EXHIBIT (b)(1)
Private & Confidential CONFORMED COPY
BRIDGE FACILITY AGREEMENT
for a
US$30,000,000 TERM FACILITY
to
RASMALA DISTRIBUTION (CAYMAN) LIMITED
as Parent
RASMALA DISTRIBUTION (BERMUDA) LIMITED
as Guarantor
ARRANGED BY
SHUAA CAPITAL P.S.C.
AGENT
SHUAA CAPITAL P.S.C.
▇▇▇▇▇▇ ▇▇▇▇
CONTENTS
CLAUSE PAGE
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SECTION 1 : INTERPRETATION....................................................................................1
1 Definitions and Interpretation.........................................................................1
SECTION 2 : THE FACILITY.....................................................................................10
2 The Facility..........................................................................................10
3 Purpose...............................................................................................10
4 Conditions of Utilisation.............................................................................10
SECTION 3 : UTILISATION......................................................................................11
5 Utilisation...........................................................................................11
SECTION 4 : REPAYMENT, PREPAYMENT AND CANCELLATION...........................................................12
6 Repayment.............................................................................................12
7 Prepayment and cancellation...........................................................................12
SECTION 5 : COSTS OF UTILISATION.............................................................................14
8 Interest..............................................................................................14
9 Arrangement Fee.......................................................................................14
SECTION 6 : ADDITIONAL PAYMENT OBLIGATIONS...................................................................15
10 Tax gross up and indemnities..........................................................................15
11 Increased costs.......................................................................................16
12 Other indemnities.....................................................................................17
13 Mitigation by the Lenders.............................................................................18
14 Costs and expenses....................................................................................19
SECTION 7 : GUARANTEE........................................................................................20
15 Guarantee and indemnity...............................................................................20
SECTION 8 : REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT..............................................22
16 Representations.......................................................................................22
17 Information undertakings..............................................................................24
18 General undertakings..................................................................................24
19 Events of Default.....................................................................................28
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SECTION 9 : CHANGES TO PARTIES...............................................................................31
20 Changes to the Lenders................................................................................31
21 Changes to the Obligors...............................................................................33
SECTION 10 : THE FINANCE PARTIES.............................................................................35
22 Role of the Agent and the Arranger....................................................................35
23 Conduct of business by the Finance Parties............................................................38
24 Sharing among the Lenders.............................................................................38
SECTION 11 : ADMINISTRATION..................................................................................41
25 Payment mechanics.....................................................................................41
26 Set-off...............................................................................................42
27 Notices...............................................................................................42
28 Calculations and certificates.........................................................................43
29 Partial invalidity....................................................................................44
30 Remedies and waivers..................................................................................44
31 Amendments and waivers................................................................................44
32 Counterparts..........................................................................................44
SECTION 12 : GOVERNING LAW AND ENFORCEMENT...................................................................45
33 Governing law.........................................................................................45
34 Enforcement...........................................................................................45
Schedule 1 The Original Parties..............................................................................46
Schedule 2 The Conditions Precedent..........................................................................48
Schedule 3 Form of Utilisation Request.......................................................................51
Schedule 4 Form of Transfer Certificate......................................................................52
Schedule 5 Existing Security Interests* .....................................................................53
Schedule 6 Form of Accession Letter..........................................................................54
Schedule 7 Form of Resignation Letter........................................................................55
Schedule 8 Form of Confidentiality Letter....................................................................56
* Schedule 5 has been intentionally omitted. The registrant hereby undertakes to
furnish supplementally a copy of Schedule 5 to this Bridge Facility Agreement
to the Securities and Exchange Commission upon request.
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THIS AGREEMENT is dated 3 January, 2002 and made between:
1 RASMALA DISTRIBUTION (CAYMAN) LIMITED as Parent;
2 RASMALA DISTRIBUTION (BERMUDA) LIMITED as Guarantor;
3 SHUAA CAPITAL P.S.C. (the "ARRANGER");
4 THE FINANCIAL INSTITUTIONS listed in Part II of Schedule 1 as original
lenders (the "ORIGINAL LENDERS"); and
5 SHUAA CAPITAL P.S.C. as agent for the Lenders (the "AGENT").
IT IS AGREED AS FOLLOWS:
SECTION 1: INTERPRETATION
1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
"ACCESSION LETTER" means a document substantially in the form set out in
Schedule 6 (Form of Accession Letter);
"ACQUISITION" means the acquisition of all outstanding Common Shares and
Option Shares on the terms and subject to the conditions set forth in the
Offer to Purchase and in the related letter of transmittal and in the
Amalgamation Agreement;
"ADDITIONAL GUARANTOR" means a company which becomes an Additional
Guarantor in accordance with clause 21 (Changes to the Obligors);
"AFFILIATE" means, in relation to any person, a Subsidiary of that person
or a Holding Company of that person or any other Subsidiary of that
Holding Company;
"AGENT" means SHUAA Capital p.s.c. of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇
▇▇▇▇▇ Road, ▇.▇.▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ or such other
person as may be appointed agent for the Lender pursuant to clause 22.11;
"AMALGAMATION AGREEMENT" means the agreement and plan of amalgamation,
dated as of 3 January, 2002, among the Parent, Bidco and Target;
"ARRANGER" means SHUAA Capital p.s.c. of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇ Road, ▇.▇.▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇;
"AUTHORISATION" means an authorisation, consent, approval, resolution,
licence, exemption, filing or registration;
"AVAILABILITY PERIOD" means the period from and including the date of
this Agreement to and including 30 June 2002;
"AVAILABLE COMMITMENT" means a Lender's Commitment minus:
(a) its participation in any outstanding Loans; and
(b) in relation to any proposed Utilisation, its participation in any
Loans that are due to be made on or before that proposed
Utilisation Date;
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"AVAILABLE FACILITY" means the aggregate for the time being of each
Lender's Available Commitment;
"BIDCO" means Rasmala Distribution (Bermuda) Limited (Co. number 31475),
a limited liability company, newly incorporated by the Parent under the
laws of Bermuda;
"BIDCO SHARE CHARGE" means the charge by the Parent over its shares in
Bidco, in favour of SHUAA Capital p.s.c.;
"BUSINESS DAY" means a day (other than a Saturday or Sunday) on which
banks are open for general business in London and New York;
"COMMITMENT" means:
(a) in relation to an Original Lender, the amount in Dollars set
opposite its name under the heading "Commitment" in Part II of
Schedule 1 (The Original Parties) and the amount of any other
Commitment transferred to it under this Agreement; and
(b) in relation to any other Lender, the amount in Dollars of any
Commitment transferred to it under this Agreement,
to the extent not cancelled, reduced or transferred by it under this
Agreement;
"COMMON SHARES" means the common shares in Target having a par value of
US$0.01 per share (being all of the outstanding shares of the Target);
"CONFIDENTIALITY UNDERTAKING" means a confidentiality undertaking in the
form of Schedule 8;
"CONTROL", in relation to a body corporate, means the right, by virtue of
holding shares in such body corporate, or by virtue of any contract or
other arrangement with any holder of shares in such body corporate, to
exercise or control the exercise of more than 50 per cent. of the total
voting rights conferred upon the holders of the entire issued share
capital for the time being of that body corporate (ignoring for this
purpose, in respect of the Parent, the share capital that would be issued
on the exercise of the Warrants) and "CONTROLLED" shall be construed
accordingly;
"DEFAULT" means an event which would (with the expiry of a grace period,
the giving of notice, the making of any determination under the Finance
Documents or any combination of any of the foregoing) be an Event of
Default;
"DEPOSITARY" means American Stock Transfer & Trust Company in its
capacity as depositary for the Offer and as paying agent for the proposed
amalgamation or compulsory acquisition relating thereto;
"DOLLARS" and "US$" mean the lawful currency for the time being of the
United States of America and in respect of all payments to be made under
this Agreement in Dollars mean funds which are for same day settlement in
the New York Clearing House Interbank Payments System (or such other
Dollar funds as may at the relevant time be customary for the settlement
of international banking transactions denominated in Dollars);
"EBITDA" means, in respect of any period and any person or the Group, the
profit on ordinary activities (consolidated in the case of the Group) of
such person or (as the case may be) the Group before Taxation for such
period:
(a) adjusted to exclude interest received or receivable and interest
paid or payable and other similar income or costs to the extent
not already excluded;
(b) adjusted to exclude any gain or loss realised on the disposal of
fixed assets (whether tangible or intangible);
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(c) after adding back any charge for the amortisation or write-off of
goodwill arising as a result of the Acquisition;
(d) after adding back any charge for amortisation of transaction costs
relating to the Acquisition and the financing thereof;
(e) after adding back the increased amount of depreciation where
additional depreciation is charged to EBITDA arising from the
write-up of the book value of assets;
(f) before deducting any exceptional or extraordinary costs and before
including exceptional or extraordinary income;
(g) after deducting any profit arising out of the release of any
provisions against a liability or charge; and
(h) before the depreciation of fixed assets.
"EVENT OF DEFAULT" means any event or circumstance specified as such in
clause 19 (Events of Default);
"FACILITY" means the term loan facility made available under this
Agreement as described in clause 2 (The Facility);
"FACILITY OFFICE" means the office or offices notified by a Lender to the
Agent in writing on or before the date it becomes a Lender (or, following
that date, by not less than ten Business Days' written notice) as the
office or offices through which it will perform its obligations under
this Agreement;
"FEE LETTER" means any letter or letters dated on or about the date of
this Agreement between the Arranger and the Parent and/or the Lenders
setting out any of the fees payable in connection with the provision or
administration of the Facility;
"FINANCE DOCUMENT" means this Agreement, the Senior Warrant Instrument,
any Fee Letter, the Security Documents and any other document designated
as such by the Agent and the Parent;
"FINANCE PARTY" means the Agent, the Arranger or a Lender;
"FINANCIAL INDEBTEDNESS" means any indebtedness for or in respect of:
(a) moneys borrowed;
(b) any amount raised by acceptance under any acceptance credit
facility;
(c) any amount raised pursuant to any note purchase facility or the
issue of bonds, notes, debentures, loan stock or any similar
instrument;
(d) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with IAS, be treated
as a finance or capital lease;
(e) receivables sold or discounted (other than any receivables to the
extent they are sold on a non-recourse basis);
(f) any amount raised under any other transaction (including any
forward sale or purchase agreement) having the commercial effect
of a borrowing;
(g) any derivative transaction entered into in connection with
protection against or benefit from fluctuation in any rate or
price (and, when calculating the value of any derivative
transaction, only the marked to market value shall be taken into
account);
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(h) any counter-indemnity obligation in respect of a guarantee,
indemnity, bond, standby or documentary letter of credit or any
other instrument issued by a bank or financial institution; and
(i) the amount of any liability in respect of any guarantee or
indemnity for any of the items referred to in paragraphs (a) to
(h) above;
"GROUP" means the Parent and its Subsidiaries for the time being;
"GUARANTOR" means Bidco and each other Subsidiary of the Parent that may
be a party to this Agreement as an Additional Guarantor at any time;
"HOLDING COMPANY" means, in relation to a company or corporation, any
other company or corporation in respect of which it is a Subsidiary;
"IAS" means International Accounting Standards as applied by the Target
as of the date of this Agreement;
"INTERCREDITOR AGREEMENT" means the intercreditor agreement dated on or
about the date of this Agreement between Capital Trust N.V., Shuaa
Capital p.s.c., the Investor and the Parent;
"INVESTOR" means Rasmala Buyout Fund L.P.;
"INVESTOR LOAN" means the loan of $5,000,000 to be made by the Investor
to the Parent on or prior to the first Utilisation Date on terms
substantially the same as the Mezzanine Facility Agreement;
"INVESTOR LOAN AGREEMENT" means the agreement between the Investor and
the Parent pursuant to which the Investor Loan is to be made, as amended
from time to time;
"LENDER" means:
(a) any Original Lender; and
(b) any bank or financial institution which has become a Party in
accordance with clause 20 (Changes to the Lenders),
which in each case has not ceased to be a Party in accordance with the
terms of this Agreement;
"LOAN" means a loan made or to be made under the Facility or the
principal amount outstanding for the time being of that loan;
"MAJORITY LENDERS" means:
(a) if there are no Loans then outstanding, a Lender or Lenders whose
Commitments aggregate more than 51 per cent. of the Total
Commitments (or, if the Total Commitments have been reduced to
zero, aggregated more than 51 per cent. of the Total Commitments
immediately prior to the reduction); or
(b) at any other time, a Lender or Lenders whose participations in the
Loans then outstanding aggregate more than 51 per cent. of all the
Loans then outstanding;
"MANAGEMENT ACCOUNTS" means the unaudited consolidated management
accounts for the Target Group comprising a balance sheet as at the last
day of the accounting period of the Target Group ending in September,
2001 and a profit and loss account for the year to date period up to such
last day;
"MATERIAL ADVERSE EFFECT" is a reference to:
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(a) something having a material adverse effect on the ability of the
Group taken as a whole to perform the material payment obligations
under any of the Finance Documents; or
(b) something having a material adverse effect on the financial
condition of the Group taken as a whole; or
(c) something (other than the Reservations or a change in law or the
interpretation of it) which results in any of the Finance
Documents not being legal, valid and binding on, and enforceable
substantially in accordance with their terms against, any of the
Obligors in a manner and to an extent reasonably considered by the
Majority Lenders to be materially adverse to the interests of the
Lenders;
"MATERIAL SUBSIDIARY" means any (x) for so long as they are members of
the Group, Aramex Emirates LLC, Aramex International Limited (Hong Kong),
Al Awsat International Transport and Arab American International Express
Company Ltd and (y) any other member of the Group:
(a) whose unconsolidated EBITDA is equal to or exceeds 5 per cent. of
the consolidated EBITDA of the Group; or
(b) whose unconsolidated net assets are equal to or exceed 5 per cent.
of the consolidated net assets of the Group; or
(c) whose unconsolidated gross revenues are equal to or exceed 5 per
cent. of the consolidated gross revenues of the Group,
as determined by reference to the Original Financial Statements or if the
company concerned has become or becomes a Subsidiary after the end of the
financial period to which the Original Financial Statements relate, the
then latest quarterly accounts of the Group delivered under clause 17.1
(Financial Statements) which include such company but so that a
certificate of the auditors that a Subsidiary of the Parent is or is not
a Material Subsidiary (in accordance with this definition) at any time
shall be conclusive and binding on the Parties;
"MEZZANINE DEBT" means all Financial Indebtedness outstanding under the
Mezzanine Facilities Agreement or the Investor Loan Agreement from time
to time and any Financial Indebtedness replacing and/or refinancing the
same or any other Financial Indebtedness ranking junior to the Senior
Debt in terms of priority of repayment pursuant to an intercreditor
agreement or otherwise;
"MEZZANINE FACILITY AGREEMENT" means the mezzanine facility agreement
dated on or about the date of this Agreement between (among others) the
Parent, Bidco and Capital Trust N.V., as the same may be replaced,
extended, restated or otherwise amended from time to time (including by
way of conversion into longer term debt);
"MEZZANINE LENDERS" means the "Lenders" as defined and referred to in the
Mezzanine Facility Agreement;
"MEZZANINE WARRANTS" means the warrants (if any) to subscribe for shares
in the Parent, representing up to 5% of the fully diluted share capital
of the Parent, to be issued to any providers or arrangers of the
Mezzanine Debt;
"MONTH" means a period starting on one day in a calendar month and ending
on the numerically corresponding day in the next calendar month, except
that:
(a) if the numerically corresponding day is not a Business Day, that
period shall end on the next Business Day in that calendar month
in which that period is to end if there is one, or if there is
not, on the immediately preceding Business Day; and
(b) if there is no numerically corresponding day in the calendar month
in which that period is to end, that period shall end on the last
Business Day in that calendar month.
