EXHIBIT 10.3
DATED 6th APRIL 2000
GLOBAL HEALTHCARE PARTNERS LIMITED
- and -
THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
as Bank
----------------------------------------------
CREDIT AGREEMENT
relating to
(i) a sterling term loan and guarantee facility
of pounds sterling 34,000,000;
(ii) a sterling revolving capital expenditure facility
of pounds sterling 7,000,000; and
(iii) an overdraft facility of pounds sterling 1,000,000
----------------------------------------------
[▇▇▇▇▇▇ ▇▇▇▇▇ SAPTE LOGO]
TABLE OF CONTENTS
PAGE
CLAUSE HEADING NUMBER
1. DEFINITIONS AND INTERPRETATION .................................... 1
1.1 Definitions ....................................................... 1
1.2 Headings .......................................................... 13
1.3 Interpretation .................................................... 13
2. FACILITIES ........................................................ 14
3. PURPOSE............................................................ 15
3.1 Purpose of the Term Loan and Guarantee Facility ................... 15
3.2 Purpose of the Capex Facility ..................................... 15
3.3 Purpose of the Overdraft Facility ................................. 15
3.4 Undertaking by Newco .............................................. 16
3.5 No liability ...................................................... 16
4. CONDITIONS PRECEDENT .............................................. 16
4.1 Conditions precedent .............................................. 16
4.2 Confirmation of satisfaction ...................................... 16
5. DRAWDOWN .......................................................... 16
5.1 Utilisation of Term Loan and Guarantee Facility ................... 16
5.3 Drawdown of Capex Facility ........................................ 17
5.4 Conditions to each Advance ........................................ 17
5.5 Drawdown Notice ................................................... 18
5.6 Limitations on the Loan Notes Guarantee ........................... 18
5.7 Conditions of the Loan Notes Guarantee ............................ 18
5.8 Loan Notes Guarantee Utilisation Notice ........................... 18
5.9 Counter Indemnity from Newco ...................................... 19
5.10 Interest on Payments .............................................. 19
6. THE OVERDRAFT FACILITY ............................................ 19
6.1 Nature of Facility ................................................ 19
6.2 Utilisation ....................................................... 20
7. INTEREST .......................................................... 20
7.1 Interest rates .................................................... 20
7.2 Interest Periods .................................................. 20
7.3 Default Interest .................................................. 21
7.4 Fixed Rate Option ................................................. 22
7.5 Guarantee Commission .............................................. 23
7.6 Interest, Commission and Fees under the Overdraft Facility ........ 23
7.7 Calculation and Payment of Interest ............................... 23
7.8 Bank's Determination .............................................. 24
8. REPAYMENT OF THE TERM LOAN AND THE CAPEX LOAN ..................... 24
8.1 Reduction of the Term Loan Utilised Amount ........................ 24
8.2 Repayment of the Capex Advances ................................... 24
9. PREPAYMENT ........................................................ 25
9.1 Mandatory, prepayment on Sale or Listing .......................... 25
9.2 Voluntary, prepayment of Term Loan and Capex Loan ................. 25
9.3 No re-borrowing of Term Loan ...................................... 26
10. CANCELLATION OF CAPEX FACILITY .................................... 26
10.1 Cancellation ...................................................... 26
10.2 Notice ............................................................ 26
10.3 Effect of cancellation ............................................ 26
10. Limitation......................................................... 26
11. CHANGES 1N CIRCUMSTANCES .......................................... 26
11.1 Illegality ........................................................ 26
11.2 Increased Costs ................................................... 27
11.3 Market disruption ................................................. 28
11.4 Mitigation ........................................................ 29
11.5 Certificates ...................................................... 30
12. PAYMENTS .......................................................... 30
12.1 Funds ............................................................. 30
12.2 Payments .......................................................... 30
12.3 Change Of account ................................................. 30
12.4 Business Days ..................................................... 30
12.5 Currency .......................................................... 30
12.6 Accounts as evidence .............................................. 30
12.7 Partial payments .................................................. 31
12.8 Set-off and counterclaim .......................................... 31
12.9 Grossing-up ....................................................... 31
13. SECURITY .......................................................... 33
13.1 Security Documents ................................................ 33
13.2 Interest Rate Protection Agreements ............................... 33
14. REPRESENTATIONS AND WARRANTIES .................................... 33
14.1 Representations and warranties .................................... 33
14.2 Repetition ........................................................ 36
15. UNDERTAKINGS ...................................................... 36
15.1 Information undertakings .......................................... 36
15.2 Positive undertakings ............................................. 39
15.3 Negative undertakings ............................................. 40
15.4 Financial undertakings ............................................ 42
16. DEFAULT ........................................................... 44
16.1 Default ........................................................... 44
16.2 Acceleration ...................................................... 46
17. SET-OFF ........................................................... 47
18. FEES AND EXPENSES ................................................. 47
18.1 Expenses .......................................................... 47
18.2 Arrangement fee ................................................... 47
18.3 Management Fee .................................................... 47
18.4 Commitment Fee .................................................... 47
18.5 Documentary Taxes indemnity ....................................... 48
18.6 VAT ............................................................... 48
18.7 Indemnity payments ................................................ 48
18.8 Valuations and appointments ....................................... 48
19. WAIVERS; REMEDIES CUMULATIVE ...................................... 48
19.1 No implied waivers: remedies cumulative ........................... 48
19.2 Euro conventions .................................................. 49
20. MISCELLANEOUS ................................................... 49
20.1 Severance ....................................................... 49
20.2 Counterparts .................................................... 49
20.3 Third Parties ................................................... 49
21. NOTICES.......................................................... 49
21.1 Method .......................................................... 49
21.2 Delivery ........................................................ 50
21.3 Addresses........................................................ 50
21.4 Deemed receipt .................................................. 50
22. ASSIGNMENTS AND TRANSFERS ....................................... 51
22.1 Benefit of Agreement ............................................ 51
22.2 Assignments and transfers by Newco .............................. 51
22.3 Assignments and Transfers by Bank ............................... 51
22.4 Consequences of transfer ........................................ 51
22.5 Disclosure of information ....................................... 51
23. INDEMNITIES ..................................................... 52
23.1 Breakage costs indemnity......................................... 52
23.2 Currency indemnity .............................................. 52
23.3 General ......................................................... 52
24. LAW.............................................................. 53
SCHEDULE I - CONDITIONS PRECEDENT ........................................ 54
SCHEDULE 2 - PART I DRAWDOWN NOTICE ...................................... 57
PART II LOAN NOTES GUARANTEE UTILISATION NOTICE ............. 58
SCHEDULE 3 - GROUP COMPANIES ............................................. 59
SCHEDULE 4 - MANDATORY COST RATE ......................................... 60
SCHEDULE 5 - THE PROPERTIES .............................................. 61
SCHEDULE 6 - FIXED RATE CONFIRMATION NOTICE............................... 62
THIS AGREEMENT is made on 6th April 2000
BY:
(1) GLOBAL HEALTHCARE PARTNERS LIMITED, a company incorporated in England and
Wales with registered number 3952340 (Newco); and
(2) THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND as the Bank (as that
term is more particularly defined below).
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this Agreement:
ACCOUNTING PRINCIPLES means the GAAP used in the preparation of the
Accounts of Aspen for the Financial Year ended 31st December 1999.
ACCOUNTS means:
(a) in relation to Newco, its audited consolidated accounts (including
all additional information and notes to the accounts) together
with the relevant directors' report and auditors' report; and
(b) in relation to any other Charging Group Company from time to time,
its audited accounts (including all additional information and
notes to the accounts) together with the relevant directors'
report and auditors' report.
ACQUISITION AGREEMENT means the sale and purchase agreement dated on or
before the date of this Agreement relating to the sale and purchase of
Aspen Shares and made between the Vendors (as described therein) as
vendors and Newco as purchaser.
ACQUISITION COSTS means those fees, commissions. costs and expenses
properly incurred by Newco in relation to its acquisition of Aspen
Shares.
ACQUISITION DOCUMENTS means:
(a) the Acquisition Agreement;
(b) the Optionholders Agreement;
(c) the Warranty Deed;
(d) the Loan Notes; and
(e) the Termination Agreement
but, for the avoidance of doubt. shall not include the Disclosure Letter.
-1-
ACQUISITION GOODWILL means the net goodwill arising on the acquisition of
Aspen Shares.
ACT means the Companies ▇▇▇ ▇▇▇▇.
ADVANCES means all and each of the Terns Advances and the Capex Advances
and ADVANCE shall be construed accordingly.
ASPEN means Aspen Healthcare Holdings Limited, a company incorporated in
England and Wales with registered number 3471084.
ASPEN SHARES means all the issued share capital in Aspen.
AUDITORS means, in relation to each Group Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or any
other fine of chartered accountants of internationally recognised
standing that has been appointed as auditors of such Group Company.
BANK means The Governor and Company of the Bank of Scotland and its
successors in title, assignees and transferees.
BUSINESS DAY means a day (other than a Saturday or Sunday) on which banks
and foreign exchange markets are open for business in London.
CAPEX ADVANCE means the advance made or to be made to Newco under the
Capex Facility or, as the case may be, the outstanding principal amount
of that advance.
CAPEX COMMITMENT PERIOD means the period ending on the last Business Day
of the period of 24 months from the date of this Agreement or such longer
period as the Bank may in its absolute discretion agree.
CAPEX FACILITY LIMIT means subject to Clauses 8, 9 and l0, pounds
sterling 7,000,000.
CAPEX LOAN means, at any time, the aggregate of all Capex Advances
outstanding at that time.
CAPEX FACILITY means the revolving capital expenditure facility referred
to in Clause 2.1(b).
CAPITAL EXPENDITURE has the meaning given to that term by GAAP but shall
exclude those fixed asset additions qualifying as Finance Lease
Expenditure.
"CASHFLOW" means, in respect of the Group in relation to any period, the
aggregate of PBITD and Depreciation charged to the profit and loss
account for that period:
(a) plus the net proceeds of fixed assets disposed of during that
period to the extent included in the Operating Budget for that
period;
(b) plus any decrease, or minus any increase, in Net Working Capital
during that period;
(c) plus any receipts by way of Extraordinary Items and minus any
payments by way of Extraordinary Items, in each case, received or
made during that period;
-2-
(d) minus any dividends declared to respect of minority interests for
that period;
(e) plus any dividends received from other fixed assets investment
during that period;
(f) plus income from participating interests in associated
undertakings to the extent received in cash and minus any payment
made to associated undertakings during that period;
(g) plus any increase or minus any decrease in provisions for
liabilities and charges made in respect of that period;
(h) minus Capital Expenditure in respect of that period paid or
contractually required to be paid during that period which is not
funded by any of the Facilities or the proceeds of any further
subscription of any shares in Newco;
(i) plus realised exchange gains and minus realised exchange losses
charged during that period to the extent not already taken account
of in PBITD for that period; and
(j) minus the aggregate of all corporation or other similar Taxes paid
during that period.
(For the purposes of this definition: "NET WORKING CAPITAL" means the
aggregate of Current Assets, (excluding all of cash at bank and cash in
hand, all assets in relation to Tax and accrued interest receivable)
less the aggregate of Current Liabilities (excluding moneys due in
relation to the Facilities and the Loan Notes and liabilities in relation
to Tax. Extraordinary Items and dividends payable): "CURRENT ASSETS"
means, in relation to the Group, the aggregate value of its assets which
are treated as current assets in accordance with GAAP; and "CURRENT
LIABILITIES" means, in relation to the Group, the aggregate value of its
liabilities which are treated as current liabilities in accordance with
GAAP).
CERTIFIED COPY means, in relation to a document, a copy of that document
bearing the endorsement "Certified a true, complete and accurate copy of
the original, which has not been amended otherwise than by a document, a
Certified Copy of which is attached hereto", which has been signed and
dated by a duly authorized officer of the relevant company and which
complies with that endorsement.
CHANGE means, in relation to the Bank (or any company of which the Bank
is a Subsidiary), the introduction, implementation, repeal, withdrawal or
change in, or in the interpretation or application of, (a) any law,
regulation, practice or concession, or (b) any directive, requirement,
request or guidance (whether or not having the force of law but if not
having the force of law, one which applies generally to a class or
category of financial institutions of which the Bank (or that company)
forms part and compliance with which is in accordance with the general
practice of those financial institutions) of the European Community, any
central bank including the European Central Bank, the Financial Services
Authority or any other fiscal, monetary, regulatory or other authority.
CHARGING GROUP COMPANIES means the Group Companies which have granted, or
are by the terms of this Agreement to grant, a Guarantee and Debenture;
and CHARGING GROUP COMPANY shall be construed accordingly.
-3-
COMPLETION means the completion of the sale and purchase of Aspen Shares
pursuant to the Acquisition Agreement.
COMPLIANCE CERTIFICATE has the meaning given to that term in Clause
15.1(c).
DANGEROUS MATERIALS means any element or substance, whether consisting
of gas, liquid, solid or vapour, identified by any Environmental Law to
be, to have been, or to be capable of being or becoming, harmful to
mankind or any living organism or damaging to the Environment.
DEFAULT means any event specified as such in Clause 16.1.
DEFAULT NOTICE has the meaning given to that term in Clause 16.2.
DEPRECIATION has the meaning given to that term by GAAP.
DISCLOSURE LETTER has the meaning given to that term in the Acquisition
Agreement.
DISPOSAL means a sale, transfer or other disposal (including by way of
lease or loan) by a person of all or part of its assets, whether by one
transaction or a series of transactions and whether at the same time or
over a period of time.
DORMANT SUBSIDIARY means, on any given date, a Group Company (a) which
has been dormant within the meaning of section 250(3) of the Act for the
period of 12 months ending on that date and (b) the value of whose assets
does not exceed in aggregate pounds sterling 5,000.
DRAWDOWN DATE means the date on which an Advance is made, or is proposed
to be made.
DRAWDOWN NOTICE means a notice substantially in the form set out in Part
I of Schedule 2.
EMPLOYMENT CONTRACT means the service agreement of even date herewith
made between ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇ and Newco.
ENCUMBRANCE means any mortgage, charge, assignment by way of security,
pledge, hypothecation, lien, right of set-off retention of title
provision, trust or flawed asset arrangement (for the purpose of, or
which has the effect of granting security) or any other security interest
of any kind whatsoever, or any agreement, whether conditional or
otherwise, to create any of the same, or any agreement to sell or
otherwise dispose of any asset on terms whereby such asset is or may be
leased to or re-acquired or acquired by any Group Company.
ENVIRONMENT means all or any of the following media: air (including air
within buildings or other structures and whether above or below ground);
land (including buildings and any other structures or erections in, on or
under it and any soil and anything below the surface of land); land
covered with water; and water (including sea, ground and surface water).
ENVIRONMENTAL LAW means any statutory or common law, treaty, convention,
directive or regulation having legal or judicial effect whether of a
criminal or civil nature, concerning:
(a) pollution or contamination of the Environment:
-4-
(b) harm, whether actual or potential, to mankind and human senses,
living organisms and ecological systems;
(c) tile generation, manufacture, processing, distribution, use
(including abuse), treatment, storage, disposal, transport or
handling of Dangerous Materials; or
(d) the emission, leak, release or discharge into the Environment of
noise, vibration, dust, fumes, gas, odours, smoke, steam,
effluvia, heat, light, radiation (of any kind), infection,
electricity or any Dangerous Material and any matter or thing
capable of constituting a nuisance or an actionable tort of any
kind in respect of such matters.
Euro or E means the single currency of Participating Member States.
EXISTING FACILITIES means:
(a) a credit agreement dated 4 March 1998 made between (1) Aspen (2)
▇▇▇▇▇▇▇▇▇▇ U.K. Limited (which has subsequently changed its name
to Aspen Healthcare Limited) and (3) The British Linen Bank
Limited, as amended and restated by an amendment and restatement
agreement dated 20 April 1999 and made between (1) Aspen (2) Aspen
Healthcare Limited and (3) The British Linen Bank Limited; and
(b) a credit agreement dated 19 November 1999 made between (1) Aspen
(2) Aspen Healthcare Limited and (3) the Bank.
EXPIRY DATE means the earlier to occur of:
(a) 5 Business Days after 30 September 2003; and
(b) the repayment in full of the Loan Notes.
FACILITIES means the Term Loan and Guarantee Facility, the Capex
Facility and the Overdraft Facility; and Facility means any one of them.
