "Credit Agreement") dated [ * ] and made
between, INTER ALIA, a group of borrowers including United Surgical
Partners Europe S.L., Societe Generale, Sucursal en Espana as agent and
the financial institutions named therein as Banks. Terms defined in the
Credit Agreement shall have the same meaning in this notice.
2. This notice is irrevocable.
3. We hereby give you notice that, pursuant to the Credit Agreement, we wish
the Banks to make a Term Advance as follows:
(a) principal amount;
(b) Utilisation Date:
(c) Interest Period;
4. [We would like this Advance to have a first Interest Period of [ ] months
duration [ONLY 1 MONTH PRIOR to SYNDICATION DATE].]
5. We confirm that, at the date hereof, the Repeated Representations are true
in all material respects and no Event of Default or Potential Event of
Default is continuing.
6. The proceeds of this drawdown should be credited to [insert account
details].
Yours faithfully
..................
Authorised Signatory
for and on behalf of
[Insert name of Original Borrower]
- 108 -
SCHEDULES
FORM OF COMPLIANCE CERTIFICATE
To: Societe Generale, Sucursal en Espana
Date:
Dear Sirs,
1. We refer to an agreement (the "Credit Agreement") dated [ * ] and made
between, INTER ALIA, a group of borrowers including United Surgical
Partners Europe S.L., [Insert name of Agent] as agent, the financial
institutions defined therein as Banks and others.
2. Terms defined in the Credit Agreement shall bear the same meaning herein.
3. We confirm that:
[INSERT DETAILS OF FINANCIAL CONDITIONS TO BE CERTIFIED]
4. We confirm that the following companies constitute Material Subsidiaries
for the purposes of the Credit Agreement: [ ].
5. USPE confirms that no Event of Default or Potential Event of Default was
continuing unremedied or unwaived on [SPECIFY YEAR END OR QUARTER END DATE
TO WHICH CERTIFICATE RELATES] [other than [ ]]***
6. We confirm that the Repeated Representations were true in all material
respects on [SPECIFY YEAR END OR QUARTER END DATE TO WHICH CERTIFICATE
RELATES] [other than [ ]
[Signed:
____________________________________ ____________________________________
Director Director
of of
United Surgical Partners Europe S.L. United Surgical Partners Europe S.L.
or
____________________________________
for and on behalf of
[name of auditors of United Surgical Partners Europe S.L.]
*** Only to be given by USPE, not auditors
-109-
SCHEDULE 6
FORM OF BORROWER ACCESSION MEMORANDUM
To: Societe Generale, Sucursal en Espana
From: [Subsidiary]
and
United Surgical Partners Europe S.L. ("USPE")
Dated:
Dear Sirs,
1. We refer to an agreement (the "CREDIT AGREEMENT") dated [ * ] and made,
amongst others between a group of borrowers including United Surgical
Partners Europe S.L. ("USPE"), Societe Generale, Sucursal en Espana as
agent and the financial institutions defined therein as Banks and others.
2. Terms defined in the Credit Agreement shall bear the same meaning herein.
3. USPE requests that [Subsidiary] become an Additional Borrower pursuant to
Clause 33.1 (Request for Additional Borrowers) of the Credit Agreement.
4. [Subsidiary] is a company duly organised under the laws of [name of
relevant jurisdiction].
5. [Subsidiary] confirms that it has received from USPE a true and up-to-date
copy of the Credit Agreement.
6. [Subsidiary] undertakes, upon its becoming a Borrower, to perform all the
obligations expressed to be undertaken under the Credit Agreement and the
Finance Documents by a Borrower and agrees that it shall be bound by the
Credit Agreement and the Finance Documents in all respects as if it had
been an original party thereto as an Original Borrower.
7. USPE confirms that, if [Subsidiary] is accepted as an Additional Borrower,
its guarantee obligations (and the guarantee obligations of other
Obligors) pursuant to Clause 22 (GUARANTEE AND INDEMNITY) of the Credit
Agreement will apply to all the obligations of [Subsidiary] under the
Finance Documents in all respects in accordance with the teens of the
Credit Agreement.
8. USPE
(a) repeats the Repeated Representations; and
(b) confirms that no Event of Default or Potential Event of Default is
continuing or would occur as a result of [SUBSIDIARY] becoming an
Additional Borrower.
9. [Subsidiary] makes the representations and warranties set out in Clause 16
(REPRESENTATIONS) other than Clause 16.12 (REPORTS), Clause 16.13 (GROUP
STRUCTURE),Clause 16.17 (INFORMATION MEMORANDUM) and Clause 16.22
(SUBSIDIARIES).