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The above rules will only apply to the last month of any period;
"OBLIGOR" means the Parent or a Guarantor;
"OFFER TO PURCHASE" means the offer to purchase for cash all outstanding
Common Shares and Option Shares being made by Bidco to the shareholders
of Target in connection with the Amalgamation Agreement;
"OPTION SHARES" means Common Shares issuable in respect of Existing Stock
Options (as defined in the Amalgamation Agreement) that shall have been
conditionally exercised by the holders thereof for purposes of
participating in the Offer to Purchase;
"ORIGINAL FINANCIAL STATEMENTS" means the audited consolidated financial
statements of the Target Group for the last three financial years ended
31 December 2000 together with the Management Accounts;
"ORIGINAL LENDERS" means the financial institutions listed in Part II of
Schedule 1;
"ORIGINAL OBLIGORS" means parties listed as such in Part I of Schedule 1;
"PARENT" means Rasmala Distribution (Cayman) Limited (Co. number 112321),
an exempted company, newly incorporated with limited liability under the
laws of the Cayman Islands;
"PARENT LOAN" means the loan from the Parent to Bidco of up to
$65,000,000 entered into in connection with the Acquisition;
"PARENT LOAN ASSIGNMENT" means the assignment by way of security dated on
or about the date of this Agreement from the Parent to SHUAA Capital
p.s.c. in respect of the Parent Loan;
"PARTY" means a party to this Agreement and includes its successors in
title, permitted assigns and permitted transferees;
"PERMITTED ACQUISITION" means (a) the Acquisition, (b) an acquisition in
respect of which (i) the Parent has certified to the Agent that the Pro
Forma Leverage Ratio is not greater than 3.25:1.00 and (ii) the Arranger
has given its prior written consent (such consent not to be unreasonably
withheld or delayed, provided that for such purposes the Parent shall
provide the Arranger with such material information concerning the
proposed transaction and target that is reasonable in the circumstances
having regard to the interests of the Lenders, the size of the target,
the speed with which the acquisition needs to occur, the confidentiality
arrangements relating to the acquisition and any other reasonably
material factors and further so that such consent (or not) must be
provided by no later than four Business Days after the date on which the
Parent has provided all such information to the Arranger); and (iii) the
target business is of a substantially similar line of business as the
Target Group immediately prior to such acquisition, or (c) any other
acquisition to which the Majority Lenders have given their prior written
consent;
"PERMITTED MERGER" means (i) the merger or amalgamation (as the case may
be) between Bidco and Target, (ii) a Permitted Acquisition that is
effected by way of merger (including a subsequent merger of an entity
acquired pursuant to a Permitted Acquisition with a member of the Group
in connection with such Permitted Acquisition) and (iii) any other
merger, amalgamation, demerger or corporate reconstruction within the
Group that the Majority Lenders have previously agreed to in writing;
"PRO FORMA LEVERAGE RATIO" means, in respect of a proposed acquisition,
the ratio of (x) Total Senior Debt as of the last day of the accounting
quarter of the Group then most recently ended for which the Agent has
received financial statements pursuant to this Agreement (determined on
the basis that any Financial Indebtedness assumed or incurred pursuant to
the acquisition is included therein) to (y) EBITDA of the Group for the
period of 12 months ending on such last day (determined on the basis that
EBITDA of the business acquired for such 12 month period is included
therein);
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"REPAYMENT DATE" means the date falling six months after the first
Utilisation Date;
"REPEATING REPRESENTATIONS" means each of the representations set out in
clauses 16.1 - 16.10 (inclusive);
"RESERVATIONS" means such reservations, assumptions or qualifications as
have been made in legal opinions addressed and delivered to the pursuant
to the Finance Documents;
"RESIGNATION LETTER" means a letter substantially in the form set out in
Schedule 7 (Form of Resignation Letter)
"SECURITY DOCUMENTS" means (i) the Bidco Share Charge, (ii) the Target
Share Charge, (iii) the Parent Loan Assignment and (iv) any other
documentary evidence of any Security Interest or guarantee or indemnity
entered into for the purpose of securing, guaranteeing or assuring the
obligations under the Finance Documents;
"SECURITY INTEREST" means a mortgage, charge, pledge, lien or other
security interest securing any obligation of any person or any other
agreement or arrangement having a similar effect;
"SENIOR DEBT" means all Financial Indebtedness outstanding under this
Agreement from time to time and any Financial Indebtedness replacing
and/or refinancing the same or any other Financial Indebtedness of the
Group owing to third parties ranking pari passu (ignoring any security
therefor) therewith;
"SENIOR WARRANTS" means the detached warrants for ordinary shares
representing 0.5 per cent. of the ordinary share capital of the Parent;
"SENIOR WARRANT INSTRUMENT" means the agreed form instrument constituting
the Senior Warrants dated on or about the date of this Agreement;
"SHAREHOLDERS AGREEMENT" means the subscription and shareholder agreement
dated on or about the date of this Agreement between the Investor, ▇▇▇▇
▇▇▇▇▇▇▇▇, Champa Co-investors (Cayman) Limited and the Parent;
"SPECIFIED OFFER CIRCUMSTANCE" means any of the circumstances set out in
items (i) (but so that the reference therein to 75% shall be deemed to be
50.1%) or (ii) of the second paragraph of or paragraph (c), (d) (but so
that the reference therein to "obligations, covenants or agreements"
shall be construed as a reference to "material obligations, covenants or
agreements"), (e) or (f) of the conditions to the Offer to Purchase
comprising Exhibit A to the Amalgamation Agreement;
"SPECIFIED OFFER CONDITIONS" means, in each case, at the relevant time
(a) no Specified Offer Circumstance exists; and (b) Bidco is required to
accept for payment, or pay for, Common Shares under the terms of the
Amalgamation Agreement or the Offer to Purchase or otherwise under United
States securities laws or is obliged to pay for Common Shares pursuant to
the Voting and Tender Agreement (as defined in the Amalgamation
Agreement);
"SUBSIDIARY" of a person means any company or entity directly or
indirectly Controlled by such person;
"TARGET" means Aramex International Limited, a company organised under
the laws of Bermuda;
"TARGET GROUP" means Target and its Subsidiaries from time to time;
"TARGET SHARE CHARGE" means the charge by Bidco over its shares in
Target, in favour of SHUAA Capital p.s.c.;
7
"TAX" means any tax, levy, impost, duty or other charge or withholding of
a similar nature (including any penalty or interest payable in connection
with any failure to pay or any delay in paying any of the same);
"TOTAL COMMITMENTS" means the aggregate of the Commitments being
US$30,000,000 at the date of this Agreement;
"TOTAL SENIOR DEBT" means, at any time, the aggregate amount of Senior
Debt of members of the Group owing to third parties at such time (and for
avoidance of doubt excluding any Mezzanine Debt);
"TRANSFER CERTIFICATE" means a certificate substantially in the form set
out in Schedule 4 (Form of Transfer Certificate) or any other form agreed
between the Agent and the Parent;
"TRANSFER DATE" means, in relation to a transfer, the later of:
(a) the proposed Transfer Date specified in the Transfer Certificate;
and
(b) the date on which the Agent executes the Transfer Certificate.
"UNPAID SUM" means any sum due and payable but unpaid by an Obligor under
the Finance Documents;
"UTILISATION" means a utilisation of the Facility;
"UTILISATION DATE" means the date of a Utilisation, being the date on
which the relevant Loan is to be made;
"UTILISATION REQUEST" means a notice substantially in the form set out in
Schedule 3 (Utilisation Request);
"VAT" means value added tax as provided for in the Value Added Tax ▇▇▇
▇▇▇▇ and any other tax of a similar nature; and
"WARRANTS" means the Mezzanine Warrants and the Senior Warrants.
1.2 CONSTRUCTION
1.2.1 Any reference in this Agreement to:
(a) "ASSETS" includes present and future properties, revenues and
rights of every description;
(b) a "FINANCE DOCUMENT" or any other agreement or instrument is a
reference to that Finance Document or other agreement or
instrument as amended or novated;
(c) "INDEBTEDNESS" includes any obligation (whether incurred as
principal or as surety) for the payment or repayment of money,
whether present or future, actual or contingent;
(d) a "PERSON" includes any person, firm, company, corporation,
government, state or agency of a state or any association, trust
or partnership (whether or not having separate legal personality)
or two or more of the foregoing;
(e) a "REGULATION" includes any regulation, rule, official directive,
request or guideline (whether or not having the force of law) of
any governmental, intergovernmental or supranational body, agency,
department or regulatory, self-regulatory or other authority or
organisation;
(f) a provision of law is a reference to that provision as amended or
re-enacted; and
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(g) unless a contrary indication appears, a time of day is a reference
to London time.
1.2.2 Section, clause and Schedule headings are for ease of reference only.
1.2.3 References to this "Agreement" include this Agreement as the same may be
replaced, extended, restated or otherwise amended from time to time
(including by way of conversion into longer term debt).
1.2.4 Unless a contrary indication appears, a term used in any other Finance
Document or in any notice given under or in connection with any Finance
Document has the same meaning in that Finance Document or notice as in
this Agreement.
1.2.5 A Default or an Event of Default is "CONTINUING" if it has not been
remedied or waived.
1.3 RIGHTS UNDER THE CONTRACTS (RIGHTS OF THIRD PARTIES ) ▇▇▇ ▇▇▇▇
1.3.1 Except as provided in a Finance Document, the terms of a Finance Document
may be enforced only by a party to it and the operation of the Contracts
(Rights of Third Parties) ▇▇▇ ▇▇▇▇ is excluded.
1.3.2 Notwithstanding any provision of any Finance Document, the Parties to a
Finance Document do not require the consent of any third party to rescind
or vary any Finance Document at any time.
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SECTION 2: THE FACILITY
2 THE FACILITY
2.1 THE FACILITY
2.1.1 Subject to the terms of this Agreement, the Lenders make available to the
Parent a term loan facility in an aggregate amount equal to the Total
Commitments.
2.1.2 To the extent that less than 75% of the total number of outstanding
Common Shares of the Target on a fully diluted basis (including Option
Shares) on the date of purchase have been properly tendered and not
properly withdrawn the Commitment of each Lender shall be reduced pro
rata (by the same proportion by which the actual number of such Common
Shares (including Option Shares) properly tendered and not properly
withdrawn is less than 75%; such that at a level of 60% the reduction
would be one-fifth).
2.2 LENDERS' RIGHTS AND OBLIGATIONS
2.2.1 The obligations of each Lender under the Finance Documents are several.
Failure by a Lender to perform its obligations under the Finance
Documents does not affect the obligations of any other Party under the
Finance Documents. No Finance Party is responsible for the obligations of
any other Finance Party under the Finance Documents.
2.2.2 The rights of each Lender under or in connection with the Finance
Documents are separate and independent rights and any debt arising under
the Finance Documents to a Lender from an Obligor shall be a separate and
independent debt.
2.2.3 A Finance Party may, except as otherwise stated in the Finance Documents,
separately enforce its rights under the Finance Documents.
3 PURPOSE
3.1 PURPOSE
The Parent shall apply all amounts borrowed by it under the Facility
towards financing part of the Acquisition, including the payment of fees
and expenses incurred in connection with the Acquisition.
3.2 MONITORING
No Finance Party is bound to monitor or verify the application of any
amount borrowed pursuant to this Agreement.
4 CONDITIONS OF UTILISATION
4.1 INITIAL CONDITIONS PRECEDENT
The Parent may not deliver a Utilisation Request unless the Agent has
received all of the documents and other evidence listed in part I of
Schedule 2 (Conditions precedent) in form and substance satisfactory to
the Agent. The Agent shall notify the Parent and the Lenders promptly
upon being so satisfied.
4.2 FURTHER CONDITIONS PRECEDENT
The Lenders will only be obliged to comply with clause 5.4 (Lenders'
participation) if on the date of the first Utilisation Request and on the
proposed first Utilisation Date the Specified Offer Conditions are
satisfied as of such date.
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SECTION 3: UTILISATION
5 UTILISATION
5.1 DELIVERY OF A UTILISATION REQUEST
The Parent may utilise the Facility by delivery to the Agent of a duly
completed Utilisation Request not later than 10.00 a.m. (Dubai time) on
the proposed Utilisation Date or, in the case of the first Utilisation,
10.00 a.m. (Dubai time) on the Business Day prior to the proposed first
Utilisation Date.
5.2 COMPLETION OF A UTILISATION REQUEST
5.2.1 Each Utilisation Request is irrevocable and will not be regarded as
having been duly completed unless the proposed Utilisation Date is a
Business Day within the Availability Period.
5.2.2 Only one Loan may be requested in each Utilisation Request.
5.3 CURRENCY AND AMOUNT
5.3.1 The currency specified in a Utilisation Request must be Dollars.
5.3.2 The amount of the proposed Loan must be a minimum of US$100,000 or, if
less, the Available Facility or any other amount agreed with the Agent.
5.4 LENDERS' PARTICIPATION
5.4.1 If the conditions set out in this Agreement have been met, each Lender
shall make its participation in each Loan available through its Facility
Office.
5.4.2 The amount of each Lender's participation in each Loan will be equal to
the proportion borne by its Available Commitment to the Available
Facility immediately prior to making the Loan.
5.4.3 The Agent shall notify each Lender of the amount of each Loan by 12 noon
on the Utilisation Date or, in the case of the first Utilisation, 12 noon
on the Business Day prior to the proposed first Utilisation Date.
5.5 PAYMENTS TO DEPOSITARY
The Parent shall specify in the initial Utilisation Request that the
proceeds of that Loan are to be paid directly to the Depositary in
respect of the Offer to Purchase on behalf of Bidco. Any such payment
shall be deemed to constitute the making of such Loan to the Parent, the
on-lending of the proceeds thereof to Bidco and the payment by Bidco of
such amount to such Depositary in satisfaction of its corresponding
obligations in respect of the Offer to Purchase.
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SECTION 4: REPAYMENT, PREPAYMENT AND CANCELLATION
6 REPAYMENT
6.1 REPAYMENT OF LOANS
The Parent shall repay the Loans in full on the Repayment Date.
6.2 REBORROWING
The Parent may not reborrow any part of the Facility which is repaid.
7 PREPAYMENT AND CANCELLATION
7.1 ILLEGALITY
If it becomes unlawful in any jurisdiction for a Lender to perform any of
its obligations as contemplated by this Agreement or to fund its
participation in any Loan:
7.1.1 that Lender shall promptly notify the Agent upon becoming aware of that
event;
7.1.2 upon the Agent notifying the Parent, the Commitment of that Lender will
be immediately cancelled; and
the Parent shall repay that Lender's participation in the Loans made to
the Parent on the date specified by the Lender in the notice delivered to
the Agent (being no earlier than the last day of any applicable grace
period permitted by law).