FEES LETTER means the letter dated the same date as this Agreement from
the Bank to Newco relating to certain fees payable to the Bank in
relation to this Agreement, being described on its face as the "Fees
Letter".
FINAL REPAYMENT DATE means the tenth anniversary of the date of this
Agreement.
FINANCE LEASE means any lease, hire agreement, credit sale agreement,
hire purchase agreement, conditional sale agreement or instalment sale,
and purchase agreement which should be treated in accordance with SSAP 21
(or any successor to SSAP 21) as a finance lease or in the same way as a
finance lease.
FINANCE LEASE EXPENDITURE means the capital value of any asset the
subject of a Finance Lease to which a Group Company is a party.
FINANCIAL YEAR, in relation to a company, has the meaning given to that
expression in section 223 of the Act.
- 5 -
FINANCING DOCUMENTS means this Agreement, the Interest Rate Protection
Agreements and the Security Documents.
FIXED FUNDS RATE means, in relation to a Fixed Rate Tranche, the fixed
rate of interest quoted to Newco by the Bank in accordance with Clause
7.4.
FIXED RATE CONFIRMATION NOTICE means a notice in substantially the form
set out in Schedule 6.
FIXED RATE PERIOD means, in relation to a Fixed Rate Tranche, the period
selected by Newco pursuant to clause 7.4 provided always that no Fixed
Rate Period shall be of less than 3 months' duration or extend beyond the
Final Repayment Date.
FIXED RATE TRANCHE means the outstanding amount of the Term Loan in
respect of which interest is payable by reference to a Fixed Funds Rate
for the duration of a Fixed Rate Period.
FRS together with a number means the financial reporting standard issued
by the Accounting Standards Board for application in England and Wales
and identified by reference to that number.
GAAP means, in relation to a company, accounting principles, concepts,
bases and policies generally accepted in the jurisdiction of its
incorporation.
GROUP means Newco, Aspen and each of their respective Subsidiaries, and
Group Company means any one of them.
GUARANTEE AND DEBENTURE means a guarantee and debenture in the agreed
form executed or to be executed in favour of the Bank.
GUARANTEE DEMAND has the meaning given to it in the Loan Notes Guarantee.
INDEBTEDNESS means, in relation to a person, its obligation (whether
present or future, actual or contingent, as principal or surety) for the
payment or repayment of money (whether in respect of interest, principal
or otherwise) incurred in respect of:
(a) moneys borrowed or raised (and, for the avoidance of doubt,
excluding any equity share capital);
(b) any bond, note, loan stock, debenture or similar instrument;
(c) any acceptance credit, ▇▇▇▇ discounting, note purchase, factoring
or documentary credit facility;
(d) the supply of any goods or services which is more than 90 days
past the expiry of the period customarily allowed by the relative
supplier after the due date;
(e) any Finance Lease;
(f) any guarantee, bond, stand-by letter of credit or other similar
instrument issued in connection with the performance of contracts;
- 6 -
(g) any interest rate or currency swap agreement or any other hedging
or derivatives instrument or agreement and the amount of such
indebtedness in relation to such a transaction shall be calculated
by reference to the ▇▇▇▇ to market value of the same at the
relevant time;
(h) any arrangement pursuant to which any asset sold or otherwise
disposed of by that person is or may be leased to or re-acquired
by a Group Company (whether following the exercise of an option or
otherwise); or
(i) any guarantee, indemnity or similar insurance against financial
loss given in respect of the obligation of any person falling
within any of paragraphs (a) to (h) above.
INSTALMENT has the meaning given to that term in Clause 8.1.
INSTALMENT REPAYMENT DATE has the meaning given to that term in Clause
8.1.
INTERCREDITOR AGREEMENT means the intercreditor agreement executed on or
about the date of this Agreement made or to be made between Newco, Aspen,
the Bank and the holders of the Loan Notes.
INTEREST DATE means the last day of an Interest Period.
INTEREST PERIOD means each period determined in accordance with Clause 7
for the purpose of calculating interest on Advances or overdue amounts.
INTEREST RATE PROTECTION AGREEMENTS means each agreement entered into or
to be entered into for the purpose of hedging at least 50 per cent. of
Newco's interest rate liabilities in relation to all or any part of the
Term Loan.
ISSUE DATE means the date on which the Loan Notes Guarantee is issued or
is proposed to be issued by the Bank.
LENDING OFFICE means the office set out under the Bank's name in Clause
21.3, or such other office in the United Kingdom through which the Bank
maintains the Facilities under this Agreement.
LIBOR means, in relation to an Advance or overdue amount and in relation
to a particular Interest Period:
(a) the interest rate for Sterling deposits for a period equal to that
Interest Period which appears on the screen display designated as
"Page 3750" on the Telerate Service (or such other screen display
or service as may replace it for the purpose of displaying British
Bankers' Association LIBOR Rates for Sterling deposits in the
London interbank market) at or about 11.00 a.m. on the first day
of that Interest Period; and
(b) if no such interest rate appears on the Telerate Service (or such
replacement), the rate per annum (rounded upwards to 4 decimal
places) at which the Bank was offering Sterling deposits in an
amount comparable with that Advance or overdue amount, as the case
may be, to leading banks in the London interbank market for
- 7 -
a period equal to that Interest Period at or about 11.00 a.m. on
the first day of that Interest Period.
LISTING means:
(a) the admission of all or any of the share capital of Newco to the
Official List of the Stock Exchange becoming effective; or
(b) the granting of an application by Newco for permission to deal in
all or any of the share capital of Newco on the Alternative
Investment Market of the Stock Exchange or any other recognised
investment exchange (as defined in section 207 of the Financial
Services Act 1986) becoming effective.
LOAN means, at any time, the aggregate of the Term Loan, the Capex Loan
and the Overdraft Outstandings.
LOAN NOTES means the pounds sterling 7,000,000 guaranteed floating rate
loan notes due 30th September 2003 of Newco.
LOAN NOTES DOCUMENTS means the Loan Notes and the Loan Notes Instrument.
LOAN NOTES GUARANTEE means the guarantee issued or to be issued by the
Bank in favour of certain Vendors in respect of the Loan Notes in the
agreed form.
LOAN NOTES GUARANTEED AMOUNT means the maximum original liability of the
Bank under the Loan Notes Guarantee.
LOAN NOTES GUARANTEE UTILISATION means a utilisation of the Term Loan and
Guarantee Facility by way of the issue of the Loan Notes Guarantees under
Clause 5.8.
LOAN NOTES GUARANTEE UTILISATION NOTICE means a notice substantially in
the form set out in Part 11 of Schedule 2.
LOAN NOTES INSTRUMENT means the loan notes instrument in the agreed form
pursuant to which the Loan Notes are, or are to be, constituted.
MANAGEMENT means the board of directors of Newco from time to time.
MANAGEMENT ACCOUNTS has the meaning given to that term in Clause
15.1(b).
MANDATORY COST RATE means the rate determined in accordance with
Schedule 4.
MARGIN means:
(a) in respect of the Term Loan and the Guarantee Facility, 1.50 per
cent per annum; and
(b) in respect of the Capex Facility, 2.00 per cent per annum.
MATERIAL ADVERSE EFFECT means any effect, event, circumstance or change
which is materially adverse to:
- 8 -
(a) the ability of any Group Company to comply its payment obligations
under any Financing Document.
(b) the ability of Newco to satisfy the financial undertakings in
Clause 15.4.1 or
(c) the assets of the Group taken as a whole.
MRI SCANNER means a Magnetic Resonance Imager.
NET LOAN NOTES GUARANTEED AMOUNT means, at any time, the Loan Notes
Guaranteed Amount less the aggregate principal amount of all Loan Notes
redeemed or released.
NEWCO INDEMNITY means the indemnity given by Newco to the Bank under
Clause 5.8.
OPERATING BUDGET means, in relation to the Group and the period starting
not later than the date of this Agreement and ending on 31 December 2000,
the financial information required by and as set out in Clause 2(b) of
Schedule 1 to this Agreement and in relation to each successive 12 month
period after 31 December 2000 during the Security Period:
(a) a projected balance sheet;
(b) a projected profit and loss account;
(c) a projected cash flow statement; and
(d) projected covenant calculations relating to each financial
undertaking contained in Clause 15.4.
relative to each such period and on a month by month basis and with
Management's commentary drawing on the previous period's performance and
forecast market conditions.
OPTIONHOLDERS AGREEMENT means the agreement dated on or before the date
of this Agreement relating to the surrender of certain options and made
between the Optionholders (as defined therein) and Aspen.
OVERDRAFT FACILITY means the overdraft facility referred to in Clause
2.1 (c) under which overdrafts may be made available to Newco.
OVERDRAFT LIMIT means, subject to Clause 6.2.2. pounds sterling
l,000,000.
OVERDRAFT OUTSTANDINGS means the aggregate of all amounts outstanding by
way of overdraft under the Overdraft Facility.
PARKSIDE means the freehold property known as ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, as
the same is registered at H M Land Registry under title number SGL
345299.
PARTICIPATING MEMBER STATE means a member state of the European Union
which has adopted or adopts the single currency in accordance with the
Treaty establishing the European Community (as that Treaty is amended
from time to time).
PARTY means a party to this Agreement.
- 9-
PBIDT means, in relation to any period, the consolidated profit of the
Group for that period (including, for the avoidance of doubt, Exceptional
Items) before Taxation and Total Debt Costs, but excluding:
(a) profit attributable to minority interests;
(b) Extraordinary Items;
(c) any profit or loss arising on the disposal of fixed assets;
(d) any amount amortised or charged in respect of Acquisition Costs;
(e) amounts written off the value of investments;
(f) amounts written off the value attributed to Acquisition Goodwill;
(g) income from participating interests in associated undertakings and
income from any other fixed asset investment;
(h) realised and unrealised exchange gains and losses; and
(i) Depreciation charged to the Group's profit and loss account in
respect of such period.
PERMITTED ENCUMBRANCE means:
(a) any Encumbrance created under the Financing Documents:
(b) any right of set-off or lien, in each case arising by operation of
law or in the ordinary course under any banking arrangements;
(c) any retention of title to goods supplied to a Group Company in the
ordinary course of its trading activities; and
(d) any Encumbrance existing at the date of this Agreement disclosed
in writing to the Bank before the date of this Agreement.
PERMITTED INDEBTEDNESS means:
(a) Indebtedness under any Financing Document;
(b) Indebtedness under the Loan Notes Documents;
(c) Indebtedness existing at the date of this Agreement between Group
Companies;
(d) Indebtedness under any Finance Lease permitted under Clause
15.4.1(d);
(e) Indebtedness of any Charging Group Company to another Charging
Group Company;
(f) Indebtedness of a Group Company permitted under Clause 15.3(f);
- 10 -
(g) Indebtedness of Newco to USPI existing at the date of this
Agreement to a maximum aggregate amount of pounds sterling
22,000,000 or such other amount as the Bank may agree, and
(h) Indebtedness set out in paragraph (d) of the definition thereof
which is being disputed reasonably and in good faith Newco.
POTENTIAL DEFAULT means an event or omission which, with the giving of
any notice, the lapse of time, the determination of materiality or the
satisfaction of any other condition, in each case, under Clause 16.1,
would be a Default.
PROPERTIES means all freehold and leasehold properties listed in
Schedule 5; and Property means any one of them.
QUALIFYING BANK means an institution which is a bank within the meaning
of section 840A of the Income and Corporation Taxes ▇▇▇ ▇▇▇▇.
QUARTER DATE means each 31st March, 30th June, 30th September, 31st
December.
RESERVATIONS means the principle that equitable remedies are remedies
which may be granted or refused at the discretion of the court, the
limitation of enforcement by laws relating to bankruptcy, insolvency,
liquidation, reorganisation, court schemes, moratoria, administration and
other laws generally affecting the rights of creditors, the time barring
of claims under the Limitation ▇▇▇ ▇▇▇▇, the possibility that an
undertaking to assume liability for or to indemnify against non-payment
of United Kingdom stamp duty may be void, defences of set-off or
counterclaim and similar principles.
RETAINED PROFITS means, in relation to any period, the consolidated net
after-tax earnings of the Group for that period after deducting (if not
already deducted in the computation of such net earnings) amounts
attributable to minorities and extraordinary items.
SALE means completion of the sale and transfer to any person or group of
persons acting in concert (as defined in the City Code on Takeovers and
Mergers) which results in such person or persons together acquiring
control of 51 per cent or more of the voting rights attaching to the
equity share capital of Newco.
Security Documents means:
(a) Any Guarantee and Debenture executed by a Group Company;
(b) The Intercreditor Agreement;
(c) The USPI Guarantee; and
(d) any guarantee and any document creating security executed and
delivered after the date of this Agreement as security for any of
the obligations and liabilities of Newco and the other Group
Companies under any Financing Document.
SECURITY PERIOD means the period starting on the date of this Agreement
and ending on the date on which all of the obligations and liabilities of
the Group Companies under each Financing Document are discharged in full
and the Bank has no continuing obligation in relation to the Facilities.
-11-
SSAP together with a number means the statement of standard accounting
practice issued by the Institute of Chartered Accountants for application
in England and Wales and identified by reference to that number.
STERLING and POUNDS STERLING mean the lawful currency for the time being
of the United Kingdom.
SUBSIDIARY means a subsidiary within the meaning of section 736 of the
Act.
TAXES means all present and future taxes, charges, imposts, duties,
levies, deductions, withholdings or fees in the nature of taxes of any
kind whatsoever, or any amount payable on account of or as security for
any of the foregoing, by whomsoever on whomsoever and wherever imposed,
levied, collected, withheld or assessed, together with any penalties,
additions, fines, surcharges or interest relating thereto save to the
extent that such penalties, fines, surcharges or interest arise from a
delay or default on the part of the Bank or any subsidiary of the Bank in
paying taxes to the relevant taxing authority; and TAX and TAXATION shall
be construed accordingly.
TERM ADVANCE means the advance made or to be made to Newco under the Term
Loan and Guarantee Facility or, as the case may be, the outstanding
principal amount of that advance, and each advance into which a Term
Advance is split after a Drawdown Date pursuant to Clause 7.2.4.
TERM LOAN means, at any time, the aggregate of all Term Advances
outstanding at that time.
TERM LOAN COMMITMENT PERIOD means the period from, and including, the
date of this Agreement to and including the Expiry Date.
TERM LOAN AND GUARANTEE FACILITY means the term loan and guarantee
facility referred to in Clause 2.1(a).
TERM LOAN AND GUARANTEE FACILITY LIMIT means, subject to Clause 8. pounds
sterling 34,000,000.
TERM LOAN UTILISED AMOUNT means, at any time, an amount equal to the
aggregate at that time of (a) the Term Loan and (b) the Net Loan Notes
Guaranteed Amount.
TERMINATION AGREEMENT means the termination agreement dated on or before
the date of this Agreement relating to the termination of an investment
agreement and made between (1) The Efpep Funds and others (2) ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (3) ▇▇▇▇▇▇▇ ▇.▇. Broke and (4) Aspen.
TOTAL DEBT COSTS means, in relation to any period, all interest,
commissions, periodic fees and other periodic financing charges relating
to Indebtedness payable on a consolidated basis by the Group Companies
during that period (including the interest element payable under any
Finance Lease) less any interest receivable in respect of cash balances,
less any sums receivable or plus any sums payable by Newco under any
interest rate protection agreement of whatever description during that
period, and for the avoidance of doubt excluding (i) any fees and
commission paid in relation to the acquisition of Aspen Shares, (ii) any,
interest payable on the Loan Notes and (iii) any amounts amortised on
finance costs and issue costs arising from the acquisition of Aspen
Shares.
- 12 -
TOTAL FUNDING COSTS means, in relation to any period, the aggregate of:
(a) Total Debt Costs for that period;
(b) all scheduled repayments of the Term Loan and reductions to the
Capex Facility falling due during that period;
(c) any dividends declared payable in respect of that period;
(d) all interest payable on the Loan Notes in respect of that period;
and
(e) the capital element of all rentals or, as the case may be, other
payments payable in that period under any Finance Lease entered
into by any Group Company.
TRANSACTION DOCUMENTS means, in relation to a Group Company, each of the
following documents to which it is a party; the Financing Documents, the
Acquisition Documents and the Loan Notes Documents.
USPI means United Surgical Partners International, Inc., a corporation
incorporated under the laws of the State of Delaware having its principal
office at ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇.▇.▇.
USPI GUARANTEE means the guarantee in the agreed form executed or to be
executed by USPI in favour of the Bank.