10. [Subsidiary's] administrative details are as follows:
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Address:
Fax No.:
Contact:
11. [PROCESS AGENT* [SUBSIDIARY] agrees that the documents which start any
Proceedings and any other documents required to be served in relation to
those Proceedings may be served on it at [Law Debenture Trust Corporation
Plc at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇] or at any address in Great Britain at
which process may be served on it in accordance with Part XXIII of the
Companies ▇▇▇ ▇▇▇▇. If [SUBSIDIARY] the appointment of the person
mentioned above ceases to be effective, [SUBSIDIARY] shall immediately
appoint another person in England to accept service of process on its
behalf in England. If it fails to do so (and such failure continues for a
period of not less than fourteen days), the Agent shall be entitled to
appoint such a person by notice. Nothing contained herein shall restrict
the right to serve process in any other manner allowed by law. This
applies to Proceedings in England and to Proceedings elsewhere.]
12. This Memorandum shall be governed by English law.
[Insert name of Parent] [Subsidiary]
By:____________________ By:_____________________
* This clause is required only if the Acceding Borrower is not incorporated in
England or Wales.
-111-
SCHEDULE 7
FORM OF GUARANTOR ACCESSION MEMORANDUM
To: Societe Generale, Sucursal en Espana, S.L.
From: [Subsidiary]
and
United Surgical Partners Europe S.L. ("USPE")
Dated:
Dear Sirs,
1. We refer to an agreement (the "CREDIT AGREEMENT") dated [ ] and made
between, INTER ALIA, a group of borrowers including United Surgical
Partners Europe S.L. ("USPE"), Societe Generale, Sucursal en Espaha, S.L.
as agent, the financial institutions defined therein as Banks and others.
2. Terms defined in the Credit Agreement shall bear the same meaning herein.
3. USPE requests that [SUBSIDIARY] become an Additional Guarantor pursuant to
Clause 34.1 (REQUEST FOR ADDITIONAL GUARANTOR) OF the Credit Agreement.
4. [SUBSIDIARY] is a company duly organised under the laws of [NAME OF
RELEVANT JURISDICTION].
5. [SUBSIDIARY] confirms that it has received from USPE a true and up-to-date
copy of the Credit Agreement and a list of the Borrowers as at the date
hereof.
6. [SUBSIDIARY] undertakes, upon its becoming a Guarantor, to perform all the
obligations expressed to be undertaken under the Credit Agreement and the
Finance Documents by a Guarantor and agrees that it shall be bound by the
Credit Agreement and the Finance Documents in all respects as if it had
been an original party thereto as an Original Guarantor.
7. USPE:
(a) repeats the Repeated Representations; and
(b) confirms that no Event of Default or Potential Event of Default is
continuing or would occur as a result of [SUBSIDIARY] becoming an
Additional Guarantor.
8. [SUBSIDIARY] makes the representations set out in Clause 16
(REPRESENTATIONS) other than Clause 16.12 (REPORTS), Clause 16.13 (GROUP
STRUCTURE), Clause (degree)16.17 (INFORMATION AND MEMORANDUM) and Clause
16.22 (SUBSIDIARIES).
9. [SUBSIDIARY'S] administrative details are as follows:
Address:
Fax No.:
Contact
- 112 -
10. [PROCESS AGENT* [SUBSIDIAY] agrees that the documents which start any
Proceedings and any other documents required to be served in relation to
those Proceedings may be served on it at [Law Debenture Trust Corporation
Plc at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇) or at any address in Great Britain at
which process may be served on it in accordance with Part XXIII of the
Companies ▇▇▇ ▇▇▇▇. If [SUBSIDIARY] the appointment of the person
mentioned above ceases to be effective, [SUBSIDIARY] shall immediately
appoint another person in England to accept service of process on its
behalf in England. If it fails to do so (and such failure continues for a
period of not less than fourteen days), the Agent shall be entitled to
appoint such a person by notice. Nothing contained herein shall restrict
the right to serve process in any other manner allowed by law. This
applies to Proceedings in England and to Proceedings elsewhere.)
11. This Memorandum shall be governed by English law.
To be executed by deed.
* This clause is required only if the Acceding Guarantor is not incorporated in
England or Wales.
- 113 -
SCHEDULE 8
ADDITIONAL CONDITIONS PRECEDENT
1. A copy, certified as at the date of the relevant Accession Memorandum a
true and up-todate copy by an Authorised Signatory of the proposed
Additional Obligor, of the constitutional documents of such proposed
Additional Obligor.