7.2 MANDATORY PREPAYMENT
If (x) the Investor ceases to Control the Parent or the Parent ceases to
Control Bidco or Bidco ceases to Control Target (other than pursuant to a
merger or amalgamation of Bidco and Target) and/or (y) all or
substantially all of the business of Target is disposed of:
7.2.1 the Parent shall promptly notify the Agent upon becoming aware of that
event; and
7.2.2 if the Majority Lenders so require, the Agent shall, by not less than 15
days notice to the Parent, cancel the Facility and declare all
outstanding Loans, together with accrued interest, and all other amounts
accrued under the Finance Documents immediately due and payable,
whereupon the Facility will be cancelled and all such outstanding amounts
will become immediately due and payable.
7.3 VOLUNTARY CANCELLATION
The Parent may, if it gives the Agent not less than seven Business Days'
(or such shorter period as the Majority Lenders may agree) prior notice,
cancel the whole or any part (being a minimum amount of US$1,000,000 and
a multiple of US$500,000) of the Available Facility. Any cancellation
under this clause 7.3 shall reduce the Commitments of the Lenders
rateably.
7.4 VOLUNTARY PREPAYMENT OF LOANS
The Parent, to the extent a Loan has been made to it, may, if it gives
the Agent not less than seven Business Days' (or such shorter period as
the Majority Lenders may agree) prior notice, prepay the whole or any
part of any Loan (but, if in part, being an amount that reduces the Loan
by a minimum amount of US$1,000,000 and a multiple of US$500,000).
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7.5 RIGHT OF REPAYMENT AND CANCELLATION IN RELATION TO A SINGLE LENDER
7.5.1 If:
(a) any sum payable to any Lender by an Obligor is required to be
increased under clause 10.2.3 (Tax gross-up); or
(b) any Lender claims indemnification from the Parent under clause
10.3 (Tax indemnity) or clause 11 (Increased costs),
the Parent may, whilst the circumstance giving rise to the requirement
for indemnification continues, give the Agent notice of cancellation of
the Commitment of that Lender and its intention to procure the repayment
of that Lender's participation in the Loans.
7.5.2 On receipt of a notice referred to in clause 7.5.1 above, the Commitment
of that Lender shall immediately be reduced to zero and the Parent, to
the extent a Loan is outstanding, shall promptly (or if not a Business
Day, on the next Business Day) repay that Lender's participation in that
Loan.
7.6 RESTRICTIONS
7.6.1 Any notice of cancellation or prepayment given by any Party under this
clause 7 shall be irrevocable and, unless a contrary indication appears
in this Agreement, shall specify the date or dates upon which the
relevant cancellation or prepayment is to be made and the amount of that
cancellation or prepayment.
7.6.2 Any prepayment under this Agreement shall be made together with accrued
interest on the amount prepaid and without premium or penalty.
7.6.3 The Parent may not reborrow any part of the Facility which is prepaid.
7.6.4 The Parent shall not repay or prepay all or any part of the Loans or
cancel all or any part of the Commitments except at the times and in the
manner expressly provided for in this Agreement.
7.6.5 No amount of the Total Commitments cancelled under this Agreement may be
subsequently reinstated.
7.6.6 If the Agent receives a notice under this clause 7 it shall promptly
forward a copy of that notice to either the Parent or the affected
Lender, as appropriate.
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SECTION 5: COSTS OF UTILISATION
8 INTEREST
8.1 CALCULATION OF INTEREST
The rate of interest on each Loan is 9.25 per cent. per annum.
8.2 PAYMENT OF INTEREST
The Parent shall pay accrued interest on each Loan on the Repayment Date.
8.3 DEFAULT INTEREST
8.3.1 If an Obligor fails to pay any amount payable by it under a Finance
Document on its due date, interest shall accrue on the overdue amount
from the due date up to the date of actual payment (both before and after
judgement) at a rate two per cent. higher than the rate which would have
been payable if the overdue amount had, during the period of non-payment,
constituted a Loan. Any interest accruing under this clause 8.3 shall be
immediately payable by the Obligor on demand by the Agent.
8.3.2 Default interest (if unpaid) arising on an overdue amount will be
compounded with the overdue amount at the Repayment Date but will remain
immediately due and payable.
9 ARRANGEMENT FEE
The Parent shall pay to the Arranger an arrangement fee in the amount and
at the times agreed in a Fee Letter.
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SECTION 6: ADDITIONAL PAYMENT OBLIGATIONS
10 TAX GROSS UP AND INDEMNITIES
10.1 DEFINITIONS
10.1.1 In this clause 10:
"PROTECTED PARTY" means a Finance Party which is or will be, for or on
account of Tax, subject to any liability or required to make any payment
in relation to a sum received or receivable (or any sum deemed for the
purposes of Tax to be received or receivable) under a Finance Document.
"TAX CREDIT" means a credit against, relief or remission for, or
repayment of any Tax.
"TAX DEDUCTION" means a deduction or withholding for or on account of Tax
from a payment under a Finance Document.
"TAX PAYMENT" means an increased payment made by an Obligor to a Finance
Party under clause 10.2 (Tax gross-up) or a payment under clause 10.3
(Tax indemnity).
10.1.2 In this clause 10 a reference to "determines" or "determined" means a
determination made in the absolute discretion of the person making the
determination.
10.2 TAX GROSS-UP
10.2.1 Each Obligor shall make all payments to be made by it without any Tax
Deduction, unless a Tax Deduction is required by law.
10.2.2 The Parent or a Lender shall promptly upon becoming aware that an Obligor
must make a Tax Deduction (or that there is any change in the rate or the
basis of a Tax Deduction) notify the Agent accordingly. If the Agent
receives such notification from a Lender it shall notify the Parent and
that Obligor.
10.2.3 If a Tax Deduction is required by law to be made by an Obligor the amount
of the payment due from that Obligor shall be increased to an amount
which (after making any Tax Deduction) leaves an amount equal to the
payment which would have been due if no Tax Deduction had been required.
10.2.4 If an Obligor is required to make a Tax Deduction, that Obligor shall
make that Tax Deduction and any payment required in connection with that
Tax Deduction within the time allowed and in the minimum amount required
by law.
10.2.5 Within thirty days of making either a Tax Deduction or any payment
required in connection with that Tax Deduction, the Obligor making that
Tax Deduction shall deliver to the Agent for the Finance Party entitled
to the payment evidence reasonably satisfactory to that Finance Party
that the Tax Deduction has been made or (as applicable) any appropriate
payment paid to the relevant taxing authority.
10.3 TAX INDEMNITY
10.3.1 The Parent shall (within three Business Days of demand by the Agent) pay
to a Protected Party an amount equal to the loss, liability or cost which
that Protected Party determines will be or has been (directly or
indirectly) suffered for or on account of Tax by that Protected Party.
15
10.3.2 Clause 10.3.1 above shall not apply with respect to any Tax assessed on a
Finance Party:
(a) under the law of the jurisdiction in which that Finance Party is
incorporated or, if different, the jurisdiction (or jurisdictions)
in which that Finance Party is treated as resident for tax
purposes; or
(b) under the law of the jurisdiction in which that Finance Party's
Facility Office is located in respect of amounts received or
receivable in that jurisdiction,
if that Tax is imposed on or calculated by reference to the net income
received or receivable (but not any sum deemed to be received or
receivable) by that Finance Party.
10.3.3 A Protected Party making, or intending to make a claim pursuant to clause
10.3.1 above shall promptly notify the Agent of the event which will
give, or has given, rise to the claim, following which the Agent shall
notify the Parent.
10.3.4 A Protected Party shall, on receiving a payment from an Obligor under
this clause 10.3, notify the Agent.
10.4 TAX CREDIT
10.4.1 If an Obligor makes a Tax Payment and the relevant Finance Party
determines reasonably that:
(a) a Tax Credit is attributable to that Tax Payment; and
(b) that Finance Party has obtained, utilised and retained that Tax
Credit,
the Finance Party shall pay an amount to the Obligor which that Finance
Party determines will leave it (after that payment) in the same after-Tax
position as it would have been in had the Tax Payment not been made by
the Obligor.
10.5 STAMP TAXES
The Parent shall pay and, within three Business Days of demand, indemnify
each Finance Party against any cost, loss or liability that Finance Party
incurs in relation to all stamp duty, registration and other similar
Taxes payable in respect of any Finance Document.
10.6 VALUE ADDED TAX
10.6.1 All consideration payable under a Finance Document by an Obligor to a
Finance Party shall be deemed to be exclusive of any VAT. If VAT is
chargeable, the Obligor shall pay to the Finance Party (in addition to
and at the same time as paying the consideration) an amount equal to the
amount of the VAT.
10.6.2 Where a Finance Document requires an Obligor to reimburse a Finance Party
for any costs or expenses, that Obligor shall also at the same time pay
and indemnify that Finance Party against all VAT incurred by that Finance
Party in respect of the costs or expenses save to the extent that that
Finance Party is entitled to repayment or credit in respect of the VAT.
11 INCREASED COSTS
11.1 INCREASED COSTS
11.1.1 Subject to clause 11.3 (Exceptions) the Parent shall, within three
Business Days of a demand by the Agent, pay for the account of a Finance
Party the amount of any Increased Costs incurred by that Finance Party or
any of its Affiliates as a result of (i) the introduction of or any
change in (or in the interpretation or application of) any law or
regulation or (ii) compliance with any law or regulation made after the
date of this Agreement.
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11.1.2 In this Agreement "INCREASED COSTS" means:
(a) a reduction in the rate of return from the Facility or on a
Finance Party's (or its Affiliate's) overall capital;
(b) an additional or increased cost; or
(c) a reduction of any amount due and payable under any Finance
Document,
which is incurred or suffered by a Finance Party or any of its Affiliates
to the extent that it is attributable to that Finance Party having
entered into its Commitment or funding or performing its obligations
under any Finance Document.
11.2 INCREASED COST CLAIMS
11.2.1 A Finance Party intending to make a claim pursuant to clause 11
(Increased costs) shall notify the Agent of the event giving rise to the
claim, following which the Agent shall promptly notify the Parent.
11.2.2 Each Finance Party shall, as soon as practicable after a demand by the
Agent, provide a certificate confirming the amount of its Increased
Costs.
11.3 EXCEPTIONS
11.3.1 Clause 11 (Increased costs) does not apply to the extent any Increased
Cost is:
(a) attributable to a Tax Deduction required by law to be made by an
Obligor;
(b) compensated for by clause 10.3 (Tax indemnity) (or would have been
compensated for under clause 10.3 (Tax indemnity) but was not so
compensated solely because one of the exclusions in clause 10.3
(Tax indemnity) applied); or
(c) attributable to the wilful breach by the relevant Finance Party or
its Affiliates of any material law or regulation.
11.3.2 In this clause 11.3, a reference to a "TAX DEDUCTION" has the same
meaning given to the term in clause 10.1 (Definitions).
12 OTHER INDEMNITIES
12.1 CURRENCY INDEMNITY
12.1.1 If any sum due from an Obligor under the Finance Documents (a "SUM"), or
any order, judgement or award given or made in relation to a Sum, has to
be converted from the currency (the "FIRST CURRENCY") in which that Sum
is payable into another currency (the "SECOND CURRENCY") for the purpose
of:
(a) making or filing a claim or proof against that Obligor;
(b) obtaining or enforcing an order, judgement or award in relation to
any litigation or arbitration proceedings,
that Obligor shall as an independent obligation, within three Business
Days of demand, indemnify each Finance Party to whom that Sum is due
against any cost, loss or liability arising out of or as a result of the
conversion including any discrepancy between (A) the rate of exchange
used to convert that Sum from the First Currency into the Second Currency
and (B) the rate or rates of exchange available to that person at the
time of its receipt of that Sum.
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12.1.2 Each Obligor waives any right it may have in any jurisdiction to pay any
amount under the Finance Documents in a currency or currency unit other
than that in which it is expressed to be payable.
12.2 OTHER INDEMNITIES
12.2.1 The Parent shall (or shall procure that an Obligor will), within five
Business Days of demand, indemnify each Lender against any cost, loss or
liability reasonably incurred by that Lender as a result of:
(a) the occurrence of any Event of Default;
(b) a failure by an Obligor to pay any amount due under a Finance
Document on its due date, including without limitation, any cost,
loss or liability arising as a result of clause 24 (Sharing among
the Lenders);
(c) funding, or making arrangements to fund, its participation in a
Loan requested by a Parent in a Utilisation Request but not made
by reason of the operation of any one or more of the provisions of
this Agreement (other than by reason of default or negligence by
that Lender alone); or
(d) a Loan (or part of a Loan) not being prepaid in accordance with a
notice of prepayment given by the Parent.
12.3 INDEMNITY TO THE AGENT
12.3.1 The Parent shall promptly indemnify the Agent against any cost, loss or
liability incurred by the Agent (acting reasonably) as a result of:
(a) investigating any event which it reasonably believes is an Event
of Default; or
(b) acting or relying on any notice, request or instruction which it
reasonably believes to be genuine, correct and appropriately
authorised.
13 MITIGATION BY THE LENDERS
13.1 MITIGATION
13.1.1 Each Finance Party shall, in consultation with the Parent, take all
reasonable steps to mitigate any circumstances which arise and which
would result in any amount becoming payable under, or cancelled pursuant
to, any of clause 7.1 (Illegality), clause 10 (Tax gross-up and
indemnities) or clause 11 (Increased costs) including (but not limited
to) transferring its rights and obligations under the Finance Documents
to another Affiliate or Facility Office.
13.1.2 Clause 13.1.1 above does not in any way limit the obligations of any
Obligor under the Finance Documents.
13.2 LIMITATION OF LIABILITY
13.2.1 The Parent shall indemnify each Finance Party for all costs and expenses
reasonably incurred by that Finance Party as a result of steps taken by
it under clause 13.1 (Mitigation).
13.2.2 A Finance Party is not obliged to take any steps under clause 13.1
(Mitigation) if, in the opinion of that Finance Party (acting
reasonably), to do so would be prejudicial to it.
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14 COSTS AND EXPENSES
14.1 TRANSACTION EXPENSES
The Parent shall promptly on demand pay the Agent and the Arranger the
reasonable costs and expenses of the Agent and the Arranger, including
legal fees, travel costs and other costs of diligence reasonably incurred
in the preparation, negotiation and syndication of the Facility.
14.2 AMENDMENT COSTS
If an Obligor requests an amendment, waiver or consent, the Parent shall,
within three Business Days of demand, reimburse the Agent for the amount
of all reasonable costs and expenses (including legal fees) reasonably
incurred by the Agent in responding to, evaluating, negotiating or
complying with that request.
14.3 ENFORCEMENT COSTS
The Parent shall, within five Business Days of demand, pay to each
Finance Party the amount of all reasonable costs and expenses (including
legal fees) reasonably incurred by that Finance Party in connection with
the enforcement of, or the preservation of any rights under, any Finance
Document.