VAT means value added tax as provided for in the Value Added Tax ▇▇▇ ▇▇▇▇
and legislation (or purported legislation and whether delegated or
otherwise) supplemental to that Act or in any primary or secondary
legislation promulgated by the European Community or any official body
or agency of the European Community, and any tax similar or equivalent to
value added tax imposed by any country other than the United Kingdom and
any similar or turnover Tax replacing or introduced in addition to any of
the same.
WARRANTY DEED means the deed of warranty dated on or before the date of
this Agreement and made between Newco and ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇.
1.2 HEADINGS
The headings in this Agreement are for convenience only and shall be
ignored in construing this Agreement.
1.3 INTERPRETATION
In this Agreement (unless otherwise provided):
(a) words importing the singular shall include the plural and vice
versa;
(b) references to Clauses and Schedules are to be construed as
references to the clauses of, and schedules to, this Agreement;
-13-
(c) references to any Financing Document or any other document shall
be construed as references to that Financing Document or that
other document, as amended, varied, novated or supplemented, as
the case may be;
(d) references to any statute or statutory provision include any
statute or statutory provision which amends, extends, consolidates
or replaces the same, or which has been amended, extended,
consolidated or replaced by the same, and shall include any
orders, regulations, instruments or other subordinate legislation
made under the relevant statute;
(e) references to a document being IN THE AGREED FORM means that
document the form and content of which has been approved by the
Bank and which has endorsed on it the words "in the agreed form"
and which is initialed by or on behalf of the Bank and Newco;
(f) references to ASSETS shall include revenues and property and the
right to revenues and property and rights of every kind, present,
future and contingent and whether tangible or intangible
(including uncalled share capital);
(g) the words INCLUDING and IN PARTICULAR shall be construed as being
by way of illustration or emphasis only and shall not be construed
as, nor shall they take effect as, limiting the generality of any
preceding words;
(h) the words OTHER and OTHERWISE shall not be construed ejusdem
generis with any foregoing words where a wider construction is
possible;
(i) references to a PERSON shall be construed so as to include that
person's assigns, transferees or successors in title and shall be
construed as including references to an individual, firm,
partnership, joint venture, company, corporation, body corporate,
unincorporated body of persons or any state or any agency of a
state;
(j) Where there is a reference in this Agreement to any amount, limit
or threshold specified in Sterling, in ascertaining whether or not
that amount, limit or threshold has been attained, broken or
achieved, as the case may be, a non-Sterling amount shall be
counted on the basis of the equivalent in Sterling of that amount
using the Bank's relevant spot rate of exchange:
(k) accounting terms shall be construed so as to be consistent with
GAAP; and
(1) References to time are to London time.
2. FACILITIES
2.1 Subject to the Terms of This Agreement:
(a) The Bank agrees to make available to Newco a Sterling term loan
and guarantee facility in the maximum principal amount of pounds
sterling 34,000,000;
(b) The Bank agrees to make available to Newco a Sterling revolving
capital expenditure facility in the maximum principal amount of
pounds sterling 7,000,000; and
- 14 -
(c) The Bank agrees to make available to Newco an overdraft facility
in the maximum amount of pounds sterling 11,000,000.
2.2 Notwithstanding Any Other Term of This Agreement:
(a) the Term Loan Utilised Amount shall not, at any time, exceed the
Term Loan and Guarantee Facility Limit;
(b) the Capex Loan shall not, at any time, exceed the Capex Facility
Limit; and
(c) the Overdraft Outstanding shall not, at any time, exceed the
Overdraft Limit.
3. PURPOSE
3.1 PURPOSE OF THE TERM LOAN AND GUARANTEE FACILITY
3.1.1 Subject to the other terms of this Agreement, the Term Loan and Guarantee
Facility is available for utilisation by way of Term Advances and Loan
Notes Guarantee Utilisations.
3.1.2 The proceeds of Term Advances shall only be used:
(a) to pay the consideration payable to the Vendors by Newco for the
Aspen Shares purchased by it pursuant to the Acquisition
Agreement;
(b) to pay the Acquisition Costs;
(c) to repay the existing indebtedness outstanding under the Existing
Facilities; and
(d) for paying amounts due in respect of the Loan Notes in accordance
with Clause 5.1.3.
3.2 PURPOSE OF THE CAPEX FACILITY
The proceeds of Capex Advances shall only be used:
(a) to finance the Capital Expenditure requirements of Newco including
those in respect of:
(i) The construction and development of a cancer center at
Paradise; and
(ii) the purchase of an MRI Scanner and
(b) to repay maturing Capex Advances.
3.3 PURPOSE OF THE OVERDRAFT FACILITY
The Overdraft Facility shall only be used for the general corporate
purposes of the Group (but not to make prepayments of the Term Loan).
- 15 -
3.4 UNDERTAKING BY NEWCO
Newco undertakes that it will only utilise the Facilities as permitted by
this Clause 3.
3.5 NO LIABILITY
The Bank shall not be concerned as to the use or application of the
proceeds of the Facilities.
4. CONDITIONS PRECEDENT
4.1 CONDITIONS PRECEDENT
Notwithstanding any other term of this Agreement, the Bank shall not be
under any obligation to make the Facilities available to Newco unless the
Bank has notified Newco that all the conditions set out in Schedule 1
have been satisfied on or prior to 7th April 2000.
4.2 CONFIRMATION OF SATISFACTION
The Bank shall, at the request of Newco, certify whether or not any one
or more of the conditions set out in Schedule 1 have been satisfied or,
as the case may be, waived.
5. DRAWDOWN
5.1 UTILISATION OF TERM LOAN AND GUARANTEE FACILITY
5.1.1 Subject to the other terms of this Agreement, the Term Loan and Guarantee
Facility shall be utilised by the drawdown of Term Advances and/or the
issue of the Loan Notes Guarantee at any time during the Term Loan
Commitment Period when requested by Newco by means of a Drawdown Notice
in accordance with Clause 5.4 and/or a Loan Notes Guarantee Utilisation
Notice in accordance with Clause 5.7. At close of business on the last
day of the Term Loan Commitment Period any part of the Term Loan and
Guarantee Facility not drawn down will be cancelled and the Term Loan and
Guarantee Facility Limit shall be reduced accordingly.
5.1.2 The following limitations apply to Term Advances:
(a) the first Drawdown Date of a Term Advance shall be no later than
14 April 2000;
(b) the first Term Advance shall be the sum of pounds sterling
34,000,000;
(c) no Term Advance shall be made if the making of that Term Advance
would result in the Term Loan Utilised Amount exceeding the Term
Loan and Guarantee Facility Limit;
(d) no Term Advance will be made to pay amounts of principal due under
the Loan Notes unless simultaneously with the making of that Term
Advance the obligations of the Bank to the holder of the relevant
Loan Notes are reduced by at least the same amount.
-16-
5.1.3 If the Bank makes a demand under the Newco Indemnity under Clause 5.8 in
respect of the Loan Notes Guarantee. Newco shall automatically be deemed
to have issued a Drawdown Notice for a Term Advance for an amount equal
to the amount so claimed by the Bank. The provisions of this Agreement
shall apply as if such Drawdown Notice had been duly served by Newco.
5.1.4 A Term Advance may be made under Clause 5.1.3 notwithstanding the
occurrence and continuation of a Default or a Potential Default or any of
the representations and warranties to be repeated on the relevant
Drawdown Date not being correct.
5.2 UTILISATION OF THE CAPEX FACILITY
Subject to the other terns of this Agreement, Capex Advances shall be
made to Newco at any time during the Capex Commitment Period when
requested by Newco by means of a Drawdown Notice in accordance with
Clause 5.5.
5.3 DRAWDOWN OF CAPEX FACILITY
5.3.1 The following limitations apply to Capex Advances;
(a) the Drawdown Date of a Capex Advance shall be a Business Day
during the Capex Commitment Period:
(b) the principal amount of a Capex Advance shall be a minimum amount
of pounds sterling 100,000 and in an integral multiple of pounds
sterling 50,000;
(c) no Capex Advance shall be made if the making of that Capex
Advance would result in the aggregate of all Capex Advances
exceeding the Capex Facility Limit;
(d) no more than 15 Capex Advances may be outstanding at any one time;
and
(e) no Capex Advance shall be made unless the Bank shall have received
from Newco evidence in form and substance satisfactory to the
Bank that the requested Capex Advance is to be used in accordance
with Clause 3.2.
5.3.2 At close of business on the last day of the Capex Commitment Period the
Capex Facility shall cease to be available for utilisation.
5.4 CONDITIONS TO EACH ADVANCE
The obligation of the Bank to make available an Advance is subject to
the conditions that on the date on which the relevant Drawdown Notice is
given and on the relevant Drawdown Date:
(a) the representations and warranties in Clause 14 to be repeated on
those dates are correct and will be correct immediately after the
Advance is made; and
(b) no Default or Potential Default has occurred and is continuing or
would occur on the making of the Advance.
-17-
5.5 DRAWDOWN NOTICE
5.5.1 Whenever Newco wishes to draw down an Advance. it shall give a duly
completed Drawdown Notice to tile Bank to be received not later than
11.00 a.m. on the first Business Day before such Drawdown Date.
5.5.2 A Drawdown Notice shall be irrevocable and Newco shall be obliged to
borrow iii accordance with its terms.
5.6 Limitations on the Loan Notes Guarantee
The following limitations apply to the Loan Notes Guarantee:
(a) the Issue Date shall be a Business Day falling not later than 7
April 2000:
(b) it shall be issued by the Bank in tile agreed form:
(c) without prejudice to paragraph (b) above, the Loan Notes Guarantee
shall. unless the Bank otherwise agrees:
(i) be denominated in Sterling: and
(ii) state on its face the maximum amount payable under it, not
exceeding pounds sterling 7,000,000 and its expire date:
(d) the Loan Notes Guarantee shall not be issued if the issuing of it
would cause the Term Loan Utilised Amount to exceed the Term Loan
and Guarantee Facility Limit; and
(e) no Loan Note Guarantees shall be issued under which a claim could
be made at any time after the Expiry Date.
5.7 CONDITIONS TO THE LOAN NOTES GUARANTEE
No Loan Notes Guarantee Utilisation Notice may be served and the Bank
shall not be under any obligation to issue the Loan Notes Guarantee:
(a) if a Default or Potential Default has occurred and is continuing
or would occur on the issuing of the Loan Notes Guarantee; or
(b) unless the representations and warranties deemed to be repeated
pursuant to Clause 14.2 are, or will be, true and accurate on the
date on which the relative Loan Notes Guarantee Utilisation Notice
is served.
5.8 LOAN NOTES GUARANTEE UTILISATION NOTICE
5.8.1 If Newco wishes the Loan Notes Guarantee to be issued, it shall give a
duly completed Loan Notes Guarantee Utilisation Notice to the Bank to be
received not later than 11.00 a.m. on the first Business Days prior to
the Issue Date (or such shorter period as the Bank may allow).
-18-
5.8.2 Subject always to the other terms of this Agreement, a Loan Notes
Guarantee Utilisation Notice shall be a irrevocable.
5.9 COUNTER INDEMNITY FROM NEWCO
5.9.1 Newco shall:
(a) indemnify and keep indemnified the Bank from and against all
actions, suits, proceedings, claims, demands, liabilities,
damages, costs, expenses, losses and charges in relation to or
arising out of the Loan Notes Guarantee; and
(b) pay to the Bank on demand the amount of all payments made (whether
directly or by way of set-off. counterclaim or otherwise) and all
losses, costs and expenses suffered or incurred by the Bank under
or by reason of the Loan Notes Guarantee.
5.9.2 The Bank is irrevocably authorised by Newco to comply with the terms of
any demand served or purporting to be served on the Bank under the Loan
Notes Guarantee without any reference to, or further authority from,
Newco and without any enquiry into the justification for that demand or
its validity. Any payment which the Bank shall make in accordance or
purporting to be in accordance with such a demand shall be binding on
Newco and be accepted by Newco as conclusive and binding evidence that
the Bank was liable to comply with the terms of such demand and was
liable to do so in the manner and for the amount in which the Bank
effected such compliance.
5.9.3 The liability of Newco under this Clause 5.9 shall not be discharged,
lessened or impaired by any time being given or by any thing being done
or other circumstance whatsoever which, but for this provision, would
or might operate to exonerate or discharge Newco.
5.9.4 The Newco Indemnity shall constitute and be a continuing security to the
Bank: and shall extend to the Loan Notes Guarantee as it may be varied,
modified, amended or extended.
5.10 INTEREST ON PAYMENTS
Newco shall pay to the Bank interest on the amount of each payment, loss,
cost and expense made, suffered or incurred by the Bank under or by
reason of the Loan Notes Guarantee from and including the date upon which
such payment, loss, cost or expense is made, suffered or incurred up to
and including the date upon which payment or reimbursement of such amount
is demanded from Newco. The amount of such interest shall be calculated
in accordance with Clause 9.3.
5.11 Subject to the terns of this Agreement, the Bank acting through its
Lending Office shall make an Advance available to Newco on the relevant
Drawdown Date.
6 THE OVERDRAFT FACILITY
6.1 NATURE OF FACILITY
6.1.1 Subject to the terms of this Agreement, the Overdraft Facility shall be
available for utilisation by Newco, provided that yhe Overdraft Facility
may be terminated and cancelled.
- 19 -
(in whole or in part) by the Bank at any time and the Overdraft Limit
shall be reduced by the amount so cancelled.
6.1.2 The Overdraft Facility shall be made available by the Bank in a maximum
amount equal to the Overdraft Limit.
6.1.3 The Overdraft Facility shall cease to be available on the Final Repayment
Date or such earlier date on which it is cancelled in accordance with the
terms of this Agreement.
6.1.4 Newco shall complete such mandate and other like documents in respect of
the Overdraft Facility as the Bank may reasonably require.
6.1.5 Notwithstanding the terms of this Agreement, the Bank: may review the
Overdraft Facility and the Overdraft Limit on an annual basis.
6.2 UTILISATION
6.2.1 Subject to the terms of this Agreement, the Bank agrees to make the
Overdraft Facility available on a revolving basis to Newco to be utilised
on any, Business Day by way of overdraft on usual banking terms including
a term that amounts outstanding by way of overdraft are repayable on
demand.
6.2.2 Subject to Clause 6.2.4. no utilisation of the Overdraft Facility under
Clause 6.2.1 shall be made if it would result in the Overdraft
Outstandings exceeding the Overdraft Limit.
6.2.3 For the avoidance of doubt, the Bank may, without liability, return
cheques unpaid if the payment of those cheques would result in a breach
of Clause 6.2.2.
6.2.4 The Overdraft Limit may only be increased with the prior consent of the
Bank.
7. INTEREST
7.1 INTEREST RATES
Interest shall accrue on each Advance from and including the relevant
Drawdown Date to but excluding the date the Advance is repaid at the rate
determined by the Bank to be the aggregate of:
(a) the Margin;
(b) LIBOR (or, in the case of a Fixed Funds Tranche, the Fixed Funds
Rate); and
(c) the Mandatory Cost Rate.
7.2 INTEREST PERIODS
7.2.1 Interest payable on each Advance shall be calculated by reference to
Interest Periods of 3, 6 or 12 months duration (or such other Interest
Period as the Bank may allow) as selected by Newco in accordance with
this Clause 7.2.
- 20 -
7.2.2 Newco shall select an Interest Period for a Capex Advance in the relevant
Drawdown Notice save in the case of a Capex Advance outstanding after the
expiry of the Capex Commitment Period where Newco shall select an
Interest Period in the case of any Interest Period subsequent to the
Capex Commitment Period by notice received by the Bank no later than 1
Business Day before the commencement of that Interest Period. Newco may
select an Interest Period for a Term Advance in either the Drawdown
Notice (in the case of the first Interest Period for that Advance) or (in
the case of any subsequent Interest Period for that Advance) by notice
received by the Bank no later than 1 Business Day before the commencement
of that Interest Period.
7.2.3 In respect of Term Advances and, after the last day of the Capex
Commitment Period, Capex Advances, interest shall be calculated by
reference to successive Interest Periods. The first Interest Period for a
Term Advance shall begin on the Drawdown Date relating to that Term
Advance. Each succeeding Interest Period for that Term Advance shall
begin on the Interest Date of the previous Interest Period.