2. A copy, certified as at the date of the relevant Accession Memorandum a
true and up-to-date copy by an Authorised Signatory of the proposed
Additional Obligor, of a board resolution of such proposed Additional
Obligor approving the execution and delivery of an Accession Memorandum,
the accession of such proposed Additional Obligor to this Agreement and
the performance of its obligations under the Finance Documents and
authorising a named person or persons to sign such Accession Memorandum,
any other Finance Document and any other documents to be delivered by such
proposed Additional Obligor pursuant thereto.
[ADD A CERTIFIED COPY OF ANY SHAREHOLDERS RESOLUTION REQUIRED, IF ANY, TO
APPROVE FINANCE DOCUMENTS]
3. A certificate of an Authorised Signatory of the proposed Additional
Obligor setting out the names and signatures of the person or persons
authorised to sign, on behalf of such proposed Additional Obligor, the
Accession Memorandum, any other Finance Documents and any other documents
to be delivered by such proposed Additional Obligor pursuant thereto.
4. A certificate of an Authorised Signatory of the proposed Additional
Obligor confirming that the utilisation of the Facilities would not breach
any restriction of its borrowing powers or power to grant security or give
a guarantee.
5. If the proposed Additional Obligor is incorporated in a jurisdiction other
than England and Wales, a copy, certified a true copy by or on behalf of
the proposed Additional Obligor, of each such law, consent, licence,
approval, registration or declaration as is, in the opinion of counsel to
the Banks, necessary to render the relevant Accession Memorandum legal,
valid, binding and enforceable, to make such Accession Memorandum
admissible in evidence in the proposed Additional Obligor's jurisdiction
of incorporation and to enable the proposed Additional Obligor to perform
its obligations thereunder and under the other Finance Documents.
6. A copy, certified a true copy by an Authorised Signatory of the proposed
Additional Obligor, of its latest financial statements.
7. If the proposed Additional Obligor is incorporated in a jurisdiction other
than England and Wales, an opinion of the Banks' local counsel in the
relevant jurisdiction in form and substance reasonably satisfactory to the
Agent.
8. In respect of Obligors incorporated in England and Wales or Scotland,
evidence of compliance with the procedure for permitting the financial
assistance constituted hereby and/or under the other Finance Documents
under Section 155-158 of the Companies ▇▇▇ ▇▇▇▇ including certified copies
of the relevant statutory declarations and annexed auditors
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reports, copies of the related board memoranda for each such Obligor and
non-statutory comfort from the auditors as to the net asset position of
such Obligor. In respect of Obligors incorporated elsewhere, evidence of
compliance with any similar or equivalent procedure for permitting
financial assistance (if any).
9. An opinion of ▇▇▇▇▇▇▇▇ Chance, solicitors to the Agent, in form and
substance satisfactory to the Agent.
10. If the proposed Additional Obligor is incorporated in a jurisdiction other
than England and Wales, evidence that the process agent specified in the
relevant Accession Memorandum has agreed to act as its agent for the
service of process in England.
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SCHEDULE 9
FORM OF RESIGNATION NOTICE
To: Societe Generale, Sucursal en Espana, S.L.
From: United Surgical Partners Europe, S.L.
Dated:
Dear Sirs,
1. We refer to an agreement (the "FACILITY AGREEMENT") dated [ ] and made,
INFER ALIA, between a group of borrowers including United Surgical
Partners Europe, S.L. ("USPE"), Societe Generale, Sucursal en Esparna as
agent, the financial institutions defined therein as Banks and others.
2. Terms defined in the Facility Agreement shall bear the same meaning
herein.
3. We declare that [NAME OF BORROWER] is under no actual or contingent
obligation under any Finance Document in its capacity as a Borrower.
4. Pursuant to Clause 33.3 (RESIGNATION OF A BORROWER) we hereby request that
[name of Obligor] shall cease to be a Borrower under the Facility
Agreement.
Yours faithfully
United Surgical Partners Europe, S.L.
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SCHEDULE 10
MANDATORY COSTS
1. The Mandatory Cost Rate is an addition to the interest rate to compensate
Banks for the cost of compliance with 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).
2. On the first day of each Interest Period or Term, as the case may be, (or
as soon as possible thereafter) the Agent shall calculate, as a percentage
rate, a rate (the "ADDITIONAL COSTS RATE") for each Bank, in accordance
with the formulae set out below. The Mandatory Cost Rate will be
calculated by the Agent as a weighted average of the Banks' additional
costs rates (weighted in proportion to the percentage participation of
each Bank in the relevant Advance) and will be expressed as a percentage
rate per annum.
3. The additional cost rate for each Bank will be calculated by the Agent as
follows:
(a) in relation to euro Advances:
AB + C (B - D) + E X 0.01
-------------------------per cent. per annum
100 - (A+C)
(b) in relation to Advances in any currency other than euro:
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 Bank is from time to time
required to maintain as an interest free cash ratio deposit with the
Bank of England to comply with cash ratio requirements.