19
SECTION 7: GUARANTEE
15 GUARANTEE AND INDEMNITY
15.1 GUARANTEE AND INDEMNITY
15.1.1 Each Guarantor irrevocably and unconditionally jointly and severally:
(a) guarantees to each Finance Party punctual performance by the
Parent of all the Parent's obligations under the Finance
Documents;
(b) undertakes with each Finance Party that whenever the Parent does
not pay any amount when due under or in connection with any
Finance Document, it shall immediately on demand pay that amount
as if it was the principal obligor; and
(c) indemnifies each Finance Party immediately on demand against any
cost, loss or liability suffered by that Finance Party if any
obligation guaranteed by it is or becomes unenforceable, invalid
or illegal. The amount of the cost, loss or liability shall be
equal to the amount which that Finance Party would otherwise have
been entitled to recover.
Provided that the obligations of each Guarantor referred to above shall
not extend to any amount to the extent that to do so would be in breach
of applicable laws (including relating to financial assistance) binding
on such Guarantor provided that such Guarantor shall have taken any
requisite procedural steps in order to avoid or mitigate any such breach
including, in the case of financial assistance, the requisite
determination of solvency.
15.2 CONTINUING GUARANTEE
This guarantee is a continuing guarantee and will extend to the ultimate
balance of sums payable by any Obligor under the Finance Documents,
regardless of any intermediate payment or discharge in whole or in part.
15.3 REINSTATEMENT
15.3.1 If any payment by an Obligor or any discharge given by a Finance Party
(whether in respect of the obligations of any Obligor or any security for
those obligations or otherwise) is avoided or reduced as a result of
insolvency or any similar event:
(a) the liability of each Obligor shall continue as if the payment,
discharge, avoidance or reduction had not occurred; and
(b) each Finance Party shall be entitled to recover the value or
amount of that security or payment from each Obligor, as if the
payment, discharge, avoidance or reduction had not occurred.
15.4 WAIVER OF DEFENCES
15.4.1 The obligations of each Guarantor under this clause 15 will not be
affected by an act, omission, matter or thing which, but for this clause,
would reduce, release or prejudice any of its obligations under this
clause 15 (without limitation and whether or not known to it or any
Finance Party) including:
(a) any time, waiver or consent granted to, or composition with, any
Obligor or other person;
(b) the release of any other Obligor or any other person under the
terms of any composition or arrangement with any creditor of any
Obligor or Material Subsidiary;
20
(c) the taking, variation, compromise, exchange, renewal or release
of, or refusal or neglect to perfect, take up or enforce, any
rights against, or security over assets of, any Obligor or other
person or any non-presentation or non-observance of any formality
or other requirement in respect of any instrument or any failure
to realise the full value of any security;
(d) any incapacity or lack of power, authority or legal personality of
or dissolution or change in the members or status of an Obligor or
any other person;
(e) any amendment (however fundamental) or replacement of a Finance
Document or any other document or security;
(f) any unenforceability, illegality or invalidity of any obligation
of any person under any Finance Document or any other document or
security; or
(g) any insolvency or similar proceedings.
15.5 IMMEDIATE RECOURSE
Each Guarantor waives any right it may have of first requiring any
Finance Party (or any trustee or agent on its behalf) to proceed against
or enforce any other rights or security or claim payment from any person
before claiming from that Guarantor under this clause 15. This waiver
applies irrespective of any law or any provision of a Finance Document to
the contrary.
15.6 APPROPRIATIONS
15.6.1 Until all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably paid in
full, each Finance Party (or any trustee or agent on its behalf) may:
(a) refrain from applying or enforcing any other moneys, security or
rights held or received by that Finance Party (or any trustee or
agent on its behalf) in respect of those amounts, or apply and
enforce the same in such manner and order as it sees fit (whether
against those amounts or otherwise) and no Guarantor shall be
entitled to the benefit of the same; and
(b) hold in an interest-bearing suspense account any moneys received
from any Guarantor or on account of any Guarantor's liability
under this clause 15.
15.7 DEFERRAL OF GUARANTORS' RIGHTS
15.7.1 Until all amounts which may be or become payable by the Obligors under or
in connection with the Finance Documents have been irrevocably paid in
full and unless the Agent otherwise directs, no Guarantor will exercise
any rights which it may have by reason of performance by it of its
obligations under the Finance Documents:
(a) to be indemnified by an Obligor;
(b) to claim any contribution from any other guarantor of any
Obligor's obligations under the Finance Documents; and/or
(c) to take the benefit (in whole or in part and whether by way of
subrogation or otherwise) of any rights of the Finance Parties
under the Finance Documents or of any other guarantee or security
taken pursuant to, or in connection with, the Finance Documents by
any Finance Party.
15.8 ADDITIONAL SECURITY
This guarantee is in addition to and is not in any way prejudiced by any
other guarantee or Security Interest now or subsequently held by any
Finance Party.
21
SECTION 8: REPRESENTATIONS, UNDERTAKINGS AND EVENTS OF DEFAULT
16 REPRESENTATIONS
Each Original Obligor makes the representations and warranties set out in
this clause 16 to each Finance Party on the date of this Agreement.
16.1 STATUS
16.1.1 It and each of the Material Subsidiaries is a corporation, duly
incorporated and validly existing under the law of its jurisdiction of
incorporation.
16.1.2 It and each of the Material Subsidiaries has the power to own its assets
and carry on its business as it is being conducted and is envisaged to be
conducted after the Acquisition.
16.2 BINDING OBLIGATIONS
The material obligations expressed to be assumed by it in each Finance
Document are, subject to the Reservations and other general principles of
law limiting its obligations which are specifically referred to in any
legal opinion delivered pursuant to clause 4 (Conditions of Utilisation)
or clause 21 (Changes to the Obligors), legal, valid, binding and
enforceable obligations.
16.3 NON-CONFLICT WITH OTHER OBLIGATIONS
16.3.1 The entry into and performance by it of, and the transactions
contemplated by, the Finance Documents do not and will not conflict with:
(a) any law or regulation applicable to it;
(b) the constitutional documents of it or any Material Subsidiary; or
(c) any agreement or instrument binding upon it or any Material
Subsidiary or any of its or any Material Subsidiary's material
assets.
16.4 POWER AND AUTHORITY
It has the power to enter into, perform and deliver, and has taken all
necessary action to authorise its entry into, performance and delivery
of, the Finance Documents to which it is a party and the transactions
contemplated by those Finance Documents.
16.5 VALIDITY AND ADMISSIBILITY IN EVIDENCE
16.5.1 All Authorisations required:
(a) to enable it lawfully to enter into, exercise its rights and
comply with its obligations in the Finance Documents to which it
is a party; and
(b) to make the Finance Documents to which it is a party admissible in
evidence in its jurisdiction of incorporation,
have been obtained or effected and are in full force and effect.
16.6 GOVERNING LAW AND ENFORCEMENT
Subject to the Reservations:
16.6.1 the choice of English law as the governing law of the relevant Finance
Documents will be recognised and enforced in its jurisdiction of
incorporation; and
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16.6.2 any judgement obtained in England in relation to a Finance Document
will be recognised and enforced in its jurisdiction of incorporation.
16.7 DEDUCTION OF TAX
Subject to the Reservations, it is not required under the law of its
jurisdiction of incorporation to make any deduction for or on account
of Tax from any payment it may make under any Finance Document.
16.8 NO FILING OR STAMP TAXES
Subject to the Reservations, under the laws of its jurisdiction of
incorporation it is not necessary that the Finance Documents be filed,
recorded or enrolled with any court or other authority in that
jurisdiction or that any stamp, registration or similar tax be paid on
or in relation to the Finance Documents or the transactions
contemplated by the Finance Documents.
16.9 NO DEFAULT
16.9.1 No Event of Default is continuing or would reasonably be expected to
result from the making of any Utilisation.
16.9.2 No other event or circumstance is outstanding which constitutes a
default under any other material agreement or instrument which is
binding on it or to which its material assets are subject which would
reasonably be expected to have a Material Adverse Effect.
16.10 PARI PASSU RANKING
Its payment obligations under the Finance Documents rank at least pari
passu with the claims of all its other unsecured and unsubordinated
creditors, except for obligations mandatorily preferred by law
applying to companies in its jurisdictions generally.
16.11 ORIGINAL FINANCIAL STATEMENTS
16.11.1 The Original Financial Statements were prepared in accordance with IAS
consistently applied (except as may be indicated in the notes
thereto).
16.11.2 The Original Financial Statements fairly present the consolidated
financial position of the Target Group as of their respective dates
or, as applicable, during the relevant period to which they refer
(except that the September 2001 management accounts are subject to
normal year-end adjustments which are not likely to be materially
adverse to the Target Group taken as a whole).
16.12 NO PROCEEDINGS PENDING OR THREATENED
No litigation, arbitration or administrative proceedings of or before
any court, arbitral body or agency which is not frivolous, vexatious
or an abuse of the court's process or commenced for nuisance purposes
and which, if adversely determined, would reasonably be likely to have
a Material Adverse Effect have (so far as the Parent is aware) been
started or threatened against it or any of its Material Subsidiaries.
16.13 REPETITION
16.13.1 The Repeating Representations are deemed to be made by each Obligor by
reference to the facts and circumstances then existing on:
(a) the date of each Utilisation Request; and
(b) in the case of an Additional Guarantor, the day on which it
becomes (or it is proposed that the company becomes) an
Additional Guarantor.
23
17 INFORMATION UNDERTAKINGS
The undertakings in this clause 17 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
17.1 FINANCIAL STATEMENTS
Following the date on which Bidco has Control of the Target, the Parent
shall supply to the Agent in sufficient copies for all the Lenders
unaudited consolidated quarterly management accounts for (a) the Group
and (b) the Target Group as soon as the same become available, but
(other than the December 2001 accounts) in any event within 30 days
after the end of each period to which such statements refer. Such
management accounts shall include the management accounts for the 12
months ending 31 December 2001.
17.2 REQUIREMENTS AS TO FINANCIAL STATEMENTS
17.2.1 Each set of financial statements delivered by the Parent pursuant to
clause 17.1 (Financial statements) shall be certified by a director of
the Parent as fairly and accurately representing the Group's financial
condition as at the date as at which those financial statements were
drawn up.
17.3 INFORMATION: MISCELLANEOUS
17.3.1 The Parent shall supply to the Agent:
(a) all documents dispatched by the Parent to its shareholders (or
any class of them) or its creditors generally at the same time
as they are dispatched or within reasonable time thereafter;
(b) upon becoming aware of them, the details of any litigation,
arbitration or administrative proceedings which are current,
threatened or pending against any Obligor or any Material
Subsidiary (which is not frivolous, vexatious or an abuse of the
court's process or commenced for nuisance purposes) and which
would reasonably be expected to, if adversely determined, have a
Material Adverse Effect; and
(c) such further information regarding the financial condition of an
Obligor or any Material Subsidiary as any Finance Party (through
the Agent) may reasonably request.
17.3.2 Until full payment of all sums due under this Agreement from Parent to
the Arranger, the Agent or any Lender, the Agent shall be entitled to
receive notice of and to attend all board meetings of Parent, Bidco,
Target and any entity resulting from the merger or amalgamation of Bidco
and Target, and to receive all materials distributed to board members.
17.4 NOTIFICATION OF DEFAULT
Each Obligor shall notify the Agent of any Default (and the steps, if
any, being taken to remedy it) promptly upon becoming aware of its
occurrence (unless that Obligor is aware that a notification has already
been provided by another Obligor).
18 GENERAL UNDERTAKINGS
The undertakings in this clause 18 remain in force from the date of this
Agreement for so long as any amount is outstanding under the Finance
Documents or any Commitment is in force.
18.1 AUTHORISATIONS
18.1.1 Each Obligor shall:
24
(a) obtain, comply with and do all that is reasonably necessary to
maintain in full force and effect; and
(b) supply certified copies to the Agent of,
any Authorisation required under any law or regulation of its
jurisdiction of incorporation to enable it to perform its material
obligations under the Finance Documents and to ensure the legality,
validity, enforceability or admissibility in evidence in its
jurisdiction of incorporation of any Finance Document.
18.2 COMPLIANCE WITH LAWS
Each Obligor shall comply in all respects with all laws to which it may
be subject, if failure so to comply would be reasonably likely to result
in a Material Adverse Effect.
18.3 NEGATIVE PLEDGE
18.3.1 No Obligor shall (and the Parent shall ensure that no Material
Subsidiary will) create or permit to subsist any Security Interest over
any of its assets.
18.3.2 No Obligor shall (and the Parent shall ensure that no Material
Subsidiary will):
(a) sell, transfer or otherwise dispose of any of its assets on
terms whereby they are or may be leased to or re-acquired by
such Obligor or Material Subsidiary;
(b) sell, transfer or otherwise dispose of any of its receivables on
recourse terms;
(c) enter into any arrangement under which money or the benefit of a
bank or other account may be applied, set-off or made subject to
a combination of accounts; or
(d) enter into any other preferential arrangement having a similar
effect,
in circumstances where the arrangement or transaction is entered into
primarily as a method of raising Financial Indebtedness or of financing
the acquisition of an asset.
18.3.3 Clauses 18.3.1 and 18.3.2 above do not apply to:
(a) any Security Interest listed in Schedule 5 (Existing Security
Interest) except to the extent the principal amount secured by
that Security Interest exceeds the amount stated in that
Schedule;
(b) any netting or set-off arrangement entered into by any of the
Obligors or any Subsidiary in the ordinary course of its banking
arrangements for the purpose of netting debit and credit
balances;
(c) any lien arising by operation of law and in the ordinary course
of trading;
(d) any Security Interest over or affecting any asset acquired by
any of the Obligors or any member of the Group after the date of
this Agreement if:
(i) the Security Interest was not created in contemplation
of the acquisition of that asset by any of the Obligors
or any member of the Group;
(ii) the principal amount secured has not been increased in
contemplation of, or since the acquisition of that asset
by any of the Obligors or any member of the Group; and
(iii) (other than in respect of an asset acquired pursuant to
a Permitted Acquisition) the Security Interest is
removed or discharged within three months of the date of
acquisition of such asset;
25
(e) any Security Interest over or affecting any asset of any company
which becomes a Material Subsidiary after the date of this
Agreement, where the Security Interest is created prior to the
date on which that company becomes a Material Subsidiary, if:
(i) the Security Interest was not created in contemplation
or as a direct or indirect result of the acquisition of
that company;
(ii) the principal amount secured has not increased in
contemplation or as a direct or indirect result of or
since the acquisition of that company; and
(iii) the Security Interest is removed or discharged within
six months of that company becoming a Material
Subsidiary;
(f) any Security Interest securing the Senior Debt or (otherwise)
for the benefit of any of the Finance Parties;
(g) any Security Interest arising under the "Security Documents" as
defined in the Mezzanine Facility Agreement and the Investor
Loan Agreement (respectively);
(h) any Security Interest securing Financial Indebtedness incurred
or assumed in connection with a Permitted Acquisition;
(i) any Security Interest that is created with the prior written
consent of the Majority Lenders; or
(j) any Security Interest securing Financial Indebtedness (not being
moneys borrowed by way of loan) the principal amount of which
(when aggregated with the principal amount of any other
Financial Indebtedness which has the benefit of a Security
Interest, other than any permitted under paragraphs (a) to (i)
above) does not exceed US$500,000.