7.2.4 Newco may, by notice to the Bank at least 2 Business Days before an
Interest Date relating to a Term Advance, elect that that Term Advance be
split into two or more Term Advances of at least pounds sterling
2,000,000 each (and being multiples of pounds sterling 1,000,000) or such
lesser amount equal to the amount of the Instalment falling due on the
next Instalment Repayment Date. Any such notice shall specify the
Interest Periods applicable to those Term Advances and shall take effect
in accordance with its terms from that Interest Date provided that there
shall not be more than 3 Term Advances outstanding at any one time.
7.2.5 Subject to the other terms of this Agreement, if the Interest Periods for
two or more Term Advances end on the same day those Term Advances shall
be deemed to be a single Term Advance from that day.
7.2.6 If Newco fails to select an Interest Period for an Advance in accordance
with Clause 7.2.2, that Interest Period shall, subject to the other
provisions of this Clause 7, be 3 months.
7.2.7 If an Interest Period would otherwise end on a day which is not a
Business Day, that Interest Period shall instead end on the next Business
Day in the same calendar month (if there is one) or the preceding
Business Day (if there is not).
7.2.8 If an Interest Period begins on the last Business Day in a calendar month
or on a Business Day for which there is no numerically corresponding day
in the calendar month in which that Interest Period is to end, it shall
end on the last Business Day in that later calendar month.
7.2.9 In respect of Term Advances, Newco shall select such Interest Periods to
ensure that, on each Instalment Repayment Date, there are Term Advances
with an Interest Period ending on that Instalment Repayment Date which
are, in aggregate, at least equal to the Instalment due on that
Instalment Repayment Date.
7.2.10 If an Interest Period for an Advance would otherwise extend beyond the
Final Repayment Date for the Facility under which such Advance is made
it shall be shortened so that it ends on the Final Repayment Date
relating to that Facility.
7.3 DEFAULT INTEREST
7.3.1 If Newco fails to pay any amount payable under any Financing Document on
the due date, it shall (unless otherwise provided in such Financing
Document) pay default interest on the overdue amount from the due date to
the date of actual payment calculated by reference to
- 21 -
successive Interest Periods (each of such duration as the Bank may
reasonably select and the first beginning on the relevant due date) at
the rate per annum being the aggregate of (a) 1 per cent. per annum, (b)
the Margin, (c) LIBOR and (d) the Mandatory Cost Rate.
7.3.2 So long as the overdue amount remains unpaid, the default interest rate
shall be recalculated in accordance with the provisions of this Clause
7.3 on the last day of each such Interest Period and any unpaid interest
shall be compounded at the end of each Interest Period.
7.4 FIXED RATE OPTION
7.4.1 Newco may, on at least two Business Days, notice prior to any Interest
Date, request the Bank in writing to quote a Fixed Funds Rate in respect
of a Term Advance or Term Advances to which such Interest Date relates
for a Fixed Rate Period commencing on the expiry of the relevant Interest
Period. Any such request shall state the amount and the duration of the
proposed Fixed Rate Period. The Bank shall have no obligation to quote
any such Fixed Funds Rate, but if it does so it shall contemporaneously
specify the method of and latest time for acceptance of such quote.
7.4.2 If Newco accepts a quote made by the Bank under Clause 7.4.1 by the
required method and prior to the latest time for acceptance, the Bank
shall as soon as reasonably practicable issue a Fixed Rate Confirmation
Notice and the proposed conversion shall occur as agreed.
7.4.3 At all times during the relevant Fixed Rate Period, interest shall accrue
on the Fixed Rate Tranche at the Fixed Funds Rate and the Mandatory Costs
agreed in respect of that Fixed Rate Tranche under this Clause 7.4 and
shall be payable 3 monthly in arrears.
7.4.4 The Term Advance or Term Advances to which the Fixed Funds Rate applied
shall, upon expiry of the Fixed Rate Period applicable to it, immediately
accrue interest in accordance with Clause 7.2.
7.4.5 (a) Newco expressly acknowledges that the Bank may enter into or may
have entered into one or more other arrangements in connection
with or by reference to this Agreement on the assumption that its
source of funds for payments to be made by it under such other
arrangements will be, in whole or in part, payments to be received
by it pursuant to this Agreement in respect of each Fixed Rate
Tranche during the relevant Fixed Rate Period.
(b) Accordingly, Newco agrees that in the event of:
(i) any default in payment by Newco of any sum under this
Agreement when due in connection with a Fixed Rate Tranche
during the applicable Fixed Rate Period; or
(ii) the occurrence of any Event of Default and acceleration of
repayment of the Fixed Rate Tranche under Clause 16; or
(iii) any repayment, prepayment or recovery in whole or in part
of a Fixed Rate Tranche prior to the last day of the
applicable Fixed Rate Period,
it shall on demand indemnify the Bank without prejudice to any of
its other rights under the Security Documents against any cost,
loss (including without limitation loss of Margin) expense or
liability which the Bank has sustained or incurred.
- 22 -
7.5 GUARANTEE COMMISSION
Commission in respect of the Net Loan Notes Guaranteed Amount shall:
(a) accrue from day to day on an amount equal to the Net Loan Note
Guaranteed Amount at a rate of 1.00 per cent per annum;
(b) be calculated on the basis of actual days elapsed and a 365 day
year; and
(c) be paid by Newco to the Bank in arrear on each Quarter Date.
7.6 INTEREST, COMMISSION AND FEES UNDER THE OVERDRAFT FACILITY
7.6.1 Interest on all amounts outstanding by way of overdraft under the
Overdraft Facility shall accrue at the rate of 1.50 per cent per annum
over the published base rate of the Bank from time to time.
7.6.2 Interest under Clause 7.6.1 on amounts outstanding by way of overdraft
shall be paid by Newco to the Bank on the Bank's usual quarterly charging
days.
7.6.3 The Bank may debit all interest, fees and commissions payable by Newco
under this Clause 7.6 to any account held by Newco with the Bank.
7.7 CALCULATION AND PAYMENT OF INTEREST
7.7.1 At the beginning of each Interest Period (other than in relation to a
Fixed Rate Tranche), the Bank shall notify Newco of the rate and amount
of interest payable for the Interest Period (but in the case of any
default interest calculated under Clause 7.3, any such notification need
not be made more frequently than weekly). Each notification shall set out
in reasonable detail the basis of computation of the amount of interest
payable.
7.7.2. Interest due from Newco under this Agreement shall:
(a) accrue from day to day at the rate calculated under this Clause 7;
(b) except as otherwise provided in this Agreement be paid by Newco
to the Bank in arrear on the last day of each Interest Period,
provided that: (i) for any Interest Period which is for longer
than 3 months, Newco shall pay interest 3 monthly in arrear
during that Interest Period; and (ii) the first Interest Period in
relation to a Term Advance drawdown pursuant to Clause 5.1.3 shall
be shortened so that it shall expire on the Interest Date which
most immediately succeeds that drawdown unless the Bank otherwise
agrees;
(c) be calculated on the basis of the actual number of days elapsed
and a 365 day year; and
(d) be payable both before and after judgement.
- 23 -
7.8 BANK'S DETERMINATION
The determination by the Bank of any interest payable under this Clause 7
shall be conclusive and binding on Newco except for any manifest error.
8. REPAYMENT OF THE TERM LOAN AND THE CAPEX LOAN
8.1 REDUCTION OF THE TERM LOAN UTILISED AMOUNT
Newco shall reduce the aggregate of the Term Loan Utilised Amount and the
Capex Loan by payment to the Bank on each date set out in Column 1 below
(each date being an INSTALMENT REPAYMENT DATE) of the amount (each an
INSTALMENT) set out in Column 2 below opposite the relevant Instalment
Repayment Date (so that the aggregate Term Loan Utilised Amount and the
Capex Loan is reduced to zero on or before the Final Repayment Date):
COLUMN I COLUMN 2
Instalment Repayment Date Instalment (pounds sterling)
30th September 2000 500,000
31st March 2001 500,000
30th September 2001 500,000
31st March 2002 500,000
30th September 2002 750,000
31st March 2003 750,000
30th September 2003 750,000
31st March 2004 750,000
30th September 2004 750,000
31st March 2005 750,000
30th September 2005 1,500,000
31st March 2006 1,500,000
30th September 2006 1,500,000
31st March 2007 1,500,000
30th September 2007 2,200,000
31st March 2008 2,200,000
30th September 2008 2,200,000
31st March 2009 2,200,000
30th September 2009 2,200,000
Final Repayment Date 17,500,000
8.1.2 Reductions of the Term Loan Utilised Amount under Clause 8.1 shall be
made:
(a) first, in repayment of any Term Advances; and
(b) second in repayment of any Capex Advances.
8.2 REPAYMENT OF THE CAPEX ADVANCES
8.2.1 Subject to Clauses 8.1 and 8.2.3. each Capex Advance shall be repaid in
full on the Interest Date of the Interest Period relating to that Capex
Advance.
- 24 -
8.2.2 Subject to the terms of this Agreement, any amounts repaid under Clause
8.2.1 may be re-borrowed.
8.2.3 If all or part of an existing Capex Advance made to Newco is to be repaid
from the proceeds of all or part of a new Capex Advance then, as between
the Bank and Newco, the amount to be repaid by Newco shall be set off
against the amount to be advanced by the Bank in relation to the new
Capex Advance and the party to whom the smaller amount is to be paid
shall pay to the other party a sum equal to the difference between the
two amounts.
9. PREPAYMENT
9.1 MANDATORY PREPAYMENT ON SALE OR LISTING
9.1.1 Notwithstanding Clause 8, if so required by the Bank, on any date on
which a Sale or a Listing occurs (a PREPAYMENT DATE):
(a) the Term Loan shall be repaid in full;
(b) all Capex Advances shall be repaid in full;
(c) all Overdraft Outstandings shall be repaid in full; and
(d) the Bank's obligations under this Agreement shall be terminated
and the Term Loan and Guarantee Facility Limit, the Capex
Facility Limit and the Overdraft Limit shall each be reduced to
zero.
9.1.2 On a Prepayment Date, Newco shall in respect of the Loan Notes Guarantee:
(a) use its reasonable endeavours to procure the release of the Bank
from the Loan Notes Guarantee;
(b) without prejudice to paragraph (a) above, pay to the credit of
such account as the Bank shall stipulate an amount in Sterling
equal to the Loan Notes Guaranteed Amount and charge such account
in favour of the Bank on terms satisfactory to the Bank.
9.1.3 Newco shall give the Bank at least 30 days' (or, in the case of a Sale
only. such shorter period as is practicable not being less than 5 days)
prior notice of the date upon which a Sale or Listing is proposed to
occur.
9.2 VOLUNTARY PREPAYMENT OF TERM LOAN AND CAPEX LOAN
9.2.1 Newco may, by giving the Bank not less than 5 Business Days' prior
notice, prepay the whole or part (but if in part, in a minimum amount of
pounds sterling 500,000 and an integral multiple of pounds
sterling 500,000) of any Term Advance or any Capex Advances on any date
subject to the payment of any sums payable pursuant to Clause 23.
9.2.2 Any notice of prepayment shall be irrevocable, shall specify the date on
which the prepayment is to be made and the amount of the prepayment, and
shall oblige the relevant Borrower to make that prepayment.
- 25 -
9.2.3 Any prepayment shall be made together with accrued interest on the amount
prepaid and any amounts payable under Clause 23.1
9.2.4 Each prepayment of the Term Loan under this Clause 9.2 shall be applied
against the relevant unpaid Instalments in inverse order of maturity.
9.3 NO RE-BORROWING OF TERM LOAN
Any amount repaid or prepaid in relation to the Term Loan or, after tile
last day of tile Capex Commitment Period, the Capex Loan, may not be
re-borrowed and shall reduce the Term Loan and Guarantee Facility Limit
or, as the case may be, the Capex Facility Limit by the amount so repaid
or prepaid.
10. CANCELLATION OF CAPEX FACILITY
10.1 CANCELLATION
Newco may, by giving the Bank not less than 5 Business Days' prior
notice, cancel all or part of the unutilised part of the Capex Facility
(but if in part, in a minimum amount of pounds sterling 500,000 and an
integral multiple of pounds sterling 100,000).
10.2 NOTICE
Any notice of cancellation shall be irrevocable and shall specify the
date on which the cancellation shall take effect and the amount of the
cancellation.
10.3 EFFECT OF CANCELLATION
Newco may not utilise any part of the Capex Facility which has been
cancelled. Any cancellation of the Capex Facility shall reduce the Capex
Facility Limit by the aggregate amount so cancelled.
10.4 LIMITATION
Newco may not cancel all or part of the Capex Facility except as
expressly provided in this Agreement.
11. CHANGES IN CIRCUMSTANCES
11.1 ILLEGALITY
If it is or becomes illegal for the Bank to maintain all or part of the
Facilities or to continue to make available or fund any Advance or to
issue or leave outstanding any guarantee obligation under the Loan Notes
Guarantee, then:
(a) the Bank; shall notify Newco; and
(b) (i) the Facilities shall be cancelled immediately;
- 26 -
(ii) the Term Loan and Guarantee Facility shall cease to be
available for the issue of the Loan Notes Guarantee.
(iii) Newco shall use its best endeavours to procure the release
of the Bank from any obligation under the Loan Notes
Guarantee if outstanding at that time; and
(iv) Newco shall prepay to the Bank all the Advances (together
with accrued interest on the amount prepaid and all other
amounts owing to the Bank under this Agreement) within 5
Business Days of demand by the Bank (or, if permitted by
the relevant law, on the last day of the Interest Period of
the relevant Advances).
Any such prepayment under paragraph (ii) above shall be subject to Clause
23.1.
11.2 INCREASED COSTS
11.2.1 If, after the date of this Agreement, a Change occurs which causes an
Increased Cost (as defined in Clause 11.2.3) to the Bank (or any company
of which the Bank is a Subsidiary) then Newco shall pay (as additional
interest) to the Bank within 5 Business Days of demand all amounts which
the Bank certifies to be necessary to compensate the Bank (or any company
of which the Bank is a Subsidiary) for the Increased Cost.
11.2.2 Any demand made under Clause 11.2.1 shall set out in reasonable detail
so far as is practicable the nature of the Change and the basis of
computation of the Increased Cost.
11.2.3 In this Clause 11.2:
INCREASED COST means any cost to, or reduction in the amount payable to,
or reduction in the return on capital or regulatory capital achieved by,
the Bank (or any company of which the Bank is a Subsidiary) to the extent
that it arises, directly or indirectly, as a result of the Change and is
attributable to all or part of a Facility or any Advance or the funding
of any Advance including:
(a) any Tax Liability (other than Tax on Overall Net Income) incurred
by the Bank;
(b) any changes in the basis or timing of Taxation of the Bank in
relation to all or part of a Facility or any Advance or the
funding of any Advance;
(c) the cost to the Bank (or any company of which the Bank is a
Subsidiary) of complying with, or the reduction in the amount
payable to or reduction in the return on capital or regulatory
capital achieved by the Bank (or any company of which the Bank is
a Subsidiary) as a result of complying with, any capital adequacy
or similar requirements howsoever arising, including as a result
of an increase in the amount of capital to be allocated to a
Facility or of a change to the weighting of the commitment under a
Facility or any Advance;
(d) the cost to the Bank of complying with any reserve, cash ratio,
special deposit or liquidity requirements (or any other similar
requirements); and
(e) the amount of any fees payable by the Bank to any supervisory or
regulatory authority.
- 27 -
TAX LIABILITY means, in respect of any person:
(a) any liability or any increase in the liability of that person to
make any payment of or in respect of Tax;
(b) the loss of any relief, allowance, deduction or credit in respect
of Tax which would otherwise have been available to that person;
(c) the setting off against income, profits or gains or against any
Tax liability of any relief, allowance, deduction or credit in
respect of Tax which would otherwise have been available to that
person; and
(d) the loss or setting off against any Tax liability of a right to
repayment of Tax which would otherwise have been available to that
person.
For the purposes of this definition of "Tax Liability", any question of
whether or not any relief, allowance, deduction, credit or right to
repayment of Tax has been lost or set off, and if so, the date on which
that loss or set-off took place, shall be conclusively determined by the
relevant person.
TAX ON OVERALL NET INCOME means, in relation to the Bank, Tax (other than
Tax deducted or withheld from any payment) imposed on the net profits of
the Bank by the jurisdiction in which its Lending Office or its head
office is situated.
11.2.4 Newco shall not be obliged to make a payment in respect of an Increased
Cost under this Clause 11.2 if and to the extent that the Increased Cost
has been compensated for by the payment of Mandatory Cost Rate or the
operation of Clause 12.9.