B is the percentage rate of interest (excluding the Margin and the
Mandatory Cost Rate) payable for the relevant Interest Period or
Term, as the case may be, on the Advance.
C is the percentage (if any) of eligible liabilities which that Bank
is required from time to time to maintain as interest bearing
special deposits with the Bank of England.
D is the percentage rate per annum payable by the Bank of England to
the Agent on interest bearing special deposits.
E is the rate of charge payable by that Bank to the Financial Services
Authority pursuant to the Fee Regulations (but, for this purpose,
ignoring any minimum fee required pursuant to the Fee Regulations)
and expressed in pounds per (pound)1,000,000 of the Fee Base of that
Bank.
4. For the purposes of this Schedule:
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(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) "FEE REGULATIONS" means the Banking Supervision (Fees) Regulations
1999 or such other law as may be in force from time to time in
respect of the payment of fees for banking supervision; and
(c) "Fee Base" has the meaning given to it, and will be calculated in
accordance with, the Fee Regulations.
5. 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.
6. Each Bank shall supply any information required by the Agent for the
purpose of calculating the above formulae. In particular, but without
limitation, each Bank shall supply the following information in writing on
or prior to the date on which it becomes a Bank:
(a) its jurisdiction of incorporation and the jurisdiction of its
Facility Office; and
(b) such other information that the Agent may reasonably require for
such purpose.
Each Bank shall promptly notify the Agent in writing of any change to the
information provided by it pursuant to this paragraph.
7. The percentages or rates of charge of each Bank for the purpose of A, C
and E above shall be determined by the Agent based upon the information
supplied to it pursuant to paragraph 6 above and on the assumption that,
unless a Bank notifies the Agent to the contrary, each Bank's obligations
in relation to cash ratio deposits, special deposits and the Fee
Regulations are the same as those of a typical bank from its jurisdiction
of incorporation with a Facility Office in the same jurisdiction as its
Facility Office.
The Agent shall have no liability to any person if such determination
results in an additional costs rate which over or under compensates any
Bank and shall be entitled to assume that the information provided by any
Bank pursuant to paragraph 6 above is true and correct in all respects.
8. The Agent shall distribute the additional amounts received pursuant to the
Mandatory Cost Rate to the Banks on the basis of the additional costs rate
for each Bank, in accordance with the above formulae and based on the
information provided by each Bank pursuant to paragraph 6 above.
9. Any determination by the Agent pursuant to this Schedule in relation to a
formula, the Mandatory Cost Rate, an additional costs rate or any amount
payable to a Bank shall, in the absence of manifest error, be conclusive
and binding on all of the parties hereto.
10. The Agent may from time to time, after consultation with USPE and the
Banks, determine and notify to all parties any amendments or variations
which are required to be made to any
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of the formulae set out above in order to comply with any change in law or
any requirements from time to time imposed by the Bank of England or the
Financial Services Authority (or, in either 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
the parties hereto.
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SCHEDULE 11
REAL ESTATE
- Land registered in the Land Registry Number 2 of La Coruna on folio 237 of
volume 505 of book 505, registered property number 38558 and owned by
Instituto Policlinico Santa Teresa, S.A.
- Land registered in the Land Registry Number 2 of La Coruna on folio 233 of
volume 505 of book 505, registered property number 38556 and owned by
Instituto Policlinico Santa Teresa, S.A.
- Land registered in the Land Registry Number 2 of La Coruna on folio 35 of
volume 300 of book 300, registered property number 23645 and owned by
Instituto Policlinico Santa Teresa, S.A.
- Land registered in the Land Registry Number 2 of La Coruna on folio 233 of
volume 2062 of book 753, registered property number 58930 and owned by
Clinics Maternal Nuestra Senora de la ▇▇▇▇▇▇▇▇▇.
- Land registered in the Land Registry Number 1 of Barcelona on folio 166 of
volume 907 of book 297, registered property number 11660 and owned by
Instituto Dexeus, S.A.
- Land registered in the Land Registry Number 8 of Sevilla on folio 200 of
volume 1429 of book 884, registered property number 25948 and owned by
Hospitalizacion y Servicios, S.A. (HOYS, S.A.)
- Land registered in the Land Registry Number 8 OF Sevilla on folio 121 of
volume 235 of book 116, registered property number 4377 and owned by
Hospitalizacion y Servicios, S.A. (HOYS, S.A.)
- Land registered in the Land Registry Number 8 of Sevilla on folio 200 of
volume 1429 of book 189, registered property number 5019 N and owned by
Hospitalizacion y Servicios, S.A. (HOYS, S.A.)
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