18.4 DISPOSALS
18.4.1 No Obligor shall (and the Parent shall ensure that no Material
Subsidiary will), enter into a single transaction or a series of
transactions (whether related or not) and whether voluntary or
involuntary to sell, lease, transfer or otherwise dispose of any asset.
18.4.2 Clause 18.4.1 above does not apply to any sale, lease, transfer or other
disposal:
(a) made in the ordinary course of business of the disposing entity;
(b) of assets in exchange for other assets comparable or superior as
to type, value and quality;
(c) where the higher of the market value or consideration receivable
(when aggregated with the higher of the market value or
consideration receivable for any other sale, lease, transfer or
other disposal, other than any permitted under paragraphs (a) to
(b) above or (d) below) does not exceed US$500,000 during the
lifetime of the Facility; or
(d) the application of cash or money not otherwise prohibited under
this Agreement.
18.5 MERGER
No Obligor shall (and the Parent shall ensure that no Material
Subsidiary will) enter into any amalgamation, demerger, merger or
corporate reconstruction, other than a Permitted Merger.
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18.6 CHANGE OF BUSINESS
The Parent shall procure that no substantial change is made to the
general nature of the business of any of the Obligors or any Material
Subsidiary from that carried on at the date of this Agreement.
18.7 NO PAYMENT OF DIVIDEND
The Parent will not pay (including by way of set-off, combination of
accounts or otherwise) any dividend or make any other distribution or
payment (whether in cash or in specie), including any interest and/or
unpaid dividends, in respect of equity or any other share capital for
the time being in issue.
18.8 ISSUES OF SHARES
The Parent shall ensure that no member of the Group (other than the
Parent) shall issue any further shares other than to a wholly-owned
member of the Group or alter any rights attaching to its issued shares
in existence at the date of this Agreement, in either case, to the
extent prejudicial to the interests of the Lenders (in such capacity) in
any material respect (as determined by the Agent acting reasonably)
provided that the issue of shares pursuant to share warrants or pursuant
to any scheme to incentivise employees (not being shares issued by Bidco
or by Target (if Bidco would cease to Control Target)) shall in any
event be permitted and provided further that Bidco may issue shares to
the Parent to the extent that the proceeds of the subscription therefor
are applied in repaying the Parent Loan (and on the basis that such
shares are subject to the Bidco Share Charge).
18.9 FINANCIAL INDEBTEDNESS
The Parent shall ensure that it and no Subsidiary shall incur any
Financial Indebtedness after the date of this Agreement other than:
18.9.1 The Senior Debt and Mezzanine Debt;
18.9.2 Indebtedness incurred in connection with any Permitted Acquisition;
18.9.3 Indebtedness owing by one member of the Group to another member of the
Group;
18.9.4 Indebtedness referred to in parts (d), (g) or (h) of the definition of
"Financial Indebtedness" incurred in the ordinary course of business of
a member of the Group;
18.9.5 Indebtedness in respect of guarantees and letters of credit entered into
(a) in the ordinary course of business of any member of the Group or (b)
by one member of the Group for the benefit of another member of the
Group where the relevant principal obligation of such second member of
the Group is permitted under this Agreement;
18.9.6 Indebtedness, the proceeds of which are applied (directly or indirectly
through intercompany loans and/or dividends) to repay, in whole or in
part, the Loans or the Mezzanine Debt;
18.9.7 Indebtedness in addition to that permitted under clauses 18.9.1 to
18.9.6 above outstanding as of the date of this Agreement;
18.9.8 Indebtedness in addition to that permitted under clauses 18.9.1 to
18.9.7 above not exceeding (in aggregate at any time) US$500,000.
18.10 ACQUISITIONS
The Parent shall ensure that no member of the Group shall acquire any
business (whether as an acquisition of assets, liabilities, and/or one
or more corporate entities) as a going concern other than pursuant to a
Permitted Acquisition and so that for avoidance of doubt this clause
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18.10 shall not prevent any member of the Group from incorporating or
acquiring a new company with no (or immaterial) assets.
18.11 RIGHTS IN RESPECT OF THE ACQUISITION
If the Agent so requests the Parent and Bidco shall enforce their
respective rights under the Amalgamation Agreement and/or the
Shareholders Agreement in respect of the Acquisition if a failure to do
so would be materially prejudicial to the interests of the Finance
Parties.
19 EVENTS OF DEFAULT
Each of the events or circumstances set out in clause 19 is an Event of
Default.
19.1 NON-PAYMENT
19.1.1 An Obligor does not pay on the due date any amount payable pursuant to a
Finance Document at the place at and in the currency in which it is
expressed to be payable unless:
(a) its failure to pay is caused by administrative or technical
error (as determined by the Agent to its reasonable
satisfaction); and
(b) payment is made within two Business Days of its due date.
19.2 OTHER OBLIGATIONS
19.2.1 An Obligor does not comply with any material provision of the Finance
Documents (other than those referred to in clause 19.1 (Non-payment),
but so that no Event of Default will occur if the failure to comply is
capable of remedy and is remedied within 14 Business Days of the Agent
giving notice to the Parent or the Parent becoming aware of the failure
to comply.
19.3 MISREPRESENTATION
Any representation or statement made or deemed to be made by an Obligor
in the Finance Documents or any material representation or statement
made in any other document delivered by or on behalf of any Obligor
under or in connection with any Finance Document is or proves to have
been incorrect or misleading in any material respect when made or deemed
to be made.
19.4 CROSS DEFAULT
19.4.1 Any Financial Indebtedness of any Obligor or any Material Subsidiary is
not paid when due nor within any originally applicable grace period.
19.4.2 Any Financial Indebtedness of any Obligor or any Material Subsidiary is
declared to be or otherwise becomes due and payable prior to its
specified maturity as a result of an event of default (however
described).
19.4.3 Any commitment for any Financial Indebtedness of any Obligor or any
Material Subsidiary is cancelled or suspended by a creditor of any
Obligor or any Material Subsidiary as a result of an event of default
(however described).
19.4.4 Any creditor of any Obligor or any Material Subsidiary becomes entitled
to declare any Financial Indebtedness of any Obligor or any Material
Subsidiary due and payable prior to its specified maturity as a result
of an event of default (however described).
19.4.5 No Event of Default will occur under this clause 19.4 if the aggregate
amount of Financial Indebtedness or commitment for Financial
Indebtedness falling within clauses 19.4.1 to 19.4.4 above is less than
US$500,000 (or its equivalent in any other currency or currencies).
28
19.5 INSOLVENCY
19.5.1 An Obligor or any Material Subsidiary is unable or admits inability to
pay its debts as they fall due, suspends making payments on any of its
debts or, by reason of actual or anticipated financial difficulties,
commences negotiations with one or more of its creditors with a view to
rescheduling any of its indebtedness.
19.5.2 The value of the assets of any Obligor or any Material Subsidiary is
less than its liabilities (taking into account contingent and
prospective liabilities).
19.5.3 A moratorium is declared in respect of any indebtedness of any Obligor
or any Material Subsidiary.
19.6 INSOLVENCY PROCEEDINGS
19.6.1 Any corporate action, legal proceedings or other procedure or step is
taken in relation to:
(a) the suspension of payments, a moratorium of any indebtedness,
winding-up, dissolution, administration or reorganisation (by
way of voluntary arrangement, scheme of arrangement or
otherwise) of any of the Obligors or any Material Subsidiary;
(b) a composition, assignment or arrangement with any creditor of
any of the Obligors or any Material Subsidiary;
(c) the appointment of a liquidator, receiver, administrator,
administrative receiver, compulsory manager or other similar
officer in respect of any of the Obligors or any Material
Subsidiary or any of its assets; or
(d) enforcement of any Security Interest over any assets of any of
the Obligors or any Material Subsidiary,
or any analogous procedure or step is taken in any jurisdiction.
19.7 CREDITORS' PROCESS
Any expropriation, attachment, sequestration, distress or execution
affects any asset or assets of an Obligor or a Material Subsidiary
having an aggregate value of US$100,000 and is not discharged within 30
days.
19.8 UNLAWFULNESS
It is or becomes unlawful for an Obligor to perform any of its material
obligations under the Finance Documents.
19.9 REPUDIATION
An Obligor repudiates a Finance Document.
19.10 ACCELERATION
19.10.1 On and at any time after the occurrence of an Event of Default
(following completion of the Acquisition) which is continuing the Agent
may, and shall if so directed by the Majority Lenders, by written notice
to the Parent:
(a) cancel the Total Commitments whereupon they shall immediately be
cancelled;
(b) declare that all or part of the Loans, together with accrued
interest, and all other amounts accrued under the Finance
Documents be immediately due and payable, whereupon they shall
become immediately due and payable; and/or
29
(c) declare that all or part of the Loans be payable on demand,
whereupon they shall immediately become payable on demand by the
Agent on the instructions of the Majority Lenders.
30
SECTION 9: CHANGES TO PARTIES
20 CHANGES TO THE LENDERS
20.1 ASSIGNMENTS AND TRANSFERS BY THE LENDERS
20.1.1 Subject to this clause 20, a Lender (the "EXISTING LENDER") may at any
time after the first Utilisation Date:
(a) assign any of its rights; or
(b) transfer by novation any of its rights and obligations,
to another lender (the "NEW LENDER").
20.2 CONDITIONS OF ASSIGNMENT OR TRANSFER
20.2.1 The consent of the Parent is required for an assignment or transfer by a
Lender, unless the assignment or transfer is to another Lender or an
Affiliate of a Lender.
20.2.2 The consent of the Parent to an assignment or transfer must not be
unreasonably withheld or delayed. The Parent will be deemed to have
given its consent five Business Days after the Lender has requested it
unless consent is expressly refused by the Parent within that time.
20.2.3 An assignment will only be effective on receipt by the Agent of written
confirmation from the New Lender (in form and substance satisfactory to
the Agent) that the New Lender will assume the same obligations to the
other Finance Parties as it would have been under if it was an Original
Lender.
20.2.4 A transfer will only be effective if the procedure set out in clause
20.5 (Procedure for transfer) is complied with.
20.2.5 If:
(a) a Lender assigns or transfers any of its rights or obligations
under the Finance Documents or changes its Facility Office; and
(b) as a result of circumstances existing at the date the
assignment, transfer or change occurs, an Obligor would be
obliged to make a payment to the New Lender or Lender acting
through its new Facility Office under clause 10 (Tax gross-up
and indemnities) or clause 11 (Increased Costs),
then the New Lender or Lender acting through its new Facility Office is
only entitled to receive payment under those clauses to the same extent
as the Existing Lender or Lender acting through its previous Facility
Office would have been if the assignment, transfer or change had not
occurred.
20.3 ASSIGNMENT OR TRANSFER FEE
The New Lender shall, on the date upon which an assignment or transfer
takes effect, pay to the Agent (for its own account) a fee to be
specified in a fee letter between the Agent and the New Lender.
20.4 LIMITATION OF RESPONSIBILITY OF EXISTING LENDERS
20.4.1 Unless expressly agreed to the contrary, an Existing Lender makes no
representation or warranty and assumes no responsibility to a New Lender
for:
31
(a) the legality, validity, effectiveness, adequacy or
enforceability of the Finance Documents or any other documents;
(b) the financial condition of any Obligor;
(c) the performance and observance by any Obligor of its obligations
under the Finance Documents or any other documents; or
(d) the accuracy of any statements (whether written or oral) made in
or in connection with any Finance Document or any other
document,
and any representations or warranties implied by law are excluded.
20.4.2 Each New Lender confirms to the Existing Lender and the other Finance
Parties that it:
(a) has made (and shall continue to make) its own independent
investigation and assessment of the financial condition and
affairs of each Obligor and its related entities in connection
with its participation in this Agreement and has not relied on
any information provided to it by the Existing Lender in
connection with any Finance Document; and
(b) will continue to make its own independent appraisal of the
creditworthiness of each Obligor and its related entities whilst
any amount is or may be outstanding under the Finance Documents
or any Commitment is in force.
20.4.3 Nothing in any Finance Document obliges an Existing Lender to:
(a) accept a re-transfer from a New Lender of any of the rights and
obligations assigned or transferred under this clause 20; or
(b) support any losses directly or indirectly incurred by the New
Lender by reason of the non-performance by any Obligor of its
obligations under the Finance Documents or otherwise.
20.5 PROCEDURE FOR TRANSFER
20.5.1 Subject to the conditions set out in clause 20.2 (Conditions of
assignment or transfer) a transfer is effected in accordance with clause
20.5.2 below when the Agent executes an otherwise duly completed
Transfer Certificate delivered to it by the Existing Lender and the New
Lender. The Agent shall, as soon as reasonably practicable after receipt
by it of a duly completed Transfer Certificate appearing on its face to
comply with the terms of this Agreement and delivered in accordance with
the terms of this Agreement, execute that Transfer Certificate.
20.5.2 On the Transfer Date:
(a) to the extent that in the Transfer Certificate the Existing
Lender seeks to transfer by novation its rights and obligations
under the Finance Documents each of the Obligors and the
Existing Lender shall be released from further obligations
towards one another under the Finance Documents and their
respective rights against one another shall be cancelled (being
the "DISCHARGED RIGHTS AND OBLIGATIONS");
(b) each of the Obligors and the New Lender shall assume obligations
towards one another and/or acquire rights against one another
which differ from the Discharged Rights and Obligations only
insofar as that Obligor and the New Lender have assumed and/or
acquired the same in place of that Obligor and the Existing
Lender;
(c) the Agent, the Arranger, the New Lender and other Lenders shall
acquire the same rights and assume the same obligations between
themselves as they would have acquired and assumed had the New
Lender been an Original Lender with the rights
32
and/or obligations acquired or assumed by it as a result of the
transfer and to that extent the Agent, the Arranger and the
Existing Lender shall each be released from further obligations
to each other under this Agreement; and
(d) the New Lender shall become a Party as a "Lender".
20.6 DISCLOSURE OF INFORMATION
Any Lender may disclose to any of its Affiliates and any other person:
(a) to (or through) whom that Lender assigns or transfers (or may
potentially assign or transfer) all or any of its rights and
obligations under this Agreement;
(b) with (or through) whom that Lender enters into (or may
potentially enter into) any sub-participation in relation to, or
any other transaction under which payments are to be made by
reference to, this Agreement or any Obligor; or
(c) to whom, and to the extent that information is required to be
disclosed by any applicable law or regulation,
any information about any Obligor, any Material Subsidiary and the
Finance Documents as that Lender shall consider appropriate if, in
relation to paragraphs (a) and (b) above, the person to whom the
information is to be given shall have entered into a Confidentiality
Undertaking.
21 CHANGES TO THE OBLIGORS
21.1 ASSIGNMENTS AND TRANSFER BY OBLIGORS
No Obligor may assign any of its rights or transfer any of its rights or
obligations under the Finance Documents other than as agreed between the
Parent and the Agent (acting on behalf of all the Lenders).