11.2.5 If Newco is required to pay any amount to the Bank under this Clause
11.2. then, without prejudice to that obligation and so long as the
circumstances giving rise to the relevant Increased Cost are continuing
and subject to Newco giving the Bank not less than 10 days' prior notice
(which shall be irrevocable), Newco may prepay all or part (but if in
part in a minimum amount of pounds sterling 500,000 and an integral
multiple of pounds sterling 500,000) of the Advances together with
accrued interest on the amount prepaid. Any such prepayment shall be
subject to Clause 23.1. On any such prepayment the Term Loan and
Guarantee Facility Limit and the Capex Facility Limited shall be reduced
accordingly.
11.3 MARKET DISRUPTION
11.3.1 If in relation to an Advance and a particular Interest Period:
(a) the Bank determines that, because of circumstances affecting the
London interbank market generally, reasonable and adequate means
do not exist for ascertaining LIBOR for that Advance for that
Interest Period: or
(b) the Bank is of the opinion that:
(i) matching deposits may not be available to it in the London
interbank market in the ordinary course of business to fund
that Advance for that Interest Period; or
(ii) the cost to it of obtaining matching deposits in the London
interbank market would be in excess of LIBOR for that
Interest Period.
- 28 -
the Bank shall promptly notify Newco of that event (such notice being a
MARKET DISRUPTION NOTICE).
11.3.2 If a Market Disruption Notice applies to a proposed Advance, that Advance
shall not be made. Instead, the Bank and Newco shall immediately enter
into negotiations for a period of not more than 30 days with a view to
agreeing a substitute basis for calculating tile interest rate for the
Advance or for funding the Advance. Any substitute basis agreed by the
Bank and Newco shall take effect in accordance with its terms.
11.3.3 If a Market Disruption Notice applies to an outstanding Advance. then:
(a) the Bank and Newco shall immediately enter into negotiations for a
period of not more that 30 days with a view to agreeing a
substitute basis for calculating the rate of interest for the
Advance or for funding the Advance;
(b) any substitute basis agreed under Clause 1 1.3.3(a) by the Bank
and Newco shall take effect in accordance with its terms;
(c) if no substitute basis is agreed under Clause 11.3.3(a), then,
subject to Clause 11.3.4, the Bank shall certify before the last
day of the Interest Period to which the Market Disruption Notice
relates a substitute basis for maintaining the Advance which shall
reflect the cost to the Bank of funding the Advance from whatever
sources it reasonably selects plus the Margin and Mandatory Cost
Rate; and
(d) each substitute basis so certified shall be binding on Newco and
the Bank; and treated as part of this Agreement.
11.3.4 If no substitute basis is agreed under Clause 11.3.3(a), then, so long as
the circumstances giving rise to the Market Disruption Notice continue
and subject to Newco giving the Bank not less than 5 Business Days'
prior notice (which shall be irrevocable). Newco may prepay the Advance
to which the Market Disruption Notice applies together with accrued
interest on the amount prepaid. Any such prepayment shall be subject to
Clause 23.1.
11.4 MITIGATION
11.4.1 If any circumstances arise in respect of the Bank which would or upon
the giving of notice would, result in the operation of Clause 11.1, 11.2,
11.3 or 12.9 to the detriment of Newco, then the Bank shall:
(a) promptly upon becoming aware of those circumstances and their
results, notify Newco; and
(b) in consultation with Newco, take all such steps as it determines
are reasonably open to it to mitigate the effects of those
circumstances (including changing its Lending Office or consulting
with Newco with a view to transferring some or all of its rights
and obligations under this Agreement to another bank or other
financial institution acceptable to Newco) in a manner which will
avoid the circumstances in question and on terms acceptable to
Newco and the Bank.
- 29 -
provided that the Bank shall not be obliged to take any steps which in
its opinion would or would reasonably be expected to have an adverse
effect on its business or financial condition or the management of its
Tax affairs or cause it to incur any material costs or expenses.
11.4.2 Nothing in this Clause 11.4 shall limit. reduce, affect or otherwise
qualify the rights of the Bank or the obligations of Newco under Clauses
11.1, 11.2, 11.3 and 12.9.
11.5 CERTIFICATES
The certificate or notification of the Bank as to any of the matters
referred to in this Clause 11 shall be in reasonable detail and shall be
conclusive and binding on Newco except for any manifest error.
12. PAYMENTS
12.1 FUNDS
All payments under this Agreement shall be made for value on the due date
in freely transferable and readily available funds.
12.2 PAYMENTS
12.2.1 Each payment to Newco shall be made to its account at such office or bank
as it may notify to the Bank for this purpose by not less than 5
Business Days' prior notice.
12.2.2 Each payment to the Bank shall be made to The Governor and Company of the
Bank of Scotland of ▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ for the
account of the Bank, account number 85725.
CHANGE OF ACCOUNT
Newco or the Bank may change its receiving account by not less than 5
Business Days' notice to the other.
12.4 BUSINESS DAYS
If a payment under this Agreement is due on a day which is not a Business
Day, the due date for that payment shall instead be the next Business Day
in the same calendar month (if there is one) or the preceding Business
Day (if there is not).
CURRENCY
All payments relating to costs, losses, expenses or Taxes shall be made
in the currency in which the relative costs, losses, expenses or Taxes
were incurred. Any other amount payable under this Agreement shall,
except as otherwise provided, be made in Sterling.
12.6 ACCOUNTS AS EVIDENCE
The Bank shall maintain in accordance with its usual practice an account
which shall, as between Newco and the Bank, be prima facie evidence of
the amounts from time to time advanced by, owing to, paid and repaid to
the Bank under this Agreement.
- 30 -
12.7 PARTIAL PAYMENTS
12.7.1 If the Bank receives a payment insufficient to discharge all the amounts
then due and payable by Newco under this Agreement. the Bank: shall
apply that payment towards the obligations of Newco in the following
order:
(a) first, in or towards payment of any unpaid costs and expenses of
the Bank under this Agreement;
(b) second, in or towards payment pro rata of any accrued interest due
by Newco but unpaid under this Agreement;
(c) third, in or towards payment pro rata of any principal due by
Newco but unpaid under this Agreement; and
(d) fourth, in or towards payment pro rata of any other sum due by
Newco but unpaid under the Financing Documents.
12.7.2 The Bank may vary the order set out in Clauses 12.7.1(a) to (d).
12.7.3 Clauses 12.7.1 and 12.7.2 shall override any appropriation made by Newco.
12.8 SET-OFF AND COUNTERCLAIM
All payments by Newco under this Agreement shall be made without set-off
or counterclaim.
12.9 GROSSING-UP
12.9.1 Subject to Clause 12.9.2, all sums payable to the Bank pursuant to or in
connection with any Financing Document shall be paid in full free and
clear of all deductions or withholdings whatsoever except only as may be
required by law.
12.9.2 If any deduction or withholding is required by law in respect of any
payment due from Newco to the Bank pursuant to or in connection with any
Financing Document, Newco shall:
(a) ensure or procure that the deduction or withholding is made and
that it does not exceed the minimum legal requirement therefor;
(b) pay, or procure the payment of, the full amount deducted or
withheld to the relevant Taxation or other authority in accordance
with the applicable law;
(c) increase the payment in respect of which the deduction or
withholding is required so that the net amount received by the
Bank after the deduction or withholding (and after taking account
of any further deduction or withholding which is required to be
made as a consequence of the increase) shall be equal to the
amount which the Bank would have been entitled to receive in the
absence of any requirement to make any deduction or withholding;
and
(d) promptly deliver or procure the delivery to the Bank of receipts
evidencing each deduction or withholding which has been made.
- 31 -
12.9.3 Newco shall not be required to pay an additional amount under this Clause
12.9 if the payment in respect of which the deduction or withholding is
required is a payment of interest on an Advance and:
(a) at the time that Advance was made, the Bank was not a Qualifying
Bank otherwise than as a consequence of a Change occurring after
the date of this Agreement (and the obligation to deduct or
withhold would not have arisen if that Advance had been made by a
Qualifying Bank); or
(b) at the time when the interest is paid, the Bank is not
beneficially entitled to it or, being beneficially entitled to it,
the Bank is not within the charge to United Kingdom corporation
tax as respects it otherwise than as a consequence of a Change
occurring after the date of this Agreement (and the obligation to
deduct or withhold would not have arisen if the Bank had been
beneficially entitled to the interest and had been within the
charge to United Kingdom corporation tax as respects it).
12.9.4 If the Bank determines, in its absolute discretion, that it has received,
realised, utilised and retained a Tax benefit by reason of any deduction
or withholding in respect of which Newco has made an increased payment
under this Clause 12.9. the Bank shall, provided that it has received
all amounts which are then due and payable by the obligors under any
Financing Document, pay to Newco (to the extent that the Bank can do so
without prejudicing the amount of the benefit or repayment and the right
of the Bank to obtain any other benefit, relief or allowance which may be
available to it) such amount, if any, as the Bank, in its absolute
discretion shall determine, will leave the Bank in no worse position than
it would have been in if the deduction or withholding had not been
required, provided that:
(a) the Bank shall have an absolute discretion as to the time at which
and the order and manner in which it realises or utilizes any Tax
benefit and shall not be obliged to arrange its business or its
Tax affairs in any particular way in order to be eligible for any
credit or refund or similar benefit;
(b) the Bank shall not be obliged to disclose any information
regarding its business Tax affairs or Tax computations;
(c) if the Bank has made a payment to Newco pursuant to this Clause
12.9.4 on account of any Tax benefit and it subsequently
transpires that the Bank did not receive that Tax benefit, or
received a lesser Tax benefit, Newco shall, on demand, pay to the
Bank such sum as the Bank may determine as being necessary to
restore its after-tax position to that which it would have been
had no adjustment under this Clause 12.9.4 been made. Any sums
payable by Newco to the Bank under this Clause 12.9.4 shall be
subject to Clause 18.7.
12.9.5 The Bank shall not be obliged to make any payment under Clause 12.9.4
if, by doing so, it would contravene the terms of any applicable law or
any notice, direction or requirement of any governmental or regulatory
authority (whether or not having the force of law).
12.9.6 If Newco is required to make an increased payment for the account of the
Bank under Clause 12.9.2. then, without prejudice to that obligation and
so long as such requirement exists and subject to Newco giving the Bank
not less than 10 days' prior notice (which shall be irrevocable). Newco
may prepay all or part (but if in part in a minimum amount of pounds
sterling 500,000 and an integral multiple of pounds sterling 500,000) of
the Advances together with accrued interest on the amount prepaid. Any
such prepayment shall be subject to Clause 23.1. On
32
any such prepayment the Term Loan and Guarantee Facility Limit and the
Capex Facility Limit shall be reduced accordingly.
13. SECURITY
13.1 SECURITY DOCUMENTS
The obligations and liabilities of Newco to the Bank under the Financing
Documents shall be secured by the interests and rights granted in favour
of the Bank under the Security Documents.
13.2 INTEREST RATE PROTECTION AGREEMENTS
All obligations and liabilities of Newco to the Bank under or in
connection with any Interest Rate Protection Agreement shall be treated,
for all purposes (other than Clauses 12.7 and 18.1), as obligations and
liabilities incurred under this Agreement and, for the avoidance of
doubt, Newco's obligations and liabilities under any Interest Rate
Protection Agreement shall be secured obligations and liabilities under
the Security Documents and for such purposes any reference in any
Security Document to the Bank shall be deemed to include the Bank as a
party to the relevant Interest Rate Protection Agreements.
14. REPRESENTATIONS AND WARRANTIES
14.1 REPRESENTATIONS AND WARRANTIES
Newco represents and warrants to the Bank that:
(a) STATUS: each Group Company is a limited company duly incorporated
under the laws of England and Wales, and it possesses the capacity
to ▇▇▇ and be sued in its own name and has the power to carry on
its business and to own its property and other assets;
(b) POWERS AND AUTHORITY: each Charging Group Company has power to
execute, deliver and perform its obligations under the Transaction
Documents to which it is a party and to carry out the transactions
contemplated by those documents and all necessary corporate,
shareholder and other action has been or will be taken to
authorise the execution, delivery, and performance of the same;
(c) BINDING OBLIGATIONS: subject to the Reservations, the obligations
of each Charging Group Company under the Transaction Documents
constitute its legal, valid, binding and enforceable obligations;
(d) CONTRAVENTIONS: the execution, delivery, and performance by each
Charging Group Company of the Transaction Documents does not:
(i) contravene any applicable law or regulation or any order of
any governmental or other official authority, body or
agency or any judgment, order or decree of any court having
jurisdiction over it;
-33 -
(ii) conflict in any material respect with, or result in any
breach of any of the terms of, or constitute a default
under, any agreement or other instrument to which it is a
party or any licence or other authorisation to which it is
subject or by which it or any of its property is bound; or
(iii) contravene or conflict with the provisions of its
memorandum and articles of association;
(e) INSOLVENCY: no Group Company has taken any action nor have any
steps been taken or legal proceedings been started or threatened
against it for winding-up, dissolution or re-organisation, the
enforcement of any Encumbrance over its assets or for the
appointment of a receiver, administrative receiver, or
administrator, trustee or similar officer of it or of any of its
assets;
(f) NO DEFAULT: no Group Company is (nor would be with any of the
giving of notice, the lapse of time, the determination of
materiality, or the satisfaction of any other condition) in breach
of or in default under any agreement to which it is a party or
which is binding on it or any of its assets in a manner or to an
extent which would reasonably be expected to have a Material
Adverse Effect;
(g) LITIGATION: no action, litigation. arbitration or administrative
proceeding has been commenced, or, to the best of Newco's
information, knowledge and belief, is pending or threatened,
against any Group Company which, if decided adversely, would
reasonably be expected to have a Material Adverse Effect nor is
there subsisting any unsatisfied judgment or award given against
any of them by any court, arbitrator or other body which would
reasonably be expected to have a Material Adverse Effect;
(H) ACCOUNTS:
(i) each of the latest Accounts is prepared in accordance with
GAAP and gives a true and fair view of the financial
position of the relevant Charging Group Company as at the
date to which they were prepared and for the Financial Year
of that company then ended; and
(ii) each of the latest set of Management Accounts shows with
reasonable accuracy the financial position of the Group or
as the case may be, the relevant Charging Group Company
during the period to which it relates;
(i) ENCUMBRANCES: no Encumbrance other than a Permitted Encumbrance
exists over all or any part of the assets of any Group Company;
(j) NO ENCUMBRANCES CREATED: the execution of the Financing Documents
by the Charging Group Companies and the exercise of each of their
respective rights and the performance of each of their respective
obligations under the Financing Documents will not result in the
creation of, or any obligation to create, any Encumbrance (other
than under the Security Documents) over or in respect of any of
their assets;
(k) AUTHORISATIONS: other than the registration of particulars of the
Security Documents at the Companies Registration Office pursuant
to section 395 of the
-34-
Act, registrations of particulars of the Security Documents at the
Land Registry, the giving of notice in respect of any contracts
being assigned, the stamping of the Acquisition Agreement, all
authorisations, approvals, licences, consents, filings,
registrations, payment of duties or taxes and notarisations
required.