21.2 ADDITIONAL GUARANTORS
21.2.1 The Parent may request that any of its wholly owned Subsidiaries become
an Additional Guarantor. That Subsidiary shall become an Additional
Guarantor if:
(a) the Parent delivers to the Agent a duly completed and executed
Accession Letter; and
(b) the Agent has received all of the documents and other evidence
listed in Part II of Schedule 2 (Conditions precedent) in
relation to that Additional Guarantor, each in form and
substance satisfactory to the Agent.
21.2.2 The Agent shall notify the Parent and the Lenders promptly upon being
satisfied that it has received (in form and substance satisfactory to
it) all the documents and other evidence listed in Part II of Schedule 2
(Conditions precedent).
21.3 REPETITION OF REPRESENTATIONS
Delivery of an Accession Letter constitutes confirmation by the relevant
Subsidiary that the Repeating Representations are true and correct in
relation to it as at the date of delivery as if made by reference to the
facts and circumstances then existing.
21.4 RESIGNATION OF A GUARANTOR
21.4.1 The Parent may request that a Guarantor ceases to be a Guarantor by
delivering to the Agent a Resignation Letter.
33
21.4.2 The Agent shall accept a Resignation Letter and notify the Parent and
the Lenders of its acceptance if:
(a) no Default is continuing or would result from the acceptance of
the Resignation Letter (and the Parent has confirmed this is the
case); and
(b) all the Lenders have consented to the Parent's request.
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SECTION 10: THE FINANCE PARTIES
22 ROLE OF THE AGENT AND THE ARRANGER
22.1 APPOINTMENT OF THE AGENT
22.1.1 Each of the Arranger and the Lenders appoints the Agent to act as its
agent under and in connection with the Finance Documents.
22.1.2 Each of the Arranger and the Lenders authorises the Agent to exercise
the rights, powers, authorities and discretions specifically given to
the Agent under or in connection with the Finance Documents together
with any other incidental rights, powers, authorities and discretions.
22.2 DUTIES OF THE AGENT
22.2.1 The Agent shall promptly forward to a Party the original or a copy of
any document which is delivered to the Agent for that Party by any other
Party.
22.2.2 If the Agent receives notice from a Party referring to this Agreement,
describing a Default and stating that the circumstance described is a
Default, it shall promptly notify the Lenders.
22.2.3 The Agent shall promptly notify the Lenders of any Default arising under
clause 19.1 (Non-payment).
22.2.4 The Agent's duties under the Finance Documents are solely mechanical and
administrative in nature.
22.3 ROLE OF THE ARRANGER
Except as specifically provided in the Finance Documents, the Arranger
has no obligations of any kind to any other Party under or in connection
with any Finance Document.
22.4 NO FIDUCIARY DUTIES
22.4.1 Nothing in this Agreement constitutes the Agent or the Arranger as a
trustee or fiduciary of any other person.
22.4.2 Neither the Agent nor the Arranger shall be bound to account to any
Lender for any sum or the profit element of any sum received by it for
its own account.
22.5 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.
22.6 RIGHTS AND DISCRETIONS OF THE AGENT
22.6.1 The Agent may rely on:
(a) any representation, notice or document believed by it to be
genuine, correct and appropriately authorised; and
(b) any statement made by a director, authorised signatory or
employee of any person regarding any matters which may
reasonably be assumed to be within his knowledge or within his
power to verify.
22.6.2 The Agent may assume (unless it has received notice to the contrary in
its capacity as agent for the Lenders) that:
35
(a) no Default has occurred (unless it has actual knowledge of a
Default arising under clause 19.1 (Non-payment));
(b) any right, power, authority or discretion vested in any Party or
the Majority Lenders has not been exercised; and
(c) any notice or request made by the Parent (other than a
Utilisation Request) is made on behalf of and with the consent
and knowledge of all the Obligors.
22.6.3 The Agent may engage, pay for and rely on the advice or services of any
lawyers, accountants, surveyors or other experts.
22.6.4 The Agent may act in relation to the Finance Documents through its
personnel and agents.
22.7 MAJORITY LENDERS' INSTRUCTIONS
22.7.1 Unless a contrary indication appears in a Finance Document, the Agent
shall (a) act in accordance with any instructions given to it by the
Majority Lenders (or, if so instructed by the Majority Lenders, refrain
from acting or exercising any right, power, authority or discretion
vested in it as Agent) and (b) not be liable for any act (or omission)
if it acts (or refrains from taking any action) in accordance with such
an instruction of the Majority Lenders.
22.7.2 Unless a contrary indication appears in a Finance Document, any
instructions given by the Majority Lenders will be binding on all the
Lenders and the Arranger.
22.7.3 The Agent may refrain from acting in accordance with the instructions of
the Majority Lenders (or, if appropriate, the Lenders) until it has
received such security as it may require for any cost, loss or liability
(together with any associated VAT) which it may incur in complying with
the instructions.
22.7.4 In the absence of instructions from the Majority Lenders, (or, if
appropriate, the Lenders) the Agent may act (or refrain from taking
action) as it considers to be in the best interest of the Lenders.
22.7.5 The Agent is not authorised to act on behalf of a Lender (without first
obtaining that Lender's consent) in any legal or arbitration proceedings
relating to any Finance Document.
22.8 RESPONSIBILITY FOR DOCUMENTATION
22.8.1 Neither the Agent nor the Arranger:
(a) is responsible for the adequacy, accuracy and/or completeness of
any information (whether oral or written) supplied by the Agent,
the Arranger, an Obligor or any other person given in or in
connection with any Finance Document; or
(b) is responsible for the legality, validity, effectiveness,
adequacy or enforceability of any Finance Document or any other
agreement, arrangement or document entered into, made or
executed in anticipation of or in connection with any Finance
Document.
22.9 EXCLUSION OF LIABILITY
22.9.1 Without limiting clause 22.9.2 below, the Agent will not be liable for
any action taken by it under or in connection with any Finance Document,
unless directly caused by its gross negligence or wilful misconduct.
22.9.2 No Party may take any proceedings against any officer, employee or agent
of the Agent in respect of any claim it might have against the Agent or
in respect of any act or omission of any kind by that officer, employee
or agent in relation to any Finance Document and any officer, employee
or agent of the Agent may rely on this clause. Any third party referred
to in
36
this clause 22.9.2 may enjoy the benefit and enforce the terms of this
clause in accordance with the provisions of the Contracts (Rights of
Third Parties) ▇▇▇ ▇▇▇▇.
22.9.3 The Agent will not be liable for any delay (or any related consequences)
in crediting an account with an amount required under the Finance
Documents to be paid by the Agent if the Agent has taken all necessary
steps as soon as reasonably practicable to comply with the regulations
or operating procedures of any recognised clearing or settlement system
used by the Agent for that purpose.
22.10 LENDERS' INDEMNITY TO THE AGENT
Each Lender shall (in proportion to its share of the Total Commitments
or, if the Total Commitments are then zero, to its share of the Total
Commitments immediately prior to their reduction to zero) indemnify the
Agent, within three Business Days of demand, against any cost, loss or
liability incurred by the Agent (otherwise than by reason of the Agent's
gross negligence or wilful misconduct) in acting as Agent under the
Finance Documents (unless the Agent has been reimbursed by an Obligor
pursuant to a Finance Document).
22.11 RESIGNATION OF THE AGENT
22.11.1 The Agent may resign and appoint one of its Affiliates acting through an
office in a jurisdiction reasonably acceptable to the Parent as
successor by giving notice to the Lenders and the Parent.
22.11.2 Alternatively the Agent may resign by giving notice to the Lenders and
the Parent, in which case the Majority Lenders (after consultation with
the Parent) may appoint a successor Agent.
22.11.3 If the Majority Lenders have not appointed a successor Agent in
accordance with clause 22.11.2 above within 30 days after notice of
resignation was given, the Agent (after consultation with the Parent)
may appoint a successor Agent (acting through an office in a
jurisdiction reasonably acceptable to the Parent).
22.11.4 The retiring Agent shall, at its own cost, make available to the
successor Agent such documents and records and provide such assistance
as the successor Agent may reasonably request for the purposes of
performing its functions as Agent under the Finance Documents.
22.11.5 The Agent's resignation notice shall only take effect upon the
appointment of a successor.
22.11.6 Upon the appointment of a successor, the retiring Agent shall be
discharged from any further obligation in respect of the Finance
Documents but shall remain entitled to the benefit of this clause 22.
Its successor and each of the other Parties shall have the same rights
and obligations amongst themselves as they would have had if such
successor had been an original Party.
22.11.7 After consultation with the Parent, the Majority Lenders may, by notice
to the Agent, require it to resign in accordance with clause 22.11.2
above. In this event, the Agent shall resign in accordance with clause
22.11.2 above.
22.12 CONFIDENTIALITY
22.12.1 In acting as agent for the Finance Parties, 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.
22.12.2 If information is received by another division or department of the
Agent, it may be treated as confidential to that division or department
and the Agent shall not be deemed to have notice of it.
37
22.12.3 Notwithstanding any other provision of any Finance Document to the
contrary, neither the Agent nor the Arranger are obliged to disclose to
any other person (i) any confidential information or (ii) any other
information if the disclosure would or might in its reasonable opinion
constitute a breach of any law or a breach of a fiduciary duty.
22.13 RELATIONSHIP WITH THE LENDERS
The Agent may treat each Lender as a Lender, entitled to payments under
this Agreement and acting through its Facility Office unless it has
received not less than ten Business Days prior notice from that Lender
to the contrary in accordance with the terms of this Agreement.
22.14 CREDIT APPRAISAL BY THE LENDERS
22.14.1 Without affecting the responsibility of any Obligor for information
supplied by it or on its behalf in connection with any Finance Document,
each Lender confirms to the Agent and the Arranger that it has been, and
will continue to be, solely responsible for making its own independent
appraisal and investigation of all risks arising under or in connection
with any Finance Document including but not limited to:
(a) the financial condition, status and nature of each Obligor;
(b) the legality, validity, effectiveness, adequacy or
enforceability of any Finance Document and any other agreement,
arrangement or document entered into, made or executed in
anticipation of, under or in connection with any Finance
Document;
(c) whether that Lender has recourse, and the nature and extent of
that recourse, against any Party or any of its respective assets
under or in connection with any Finance Document, the
transactions contemplated by the Finance Documents or any other
agreement, arrangement or document entered into, made or
executed in anticipation of, under or in connection with any
Finance Document; and
(d) the adequacy, accuracy and/or completeness of the Information
Memorandum and any other information provided by the Agent, any
Party or by any other person under or in connection with any
Finance Document, the transactions contemplated by the Finance
Documents or any other agreement, arrangement or document
entered into, made or executed in anticipation of, under or in
connection with any Finance Document.
23 CONDUCT OF BUSINESS BY THE FINANCE PARTIES
23.1.1 No provision of this Agreement will:
(a) interfere with the right of any Finance Party to arrange its
affairs (tax or otherwise) in whatever manner it thinks fit;
(b) oblige any Finance Party to investigate or claim any credit,
relief, remission or repayment available to it or the extent,
order and manner of any claim; or
(c) oblige any Finance Party to disclose any information relating to
its affairs (tax or otherwise) or any computations in respect of
Tax.
24 SHARING AMONG THE LENDERS
24.1 PAYMENTS TO LENDERS
24.1.1 If a Lender (a "RECOVERING LENDER") receives or recovers any amount from
an Obligor other than in accordance with clause 25 (Payment mechanics)
and applies that amount to a payment due under the Finance Documents
then:
38
(a) the Recovering Lender shall, within ten Business Days, notify
details of the receipt or recovery, to the Agent;
(b) the Agent shall determine whether the receipt or recovery is in
excess of the amount the Recovering Lender would have been paid
had the receipt or recovery been received or made by the Agent
and distributed in accordance with clause 25 (Payment
mechanics), without taking account of any Tax which would be
imposed on the Agent in relation to the receipt, recovery or
distribution; and
(c) the Recovering Lender shall, within ten Business Days of demand
by the Agent, pay to the Agent an amount (the "SHARING PAYMENT")
equal to such receipt or recovery less any amount which the
Agent determines may be retained by the Recovering Lender as its
share of any payment to be made, in accordance with clause 25.5
(Partial payments).
24.2 REDISTRIBUTION OF PAYMENTS
The Agent shall treat the Sharing Payment as if it had been paid by the
relevant Obligor and distribute it between the Finance Parties (other
than the Recovering Lender) in accordance with clause 25.5 (Partial
payments).
24.3 RECOVERING LENDER'S RIGHTS
24.3.1 On a distribution by the Agent under clause 24.2 (Redistribution of
payments), the Recovering Lender will be subrogated to the rights of the
Finance Parties which have shared in the redistribution.
24.3.2 If and to the extent that the Recovering Lender is not able to rely on
its rights under clause 24.3.1 above, the relevant Obligor shall be
liable to the Recovering Lender for a debt equal to the Sharing Payment
which is immediately due and payable.
24.4 REVERSAL OF REDISTRIBUTION
24.4.1 If any part of the Sharing Payment received or recovered by a Recovering
Lender becomes repayable and is repaid by that Recovering Lender, then:
(a) each Lender which has received a share of the relevant Sharing
Payment pursuant to clause 24.2 (Redistribution of payments)
shall, upon request of the Agent, pay to the Agent for account
of that Recovering Lender an amount equal to its share of the
Sharing Payment (together with an amount as is necessary to
reimburse that Recovering Lender for its proportion of any
interest on the Sharing Payment which that Recovering Lender is
required to pay); and
(b) that Recovering Lender's rights of subrogation in respect of any
reimbursement shall be cancelled and the relevant Obligor will
be liable to the reimbursing Lender for the amount so
reimbursed.
24.5 EXCEPTIONS
24.5.1 This clause 24 shall not apply to the extent that the Recovering Lender
would not, after making any payment pursuant to this clause, have a
valid and enforceable claim against the relevant Obligor.
24.5.2 A Recovering Lender is not obliged to share with any other Lender any
amount which the Recovering Lender has received or recovered as a result
of taking legal or arbitration proceedings, if:
(a) it notified the other Lenders of the legal or arbitration
proceedings; and
39
(b) the other Lender had an opportunity to participate in those
legal or arbitration proceedings but did not do so as soon as
reasonably practicable having received notice or did not take
separate legal or arbitration proceedings.
40
SECTION 11: ADMINISTRATION
25 PAYMENT MECHANICS
25.1 PAYMENTS TO THE AGENT
25.1.1 On each date on which an Obligor or a Lender is required to make a
payment under a Finance Document, that Obligor or Lender shall make the
same available to the Agent (unless a contrary indication appears in a
Finance Document) for value on the due date at the time and in such
funds specified by the Agent as being customary at the time for
settlement of transactions in Dollars in the place of payment.
25.1.2 Payment shall be made to such account with such bank as the Agent
specifies.
25.2 DISTRIBUTIONS BY THE AGENT
Each payment received by the Agent under the Finance Documents for
another Party shall, subject to clause 25.3 (Distributions to an
Obligor) and clause 25.4 (Clawback) be made available by the Agent as
soon as practicable after receipt to the Party entitled to receive
payment in accordance with this Agreement (in the case of a Lender, for
the account of its Facility Office), to such account as that Party may
notify to the Agent by not less than ten Business Days' notice with a
bank in London or New York.