(i) for the conduct of the business, trade and ordinary
activities of each Group Company except to the extent that
failure to make, pay or obtain the same would not have a
Material Adverse Effect;
(ii) for the performance and discharge of the obligations of
each Group Company under the Financing Documents to which
it is a party; and
(iii) in connection with the execution, delivery, validity,
enforceability or admissibility in evidence of the
Financing Documents,
are in full force and effect:
(1) TAXES: each Group Company has complied with all Taxation laws in
all jurisdictions in which it is subject to Taxation and has paid
all Taxes due and payable by it and no claims are being asserted
against it in respect of Taxes except for assessments in relation
to the ordinary course of its business or claims contested in good
faith and in respect of which adequate provision has been made and
disclosed in the latest Accounts or other information delivered to
the Bank under this Agreement;
(m) ACCOUNTING REFERENCE DATE: the accounting reference date of each
Group Company is 31st December;
(n) CORPORATE STRUCTURE: immediately prior to Completion, Newco has
had no Subsidiaries and:
(i) the details of Aspen and its Subsidiaries set out in
Schedule 3 are accurate and complete in all respects;
(ii) Aspen has no Subsidiaries other than those companies,
relevant details of which arc set out in Part 11 of
Schedule 3: and
(iii) each company (if any) listed in Part 11 of Schedule 3 is a
Dormant Subsidiary;
(o) NEWCO: prior to the date of this Agreement, Newco has not traded
nor undertaken any commercial activities of any kind and (except
as contemplated by, or otherwise in connection with, this
Agreement and the other Transaction Documents and the transactions
contemplated by this Agreement or by the other Transaction
Documents) has no liabilities or obligations, actual or
contingent;
(p) STATUTORY DECLARATIONS: each of the directors of each company
listed in Part 1 of Schedule 3 has properly made the statutory
declarations required to be made by him under section 155 of the
Act and has otherwise procured compliance with all the relevant
provisions of the Act in relation to the lawful giving of
financial assistance directly or indirectly for the purpose of
reducing or discharging Newco's liability incurred in connection
with its acquisition of Aspen Shares;
- 35 -
(q) ENVIRONMENTAL: each Group Company has and has at all times
complied with all applicable Environmental Law, non-compliance
with which would reasonably be expected to have a Material Adverse
Effect, Every consent, authorisation, licence or approval required
under or pursuant to any Environmental Law by each Group Company
in connection with the conduct of its business and the ownership,
use, exploitation or occupation of its assets the absence or lack
of which would reasonably be expected to have a Material Adverse
Effect, has been obtained and is in full force and effect, there
had been no default in the observance of the conditions and
restrictions (if any) imposed in, or in connection with, and, of
the same and, to the best of Newco's information, knowledge and
belief, no circumstances have arisen (i) which would entitle any
person to revoke, suspend, amend, vary, withdraw or refuse to
amend any of the same or (ii) which might give rise to a claim
against any Group Company which would reasonably be expected to
have a Material Adverse Effect having regard to the cost to that
Group Company of meeting such a claim; and
(r) NO MATERIAL ADVERSE CHANGE: since 31st December 1998 no event has
occurred which has had or would be reasonably expected to have a
Material Adverse Effect.
14.2 REPETITION
The representations and warranties set out in Clause 14.1 shall survive
the execution of this Agreement and shall be deemed to be repeated as
follows:
(a) each of the said representations and warranties shall be deemed to
be repeated on the first Drawdown Date; and
(b) each of the said representations and warranties (other than those
made under Clauses 14.1(c), (f), (g), (i), (j), (k), (1), (m),
(n), (o), (p), (q), (r) and (s) inclusive) shall be repeated on
each Interest Date,
in each case, as if made with reference to the facts existing at the time
of repetition.
15. UNDERTAKINGS
15.1 INFORMATION UNDERTAKINGS
Newco undertakes that during the Security Period it shall, unless the
Bank otherwise agrees:
(a) ACCOUNTS: as soon as the same become available (and in any event
within 180 days after the end of each of its Financial Years),
deliver to the Bank the Accounts for each such Financial Year of
Newco, Aspen and each other Charging Group Company together with:
(i) the unconsolidated profit and loss account for Newco for
each such Financial Year; and
(ii) a copy of the management letter (if any) addressed by the
auditors to the directors of each such company in
connection with its auditing of
- 36 -
the relevant Accounts as soon as reasonably practicable after
receipt of the letter by such company:
(b) Management accounts: as soon as the same become available (and in
any event within 45 days after each Quarter Date, deliver to the
Bank the management accounts (the MANAGEMENT ACCOUNTS) of Newco
(in which case such management accounts shall be consolidated
management accounts relating to the Group) and of Aspen and each
other Charging Group Company for each such Accounting Period and
in such a form as to disclose with reasonable accuracy the
financial position of the Group or, as the case may be, the
relevant company and which shall include the following information
in respect of each such quarter:
(i) a statement of profit and loss:
(ii) a balance sheet;
(iii) a cashfow statement: and
(iv) a commentary prepared by the Management of the Group's
activities during such quarter,
together with a comparison, where appropriate, of all such information
with the estimates, forecasts and projections in the relevant Operating
Budget (or any replacement or substitution made therefor) in relation to
each such quarter including an analysis justifying any variations
therefrom and, if necessary, revised estimates, forecasts and
projections:
(c) OPERATING BUDGETS:
(i) in the case of Newco only, provide to the Bank (in a format
agreed by the Bank prior to tile date of this Agreement) an
Operating Budget for each of its Financial Years during
the Security Period, within 45 days after the start of
each such Financial Year, together with a comparison of the
information, estimates, forecasts and projections contained
therein with any relevant information, estimates, forecasts
and projections provided to the Bank pursuant to Clause
2(b) of Schedule 1 to this Agreement including an analysis
justifying any variations therefrom; and
(ii) if any Group Company shall determine that any of the
estimates, forecasts or projections made in relation to any
of its Financial Years should be different from those set
out in the then current Operating Budget (or any
substitution therefor subsequently made and agreed by the
Bank), provide to the Bank revised estimates, forecasts or
projections in respect of any part of each such Financial
Year and such revised estimates, forecasts or projections
shall apply immediately following their approval by the
boards of directors of the relevant company:
(d) INFORMATION ON REQUEST: promptly following the Bank's request,
provide to the Bank such other information. estimates, forecasts
or projections in relation to any
- 37 -
Group Company and any of their respective businesses, assets,
financial condition, ownership or prospects as the Bank may
reasonably require:
(e) COMPLIANCE CERTIFICATES: in the case of Newco only, provide to the
Bank within 45 days of each Quarter Date a certificate (a
COMPLIANCE CERTIFICATE) executed under the authority of the board
of directors of Newco certifying that in relation to the 3 month
period ending on each such Quarter Date all the financial
undertakings under Clause 15.4 of this Agreement are for the time
being complied with and including calculations relating to the
financial undertakings set out in Clause 15.4: (For the purpose of
this Clause 15.1(e) the calculations shall be made by reference
the Management Accounts prepared for the 3 month period in
relation to which the relevant Compliance Certificate is to be
given and, in relation to a Compliance Certificate given in
relation to the last 3 months in any Financial Year of Newco,
Newco shall procure that the Auditors shall, if they are so
satisfied, confirm when delivering the relevant Accounts, in a
confirmation addressed to the Bank, that the calculations
contained in the relevant certificate arc in their opinion, based
on the Accounts, fair and reasonable provided that if there have
been any breaches of those undertakings at any time during the
period to which that certificate relates then Newco shall include
in that certificate relevant details of all those breaches);
(f) GAAP: ensure that all Accounts and the Management Accounts
submitted to the Bank have been prepared in accordance with GAAP;
and
(g) NOTIFICATION: promptly, upon becoming aware of the same, notify
the Bank of:
(i) any Default or Potential Default:
(ii) any litigation, arbitration or administrative proceeding
commenced against any Group Company which would reasonably
be expected to have a Material Adverse Effect;
(iii) any Encumbrance (other than a Permitted Encumbrance)
attaching to any of the assets of any Group Company;
(iv) any other occurrence relating to a Group Company (including
any third party claim or liability) which would reasonably
be expected to have a Material Adverse Effect;
(v) any individual item of Capital Expenditure incurred by the
Group in excess of pounds sterling 250,000; and
(vi) any Capital Expenditure incurred by the Group in relation
to an item which, in relation to such item, exceeds the
amount set out in the financial projections provided by
Newco to the Bank.
- 38 -
15.2 POSITIVE UNDERTAKINGS
Newco undertakes that during the Security Period it shall. and it shall
procure that each Group Company shall. unless the Bank otherwise agrees
(a) PAY TAXES: pay and discharge all Taxes and governmental charges
payable by or assessed upon it prior to the date on which the same
become overdue unless, and only to the extent that. such Taxes and
charges shall be contested in good faith by appropriate
proceedings. pending determination of which payment may lawfully
be withheld, and there shall (if the Auditors so advise) be set
aside adequate reserves with respect to any such Taxes or charges
so contested in accordance with GAAP.
(b) INSURANCE: ensure that insurance is maintained in accordance with
the Security Documents and, in the case of Aspen Healthcare
Limited only, maintain medical mal-practice insurance with an
insurance company approved by the Bank (acting reasonably) and
Newco will ensure that at all times the aggregate cover for the
Group Companies shall not fall below pounds sterling3.000.000 and
will. on an annual basis, take proper advice as to whether such
cover should be increased (communicating the substance of such
advice to the Bank) and will, at the Bank's request, increase the
cover in accordance with such advice:
(c) AUTHORISATIONS: obtain, maintain and comply with the terms of any
authorisation, approval, licence, operating certificates, consent,
exemption, clearance, filing or registration required:
(i) for the conduct of its business, trade and ordinary
activities. save to the extent that failure to obtain,
maintain or comply with the same would reasonably be
expected not to have a Material Adverse Effect; and
(ii) to enable it to perform its obligations under. or for the
validity, enforceability or admissibility in evidence of.
any Financing . Document;
(d) ACCESS: upon reasonable notice being given to Aspen by the Bank.
permit the Bank and any person (being an accountant, auditor.
Solicitor, valuer or other professional adviser of the Bank)
authorised by the Bank to have, at all reasonable times during
normal business hours. access to the property (including the
Properties), premises and accounting books and records of any
Group Company and to the Management:
(e) FURTHER DOCUMENTS: at the request of the Bank. do or procure the
doing of all such things and execute or procure the execution of
all such documents as are, in the opinion of the Bank, necessary
or desirable to ensure that the Bank obtains all its rights and
benefits under the Financing Documents:
(f) DELIVERY OF DECLARATIONS, ETC: within any relevant period laid
down in any statute, law or regulation applicable in the United
Kingdom make all necessary declarations and deliver all necessary
forms and documents required to be delivered to, filed with or
registered with any United Kingdom governmental, statutory or
other body or agency by it in connection with the Transaction
-39-
Documents and any of the transactions contemplated under the Transaction
Documents:
(g) COMPLIANCE WITH ENVIRONMENTAL LAW: comply in all material respects
with Environmental Law.
(h) DANGEROUS MATERIALS: ensure that all Dangerous Materials treated,
kept and stored, produced, manufactured, generated, refined or
used from, in, upon. or under any of the real property owned by a
Group Company are held and kept upon such real property in such a
manner and up to such standards as they would be kept by a prudent
company carrying on the same trade as that Group Company;
(i) COMPLIANCE WITH SECTION 151 OF THE ACT: comply in all respects
with sections 151 to 158 inclusive of the Act, including in
relation to the execution of the Security Documents and the
payment of amounts due under this Agreement;
(j) AUDITORS' CONFIRMATION: use all reasonable endeavours to procure
that, within 10 Business Days of the date of appointment as
auditors of any Charging Group Company, the relevant accountants
deliver to the Bank a letter from such newly appointed auditors
confirming that they arc aware of the provisions of Clauses 1 and
15.4.1 of this Agreement;
(k) DORMANT COMPANIES: procure that none of the companies set out in
Part ll of Schedule 3 cease being a Dormant Subsidiary, other than
as a result of a liquidation of any such company which would not
be a Default, and do not acquire any assets and do not assume any
liabilities or if any such company ceases to be a Dormant
Subsidiary, procure that such company delivers a duly executed
Guarantee and Debenture to the Bank within 10 Business Days of
ceasing to be a Dormant Subsidiary: and
(l) HEDGING: within 3 months of Completion procure that Newco enter
into interest rate protection agreements in accordance with the
interest rate management strategy agreed with the Bank before the
date of this Agreement in relation to at least 50 percent of the
Term Loan and complies with and discharges its obligations and
liabilities under those agreements.
15.3 NEGATIVE UNDERTAKINGS
Newco undertakes that during the Security Period it shall not, and it
shall procure that none of the Group Companies shall, unless the Bank:
otherwise agrees:
(a) NEGATIVE PLEDGE: create or permit to subsist any Encumbrance over
any of its assets other than Permitted Encumbrances:
(b) DISPOSAL OF ASSETS: make a Disposal without the prior consent of
the Bank other than:
(i) in the ordinary course of its trading activities: or
(ii) a Disposal to a Charging Group Company; or
- 40 -
(iii) a Disposal of an asset (not being a Disposal of real
property) which is obsolete for the purpose for which such
an asset is normally utilised: or
(iv) a Disposal of cash on terns not otherwise prohibited by
this Agreement: or
(v) a Disposal on arm's length terms where the aggregate
value of the assets the subject of a Disposal by Group
Companies other than in accordance with paragraphs (i) to
(iv) above in any Financial Year of Newco does not exceed
pounds sterling 50.000 (for the purposes of this paragraph,
the value of any asset shall be the greater of its book
value and the consideration received for it):
(c) CHANGE OF BUSINESS: make any substantial change to the general
nature or scope of the business of the Group as a whole from that
carried on at the date of this Agrecmcnt;
(d) MERGERS: enter into (a) any amalgamation, demerger, merger or
reconstruction or (b) any joint venture or partnership agreement
which relates to a material part of the assets or revenues of the
Group taken as a whole:
(e) FEES: pay any fees or commissions to any person other than (i) on
open market terms and for the purpose of and in the ordinary
course of its trade or (ii) fees incurred under or in connection
with any Transaction Document;
(f) LOANS: make any loans or grant any credit to or for the benefit of
any person. other than:
(i) amounts of credit allowed by the relevant company in the
normal course of its trading activities: or
(II) loans made by one Charging Group Company to another
Charging Group Company: or
(iii) loans made by a Group Company which is not a Charging Group
Company to another such Group Company: or
(iv) loans made by a Group Company to its employees where such
loans do not, when aggregated with all such loans made by
all Group Companies, exceed pounds sterling 50,000 at any
time:
(g) INDEBTEDNESS: incur or permit to subsist any Indebtedness other
than Permitted Indebtedness:
(h) INCORPORATION OF SUBSIDIARIES: incorporate any company as its
Subsidiary (except where such company upon its incorporation
executes, subject to, and to the extent permitted under, all
applicable laws, a Guarantee and Debenture (or the equivalent
documents (in a form approved by the Bank) under the laws of the
jurisdiction of that company's incorporation) and delivers the
same to the Bank together with, in the latter case, a legal
opinion (in a form and content satisfactory to the Bank) from
lawyers appointed by the Bank:
-41 -
(i) ACQUISITIONS: acquire any business of, or shares or securities of,
any company (other than a Charging Group Company).
(j) DIVIDENDS: in respect of Newco only, make, pay or declare any
dividend or other distribution in relation to any, shares forming
part of its issued share capital unless:
(i) no Default or Potential Default has occurred and is
continuing or would occur as a result; and
(ii) either the aggregate of all such dividends and
distributions in any Financial Year of Newco does not
exceed 25 per cent. of the retained earnings of Newco in
that Financial Year or the amount of any further such
dividend or distribution has previously been agreed in
writing by the Bank.
(k) LOAN NOTES: in respect of Newco only pay any interest in respect
of the Loan Notes provided that Newco shall pay interest on the
Loan Notes in accordance with the terns of the Loan Note
Instrument, so long as:
(A) no sum is due and unpaid under this Agreement;
(B) no Default or Potential Default has occurred and is
continuing;
(C) the payment of such interest will not in the period
of 6 months immediately following the payment of
such interest result in a breach of any of the
financial undertakings contained in Clause 15.4.1
and the directors of Newco issue a certificate to
the Bank to that effect; and
(D) Newco shall have delivered to the Bank one or more
Compliance Certificates in relation to the period in
respect of which such interest is to be paid
(including the provision of any applicable Auditor's
confirmation) at least 5 Business Days prior to the
date on which such interest on the Loan Notes is to
be paid.
(1) VARIATION OF TRANSACTION DOCUMENTS: permit or effect any
variations, novations or amendments to the Loan Note Instrument
and the Loan Notes; nor
(m) OPERATING LEASE PAYMENTS: other than under leases of real
property, make a payment under any hire agreement, credit sale
agreement, hire purchase agreement, conditional sale agreement or
instalment sale and purchase agreement which is not a Finance
Lease if the aggregate of all such payments made by the Group
Companies will exceed, in any Financial Year of Newco, pounds
sterling 200,000
15.4 FINANCIAL UNDERTAKINGS
15.4.1 Newco undertakes to ensure that during the Security Period. unless the
Bank otherwise agrees:
-42-
(a) PBIDT TO TOTAL DEBT COSTS
PBIDT shall not be less than 200 per cent of Total Debt Costs for
each period of 12 months ending on each Quarter Date on or prior
to the 31st March 2002 and PBITD shall not be less than 250 per
cent of Total Debt Costs for each period of 12 months ending on
each Quarter Date after 31st March 2002, the first such 12 month
period ending on 30 June 2000:
(b) LOAN TO PBIDT
During the periods set out below. the Loan (which, for the purpose
of this Clause 15.4.1(b), prior to the earlier of (i) practical
completion of the construction of the cancer centre at Parkside
and (ii) the opening of the cancer centre at Parkside, shall be
deemed to exclude the Capex Loan) shall not exceed the following
percentages of PBIDT:
(i) for the period of 3 months ending on 30 June 2000, 550 per
cent. (calculated on an annualised basis);
(ii) for the period of 6 months ending on 30 September 2000, 550
per cent. (calculated on an annualised basis);
(iii) for the period of 9 months ending on 31 December 2000. 550
per cent. (calculated on an annualised basis);
(iv) for each period of 12 months ending on each Quarter Date
after 31 December 2000 but on or prior to 31 March 2002,
550 per cent.;
(v) for each period of 12 months ending on each Quarter Date
after 31 March 2002 but on or prior to 31 March 2004, 500
per cent.; and
(vi) for each period of 12 months ending on each Quarter Date
after 31 March 2004, 450 per cent.