25.3 DISTRIBUTIONS TO AN OBLIGOR
The Agent may (with the consent of the Obligor or in accordance with
clause 26 (Set-off)) apply any amount received by it for that Obligor in
or towards payment (on the date and funds of receipt) of any amount due
from that Obligor under the Finance Documents.
25.4 CLAWBACK
25.4.1 Where a sum is to be paid to the Agent under the Finance Documents for
another Party, the Agent is not obliged to pay that sum to that other
Party until it has been able to establish to its satisfaction that it
has actually received that sum.
25.4.2 If the Agent pays an amount to another Party and it proves to be the
case that the Agent had not actually received that amount, then the
Party to whom that amount was paid by the Agent shall on demand refund
the same to the Agent together with interest on that amount from the
date of payment to the date of receipt by the Agent, calculated by the
Agent to reflect its cost of funds.
25.5 PARTIAL PAYMENTS
25.5.1 If the Agent receives a payment that is insufficient to discharge all
the amounts then due and payable by an Obligor under the Finance
Documents, the Agent shall apply that payment towards the obligations of
that Obligor under the Finance Documents in the following order:
(a) FIRST, in or towards payment pro rata of any unpaid fees, costs
and expenses of the Agent and the Arranger under the Finance
Documents;
(b) SECONDLY, in or towards payment pro rata of any accrued interest
due but unpaid under this Agreement;
(c) THIRDLY, in or towards payment pro rata of any principal due but
unpaid under this Agreement; and
(d) FOURTHLY, in or towards payment pro rata of any other sum due
but unpaid under the Finance Documents.
41
25.5.2 The Agent shall, if so directed by the Majority Lenders, vary the order
set out in clause 25.5.1(b) to 25.5.1(d) above.
25.5.3 Clauses 25.5.1 and 25.5.2 above will override any appropriation made by
an Obligor.
25.6 NO SET-OFF BY OBLIGORS
All payments to be made by an Obligor under the Finance Documents shall
be calculated and be made without (and free and clear of any deduction
for) set-off or counterclaim.
25.7 BUSINESS DAYS
25.7.1 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).
25.7.2 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.
25.8 CURRENCY OF ACCOUNT
25.8.1 Subject to clauses 25.8.2 and 25.8.3 below, Dollars is the currency of
account and payment for any sum due from an Obligor under any Finance
Document.
25.8.2 Each payment in respect of costs, expenses or Taxes shall be made in the
currency in which the costs, expenses or Taxes are incurred.
25.8.3 Any amount expressed to be payable in a currency other than Dollars
shall be paid in that other currency.
26 SET-OFF
A Finance Party may set off any matured obligation due from an Obligor
under the Finance Documents (to the extent beneficially owned by that
Finance Party) against any matured obligation owed by that Finance Party
to that Obligor.
27 NOTICES
27.1 COMMUNICATIONS IN WRITING
Any communication to be made under or in connection with the Finance
Documents shall be made in writing and, unless otherwise stated, may be
made by fax, letter or telex.
27.2 ADDRESSES
The address and fax number (and the department or officer, if any, for
whose attention the communication is to be made) of each Party for any
communication or document to be made or delivered under or in connection
with the Finance Documents is:
(a) in the case of the Parent, that identified with its name in
schedule 1;
(b) in the case of each Lender or any other Obligor, that identified
with its name in schedule 1 or that notified in writing to the
Agent on or prior to the date on which it becomes a Party; and
(c) in the case of the Agent, that identified with its name in
schedule 1,
42
or any substitute address, fax number, telex number or department or
officer as the Party may notify to the Agent (or the Agent may notify to
the other Parties, if a change is made by the Agent) by not less than
ten Business Days' notice.
27.3 DELIVERY
27.3.1 Any communication or document made or delivered by one person to another
under or in connection with the Finance Documents will only be
effective:
(a) if by way of fax, when received in legible form; or
(b) if by way of letter, when it has been left at the relevant
address or five Business Days after being deposited in the post
postage prepaid in an envelope addressed to it at that address;
and, if a particular department or officer is specified as part of its
address details provided under clause 27.2 (Addresses), if addressed to
that department or officer.
27.3.2 Any communication or document to be made or delivered to the Agent will
be effective only when actually received by the Agent and then only if
it is expressly marked for the attention of the department or officer
identified with the Agent's signature below (or any substitute
department or officer as the Agent shall specify for this purpose).
27.3.3 All notices from or to an Obligor shall be sent through the Agent.
27.3.4 Any communication or document made or delivered to the Parent in
accordance with this clause will be deemed to have been made or
delivered to each of the Obligors.
27.4 NOTIFICATION OF ADDRESS, FAX NUMBER AND TELEX NUMBER
Promptly upon receipt of notification of an address, fax number and
telex number or change of address, fax number or telex number pursuant
to clause 27.2 (Addresses) or changing its own address, fax number or
telex number, the Agent shall notify the other Parties.
27.5 ENGLISH LANGUAGE
27.5.1 Any notice given under or in connection with any Finance Document must
be in English.
27.5.2 All other documents provided under or in connection with any Finance
Document must be:
(a) in English; or
(b) if not in English, and if so required by the Agent, accompanied
by a certified English translation and, in this case, the
English translation will prevail unless the document is a
constitutional, statutory or other official document.
28 CALCULATIONS AND CERTIFICATES
28.1 ACCOUNTS
In any litigation or arbitration proceedings arising out of or in
connection with a Finance Document, the entries made in the accounts
maintained by a Finance Party are prima facie evidence of the matters to
which they relate.
28.2 CERTIFICATES AND DETERMINATIONS
Any certification or determination by a Finance Party of a rate or
amount under any Finance Document is, in the absence of manifest error,
conclusive evidence of the matters to which it relates.
43
28.3 DAY COUNT CONVENTION
Any interest, commission or fee accruing under a Finance Document will
accrue from day to day and is calculated on the basis of the actual
number of days elapsed and a year of 365/366 days.
29 PARTIAL INVALIDITY
If, at any time, any provision of the Finance Documents is or becomes
illegal, invalid or unenforceable in any respect under any law of any
jurisdiction, neither the legality, validity or enforceability of the
remaining provisions nor the legality, validity or enforceability of
such provision under the law of any other jurisdiction will in any way
be affected or impaired.
30 REMEDIES AND WAIVERS
No failure to exercise, nor any delay in exercising, on the part of any
Finance Party, any right or remedy under the Finance Documents shall
operate as a waiver, nor shall any single or partial exercise of any
right or remedy prevent any further or other exercise or the exercise of
any other right or remedy. The rights and remedies provided in this
Agreement are cumulative and not exclusive of any rights or remedies
provided by law.
31 AMENDMENTS AND WAIVERS
31.1 REQUIRED CONSENTS
31.1.1 Subject to clause 31.2 (Exceptions) any term of the Finance Documents
may be amended or waived only with the consent of the Majority Lenders
and the Obligors and any such amendment or waiver will be binding on all
Parties.
31.1.2 The Agent may effect, on behalf of any Finance Party, any amendment or
waiver permitted by this clause.
31.2 EXCEPTIONS
31.2.1 An amendment or waiver that has the effect of changing or which relates
to:
(a) the definition of "Majority Lenders" in clause 1.1
(Definitions);
(b) an extension to the date of payment of any amount under the
Finance Documents;
(c) a reduction in the amount of any payment of principal, interest,
fees or commission payable;
(d) an increase in Commitment;
(e) any provision which expressly requires the consent of all the
Lenders; or
(f) clause 2.2 (Lenders' rights and obligations), clause 20 (Changes
to the Lenders) or this clause 31,
shall not be made without the prior written consent of all the Lenders.
31.2.2 An amendment or waiver which relates to the rights or obligations of the
Agent or the Arranger may not be effected without the prior written
consent of the Agent or the Arranger.
32 COUNTERPARTS
Each Finance Document may be executed in any number of counterparts, and
this has the same effect as if the signatures on the counterparts were
on a single copy of the Finance Document.
44
SECTION 12: GOVERNING LAW AND ENFORCEMENT
33 GOVERNING LAW
This Agreement is governed by English law.
34 ENFORCEMENT
34.1 JURISDICTION OF ENGLISH COURTS
34.1.1 The courts of England have exclusive jurisdiction to settle any dispute
arising out of or in connection with this Agreement (including a dispute
regarding the existence, validity or termination of this Agreement) (a
"DISPUTE").
34.1.2 The Parties agree that the courts of England are the most appropriate
and convenient courts to settle Disputes and accordingly no Party will
argue to the contrary.
34.1.3 No Party shall be prevented from taking proceedings relating to a
Dispute in any other courts with jurisdiction. To the extent allowed by
law, the Parties may take concurrent proceedings in any number of
jurisdictions.
34.2 SERVICE OF PROCESS
34.2.1 Without prejudice to any other mode of service allowed under any
relevant law, each Obligor (other than an Obligor incorporated in
England and Wales):
(a) irrevocably appoints Norose Notices Limited [Matter number
AA33976], for the attention of the Director of Administration,
at the address of its registered office for the time being (at
the date of this Agreement, being ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇) as its agent for service of process in
relation to any proceedings before the English courts in
connection with any Finance Document; and
(b) agrees that failure by a process agent to notify the relevant
Obligor of the process will not invalidate the proceedings
concerned.
THIS AGREEMENT HAS BEEN ENTERED INTO ON THE DATE STATED AT THE BEGINNING OF THIS
AGREEMENT.
45
SCHEDULE 1
THE ORIGINAL PARTIES
PART I
THE ORIGINAL OBLIGORS
REGISTRATION NUMBER (OR
NAME OF PARENT REGISTERED OFFICE AND FAX EQUIVALENT, IF ANY)
--------------- --------------------------- ------------------------
Rasmala Distribution (Cayman) M&C Corporate Contracts Services Limited 112321
Limited ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
Grand Cayman
Cayman Islands Grand Cayman
British West Indies
Fax: ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
With a copy to Norose Notices Limited [Matter no:
TJS/AA33976]
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: Director of Administration
REGISTRATION NUMBER (OR
NAME OF THE GUARANTOR REGISTERED OFFICE AND FAX EQUIVALENT, IF ANY)
---------------------- --------------------------- --------------------------
Rasmala Distribution (Bermuda) Cedar House 31475
Limited ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇
Fax: ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
With a copy to Norose Notices Limited [Matter no:
TJS/AA33976]
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Fax: ▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇
Attention: Director of Administration
46
PART II
THE ORIGINAL LENDERS AND AGENT
NAME OF ORIGINAL LENDER ADDRESS COMMITMENT
SHUAA Capital p.s.c. Emirates Towers US$30,000,000
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇
Fax: ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
General Counsel
NAME OF AGENT ADDRESS AND FAX
SHUAA Capital p.s.c. Emirates Towers
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇
▇.▇. ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇
▇▇▇
Fax: ▇▇▇▇ ▇ ▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
General Counsel
47
SCHEDULE 2
THE CONDITIONS PRECEDENT
PART I
CONDITIONS PRECEDENT TO INITIAL UTILISATION
1 ORIGINAL OBLIGORS
1.1 A copy of the constitutional documents of each Obligor.
1.2 A copy of a resolution of the board of directors of each Obligor:
1.2.1 approving the terms of, and the transactions contemplated by, the Finance
Documents to which it is a party and resolving that it execute the
Finance Documents to which it is a party;
1.2.2 authorising a specified person or persons to execute the Finance
Documents to which it is a party on its behalf; and
1.2.3 authorising a specified person or persons, on its behalf, to sign and/or
despatch all documents and notices (including, if relevant, any
Utilisation Request) to be signed and/or despatched by it under or in
connection with the Finance Documents to which it is a party.
1.3 A specimen of the signature of each person authorised by the resolution
referred to in paragraph 1.2 above.
1.4 A copy of a resolution signed by the Parent in its capacity as holder of
the issued shares in the Guarantor, approving the terms of, and the
transactions contemplated by, the Finance Documents to which the
Guarantor is a party.
1.5 A certificate of the Parent (signed by a director) confirming that
borrowing or guaranteeing, as appropriate, the Total Commitments would
not cause any borrowing, guaranteeing or similar limit binding on any
Obligor to be exceeded.
1.6 A copy of the shareholder register of each Obligor.
1.7 A statement, certificate or other evidence evidencing the paid-in capital
of the Parent (excluding that of ▇▇▇▇ ▇▇▇▇▇▇▇▇, which will be paid from
the proceeds of the Acquisition).
1.8 A certificate of an authorised signatory of the relevant Obligor
certifying that each copy document relating to it specified in this part
I of Schedule 2 is correct, complete and in full force and effect as at a
date no earlier than the date of this Agreement.
1.9 A statement certifying the ultimate beneficial ownership of the Obligors.
2 FINANCE DOCUMENTS
2.1 An original copy of this Agreement;
2.2 An original copy of the Fee Letter between the Arranger and the Parent;
2.3 An original copy of the Senior Warrant Instrument (provided that the
Warrants to be issued thereunder shall not be issued until the first
Utilisation Date);
2.4 An original copy of each of:
2.4.1 The Bidco Share Charge and implementing documents referenced therein, and
48
2.4.2 The Target Share Charge and implementing documents referenced therein.
2.5 An original copy of the Parent Loan Assignment and a certified copy of
the Parent Loan document.
3 MEZZANINE DOCUMENTS
3.1 A certified copy of the Mezzanine Facility Agreement.
3.2 A certified copy of the Investor Loan Agreement.
3.3 An original copy of the Intercreditor Agreement.
4 ACQUISITION AND OFFER DOCUMENTS
4.1 A certified copy of the executed Amalgamation Agreement, including all
exhibits and schedules;
4.2 A certified copy of the executed Shareholders Agreement.
4.3 A certified copy of the final Offer to Purchase.
4.4 A certified copy of the executed Deed of Covenant of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
4.5 A certified copy of the executed Deed of Covenant of ▇▇▇▇ ▇▇▇▇▇▇▇▇.
4.6 A certified copy of the executed Letter of Appointment of ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇.
each in substantially the latest form distributed or described to the
Original Lenders prior to signing this Agreement.
5 LEGAL OPINIONS
Legal opinions of:
5.1 ▇▇▇▇▇▇▇▇ Hemmelrath, legal advisers to the Arranger and the Agent in
England;
5.2 ▇▇▇▇▇▇ and Calder legal advisers to the Parent in the Cayman Islands; and
5.3 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ legal advisers to the Guarantor in Bermuda;
substantially in the form distributed to the Original Lenders prior to
signing this Agreement and covering this Agreement, the Parent Loan
Assignment, the Bidco Share Charge and the Target Share Charge.
6 OTHER DOCUMENTS AND EVIDENCE
6.1 Evidence that any process agent referred to in clause 34.2 (Service of
process), if not an Obligor, has accepted its appointment.
6.2 A copy of any other Authorisation or other document, opinion or assurance
which the Agent considers to be necessary or desirable (if it has
notified the Parent accordingly) in connection with the entry into and
performance of the transactions contemplated by any Finance Document or
for the validity and enforceability of any Finance Document.