(c) FINANCE LEASE EXPENDITURE
no Group Company shall incur any Finance Lease Expenditure if it
would result in the aggregate Finance Lease Expenditure incurred
by the Group Companies at any time exceeding pounds sterling
2,500,000; and
(d) CASHFLOW TO TOTAL FUNDING COSTS
the ratio of Cashflow to Total Funding Costs for each period of 12
months ending on the 31st December in each year in each year
shall not be less than 1.25:1.
15.4.2 (a) If the directors of any Group Company determine at any time during
the Security Period that the accounting reference date of that
Group Company has or should be changed or any of the accounting
principles applied in the preparation of any of the Accounts and
the Management Accounts shall be different from the Accounting
Principles, or if as a result of the introduction or
implementation of
- 43 -
any SSAP or FRS or any change in any of them or in any applicable
law such accounting principles are required to be changed. Newco
shall promptly give notice to the Bank of that change,
determination or requirement.
(b) If the Bank believes that the financial undertakings set out in
this Clause 15.4 need to be amended as a result of any such
change, determination or requirement, Newco shall negotiate with
the Bank in good faith to amend the existing financial
undertakings so as to provide the Bank with substantially the same
protections as the financial undertakings set out in this Clause
15.4 (but which are not materially more onerous).
(c) If Newco and the Bank cannot agree such amended financial
undertakings within 30 days of that notice, Newco and the Bank
shall jointly nominate a firm of chartered accountants to settle
the amended financial undertakings, or in default of such
nomination the Bank shall request the President for the time being
of the Institute of Chartered Accountants in England and Wales to
nominate a firm of chartered accountants for that purpose. Such
accountants shall act as experts and not arbitrators and their
decision shall be final and binding on the Parties. The costs of
such accountants shall be paid by Newco.
15.4.3 The calculation of ratios and other amounts under this Clause 15.4 shall
be made by the Bank by reference to the latest Accounts and Management
Accounts of the Group Companies for the Financial Year of Newco. or other
period in relation to which the calculation falls to be made. Each
determination of the Bank under this Clause 15.4 shall be conclusive and
binding on Newco except for any manifest error.
16. DEFAULT
16.1 DEFAULT
Each of the following shall be a Default:
(a) NON-PAYMENT: Newco does not pay on the due date any amount
payable by it under this Agreement at the place at and in the
currency and funds in which it is expressed to be payable unless
the failure to pay such amount is due solely to administrative or
technical delays in the transmission of funds and such amount is
paid within 3 Business Days after its due date for payment; or
(b) OTHER DEFAULTS: any Charging Group Company breaches any of its
obligations under any Financing Document (other than the
obligations referred to in Clause 16.1(a)) and, if that breach is
capable of remedy, it is not remedied to the satisfaction of the
Bank within 7 Business Days after any Charging Group Company
becomes aware of such breach; or
(c) BREACH OF REPRESENTATION OR WARRANTY: any representation, warranty
or statement made or deemed to be repeated by any Charging Group
Company under any Financing Document is incorrect when made or
deemed to have been repeated; or
-44-
(d) UNLAWFULNESS OR REPUDIATION: it is unlawful for any Charging Group
Company to perform or comply with, or any Charging Group Company
repudiates, any of its obligations under any Financing Document:
or
(e) CROSS-DEFAULT: any Indebtedness of all or any of the Group
Companies in excess of, in aggregate, sterling pounds 150,000:
(i) is not paid when due or within any originally applicable
grace period; or
(ii) is declared to be or otherwise becomes due and payable
prior to its specified maturity,
or any creditor of all or any of the Group Companies
becomes entitled to declare any such Indebtedness due and
payable prior to its specified maturity due to a default or
similar culpable occurrence; or
(f) ATTACHMENT OR DISTRESS: a creditor or encumbrancer attaches or
takes possession of, or a distress, execution, sequestration or
other process is levied or enforced upon or sued out against, any
of the assets of any Group Company (having a value of at least
pounds sterling 20,000) and such process is not discharged within
7 days save where the same is being contested in good faith and by
appropriate action and in a manner consistent with legal advice
(Counsel having advised there is a good prospect of success); or
(g) ENFORCEMENT OF SECURITY: any Encumbrance (which in the case of any
right of set-off, lien or retention of title provision is securing
Indebtedness in excess of pounds sterling 50,000) over any of the
assets of any Group Company becomes enforceable: or
(h) INABILITY TO PAY DEBTS: any Group Company (other than a Dormant
Subsidiary):
(i) suspends payment of its debts or is unable or admits its
inability to pay its debts as they fall due; or
(ii) begins negotiations with any class of creditors with a view
to the readjustment or rescheduling of any of its
Indebtedness which it would not otherwise be able to pay
when due; or
(iii) proposes or enters into any composition or other
arrangement for the benefit of its creditors generally or
any class of creditors; or
(i) INSOLVENCY PROCEEDINGS: any person takes am action or any legal
proceedings are started or other steps taken (including the
presentation of a petition) for:
(i) any Group Company (other than a Dormant Subsidiary) to be
adjudicated or found insolvent; or
(ii) the winding-up or dissolution of any Group Company other
than (A) in respect of a Dormant Subsidiary, (B) in
connection with a solvent reconstruction, the terms of
which have been previously approved in writing by the Bank,
or (C) a winding-up petition which
- 45 -
is proved to the satisfaction of the Bank to be frivolous
or vexatious and which is, in any event, discharged within
14 days of its presentation and before it is advertised, or
(iii) the appointment of a trustee, receiver, administrative
receiver or similar officer in respect of any Group Company
or any of its assets; or
(j) ADJUDICATION OR APPOINTMENT: any adjudication is made or in
relation to any proceeding under Clause 16.1(i)(i) or any order or
appointment is made under or in relation to any of the proceedings
referred to in Clause 16.1(ii) or (iii); or
(k) ADMINISTRATION ORDER: an application is made to the court for an
administration order under the Insolvency ▇▇▇ ▇▇▇▇ with respect to
any Group Company (other than a Dormant Subsidiary); or
(1) ANALOGOUS PROCEEDINGS: any event occurs or proceeding is taken
with respect to any Group Company (other than a Dormant
Subsidiary) in any jurisdiction to which it is subject which has
an effect equivalent or similar to any of the events mentioned in
Clause 16.1(f), (h), (i), (j) or (k); or
(m) CESSATION OF BUSINESS: any Group Company (other than a Dormant
Subsidiary) suspends, ceases or threatens to suspend or cease to
earn, on all or a substantial part of its business; or
(n) CHANGE OF CONTROL: a person (whether alone or together with any
associated person or persons) becomes the beneficial owner of
shares in the issued share capital of Newco carrying the right to
exercise more than 50 per cent. of the votes exercisable at a
general meeting of Newco (for the purposes of this Clause 16.1(n),
ASSOCIATED PERSON means, in relation to any person, a person who
is (i) "acting in concert" (as defined in the City Code on
Takeovers and Mergers) with that person or (ii) a "connected
person" (as defined in section 839 of the Income and Corporation
Taxes Act 1988) of that person), without the prior written consent
of the Bank; or
(o) MATERIAL ADVERSE CHANGE: any event or series of events occur which
has or would reasonably be expected to have a Material Adverse
Effect; or
(p) REDEMPTION OF SHARES BY NEWCO: Newco, without the prior written
consent of the Bank, makes any redemption of any of its shares,
purchases any of its shares or otherwise reduces its issued share
capital.
16.2 ACCELERATION
If a Default occurs and remains unremedied the Bank may by notice (a
DEFAULT NOTICE) to Newco cancel the Facilities and require Newco
immediately to repay each Loan (including any Fixed Funds Tranche)
together with accrued interest and all other sums payable under this
Agreement, whereupon they, shall become immediately due and payable. Upon
the service of any Default Notice the Bank's obligations to Newco under
this Agreement shall be terminated and the Term Loan and Guarantee
Facility Limit, the Capex Facility Limit and the Overdraft Limit shall
each be reduced to zero.
-46-
16.3 Immediately upon the Bank serving a Default Notice, Newco shall use its
reasonable endeavours to procure the release of the Bank from its
obligations under the Loan Notes Guarantee.
17. SET-OFF
The Bank may set off any matured obligation owed by Newco under any
Financing Document against any obligation (whether or not matured) owed
by the Bank to Newco, regardless of the place of payment, booking branch
or currency of either obligation. If the obligations are in different
currencies, the Bank may convert either obligation at the relevant spot
rate of exchange of the Bank for the purpose of the set-off.
18. FEES AND EXPENSES
18.1 EXPENSES
Newco shall on demand pay all expenses incurred (including legal,
valuation and accounting fees but, in relation to paragraphs (a) and (b)
below, only to the extent the same arc reasonable in amount), and any VAT
on those expenses:
(a) by the Bank in connection with the negotiation, preparation and
execution of the Financing Documents and the other documents
contemplated by the Financing Documents;
(b) by the Bank in connection with the granting of any release, waiver
or consent or in connection with any amendment or variation of any
Financing Document; and
(c) by the Bank in enforcing, perfecting, protecting or preserving
(or attempting so to do) any of its rights, or in suing for or
recovering any sum due from Newco or any other person under any
Financing Document, or in investigating any possible Default or
Potential Default.
18.2 ARRANGEMENT FEE
Newco shall pay to the Bank any arrangement fee in accordance with the
terms of the Fees Letter. For the avoidance of doubt, all liabilities and
obligations of Newco under the Fees Letter shall be deemed to be incurred
under this Agreement and shall be secured by the Security Documents.
18.3 MANAGEMENT FEE
Newco shall pay to the Bank any annual management fee of pounds sterling
15,000 per annum the first of such fees to be payable on the first
anniversary of the date of this Agreement and thereafter on each
subsequent anniversary of the date of this Agreement.
18.4 COMMITMENT FEE
Newco shall pay a commitment fee in Sterling to the Bank at the rate of
1.00 per cent. per annum on the Capex Facility Limit less the aggregate
of all Capex Advances. The commitment fee shall be calculated on a day to
day basis and a 365 day year in respect of
- 47 -
the Capex Commitment Period and shall be payable in arrear on each
Quarter Date and also on the last day of the Capex Commitment Period or
any earlier date on which the Capex Facility Limit equals zero.
18.5 DOCUMENTARY TAXES INDEMNITY
All stamp, documentary, registration or other like duties or Taxes.
including any penalties, additions, fines, surcharges or interest
relating to those duties and Taxes, which are imposed or chargeable on or
in connection with any Financing Document shall be paid by Newco. The
Bank shall be entitled but not obliged to pay any such duties or Taxes
(whether or not they are its primary responsibility). If the Bank does so
Newco shall on demand indemnify the Bank against those duties and Taxes
and against any costs and expenses incurred by the Bank in discharging
them.
18.6 VAT
18.6.1 All payments made by Newco under the Financing Documents are calculated
without regard to VAT. If any such payment constitutes the whole or any
part of the consideration for a taxable or deemed taxable supply (whether
that supply is taxable pursuant to the exercise of an option or
otherwise) by the Bank, the amount of that payment shall be increased by
an amount equal to the amount of VAT which is chargeable in respect of
the taxable supply in question.
18.6.2 No payment or other consideration to be made or furnished to Newco by the
Bank pursuant to or in connection with any Financing Document or any
transaction or document contemplated in any Financing Document may be
increased or added to by reference to (or as a result of any increase in
the rate of) any VAT which shall be or may become chargeable in respect
of any taxable supply.
18.7 INDEMNITY PAYMENTS
Where in any Financing Document Newco has an obligation to indemnify or
reimburse the Bank in respect of any loss or payment, the calculation of
the amount payable by way of indemnity or reimbursement shall take
account of the likely Tax treatment in the hands of the Bank (as
conclusively determined by the Bank) of the amount payable by way of
indemnity or reimbursement and of the loss or payment in respect of which
that amount is payable.
18.8 VALUATIONS AND APPOINTMENTS
18.8.1 The Bank may not more than once in any 12 month period (unless a Default
is outstanding then it may at any time and from time to time) instruct
valuers to undertake a valuation of the Properties or any of them and
Newco shall forthwith on demand pay all reasonable fees, costs and
expenses of each valuation and shall give to the valuer all such
assistance as he may reasonably require to carry out any such valuation
including allowing the valuer free access to the Properties on the valuer
giving reasonable prior notice that such valuation is to be carried out.
18.8.2 The Bank may at any time and from time to time instruct such independent
professional advisers as it may deem necessary for the protection of its
interests under the Financing Documents and Newco shall forthwith on
demand pay all reasonable fees, costs and expenses of each such
appointment.
- 48 -
19 WAIVERS; REMEDIES CUMULATIVE
19.1 NO IMPLIED WAIVERS; REMEDIES CUMULATIVE
The rights of the Bank: under the Financing Documents
(a) may be exercised as often as necessary;
(b) are cumulative and not exclusive of its rights under the general
law; and
(c) may be waived only in writing and specifically.
Delay in exercising or non-exercise of any such right is not a waiver of
that right.
19.2 EURO CONVENTIONS
if Sterling is, or is to be, replaced by the euro, the Bank may notify
Newco that any references in this Agreement to a Business Day, day-count
fraction or other convention (whether for the calculation of interest,
determination of payment dates or otherwise) shall, if different, be
amended to comply with any generally accepted conventions and market
practice from time to time applicable to euro denominated obligations in
the London interbank market. Upon such notification, this Agreement shall
be deemed to be amended accordingly.
20. MISCELLANEOUS
20.1 SEVERANCE
if any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any jurisdiction, that shall not effect:
(a) the legality, validity or enforceability in that jurisdiction of
any other provision of this Agreement; or
(b) the legality, validity or enforceability in any other jurisdiction
of that or any other provision of this Agreement.
20.2 COUNTERPARTS
This Agreement may be executed in any number of counterparts and this
shall have the same effect as if the signatures on the counterparts were
on a single copy of this Agreement.
20.3 THIRD PARTIES
The parties to this Agreement do not intend that any term of this
Agreement should be enforceable pursuant to the Contracts (Rights of
Third Parties) ▇▇▇ ▇▇▇▇.
-49-
21. NOTICES
21.1 METHOD
Each notice or other communication to be given under this Agreement shall
be given in writing in English and, unless otherwise provided, shall be
made by fax or letter.
21.2 DELIVERY
Any notice or other communication to be given by one Party to the other
under this Agreement shall (unless one Party has by 15 days' notice to
the other Party specified another address) be given to that other Party
at the respective addresses given in Clause 21.3.
21.3 ADDRESSES
The address and fax number of Newco and the Bank are:
(A) Newco:
Global Healthcare Partners Limited
Nicon House
2nd Floor
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Attention: The Company Secretary
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
(B) the Bank:
The Governor and Company of the Bank of Scotland
▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
21.4 DEEMED RECEIPT
21.4.1 Any notice or other communication given by the Bank shall be deemed to
have been received:
(a) if sent by fax, with a confirmed receipt of transmission from the
receiving machine, on the day on which transmitted;
(b) in the case of a notice given by hand, on the day of actual
delivery; and
(c) if posted, on the second Business Day following the day on which
it was despatched by first class mail postage prepaid.
- 50 -
provided that a notice given in accordance with the above but
received on a day which is not a Business Day or after normal
business hours in the place of receipt shall be deemed to have
been received on the next Business Day.
21.4.2 Any notice or other communication given to the Bank shall be deemed to
have been given only on actual receipt.
22 ASSIGNMENTS AND TRANSFERS
22.1 BENEFIT OF AGREEMENT
This Agreement shall be binding upon and enure to the benefit of each
Party and its successors and assigns.
22.2 ASSIGNMENTS AND TRANSFERS BY NEWCO
Newco shall not be entitled to assign or transfer any of its rights or
obligations under this Agreement.
22.3 ASSIGNMENTS AND TRANSFERS BY BANK
22.3.1 Subject to Clause 22.3.2. the Bank may at any time, with the prior
written consent of Newco (such consent not to be unreasonably withheld or
delayed), assign any of its rights and benefits under the Financing
Documents, or transfer any of its rights and obligations under the
Financing Documents to another Bank; or other financial institution which
is a Qualifying Bank provided that:
(a) the Bank or any other member of the Bank of Scotland Group (as
defined in Clause 22.3.2 below) shall not assign or transfer to
more than 3 banks or other financial institutions;
(b) the Bank or any other member of the Bank of Scotland Group shall
retain not less than 50 per cent. of the Loan following any such
assignment or transfer; and
(c) the amount that is assigned or transferred is not less than pounds
sterling 2,000,000.
22.3.2 Notwithstanding Clause 22.3.1, no consent of Newco shall be required if
the Bank assigns any of its rights and benefits under the Financing
Documents or transfers any of its rights and obligations under the
Financing Documents to any member of the Bank of Scotland Group. For the
purposes of this Clause 22 BANK OF SCOTLAND Group means The Governor and
Company of the Bank of Scotland and any of its Subsidiaries from time to
time.
22.4 CONSEQUENCES OF TRANSFER
Newco shall be under no obligation to pay any greater amount under this
Agreement following an assignment or transfer by the Bank of any of its
rights or obligations pursuant to this Clause 22 if, in the circumstances
existing at the time of such assignment or transfer, such greater amount
would not have been payable but for the assignment or transfer.
-51-
22.5 DISCLOSURE OF INFORMATION
The Bank may disclose to its professional advisors, any member of the
Bank of Scotland Group, and to any person with whom it is proposing to
enter, or has entered into, any kind of assignment, transfer, novation or
participation in relation to this Agreement, any information which the
Bank has acquired, under or in connection with any financing Document.
provided that such assignee, transferee or sub-participant agrees to keep
such information confidential.
23. INDEMNITIES
23.1 BREAKAGE COSTS INDEMNITY
Newco shall indemnify the Bank on demand against any loss or expense
(including any loss or expense on account of funds borrowed, contracted
for or utilised to fund any amount payable under this Agreement, any
amount repaid or prepaid under this Agreement or any Advance but
excluding loss of Margin) which the Bank; has sustained or incurred as a
consequence of:
(a) an Advance not being made following the service of a Drawdown
Notice (except as a result of the failure of the Bank to comply
with its obligations under this Agreement);
(b) the failure of Newco to make payment on the due date of any sum
due under this Agreement;
(c) the occurrence of any Default or the operation of Clause 16.2, or
(d) any prepayment or repayment of an Advance otherwise than on an
Interest Date relative to that Advance.
23.2 CURRENCY INDEMNITY
23.2.1 Any payment made to or for the account of or received by the Bank in
respect of any moneys or liabilities due, arising or incurred by Newco to
the Bank in a currency (the CURRENCY OF PAYMENT) other than the currency
in which the payment should have been made under this Agreement (the
CURRENCY OF OBLIGATION) in whatever circumstances (including as a result
of a judgment against Newco) and for whatever reason shall constitute a
discharge to Newco only to the extent of the Currency of Obligation
amount which the Bank is able on the date of receipt of such payment (or
if such date of receipt is not a Business Day, on the next succeeding
Business Day) to purchase with the Currency of Payment amount at its spot
rate of exchange (as conclusively determined by the Bank) in the London
foreign exchange market.
23.2.2 If the amount of the Currency of Obligation which the Bank is so able to
purchase falls short of the amount originally due to the Bank under this
Agreement, then Newco shall immediately on demand indemnify the Bank
against any loss or damage arising as a result of that shortfall by
paying to the Bank that amount in the Currency of Obligation certified by
the Bank: as necessary so to indemnify it.
- 52 -
23.3 GENERAL
23.3.1 Each indemnity in this Clause 23 shall constitute a separate and
independent obligation from the other obligations contained to this
Agreement, shall give rise to a separate and independent cause of action,
shall apply irrespective of any indulgence granted from time to time and
shall continue in full force and effect notwithstanding any judgment or
order for a liquidated sum or sums in respect of amounts due under this
Agreement or under any such judgment or order.
23.3.2 The certificate of the Bank; as to the amount of any loss or damage
sustained or incurred by it shall be conclusive and binding on Newco
except for any manifest error.
24. LAW
This Agreement is governed by and shall be construed in accordance with
English law.
IN WITNESS whereof the Parties have caused this Agreement to be duly executed on
the date set out above.
-53-
SCHEDULE 1
CONDITIONS PRECEDENT
The conditions referred to in Clause 4.1 are as follows:
1. DELIVERY OF CERTIFIED COPIES
The Bank shall have received a Certified Copy of each of the following
in form and substance satisfactory to it:
(a) the certificate of incorporation (and any relative certificate of
incorporation on change of name) of USPI and each of the companies
listed in Part I of Schedule 3;
(b) the memorandum and articles of association of each of USPI and the
companies listed in Part I of Schedule 3;
(c) the minutes of a meeting of the board of directors of USPI and
each of the companies listed in Part I of Schedule 3:
(i) approving and authorising the execution, delivery and
performance of each Transaction Document to which it is to
be a party on the terms and conditions of those documents
subject always, where appropriate, to the provisions of
sections 151 to 158 (inclusive) of the Act:
(ii) showing that the relevant board meeting was quorate, that
due consideration was given by all the relevant directors
present of the relevant company's obligations and
liabilities arising under those documents and that all
declarations of interests required in connection with any
Transaction Document to which it is to be a party were
made; and
(iii) authorising any director whose name and specimen signature
is set out in those minutes or in a separate certificate to
sign or otherwise attest the execution of those documents
and any other documents to be executed or delivered
pursuant to those documents; and
(d) the statutory declarations made for the purpose of section 155 of
the Act in the prescribed form by all of the directors of each of
the companies listed in Part I of Schedule 3 (with the exception
of Newco) together with a Certified Copy of each statutory report
by the auditors of each of those companies required under section
156(4) of the Act and a special resolution of the members of
Aspen; and
(e) the register of directors of each of the companies listed in
Part I of Schedule 3 and the register of members of Aspen;
(f) each of the following documents duly executed by the parties
thereto:
(i) the Acquisition Documents;
(ii) the Disclosure Letter;
(iii) Employment Contract; and
(iii) the Loan Notes Instrument;
- 54 -
(g) a special resolution of the members of Aspen amending the articles
of association of Aspen so as to remove the pre-emption rights on
transfer of shares; and
(h) a special resolution of the members of Aspen Healthcare Limited
amending the memorandum of association of Aspen Healthcare Limited
so as to include a power to charge in support of guarantee.
2. DELIVERY OF ORIGINAL NON-SECURITY DOCUMENTATION, ETC.
The Bank shall have received each of the following in form and substance
satisfactory to it:
(a) in relation to Aspen, the Management Accounts for the two month
period ending on 28 February 2000 and its Accounts for the
Financial Year ending 31st December 1999;
(b) written details of Newco's working capital arrangements and its
proposals for funding the cancer centre at Parkside together with
details of Newco's base capital expenditure programme for the
period to 31st December 2001 and written details of the Group's
businesses and operations for the 2 Financial Years of the Group
up to (and including) the Financial Year ending 31 December 2002;
(c) a pro forma balance sheet of Newco showing its balance sheet after
its acquisition of the Aspen Shares;
(d) evidence that an interest rate management strategy has been
agreed;
(e) evidence that Newco has contributed a minimum of pounds sterling
21,351,000 from its own resources (obtained by way of subordinated
debt and/or the proceeds of the subscription for shares in Newco)
towards the acquisition of the Aspen Shares;
(f) a letter from the Auditors addressed to the Bank, confirming that
they are aware of the provisions of Clauses 1 and 15.4.1 of this
Agreement;
(g) the arrangement fee and initial management fee payable on the date
of this Agreement in accordance with Clauses 18.2 and 18.3;
(h) a legal opinion from Messrs Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇ in
relation to USPI and matters of Delaware and Texas law;
(i) evidence of the appointment by USPI of agents for service of
process in relation to the USPI Guarantee;
(j) evidence of the effective release and discharge of all mortgages,
charges and liens affecting Newco's interests in the Properties;
(k) appropriate land registry application forms duly completed and
accompanied by all necessary Land Registry fees;
(l) the results of H.M. Land Registry Searches in favour of the Bank,
on the appropriate forms against all of the registered titles
comprising Newco's interests in the Properties giving not less
than ten Business Days' priority beyond the date of the Guarantee
and Debenture and showing no adverse entries; and
-55-
(m) all necessary P.D. Forms in relation to any stamp duty (including
any denoting fees) payable in connection with the transfer of the
Properties to Newco duly completed accompanied by that stamp duty
3. DELIVERY OF SECURITY DOCUMENTS
The Bank shall have received each of the following in form and substance
satisfactory to it:
(a) a Guarantee and Debenture duly executed by each of the companies
listed in Part 1 of Schedule 4:
(b) the USPI Guarantee; and
(c) the Intercreditor Agreement duly executed by the parties thereto,
together with, in each case, all documents deliverable with them.
-56-
SCHEDULE 2
PART 1
DRAWDOWN NOTICE
To: THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
From: GLOBAL HEALTHCARE PARTNERS LIMITED
*[date]
Dear Sirs,
CREDIT AGREEMENT DATED *(THE CREDIT AGREEMENT)
Terms defined in the Credit Agreement have the same meaning in this notice.
We request the Advance to be drawn down under the Credit Agreement as follows:
1. Advance: Term Advance/Capex Advance
2. Amount of Advance:
3. Drawdown Date:
4. Duration of Interest Period:
5. Payment instructions:
(if applicable)
We confirm that today and on the Drawdown Date:
(a) the representations and warranties in Clause 14 to be repeated are and
will be correct; and
(b) no Default or Potential Default has occurred and is continuing or will
occur on the making of the Advance.
SIGNED
For and on behalf of
GLOBAL HEALTHCARE PARTNERS LIMITED
(a company incorporated in England and Wales under number 3952340)
- 57 -
SCHEDULE 2
PART II
LOAN NOTES GUARANTEE UTILISATION NOTICE
To: THE GOVERNOR AND COMPANY OF THE BANK OF SCOTLAND
From: GLOBAL HEALTHCARE PARTNERS LIMITED
*[date]
Dear Sirs,
CREDIT AGREEMENT DATED *(THE CREDIT AGREEMENT)
Terms defined in the Credit Agreement have the same meaning in this notice.
We hereby request the Loan Notes Guarantee to be issued under the Term Loan and
Guarantee Facility in the agreed form:
(a) Issue Date:
(b) Amount of Loan Notes Guarantee:
(c) Expiry date of Loan Notes Guarantee: 30th September 2003
We confirm that today and on the Issue Date:
(i) the representations and warranties in Clause l4 to be repeated are and
will be correct; and
(ii) no Default or Potential Default has occurred and is continuing or will
occur on the issue of the Loan Notes Guarantee
SIGNED
For and on behalf of
GLOBAL HEALTHCARE PARTNERS LIMITED
(a company incorporated in England and Wales under number 3952340)
- 58 -
SCHEDULE 3
THE GROUP
PART I - CHARGING GROUP COMPANIES
NAME JURISDICTION OF INCORPORATION SHARES OWNED BY
AND REGISTERED NUMBER
Newco England and Wales USPI
Registered Number 3952340
Aspen England & Wales Newco
Registered number 3471084
Aspen Healthcare Limited England & Wales Aspen
Registered number 2140182
PART II - DORMANT SUBSIDIARIES
NAME JURISDICTION OF INCORPORATION SHARES OWNED BY
AND REGISTERED NUMBER
▇▇▇▇▇▇▇▇▇▇ England Limited England and Wales Aspen Healthcare Limited
Registered number 1913617
Parkside Hospital Limited England and Wales Aspen Healthcare Limited
Registered number 1328198
▇▇▇▇▇ House Hospital England and Wales Aspen Healthcare Limited
Limited Registered number 1340973
Hillside Holdings Limited England and Wales Aspen Healthcare Limited
Registered number 2320361
Hillside Hospital Limited England and Wales Aspen Healthcare Limited
Registered number 2292605
-59-
SCHEDULE 4
MANDATORY COST RATE
(a) The Mandatory Cost Rate for an Advance for each Interest Period shall be
the rate calculated by the Bank in accordance with the following formula:
Mandatory Cost Rate = BY + S(Y- Z) + F x 0.01% per annum
-----------------------
100-(B+S)
where on the day of application of the formula:
B is the percentage of the Bank's eligible liabilities (in excess
of any stated minimum) which the Bank of England requires the
Bank to hold on a non-interest-bearing deposit account in
accordance with its cash ratio requirements;
Y is LIBOR for the relevant Interest Period;
S is the percentage of the Bank's eligible liabilities which the
Bank of England requires the Bank to place as a special deposit;
Z is the interest rate per annum allowed by the Bank of England on
special deposits; and
F is the charge payable by the Bank to the Financial Services
Authority under the Fees Regulations expressed in pounds per
pounds sterling 1 million of the fee base of the Bank.
(b) For the purposes of this Schedule:
(i) ELIGIBLE LIABILITIES and SPECIAL DEPOSITS have the meanings given
to them at the time of application of the formula by the Bank of
England;
(ii) FEE BASE has the meaning given to it in the Fees Regulations; and
(iii) FEES REGULATIONS means any regulations governing the payment of
fees for banking supervision.
(c) In the application of the formula, B, Y, S and Z shall be included in the
formula as figures and not as percentages, e.g. if B = 0.5% and Y = 15%.
BY is calculated as 0.5 x 15.
(d) (i) The formula shall be calculated on the first day of the relevant
Interest Period.
(ii) Each rate calculated in accordance with the formula shall, if
necessary, be rounded upward to 4 decimal places.
(e) If the Bank determines that a change in circumstances has rendered, or
will render, the formula inappropriate, the Bank shall notify Newco of
the manner in which the Mandatory Cost Rate will subsequently be
calculated. The manner of calculation so notified by the Bank shall, in
the absence of manifest error, be binding on the Parties.
- 60 -
SCHEDULE 5
THE PROPERTIES
1. All freehold land known as ▇▇▇▇▇ House Hospital, High Road, Buckhurst
Hill, registered at H.M. Land Registry under title number EX193541.
2. All freehold land known as ▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, registered at
H.M. Land Registry under title number EX508759.
3. All freehold land lying to the east of Parkside, Wimbledon. registered at
H.M. Land Registry under title number TGL111982.
4. All freehold land known as ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, registered at
H.M. Land Registry under title number SY135685.
5. All freehold land known as ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, registered at
H.M. Land Registry under title number SGL345299.
- 61 -
SCHEDULE 6
FIXED RATE CONFIRMATION NOTICE
To: Global Healthcare Partners Limited
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Date:
FIXED RATE OPTION - CONFIRMATION NOTICE
We refer to our credit agreement dated [ ] (the AGREEMENT). Terms defined
therein shall have the same meanings in this Fixed Rate Confirmation Notice.
We refer to the Term Advance(s) to be converted and confirm that, as agreed
between us, the interest rate applicable to such Fixed Rate Funds will be [ ]
per cent per annum for the Fixed Rate Period of [ ] months.
Please countersign, date and return to us the duplicate of this Fixed Rate
Confirmation Notice to record the terms of the agreed interest rate and Fixed
Rate Period.
Any failure to countersign shall not in any way affect the operation of the
provision of clause 7.4 of the Agreement and the fixed rate referred to above
shall apply notwithstanding any such failures.
Yours faithfully,
_________________________
For and on behalf of
THE GOVERNOR AND COMPANY
OF THE BANK OF SCOTLAND
Countersigned and acknowledged for and on behalf of Global Healthcare Partners
Limited
_________________________ Date ___________________________
Director/Secretary
- 62 -
NEWCO
SIGNED by )
/s/ ILLEGIBLE )
for and on behalf of )
GLOBAL HEALTHCARE )
PARTNERS LIMITED )
THE BANK
SIGNED by )
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ )
for and on behalf of )
THE GOVERNOR AND COMPANY )
OF THE BANK OF SCOTLAND )
- 63 -