6.3 The Original Financial Statements.
49
6.4 Evidence that the fees, costs and expenses then due from the Parent
pursuant to clause 9 (Arrangement Fee) and clause 14 (Costs and expenses)
have been paid or will be paid.
6.5 A funds flow statement demonstrating how the Acquisition is to be funded.
PART II
CONDITIONS PRECEDENT REQUIRED TO BE
DELIVERED BY AN ADDITIONAL GUARANTOR
1 An Accession Letter, duly executed by the Additional Guarantor and the
Parent.
2 A copy of the constitutional documents of the Additional Guarantor.
3 A copy of a resolution of the board of directors of the Additional
Guarantor:
3.1 approving the terms of, and the transactions contemplated by, the
Accession Letter and the Finance Documents and resolving that it execute
the Accession Letter;
3.2 authorising a specified person or persons to execute the Accession Letter
on its behalf; and
3.3 authorising a specified person or persons, on its behalf, to sign and/or
despatch all other documents and notices to be signed and/or despatched
by it under or in connection with the Finance Documents.
4 A specimen of the signature of each person authorised by the resolution
referred to in paragraph 3 above.
5 If required under the laws of the jurisdiction of incorporation of the
Additional Guarantor, or to enable the legal opinion in paragraph 10
below, a copy of a resolution signed by all the holders of the issued
shares of the Additional Guarantor, approving the terms of, and the
transactions contemplated by, the Finance Documents to which the
Additional Guarantor is a party.
6 A certificate of a director of the Additional Guarantor confirming that
no limit on giving guarantees binding on it will be exceeded by it
becoming a Guarantor.
7 A certificate of an authorised signatory of the Additional Guarantor
certifying that each copy document listed in this Part II of Schedule 2
is correct, complete and in full force and effect as at a date no earlier
than the date of the Accession Letter.
8 A copy of any other Authorisation or other document, opinion or assurance
which the Agent considers to be necessary or desirable in connection with
the entry into and performance of the transactions contemplated by the
Accession Letter or for the validity and enforceability of any Finance
Document.
9 If available, the latest audited financial statements of the Additional
Guarantor.
10 A legal opinion of legal advisers to the Arranger and the Agent in
England.
11 If the Additional Guarantor is incorporated in a jurisdiction other than
England and Wales, a legal opinion of the legal advisers to the
Additional Guarantor in the jurisdiction in which the Additional
Guarantor is incorporated.
12 If the proposed Additional Guarantor is incorporated in a jurisdiction
other than England and Wales, evidence that the process agent specified
in clause 34.2 (Service of process), if not an Obligor, has accepted its
appointment in relation to the proposed Additional Guarantor.
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SCHEDULE 3
FORM OF UTILISATION REQUEST
From: Rasmala Distribution (Cayman) Limited
To: SHUAA Capital p.s.c.
Dated:
Dear Sirs
RASMALA DISTRIBUTION (CAYMAN) LIMITED - US$30,000,000 FACILITY AGREEMENT
DATED 3 JANUARY, 2002 (THE "FACILITY AGREEMENT")
1. We wish to borrow a Loan on the following terms:
Proposed Utilisation Date: [--] (or, if that is not a Business Day,
the next Business Day)
Amount: [--] (or, if less, the Available Facility)
2. We confirm that the condition specified in clause 4.2 (Further conditions
precedent) is satisfied on the date of this Utilisation Request.
3. The proceeds of this Loan should be credited to [account]*.
4. The proceeds of this Loan shall be used for [the purpose of funding the
Acquisition and/or meeting costs in respect thereof].
5. This Utilisation Request is irrevocable.
Yours faithfully
.......................................
authorised signatory for
Rasmala Distribution (Cayman) Limited
* This shall be the account of the Depositary in respect of the Offer to
Purchase. See clause 5.5 of the Agreement.
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SCHEDULE 4
FORM OF TRANSFER CERTIFICATE
To: SHUAA Capital p.s.c. as Agent
From: [The Existing Lender] (the "EXISTING LENDER") and [The New Lender] (the
"NEW LENDER")
Dated:
RASMALA DISTRIBUTION (CAYMAN) LIMITED - US$30,000,000 FACILITY AGREEMENT
DATED 3 JANUARY, 2002 (THE "FACILITY AGREEMENT")
1 We refer to clause 20.5 (Procedure for transfer):
(a) The Existing Lender and the New Lender agree to the Existing
Lender and the New Lender transferring by novation all or part of
the Existing Lender's Commitment, rights and obligations referred
to in the Schedule in accordance with clause 20.5 (Procedure for
transfer).
(b) The proposed Transfer Date is [--].
(c) The Facility Office and address, fax number and attention details
for notices of the New Lender for the purposes of clause 27.2
(Addresses) are set out in the Schedule.
2 The New Lender expressly acknowledges the limitations on the Existing
Lender's obligations set out in clause 20.4.3 (Limitation of
responsibility of Existing Lenders).
3 This Transfer Certificate is governed by English law.
THE SCHEDULE
Commitment/rights and obligations to be transferred
[insert relevant details]
[Facility Office address, fax number and attention details for notices
and account details for payments,]
[Existing Lender] [New Lender]
By: By:
This Transfer Certificate is accepted by the Agent and the Transfer Date
is confirmed as [--].
SHUAA Capital p.s.c.
By:
52
SCHEDULE 5
EXISTING SECURITY INTERESTS
Omitted for filing purposes.
53
SCHEDULE 6
FORM OF ACCESSION LETTER
To: SHUAA Capital p.s.c. as Agent
From: [Subsidiary] and Rasmala Distribution (Cayman) Limited
Dated:
Dear Sirs
RASMALA DISTRIBUTION (CAYMAN) LIMITED - US$30,000,000 FACILITY AGREEMENT
DATED 3 JANUARY, 2002 (THE "FACILITY AGREEMENT")
1. [Subsidiary] agrees to become an Additional Guarantor and to be bound by
the terms of the Facility Agreement as an Additional Guarantor pursuant
to clause 21.2 (Changes to obligors)] of the Facility Agreement.
[Subsidiary] is a company duly incorporated under the laws of [name of
relevant jurisdiction].
2. [Subsidiary's] administrative details are as follows:
Address:
Fax No:
Attention:
3. This letter is governed by English law.
Rasmala Distribution (Cayman) Limited [Subsidiary]
54
SCHEDULE 7
FORM OF RESIGNATION LETTER
To: SHUAA Capital p.s.c. as Agent
From: [resigning Guarantor] and Rasmala Distribution (Cayman) Limited
Dated:
Dear Sirs
RASMALA DISTRIBUTION (CAYMAN) LIMITED - US$30,000,000 FACILITY AGREEMENT
DATED 3 JANUARY, 2002 (THE "FACILITY AGREEMENT")
1 Pursuant to clause 21.3 (Resignation of a Guarantor), we request that
[resigning Guarantor] be released from its obligations as a Guarantor
under the Facility Agreement.
2 We confirm that:
(a) no Default is continuing or would result from the acceptance of
this request; and
(b) [--] *
3 This letter is governed by English law.
Rasmala Distribution (Cayman) Limited [Subsidiary]
By: By:
* Insert any other conditions required by the Facility Agreement.
55
SCHEDULE 8
FORM OF CONFIDENTIALITY LETTER
From: Lender
To: [Prospective Bank]
Date:
Dear Sirs
RASMALA DISTRIBUTION (CAYMAN) LTD (NO.112321) - US$30,000,000 FACILITY AGREEMENT
(THE "FACILITY AGREEMENT")
We understand that you are considering participating in the Facility. In
consideration of us agreeing to make available to you certain information, by
your signature of a copy of this letter you agree as follows:
1 CONFIDENTIALITY UNDERTAKING
You undertake:
1.1 to keep the Confidential Information confidential and not to disclose it
to anyone except as provided for by paragraph 2 below and to ensure that
the Confidential Information is protected with security measures and a
degree of care that would apply to your own confidential information;
1.2 to keep confidential and not disclose to anyone the fact that the
Confidential Information has been made available or that discussions or
negotiations are taking place or have taken place between us in
connection with the Facility;
1.3 to use the Confidential Information only for the Permitted Purpose;
1.4 to use all reasonable endeavours to ensure that any person to whom you
pass any Confidential Information (unless disclosed under paragraph 2(b)
below) acknowledges and complies with the provisions of this letter as if
that person were also a party to it; and
1.5 not to make enquiries of any member of the Group or any of their
officers, directors, employees or professional advisers.
2 PERMITTED DISCLOSURE
We agree that you may disclose Confidential Information:
2.1 to members of the Participant Group and their officers, directors,
employees and professional advisers to the extent necessary for the
Permitted Purpose and to any auditors of members of the Participant
Group;
2.2 (i) where requested or required by any court of competent jurisdiction or
any competent judicial, governmental, supervisory or regulatory body,
(ii) where required by the rules of any stock exchange on which the
shares or other securities of any member of the Participant Group are
56
listed or (iii) where required by the laws or regulations of any country
with jurisdiction over the affairs of any member of the Participant
Group; or
2.3 with the prior written consent of us and the Parent.
3 NOTIFICATION OF REQUIRED OR UNAUTHORISED DISCLOSURE
You agree (to the extent permitted by law) to inform us of the full
circumstances of any disclosure under paragraph 2.2 or upon becoming
aware that Confidential Information has been disclosed in breach of this
letter.
4 RETURN OF COPIES
If we so request in writing, you shall return all Confidential
Information supplied to you by us and destroy or permanently erase all
copies of Confidential Information made by you and use all reasonable
endeavours to ensure that anyone to whom you have supplied any
Confidential Information destroys or permanently erases such Confidential
Information and any copies made by them, in each case save to the extent
that you or the recipients are required to retain any such Confidential
Information by any applicable law, rule or regulation or by any competent
judicial, governmental, supervisory or regulatory body or in accordance
with internal policy, or where the Confidential Information has been
disclosed under paragraph 2.2 above.
5 CONTINUING OBLIGATIONS
The obligations in this letter are continuing and, in particular, shall
survive the termination of any discussions or negotiations between you
and us. Notwithstanding the previous sentence, the obligations in this
letter shall cease (a) if you become a party to or otherwise acquire (by
assignment or sub participation) an interest, direct or indirect in the
Facility or (b) twelve months after you have returned all Confidential
Information supplied to you by us and destroyed or permanently erased all
copies of Confidential Information made by you (other than any such
Confidential Information or copies which have been disclosed under
paragraph 2.2 above or which, pursuant to paragraph 4 above, are not
required to be returned or destroyed).
6 NO REPRESENTATION; CONSEQUENCES OF BREACH, ETC
You acknowledge and agree that:
6.1 neither we nor any of our officers, employees or advisers (each a
"RELEVANT PERSON") (i) make any representation or warranty, express or
implied, as to, or assume any responsibility for, the accuracy,
reliability or completeness of any of the Confidential Information or any
other information supplied by us or any member of the Group or the
assumptions on which it is based or (ii) shall be under any obligation to
update or correct any inaccuracy in the Confidential Information or any
other information supplied by us or any member of the Group or be
otherwise liable to you or any other person in respect to the
Confidential Information or any such information; and
6.2 we or members of the Group may be irreparably harmed by the breach of the
terms of this letter and damages may not be an adequate remedy; each
Relevant Person or member of the Group may be granted an injunction or
specific performance for any threatened or actual breach of the
provisions of this letter by you.
57
7 NO WAIVER; AMENDMENTS, ETC
This letter sets out the full extent of your obligations of
confidentiality owed to us in relation to the information the subject of
this letter. No failure or delay in exercising any right, power or
privilege under this letter will operate as a waiver thereof nor will any
single or partial exercise of any right, power or privilege preclude any
further exercise thereof or the exercise of any other right, power or
privileges under this letter. The terms of this letter and your
obligations under this letter may only be amended or modified by written
agreement between us.
8 INSIDE INFORMATION
You acknowledge that some or all of the Confidential Information is or
may be price-sensitive information and that the use of such information
may be regulated or prohibited by applicable legislation relating to
insider dealing and you undertake not to use any Confidential Information
for any unlawful purpose.
9 NATURE OF UNDERTAKINGS
The undertakings given by you under this letter are given to us and
(without implying any fiduciary obligations on our part) are also given
for the benefit of the Parent and each other member of the Group.
10 THIRD PARTY RIGHTS
10.1 Subject to paragraph 6 and paragraph 9 the terms of this letter may be
enforced and relied upon only by you and us and the operation of the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ is excluded.
10.2 Notwithstanding any provisions of this letter, the parties to this letter
do not require the consent of any Relevant Person or any member of the
Group to rescind or vary this letter at any time.
11 GOVERNING LAW AND JURISDICTION
This letter (including the agreement constituted by your acknowledgement
of its terms) shall be governed by and construed in accordance with the
laws of England and the parties submit to the non-exclusive jurisdiction
of the English courts.
12 DEFINITIONS
In this letter (including the acknowledgement set out below):
"CONFIDENTIAL INFORMATION" means any information relating to the Parent,
the Group, and the Facility including, without limitation, the
information memorandum, provided to you by us or any of our affiliates or
advisers, in whatever form, and includes information given orally and any
document, electronic file or any other way of representing or recording
information which contains or is derived or copied from such information
but excludes information that (a) is or becomes public knowledge other
than as a direct or indirect result of any breach of this letter or (b)
is known by you before the date the information is disclosed to you by us
or any of our affiliates or advisers or is lawfully obtained by you after
that date, other than from a source which is connected with the Group and
which, in either case, as far as you are aware, has not been obtained in
violation of, and is not otherwise subject to, any obligation of
confidentiality;
58
"GROUP" means the Parent and each of its holding companies and
subsidiaries and each subsidiary of each of its holding companies (as
each such term is defined in the Companies Act 1985);
"PARTICIPANT GROUP" means you, each of your holding companies and
subsidiaries and each subsidiary of each of your holding companies (as
each such term is defined in the Companies Act 1985); and
"PERMITTED PURPOSE" means considering and evaluating whether to enter
into the Facility.
Please acknowledge your agreement to the above by signing and returning the
enclosed copy.
Yours faithfully
...................................
For and on behalf of
[Lender]
...................................
To:
[Prospective Lender]
We acknowledge and agree to the above:
...................................
For and on behalf of
[Prospective Lender]
59
CONFORMATION PAGE
PARENT
SIGNED for and on behalf of )
RASMALA DISTRIBUTION (CAYMAN) ) /s/ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
LIMITED )
GUARANTOR
SIGNED for and on behalf of )
RASMALA DISTRIBUTION (BERMUDA) ) /s/ ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
LIMITED )
ARRANGER
SIGNED for and on behalf of ) /s/ ▇▇▇▇ ▇▇▇▇▇▇
SHUAA CAPITAL P.S.C. )
AGENT
SIGNED for and on behalf of ) /s/ ▇▇▇▇ ▇▇▇▇▇▇
SHUAA CAPITAL P.S.C. )
ORIGINAL LENDER
SIGNED for and on behalf of ) /s/ ▇▇▇▇ ▇▇▇▇▇▇
SHUAA CAPITAL P.S.C. )
60